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EXHIBIT 10.1
DISTRIBUTION AGREEMENT
between
THE DUN & BRADSTREET CORPORATION
and
THE NEW D&B CORPORATION
Dated as of September __, 2000
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS.................................................................................. 2
SECTION 1.1. General................................................................................. 2
SECTION 1.2. References; Interpretation.............................................................. 19
ARTICLE II. DISTRIBUTION AND OTHER TRANSACTIONS; CERTAIN
COVENANTS............................................................................... 19
SECTION 2.1. The Distribution and Other Transactions................................................. 19
SECTION 2.2. Certain Matters Regarding Accounts Payable and Accounts
Receivable......................................................................... 25
SECTION 2.3. Cash Balances........................................................................... 26
SECTION 2.4. Assumption and Satisfaction of Liabilities.............................................. 26
SECTION 2.5. Resignations............................................................................ 26
SECTION 2.6. Further Assurances...................................................................... 26
SECTION 2.7. Limited Representations or Warranties................................................... 27
SECTION 2.8. Guarantees.............................................................................. 27
SECTION 2.9. Witness Services........................................................................ 27
SECTION 2.10. Certain Post-Distribution Transactions.................................................. 28
SECTION 2.11. Transfers Not Effected Prior to the Distribution; Transfers Deemed
Effective as of the Distribution Date............................................... 29
SECTION 2.12. Conveyancing and Assumption Instruments................................................. 30
SECTION 2.13. Ancillary Agreements.................................................................... 30
SECTION 2.14. Intellectual Property................................................................... 30
SECTION 2.15. Corporate Names......................................................................... 31
ARTICLE III. INDEMNIFICATION.............................................................................. 33
SECTION 3.1. Indemnification by the Corporation...................................................... 33
SECTION 3.2. Indemnification by New D&B.............................................................. 33
SECTION 3.3. Procedures for Indemnification.......................................................... 33
SECTION 3.4. Indemnification Payments................................................................ 35
ARTICLE IV. ACCESS TO INFORMATION........................................................................ 35
SECTION 4.1. Provision of Corporate Records.......................................................... 35
SECTION 4.2. Access to Information................................................................... 36
SECTION 4.3. Reimbursement; Other Matters............................................................ 36
SECTION 4.4. Confidentiality......................................................................... 36
SECTION 4.5. Privileged Matters...................................................................... 37
SECTION 4.6. Ownership of Information................................................................ 39
SECTION 4.7. Limitation of Liability................................................................. 39
SECTION 4.8. Other Agreements Providing for Exchange of Information.................................. 39
ARTICLE V. ADMINISTRATIVE SERVICES...................................................................... 39
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SECTION 5.1. Performance of Services................................................................. 39
SECTION 5.2. Independence............................................................................ 39
SECTION 5.3. Non-exclusivity......................................................................... 40
ARTICLE VI. DISPUTE RESOLUTION........................................................................... 40
SECTION 6.1. Negotiation............................................................................. 40
SECTION 6.2. Arbitration............................................................................. 40
SECTION 6.3. Continuity of Service and Performance................................................... 41
ARTICLE VII. INSURANCE.................................................................................... 41
SECTION 7.1. Policies and Rights Included Within Assets; Assignment of Policies...................... 41
SECTION 7.2. Post-Distribution Date Claims........................................................... 42
SECTION 7.3. Administration; Other Matters........................................................... 42
SECTION 7.4. Agreement for Waiver of Conflict and Shared Defense..................................... 43
SECTION 7.5. Cooperation............................................................................. 44
ARTICLE VIII. MISCELLANEOUS................................................................................ 44
SECTION 8.1. Complete Agreement; Construction........................................................ 44
SECTION 8.2. Ancillary Agreements.................................................................... 44
SECTION 8.3. Counterparts............................................................................ 44
SECTION 8.4. Survival of Agreements.................................................................. 44
SECTION 8.5. Expenses................................................................................ 44
SECTION 8.6. Notices................................................................................. 45
SECTION 8.7. Waivers................................................................................. 45
SECTION 8.8. Amendments.............................................................................. 45
SECTION 8.9. Assignment.............................................................................. 45
SECTION 8.10. Successors and Assigns.................................................................. 46
SECTION 8.11. Termination............................................................................. 46
SECTION 8.12. Subsidiaries............................................................................ 46
SECTION 8.13. Third Party Beneficiaries............................................................... 46
SECTION 8.14. Title and Headings...................................................................... 46
SECTION 8.15. Schedules and Exhibits.................................................................. 46
SECTION 8.16. GOVERNING LAW........................................................................... 46
SECTION 8.17. Consent to Jurisdiction................................................................. 46
SECTION 8.18. Severability............................................................................ 47
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DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of September __, 2000,
between THE DUN & BRADSTREET CORPORATION, a Delaware corporation (the
"Corporation"), and THE NEW D&B CORPORATION, a Delaware corporation ("New D&B").
WHEREAS, the Corporation acting through its direct and
indirect subsidiaries, currently conducts a number of businesses, including,
without limitation, (i) supplying business, credit, marketing and purchasing
information and services and receivables management services and (ii) providing
credit ratings on, and research and risk management services with respect to,
fixed-income securities and other credit obligations;
WHEREAS, the Board of Directors of the Corporation has
determined that it is appropriate, desirable and in the best interests of the
Corporation and its businesses, as well as the holders of shares of common
stock, par value $0.01 per share, of the Corporation (the "D&B Common Stock"),
to reorganize the Corporation to separate from the Corporation all businesses
currently conducted by the Corporation other than the Moody's Business (as
defined below) and to cause such businesses to be owned and conducted, directly
or indirectly, by New D&B;
WHEREAS, in order to effect such separation, the Board of
Directors of the Corporation has determined that it is appropriate, desirable
and in the best interests of the holders of D&B Common Stock, as well as of the
Corporation and its businesses, for the Corporation (i) to take certain steps to
reorganize the Corporation's Subsidiaries (as defined herein) and businesses,
including prior to the Distribution (as defined herein) (A) to complete the list
of pre- Distribution reorganization steps attached as Schedule 1.1(pp)(ii)
hereto, (B) to cause New D&B Inc., a newly formed Delaware corporation and
wholly owned subsidiary of New D&B ("New D&B Opco Inc."), to merge with and into
Dun & Bradstreet, Inc., a Delaware corporation ("D&B Opco Inc."), with D&B Opco
Inc. as the surviving corporation (the "Surviving Corporation"), pursuant to
which merger (x) each issued and outstanding share of New D&B Opco Inc. will be
converted into one share of the Surviving Corporation, (y) each issued and
outstanding share of D&B Opco Inc. will be converted into the right to receive
___ shares of New D&B and (z) the Surviving Corporation will become a wholly
owned subsidiary of New D&B, (C) upon completion of the transactions described
in (B), to cause the Corporation to contribute all of its non-stock assets
(other than assets specified herein to remain with the Corporation after the
Distribution) to New D&B, (D) upon completion of the transactions described in
(C), to cause the Corporation to contribute the capital stock held by the
Corporation in Duns Investing VI Corporation and Dun & Bradstreet Ventures, Inc.
to New D&B and (E) on or prior to the record date for the Distribution, to cause
New D&B to issue (pursuant to a stock dividend) a number of shares of common
stock of New D&B ("New D&B Common Stock") which, when combined with the number
of shares of New D&B Common Stock then held by D&B, equals 50% of the number of
shares of D&B Common Stock outstanding on such record date; (ii) to take certain
steps prior to the Distribution with respect to the indebtedness of the
Corporation, as hereinafter
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described; and (iii) upon completion of the foregoing, to distribute to the
holders of the D&B Common Stock all the outstanding shares of New D&B Common
Stock, together with the associated Rights (as defined herein), as set forth
herein;
WHEREAS, each of the Corporation and New D&B has determined
that it is necessary and desirable, on or prior to the Distribution Date (as
defined herein), to allocate and transfer assets and to allocate and assign
responsibility for liabilities in respect of the activities of the businesses of
such entities, as well as assets and liabilities in respect of other businesses
and activities of the Corporation and its current and former Subsidiaries and
other matters; and
WHEREAS, each of the Corporation and New D&B has determined
that it is necessary and desirable to set forth the principal corporate
transactions required to effect such Distribution and to set forth other
agreements that will govern certain other matters following the Distribution.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. General. As used in this Agreement, the
following terms shall have the following meanings:
(a) "Action" shall mean any action, suit, arbitration,
inquiry, proceeding or investigation by or before any court, any governmental or
other regulatory or administrative agency, body or commission or any arbitration
tribunal.
(b) "Affiliate" shall mean, when used with respect to a
specified person, another person that controls, is controlled by, or is under
common control with the person specified. As used herein, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, whether through the
ownership of voting securities or other interests, by contract or otherwise.
(c) "Agreement Disputes" shall have the meaning set forth in
Section 6.1.
(d) "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, the
Data Services Agreement, the Employee Benefits Agreement, the Intellectual
Property Assignment, the Shared Transaction Services Agreement, the Tax
Allocation Agreement, the Insurance and Risk Management Services Agreement and
the Transition Services Agreement.
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(e) "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 (including all tangible
property incorporating or embodying any
Intellectual Property);
(iii) all inventories of materials, parts, raw
materials, supplies, work-in-process and
finished goods and products;
(iv) all interests in real property of whatever
nature, including easements, whether as
owner, mortgagee or holder of a Security
Interest in real property, lessor,
sublessor, lessee, sublessee or otherwise;
(v) all interests in any capital stock or other
equity interests of any Subsidiary or any
other person, all bonds, notes, debentures
or other securities issued by any Subsidiary
or any other person, all loans, advances or
other extensions of credit or capital
contributions to any Subsidiary or any other
person and all other investments in
securities of any person;
(vi) all license agreements, leases of personal
property, open purchase orders for raw
materials, supplies, parts or services,
unfilled orders for the manufacture and sale
of products and other contracts, agreements
or commitments;
(vii) all deposits, letters of credit and
performance and surety bonds;
(viii) all Intellectual Property;
(ix) all prepaid expenses, trade accounts and
other accounts and notes receivables;
(x) all rights under contracts or agreements,
all claims or rights against any person
arising from the ownership of any asset, all
rights in connection
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with any bids or offers and all claims,
choses in action or similar rights, whether
accrued or contingent;
(xi) all rights under insurance policies and all
rights in the nature of insurance,
indemnification or contribution;
(xii) all licenses, permits, approvals and
authorizations which have been issued by any
Governmental Authority;
(xiii) cash or cash equivalents, bank accounts,
lock boxes and other deposit arrangements;
and
(xiv) interest rate, currency, commodity or other
swap, collar, cap or other hedging or
similar agreements or arrangements.
(f) "Assignee" shall have the meaning set forth in Section
2.1(f).
(g) "Business Entity" shall mean any corporation, partnership,
limited liability company or other entity which may legally hold title to
Assets.
(h) "Claims Administration" shall mean the processing of
claims made under the Shared Policies, including, without limitation, the
reporting of claims to the insurance carriers and the management of the defense
of claims.
(i) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the Treasury regulations promulgated thereunder, including any
successor legislation.
(j) "Commission" shall mean the U.S. Securities and Exchange
Commission.
(k) "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(k) 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
applicable law.
(l) "Corporation Indemnitee" shall mean any person who was a
director, officer, employee or agent of the Corporation at any time prior to the
Effective Time who is not also a director, officer, employee or agent of any
member of the Moody's Group or the New D&B Group immediately after the Effective
Time along with each of the heirs, executors, successors and assigns of any such
person.
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(m) the "Corporation" or "D&B" shall mean The Dun & Bradstreet
Corporation, a Delaware corporation, which will change its name at the time of
the Distribution to "Moody's Corporation."
(n) "D&B Opco Inc." shall have the meaning set forth in the
recitals.
(o) "Data Services Agreement" shall mean the Data Services
Agreement between the Corporation and New D&B (or Subsidiaries thereof).
(p) "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 the New D&B Common Stock owned by the Corporation on
the basis of one New D&B Common Share for every two outstanding shares of D&B
Common Stock.
(q) "Distribution Date" shall mean __________ __, 2000.
(r) "Distribution Record Date" shall mean the close of
business on such date as may be determined by the Corporation's Board of
Directors as the record date for the Distribution.
(s) "Effective Time" shall mean immediately prior to midnight,
New York time, ending the 24-hour period comprising the Distribution Date.
(t) "Employee Benefits Agreement" shall mean the Employee
Benefits Agreement between the Corporation and New D&B.
(u) "Final Determination" shall mean the final resolution of
liability for any Tax (as defined in the Tax Allocation Agreement) for any
taxable period, including any related interest or penalties, by or as a result
of: a final and unappealable decision, judgment, decree or other order by any
court of competent jurisdiction; 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; 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 any other final
disposition, including by reason of the expiration of the applicable statute of
limitations.
(v) "Former Corporation Business" shall mean any Business
Entity, business or operation that has been divested, terminated or otherwise
disposed of prior to the date hereof (whether by the Corporation, R.H. Donnelley
Corporation, any of their respective Subsidiaries or any predecessors of any of
the foregoing) and the Assets of which, if owned by the Corporation or any of
its Subsidiaries as of the date hereof, would not relate primarily to either the
Moody's Business or the New D&B Business.
(w) "Former Moody's Business" shall mean any Business Entity,
business or operation that has been divested, terminated or otherwise disposed
of prior to the date hereof
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(whether by the Corporation, R.H. Donnelley Corporation, any of their respective
Subsidiaries or any predecessors of any of the foregoing) and the Assets of
which, if owned by the Corporation or any of its Subsidiaries as of the date
hereof, would relate primarily to the Moody's Business.
(x) "Former New D&B Business" shall mean any Business Entity,
business or operation that has been divested, terminated or otherwise disposed
of prior to the date hereof (whether by the Corporation, R.H. Donnelley
Corporation, any of their respective Subsidiaries or any predecessors of any of
the foregoing) and the Assets of which, if owned by the Corporation or any of
its Subsidiaries as of the date hereof, would relate primarily to the New D&B
Business.
(y) "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.
(z) "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.
(aa) "Indemnifying Party" shall have the meaning set forth
in Section 3.3.
(bb) "Indemnitee" shall have the meaning set forth in
Section 3.3.
(cc) "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.
(dd) "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; 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.
(ee) "Insurance and Risk Management Services Agreement"
shall mean the Insurance and Risk Management Services Agreement between New D&B
and the Corporation.
(ff) "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.
(gg) "Insured Claims" shall mean those Liabilities that,
individually or in the aggregate, are covered within the terms and conditions of
any of the Shared Policies, whether or
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not subject to deductibles, policy limits, co-insurance, uncollectibility or
retrospectively-rated premium adjustments.
(hh) "Intellectual Property" shall mean all right, title
and interest worldwide in and to intellectual property, whether owned or used
under a license or other agreement obtained from third parties, including
without limitation all:
(i) non-public data, information, analyses,
documents or materials in any form or media
(including any concerning current or
prospective quality or technical issues,
costs, sales, pricing, customers, products,
suppliers, research and development,
engineering drawings, specifications,
formulae, surveys, plans, operating and
maintenance manuals);
(ii) patents, inventions, discoveries,
techniques, technology and related know-how
and improvements, copyrights and
copyrightable works (including computer
applications, programs, and other software
(source code and object code), middleware,
mask works, Internet site content, databases
and related documentation), systems and
networks;
(iii) trademarks, service marks, trade names,
corporate names, brand names, trade dress,
domain names, URLs, e-mail addresses and
other source indicators, together with the
goodwill of any business symbolized thereby
and all common-law rights related thereto;
and
(iv) registrations, applications and other rights
and privileges related to the foregoing.
(ii) "Intellectual Property Assignment" shall mean the
Intellectual Property Assignment between the Corporation and New D&B.
(jj) "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
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or not recorded or reflected or required to be recorded or reflected on the
books and records or financial statements of any person.
(kk) Reserved
(ll) Reserved
(mm) Reserved
(nn) "Minority Interest Financing" shall mean the
obligations incurred under the transaction documents executed in connection with
the Minority Interest Transaction (as defined in Schedule 2.1(j)(i)).
(oo) "Moody's" shall mean Moody's Investors Service, Inc.,
a Delaware corporation and a wholly owned subsidiary of the Corporation.
(pp) "Moody's Assets" shall mean:
(i) (A) the direct or indirect ownership
interests of the Corporation in those
Business Entities listed on Schedule
1.1(pp)(i) and (B) any direct or indirect
ownership interest of the Corporation in any
Business Entities that are not noted on
Schedule 1.1(pp)(i) or Schedule 1.1(zz)(i)
and the Assets of which principally relate
to the Moody's Business;
(ii) any and all Assets that are expressly
contemplated by this Agreement, including
those on the list of pre-Distribution
reorganization transactions attached as
Schedule 1.1(pp)(ii) hereto, or any
Ancillary Agreement (or included on any
Schedule hereto or thereto) as Assets which
have been or are to be transferred to the
Corporation, Moody's or any other member of
the Moody's Group prior to the Effective
Time or are to remain with the Corporation,
Moody's or any other member of the Moody's
Group subsequent to the Effective Time;
(iii) any Assets reflected on the Moody's Balance
Sheet or the accounting records supporting
such balance sheet and any Assets acquired
by or for Moody's or any member of the
Moody's Group subsequent to the date of such
balance sheet which, had they been so
acquired on or before such date and owned as
of such date, would have been reflected on
such balance sheet if prepared on a
consistent basis, subject to any
dispositions of any of such Assets
subsequent to the date of such balance
sheet;
(iv) subject to Article VII, any rights of any
member of the Moody's Group under any of the
Policies, including any rights thereunder
arising from and after the Effective Time in
respect of any Policies that are occurrence
policies;
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(v) any Moody's 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
Moody's Asset or the Moody's Business;
(vi) the minute books and similar corporate
records of the Corporation;
(vii) any and all Assets of any Former Moody's
Business, including, without limitation, the
Business Entities described on Schedule
1.1(pp)(vii);
(viii) 50% of any and all Assets of any Former
Corporation Business, including, without
limitation, the Business Entities described
on Schedule 1.1(pp)(viii);
(ix) any and all payments to be allocated to the
Corporation pursuant to Section 2.1(l);
(x) any and all Assets of the Corporation from
and after the Effective Time; and
(xi) 50% of any Assets of the Corporation prior
to the Effective Time that are not
specifically designated (other than pursuant
to this clause (xi) or clause (ix) of the
definition of "New D&B Assets") as Moody's
Assets or New D&B Assets.
Notwithstanding the foregoing, the Moody's Assets shall not in
any event include:
(w) subject to Section 2.1(l) and 2.1(r), any rights of
the Corporation under the 1996 Distribution
Agreement, the 1996 Tax Allocation Agreement, the
1996 Employee Benefits Agreement or the Ancillary
Agreements referred to in the 1996 Distribution
Agreement; or
(x) subject to Section 2.1(l) and 2.1(r), any rights of
the Corporation under the 1998 Distribution
Agreement, the 1998 Tax Allocation Agreement, the
1998 Employee Benefits Agreement or the Ancillary
Agreements referred to in the 1998 Distribution
Agreement; or
(y) the Assets listed or described on Schedule
1.1(pp)(y); or
(z) any and all Assets that are expressly contemplated by
this Agreement or any Ancillary Agreement (or the
Schedules hereto or thereto) as Assets to be
transferred or conveyed to any member of the New D&B
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
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purpose of determining what is and is not a Moody's Asset, any
item explicitly included on a Schedule referred to in this
Section 1.1(pp) shall take priority over any provision of the
text hereof, and clause (ii) of this paragraph (pp) shall take
priority over clause (iii) of this paragraph (pp).
(qq) "Moody's Balance Sheet" shall mean the combined
balance sheet of the Moody's Group, including the notes thereto, as of June 30,
2000, set forth as Schedule 1.1(qq) hereto.
(rr) "Moody's Business" shall mean (i) the business of
providing credit ratings on, and research and risk management services with
respect to, fixed income securities and other credit obligations, as presently
conducted by Moody's Investors Service, Inc. and the other Business Entities of
the Moody's Group, (ii) the businesses of the members of the Moody's Group,
(iii) any other business conducted by the Corporation or any Subsidiary of the
Corporation primarily through the use of the Moody's Assets, (iv) the businesses
of Business Entities acquired or established by or for the Corporation or any of
its Subsidiaries after the date of this Agreement and (v) the business of the
Corporation from and after the Effective Time.
(ss) "Moody's Contracts" shall mean any contracts or
agreements to which any member of the Moody's Group who are not individuals is a
party or by which it or any of its Affiliates who are not individuals or any of
their respective Assets is bound, whether or not in writing, including:
(i) any contracts or agreements listed or
described on Schedule 1.1(ss)(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
Moody's Group;
(iii) any contract or agreement that relates
primarily to the Moody's Business;
(iv) federal, state and local government and
other contracts and agreements that are
listed or described on Schedule 1.1(ss)(iv)
and any other government contracts or
agreements entered into after the date
hereof and prior to the Effective Time that
relate primarily to the Moody's Business;
(v) any contract or agreement representing
capital or operating equipment lease
obligations reflected on the Moody's Balance
Sheet, including obligations as lessee under
those contracts or agreements listed on
Schedule 1.1(ss)(v);
(vi) any contract or agreement that is otherwise
expressly contemplated pursuant to this
Agreement or any of the Ancillary Agreements
to be transferred or assigned to the
Corporation or any member of the Moody's
Group prior to the Effective Time or to
remain with the Corporation or any member of
the Moody's Group subsequent to the
Effective Time; and
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(vii) any guarantee, indemnity, representation or
warranty of any member of the Moody's Group.
(tt) "Moody's Group" shall mean Moody's, each Business
Entity which is contemplated to remain a Subsidiary of the Corporation hereunder
subsequent to the Effective Time, which shall include those identified as such
on Schedule 1.1(pp)(i) hereto, which Schedule shall also indicate the amount of
the Corporation's or Moody's direct or indirect ownership interest therein, and
the Corporation from and after the Effective Time.
(uu) "Moody's Indebtedness" shall have the meaning set
forth in Section 2.1(n).
(vv) "Moody's Indemnitees" shall mean each member of the
Moody's Group, each of their respective present and former directors, officers,
employees and agents and each of the heirs, executors, successors and assigns of
any of the foregoing, except the Corporation Indemnitees.
(ww) "Moody's 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(ww)(i)
hereto) as Liabilities to be assumed by the
Corporation or any member of the Moody's
Group prior to the Effective Time or to
remain with the Moody's Group subsequent to
the Effective Time, and all agreements,
obligations and Liabilities of the
Corporation or any member of the Moody's
Group under this Agreement or any of the
Ancillary Agreements;
(ii) all Liabilities (other than Taxes and any
employee-related Liabilities subject to the
provisions of the Tax Allocation Agreement
and the Employee Benefits Agreement,
respectively), primarily relating to,
arising out of or resulting from:
(A) the operation of the Moody's
Business, as conducted at any time prior to,
on or after the Effective Time (including
any Liability relating to, arising out of or
resulting from any act or failure to act by
any director, officer, employee, agent or
representative (whether or not such act or
failure to act is or was within such
person's authority));
(B) the operation of any business
conducted by the Corporation or any
Subsidiary of the Corporation at any time
from and after the Effective Time (including
any Liability relating to, arising out of or
resulting from any act or failure to act by
any director, officer, employee, agent or
representative (whether or not such act or
failure to act is or was within such
person's authority)); or
<PAGE> 15
12
(C) any Moody's Assets;
whether arising before, on or after the
Effective Time;
(iii) all Liabilities reflected as liabilities or
obligations on the Moody's 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 Moody's Balance Sheet;
(iv) the Moody's Indebtedness;
(v) all Liabilities that the Corporation has
agreed to assume under Sections 2.1(i) and
(j); and
(vi) 50% of all Liabilities of the Corporation
and its Subsidiaries immediately prior to
the Effective Time not allocated to New D&B
or Moody's hereunder (other than pursuant to
this clause (vi) or clause (vi) of the
definition of "New D&B Liabilities").
Notwithstanding the foregoing, the Moody's
Liabilities shall not include:
(x) any Liabilities that are expressly contemplated by
this Agreement or any Ancillary Agreement (or the
Schedules hereto or thereto) as Liabilities to be
assumed by New D&B or any member of the New D&B
Group, including any Liabilities set forth in
Schedule 1.1(ww)(x);
(y) subject to Section 2.1(i), any Liabilities of any
Former New D&B Business; or
(z) all agreements and obligations of any member of the
New D&B Group under this Agreement or any of the
Ancillary Agreements.
(xx) Reserved
(yy) "New D&B" shall mean the New D&B Corporation, a
Delaware corporation, which will change its name at the time of the Distribution
to "The Dun & Bradstreet Corporation.
<PAGE> 16
13
(zz) "New D&B Assets" shall mean:
(i) (A) the direct or indirect ownership
interests of the Corporation in those
Business Entities listed on Schedule
1.1(zz)(i), (B) any direct or indirect
ownership interest of the Corporation in any
Business Entities that are not listed on
Schedule 1.1(pp)(i) or Schedule 1.1(zz)(i)
and the Assets of which principally relate
to the New D&B Business and (C) any other
direct or indirect ownership interest of the
Corporation in any Business Entity that is
not referred to in clauses (A) or (B) and is
not a Moody's Asset;
(ii) any and all Assets that are expressly
contemplated by this Agreement, including
those on the list of pre-Distribution
reorganization transactions attached as
Schedule 1.1(pp)(ii) hereto, or any
Ancillary Agreement (or included on any
Schedule hereto or thereto) as Assets which
have been or are to be transferred to New
D&B or any other member of the New D&B Group
prior to the Effective Time or are to remain
with New D&B or any other member of the New
D&B Group subsequent to the Effective Time;
(iii) any Assets reflected on the New D&B Balance
Sheet or the accounting records supporting
such balance sheet (in each case other than
Assets also reflected in the Moody's Balance
Sheet) and any Assets acquired by or for New
D&B or any member of the New D&B 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 (and not also reflected in the Moody's
Balance Sheet) if prepared on a consistent
basis, subject to any dispositions of any of
such Assets subsequent to the date of such
balance sheet;
(iv) subject to Article VII, any rights of any
member of the New D&B Group under any of the
Policies, including any rights thereunder
arising from and after the Effective Time in
respect of any Policies that are occurrence
policies;
(v) any New D&B 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
New D&B's Asset or the New D&B's Business;
(vi) any and all payments to be allocated to New
D&B pursuant to Section 2.1(l);
<PAGE> 17
14
(vii) any and all Assets of any Former New D&B
Business, including, without limitation, the
Business Entities described on Schedule
1.1(zz)(vii);
(viii) 50% of any and all Assets of any Former
Corporation Business, including, without
limitation, the Business Entities described
in Section 1.1(pp)(viii); and
(ix) 50% of any Assets of the Corporation prior
to the Effective Time that are not
specifically designated hereunder (other
than pursuant to this clause (ix) or
pursuant to clause (xi) of the definition of
"Moody's Assets") as Moody's Assets or New
D&B Assets.
Notwithstanding the foregoing, the New D&B Assets shall not in
any event include:
(y) the Assets listed or described on Schedule
1.1(zz)(y); or
(z) any and all Assets that are expressly
contemplated by this Agreement or any
Ancillary Agreement (or the Schedules hereto
or thereto) as Assets to be transferred or
conveyed to any member of the Moody's 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
a D&B Asset, any item explicitly included on a Schedule
referred to in this Section 1.1(zz) shall take priority over
any provision of the text hereof, and clause (ii) of this
paragraph shall take priority over clause (iii) of this
paragraph (zz).
(aaa) "New D&B Balance Sheet" shall mean the consolidated
balance sheet of the New D&B Group, including the notes thereto, as of June 30,
2000, set forth as Schedule 1.1(aaa) hereto.
(bbb) "New D&B Business" shall mean (i) the business of
supplying business credit, marketing and purchasing information and services and
receivable management services, as presently conducted by D&B Opco Inc. and the
other Business Entities of New D&B Group, (ii) the businesses of the members of
the New D&B Group, (iii) any other business conducted by the Corporation or any
other Subsidiary of the Corporation primarily through the use of New D&B Assets
and (iv) the business of Business Entities acquired or established by New D&B or
any of its Subsidiaries after the date of this Agreement.
(ccc) "New D&B Common Stock" shall have the meaning set
forth in the recitals hereto.
<PAGE> 18
15
(ddd) "New D&B Contracts" shall mean all the contracts and
agreements to which the Corporation or any of its Affiliates who are not
individuals is a party or by which it or any of its Affiliates who are not
individuals is bound immediately prior to the Effective Time, except the Moody's
Contracts.
(eee) "New D&B Group" shall mean New D&B and each person
(other than any member of the Moody's Group) that is a Subsidiary of the
Corporation immediately prior to the Effective Time, which shall include those
identified as such on Schedule 1.1(zz)(i) hereto, which Schedule shall also
indicate the amount of New D&B direct or indirect ownership interest therein.
(fff) "New D&B Indebtedness" shall have the meaning
assigned to such term in Section 2.1(n).
(ggg) "New D&B Indemnitees" shall mean each member of the
New D&B Group, each of their respective present and former directors, officers,
employees and agents and each of the heirs, executors, successors and assigns of
any of the foregoing, except the Corporation Indemnitees.
(hhh) "New D&B 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(hhh)(i)
hereto) as Liabilities to be assumed by New
D&B or any member of the New D&B Group prior
to the Effective Time or to remain with the
New D&B Group subsequent to the Effective
Time, and all agreements, obligations and
Liabilities of New D&B or any member of the
New D&B Group under this Agreement or any of
the Ancillary Agreements;
(ii) all Liabilities (other than Taxes and any
employee-related Liabilities subject to the
provisions of the Tax Allocation Agreement
and the Employee Benefits Agreement,
respectively), primarily relating to,
arising out of or resulting from:
(A) the operation of the New D&B Business,
as conducted at any time prior to, on or
after the Effective Time (including any
Liability relating to, arising out of or
resulting from any act or failure to act by
any director, officer, employee, agent or
representative (whether or not such act or
failure to act is or was within such
person's authority));
(B) the operation of any business conducted
by New D&B or any Subsidiary of New D&B at
any time from and after the Effective Time
(including any Liability relating to,
arising out of or
<PAGE> 19
16
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 New D&B Assets;
whether arising before, on or after the
Effective Time;
(iii) all Liabilities reflected as liabilities or
obligations on the New D&B Balance Sheet or
the accounting records supporting such
balance sheet (other than Liabilities also
reflected on the Moody's 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 (and not also reflected on the Moody's
Balance Sheet), subject to any discharge of
such Liabilities subsequent to the date of
the New D&B Balance Sheet;
(iv) the New D&B Indebtedness;
(v) all Liabilities that New D&B has agreed to
assume under Sections 2.1(i) and (j); and
(vi) 50% of all Liabilities of the Corporation
and its Subsidiaries not allocated to New
D&B or Moody's hereunder (other than
pursuant to this clause (vi) or clause (vi)
of the definition of "Moody's Liabilities").
Notwithstanding the foregoing, the New D&B's Liabilities shall
not include:
(x) any Liabilities that are expressly
contemplated by this Agreement or any
Ancillary Agreement (or the Schedules hereto
or thereto) as Liabilities to be assumed by
Moody's or any member of the Moody's Group,
including any Liabilities set forth in
Schedule 1.1(hhh)(x);
(y) subject to Section 2.1(i), any Liabilities
of any Former Moody's Business; or
(z) all agreements and obligations of any member
of the Moody's Group under this Agreement or
any of the Ancillary Agreements.
(iii) "New D&B Opco Inc." shall have the meaning set forth
in the recitals of this Agreement.
<PAGE> 20
17
(jjj) "1996 Distribution" shall mean the Distribution
described in the 1996 Distribution Agreement.
(kkk) "1996 Distribution Agreement" shall mean the
Distribution Agreement among The Dun and Bradstreet Corporation (now known as
R.H. Donnelley Corporation), Cognizant Corporation (now known as Nielsen Media
Research, Inc.) and ACNielsen Corporation, dated as of October 28, 1996.
(lll) "1996 Employee Benefits Agreement" shall mean the
Employee Benefits Agreement among The Dun & Bradstreet Corporation (now known as
R.H. Donnelley Corporation), Cognizant Corporation (now known as Nielsen Media
Research, Inc.) and ACNielsen Corporation, dated as of October 28, 1996.
(mmm) "1996 Indemnity and Joint Defense Agreement" shall
mean the Indemnity and Joint Defense Agreement among The Dun & Bradstreet
Corporation (now known as R.H. Donnelley Corporation), Cognizant Corporation
(now known as Nielsen Media Research, Inc.) and ACNielsen Corporation, dated as
of October 28, 1996.
(nnn) "1996 Services Agreements" shall mean, collectively,
the "Ancillary Agreements" as such term is defined in the 1996 Distribution
Agreement, as well as any renewals or extensions thereof, other than the 1996
Tax Allocation Agreement and any such Ancillary Agreement which is a Specified
Prior Spin-off Agreement.
(ooo) "1996 Tax Allocation Agreement" shall mean the Tax
Allocation Agreement among The Dun & Bradstreet Corporation (now known as R.H.
Donnelley Corporation), Cognizant Corporation (now known as Nielsen Media
Research, Inc.) and ACNielsen Corporation, dated as of October 28, 1996.
(ppp) "1998 Distribution" shall mean the Distribution
described in the 1998 Distribution Agreement.
(qqq) "1998 Distribution Agreement" shall mean the
Distribution Agreement between the Corporation and R.H. Donnelley Corporation,
dated as of June 30, 1998.
(rrr) "1998 Employee Benefits Agreement" shall mean the
Employee Benefits Agreement between the Corporation and R.H. Donnelley
Corporation, dated as of June 30, 1998.
(sss) "1998 Services Agreements" shall mean, collectively,
the "Ancillary Agreements" as such term is defined in the 1998 Distribution
Agreement, as well as any renewals or extensions thereof, other than the 1998
Tax Allocation Agreement and any such Ancillary Agreement which is a Specified
Prior Spin-off Agreement.
(ttt) "1998 Tax Allocation Agreement" shall mean the Tax
Allocation Agreement between the Corporation and R.H. Donnelley Corporation,
dated as of June 30, 1998.
<PAGE> 21
18
(uuu) "person" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership, other entity
or government, or any agency or political subdivision thereof.
(vvv) "Policies" shall mean insurance policies and
insurance contracts of any kind (other than life, health and annuity or other
employee benefit-related 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.
(www) "Provider" shall have the meaning set forth in
Section 5.1.
(xxx) "Recipient" shall have the meaning set forth in
Section 5.1.
(yyy) "Records" shall have the meaning set forth in
Section 4.1.
(zzz) "R.H. Donnelley Corporation" shall mean R.H.
Donnelley Corporation, a Delaware corporation (formerly known as The Dun &
Bradstreet Corporation).
(aaaa) "Rights" shall have the meaning set forth in Section
2.1(c).
(bbbb) "Rules" shall have the meaning set forth in Section
6.2.
(cccc) "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.
(dddd) "Services Agreements" shall mean, collectively, the
1996 Services Agreements and the 1998 Services Agreements.
(eeee) "Shared Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of the Corporation or any
Subsidiary of the Corporation immediately prior to the Effective Time which
relate to the New D&B Business and the Moody's Business.
(ffff) "Shared Transaction Services Agreement" shall mean
the Shared Transaction Services Agreement between the Corporation and New D&B
(or Subsidiaries thereof).
(gggg) "Specified Prior Spin-off Agreements" means,
collectively, the 1996 Distribution Agreement, the 1996 Employee Benefits
Agreement, the 1996 Indemnity and Joint
<PAGE> 22
19
Defense Agreement, the 1998 Distribution Agreement and the 1998 Employee
Benefits Agreement.
(hhhh) "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).
(iiii) "Tax" shall have the meaning set forth in the Tax
Allocation Agreement.
(jjjj) "Tax Allocation Agreement" shall mean the Tax
Allocation Agreement between the Corporation and New D&B.
(kkkk) "Third Party Claim" shall have the meaning set forth
in Section 3.3.
(llll) "Transition Services Agreement" shall mean the
Transition Services Agreement between the Corporation and New D&B.
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, Schedules and
Exhibits shall be deemed references to Articles and Sections of, and Schedules
and Exhibits to, such Agreement. Unless the context otherwise requires, the
words "hereof," "hereby" and "herein" and words of similar meaning when used in
this Agreement refer to this Agreement in its entirety and not to any particular
Article, Section or provision of this Agreement.
ARTICLE II. DISTRIBUTION AND OTHER TRANSACTIONS; CERTAIN
COVENANTS
SECTION 2.1. The Distribution and Other Transactions.
(a) Certain Transactions. On or prior to the
Distribution Date:
(i) The Corporation shall, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to New D&B or another
member of the New D&B Group, effective prior to or as of the Effective
Time, all of the Corporation's and its Subsidiaries' right, title and
interest in (1) the Assets listed in Schedule 2.1(a)(i) and (2) unless
otherwise expressly provided in this Agreement and except to the extent
already held by a member of the New D&B Group, all other Assets forming
a part of the New D&B Business.
<PAGE> 23
20
(ii) New D&B shall, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to the Corporation or
a member of the Moody's Group, effective prior to or as of the
Effective Time, all of New D&B's and its Subsidiaries' right, title and
interest in (1) the Assets listed in Schedule 2.1(a)(ii) and (2) unless
otherwise expressly provided in this Agreement and except to the extent
already held by the Corporation or a member of the Moody's Group, all
other Assets forming a part of the Moody's Business.
(iii) To the extent agreed by the parties hereto, the
Corporation or New D&B, as applicable, shall be entitled to designate
the Business Entity within the Moody's Group or the New D&B Group, as
applicable, to which any Assets are to be transferred pursuant to this
Section 2.1(a).
(b) [Reserved].
(c) Charters; By-laws; Rights Plans. On or prior to the
Distribution Date, all necessary actions shall have been taken to provide for
the adoption of the form of Certificate of Incorporation and By-laws and the
execution and delivery of the form of Rights Agreement, relating to the
preferred share purchase rights relating to the New D&B Common Stock (the
"Rights"), filed by New D&B with the Commission as exhibits to New D&B's
Registration Statement on Form 10 (or any amendment thereto).
(d) Directors. On or prior to the Distribution Date, the
Corporation, as the sole stockholder of New D&B, shall have taken all necessary
action to cause the Board of Directors of New D&B to consist of the individuals
identified in the Information Statement as directors of New D&B.
(e) Certain Licenses and Permits. Without limiting the
generality of the obligations set forth in Section 2.1(a), on or prior to the
Distribution Date or as soon as reasonably practicable thereafter:
(i) all transferable licenses, permits and
authorizations issued by any Governmental Authority which do not relate
primarily to the Moody's Business but which are held in the name of the
Corporation or any member of the Moody's Group, or in the name of any
employee, officer, director, stockholder or agent of the Corporation or
any such member, or otherwise, on behalf of a member of the New D&B
Group shall be duly and validly transferred or caused to be transferred
by the Corporation to the appropriate member of the New D&B Group; and
(ii) all transferable licenses, permits and
authorizations issued by Governmental Authorities which relate
primarily to the Moody's Business but which are held in the name of any
member of the New 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 Moody's Group shall be duly and validly
transferred or caused
<PAGE> 24
21
to be transferred by New D&B to the Corporation or the appropriate
member of the Moody's Group.
(f) Transfer of Agreements. Without limiting the generality of
the obligations set forth in Section 2.1(a):
(i) the Corporation hereby agrees that on or prior to
the Distribution Date or as soon as reasonably practicable thereafter,
subject to the limitations set forth in this Section 2.1(f), it will,
and it will cause each member of the Moody's Group to, assign, transfer
and convey to the appropriate member of the New D&B Group all of the
Corporation's or such member of the Moody's Group's respective right,
title and interest in and to any and all New D&B Contracts;
(ii) New 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 New D&B Group to, assign, transfer
and convey to the Corporation or the appropriate member of the Moody's
Group all of New D&B's or such member of the New D&B Group's respective
right, title and interest in and to any and all Moody's Contracts;
(iii) subject to the provisions of this Section 2.1(f),
any agreement to which any of the parties hereto or any of their
Subsidiaries is a party that inures to the benefit of both the Moody's
Business and the New D&B Business shall be assigned in part so that
each party shall be entitled to the rights and benefits inuring to its
business under such agreement;
(iv) the assignee of any agreement assigned, in whole or
in part, hereunder (an "Assignee") shall assume and agree to pay,
perform, and fully discharge all obligations of the assignor under such
agreement or, in the case of a partial assignment under paragraph
(f)(iii), such Assignee's related portion of such obligations as
determined in accordance with the terms of the relevant agreement,
where determinable on the face thereof, and otherwise as determined in
accordance with the practice of the parties prior to the Distribution;
and
(v) notwithstanding anything in this Agreement to the
contrary, this Agreement shall not constitute an agreement to assign
any agreement, in whole or in part, or any rights thereunder if the
agreement to assign or attempt to assign, without the consent of a
third party, would constitute a breach thereof or in any way adversely
affect the rights of the assignor or Assignee thereof. Until such
consent is obtained, or if an attempted assignment thereof would be
ineffective or would adversely affect the rights of any party hereto so
that the intended Assignee would not, in fact, receive all such rights,
the parties will cooperate with each other in any arrangement designed
to provide for the intended Assignee the benefits of, and to permit the
intended Assignee to assume liabilities under, any such agreement.
<PAGE> 25
22
(g) Consents. The parties hereto shall use their commercially
reasonable efforts to obtain required consents to transfer and/or assignment of
licenses, permits and authorizations of Governmental Authorities and of
agreements hereunder.
(h) Delivery of Shares to Agent. The Corporation shall deliver
to EquiServe Trust Company, as the distribution agent (the "Agent"), the share
certificates representing the New D&B Common Stock issued to the Corporation by
New D&B and shall instruct the Agent to distribute, on or as soon as practicable
following the Distribution Date, certificates representing 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. New D&B 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, each of New D&B and the Corporation agrees to be
responsible for:
(i) 50% of any and all Liabilities under federal and
state securities laws arising from or relating to the Form 10 (or any
amendment thereto) or any other document filed with the Commission at
or prior to the Effective Time by New D&B or the Corporation in
connection with the Distribution;
(ii) notwithstanding Section 2.1(m) below, 50% of any
and all Liabilities of the Corporation arising from the Specified Prior
Spin-off Agreements (the "Specified Prior Spin-off Liabilities"), other
than (A) Liabilities primarily relating to, arising out of or resulting
from the New D&B Business or the Moody's Business and (B) Liabilities
set forth on Schedule 2.1(i); and
(iii) 50% of any and all Liabilities under the Services
Agreements arising from or relating to the period ending on the
Distribution Date; it being understood that New D&B shall be
responsible for, and shall receive any benefit in connection with, the
fulfillment of any obligation to provide services under any Services
Agreement at any time after the Distribution Date.
(j) Certain Contingencies. Notwithstanding anything to the
contrary herein or in the Tax Allocation Agreement, on or prior to the
Distribution Date, each of the Corporation and New D&B agree to take all actions
necessary to cause the Corporation's interests in certain prior business
transactions set forth in Schedule 2.1(j)(i) to be transferred to New D&B or a
member of the New D&B Group, and each of the Corporation and New D&B agree that
any rights with respect thereto shall be held by New D&B or a member of the New
D&B Group and not by Moody's or any member of the Moody's Group. Each of the
Corporation and New D&B agrees to assume 50% of any and all Liabilities
(including, without limitation, the disallowance of any deduction taken, whether
before or after the Effective Time, with respect to any interest or transaction
referred to in Schedule 2.1(j)(i)) arising in connection with such interests and
any transactions relating thereto (including, without limitation, any
Liabilities for Taxes of any member of the Pre-Distribution D&B Group (as
defined in the Tax Allocation Agreement) imposed by reason of audit adjustment
<PAGE> 26
23
or otherwise). Upon the earliest of (a "Trigger Event") (1) a Final
Determination with respect to the interest referred to in clause (e) of Schedule
2.1(j)(i) or any transaction relating thereto, (2) the mutual written agreement
of each of the Corporation and New D&B and (3) the date on which the chief tax
officer of New D&B determines, based on the advice of outside counsel selected
by New D&B from the list set forth on Schedule 2.1(j)(iii), not to take the tax
deductions attributable to any interest or transaction referred to in clause (e)
of Schedule 2.1(j)(i) due to a change in controlling law after the date hereof
or other tax-related circumstances, the Corporation shall reimburse New D&B in
cash, in immediately available funds, within ten Business Days after delivery by
New D&B of notice of any of the events set forth in clauses (1), (2) and (3), an
amount equal to the present value (at a discount rate of __%) of 50% of the
anticipated Tax Benefits referred to in Schedule 2.1(j)(ii) with respect to the
period from and after the date of notice of a Trigger Event is received by the
Corporation, subject to the written agreement by New D&B not to claim or take
any deduction with respect to such anticipated Tax Benefits. For purposes of
this Section 2.1(j), the terms "Tax Benefit," and "Tax Return" shall have the
meanings as defined in the Tax Allocation Agreement.
(l) Certain Assets. Each of the Corporation and New D&B shall
be entitled to 50% of any amount payable to the Corporation on or after the date
hereof under the Specified Prior Spin-off Agreements, other than payments
primarily relating to the Moody's Business (which shall be Moody's Assets) and
payments primarily relating to the New D&B Business (which shall be New D&B
Assets) ("Specified Prior Spin-off Payments"). Subject to Section 2.1(r), the
Corporation and New D&B agree, as between themselves, that any such Specified
Prior Payments, when made, shall be allocated between the Corporation and New
D&B pursuant to Section 2.1(r).
<PAGE> 27
24
(m) Undertaking of New D&B. On or prior to the Distribution
Date, (A) New D&B will undertake to R.H. Donnelley Corporation to be jointly and
severally liable for all "New D&B Liabilities" (as defined in the 1998
Distribution Agreement) under the 1998 Distribution Agreement pursuant to an
undertaking substantially in the form of Exhibit 2.1(m)(A) hereto and (B) New
D&B will undertake to each of Cognizant Corporation (now known as Nielsen Media
Research, Inc.) and ACNielsen Corporation to be jointly and severally liable for
all "D&B Liabilities" (as defined in the 1996 Distribution Agreement) under the
1996 Distribution Agreement pursuant to an undertaking substantially in the form
of Exhibit 2.1(m)(B) hereto.
(n) Debt and Minority Interest Financing. (i) In connection
with the Distribution, the Corporation has borrowed $___ million to repay $___
million of existing indebtedness of the Corporation under its commercial paper
facility. The Corporation agrees that $_______ of the principal amount of such
indebtedness along with any obligation to pay interest or other amounts with
respect thereto accrued from and after the Distribution Date of such borrowing
(the "Moody's Indebtedness") shall be a Moody's Liability.
(ii) As of the Distribution Date, New D&B agrees to
assume $_____ of the principal amount of the indebtedness referred to
in the first sentence of clause (i) along with any obligation to pay
interest or other amounts with respect thereto accrued from and after
the Distribution Date (the "New D&B Indebtedness") and that the
Liabilities so assumed shall be New D&B Liabilities.
(iii) Except asset forth in Secion 2.1(j), as of the
Distribution, any and all obligations incurred under the transaction
documents executed in connection with the Minority Interest Financing
shall be New D&B Liabilities.
(o) D&B Restricted Stock. At the time of the Distribution, the
Corporation shall contribute to New D&B any New D&B Common Stock received by the
Corporation as a result of the forfeiture of restricted D&B Common Stock by
employees or directors of the Corporation and its Subsidiaries who will no
longer be employees or directors of any member of the Moody's Group immediately
following the Distribution.
(p) 1996 Distribution; 1998 Distribution. The Corporation
agrees that it will not take any action it is required or permitted to take
pursuant to the terms of (i) the 1996 Distribution Agreement, (ii) the 1996
Indemnity and Joint Defense Agreement, the 1996 Tax Allocation Agreement, the
1996 Employee Benefits Agreement or any other Ancillary Agreement referred to in
the 1996 Distribution Agreement, (iii) the 1998 Distribution Agreement or (iv)
the 1998 Tax Allocation Agreement, the 1998 Employee Benefits Agreement or any
other Ancillary Agreement referred to in the 1998 Distribution Agreement, in
each such case without the prior written consent of New D&B. The Corporation
agrees that it will take any action pursuant to the terms of the agreements
referred to in clauses (i), (ii), (iii) and (iv) of the preceding sentence that
it is reasonably requested to take by New D&B. Except to the extent of actions
or failures to act, if any, that are expressly contemplated by other provisions
of this Agreement, nothing herein shall be construed to require the Corporation
to default in the
<PAGE> 28
25
performance of its obligations under any of the foregoing agreements unless the
Corporation is indemnified by New D&B with respect thereto.
(q) Other Transactions. On or prior to the Distribution Date,
each of the Corporation and New D&B shall consummate those other transactions in
connection with the Distribution that are contemplated by the ruling request
submissions by the Corporation to the Internal Revenue Service in respect of the
ruling granted on June 15, 2000 and the rulings granted on _______ __, 2000, and
not specifically referred to in subparagraphs (a)-(p) above. After the
Distribution Date, each of the Corporation and New D&B 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.
(r) Payments. No later than ten Business Days after the date
on which any Specified Prior Spin-off Payment is received by a party, such party
shall pay the other party 50% of the amount so received. No later than ten
Business Days after the date on which any Specified Prior Spin-off Liability is
incurred the party incurring such Liability shall give notice to the other party
of the amount of such Specified Prior Spin-off Liability. Such other party shall
pay 50% of such Specified Prior Spin-off Liability not later than the later of
(1) the tenth Business Day following receipt of such notice and (2) the date on
which the Specified Prior Spin-off Liability is required to be paid. Failure of
a party to provide such notice shall not affect the requirement to make any such
payment hereunder. Each of the Corporation and New D&B agree that if it shall be
necessary to post a bond in connection with any Specified Prior Spin-off
Liabilities, each of the Corporation and New D&B shall promptly procure such a
bond and each shall pay 50% of the cost thereof.
SECTION 2.2. Certain Matters Regarding Accounts Payable and
Accounts Receivable. (a) The Corporation and New D&B agree that the amounts to
be paid pursuant to any outstanding checks of the Corporation written on bank
accounts which will remain with the Corporation after the Distribution and which
have not been presented to the Corporation for payment as of the close of
business on the Distribution Date shall be Moody's Liabilities and not New D&B
Liabilities.
(b) Notwithstanding anything to the contrary herein or in any
Ancillary Agreement, the Corporation agrees to promptly remit to New D&B any
amounts representing prepayments or advances of expenses or payables of the
Corporation or any of its Subsidiaries relating to the Moody's Business which
would not in the ordinary course of business consistent with past practice have
been prepaid or advanced on or prior to the Distribution Date.
(c) The Corporation agrees to promptly remit to New D&B any
amounts received by any member of the Moody's Group (whether before, on or after
the Distribution Date) in respect of the accounts receivable of the Corporation
set forth on Schedule 2.2(c).
<PAGE> 29
26
(d) New D&B agrees that promptly following presentment to New
D&B of appropriate invoices, New D&B will reimburse the Corporation for the
expenses set forth on Schedule 2.2(d).
SECTION 2.3. Cash Balances. In addition to any other
obligations hereunder or under any Ancillary Agreement or otherwise, on the
Distribution Date, the Corporation shall contribute to New D&B $_____ of cash
from the Corporation's accounts as of the close of business on the Distribution
Date, which cash shall be a New D&B Asset and the remaining cash in the
Corporation's accounts at such time shall be a Moody's Asset. Notwithstanding
anything herein to the contrary, after giving effect to the foregoing
contribution, the cash balances as of the Distribution Date of any member of the
Moody's Group shall be Moody's Assets and the cash balances as of the
Distribution Date of any member of the New D&B Group shall be New D&B Assets.
SECTION 2.4. Assumption and Satisfaction of Liabilities.
Except as otherwise specifically set forth in any Ancillary Agreement, and
subject to Section 2.3 hereof, from and after the Effective Time, (i) the
Corporation shall, and shall cause each member of the Moody's Group to, assume,
pay, perform and discharge all Moody's Liabilities and (ii) New D&B shall, and
shall cause each member of the New D&B Group to, assume, pay, perform and
discharge all New D&B Liabilities. To the extent reasonably requested to do so
by another party hereto, each party hereto agrees to sign such documents, in a
form reasonably satisfactory to such party, as may be reasonably necessary to
evidence the assumption of any Liabilities hereunder.
SECTION 2.5. Resignations. (a) Subject to Section 2.5(b), the
Corporation and Moody's shall use all reasonable efforts to cause all their
employees to resign or be terminated, effective as of the close of business on
the Distribution Date, from all positions as officers or directors of any member
of the New D&B Group in which they serve, and New D&B shall use all reasonable
efforts to cause all its employees to resign or be terminated, effective as of
the close of business on the Distribution Date, from all positions as officers
or directors of the Corporation or any members of the Moody's Group in which
they serve.
(b) No person shall be required by any party hereto to resign
from any position or office with another party hereto if such person is
disclosed in the Information Statement as the person who is to hold such
position or office following the Distribution.
SECTION 2.6. Further Assurances. In case at any time after the
Effective Time any further action is reasonably necessary or desirable to carry
out the purposes of this Agreement and the Ancillary Agreements, the proper
officers of each party to this Agreement shall take all such necessary action.
Without limiting the foregoing, the Corporation and New D&B 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.
<PAGE> 30
27
SECTION 2.7. Limited Representations or Warranties. Each of
the parties hereto agrees that no party hereto is, in this Agreement or in any
other agreement or document contemplated by this Agreement or otherwise, making
any representation or warranty whatsoever, as to title or value of Assets being
transferred. It is also agreed that, notwithstanding anything to the contrary
otherwise expressly provided in the relevant Conveyancing and Assumption
Instrument, all Assets either transferred to or retained by the parties, as the
case may be, shall be "as is, where is" and that (subject to Section 2.6) the
party to which such Assets are to be transferred hereunder shall bear the
economic and legal risk that such party's or any of the Subsidiaries' title to
any such Assets shall be other than good and marketable and free from
encumbrances. Similarly, each party hereto agrees that, except as otherwise
expressly provided in the relevant Conveyancing and Assumption Instrument, no
party hereto is representing or warranting in any way that the obtaining of any
consents or approvals, the execution and delivery of any amendatory agreements
and the making of any filings or applications contemplated by this Agreement
will satisfy the provisions of any or all applicable agreements or the
requirements of any or all applicable laws or judgments, it being agreed that
the party to which any Assets are transferred shall bear the economic and legal
risk that any necessary consents or approvals are not obtained or that any
requirements of laws or judgments are not complied with.
SECTION 2.8. Guarantees. (a) Except as otherwise specified in
any Ancillary Agreement, the Corporation and New D&B shall use their
commercially reasonable efforts to have, on or prior to the Distribution Date,
or as soon as practicable thereafter, the Corporation and any member of the
Moody's Group removed as guarantor of or obligor for any New D&B Liability,
including, without limitation, in respect of those guarantees set forth on
Schedule 2.8(a) to the extent that they relate to New D&B Liabilities.
(b) Except as otherwise specified in any Ancillary Agreement,
the Corporation and New D&B 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 New D&B Group removed as guarantor of or obligor
for any Moody's Liability, including, without limitation, in respect of those
guarantees set forth on Schedule 2.8(b) to the extent that they relate to
Moody's Liabilities.
(c) If the Corporation or New D&B is unable to obtain, or to
cause to be obtained, any such required removal as set forth in clauses (a) or
(b) of this Section 2.8, the applicable guarantor or obligor shall continue to
be bound as such and, unless not permitted by law or the terms thereof, the
relevant beneficiary shall or shall cause one of its Subsidiaries, as agent or
subcontractor for such guarantor or obligor to pay, perform and discharge fully
all the obligations or other liabilities of such guarantor or obligor thereunder
from and after the Distribution Date.
SECTION 2.9. Witness Services. At all times from and after the
Distribution Date, each of the Corporation and New D&B 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
28
requesting party and the Corporation or New D&B as applicable. A party providing
witness services to the other party under this Section shall be entitled to
receive from the recipient of such services, upon the presentation of invoices
therefor, payments for such amounts, relating to disbursements and other
out-of-pocket expenses (which shall be deemed to exclude the costs of salaries
and benefits of employees who are witnesses), as may be reasonably incurred in
providing such witness services.
SECTION 2.10. Certain Post-Distribution Transactions. (a) (i)
The Corporation shall comply and shall cause its Subsidiaries to comply with and
otherwise not take action inconsistent with each representation and statement
made to the Internal Revenue Service in connection with the request by the
Corporation for a ruling letter in respect of the Distribution as to certain tax
aspects of the Distribution, dated February 29, 2000, and three requests by the
Corporation for ruling letters in respect of certain internal restructuring
transactions related to the Distribution (the "Internal Restructuring
Transactions") as to certain tax aspects of such Internal Restructuring
Transactions, in each case dated April 28, 2000, and (ii) until two years after
the Distribution Date, the Corporation will cause Moody's 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 Code, will continue to own stock of Moody's constituting
control (within the meaning of Section 368(c) of the Code) of Moody's and will
maintain at least ninety percent of the fair market value of the Corporation's
assets in stock and securities of Moody's and such other assets which, based on
an opinion of a law firm reasonably acceptable to New D&B, or a supplemental
ruling from the Internal Revenue Service, will not cause the Corporation or
Moody's to be in violation of the active business requirement under the holding
company test.
(b)(i) New 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 the Corporation for a ruling letter in respect of the
Distribution as to certain tax aspects of the Distribution, dated February 29,
2000, and three requests by the Corporation for ruling letters in respect of
the Internal Restructuring Transactions as to certain tax aspects of such
Internal Restructuring Transactions, in each case dated April 28, 2000, and
(ii) until two years after the Distribution Date, New D&B will cause each of
D&B Opco Inc. and Dun & Bradstreet International, Ltd. ("DBI") 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 Code, will continue to own stock in D&B Opco
Inc. and DBI constituting control (within the meaning of Section 368(c) of the
Code) of D&B Opco Inc. and DBI and will maintain at least ninety percent of the
fair market value of New D&B's assets in stock and securities of D&B Opco Inc.
and DBI and such other assets which, based on an opinion of a law firm
reasonably acceptable to the Corporation, or a supplemental ruling from the
Internal Revenue Service, will not cause New D&B, D&B Opco Inc. or DBI to be in
violation of the active business requirement under the holding company test.
(c) The Corporation agrees that until two years after the
Distribution Date, it will not (i) merge or consolidate with or into any other
corporation, (ii) liquidate or partially liquidate, (iii) sell or transfer all
or substantially all of its assets (within the meaning of Rev. Proc. 77-37, 1977
- 2 C.B. 568) in a single transaction or series of related transactions, (iv)
redeem or otherwise repurchase any D&B Common Stock (other than as described in
Section 4.05(1)(b) of
<PAGE> 32
29
Rev. Proc. 96-30, 1996-1 C.B. 696), or (v) take any other action or actions
which in the aggregate would have the effect of causing or permitting one or
more persons to acquire directly or indirectly stock representing a 50 percent
or greater interest (within the meaning of Section 355(e) of the Code) in the
Corporation, unless prior to taking such action the Corporation has obtained
(and provided to New D&B) a written opinion of a law firm reasonably acceptable
to New D&B, or a supplemental ruling from the Internal Revenue Service, that
such action or actions will not result in (i) the Distribution failing to
qualify under Section 355(a) of the Code or (ii) the New D&B Common Stock
failing to qualify as qualified property for purposes of Section 355(c)(2) of
the Code by reason of Section 355(e) of the Code.
(d) New D&B agrees that until two years after the Distribution
Date, it will not (i) merge or consolidate with or into any other corporation,
(ii) liquidate or partially liquidate, (iii) sell or transfer all or
substantially all of its assets (within the meaning of Rev. Proc. 77-37, 1977 -
2 C.B. 568) in a single transaction or series of related transactions, (iv)
redeem or otherwise repurchase any New D&B Common Stock (other than as described
in Section 4.05(1)(b) of Rev. Proc. 96-30, 1996-1 C.B. 696), or (v) take any
other action or actions which in the aggregate would have the effect of causing
or permitting one or more persons to acquire directly or indirectly stock
representing a 50 percent or greater interest (within the meaning of Section
355(e) of the Code) in New D&B, unless prior to taking such action New D&B has
obtained (and provided to the Corporation) a written opinion of a law firm
reasonably acceptable to the Corporation, or a supplemental ruling from the
Internal Revenue Service, that such action or actions will not result in (i) the
Distribution failing to qualify under Section 355(a) of the Code or (ii) the New
D&B Common Stock failing to qualify as qualified property for purposes of
Section 355(c)(2) of the Code by reason of Section 355(e) of the Code.
(e) Notwithstanding anything to the contrary herein or in the
Tax Allocation Agreement, if the Corporation or New D&B (or any of their
respective Subsidiaries) fails to comply with any of its obligations under
Sections 2.10(a), 2.10(b), 2.10(c) or 2.10(d) above or takes or fails to take
any action on or after the Distribution Date, and such failure to comply, action
or omission contributes to a determination that (i) the Distribution fails to
qualify under Section 355(a) of the Code, (ii) the New D&B Common Stock fails to
qualify as qualified property for purposes of Section 355(c)(2) of the Code by
reason of Section 355(e) of the Code, or (iii) the Internal Restructuring
Transactions set forth in the three requests for ruling letters dated April 28,
2000 fail to qualify in any respect for the tax treatment sought in such
requests for ruling letters, that party shall indemnify and hold harmless the
other party and each member of the consolidated group of which the other party
is a member from and against any and all federal, state and local taxes,
including any interest, penalties or additions to tax, imposed upon or incurred
by such other party, any member of its group or any stockholder of either party
as a result of the failure of the Distribution to qualify under Section 355(a)
of the Code, the application of Section 355(e), or the failure to realize the
intended tax consequences of the Internal Restructuring Transactions. The
obligation of a party to indemnify the other party pursuant to the preceding
sentence shall not be affected by the delivery of any legal opinion or
supplemental ruling under Section 2.10(c) or Section 2.10(d), as the case may
be.
<PAGE> 33
30
SECTION 2.11. Transfers Not Effected Prior to the
Distribution; Transfers Deemed Effective as of the Distribution Date. To the
extent that any transfers contemplated by this Article II shall not have been
consummated on or prior to the Distribution Date, the parties shall cooperate to
effect such transfers as promptly following the Distribution Date as shall be
practicable. Nothing herein shall be deemed to require the transfer of any
Assets or the assumption of any Liabilities which by their terms or operation of
law cannot be transferred; provided, however, that the parties hereto and their
respective Subsidiaries shall cooperate to seek to obtain any necessary consents
or approvals for the transfer of all Assets and Liabilities contemplated to be
transferred pursuant to this Article II. In the event that any such transfer of
Assets or Liabilities has not been consummated, from and after the Distribution
Date the party retaining such Asset or Liability shall hold such Asset in trust
for the use and benefit of the party entitled thereto (at the expense of the
party entitled thereto) or retain such Liability for the account of the party by
whom such Liability is to be assumed pursuant hereto, as the case may be, and
take such other action as may be reasonably requested by the party to whom such
Asset is to be transferred, or by whom such Liability is to be assumed, as the
case may be, in order to place such party, insofar as is reasonably possible, in
the same position as would have existed had such Asset or Liability been
transferred as contemplated hereby. As and when any such Asset or Liability
becomes transferable, such transfer shall be effected forthwith. The parties
agree that, as of the Distribution Date, each party hereto shall be deemed to
have acquired complete and sole beneficial ownership over all of the Assets,
together with all rights, powers and privileges incident thereto, and shall be
deemed to have assumed in accordance with the terms of this Agreement all of the
Liabilities, and all duties, obligations and responsibilities incident thereto,
which such party is entitled to acquire or required to assume pursuant to the
terms of this Agreement.
SECTION 2.12. Conveyancing and Assumption Instruments. In
connection with the transfers of Assets and the assumptions of Liabilities
contemplated by this Agreement, the parties shall execute or cause to be
executed by the appropriate entities the Conveyancing and Assumption Instruments
in substantially the form contemplated hereby for transfers to be effected
pursuant to New York law or the laws of one of the other states of the United
States or, if not appropriate for a given transfer, and for transfers to be
effected pursuant to non-U.S. laws, in such other form as the parties shall
reasonably agree, including the transfer of real property with deeds as may be
appropriate. The transfer of capital stock shall be effected by means of
delivery of stock certificates and executed stock powers and notation on the
stock record books of the corporation or other legal entities involved, or by
such other means as may be required in any non-U.S. jurisdiction to transfer
title to stock and, to the extent required by applicable law, by notation on
public registries.
SECTION 2.13. Ancillary Agreements. On or prior to the
Distribution Date, each of the Corporation and New D&B shall enter into, and/or
(where applicable) shall cause members of the Moody's Group or the New D&B
Group, as applicable, to enter into, the Ancillary Agreements and any other
agreements in respect of the Distribution reasonably necessary or appropriate in
connection with the transactions contemplated hereby and thereby.
<PAGE> 34
31
SECTION 2.14. Intellectual Property. (a) Each of the parties
hereto acknowledges, recognizes and agrees that, after the Distribution Date, as
between the Corporation and New D&B, the Corporation (or another member of the
Moody's Group) shall own all right, title and interest in all Intellectual
Property that was created, designed, developed, invented, originated, obtained,
funded, and/or otherwise intended for the benefit or use, in each case,
exclusively or primarily for the conduct of the Moody's Business or in
connection with the Moody's Assets.
(b) Without limiting any obligation or liability of New D&B
under the Distribution Agreement or any Ancillary Agreement, each of the parties
hereto acknowledges, recognizes and agrees that, after the Distribution, as
between the Corporation and New D&B, New D&B (or another member of the New D&B
Group) shall own all right, title and interest in all Intellectual Property (i)
owned by the Corporation or any of its subsidiaries immediately prior to the
Distribution other than Intellectual Property described in Section 2.14(a) or
(ii) assigned to New D&B pursuant to the Intellectual Property Assignment.
(c) Each of the Corporation and New D&B acknowledges,
recognizes and agrees that, after the Distribution Date, as between the
Corporation and New D&B, (i) each party shall be sole owner of any and all
Intellectual Property that is created, designed, developed, invented,
originated, obtained and/or funded by it or on its behalf (including any new
improvements, enhancements, modifications or updates to, and/or derivative works
based upon any Intellectual Property existing as of the Distribution Date,
subject to the underlying rights therein), and (ii) absent any other agreement
to the contrary, each party's ownership, possession and use of any Intellectual
Property subsequent to the Distribution Date (including that governed by the
terms hereof) shall inure solely to such party's own benefit.
SECTION 2.15. Corporate Names. (a) Except as otherwise
specifically provided in any Ancillary Agreement:
(i) on or prior to the Distribution Date, the
Corporation shall change its corporate and trade name to remove any
reference to "Dun & Bradstreet" or any modification, abbreviation or
derivative thereof, and shall effect such change with all appropriate
Government Authorities or registries;
(ii) as soon as reasonably practicable after the
Distribution Date but in any event within six months thereafter, the
Corporation will, at its own expense, remove (and, if reasonably
feasible, on an interim basis, cover up) any and all signage and other
physical items located on any property or premises owned or used by it
or its Subsidiaries (except property or premises to be shared with New
D&B or its Subsidiaries after the Distribution) which bear or display
the name "Dun & Bradstreet" or any modification, abbreviation or
derivative thereof, either alone or in combination with any other name,
mark or logo;
(iii) as soon as reasonably practicable after the
Distribution Date but in any event within six months thereafter, the
Corporation will, and will cause its Subsidiaries
<PAGE> 35
32
to, remove from all letterhead, envelopes, invoices and other
communications or materials of any kind in any media, references to or
displays of the name "Dun & Bradstreet" or any modification,
abbreviation or derivative thereof, either alone or in combination with
any other name, mark or logo (except that the Corporation shall not be
required to take any such action with respect to materials in the
possession of customers), and, after the Distribution Date, without the
prior written consent of New D&B, neither the Corporation nor its
Subsidiaries shall use, display, register, attempt to register (or
assist or allow third parties to do same) the name "Dun & Bradstreet"
or any modification, abbreviation or derivative thereof, either alone
or in combination with any other name, mark or logo (except for the
non-trademark use of the name as necessary in connection with
information provided to Government Authorities and historical
background required in the ordinary course of business);
(iv) as soon as reasonably practicable after the
Distribution Date, but in any event within six months thereafter, the
Corporation will cause its Subsidiaries to change their trade names and
corporate names to remove any reference to "Dun & Bradstreet" or any
modification, abbreviation or derivative thereof, and shall effect such
change with all appropriate Government Authorities or registries;
provided, however, that notwithstanding the foregoing, if the
Corporation cannot timely comply herewith, due to regulatory or other
circumstances beyond its reasonable control, it shall not breach this
provision, if the Corporation uses reasonable efforts to effect timely
compliance hereunder during such first six months, continues its
good-faith efforts thereafter, and does effect such name change within
nine months after the Distribution Date;
(v) notwithstanding (i) through (iv), nothing herein or
in any Ancillary Agreement shall require the Corporation to take any
action to remove any reference to D&B, including the name "Dun &
Bradstreet" or any modification, abbreviation or derivative thereof,
from any stock certificate relating to shares of D&B Common Stock
outstanding on or prior to the Record Date; provided that from and
after the Record Date, any newly issued stock certificates representing
D&B Common Stock (which at the Effective Time will become Moody's
Common Stock) shall not have any reference to D&B, including the name
"Dun & Bradstreet" and any modification, abbreviation or derivative
thereof.
(b) Except as otherwise specifically provided in any Ancillary
Agreement:
(i) as soon as reasonably practicable after the
Distribution Date but in any event within six months thereafter, New
D&B will, at its own expense, remove (and, if reasonably feasible, on
an interim basis, cover up) any and all signage and other physical
items located on any property or premises owned or used by it or its
Subsidiaries (except property or premises to be shared with the
Corporation or its Subsidiaries after the Distribution) which bear or
display the name "Moody's" or any modification, abbreviation or
derivative thereof, either alone or in combination with any other name,
mark or logo;
<PAGE> 36
33
(ii) as soon as reasonably practicable after the
Distribution Date but in any event within six months thereafter, New
D&B will, and will cause its respective Subsidiaries to, remove from
all letterhead, envelopes, invoices and other communications or
materials of any kind in any media, references to or displays of the
name "Moody's" or any modification, abbreviation or derivative thereof,
either alone or in combination with any other name, mark or logo
(except that New D&B shall not be required to take any such action with
respect to materials in the possession of customers), and, after the
Distribution Date, without the prior written consent of the
Corporation, neither New D&B nor its Subsidiaries shall use, display,
register, attempt to register (or assist or allow third parties to do
same) the name "Moody's" or any modification, abbreviation or
derivative thereof, either alone or in combination with any other name,
mark or logo (except for the non-trademark use of the name as necessary
in connection with information provided to Government Authorities and
historical background required in the ordinary course of business);
(iii) as soon as reasonably practicable after the
Distribution Date but in any event within six months thereafter, New
D&B will, and will cause its Subsidiaries to, change their trade names
and corporate names to remove any reference to "Moody's" or any
modification, abbreviation or derivative thereof, and shall effect such
change with all appropriate Government Authorities or registries;
provided, however, that notwithstanding the foregoing, if New D&B
cannot timely comply herewith, due to regulatory or other circumstances
beyond its reasonable control, it shall not breach this provision if
New D&B uses reasonable efforts to effect timely compliance hereunder
during such first six months, continues its good-faith efforts
thereafter, and does effect such name change within nine months after
the Distribution Date.
ARTICLE III. INDEMNIFICATION
SECTION 3.1. Indemnification by the Corporation. Except as
otherwise specifically set forth in any provision of this Agreement or of any
Ancillary Agreement, the Corporation shall indemnify, defend and hold harmless
the New D&B Indemnitees and Corporation Indemnitees from and against any and all
Indemnifiable Losses of the New D&B Indemnitees and Corporation Indemnitees
arising out of, by reason of or otherwise in connection with the Moody's
Liabilities or alleged Moody's Liabilities, including any breach by the
Corporation of any provision of this Agreement or any Ancillary Agreement.
SECTION 3.2. Indemnification by New D&B. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, New D&B shall indemnify, defend and hold harmless the Moody's
Indemnitees and Corporation Indemnitees from and against any and all
Indemnifiable Losses of the Moody's Indemnitees and Corporation Indemnitees
arising out of, by reason of or otherwise in connection with the New D&B
Liabilities or alleged New D&B Liabilities, including any breach by New D&B of
any provision of this Agreement or any Ancillary Agreement.
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SECTION 3.3. Procedures for Indemnification.
(a) Third Party Claims. If a claim or demand is made against a
Moody's Indemnitee, a New D&B Indemnitee or Corporation Indemnitee (each, an
"Indemnitee") by any person who is not a party to this Agreement (a "Third Party
Claim") as to which such Indemnitee is entitled to indemnification pursuant to
this Agreement, such Indemnitee shall notify the party which is or may be
required pursuant to Section 3.1 or Section 3.2 hereof to make such
indemnification (the "Indemnifying Party") in writing, and in reasonable detail,
of the Third Party Claim promptly (and in any event within 15 business days)
after receipt by such Indemnitee of written notice of the Third Party Claim;
provided, however, that failure to give such notification shall not affect the
indemnification provided hereunder except to the extent the Indemnifying Party
shall have been actually prejudiced as a result of such failure (except that the
Indemnifying Party shall not be liable for any expenses incurred during the
period in which the Indemnitee failed to give such notice). Thereafter, the
Indemnitee shall deliver to the Indemnifying Party, promptly (and in any event
within five business days) after the Indemnitee's receipt thereof, copies of all
notices and documents (including court papers) received by the Indemnitee
relating to the Third Party Claim.
If a Third Party Claim is made against an Indemnitee, the
Indemnifying Party shall be entitled to participate in the defense thereof and,
if it so chooses and acknowledges in writing its obligation to indemnify the
Indemnitee therefor, to assume the defense thereof with counsel 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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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.
(c) The remedies provided in this Article III shall be
cumulative and shall not preclude assertion by any Indemnitee of any other
rights or the seeking of any and all other remedies against any Indemnifying
Party.
SECTION 3.4. Indemnification Payments. Indemnification
required by this Article III shall be made by periodic payments of the amount
thereof during the course of the
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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 New
D&B for specific and identified agreements, documents, books, records or files
(collectively, "Records") which relate to (x) New D&B or the conduct of the New
D&B Business up to the Effective Time, or (y) any Ancillary Agreement to which
the Corporation and New D&B are parties, as applicable, the Corporation shall
arrange, as soon as reasonably practicable following the receipt of such
request, for the provision of appropriate copies of such Records (or the
originals thereof if New D&B has a reasonable need for such originals) in the
possession or control of the Corporation or any of its Subsidiaries, but only to
the extent such items are not already in the possession or control of New D&B.
(b) Other than in circumstances in which indemnification is
sought pursuant to Article III (in which event the provisions of such Article
will govern), after the Distribution Date, upon the prior written request by the
Corporation for specific and identified Records which relate to (x) the
Corporation, Moody's or the conduct of the Moody's Business up to the Effective
Time, or (y) any Ancillary Agreement to which New D&B and the Corporation are
parties, as applicable, New 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 Corporation has a reasonable
need for such originals) in the possession or control of New D&B or any of its
Subsidiaries, but only to the extent such items are not already in the
possession or control of the Corporation.
SECTION 4.2. Access to Information. Other than in
circumstances in which indemnification is sought pursuant to Article III (in
which event the provisions of such Article will govern), from and after the
Distribution Date, each of the Corporation and New D&B 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
<PAGE> 40
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and other out-of-pocket expenses, as may be reasonably incurred in providing
such Records or access to information, as well as reimbursements on a per diem
basis for the reasonable costs of any personnel reasonably utilized by the party
providing Records or access to information under this Article IV to respond to
the relevant request.
SECTION 4.4. Confidentiality. Each of (i) the Corporation and
its Subsidiaries and (ii) New D&B 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 lawfully
acquired from other sources or independently developed by such party or (C) this
Agreement or any other Ancillary Agreement or any other agreement entered into
pursuant hereto permits the use or disclosure of such information) to the extent
such information (w) relates to or was acquired during the period up to the
Effective Time, (x) relates to any Ancillary Agreement, (y) is obtained in the
course of performing services for the other party pursuant to any Ancillary
Agreement, or (z) is based upon or is derived from information described in the
preceding clauses (w), (x) or (y), and each party shall not (without the prior
written consent of the other) otherwise release or disclose such information to
any other person, except such party's auditors and attorneys, unless compelled
to disclose such information by law, judicial or administrative process and such
party has used commercially reasonable efforts to consult with the other
affected party or parties prior to such disclosure and cooperates with the other
affected party, upon its request and at its expense, to obtain a protective
order or other similar remedy.
SECTION 4.5. Privileged Matters. The parties hereto recognize
that legal and other professional services that have been and will be provided
on or prior to the Distribution Date have been and will be rendered for the
benefit of each of the Corporation, the members of the Moody's Group and the
members of the New D&B Group, and that each of the Corporation, the members of
the Moody's Group and the members of the New D&B Group should be deemed to be
the client for the purposes of asserting all privileges which may be asserted
under applicable law. To allocate the interests of each party in the information
as to which any party is entitled to assert a privilege, the parties agree as
follows:
(a) The Corporation shall be entitled, in perpetuity, to
control the assertion or waiver of all privileges in connection with privileged
information which relates solely to the Moody's Business, whether or not the
privileged information is in the possession of or under the control of the
Corporation or New D&B. The Corporation shall also be entitled, in perpetuity,
to control the assertion or waiver of all privileges in connection with
privileged information that relates solely to the subject matter of any claims
constituting Moody's Liabilities, now pending or which may be asserted in the
future, in any lawsuits or other proceedings initiated against or by the
Corporation, whether or not the privileged information is in the possession of
or under the control of the Corporation or New D&B.
(b) New 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 New D&B
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Business, whether or not the privileged information is in the possession of or
under the control of the Corporation or New D&B. New D&B 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 New D&B Liabilities, now pending or which may
be asserted in the future, in any lawsuits or other proceedings initiated
against or by New D&B whether or not the privileged information is in the
possession of or under the control of the Corporation or New D&B.
(c) The parties hereto agree that they shall have a shared
privilege, with equal right to assert or waive, subject to the restrictions in
this Section 4.5, with respect to all privileges not allocated pursuant to the
terms of Sections 4.5(a) and (b). All privileges relating to any claims,
proceedings, litigation, disputes, or other matters which involve both the
Corporation and New D&B in respect of which both parties retain any
responsibility or liability under this Agreement shall be subject to a shared
privilege among them.
(d) No party hereto may waive any privilege which could be
asserted under any applicable law, and in which the other party hereto has a
shared privilege, without the consent of the other party, except to the extent
reasonably required in connection with any litigation with third-parties or as
provided in subsection (e) below. Consent shall be in writing, or shall be
deemed to be granted unless written objection is made within twenty (20) days
after notice upon the other party requesting such consent.
(e) In the event of any litigation or dispute between or among
any of the parties hereto, any party and a Subsidiary of another party hereto,
or a Subsidiary of one party hereto and a Subsidiary of another party hereto,
either such party may waive a privilege in which the other party has a shared
privilege, without obtaining the consent of the other party, provided that such
waiver of a shared privilege shall be effective only as to the use of
information with respect to the litigation or dispute between the parties and/or
their Subsidiaries, and shall not operate as a waiver of the shared privilege
with respect to third parties.
(f) If a dispute arises between or among the parties hereto or
their respective Subsidiaries regarding whether a privilege should be waived to
protect or advance the interest of any party, each party agrees that it shall
negotiate in good faith, shall endeavor to minimize any prejudice to the rights
of the other parties, and shall not unreasonably withhold consent to any request
for waiver by another party. Each party hereto specifically agrees that it will
not withhold consent to waiver for any purpose except to protect its own
legitimate interests.
(g) Upon receipt by any party hereto or by any Subsidiary
thereof of any subpoena, discovery or other request which arguably calls for the
production or disclosure of information subject to a shared privilege or as to
which another party has the sole right hereunder to assert a privilege, or if
any party obtains knowledge that any of its or any of its Subsidiaries' current
or former directors, officers, agents or employees have received any subpoena,
discovery or other requests which arguably calls for the production or
disclosure of such privileged information, such party shall promptly notify the
other party or parties of the existence of the request and shall provide the
other party or parties a reasonable opportunity to review the
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information and to assert any rights it or they may have under this Section 4.5
or otherwise to prevent the production or disclosure of such privileged
information.
(h) The transfer of all Records and other information pursuant
to this Agreement is made in reliance on the agreement of the Corporation and
New D&B, as set forth in Sections 4.4 and 4.5, to maintain the confidentiality
of privileged information and to assert and maintain all applicable privileges.
The access to information being granted pursuant to Sections 4.1 and 4.2 hereof,
the agreement to provide witnesses and individuals pursuant to Sections 2.9 and
3.3 hereof, the furnishing of notices and documents and other cooperative
efforts contemplated by Section 3.3 hereof, and the transfer of privileged
information between and among the parties and their respective Subsidiaries
pursuant to this Agreement shall not be deemed a waiver of any privilege that
has been or may be asserted under this Agreement or otherwise.
SECTION 4.6. Ownership of Information. Any non-public
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 and Intellectual 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 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 canceled, 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 Insurance and Risk
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Management Services Agreement, the Data Services Agreement and the Transition
Services Agreement. Except as otherwise set forth in the Insurance and Risk
Management Services Agreement, the Data Services Agreement or 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 the applicable Agreement.
SECTION 5.2. Independence. Unless otherwise agreed in writing,
all employees and representatives of the Provider providing the scheduled
services to the Recipient will be deemed for purposes of all compensation and
employee benefits matters to be employees or representatives of the Provider and
not employees or representatives of the Recipient. In performing such services,
such employees and representatives will be under the direction, control and
supervision of the Provider (and not the Recipient) and the Provider will have
the sole right to exercise all authority with respect to the employment
(including, without limitation, termination of employment), assignment and
compensation of such employees and representatives.
SECTION 5.3. Non-exclusivity. Nothing in this Agreement
precludes any party from obtaining, in whole or in part, services of any nature
that may be obtainable from the other party from its own employees or from
providers other than the other party.
ARTICLE VI. DISPUTE RESOLUTION
SECTION 6.1. Negotiation. In the event of a controversy,
dispute or claim arising out of, in connection with, or in relation to the
existence, 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 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 date one of the parties first provides written notice to the other that
an Agreement Dispute exists and requests negotiation pursuant to this Section
6.1; provided further that in the event of any arbitration in accordance with
Section 6.2 hereof, the parties shall not assert the defenses of statute of
limitations and laches arising for the period beginning after the date the
parties began negotiations hereunder, and any contractual time period or
deadline under this Agreement or any Ancillary Agreement to which such Agreement
Dispute relates shall not be deemed to have passed until such Agreement Dispute
has been resolved.
SECTION 6.2. Arbitration. If after such reasonable period such
general counsels are unable to settle such Agreement Dispute (and in any event,
unless otherwise agreed in writing by the parties, after 60 days have elapsed
from the date one of the parties served notice of an
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Agreement Dispute requesting negotiation pursuant to Section 6.1 above), such
Agreement Dispute shall be determined, at the request of any party, by
arbitration conducted in New York City, before and in accordance with the
then-existing International Arbitration Rules of the American Arbitration
Association (the "Rules"). In any dispute between the parties hereto, the number
of arbitrators shall be three. Any judgment or award rendered by the arbitrators
shall be final and binding. If the parties are unable to agree on the
arbitrators within 45 days of the commencement of the arbitration, the
arbitrators shall be selected in accordance with the Rules; provided that each
arbitrator shall be a U.S. national. Any controversy concerning whether an
Agreement Dispute is an arbitrable Agreement Dispute, whether arbitration has
been waived, whether an assignee of this Agreement is bound to arbitrate, or as
to the interpretation or enforceability of this Article VI shall be determined
by the arbitrators. In resolving any dispute, the parties intend that the
arbitrators apply the substantive laws of the State of New York, without regard
to conflicts of laws principles. The parties intend that the provisions to
arbitrate set forth herein be valid, enforceable and irrevocable. The parties
agree to comply with any award made in any such arbitration proceeding that has
become final in accordance with the Rules and agree to enforcement of or entry
of judgment upon such award, by any court of competent jurisdiction, including
(a) the Supreme Court of the State of New York, New York County, or (b) the
United States District Court for the Southern District of New York, in
accordance with Section 8.17 hereof. The 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 parties expressly waive and forego
any right to punitive, exemplary or similar damages unless a statute requires
that compensatory damages be increased in a specified manner. The preceding
proviso shall not apply to any award of arbitration costs to a party to
compensate for dilatory or bad faith conduct in the arbitration. Without
limiting the provisions of the Rules, unless otherwise agreed in writing by or
among the parties or permitted by this Agreement, the parties shall keep
confidential all matters relating to the arbitration or the award, provided such
matters may be disclosed (i) to the extent reasonably necessary in any
proceeding brought to enforce the award or for entry of a judgment upon the
award and (ii) to the extent otherwise required by law. Notwithstanding Article
31 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 31. Nothing contained herein is
intended to or shall be construed to prevent any party, in accordance with
Article 21(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.
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ARTICLE VII. INSURANCE
SECTION 7.1. Policies and Rights Included Within Assets;
Assignment of Policies. (a) Policy Rights. The New D&B Assets shall include any
and all rights of an insured party under each of the Shared Policies, subject to
the terms of such Shared Policies and any limitations or obligations of New D&B
contemplated by this Article VII, specifically including rights of indemnity and
the right to be defended by or at the expense of the insurer, with respect to
all claims, suits, actions, proceedings, injuries, losses, liabilities, damages
and expenses incurred or claimed to have been incurred on or prior to the
Distribution Date by any party in or in connection with the conduct of the New
D&B Business or, to the extent any claim is made against New D&B or any of its
Subsidiaries, the conduct of the Moody's Business, and which claims, suits,
actions, proceedings, injuries, losses, liabilities, damages and expenses may
arise out of an insured or insurable occurrence under one or more of such Shared
Policies.
(b) Assignment of Shared Policies. Subject to the terms and
conditions hereof, the Corporation hereby assigns, transfers and conveys to New
D&B all of the Corporation's right, title and interest in and to any and all of
the Shared Policies, including, without limitation, the right of indemnity, the
right to be defended by or at the expense of the insurer and the right to any
applicable Insurance Proceeds thereunder; and the Corporation and New D&B shall
use their commercially reasonable efforts to obtain any required consents of
insurers to the assignment contemplated by this paragraph.
SECTION 7.2. Post-Distribution Date Claims. If, subsequent to
the Distribution Date, any person shall assert a claim against New D&B or any of
its Subsidiaries (including, without limitation, where New D&B or its
Subsidiaries are joint defendants with other persons) with respect to any claim,
suit, action, proceeding, injury, loss, liability, damage or expense incurred or
claimed to have been incurred on or prior to the Distribution Date in or in
connection with the conduct of the New D&B Business or, to the extent any claim
is made against New D&B or any of its Subsidiaries (including, without
limitation, where New D&B or its Subsidiaries are joint defendants with other
persons), in connection with the conduct of the Moody's Business, and which
claim, suit, action, proceeding, injury, loss, liability, damage or expense may
arise out of an insured or insurable occurrence under one or more of the Shared
Policies, the Corporation shall, at the time such claim is asserted, to the
extent any such Policy may require that Insurance Proceeds thereunder be
collected directly by the named insured or anyone other than the party against
whom the Insured Claim is asserted, be deemed to designate, without need of
further documentation, New D&B as the agent and attorney-in-fact to assert and
to collect any related Insurance Proceeds under such Shared Policy.
SECTION 7.3. Administration; Other Matters. (a)
Administration. After the Distribution Date, New D&B shall be responsible for
(i) Insurance Administration of the Shared Policies and (ii) Claims
Administration under such Shared Policies with respect to Moody's Liabilities
and New D&B Liabilities; provided that the assumption of such responsibilities
by New D&B is in no way intended to limit, inhibit or preclude any right to
insurance coverage for any Insured Claim of a named insured under such Policies
as contemplated by the terms of this Agreement; provided further that New D&B's
assumption of the administrative responsibilities
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for the Shared Policies shall not relieve the party submitting any Insured Claim
of the primary responsibility for reporting such Insured Claim accurately,
completely and in a timely manner or of such party's authority to settle any
such Insured Claim within any period permitted or required by the relevant
Policy; and provided further that all direct or indirect communications with
insurers relating to the Shared Policies shall be conducted by New D&B. New 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 New 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 Insurance and Risk
Management Services Agreement or, if the Insurance and Risk Management Services
Agreement shall no longer be in effect, then each of the Corporation and New D&B
shall be responsible for its own Claims Administration and Insurance
Administration.
(b) Exceeding Policy Limits. The Corporation and New D&B shall
not be liable to one another for claims not reimbursed by insurers for any
reason not within the control of the Corporation or New D&B, as the case may be,
including, without limitation, coinsurance provisions, deductibles, quota share
deductibles, self-insured retentions, bankruptcy or insolvency of an insurance
carrier, Shared Policy limitations or restrictions, any coverage disputes, any
failure to timely claim by the Corporation or New D&B or any defect in such
claim or its processing.
(c) Allocation of Insurance Proceeds. Insurance Proceeds
received with respect to claims, costs and expenses under the Shared Policies
shall be paid to New D&B, which shall thereafter administer the Shared Policies
by paying the Insurance Proceeds, as appropriate, to the Corporation with
respect to Moody's Liabilities and to New D&B with respect to New D&B
Liabilities. Payment of the allocable portions of Insurance Proceeds resulting
from such Policies will be made by New 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 Insured Claims by both of the parties
hereto, the parties agree to allocate the Insurance Proceeds received thereunder
in the same proportion which each party's aggregate Insured Claims bears to the
aggregate of Insured Claims of both of the parties hereto (their "allocable
portion of Insurance Proceeds"), and any party who has received Insurance
Proceeds in excess of such party's allocable portion of Insurance Proceeds shall
pay to the other party the appropriate amount so that each party will have
received its allocable portion of Insurance Proceeds pursuant hereto. Each of
the parties agrees to use commercially reasonable efforts to maximize available
coverage under those Shared Policies applicable to it, and to take all
commercially reasonable steps to recover from all other responsible parties in
respect of an Insured Claim to the extent coverage limits under a Shared Policy
have been exceeded or would be exceeded as a result of such Insured Claim.
<PAGE> 47
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(d) Allocation of Deductibles. In the event that both parties
have bona fide Insured Claims under any Shared Policy for which an aggregate
deductible is reached, the parties agree that the aggregate amount of the
deductible paid shall be borne by the parties in the same proportion which the
Insurance Proceeds received by each such party bears to the total Insurance
Proceeds received under the applicable Shared Policy (their "allocable share of
the deductible"), and any party who has paid more than such share of the
deductible shall be entitled to receive from the other party an appropriate
amount so that each party has borne its allocable share of the deductible
pursuant hereto.
(e) After the Distribution Date, each of New D&B and the
Corporation shall be responsible for its applicable deductible for workers'
compensation, general liability and automobile liability claims.
SECTION 7.4. Agreement for Waiver of Conflict and Shared
Defense. In the event that Insured Claims of both of the parties hereto exist
relating to the same occurrence, the parties shall jointly defend and waive any
conflict of interest necessary to the conduct of the joint defense. Nothing in
this Article VII shall be construed to limit or otherwise alter in any way the
obligations of the parties to this Agreement, including those created by this
Agreement, by operation of law or otherwise.
SECTION 7.5. Cooperation. The parties agree to use their
commercially reasonable efforts to cooperate with respect to the various
insurance matters contemplated by this Agreement.
ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. Complete Agreement; Construction. This Agreement,
including the Schedules and Exhibits, and the Ancillary Agreements shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter. In the event of any inconsistency
between this Agreement and any Schedule hereto, the Schedule shall prevail.
Other than Section 2.1(j), Section 2.7, Section 2.10(e), Section 4.5 and Article
VI, which shall prevail over any inconsistent or conflicting provisions in any
Ancillary Agreement, notwithstanding any other provisions in this Agreement to
the contrary, in the event and to the extent that there shall be a conflict
between the provisions of this Agreement and the provisions of any Ancillary
Agreement, such Ancillary Agreement shall control.
SECTION 8.2. Ancillary Agreements. Subject to the last
sentence of Section 8.1, this Agreement is not intended to address, and should
not be interpreted to address, the matters specifically and expressly covered by
the Ancillary Agreements.
SECTION 8.3. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become
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effective when one or more such counterparts have been signed by each of the
parties and delivered to the other parties.
SECTION 8.4. Survival of Agreements. Except as otherwise
contemplated by this Agreement, all covenants and agreements of the parties
contained in this Agreement shall survive the Distribution Date.
SECTION 8.5. Expenses. Each of the Corporation and New D&B
agrees to assume and be responsible for 50% of all Liabilities in connection
with the preparation, execution, delivery and required implementation of this
Agreement and any Ancillary Agreement, the Information Statement (including any
registration statement on Form 10 (or any amendment thereto) of which such
Information Statement may be a part) and the Distribution and the consummation
of the transactions contemplated thereby, to the extent not paid prior to the
Effective Time. Except as otherwise set forth in this Agreement or any Ancillary
Agreement, each party shall bear its own costs and expenses incurred after the
Effective Time. Any amount or expense to be paid or reimbursed by any party
hereto to any other party hereto shall be so paid or reimbursed promptly after
the existence and amount of such obligation is determined and demand therefor is
made.
SECTION 8.6. Notices. All notices and other communications
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or sent by any means of electronic
message transmission with delivery confirmed (by voice or otherwise) to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by like notice) and will be deemed given on the date on which
such notice is received:
To the Corporation:
Moody's Corporation
99 Church Street
New York, NY 10007
Telecopy: (212) 553-0300
Attn: Chief Legal Counsel
To New D&B:
The Dun & Bradstreet Corporation
One Diamond Hill Road
Murray Hill, NJ 07974
Telecopy: (908) 665-5803
Attn: Chief Legal 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.
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46
SECTION 8.8. Amendments. Subject to the terms of Section 8.11
hereof, this Agreement may not be modified or amended except by an agreement in
writing signed by each of the parties hereto.
SECTION 8.9. Assignment. (a) This Agreement shall not be
assignable, in whole or in part, directly or indirectly, by any party hereto
without the prior written consent of the other parties hereto, and any attempt
to assign any rights or obligations arising under this Agreement without such
consent shall be void.
(b) The Corporation will not distribute to its stockholders
any interest in any Moody's Business Entity, by way of a spin-off distribution,
split-off or other exchange of interests in a Moody's Business Entity for any
interest in the Corporation held by Moody's stockholders, or any similar
transaction or transactions, unless the distributed Moody's Business Entity
undertakes to New D&B to be jointly and severally liable for all Moody's
Liabilities hereunder.
(c) New D&B will not distribute to its stockholders any
interest in any New D&B Business Entity, by way of a spin-off distribution,
split-off or other exchange of interests in a New D&B Business Entity for any
interest in New D&B held by New D&B stockholders, or any similar transaction or
transactions, unless the distributed New D&B Business Entity undertakes to the
Corporation to be jointly and severally liable for all New D&B Liabilities
hereunder.
SECTION 8.10. Successors and Assigns. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.
SECTION 8.11. Termination. This Agreement (including, without
limitation, Article III hereof) may be terminated and the Distribution may be
amended, modified or abandoned at any time prior to the Distribution by and in
the sole discretion of the Corporation without the approval of New D&B or the
stockholders of the Corporation. 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
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47
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. Schedules and Exhibits. The Schedules and
Exhibits shall be construed with and as an integral part of this Agreement to
the same extent as if the same had been set forth verbatim herein.
SECTION 8.16. GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
SECTION 8.17. Consent to Jurisdiction. Without limiting the
provisions of Article VI hereof, each of the parties irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New
York County, and (b) the United States District Court for the Southern District
of New York, for the purposes of any suit, action or other proceeding arising
out of this Agreement or any transaction contemplated hereby. Subject to Article
VI hereof, each of the parties agrees to commence any action, suit or proceeding
relating hereto either in the United States District Court for the Southern
District of New York or if such suit, action or other proceeding may not be
brought in such court for jurisdictional reasons, in the Supreme Court of the
State of New York, New York County. Each of the parties further agrees that
service of any process, summons, notice or document by U.S. registered mail to
such party's respective address set forth above shall be effective service of
process for any action, suit or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction in this Section 8.17. Each of
the parties irrevocably and unconditionally waives any objection to the laying
of venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (i) the Supreme Court of the State of New
York, New York County, or (ii) the United States District Court for the Southern
District of New York, and hereby further irrevocably and 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.
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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> 52
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: ___________________________________
Name:
Title:
THE NEW D&B CORPORATION
By: ____________________________________
Name:
Title:
