<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report: October 24, 1996
The Dun & Bradstreet Corporation
A Delaware Corporation Commission File I.R.S. Employer
No. 1-7155 No. 13-2740040
200 Nyala Farms Road
Westport, CT 06880
Telephone Number (203) 222-4200
<PAGE> 2
Item 5. Other Events
On January 9, 1996, The Dun & Bradstreet Corporation ("D&B" or "the Company")
announced a plan, subject to certain conditions, to reorganize into three public
independent companies by spinning off two of its businesses to shareholders. The
three companies will be Cognizant Corporation ("Cognizant"), consisting of
I.M.S. International, Inc., Gartner Group, Inc., Nielsen Media Research, Inc.,
Pilot Software, Inc., Erisco, Inc., Dun & Bradstreet Satyam Software Proprietary
Limited, Cognizant Enterprises, Inc., Dun & Bradstreet HealthCare Information,
Inc., and D&B Technology Asia KK; The Dun & Bradstreet Corporation, consisting
of Dun & Bradstreet Information Services, Moody's Investors Service and Reuben
H. Donnelley; and ACNielsen Corporation ("ACNielsen"). Cognizant will focus on
high-growth emerging markets in healthcare, high-tech and media; D&B will focus
on financial-information services; and ACNielsen will focus on the delivery of
market research, information and analysis to the consumer-products and service
industries. In connection with the new strategy, Dun & Bradstreet Software ("D&B
Software") and American Credit Indemnity ("ACI") were slated for divestiture.
NCH Promotional Services ("NCH") was subsequently added to the business units to
be sold.
D&B has received a tax ruling from the U.S. Internal Revenue Service ("IRS")
indicating that the receipt by D&B shareholders of the Cognizant Common Stock
and the ACNielsen Common Stock in the spin-off distribution will be tax-free to
such stockholders and D&B for Federal income tax purposes, except to the extent
that cash is received for fractional shares of ACNielsen common stock. In
addition, D&B has also received other tax rulings relating to certain
international restructurings which are or were to be effected by D&B prior to
the spin-off. D&B's Board of Directors on October 10, 1996 declared a dividend
distribution (the "Distribution") to shareholders of record October 21, 1996
consisting of one share of Cognizant Common Stock for each share of D&B Common
Stock and one share of ACNielsen Common Stock for each three shares of D&B
Common Stock held on such record date. The Distribution is expected to be
effected on or about November 1, 1996.
Pursuant to Accounting Principles Board Opinion No. 30, "Reporting the Results
of Operations-Reporting the Effects of Disposal of a Segment of a Business, and
Extraordinary, Unusual and Infrequently Occurring Events and Transactions" ("APB
30"), the Consolidated Financial Statements of D&B have been restated to reflect
the probable dispositions of the companies that comprise D&B's Marketing
Information Services, Software Services and Other Business Services business
segments. These segments include the companies that make up Cognizant,
ACNielsen, D&B Software and NCH. Accordingly, the revenues, costs and expenses,
and assets and liabilities of Cognizant, ACNielsen, D&B Software and NCH have
been excluded from the respective captions in the Consolidated Statement of
Income and Consolidated Statement of Financial Position. The net operating
results of these entities have been reported, net of applicable income taxes, as
"Income from Discontinued Operations" and the net assets of these entities have
been reported as "Net Assets of Discontinued Operations".
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<PAGE> 3
D&B's shareholders' equity is estimated to be a deficit of $200 million to $220
million at November 1, 1996 after giving effect to the dividend from the
Distribution. This forecast of D&B's shareholders' equity at November 1, 1996 is
based on management's forecasts and assumptions concerning events and
circumstances which are expected to occur subsequent to June 30, 1996, but prior
to and including November 1, 1996 (the anticipated Distribution Date), including
future results of operations and other events. Significant assumptions of events
between June 30, 1996 and November 1, 1996, include the following:
- D&B pre-tax income for the four months ended October 31, 1996 of
approximately $141.3 million.
- Increase in D&B's cash and cash equivalents of approximately $369
million, primarily reflecting operating cash flows for the four months
ended October 31, 1996 and proceeds from divestitures, less dividend
payments by D&B totaling $43 million for the four months ended October
31, 1996. Dividends of $111 million were paid by D&B in the comparable
period of 1995.
In addition, the Distribution Agreement provides for various cash transfers
immediately prior to the Distribution by D&B to ACNielsen and to Cognizant, in
each case, as a contribution of capital, provided, however, that if the
businesses known as D&B Software Services, NCH Promotional Services and/or
American Credit Indemnity are not sold by D&B prior to November 1, 1996, then
the cash to be transferred to Cognizant will be reduced by the amount of cash
proceeds expected to be received upon the sale of the business or businesses not
sold. In the event any such business is sold after November 1, Cognizant will be
entitled to receive the amount of cash proceeds received upon such sale. In the
event that the aggregate cash consideration received by D&B upon the disposition
of such businesses differs from the aggregate expected amount, the Distribution
Agreement provides that D&B and Cognizant shall share equally in any excess or
shortfall.
At November 1, 1996, after giving effect to the transfer of cash to Cognizant
and to ACNielsen and the dividend of the net assets of Cognizant and ACNielsen
in the Distribution (aggregating approximately $1,250 million), the
capitalization of D&B is forecasted to consist of net debt (net of cash and
short-term debt) in the range of $900 million and a deficiency in shareholders'
equity of $200 million to $220 million. If the Distribution had occurred at June
30, 1996, the capitalization of D&B at June 30, 1996 would not have been
significantly different from the above forecast capitalization at November 1,
1996.
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<PAGE> 4
These forecasts and assumptions do not represent an all-inclusive list of those
events or transactions expected to occur prior to the Distribution which will
affect the capitalization of D&B; however, in D&B management's judgment, the
above assumptions and forecasts are the most significant. There have been no
changes in accounting principles included in this capitalization forecast.
LIMITATIONS ON FORECASTED FINANCIAL INFORMATION
The assumptions and estimates underlying the forecasted data and
information arc inherently uncertain and, although considered reasonable by
management of D&B, are subject to significant business, economic and competitive
uncertainties, many of which are beyond the control of D&B. Accordingly, there
can be no assurance that the forecasted financial results will be realized. In
fact, actual results in the future usually will differ from the forecasted
financial results, and the differences may be material. D&B does not intend to
update any forecasted financial data or information contained in this Form 8-K,
and the absence of any such update should not be construed as an indication that
management of D&B continues to believe the forecasted data or information
contained herein is reasonable.
The Company's Consolidated Statement of Income for the six months ended
June 30, 1996 and the three years ended December 31, 1995, and Consolidated
Statement of Financial Position at June 30, 1996 and December 31, 1995 presented
in accordance with APB 30 follow.
ITEM 7. Financial Statements, Proforma Financial Statements and Exhibits
(c) Exhibits
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
-------- ---------------------------------------------------------------------------------
<C> <S>
27 -- Financial Data Schedule
99.1 -- Form of Distribution Agreement among The Dun & Bradstreet Corporation, Cognizant
Corporation and ACNielsen Corporation
99.2 -- Form of Tax Allocation Agreement among The Dun & Bradstreet Corporation,
Cognizant Corporation and ACNielsen Corporation
99.3 -- Form of Employee Benefits Agreement among The Dun & Bradstreet Corporation,
Cognizant Corporation and ACNielsen Corporation
99.4 -- Form of Intellectual Property Agreement between and among The Dun & Bradstreet
Corporation, Cognizant Corporation and ACNielsen Corporation
99.5 -- Form of Shared Transaction Services Agreement among The Dun & Bradstreet
Corporation, Cognizant Corporation and ACNielsen Corporation
99.6 -- Form of Data Services Agreement among The Dun & Bradstreet Corporation, Cognizant
Corporation and ACNielsen Corporation
99.7 -- Form of Transition Services Agreement among The Dun & Bradstreet Corporation,
Cognizant Corporation and ACNielsen Corporation
99.8 -- Form of Indemnity and Joint Defense Agreement among The Dun & Bradstreet
Corporation, Cognizant Corporation and ACNielsen Corporation
</TABLE>
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<PAGE> 5
The Dun & Bradstreet Corporation
Consolidated Statement of Income (unaudited)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
DOLLAR AMOUNTS IN THOUSANDS, JUNE 30, YEAR ENDED DECEMBER 31,
EXCEPT PER SHARE DATA 1996 1995 1994 1993
------------ ------------ ------------ ------------
<S> <C> <C> <C> <C>
Operating Revenues.................... $ 1,032,947 $ 2,158,218 $ 2,124,852 $ 2,127,000
------------ ------------ ------------ ------------
Operating Costs....................... 379,914 838,743 524,522 571,707
Selling and Administrative Costs...... 471,439 874,321 857,732 950,709
Depreciation & Amortization........... 80,305 164,522 143,527 130,034
Restructuring (Income) Expense-Net.... 0 (118,000) 4,170 141,735
------------ ------------ ------------ ------------
Operating Income...................... 101,289 398,632 594,901 332,815
------------ ------------ ------------ ------------
Interest Income....................... 8,091 24,434 7,029 18,052
Interest Expense...................... (20,142) (51,463) (21,371) (17,856)
Other Income/(Expense)-Net............ (23,237) (40,926) (20,684) 1,543
------------ ------------ ------------ ------------
Non-Operating (Expense) Income-Net.... (35,288) (67,955) (35,026) 1,739
------------ ------------ ------------ ------------
Income from Continuing Operations
before Provision for Taxes.......... 66,001 330,677 559,875 334,554
Provision For Income Taxes............ 46,235 113,142 191,239 122,689
------------ ------------ ------------ ------------
Income from Continuing Operations..... 19,766 217,535 368,636 211,885
Income from Discontinued Operations,
Net of Income Tax (Benefit)
Expense of $(2,687), $9,767, $58,451
and $36,675 for June 30, 1996 and
December 31, 1995, 1994 and 1993,
respectively..................... 42,565 103,272 260,864 72,602
Cumulative Effect to January 1, 1993,
of Changes in Accounting Principles:
Accounting Principles:
-- SFAS No. 106, "Employers'
Accounting for Postretirement
Benefits Other than Pensions,"
Net of Income Tax Benefits of
$80,611.......................... (121,105)
-- SFAS No. 112, "Employers'
Accounting for Postemployment
Benefits," Net of Income Tax
Benefits of $75,169.............. (125,283)
------------ ------------ ------------ ------------
Net Income............................ $ 62,331 $ 320,807 $ 629,500 $ 38,079
=========== =========== =========== ===========
Earnings Per Share of Common Stock:
Income from Continuing Operations..... $ .12 $ 1.28 $ 2.17 $ 1.20
Income from Discontinued Operations... .25 .61 1.53 .41
Cumulative Effect to January 1, 1993,
of Changes in Accounting Principles:
Accounting Principles:
-- SFAS No. 106, "Employers'
Accounting for Postretirement
Benefits Other than Pensions".... (.68)
-- SFAS No. 112, "Employers'
Accounting for Postemployment
Benefits"........................ (.70)
------------ ------------ ------------ ------------
Net Earnings Per Share of Common
Stock............................... $ .37 $ 1.89 $ 3.70 $ .23
------------ ------------ ------------ ------------
Average Number of Shares
Outstanding......................... 169,808,000 169,522,000 169,946,000 177,181,000
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
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<PAGE> 6
THE DUN & BRADSTREET CORPORATION
CONSOLIDATED STATEMENT OF FINANCIAL POSITION (UNAUDITED)
<TABLE>
<CAPTION>
June 30, December 31,
Dollar amounts in thousands, except per share data 1996 1995
----------- ------------
<S> <C> <C>
Cash & Cash Equivalents.......................................... $ 147,529 $ 147,072
Marketable Securities............................................ 12,823 22,635
Accounts Receivable -- Net....................................... 573,749 588,897
Other Current Assets............................................. 263,894 257,612
----------- ------------
Current Assets.............................................. 997,995 1,016,216
----------- ------------
Other Investments and Notes Receivable........................... 389,001 376,205
Property, Plant & Equipment -- Net............................... 373,103 382,937
Deferred Charges................................................. 261,557 266,144
Computer Software................................................ 107,541 83,496
Other Intangibles................................................ 79,763 95,306
Goodwill......................................................... 226,632 295,508
----------- ------------
Total Other Assets.......................................... 675,493 740,454
----------- ------------
Net Assets of Discontinued Operations............................ 1,334,240 1,326,302
----------- ------------
Total Assets..................................................... $ 3,769,832 $ 3,842,114
========== ============
Accounts and Notes Payable....................................... $ 483,154 $ 503,368
Accrued and Other Current Liabilities............................ 445,081 456,448
Accrued Income Taxes............................................. 52,161 20,599
Redeemable Partnership Interests................................. 625,000 625,000
----------- ------------
Total Current Liabilities................................... 1,605,396 1,605,415
----------- ------------
Unearned Subscription Income..................................... 413,143 319,603
Postemployment and Postretirement Benefits....................... 368,979 393,047
Deferred Income Taxes............................................ 53,800 57,789
Other Liabilities and Minority Interests......................... 282,706 283,795
----------- ------------
Total Liabilities................................................ $ 2,724,024 $ 2,659,649
----------- ------------
Preferred Stock, par value $1 per share,
authorized -- 10,000,000 shares; outstanding -- none
Common Stock, par value $1 per share,
authorized -- 400,000,000 shares; issued
188,420,995 and 188,420,996 shares for June 30, 1996
and December 31, 1995, respectively............................ $ 188,421 $ 188,421
Capital in Excess of Par Value................................... 69,985 69,985
Retained Earnings................................................ 2,042,840 2,204,706
Treasury Stock, at cost, 17,546,150 and 19,031,922 at June 30,
1996 and December 31, 1995, respectively....................... (1,072,343) (1,107,316)
Cumulative Translation Adjustment................................ (184,933) (177,318)
Unrealized Gains (Losses) on Investments......................... 1,838 3,987
----------- ------------
Total Shareholders' Equity....................................... $ 1,045,808 $ 1,182,465
----------- ------------
Total Liabilities and Shareholders' Equity....................... $ 3,769,832 $ 3,842,114
========== ============
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
-6-
<PAGE> 7
The Dun & Bradstreet Corporation
Notes to Consolidated Financial Statements (Unaudited)
(Restated for Discontinued Operations in Accordance with APB 30)
Note 1 - Basis of Presentation
Pursuant to Accounting Principles Board Opinion No. 30, "Reporting the Results
of Operations - Reporting the Effects of Disposal of a Segment of a Business,
and Extraordinary, Unusual and Infrequently Occurring Events and Transactions"
("APB 30"), the Consolidated Financial Statements of D&B have been restated to
reflect the probable dispositions of the companies that comprise D&B's Marketing
Information Services, Software Services and Other Business Services business
segments. These segments include companies that make up Cognizant, ACNielsen,
D&B Software and NCH. Accordingly, the revenues, costs and expenses, and assets
and liabilities of Cognizant, ACNielsen, D&B Software and NCH have been excluded
from the respective captions in the Consolidated Statement of Income and
Consolidated Statement of Financial Position. The net operating results of these
entities have been reported, net of applicable income taxes, as "Income from
Discontinued Operations" and the net assets of these entities have been reported
as "Net Assets of Discontinued Operations".
These consolidated financial statements should be read in conjunction with the
financial statements and related notes in D&B's 1995 Annual Report on Form 10-K,
the Company's filings on Form 10-Q for the quarters ended March 31, 1996 and
June 30, 1996 and the Information Statements filed on Form 10 for Cognizant and
ACNielsen ("the Information Statements").
Note 2 - Relationships Among D&B, Cognizant and ACNielsen after the Distribution
For purposes of governing certain of the ongoing relationships among the
Company, Cognizant and ACNielsen after the Distribution and to provide for
orderly transition, the Company, Cognizant and ACNielsen will enter into various
agreements, including a Distribution Agreement, Tax Allocation Agreement,
Employee Benefits Agreement, Indemnity and Joint Defense Agreement, Intellectual
Property Agreement, Shared Transaction Services Agreements, Data Services
Agreement and Transition Services Agreement.
Note 3 - Employee Benefit and Stock Plans
At the Distribution, Cognizant and ACNielsen will assume responsibility for
defined benefit pension and postretirement benefits for active employees of
Cognizant and ACNielsen only; the responsibility for all D&B active employees
and all others, principally retirees, will remain with D&B. Therefore, D&B will
allocate to Cognizant and ACNielsen net liabilities totalling $5 million and $19
million, relating to defined benefit pension plans and postretirement benefit
plans, respectively.
-7-
<PAGE> 8
Note 3 - Employee Benefit and Stock Plans (continued)
D&B will retain the liability for all nonqualified supplemental pension plans
related to benefits that were vested prior to the Distribution date. Cognizant
and ACNielsen will guarantee payment of these benefits to their respective
vested employees in the event that D&B is unable to satisfy its obligations.
In connection with the Distribution, all existing restricted stock grants, that
generally would have otherwise vested over a three-year period, will vest,
resulting in a charge of approximately $9 million.
Unexercised D&B stock options held by D&B employees, retirees and disabled
employees as of the Distribution date will be adjusted to reflect the
Distribution. Specifically, the terms of the unexercised options will be
adjusted to preserve (i) the ratio of the exercise price per option to the fair
market value per share and (ii) the aggregate spread between the fair market
value per share over the exercise price per option. The other terms of the
unexercised options will remain substantially identical to the terms in effect
prior to the Distribution. The adjustment of the stock options will not result
in a compensation charge to D&B.
Note 4 - Reorganization Costs
Management estimates costs of approximately $108 million to complete the
reorganization. In addition, approximately $86 million of costs that would have
been recorded in 1996 and future years will be accelerated entirely into 1996.
Reorganization costs, which are recorded as incurred, totaled $9 million for the
six months ended June 30, 1996. Reorganization costs include legal, investment
banking, other advisory fees and employee and management incentive payments
payable contingent upon successful completion of the Distribution.
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<PAGE> 9
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
The Dun & Bradstreet Corporation
By: Thomas W. Young
---------------
Thomas W. Young
Senior Vice President
and Controller
October 24, 1996
-9-
<PAGE> 10
Exhibit Index
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
-------- ---------------------------------------------------------------------------------
<C> <S>
27 -- Financial Data Schedule
99.1 -- Form of Distribution Agreement among The Dun & Bradstreet Corporation, Cognizant
Corporation and ACNielsen Corporation
99.2 -- Form of Tax Allocation Agreement among The Dun & Bradstreet Corporation,
Cognizant Corporation and ACNielsen Corporation
99.3 -- Form of Employee Benefits Agreement among The Dun & Bradstreet Corporation,
Cognizant Corporation and ACNielsen Corporation
99.4 -- Form of Intellectual Property Agreement between and among The Dun & Bradstreet
Corporation, Cognizant Corporation and ACNielsen Corporation
99.5 -- Form of Shared Transaction Services Agreement among The Dun & Bradstreet
Corporation, Cognizant Corporation and ACNielsen Corporation
99.6 -- Form of Data Services Agreement among The Dun & Bradstreet Corporation, Cognizant
Corporation and ACNielsen Corporation
99.7 -- Form of Transition Services Agreement among The Dun & Bradstreet Corporation,
Cognizant Corporation and ACNielsen Corporation
99.8 -- Form of Indemnity and Joint Defense Agreement among The Dun & Bradstreet
Corporation, Cognizant Corporation and ACNielsen Corporation
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
DUN & BRADSTREET CORPORATION
FINANCIAL DATA SCHEDULE
FORM 8-K
</LEGEND>
<MULTIPLIER> 1,000
<S> <C> <C>
<PERIOD-TYPE> 6-MOS 12-MOS
<FISCAL-YEAR-END> DEC-31-1996 DEC-31-1995
<PERIOD-END> JUN-30-1996 DEC-31-1995
<CASH> 147,529 147,072
<SECURITIES> 12,823 22,635
<RECEIVABLES> 573,749 588,897
<ALLOWANCES> 0 0
<INVENTORY> 0 0
<CURRENT-ASSETS> 263,894 257,612
<PP&E> 794,711 805,233
<DEPRECIATION> 421,608 422,296
<TOTAL-ASSETS> 3,769,832 3,842,114
<CURRENT-LIABILITIES> 1,605,396 1,605,415
<BONDS> 0 0
0 0
0 0
<COMMON> 188,421 188,421
<OTHER-SE> 857,387 994,044
<TOTAL-LIABILITY-AND-EQUITY> 3,769,832 3,842,114
<SALES> 0 0
<TOTAL-REVENUES> 1,032,947 2,158,218
<CGS> 0 0
<TOTAL-COSTS> 931,658 1,759,586
<OTHER-EXPENSES> 23,237 40,926
<LOSS-PROVISION> 0 0
<INTEREST-EXPENSE> 12,051 27,029
<INCOME-PRETAX> 66,001 330,677
<INCOME-TAX> 46,235 113,142
<INCOME-CONTINUING> 19,766 217,535
<DISCONTINUED> 42,565 103,272
<EXTRAORDINARY> 0 0
<CHANGES> 0 0
<NET-INCOME> 62,331 320,807
<EPS-PRIMARY> 0.37 1.89
<EPS-DILUTED> 0.37 1.89
</TABLE>
<PAGE> 1
EXHIBIT 99.1
FORM OF
DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT is dated as of [ ], 1996, among THE DUN &
BRADSTREET CORPORATION, a Delaware corporation ("D&B"), COGNIZANT CORPORATION, a
Delaware corporation ("Cognizant"), and ACNIELSEN CORPORATION, a Delaware
corporation ("ACNielsen").
WHEREAS, D&B, acting through its direct and indirect subsidiaries,
currently conducts a number of businesses, including, without limitation, (i)
providing information and decision support services to the pharmaceutical and
healthcare industries, and providing sales automation solutions and developing,
installing and supporting networked systems for pharmaceutical, healthcare and
consumer packaged goods organizations (the "IMS Business"), (ii) measuring
television audiences and Internet usage and reporting of the results thereof and
related information to advertisers, advertising agencies, syndicators, broadcast
networks, cable networks, cable operators, television stations and/or station
representatives, both in the United States and Canada (the "Nielsen Media
Research Business") and elsewhere (the "Non-U.S. Media Business"), (iii)
providing research and analysis of the computer hardware, software,
communications and related technology industries (the "Gartner Group Business"),
(iv) providing client/server decision support solutions for medium and large
scale enterprises (the "Pilot Business"), (v) developing and marketing
proprietary software applications and services used primarily in the
administration of health care benefits and the support of managed care services
(the "Erisco Business"), (vi) developing other software (the "Saytam Software
Business"), (vii) providing information and analytic support services focusing
on healthcare providers (the "DBHC Business"), (viii) providing financial
application software products and services to the Japanese markets (the "DBTA
Business"), (ix) delivering marketing research, information and analysis to the
consumer products services industry (the "Nielsen Marketing Business"), and (x)
investing in emerging and established businesses in the information industry
(the "Cognizant Enterprises Business");
WHEREAS, the Board of Directors of D&B has determined that it is
appropriate, desirable and in the best interests of the holders of shares of
common stock, par value $1.00 per share, of D&B (the "D&B Common Stock") to
reorganize D&B to separate from D&B (i) the IMS Business, the Nielsen Media
Research Business, the Gartner Group Business, the Pilot Business, the Erisco
Business, the Saytam Software Business, the DBHC Business, the DBTA Business and
the Cognizant Enterprises Business, and to cause such businesses to be owned and
conducted, directly or
<PAGE> 2
2
indirectly, by Cognizant, and (ii) the Nielsen Marketing Business and the
Non-U.S. and Non-Canadian Media Business and to cause such businesses to be
owned and conducted, directly or indirectly, by ACNielsen;
WHEREAS, in order to effect such separations, the Board of Directors of
D&B has determined that it is appropriate, desirable and in the best interests
of the holders of D&B Common Stock to take certain steps to reorganize D&B's
Subsidiaries and businesses and then to distribute to the holders of the D&B
Common Stock all the outstanding shares of common stock of Cognizant, together
with the appurtenant share purchase rights (the "Cognizant Common Shares"), and
all the outstanding shares of common stock of ACNielsen, together with the
appurtenant share purchase rights (the "ACNielsen Common Shares");
WHEREAS, each of D&B, Cognizant and ACNielsen has determined that it is
necessary and desirable, on or prior to the Distribution Date (as defined
herein), to allocate and transfer those assets and to allocate and assign
responsibility for those liabilities in respect of the activities of the
businesses of such entities and those assets and liabilities in respect of other
businesses and activities of D&B and its current and former Subsidiaries and
other matters; and
WHEREAS, each of D&B, Cognizant and ACNielsen has determined that it is
necessary and desirable to set forth the principal corporate transactions
required to effect such Distribution and to set forth other agreements that will
govern certain other matters following the Distribution.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained in this Agreement, the parties hereby agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. General. As used in this Agreement, the following terms
shall have the following meanings:
(a) "ACNielsen" shall mean ACNielsen Corporation, a Delaware
corporation.
(b) "ACNielsen Assets" shall mean:
(i) any and all Assets that are expressly contemplated by
this Agreement, including the list of pre-
Distribution reorganization steps attached as
Schedule 1.1(b)(i)(1) hereto, or any Ancillary
Agreement (or included on Schedule 1.1(b)(i)(2) or
any other Schedule hereto or thereto) as Assets which
have been or are to be transferred to
<PAGE> 3
3
ACNielsen or any other member of the ACNielsen Group;
(ii) the ownership interests in those Business Entities
listed on Schedule 1.1(b)(ii);
(iii) subject to Article VII, any rights of any member of
the ACNielsen Group under any of the Policies,
including any rights thereunder arising after the
Distribution Date in respect of any Policies that are
occurrence policies;
(iv) any ACNielsen Contracts, any rights or claims arising
thereunder, and any other rights or claims or
contingent rights or claims primarily relating to or
arising from any ACNielsen Asset or the ACNielsen
Business;
(v) any Assets reflected on the ACNielsen Balance Sheet
or the accounting records supporting such balance
sheet and any Assets acquired by or for ACNielsen or
any member of the ACNielsen Group subsequent to the
date of such balance sheet which, had they been so
acquired on or before such date and owned as of such
date, would have been reflected on such balance sheet
if prepared on a consistent basis, subject to any
dispositions of any of such Assets subsequent to the
date of such balance sheet; and
(vi) any and all Assets owned or held immediately prior to
the Distribution Date by D&B or any of its
Subsidiaries (including Cognizant or any of its
Subsidiaries) primarily relating to or used in the
ACNielsen Business. The intention of this clause (vi)
is only to rectify any inadvertent omission of
transfer or conveyance of any Asset that, had the
parties given specific consideration to such Asset as
of the date hereof, would have otherwise been
classified as an ACNielsen Asset. No Asset shall be
deemed to be an ACNielsen Asset solely as a result of
this clause (vi) if such Asset is within the category
or type of Asset expressly covered by the subject
matter of an Ancillary Agreement. In addition, no
Asset shall be deemed an ACNielsen Asset solely as a
result of this clause (vi) unless a claim with
respect thereto is made by ACNielsen on or prior to
the first anniversary of the Distribution Date.
Notwithstanding the foregoing, the ACNielsen Assets
shall not in any event include:
<PAGE> 4
4
(x) the Assets listed or described on Schedule
1.1(b)(x); or
(y) any Assets primarily relating to or used in any
terminated or divested Business Entity, business or
operation formerly owned or managed by or associated
with ACNielsen or any ACNielsen Business, except for
those Assets primarily relating to or used in those
Business Entities, businesses or operations listed on
Schedule 1.1(b)(y); or
(z) any and all Assets that are expressly contemplated by
this Agreement or any Ancillary Agreement (or the
Schedules hereto or thereto) as Assets to be retained
by any member of the D&B Group or the Cognizant
Group.
In the event of any inconsistency or conflict which may arise
in the application or interpretation of any of the foregoing
provisions, for the purpose of determining what is and is not
an ACNielsen Asset, any item explicitly included on a Schedule
referred to in this Section 1.1(b) shall take priority over
any provision of the text hereof, and clause (i) shall take
priority over clause (v) of this paragraph (b) and over clause
(v) of paragraph (w) of this Section 1.1.
(c) "ACNielsen Balance Sheet" shall mean the combined balance
sheet of the ACNielsen Group, including the notes thereto, as of June 30, 1996,
set forth as Schedule 1.1(c) hereto.
(d) "ACNielsen Business" shall mean (i) the Nielsen Marketing
Business and the Non-U.S. Media Business, (ii) the businesses of the members of
the ACNielsen Group, (iii) any other business conducted primarily through the
use of the ACNielsen Assets, and (iv) the businesses of Business Entities
acquired or established by or for ACNielsen or any of its Subsidiaries after the
date of this Agreement.
(e) "ACNielsen Common Shares" shall have the meaning as
defined in the recitals hereto.
(f) "ACNielsen Contracts" shall mean the following contracts
and agreements to which D&B or any of its Affiliates is a party or by which it
or any of its Affiliates or any of their respective Assets is bound, whether or
not in writing, except for any such contract or agreement (i) that is not
expressly contemplated to be transferred or assigned by any member of the D&B
Group or (ii) that is expressly contemplated to be transferred or assigned to
any member of the Cognizant Group, in
<PAGE> 5
5
each case, pursuant to any provision of this Agreement or any Ancillary
Agreement:
(i) any contracts or agreements listed or described on
Schedule 1.1(f)(i);
(ii) any contract or agreement entered into in the name
of, or expressly on behalf of, any division, business
unit or member of the ACNielsen Group;
(iii) any contract or agreement that relates primarily to
the ACNielsen Business;
(iv) federal, state and local government and other
contracts and agreements that are listed or described
on Schedule 1.1(f)(iv) and any other government
contracts or agreements entered into after the date
hereof and prior to the Distribution Date that relate
primarily to the ACNielsen Business;
(v) any contract or agreement representing capital or
operating equipment lease obligations reflected on
the ACNielsen Balance Sheet, including obligations as
lessee under those contracts or agreements listed on
Schedule 1.1(f)(v);
(vi) any contract or agreement that is otherwise expressly
contemplated pursuant to this Agreement or any of the
Ancillary Agreements to be assigned to any member of
the ACNielsen Group; and
(vii) (i) any guarantee, indemnity, representation or
warranty of the ACNielsen Group.
(g) "ACNielsen Group" shall mean ACNielsen and each Business
Entity which is contemplated to remain or become a Subsidiary of ACNielsen
hereunder, which shall include those identified as such on Schedule 1.1(g)
hereto, which Schedule shall also indicate the amount of ACNielsen's direct or
indirect ownership interest therein.
(h) "ACNielsen Indemnitees" shall mean each member of the
ACNielsen Group, each of their respective directors, officers, employees and
agents and each of the heirs, executors, successors and assigns of any of the
foregoing.
(i) "ACNielsen Liabilities" shall mean:
(i) any and all Liabilities that are expressly
contemplated by this Agreement or any Ancillary
Agreement (or the Schedules hereto or thereto,
including Schedule 1.1(i)(i) hereto) as Liabilities
to be assumed by any member of the
<PAGE> 6
6
ACNielsen Group, and all agreements, obligations and
Liabilities of any member of the ACNielsen Group
under this Agreement or any of the Ancillary
Agreements;
(ii) all Liabilities (other than Taxes and any
employee-related Liabilities), primarily relating to,
arising out of or resulting from:
(A) the operation of the ACNielsen Business,
as conducted at any time prior to, on or after the
Distribution Date (including any Liability relating
to, arising out of or resulting from any act or
failure to act by any director, officer, employee,
agent or representative (whether or not such act or
failure to act is or was within such person's
authority));
(B) the operation of any business conducted
by any member of the ACNielsen Group at any time
after the Distribution Date (including any Liability
relating to, arising out of or resulting from any act
or failure to act by any director, officer, employee,
agent or representative (whether or not such act or
failure to act is or was within such person's
authority)); or
(C) any ACNielsen Assets;
whether arising before, on or after the Distribution
Date;
(iii) all Liabilities reflected as liabilities or
obligations on the ACNielsen Balance Sheet or the
accounting records supporting such balance sheet, and
all Liabilities arising or assumed after the date of
such balance sheet which, had they arisen or been
assumed on or before such date and been retained as
of such date, would have been reflected on such
balance sheet if prepared on a consistent basis,
subject to any discharge of such Liabilities
subsequent to the date of the ACNielsen Balance
Sheet.
Notwithstanding the foregoing, the ACNielsen Liabilities shall
not include:
(x) any Liabilities that are expressly contemplated by
this Agreement or any Ancillary Agreement (or the
Schedules hereto or thereto) as Liabilities to be
retained or assumed by any member of the D&B Group or
by any member of the Cognizant Group;
<PAGE> 7
7
(y) any Liabilities primarily relating to, arising out of
or resulting from any terminated or divested Business
Entity, business or operation formerly owned or
managed by or associated with ACNielsen or any
ACNielsen Business (except for Liabilities primarily
relating to, arising out of or resulting from those
Business Entities, businesses or operations listed on
Schedule 1.1(i)(y)); any Liabilities which are
excluded by this clause (y) from the ACN Liabilities
shall be deemed to be D&B Liabilities; or
(z) all agreements and obligations of any member of the
D&B Group or the Cognizant Group under this Agreement
or any of the Ancillary Agreements.
(j) "ACNielsen Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of D&B or any Subsidiary of
D&B, which relate to the ACNielsen Business but do not relate to the D&B
Business or the Cognizant Business, and which Policies are either maintained by
ACNielsen or a member of the ACNielsen Group or assignable to ACNielsen or a
member of the ACNielsen Group.
(k) "ACNielsen Shared Policies" shall mean all Policies,
current or past, which are owned or maintained by or on behalf of D&B or any
Subsidiary of D&B which relate to the ACNielsen Business, other than ACNielsen
Policies.
(l) "Action" shall mean any action, suit, arbitration,
inquiry, proceeding or investigation by or before any court, any governmental or
other regulatory or administrative agency, body or commission or any arbitration
tribunal.
(m) "Affiliate" shall mean, when used with respect to a
specified person, another person that controls, is controlled by, or is under
common control with the person specified. As used herein, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, whether through the
ownership of voting securities or other interests, by contract or otherwise.
(n) "Agent" shall have the meaning as defined in Section
2.1(b).
(o) "Agreement Disputes" shall have the meaning as defined in
Section 6.1.
- - - (p) "Ancillary Agreements" shall mean all of the written
agreements, instruments, assignments or other arrangements (other than this
Agreement) entered into in connection with the transactions contemplated hereby,
including, without limitation, the Conveyancing and Assumption Instruments,
<PAGE> 8
8
the Data Services Agreements, the Employee Benefits Agreement, the Indemnity and
Joint Defense Agreement, the Intellectual Property Agreement, the Shared
Transaction Services Agreements, the TAM Master Agreement, the Tax Allocation
Agreement and the Transition Services Agreement.
(q) "Assets" shall mean assets, properties and rights
(including goodwill), wherever located (including in the possession of vendors
or other third parties or elsewhere), whether real, personal or mixed, tangible,
intangible or contingent, in each case whether or not recorded or reflected or
required to be recorded or reflected on the books and records or financial
statements of any person, including, without limitation, the following:
(i) all accounting and other books, records and files
whether in paper, microfilm, microfiche, computer
tape or disc, magnetic tape or any other form;
(ii) all apparatus, computers and other electronic data
processing equipment, fixtures, machinery, equipment,
furniture, office equipment, automobiles, trucks,
aircraft and other transportation equipment, special
and general tools, test devices, prototypes and
models and other tangible personal property;
(iii) all inventories of materials, parts, raw materials,
supplies, work-in-process and finished goods and
products;
(iv) all interests in real property of whatever nature,
including easements, whether as owner, mortgagee or
holder of a Security Interest in real property,
lessor, sublessor, lessee, sublessee or otherwise;
(v) all interests in any capital stock or other equity
interests of any Subsidiary or any other person, all
bonds, notes, debentures or other securities issued
by any Subsidiary or any other person, all loans,
advances or other extensions of credit or capital
contributions to any Subsidiary or any other person
and all other investments in securities of any
person;
(vi) all license agreements, leases of personal property,
open purchase orders for raw materials, supplies,
parts or services, unfilled orders for the
manufacture and sale of products and other contracts,
agreements or commitments;
(vii) all deposits, letters of credit and performance and
surety bonds;
<PAGE> 9
9
(viii) all written technical information, data,
specifications, research and development information,
engineering drawings, operating and maintenance
manuals, and materials and analyses prepared by
consultants and other third parties;
(ix) all domestic and foreign patents, copyrights, trade
names, trademarks, service marks and registrations
and applications for any of the foregoing, mask
works, trade secrets, inventions, data bases, other
proprietary information and licenses from third
persons granting the right to use any of the
foregoing;
(x) all computer applications, programs and other
software, including operating software, network
software, firmware, middleware, design software,
design tools, systems documentation and instructions;
(xi) all cost information, sales and pricing data,
customer prospect lists, supplier records, customer
and supplier lists, customer and vendor data,
correspondence and lists, product literature,
artwork, design, development and manufacturing files,
vendor and customer drawings, formulations and
specifications, quality records and reports and other
books, records, studies, surveys, reports, plans and
documents;
(xii) all prepaid expenses, trade accounts and other
accounts and notes receivables;
(xiii) all rights under contracts or agreements, all claims
or rights against any person arising from the
ownership of any asset, all rights in connection with
any bids or offers and all claims, chooses in action
or similar rights, whether accrued or contingent;
(xiv) all rights under insurance policies and all rights in
the nature of insurance, indemnification or
contribution;
(xv) all licenses (including radio and similar licenses),
permits, approvals and authorizations which have been
issued by any Governmental Authority;
(xvi) cash or cash equivalents, bank accounts, lock boxes
and other deposit arrangements; and
<PAGE> 10
10
(xvii) interest rate, currency, commodity or other swap,
collar, cap or other hedging or similar agreements or
arrangements.
(r) "Assignee" shall have the meaning as defined in Section
2.1(f).
(s) "Business Entity" shall mean any corporation, partnership,
limited liability company or other entity which may legally hold title to
Assets.
(t) "Claims Administration" shall mean the processing of
claims made under the Shared Policies, including, without limitation, the
reporting of claims to the insurance carriers, management and defense of claims
and providing for appropriate releases upon settlement of claims.
(u) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the Treasury regulations promulgated thereunder, including any
successor legislation.
(v) "Cognizant" shall mean Cognizant Corporation, a Delaware
corporation.
(w) "Cognizant Assets" shall mean:
(i) any and all Assets that are expressly contemplated by
this Agreement, including the list of pre-
Distribution reorganization steps attached as
Schedule 1.1(b)(i)(1) hereto, or any Ancillary
Agreement (or included on Schedule 1.1(w)(i) or any
other Schedule hereto or thereto) as Assets which
have been or are to be transferred to Cognizant or
any other member of the Cognizant Group;
(ii) the ownership interests in those Business Entities
listed on Schedule 1.1(w)(ii);
(iii) subject to Article VII, any rights of any member of
the Cognizant Group under any of the Policies,
including any rights thereunder arising after the
Distribution Date in respect of any Policies that are
occurrence policies;
(iv) any Cognizant Contracts, any rights or claims arising
thereunder, and any other rights or claims or
contingent rights or claims primarily relating to or
arising from any Cognizant Asset or the Cognizant
Business;
(v) any Assets reflected on the Cognizant Balance Sheet
or the accounting records supporting such balance
sheet and any Assets acquired by or for
<PAGE> 11
11
Cognizant or any member of the Cognizant Group
subsequent to the date of such balance sheet which,
had they been so acquired on or before such date and
owned as of such date, would have been reflected on
such balance sheet if prepared on a consistent basis,
subject to any dispositions of any of such Assets
subsequent to the date of such balance sheet; and
(vi) any and all Assets owned or held immediately prior to
the Distribution Date by D&B or any of its
Subsidiaries (including ACNielsen or any of its
Subsidiaries) primarily relating to or used in the
Cognizant Business. The intention of this clause (vi)
is only to rectify any inadvertent omission of
transfer or conveyance of any Asset that, had the
parties given specific consideration to such Asset as
of the date hereof, would have otherwise been
classified as a Cognizant Asset. No Asset shall be
deemed to be a Cognizant Asset solely as a result of
this clause (vi) if such Asset is within the category
or type of Asset expressly covered by the subject
matter of an Ancillary Agreement. In addition, no
Asset shall be deemed a Cognizant Asset solely as a
result of this clause (vi) unless a claim with
respect thereto is made by Cognizant on or prior to
the first anniversary of the Distribution Date.
Notwithstanding the foregoing, the Cognizant
Assets shall not in any event include:
(x) the Assets listed or described on Schedule
1.1(w)(x); or
(y) any Assets primarily relating to or used in
any terminated or divested Business Entity,
business or operation formerly owned or
managed by or associated with Cognizant or
any Cognizant Business, except for those
Assets primarily relating to or used in
those Business Entities, businesses or
operations listed on Schedule 1.1(w)(y); or
(z) any and all Assets that are expressly
contemplated by this Agreement or any
Ancillary Agreement (or the Schedules hereto
or thereto) as Assets to be retained by any
member of the D&B Group or the ACNielsen
Group.
In the event of any inconsistency or conflict which
may arise in the application or interpretation of any
of the foregoing provisions,
<PAGE> 12
12
for the purpose of determining what is and is not a
Cognizant Asset, any item explicitly included on a
Schedule referred to in this Section 1.1(w) shall
take priority over any provision of the text hereof,
and clause (i) shall take priority over clause (v)
hereof of this paragraph (w) and over clause (v) of
paragraph (b) of this section 1.1.
(x) "Cognizant Balance Sheet" shall mean the
combined balance sheet of the Cognizant
Group, including the notes thereto, as of
June 30, 1996, set forth as Schedule 1.1(x)
hereto.
(y) "Cognizant Business" shall mean (i) the IMS
Business, the Nielsen Media Research
Business, the Gartner Business, the Pilot
Business, the Erisco Business and the
Cognizant Enterprises Business, (ii) the
businesses of the members of the Cognizant
Group, (iii) any other business conducted
primarily through the use of the Cognizant
Assets, and (iv) the businesses of Business
Entities acquired or established by or for
Cognizant or any of its Subsidiaries after
the date of this Agreement.
(z) "Cognizant Common Shares" shall have the
meaning as defined in the recitals hereto.
(aa) "Cognizant Contracts" shall mean the following contracts
and agreements to which D&B or any of its Affiliates is a party or by which it
or any of its Affiliates or any of their respective Assets is bound, whether or
not in writing, except for any such contract or agreement (i) that is not
expressly contemplated to be transferred or assigned by any member of the D&B
Group or (ii) that is expressly contemplated to be transferred or assigned to
any member of the ACNielsen Group, in each case, pursuant to any provision of
this Agreement or any Ancillary Agreement:
(i) any contracts or agreements listed or
described on Schedule 1.1(aa)(i);
(ii) any contract or agreement entered into in
the name of, or expressly on behalf of, any
division, business unit or member of the
Cognizant Group;
(iii) any contract or agreement that relates
primarily to the Cognizant Business;
(iv) federal, state and local government and
other contracts and agreements that are
listed or described on Schedule 1.1(aa)(iv)
and any other government contracts or
agreements entered into after the date
hereof and prior to the
<PAGE> 13
13
Distribution Date that relate primarily to
the Cognizant Business;
(v) any contract or agreement representing
capital or operating equipment lease
obligations reflected on the Cognizant
Balance Sheet, including obligations as
lessee under those contracts or agreements
listed on Schedule 1.1(aa)(v);
(vi) any contract or agreement that is otherwise
expressly contemplated pursuant to this
Agreement or any of the Ancillary Agreements
to be assigned to Cognizant or any member of
the Cognizant Group; and
(vii) any guarantee, indemnity, representation or
warranty of any member of the Cognizant
Group.
(ab) "Cognizant Enterprises Business" shall have the meaning
as defined in the recitals hereto.
(ac) "Cognizant Group" shall mean Cognizant and each Business
Entity which is contemplated to remain or become a Subsidiary of Cognizant
hereunder, which shall include those identified as such on Schedule 1.1(ab)
hereto, which Schedule shall also indicate the amount of Cognizant's direct or
indirect ownership interest therein.
(ad) "Cognizant Indemnitees" shall mean Cognizant, each member
of the Cognizant Group, each of their respective directors, officers, employees
and agents and each of the heirs, executors, successors and assigns of any of
the foregoing.
(ae) "Cognizant Liabilities" shall mean:
(i) any and all Liabilities that are expressly
contemplated by this Agreement or any Ancillary
Agreement (or the Schedules hereto or thereto,
including Schedule 1.1(ae)(i) hereto) as Liabilities
to be assumed by Cognizant or any member of the
Cognizant Group, and all agreements, obligations and
Liabilities of any member of the Cognizant Group
under this Agreement or any of the Ancillary
Agreements;
(ii) all Liabilities (other than Taxes and any
employee-related Liabilities), primarily relating to,
arising out of or resulting from:
(A) the operation of the Cognizant Business,
as conducted at any time prior to, on or after the
Distribution Date (including any Liability relating
to, arising out of or resulting from any act or
failure to act by any director, officer,
<PAGE> 14
14
employee, agent or representative (whether or not
such act or failure to act is or was within such
person's authority));
(B) the operation of any business conducted
by Cognizant or any Subsidiary of Cognizant at any
time after the Distribution Date (including any
Liability relating to, arising out of or resulting
from any act or failure to act by any director,
officer, employee, agent or representative (whether
or not such act or failure to act is or was within
such person's authority)); or
(C) any Cognizant Assets;
whether arising before, on or after the Distribution
Date;
(iii) all Liabilities reflected as liabilities or
obligations on the Cognizant Balance Sheet or the
accounting records supporting such balance sheet, and
all Liabilities arising or assumed after the date of
such balance sheet which, had they arisen or been
assumed on or before such date and been retained as
of such date, would have been reflected on such
balance sheet, subject to any discharge of such
Liabilities subsequent to the date of the Cognizant
Balance Sheet.
Notwithstanding the foregoing, the Cognizant Liabilities shall
not include:
(x) any Liabilities that are expressly
contemplated by this Agreement or any
Ancillary Agreement (or the Schedules hereto
or thereto) as Liabilities to be retained or
assumed by D&B or any member of the D&B
Group or by ACNielsen or any member of the
ACNielsen Group;
(y) any Liabilities primarily relating to,
arising out of or resulting from any
terminated or divested Business Entity,
business or operation formerly owned or
managed by or associated with Cognizant or
any Cognizant Business (except for
Liabilities primarily relating to, arising
out of or resulting from those Business
Entities, businesses or operations listed in
Schedule 1.1(ae)(y)); any Liabilities which
are excluded by this clause (y) from the
definition of Cognizant Liabilities shall be
deemed to be D&B Liabilities; or
(z) all agreements and obligations of any member
of the D&B Group or the ACNielsen Group
under this Agreement or any of the Ancillary
Agreements.
<PAGE> 15
15
(af) "Cognizant Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of D&B or any Subsidiary of
D&B, which relate to the Cognizant Business but do not relate to the D&B
Business or the ACNielsen Business, and which Policies are either maintained by
Cognizant or a member of the Cognizant Group or assignable to Cognizant or a
member of the Group.
(ag) "Cognizant Shared Policies" shall mean all Policies,
current or past, which are owned or maintained by or on behalf of D&B or any
Subsidiary of D&B which relate to the Cognizant Business, other than Cognizant
Policies.
(ah) "Commission" shall have the meaning as defined in Section
4.2(b).
(ai) "Conveyancing and Assumption Instruments" shall mean,
collectively, the various agreements, instruments and other documents heretofore
entered into and to be entered into to effect the transfer of Assets and the
assumption of Liabilities in the manner contemplated by this Agreement, or
otherwise arising out of or relating to the transactions contemplated by this
Agreement, which shall be in substantially the forms attached hereto as Schedule
1.1(ai) for transfers to be effected pursuant to New York law or the laws of one
of the other states of the United States, or, if not appropriate for a given
transfer, and for transfers to be effected pursuant to non-U.S. laws, shall be
in such other form or forms as the parties agree and as may be required by the
laws of such non-U.S. jurisdictions.
(aj) "Data Services Agreements" shall mean the Data Services
Agreements to be entered into by D&B, Cognizant and ACNielsen.
(ak) "D&B" shall mean The Dun & Bradstreet Corporation, a
Delaware corporation.
(al) "D&B Assets" shall mean, collectively, all the rights and
Assets owned or held by D&B or any Subsidiary of D&B, except the Cognizant
Assets and ACNielsen Assets.
(am) "D&B Business" shall mean each and every business
conducted at any time by D&B or any Subsidiary of D&B except a Cognizant
Business or an ACNielsen Business.
(an) "D&B Common Stock" shall have the meaning as defined in
the recitals hereto.
(ao) "D&B Contracts" shall mean all the contracts and
agreements to which D&B or any of its Affiliates is a party or by which it or
any of its Affiliates is bound, except the Cognizant Contracts and the ACNielsen
Contracts.
<PAGE> 16
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(ap) "D&B Group" shall mean D&B and each person (other than
any member of the Cognizant Group or the ACNielsen Group) that is a Subsidiary
of D&B.
(aq) "D&B Indemnitees" shall mean D&B, each member of the D&B
Group, each of their respective directors, officers, employees and agents and
each of the heirs, executors, successors and assigns of any of the foregoing,
except the Cognizant Indemnitees and ACNielsen Indemnitees.
(ar) "D&B Liabilities" shall mean collectively, all
obligations and Liabilities of D&B or any Subsidiary of D&B, except the
Cognizant Liabilities and ACNielsen Liabilities.
(as) "D&B Policies" shall mean all Policies, current or past,
which are owned or maintained by or on behalf of D&B or any Subsidiary of D&B
which do not relate to the Cognizant Business or the ACNielsen Business.
(at) "DBHC Business" shall have the meaning as defined in the
recitals hereto.
(au) "DBTA Business" shall have the meaning as defined in the
recitals hereto.
(av) "Distribution" shall mean the distribution on the
Distribution Date to holders of record of shares of D&B Common Stock as of the
Distribution Record Date of (i) the Cognizant Common Shares owned by D&B on the
basis of one Cognizant Common Share for each outstanding share of D&B Common
Stock and (ii) the ACNielsen Common Shares owned by D&B on the basis of one
ACNielsen Common Share for each three outstanding shares of D&B Common Stock.
(aw) "Distribution Date" shall mean such date as may hereafter
be determined by D&B's Board of Directors as the date as of which the
Distribution shall be effected.
(ax) "Distribution Record Date" shall mean such date as may
hereafter be determined by D&B's Board of Directors as the record date for the
Distribution.
(ay) "Effective Time" shall mean 12:01 a.m., New York time, on
the Distribution Date.
(az) "Employee Benefits Agreement" shall mean the Employee
Benefits Agreement among D&B, Cognizant and ACNielsen.
(ba) "Erisco Business" shall have the meaning as defined in
the recitals hereto.
(bb) "Gartner Group Business" shall have the meaning as
defined in the recitals hereto.
<PAGE> 17
17
(bc) "Governmental Authority" shall mean any federal, state,
local, foreign or international court, government, department, commission,
board, bureau, agency, official or other regulatory, administrative or
governmental authority.
(bd) "IMS Business" shall have the meaning as defined in the
recitals hereto.
(be) "Indemnifiable Losses" shall mean any and all losses,
liabilities, claims, damages, demands, costs or expenses (including, without
limitation, reasonable attorneys' fees and any and all out-of-pocket expenses)
reasonably incurred in investigating, preparing for or defending against any
Actions or potential Actions or in settling any Action or potential Action or in
satisfying any judgment, fine or penalty rendered in or resulting from any
Action.
(bf) "Indemnifying Party" shall have the meaning as defined in
Section 3.4.
(bg) "Indemnitee" shall have the meaning as defined in Section
3.4.
(bh) "Indemnity and Joint Defense Agreement" shall mean the
Indemnity and Joint Defense Agreement by and among D&B, Cognizant and ACNielsen.
(bi) "Information Statement" shall mean the Information
Statement sent to the holders of shares of D&B Common Stock in connection with
the Distribution, including any amendment or supplement thereto.
(bj) "Insurance Administration" shall mean, with respect to
each Shared Policy, the accounting for premiums, retrospectively-rated premiums,
defense costs, indemnity payments, deductibles and retentions, as appropriate,
under the terms and conditions of each of the Shared Policies; and the reporting
to excess insurance carriers of any losses or claims which may cause the
per-occurrence, per claim or aggregate limits of any Shared Policy to be
exceeded, and the distribution of Insurance Proceeds as contemplated by this
Agreement.
(bk) "Insurance Proceeds" shall mean those monies (i) received
by an insured from an insurance carrier or (ii) paid by an insurance carrier on
behalf of an insured, in either case net of any applicable premium adjustment,
retrospectively-rated premium, deductible, retention, or cost of reserve paid or
held by or for the benefit of such insured.
(bl) "Insured Claims" shall mean those Liabilities that,
individually or in the aggregate, are covered within the terms and conditions of
any of the Shared Policies, whether or
<PAGE> 18
18
not subject to deductibles, co-insurance, uncollectibility or
retrospectively-rated premium adjustments.
(bm) "Intellectual Property Agreement" shall mean the
Intellectual Property Agreement among D&B, Cognizant and ACNielsen.
(bn) "Liabilities" shall mean any and all losses, claims,
charges, debts, demands, actions, causes of action, suits, damages, obligations,
payments, costs and expenses, sums of money, accounts, reckonings, bonds,
specialties, indemnities and similar obligations, exonerations, covenants,
contracts, controversies, agreements, promises, doings, omissions, variances,
guarantees, make whole agreements and similar obligations, and other
liabilities, including all contractual obligations, whether absolute or
contingent, matured or unmatured, liquidated or unliquidated, accrued or
unaccrued, known or unknown, whenever arising, and including those arising under
any law, rule, regulation, Action, threatened or contemplated Action (including
the costs and expenses of demands, assessments, judgments, settlements and
compromises relating thereto and attorneys' fees and any and all costs and
expenses, whatsoever reasonably incurred in investigating, preparing or
defending against any such Actions or threatened or contemplated Actions), order
or consent decree of any governmental or other regulatory or administrative
agency, body or commission or any award of any arbitrator or mediator of any
kind, and those arising under any contract, commitment or undertaking, including
those arising under this Agreement or any Ancillary Agreement, in each case,
whether or not recorded or reflected or required to be recorded or reflected on
the books and records or financial statements of any person.
(bo) "Nielsen Marketing Business" shall have the meaning as
defined in the recitals hereto.
(bp) "Nielsen Media Research Business" shall have the meaning
as defined in the recitals hereto.
(bq) "Non-U.S. Media Business" shall have the meaning as
defined in the recitals hereto.
(br) "person" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership or government,
or any agency or political subdivision thereof.
(bs) "Pilot Business" shall have the meaning as defined in the
recitals hereto.
(bt) "Policies" shall mean insurance policies and insurance
contracts of any kind (other than life and benefits policies or contracts),
including, without limitation, primary, excess and umbrella policies,
comprehensive general liability
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policies, director and officer liability, fiduciary liability, automobile,
aircraft, property and casualty, workers' compensation and employee dishonesty
insurance policies, bonds and self-insurance and captive insurance company
arrangements, together with the rights, benefits and privileges thereunder.
(bu) "Provider" shall have the meaning as defined in Section
5.1.
(bv) "Recipient" shall have the meaning as defined in Section
5.1.
(bw) "Records" shall have the meaning as defined in Section
4.1.
(bx) "Rules" shall have the meaning as defined in Section 6.2.
(by) "Security Interest" shall mean any mortgage, security
interest, pledge, lien, charge, claim, option, right to acquire, voting or other
restriction, right-of-way, covenant, condition, easement, encroachment,
restriction on transfer, or other encumbrance of any nature whatsoever.
(bz) "Shared Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of D&B or any of its
Subsidiaries which relate to one or more of the D&B Business, the Cognizant
Business or the ACNielsen Business.
(ca) "Shared Transaction Services Agreements" shall mean the
Shared Transaction Services Agreements among D&B, Cognizant and ACNielsen or
Subsidiaries thereof.
(cb) "Subsidiary" shall mean any corporation, partnership or
other entity of which another entity (i) owns, directly or indirectly, ownership
interests sufficient to elect a majority of the Board of Directors (or persons
performing similar functions) (irrespective of whether at the time any other
class or classes of ownership interests of such corporation, partnership or
other entity shall or might have such voting power upon the occurrence of any
contingency) or (ii) is a general partner or an entity performing similar
functions (e.g., a trustee).
(cc) "TAM Master Agreement" shall mean the master agreement
between Cognizant and ACNielsen, including any agreements ancillary thereto,
relating to the conduct of the television audience measurement business after
the Distribution.
(cd) "Tax" shall have the meaning set forth in the Tax
Allocation Agreement.
(ce) "Tax Allocation Agreement" shall mean the Tax Allocation
Agreement among D&B, Cognizant and ACNielsen.
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(cf) "Third Party Claim" shall have the meaning as defined in
Section 3.5.
(cg) "Transition Services Agreement" shall mean the Transition
Services Agreement among D&B, Cognizant and ACNielsen.
SECTION 1.2. References; Interpretation. References in this
Agreement to any gender include references to all genders, and references to the
singular include references to the plural and vice versa. The words "include",
"includes" and "including" when used in this Agreement shall be deemed to be
followed by the phrase "without limitation". Unless the context otherwise
requires, references in this Agreement to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, such Agreement. Unless the context otherwise requires, the
words "hereof", "hereby" and "herein" and words of similar meaning when used in
this Agreement refer to this Agreement in its entirety and not to any particular
Article, Section or provision of this Agreement.
ARTICLE II. DISTRIBUTION AND OTHER TRANSACTIONS; CERTAIN COVENANTS
SECTION 2.1. The Distribution and Other Transactions.
(a) Certain Transactions. On or prior to the Distribution
Date:
(i) D&B shall, on behalf of itself and its Subsidiaries,
transfer or cause to be transferred to Cognizant or another member of
the Cognizant Group effective prior to or as of the Effective Time all
of D&B's and its Subsidiaries' right, title and interest in the
Cognizant Assets. D&B shall, on behalf of itself and its Subsidiaries,
transfer or cause to be transferred to ACNielsen or another member of
the ACNielsen Group effective prior to or as of the Effective Time all
of D&B's and its Subsidiaries' right, title and interest in the
ACNielsen Assets.
(ii) Cognizant shall, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to D&B or another
member of the D&B Group effective prior to or as of the Effective Time
all of Cognizant's and its Subsidiaries' right, title and interest in
the D&B Assets. Cognizant shall, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to ACNielsen or
another member of the ACNielsen Group effective prior to or as of the
Effective Time all of Cognizant's and its Subsidiaries' right, title
and interest in the ACNielsen Assets.
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(iii) ACNielsen shall, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to Cognizant or
another member of the Cognizant Group effective prior to or as of the
Effective Time all of ACNielsen's and its Subsidiaries' right, title
and interest in the Cognizant Assets. ACNielsen shall, on behalf of
itself and its Subsidiaries, transfer or cause to be transferred to D&B
or another member of the D&B Group effective prior to or as of the
Effective Time all of ACNielsen's and its Subsidiaries' right, title
and interest in the D&B Assets.
(iv) To the extent not indicated by Schedule 1.1(b)(i)(1) or
otherwise agreed by the parties hereto, D&B, Cognizant or ACNielsen, as
applicable, shall be entitled to designate the Business Entity within
such party's respective Group to which any Assets are to be transferred
pursuant to this Section 2.1(a).
(b) Stock Dividends to D&B. On or prior to the Distribution
Date:
(i) Cognizant shall issue to D&B as a stock dividend such
number of Cognizant Common Shares as will be required to effect the
Distribution, as certified by D&B's stock transfer agent (the "Agent").
In connection therewith D&B shall deliver to Cognizant for cancellation
the share certificate held by it representing Cognizant Common Shares
and shall receive a new certificate representing the total number of
Cognizant Common Shares to be owned by D&B after giving effect to such
stock dividend.
(ii) ACNielsen shall issue to D&B as a stock dividend such
number of ACNielsen Common Shares as will be required to effect the
Distribution, as certified by the Agent. In connection therewith D&B
shall deliver to ACNielsen for cancellation the share certificate held
by it representing ACNielsen Common Shares and shall receive a new
certificate representing the total number of ACNielsen Common Shares to
be owned by D&B after giving effect to such stock dividend.
(c) Charters; By-laws; Rights Plans. On or prior to the
Distribution Date:
(i) All necessary actions shall have been taken to provide for
the adoption of the form of Certificate of Incorporation and By-laws
and the execution and delivery of the form of Rights Agreement filed by
Cognizant with the Commission as exhibits to Cognizant's Registration
Statement on Form 10.
(ii) All necessary actions shall have been taken to provide
for the adoption of the form of Certificate of Incorporation, By-laws
and the execution and delivery of the form of Rights Agreement filed by
ACNielsen with the
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Commission as exhibits to ACNielsen's Registration Statement on Form
10.
(d) Directors. On or prior to the Distribution Date, D&B, as
the sole stockholder of Cognizant and ACNielsen, shall have taken all necessary
action on or prior to the Distribution Date to cause the Board of Directors of
Cognizant and the Board of Directors of ACNielsen to consist of the individuals
identified in the Information Statement as directors of Cognizant and ACNielsen,
respectively.
(e) Certain Licenses and Permits. Without limiting the
generality of the obligations set forth in Section 2.1(a), on or prior to the
Distribution Date or as soon as reasonably practicable thereafter:
(i) all transferable licenses, permits and authorizations
issued by any Governmental Authority which relate primarily to the
Cognizant Business or the ACNielsen Business but which are held in the
name of any member of the D&B Group, or in the name of any employee,
officer, director, stockholder or agent of any such member, or
otherwise, on behalf of a member of the Cognizant Group or the
ACNielsen Group, as applicable, shall be duly and validly transferred
or caused to be transferred by D&B to the appropriate member of the
Cognizant Group or the ACNielsen Group, as applicable;
(ii) all transferable licenses, permits and authorizations
issued by Governmental Authorities which relate primarily to the D&B
Business or the ACNielsen Business but which are held in the name of
any member of the Cognizant Group, or in the name of any employee,
officer, director, stockholder, or agent of any such member, or
otherwise, on behalf of a member of the D&B Group or the ACNielsen
Group, as applicable, shall be duly and validly transferred or caused
to be transferred by Cognizant to the appropriate member of the D&B
Group or the ACNielsen Group, as applicable; and
(iii) all transferable licenses, permits and authorizations
issued by Governmental Authorities which relate primarily to the
Cognizant Business or the D&B Business but which are held in the name
any member of the ACNielsen Group, or any employee, officer, director,
stockholder, or agent of any such member, or otherwise, on behalf of a
member of the Cognizant Group or the D&B Group, as applicable, shall be
duly and validly transferred or caused to be transferred by ACNielsen
to the appropriate member of the Cognizant Group or the D&B Group, as
applicable.
(f) Transfer of Agreements. Without limiting the generality of
the obligations set forth in Section 2.1(a):
<PAGE> 23
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(i) D&B hereby agrees that on or prior to the Distribution
Date or as soon as reasonably practicable thereafter, subject to the
limitations set forth in this Section 2.1(f), it will, and it will
cause each member of the D&B Group to, assign, transfer and convey (A)
to the appropriate member of the Cognizant Group all of D&B's or such
member of the D&B Group's respective right, title and interest in and
to any and all Cognizant Contracts, and (B) to the appropriate member
of the ACNielsen Group all of D&B's or such member of the D&B Group's
respective right, title and interest in and to any and all ACNielsen
Contracts.
(ii) Cognizant hereby agrees that on or prior to the
Distribution Date or as soon as reasonably practicable thereafter,
subject to the limitations set forth in this Section 2.1(f), it will,
and it will cause each member of the Cognizant Group to, assign,
transfer and convey (A) to the appropriate member of the D&B Group all
of Cognizant's or such member of the Cognizant Group's respective
right, title and interest in and to any and all D&B Contracts, and (B)
to the appropriate member of the ACNielsen Group all of Cognizant's or
such member of the Cognizant Group's respective right, title and
interest in and to any and all ACNielsen Contracts.
(iii) ACNielsen hereby agrees that on or prior to the
Distribution Date or as soon as reasonably practicable thereafter,
subject to the limitations set forth in this Section 2.1(f), it will,
and it will cause each member of the ACNielsen Group to, assign,
transfer and convey (A) to the appropriate member of the D&B Group all
of ACNielsen's or such member of the ACNielsen Group's respective
right, title and interest in and to any and all D&B Contracts, and (B)
to the appropriate member of the Cognizant Group all of ACNielsen's or
such member of the ACNielsen Group's respective right, title and
interest in and to any and all Cognizant Contracts.
(iv) Subject to the provisions of this Section 2.1(f), any
agreement to which any of the parties hereto or any of their
Subsidiaries is a party that inures to the benefit of more than one of
the D&B Business, Cognizant Business and ACNielsen Business shall be
assigned in part so that each party shall be entitled to the rights and
benefits inuring to its business under such agreement.
(v) The assignee of any agreement assigned, in whole or in
part, hereunder (an "Assignee") shall assume and agree to pay, perform,
and fully discharge all obligations of the assignor under such
agreement or, in the case of a partial assignment under paragraph
(f)(iv), such Assignee's related portion of such obligations as
determined in accordance with the terms of the relevant agreement,
where determinable on
<PAGE> 24
24
the face thereof, and otherwise as determined in accordance with the
practice of the parties prior to the Distribution.
(vi) Notwithstanding anything in this Agreement to the
contrary, this Agreement shall not constitute an agreement to assign
any agreement, in whole or in part, or any rights thereunder if the
agreement to assign or attempt to assign, without the consent of a
third party, would constitute a breach thereof or in any way adversely
affect the rights of the assignor or Assignee thereof. Until such
consent is obtained, or if an attempted assignment thereof would be
ineffective or would adversely affect the rights of any party hereto so
that the intended Assignee would not, in fact, receive all such rights,
the parties will cooperate with each other in any arrangement designed
to provide for the intended Assignee the benefits of, and to permit the
intended Assignee to assume liabilities under, any such agreement.
(g) Consents. The parties hereto shall use their commercially
reasonable efforts to obtain required consents to transfer and/or assignment of
licenses, permits and authorizations of Governmental Authorities and of
agreements hereunder.
(h) Delivery of Shares to Agent. D&B shall deliver to the
Agent the share certificates representing the Cognizant Common Shares and the
ACNielsen Common Shares issued to D&B by Cognizant and ACNielsen, respectively,
pursuant to Section 2.1(b) and shall instruct the Agent to distribute, on or as
soon as practicable following the Distribution Date, such Common Shares to
holders of record of shares of D&B Common Stock on the Distribution Record Date
as further contemplated by the Information Statement and herein. Cognizant and
ACNielsen shall provide all share certificates that the Agent shall require in
order to effect the Distribution.
(i) Certain Liabilities. For purposes of this Agreement,
including Article III hereof, D&B agrees with each of Cognizant and ACNielsen
that any and all Liabilities arising from or based upon misstatements in or
omissions from the Form 10 filed by either such party shall be deemed to be D&B
Liabilities and not Cognizant Liabilities or ACNielsen Liabilities, as the case
may be.
(j) Certain Contingencies.
(i) ACNielsen and Cognizant shall observe and comply with the
provisions of Schedule 2.1(j)(i) pursuant to which, under the
circumstances described therein, certain contributions to the capital
of ACNielsen may be made.
(ii) Cognizant shall be liable for a portion of the
liabilities related to certain prior business transactions
<PAGE> 25
25
to the extent and in the circumstances described in Schedule
2.1(j)(ii).
(iii) (A) D&B and Cognizant agree that to the extent the
aggregate cash proceeds received by D&B upon the disposition of the
businesses known as Dun & Bradstreet Software, NCH Promotional Services
and American Credit Indemnity are higher or lower than the aggregate
amount set forth on Schedule 2.1(j)(iii)(A), 50% of any such excess
shall be deemed to be a Cognizant Asset and be payable by D&B to
Cognizant immediately upon the consummation of the disposition of the
last of such businesses remaining with D&B, and 50% of any such deficit
shall be deemed to be a Cognizant Liability and be payable by Cognizant
to D&B immediately upon the consummation of the disposition of the last
of such businesses remaining with D&B.
(B) In addition, Cognizant and D&B shall each be entitled to
receive 50% of the aggregate operating cash flow, if any, of each such
business from the Distribution Date to the date of the disposition of
such business (where operating cash flow shall be determined by the
accounting procedures that had been applied by D&B prior to the
Distribution for determining operating cash flow, applied on a
consistent basis), and shall each be liable for 50% of any contingent
liabilities arising in connection with such disposition to the extent
such contingent liabilities exceed the amount set forth in Schedule
2.1(j)(iii)(B).
(C) Cognizant shall have primary responsibility for marketing,
negotiating and consummating the disposition of the businesses known as
Dun & Bradstreet Software and NCH Promotional Services, and D&B shall
have primary responsibility for marketing, negotiating and consummating
the disposition of the business known as American Credit Indemnity.
(iv) D&B and Cognizant shall be liable for the portions of
certain contingent liabilities described in Schedule 2.1(j)(iv) to the
extent and in circumstances described in such Schedule.
(k) Matters Relating to Certain Partnerships.
(i) The interest in Duns Licensing Associates L.P. held by
members of the Cognizant Group will be retired prior to or as promptly
as practicable after the Distribution in exchange for (x) those assets
of Duns Licensing Associates L.P. that are currently licensed to
members of the Cognizant Group and (y) the stock of a subsidiary
currently held by Duns Licensing Associates L.P. all as more fully set
forth in Schedule 2.1(k)(i).
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(ii) Prior to the Distribution Record Date, IMS America, Ltd.
shall withdraw as a partner of D&B Investors, L.P. (the "Partnership")
and, in connection with such withdrawal, shall receive from the
Partnership 800,000 shares of D&B Common Stock from the Partnership and
a warrant (the "Warrant") to purchase up to 3,000,000 shares of D&B
Common Stock. Cognizant agrees that it will not sell, and will not
permit the sale, to any non-affiliated third-party of any of the D&B
Common Stock so received from the Partnership, the Warrant, any shares
of D&B Common Stock received upon exercise of the Warrant, or any
shares of ACNielsen Common Stock received as a result of being the
holder of record of D&B Common Stock on the Distribution Record Date.
D&B agrees that Cognizant or any of its Subsidiaries may at any time
after the Distribution Date sell any of such D&B Common Stock or the
Warrant to D&B at the market value thereof on such sale date
(calculated as described below) by giving D&B written notice of such
proposed sale five business days in advance thereof. ACNielsen agrees
that Cognizant or any of its Subsidiaries may at any time after the
Distribution Date sell any of such ACNielsen Common Stock to ACNielsen
at the market value thereof on such sale date (calculated as described
below) by giving ACNielsen written notice of such proposed sale five
business days in advance thereof. Any such notice to D&B or ACNielsen
shall be irrevocable. For purposes of the foregoing, the market value
of the D&B Common Stock or the ACNielsen Common stock on any date on
which any such securities are to be sold pursuant hereto shall be equal
to the average of the closing prices therefore on the New York Stock
Exchange on each of the five trading days preceding such date, and the
market value of the Warrant on any date shall be equal to the amount
determined by Merrill Lynch & Co. based upon the Black-Scholes
option-pricing model as the market value of such Warrant.
(l) Other Transactions. On or prior to the Distribution Date,
each of D&B, Cognizant and ACNielsen shall have consummated those other
transactions in connection with the Distribution that are contemplated by the
Information Statement and the ruling request submissions by D&B to the Internal
Revenue Service in respect of the ruling granted on August 6, 1996, and not
specifically referred to in subparagraphs (a)-(k) above.
SECTION 2.2. Intercompany Accounts.
All intercompany receivables, payables and loans (other than
receivables, payables and loans otherwise specifically provided for hereunder or
under any Ancillary Agreement, including payables created or required hereby or
by any Ancillary Agreement), including, without limitation, in respect of any
cash balances, any cash balances representing deposited checks or drafts for
which only a provisional credit has been allowed or any cash held in any
centralized cash management system, (i)
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between any member of the Cognizant Group, on the one hand, and any member of
the D&B Group, on the other hand, (ii) between any member of the ACNielsen
Group, on the one hand, and any member of the D&B Group, on the other hand, or
(iii) between any member of the Cognizant Group, on the one hand, and any member
of the ACNielsen Group, on the other hand, in each case, which exist and are
reflected in the accounting records of the relevant parties as of September 30,
1996 or which arise on or after October 1, 1996 shall be paid or settled in the
ordinary course of business in a manner consistent with the payment or
settlement of similar accounts arising from transactions with third parties.
SECTION 2.3. Cash balances. In addition to any other
obligations hereunder or under any Ancillary Agreement or otherwise, on the
Distribution Date, D&B shall deliver, in immediately available funds, $12.7
million to ACNielsen and $229.6 million to Cognizant. If, by November 1, 1996,
any business referred to in Section 2.1(j)(iii) has not been sold, the amount
payable to Cognizant pursuant to the preceding sentence shall be reduced by the
amount of cash expected to be received upon such sale, as set forth on Schedule
2.1(j)(iii)(A), and, if and when such business is actually sold, Cognizant shall
be entitled to the cash proceeds received upon such sale, subject, however, to
the adjustments required by Section 2.1(j)(iii).
SECTION 2.4. Assumption and Satisfaction of Liabilities.
Except as otherwise specifically set forth in any Ancillary Agreement, and
subject to Section 2.3 hereof, from and after the Effective Time, (i) D&B shall,
and shall cause each member of the D&B Group to, assume, pay, perform and
discharge all D&B Liabilities, (ii) Cognizant shall, and shall cause each member
of the Cognizant Group to, assume, pay, perform and discharge all Cognizant
Liabilities, and (iii) ACNielsen shall, and shall cause each member of the
ACNielsen Group to, assume, pay, perform and discharge all ACNielsen
Liabilities. To the extent reasonably requested to do so by another party
hereto, each party hereto agrees to sign such documents, in a form reasonably
satisfactory to such party, as may be reasonably necessary to evidence the
assumption of any Liabilities hereunder.
SECTION 2.5. Resignations. (a) Subject to Section 2.5(d), D&B
shall cause all its employees to resign, effective as of the Effective Time,
from all positions as officers or directors of any member of the Cognizant Group
in which they serve, and Cognizant shall cause all its employees to resign,
effective as of the Effective Time, from all positions as officers or directors
of any members of the D&B Group in which they serve.
(b) Subject to Section 2.5(d), D&B shall cause all its
employees to resign, effective as of the Effective Time, from all positions as
officers or directors of any member of the ACNielsen
<PAGE> 28
28
Group in which they serve, and ACNielsen shall cause all its employees to
resign, effective as of the Effective Time, from all positions as officers or
directors of any members of the D&B Group in which they serve.
(c) Subject to Section 2.5(d), ACNielsen shall cause all its
employees to resign, effective as of the Effective Time, from all positions as
officers or directors of any member of the Cognizant Group in which they serve,
and Cognizant shall cause all its employees to resign, effective as of the
Effective Time, from all positions as officers or directors of any member of the
ACNielsen Group in which they serve.
(d) No person shall be required by any party hereto to resign
from any position or office with another party hereto if such person is
disclosed in the Information Statement as the person who is to hold such
position or office following the Distribution.
SECTION 2.6. Further Assurances. In case at any time after the
Effective Time any further action is reasonably necessary or desirable to carry
out the purposes of this Agreement and the Ancillary Agreements, the proper
officers of each party to this Agreement shall take all such necessary action.
Without limiting the foregoing, D&B, Cognizant and ACNielsen shall use their
commercially reasonable efforts promptly to obtain all consents and approvals,
to enter into all amendatory agreements and to make all filings and applications
that may be required for the consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements, including, without limitation, all
applicable governmental and regulatory filings.
SECTION 2.7. Limited Representations or Warranties. Each of
the parties hereto agrees that no party hereto is, in this Agreement or in any
other agreement or document contemplated by this Agreement or otherwise, making
any representation or warranty whatsoever, as to title or value of Assets being
transferred. It is also agreed that, notwithstanding anything to the contrary
otherwise expressly provided in the relevant Conveyancing and Assumption
Instrument, all Assets either transferred to or retained by the parties, as the
case may be, shall be "as is, where is" and that (subject to Section 2.6) the
party to which such Assets are to be transferred hereunder shall bear the
economic and legal risk that such party's or any of the Subsidiaries' title to
any such Assets shall be other than good and marketable and free from
encumbrances. Similarly, each party hereto agrees that, except as otherwise
expressly provided in the relevant Conveyancing and Assumption Instrument, no
party hereto is representing or warranting in any way that the obtaining of any
consents or approvals, the execution and delivery of any amendatory agreements
and the making of any filings or applications contemplated by this Agreement
will satisfy the provisions of any or all applicable agreements or the
<PAGE> 29
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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, D&B, Cognizant and ACNielsen shall use their
commercially reasonable efforts to have, on or prior to the Distribution Date,
or as soon as practicable thereafter, any member of the D&B Group removed as
guarantor of or obligor for any Cognizant Liability or ACNielsen Liability,
including, without limitation, in respect of those guarantees set forth on
Schedule 2.8(a).
(b) Except as otherwise specified in any Ancillary Agreement,
D&B, Cognizant and ACNielsen shall use their commercially reasonable efforts to
have, on or prior to the Distribution Date, or as soon as practicable
thereafter, any member of the Cognizant Group removed as guarantor of or obligor
for any D&B Liability or ACNielsen Liability, including, without limitation, in
respect of those guarantees set forth on Schedule 2.8(b).
(c) Except as otherwise specified in any Ancillary Agreement,
D&B, Cognizant and ACNielsen shall use their commercially reasonable efforts to
have, on or prior to the Distribution Date, or as soon as practicable
thereafter, any member of the ACNielsen Group removed as guarantor of or obligor
for any D&B Liability or Cognizant Liability, including, without limitation, in
respect of those guarantees set forth on Schedule 2.8(c).
(d) If D&B, Cognizant or ACNielsen is unable to obtain, or to
cause to be obtained, any such required removal as set forth in clauses (a)-(c)
of this Section 2.8, the applicable guarantor or obligor shall continue to be
bound as such and, unless not permitted by law or the terms thereof, the
relevant beneficiary shall or shall cause one of its Subsidiaries, as agent or
subcontractor for such guarantor or obligor to pay, perform and discharge fully
all the obligations or other liabilities of such guarantor or obligor thereunder
from and after the date hereof.
SECTION 2.9. Witness Services. At all times from and after the
Distribution Date, each of D&B, Cognizant and ACNielsen shall use their
commercially reasonable efforts to make available to the other, upon reasonable
written request, its and its Subsidiaries' officers, directors, employees and
agents as witnesses to the extent that (i) such persons may reasonably be
required in connection with the prosecution or defense of any Action in which
the requesting party may from time to time be involved and (ii) there is no
conflict in the Action between the requesting party and D&B, Cognizant or
ACNielsen, as applicable.
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A party providing witness services to the other party under this Section shall
be entitled to receive from the recipient of such services, upon the
presentation of invoices therefor, payments for such amounts, relating to
disbursements and other out-of-pocket expenses (which shall be deemed to exclude
the costs of salaries and benefits of employees who are witnesses), as may be
reasonably incurred in providing such witness services.
SECTION 2.10. Certain Post-Distribution Transactions. (a)(i)
D&B shall comply and shall cause its Subsidiaries to comply with and otherwise
not take action inconsistent with each representation and statement made to the
Internal Revenue Service in connection with the request by D&B for a ruling
letter in respect of the Distribution as to certain tax aspects of the
Distribution and (ii) until two years after the Distribution Date, D&B will
maintain its status as a company engaged in the active conduct of a trade or
business, as defined in Section 355(b) of the Code.
(b)(i) Cognizant shall comply and shall cause its Subsidiaries
to comply with and otherwise not take action inconsistent with each
representation and statement made to the Internal Revenue Service in connection
with the request by D&B for a ruling letter in respect of the Distribution as to
certain tax aspects of the Distribution and (ii) until two years after the
Distribution Date, Cognizant will maintain its status as a company engaged in
the active conduct of a trade or business, as defined in Section 355(b) of the
Code.
(c)(i) ACNielsen shall comply and shall cause its Subsidiaries
to comply with and otherwise not take action inconsistent with each
representation and statement made with respect to ACNielsen to the Internal
Revenue Service in connection with the request by D&B for a ruling letter in
respect of the Distribution as to certain tax aspects of the Distribution and
(ii) until two years after the Distribution Date, ACNielsen will maintain its
status as a company engaged in the active conduct of a trade or business, as
defined in Section 355(b) of the Code.
SECTION 2.11. Transfers Not Effected Prior to the
Distribution; Transfers Deemed Effective as of the Distribution Date. To the
extent that any transfers contemplated by this Article II shall not have been
consummated on or prior to the Distribution Date, the parties shall cooperate to
effect such transfers as promptly following the Distribution Date as shall be
practicable. Nothing herein shall be deemed to require the transfer of any
Assets or the assumption of any Liabilities which by their terms or operation of
law cannot be transferred; provided, however, that the parties hereto and their
respective Subsidiaries shall cooperate to seek to obtain any necessary consents
or approvals for the transfer of all Assets and Liabilities contemplated to be
transferred pursuant to this Article II. In the event that any such transfer of
Assets or
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Liabilities has not been consummated, from and after the Distribution Date the
party retaining such Asset or Liability shall hold such Asset in trust for the
use and benefit of the party entitled thereto (at the expense of the party
entitled thereto) or retain such Liability for the account of the party by whom
such Liability is to be assumed pursuant hereto, as the case may be, and take
such other action as may be reasonably requested by the party to whom such Asset
is to be transferred, or by whom such Liability is to be assumed, as the case
may be, in order to place such party, insofar as is reasonably possible, in the
same position as would have existed had such Asset or Liability been transferred
as contemplated hereby. As and when any such Asset or Liability becomes
transferable, such transfer shall be effected forthwith. The parties agree that,
as of the Distribution Date, each party hereto shall be deemed to have acquired
complete and sole beneficial ownership over all of the Assets, together with all
rights, powers and privileges incident thereto, and shall be deemed to have
assumed in accordance with the terms of this Agreement all of the Liabilities,
and all duties, obligations and responsibilities incident thereto, which such
party is entitled to acquire or required to assume pursuant to the terms of this
Agreement.
SECTION 2.12. Conveyancing and Assumption Instruments. In
connection with the transfers of Assets and the assumptions of Liabilities
contemplated by this Agreement, the parties shall execute or cause to be
executed by the appropriate entities the Conveyancing and Assumption Instruments
in substantially the form contemplated hereby for transfers to be effected
pursuant to New York law or the laws of one of the other states of the United
States or, if not appropriate for a given transfer, and for transfers to be
effected pursuant to non-U.S. laws, in such other form as the parties shall
reasonably agree, including the transfer of real property with deeds as may be
appropriate. The transfer of capital stock shall be effected by means of
delivery of stock certificates and executed stock powers and notation on the
stock record books of the corporation or other legal entities involved, or by
such other means as may be required in any non-U.S.jurisdiction to transfer
title to stock and, to the extent required by applicable law, by notation on
public registries.
SECTION 2.13. Ancillary Agreements. Prior to the Distribution
Date, each of D&B, Cognizant and ACNielsen shall enter into, and/or (where
applicable) shall cause members of their respective Groups to enter into, the
Ancillary Agreements and any other agreements in respect of the Distribution
reasonably necessary or appropriate in connection with the transactions
contemplated hereby and thereby.
SECTION 2.14. Corporate Names. (a) 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
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thereafter, Cognizant and ACNielsen will each, at their own expense,
remove (or, if necessary, on an interim basis, cover up) any and all
exterior signs and other identifiers located on any of their respective
property or premises or on the property or premises used by them or
their respective Subsidiaries (except property or premises to be shared
with D&B or its Subsidiaries after the Distribution) which refer or
pertain to D&B or which include the D&B name, logo or other trademark
or other D&B intellectual property; and
(ii) as soon as is reasonably practicable after the
Distribution Date but in any event within six months thereafter,
Cognizant and ACNielsen will, and will cause their respective
Subsidiaries to, remove from all letterhead, envelopes, invoices and
other communications media of any kind, all references to D&B,
including the "Dun & Bradstreet" name, logo and any other trademark or
other D&B intellectual property (except that neither Cognizant nor
ACNielsen shall be required to take any such action with respect to
materials in the possession of customers), and neither Cognizant,
ACNielsen nor any of their respective Subsidiaries shall use or display
the "Dun & Bradstreet" name, logo or other trademarks or D&B
intellectual property without the prior written consent of D&B.
(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, D&B and Cognizant
will each, at their own expense, remove (or, if necessary, on an
interim basis, cover up) any and all exterior signs and other
identifiers located on any of their respective property or premises
owned or used by them or their respective Subsidiaries (except property
or premises to be shared with ACNielsen or its Subsidiaries after the
Distribution) which refer or pertain to ACNielsen or which include the
"ACNielsen" or "A.C. Nielsen" name, logo or other trademark or other
ACNielsen intellectual property; and
(ii) as soon as is reasonably practicable after the
Distribution Date but in any event within six months thereafter, D&B
and Cognizant will each, and will cause their respective Subsidiaries
to, remove from all letterhead, envelopes, invoices and other
communications media of any kind, all references to ACNielsen,
including the "ACNielsen" and "A.C. Nielsen" name, logo and any other
trademark or other ACNielsen intellectual property (except that neither
D&B nor Cognizant shall be required to take any such action with
respect to materials in the possession of customers), and neither D&B
nor any of its Subsidiaries shall use or display the "ACNielsen" or
"A.C. Nielsen" name,
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logo or other trademarks or ACNielsen intellectual property without the
prior written consent of ACNielsen.
(c) Each of D&B and ACNielsen acknowledges that they have no
interest in nor any right to use or display the Cognizant name or any Cognizant
trademark or intellectual property in any way, except to the extent specifically
set forth in the Intellectual Property Agreement and the TAM Master Agreement.
ARTICLE III. INDEMNIFICATION
SECTION 3.1. Indemnification by D&B. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, D&B shall indemnify, defend and hold harmless the Cognizant
Indemnitees and the ACNielsen Indemnitees from and against any and all
Indemnifiable Losses of the Cognizant Indemnitees and the ACNielsen Indemnitees,
respectively, arising out of, by reason of or otherwise in connection with the
D&B Liabilities or alleged D&B Liabilities, including any breach by D&B of any
provision of this Agreement or any Ancillary Agreement.
SECTION 3.2. Indemnification by Cognizant. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, Cognizant shall indemnify, defend and hold harmless the D&B
Indemnitees and the ACNielsen Indemnitees from and against any and all
Indemnifiable Losses of the D&B Indemnitees and the ACNielsen Indemnitees,
respectively, arising out of, by reason of or otherwise in connection with the
Cognizant Liabilities or alleged Cognizant Liabilities, including any breach by
Cognizant of any provision of this Agreement or any Ancillary Agreement.
SECTION 3.3. Indemnification by ACNielsen. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, ACNielsen shall indemnify, defend and hold harmless the D&B
Indemnitees and the Cognizant Indemnitees from and against any and all
Indemnifiable Losses of the D&B Indemnitees and the Cognizant Indemnitees,
respectively, arising out of, by reason of or otherwise in connection with the
ACNielsen Liabilities or alleged ACNielsen Liabilities, including any breach by
ACNielsen of any provision of this Agreement or any Ancillary Agreement.
SECTION 3.4. Procedures for Indemnification.
(a) Third Party Claims. If a claim or demand is made against
an ACNielsen Indemnitee, a Cognizant Indemnitee or a D&B Indemnitee (each, an
"Indemnitee") by any person who is not a party to this Agreement (a "Third Party
Claim") as to which such Indemnitee is entitled to indemnification pursuant to
this Agreement, such Indemnitee shall notify the party which is or may be
required pursuant to Section 3.1, Section 3.2 or Section 3.3
<PAGE> 34
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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.
<PAGE> 35
35
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.
<PAGE> 36
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(c) The remedies provided in this Article III shall be
cumulative and shall not preclude assertion by any Indemnitee of any other
rights or the seeking of any and all other remedies against any Indemnifying
Party.
SECTION 3.5. Indemnification Payments. Indemnification
required by this Article III shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or loss, liability, claim, damage or expense is incurred.
ARTICLE IV. ACCESS TO INFORMATION
SECTION 4.1. Provision of Corporate Records.
(a) Other than in circumstances in which indemnification is
sought pursuant to Article III (in which event the provisions of such Article
will govern), after the Distribution Date, upon the prior written request by
Cognizant or ACNielsen for specific and identified agreements, documents, books,
records or files (collectively, "Records") which relate to (x) Cognizant or
ACNielsen or the conduct of the Cognizant Business or ACNielsen Business, as the
case may be, up to the Effective Time, or (y) any Ancillary Agreement to which
D&B and Cognizant and/or ACNielsen are parties, as applicable, D&B shall
arrange, as soon as reasonably practicable following the receipt of such
request, for the provision of appropriate copies of such Records (or the
originals thereof if the party making the request has a reasonable need for such
originals) in the possession or control of D&B or any of its Subsidiaries, but
only to the extent such items are not already in the possession or control of
the requesting party.
(b) Other than in circumstances in which indemnification is
sought pursuant to Article III (in which event the provisions of such Article
will govern), after the Distribution Date, upon the prior written request by D&B
or ACNielsen for specific and identified Records which relate to (x) D&B or
ACNielsen or the conduct of the D&B Business or the ACNielsen Business, as the
case may be, up to the Effective Time, or (y) any Ancillary Agreement to which
Cognizant and D&B and/or ACNielsen are parties, as applicable, Cognizant shall
arrange, as soon as reasonably practicable following the receipt of such
request, for the provision of appropriate copies of such Records (or the
originals thereof if the party making the request has a reasonable need for such
originals) in the possession or control of Cognizant or any of its Subsidiaries,
but only to the extent such items are not already in the possession or control
of the requesting party.
(c) Other than in circumstances in which indemnification is
sought pursuant to Article III (in which event the provisions of such Article
will govern), after the
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37
Distribution Date, upon the prior written request by D&B or Cognizant for
specific and identified Records which relate to D&B or Cognizant or the conduct
of the D&B Business or the Cognizant Business, as the case may be, up to the
Effective Time, or any Ancillary Agreement to which ACNielsen and D&B and/or
Cognizant are parties, as applicable, ACNielsen shall arrange, as soon as
reasonably practicable following the receipt of such request, for the provision
of appropriate copies of such Records (or the originals thereof if the party
making the request has a reasonable need for such originals) in the possession
or control of ACNielsen or any of its Subsidiaries, but only to the extent such
items are not already in the possession or control of the requesting party.
SECTION 4.2. Access to Information. Other than in
circumstances in which indemnification is sought pursuant to Article III (in
which event the provisions of such Article will govern), from and after the
Distribution Date, each of D&B, Cognizant and ACNielsen shall afford to the
other and its authorized accountants, counsel and other designated
representatives reasonable access during normal business hours, subject to
appropriate restrictions for classified, privileged or confidential information,
to the personnel, properties, books and records of such party and its
Subsidiaries insofar as such access is reasonably required by the other party
and relates to (x) such other party or the conduct of its business prior to the
Effective Time or (y) any Ancillary Agreement to which each of the party
requesting such access and the party requested to grant such access are parties.
SECTION 4.3. Reimbursement; Other Matters. Except to the
extent otherwise contemplated by any Ancillary Agreement, a party providing
Records or access to information to the other party under this Article IV shall
be entitled to receive from the recipient, upon the presentation of invoices
therefor, payments for such amounts, relating to supplies, disbursements and
other out-of-pocket expenses, as may be reasonably incurred in providing such
Records or access to information.
SECTION 4.4. Confidentiality. Each of (i) D&B and its
Subsidiaries, (ii) Cognizant and its Subsidiaries and (iii) ACNielsen and its
Subsidiaries shall not use or permit the use of (without the prior written
consent of the other) and shall keep, and shall cause its consultants and
advisors to keep, confidential all information concerning the other parties in
its possession, its custody or under its control (except to the extent that (A)
such information has been in the public domain through no fault of such party or
(B) such information has been later lawfully acquired from other sources by such
party or (C) this Agreement or any other Ancillary Agreement or any other
agreement entered into pursuant hereto permits the use or disclosure of such
information) to the extent such information (w) relates to or was acquired
during the period up to the Effective Time, (x) relates to any Ancillary
Agreement, (y) is
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obtained in the course of performing services for the other party pursuant to
any Ancillary Agreement, or (z) is based upon or is derived from information
described in the preceding clauses (w), (x) or (y), and each party shall not
(without the prior written consent of the other) otherwise release or disclose
such information to any other person, except such party's auditors and
attorneys, unless compelled to disclose such information by judicial or
administrative process or unless such disclosure is required by law and such
party has used commercially reasonable efforts to consult with the other
affected party or parties prior to such disclosure.
SECTION 4.5. Privileged Matters. The parties hereto recognize
that legal and other professional services that have been and will be provided
prior to the Distribution Date have been and will be rendered for the benefit of
each of the members of the D&B Group, the members of the Cognizant Group, and
the members of the ACNielsen Group, and that each of the members of the D&B
Group, the members of the Cognizant Group, and the members of the ACNielsen
Group should be deemed to be the client for the purposes of asserting all
privileges which may be asserted under applicable law. To allocate the interests
of each party in the information as to which any party is entitled to assert a
privilege, the parties agree as follows:
(a) D&B shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the D&B Business, whether or not the privileged
information is in the possession of or under the control of D&B, Cognizant or
ACNielsen. D&B shall also be entitled, in perpetuity, to control the assertion
or waiver of all privileges in connection with privileged information that
relates solely to the subject matter of any claims constituting D&B Liabilities,
now pending or which may be asserted in the future, in any lawsuits or other
proceedings initiated against or by D&B, whether or not the privileged
information is in the possession of or under the control of D&B, Cognizant or
ACNielsen.
(b) Cognizant shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the Cognizant Business, whether or not the privileged
information is in the possession of or under the control of D&B, Cognizant or
ACNielsen. Cognizant shall also be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the subject matter of any claims constituting Cognizant
Liabilities, now pending or which may be asserted in the future, in any lawsuits
or other proceedings initiated against or by Cognizant, whether or not the
privileged information is in the possession of Cognizant or under the control of
D&B, Cognizant or ACNielsen.
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(c) ACNielsen shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the ACNielsen Business, whether or not the privileged
information is in the possession of or under the control of D&B, Cognizant or
ACNielsen. ACNielsen shall also be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the subject matter of any claims constituting ACNielsen
Liabilities, now pending or which may be asserted in the future, in any lawsuits
or other proceedings initiated against or by ACNielsen, whether or not the
privileged information is in the possession of ACNielsen or under the control of
D&B, Cognizant or ACNielsen.
(d) The parties hereto agree that they shall have a shared
privilege, with equal right to assert or waive, subject to the restrictions in
this Section 4.5, with respect to all privileges not allocated pursuant to the
terms of Sections 4.5(a), (b) and (c). All privileges relating to any claims,
proceedings, litigation, disputes, or other matters which involve two or more of
D&B, Cognizant or ACNielsen in respect of which two or more of such parties
retain any responsibility or liability under this Agreement, shall be subject to
a shared privilege among them.
(e) No party hereto may waive any privilege which could be
asserted under any applicable law, and in which any other party hereto has a
shared privilege, without the consent of the other party, except to the extent
reasonably required in connection with any litigation with third-parties or as
provided in subsection (f) below. Consent shall be in writing, or shall be
deemed to be granted unless written objection is made within twenty (20) days
after notice upon the other party requesting such consent.
(f) In the event of any litigation or dispute between or among
any of the parties hereto, any party and a Subsidiary of another party hereto,
or a Subsidiary of one party hereto and a Subsidiary of another party hereto,
either such party may waive a privilege in which the other party has a shared
privilege, without obtaining the consent of the other party, provided that such
waiver of a shared privilege shall be effective only as to the use of
information with respect to the litigation or dispute between the relevant
parties and/or their Subsidiaries, and shall not operate as a waiver of the
shared privilege with respect to third parties.
(g) If a dispute arises between or among the parties hereto or
their respective Subsidiaries regarding whether a privilege should be waived to
protect or advance the interest of any party, each party agrees that it shall
negotiate in good faith, shall endeavor to minimize any prejudice to the rights
of the other parties, and shall not unreasonably withhold consent to any request
for waiver by another party. Each party hereto
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specifically agrees that it will not withhold consent to waiver for any purpose
except to protect its own legitimate interests.
(h) Upon receipt by any party hereto or by any Subsidiary
thereof of any subpoena, discovery or other request which arguably calls for the
production or disclosure of information subject to a shared privilege or as to
which another party has the sole right hereunder to assert a privilege, or if
any party obtains knowledge that any of its or any of its Subsidiaries' current
or former directors, officers, agents or employees have received any subpoena,
discovery or other requests which arguably calls for the production or
disclosure of such privileged information, such party shall promptly notify the
other party or parties of the existence of the request and shall provide the
other party or parties a reasonable opportunity to review the information and to
assert any rights it or they may have under this Section 4.5 or otherwise to
prevent the production or disclosure of such privileged information.
(i) The transfer of all Records and other information pursuant
to this Agreement is made in reliance on the agreement of D&B, Cognizant and
ACNielsen, as set forth in Sections 4.4 and 4.5, to maintain the confidentiality
of privileged information and to assert and maintain all applicable privileges.
The access to information being granted pursuant to Sections 4.1 and 4.2 hereof,
the agreement to provide witnesses and individuals pursuant to Sections 2.9 and
3.4 hereof, the furnishing of notices and documents and other cooperative
efforts contemplated by Section 3.4 hereof, and the transfer of privileged
information between and among the parties and their respective Subsidiaries
pursuant to this Agreement shall not be deemed a waiver of any privilege that
has been or may be asserted under this Agreement or otherwise.
SECTION 4.6. Ownership of Information. Any information owned
by one party or any of its Subsidiaries that is provided to a requesting party
pursuant to Article III or this Article IV shall be deemed to remain the
property of the providing party. Unless specifically set forth herein, nothing
contained in this Agreement shall be construed as granting or conferring rights
of license or otherwise in any such information.
SECTION 4.7. Limitation of Liability. (a) No party shall have
any liability to any other party in the event that any information exchanged or
provided pursuant to this Agreement which is an estimate or forecast, or which
is based on an estimate or forecast, is found to be inaccurate.
(b) No party or any Subsidiary thereof shall have any
liability or claim against any other party or any Subsidiary of any other party
based upon, arising out of or resulting from any agreement, arrangement, course
of dealing or understanding existing on or prior to the Distribution Date (other
than this
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Agreement or any Ancillary Agreement), unless such agreement, arrangement,
course of dealing or understanding is listed on Schedule 4.7(b) hereto, and any
such liability or claim, whether or not in writing, which is not reflected on
such Schedule, is hereby irrevocably cancelled, released and waived.
SECTION 4.8. Other Agreements Providing for Exchange of
Information. The rights and obligations granted under this Article IV are
subject to any specific limitations, qualifications or additional provisions on
the sharing, exchange or confidential treatment of information set forth in any
Ancillary Agreement.
ARTICLE V. ADMINISTRATIVE SERVICES
SECTION 5.1. Performance of Services. Beginning on the
Distribution Date, each party will provide, or cause one or more of its
Subsidiaries to provide, to the other party and its Subsidiaries such services
on such terms as may be set forth in the Transition Services Agreement. Except
as otherwise set forth in the Transition Services Agreement or any Schedule
thereto, the party that is to provide the services (the "Provider") will use
(and will cause its Subsidiaries to use) commercially reasonable efforts to
provide such services to the other party (the "Recipient") and its Subsidiaries
in a satisfactory and timely manner and as further specified in such Transition
Services Agreement.
SECTION 5.2. Independence. Unless otherwise agreed in writing,
all employees and representatives of the Provider providing the scheduled
services to the Recipient will be deemed for purposes of all compensation and
employee benefits matters to be employees or representatives of the Provider and
not employees or representatives of the Recipient. In performing such services,
such employees and representatives will be under the direction, control and
supervision of the Provider (and not the Recipient) and the Provider will have
the sole right to exercise all authority with respect to the employment
(including, without limitation, termination of employment), assignment and
compensation of such employees and representatives.
SECTION 5.3. Non-exclusivity. Nothing in this Agreement
precludes any party from obtaining, in whole or in part, services of any nature
that may be obtainable from the other parties from its own employees or from
providers other than the other parties.
ARTICLE VI. DISPUTE RESOLUTION
SECTION 6.1. Negotiation. In the event of a controversy,
dispute or claim arising out of, in connection with, or in relation to the
interpretation, performance,
<PAGE> 42
42
nonperformance, validity or breach of this Agreement or otherwise arising out
of, or in any way related to this Agreement or the transactions contemplated
hereby, including, without limitation, any claim based on contract, tort,
statute or constitution (but excluding any controversy, dispute or claim arising
out of any agreement relating to the use or lease of real property if any third
party is a party to such controversy, dispute or claim) (collectively,
"Agreement Disputes"), the general counsels of the relevant parties shall
negotiate in good faith for a reasonable period of time to settle such Agreement
Dispute, provided such reasonable period shall not, unless otherwise agreed by
the parties in writing, exceed 30 days from the time the relevant parties began
such negotiations; provided further that in the event of any arbitration in
accordance with Section 6.2 hereof, the relevant parties shall not assert the
defenses of statute of limitations and laches arising for the period beginning
after the date the relevant parties began negotiations hereunder, and any
contractual time period or deadline under this Agreement or any Ancillary
Agreement to which such Agreement Dispute relates shall not be deemed to have
passed until such Agreement Dispute has been resolved.
SECTION 6.2. Arbitration. If after such reasonable period such
general counsels are unable to settle such Agreement Dispute (and in any event,
unless otherwise agreed in writing by the relevant parties, after 60 days have
elapsed from the time the relevant parties began such negotiations), such
Agreement Dispute shall be determined, at the request of any relevant party, by
arbitration conducted in New York City, before and in accordance with the
then-existing International Arbitration Rules of the American Arbitration
Association (the "Rules"). In any dispute between two of the parties hereto, the
number of arbitrators shall be three, and in any dispute among all three parties
hereto, the number of arbitrators shall be one. Any judgment or award rendered
by the arbitrator shall be final, binding and nonappealable (except upon grounds
specified in 9 U.S.C. Section 10(a) as in effect on the date hereof). If the
parties are unable to agree on an arbitrator or arbitrators, the arbitrator or
arbitrators shall be selected in accordance with the Rules. Any controversy
concerning whether an Agreement Dispute is an arbitrable Agreement Dispute,
whether arbitration has been waived, whether an assignee of this Agreement is
bound to arbitrate, or as to the interpretation of enforceability of this
Article VI shall be determined by the arbitrator or arbitrators. In resolving
any dispute, the parties intend that the arbitrator or arbitrators apply the
substantive laws of the State of New York, without regard to the choice of law
principles thereof. The parties intend that the provisions to arbitrate set
forth herein be valid, enforceable and irrevocable. The undersigned agree to
comply with any award made in any such arbitration proceedings that has become
final in accordance with the Rules and agree to enforcement of or entry of
judgment upon such award, by any court of competent jurisdiction, including (a)
the Supreme Court of the State of New York, New York County, or
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(b) the United States District Court for the Southern District of New York, in
accordance with Section 8.18 hereof. The arbitrator or arbitrators shall be
entitled, if appropriate, to award any remedy in such proceedings, including,
without limitation, monetary damages, specific performance and all other forms
of legal and equitable relief; provided, however, the arbitrator or arbitrators
shall not be entitled to award punitive damages. Without limiting the provisions
of the Rules, unless otherwise agreed in writing by or among the relevant
parties or permitted by this Agreement, the undersigned shall keep confidential
all matters relating to the arbitration or the award, provided such matters may
be disclosed (i) to the extent reasonably necessary in any proceeding brought to
enforce the award or for entry of a judgment upon the award and (ii) to the
extent otherwise required by law. Notwithstanding Article 32 of the Rules, the
party other than the prevailing party in the arbitration shall be responsible
for all of the costs of the arbitration, including legal fees and other costs
specified by such Article 32. Nothing contained herein is intended to or shall
be construed to prevent any party, in accordance with Article 22(3) of the Rules
or otherwise, from applying to any court of competent jurisdiction for interim
measures or other provisional relief in connection with the subject matter of
any Agreement Disputes.
SECTION 6.3. Continuity of Service and Performance. Unless
otherwise agreed in writing, the parties will continue to provide service and
honor all other commitments under this Agreement and each Ancillary Agreement
during the course of dispute resolution pursuant to the provisions of this
Article VI with respect to all matters not subject to such dispute, controversy
or claim.
SECTION 6.4. Indemnity and Joint Defense Agreement. In no
event or circumstances will any arbitrator or arbitrators appointed hereunder
have any right, authority or jurisdiction to determine the "ACN Maximum Amount"
under the Indemnity and Joint Defense Agreement, or otherwise relating to any
dispute which may arise in connection with Article II thereof, or to prevent,
delay or otherwise interfere with such dispute arbitration or determination.
ARTICLE VII. INSURANCE
SECTION 7.1. Policies and Rights Included Within Assets. (a)
The Cognizant Assets shall include (i) any and all rights of an insured party
under each of the Cognizant Shared Policies, subject to the terms of such
Cognizant Shared Policies and any limitations or obligations of Cognizant
contemplated by this Article VII, specifically including rights of indemnity and
the right to be defended by or at the expense of the insurer, with respect to
all claims, suits, actions, proceedings, injuries, losses, liabilities, damages
and expenses incurred or claimed to have been incurred prior to the Distribution
Date by
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44
any party in or in connection with the conduct of the Cognizant Business or, to
the extent any claim is made against Cognizant or any of its Subsidiaries, the
conduct of the D&B Business or the ACNielsen Business, and which claims, suits,
actions, proceedings, injuries, losses, liabilities, damages and expenses may
arise out of an insured or insurable occurrence under one or more of such
Cognizant Shared Policies; provided, however, that nothing in this clause shall
be deemed to constitute (or to reflect) an assignment of such Cognizant Shared
Policies, or any of them, to Cognizant, and (ii) the Cognizant Policies.
(b) The ACNielsen Assets shall include (i) any and all rights
of an insured party under each of the ACNielsen Shared Policies, subject to the
terms of such ACNielsen Shared Policies and any limitations or obligations of
ACNielsen contemplated by this Article VII, specifically including rights of
indemnity and the right to be defended by or at the expense of the insurer, with
respect to all claims, suits, actions, proceedings, injuries, losses,
liabilities, damages and expenses incurred or claimed to have been incurred
prior to the Distribution Date by any party in or in connection with the conduct
of the ACNielsen Business or, to the extent any claim is made against ACNielsen
or any of its Subsidiaries, the conduct of the D&B Business or the Cognizant
Business, and which claims, suits, actions, proceedings, injuries, losses,
liabilities, damages and expenses may arise out of an insured or insurable
occurrence under one or more of such ACNielsen Shared Policies; provided,
however, that nothing in this clause shall be deemed to constitute (or to
reflect) an assignment of such ACNielsen Shared Policies, or any of them, to
ACNielsen, and (ii) the ACNielsen Policies.
SECTION 7.2. Post-Distribution Date Claims. (a) If, subsequent
to the Distribution Date, any person shall assert a claim against Cognizant or
any of its Subsidiaries (including, without limitation, where Cognizant or its
Subsidiaries are joint defendants with other persons) with respect to any claim,
suit, action, proceeding, injury, loss, liability, damage or expense incurred or
claimed to have been incurred prior to the Distribution Date in or in connection
with the conduct of the Cognizant Business or, to the extent any claim is made
against Cognizant or any of its Subsidiaries (including, without limitation,
where Cognizant or its Subsidiaries are joint defendants with other persons),
the conduct of the D&B Business or the ACNielsen Business, and which claim,
suit, action, proceeding, injury, loss, liability, damage or expense may arise
out of an insured or insurable occurrence under one or more of the Cognizant
Shared Policies, D&B shall, at the time such claim is asserted, to the extent
any such Policy may require that Insurance Proceeds thereunder be collected
directly by the named insured or anyone other than the party against whom the
Insured Claim is asserted, be deemed to designate, without need of further
documentation, Cognizant as the agent and attorney-in-fact to assert and to
collect any related Insurance Proceeds under such Cognizant Shared Policy, and
shall further be deemed
<PAGE> 45
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to assign, without need of further documentation, to Cognizant any and all
rights of an insured party under such Cognizant Shared Policy with respect to
such asserted claim, specifically including rights of indemnity and the right to
be defended by or at the expense of the insurer and the right to any applicable
Insurance Proceeds thereunder; provided, however, that nothing in this Section
7.2(a) shall be deemed to constitute (or to reflect) an assignment of the
Cognizant Shared Policies, or any of them, to Cognizant.
(b) If, subsequent to the Distribution Date, any person shall
assert a claim against ACNielsen or any of its Subsidiaries (including, without
limitation, where ACNielsen or its Subsidiaries are joint defendants with other
persons) with respect to any claim, suit, action, proceeding, injury, loss,
liability, damage or expense incurred or claimed to have been incurred prior to
the Distribution Date in or in connection with the conduct of the ACNielsen
Business or, to the extent any claim is made against ACNielsen or any of its
Subsidiaries (including, without limitation, where ACNielsen or its Subsidiaries
are joint defendants with other persons), the conduct of the D&B Business or the
Cognizant Business, and which claim, suit, action, proceeding, injury, loss,
liability, damage or expense may arise out of an insured or insurable occurrence
under one or more of the ACNielsen Shared Policies, D&B shall, at the time such
claim is asserted, to the extent such Policy may require that Insurance Proceeds
thereunder be collected directly by the named insured or anyone other than the
party against whom the Insured Claim is asserted, be deemed to designate,
without need of further documentation, ACNielsen as the agent and
attorney-in-fact to assert and to collect any related Insurance Proceeds under
such ACNielsen Shared Policy, and shall further be deemed to assign, without
need of further documentation, to ACNielsen any and all rights of an insured
party under such ACNielsen Shared Policy with respect to such asserted claim,
specifically including rights of indemnity and the right to be defended by or at
the expense of the insurer and the right to any applicable Insurance Proceeds
thereunder; provided, however, that nothing in this Section 7.2(b) shall be
deemed to constitute (or to reflect) an assignment of the ACNielsen Shared
Policies to ACNielsen.
SECTION 7.3. Administration; Other Matters. (a)
Administration. Except as otherwise provided in Section 7.2 hereof, from and
after the Distribution Date, D&B shall be responsible for (i) Insurance
Administration of the Shared Policies and (ii) Claims Administration under such
Shared Policies with respect to D&B Liabilities, Cognizant Liabilities and
ACNielsen Liabilities; provided that the retention of such responsibilities by
D&B is in no way intended to limit, inhibit or preclude any right to insurance
coverage for any Insured Claim of a named insured under such Policies as
contemplated by the terms of this Agreement; and provided further that D&B's
retention of the administrative responsibilities for the Shared Policies shall
not relieve the party submitting any Insured Claim
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46
of the primary responsibility for reporting such Insured Claim accurately,
completely and in a timely manner or of such party's authority to settle any
such Insured Claim within any period permitted or required by the relevant
Policy. D&B may discharge its administrative responsibilities under this Section
7.3 by contracting for the provision of services by independent parties. Each of
the parties hereto shall administer and pay any costs relating to defending its
respective Insured Claims under Shared Policies to the extent such defense costs
are not covered under such Policies and shall be responsible for obtaining or
reviewing the appropriateness of releases upon settlement of its respective
Insured Claims under Shared Policies. The disbursements, out-of-pocket expenses
and direct and indirect costs of employees or agents of D&B relating to Claims
Administration and Insurance Administration contemplated by this Section 7.3(a)
shall be treated in accordance with the terms of the Transition Services
Agreement, if still in effect with respect to insurance and risk management, or,
if the Transition Services Agreement shall no longer be in effect with respect
to insurance and risk management, then each of D&B, Cognizant and ACNielsen
shall be responsible for its own Claims Administration and Insurance
Administration.
(b) Exceeding Policy Limits.
(i) Where Cognizant Liabilities or ACNielsen Liabilities, as
applicable, are specifically covered under the same Shared Policy for
periods prior to the Distribution Date, or covering claims made after
the Distribution Date with respect to an occurrence prior to the
Distribution Date, then from and after the Distribution Date Cognizant
and ACNielsen may claim coverage for Insured Claims under such Shared
Policy as and to the extent that such insurance is available up to the
full extent of the applicable limits of liability of such Shared Policy
(and may receive any Insurance Proceeds with respect thereto as
contemplated by Section 7.2 or Section 7.3(c) hereof), subject to the
terms of this Section 7.3.
(ii) Except as set forth in this Section 7.3(b), D&B,
Cognizant and ACNielsen shall not be liable to one another for claims
not reimbursed by insurers for any reason not within the control of
D&B, Cognizant or ACNielsen, as the case may be, including, without
limitation, coinsurance provisions, deductibles, quota share
deductibles, self-insured retentions, bankruptcy or insolvency of an
insurance carrier, Shared Policy limitations or restrictions, any
coverage disputes, any failure to timely claim by D&B, Cognizant or
ACNielsen or any defect in such claim or its processing, provided that
D&B shall be responsible for the amount of the difference, if any,
between the deductible set forth in any Shared Policy and the
deductible allocable to Cognizant and/or ACNielsen as set forth in
Schedule 7.3(b) hereto.
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(c) Allocation of Insurance Proceeds. Except as otherwise
provided in Section 7.2, Insurance Proceeds received with respect to claims,
costs and expenses under the Shared Policies shall be paid to D&B, which shall
thereafter administer the Shared Policies by paying the Insurance Proceeds, as
appropriate, to D&B with respect to D&B Liabilities, to Cognizant with respect
to Cognizant Liabilities and to ACNielsen with respect to the ACNielsen
Liabilities. Payment of the allocable portions of indemnity costs of Insurance
Proceeds resulting from such Policies will be made by D&B to the appropriate
party upon receipt from the insurance carrier. In the event that the aggregate
limits on any Shared Policies are exceeded by the aggregate of outstanding
Insured Claims by two or more of the relevant parties hereto, such parties agree
to allocate the Insurance Proceeds received thereunder based upon their
respective percentage of the total of their bona fide claims which were covered
under such Shared Policy (their "allocable portion of Insurance Proceeds"), and
any party who has received Insurance Proceeds in excess of such party's
allocable portion of Insurance Proceeds shall pay to the other party or parties
the appropriate amount so that each party will have received its allocable
portion of Insurance Proceeds pursuant hereto. Each of the parties agrees to use
commercially reasonable efforts to maximize available coverage under those
Shared Policies applicable to it, and to take all commercially reasonable steps
to recover from all other responsible parties in respect of an Insured Claim to
the extent coverage limits under a Shared Policy have been exceeded or would be
exceeded as a result of such Insured Claim.
(d) Allocation of Deductibles. In the event that two or more
parties have bona fide claims under any Shared Policy for which a deductible is
payable, the parties agree that the aggregate amount of the deductible paid
shall be borne by the parties in the same proportion which the Insurance
Proceeds received by each such party bears to the total Insurance Proceeds
received under the applicable Shared Policy (their "allocable share of the
deductible"), and any party who has paid more than such share of the deductible
shall be entitled to receive from any other party or parties an appropriate
amount so that each party has borne its allocable share of the deductible
pursuant hereto. For purposes of this paragraph 7.3(d), the amount of the
relevant deductible under any Shared Policy shall be that set forth in Schedule
7.3(b) hereto.
(e) Effective as of the Distribution Date, Cognizant and
ACNielsen shall be responsible for the full amount of the deductible for
workers' compensation, general liability and automobile liability claims as set
forth in Schedule 7.3(e).
SECTION 7.4. Agreement for Waiver of Conflict and Shared
Defense. In the event that Insured Claims of more than one of the parties hereto
exist relating to the same occurrence, the relevant parties shall jointly defend
and waive any conflict
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of interest necessary to the conduct of the joint defense. Nothing in this
Article VII shall be construed to limit or otherwise alter in any way the
obligations of the parties to this Agreement, including those created by this
Agreement, by operation of law or otherwise.
SECTION 7.5. Cooperation. The parties agree to use their
commercially reasonable efforts to cooperate with respect to the various
insurance matters contemplated by this Agreement.
ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. Complete Agreement; Construction. This Agreement,
including the Exhibits and Schedules, and the Ancillary Agreements shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter. In the event of any inconsistency
between this Agreement and any Schedule hereto, the Schedule shall prevail.
Other than Section 2.7, Section 4.5 and Article VI, which shall prevail over any
inconsistent or conflicting provisions in any Ancillary Agreement other than the
Indemnity and Joint Defense Agreement (the provisions of which shall prevail),
notwithstanding any other provisions in this Agreement to the contrary, in the
event and to the extent that there shall be a conflict between the provisions of
this Agreement and the provisions of any Ancillary Agreement, such Ancillary
Agreement shall control.
SECTION 8.2. Ancillary Agreements. Subject to the last
sentence of Section 8.1, this Agreement is not intended to address, and should
not be interpreted to address, the matters specifically and expressly covered by
the Ancillary Agreements. D&B, Cognizant and ACNielsen acknowledge and agree
that except to the extent that the Indemnity and Joint Defense Agreement
expressly states otherwise, the provisions of such agreement are independent of
the provisions hereof, and, subject to the foregoing exception, none of the
agreements herein or in any other Ancillary Agreement are intended to govern in
any way any of the matters which are the subject of such Indemnity and Joint
Defense Agreement.
SECTION 8.3. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective 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.
<PAGE> 49
49
SECTION 8.5. Expenses. Except as otherwise set forth in this
Agreement or any Ancillary Agreement, all costs and expenses incurred on or
prior to the Distribution Date (whether or not paid on or prior to the
Distribution Date) in connection with the preparation, execution, delivery and
implementation of this Agreement and any Ancillary Agreement, the Information
Statement (including any registration statement on Form 10 of which such
Information Statement may be a part) and the Distribution and the consummation
of the transactions contemplated thereby shall be charged to and paid by D&B.
Except as otherwise set forth in this Agreement or any Ancillary Agreement, each
party shall bear its own costs and expenses incurred after the Distribution
Date. Any amount or expense to be paid or reimbursed by any party hereto to any
other party hereto shall be so paid or reimbursed promptly after the existence
and amount of such obligation is determined and demand therefor is made.
SECTION 8.6. Notices. All notices and other communications
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or sent by any means of electronic
message transmission with delivery confirmed (by voice or otherwise) to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by like notice) and will be deemed given on the date on which
such notice is received:
To The Dun & Bradstreet Corporation:
One Diamond Hill Road
Murray Hill, NJ 07974
Telecopy: (908) 665-5803
Attn: General Counsel
To Cognizant Corporation:
200 Nyala Farms
Westport, Connecticut 06880
Telecopy: (203) 222-4201
Attn: General Counsel
To ACNielsen Corporation:
177 Broad Street
Stamford, Connecticut 06901
Telecopy: (203) 961-3190
Attn: General Counsel
<PAGE> 50
50
SECTION 8.7. Waivers. The failure of any party to require
strict performance by any other party of any provision in this Agreement will
not waive or diminish that party's right to demand strict performance thereafter
of that or any other provision hereof.
SECTION 8.8. Amendments. Subject to the terms of Section 8.11
hereof, this Agreement may not be modified or amended except by an agreement in
writing signed by each of the parties hereto.
SECTION 8.9. Assignment. (a) This Agreement shall not be
assignable, in whole or in part, directly or indirectly, by any party hereto
without the prior written consent of the other parties hereto, and any attempt
to assign any rights or obligations arising under this Agreement without such
consent shall be void.
(b) D&B will not distribute to its stockholders any interest
in any D&B Business Entity, by way of a spin-off distribution, split-off or
other exchange of interests in a D&B Business Entity for any interest in D&B
held by D&B stockholders, or any similar transaction or transactions, unless the
distributed D&B Business Entity undertakes to each of Cognizant and ACNielsen to
be jointly and severally liable for all D&B Liabilities hereunder.
(c) Cognizant will not distribute to its stockholders any
interest in any Cognizant Business Entity, by way of a spin-off distribution,
split-off or other exchange of interests in a Cognizant Business Entity for any
interest in Cognizant held by Cognizant stockholders, or any similar transaction
or transactions, unless the distributed Cognizant Business Entity undertakes to
each of D&B and ACNielsen to be jointly and severally liable for all Cognizant
Liabilities hereunder.
(d) ACNielsen will not distribute to its stockholders any
interest in any ACNielsen Business Entity, by way of a spin-off distribution,
split-off or other exchange of interests in an ACNielsen Business Entity for any
interest in ACNielsen held by ACNielsen stockholders, or any similar transaction
or transactions, unless the distributed ACNielsen Business Entity undertakes to
each of D&B and Cognizant to be jointly and severally liable for all ACNielsen
Liabilities hereunder.
SECTION 8.10. Successors and Assigns. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.
SECTION 8.11. Termination. This Agreement (including, without
limitation, Article III hereof) may be terminated and the Distribution may be
amended, modified or abandoned at any time prior to the Distribution by and in
the sole discretion of D&B
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without the approval of Cognizant or ACNielsen or the shareholders of D&B. In
the event of such termination, no party shall have any liability of any kind to
any other party or any other person. After the Distribution, this Agreement may
not be terminated except by an agreement in writing signed by the parties;
provided, however, that Article III shall not be terminated or amended after the
Distribution in respect of the third party beneficiaries thereto without the
consent of such persons.
SECTION 8.12. Subsidiaries. Each of the parties hereto shall
cause to be performed, and hereby guarantees the performance of, all actions,
agreements and obligations set forth herein to be performed by any Subsidiary of
such party or by any entity that is contemplated to be a Subsidiary of such
party on and after the Distribution Date.
SECTION 8.13. Third Party Beneficiaries. Except as provided in
Article III relating to Indemnitees, this Agreement is solely for the benefit of
the parties hereto and their respective Subsidiaries and Affiliates and should
not be deemed to confer upon third parties any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
SECTION 8.14. Title and Headings. Titles and headings to
sections herein are inserted for the convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
SECTION 8.15. Exhibits and Schedules. The Exhibits and
Schedules shall be construed with and as an integral part of this Agreement to
the same extent as if the same had been set forth verbatim herein.
SECTION 8.16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
SECTION 8.17. Consent to Jurisdiction. Without limiting the
provisions of Article VI hereof, each of the parties irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New
York County, and (b) the United States District Court for the Southern District
of New York, for the purposes of any suit, action or other proceeding arising
out of this Agreement or any transaction contemplated hereby. Each of the
parties agrees to commence any action, suit or proceeding relating hereto either
in the United States District Court for the Southern District of New York or if
such suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court of the State of New York, New York
County. Each of the parties further agrees that service of any process, summons,
notice or document by U.S.
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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.
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.
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53
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:
COGNIZANT CORPORATION
by
----------------------
Name:
Title:
ACNIELSEN CORPORATION
by
----------------------
Name:
Title:
<PAGE> 1
EXHIBIT 99.2
FORM OF TAX ALLOCATION AGREEMENT
This TAX ALLOCATION AGREEMENT is dated as of [ ], 1996, among
THE DUN & BRADSTREET CORPORATION, a Delaware corporation ("D&B"), COGNIZANT
CORPORATION, a Delaware corporation ("Cognizant"), and ACNIELSEN CORPORATION, a
Delaware corporation ("ACNielsen") (collectively, the "Parties").
WHEREAS, as of the date hereof, D&B is the common parent of an
affiliated group of domestic corporations within the meaning of Section 1504(a)
of the Code, including members of the Cognizant Group (as defined below) and
members of the ACNielsen Group (as defined below), and the members of the
affiliated group have heretofore joined in filing consolidated federal income
tax returns;
WHEREAS, D&B proposes to distribute all of the outstanding
stock of Cognizant and ACNielsen to its stockholders (the "Distribution") and,
as a result of the Distribution, the Cognizant Group and the ACNielsen Group
will not be included in the consolidated Federal income tax return of D&B for
the portion of the year following the Distribution or in future years;
WHEREAS, D&B, Cognizant and ACNielsen have entered into an
agreement (the "Distribution Agreement") to, among other things, allocate
certain assets and to allocate and assign responsibility for certain liabilities
of the present D&B and its present and former subsidiaries; and
WHEREAS, D&B, Cognizant and ACNielsen desire to allocate the
tax burdens and benefits of transactions which occurred on or prior to the
Distribution Date and to provide for certain other tax matters, including the
assignment of responsibility for the preparation and filing of tax returns, the
payment of taxes, and the prosecution and defense of any tax controversies;
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. General. As used in this Agreement, the
following terms shall have the following meanings:
(a) "ACNielsen" shall mean ACNielsen Corporation, a
Delaware corporation.
(b) "ACNielsen Business" shall mean the businesses of
the members of the ACNielsen Group, as conducted at any time
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prior to, on or after the Distribution Date. Notwithstanding the foregoing, the
ACNielsen Businesses shall not include (i) any activities or operations
primarily related to, arising out of or resulting from any business terminated
or divested prior to the Distribution Date; or (ii) any of the businesses
listed on Schedule 1.1(b).
(c) "ACNielsen Common Shares" shall mean all the outstanding
shares of common stock of ACNielsen, together with the appurtenant share
purchase rights.
(d) "ACNielsen Group" shall mean ACNielsen and each
corporation, partnership, limited liability company, or other entity
contemplated to remain or become a Subsidiary of ACNielsen pursuant to the
Distribution Agreement.
(e) "Ancillary Agreements" shall mean all of the written
agreements, instruments, assignments or other arrangements (other than this
Agreement) entered into in connection with the transactions contemplated hereby,
including, without limitation, the Distribution Agreement, the Conveyancing and
Assumption Instruments, the Employee Benefits Services and Liability Agreement,
the Shared Transaction Services Agreement, the Transition Services Agreement,
the Data Processing Agreement and the Intellectual Property Agreements.
(f) "Code" shall mean the Internal Revenue Code of 1986, as
amended, and the Treasury regulations promulgated thereunder, including any
successor legislation.
(g) "Cognizant" shall mean Cognizant Corporation, a
Delaware corporation.
(h) "Cognizant Business" shall mean the businesses of the
members of the Cognizant Group, as conducted at any time prior to, on or after
the Distribution Date. Notwithstanding the foregoing, the Cognizant Businesses
shall not include (i) any activities or operations primarily related to, arising
out of or resulting from any business terminated or divested prior to the
Distribution Date; or (ii) any of the businesses listed on Schedule 1.1(h).
(i) "Cognizant Common Shares" shall mean all the outstanding
shares of common stock of Cognizant, together with the appurtenant share
purchase rights.
(j) "Cognizant Group" shall mean Cognizant and each
corporation, partnership, limited liability company, or other entity
contemplated to remain or become a Subsidiary of Cognizant pursuant to the
Distribution Agreement.
(k) "Consolidated Return" shall mean the consolidated federal
income tax return of D&B for the period commencing on January 1, 1996, and
including the members of the ACNielsen Group
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and the members of the Cognizant Group through the Distribution Date.
(l) "Controlled Entity" shall mean any corporation,
partnership or other entity of which another entity (i) owns, directly or
indirectly, ownership interests sufficient to elect a majority of the Board of
Directors (or persons performing similar functions) (irrespective of whether at
the time any other class or classes of ownership interests of such corporation,
partnership or other entity shall or might have such voting power upon the
occurrence of any contingency) or (ii) is a general partner or an entity
performing similar functions (e.g., a trustee).
(m) "D&B" shall mean The Dun & Bradstreet Corporation, a
Delaware corporation.
(n) "D&B Business" shall mean each and every business
conducted at any time by D&B or any Subsidiary of D&B except a Cognizant
Business or an ACNielsen Business.
(o) "D&B Common Stock" shall mean the shares of common stock,
par value $1.00 per share, of D&B.
(p) "D&B Group" shall mean D&B and each person (other than a
member of the Cognizant Group or the ACNielsen Group) that is a Subsidiary of
D&B.
(q) "Deferred Compensation Deduction" shall mean a deduction
with respect to deferred compensation payments and/or the exercise of stock
options in D&B by any former employee of the Old D&B Group if such deduction is
disallowed for a member of the D&B Group and may be claimed by any member of the
Cognizant Group or any member of the ACNielsen Group.
(r) "Distribution" shall mean the distribution on the
Distribution Date to holders of record of shares of D&B Common Stock as of the
Distribution Record Date of (i) the Cognizant Common Shares owned by D&B on the
basis of one Cognizant Common Share for each outstanding share of D&B Common
Stock and (ii) the ACNielsen Common Shares owned by D&B on the basis of one
ACNielsen Common Share for each three outstanding share of D&B Common Stock.
(s) "Distribution Agreement" shall have the meaning as
defined in the recitals hereto.
(t) "Distribution Date" shall mean such date as may hereafter
be determined by D&B's Board of Directors as the date as of which the
Distribution shall be effected.
(u) "Distribution Record Date" shall mean such date as may
hereafter be determined by D&B's Board of Directors as the record date for the
Distribution.
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(v) "Final Determination" shall mean the final resolution of
liability for any Tax for any taxable period, including any related interest or
penalties, by or as a result of: (i) a final and unappealable decision,
judgment, decree or other order by any court of competent jurisdiction; (ii) a
closing agreement or accepted offer in compromise under Section 7121 or 7122 of
the Code, or comparable agreement under the laws of other jurisdictions which
resolves the entire tax liability for any taxable period; (iii) any allowance of
a refund or credit in respect of an overpayment of tax, but only after the
expiration of all periods during which such refund may be recovered by the
jurisdiction imposing the Tax; or (iv) any other final disposition, including by
reason of the expiration of the applicable statute of limitations.
(w) "Foreign Tax Agreement" shall have the meaning as defined
in Section 6.2.
(x) "Governmental Authority" shall mean any federal, state,
local, foreign or international court, government, department, commission,
board, bureau, agency, official or other regulatory, administrative or
governmental authority.
(y) "Included Party" shall have the meaning as defined in
Section 2.1.
(z) "Income Taxes" shall mean any federal, state or local
Taxes determined by reference to income or imposed in lieu of income taxes, such
as taxes based on net worth or gross receipts.
(aa) "Indemnifying Party" shall have the meaning as defined in
Section 3.6.
(ab) "Indemnitee" shall have the meaning as defined in Section
3.6.
(ac) "IRS" shall mean the Internal Revenue Service.
(ad) "Nonperforming Party" shall have the meaning as defined
in Section 5.2.
(ae) "Old D&B Consolidated Group" shall mean D&B and all of
the direct and indirect Subsidiaries of D&B prior to the Distribution Date that
joined in or were eligible to join the Consolidated Return or any Prior Period
Consolidated Return.
(af) "Old D&B Group" shall mean D&B and all of its
Subsidiaries (direct and indirect, domestic and foreign) prior to the
Distribution.
(ag) "Other Taxes" shall mean any federal, state or local
Taxes other than Income Taxes.
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(ah) "Parties" shall have the meaning as defined in the
recitals hereto.
(ai) "person" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership or government,
or any agency or political subdivision thereof.
(aj) "Preparing Party" shall have the meaning as defined in
Section 2.1.
(ak) "Prior Period Consolidated Return" shall mean any
consolidated tax return of D&B filed, or to be filed, for years prior to the
Consolidated Return year.
(al) "Reorganization Tax Payment" shall mean the payment of
any Tax for which Cognizant or D&B is liable pursuant to Section 3.3 of this
Agreement and the imposition and/or payment of which will permit another Party
or any Subsidiary to increase deductions, losses or tax credits or decrease
income, gains or recapture of tax credits for any taxable period or periods
beginning after or including but not ending on the Distribution Date.
(am) "Reorganizations" shall mean the series of contributions
and distributions of Controlled Entities and assets, transfers and assumptions
of liabilities, and other transactions whereby the D&B Group, the ACNielsen
Group and the Cognizant Group are formed and all other Controlled Entities of
D&B prior to the Distribution are placed under the control of the appropriate
parent corporation(s) in preparation for the Distribution.
(an) "Separate Business Foreign Taxes" shall have the meaning
as defined in Section 3.1(d).
(ao) "Separate Company Income Tax Item" shall mean any item or
position reported or reportable on a state or local Income Tax Return other than
those items determined by the D&B corporate office and allocated by the
corporate office to the operating division or entity filing such Income Tax
Return.
(ap) "Subpart F Income" shall have the meaning as defined in
Section 3.5.
(aq) "Subsidiary" shall mean any entity of which another
entity's ownership satisfies the 80-percent voting and value test defined in
Section 1504(a)(2) of the Code, whether directly or indirectly.
(ar) "Tax" or "Taxes" whether used in the form of a noun or
adjective, shall mean taxes on or measured by income, franchise, gross receipts,
sales, use, excise, payroll, personal property, real property, ad-valorem,
value-added, leasing,
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leasing use or other taxes, levies, imposts, duties, charges or withholdings of
any nature. Whenever the term "Tax" or "Taxes" is used (including, without
limitation, regarding any duty to reimburse another party for indemnified taxes
or refunds or credits of taxes) it shall include penalties, fines, additions to
tax and interest thereon.
(as) "Tax Benefit" shall mean the sum of the amount by which
the tax liability (after giving effect to any alternative minimum or similar
tax) of a corporation or group of affiliated corporations to the appropriate
taxing authority is reduced (including, without limitation, by deduction,
entitlement to refund, credit or otherwise, whether available in the current
taxable year, as an adjustment to taxable income in any other taxable year or as
a carryforward or carryback, as applicable) plus any interest from such
government or jurisdiction relating to such tax liability.
(at) "Tax Item" shall mean any item of income, capital gain,
net operating loss, capital loss, deduction, credit or other tax attribute
relevant to the calculation of a Tax liability.
(au) "Tax Returns" shall mean all reports or returns
(including information returns) required to be filed or that may be filed for
any period with any taxing authority (whether domestic or foreign) in connection
with any Tax or Taxes (whether domestic or foreign).
(av) "Timing Adjustment" shall mean any adjustment which (x)
decreases deductions, losses or credits or increases income (including any
increases in income where no income was previously reported), gains or recapture
of tax credits for the period in question, and for which D&B is liable pursuant
to this Agreement, and (y) will permit any member of the ACNielsen Group or any
member of the Cognizant Group to increase deductions, losses or tax credits or
decrease income, gains or recapture of tax credits for any taxable period or
periods beginning after or including but not ending on the Distribution Date.
SECTION 1.2. References; Interpretation. References in this
Agreement to any gender include references to all genders, and references to the
singular include references to the plural and vice versa. The words "include",
"includes" and "including" when used in this Agreement shall be deemed to be
followed by the phrase "without limitation". Unless the context otherwise
requires, references in this Agreement to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, such Agreement. Unless the context otherwise requires, the
words "hereof", "hereby" and "herein" and words of similar meaning when used in
this Agreement refer to this Agreement in its entirety and not to any particular
Article, Section or provision of this Agreement.
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ARTICLE II. PREPARATION AND FILING OF TAX RETURNS
SECTION 2.1. Manner of Preparation.
(a) All Tax Returns filed after the Distribution Date shall be
prepared on a basis that is consistent with the rulings obtained from the IRS or
any other Governmental Authority in connection with the Reorganizations or
Distribution (in the absence of a controlling change in law or circumstances)
and shall be filed on a timely basis (including pursuant to extensions) by the
party responsible for such filing under this Agreement. In the absence of a
controlling change in law or circumstances and unless deviation from past
practice would have no adverse effect on any of the Parties, all Tax Returns
filed after the date of this Agreement shall be prepared on a basis consistent
with the elections, accounting methods, conventions, assumptions and principles
of taxation used for the most recent taxable periods for which Tax Returns
involving similar Tax Items have been filed; provided, however, that a party
filing any Tax Return that does not conform to such past practices shall not be
liable for any additional Tax liability imposed, in whole or in part, as a
result of such deviation from past practice if: (i) for Tax Returns filed within
three years of the Distribution Date, 30 days prior to the filing of such Tax
Return, the party filing such Tax Return notifies all parties that may be
adversely affected; and (ii) the party filing such Tax Return establishes that
conformity with past practice involves a significant risk of the imposition of a
penalty. Subject to the provisions of this Agreement, all decisions relating to
the preparation of Tax Returns shall be made in the sole discretion of the party
responsible under this Agreement for its preparation; provided, however, that to
the extent a party (or any of its businesses) is included in a Tax Return
prepared by another party (the "Preparing Party"), the party not responsible for
preparing the Tax Return (the "Included Party") shall have the right to review
and comment on such Tax Return prior to the filing thereof in the following
manner:
(i) The Preparing Party shall submit any part of such Tax
Return relating to the Included Party to the Included Party at least 21 days
prior to the date on which such Tax Return is due (including extensions). The
Included Party shall submit its comments to the Preparing Party within 10 days
of receipt of the relevant portions of such Tax Return. The Preparing Party
shall alter such Tax Return to reflect the comments of the Included Party unless
the Preparing Party reasonably believes that such alteration would have an
adverse impact upon the Preparing Party.
(b) Unless otherwise required by the IRS, any Governmental
Authority or a court, the Parties hereby agree to file all Tax Returns, and to
take all other actions, in a manner consistent with the position that the last
day on which any member of the ACNielsen Group and any member of the Cognizant
Group was included in the Old D&B Consolidated Group is the
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Distribution Date. For any period that includes but does not end on the
Distribution Date, to the extent permitted by law or administrative practice,
the taxable year of each member of the Old D&B Consolidated Group and any group
of such members shall be treated as closing on the Distribution Date. If a
taxable year of any member of the Old D&B Consolidated Group or any group or
other combination of such members that begins on or before and ends after the
Distribution Date is not treated under the previous sentence as closing on the
Distribution Date, it will be treated for purposes of this Agreement as if the
member or group had a taxable year that ended on the Distribution Date, except
that Tax Items that are calculated on an annual basis shall be apportioned on a
time basis.
SECTION 2.2. Predistribution Tax Returns.
(a) All consolidated federal Income Tax Returns of the Old D&B
Consolidated Group, as well as any separate, non-consolidated federal Income Tax
Returns of any member of the Old D&B Group, that are required to be filed for
periods beginning before the Distribution Date shall be prepared and filed by
D&B.
(b) All state and local Income Tax Returns of any member of
the Old D&B Consolidated Group that may be or are required to be filed for
periods beginning before the Distribution Date shall be prepared and filed by
D&B.
(c) All Tax Returns for Other Taxes of any member of the Old
D&B Consolidated Group that may be or are required to be filed for any period
beginning before the Distribution Date shall be prepared and filed by ACNielsen
if they relate to an ACNielsen Business, by Cognizant if they relate to a
Cognizant Business, and by D&B if they relate to a D&B Business. If any such Tax
Return relates to businesses of more than one of the Parties, then the entity
that filed the corresponding Tax Return for the most recent period for which
such a Tax Return has been filed, or, if no such corresponding Tax Return has
been filed, the appropriate entity in accordance with local law or custom, shall
prepare and file such Tax Return.
(d) All foreign Tax Returns that are required to be filed by
or relating to any member of the Old D&B Group for periods beginning before the
Distribution Date shall be prepared and filed by the entity that filed the
corresponding Tax Return for the most recent period for which such a Tax Return
has been filed, or, if no such corresponding Tax Return has been filed, by the
appropriate entity in accordance with local law or custom.
SECTION 2.3. Post-Distribution Tax Returns.
(a) The filing of all Tax Returns for periods beginning on or
after the Distribution Date shall be the responsibility of D&B if they relate to
the D&B Group or any
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member thereof, shall be the responsibility of ACNielsen if they relate to the
ACNielsen Group or any member thereof, and shall be the responsibility of
Cognizant if they relate to the Cognizant Group or any member thereof.
(b) In the case of any partnership in which a member of the
Old D&B Consolidated Group is the designated tax matters partner, such entity
shall continue to be responsible for the preparation and filing of such
partnership's Tax Returns.
ARTICLE III. PAYMENT OF TAXES
SECTION 3.1. Predistribution Taxes.
(a) D&B shall be liable for and shall pay all Taxes due (or
receive all refunds) in connection with the filing of the Old D&B Consolidated
Group's consolidated federal Income Tax Return, as well as any separate,
non-consolidated federal Income Taxes of any member of the Old D&B Group, for
all taxable periods beginning before the Distribution Date.
(b) Except to the extent provided below, D&B shall be liable
for and shall pay to the relevant taxing authority all state and local Income
Taxes (or receive all refunds) for any taxable periods for which D&B has filing
responsibility under Section 2.2(b) of this Agreement, including any audit
adjustments to such Taxes. To the extent that any Tax Return for such state and
local Income Taxes includes Income Taxes relating to a business of Cognizant or
ACNielsen, the Included Party shall prepare and deliver to D&B, at least 90 days
prior to the due date (including extensions) of such Tax Return, a true and
correct accounting of all relevant Tax Items relating to the Included Party's
business.
(i) Straddle Periods.
(A) In the case of any such taxable period that does not end
on or before the Distribution Date, ACNielsen shall also provide D&B, at least
90 days prior to the due date (including extensions) of the relevant Tax Return,
with a true and correct accounting of all relevant Tax Items and corresponding
Taxes of each member of the ACNielsen Group as if the taxable period for such
entity began immediately after the Distribution Date (using the principles
provided in Section 2.1(b) of this Agreement) and ACNielsen shall be liable for
and shall pay to D&B any such Taxes attributable to such period, including any
audit adjustments to such Taxes.
(B) In the case of any such taxable period that does not end
on or before the Distribution Date, Cognizant shall also provide D&B, at least
90 days prior to the due date (including extensions) of the relevant Tax Return,
with a true and correct accounting of all relevant Tax Items and corresponding
Taxes of
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each member of the Cognizant Group as if the taxable period for such entity
began immediately after the Distribution Date, (using the principles provided in
Section 2.1(b) of this Agreement) and Cognizant shall be liable for and shall
pay to D&B any such Taxes attributable to such period, including any audit
adjustments to such Taxes.
(ii) Adjustments to Separate Company Income Tax Items.
(A) If an audit adjustment to any separate, non-consolidated
state or local Income Tax Return of a member of the ACNielsen Group for any
period beginning prior to the Distribution Date is made by the state or local
governmental authority and relates to a Separate Company Income Tax Item, then
ACNielsen shall be liable for such audit adjustment.
(B) If an audit adjustment to any separate, non-consolidated
state or local Income Tax Return of a member of the Cognizant Group for any
period beginning prior to the Distribution Date is made by the state or local
governmental authority and relates to a Separate Company Income Tax Item, then
Cognizant shall be liable for such audit adjustment.
(c) The entity responsible for the filing of any Tax Return
for Other Taxes pursuant to Section 2.2(c) shall pay to the relevant taxing
authority all Other Taxes due or payable (or receive all refunds) in connection
therewith; provided, however, that each of the Parties shall be liable for all
Other Taxes (or be entitled to receive all refunds) for all periods prior to the
Distribution Date, including audit adjustments thereto, relating to such Party's
businesses. To the extent any Tax Return for such Other Taxes includes Other
Taxes relating to a business other than the Preparing Party's businesses, the
Included Party shall prepare and deliver to the Preparing Party, at least 90
days prior to the due date (including extensions) of such Tax Return, a true and
correct accounting of all relevant Tax Items and corresponding Taxes relating to
the Included Party's business and shall pay the Preparing Party the amount of
any such Other Taxes attributable to the Included Party's business at that time.
(d) Except as provided in Schedule 3.1(d), the entity
responsible for the filing of any foreign Tax Return pursuant to Section 2.2(d)
shall pay to the relevant taxing authority all Taxes due or payable (or receive
all refunds) in connection therewith; provided, however, that each of the
Parties shall be liable for all foreign Taxes (or be entitled to receive all
refunds) for all taxable periods beginning prior to the Distribution Date,
including audit adjustments thereto, relating to such Party's businesses. To the
extent any foreign Tax Return includes Taxes relating to a business other than
the Preparing Party's business, the Included Party shall prepare and deliver to
the Preparing Party, at least 90 days prior to the due date (including
extensions) of such foreign Tax Return, a true and correct accounting of all
relevant Tax Items and corresponding
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Taxes relating to the Included Party's business for the taxable period
("Separate Business Foreign Taxes") and shall pay the Preparing Party the amount
of any such Separate Business Foreign Taxes at that time.
(i) Separate Business Foreign Taxes shall be calculated as if
the Included Party's business were a separate taxpayer for the relevant taxable
period. All such calculations shall be based upon the business's actual tax
attributes for the relevant taxable period, including the use of the business's
tax attributes (such as losses or credits) from prior periods that are not
otherwise utilized and that are carried over to the relevant taxable period
under local law.
(ii) Tax items that relate to or arise out of the tax planning
of the group of entities or businesses included in the relevant foreign Tax
Return as a whole rather than any separate entity or business shall not be
included in the calculation of Separate Business Foreign Taxes.
(iii) If the total liability for Taxes reported as due and
payable on the relevant foreign Tax Return exceeds or is less than the total of
the Separate Business Foreign Taxes for all businesses included in such foreign
Tax Return, then the cost or benefit of any net difference shall be allocated to
each business in proportion to the amount of taxable income generated by such
business.
(iv) Notwithstanding any statement to the contrary in this
Section 3.1(d), the Separate Business Foreign Taxes of any entity shall not
exceed the total liability for Taxes reported as due and payable on the relevant
foreign Tax Return.
(v) In the event of any Final Determination upholding an audit
adjustment to the amount of foreign Taxes reported as due and payable on the
relevant foreign Tax Return, Separate Business Foreign Taxes shall be
recalculated to incorporate any such adjustment.
SECTION 3.2. Post-Distribution Taxes. Unless otherwise
provided in this Agreement:
(a) D&B shall pay all Taxes and shall be entitled to receive
and retain all refunds of Taxes with respect to periods beginning on or after
the Distribution Date that are attributable to the D&B Group or any member
thereof;
(b) Cognizant shall pay all Taxes and shall be entitled to
receive and retain all refunds of Taxes with respect to periods beginning on or
after the Distribution Date that are attributable to the Cognizant Group or any
member thereof;
(c) ACNielsen shall pay all Taxes and shall be entitled to
receive and retain all refunds of Taxes with respect
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to periods beginning on or after the Distribution Date that are attributable to
the ACNielsen Group or any member thereof.
SECTION 3.3. Restructuring Taxes. Notwithstanding any
statement to the contrary in this Agreement and except as otherwise provided in
the Distribution Agreement, to the extent that any Taxes are found to arise out
of the Reorganizations, then any such Tax liability incurred by the Parties (or
any of their Subsidiaries) shall be the responsibility of D&B.
SECTION 3.4. Gain Recognition Agreements.
(a) In the event that the Cognizant Group transfers,
liquidates or otherwise disposes of the stock or assets of any entity listed on
Schedule 3.4(a) and such transfer, liquidation or disposition results in the D&B
Group recognizing gain pursuant to a gain recognition agreement under Section
367(a) of the Code, then Cognizant shall be liable for any resulting Taxes,
including interest, that any member of the D&B Group is required to pay.
(b) In the event that the ACNielsen Group transfers,
liquidates or otherwise disposes of the stock or assets of any entity listed on
Schedule 3.4(b) and such transfer, liquidation or disposition results in the D&B
Group recognizing gain pursuant to a gain recognition agreement under Section
367(a) of the Code, then ACNielsen shall be liable for any resulting Taxes,
including interest, that any member of the D&B Group is required to pay.
SECTION 3.5. Subpart F Inclusions.
(a) If income earned by any foreign member of the Cognizant
Group is required to be included in the United States federal income tax return
of any member of the Cognizant Group pursuant to Subpart F of the Code ("Subpart
F Income"), then D&B shall be liable for the Taxes attributable to the portion
of such income generated while such foreign member of the Cognizant Group was a
member of the Old D&B Group. The portion of such income which shall be
considered attributable to the period in which such foreign member was a member
of the Old D&B Group shall be computed as if the foreign member's taxable year
ended on the Distribution Date.
(b) If income earned by any foreign member of the ACNielsen
Group constitutes Subpart F Income of any member of the ACNielsen Group, then
D&B shall be liable for the Taxes attributable to the portion of such income
generated while such foreign member of the ACNielsen Group was a member of the
Old D&B Group. The portion of such income which shall be considered attributable
to the period in which such foreign member was a member of the Old D&B Group
shall be computed as if the foreign member's taxable year ended on the
Distribution Date.
(c) The amount payable by D&B pursuant to this Section 3.5
shall not exceed the actual Taxes payable with respect to
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such Subpart F Income minus any foreign tax credits attributable to such Subpart
F Income.
SECTION 3.6. Indemnification.
(a) Indemnification by D&B. D&B shall indemnify, defend and
hold harmless Cognizant and ACNielsen (and their respective affiliates) from and
against any and all Tax liabilities allocated to D&B by this Agreement.
(b) Indemnification by Cognizant. Cognizant shall indemnify,
defend and hold harmless D&B and ACNielsen (and their respective affiliates)
from and against any and all Tax liabilities allocated to Cognizant by this
Agreement.
(c) Indemnification by ACNielsen. ACNielsen shall indemnify,
defend and hold harmless D&B and Cognizant (and their respective affiliates)
from and against any and all Tax liabilities allocated to ACNielsen by this
Agreement.
(d) Indemnity Payments.
(i) To the extent that one party (the "Indemnifying Party")
owes money to another party (the "Indemnitee") pursuant to this Section 3.6, the
Indemnitee shall, within 14 days after receiving the Indemnifying Party's
calculations (as specified in Sections 3.1(b), 3.1(c) and 3.1(d)), submit to the
Indemnifying Party the Indemnitee's calculations of the amount required to be
paid pursuant to this Section 3.6, showing such calculations in sufficient
detail so as to permit the Indemnifying Party to understand the calculations.
The Indemnifying Party shall pay the Indemnitee, no later than 30 days prior to
the due date (including extensions) of the relevant Tax Returns or 14 days after
the Indemnifying Party receives the Indemnitee's calculations, the amount for
which the Indemnifying Party is required to pay or indemnify the Indemnitee
under this Section 3.6. The Indemnifying Party shall have the right to disagree
with the Indemnitee's calculations. Any dispute regarding such calculations
shall be resolved in accordance with Section 5.4 of this Agreement.
(ii) All indemnity payments shall be calculated on a pre-tax
basis and shall be treated as contributions to capital and/or dividends
immediately prior to the Distribution.
ARTICLE IV. TAX ATTRIBUTES, TIMING ADJUSTMENTS AND
REORGANIZATION TAX PAYMENTS
SECTION 4.1. Carrybacks. In the event of the realization of
any deduction, loss or credit by a party for any taxable period beginning on or
after the Distribution Date, the party realizing such deduction, loss or credit
may, in its sole discretion, and to the extent permitted under applicable tax
law, elect not to carry back such deduction, loss or credit. To the
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extent any amount is carried back and used by D&B for a taxable period beginning
prior to the Distribution Date, D&B shall not be obligated to make any payment
regarding such carryback.
SECTION 4.2. Deductions or Credits. Except as provided in
Section 4.3, none of the Parties shall be obligated to make a payment to another
party as a result of utilizing a net operating loss, credit or similar tax
attribute arising in a period beginning prior to the Distribution Date.
SECTION 4.3. Timing Adjustments, Reorganization Tax Payments,
and Deferred Compensation Deductions.
(a) If an audit or other examination of any federal, state or
local Tax Return (x) for any period beginning prior to the Distribution Date
shall result (by settlement or otherwise) in a Timing Adjustment in favor of the
ACNielsen Group or any member thereof or the Cognizant Group or any member
thereof, or (y) for any taxable period shall result (by settlement or otherwise)
in a Deferred Compensation Deduction in favor of the ACNielsen Group or any
member thereof or the Cognizant Group or any member thereof, or if any
Reorganization Tax Payment in favor of the ACNielsen Group or any member thereof
or the Cognizant Group or any member thereof is made by D&B, then:
(i) D&B shall notify ACNielsen or Cognizant, as the case may
be, and shall provide ACNielsen or Cognizant with adequate information so that
it can reflect on the appropriate Tax Returns any resulting increases in
deductions, losses or tax credits or decreases in income, gains or recapture of
tax credits;
(ii) ACNielsen or Cognizant, as the case may be, shall pay D&B
the amount of any Tax Benefit that results from such Timing Adjustment,
Reorganization Tax Payment, or Deferred Compensation Deduction within 30 days of
the date such Tax Benefits are realized;
(iii) Notwithstanding the foregoing, ACNielsen or Cognizant,
as the case may be, shall only be required to take steps to obtain such Tax
Benefit or to pay D&B if, in the opinion of ACNielsen's or Cognizant's tax
counsel, which counsel shall be reasonably acceptable to D&B, the reporting of
such Tax Benefit shall not subject ACNielsen or Cognizant to the imposition of a
penalty.
(b) If any Reorganization Tax Payment in favor of the
ACNielsen Group or any member thereof or the D&B Group or any member thereof is
made by Cognizant, then:
(i) Cognizant shall notify ACNielsen or D&B, as the case may
be, and shall provide ACNielsen or D&B with adequate information so that it can
reflect on the appropriate Tax Returns
<PAGE> 15
15
any resulting increases in deductions, losses or tax credits or decreases in
income, gains or recapture of tax credits;
(ii) ACNielsen or D&B, as the case may be, shall pay Cognizant
the amount of any Tax Benefit that results from such Reorganization Tax Payment
within 30 days of the date such Tax Benefits are realized.
(iii) Notwithstanding the foregoing, ACNielsen or D&B, as the
case may be, shall only be required to take steps to obtain such Tax Benefit or
to pay Cognizant if, in the opinion of ACNielsen's or D&B's tax counsel, which
counsel shall be reasonably acceptable to Cognizant, the reporting of such Tax
Benefit shall not subject ACNielsen or D&B to the imposition of a penalty.
(c) Realization of Tax Benefits.
(i) For purposes of this Section 4.3, a Tax Benefit shall be
deemed to have been realized at the time any refund of Taxes is received or
applied against other Taxes due, or at the time of filing of a Tax Return
(including any Tax Return relating to estimated Taxes) on which a loss,
deduction or credit is applied in reduction of Taxes which would otherwise be
payable; provided, however, that where a party has other losses, deductions,
credits or similar items available to it, such deductions, credits or similar
items of such party may be applied prior to the use of any Timing Adjustment,
Reorganization Tax Payment, or Deferred Compensation Deduction.
(ii) The party in receipt of a Tax Benefit may, at its
election, pay the amount of any Tax Benefit to D&B rather than filing amended
returns or otherwise reflecting adjustments or taking positions on its Tax
Returns. If such an election is made, the party will be treated as having
realized a Tax Benefit at the time it would have realized a Tax Benefit had it
chosen to file amended returns or otherwise to reflect adjustments or to take
positions on its Tax Returns.
(d) Tax Benefits Subsequently Denied. If any Tax Benefit
realized pursuant to Section 4.3(c)(i) is subsequently denied, then D&B shall
refund the amount of any payment for such Tax Benefit within 30 days of its
notification by ACNielsen or Cognizant, as the case may be, that a Final
Determination has been reached denying the claimed Tax Benefit.
SECTION 4.4. Competent Authority Relief. If as a result of any
audit of a taxable period beginning prior to the Distribution Date, a Party (or
Subsidiary) is required to adjust its income, deductions, credits or allowances
under Section 482 of the Code or under similar principles in a foreign
jurisdiction, and the payment of additional Taxes in accordance with such a
determination allows another Party (or Subsidiary) to obtain competent authority
relief as a result thereof, then the
<PAGE> 16
16
Party eligible to obtain such relief shall: (a) execute or cause to be executed
any powers of attorney or other documents necessary to enable the other Party to
pursue such relief at its own expense; and (b) cooperate with the other Party
and the competent authorities in seeking such relief. If a mutual agreement is
reached among the competent authorities, then the Party (or Subsidiary)
realizing a Tax Benefit as a result thereof shall pay the amount of such Tax
Benefit to the Party (or Subsidiary) for which the Tax liability is
correspondingly increased within 30 days of the date such Tax Benefit is
realized (within the meaning of Section 4.3(c) of this Agreement). If any Tax
Benefit so realized is subsequently denied, then the Party in receipt of payment
therefor shall refund the amount of any such payment within 30 days of its
notification by the payor that a Final Determination has been reached denying
the claimed Tax Benefit.
ARTICLE V. TAX AUDITS, TRANSACTIONS AND OTHER MATTERS
SECTION 5.1. Tax Audits and Controversies. In the case of any
audit, examination or other proceeding ("Proceeding") brought against any Party
(or Subsidiary) with respect to Taxes for which another Party is or may be
liable pursuant to this Agreement, the Party subject to such Proceeding shall
promptly inform the other Party and shall execute or cause to be executed any
powers of attorney or other documents necessary to enable the other Party to
take all actions desired with respect to such Proceeding to the extent such
Proceeding may affect the amount of Taxes for which the other Party is liable
pursuant to this Agreement. Each Party shall have the right to control, at its
own expense, the portion of any such Proceeding that relates to Taxes for which
such Party is or may be liable pursuant to this Agreement; provided, however,
that such Party shall consult with the other Parties with respect to any issue
that may affect another Party (or Subsidiary). The Party in control of such
Proceeding or any part thereof shall not enter into any final settlement or
closing agreement that may adversely affect another Party (or Subsidiary)
without the consent of such other Party, which consent may not unreasonably be
withheld. Where consent to any final settlement or closing agreement is
withheld, the Party withholding consent shall continue or initiate further
proceedings, at its own expense, and the liability of the Party in control of
such Proceeding shall not exceed the liability that would have resulted from the
proposed closing agreement or final settlement (including interest, additions to
tax and penalties which have accrued at that time).
SECTION 5.2. Cooperation. D&B, ACNielsen and Cognizant shall
cooperate with each other in the filing of any Tax Returns and the conduct of
any audit or other proceeding and each shall execute and deliver such powers of
attorney and other documents and make available such information and documents
as are necessary to carry out the intent of this Agreement. To the extent such
cooperation involves the services of officers,
<PAGE> 17
17
directors, employees, or agents of a Party, such services shall be made
available in accordance with Section 2.9 of the Distribution Agreement. Each
party agrees to notify the other parties of any audit adjustment that does not
result in Tax liability but can reasonably be expected to affect Tax Returns of
the other parties or any of their Subsidiaries. Notwithstanding any other
provision of this Agreement, if a party (the "Nonperforming Party") fails to
give its full cooperation and use its best efforts in the conduct of an audit or
other proceeding as provided by this Section 5.2, and such failure results in
the imposition of additional Taxes for the period or periods involved in the
audit or other proceeding, the Nonperforming Party shall be liable in full for
such additional Taxes.
SECTION 5.3. Retention of Records; Access. Beginning on the
Distribution Date, D&B, ACNielsen and Cognizant shall, and shall cause each of
their Controlled Entities to:
(a) retain adequate records, documents, accounting data and
other information (including computer data) necessary for the preparation and
filing of all Tax Returns required to be filed by any member of the Old D&B
Group or any combination of such members and for any audits and litigation
relating to such Tax Returns or to any Taxes payable by any member of the Old
D&B Group or any combination of such members; and
(b) give to the other parties reasonable access to such
records, documents, accounting data and other information (including computer
data) and to its personnel and premises, for the purpose of the review or audit
of such reports or returns to the extent relevant to an obligation or liability
of a party under this Agreement and in accordance with the procedures provided
in Article IV of the Distribution Agreement. The obligations set forth in these
paragraphs 5.3(a) and 5.3(b) shall continue until the final conclusion of any
litigation to which the records and information relate or until expiration of
all applicable statutes of limitations, whichever is longer.
SECTION 5.4. Dispute Resolution. Any dispute or claim arising
out of, in connection with, or in relation to the interpretation, performance,
nonperformance, validity or breach of this Agreement or otherwise arising out
of, or in any way related to this Agreement, shall be resolved in the manner set
forth in Article VI of the Distribution Agreement.
SECTION 5.5. Confidentiality; Ownership of Information;
Privileged Information. The provisions of Article IV of the Distribution
Agreement relating to confidentiality of information, ownership of information,
privileged information and related matters shall apply with equal force to any
records and information prepared and/or shared by and among the Parties in
carrying out the intent of this Agreement.
<PAGE> 18
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ARTICLE VI. MISCELLANEOUS
SECTION 6.1. Complete Agreement; Construction. This Agreement,
including the Exhibits and Schedules, and the Ancillary Agreements shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter. In the event of any inconsistency
between this Agreement and any Schedule hereto, the Schedule shall prevail.
Other than Sections 2.1(j)(i), 2.1(j)(ii), 2.7, 2.10 and 4.5 and Article VI of
the Distribution Agreement, which shall prevail over any inconsistent or
conflicting provisions in this Agreement, notwithstanding any other provisions
in this Agreement to the contrary, in the event and to the extent that there
shall be a conflict between the provisions of this Agreement and the provisions
of the Distribution Agreement, this Agreement shall control.
SECTION 6.2. Master Tax Allocation Agreement. This Agreement,
including the Exhibits and Schedules, shall take precedence over any and all
agreements with respect to foreign taxes among members of the D&B Group, the
ACNielsen Group, and the Cognizant Group (a "Foreign Tax Agreement"). In the
event that any payment is made or other action taken by a member of the D&B
Group, the ACNielsen Group, or the Cognizant Group pursuant to any Foreign Tax
Agreement and contrary to the terms of this Agreement, then an offsetting
indemnity payment shall be made by the appropriate Party to the injured Party to
conform with the provisions of this Agreement.
SECTION 6.3. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other parties.
SECTION 6.4. Survival of Agreements. Except as otherwise
contemplated by this Agreement, all covenants and agreements of the parties
contained in this Agreement shall survive the Distribution Date.
SECTION 6.5. Expenses. Except as otherwise set forth in this
Agreement, all costs and expenses incurred on or prior to the Distribution Date
(whether or not paid on or prior to the Distribution Date) in connection with
the preparation, execution, delivery and implementation of this Agreement shall
be charged to and paid by D&B. Except as otherwise set forth in this Agreement,
each party shall bear its own costs and expenses incurred after the Distribution
Date.
SECTION 6.6. Notices. All notices and other communications
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or sent by any means of electronic
message
<PAGE> 19
19
transmission with delivery confirmed (by voice or otherwise) to the parties at
the following addresses (or at such other addresses for a party as shall be
specified by like notice) and will be deemed given on the date on which such
notice is received:
To The Dun & Bradstreet Corporation:
One Diamond Hill Road
Murray Hill, NJ 07974
Telecopy: (908) 665-5803
Attn: General Counsel
To Cognizant Corporation:
200 Nyala Farms
Westport, CT 06880
Telecopy: (203) 222-4201
Attn: General Counsel
To ACNielsen Corporation:
177 Broad Street
Stamford, CT 06901
Telecopy: (203) 961-3190
Attn: General Counsel
SECTION 6.7. Waivers. The failure of any party to require
strict performance by any other party of any provision in this Agreement will
not waive or diminish that party's right to demand strict performance thereafter
of that or any other provision hereof.
SECTION 6.8. Amendments. This Agreement may not be modified or
amended except by an agreement in writing signed by each of the parties hereto.
SECTION 6.9. Assignment. This Agreement shall not be
assignable, in whole or in part, directly or indirectly, by any party hereto
without the prior written consent of the other parties hereto, and any attempt
to assign any rights or obligations arising under this Agreement without such
consent shall be void.
SECTION 6.10. Successors and Assigns. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.
<PAGE> 20
20
SECTION 6.11. Termination. This Agreement may be terminated,
amended, modified or abandoned at any time prior to the Distribution by and in
the sole discretion of D&B without the approval of Cognizant or ACNielsen or the
stockholders of D&B. In the event of such termination, no party shall have any
liability of any kind to any other party or any other person. After the
Distribution, this Agreement may not be terminated except by an agreement in
writing signed by the parties.
SECTION 6.12. Controlled Entities. Each of the parties hereto
shall cause to be performed, and hereby guarantees the performance of, all
actions, agreements and obligations set forth herein to be performed by any
Controlled Entity of such party or by any entity that is contemplated to be a
Controlled Entity of such party on and after the Distribution Date.
SECTION 6.13. Third Party Beneficiaries. This Agreement is
solely for the benefit of the parties hereto and their respective Subsidiaries
and should not be deemed to confer upon third parties any remedy, claim,
liability, reimbursement, claim of action or other right in excess of those
existing without reference to this Agreement.
SECTION 6.14. Title and Headings. Titles and headings to
sections herein are inserted for the convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
SECTION 6.15. Exhibits and Schedules. The Exhibits and
Schedules shall be construed with and as an integral part of this Agreement to
the same extent as if the same had been set forth verbatim herein.
SECTION 6.16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
SECTION 6.17. Consent to Jurisdiction. Without limiting the
provisions of Section 5.4 hereof, each of the parties irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New
York County, and (b) the United States District Court for the Southern District
of New York, for the purposes of any suit, action or other proceeding arising
out of this Agreement or any transaction contemplated hereby. Each of the
parties agrees to commence any action, suit or proceeding relating hereto either
in the United States District Court for the Southern District of New York or if
such suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court of the State of New York, New York
County. Each of the parties further agrees that service of any process, summons,
notice or document by U.S. registered mail to such party's respective address
set forth above shall be effective service of process for any action,
<PAGE> 21
21
suit or proceeding in New York with respect to any matters to which it has
submitted to jurisdiction in this Section 6.17. Each of the parties irrevocably
and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in (i) the Supreme Court of the State of New York, New York
County, or (ii) the United States District Court for the Southern District of
New York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
SECTION 6.18. Severability. In the event any one or more of
the provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
<PAGE> 22
22
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:
COGNIZANT CORPORATION
by
----------------------
Name:
Title:
ACNIELSEN CORPORATION
by
----------------------
Name:
Title:
<PAGE> 1
EXHIBIT 99.3
FORM OF EMPLOYEE BENEFITS AGREEMENT
This EMPLOYEE BENEFITS AGREEMENT is dated as of ________ __,
1996 (the "Agreement"), among THE DUN & BRADSTREET CORPORATION, a Delaware
corporation ("D&B"), COGNIZANT CORPORATION, a Delaware corporation,
("Cognizant"), and ACNIELSEN CORPORATION, a Delaware corporation ("ACNielsen").
WHEREAS, the Board of Directors of D&B has determined that it
is appropriate, desirable and in the best interests of the holders of shares of
common stock, par value $1.00 per share, of D&B (the "D&B Common Stock") to take
certain steps to reorganize D&B's Subsidiaries (as defined herein) and
businesses and then to distribute to the holders of the D&B Common Stock all the
outstanding shares of common stock of Cognizant, together with the appurtenant
share purchase rights (the "Cognizant Common Shares"), and all the outstanding
shares of common stock of ACNielsen, together with the appurtenant share
purchase rights (the "ACNielsen Common Shares"); and
WHEREAS, each of D&B, Cognizant and ACNielsen has determined
that it is necessary and desirable to allocate and assign responsibility for
certain employee benefit matters in respect of such entities on and after the
Effective Time (as defined herein).
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, D&B, Cognizant and ACNielsen agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used in this
Agreement shall have the following meanings:
"ACNielsen" shall mean ACNielsen Corporation, a Delaware
corporation.
"ACNielsen Bifurcated Savings Plan Employees" shall have the
meaning set forth in Section 3.3(a) of this Agreement.
"ACNielsen Common Shares" shall have the meaning set forth in
the recitals hereto.
"ACNielsen Employees" shall mean persons who, immediately
after the Effective Time, are employed by the ACNielsen Group (including persons
who are absent from work by reason of layoff or leave of absence and inactive
employees treated as such by agreement therewith).
<PAGE> 2
2
"ACNielsen Group" shall mean ACNielsen and each Business
Entity which is contemplated to remain or become a Subsidiary of ACNielsen
pursuant to the Distribution Agreement.
"ACNielsen Lump-Sum Savings Plan Employees" shall have the
meaning set forth in Section 3.3(a) of this Agreement.
"ACNielsen Replacement Plan" shall mean the replacement plan
to be adopted by ACNielsen pursuant to Section 6.1(c) of this Agreement.
"ACNielsen Retirement Eligible Employees" shall have the
meaning set forth in Section 5.6 of this Agreement.
"ACNielsen Retirement Plan" shall mean the defined benefit
plan to be adopted by ACNielsen pursuant to Section 2.3(a) of this Agreement.
"ACNielsen Retirement Plan Effective Date" shall have the
meaning set forth in Section 2.3(a) of this Agreement.
"ACNielsen Retirement Plan Segregation Ratio" shall equal a
fraction, the numerator of which is the Present Value of the accrued vested and
nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of the ACNielsen
Transferred Retirement Plan Employees under the D&B Retirement Plan at the
Effective Time, and the denominator of which is the Present Value of the accrued
vested and nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of
the D&B Pre-Distribution Employees under the D&B Retirement Plan at the
Effective Time.
"ACNielsen Retirement Plan Transfer Date" shall have the
meaning set forth in Section 2.3(b) of this Agreement.
"ACNielsen Savings Plan" shall mean the defined contribution
plan to be adopted by ACNielsen pursuant to Section 3.3(a) of this Agreement.
"ACNielsen Savings Plan Transfer Date" shall have the meaning
set forth in Section 3.3(b) of this Agreement.
"ACNielsen Transferred Retirement Plan Employees" shall have
the meaning set forth in Section 2.3(a) of this Agreement.
"ACNielsen Transferred Savings Plan Employees" shall have the
meaning set forth in Section 3.3(a) of this Agreement.
"Action" shall mean any action, suit, arbitration, inquiry,
proceeding or investigation by or before any court, any governmental or other
regulatory or administrative agency, body or commission or any arbitration
tribunal.
"Affiliate" shall mean, when used with respect to a specified
person, another person that controls, is controlled by,
<PAGE> 3
3
or is under common control with the person specified. As used herein, "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such person, whether through the
ownership of voting securities or other interests, by contract or otherwise.
"Ancillary Agreements" shall mean all of the written
agreements, instruments, assignments or other written arrangements (other than
this Agreement and the Distribution Agreement) entered into in connection with
the transactions contemplated by this Agreement and the Distribution Agreement,
including, without limitation, the Conveyancing and Assumption Instruments, the
Data Services Agreements, the Intellectual Property Agreement, the Shared
Transaction Services Agreements, the Tax Allocation Agreement and the Transition
Services Agreement.
"Assets" shall have the meaning set forth in Section 1.1(q) of
the Distribution Agreement.
"Board of Directors" shall mean, when used with respect to a
specified corporation, the board of directors of the corporation so specified.
"Business Entity" shall mean any corporation, partnership,
limited liability company or other entity which may legally hold title to
Assets.
"COBRA" shall mean the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended, and the regulations promulgated
thereunder, including any successor legislation.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder, including any successor
legislation.
"Cognizant" shall mean Cognizant Corporation, a Delaware
corporation.
"Cognizant and ACNielsen Nonqualified Plan Participants" shall
have the meaning as set forth in Section 4.2 of this Agreement.
"Cognizant Bifurcated Savings Plan Employees" shall have the
meaning set forth in Section 3.2(a) of this Agreement.
"Cognizant Common Shares" shall have the meaning set forth in
the recitals hereto.
"Cognizant Employees" shall mean persons who, immediately
after the Effective Time, are employed by the Cognizant Group (including persons
who are absent from work by reason of layoff or leave of absence and inactive
employees treated as such by agreement therewith).
<PAGE> 4
4
"Cognizant Group" shall mean Cognizant and each Business
Entity which is contemplated to remain or become a Subsidiary of Cognizant
pursuant to the Distribution Agreement.
"Cognizant Lump-Sum Savings Plan Employees" shall have the
meaning set forth in Section 3.2(a) of this Agreement.
"Cognizant Replacement Plans" shall mean the replacement plans
(including, without limitation, the replacement plan for certain IMS employees)
to be adopted by Cognizant pursuant to Section 6.1(b) of this Agreement.
"Cognizant Retirement Eligible Employees" shall have the
meaning set forth in Section 5.6 of this Agreement.
"Cognizant Retirement Plan" shall mean the defined benefit
plan to be adopted by Cognizant pursuant to Section 2.2(a) of this Agreement.
"Cognizant Retirement Plan Effective Date" shall have the
meaning set forth in Section 2.2(a) of this Agreement.
"Cognizant Retirement Plan Segregation Ratio" shall equal a
fraction, the numerator of which is the Present Value of the accrued vested and
nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of the Cognizant
Transferred Retirement Plan Employees under the D&B Retirement Plan at the
Effective Time, and the denominator of which is the Present Value of the accrued
vested and nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of
the D&B Pre-Distribution Employees under the D&B Retirement Plan at the
Effective Time.
"Cognizant Retirement Plan Transfer Date" shall have the
meaning set forth in Section 2.2(b) of this Agreement.
"Cognizant Savings Plan" shall mean the defined contribution
plan to be adopted by Cognizant pursuant to Section 3.2(a) of this Agreement.
"Cognizant Savings Plan Transfer Date" shall have the meaning
set forth in Section 3.2(b) of this Agreement.
"Cognizant Transferred Retirement Plan Employees" shall have
the meaning set forth in Section 2.2(a) of this Agreement.
"Cognizant Transferred Savings Plan Employees" shall have the
meaning set forth in Section 3.2 of this Agreement.
<PAGE> 5
5
"Conveyancing and Assumption Instruments" shall mean,
collectively, the various agreements, instruments and other documents heretofore
entered into and to be entered into to effect the transfer of Assets and the
assumption of Liabilities in the manner contemplated by the Distribution
Agreement, or otherwise arising out of or relating to the transactions
contemplated in the Distribution Agreement.
"D&B" shall mean The Dun & Bradstreet Corporation, a Delaware
corporation.
"D&B Career Transition Plan" shall mean The Dun & Bradstreet
Career Transition Plan.
"D&B Committee" shall mean the Executive Compensation and
Stock Option Committee of the Board of Directors of D&B.
"D&B Common Stock" shall have the meaning set forth in the
recitals hereto.
"D&B Disabled Employees" shall mean all D&B Pre- Distribution
Employees who are receiving benefits under the D&B Long-Term Disability Plan as
of the Effective Time.
"D&B Group" shall mean D&B and each Business Entity (other
than any member of the Cognizant Group or the ACNielsen Group) that is a
Subsidiary of D&B.
"D&B Long-Term Disability Plan" shall mean The Dun &
Bradstreet Corporation Long Term Disability Plan or any other long-term
disability plan sponsored by D&B or any Subsidiary of D&B prior to the Effective
Time.
"D&B LSARs" shall have the meaning set forth in Section 6.2 of
this Agreement.
"D&B Nonqualified Plans" shall have the meaning as set forth
in Section 4.1 of this Agreement.
"D&B Pension BEP" shall mean the Pension Benefit Equalization
Plan of The Dun & Bradstreet Corporation, as amended effective December 21,
1994.
"D&B Pension BEP Trust" shall mean the trust established in
connection with the D&B Pension BEP and made as of December 15, 1995.
"D&B Post-Distribution Employees" shall mean persons who,
immediately after the Effective Time, are employed by the D&B Group (including
persons who are absent from work by reason of layoff or leave of absence and
inactive employees treated as such by agreement therewith).
<PAGE> 6
6
"D&B Pre-Distribution Employees" shall mean persons who, at
any time prior to the Effective Time, were employed by D&B or its Subsidiaries.
"D&B Retirees" shall mean persons who (i) were D&B Pre-
Distribution Employees, (ii) terminated employment from D&B prior to the
Effective Time and (iii) are neither Cognizant Employees nor ACNielsen Employees
immediately after the Effective Time.
"D&B Retirement Plan" shall mean the Master Retirement Plan of
The Dun & Bradstreet Corporation, as amended and restated effective January 1,
1994, with certain earlier effective dates.
"D&B Savings BEP" shall mean the Profit Participation Benefit
Equalization Plan of The Dun & Bradstreet Corporation, as amended and restated
effective January 1, 1995.
"D&B Savings Plan" shall mean the Profit Participation Plan of
The Dun & Bradstreet Corporation, as in effect on January 1, 1994, with certain
earlier effective dates.
"D&B Stock Option" shall have the meaning set forth in Section
6.1 of this Agreement.
"D&B Stock Option Plans" shall mean (i) the 1982 Key Employees
Stock Option Plan for The Dun & Bradstreet Corporation and Subsidiaries and (ii)
the 1991 Key Employees Stock Option Plan for The Dun & Bradstreet Corporation
and Subsidiaries.
"D&B Supplemental EBP" shall mean the Supplemental Executive
Benefit Plan of The Dun & Bradstreet Corporation, as amended effective December
21, 1994.
"D&B Supplemental EBP Trust" shall mean the trust established
in connection with the D&B Supplemental EBP and made as of December 15, 1995.
"Daily Average Trading Price" of a given stock on a given day
shall mean the average of the high and low trading prices for such stock on such
date.
"Data Services Agreements" shall mean the Data Services
Agreements to be entered into by D&B, Cognizant and ACNielsen.
"Distribution" shall mean the distribution on the Distribution
Date to holders of record of shares of D&B Common Stock as of the Distribution
Record Date of (i) the Cognizant Common Shares owned by D&B on the basis of one
Cognizant Common Share for each outstanding share of D&B Common Stock and (ii)
the ACNielsen Common Shares owned by D&B on the basis of one share of ACNielsen
Common Share for each three outstanding shares of D&B Common Stock.
<PAGE> 7
7
"Distribution Agreement" shall mean the Distribution Agreement
among D&B, Cognizant and ACNielsen.
"Distribution Date" shall mean such date as may hereafter be
determined by D&B's Board of Directors as the date as of which the Distribution
shall be effected.
"Distribution Record Date" shall mean such date as may
hereafter be determined by D&B's Board of Directors as the record date for the
Distribution.
"Effective Time" shall mean 12:01 a.m., New York time, on the
Distribution Date.
"Employee Benefit Dispute" shall include any controversy,
dispute or claim arising out of, in connection with, or in relation to the
interpretation, performance, nonperformance, validity or breach of this
Agreement or otherwise arising out of, or in any way related to this Agreement
or the transactions contemplated hereby, including, without limitation, any
claim based on contract, tort, statute or constitution.
"Employee Benefit Litigation Liability" shall mean, with
respect to a Business Entity, a Liability relating to a controversy, dispute or
claim arising out of, in connection with or in relation to the interpretation,
performance, nonperformance, validity or breach of an Employee Benefit Plan of
such Business Entity or otherwise arising out of, or in any way related to such
Employee Benefit Plan, including, without limitation, any claim based on
contract, tort, statute or constitution.
"Employee Benefit Plans" shall mean, with respect to a
Business Entity, all "employee benefit plans" (within the meaning of Section
3(3) of ERISA), "multiemployer plans" (within the meaning of Section 3(37) of
ERISA), retirement, pension, savings, profit-sharing, welfare, stock purchase,
stock option, equity- based, severance, employment, change-in-control, fringe
benefit, collective bargaining, bonus, incentive, deferred compensation and all
other employee benefit plans, agreements, programs, policies or other
arrangements (including any funding mechanisms therefor), whether or not subject
to ERISA, whether formal or informal, oral or written, legally binding or not,
under which (i) any past, present or future employee of the Business Entity or
its Subsidiaries has a right to benefits and (ii) the Business Entity or its
Subsidiaries has any Liability.
"Employee Benefit Records" shall mean all agreements,
documents, books, records or files relating to the Employee Benefit Plans of
D&B, Cognizant and ACNielsen.
"Employee Benefit Welfare Plans" shall mean, with respect to a
Business Entity, all Employee Benefit Plans that are "welfare plans" within the
meaning of Section 3(1) of ERISA.
<PAGE> 8
8
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and the regulations promulgated thereunder, including any
successor legislation.
"ESOP" shall mean an "employee stock ownership plan" within
the meaning of Section 4975(e)(7) of the Code.
"FSA Coverage Period" shall have the meaning set forth in
Section 5.4 of this Agreement.
"IMS" shall mean I.M.S. International, Inc., a Delaware
corporation.
"Information Statement" shall mean the Information Statement
sent to the holders of shares of D&B Common Stock in connection with the
Distribution, including any amendment or supplement thereto.
"Intellectual Property Agreement" shall mean the intellectual
property and licensing agreement among D&B, Cognizant and ACNielsen.
"Liabilities" shall mean any and all losses, claims, charges,
debts, demands, actions, causes of action, suits, damages, obligations,
payments, costs and expenses, sums of money, accounts, reckonings, bonds,
specialties, indemnities and similar obligations, exonerations, covenants,
contracts, controversies, agreements, promises, doings, omissions, variances,
guarantees, make whole agreements and similar obligations, and other
liabilities, including all contractual obligations, whether absolute or
contingent, matured or unmatured, liquidated or unliquidated, accrued or
unaccrued, known or unknown, whenever arising, and including those arising under
any law, rule, regulation, Action, threatened or contemplated Action (including
the costs and expenses of demands, assessments, judgments, settlements and
compromises relating thereto and attorneys' fees and any and all costs and
expenses (including allocated costs of in-house counsel and other personnel),
whatsoever reasonably incurred in investigating, preparing or defending against
any such Actions or threatened or contemplated Actions), order or consent decree
of any governmental or other regulatory or administrative agency, body or
commission or any award of any arbitrator or mediator of any kind, and those
arising under any contract, commitment or undertaking, including those arising
under this Agreement, the Distribution Agreement or any Ancillary Agreement, in
each case, whether or not recorded or reflected or required to be recorded or
reflected on the books and records or financial statements of any person.
"Participant Election Period" shall mean the period during
which the elections described in Sections 3.2 and 3.3 are permitted (such
period, in no event, to be less than 30 days
<PAGE> 9
9
following notice thereof to persons who are eligible to make the election).
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any successor entity thereto.
"PBGC Assumptions" shall mean the actuarial assumptions set
forth in 29 C.F.R. Part 2619, et seq.
"person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Present Value" shall mean the single sum value of a series of
future payments, determined utilizing PBGC Assumptions in effect as of the
measurement date.
"Service" shall mean the Internal Revenue Service or any
successor entity thereto.
"Shared Transaction Services Agreements" shall mean the
Shared Transaction Services Agreements among D&B, Cognizant and ACNielsen.
"Subsidiary" shall mean any corporation, partnership or other
entity of which another entity (i) owns, directly or indirectly, ownership
interests sufficient to elect a majority of the Board of Directors (or persons
performing similar functions) (irrespective of whether at the time any other
class or classes of ownership interests of such corporation, partnership or
other entity shall or might have such voting power upon the occurrence of any
contingency) or (ii) is a general partner or an entity performing similar
functions (e.g., a trustee).
"Tax Allocation Agreement" shall mean the Tax Allocation
Agreement among D&B, Cognizant and ACNielsen.
"Transition Services Agreement" shall mean the Transition
Services Agreement among D&B, Cognizant and ACNielsen.
ARTICLE II
DEFINED BENEFIT PLANS
SECTION 2.1. D&B Retirement Plan. From and after the Effective
Time, D&B shall continue to sponsor the D&B Retirement Plan for the benefit of
D&B Post-Distribution Employees, D&B Retirees and D&B Disabled Employees. Active
participation of Cognizant Employees and ACNielsen Employees in the D&B
Retirement Plan shall cease immediately after the Effective Time.
SECTION 2.2. Cognizant Retirement Plan. (a) As soon as
practicable after the Effective Time, but not later than the first day of the
fourth calendar month that begins after the
<PAGE> 10
10
Effective Time (herein referred to as the "Cognizant Retirement Plan Effective
Date"), Cognizant shall establish the Cognizant Retirement Plan for the benefit
of Cognizant Employees who were participants in the D&B Retirement Plan
immediately prior to the Effective Time (the "Cognizant Transferred Retirement
Plan Employees"). As soon as practicable after the Effective Time, D&B shall
cause the trustee of the D&B Retirement Plan to segregate the assets of the D&B
Retirement Plan allocable to Cognizant Transferred Retirement Plan Employees in
an amount equal to the sum of (i) and (ii), as follows:
(i) the amount allocable to Cognizant Transferred Retirement Plan
Employees under ERISA Section 4044 as of the Effective Time,
determined using PBGC Assumptions; and
(ii) the excess (if any) of the fair market value of assets of the
D&B Retirement Plan over the Present Value of the vested and
nonvested benefits accrued thereunder for all the D&B
Pre-Distribution Employees as of the Effective Time,
multiplied by the Cognizant Retirement Plan Segregation Ratio.
(b) As soon as practicable after the Effective Time, the
assets allocable to the Cognizant Transferred Retirement Plan Employees shall be
transferred to a separate trust established under the Cognizant Retirement Plan
(such date herein referred to as the "Cognizant Retirement Plan Transfer Date");
provided, however, that in no event shall such transfer take place until (i) D&B
has made all required filings and submissions to the appropriate governmental
agencies and (ii) Cognizant has furnished to D&B (A) a favorable determination
letter that the Cognizant Retirement Plan is qualified under Section 401(a) of
the Code or (B) an opinion letter from Simpson Thacher & Bartlett to the effect
that the Cognizant Retirement Plan is qualified under Section 401(a) of the
Code. The value of such assets to be transferred shall equal the value of
segregated assets determined under Section 2.2(a) of this Agreement, adjusted as
follows:
(i) reduced by the amount of benefit payments made under the D&B
Retirement Plan with respect to Cognizant Transferred
Retirement Plan Employees from the Effective Time to the
Cognizant Retirement Plan Transfer Date; and
(ii) increased (or decreased) by the share of the net investment
income (or loss) from the Effective Time to the Cognizant
Retirement Plan Transfer Date attributable to the value of
such segregated assets.
(c) Unless otherwise agreed to by D&B and Cognizant (as well
as ACNielsen if it has assets in the D&B Retirement Plan on the Cognizant
Retirement Plan Transfer Date), the form of the assets to be transferred shall
consist of an undivided percentage
<PAGE> 11
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interest in each asset that is held by the D&B Retirement Plan on the Cognizant
Retirement Plan Transfer Date, such undivided percentage interest being equal to
the value of assets allocable to the Cognizant Transferred Retirement Plan
Employees, divided by the fair market value of plan assets.
(d) Prior to the Cognizant Retirement Plan Transfer Date, all
benefit payments to Cognizant Transferred Retirement Plan Employees shall be
made from the D&B Retirement Plan.
SECTION 2.3 ACNielsen Retirement Plan. (a) As soon as
practicable after the Effective Time, but not later than the first day of the
fourth calendar month that begins after the Effective Time (herein referred to
as the "ACNielsen Retirement Plan Effective Date"), ACNielsen shall establish
the ACNielsen Retirement Plan for the benefit of ACNielsen Employees who were
participants in the D&B Retirement Plan immediately prior to the Effective Time
(the "ACNielsen Transferred Retirement Plan Employees"). As soon as practicable
after the Effective Time, D&B shall cause the trustee of the D&B Retirement Plan
to segregate the assets of the D&B Retirement Plan allocable to ACNielsen
Transferred Retirement Plan Employees in an amount equal to the sum of (i) and
(ii), as follows:
(i) the amount allocable to ACNielsen Transferred Retirement Plan
Employees under ERISA Section 4044 as of the Effective Time,
determined using PBGC Assumptions; and
(ii) the excess (if any) of the fair market value of assets of the
D&B Retirement Plan over the Present Value of the vested and
nonvested benefits accrued thereunder for all the D&B
Pre-Distribution Employees as of the Effective Time,
multiplied by the ACNielsen Retirement Plan Segregation Ratio.
(b) As soon as practicable after the Effective Time, the
assets allocable to the ACNielsen Transferred Retirement Plan Employees shall be
transferred to a separate trust established under the ACNielsen Retirement Plan
(such date herein referred to as the "ACNielsen Retirement Plan Transfer Date");
provided, however, that in no event shall such transfer take place until (i) D&B
has made all required filings and submissions to the appropriate governmental
agencies and (ii) ACNielsen has furnished to D&B (A) a favorable determination
letter that the ACNielsen Retirement Plan is qualified under Section 401(a) of
the Code or (B) an opinion letter from Simpson Thacher & Bartlett to the effect
that the ACNielsen Retirement Plan is qualified under Section 401(a) of the
Code. The value of such assets to be transferred shall equal the value of
segregated assets determined under Section 2.3(a) of this Agreement, adjusted as
follows:
(i) reduced by the amount of benefit payments made under the D&B
Retirement Plan with respect to ACNielsen
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Transferred Retirement Plan Employees from the
Effective Time to the ACNielsen Retirement Plan
Transfer Date; and
(ii) increased (or decreased) by the share of the net investment
income (or loss) from the Effective Time to the ACNielsen
Retirement Plan Transfer Date attributable to the value of
such segregated assets.
(c) Unless otherwise agreed to by D&B and ACNielsen (as well
as Cognizant if it has assets in the D&B Retirement Plan on the ACNielsen
Retirement Plan Transfer Date), the form of the assets to be transferred shall
consist of an undivided percentage interest in each asset that is held by the
D&B Retirement Plan on the ACNielsen Retirement Plan Transfer Date, such
undivided percentage interest being equal to the value of assets allocable to
the ACNielsen Transferred Retirement Plan Employees, divided by the fair market
value of plan assets.
(d) Prior to the ACNielsen Retirement Plan Transfer Date, all
benefit payments to ACNielsen Transferred Retirement Plan Employees shall be
made from the D&B Retirement Plan.
SECTION 2.4. Allocation of Liabilities. The Cognizant Group
shall assume all Liabilities relating to the participation of Cognizant
Transferred Retirement Plan Employees in the D&B Retirement Plan and in the
Cognizant Retirement Plan. The ACNielsen Group shall assume all Liabilities
relating to the participation of ACNielsen Transferred Retirement Plan Employees
in the D&B Retirement Plan and in the ACNielsen Retirement Plan. The D&B Group
shall retain all other Liabilities relating to the D&B Retirement Plan.
ARTICLE III
DEFINED CONTRIBUTION PLANS
SECTION 3.1. D&B Savings Plan. From and after the Effective
Time, D&B shall continue to sponsor the D&B Savings Plan for the benefit of D&B
Post-Distribution Employees, D&B Retirees, D&B Disabled Employees, Cognizant
Bifurcated Savings Plan Employees (as defined in Section 3.2(a) below) and
ACNielsen Bifurcated Savings Plan Employees (as defined in Section 3.3(a)
below). Active participation of Cognizant Employees and ACNielsen Employees in
the D&B Savings Plan shall cease immediately after the Effective Time.
SECTION 3.2. Cognizant Savings Plan. (a) As of the Effective
Time, Cognizant shall adopt the Cognizant Savings Plan for the benefit of
Cognizant Employees who were participants in the D&B Savings Plan immediately
prior to the Effective Time. Prior to the Effective Time, Cognizant Employees
shall be given the right to elect one of the following options with respect to
their D&B Savings Plan account balances: (i) Cognizant Employees
<PAGE> 13
13
may keep their balances in the D&B Savings Plan (such employees being known as
"Cognizant Bifurcated Savings Plan Employees"); (ii) Cognizant Employees may
receive a lump-sum payment (in cash and/or stock) of their balances (such
employees being known as "Cognizant Lump-Sum Savings Plan Employees") or (iii)
Cognizant Employees may transfer their balances to the Cognizant Savings Plan
(such employees being known as "Cognizant Transferred Savings Plan Employees").
If a Cognizant Employee fails to elect any of the foregoing options prior to the
end of the Participant Election Period, (i) his or her balance shall remain in
the D&B Savings Plan, and (ii) such employee shall be treated as a Cognizant
Bifurcated Savings Plan Employee.
(b) Prior to the date on which the transfer of assets and
liabilities to the Cognizant Savings Plan shall occur (the "Cognizant Savings
Plan Transfer Date"), which date shall occur as promptly as practicable
following the Participant Election Period, (i) D&B shall (A) cause the trustee
of the D&B Savings Plan to segregate, in accordance with the spinoff provisions
set forth under Section 414(l) of the Code, the assets of the D&B Savings Plan
representing the full account balances of Cognizant Transferred Savings Plan
Employees for all periods of participation through the Effective Time
(including, as applicable, all contributions and all earnings attributable
thereto); (B) make all required filings and submissions to the appropriate
governmental agencies; and (C) make all required amendments to the D&B Savings
Plan and related trust agreement necessary to provide for the segregation and
transfer of assets described in this Section 3.2, and (ii) Cognizant shall
furnish to D&B (A) a favorable determination letter that the Cognizant Savings
Plan is qualified under Section 401(a) of the Code or (B) an opinion letter from
Simpson Thacher & Bartlett to the effect that the Cognizant Savings Plan is
qualified under Section 401(a) of the Code.
(c) On the Cognizant Savings Plan Transfer Date, D&B shall
cause the trustee of the D&B Savings Plan to transfer to the trustee of the
Cognizant Savings Plan the full account balances (inclusive of loans) of
Cognizant Transferred Savings Plan Employees in kind based on those investment
funds in which such account balances are then invested (including, but not
limited to, the pooled stock fund); provided, however, that loans to Cognizant
Transferred Savings Plan Employees shall be transferred in the form of notes and
amounts in the D&B stock fund shall be transferred in the form of cash. In
consideration of the segregation and transfer of assets described herein, the
Cognizant Savings Plan shall, as of the Cognizant Savings Plan Transfer Date,
assume all Liabilities attributable to such assets.
(d) Notwithstanding anything in this Agreement to the
contrary, (i) a Cognizant Employee may not elect to be treated as a Cognizant
Bifurcated Savings Plan Employee if his or her account balance in the D&B
Savings Plan is $3,500 or less (in
<PAGE> 14
14
which case such Cognizant Employee shall be treated as a Cognizant Lump-Sum
Savings Plan Employee) and (ii) a Cognizant Bifurcated Savings Plan Employee
may, prior to the second anniversary of the Distribution Date, elect to receive
a distribution of his or her account balance in the D&B Savings Plan.
SECTION 3.3. ACNielsen Savings Plan. (a) As of the Effective
Time, ACNielsen shall adopt the ACNielsen Savings Plan for the benefit of
ACNielsen Employees who were participants in the D&B Savings Plan immediately
prior to the Effective Time. Prior to the Effective Time, ACNielsen Employees
shall be given the right to elect one of the following options with respect to
their D&B Savings Plan account balances: (i) ACNielsen Employees may keep their
balances in the D&B Savings Plan (such employees being known as "ACNielsen
Bifurcated Savings Plan Employees"); (ii) ACNielsen Employees may receive a
lump-sum payment (in cash and/or stock) of their balances (such employees being
known as "ACNielsen Lump-Sum Savings Plan Employees") or (iii) ACNielsen
Employees may transfer their balances to the ACNielsen Savings Plan (such
employees being known as "ACNielsen Transferred Savings Plan Employees"). If an
ACNielsen Employee fails to elect any of the foregoing options prior to the end
of the Participant Election Period, (i) his or her balance shall remain in the
D&B Savings Plan, and (ii) such employee shall be treated as a ACNielsen
Bifurcated Savings Plan Employee.
(b) Prior to the date on which the transfer of assets and
liabilities to the ACNielsen Savings Plan shall occur (the "ACNielsen Savings
Plan Transfer Date"), which date shall occur as promptly as practicable
following the Participant Election Period, (i) D&B shall (A) cause the trustee
of the D&B Savings Plan to segregate, in accordance with the spinoff provisions
set forth under Section 414(l) of the Code, the assets of the D&B Savings Plan
representing the full account balances of ACNielsen Transferred Savings Plan
Employees for all periods of participation through the Effective Time
(including, as applicable, all contributions and all earnings attributable
thereto); (B) make all required filings and submissions to the appropriate
governmental agencies; and (C) make all required amendments to the D&B Savings
Plan and related trust agreement necessary to provide for the segregation and
transfer of assets described in this Section 3.3, and (ii) ACNielsen shall
furnish to D&B (A) a favorable determination letter that the ACNielsen Savings
Plan is qualified under Section 401(a) of the Code or (B) an opinion letter from
Simpson Thacher & Bartlett to the effect that the ACNielsen Savings Plan is
qualified under Section 401(a) of the Code.
(c) On the ACNielsen Savings Plan Transfer Date, D&B shall
cause the trustee of the D&B Savings Plan to transfer to the trustee of the
ACNielsen Savings Plan the full account balances (inclusive of loans) of
ACNielsen Transferred Savings Plan Employees in kind based on those investment
funds in which
<PAGE> 15
15
such account balances are then invested (including, but not limited to, the
pooled stock fund); provided, however, that loans to ACNielsen Transferred
Savings Plan Employees shall be transferred in the form of notes and amounts in
the D&B stock fund shall be transferred in the form of cash. In consideration of
the segregation and transfer of assets described herein, the ACNielsen Savings
Plan shall, as of the ACNielsen Savings Plan Transfer Date, assume all
Liabilities attributable to such assets.
(d) Notwithstanding anything in this Agreement to the
contrary, (i) an ACNielsen employee may not elect to be treated as an ACNielsen
Bifurcated Savings Plan Employee if his or her account balance in the D&B
Savings Plan is $3,500 or less (in which case such ACNielsen Employee shall be
treated as an ACNielsen Lump-Sum Savings Plan Employee) and (ii) an ACNielsen
Bifurcated Savings Plan Employee may, prior to the second anniversary of the
Distribution Date, elect to receive a distribution of his or her account balance
in the D&B Savings Plan.
SECTION 3.4. Vesting. As of the Effective Time, the account
balances of Cognizant Employees and ACNielsen Employees in the D&B Savings Plan
shall fully vest.
SECTION 3.5. Outstanding Loans. During their employment with
Cognizant or ACNielsen (as the case may be), Cognizant Transferred Savings Plan
Employees and ACNielsen Transferred Savings Plan Employees who have outstanding
loans originally made from the D&B Savings Plan shall be permitted to repay such
loans by way of regular deductions from their paychecks, and, prior to the
Cognizant Savings Plan Transfer Date or ACNielsen Savings Plan Transfer Date (as
the case may be), D&B, Cognizant or ACNielsen (as the case may be) shall cause
all such deductions to be forwarded to the D&B Savings Plan as promptly as
practicable. No such deductions by Cognizant or ACNielsen shall be made in
respect of Cognizant Bifurcated Savings Plan Employees and ACNielsen Bifurcated
Savings Plan Employees who have outstanding loans from the D&B Savings Plan, and
all such employees shall be required to repay their loans directly to the D&B
Savings Plan in accordance with the existing terms thereof. Notwithstanding the
foregoing, prior to the end of the Participant Election Period, and for such
period thereafter as may be reasonably determined by D&B, Cognizant Employees
and ACNielsen Employees who have outstanding loans from the D&B Savings Plan
shall be permitted to repay such loans by way of regular deductions from their
paychecks.
SECTION 3.6. Employer Stock Fund. Participants in the D&B
Savings Plan who, immediately prior to the Effective Time, have balances in the
D&B Common Stock fund shall have such balances converted, as of the Effective
Time, to units in a pooled stock fund consisting of D&B Common Stock, Cognizant
Common Shares and ACNielsen Common Shares. The initial ratio of
<PAGE> 16
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stock in the pooled stock fund shall be one share of D&B Common Stock to one
share of Cognizant Common Shares to 1/3 share of ACNielsen Common Shares. The
percentage interest of each participant in the pooled stock fund as of the
Effective Time shall equal such participant's percentage interest in the D&B
Common Stock fund immediately prior to the Effective Time. Each of the Cognizant
Savings Plan and ACNielsen Savings Plan shall maintain a pooled stock fund, to
which the pooled stock fund assets of Cognizant Transferred Savings Plan
Employees and ACNielsen Transferred Savings Plan Employees in the D&B Savings
Plan shall be transferred on the Cognizant Savings Plan Transfer Date and the
ACNielsen Savings Plan Transfer Date (as the case may be). From and after the
Effective Time, a participant may liquidate his or her units in the pooled stock
fund and invest the proceeds thereof in any other investment option available
under the applicable plan. A participant may not acquire additional units in the
pooled stock fund from or after the Effective Time.
SECTION 3.7. Matching Contributions. D&B shall make its
regular monthly matching contributions to the D&B Savings Plan accounts of
Cognizant Employees and ACNielsen Employees for all periods of service on or
prior to the Effective Time.
SECTION 3.8. Allocation of Liabilities. The Cognizant Group
shall assume all Liabilities relating to the participation of (a) Cognizant
Transferred Savings Plan Employees in the D&B Savings Plan and in the Cognizant
Savings Plan and (b) Cognizant Bifurcated Savings Plan Employees in the
Cognizant Savings Plan. The ACNielsen Group shall assume all Liabilities
relating to the participation of (a) ACNielsen Employees in the D&B Savings Plan
and in the ACNielsen Savings Plan and (b) ACNielsen Bifurcated Savings Plan
Employees in the ACNielsen Savings Plan. The D&B Group shall retain all other
Liabilities relating to the D&B Savings Plan.
ARTICLE IV
NONQUALIFIED PLANS
SECTION 4.1. D&B Nonqualified Plans. From and after the
Effective Time, D&B shall continue to sponsor the D&B Supplemental EBP, the D&B
Supplemental EBP Trust, the D&B Pension BEP, the D&B Pension BEP Trust and the
D&B Savings BEP (collectively, the "D&B Nonqualified Plans") for the benefit of
persons who, prior to the Effective Time, were participants thereunder;
provided, however, that, with respect to Cognizant Employees and ACNielsen
Employees, D&B shall retain only those Liabilities for benefits under the D&B
Nonqualified Plans that, prior to the Effective Time, were accrued and to which
such participants had earned vested rights thereunder.
SECTION 4.2. Service Credit. Cognizant Employees and ACNielsen
Employees who were participants in the D&B Nonqualified
<PAGE> 17
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Plans immediately prior to the Effective Time (the "Cognizant and ACNielsen
Nonqualified Plan Participants") shall continue to receive service credit under
such plans for their service with the Cognizant Group or the ACNielsen Group (as
the case may be) from and after the Effective Time, but solely for purposes of
satisfying the one-year waiting requirement for a valid election under the D&B
Nonqualified Plans.
SECTION 4.3. Consent to Termination. Solely with respect to
determining the level of benefits payable under the D&B Nonqualified Plans,
Cognizant and ACNielsen shall have the authority to consent to the termination
of employment prior to age 60 of a Cognizant or ACNielsen Nonqualified Plan
Participant from the Cognizant Group or the ACNielsen Group (as the case may
be).
SECTION 4.4. Termination of Employment. Benefits under the D&B
Nonqualified Plans shall not become payable to a Cognizant or ACNielsen
Nonqualified Plan Participant until such participant terminates employment from
the Cognizant Group or the ACNielsen Group (as the case may be).
SECTION 4.5. Noncompetition. Solely with respect to the
noncompetition clauses of the D&B Nonqualified Plans, D&B hereby consents to the
employment of the Cognizant and ACNielsen Nonqualified Plan Participants by the
Cognizant Group or the ACNielsen Group (as the case may be) after the Effective
Time, whether or not such employment would otherwise trigger such noncompetition
clauses.
SECTION 4.6. Distributions; Lump-Sum Elections. Cognizant and
ACNielsen Nonqualified Plan Participants who participated in the D&B Savings BEP
immediately prior to the Effective Time shall receive a distribution thereunder,
based on their notional elective deferrals through the Effective Time, at the
time distributions are otherwise made under such plan.
SECTION 4.7. Guarantees; Subrogation. The Cognizant Group
agrees that, in the event the D&B Group is unable to satisfy its obligations in
respect of the benefits of any Cognizant Employee that have accrued under the
D&B Nonqualified Plans prior to the Effective Time, the Cognizant Group shall
make payment when due with respect to such obligations of the D&B Group. The
ACNielsen Group agrees that, in the event the D&B Group is unable to satisfy its
obligations in respect of the benefits of any ACNielsen Employee that have
accrued under the D&B Nonqualified Plans prior to the Effective Time, the
ACNielsen Group shall make payment when due with respect to such obligations of
the D&B Group. In the event that the Cognizant Group or the ACNielsen Group is
required to make any payment pursuant to this Section 4.7, the Cognizant Group
or the ACNielsen Group (as the case may be) shall have full rights of
subrogation against the D&B Group.
<PAGE> 18
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SECTION 4.8. Third-Party Beneficiaries. It is the intention of
the parties to this Agreement that the provisions of Section 4.7 shall be
enforceable by (a) the Cognizant and ACNielsen Nonqualified Plan Participants
and (b) their respective surviving beneficiaries.
ARTICLE V
WELFARE PLANS
SECTION 5.1. Employee Benefit Welfare Plans. Except as
provided in Section 5.4 and Section 5.5 below, from and after the Effective
Time, D&B shall sponsor its Employee Benefit Welfare Plans solely for the
benefit of D&B Post-Distribution Employees, D&B Retirees and D&B Disabled
Employees. From and after the Effective Time, Cognizant shall sponsor its
Employee Benefit Welfare Plans solely for the benefit of Cognizant Employees.
From and after the Effective Time, ACNielsen shall sponsor its Employee Benefit
Welfare Plans solely for the benefit of ACNielsen Employees. Notwithstanding the
foregoing, none of D&B, Cognizant or ACNielsen shall have any obligation to
sponsor any Employee Benefit Welfare Plan from or after the Effective Time.
SECTION 5.2. Pre-Existing Conditions; Dollar Limits. With
respect to any medical plan that may be sponsored by Cognizant or ACNielsen
after the Effective Time, Cognizant and ACNielsen (a) shall cause there to be
waived any pre-existing condition limitations and (b) shall give effect, in
determining any deductible and maximum out-of-pocket limitations, to claims
incurred, and amounts paid by, and amounts reimbursed to, (in each case during
1996 prior to the Effective Time) ACNielsen Employees and Cognizant Employees
under similar plans maintained by D&B (or any Affiliate thereof) for their
benefit immediately prior to the Effective Time.
SECTION 5.3. Severance Plans. The Cognizant Group shall retain
all Liabilities with respect to severance payments made or to be made to
employees of the Cognizant Group who terminated employment prior to the
Effective Time. The ACNielsen Group shall retain all Liabilities with respect to
severance payments made or to be made to employees of the ACNielsen Group who
terminated employment prior to the Effective Time. The D&B Group shall retain
all Liabilities with respect to severance payments made or to be made to all
other D&B Pre-Distribution Employees who terminated employment prior to the
Effective Time. For purposes of this Section 5.3, the term "severance payments"
shall include any welfare benefit coverage provided under severance plans.
SECTION 5.4. Flexible Spending Accounts. From the Effective
Time until December 31, 1996 (the "FSA Coverage Period"), D&B shall continue to
sponsor its flexible spending accounts for all D&B Pre-Distribution Employees;
provided,
<PAGE> 19
19
however, that Cognizant and ACNielsen shall cause all deductions from
participant paychecks to be forwarded to D&B as promptly as practicable.
SECTION 5.5. Allocation of Liabilities. (a) The D&B Group
shall retain responsibility for and continue to pay all expenses and benefits
relating to the D&B Employee Benefit Welfare Plans with respect to (i) claims
incurred prior to the Effective Time by D&B Pre-Distribution Employees and their
covered dependents and (ii) claims incurred from and after the Effective Time by
D&B Post-Distribution Employees, D&B Retirees and D&B Disabled Employees. The
Cognizant Group shall be responsible for and pay expenses and benefits relating
to all Employee Benefit Welfare Plan claims incurred by Cognizant Employees and
their covered dependents from and after the Effective Time. The ACNielsen Group
shall be responsible for and pay expenses and benefits relating to all Employee
Benefit Welfare Plan claims incurred by ACNielsen Employees and their covered
dependents from and after the Effective Time. For purposes of this paragraph, a
claim is deemed incurred when the services that are the subject of the claim are
performed; in the case of life insurance, when the death occurs; in the case of
long-term disability, when the disability occurs; and, in the case of a hospital
stay, when the employee first enters the hospital. Notwithstanding the
foregoing, claims incurred by any employee of a pre-Distribution Subsidiary of
D&B or their covered dependents under any welfare plan maintained by such
Subsidiary solely for the benefit of its employees and their dependents shall,
whether incurred prior to, on or after the Effective Time, be the sole
responsibility and liability of that Subsidiary.
(b) The Cognizant Group shall be responsible for all COBRA
coverage for any employee of the Cognizant Group and his or her covered
dependents who participated in a D&B Employee Benefit Welfare Plan and who had
or have a loss of health care coverage due to a qualifying event occurring prior
to the Effective Time. The ACNielsen Group shall be responsible for all COBRA
coverage for any employee of the ACNielsen Group and his or her covered
dependents who participated in a D&B Employee Benefit Welfare Plan and who had
or have a loss of health care coverage due to a qualifying event occurring prior
to the Effective Time. The D&B Group shall be responsible for all COBRA coverage
for any other D&B Pre-Distribution Employee and his or her covered dependents
who participated in a D&B Employee Benefit Welfare Plan and who had or have a
loss of health care coverage due to a qualifying event occurring prior to the
Effective Time. Notwithstanding the foregoing, a pre-Distribution Subsidiary of
D&B shall be responsible for all COBRA coverage for its former employees and
covered dependents who participated in a plan maintained solely for their
benefit whether the applicable event occurs prior to, on or after the Effective
Time. COBRA coverage to which a Cognizant Employee or ACNielsen Employee is
entitled as a result of a qualifying event occurring at or after the Effective
Time
<PAGE> 20
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shall be the responsibility of the Cognizant Group or the ACNielsen Group,
respectively.
SECTION 5.6. Retiree Welfare Plans. The Cognizant Group shall
be responsible for providing retiree welfare benefits to those D&B
Pre-Distribution Employees who are Cognizant Employees and who, immediately
prior to the Effective Time, are (i) eligible to retire and (ii) eligible to
elect such coverage under the D&B Employee Benefit Welfare Plans (but who do not
in fact elect such coverage) (the "Cognizant Retirement Eligible Employees");
provided, however, that in the event the Cognizant Group fails to provide to a
Cognizant Retirement Eligible Employee one or more components of retiree welfare
coverage (such components consisting of medical, dental and life benefits), the
D&B Group shall be responsible for the missing component(s), but only to the
same extent it provides such component(s) to its retirees from and after the
time when such Cognizant Retirement Eligible Employee retires or loses his or
her coverage. In the event the D&B Group must provide the benefits described
hereunder, it shall have full rights of reimbursement from the Cognizant Group.
The ACNielsen Group shall be responsible for providing retiree welfare benefits
to those D&B Pre-Distribution Employees who are ACNielsen Employees and who,
immediately prior to the Effective Time, are (i) eligible to retire and (ii)
eligible to elect such coverage under the D&B Employee Benefit Welfare Plans
(but who do not in fact elect such coverage) (the "ACNielsen Retirement Eligible
Employees"); provided, however, that in the event the ACNielsen Group fails to
provide to an ACNielsen Retirement Eligible Employee one or more components of
retiree welfare coverage (such components consisting of medical, dental and life
benefits), the D&B Group shall be responsible for the missing component(s), but
only to the same extent it provides such component(s) to its retirees from and
after the time when such ACNielsen Retirement Eligible Employee retires or loses
his or her coverage. In the event the D&B Group must provide the benefits
described hereunder, it shall have full rights of reimbursement from the
ACNielsen Group. Notwithstanding the provisions of Sections 10.2, 10.3 or 10.4
hereof, in the event any D&B Pre-Distribution Employee elects to retire on or
prior to the Effective Time and receive retiree welfare coverage under the D&B
Employee Welfare Benefit Plans, neither the Cognizant Group nor the ACNielsen
Group shall provide such employee with past service credit under their
respective Employee Benefit Plans, nor shall any assets and liabilities be
transferred in respect of such employee under Article II hereof, upon any
subsequent employment of such individual by the Cognizant Group or the ACNielsen
Group.
<PAGE> 21
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ARTICLE VI
EQUITY-BASED PLANS
SECTION 6.1. D&B Stock Options. Stock options awarded under
the D&B Stock Option Plans ("D&B Stock Options") shall be treated as follows:
(a) D&B Retirees; D&B Disabled Employees; D&B Post-
Distribution Employees. From and after the Effective Time, each unexercised D&B
Stock Option held by D&B Post-Distribution Employees, D&B Retirees and D&B
Disabled Employees shall remain outstanding pursuant to the terms of the award
agreements and the D&B Stock Option Plans; provided, however, that from and
after such time, each unexercised D&B Stock Option shall be adjusted as follows:
(i) the exercise price of the adjusted stock option shall be determined by
multiplying the exercise price of the D&B Stock Option by a fraction, the
numerator of which is the average of the Daily Average Trading Prices of D&B
Common Stock for the five consecutive trading days starting on the first date on
which D&B Common Stock is traded ex-dividend, and the denominator of which is
the average of the Daily Average Trading Prices of D&B Common Stock for the five
consecutive trading days immediately preceding the first date on which D&B
Common Stock is traded ex-dividend and (ii) the number of shares of D&B Common
Stock covered by the adjusted stock option shall be determined by (A)
multiplying the number of shares of D&B Common Stock covered by the D&B Stock
Option by a fraction, the numerator of which is the average of the Daily Average
Trading Prices of D&B Common Stock for the five consecutive trading days
immediately preceding the first date on which D&B Common Stock is traded
ex-dividend, and the denominator of which is the average of the Daily Average
Trading Prices of D&B Common Stock for the five consecutive trading days
starting on the first date on which D&B Common Stock is traded ex-dividend and
(B) rounding down the result to a whole number of shares.
(b) Cognizant Employees. As of the Effective Time, (i) each
unexercised D&B Stock Option held by Cognizant Employees shall be cancelled and
(ii) such individuals shall receive replacement stock options awarded under the
Cognizant Replacement Plans, which shall be adopted by Cognizant prior to the
Effective Time. The exercise price of each replacement stock option shall be
determined by multiplying the exercise price of the cancelled D&B Stock Option
by a fraction, the numerator of which is the average of the Daily Average
Trading Prices of Cognizant Common Shares for the five consecutive trading days
starting on the first date on which Cognizant Common Shares are traded regular
way, and the denominator of which is the average of the Daily Average Trading
Prices of D&B Common Stock for the five consecutive trading days immediately
preceding the first date on which D&B Common Stock is traded ex-dividend. The
number of shares of Cognizant Common Shares covered by each replacement stock
option shall be determined by (i) multiplying the number of shares of D&B Common
Stock covered by the cancelled D&B Stock
<PAGE> 22
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Option by a fraction, the numerator of which is the average of the Daily Average
Trading Prices of D&B Common Stock for the five consecutive trading days
immediately preceding the first date on which D&B Common Stock is traded
ex-dividend, and the denominator of which is the average of the Daily Average
Trading Prices of Cognizant Common Shares for the five consecutive trading days
starting on the first date on which Cognizant Common Shares are traded regular
way and (ii) rounding down the result to a whole number of shares. Except as
otherwise provided in the Cognizant Replacement Plans, all other terms of the
replacement stock options shall remain substantially identical to the terms of
the cancelled D&B Stock Options.
(c) ACNielsen Employees. As of the Effective Time, (i) each
unexercised D&B Stock Option held by ACNielsen Employees shall be cancelled and
(ii) such individuals shall receive replacement stock options awarded under the
ACNielsen Replacement Plan, which shall be adopted by ACNielsen prior to the
Effective Time. The exercise price of each replacement stock option shall be
determined by multiplying the exercise price of the cancelled D&B Stock Option
by a fraction, the numerator of which is the average of the Daily Average
Trading Prices of ACNielsen Common Shares for the five consecutive trading days
starting on the first date on which ACNielsen Common Shares are traded regular
way, and the denominator of which is the average of the Daily Average Trading
Prices of D&B Common Stock for the five consecutive trading days immediately
preceding the first date on which D&B Common Stock is traded ex-dividend. The
number of shares of ACNielsen Common Shares covered by each replacement stock
option shall be determined by multiplying the number of shares of D&B Common
Stock covered by the cancelled D&B Stock Option by a fraction, the numerator of
which is the average of the Daily Average Trading Prices of D&B Common Stock for
the five consecutive trading days immediately preceding the first date on which
D&B Common Stock is traded ex-dividend, and the denominator of which is the
average of the Daily Average Trading Prices of ACNielsen Common Shares for the
five consecutive trading days starting on the first date on which ACNielsen
Common Shares are traded regular way and (ii) rounding down the result to a
whole number of shares. Except as otherwise provided in the ACNielsen
Replacement Plan, all other terms of the replacement stock options shall remain
substantially identical to the terms of the cancelled D&B Stock Options.
SECTION 6.2. D&B LSARs. All limited stock appreciation rights
awarded under the D&B Stock Option Plans ("D&B LSARs") shall be adjusted or
substituted (as the case may be) in substantially the same manner as the D&B
Stock Options described in Section 6.1 above.
SECTION 6.3. Allocation of Liabilities. The Cognizant Group
shall assume all Liabilities with respect to awards granted to Cognizant
Employees pursuant to the Cognizant Replacement Option Plan. The ACNielsen Group
shall assume all Liabilities
<PAGE> 23
23
with respect to awards granted to ACNielsen Employees pursuant to the ACNielsen
Replacement Option Plan. The D&B Group shall retain all other Liabilities with
respect to awards granted pursuant to the D&B Stock Option Plans (including, but
not limited to, awards granted to D&B Post-Distribution Employees, D&B Retirees
and D&B Disabled Employees).
ARTICLE VII
FOREIGN EMPLOYEE BENEFIT PLANS
SECTION 7.1. UK Pensions. D&B, Cognizant and ACNielsen shall
use their best efforts to ensure that the relevant employers may continue to
participate in The Dun & Bradstreet (UK) Pension Plan (the "D&B UK Plan") on the
terms and for the period following the Effective Time set forth in Schedule 7.1.
Cognizant and ACNielsen shall cause the relevant employers to establish or
nominate replacement pension arrangements which comply with the provisions of
Schedule 7.1 and which are capable of receiving a transfer of assets and
liabilities from the D&B UK Plan in respect of the "transferring members" (as
defined in Schedule 7.1). D&B shall request the trustees of the D&B UK Plan to
make a transfer to such replacement arrangements on the basis set forth in
Schedule 7.1(a) subject to compliance by Cognizant and ACNielsen with their
respective obligations thereunder.
ARTICLE VIII
EMPLOYEE STOCK OWNERSHIP PLAN
SECTION 8.1. Employee Stock Ownership Plan. After the
Effective Time, D&B, Cognizant and ACNielsen shall each establish an ESOP for
the benefit of their respective employees, but only to the extent required by
any letter ruling issued by the Service with respect to the Distribution.
ARTICLE IX
OTHER EMPLOYEE BENEFIT ISSUES
SECTION 9.1. Employee Benefit Litigation Liabilities. Except
as otherwise expressly provided in this agreement or with respect to Articles
II, III and VI hereof, the D&B Group shall retain all Employee Benefit
Litigation Liabilities that are asserted by D&B Pre-Distribution Employees prior
to the Effective Time.
SECTION 9.2. Workers' Compensation. The D&B Group shall retain
all Liabilities relating to workers' compensation claims that were incurred (a)
prior to the Effective Time with respect to D&B Pre-Distribution Employees who
were employed by the D&B Group and (b) on and after the Effective Time with
respect to D&B Post-Distribution Employees. The Cognizant Group shall retain all
Liabilities relating to workers' compensation
<PAGE> 24
24
claims that were incurred (a) prior to the Effective Time with respect to D&B
Pre-Distribution Employees who were employed by the Cognizant Group and (b) on
and after the Effective Time with respect to Cognizant Employees. The ACNielsen
Group shall retain all Liabilities relating to workers' compensation claims that
were incurred (a) prior to the Effective Time with respect to D&B
Pre-Distribution Employees who were employed by the ACNielsen Group and (b) on
and after the Effective Time with respect to ACNielsen Employees. For purposes
of this paragraph, a claim is deemed incurred when the injury that is the
subject of the claim occurs.
ARTICLE X
BENEFIT PLAN PARTICIPATION
SECTION 10.1. D&B Plans. Except as specifically provided
herein, all Cognizant Employees and ACNielsen Employees shall cease
participation in all domestic D&B Employee Benefit Plans as of the Effective
Time.
SECTION 10.2. Cognizant Plans. Except as provided in Section
5.6 herein, (a) with respect to any Employee Benefit Plan sponsored by the
Cognizant Group after the Effective Time, the Cognizant Group shall cause to be
recognized (to the extent applicable) each Cognizant Employee's (i) past service
with the D&B Group to the extent recognized under similar plans maintained by
the D&B Group immediately prior to the Effective Time and (ii) accrued but
unused vacation time and sick days, and (b) any Cognizant Employee who
participated in a D&B Employee Benefit Plan immediately prior to the Effective
Time shall be entitled to immediate participation in a similar Employee Benefit
Plan sponsored by the Cognizant Group.
SECTION 10.3. ACNielsen Plans. Except as provided in Section
5.6 herein, (a) with respect to any Employee Benefit Plan sponsored by the
ACNielsen Group after the Effective Time, the ACNielsen Group shall cause to be
recognized (to the extent applicable) each ACNielsen Employee's (i) past service
with the D&B Group to the extent recognized under similar plans maintained by
the D&B Group immediately prior to the Effective Time and (ii) accrued but
unused vacation time and sick days, and (b) any ACNielsen Employee who
participated in a D&B Employee Benefit Plan immediately prior to the Effective
Time shall be entitled to immediate participation in a similar Employee Benefit
Plan sponsored by ACNielsen.
SECTION 10.4. Subsequent Employer. Except as provided in
Section 5.6 herein, if, during the one-year period following the Effective Time,
a D&B Post-Distribution Employee, a Cognizant Employee or ACNielsen Employee
terminates employment with his or her employer and then immediately commences
employment with one of the D&B Group, the Cognizant Group or the ACNielsen
Group, the subsequent employer shall cause to be recognized (to the extent
<PAGE> 25
25
applicable) such employee's past service with the D&B Group, the Cognizant Group
or the ACNielsen Group to the extent recognized under similar plans maintained
by the prior employer. Notwithstanding the foregoing, no past service shall be
recognized with respect to pension accruals under the defined benefit plans of
the subsequent employer.
SECTION 10.5. Right to Amend or Terminate. Except as
specifically provided herein, nothing in this Agreement shall be construed or
interpreted to restrict the D&B Group's, the Cognizant Group's or the ACNielsen
Group's right or authority to amend or terminate any of their Employee Benefit
Plans following the Effective Time.
ARTICLE XI
ACCESS TO INFORMATION
SECTION 11.1. Access to Information. Article IV of the
Distribution Agreement shall govern the rights of the D&B Group, the Cognizant
Group and the ACNielsen Group with respect to access to information. The term
"Records" in that Article shall be read to include all Employee Benefit Records.
ARTICLE XII
INDEMNIFICATION
SECTION 12.1. Indemnification. Article III of the Distribution
Agreement shall govern the rights of the D&B Group, the Cognizant Group and the
ACNielsen Group with respect to indemnification. The term "D&B Liabilities" in
that Article shall be read to include all Liabilities assumed by the D&B Group
pursuant to this Agreement. The term "Cognizant Liabilities" in that Article
shall be read to include all Liabilities assumed by the Cognizant Group pursuant
to this Agreement. The term "ACNielsen Liabilities" in that Article shall be
read to include all Liabilities assumed by the ACNielsen Group pursuant to this
Agreement.
ARTICLE XIII
DISPUTE RESOLUTION
SECTION 13.1. Dispute Resolution. Article VI of the
Distribution Agreement shall govern the rights of the D&B Group, the Cognizant
Group and the ACNielsen Group with respect to dispute resolution. The term
"Agreement Dispute" in that Article shall be read to include all Employee
Benefit Disputes.
<PAGE> 26
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ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Complete Agreement; Construction. This
Agreement, including the Exhibits and Schedules (if any), and the Distribution
Agreement shall constitute the entire agreement between the parties with respect
to the subject matter hereof and shall supersede all previous negotiations,
commitments and writings with respect to such subject matter. In the event of
any inconsistency between this Agreement and any Schedule hereto, the Schedule
shall prevail. Other than Sections 2.7 and 4.5 and Article VI of the
Distribution Agreement, which shall prevail over any inconsistent or conflicting
provisions in this Agreement, notwithstanding any other provisions in this
Agreement to the contrary, in the event and to the extent that there shall be a
conflict between the provisions of this Agreement and the provisions of the
Distribution Agreement, this Agreement shall control.
SECTION 14.2. Ancillary Agreements. This Agreement is not
intended to address, and should not be interpreted to address, the matters
specifically and expressly covered by the Ancillary Agreements.
SECTION 14.3. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more such counterparts have
been signed by each of the parties and delivered to the other parties.
SECTION 14.4. Survival of Agreements. Except as otherwise
contemplated by this Agreement, all covenants and agreements of the parties
contained in this Agreement shall survive the Distribution Date.
SECTION 14.5. Expenses. Except as otherwise set forth in this
Agreement, the Distribution Agreement or any Ancillary Agreement, all costs and
expenses incurred on or prior to the Distribution Date (whether or not paid on
or prior to the Distribution Date) in connection with the preparation,
execution, delivery and implementation of this Agreement, the Distribution
Agreement, any Ancillary Agreement, the Information Statement (including any
registration statement on Form 10 of which such Information Statement may be a
part) and the Distribution and the consummation of the transactions contemplated
thereby shall be charged to and paid by D&B. Except as otherwise set forth in
this Agreement, the Distribution Agreement or any Ancillary Agreement, each
party shall bear its own costs and expenses incurred after the Distribution
Date. Any amount or expense to be paid or reimbursed by any party hereto to any
other party hereto shall be so paid or reimbursed promptly after the existence
and amount of such obligation is determined and demand therefor is paid.
<PAGE> 27
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SECTION 14.6. Notices. All notices and other communications
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or sent by any means of electronic
message transmission with delivery confirmed (by voice or otherwise) to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by like notice) and will be deemed given on the date on which
such notice is received:
To The Dun & Bradstreet Corporation:
One Diamond Hill Road
Murray Hill, NJ 07974
Telecopy: (908) 665-5803
Attn: General Counsel
To Cognizant Corporation:
200 Nyala Farms
Westport, CT 06880
Telecopy: (203) 222-4201
Attn: General Counsel
To ACNielsen Corporation:
177 Broad Street
Stamford, CT 06901
Telecopy: (203) 961-3190
Attn: General Counsel
SECTION 14.7. Waivers. The failure of any party to require
strict performance by any other party of any provision in this Agreement will
not waive or diminish that party's right to demand strict performance thereafter
of that or any other provision hereof.
SECTION 14.8. Amendments. Subject to the terms of Section
14.11 hereof, this Agreement may not be modified or amended except by an
agreement in writing signed by each of the parties hereto.
SECTION 14.9. Assignment. This Agreement shall not be
assignable, in whole or in part, directly or indirectly, by any party hereto
without the prior written consent of the other parties hereto, and any attempt
to assign any rights or obligations arising under this Agreement without such
consent shall be void.
SECTION 14.10. Successors and Assigns. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.
<PAGE> 28
28
SECTION 14.11. Termination. This Agreement (including, without
limitation, Section 4.8 and Article XII hereof) may be terminated and may be
amended, modified or abandoned at any time prior to the Distribution by and in
the sole discretion of D&B without the approval of Cognizant or ACNielsen or the
shareholders of D&B. In the event of such termination, no party shall have any
liability of any kind to any other party or any other person. After the
Distribution, this Agreement may not be terminated except by an agreement in
writing signed by the parties; provided, however, that Section 4.8 and Article
XII shall not be terminated or amended after the Distribution in respect of the
third party beneficiaries thereto without the consent of such persons.
SECTION 14.12. Subsidiaries. Each of the parties hereto shall
cause to be performed, and hereby guarantees the performance of, all actions,
agreements and obligations set forth herein to be performed by any Subsidiary of
such party or by any entity that is contemplated to be a Subsidiary of such
party on and after the Distribution Date.
SECTION 14.13. Third Party Beneficiaries. Except as provided
in Section 4.8 and Article XII, this Agreement is solely for the benefit of the
parties hereto and their respective Subsidiaries and Affiliates and should not
be deemed to confer upon third parties any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
SECTION 14.14. Title and Headings. Titles and headings to
sections herein are inserted for the convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
SECTION 14.15. Exhibits and Schedules. The Exhibits and
Schedules, if any, shall be construed with and as an integral part of this
Agreement to the same extent as if the same had been set forth verbatim herein.
SECTION 14.16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
SECTION 14.17. Consent to Jurisdiction. Without limiting the
provisions of Article XIII hereof, each of the parties irrevocably submits to
the exclusive jurisdiction of (a) the Supreme Court of the State of New York,
New York County, and (b) the United States District Court for the Southern
District of New York, for the purposes of any suit, action or other proceeding
arising out of this Agreement or any transaction contemplated hereby. Each of
the parties agrees to commence any action, suit or proceeding relating hereto
either in the United States District Court for the Southern District of New York
or if
<PAGE> 29
29
such suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court of the State of New York, New York
County. Each of the parties further agrees that service of any process, summons,
notice or document by U.S. registered mail to such party's respective address
set forth above shall be effective service of process for any action, suit or
proceeding in New York with respect to any matters to which it has submitted to
jurisdiction in this Section 14.17. Each of the parties irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in (i) the Supreme Court of the State of New York, New York County, or
(ii) the United States District Court for the Southern District of New York, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
SECTION 14.18. Severability. In the event any one or more of
the provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 14.19. Governmental Notices; Cooperation.
Notwithstanding anything in this Agreement to the contrary, all actions
contemplated herein with respect to Employee Benefit Plans which are to be
consummated pursuant to this Agreement shall be subject to such notices to,
and/or approvals by, the Service or the PBGC (or any other governmental agency
or entity) as are required or deemed appropriate by such Employee Benefit Plan's
sponsor. Each of D&B, Cognizant and ACNielsen agrees to use its commercially
reasonable efforts to cause all such notices and/or approvals to be filed or
obtained, as the case may be. Each party hereto shall reasonably cooperate with
the other parties with respect to any government filings, employee notices or
any other actions reasonably necessary to maintain and implement the Employee
Benefit Plans covered by this Agreement.
SECTION 14.20. Further Assurances. From time to time, as and
when reasonably requested by any other party hereto, each party hereto shall
execute and deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such further or other
actions as such other party may reasonably deem necessary or desirable to effect
the purposes of this Agreement and the transactions contemplated hereunder.
<PAGE> 30
30
IN WITNESS WHEREOF, the parties have duly executed and entered
into this Agreement, as of the date first above written.
THE DUN & BRADSTREET CORPORATION
by__________________________
Name:
Title:
COGNIZANT CORPORATION
by__________________________
Name:
Title:
ACNIELSEN CORPORATION
by__________________________
Name:
Title:
<PAGE> 1
EXHIBIT 99.4
FORM OF
INTELLECTUAL PROPERTY AGREEMENT
This INTELLECTUAL PROPERTY AGREEMENT ("Agreement") is dated as of
______________, 1996, between and among THE DUN & BRADSTREET CORPORATION, a
Delaware corporation ("D&B"), COGNIZANT CORPORATION, a Delaware corporation
("Cognizant"), and ACNIELSEN CORPORATION, a Delaware corporation ("ACNielsen")
(each a "Party" and collectively, the "Parties").
RECITALS
WHEREAS, D&B, acting through its direct and indirect subsidiaries,
currently owns various intellectual property rights used in connection with a
number of businesses, which businesses are described in the Distribution
Agreement dated as of __________, 1996, among D&B, Cognizant and ACNielsen (the
"Distribution Agreement"); and
WHEREAS, the Parties hereto have determined that this Agreement is
appropriate in order to effectuate the purposes of the Distribution Agreement as
described therein, and in order to promote a clear understanding of their
respective intellectual property rights subsequent to the execution of said
Distribution Agreement and the Distribution (as defined therein) contemplated
thereby;
NOW, THEREFORE, in consideration of the mutual agreements, undertakings
and covenants herein and therein, the sufficiency of which is hereby
acknowledged, the Parties hereby agree as follows:
ARTICLE I. DEFINITIONS
1. Except as may be set forth herein, all defined terms shall have the
meaning set forth in Article I, Section 1.1 of the Distribution Agreement.
2. "Data Services Agreements" shall mean the Data Services Agreements
between and among D&B, Cognizant and ACNielsen.
3. "Infringement" shall mean any unauthorized use or conduct in
violation or derogation of the rights in question.
4. "Intellectual Property" shall mean all intellectual property rights
related to the assets or businesses in question, including without limitation:
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a. any and all rights, privileges and priorities arising under the laws
or treaties of the United States, any state, territory or possession
thereof, any other country or political subdivision or territory
thereof, or the European Community, relating to patents, copyrights,
trade names, trademarks, service marks, mask works, trade secrets,
inventions, databases, names and logos, trade dress, and other
proprietary information and licenses from third persons granting the
right to use any of the foregoing, including all registrations and
applications for any of the foregoing that have been issued by or
filed with the appropriate authorities prior to the Distribution
Date, any common-law rights arising from the use of the foregoing
prior to the Distribution Date, any rights commonly known as
"industrial property rights" or the "moral rights" of authors
relating to the foregoing, and all claims, causes of action, or
other rights arising out of or relating to any actual or threatened
Infringement by any person not a Party to this Agreement accruing,
commencing or occurring prior to the Distribution Date;
b. all computer applications, programs and other software, including
without limitation operating software, network software, firmware,
middleware, design software, design tools, systems documentation and
instructions, except to the extent that they may be more
specifically addressed in the Data Services Agreements; and
c. all cost information, sales and pricing data, customer prospect
lists, supplier records, customer and supplier lists, customer and
vendor data, correspondence and lists, product literature, artwork,
design, development and manufacturing files, vendor and customer
drawings, formulations and specifications, quality records and
reports and other books, records, studies, surveys, reports, plans
and documents.
5. "Intellectual Property Disputes" shall mean any and all
controversies, disputes or claims arising out of, in connection with, or in
relation to the interpretation, performance, nonperformance, validity or breach
of this Agreement or otherwise arising out of, or in any way related to this
Agreement or the Intellectual Property, including, without limitation, any and
all claims based on contract, tort, statute or constitution.
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6. "LLC" shall mean CZT/ACN Trademarks, L.L.C., a Delaware limited
liability company to be jointly owned by Cognizant and ACN pursuant to the LLC
Agreement.
7. "LLC Agreement" shall mean the agreement to be entered into by
Cognizant and ACN substantially in the form of Schedule I.
8. "Nielsen Intellectual Property" shall mean those patents,
trademarks, service marks, registrations and applications therefor identified in
the Schedules described in Article III of this Agreement.
ARTICLE II. OWNERSHIP OF INTELLECTUAL PROPERTY.
General Principles of Allocation and Recognition
Section 2.01. Without limiting any obligation or liability of D&B under
the Distribution Agreement or any Ancillary Agreement, and subject to the
provisions set forth in Article III below, each of the Parties hereto
acknowledges, recognizes and agrees that, after the Distribution, D&B (or
another member of the D&B Group) shall retain all right, title and interest in
all Intellectual Property that (i) originated primarily with the conduct of the
D&B Business or primarily in connection with the D&B Assets; (ii) was obtained
by, or exclusively or primarily for the conduct of, the D&B Business or in
connection with the D&B Assets; (iii) was developed exclusively or primarily for
the conduct of the D&B Business or in connection with the D&B Assets; (iv) arose
from funding by, or exclusively or primarily for the benefit of the conduct of,
the D&B Business or in connection with the D&B Assets; or (v) as of the
Distribution Date is used or held for use exclusively or primarily for the
conduct of the D&B Business or in connection with the D&B Assets. If a conflict
exists between any of the subsections (i) through (iv) of this Section on the
one hand and subsection (v) of this Section on the other hand, then subsection
(v) shall prevail.
Section 2.02. Without limiting any obligation or liability of Cognizant
under the Distribution Agreement or any Ancillary Agreement, and subject to the
provisions set forth in Article III below, each of the Parties hereto
acknowledges, recognizes and agrees that, after the Distribution, Cognizant (or
another member of the Cognizant Group) shall retain all right, title and
interest in all Intellectual Property that (i) originated primarily with the
conduct of the Cognizant Business or primarily in connection with the Cognizant
Assets; (ii) was obtained by, or exclusively or primarily for the conduct of,
the Cognizant Business or in connection with the Cognizant Assets; (iii) was
developed exclusively or primarily for the conduct of the Cognizant Business or
in connection with the Cognizant Assets; (iv) arose from funding by, or
exclusively or primarily
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for the benefit of the conduct of, the Cognizant Business or in connection with
the Cognizant Assets; or (v) as of the Distribution Date is used or held for use
exclusively or primarily for the conduct of the Cognizant Business or in
connection with the Cognizant Assets. If a conflict exists between any of the
subsections (i) through (iv) of this Section on the one hand and subsection (v)
of this Section on the other hand, then subsection (v) shall prevail.
Section 2.03. Without limiting any obligation or liability of ACNielsen
under the Distribution Agreement or any Ancillary Agreement, and subject to the
provisions set forth in Article III below, each of the Parties hereto
acknowledges, recognizes and agrees that, after the Distribution, ACNielsen (or
another member of the ACNielsen Group) shall retain all right, title and
interest in all Intellectual Property that (i) originated primarily with the
conduct of the ACNielsen Business or primarily in connection with the ACNielsen
Assets; (ii) was obtained by, or exclusively or primarily for the conduct of,
the ACNielsen Business or in connection with the ACNielsen Assets; (iii) was
developed exclusively or primarily for the conduct of the ACNielsen Business or
in connection with the D&B Assets; (iv) arose from funding by, or exclusively or
primarily for the benefit of the conduct of, the ACNielsen Business or in
connection with the ACNielsen Assets; or (v) as of the Distribution Date is used
or held for use exclusively or primarily for the conduct of the ACNielsen
Business or in connection with the ACNielsen Assets. If a conflict exists
between any of the subsections (i) through (iv) of this Section on the one hand
and subsection (v) of this Section on the other hand, then subsection (v) shall
prevail.
Section 2.04. Certain Specified Items. Without limiting any obligation
or liability of any Party under the Distribution Agreement or any Ancillary
Agreement, and subject to the provisions set forth in Article III below, each of
the Parties hereto acknowledges, recognizes and agrees that, after the
Distribution, all right, title and interest in all Intellectual Property
relating to and associated with the items identified in Schedule A shall be
owned by or vested in the Party indicated therein. This provision is intended to
supplement the preceding Sections 2.01-2.03 with regard to these specified
items, and should not be construed in any manner that would tend to derogate
from the validity or applicability of the general principles of allocation and
recognition set forth therein. Nevertheless, in the event of conflict between
this provision and Sections 2.01-2.03, this Section 2.04 shall prevail.
Section 2.05. Rights Arising in Future. Subject to the provisions set
forth in Article III below, each of the Parties hereto acknowledges, recognizes
and agrees that, after the Distribution Date, (i) any and all Intellectual
Property created by or on behalf of a Party, including common-law rights related
thereto, shall belong solely and exclusively to such
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Party; and (ii) any and all subsequent ownership, possession and use by each
Party of the Intellectual Property that it will own subsequent to the
Distribution pursuant to the terms of this Agreement (excluding any possession
or use pursuant to license granted by another Party), including common-law
rights related thereto, shall inure solely to such Party's own benefit.
Section 2.06. No Warranties. Each of the Parties hereto understands and
agrees that, except as otherwise expressly provided, no Party hereto is, in this
Agreement or in any other agreement or document contemplated by this Agreement
or otherwise, making any representation or warranty whatsoever regarding the
Intellectual Property, including, without limitation, as to title, value or
legal sufficiency. It is also agreed and understood that any and all
Intellectual Property assets either transferred or retained by the Parties, as
the case may be, shall be "as is, where is".
Section 2.07. Recognition of Non-Party Rights. The recognition among
the Parties of ownership of Intellectual Property rights under Sections
2.01-2.05 of this Agreement is subject to all pre-existing rights, obligations
and restrictions of non-parties to this Agreement as of the Distribution Date.
ARTICLE III. NIELSEN INTELLECTUAL PROPERTY.
PATENTS AND PATENT APPLICATIONS
Section 3.01. Notwithstanding the provisions of Article II of this
Agreement, each of the Parties hereto acknowledges, recognizes and agrees that,
after the Distribution, Cognizant shall have all right, title and interest in,
to and under those patents and patent applications previously owned by ACNielsen
identified in Schedule B, together with all Intellectual Property related
thereto and associated therewith, for the exclusive use and benefit of Cognizant
in connection with the Cognizant Business as it is now or may hereinafter be
conducted anywhere in the world.
Section 3.02. Notwithstanding the provisions of Article II of this
Agreement, each of the parties hereto acknowledges, recognizes and agrees that,
after the Distribution, ACNielsen shall retain all right, title and interest in,
to and under those patents and patent applications identified in Schedule C,
together with all Intellectual Property related thereto and associated
therewith, for the exclusive use and benefit of ACNielsen in connection with the
ACNielsen Business as it is now or may hereinafter be conducted anywhere in the
world.
Section 3.03. Notwithstanding the provisions of Article II of this
Agreement, each of the Parties hereto acknowledges, recognizes and agrees that
NCH Promotional Services, Inc., shall own all right, title and interest in, to
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and under those patents identified in Schedule D, together with all Intellectual
Property related thereto and associated therewith, for the exclusive use and
benefit of NCH Promotional Services, Inc., in connection with its business as it
is now or may hereinafter be conducted anywhere in the world.
TRADEMARKS AND TRADEMARK APPLICATIONS
Section 3.04. Notwithstanding the provisions of Article II of this
Agreement, each of the Parties hereto acknowledges, recognizes and agrees that,
after the Distribution, Cognizant shall have all right, title and interest in,
to and under those trademarks, service marks, registrations and applications
therefor identified in Schedule E, together with all goodwill and Intellectual
Property related thereto and associated therewith, for the exclusive use of
Cognizant in connection with the Cognizant Business as it is now or may
hereinafter be conducted anywhere in the world.
Section 3.05. Notwithstanding the provisions of Article II of this
Agreement, each of the Parties hereto acknowledges, recognizes and agrees that,
after the Distribution, ACNielsen shall have all right, title and interest in,
to and under those trademarks, service marks, registrations and applications
therefor identified in Schedule F, together with all goodwill and Intellectual
Property related thereto and associated therewith, for the exclusive use of
ACNielsen in connection with the ACNielsen Business as it is now or may
hereinafter be conducted anywhere in the world.
Section 3.06. Notwithstanding the provisions of Article II of this
Agreement, each of the Parties hereto acknowledges, recognizes and agrees that
NCH Promotional Services, Inc., shall own all right, title and interest in, to
and under those trademarks, service marks, registrations and applications
therefor identified in Schedule G, together with all goodwill and Intellectual
Property related thereto and associated therewith, for the exclusive use and
benefit of NCH Promotional Services, Inc., in connection with its business as it
is now or may hereinafter be conducted anywhere in the world.
Section 3.07. Notwithstanding the provisions of Article II of this
Agreement, each of the parties hereto acknowledges, recognizes and agrees that,
after the Distribution, all right, title and interest in, to and under those
trademarks, service marks, registrations and applications therefor identified in
Schedule H, together with all goodwill and Intellectual Property related thereto
and associated therewith, shall be owned by the LLC, which shall have sole
responsibility for maintaining and preserving the quality of those trademarks,
service marks, registrations and applications therefor in a manner consistent
with the high standards and reputation for quality associated with the "NIELSEN"
name. The LLC will be organized and governed according to the LLC Agreement,
substantially in the form of
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Schedule I and as it may be amended or modified by Cognizant and ACNielsen
pursuant to its terms, with the fundamental purpose at all times of assisting
both Cognizant and ACNielsen in achieving their legitimate business purposes to
the greatest extent possible while also preserving the integrity of the
trademarks, service marks, registrations and applications therefor owned by it
and minimizing the risk of confusion to any relevant group of consumers for any
product or service associated with any such trademark, service mark,
registration or application therefor. Schedule H also identifies those trademark
and service mark applications that cannot be immediately transferred or assigned
to the LLC under the relevant local law. Ownership of each such application
shall be retained by ACNielsen pursuant to an escrow agreement, in a form valid
and legally enforceable pursuant to the relevant local law, until such
application is granted; at which time the registration and all goodwill and
Intellectual Property related thereto and associated therewith, if any, shall be
transferred to the LLC, as shall be specified in both the LLC Agreement and the
pertinent escrow agreement.
Section 3.08. Reversion of Certain Property. Schedule H also identifies
certain trademarks and service marks that shall be distributed, together with
all goodwill and Intellectual Property related thereto and associated therewith,
by the LLC to either Cognizant or ACNielsen as indicated therein and to the
extent appropriate under the LLC Agreement, in the event that the relevant local
law pursuant to which rights in such trademarks or service marks are granted
should subsequently, in the opinion of counsel to the LLC with expertise in the
relevant local law, both (a) permit the ownership of such trademarks or service
marks by unrelated entities without substantial jeopardy to their validity or
enforceability, and (b) not present a substantial impediment to the future
registration (subject to the other provisions of this Article) by either
Cognizant or ACNielsen of a trademark or service mark incorporating, referring
to or derived from the "NIELSEN" name, if applications for concurrent
registration of such trademarks or service marks were to be made by unrelated
entities. In no event, however, shall any trademark or service mark consisting
of the "NIELSEN" name or the "split-N" symbol, standing alone, be so
distributed, for so long as both Cognizant and ACNielsen shall continue to use
any trademark or service mark anywhere in the world incorporating, referring to
or derived from the "NIELSEN" name.
Section 3.09. Clear Identification of Source. Cognizant and ACNielsen
agree that, subsequent to the Distribution Date, neither Cognizant nor ACNielsen
shall possess or acquire any right to use the "NIELSEN" name or "split-N" symbol
standing alone or by itself in any manner for any purpose, including use of the
name as an Internet domain name or the equivalent or as the name or logo for a
business, corporation, or other legal entity, except as may otherwise be agreed
by and between Cognizant and ACNielsen; provided, however, that both
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Cognizant and ACNielsen may continue to use the "NIELSEN" name or "split-N"
symbol in any usage for which each, respectively, is currently using the name or
symbol, including usage of the name as part of electronic mail or messaging
addresses for its employees using existing systems, during a transitional period
of six months subsequent to the Distribution Date (a "Transitional Use").
Subsequent to the Distribution Date, except for a Transitional Use, any use that
Cognizant or ACNielsen may make of the "NIELSEN" name or "split-N" symbol for
any business purpose, including any use in trade, advertising, publicity,
packaging, or labeling, and including any use of any trademark or service mark
identified in Schedule H or in Schedules E and F that incorporates, refers to,
or is derived from the "NIELSEN" name or "split-N" symbol, shall only be made in
conjunction with other words, names, symbols or logos prominently displayed in
as near proximity thereto as is reasonably feasible and, at minimum, on the same
page, panel, sheet or screen therewith, clearly identifying the source of the
communication, good or service: (a) with regard to Cognizant, as "NIELSEN TV,"
"NIELSEN MEDIA," "NIELSEN MEDIA RESEARCH," or another entity using a name not
incorporating, referring to, or derived from the "NIELSEN" name; and (b) with
regard to ACNielsen, as "ACNIELSEN" or another entity using a name not
incorporating, referring to, or derived from the "NIELSEN" name. In addition, in
the event that ACNielsen enters into any television audience measurement
business in the United States or Canada subsequent to the Distribution Date, its
use of any name incorporating, referring to, or derived from the "NIELSEN" name
in connection with such business shall be subject to the provisions of Schedule
J.
Section 3.10. Limitations on Concurrent Use. The provisions in this
Article shall in no way restrict the rights of Cognizant or ACNielsen to sell
any product or service or enter into any business identical or similar to any
product or service sold, or business conducted by, the other before or after the
Distribution Date. Cognizant and ACNielsen agree, however, that in the event
that either Cognizant or ACNielsen sells any product or service, or enters into
any business, after the Distribution Date in any country that is identical or
substantially similar to those sold or conducted by the other in that country
prior to the Distribution Date, neither Cognizant nor ACNielsen shall use any
name incorporating, referring to or derived from the "NIELSEN" name or the
"split-N" symbol to describe or identify such product, service, or business;
provided that any product, service or business relating to the measurement of
Internet usage or to research and analysis of Internet usage, utilization,
advertising, or purchasing patterns, by businesses or consumers, shall not be
subject to such restriction and shall only be subject to the restrictions set
forth in Section 3.09, and provided further that any product or service that may
in future be sold by ACNielsen in connection with any television audience
measurement business in the United States or Canada shall be subject to both
this restriction and the provisions of Schedule J.
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Section 3.11. Clear Fields. Cognizant and ACNielsen agree that,
subsequent to the Distribution Date, neither Cognizant nor ACNielsen shall use
(except pursuant to license), register or attempt to register any trademark or
service mark (whether registered or not) that has been used (except pursuant to
license), owned or applied for by the other in any country or geographic area as
of the Distribution Date, including but not limited to those trademarks and
service marks identified in Schedules A, F, G and H, in either that country or
geographic area or in any other country or geographic area.
Section 3.12. Notice and Publicity. Prior to or subsequent to the
Distribution, both Cognizant and ACNielsen agree to give or cause to be given,
in each distinct geographic area or line of business in which they intend to
operate or to sell any product or service, such notice and publicity of their
separation and distinct identities as the source of any such business, product
or service as may be reasonable under the circumstances or required by the
relevant local law, where the local law imposes such a duty so to notify and/or
publicize.
Section 3.13. Internet Hyperlinks. Cognizant and ACNielsen agree to
assign and transfer all rights in the existing "nielsen.com" Internet domain
name to the LLC, and to cause the LLC to provide and maintain an Internet or Web
site using that domain name for the purpose of providing and maintaining
"hyperlinks" to the principal Internet or Web sites maintained by both Cognizant
and ACNielsen. In addition, both Cognizant and ACNielsen agree to provide and
maintain in any Internet or Web site maintained by Cognizant or ACNielsen,
respectively, for a period of two (2) years subsequent to the Distribution Date,
a hyperlink to the principal Internet or Web site maintained by the other. All
such hyperlinks shall be displayed together with appropriate text indicating the
nature and purpose of the hyperlink and describing in summary the separation and
distinct identities of each as sources of their respective goods and services.
Cognizant and ACNielsen further agree to cooperate reasonably in the
identification of appropriate addresses and/or domain names and in resolving
technical issues necessary to provide and maintain such hyperlinks.
Section 3.14. Assignments and Sublicenses; Remedies for Improper Use.
Cognizant and ACNielsen agree that any form of transfer of, or grant of rights
in or to, any trademark or service mark (whether registered or not)
incorporating, referring to or derived from the "NIELSEN" name or "split-N"
symbol by either Cognizant or ACNielsen (the "Granting Party") to a non- party
to this Agreement shall be made explicitly subject to all pertinent provisions
of Article III of this Agreement concerning the Granting Party's own use of any
such trademark or service mark, and notice shall be given by the Granting Party
to the Party other than the Granting Party (the "Interested Party") of any such
transfer or grant of rights. Any such grant of rights that is not an outright
transfer, assignment, sale or disposition
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of all of the Granting Party's rights and interests in any such trademark or
service mark, including any sub-license, consent or permission to use, to a
non-party to this Agreement (a "Grantee") shall be pursuant to a written
instrument that shall both (a) explicitly bind the Grantee to all pertinent
provisions of this Agreement restricting the Granting Party's own use of any
such trademark or service mark, and (b) explicitly provide that the Granting
Party may revoke the grant of rights, in its sole discretion, upon not more than
thirty days' notice to the Grantee. It shall be the obligation of the Granting
Party to use its best efforts to police the use made of any such trademark or
service mark by a Grantee. If the Granting Party reasonably believes that a
Grantee is using any such trademark or service mark in a manner that is (c)
inconsistent with the terms of this Agreement or (d) injurious to the high
standards and reputation for quality associated with the "NIELSEN" name (an
"Improper Use"), the Granting Party shall promptly so notify both the Grantee
and the Interested Party. If the Grantee does not thereafter correct or
terminate the Improper Use within thirty days, the Granting Party shall revoke
the grant of rights to the Grantee, and shall give notice thereof to the
Interested Party. If the Interested Party reasonably believes that the use made
by a Grantee of rights granted by the Granting Party is an Improper Use, it may
so notify the Granting Party, which shall thereupon take appropriate measures to
investigate the use in question and shall notify the Interested Party within
fourteen (14) days as to whether it also reasonably believes that the Grantee is
engaging in an Improper Use. If the Granting Party, after receiving notice from
the Interested Party, also reasonably believes that the Grantee is engaging in
an Improper Use, it shall take all appropriate measures to correct or terminate
the Improper Use, including the giving of notice of revocation to the Grantee,
if necessary. If the Granting Party (x) gives notice to the Interested Party
that it does not reasonably believe that a Grantee is engaging in an Improper
Use, or (y) fails to take appropriate measures to correct or terminate an
Improper Use after giving notice to the Interested Party that it reasonably
believes a Grantee is engaging in an Improper Use, or (z) is unable to correct
or terminate an Improper Use by a Grantee within sixty (60) days of the first
notice of suspected Improper Use given by either the Granting Party or the
Interested Party, the Interested Party may both take such legal measures it
deems appropriate against the Grantee and invoke its rights against the Granting
Party in the event of an Intellectual Property Dispute as defined in this
Agreement.
Section 3.15. Duty to Avoid Confusion. The Parties hereto confirm their
belief that likelihood of confusion will not result from the Parties' use of
their respective trademarks and service marks as provided for in this Agreement,
due to the differences in the environments in which and the customers to whom
the goods and services of the Parties associated therewith are primarily offered
and sold. The Parties further believe that any potential future confusion will
be prevented under the terms
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of this Agreement. Furthermore, in order to enable and permit each other to
continue using and to register their respective trademarks and service marks and
to ensure that there is no confusion in any relevant marketplace between them,
the Parties agree to use their best efforts to avoid actual or potential
confusion arising from their use, to advise any other affected Party of any
instance of actual or potential confusion that comes to a Party's attention
concerning use of their respective trademarks and service marks, to take all
such steps as may be appropriate and necessary to remedy any actual or potential
confusion caused by their actions, and to cooperate with each other in good
faith to avoid and prevent actual or potential confusion.
Section 3.16. Consent to Registration. Subject to the other provisions
of this Article, each Party agrees that any other Party may use a copy of this
Agreement to evidence the other Party's express consent to registration of the
Party's trademarks or service marks, if necessary to obtain or maintain a
registration of such mark in the United States Patent and Trademark Office or
any other pertinent governmental agency in any country or group of countries;
and further agrees to take any other necessary action that any other Party may
reasonably request to express or confirm such consent.
Section 3.17. Transfer at or Prior to Distribution. The Parties agree
to execute all such documents, and to take all such actions, prior to or at the
Distribution as they may deem to be necessary to achieve or confirm the
respective ownership of rights in the Nielsen Intellectual Property as
contemplated in this Article to be effective upon the Distribution Date.
Section 3.18. Construction. In the event of any inconsistency between
Article III and Article II of this Agreement with respect to the Nielsen
Intellectual Property, then Article III shall prevail.
ARTICLE IV. FURTHER ASSURANCES AND COOPERATION.
Section 4.01. Without limiting the obligations of any party under
Article III of this Agreement, each Party hereto shall execute and deliver, or
cause to be executed and delivered, as and when reasonably requested by any
other Party hereto, all such documents and instruments and shall take, or cause
to be taken, all such further or other actions as such other Party may
reasonably deem necessary or desirable to effect the purposes of this Agreement
and/or to clarify or confirm the respective ownership rights of the Parties as
provided for in this Agreement.
Section 4.02. Without limiting the obligations of any party under
Article III of this Agreement, each Party hereto shall reasonably cooperate with
the other Parties with respect to
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any government filings or any other actions reasonably necessary to maintain and
enforce the rights to the Intellectual Property covered by this Agreement.
Section 4.03. Without limiting the obligations of any Party under
Article III of this Agreement, each Party hereto shall, upon the prior written
request of another Party, arrange for the provision of appropriate copies of
Records in its possession or control (or the originals thereof if the Party
making the request has a reasonable need for such originals) created prior to
the Distribution Date and relating to the Intellectual Property, as soon as
reasonably practicable following the receipt of such request, but only to the
extent such items are not already in the possession or control of the requesting
Party.
ARTICLE V. INDEMNIFICATION.
Section 5.01. Article III of the Distribution Agreement shall govern
the rights of D&B, Cognizant and ACNielsen with respect to indemnification for
any and all Indemnifiable Losses incurred by any Party related to the
Intellectual Property. The term "D&B Liabilities" in that Article shall be read
to include all Liabilities relating to the Intellectual Property to be owned by
D&B pursuant to this Agreement. The term "Cognizant Liabilities" in that Article
shall be read to include all Liabilities relating to the Intellectual Property
to be owned by Cognizant pursuant to this Agreement. The term "ACNielsen
Liabilities" in that Article shall be read to include all Liabilities relating
to the Intellectual Property to be owned by ACNielsen pursuant to this
Agreement. The term "Third Party Claim" in that Article shall be read to include
all claims or demands made by a non-party to this Agreement concerning the
Intellectual Property, including but not limited to claims for Infringement
accruing or arising before the Distribution Date.
ARTICLE VI. DISPUTE RESOLUTION.
Section 6.01. Article VI of the Distribution Agreement shall govern the
rights of D&B, Cognizant and ACNielsen with respect to dispute resolution. The
term "Agreement Dispute" in that Article shall be read to include all
Intellectual Property Disputes.
ARTICLE VII. MISCELLANEOUS.
Section 7.01. Complete Agreement; Construction. This Agreement, the
Schedules thereto, the Distribution Agreement, the LLC Agreement and the Data
Services Agreements shall constitute the entire agreement between the Parties
with respect to the subject matter hereof and shall supersede all previous
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negotiations, commitments and writings with respect to such subject matter. In
the event of any inconsistency between this Agreement and any Schedule thereto,
the Schedule shall prevail. In the event of any inconsistency between this
Agreement and the LLC Agreement, this Agreement shall prevail. Other than
Sections 2.7, 2.14 and 4.5 and Article VI of the Distribution Agreement, which
shall prevail over any inconsistent or conflicting provisions in this Agreement
notwithstanding any other provisions in this Agreement to the contrary, in the
event and to the extent that there shall be an inconsistency between the
provisions of this Agreement and the provisions of the Distribution Agreement,
this Agreement shall prevail.
Section 7.02. Other Agreements. This Agreement is not intended to
address, and should not be interpreted to address, the matters specifically and
expressly covered by the Distribution Agreement and/or other Ancillary
Agreements.
Section 7.03. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the Parties and delivered to the other Parties.
Section 7.04. Survival of Agreements. Except as otherwise contemplated
by this Agreement, all covenants and agreements of the Parties contained in this
Agreement shall survive the Distribution Date.
Section 7.05. Expenses. Except as otherwise set forth in this
Agreement, the LLC Agreement, the Distribution Agreement or any Ancillary
Agreement, all costs and expenses incurred on or prior to the Distribution Date
(whether or not paid on or prior to the Distribution Date) in connection with
the preparation, execution, delivery and implementation of this Agreement and
the consummation of the transactions contemplated thereby shall be charged to
and paid by D&B. Except as otherwise set forth in this Agreement and the LLC
Agreement, each Party shall bear its own costs and expenses related to the
Intellectual Property, including the performance of any obligation arising under
Articles III and IV of this Agreement.
Section 7.06. Notices. All notices and other communications hereunder
shall be in writing and hand delivered or mailed by registered or certified mail
(return receipt requested) or sent by any means of electronic message
transmission with delivery confirmed (by voice or otherwise) to the Parties at
the following addresses (or at such other
<PAGE> 14
14
addresses for a Party as shall be specified by like notice) and will be deemed
given on the date on which such notice is received:
To The Dun & Bradstreet Corporation:
One Diamond Hill Road
Murray Hill, NJ 07974
Telecopy: (908) 665-5803
Attn: General Counsel
To Cognizant Corporation:
200 Nyala Farms
Westport, Connecticut 06880
Telecopy: (203) 222-4201
Attn: General Counsel
To ACNielsen Corporation:
177 Broad Street
Stamford, Connecticut 06901
Telecopy: (203) 961-3190
Attn: General Counsel
Section 7.07. Waivers. The failure of any Party to require strict
performance by any other Party of any provision in this Agreement will not waive
or diminish that Party's right to demand strict performance thereafter of that
or any other provision hereof.
Section 7.08. Amendments. Subject to the terms of Section 7.11 hereof,
this Agreement may not be modified or amended except by an agreement in writing
signed by each of the Parties hereto.
Section 7.09. Assignment. This Agreement shall not be assignable, in
whole or in part, directly or indirectly, by any Party hereto without the prior
written consent of the other Parties hereto, and any attempt to assign any
rights or obligations arising under this Agreement (except as set forth in
Section 3.14) without such consent shall be void.
Section 7.10. Successors and Assigns. The provisions to this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the Parties
and their respective successors and permitted assigns.
<PAGE> 15
15
Section 7.11. Termination. This Agreement may be terminated and may be
amended, modified or abandoned at any time prior to the Distribution by and in
the sole discretion of D&B without the approval of Cognizant or ACNielsen or the
shareholders of D&B. In the event of such termination, no Party shall have any
liability of any kind to any other Party or any other person. After the
Distribution, this Agreement may not be terminated except by an agreement in
writing signed by the Parties.
Section 7.12. Subsidiaries. Each of the Parties hereto shall cause to
be performed, and hereby guarantees the performance of, all actions, agreements
and obligations set forth herein to be performed by any Subsidiary of such Party
or by any entity that is contemplated to be a Subsidiary of such Party on and
after the Distribution Date.
Section 7.13. Third Party Beneficiaries. This Agreement is solely for
the benefit of the Parties hereto and their respective Subsidiaries and
Affiliates and should not be deemed to confer upon third Parties any remedy,
claim, liability, reimbursement, claim of action or other right in excess of
those existing without reference to this Agreement.
Section 7.14. Title and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
Section 7.15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 7.16. Consent to Jurisdiction. Without limiting the provisions
of Article VI hereof, each of the Parties irrevocably submits to the exclusive
jurisdiction of (a) the Supreme Court of the State of New York, New York County,
and (b) the United States District Court for the Southern District of New York,
for the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby. Each of the Parties agrees to
commence any action, suit or proceeding relating hereto either in the United
States District Court for the Southern District of New York or if such suit,
action or other proceeding may not be brought in such court for jurisdictional
reasons, in the Supreme Court of the State of New York, New York County. Each of
the Parties further agrees that service of any process, summons, notice or
document by U.S. registered mail to such Party's respective address set forth
above shall be effective service of process for any action, suit or proceeding
in New York with respect to any matters to which it has submitted to
jurisdiction in this Section 7.16. Each of the Parties irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in
<PAGE> 16
16
(i) the Supreme Court of the State of New York, New York County, or (ii) the
United States District Court for the Southern District of New York, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such action, suit or proceeding brought in any such
court has been brought in an inconvenient forum.
Section 7.17. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The Parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
<PAGE> 17
17
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the day and year first above written.
THE DUN & BRADSTREET CORPORATION
By: _____________________________
Name:
Title:
COGNIZANT CORPORATION
By:_____________________________
Name:
Title:
ACNIELSEN CORPORATION
By:______________________________
Name:
Title:
<PAGE> 1
EXHIBIT 99.5
FORM OF SHARED TRANSACTION SERVICES AGREEMENT
BETWEEN
[SERVICE PROVIDER]
AND
[RECIPIENT]
DATED AS OF ___________________
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 1. DEFINITIONS AND CONSTRUCTION................................. 1
1.01 Definitions............................................... 1
1.02 References................................................ 3
1.03 Headings.................................................. 3
1.04 Interpretation of Documents............................... 4
ARTICLE 2. TERM OF AGREEMENT............................................ 4
ARTICLE 3. SERVICES..................................................... 4
3.01 Services.................................................. 4
3.02 Priority.................................................. 4
3.03 Reports................................................... 4
3.04 Additional Services....................................... 4
3.05 Facilities................................................ 5
3.06 Tax and Accounting Work Group............................. 5
ARTICLE 4. RECIPIENT OBLIGATIONS........................................ 5
4.01 Recipient Hardware........................................ 5
4.02 Generally................................................. 6
4.03 Associated Equipment...................................... 6
4.04 Security.................................................. 6
4.05 Business Planning......................................... 6
ARTICLE 5. PROPRIETARY RIGHTS........................................... 7
5.01 Recipient Software........................................ 7
5.02 Service Provider Software................................. 7
ARTICLE 6. DATA......................................................... 7
6.01 Form of Data.............................................. 7
6.02 Ownership of Data......................................... 7
6.03 Ownership of Media........................................ 7
6.04 Responsibility for Data................................... 7
ARTICLE 7. FEES......................................................... 8
7.01 Fees...................................................... 8
7.02 Time of Payment........................................... 8
7.03 Substantial Change in Volume.............................. 8
7.04 Taxes..................................................... 8
7.05 Late Payments............................................. 8
7.06 Termination Fees.......................................... 8
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 8. AUDITS....................................................... 9
ARTICLE 9. CONFIDENTIALITY.............................................. 9
ARTICLE 10. INDEMNITY................................................... 9
ARTICLE 11. DISCLAIMER AND LIMITATION OF LIABILITY...................... 10
11.01 DISCLAIMER............................................... 10
11.02 Limitation of Liability.................................. 10
ARTICLE 12. DISPUTE RESOLUTION.......................................... 10
12.01 Negotiation.............................................. 10
12.02 Arbitration.............................................. 10
12.03 Continuity of Services and Performance................... 11
ARTICLE 13. CONTINUED PROVISION OF SERVICES............................. 12
13.01 Force Majeure............................................ 12
13.02 Disaster Recovery........................................ 12
ARTICLE 14. TERMINATION................................................. 12
14.01 For Convenience.......................................... 12
14.02 Effect of Termination.................................... 12
ARTICLE 15. TERMINATION ASSISTANCE SERVICES............................. 12
ARTICLE 16. MISCELLANEOUS PROVISIONS.................................... 13
16.01 No Waivers............................................... 13
16.02 Consents, Approvals and Requests......................... 13
16.03 Partial Invalidity....................................... 13
16.04 Notices.................................................. 13
16.05 Relationship............................................. 14
16.06 Governing Law............................................ 14
16.07 Covenant of Further Assurances........................... 14
16.08 Assignment............................................... 14
16.09 Entire Understanding..................................... 14
16.10 Successors............................................... 14
16.11 Amendments............................................... 15
16.12 Survival................................................. 15
16.13 Counterparts............................................. 15
16.14 Good Faith and Fair Dealing.............................. 15
16.15 Third Party Beneficiaries................................ 15
</TABLE>
ii
<PAGE> 4
SCHEDULES
Schedule A Services and Capacity Levels
Schedule B Service Levels
Schedule C Reports
Schedule D Recipient Software
Schedule E Fees
Schedule F Extended Term Charges
Schedule G Real Estate and Facilities Agreements
Schedule H Service Provider Software
Schedule I Termination Fees
Schedule J Disaster Recovery Plan
iii
<PAGE> 5
SHARED TRANSACTION SERVICES AGREEMENT (this "Agreement"),
dated as of ___________, 1996 (the "Agreement Date"), by and between [SERVICE
PROVIDER], a ___________ corporation ("Service Provider") and [RECIPIENT], a
___________ corporation ("Recipient").
W I T N E S S E T H:
WHEREAS, The Dun & Bradstreet Corporation shall be separated
into three separate and independent businesses by means of a spin-off (the
"Distribution"), pursuant to a Distribution Agreement dated as of
________________, 1996 (the "Distribution Agreement"), among The Dun &
Bradstreet Corporation ("D&B"), Cognizant Corporation ("Cognizant") and
ACNielsen Corporation ("ACN") (collectively, called the "Newcos"); and
WHEREAS, the target date of the Distribution is October 1,
1996, and the actual date that the Distribution becomes effective shall be
called the "Distribution Date"; and
WHEREAS, prior to the Distribution Date, Service Provider has
provided and Recipient has purchased, pursuant to various written and oral
agreements, the Shared Transaction Services and the Other Services described in
this Agreement; and
WHEREAS, in order to facilitate the orderly continuation of
Recipient's business for a transitional period after the Distribution Date,
Service Provider has agreed to provide to Recipient, and Recipient has agreed to
purchase from Service Provider, the Shared Transaction Services and the Other
Services described in this Agreement.
NOW, THEREFORE, in consideration of the agreements of Service
Provider and Recipient set forth below, Service Provider and Recipient agree as
follows:
ARTICLE 1. DEFINITIONS AND CONSTRUCTION.
1.01 Definitions. The following defined terms shall have the
meanings specified below:
(1) "ACN" shall have the meaning set forth in the Recitals.
(2) "Additional Services" shall mean those services in addition to the
Services requested by Recipient pursuant to Section 3.05.
(3) "Agreement" shall have the meaning set forth in the Heading.
<PAGE> 6
2
(4) "Agreement Date" shall have the meaning set forth in the Heading.
(5) "Agreement Disputes" shall have the meaning set forth in Section 12.01.
(6) "Alternative Provider" shall mean any alternative external service
provider selected by Recipient for the provision of services similar to
the Services following the expiration or termination of this Agreement.
(7) "Cognizant" shall have the meaning set forth in the Recitals.
(8) "D&B" shall have the meaning set forth in the Recitals.
(9) "Distribution" shall have the meaning set forth in the Recitals.
(10) "Distribution Agreement" shall have the meaning set forth in the
Recitals.
(11) "Distribution Date" shall have the meaning set forth in the Recitals.
(12) "Extended Term" shall have the meaning set forth in Article 2.
(13) "Fees" shall mean those charges for the Services set forth in Schedule
E.
(14) "Initial Term" shall have the meaning set forth in Article 2.
(15) "Licensed Documentation" shall mean all documentation that is used in
connection with the operation of the Licensed Software.
(16) "Licensed Software" shall mean the software described in Schedule D.
(17) "Newcos" shall have the meaning set forth in the Recitals.
(18) "Other Services" shall mean the services described in Schedule A-2.
(19) "Parties" shall mean Service Provider and Recipient, collectively.
(20) "Party" shall mean either of Service Provider or Recipient, as the case
may be.
(21) "Recipient" shall have the meaning set forth in the Heading.
(22) "Recipient Data" shall mean all data or information supplied by
Recipient to Service Provider for processing or transmission in
connection with the Services.
<PAGE> 7
3
(23) "Rules" shall have the meaning set forth in Section 12.02.
(24) "Service Provider" shall have the meaning set forth in the Heading.
(25) "Service Provider Service Location" shall mean any Service Provider
service location from which Service Provider provides or performs the
Services. The Service Provider Service Locations as of the Agreement
Date are located at _________________.
(26) "Service Provider Software" shall mean the software and related
documentation (a) owned, acquired or developed by Service Provider that
is used in connection with the provision of the Services or (b)
licensed or leased by Service Provider from a third party which is used
in connection with the provision of the Services. The Service Provider
Software includes the software set forth in Schedule H.
(27) "Services" shall mean the Shared Transaction Services and the Other
Services, collectively.
(28) "Shared Transaction Services" shall mean the services described in
Schedule A-1.
1.02 References. In this Agreement and the Schedules to this
Agreement:
(1) the Schedules to this Agreement shall be incorporated in and deemed
part of this Agreement and all references to this Agreement shall
include the Schedules to this Agreement; and
(2) references to the word "including" or the phrase "e.g." in this
Agreement shall mean "including, without limitation".
1.03 Headings. The article and section headings and the table
of contents are for reference and convenience only and shall not be considered
in the interpretation of this Agreement.
1.04 Interpretation of Documents. In the event of a conflict
between this Agreement and the terms of any of the Schedules, the terms of this
Agreement shall prevail.
ARTICLE 2. TERM OF AGREEMENT.
<PAGE> 8
4
The initial term of this Agreement shall commence on the
Distribution Date and shall continue until 12:00 midnight (Eastern Standard
Time) on December 31, 1997 (the "Initial Term"), unless terminated earlier
pursuant to Section 14.01; provided, however, that Recipient may, upon notice to
Service Provider at least 120 days prior to the expiration of the Initial Term,
extend the term of this Agreement for a period to be specified in such notice of
up to one additional 12-month period (the "Extended Term") at the charges set
forth in Schedule F.
ARTICLE 3. SERVICES.
3.01 Services. Service Provider shall provide to Recipient,
and Recipient shall purchase from Service Provider, (1) the Shared Transaction
Services and (2) the Other Services. The Services shall be of substantially the
same type, quality and utilization levels and provided with substantially the
same degree of care and diligence as such services had been provided to
Recipient during the period prior to the Distribution Date. The Services shall
be provided at the levels of service set forth in Schedule B.
3.02 Priority. Service Provider shall provide the Services to
Recipient with respect to prioritizing, processing and recovery in accordance
with Schedule B.
3.03 Reports. Service Provider shall provide Recipient with
the reports set forth in Schedule C according to the schedule set forth in
Schedule C.
3.04 Additional Services. Service Provider shall provide to
Recipient, upon commercially reasonable terms and at a commercially reasonable
charge, the Additional Services requested by Recipient. Service Provider and
Recipient shall execute a written amendment to this Agreement setting forth any
additional terms and conditions applicable to such Additional Services. In
connection with its receipt of the Services, Recipient may purchase or lease
upgrades to the machines used to provide the Services and request that Service
Provider install such upgrades; provided, however, that, in the event such
upgrade requires Service Provider to incur any incremental expense or provide
additional resources, Recipient shall (a) obtain Service Provider's consent
prior to such installation and (b) be responsible for the payment of such
incremental expense or the costs of such additional resources. Except as
otherwise provided in this Agreement, Service Provider shall not be obligated to
(i) purchase or otherwise acquire any hardware or software in addition to that
used before the Distribution Date in connection with the Services or (ii)
provide any services to Recipient other than the Services.
<PAGE> 9
5
3.05 Facilities. Certain matters relating to real estate
matters and the use of facilities shared by D&B and the Newcos subsequent to the
Distribution Date are set forth in Schedule G.
3.06 Tax and Accounting Work Group. Each Party shall appoint a
member of its staff to provide such assistance as may be necessary to address
issues relating to tax periods prior to the Distribution Date. Each Party shall
maintain accurate and complete accounting and tax records relating to such tax
periods.
ARTICLE 4. RECIPIENT OBLIGATIONS.
4.01 Recipient Hardware. For Recipient owned or leased
equipment, Recipient shall:
(1) maintain all equipment, software and operational features at the same
level that was provided immediately prior to the Distribution Date, and
shall receive maintenance services from those third party service
providers that provided maintenance services to Recipient immediately
prior to the Distribution Date; and
(2) upon notice from Service Provider (which notice shall include Service
Provider's estimate of the costs, if any, of the enhancement or
modification) as soon as possible after it has been determined that an
enhancement or modification is necessary, but in any event upon at
least 30 days' notice, enhance or modify such equipment, software and
operational features as may be necessary to remain compatible with any
systems used by Service Provider in connection with the Services;
provided, however, in the event such enhancement or modification
results in Service Provider incurring any incremental expense or
providing any additional resources, Recipient shall be responsible for
the payment of such incremental expense or the costs of such additional
resources;
4.02 Generally. Recipient shall:
(1) comply with any reasonable instructions provided by Service Provider
that are necessary for Service Provider to adequately provide the
Services;
(2) comply with all applicable standards and procedures applicable to the
Service Provider Service Location;
(3) promptly report any operational or system problem to Service Provider;
<PAGE> 10
6
(4) maintain a business recovery plan detailing the requirements of
Recipient in the event of the occurrence of a disaster affecting the
Services and periodically test such plan; and
(5) provide the working environment, including space, furniture,
electricity, telephones and other infrastructure requirements for
Service Provider's employees located at Recipient's premises.
4.03 Associated Equipment. Except to the extent otherwise
provided for herewith in any Schedule, Recipient shall maintain and be
responsible for all costs (including personnel, maintenance and repair)
associated with communications equipment (including terminals, communications
hardware, modems and telephone lines) that Recipient owns or operates and that
are not located at the Service Provider Service Location necessary to provide
the Services or to transmit the Recipient Data for processing at the Service
Provider Service Location.
4.04 Security. Recipient shall ensure that user accounts shall
only be used by the person for whom such account was created or other authorized
personnel. Recipient shall promptly inform Service Provider of any individual
who is no longer authorized to use the Services.
4.05 Business Planning. During the Initial Term and, if any,
the Extended Term, Recipient shall, within a reasonable period of time after
such plans are available, provide Service Provider with a detailed plan
identifying any changes in Recipient's business that may affect the Services or
result in additional capacity being required in order for Service Provider to
provide the Services to Recipient. Recipient's business plan provided to Service
Provider pursuant to this Section 4.05 shall be deemed confidential information
of Recipient.
ARTICLE 5. PROPRIETARY RIGHTS.
5.01 Recipient Software. Recipient shall grant a
non-exclusive, non-transferable, royalty-free right for Service Provider, solely
in connection with providing the Services, to (1) have access to and (a) operate
the Licensed Software set forth in Schedule D and (b) use the Licensed
Documentation, and (2) use any other hardware, software and documentation owned
by, leased by or licensed to Recipient that is necessary to allow Service
Provider to perform the Services. Recipient shall obtain any consents or
approvals necessary in connection with Service Provider's use of the Licensed
Software, the Licensed Documentation and any other such hardware, software and
documentation.
<PAGE> 11
7
5.02 Service Provider Software. All Service Provider Software
is, or shall be, and shall remain, the exclusive property of Service Provider or
its third party licensor and Recipient shall have no rights or interests to the
Service Provider Software, except as described in this Section 5.02. Service
Provider shall obtain any consents or approvals necessary in connection with
Service Provider's use of the Service Provider Software to provide the Services
to Recipient.
ARTICLE 6. DATA.
6.01 Form of Data. All data submitted by Recipient to Service
Provider in connection with the Services shall be in the form substantially
similar to that submitted before the Distribution Date, unless otherwise agreed
to in writing by the parties.
6.02 Ownership of Data. The Recipient Data is and shall remain
the property of Recipient or its customers.
6.03 Ownership of Media. Unless furnished to Service Provider
by Recipient, all media upon which Recipient Data is stored is and shall remain
the property of Service Provider. Recipient may, upon Service Provider's
consent, (1) provide Service Provider with a replacement for the media upon
which the Recipient Data is stored or (2) purchase such media from Service
Provider at the price specified by Service Provider.
6.04 Responsibility for Data. Recipient is responsible from
the Agreement Date for (1) the accuracy and completeness of the data submitted
by Recipient in connection with the Services and (2) any errors in and with
respect to data obtained from Service Provider because of any inaccurate or
incomplete data submitted by Recipient to Service Provider.
ARTICLE 7. FEES.
7.01 Fees. Recipient shall pay to Service Provider the fees
set forth in Schedule E in respect of each of the Services.
7.02 Time of Payment. The Fees shall be paid by Recipient
monthly in arrears on or before the first business day immediately following the
end of each whole or partial calendar month of the Initial Term and, if any, the
Extended Term.
7.03 Substantial Change in Volume. In the event that
Recipient's use of a Service increases above that set forth in Schedule A for
such Service, Service Provider shall determine whether any additional hardware
or software is necessary
<PAGE> 12
8
in order for Service Provider to provide the Service and, in the event that
Service Provider and Recipient determine, pursuant to this Section 7.03, that
additional hardware or software is required, (1) Service Provider shall acquire,
upon Recipient's request, such additional hardware or software on behalf of
Recipient and Recipient shall pay to Service Provider or to the supplier or
third party lessor, as may be applicable, the purchase or lease fees in respect
of such additional hardware or software, (2) Service Provider shall implement an
appropriate increase to the Fees and (3) the Parties shall establish a mechanism
for determining the costs to Service Provider of maintaining such additional
hardware or software beyond the Initial Term and, if any, the Extended Term and
Recipient shall pay such costs to Service Provider upon the expiration or
termination of this Agreement. Except as otherwise agreed in writing by the
Parties, all rights in and title to any hardware or software acquired by Service
Provider on behalf of Recipient and paid for by Recipient shall belong to
Recipient.
7.04 Taxes. Recipient shall pay any value-added tax and any
tariff, duty, export or import fee, sales tax, use tax, service tax or other tax
or charge subsequently imposed by any government or government agency on
Recipient or Service Provider with respect to the Services or the execution or
performance of this Agreement.
7.05 Late Payments. Any fees or payments owing to Service
Provider pursuant to this Agreement that are not paid when due shall bear
interest at the rate of _______ percent per month, but in no event to exceed the
highest lawful rate of interest, calculated from the date such amount was due
until the date payment is received by Service Provider.
7.06 Termination Fees. Upon the termination of this Agreement,
Recipient shall pay to Service Provider the fees set forth in Schedule I.
ARTICLE 8. AUDITS.
Recipient shall have the right during normal business hours
and upon reasonable advance notice, to review the computer printouts and reports
and other records of Service Provider to the extent such books and records
relate to the provision by Service Provider of the Services. Any such review
shall be conducted at Recipient's sole expense.
ARTICLE 9. CONFIDENTIALITY.
Each of the Parties shall not use or permit the use of
(without the prior consent of the other) and shall keep, and shall cause its
consultants and advisors
<PAGE> 13
9
to keep, confidential all information concerning the other Party in its
possession, its custody or under its control (except to the extent that (1) such
information has been in the public domain through no fault of such Party or (2)
such information has been later lawfully acquired from other sources by such
Party or (3) this Agreement or any other agreement entered into pursuant to this
Agreement permits the use or disclosure of such information) to the extent such
information (a) relates to the period up to the Distribution Date or (b) is
obtained in the course of providing or receiving the Services pursuant to this
Agreement, and each Party shall not (without the prior consent of the other)
otherwise release or disclose such information to any other person, except such
Party's auditors and attorneys, unless compelled to disclose such information by
judicial or administrative process or unless such disclosure is required by law
and such Party has used commercially reasonable efforts to consult with the
other Party prior to such disclosure.
ARTICLE 10. INDEMNITY.
Each Party agrees to indemnify and hold harmless the other
Party in respect of all claims, costs, expenses, damages and liabilities
(including reasonable attorney's fees) arising from the gross negligence or
willful misconduct of the employees, agents or other representatives of the
indemnifying Party after the Agreement Date or the breach of such Party's
covenants or other obligations under this Agreement. In no event shall either
Party have any liability to the other Party for any claims, losses, damages,
judgments, costs or expenses which the other Party may suffer or incur as a
result of injuries to personnel of such other Party or loss or theft or damage
to any personal property of such other Party at the Service Provider Service
Location, except as provided in the foregoing sentence.
ARTICLE 11. DISCLAIMER AND LIMITATION OF LIABILITY.
11.01 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF THE
SERVICES, THE LICENSED SOFTWARE, THE SERVICE PROVIDER SOFTWARE OR THE LICENSED
DOCUMENTATION, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
11.02 Limitation of Liability. Recipient acknowledges that the
Services are provided by Service Provider (1) at the request of Recipient in
order to accommodate the Distribution, (2) at Service Provider's cost and that
no profit is being made by Service Provider and (3) with the expectation that
Service Provider is not assuming any financial or operational risks, including
those usually assumed by a service provider. Accordingly, Recipient agrees that
Service Provider shall not
<PAGE> 14
10
be liable for any direct, indirect, special, incidental or consequential
damages, including lost profits or savings, whether or not such damages are
foreseeable, or for any third party claims relating to the Services or Service
Provider's performance under this Agreement.
ARTICLE 12. DISPUTE RESOLUTION.
12.01 Negotiation. In the event of a controversy, dispute or
claim arising out of, or in connection with, or in relation to the
interpretation, performance, nonperformance, validity or breach of this
Agreement or otherwise arising out of, or in any way related to this Agreement
or the transactions contemplated hereby, including any claim based on contract,
tort, statute or constitution (collectively, "Agreement Disputes"), the general
counsels of the Parties shall negotiate in good faith for a reasonable period of
time to settle such Agreement Dispute, provided such reasonable period shall
not, unless otherwise agreed by the Parties in writing, exceed 30 days from the
time the Parties began such negotiations; provided further, that in the event of
any arbitration in accordance with Section 12.02, 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 to which such Agreement
Dispute relates shall not be deemed to have passed until such Agreement Dispute
has been resolved.
12.02 Arbitration. If after such reasonable period such
general counsels are unable to settle such Agreement Dispute (and, in any event,
unless otherwise agreed in writing by the Parties, after 60 days have elapsed
from the time the Parties began such negotiations), such Agreement Dispute shall
be determined, at the request of a Party, by arbitration conducted in
___________, before and in accordance with the then-existing International
Arbitration Rules of the American Arbitration Association (the "Rules"). In any
dispute between the Parties, the number of arbitrators shall be three. Any
judgment or award rendered by the arbitrators shall be final, binding and
nonappealable (except on grounds specified in 9 U.S.C. Section 10(a), as in
effect on the Agreement Date). If the Parties are unable to agree on the
arbitrators, the arbitrators shall be selected in accordance with the Rules. Any
controversy concerning whether an Agreement Dispute is an arbitrable Agreement
Dispute, whether arbitration has been waived, whether an assignee of this
Agreement is bound to arbitrate, or as to the interpretation or enforceability
of this Article 12 shall be determined by the arbitrators. In resolving any
dispute, the Parties intend that the arbitrators apply the substantive laws of
_____________, without regard to the choice of law principles thereof. The
Parties intend that the provisions to arbitrate set forth in this Section 12.02
be valid, enforceable and irrevocable. The undersigned agree to comply with any
award made in any such arbitration proceedings that has become
<PAGE> 15
11
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 (1)
_______________________, or (2) ________________________________. The
arbitrators shall be entitled, if appropriate, to award any remedy in such
proceedings, including monetary damages, specific performance and all other
forms of legal and equitable relief; provided, however, the arbitrators shall
not be entitled to award punitive damages. Without limiting the provisions of
the Rules, unless otherwise agreed in writing by the Parties or as permitted by
this Agreement, the undersigned shall keep confidential all matters relating to
the arbitration or the award, provided such matters may be disclosed (a) to the
extent reasonably necessary in any proceeding brought to enforce the award or
for entry of a judgment upon the award and (b) to the extent otherwise required
by law. Notwithstanding Article 32 of the Rules, the losing Party in the
arbitration shall be responsible for all of the costs of the arbitration,
including legal fees and other costs specified by such Article 32. Nothing
contained in this Section 12.02 is intended to or shall be construed to prevent
either Party, in accordance with Article 22(3) of the Rules or otherwise, from
applying to any court of competent jurisdiction for interim measures or other
provisional relief in connection with the subject matter of any Agreement
Disputes.
12.03 Continuity of Services and Performance. Unless otherwise
agreed in writing, the Parties shall continue to provide the Services and honor
all other commitments under this Agreement during the course of dispute
resolution pursuant to the provisions of this Article 12 with respect to all
matters not subject to such dispute, controversy or claim.
ARTICLE 13. CONTINUED PROVISION OF SERVICES.
13.01 Force Majeure. Service Provider shall not be in default
of its obligations hereunder for any delays or failure in performance resulting
from any cause or circumstance beyond the reasonable control of Service
Provider, provided that Service Provider exercises commercially reasonable
efforts to perform its obligations in a timely manner. If any such occurrence
prevents Service Provider from providing any of the Services, Service Provider
shall cooperate with Recipient in obtaining, at Recipient's sole expense, an
alternative source for the affected Services, and Recipient shall be released
from any payment obligation to Service Provider in respect of such Services
during the period of such force majeure.
13.02 Disaster Recovery. Service Provider shall maintain a
disaster recovery policy in accordance with Schedule J. Upon the occurrence of a
disaster affecting the Services, Service Provider shall implement the disaster
recovery policy and Recipient shall be responsible for its proportionate share
of any fees incurred by Service Provider in connection with implementing the
disaster recovery policy.
<PAGE> 16
12
ARTICLE 14. TERMINATION.
14.01 For Convenience. Recipient may terminate this Agreement
at any time during the Initial Term upon 90 days' notice to Service Provider.
14.02 Effect of Termination. Upon the termination of this
Agreement pursuant to Section 14.01, Recipient shall pay to Service Provider, no
later than the effective date of such termination, the balance of the Fees due
for the Initial Term and, if any, the Extended Term.
ARTICLE 15. TERMINATION ASSISTANCE SERVICES.
Upon the expiration of this Agreement or the effective date of
termination of this Agreement, Service Provider shall have no further obligation
to provide the Services to Recipient:
(1) for a period up to (a) 60 days prior to the expiration or the effective
date of termination of this Agreement and (b) 30 days following the
expiration of this Agreement or the effective date of termination of
this Agreement, Service Provider shall use reasonable efforts to
cooperate, at Recipient's expense, with (i) the Alternative Provider or
(ii) Recipient, in connection with the transfer of the Services, the
Recipient Data, the Licensed Software and the Licensed Documentation,
from Service Provider to the facilities of (x) the Alternative Provider
or (y) Recipient, as requested by Recipient; and
(2) the rights granted to Service Provider in Section 5.01 shall
immediately terminate and Service Provider shall deliver to Recipient
(a) a current copy of the Licensed Software in the form in use as of
that time and (b) a current copy of the Licensed Documentation in the
form in use as of that time.
ARTICLE 16. MISCELLANEOUS PROVISIONS.
16.01 No Waivers. No failure on the part of either Party to
exercise and no delay in exercising any right or remedy hereunder shall operate
as a waiver thereof nor shall any single or partial exercise by a Party of any
right or remedy hereunder preclude any other right or remedy or further exercise
thereof or the exercise of any other right.
16.02 Consents, Approvals and Requests. Unless otherwise
specified in this Agreement, all consents and approvals, acceptances or similar
actions to be given by either Party under this Agreement shall not be
unreasonably
<PAGE> 17
13
withheld or delayed and each Party shall make only reasonable requests under
this Agreement.
16.03 Partial Invalidity. In the event any of the provisions
of this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected or impaired.
16.04 Notices. All notices, designations, approvals, consents,
requests, acceptances, rejections or other communications required or permitted
by this Agreement shall be in writing and shall be sent via telecopy to the
telecopy number specified below. A copy of any such notice shall also be sent by
registered express air mail on the date such notice is transmitted by telecopy
to the address specified below:
If to Service Provider:
Telecopy No.:
Attention: General Counsel
If to Recipient:
Telecopy No.:
Attention: General Counsel
Any Party may at any time, by notice to the other Party transmitted or sent in
the manner described above, change the address or telecopy number to which
communications to it are to be sent.
16.05 Relationship. The performance by Service Provider of its
duties and obligations under this Agreement shall be that of an independent
contractor and nothing herein contained shall create or imply an agency
relationship between the Parties, nor shall this Agreement be deemed to
constitute a joint venture or partnership between the Parties.
16.06 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of ___________.
16.07 Covenant of Further Assurances. The Parties covenant and
agree that, subsequent to the execution and delivery of this Agreement and
without any additional consideration, each of the Parties will execute and
deliver
<PAGE> 18
14
any further legal instruments and perform any acts which are or may become
reasonably necessary to effectuate this Agreement.
16.08 Assignment. This Agreement may not be assigned by either
Party, other than to an affiliate of such Party or pursuant to a corporate
reorganization or merger, without the consent of the other Party. Any assignment
in contravention of this Section 16.08 shall be void.
16.09 Entire Understanding. This Agreement represents the
entire understanding of the Parties with respect to the Services and supersedes
all previous writings, correspondence and memoranda with respect thereto, and no
representations, warranties, agreements or covenants, express or implied, of any
kind or character whatsoever with respect to such subject matter have been made
by either Party to the other, except as herein expressly set forth.
16.10 Successors. Subject to the restrictions on assignment
set forth in Section 16.08, this Agreement shall be binding upon and inure to
the benefit of and be enforceable against the Parties hereto and their
respective successors and assigns.
16.11 Amendments. This Agreement can be modified or amended
only by a written amendment executed by both Parties.
16.12 Survival. The provisions of Article 5, Article 8,
Article 9, Article 10, Article 11, Article 12, Article 15, Section 3.06, Section
6.02, Section 6.03, Section 7.02, Section 14.02, Section 16.06, this Section
16.12 and Section 16.14 shall survive the expiration or termination of this
Agreement.
16.13 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
16.14 Good Faith and Fair Dealing. Each Party hereby agrees
that its performance of all obligations and exercise of all rights under this
Agreement shall be governed by the fundamental principles of good faith and fair
dealing.
16.15 Third Party Beneficiaries. Each Party intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person or entity other than Recipient and Service Provider.
<PAGE> 19
15
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
[SERVICE PROVIDER]
By:______________________________
Name:
Title:
[RECIPIENT]
By:______________________________
Name:
Title:
<PAGE> 1
EXHIBIT 99.6
FORM OF DATA SERVICES AGREEMENT
BETWEEN
[SERVICE PROVIDER]
AND
[RECIPIENT]
DATA CENTER LOCATION:
SERVICE PROVIDER:
RECIPIENT:
<PAGE> 2
SCHEDULES
<TABLE>
<CAPTION>
<S> <C> <C>
Schedule A Services and Capacity Levels
Schedule B Service Levels
Schedule C Reports
Schedule D Recipient Software
Schedule E Fees
Schedule F Extended Term Charges
Schedule G Service Provider Software
Schedule H Termination Fees
Schedule I Disaster Recovery
Schedule J Recipient Obligations
</TABLE>
<PAGE> 3
DATA SERVICES AGREEMENT (this "Agreement"), dated as of
___________, 1996 (the "Agreement Date"), by and between [ ] ("[
]") and [ ] ("[ ]").
W I T N E S S E T H:
WHEREAS, the Board of Directors of The Dun & Bradstreet
Corporation ("D&B") has determined that it is appropriate, desirable and in the
best interests of the shareholders of D&B to reorganize D&B so as to separate
certain businesses to be owned and operated apart from D&B (the "Distribution");
WHEREAS, as part of the Distribution, D&B will be divesting
certain of its businesses, including subsidiaries of [ ] and/or [ ];
WHEREAS, prior to the Distribution Date, [ ]("Service
Provider") a subsidiary of [ ], has provided and [ ] ("Recipient"), a subsidiary
of [ ], has purchased, pursuant to various written and oral agreements, the
Services described in this Agreement; and
WHEREAS, in order to facilitate the orderly continuation of
Recipient's business for a transitional period after the Distribution Date, [ ],
on behalf of Service Provider, has agreed to provide to Recipient, and [ ], on
behalf of Recipient, has agreed to purchase from Service Provider, the Services
described in this Agreement.
NOW, THEREFORE, in consideration of the agreements as set
forth below, it is agreed as follows:
ARTICLE 1. DEFINITIONS AND CONSTRUCTION.
1.01 Definitions. The following defined terms shall have the
meanings specified below:
"Agreement" shall have the meaning set forth in the Heading.
"Agreement Date" shall have the meaning set forth in the Heading.
"Agreement Disputes" shall have the meaning set forth in Section 12.01.
"Alternative Provider" shall mean any alternative external service
provider selected by Recipient for the provision of services similar to the
Services following the expiration or termination of this Agreement.
"D&B" shall have the meaning set forth in the Recitals.
<PAGE> 4
2
"Data Center" shall mean Service Provider's data center located at
- - ------------- --------, and any successor location.
"Data Processing Services" shall mean the data processing services
described in Schedule A.
"Distribution" shall have the meaning set forth in the Recitals.
"Distribution Agreement" shall mean the Distribution Agreement, dated
___________, 1996, by and among D&B, Cognizant Corporation and ACNielsen
Corporation.
"Distribution Date" shall mean the date on which the distributions to
effect the reorganization of D&B are made under the Distribution Agreement.
"Extended Term" shall have the meaning set forth in Article 2.
"Fees" shall mean those charges for the Services set forth in Schedule
E.
"Initial Term" shall have the meaning set forth in Article 2.
"Licensed Documentation" shall mean all documentation that is used in
connection with the operation of the Licensed Software.
"Licensed Software" shall mean the software described in Schedule D.
"Recipient" shall have the meaning set forth in the Recitals.
"Recipient Data" shall mean all data or information supplied by
Recipient to Service Provider for processing or transmission in connection with
the Services.
"Service Provider" shall have the meaning set forth in the Recitals.
"Service Provider Software" shall mean the software and related
documentation (a) owned, acquired or developed by Service Provider that is used
in connection with the provision of the Services or (b) licensed or leased by
Service Provider from a third party which is used in connection with the
provision of the Services. The Service Provider Software includes the software
set forth in Schedule G.
"Services" shall mean the Data Processing Services.
<PAGE> 5
3
1.02 References. In this Agreement and the Schedules to this
Agreement:
(1) the Schedules to this Agreement shall be incorporated in and deemed part of
this Agreement and all references to this Agreement shall include the
Schedules to this Agreement; and
(2) references to the word "including" or the phrase "e.g." in this Agreement
shall mean "including, without limitation".
1.03 Headings. The article and section headings and the table
of contents are for reference and convenience only and shall not be considered
in the interpretation of this Agreement.
1.04 Interpretation of Documents. In the event of a conflict
between this Agreement and the terms of any of the Schedules, the terms of this
Agreement shall prevail.
ARTICLE 2. TERM OF AGREEMENT.
The initial term of this Agreement shall commence on the
Distribution Date and shall continue until 12:00 midnight (Eastern Standard
Time) on _____________, 1997 (the "Initial Term"), unless terminated earlier
pursuant to Section 14.01; provided, however, that Recipient may, upon notice to
Service Provider at least 120 days prior to the expiration of the Initial Term
or the Extended Term described in (2) below, extend the term of this Agreement
for either of (1) one additional six-month period or (2) one additional
three-month period (each of (1) and (2), the "Extended Term") at the charges set
forth in Schedule F.
ARTICLE 3. SERVICES.
3.01 Services. Service Provider shall provide to Recipient,
and Recipient shall purchase from Service Provider the Data Processing Services
described in Schedule A. The Services shall be provided with substantially the
same degree of care and diligence as such services had been provided to
Recipient during the period prior to the Distribution Date. The Services shall
be provided at the levels of service set forth in Schedule B.
3.02 Priority. Service Provider shall provide the Services to
Recipient with respect to prioritizing, processing and recovery in accordance
with Schedule B.
3.03 Reports. Service Provider shall provide Recipient with
the reports set forth in Schedule C according to the schedule set forth in
Schedule C.
3.04 New Releases and Versions of the Software. Except as
provided in Schedule A, Service Provider shall not be required to provide,
install or maintain any new releases or versions of the systems software or the
applications software. In the event that Schedule A includes Service Provider's
provision, installation and maintenance of the systems software or the
applications software, Service Provider shall, at the fees set forth in Schedule
<PAGE> 6
4
E, after any such release or version is commercially available, provide, install
on the machines used to provide the Services after sufficient testing, and
maintain new releases and versions of the systems software and applications
software in use as of the Agreement Date. In the event that Service Provider
fails to provide, install or maintain any new releases or versions of the
systems software or the applications software in accordance with Schedule A,
Service Provider shall be responsible for the payment of any incremental expense
incurred by Recipient in connection with such failure.
ARTICLE 4. RECIPIENT OBLIGATIONS.
4.01 Recipient Equipment. With respect to that equipment owned
or leased by Recipient, Recipient shall:
(1) maintain all equipment, software and operational features at the same level
that was provided immediately prior to the Distribution Date, and shall
receive maintenance services from those third party service providers that
provided maintenance services to Recipient immediately prior to the
Distribution Date; and
(2) upon notice from Service Provider (which notice shall include Service
Provider's estimate of the costs, if any, of the enhancement or
modification) as soon as possible after it has been determined that an
enhancement or modification is necessary, but in any event upon at least 30
days' notice, enhance or modify such equipment, software and operational
features as may be necessary to remain compatible with any systems used by
Service Provider in connection with the Services; provided, however, in the
event such enhancement or modification results in Service Provider
incurring any incremental expense or providing any additional resources,
Recipient shall be responsible for the payment of such incremental expense
or the costs of such additional resources.
4.02 Generally. Recipient shall:
(1) comply with any reasonable instructions provided by Service Provider that
are necessary for Service Provider to adequately provide the Services;
(2) comply with all standards and procedures applicable to the Data Center;
(3) promptly report any operational or system problem to Service Provider;
(4) maintain a business recovery plan detailing the requirements of Recipient
in the event of the occurrence of a disaster affecting the Services and
periodically test such plan;
(5) provide the working environment, including space, furniture, electricity,
telephones and other infrastructure requirements for Service Provider's
employees located at Recipient's premises; and
<PAGE> 7
5
(6) except as provided in Schedule J, after any such release or version is
commercially available, provide, install after sufficient testing, and
maintain new releases and versions of the systems software and applications
software in use as of the Agreement Date. In the event that Recipient fails
to provide, install or maintain any new releases or versions of the systems
software or the applications software in accordance with Schedule J,
Recipient shall be responsible for the payment of any incremental expense
incurred by Service Provider in connection with such failure.
4.03 Associated Equipment. Except to the extent otherwise
provided in this Agreement or any Schedule to this Agreement, Recipient shall
maintain and be responsible for all costs (including personnel, maintenance and
repair) associated with communications equipment (including terminals,
communications hardware, modems and telephone lines) that Recipient owns or
operates and that is not located at the Data Center necessary to provide the
Services or to transmit the Recipient Data for processing at the Data Center.
4.04 Security. Recipient shall ensure that user accounts shall
only be used by the person for whom such account was created or other authorized
personnel. Recipient shall promptly inform Service Provider of any individual
who is no longer authorized to use the Services.
4.05 Business Planning. During the Initial Term and, if any,
the Extended Term, Recipient shall, within a reasonable period of time after
such plans are available, provide Service Provider with a detailed plan
identifying any changes in Recipient's business that may affect the Services or
result in additional capacity being required in order for Service Provider to
provide the Services to Recipient, and what action, if any, may be necessary to
adjust the level of Services. Recipient's business plan provided to Service
Provider pursuant to this Section 4.05 shall be deemed confidential information
of Recipient.
ARTICLE 5. PROPRIETARY RIGHTS.
5.01 Recipient Software. Recipient shall grant a
non-exclusive, non-transferable, royalty-free right for Service Provider, solely
in connection with providing the Services, to (1) have access to and (a) operate
the Licensed Software set forth in Schedule D and (b) use the Licensed
Documentation and (2) use any
<PAGE> 8
6
other hardware, software and documentation owned by Recipient that is necessary
to allow Service Provider to perform the Services. Recipient shall obtain any
consents or approvals necessary in connection with Service Provider's use of the
Licensed Software, the Licensed Documentation and any other such hardware,
software and documentation.
5.02 Service Provider Software. All Service Provider Software
is, or shall be, and shall remain, the exclusive property of Service Provider or
its third party licensor and Recipient shall have no rights or interests to the
Service Provider Software, except as described in this Section 5.02. Service
Provider shall obtain, at its expense, any consents or approvals necessary in
connection with Service Provider's use of the Service Provider Software to
provide the Services to Recipient.
ARTICLE 6. DATA.
6.01 Form of Data. All data submitted by Recipient to Service
Provider in connection with the Services shall be in the form substantially
similar to that submitted before the Distribution Date, unless otherwise agreed
to in writing by the parties.
6.02 Ownership of Data. The Recipient Data is and shall remain
the property of Recipient or its customers.
6.03 Ownership of Media. All media upon which Recipient Data
is stored is and shall remain the property of Recipient. In the event additional
media is needed, it shall be obtained by Recipient, and be the property of
Recipient or its lessor.
6.04 Responsibility for Data. Recipient is responsible from
the Agreement Date for (1) the accuracy and completeness of the data submitted
by Recipient in connection with the Services and (2) any errors in and with
respect to data obtained from Service Provider because of any inaccurate or
incomplete data submitted by Recipient to Service Provider.
<PAGE> 9
7
ARTICLE 7. FEES.
7.01 Fees. Recipient shall pay to Service Provider the fees
set forth in Schedule E in respect of each of the Services.
7.02 Time of Payment. The Fees shall be paid by Recipient
monthly in arrears on or before the first business day immediately following the
end of each whole or partial calendar month of the Initial Term and, if any, the
Extended Term.
7.03 Additional Services. In the event that Recipient's use of
a Service increases above that set forth in Schedule A for such Service, and/or
Recipient notifies Service Provider of the need for such an increase, Service
Provider shall determine whether any additional hardware or software is
necessary in order for Service Provider to provide the Service and, in the event
that Service Provider and Recipient determine, pursuant to this Section 7.03,
that additional hardware or software is required, (1) Service Provider shall
acquire, upon Recipient's request, such additional hardware or software on
behalf of Recipient and Recipient shall pay to Service Provider or to the
supplier or third party lessor, as may be applicable, the purchase or lease fees
in respect of such additional hardware or software, (2) Service Provider shall
implement an appropriate increase to the Fees and (3) the Parties shall
establish a mechanism for determining the costs to Service Provider of
maintaining such additional hardware or software beyond the Initial Term and, if
any, the Extended Term and any impact on the Fees. Except as otherwise agreed in
writing by the Parties, all rights in and title to any hardware or software
acquired by Service Provider on behalf of Recipient and paid for by Recipient
shall belong to Recipient.
7.04 Taxes. Recipient shall pay any value-added tax and any
tariff, duty, export or import fee, sales tax, use tax, service tax or other tax
or charge subsequently imposed by any government or government agency on
Recipient or Service Provider with respect to the Services or the execution or
performance of this Agreement.
7.05 Late Payments . Any undisputed fees or payments owing to
Service Provider pursuant to this Agreement that are not paid when due shall
bear interest at the rate of one and one-half (1 1/2) percent per month, but in
no event to exceed the highest lawful rate of interest, calculated from the date
such amount was due until the date payment is received by Service Provider.
7.06 Transition/Termination Fees. Upon the termination of this
Agreement, Recipient shall pay to Service Provider the fees set forth in
Schedule H.
ARTICLE 8. AUDITS.
Recipient shall have the right during normal business hours
and upon reasonable advance notice, to review the computer printouts and reports
and other records of Service Provider to the extent such books and records
relate to the provision by Service Provider of the Services. Any such review
shall be conducted at Recipient's sole expense.
<PAGE> 10
8
ARTICLE 9. CONFIDENTIALITY.
Each of the Parties shall not use or permit the use of
(without the prior consent of the other) and shall keep, and shall cause its
consultants and advisors to keep, confidential all information concerning the
other Party in its possession, its custody or under its control (except to the
extent that (1) such information has been in the public domain through no fault
of such Party or (2) such information has been later lawfully acquired from
other sources by such Party or (3) this Agreement or any other agreement entered
into pursuant to this Agreement permits the use or disclosure of such
information) to the extent such information (a) relates to the period up to the
Distribution Date or (b) is obtained in the course of providing or receiving the
Services pursuant to this Agreement, and each Party shall not (without the prior
consent of the other) otherwise release or disclose such information to any
other person, except such Party's auditors and attorneys, unless compelled to
disclose such information by judicial or administrative process or unless such
disclosure is required by law and such Party has used commercially reasonable
efforts to consult with the other Party prior to such disclosure.
ARTICLE 10. INDEMNITY.
10.1 Service Provider shall indemnify and hold harmless Recipient in
respect of all claims, costs, expenses, damages and liabilities (including
reasonable attorneys' fees) arising from any claim by a third party licensor
that the Service Provider Software made available to Recipient by Service
Provider infringes such third party's proprietary rights.
10.2 Recipient shall indemnify and hold harmless Service Provider in
respect of all claims, costs, expenses, damages and liabilities (including
reasonable attorneys' fees) arising from any claim by a third party licensor
that the Recipient Software made available to Service Provider by Recipient
infringes such third party's proprietary rights.
ARTICLE 11. DISCLAIMER AND LIMITATION OF LIABILITY.
11.01 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF THE
SERVICES, THE LICENSED SOFTWARE, THE SERVICE PROVIDER SOFTWARE OR THE LICENSED
DOCUMENTATION, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
11.02 Limitation of Liability. Neither of the parties shall be
liable to the other (or any claiming under or through the other) for any
indirect, special, incidental or consequential damages, including lost profits
or savings, whether or not such damages are foreseeable, or for any third party
claims relating to the Services or a Party's performance under this Agreement
regardless of the form of action (including negligence). Except as may
<PAGE> 11
9
arise as a result of a party's gross negligence or willful misconduct, and as
set forth in Section 10 above, each party's liability for direct damages arising
in connection with its performance or failure to perform under this Agreement
shall in no event exceed six (6) months' Fees hereunder.
ARTICLE 12. DISPUTE RESOLUTION.
12.01 Procedure. Any disputes arising out of or in connection
with this Agreement shall be settled in accordance with the dispute resolution
mechanisms set forth in Article VI of the Distribution Agreement.
12.02 Continuity of Services and Performance. Unless otherwise
agreed in writing, the Parties shall continue to provide the Services and honor
all other commitments under this Agreement during the course of dispute
resolution pursuant to the provisions of this Article 12 with respect to all
matters not subject to such dispute, controversy or claim.
ARTICLE 13. CONTINUED PROVISION OF SERVICES.
13.01 Force Majeure. Service Provider shall not be in default
of its obligations hereunder for any delays or failure in performance resulting
from any cause or circumstance beyond the reasonable control of Service
Provider, provided that Service Provider exercises commercially reasonable
efforts to perform its obligations in a timely manner. If any such occurrence
prevents Service Provider from providing any of the Services, Service Provider
shall cooperate with Recipient in obtaining, at Recipient's sole expense, an
alternative source for the affected Services, and Recipient shall be released
from any payment obligation to Service Provider in respect of such Services
during the period of such force majeure.
13.02 Disaster Recovery. Service Provider shall maintain a
mainframe computer disaster recovery coverage plan, including coverage for the
Services. Upon the occurrence of a disaster affecting the Services relating to
mainframe computing, Service Provider shall implement the mainframe computer
disaster recovery procedures and Recipient shall be responsible for its
proportionate share of any fees incurred by Service Provider in connection with
implementing such procedures. Service Provider shall provide Recipient with a
copy of the plan upon request.
ARTICLE 14. TERMINATION.
14.01 For Convenience. Recipient may terminate this Agreement
at any time during the Initial Term upon 90 days' notice to Service Provider.
14.02 Effect of Termination. Upon the termination of this
Agreement pursuant to Section 14.01, Recipient shall pay to Service Provider, no
later than the effective date of
<PAGE> 12
10
such termination, the balance of the Fees due for the Initial Term and, if any,
the Extended Term.
ARTICLE 15. TERMINATION ASSISTANCE SERVICES.
Upon the expiration of this Agreement or the effective date of
termination of this Agreement, Service Provider shall have no further obligation
to provide the Services to Recipient and:
(1) for a period of up to (a) 60 days prior to the expiration or the effective
date of termination of this Agreement and (b) 30 days following the
expiration of this Agreement or the effective date of termination of this
Agreement, Service Provider shall use reasonable efforts to cooperate, at
Recipient's expense, with (i) the Alternative Provider or (ii) Recipient,
in connection with the transfer of the Services, the Recipient Data, the
Licensed Software and the Licensed Documentation, from Service Provider to
the facilities of (x) the Alternative Provider or (y) Recipient, as
requested by Recipient; and
(2) the rights granted to Service Provider in Section 5.01 shall immediately
terminate and Service Provider shall deliver to Recipient (a) a current
copy of the Licensed Software in the form in use as of that time and (b) a
current copy of the Licensed Documentation in the form in use as of that
time.
ARTICLE 16. MISCELLANEOUS PROVISIONS.
16.01 No Waivers. No failure on the part of either Party to
exercise and no delay in exercising any right or remedy hereunder shall operate
as a waiver thereof nor shall any single or partial exercise by a Party of any
right or remedy hereunder preclude any other right or remedy or further exercise
thereof or the exercise of any other right.
16.02 Consents, Approvals and Requests. Unless otherwise
specified in this Agreement, all consents and approvals, acceptances or similar
actions to be given by either Party under this Agreement shall not be
unreasonably withheld or delayed and each Party shall make only reasonable
requests under this Agreement.
16.03 Partial Invalidity. In the event any of the provisions
of this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality or enforceability of the remaining provisions of this
Agreement shall not be affected or impaired.
16.04 Notices. All notices, designations, approvals, consents,
requests, acceptances, rejections or other communications required or permitted
by this Agreement shall be in writing and shall be sent via telecopy to the
telecopy number specified below. A copy of any such notice shall also be sent by
registered express air mail on the date such notice is transmitted by telecopy
to the address specified below:
<PAGE> 13
11
If to Service Provider:
Telecopy No.:
Attention: General Counsel
If to Recipient:
Telecopy No.:
Attention: General Counsel
Any Party may at any time, by notice to the other Party transmitted or sent in
the manner described above, change the address or telecopy number to which
communications to it are to be sent.
16.05 Relationship. The performance by Service Provider of its
duties and obligations under this Agreement shall be that of an independent
contractor and nothing herein contained shall create or imply an agency
relationship between the Parties, nor shall this Agreement be deemed to
constitute a joint venture or partnership between the Parties.
16.06 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
16.07 Covenant of Further Assurances. The Parties covenant and
agree that, subsequent to the execution and delivery of this Agreement and
without any additional consideration, each of the Parties will execute and
deliver any further legal instruments and perform any acts which are or may
become reasonably necessary to effectuate this Agreement.
16.08 Assignment. This Agreement may not be assigned by either
Party, other than to an affiliate of such Party or pursuant to a corporate
reorganization or merger, without the consent of the other Party. Any assignment
in contravention of this Section 16.08 shall be void.
16.09 Entire Understanding. This Agreement represents the
entire understanding of the Parties with respect to the Services and supersedes
all previous writings, correspondence and memoranda with respect thereto, and no
representations, warranties, agreements or covenants, express or implied, of any
kind or character whatsoever with respect to such subject matter have been made
by either Party to the other, except as expressly set forth herein.
<PAGE> 14
12
16.10 Successors. Subject to the restrictions on assignment
set forth in Section 16.08, this Agreement shall be binding upon and inure to
the benefit of and be enforceable against the Parties hereto and their
respective successors and assigns.
16.11 Amendments. This Agreement can be modified or amended
only by a written amendment executed by both Parties.
16.12 Survival. The provisions of Article 5, Article 8,
Article 9, Article 10, Article 11, Article 12, Article 15, Section 6.02, Section
6.03, Section 7.06, Section 14.02, Section 16.06, this Section 16.12 and Section
16.15 shall survive the expiration or termination of this Agreement.
16.13 Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
16.14 Third Party Beneficiaries. Each Party intends that this
Agreement shall not benefit or create any right or cause of action in or on
behalf of any person or entity other than Recipient and Service Provider.
16.15 Good Faith and Fair Dealing. Each Party hereby agrees
that its performance of all obligations and exercise of all rights under this
Agreement shall be governed by the fundamental principles of good faith and fair
dealing.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the day and
year first above written.
[ ]
By:______________________________
Name:
Title:
[ ]
By:______________________________
Name:
Title:
<PAGE> 1
EXHIBIT 99.7
FORM OF TRANSITION SERVICES AGREEMENT
This TRANSITION SERVICES AGREEMENT is dated as of [ ],
1996, among THE DUN & BRADSTREET CORPORATION, a Delaware corporation ("D&B"),
COGNIZANT CORPORATION, a Delaware corporation ("Cognizant"), and ACNIELSEN
CORPORATION, a Delaware corporation ("ACN").
W I T N E S S E T H
WHEREAS, D&B, Cognizant and ACN have entered into a
Distribution Agreement dated as of the date hereof (the "Distribution
Agreement") pursuant to which, among other matters, each party has agreed to
provide, or cause one or more of its Subsidiaries to provide, to the other
parties and their respective Subsidiaries certain transitional, administrative
and support services on the terms set forth in this Agreement and the Appendices
hereto. Each party, when providing a service pursuant hereto, shall hereinafter
be referred to as a "Provider", and each party, when receiving a service
pursuant hereto, shall hereinafter be referred to as a "Recipient".
NOW, THEREFORE, subject to the terms, conditions, covenants
and provisions of this Agreement, each of D&B, Cognizant and ACN mutually
covenant and agree as follows:
ARTICLE I
SERVICES PROVIDED
1.1 Transition Services. Upon the terms and subject to the
conditions set forth in this Agreement, with respect to each of those services
set forth in an Appendix hereto, each of which Appendices is made a part of this
Agreement, the relevant Provider will provide to the relevant Recipient the
services indicated in such Appendix (hereinafter referred to individually as a
"Transition Service", and collectively as the "Transition Services") during the
time period for each such Transition Service set forth in such Appendix
(hereinafter referred to as the "Time Periods" for all of the Transition
Services, and the "Time Period" for each Transition Service).
1.2 Personnel. In providing the Transition Services, each
party, in its capacity as a Provider and as it deems necessary or appropriate in
its sole discretion, may (i) use the personnel of such Provider or its
Affiliates, and (ii) employ the services of third parties to the extent such
third party services are routinely utilized to provide similar services to other
businesses of such Provider or are reasonably necessary for the efficient
performance of any of such Transition Services. Each party, in its capacity as a
Recipient, may retain at its own expense its own consultants and other
professional advisers.
<PAGE> 2
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1.3 Representatives. Each of D&B, Cognizant and ACN shall
nominate a representative to act as its primary contact person for the provision
of all of the Transition Services (collectively, the "Primary Coordinators").
The initial Primary Coordinators shall be _____________ for D&B, ____________
for Cognizant and ______________ for ACN. The initial coordinators for each
specific Transition Service shall be the individuals named in the Appendix
relating to such Transition Service (the "Service Coordinators"). Each party may
treat an act of a Primary Coordinator or Service Coordinator of another party as
being authorized by such other party without inquiring behind such act or
ascertaining whether such Primary Coordinator or Service Coordinator had
authority to so act. The relevant Provider and the relevant Recipient of a
Transition Service shall advise each other in writing of any change in the
Primary Coordinators and any Service Coordinator for such Transition Service,
setting forth the name of the Primary Coordinator or Service Coordinator to be
replaced and the name of the replacement, and certifying that the replacement
Primary Coordinator or Service Coordinator is authorized to act for such party
in all matters relating to this Agreement. Each of D&B, Cognizant and ACN agree
that all communications relating to the provision of the Transition Services
shall be directed to the Primary Coordinators.
1.4 Level of Transition Services. (a) Each party, in its
capacity as a Provider, shall perform the Transition Services for which it is
responsible hereunder following commonly accepted standards of care in the
industry and exercising the same degree of care as it exercises in performing
the same or similar services for its own account as of the date of this
Agreement, with priority equal to that provided to its own businesses or those
of any of its Affiliates, Subsidiaries or divisions. Nothing in this Agreement
shall require any party, in its capacity as a Provider, to favor the businesses
of any Recipient over its own businesses or those of any of its Affiliates,
Subsidiaries or divisions.
(b) No Provider of Transition Services shall be required to
provide the Recipient of such Transition Services with extraordinary levels of
Transition Services, special studies, training, or the like or the advantage of
systems, equipment, facilities, training, or improvements procured, obtained or
made after the Distribution Date by such Provider.
(c) In addition to being subject to the terms and conditions
of this Agreement for the provision of the Transition Services, each party, in
its capacity as a Recipient, agrees that the Transition Services provided by
third parties shall be subject to the terms and conditions of any agreements
between the Provider of such Transition Services and such third parties. The
relevant Provider shall consult with the relevant Recipient concerning the terms
and conditions of any such agreements to be
<PAGE> 3
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entered into, or proposed to be entered into, with third parties after the date
hereof.
1.5 Limitation of Liability. [In the absence of gross
negligence or willful misconduct on the part of any party acting in its capacity
as a Provider, and whether or not such Provider is negligent, such Provider
shall not be liable for any claims, liabilities, damages, losses, costs,
expenses (including, but not limited to, settlements, judgments, court costs and
reasonable attorneys' fees), fines and penalties, arising out of any actual or
alleged injury, loss or damage of any nature whatsoever in providing or failing
to provide Transition Services for which it is responsible hereunder to the
Recipient of such Transition Services.] Notwithstanding anything to the contrary
contained herein, in the event such Provider commits an error with respect to or
incorrectly performs or fails to perform any Transition Service, at the relevant
Recipient's request, such Provider shall use reasonable efforts and good faith
to correct such error, re-perform or perform such Transition Service at no
additional cost to such Recipient; provided, that such Provider shall have no
obligation to recreate any lost or destroyed data to the extent the same cannot
be cured by the re-performance of the Transition Service in question.
1.6 Force Majeure. Any failure or omission by a party in the
performance of any obligation under this Agreement shall not be deemed a breach
of this Agreement or create any liability, if the same arises from any cause or
causes beyond the control of such party, including, but not limited to, the
following, which, for purposes of this Agreement shall be regarded as beyond the
control of each of the parties hereto: acts of God, fire, storm, flood,
earthquake, governmental regulation or direction, acts of the public enemy, war,
rebellion, insurrection riot, invasion, strike or lockout; provided, however,
that such party shall resume the performance whenever such causes are removed.
Notwithstanding the foregoing, if such party cannot perform under this Agreement
for a period of forty-five (45) days due to such cause or causes, the affected
party may terminate the Agreement with the defaulting party by providing written
notice thereto.
1.7 Modification of Procedures. Each party, in its capacity as
a Provider, may make changes from time to time in its standards and procedures
for performing the Transition Services for which it is responsible hereunder.
Notwithstanding the foregoing sentence, unless required by law, no party, in its
capacity as a Provider, shall implement any substantial changes affecting a
Recipient of the relevant Transition Services unless:
(a) such Provider has furnished such Recipient notice (which
shall be the same notice such Provider shall provide its own businesses)
thereof;
(b) such Provider changes such procedures for its own
businesses at the same time; and
<PAGE> 4
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(c) such Provider gives such Recipient a reasonable period of
time for such Recipient (i) to adapt its operations to accommodate such changes
or (ii) to reject the proposed changes. In the event such Recipient fails to
accept or reject a proposed change on or before a date specified in such notice
of change, such Recipient shall be deemed to have accepted such change. In the
event such Recipient rejects a proposed change but does not terminate this
Agreement, such Recipient agrees to pay any charges resulting from such
Provider's need to maintain different versions of the same systems, procedures,
technologies, or services or resulting from requirements of third party vendors
or suppliers.
1.8 No Obligation to Continue to Use Services. No party, in
its capacity as a Recipient, shall have any obligation to continue to use any of
the Transition Services and may delete any Transition Service from the
Transition Services that the Provider thereof is providing to such Recipient by
giving the Provider notice thereof in accordance with the notice provisions
herein and in the Appendix relating to such Transition Service.
1.9 Provider Access. To the extent reasonably required for
personnel of a Provider to perform the Transition Services for which such
Provider is responsible hereunder, the Recipient of such Transition Services
shall provide personnel of such Provider with access to its equipment, office
space, plants, telecommunications and computer equipment and systems, and any
other areas and equipment.
ARTICLE II
COMPENSATION
2.1 Consideration. As consideration for the Transition
Services, each party, in its capacity as a Recipient of Transition Services,
shall pay to the Provider of such Transition Services the amount specified for
each such Transition Service as set forth in the Appendix relating to such
Transition Service.
2.2 Invoices. After the end of each month, each party, in its
capacity as a Provider, together with such party's Affiliates or Subsidiaries
providing Transition Services will submit one invoice to the Recipient of such
Transition Services for all Transition Services provided to such Recipient and
its Subsidiaries by such Provider during such month. Such monthly invoices shall
be issued no later than the fifteenth day of each succeeding month. Each invoice
shall include a summary list of the previously agreed upon Transition Service
for which there are fixed dollar fees, together with documentation supporting
each of the invoiced amounts that are not covered by the fixed fee agreements.
The total amount set forth on such summary list and such supporting detail shall
equal the invoice total, and will be provided under separate cover apart from
the invoice. All
<PAGE> 5
5
invoices shall be sent to the applicable Recipient at the following address or
to such other address as such Recipient shall have specified by notice in
writing to the Provider of the Transition Services referenced on each such
invoice:
To D&B:
The Dun and Bradstreet Corporation
[address]
Attention:
Fax: (___) ___-____
To Cognizant:
Cognizant Corporation
[address]
Attention:
Fax: (___) ___-____
To ACN:
ACNielsen Corporation
[address]
Attention:
Fax: (___) ___-____
2.3 Payment of Invoices. (a) Payment of all invoices in
respect of a Transition Service shall be made by check or electronic funds
transmission in U.S. Dollars, without any offset or deduction of any nature
whatsoever, within thirty (30) days of the invoice date unless otherwise
specified in the Appendix relating to such Transition Service. All payments
shall be made to the account set forth below with written confirmation of
payment sent by facsimile to the person set forth below.
Account:
To D&B:
The Dun and Bradstreet Corporation
[City and State]
Account No.
ABA Routing No.
To Cognizant:
Cognizant Corporation
[City and State]
Account No.
ABA Routing No.
To ACN:
ACNielsen Corporation
<PAGE> 6
6
[City and State]
Account No.
ABA Routing No.
Written Confirmation:
To D&B:
The Dun and Bradstreet Corporation:
[address]
Attention:
Fax: (___) ___-____
To Cognizant:
Cognizant Corporation
[address]
Attention:
Fax: (___) ___-____
To ACN:
ACNielsen Corporation
[address]
Attention:
Fax: (___) ___-____
(b) If any payment is not paid when due, the Provider of the
relevant Transition Service shall have the right, without any liability to the
Recipient of such Transition Service, or anyone claiming by or through such
Recipient, to immediately cease providing any or all of the Transition Services
provided by such Provider to such Recipient, which right may be exercised by
such Provider in its sole and absolute discretion.
ARTICLE III
CONFIDENTIALITY
3.1 Obligation. Each party and its Subsidiaries shall not use
or permit the use of (without the prior written consent of the other parties)
and shall keep, and shall cause its consultants and advisors to keep,
confidential all information concerning the other parties received pursuant to
or in connection with this Agreement.
3.2 Care and Inadvertent Disclosure. With respect to
any confidential information, each party agrees as follows:
(a) it shall use the same degree of care in
safeguarding said information as it uses to safeguard its
own information which must be held in confidence; and
<PAGE> 7
7
(b) upon the discovery of any inadvertent disclosure
or unauthorized use of said information, or upon obtaining notice of
such a disclosure or use from any other party, it shall take all
necessary actions to prevent any further inadvertent disclosure or
unauthorized use, and, subject to the provisions of Section 1.5 above,
each such other party shall be entitled to pursue any other remedy
which may be available to it.
ARTICLE IV
TERM AND TERMINATION
4.1 Term. This Agreement shall become effective on the
Distribution Date and shall remain in force until the expiration of the longest
Time Period specified in any Appendix hereto, including any extension thereof,
unless all of the Transition Services are deleted by each Recipient in
accordance with Section 1.8 above, or this Agreement is terminated under
Sections 1.6, 4.3 or 6.16 below prior to the end of such Time Period.
4.2 Extension. Subject to the earlier termination of this
Agreement in accordance with Sections 1.6, 4.3 or 6.16 below, each Recipient of
a Transition Service may extend each Time Period for such Transition Service for
the time period, if any, set forth in the relevant Appendix by giving the
Provider of such Transition Service the period of prior written notice set forth
in such Appendix prior to the end of the Time Period in question.
4.3 Termination. If any party (hereafter called the
"Defaulting Party") shall fail to perform or default in the performance of any
of its obligations under this Agreement (other than a payment default), the
party entitled to the benefit of such performance (hereinafter referred to as a
"Non-Defaulting Party") may give written notice to the Defaulting Party
specifying the nature of such failure or default and stating that the
Non-Defaulting Party intends to terminate this Agreement with respect to the
Defaulting Party if such failure or default is not cured within ______ days of
such written notice. If any failure or default so specified is not cured within
such ______ day period, the Non-Defaulting Party may elect to immediately
terminate this Agreement with respect to the Defaulting Party; provided,
however, that if the failure or default relates to a dispute contested in good
faith by the Defaulting Party, the Non-Defaulting Party may not terminate this
Agreement pending the resolution of such dispute in accordance with Article V
hereof. Such termination shall be effective upon giving a written notice of
termination from the Non-Defaulting Party to the Defaulting Party and shall be
without prejudice to any other remedy which may be available to the
Non-Defaulting Party against the Defaulting Party.
<PAGE> 8
8
4.4 Termination of Obligations. Each party, in its capacity as
a Recipient, specifically agrees and acknowledges that all obligations of each
Provider to provide each Transition Service for which such Provider is
responsible hereunder shall immediately cease upon the expiration of the Time
Period (and any extension thereof in accordance with Section 4.2) for such
Transition Service, and each Provider's obligations to provide all of the
Transition Services for which such Provider is responsible hereunder shall
immediately cease upon the termination of this Agreement. Upon the cessation of
such Provider's obligation to provide any Transition Service, the Recipient of
such Transition Service shall immediately cease using, directly or indirectly,
such Transition Service (including, without limitation, any and all software of
such Provider or third party software provided through such Provider,
telecommunications services or equipment, or computer systems or equipment).
4.5 Survival of Certain Obligations. Without prejudice to the
survival of the other agreements of the parties, the following obligations shall
survive the termination of this Agreement: (a) the obligations of each party
under Articles III and IV, and (b) each Provider's right to receive the
compensation for the Transition Services provided by it hereunder provided in
Section 2.1 above incurred prior to the effective date of termination.
ARTICLE V
DISPUTE RESOLUTION
5.1 Dispute Resolution. Any disputes arising out of or in
connection with this Agreement shall be settled in accordance with the dispute
resolution mechanisms set forth in Article VI of the Distribution Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Complete Agreement; Construction. This Agreement,
including the Appendices hereto, shall constitute the entire agreement between
the parties with respect to the subject matter hereof and shall supersede all
previous negotiations, commitments and writings with respect to such subject
matter. In the event of any inconsistency between this Agreement and any
Appendix hereto, the Appendix shall prevail. In the event and to the extent that
there shall be a conflict between the provisions of this Agreement and the
provisions of any other Ancillary Agreement, this Agreement shall control.
6.2 Other Ancillary Agreements. This Agreement is not
intended to address, and should not be interpreted to address,
<PAGE> 9
9
the matters specifically and expressly covered by the other Ancillary
Agreements.
6.3 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other parties.
6.4 Survival of Agreements. Except as otherwise contemplated
by this Agreement, all covenants and agreements of the parties contained in this
Agreement shall survive the Distribution Date.
6.5 Notices. All notices and other communications hereunder
shall be in writing and hand delivered or mailed by registered or certified mail
(return receipt requested) or sent by any means of electronic message
transmission with delivery confirmed (by voice or otherwise) to the parties at
the following addresses (or at such other addresses for a party as shall be
specified by like notice) and will be deemed given on the date on which such
notice is received:
To D&B:
The Dun & Bradstreet Corporation
[address]
Attn: General Counsel
To Cognizant:
Cognizant Corporation
[address]
Attn: General Counsel
To ACN:
ACNielsen Corporation
[address]
Attn: General Counsel
6.6 Waivers. The failure of any party to require strict
performance by any other party of any provision in this Agreement will not waive
or diminish that party's right to demand strict performance thereafter of that
or any other provision hereof.
6.7 Amendments. Subject to the terms of Section 4.3 hereof,
this Agreement may not be modified or amended except by an agreement in writing
signed by each of the parties hereto.
6.8 Assignment. This Agreement shall not be
assignable, in whole or in part, directly or indirectly, by any
party hereto without the prior written consent of the other
<PAGE> 10
10
parties hereto, and any attempt to assign any rights or obligations arising
under this Agreement without such consent shall be void.
6.9 Successors and Assigns. The provisions to this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and permitted assigns.
6.10 Subsidiaries. Each of the parties hereto shall cause to
be performed, and hereby guarantees the performance of, all actions, agreements
and obligations set forth herein to be performed by any Subsidiary of such party
or by any entity that is contemplated to be a Subsidiary of such party on and
after the Distribution Date.
6.11 Third Party Beneficiaries. This Agreement is solely for
the benefit of the parties hereto and their respective Subsidiaries and
Affiliates and should not be deemed to confer upon third parties any remedy,
claim, liability, reimbursement, claim of action or other right in excess of
those existing without reference to this Agreement.
6.12 Title and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
6.13 Appendices. The Appendices 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. In the event of any inconsistency between the terms
of any Appendix and the terms set forth in the main body of this Agreement, the
terms of the Appendix shall govern.
6.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
6.15 Consent to Jurisdiction. Each of the parties irrevocably
submits to the exclusive jurisdiction of (a) the Supreme Court of the State of
New York, New York County, and (b) the United States District Court for the
Southern District of New York, for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby.
Each of the parties agrees to commence any action, suit or proceeding relating
hereto either in the United States District Court for the Southern District of
New York or if such suit, action or other proceeding may not be brought in such
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
<PAGE> 11
11
above shall be effective service of process for any action, suit or proceeding
in New York with respect to any matters to which it has submitted to
jurisdiction in this Section 6.15. Each of the parties irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in (i) the Supreme Court of the State of New York, New York County, or
(ii) the United States District Court for the Southern District of New York, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
6.16 Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
6.17 Laws and Government Regulations. Each party, in its
capacity as a Recipient, shall be responsible for (i) compliance with all laws
and governmental regulations affecting its businesses and (ii) any use such
Recipient may make of the Transition Services to assist it in complying with
such laws and governmental regulations. While no party, in its capacity as a
Provider, shall have any responsibility for the compliance by the Recipient of
such Transition Services with such laws and regulations, each party, in its
capacity as a Provider, agrees to use reasonable efforts to cause the Transition
Services to be provided by such party to be designed in such manner that such
Transition Services shall be able to assist the Recipient of such Transition
Services in complying with applicable legal and regulatory responsibilities.
6.18 Relationship of Parties. Nothing in this Agreement shall
be deemed or construed by the parties or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
parties, it being understood and agreed that no provision contained herein, and
no act of the parties, shall be deemed to create any relationship between the
parties other than the relationship of buyer and seller of services nor be
deemed to vest any rights, interests or claims in any third parties. The parties
do not intend to waive any privileges or rights to which they may be entitled.
6.19 Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Distribution Agreement.
<PAGE> 12
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IN WITNESS WHEREOF, the parties hereto have caused this
Transition Services Agreement to be executed the day and year first above
written.
THE DUN & BRADSTREET CORPORATION
By:___________________________
Name:
Title:
COGNIZANT CORPORATION
By:___________________________
Name:
Title:
ACNIELSEN CORPORATION
By:___________________________
Name:
Title:
<PAGE> 13
[FORM OF APPENDIX TO TRANSITION SERVICES AGREEMENT]
Description of Transition Service (including the identity of the Provider and
Recipient(s) of such Transition Service):
Payment:
Time Period (including terms of extension, if any):
Service Coordinator for Provider:
Service Coordinator for each Recipient:
Notice Period for Deletion of Transition Services:
Any Other Terms:
<PAGE> 1
EXHIBIT 99.8
FORM OF
INDEMNITY AND JOINT DEFENSE AGREEMENT
This INDEMNITY AND JOINT DEFENSE AGREEMENT is dated as of
________ __, 1996 (the "Agreement"), among THE DUN & BRADSTREET CORPORATION, a
Delaware corporation ("D&B"), COGNIZANT CORPORATION, a Delaware corporation,
("Cognizant"), and ACNIELSEN CORPORATION, a Delaware corporation ("ACNielsen").
WHEREAS, the Board of Directors of D&B has determined that it
is appropriate, desirable and in the best interests of the holders of shares of
common stock, par value $1.00 per share, of D&B (the "D&B Common Stock") to take
certain steps to reorganize D&B's Subsidiaries (as defined herein) and
businesses and then to distribute to the holders of the D&B Common Stock all the
outstanding shares of common stock of Cognizant, together with the appurtenant
share purchase rights, and all the outstanding shares of common stock of
ACNielsen, together with the appurtenant share purchase rights; and
WHEREAS, D&B, A.C. Nielsen Company and I.M.S. International,
Inc. ("IMS") have been named as defendants in an action commenced by Information
Resources, Inc. ("IRI") by the filing of its complaint dated July 29, 1996 in
the action captioned Information Resources, Inc. v. The Dun & Bradstreet
Corporation, A.C. Nielsen Co. and IMS International, Inc. (S.D.N.Y.) 96 Civ.
5716 (this action and any amended complaint or action arising out of the same or
substantially similar factual allegations by IRI or any successor or affiliate
thereof are referred to herein as the "Lawsuit");
WHEREAS, the reorganization of D&B's Subsidiaries and
businesses as contemplated by the Distribution Agreement (as defined herein)
could be potentially affected by the commencement of the Lawsuit, and in order
to consummate such reorganization in a timely fashion and in substantially the
manner contemplated prior to the commencement of the Lawsuit, the parties hereto
have determined that it is desirable to enter into this Agreement, and each
party hereto expressly acknowledges that the execution and delivery of this
Agreement does not in any manner constitute an admission that the Lawsuit has
any merit;
WHEREAS, pursuant to the terms and subject to the limitations
hereof, (x) ACNielsen has agreed, inter alia, to indemnify D&B and Cognizant
against IRI Liabilities (as defined below), up to a certain amount, which may be
incurred directly or indirectly by D&B or Cognizant, and (y) D&B and Cognizant
have agreed, inter alia, to indemnify ACNielsen against IRI Liabilities, in
excess of such amount, if any, which may be incurred directly or indirectly by
ACNielsen;
WHEREAS, the parties believe that they have a mutuality of
interest in a joint defense in connection with the Lawsuit and
<PAGE> 2
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any additional actions, investigations or proceedings that have arisen or may
arise in connection with the subject matter of the Lawsuit;
WHEREAS, it is the intention and understanding of the parties
that communications between and among them as provided herein and any joint
interviews of prospective witnesses for the purpose of a joint defense are
confidential and are protected from disclosure to any third party by the
attorney-client privilege, the work product doctrine and any other applicable
privileges;
WHEREAS, in order to pursue a joint defense effectively, the
parties have also concluded that, from time to time, their mutual interests will
be best served by sharing privileged material, mental impressions, memoranda,
interview reports and other work products and information, including the
confidences of each party;
WHEREAS, it is a purpose of this Agreement to insure that the
exchanges and disclosures of privileged materials contemplated herein do not
diminish or constitute a waiver of any privilege that may otherwise be available
by virtue of any prior agreement, conduct, operation of law or otherwise;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, D&B, Cognizant and ACNielsen agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used in this
Agreement and not defined herein shall have the meanings set forth in the
Distribution Agreement (as defined herein) and the following terms shall have
the following meanings:
"ACN Maximum Amount" means the maximum amount which, at the
time any IRI Liability becomes payable, a hypothetical investment banking firm
would determine that ACNielsen would be able to pay after giving effect to (i)
any recapitalization or similar corporate transaction, including, without
limitation, asset dispositions and/or increased borrowings or other capital
raising transactions, which would be recommended by such hypothetical investment
bank in order to maximize the claims paying ability of ACNielsen (a
"Hypothetical Recapitalization Plan"), and (ii) the payment of interest which
would be reasonably expected to be incurred on any ACN Notes and the payment of
investment banking, legal and other fees and expenses which would be reasonably
expected to be incurred in connection with such Hypothetical Recapitalization
Plan, without impairing the financial viability of ACNielsen or A.C. Nielsen
Company as either such company would exist after consummation of such
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Hypothetical Recapitalization Plan and the payment of such interest, fees and
expenses.
"ACN Note" shall have the meaning set forth in Section 2.1(c)
hereto.
"ACN Payment" shall have the meaning set forth in Section
2.1(b).
"ACNielsen" shall have the meaning set forth in the preamble
hereto.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of Voting Stock, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Ancillary Agreements" shall mean all of the written
agreements, instruments, assignments or other written arrangements (other than
this Agreement and the Distribution Agreement) entered into in connection with
the transactions contemplated by this Agreement and the Distribution Agreement,
including, without limitation, the Conveyancing and Assumption Instruments, the
Data Services Agreement, the Employee Benefits Agreement, the Intellectual
Property Agreement, the Shared Transaction Services Agreements, the TAM Master
Agreement, the Tax Allocation Agreement and the Transition Services Agreement.
"Board of Directors" shall mean, when used with respect to a
specified corporation, the board of directors of the corporation so specified.
"Business Combination" means, with respect to any Person, any
consolidation or merger or any sale, conveyance, assignment, transfer, lease or
other disposition of all or substantially all of the properties and assets of
such Person as an entirety in one transaction or series of transactions.
"Capital Lease Obligations" of a Person means any obligation
which is required to be classified and accounted for as a capital lease on the
balance sheet of such Person prepared in accordance with GAAP; the amount of
such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations, rights to purchase, warrants, options, or
other equivalents (however designated) of capital stock of a corporation, and
any and all equivalent
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ownership interests in a Person other than a corporation, in each case whether
now outstanding or hereafter issued.
"Cash Equivalents" means, at any time, (a) any evidence of
Indebtedness with a maturity of 180 days or less from the date of acquisition
issued or directly and fully guaranteed or insured by the United States of
America or any agency or instrumentality thereof (provided that the full faith
and credit of the United States of America is pledged in support thereof); (b)
certificates of deposit, money market deposit accounts and acceptances with a
maturity of 180 days or less from the date of acquisition of any financial
institution that is a member of the Federal Reserve System having combined
capital and surplus and undivided profits of not less than $500 million; (c)
commercial paper with a maturity of 180 days or less from the date of
acquisition issued by a corporation that is not an Affiliate of ACNielsen and is
organized under the laws of any state of the United States or the District of
Columbia whose debt rating, at the time as of which such investment is made, is
at least "A-1" by Standard & Poor's Corporation or at least "P-1" by Moody's
Investors Service, Inc. or rated at least an equivalent rating category of
another nationally recognized securities rating agency; (d) repurchase
agreements and reverse repurchase agreements having a term of not more than 30
days for underlying securities of the types described in clause (a) above
entered into with a financial institution meeting the qualifications described
in clause (b) above; (e) any security, maturing not more than 180 days after the
date of acquisition, backed by standby or direct pay letters of credit issued by
a bank meeting the qualifications described in clause (b) above; and (f) any
security, maturing not more than 180 days after the date of acquisition, issued
or fully guaranteed by any state, commonwealth, or territory of the United
States of America, or by any political subdivision thereof, and rated at least
"A" by Standard & Poor's Corporation or at least "A" by Moody's Investors
Service, Inc. or rated at least an equivalent rating category of another
nationally recognized securities rating agency.
"Cognizant" shall have the meaning set forth in the preamble
hereto.
"Cognizant Counsel" shall have the meaning set forth in
Section 4.1(b) hereto.
"Cognizant/D&B Payment" shall have the meaning set forth in
Section 2.1(b) hereto.
"Consolidated Earnings Before Interest, Taxes, Depreciation
and Amortization" means for any period the sum of Consolidated Net Income plus,
to the extent deducted in computing Consolidated Net Income, Consolidated
Interest Expense, Consolidated Tax Expense, all depreciation and, without
duplication, all amortization, in each case, for such period, of
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the Relevant Party and its Subsidiaries on a consolidated basis, all as
determined in accordance with GAAP.
"Consolidated Interest Expense" means for any period the sum
of (a) the aggregate of the interest expense on Indebtedness of the Relevant
Party and its Subsidiaries for such period, on a consolidated basis as
determined in accordance with GAAP (excluding the amortization of costs relating
to original debt issuances but including the amortization of debt discount) plus
(b) without duplication, that portion of Capital Lease Obligations of the
Relevant Party and its Subsidiaries representing the interest factor for such
period as determined in accordance with GAAP plus (c) without duplication,
dividends paid in respect of preferred stock of Subsidiaries or Disqualified
Stock of the Relevant Party to Persons other than the Relevant Party or a wholly
owned Subsidiary.
"Consolidated Net Income" means for any period the net income
or loss of the Relevant Party and its Subsidiaries for such period on a
consolidated basis as determined in accordance with GAAP, adjusted by excluding
the after-tax effect of (a) any gains (but not losses) from currency exchange
transactions not in the ordinary course of business; (b) the net income of any
Person which is not a Subsidiary or is accounted for by the equity method of
accounting except to the extent of the amount of dividends or distributions
actually paid in cash by such Person to the Relevant Party or a Subsidiary of
the Relevant Party during such period; (c) except to the extent includible
pursuant to clause (b), the net income of any Person accrued prior to the date
it becomes a Subsidiary of the Relevant Party or is merged into or consolidated
with the Relevant Party or any of its Subsidiaries or such Person's assets are
acquired by the Relevant Party or any of its Subsidiaries; (d) net gains
attributable to write-ups (determined after taking into account losses
attributable to write-downs) of assets or liabilities other than in the ordinary
course of business; (e) the cumulative effect of a change in accounting
principles; and (f) net income from discontinued operations.
"Consolidated Net Worth" of a Person and its Subsidiaries
means as of any date all amounts that would be included under stockholders'
equity on a consolidated balance sheet of such Person and its Subsidiaries
determined in accordance with GAAP.
"Consolidated Tax Expense" means for any period the aggregate
of the federal, state, local and foreign income tax expense of the Relevant
Party and its Subsidiaries for such period, on a consolidated basis as
determined in accordance with GAAP, to the extent deducted in computing
Consolidated Net Income.
"Counsel of Record" shall have the meaning set forth in
Section 4.1(a).
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"D&B" shall have the meaning set forth in the preamble hereto.
"D&B Common Stock" shall have the meaning set forth in the
recitals hereto.
"D&B Counsel" shall have the meaning set forth in Section
4.1(b) hereto.
"Defense Costs" shall have the meaning set forth in Section
4.1(h).
"Defense Materials" shall have the meaning set forth in
Section 4.1(c) hereto.
"Disqualified Firm" shall have the meaning set forth in
Section 2.2(a) hereto.
"Disqualified Stock" means any Capital Stock which pays a
mandatory dividend (other than in Capital Stock) or which, by its terms (or by
the terms of any security into which it is convertible or exchangeable), or upon
the happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable at the option of the holder
thereof, in whole or in part or is exchangeable for debt securities of ACNielsen
or its Subsidiaries.
"Distribution Agreement" shall mean the Distribution Agreement
among D&B, Cognizant and ACNielsen.
"Fixed Charge Coverage Ratio" means for any period the ratio
of Consolidated Earnings Before Interest, Taxes, Depreciation and Amortization
to Consolidated Interest Expense for such period; provided, however, that in
making such computation, the interest expense on any Indebtedness to be incurred
and computed on a pro forma basis and bearing a floating interest rate shall be
computed as if the rate in effect on the date of computation had been the
applicable rate for the entire period.
"GAAP" means the generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession in the United States, in each case applied on a
consistent basis.
"Hypothetical Recapitalization Plan" shall have the meaning
set forth in the definition of "ACN Maximum Amount", above.
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"IMS" shall have the meaning set forth in the recitals hereto.
"IMS Counsel" shall have the meaning set forth in Section
4.1(b) hereto.
"Indebtedness" means, with respect to any Person, without
duplication, (a) the principal of and premium (if any) in respect of (i)
indebtedness of such Person for money borrowed and (ii) indebtedness evidenced
by notes, indentures, bonds, other similar instruments for the payment of which
such Person is responsible or liable; (b) all Capital Lease Obligations of such
Person; (c) all obligations of such Person issued or assumed as the deferred
purchase price of property; (d) all obligations of such Person for the
reimbursement of any obligor on any letter of credit or similar credit
transaction; (e) all dividends on Capital Stock issued by third parties for the
payment of which such Person is responsible; (f) all obligations of the type
referred to in clauses (a) through (e) above of third parties secured by any
Lien on any property or asset of such Person, the amount of such obligation
being deemed to be the lesser of the value of such property or assets or the
amount of the obligation so secured; (g) indebtedness secured by any Lien
existing on property acquired by such Person subject to such Lien, whether or
not the indebtedness secured thereby shall have been assumed, provided that if
such Person has not assumed such Indebtedness the amount of Indebtedness of such
Person shall be deemed to be the lesser of the value of such acquired property
or the amount of the indebtedness secured; (h) guarantees, endorsements and
other obligations, whether or not contingent, in respect of, or agreements to
purchase or otherwise acquire, Indebtedness of other Persons; (i) all
Disqualified Stock issued by such Person valued at the greater of its voluntary
or involuntary maximum fixed repurchase price plus accrued and unpaid dividends;
(j) preferred stock issued by any Subsidiary valued at the greater of its
voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid
dividends; and (k) all obligations under or in respect of Interest Rate
Protection or other Hedging Agreements.
For purposes of this definition, "maximum fixed repurchase
price" of any preferred stock issued by any Subsidiary and of any Disqualified
Stock which does not have a fixed repurchase price shall be calculated in
accordance with the terms of such preferred stock or such Disqualified Stock as
if such preferred stock or such Disqualified Stock were purchased on any date on
which Indebtedness shall be required to be determined pursuant to the Indenture,
and if such price is based upon, or measured by, the fair market value of such
preferred stock or Disqualified Stock, such fair market value shall be
determined in good faith by the board of directors of the issuer of such
preferred stock or such Disqualified Stock.
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"Interest Rate Protection and Other Hedging Agreements" means
one or more of the following agreements entered into by one or more financial
institutions: (a) interest rate protection agreements (including, without
limitation, interest rate swaps, caps, floors, collars and similar agreements),
(b) foreign exchange contracts, currency swap agreements or other, similar
agreements or arrangements designed to protect against fluctuations in currency
values and/or (c) other types of hedging agreements from time to time.
"IRI" shall have the meaning set forth in the recitals hereto.
"IRI Liabilities" shall have the meaning set forth in Section
2.1(a) hereto.
"Lawsuit" shall have the meaning set forth in the recitals
hereto.
"Lien" means any mortgage, lien, pledge, security interest,
conditional sale or other title retention agreement or other security interest
or encumbrance of any kind (including any agreement to give any security
interest).
"Note Amount" shall have the meaning set forth in Section
2.1(c) hereto.
"Parent" of a Person means any other Person with the power to
direct the management and policies of such Person, directly or indirectly,
whether through ownership of Voting Stock, by contract or otherwise.
"Party Counsel" shall have the meaning set forth in Section
4.1(b) hereto.
"Payment Date" shall mean the day on which the IRI
Liabilities, if any, are ultimately required to be paid.
"Person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Recapitalization Plan" shall have the meaning set forth in
Section 2.2(c) hereto.
"Related Person" means (a) any Affiliate of ACNielsen, (b) any
Person who directly or indirectly holds 5% or more of any class of Voting Stock
of ACNielsen, (c) any Person who is an executive officer or director of
ACNielsen and (d) any Affiliate of or any relative by blood, marriage or
adoption not more remote than first cousin of any such Person referred to in
clause (b) or (c) above.
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"Relevant Party" shall have the meaning set forth in Section
3.4 hereto.
"Restricted Payment" means, with respect to ACNielsen and its
Subsidiaries, (a) any declaration or payment of any dividend on, or any
distribution in respect of, or any purchase, redemption or retirement for value
of, any Capital Stock of ACNielsen or such Subsidiary or any deposit with
respect to the foregoing (other than (i) through the issuance of Capital Stock
of ACNielsen, other than Disqualified Stock or rights to Disqualified Stock, and
(ii) dividends or distributions payable solely to ACNielsen or a wholly owned
Subsidiary), other than dividends or repurchases contemplated by the
Distribution Agreement or any Ancillary Agreement, (b) any charitable
contribution, (c) any voluntary payments to pension or other benefit plans, or
(d) any accelerated payment of any accounts payable or any cancellation or
discounting of, or delay or extension in the collection of, any accounts
receivable, unless such acceleration, cancellation, discounting, delay or
extension, as the case may be, is in the ordinary course of ACNielsen's
business.
"Service" shall mean the Internal Revenue Service or any
successor entity thereto.
"Strategic Transaction" shall mean any acquisition or
disposition of any business or of any assets comprising a business, or any
acquisition or disposition of any interest in a joint venture or other equity
investment in any business.
"Subsidiary" shall mean any corporation, partnership or other
entity of which another entity (a) owns, directly or indirectly, ownership
interests sufficient to elect a majority of the Board of Directors (or persons
performing similar functions) (irrespective of whether at the time any other
class or classes of ownership interests of such corporation, partnership or
other entity shall or might have such voting power upon the occurrence of any
contingency) or (b) is a general partner or an entity performing similar
functions (e.g., a trustee).
"Viability Opinion" shall have the meaning set forth in
Section 2.2(c) hereto.
"Voting Stock" means all outstanding classes of Capital Stock
of any entity entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof.
"Withdrawing Party" shall have the meaning set forth in
Section 4.1(g).
ARTICLE II
ALLOCATION OF LIABILITIES/ARBITRATION OF ACN MAXIMUM AMOUNT
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SECTION 2.1. Allocation of Liabilities. (a) The parties agree
that in the event that liabilities are incurred by any party hereto or any
Subsidiary thereof directly relating to, arising out of or resulting from a
final, non-appealable judgment being entered, or any settlement permitted hereby
being entered into, in connection with the Lawsuit, such liabilities ("IRI
Liabilities") shall be allocated among the parties as follows:
(i) ACNielsen agrees to assume exclusive liability for
the IRI Liabilities up to the ACN Maximum Amount; and
(ii) Cognizant and D&B each agree to assume exclusive
liability for 50% of any IRI Liabilities not payable
by ACNielsen pursuant to this Agreement.
(b) No later than five business days after the date on which
any IRI Liabilities are incurred, ACNielsen shall give notice to each of
Cognizant and D&B of the amount of such IRI Liabilities which ACNielsen will
then pay (such amount, the "ACN Payment") and of the amount which ACNielsen has
determined to be the ACN Maximum Amount, and ACNielsen will deliver the ACN
Payment to Counsel of Record for delivery to the plaintiff in the Lawsuit. Each
of Cognizant and D&B agrees to pay to the plaintiff in the Lawsuit on the
Payment Date an amount equal to 50% of the excess (if any) of (x) the aggregate
amount of the IRI Liabilities over (y) the ACN Payment (such amount, the
"Cognizant/D&B Payment"). In the event Cognizant or D&B disputes or disagrees
with ACNielsen's determination of the ACN Maximum Amount, the dispute shall be
resolved and the ACN Maximum Amount determined as described in Section 2.2.
(c) Upon the payment of the Cognizant/D&B Payment pursuant to
the immediately preceding sentence, ACNielsen shall issue a note (an "ACN Note")
to each of Cognizant and D&B. The principal amount of each ACN Note shall be
equal to the Note Amount, as defined below, and each such ACN Note shall be in
the form of Schedule A hereto. Interest on the Note Amount as finally determined
for each ACN Note shall accrue at a rate equal to the rate of interest per annum
publicly announced from time to time by The Chase Manhattan Bank as its prime
rate in effect at its principal office in New York City and shall be payable at
maturity. For purposes hereof, the "Note Amount" of each Note shall initially be
equal to the Cognizant/D&B Payment, provided, however, (i) that upon the
determination of the ACN Maximum Amount, if the Note Amount is greater than 50%
of the difference between the ACN Maximum Amount and the ACN Payment, then the
Note Amount shall be reduced to and shall equal 50% of such difference, and (ii)
that upon receipt of the aggregate amount of proceeds generated by any
Recapitalization Plan (as defined below) upon completion thereof in accordance
with the first sentence of Section 2.2(g), if the Note Amount (after giving
effect to any adjustment pursuant to clause (i)) is greater than
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50% of the amount of such proceeds, then the Note Amount shall be reduced to and
shall equal 50% of the amount of such proceeds. The Note Amount, together with
accrued and unpaid interest thereon, shall be payable upon the earlier of (x)
the completion of the Recapitalization Plan, provided, however, that if the
Recapitalization Plan is structured to generate proceeds which are receivable by
ACNielsen at different times without being contingent upon the completion of any
other aspect of the Recapitalization Plan, then at each time that proceeds are
so received, 50% of such proceeds shall be payable to each of Cognizant and D&B,
and the receipt by Cognizant and D&B of their respective share of such proceeds
shall reduce the then applicable Note Amount accordingly, and (y) the
declaration by the Payee of an ACN Note (as defined therein) that such Note
Amount and interest thereon are immediately due and payable in accordance with
the terms of such ACN Note upon determination being made under Section 2.2(g)
hereof that ACNielsen has not exercised its good faith best efforts to implement
the Recapitalization Plan as soon as practicable, or as otherwise provided by
such ACN Note.
(d) Immediately after the Payment Date, ACNielsen agrees to
grant to, and to cause each of its Subsidiaries to grant to, Cognizant and D&B,
as collateral security for the payment and performance of ACNielsen's
obligations under the ACN Notes and otherwise to indemnify Cognizant and D&B
against any IRI Liabilities as required by this Article II, a perfected first
priority security interest in all of its tangible and intangible assets
(including, without limitation, intellectual property, real property and all of
the capital stock of each of its direct and indirect domestic subsidiaries and
first-tier foreign subsidiaries), to the extent permitted by any other bona fide
security or other similar agreements with third-parties not controlled by
ACNielsen or any of its Affiliates, pursuant to such documents (the "Security
Documents") as Cognizant and D&B shall deem reasonably necessary or advisable to
grant to them a perfected first priority lien on such assets. Each of the
Security Documents shall be in form and substance reasonably satisfactory to
Cognizant and D&B, shall contain terms and conditions which are usual and
customary for similar documents delivered in secured financings and shall
include guarantees executed and delivered by each of ACNielsen's Subsidiaries
which shall be secured by the security interests granted by such Subsidiaries
pursuant to the Security Documents. Without limiting the foregoing, ACNielsen
agrees to take, and to cause each of its Subsidiaries to take, all actions
necessary or advisable to cause the liens granted pursuant to the Security
Documents to be duly perfected in accordance with all applicable requirements of
law, including, without limitation, the filing of financing statements in such
jurisdictions as may be requested by Cognizant and D&B and the delivery to
Cognizant and D&B (or their representative) of any certificates representing
pledged stock, together with undated stock powers executed and delivered in
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blank by a duly authorized officer of ACNielsen or the relevant Subsidiary.
SECTION 2.2. Arbitration of ACN Maximum Amount. (a) Cognizant,
D&B and ACNielsen expressly agree that any dispute or disagreement concerning
the ACN Maximum Amount shall be submitted to binding arbitration and agree that
disputes concerning the ACN Maximum Amount shall be resolved by an
internationally recognized investment banking firm, as arbitrator, pursuant to
the procedures and instructions set forth below. Such arbitrator shall be chosen
by ACNielsen, Cognizant and D&B, unless the parties cannot agree within two
business days of the determination of the Cognizant/D&B Payment, in which case
the arbitrator shall be selected through a random drawing, conducted jointly by
the parties, in which each party selects and enters the name of one of the firms
listed on Schedule B hereto and the firm whose name is picked in such drawing
shall be the arbitrator, provided, however, that if the firm picked is a
"Disqualified Firm", the process shall be repeated until the firm picked is not
a Disqualified Firm. A "Disqualified Firm" shall be any firm which could
reasonably be expected to be partial to one or more parties hereto within the
meaning of Section 10(b) of the Federal Arbitration Act. Any firm picked by such
drawing shall, within two business days, disclose to each of the parties hereto
any and all potential conflicts of interest with respect to any of the parties.
The parties shall have two business days from receiving such disclosure to
dispute such firm's impartiality. The parties agree that failure to dispute any
such firm's impartiality within such period shall constitute a waiver of any
right to challenge such firm's impartiality based on facts known or disclosed at
such time. Any dispute concerning whether or not a firm is a Disqualified Firm
shall be resolved by a single arbitrator, who shall be a lawyer, selected by the
parties or, if the parties are unable to agree on an arbitrator within two
business days, then one shall be selected by the American Arbitration
Association in accordance with its most expeditious procedures. The arbitrator
selected to resolve any dispute concerning the impartiality of a proposed
investment banking firm shall be instructed to resolve such dispute within ten
business days pursuant to the dispute resolution procedures set forth in Section
6.2 of the Distribution Agreement. The place of any such arbitration shall be in
New York City, New York.
(b) Cognizant, D&B and ACNielsen agree that any arbitrator or
arbitrators appointed to resolve any dispute pursuant to Article VI of the
Distribution Agreement shall have no right, authority or jurisdiction to
determine the ACN Maximum Amount, to resolve any dispute concerning the
determination of the ACN Maximum Amount, to resolve any other dispute arising
under this Article II (except in the limited circumstance explicitly set forth
in the penultimate sentence of the preceding paragraph), or to prevent, delay or
otherwise interfere with any such dispute arbitration or determination, and that
any dispute
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concerning the determination of the ACN Maximum Amount shall only be resolved by
an investment banking firm appointed as arbitrator pursuant hereto. The
determination of the ACN Maximum Amount and the resolution of any other dispute
arising under this Article II by such investment banking firm shall be made
without any party hereto asserting any other claims, offsets, defenses or
counterclaims. Each of Cognizant, D&B and ACNielsen agrees that notwithstanding
any other disputes between or among any of them or any of their respective
Subsidiaries under the Distribution Agreement, any Ancillary Agreement or
otherwise, such party will not take any action to prevent or delay the
arbitration contemplated hereby or claim any right to offset any claim or amount
payable hereunder. The parties hereto intend the provisions to arbitrate set
forth in this Article II to be valid, enforceable and irrevocable. Any award
rendered by the arbitrator shall be final and binding on the parties and their
respective Subsidiaries, and judgment on the award rendered by the arbitrator
may be entered in any court having jurisdiction thereof in accordance with
Section 5.15 hereof.
(c) The investment banking firm chosen as arbitrator to
resolve any disputes concerning the ACN Maximum Amount may perform such
financial analyses and studies and consider such historical and projected
financial information and other data as it deems relevant, and shall afford each
party with an opportunity to be heard and to present financial information and
other data relevant to the determination of the ACN Maximum Amount. Such
investment banking firm shall be directed to make an award determining the ACN
Maximum Amount as the maximum amount which, at the time any such IRI Liabilities
become payable, ACNielsen is able to pay after giving effect to (i) any
recapitalization or similar corporate transaction, including, without
limitation, asset dispositions and/or increased borrowings or other capital
raising transactions, that may be submitted pursuant to paragraph (e) below in
order to maximize the claims paying ability of ACNielsen (a "Recapitalization
Plan"), and (ii) the payment of interest on the ACN Notes and investment
banking, legal and other fees and expenses reasonably expected to be incurred in
connection with such Recapitalization Plan, without impairing the financial
viability of ACNielsen or A.C. Nielsen Company as either such company would
exist after consummation of the Recapitalization Plan and the payment of such
interest, fees and expenses. The award made by such investment banking firm
shall also allocate the IRI Liabilities based on the ACN Maximum Amount, as
determined by such investment banking firm, strictly in accordance with Section
2.1 (a) hereof. Such investment banking firm shall consider the amount of any
proceeds to be received by ACNielsen pursuant to any counterclaim against IRI in
connection with the Lawsuit. In addition to the award required by this paragraph
(c), such investment banking firm shall deliver a written opinion addressed to
the Boards of Directors of each of ACNielsen, Cognizant, D&B and A.C. Nielsen
Company (a) confirming any determination of the ACN Maximum Amount and (b) to
the effect that, after taking into account the
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Recapitalization Plan, the payment of interest on the ACN Notes, the payment of
related fees and expenses and the payment of the ACN Maximum Amount as so
determined, each of ACNielsen and A.C. Nielsen Company will be financially
viable as described below (the "Viability Opinion").
(d) Notwithstanding any amount determined by an investment
banking firm as contemplated hereby, the ACN Maximum Amount may never exceed an
amount which would require the portion of the ACN Maximum Amount payable by A.C.
Nielsen Company to exceed an amount which, if paid by A.C. Nielsen Company
immediately prior to the Distribution, would have prevented A.C. Nielsen Company
from immediately after the Distribution paying $1.00 of dividends out of surplus
in compliance with Delaware law.
(e) In addition to the award required by paragraph (c) above,
such investment banking firm shall be directed to prepare and submit to the
parties a Recapitalization Plan which shall be designed to give effect to the
goal of the parties to maximize the ACN Maximum Amount without preventing such
investment banking firm from delivering the Viability Opinion, but which shall
not require any action requiring shareholder approval pursuant to the Delaware
General Corporation Law or the Certificate of Incorporation or By-Laws of
ACNielsen as in effect on the date hereof or any transaction which, in the sole
discretion of such investment banking firm, is not reasonably practicable in the
circumstances.
(f) For purposes of this Section 2.2 and of the Viability
Opinion, financial viability of each of ACNielsen and A.C. Nielsen Company shall
mean the ability of ACNielsen and A.C. Nielsen Company, respectively, after
giving effect to the Recapitalization Plan, the payment of interest on the ACN
Notes, the payment of related fees and expenses and the payment by ACNielsen of
the ACN Maximum Amount and the payment by A.C. Nielsen Company of the portion,
if any, of the ACN Maximum Amount payable by A.C. Nielsen Company, (i) to pay
its debts as they become due and payable and (ii) to finance the current and
anticipated operating and capital requirements of its business, as
reconstituted, for two years from the date any such Recapitalization Plan is
expected to be implemented.
(g) ACNielsen agrees (i) to cause its management to cooperate
with such investment banking firm and (ii) to exercise its good faith best
efforts, and to cause its Board of Directors and management to use good faith
best efforts, to implement the Recapitalization Plan as soon as practicable and
to take all actions which may be necessary or appropriate in connection
therewith. Cognizant and D&B agree that notwithstanding Section 2.1(a), if
ACNielsen has used its good faith best efforts to implement the Recapitalization
Plan as soon as practicable but the sum of the aggregate proceeds generated
thereby and the ACN Payment are less than the ACN Maximum Amount, then, upon
payment
<PAGE> 15
15
of such proceeds to Cognizant and D&B, any such deficit shall be forgiven, and
ACNielsen's obligation to assume the IRI Liabilities up to the ACN Maximum
Amount hereunder shall be deemed discharged. In no event will the failure of
ACNielsen to take the action provided for in the first sentence of this Section
2.2(g) relieve ACNielsen of its obligation to pay the ACN Maximum Amount, and
ACNielsen agrees that if a determination is made pursuant to the next succeeding
sentence that ACNielsen has not used its good faith best efforts to implement
the Recapitalization Plan as soon as practicable, then (x) ACNielsen shall
remain liable for the full ACN Maximum Amount, and (y) immediately after
receiving the investment banking firm's determination referred to in the
succeeding sentence, Cognizant and D&B shall be entitled (a) to enforcement of
or entry of a judgment upon the award of the ACN Maximum Amount by the Supreme
Court of the State of New York, New York County, or the United States District
Court for the Southern District of New York in accordance with Section 5.15
hereof or (b) to declare the Note Amount and interest thereon to be immediately
due and payable in accordance with the terms of such ACN Note. Any dispute
concerning whether or not ACNielsen has used its good faith best efforts to
implement the Recapitalization Plan as promptly as practicable shall be
submitted to and finally determined by the investment banking firm which
prepared and submitted such Recapitalization Plan, in the sole discretion of
such investment banking firm, after giving each of the parties hereto an
opportunity to be heard, and based on its knowledge of the Recapitalization
Plan, the manner and degree to which such plan has actually been implemented
and the goal of the parties to maximize ACN Maximum Amount pursuant hereto. Any
such determination shall be made in writing and delivered to the parties hereto
promptly (i) upon the completion of such Recapitalization Plan or (ii) in
response to a request by any party hereto that such a determination be made.
(h) Without prejudice to such arbitral immunity to which the
arbitrator shall be entitled, each of ACNielsen, Cognizant and D&B agrees to
enter into an indemnification agreement with the investment banking firm engaged
to act as arbitrator to determine the ACN Maximum Amount, to deliver the
Viability Opinion and to make the determination contemplated by Section 2.2(g)
hereof in such form as such investment banking firm may reasonably request and
as may be reasonably customary in the circumstances. Each of the parties further
acknowledges that the fees and expenses of such investment banking firm shall be
included in the expenses used in determining the ACN Maximum Amount, and that
such firm shall look to ACNielsen as the primary obligor for payment of such
fees and expenses and to Cognizant and D&B as secondary obligors. Each of the
parties further agrees that such investment banking firm may retain its own
counsel (the reasonable fees of such counsel to be included in the expenses used
in determining the ACN Maximum Amount) and that such investment banking firm may
rely on such counsel for legal advice and may rely on financial information,
including
<PAGE> 16
16
projections, provided by ACNielsen management and may assume the
accuracy and reasonableness of any such projections.
SECTION 2.3. Other Agreements Relating to Allocation of IRI
Liabilities. (a) Each of ACNielsen, Cognizant and D&B agrees not to amend or
waive any provision of this Agreement which would have the effect of releasing
Cognizant or D&B of their obligations under Section 2.1 (a)(ii) above unless, at
such time, A.C. Nielsen Company could pay the maximum possible amount of any IRI
Liabilities and immediately thereafter pay $1.00 of dividends out of surplus in
compliance with Delaware law.
(b) If either D&B or Cognizant acquires beneficial ownership
of 20% or more of the outstanding Voting Stock of IRI or any successor thereof
(an "IRI Investor"), then such IRI Investor shall be deemed to be Withdrawing
Party for purposes of and with the consequences set forth in Section 4.1 (g).
(c) Cognizant and D&B agree that if it shall be necessary to
post any bond pending any appeal of the Lawsuit or otherwise in connection
therewith, Cognizant and D&B shall promptly procure such a bond, and each shall
pay 50% of the cost thereof, provided that such cost shall be added to and be
deemed to be part of the IRI Liabilities hereunder.
(d) The directors of A.C. Nielsen Company immediately prior to
the Distribution shall be third-party beneficiaries of the agreements set forth
in Article II.
ARTICLE III
COVENANTS OF ACNIELSEN
SECTION 3.1. Limitation on Restricted Payments. ACNielsen will
not, directly or indirectly, and will not permit any Subsidiary to, make any
Restricted Payment if, at the time of such Restricted Payment, and giving effect
thereto, the aggregate amount of all Restricted Payments (the amount of such
payments, if other than in cash, having been determined in good faith by the
ACNielsen Board of Directors, whose determination shall be conclusive and
evidenced by a Board resolution certified and delivered to each of Cognizant and
D&B) declared and made after the Distribution Date would exceed the sum of:
(a) $15 million; and
(b) 20% of the aggregate Consolidated Net Income (or, if such
Consolidated Net Income is a negative number, 100% of such consolidated net
loss) of ACNielsen accrued on a cumulative basis during the period beginning on
the Distribution Date and ending on the last day of ACNielsen's last fiscal
quarter ending prior to the date of such proposed Restricted Payment (except
that the amount, if any, of consolidated net loss shall not
<PAGE> 17
17
reduce the $15 million amount available pursuant to clause (a) above);
provided, however, that the foregoing provisions will not prevent the payment of
a dividend within 60 days after the date of its declaration if at the date of
declaration such payment was permitted by the foregoing provisions.
SECTION 3.2. Limitation on Transactions with Related Persons.
At any time when the Voting Stock of ACNielsen is not listed and traded on The
New York Stock Exchange, The American Stock Exchange or the National Market
System of the National Association of Securities Dealers Automated Quotation
System, ACNielsen will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into or suffer to exist any transaction or series
of related transactions (including, without limitation, the sale, purchase,
exchange or lease of assets, property or services) with any Related Person
(other than a wholly owned Subsidiary) unless such transaction or series of
transactions is on terms that are no less favorable to ACNielsen or such
Subsidiary, as the case may be, than would be available in a comparable
transaction with an unrelated third party and (a) where such transaction or
series of transactions involves aggregate consideration (including, without
limitation, the assumption of indebtedness) in excess of 2.5% of ACNielsen's
Consolidated Net Worth as of the end of the prior fiscal year, such transaction
or series of transactions is approved by a majority of the Board of Directors of
ACNielsen, including the approval of a majority of the independent,
disinterested directors, and (b) where such transaction or series of
transactions involves aggregate consideration (including, without limitation,
the assumption of indebtedness) in excess of 7.5% of ACNielsen's Consolidated
Net Worth as of the end of the prior fiscal year, ACNielsen also delivers to
Cognizant and D&B an opinion from an internationally recognized investment
banking firm as to the fairness of such transaction or series of transactions to
ACNielsen or such Subsidiary from a financial point of view (without
considering, for purposes of such fairness opinion, any impact which such
transaction may have on the ACN Maximum Amount). For purposes of the foregoing,
a series of related transactions will be deemed to include, without limitation,
a series of transactions if, within six months of closing one transaction,
another transaction is entered into with the same Person or with a successor or
affiliate thereof. Notwithstanding the foregoing, this provision will not apply
to (i) any transactions contemplated by the Distribution Agreement or any
Ancillary Agreement; (ii) compensation or employee benefit arrangements with any
officer or director of ACNielsen; and (iii) any transaction entered into in the
ordinary course of business by ACNielsen or a wholly owned Subsidiary with a
wholly owned Subsidiary.
SECTION 3.3. Merger and Consolidation. ACNielsen may not
engage in any Business Combination with any Person, unless
<PAGE> 18
18
(a) either (i) ACNielsen shall be the continuing corporation and the Persons who
were ACNielsen stockholders immediately prior to transaction or series of
transactions continue to hold more than 50% of the Voting Stock of the
continuing corporation upon consummation of such transaction or series of
transactions, or (ii) (A) such Person and such Person's Parent, if any, (x)
shall be a corporation, partnership or trust organized and validly existing
under the laws of the United States or any State thereof or the District of
Columbia or (y) shall duly execute and deliver a consent to jurisdiction in
substantially the form of Schedule C hereto, (B) such Person and, if such Person
has a Parent, such Parent shall expressly assume all of ACNielsen's obligations
hereunder, (C) such Person, or such Person's Parent, if any, shall be included
with ACNielsen for purposes of determining the ACN Maximum Amount and (D) in the
event clause (ii)(y) is applicable, a certificate signed by ACNielsen's Chief
Executive Officer and by its General Counsel is delivered to each of Cognizant
and D&B at least 30 days prior to the consummation of the proposed transaction
which certifies that the consent to jurisdiction contemplated by such clause
(ii)(y) has been executed and will take effect on the consummation of such
transaction and which certificate attaches thereto a duly executed copy of such
consent to jurisdiction; (b) immediately after such transaction or each element
of such series, ACNielsen and its Subsidiaries or such Person, or such Person's
Parent, if any, and its Subsidiaries shall have a Consolidated Net Worth equal
to or greater than the Consolidated Net Worth of ACNielsen and its Subsidiaries
immediately prior to such transaction or element; and (c) such transaction or
series of transactions is permitted under Section 3.4 below.
SECTION 3.4. Limitation on Certain Transactions. (a) ACNielsen
will not enter into any Strategic Transaction or engage in any Business
Combination unless the Chief Executive Officer or the Chief Financial Officer of
ACNielsen delivers a certificate to Cognizant and D&B certifying that, after
giving pro forma effect to such Strategic Transaction or Business Combination,
the Fixed Charge Coverage Ratio of ACNielsen, or, in the case of a Business
Combination, the Fixed Charge Coverage Ratio of the continuing corporation
following such Business Combination (ACNielsen or such continuing corporation,
as the case may be, referred to as the "Relevant Party"), in each case
calculated as set forth in Section 3.4(c) below, is greater than 4 to 1, which
certificate shall be accompanied by a letter from the Relevant Party's
independent accountants confirming that such Fixed Charge Coverage Ratio has
been correctly calculated in accordance with the requirements hereof and based
on financial statements prepared in accordance with U.S. generally accepted
accounting principles.
(b) In addition, ACNielsen will not enter into any Strategic
Transaction or engage in any Business Combination involving aggregate
consideration (including, without limitation,
<PAGE> 19
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the assumption of indebtedness) in excess of $50 million, unless
the following conditions are met:
(i) the Board of Directors of each of ACNielsen, Cognizant and
D&B has received an opinion in writing from an internationally
recognized investment bank chosen by ACNielsen, to the effect that such
transaction is fair, from a financial point of view, to ACNielsen
(without considering, for purposes of such fairness opinion, any impact
which such transaction may have on the ACN Maximum Amount); and
(ii) in the case of a disposition of a business, an equity
interest in a business or the disposition of assets comprising a
business, which disposition does not involve the simultaneous equity
investment in a joint venture entity which is the acquirer of such
business, equity investment or assets, the consideration therefor is
limited to cash, Cash Equivalents and/or marketable securities which
are freely tradable on a public stock exchange or inter-dealer
quotation system.
(c) The Fixed Charge Coverage Ratio shall be for the most
recent four consecutive full fiscal quarters ending prior to such certification,
taken as one period, and calculated on the assumptions that (i) any Indebtedness
to be incurred in connection with an acquisition or Business Combination had
been incurred on the first day of such four-quarter period, (ii) any other
Indebtedness incurred, repaid or retired by the Relevant Party and its
Subsidiaries since the beginning of such four-quarter period was incurred,
repaid or retired, as the case may be, on the first day of such four-quarter
period (except that, in making such computation, the amount of Indebtedness
under any revolving credit facility outstanding on the date of such calculation
shall be computed based on (A) the average daily balance of such Indebtedness
during such four-quarter period or during such shorter included period when such
facility was outstanding or (B) if such facility was created after the end of
such four-quarter period, the average daily balance of such Indebtedness during
the period from the date of creation of such facility to the date of the
calculation) and (iii) any acquisition or disposition by the Relevant Party or
its Subsidiaries of any assets out of the ordinary course of business or of any
company, division or line of business, in each case since the first day of its
last four completed fiscal quarters, had been consummated on such first day of
such four-quarter period.
(d) For purposes of the foregoing, any issuance or transfer of
any Capital Stock of a wholly owned Subsidiary which is a holder of obligations
of a Subsidiary that constitute Indebtedness shall be deemed an incurrence of
Indebtedness if such issuance or transfer results in such wholly owned
Subsidiary no longer being a wholly owned Subsidiary.
<PAGE> 20
20
(e) Paragraphs (a) and (b) above shall not apply to any
transaction which is contemplated by the Distribution Agreement or any Ancillary
Agreement.
SECTION 3.5. Limitation on Reincorporation. ACNielsen will
not, without the prior written consent of each of Cognizant and D&B,
re-incorporate or re-organize its corporate form under the laws of a
jurisdiction other than the State of Delaware unless ACNielsen, as
re-incorporated or re-organized under the laws of such other jurisdiction, could
take substantially the same actions without stockholder (or equity holder)
consent or approval under the laws of such jurisdiction and ACNielsen's then
applicable certificate of incorporation, charter, by-laws or other
organizational documents as ACNielsen could take without stockholder consent or
approval under the General Corporation Law of the State of Delaware and
ACNielsen's certificate of incorporation and by-laws as of the date hereof, and
counsel reasonably satisfactory to Cognizant and D&B confirms the foregoing in
writing to the reasonable satisfaction of Cognizant and D&B.
ARTICLE IV
JOINT DEFENSE PROVISIONS
SECTION 4.1. Counsel. (a) ACNielsen shall select counsel of
record to represent ACNielsen, D&B and Cognizant (which reference to Cognizant
shall be deemed to include I.M.S. International, Inc.) in the Lawsuit ("Counsel
of Record"). Counsel of Record shall communicate and consult with all parties in
connection with the defense of the Lawsuit, but shall be subject to direction
only from ACNielsen.
(b) D&B and Cognizant shall be free to retain at their own
expense counsel to monitor the Lawsuit ("D&B Counsel" and "Cognizant Counsel"
respectively, and, collectively, "Party Counsel"). Counsel of Record shall
communicate and consult with any Party Counsel. Neither D&B Counsel nor any
other counsel retained by D&B shall appear in the Lawsuit unless D&B shall have
become a Withdrawing Party under Section 4.1(g) hereof. Neither Cognizant
Counsel nor any other counsel retained by Cognizant shall appear in the Lawsuit
unless Cognizant shall have become a Withdrawing Party under Section 4.1(g)
hereof.
(c) Counsel of Record and Party Counsel shall make available
to other such counsel and any party confidential oral information and memoranda
or other documents related to the defense of the Lawsuit ("Defense Materials")
to the extent that they deem it prudent and consistent with the objectives of
the joint defense provided for herein.
(d) The Defense Materials obtained by counsel for any party
shall remain confidential and shall be protected from disclosure to any third
party except as provided herein.
<PAGE> 21
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(e) Counsel of Record and Party Counsel shall not disclose
Defense Materials or the contents thereof to anyone except their respective
clients, expert witnesses and consultants, counsel for other parties to the
Agreement, or attorneys, paralegals and staff within their firms, without first
obtaining the consent of Counsel of Record and Party Counsel whose clients (or
who themselves) may be entitled to claim any privilege with respect to such
materials. All persons permitted access to Defense Materials shall be
specifically advised that the Defense Materials are privileged and subject to
the terms of this Agreement.
(f) If any other person or entity requests or demands, by
subpoena or otherwise, any Defense Materials from any of the parties or their
counsel, the recipient of the request will immediately notify Counsel of Record
and Party Counsel, and each such counsel shall take all steps necessary to
permit the assertion of all applicable rights and privileges with respect to
such Defense Materials and shall cooperate fully with such other counsel in any
proceeding relating to the disclosure of Defense Materials.
(g) If D&B or Cognizant decides that it no longer wishes to
engage in a joint defense (a "Withdrawing Party"), the Withdrawing Party
immediately shall notify the other parties to the Agreement in writing and shall
simultaneously return to Counsel of Record the originals and all copies of
Defense Materials provided to it. In such event, the Withdrawing Party shall no
longer have any rights to obtain Defense Materials, but shall retain other
rights and obligations set forth in the Agreement, including the obligations to
share Defense Costs pursuant to Section 4.1(h) below, unless otherwise
specifically provided. The Withdrawing Party shall lose its right, if any, to
indemnification by ACNielsen under this Agreement and shall be liable for one
third of the amount of any IRI Liabilities incurred in the Lawsuit. The
Withdrawing Party shall continue to be obligated to pay 50% of any IRI
Liabilities in excess of the amount payable by ACNielsen pursuant to this
Agreement. ACNielsen shall have the absolute right to continue to be represented
in all matters in and affecting the Lawsuit by Counsel of Record. All parties
expressly agree that Counsel of Record may continue to represent parties that
have not withdrawn, and all parties agree and acknowledge that receipt and use
of Defense Materials by Counsel of Record or any action taken or knowledge
gained by Counsel of Record in connection with its representation of a
Withdrawing Party shall not be grounds for disqualification of Counsel of Record
as counsel for any other party to this Agreement in the Lawsuit.
(h) It is the intention of the parties that ACNielsen, D&B and
Cognizant shall share equally the costs of defending the Lawsuit, including
attorneys' fees, expert witness and consultants fees and all other costs and
expenses for the defense of the Lawsuit (or prosecution of any counterclaim to
the
<PAGE> 22
22
Lawsuit) duly incurred by ACNielsen or Counsel of Record ("Defense Costs").
ACNielsen shall forward on a monthly basis a statement of the Defense Costs
incurred in the preceding month and D&B and Cognizant shall each reimburse
ACNielsen for one third of such Defense Costs promptly thereafter. In the event
that ACNielsen obtains reimbursement for Defense Costs from IRI in accordance
with a certain Settlement Agreement and Release between ACNielsen and IRI, dated
as of July 1, 1985, or for any other reason, ACNielsen shall repay to each of
D&B and Cognizant one third of such reimbursement up to the extent of their
respective payments.
(i) No party may enter into any settlement agreement in the
Lawsuit without express consent in writing of the other parties, except that
ACNielsen may, if it so chooses, enter into a full and final settlement of the
Lawsuit if ACNielsen agrees to pay the full amount of the settlement and obtains
a full and final release of D&B and Cognizant with respect to the Lawsuit. Such
a settlement shall impose no obligation on any other party to this Agreement
without the party's express consent in writing. In the event that any party
receives a settlement proposal with respect to the Lawsuit, it shall immediately
communicate the substance of the offer to the Counsel of Record.
(j) All other parties to this Agreement shall cooperate with
ACNielsen in the defense of the Lawsuit and the prosecution of any counterclaim
therein, including providing, or causing to be provided, records or witnesses as
soon as practicable after receipt of any request therefor from or on behalf of
ACNielsen.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Complete Agreement; Construction. This Agreement,
including the Exhibit hereto, shall constitute the entire agreement between the
parties with respect to the subject matter hereof and shall supersede all
previous negotiations, commitments and writings with respect to such subject
matter. In the event and to the extent that there shall be a conflict between
the provisions of this Agreement and the provisions of the Distribution
Agreement or any other agreement, this Agreement shall control.
SECTION 5.2. Ancillary Agreements. This Agreement is not
intended to address, and should not be interpreted to address, the matters
specifically and expressly covered by the Ancillary Agreements.
SECTION 5.3. Counterparts. This Agreement may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement, and shall become effective
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when one or more such counterparts have been signed by each of the parties and
delivered to the other parties.
SECTION 5.4. Survival of Agreements. Except as otherwise
contemplated by this Agreement, all covenants and agreements of the parties
contained in this Agreement shall survive the Distribution Date.
SECTION 5.5. Notices. All notices and other communications
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or sent by any means of electronic
message transmission with delivery confirmed (by voice or otherwise) to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by like notice) and will be deemed given on the date on which
such notice is received:
To The Dun & Bradstreet Corporation:
One Diamond Hill Road
Murray Hill, NJ 07974
Telecopy: (908) 665-5803
Attn: General Counsel
To Cognizant Corporation:
200 Nyala Farms
Westport, Connecticut 06880
Telecopy: (203) 222-4201
Attn: General Counsel
To ACNielsen Corporation:
177 Broad Street
Stamford, Connecticut 06901
Telecopy: (203) 961-3190
Attn: General Counsel
SECTION 5.6. Waivers. The failure of any party to require
strict performance by any other party of any provision in this Agreement will
not waive or diminish that party's right to demand strict performance thereafter
of that or any other provision hereof.
SECTION 5.7. Amendments. Subject to the terms of Sections
2.3(a) and 5.10 hereof, this Agreement may not be modified or amended except by
an agreement in writing signed by each of the parties hereto.
<PAGE> 24
24
SECTION 5.8. Assignment. This Agreement shall not be
assignable, in whole or in part, directly or indirectly, by any party hereto
without the prior written consent of the other parties hereto, and any attempt
to assign any rights or obligations arising under this Agreement without such
consent shall be void.
SECTION 5.9. Successors and Assigns. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.
SECTION 5.10. Termination. Subject to the terms of Section
2.3(a), this Agreement may be terminated and may be amended, modified or
abandoned at any time prior to the Distribution by and in the sole discretion of
D&B. In the event of such termination, no party shall have any liability of any
kind to any other party or any other person. Subject to Section 2.3(a), after
the Distribution, this Agreement may not be terminated except by an agreement in
writing signed by the parties.
SECTION 5.11. Third Party Beneficiaries. Except as provided in
Article II, this Agreement is solely for the benefit of the parties hereto and
their respective Subsidiaries and Affiliates and should not be deemed to confer
upon third parties any remedy, claim, liability, reimbursement, claim of action
or other right in excess of those existing without reference to this Agreement.
SECTION 5.12. Title and Headings. Titles and headings to
sections herein are inserted for the convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
SECTION 5.13. Exhibits. The Exhibit shall be construed with
and as an integral part of this Agreement to the same extent as if the same had
been set forth verbatim herein.
SECTION 5.14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
SECTION 5.15. Consent to Jurisdiction. Each of the parties
irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of
the State of New York, New York County, and (b) the United States District Court
for the Southern District of New York, for the purposes of any suit, action or
other proceeding arising out of this Agreement or any transaction contemplated
hereby. Each of the parties agrees to commence any action, suit or proceeding
relating hereto either in the United States District Court for the Southern
District of New York or if such suit, action or other proceeding may not be
brought in such
<PAGE> 25
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court for jurisdictional reasons, in the Supreme Court of the State of New York,
New York County. Each of the parties further agrees that service of any process,
summons, notice or document by U.S. registered mail to such party's respective
address set forth above shall be effective service of process for any action,
suit or proceeding in New York with respect to any matters to which it has
submitted to jurisdiction in this Section 5.15. Each of the parties irrevocably
and unconditionally waives any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in (i) the Supreme Court of the State of New York, New York
County, or (ii) the United States District Court for the Southern District of
New York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum. This
consent to jurisdiction shall not be construed to be and is not in any way an
exception to the agreement of the parties to resolve any dispute concerning the
determination ACN Maximum Amount exclusively through the arbitration procedures
set forth in Article II hereof.
SECTION 5.16. Dispute Resolution. The investment banking firm
engaged pursuant to Section 2.2 shall have the authority to act as an arbitrator
to resolve any dispute concerning the ACN Maximum Amount or any other provision
contained in Article II, except in the limited circumstance explicitly set forth
in Section 2.2(a). Any dispute or disputes arising out of or in connection with
Articles III, IV or V of this Agreement shall be settled in accordance with the
dispute resolution mechanisms set forth in Article VI of the Distribution
Agreement.
SECTION 5.17. Severability. In the event any one or more of
the provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 5.18. Further Assurances. From time to time, as and
when reasonably requested by any other party hereto, each party hereto shall
execute and deliver, or cause to be executed and delivered, all such documents
and instruments and shall take, or cause to be taken, all such further or other
actions as such other party may reasonably deem necessary or desirable to effect
the purposes of this Agreement and the transactions contemplated hereunder.
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IN WITNESS WHEREOF, the parties have duly executed and entered
into this Agreement, as of the date first above written.
THE DUN & BRADSTREET CORPORATION
by
-----------------------
Name:
Title:
COGNIZANT CORPORATION
by
-----------------------
Name:
Title:
ACNIELSEN CORPORATION
by
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Name:
Title:
