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EXHIBIT 10.8
FORM OF TAM MASTER AGREEMENT
between
Cognizant Corporation
and
ACNielsen Corporation
dated as of
_________ __, 1996
***
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TABLE OF CONTENTS
RECITALS......................... 1
ARTICLE I
DEFINITIONS....................... 2
1.1 Defined Terms.................................................. 2
1.2 References; Interpretation..................................... 11
ARTICLE II
TECHNOLOGY AND TRADEMARKS................ 13
2.1 Obligation to License Technology............................... 13
2.2 Limited Obligation............................................. 14
2.3 Research and Development....................................... 14
ARTICLE III
OPTION TO PURCHASE.................... 15
3.1 Segregation of ACNielsen TAM Business.......................... 15
3.2 Option......................................................... 17
3.3 Price.......................................................... 21
3.4 Other Terms and Conditions of Exercise......................... 22
3.5 Survival....................................................... 22
ARTICLE IV
INDEMNIFICATION..................... 24
4.1 Indemnification............................................ 24
ARTICLE V
DISPUTE RESOLUTION.................... 24
5.1 Dispute Resolution............................................. 24
ARTICLE VI
CONDITIONS TO EFFECTIVENESS............... 25
6.1 ................................................................ 25
ARTICLE VII
COVENANTS........................ 26
7.1 Further Assurances............................................. 26
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ARTICLE VIII
MISCELLANEOUS.............................. 27
8.1 Construction................................................... 27
8.2 Counterparts................................................... 27
8.3 Expenses....................................................... 27
8.4 Notices........................................................ 27
8.5 Waivers........................................................ 27
8.6 Amendments..................................................... 28
8.7 Assignment..................................................... 28
8.8 Successors and Assigns......................................... 28
8.9 Subsidiaries................................................... 28
8.10 Third-Party Beneficiaries..................................... 28
8.11 Titles and Headings........................................... 28
8.12 Exhibits and Schedules........................................ 28
8.13 GOVERNING LAW................................................. 28
8.14 Consent to Jurisdiction....................................... 28
8.15 Severability.................................................. 29
Schedules
Schedule 1.1 (_) Calculation of TAM Purchase Price
Schedule 1.1 (_) Excluded Assets
Schedule 1.1 (_) XXX Xxxxx
Schedule 1.1 (_) TAM Technology
Schedule 1.1 (_) Taxes Included in Transfer Costs
Schedule 1.1 (_) Financial Statements
Schedule 1.1 (_) Countries in which ACNielsen TAM Business Conducted
Schedule 3.1 (a) Principles Governing Separation of Multiple-Use Assets and
Shared TAM Personnel
Schedule 3.2 (e) Arbitration in Respect of the Plan
Schedule 8.2 (b) "Media Advisor" Software
Exhibits
Exhibit __ Form of Technology Licensing Agreement
Exhibit __ Form of Trademark Licensing Agreement
Exhibit __ Form of "Media Advisor" Licensing Agreement
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This MASTER AGREEMENT is dated as of , 1996, between COGNIZANT
CORPORATION, a Delaware corporation ("Cognizant") and ACNIELSEN CORPORATION, a
Delaware corporation ("ACNielsen").
RECITALS
* WHEREAS, The Dun & Bradstreet Corporation, a Delaware
corporation ("D&B"), has determined that it is in the best
interests of the holders of common stock of D&B to separate
from D&B certain businesses currently conducted by D&B;
* WHEREAS, D&B has determined to cause certain of such
businesses, including the NMR TAM Business (as defined herein)
to be owned and conducted, directly or indirectly, by
Cognizant, and to cause certain other businesses, including
the ACNielsen TAM Business (as defined herein), to be owned
and conducted, directly or indirectly, by ACNielsen; and
* WHEREAS, each of Cognizant and ACNielsen has determined that
it is necessary and desirable to set forth agreements relating
to the TAM Business (as defined herein), including their use
of XXX Xxxxx and XXX Technology (each as defined herein) and
their rights upon a change of control of ACNielsen or the
ACNielsen TAM Business.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained in this Agreement, the parties hereby agree as follows:
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ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"ACN Change of Control Transaction": an event or series of
events by which
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act as in effect on the Distribution Date), of more than 50%
of the total voting power of all voting stock of ACNielsen then
outstanding;
(b) another corporation merges into ACNielsen or ACNielsen
consolidates with or merges into any other corporation, in one
transaction or a series of related transactions with the effect that a
person or group, other than a person or group which is the beneficial
owner of more than 50% of the total voting power of all voting stock of
ACNielsen immediately prior to such transaction becomes the beneficial
owner of more than 50% of the total voting power of all voting stock of
the surviving or transferee corporation of such transaction or series;
or
(c) ACNielsen, in one transaction or a series of transactions
(each, a "Disposition"), conveys, transfers, spins off, or leases
Assets to any person or persons other than Cognizant or a wholly owned
Subsidiary of ACNielsen or Cognizant, (i) which Assets would have
constituted greater than 66 2/3% of ACNielsen's Assets as of the
Distribution Date or (ii) which Disposition or Dispositions would have
resulted in a 50% decrease in ACNielsen's revenue for the fiscal year
immediately preceding the first such Disposition had each such
Disposition taken place on the first day of such preceding fiscal year;
provided, however, that to the extent that within three months of such
Disposition such ACNielsen party (A) reinvests or enters into a binding
agreement or letter of intent to reinvest the proceeds from such
Disposition in Assets that are used in connection with the ACNielsen
Business or (B) outsources to third parties the functions or
information generated by the Assets disposed of, such Disposition shall
not be deemed to be an ACNielsen Change of Control Transaction or count
as a Disposition for purposes of subsequent applications of this
provision; or
(d) during any period of two consecutive years, individuals
who at the beginning of such period constituted ACNielsen's Board of
Directors (together with any new directors whose election by
ACNielsen's Board of Directors, or whose nomination for election by
ACNielsen's shareholders, was approved by a vote of a majority of the
Directors then still in office who were either Directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Directors then in office.
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"ACNielsen Business": shall have the meaning ascribed in the
Distribution Agreement.
"ACNielsen Party": each of ACNielsen and each Subsidiary
thereof on or after the Distribution Date.
"ACNielsen Policies": "ACNielsen Policies" as defined in the
Distribution Agreement, together with all Policies owned or maintained
by or on behalf of any ACNielsen Party or assigned to any ACNielsen
Party on or after the Distribution Date.
"ACNielsen Shared Policies": shall have the meaning ascribed
in the Distribution Agreement.
"ACNielsen TAM Business": the TAM Business outside the United
States and Canada conducted by ACNielsen Parties on the Distribution
Date in the countries listed on Schedule 1.1(_) hereto and any
additional TAM Assets acquired or created by any ACNielsen Parties
after the Distribution Date ("After Acquired Assets"), to the extent
such businesses or Assets have been integrated into and are not easily
severable from the TAM Business outside the United States and Canada
conducted by ACNielsen Parties on the Distribution Date; provided, that
such integrated After Acquired Assets may be separated and excluded
from the ACNielsen TAM Business only if such separation leaves the
remaining business intact. After Acquired Assets that are either
severable in the manner described above or not integrated into the
ACNielsen TAM Business existing on the Distribution Date (including, by
way of example and without limitation, new operations begun or acquired
in a country where ACNielsen does not currently have a TAM Business)
shall be excluded from the ACNielsen TAM Business. Notwithstanding
anything to the contrary contained herein, if an ACNielsen Party
establishes, purchases or otherwise acquires a TAM Business in India
(i) within a reasonable period of time after the Distribution Date and
(ii) in accordance with the business plan currently in effect with
respect to India, such TAM Business will be deemed to be part of the
ACNielsen TAM Business as of the Distribution Date. If ACNielsen
abandons its current plans to begin a TAM Business in India and
subsequently establishes, purchases or otherwise acquires a TAM
Business in India, such TAM Business in India shall be deemed to be an
After Acquired Asset subject to the provisions of this paragraph
regarding After Acquired Assets.
"Action": any action, suit, arbitration, inquiry, proceeding
or investigation by or before any court, any governmental or other
regulatory or administrative agency, body or commission or any
arbitration tribunal.
"Affiliate": when used with respect to a specified person,
another person that controls, is controlled by, or is under common
control with the person specified. As used herein, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, whether
through the ownership of voting securities or other interests, by
contract or otherwise.
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"After Acquired Assets": shall have the meaning set forth in
the definition of ACNielsen TAM Business.
"Ancillary Licensing Agreements": the collective reference to
the Technology Licensing Agreement and the Trademark Licensing
Agreement.
"Asset Purchase Agreement": an Asset purchase agreement to be
executed by the TAM Purchaser and ACNielsen in connection with a TAM
Acquisition.
"Assets": with respect to any party, assets, properties and
rights (including goodwill), wherever located (including in the
possession of vendors or other third parties or elsewhere), whether
real, personal or mixed, tangible, intangible or contingent, in each
case whether or not recorded or reflected or required to be recorded or
reflected on the books and records or financial statements of any
person, including, without limitation, the following:
a. all accounting and other books, records and files
whether in paper, microfilm, microfiche, computer
tape or disc, magnetic tape or any other form;
b. all apparatus, computers and other electronic data
processing equipment, fixtures, machinery, equipment,
furniture, office equipment, automobiles, trucks,
aircraft and other transportation equipment, special
and general tools, test devices, prototypes and
models and other tangible personal property;
c. all inventories of materials, parts, raw materials,
supplies, work-in- process and finished goods and
products;
d. all interests in real property of whatever nature,
including easements, whether as owner, mortgagee or
holder of a Security Interest in real property,
lessor, sublessor, lessee, sublessee or otherwise;
e. all interests in any capital stock or other equity
interests of any Subsidiary or any other person, all
bonds, notes, debentures or other securities issued
by any Subsidiary or any other person, interests in
partnerships or joint ventures (whether or not
majority interests), all loans, advances or other
extensions of credit or capital contributions to any
Subsidiary or any other person and all other
investments in securities of any person;
f. all license agreements, leases of personal property,
open purchase orders for raw materials, supplies,
parts or services, unfilled orders for the
manufacture and sale of products and other contracts,
agreements or commitments;
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g. letters of credit and performance and surety bonds
issued in favor of such party by a third party;
h. all written technical information, data,
specifications, research and development information,
engineering drawings, operating and maintenance
manuals, and materials and analyses prepared by
consultants and other third parties;
i. all domestic and foreign patents, copyrights, trade
names, trademarks, service marks and registrations
and applications for any of the foregoing, mask
works, trade secrets, inventions, data bases, other
proprietary information and licenses from third
persons granting the right to use any of the
foregoing;
j. all computer applications, programs and other
software, including operating software, network
software, firmware, middleware, design software,
design tools, systems documentation and instructions;
k. all cost information, sales and pricing data,
customer prospect lists, supplier records, customer
and supplier lists, customer and vendor data,
correspondence and lists, product literature,
artwork, design, development and manufacturing files,
vendor and customer drawings, formulations and
specifications, quality records and reports and other
books, records, studies, surveys, reports, plans and
documents;
l. all prepaid expenses, deposits made by such party,
trade accounts and other accounts and notes
receivable;
m. all rights under contracts or agreements, all claims
or rights against any person arising from the
ownership of any asset, all rights in connection with
any bids or offers and all claims, chooses in action
or similar rights, whether accrued or contingent;
n. all rights under insurance policies and all rights in
the nature of insurance, indemnification or
contribution;
o. all licenses (including radio and similar licenses),
permits, approvals and authorizations which have been
issued by any Governmental Authority;
p. cash and Cash Equivalents, bank accounts, lock boxes
and other deposit arrangements; and
q. interest rate, currency, commodity or other swap,
collar, cap or other hedging or similar agreements or
arrangements.
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"Book Value": TAM Assets to be transferred with all or that
portion of the ACNielsen TAM Business being offered or sold less TAM
Liabilities to be transferred with all or that portion of the ACNielsen
TAM Business being offered or sold, in each case calculated in
accordance with United States generally accepted accounting principles.
"Business Day": a day other than Saturday, Sunday or other day
on which commercial banks in New York, New York or Connecticut are
authorized or required by law to be closed.
"Cash Equivalents": certificates of deposit, securities issued
by the United States Treasury and similar readily marketable
securities.
"Cognizant Business": shall have the meaning ascribed in the
Distribution Agreement.
"Cognizant Party": each of Cognizant and each Subsidiary
thereof on or after the Distribution Date.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Corporate Administration": all personnel, equipment, office
space and other Assets required to perform internal management
functions such as accounting, hiring, payroll, benefits and in-house
legal services.
"D&B": The Dun & Bradstreet Corporation, a Delaware
corporation.
"D&B Party": D&B and each Subsidiary of D&B on and after the
Distribution Date.
"Disclosure Schedules": the meaning ascribed in Section
3.2(a).
"Distribution Agreement": the agreement dated as of
____________ __, 1996 among D&B, Cognizant and ACNielsen.
"Distribution Agreements": the Distribution Agreement and all
of the written agreements, instruments, assignments or other
arrangements (other than this Agreement and the TAM Ancillary
Agreements) entered into in connection with the transactions
contemplated hereby, including, without limitation, the Conveyancing
and Assumption Instruments, the Data Services Agreements, the Employee
Benefits Agreement, the Indemnity and Joint Defense Agreement, the
Intellectual Property Agreement, the Shared Transaction Services
Agreements, the Tax Allocation Agreement and the Transition Services
Agreement.
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"Distribution Date": shall have the meaning ascribed in the
Distribution Agreement.
"Effective Date": _____________ __, 1996, the effective date
of this Agreement.
"Exercise Period": the meaning ascribed in Section 3.2(c).
"Financial Statements" shall mean the financial statements and
schedules listed on Schedule 1.1(_) hereto.
"Governmental Authority": any federal, state, local, foreign
or international court, government, department, commission, board,
bureau, agency, official or other regulatory, administrative or
governmental authority.
"Liabilities": shall have the meaning ascribed in the
Distribution Agreement.
"License Term": shall have the meaning set forth in Section
2.1.
"Material Adverse Effect": a material adverse effect on the
validity or enforceability of this Agreement or any of the transactions
contemplated hereby.
"MONITOR-PLUS Agreement": the agreement dated as of __________
__, 1996 between NMR and ACNielsen pursuant to which NMR agrees to
provide MONITOR-PLUS UPC Linking Services to ACNielsen and ACNielsen
agrees to provide certain data to NMR.
"Multiple-Use Asset": any Asset of any ACNielsen Party that is
employed in the ACNielsen TAM Business and one or more other businesses
conducted by such ACNielsen Party.
"NMR": Xxxxxxx Media Research Inc., a Delaware corporation.
"NMR TAM Business": the TAM Business in the United States and
Canada that is conducted by Cognizant Parties on the Distribution Date.
"Open Issues": the meaning ascribed in Section 3.2(e).
"Option": shall mean the option described in Section 3.2
pursuant to which the Optionee may, under certain circumstances,
acquire all or part of the ACNielsen TAM Business.
"Option Information": the meaning set forth in Section 3.2.
"Option Trigger Event": shall mean each of the events
described in Section 3.2(b)(i), (ii), (iii) and (iv).
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"Person": any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Policies": insurance policies and insurance contracts of any
kind (other than life and benefits policies or contracts), including,
without limitation, primary, excess and umbrella policies,
comprehensive general liability policies, director and officer
liability, fiduciary liability, automobile, aircraft, property and
casualty, workers' compensation and employee dishonesty insurance
policies, bonds and self-insurance and captive insurance company
arrangements, together with the rights, benefits and privileges
thereunder.
"Records": specific and identified agreements, documents,
books, records or files.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Security Interest": any mortgage, security interest, pledge,
lien, charge, claim, option, right to acquire, voting or other
restriction, right-of-way, covenant, condition, easement, encroachment,
restriction on transfer, or other encumbrance of any nature whatsoever.
"Shared TAM Personnel": the collective reference to each
person employed by any ACNielsen Party after the Distribution Date,
which person divides (in any manner) his or her working hours between
the ACNielsen TAM Business and other ACNielsen businesses.
"Subsidiary": any corporation, partnership or other entity of
which another entity (i) owns, directly or indirectly, ownership
interests sufficient to elect a majority of the board of directors (or
persons performing similar functions) (irrespective of whether at the
time any other class or classes of ownership interests of such
corporation, partnership or other entity shall or might have such
voting power upon the occurrence of any contingency) or (ii) is a
general partner or an entity performing similar functions (e.g., a
trustee).
"TAM Acquisition": an acquisition of all or part of the
ACNielsen TAM Business by the TAM Purchaser as contemplated by Article
III.
"TAM Acquisition Date": the date of the consummation of the
related TAM Acquisition.
"TAM Assets": at any date of determination, without
duplication:
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a. any and all Assets employed by any ACNielsen Party in
connection with the ACNielsen TAM Business, including
b. subject to Article VII of the Distribution Agreement,
any rights of any ACNielsen Party under any of the
ACNielsen Policies or the ACNielsen Shared Policies
arising out of any ACNielsen Party's conduct of the
ACNielsen TAM Business, including any rights
thereunder arising after the Distribution Date in
respect of any Policies that are (i) occurrence
Policies or (ii) claims made policies, to the extent
that claims relating to a TAM Acquisition are made
prior to the related TAM Acquisition Date;
c. any contract of any ACNielsen Party, any rights or
claims arising thereunder, and any other rights or
claims or contingent rights or claims to the extent
relating to or arising from any TAM Asset or the
ACNielsen TAM Business;
Notwithstanding the foregoing, TAM Assets
shall not in any event include:
(x) the Assets listed or described on Schedule
1.1(_); or
(y) any Asset that is expressly contemplated by
this Agreement or any Ancillary Licensing
Agreements, including the schedules hereto
or thereto as an Asset to be retained by any
ACNielsen Party upon the consummation of a
TAM Acquisition.
In the event of any inconsistency or conflict which
may arise in the application or interpretation of any
of the foregoing provisions, for the purpose of
determining what is and is not a TAM Asset, any item
expressly included or excluded as a TAM Asset on a
Schedule to this Agreement or any Ancillary Licensing
Agreement shall take priority over any provision of
the text hereof.
"TAM Business": the meaning ascribed in Schedule 1.1(_).
"TAM Liabilities": at any date of determination, without
duplication: all obligations and Liabilities of any ACNielsen Party
under this Agreement or any of the Ancillary Licensing Agreements and
all Liabilities of each ACNielsen Party primarily relating to, arising
out of or resulting from:
a. the operation of the ACNielsen TAM Business
(including any Liability relating to, arising out of
or resulting from any act or failure to act by any
director, officer, employee, agent or representative
(whether or not such act or failure to act is or was
within such person's authority)); or
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b. any TAM Assets;
whether arising before, on or after the Distribution Date. Notwithstanding the
foregoing, the TAM Liabilities shall not include:
(x) Liabilities allocated to another party
pursuant to the Tax Allocation Agreement;
(y) any Liabilities that are expressly
contemplated by this Agreement or any
Ancillary Licensing Agreements, including
the Schedules hereto or thereto, in
particular, the excluded Liabilities listed
on Schedule 1.1(_) hereto) as Liabilities to
be retained or assumed by any ACNielsen
Party or by any Cognizant Party upon an ACN
Change of Control Transaction; or
(z) any agreement or obligation of (i) any D&B
Party or any Cognizant Party under the
Distribution Agreements or (ii) any
Cognizant Party under this Agreement or any
of the Ancillary Licensing Agreements.
"XXX Xxxxx": the trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and the
goodwill associated therewith, now existing or hereafter adopted or
acquired for use in connection with the TAM Business, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any state thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
thereof referred to on Schedule 1.1(_), and all renewals thereof.
"TAM Personnel": the collective reference to Shared TAM
Personnel and to each person employed by any ACNielsen Party after the
Distribution Date, which person devotes all of his or her working hours
to the ACNielsen TAM Business.
"TAM Purchase Price": Book Value, as adjusted in accordance
with Schedule 1.1 (_) plus one-half of Transfer Costs.
"TAM Purchaser": Any of Cognizant, NMR or a permitted
successor or assign of either that acquires all or part of the
ACNielsen TAM Business pursuant to Article III.
"TAM Technology": the technology set forth on Schedule 1.1(_)
hereto and the schedules to the Ancillary Licensing Agreements.
"Tax" or "Taxes": taxes on or measured by income, franchise,
gross receipts, sales, use, excise, payroll, personal property, real
property, ad-valorem, value-added,
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leasing, leasing use or other taxes, levies, imposts, duties, charges
or withholdings of any nature. Whenever the term "Tax" or "Taxes" is
used (including, without limitation, regarding any duty to reimburse
another party for indemnified taxes or refunds or credits of taxes), it
shall include penalties, fines, additions to tax and interest thereon.
"Technology Licensing Agreement": the collective reference to
one or more nonexclusive technology licensing and support services
agreements substantially in the form of Exhibit _, by and between a
Cognizant Party, as licensor, and one or more ACNielsen Parties, as
licensee and any related permitted sublicensing agreements between
ACNielsen Parties or between an ACNielsen Party and a joint venture
partner.
"Trademark Licensing Agreement": the collective reference to
one or more nonexclusive trademark licensing agreements covering XXX
Xxxxx and substantially in the forms of [Exhibit _, _ and _ ] by and
between a Cognizant Party or an ACNielsen Party, as licensor, and one
or more ACNielsen Parties or Cognizant Parties, respectively, as
licensee, and any related permitted sublicensing agreements between
ACNielsen Parties, between Cognizant Parties or between an ACNielsen
Party or a Cognizant Party and a joint venture partner.
"Transfer Costs": costs reasonably attributable to the
transfer of all or that portion of the ACNielsen TAM Business being
offered or sold including, without limitation, transfer taxes and
filing fees, but excluding ACNielsen's (i) accountants' fees incurred
in connection with the determination of Book Value and the TAM Purchase
Price in accordance with Section 3.1, (ii) any investment bankers' fees
incurred by ACNielsen in connection with such transfer or (iii) certain
taxes of the type set forth on Schedule 1.1(_) incurred by ACNielsen in
connection with such transfer.
"Year Four": shall have the meaning set forth in Section 3.2.
"Year Four Purchaser": shall have the meaning set forth in
Section 3.2.
"Year Four Trigger Event": shall have the meaning set forth in
Section 3.2.
1.2 References; Interpretation. References in this Agreement
to any gender include references to all genders, and references to the singular
include references to the plural and vice versa. The words "include", "includes"
and "including" when used in this Agreement shall be deemed to be followed by
the phrase "without limitation". Unless the context otherwise requires,
references in this Agreement to Articles, Sections, Exhibits and schedules shall
be deemed references to Articles and Sections of, and Exhibits and schedules to,
this Agreement. Unless the context otherwise requires, the words "hereof",
"hereby" and "herein" and words of similar meaning when used in this Agreement
refer to this Agreement in its entirety and not to any particular Article,
Section or provision of this Agreement.
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ARTICLE II
TECHNOLOGY AND TRADEMARKS
2.1 Obligation to License Technology.
(a) Each Cognizant Party shall license to each ACNielsen Party
that so requests, (i) TAM Technology for use in Australia, Ireland and India to
which such Cognizant Party has rights in commercial use, (ii) upgrades thereof
to the extent required to permit such ACNielsen Party to fulfill a Contractual
Obligation existing on the Distribution Date including, without limitation, any
Contractual Obligation resulting from the exercise of a unilateral renewal (or
other) right by a party other than such ACNielsen Party and (iii) additional
licenses to permit use of new technology in connection with the technology
described in clauses (i) and (ii) to the extent required to permit such
ACNielsen Party to fulfill a Contractual Obligation existing on the Distribution
Date with respect to Australia, Ireland and/or India, as the case may be,
pursuant to one or more licensing agreements substantially in the form of
Exhibit _ for the period commencing on the Distribution Date to and including
the later of the fifth anniversary thereof and such date as is required to
permit such ACNielsen Party to fulfill any Contractual Obligation existing on
the Distribution Date, including, without limitation, any Contractual Obligation
resulting from the exercise of a unilateral renewal (or other) right by a party
other than such ACNielsen Party (each such period, a "License Term") provided
that ACNielsen may terminate any or all of such Licenses prior to the expiration
of the License Term upon two months notice to the licensing Cognizant Party.
(b) ACNielsen, on behalf of itself and each other ACNielsen
Party, shall pay to Cognizant for as long as such TAM Technology is licensed a
royalty in an amount equal to 3% of the gross revenue (including cash and
non-cash consideration) generated by the ACNielsen TAM Business in each of
Australia and Ireland, and in an amount to be specified in the relevant
licensing agreements with respect to India. Such royalty shall be payable in
respect of the revenue generated in each such country until the earlier of (x)
the end of the stated License Term latest to end in such country and (y) the
date the Agreement is terminated pursuant to the notice described in the proviso
at the end of (a) above.
(i) For purposes of this Section, revenue generated
during the License Term shall mean revenue arising from products and
services of the ACNielsen TAM Business delivered during the License
Term in the covered country, whether such revenue is collected during
or after the expiration of the License Term.
(ii) Such royalty shall be payable only to the extent
that an ACNielsen Party has collected such revenue in cash. Any cash
collected by an ACNielsen Party shall be allocated to the earliest
unpaid receivable due from the party that has made such payment to such
ACNielsen Party.
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(iii) ACNielsen's obligation to pay such royalty in
accordance with the relevant Technology License Agreement shall survive
the termination of this Agreement.
(iv) To the extent that ACNielsen generates revenue
during the License Term from a product or service that covers more than
one country, the percentage of such revenue allocable to each such
country ("Country X") shall be the percentage equivalent of a fraction,
the numerator of which is the list price of the data originated in
Country X, and the denominator of which is the aggregate list price of
all data included in such product or service.
2.2 Limited Obligation. Nothing contained herein shall
prohibit any ACNielsen Party from amending or modifying any existing Contractual
Obligation relating to the licensed TAM Technology provided that such amendment
or modification does not in any way extend the Cognizant Party licensor's
obligations other than as permitted hereunder.
2.3 Research and Development. (a) Each Cognizant Party, on the
one hand, and each ACNielsen Party, on the other, will maintain ownership and
control over, and will bear all costs with respect to, all technology research
and development originated by such party.
(b) No Cognizant Party or ACNielsen Party shall have any
obligation to share research and development except to the extent expressly set
forth in Section 2.1 or in any Ancillary Licensing Agreement.
2.4 Audit Rights. ACNielsen shall, and shall cause each
relevant ACNielsen Party to, maintain complete and accurate accounts and records
of each ACNielsen Party's revenues in respect of which a royalty is payable
under the relevant Technology Licensing Agreement in accordance with generally
accepted accounting principles. Cognizant shall have the right to cause an audit
during normal business hours of each ACNielsen Party's records referred to in
the first sentence of this Section 2.4 once a year upon reasonable business
notice. Cognizant shall bear the cost of any audit performed pursuant to this
Section 2.4 except that if, as a result of Cognizant's audit (which shall be
calculated in accordance with generally accepted accounting principles) the
royalty owed to Cognizant is determined to be greater than the royalty
determined by ACNielsen by 10% or more, ACNielsen shall bear the cost of such
audit.
2.5 Trademark Licensing Agreement. Cognizant and ACNielsen
will or will cause the appropriate ACNielsen Party and/or Cognizant Party, as
the case may be, to enter into the Trademark Licensing Agreements, including,
without limitation, the grant to Cognizant by ACNielsen of a non-exclusive,
non-transferable, royalty-free license (without right to sub-license to a party
unrelated to Cognizant) substantially in the form of Exhibit __ hereto, pursuant
to which Cognizant will obtain the right to use the "Media Advisor" trademark
and/or computer software programs relating thereto in the conduct of the TAM
Business in Canada until the fifth anniversary of the Distribution Date.
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ARTICLE III
OPTION TO PURCHASE
3.1 Segregation of ACNielsen TAM Business. (a) ACNielsen
shall, no later than January 1, 1998, produce and deliver to Cognizant or the
then-Optionee a comprehensive, detailed and feasible written plan (the "Plan")
for segregating the ACNielsen TAM Business from other ACNielsen businesses, for
the purpose of rendering feasible the consummation of a TAM Acquisition with
respect to the ACNielsen TAM Business as a whole pursuant to Section 3.2 and
enabling the TAM Purchaser, commencing on the TAM Acquisition Date, to operate
the ACNielsen TAM Business as a going concern without interruption, subject to
Section 3.1(b) below; provided, however, that ACNielsen shall not be required to
create a standalone Corporate Administration pursuant to the Plan to satisfy the
requirements of this Section 3.1(a). The Plan shall be based on the principles
and guidelines set forth on Schedule 3.1(a) and shall include, without
limitation, the following:
(i) complete and correct schedules setting forth the
following in reasonable detail:
(x) each Asset, including each Multiple-Use
Asset, employed in connection with the
ACNielsen TAM Business and a description
thereof; and
(y) the TAM Personnel and the Shared TAM
Personnel, including without limitation
persons involved in Corporate Administration
for the ACNielsen TAM Business, each
employee's job description, the approximate
percentage of each employee's time spent on
the TAM Business, if less than all, and a
description of such employee's compensation
(salary, benefits, bonuses and options);
(ii) provisions identifying Assets and specified TAM
Personnel to be transferred to the TAM Purchaser upon
the consummation of the TAM Acquisition together with
a transition plan relating to the fair and equitable
separation of Multiple Use Assets and Shared TAM
Personnel and an analysis demonstrating how such
transfers would be effected and that such transfers
would enable the TAM Purchaser to operate the
ACNielsen TAM Business as a going concern without
interruption commencing on the TAM Acquisition Date,
subject to Section 3.1(b) below. Such provisions must
expressly address technical infrastructure,
operations, sales, customer relations, and data
collection, transmission and analysis on a
country-by-country basis; and (iii) a certification
of the chief financial officer of ACNielsen as to all
of the foregoing.
(b) Cognizant, any subsequent Optionee and ACNielsen shall at
all relevant times cooperate in good faith with respect to the Plan. Each such
party will act in good faith
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in negotiating the allocation of Shared TAM Personnel and Multiple-Use Assets.
After the Optionee has given notice of the exercise of the Option, no party
shall attempt to solicit for employment or otherwise influence any ACNielsen
employee to accept employment with an employer other than the employer
designated by the Plan for such employee. Subject to the foregoing, no ACNielsen
Party, or Cognizant Party or Optionee shall be prohibited from (i) hiring
(subject to the prohibition on solicitation described above) any person who is
designated in the Plan to be employed by the other party or (ii) prior to the
exercise of the Option, moving employees from one business group to another or
otherwise changing an employee's position. Each of Cognizant and ACNielsen
understand and acknowledge that the separation of Shared TAM Personnel and
Multiple Use Assets will cause disruption of and create expense for the
ACNielsen TAM Business and other ACNielsen businesses. It is further understood
that the transition arrangements contained in the Plan regarding Shared TAM
Personnel and Multiple Use Assets shall be in accordance with Schedule 3.1(a)
but that the parties shall make a good faith effort to divide the potential
disruption and expense to the ACNielsen TAM Business and the other ACNielsen
businesses fairly and equitably. Each party acknowledges that such party may be
required to hire additional personnel and replace Assets to enable its
businesses to operate as going concerns after the TAM Acquisition.
(c) The Optionee shall give written notice of any objection to
the initial Plan within 90 days after receipt thereof. During such 90-day
period, ACNielsen shall afford to the Optionee and its outside accountants,
counsel, financial advisors and other representatives, access during normal
business hours to all officers, employees and information (including, without
limitation, books and records) reasonably necessary for the Optionee to
determine the feasibility of the Plan and ACNielsen's compliance with the terms
of this Agreement relating to the Plan, and shall furnish to the Optionee such
information concerning the ACNielsen TAM Business as the Optionee may reasonably
request.
(d) ACNielsen shall deliver a revised Plan, together with a
written response addressing each objection set forth in a notice delivered
pursuant to clause (c) above, within 45 days after receipt of such notice. The
chief financial officer of ACNielsen shall sign each such document.
(e) To the extent that the Optionee objects to such revised
Plan, the Optionee shall deliver written notice thereof within 30 days of
receipt of such revised Plan. Failure to deliver such notice shall be deemed to
be approval of such revised Plan.
(f) If the parties cannot agree on a Plan within 30 days after
the delivery of notice pursuant to clause (e) above, the provisions of Article V
shall govern.
(g) ACNielsen shall, and shall cause each other ACNielsen
Party, promptly after the Distribution Date to use commercially reasonable
efforts (without expending money or making any contractual concessions) to cause
each new and each existing contract with employees working in the ACNielsen TAM
Business to be assignable to the TAM Purchaser without consent. Contracts (other
than employee contracts) which cannot be assigned shall be addressed in the
transition arrangements of the Plan and ACNielsen will (or will cause the
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appropriate ACNielsen Party to) endeavor to obtain the benefits of such contract
for the TAM Purchaser.
(h) ACNielsen shall, and shall cause each other ACNielsen
Party, to keep complete and correct books of records and account in which full,
true and correct entries in conformity with generally accepted accounting
principles and all requirements of law of all dealings and transactions in
relation to the ACNielsen TAM Business are separately identified.
(i) ACNielsen shall, and shall cause each other ACNielsen
Party, to create and maintain written internal and external operating
procedures, policies and guidelines with respect to the ACNielsen TAM Business,
including, without limitation, sales, credit and collection policies.
3.2 Option.
(a) Voluntary Option. At any time after the Distribution Date
ACNielsen, acting in good faith, may notify the Optionee in writing that it
desires to sell all or a portion of the ACNielsen TAM Business to the Optionee
(which notice, with respect to TAM Assets constituting less than all of the
ACNielsen TAM Business, must be based upon ACNielsen's good faith intention to
find a purchaser for such TAM Assets), by submitting to the Optionee with such
notification the following items relating to all or the portion of the ACNielsen
TAM Business being offered, (i) the Plan (unless ACNielsen has already submitted
the Plan to the Optionee), (ii) a statement setting forth Book Value and an
estimate of the TAM Purchase Price, each as of a reasonably recent date, setting
forth in reasonable detail the basis for their respective calculations, (iii)
Financial Statements and (iv) schedules setting forth as of a recent date (but
in no event dating back more than 60 days), all known Liabilities and known
contingent Liabilities not reflected in the Financial Statements which
individually or in the aggregate are material, threatened or pending litigation
matters that individually or in the aggregate are material, material
non-compliance with laws, material required consents, and material Assets
(including contracts) which require approval to be transferred (the "Disclosure
Schedules"). To the extent that a TAM Acquisition is to be consummated pursuant
to this Article III, ACNielsen shall deliver updated Disclosure Schedules dated
as of the related TAM Acquisition Date to the TAM Purchaser. Such updated
Disclosure Schedules shall include all Liabilities, other than Liabilities
incurred in the ordinary course of business, which would have been required to
be included by ACNielsen in the Disclosure Schedules originally provided to the
Optionee had such Liabilities existed on such date. The items set forth in (i),
(ii), (iii) and (iv), as they relate to all or any portion of the ACNielsen TAM
Business being offered or sold, are hereinafter referred to as the "Option
Information".
(b) Mandatory Option. If on or prior to the third anniversary
of the Distribution Date, subject to (f) below:
(i) an ACN Change of Control Transaction occurs; or
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(ii) any ACNielsen Party executes a binding agreement
or letter of intent (each of which must be subject to
the Cognizant Party's Option rights hereunder) in
connection with the sale or other disposition of TAM
Assets that (A) generate 50% or more of the revenue
of the ACNielsen TAM Business for the preceding
twelve months or (B) represent greater than 50% of
the TAM Assets before giving effect to such sale or
disposition, including for purposes of determining
whether the tests in (A) or (B) are met any prior
dispositions that, when aggregated with the proposed
disposition, would cause the aggregate amount of TAM
Assets disposed of collectively by the ACNielsen
Parties in a series of transactions to exceed 50% of
TAM Assets or constitute TAM Assets generating 50% or
more of the revenue of the ACNielsen TAM Business for
the preceding twelve months; provided, however, that
to the extent that within three months of such
disposition, such ACNielsen party (A) reinvests or
enters into a binding agreement or letter of intent
to reinvest the proceeds from such disposition of TAM
Assets in Assets that are used in connection with the
ACNielsen TAM Business or (B) outsources or enters
into a binding agreement or letter of intent to
outsource to third parties the functions or
information generated by the TAM Assets disposed of,
such disposition shall not be deemed to be an Option
Trigger Event or count as a disposition for purposes
of subsequent applications of this provision; or
(iii) any ACNielsen Party executes a binding
agreement or letter of intent (each of which must be
subject to the Cognizant Party's Option rights
hereunder) in connection with the sale or other
disposition of TAM Assets that (A) generate 50% or
more of the revenue of the ACNielsen TAM Business in
any country for the preceding twelve months or (B)
represent greater than 50% of the TAM Assets in any
country before giving effect to such sale or
disposition, including for purposes of determining
whether the tests in (A) or (B) are met any prior
dispositions that, when aggregated with the proposed
disposition, would cause the aggregate amount of TAM
Assets disposed of collectively by the ACNielsen
Parties in such country in a series of transactions
to exceed 50% of such Assets or constitute Assets
generating 50% or more of the revenue in such country
for the preceding twelve months; provided, however,
that to the extent that within three months of such
disposition, such ACNielsen party (A) reinvests or
enters into a binding agreement or letter of intent
to reinvest the proceeds from the proposed
disposition of TAM Assets in such country in Assets
that are used in connection with the TAM Business in
such country or (B) outsources or enters into a
binding agreement or letter of intent to outsource to
third parties the functions or information generated
by the TAM Assets disposed of in such country, such
disposition shall not be deemed to be an Option
Trigger
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Event with respect to such country or count as a
disposition for purposes of subsequent applications
of this provision; or
(iv) any ACNielsen Party adopts a definitive plan or
takes similar definitive action to shut down or
otherwise terminate the operations of the ACNielsen
TAM Business in any country or other geographic area
which constitutes a distinct TAM Business.
ACNielsen must give Cognizant written notice within ten Business Days of such
event and must provide to Cognizant, within sixty Business Days of such event,
the Option Information.
(c) During the period beginning on the fifteenth day after the
occurrence of the Option Trigger Event and ending no later than the thirtieth
day following the Optionee's receipt of all of the Option Information, ACNielsen
shall provide to Cognizant during ACNielsen's normal business hours (and upon
reasonable notice) reasonable access to (i) members of ACNielsen's management
and ACNielsen's independent accountants and counsel who possess an in-depth
understanding of the ACNielsen TAM Business and (ii) the premises, books and
records of ACNielsen that relate to all or that portion of the ACNielsen TAM
Business proposed to be sold. On or prior to the expiration of the thirty-day
period following the Optionee's receipt of all of the Option Information (the
"Exercise Period"), the Optionee must notify ACNielsen in writing whether the
Optionee desires to acquire all or the portion of the AcNielsen TAM Business
described in the notice in (b) above for the TAM Purchase Price. Failure of the
Optionee timely to give such notice shall be deemed to be notice that the
Optionee does not desire to effect such TAM Acquisition. If the Optionee
notifies ACNielsen that the Optionee desires to effect to effect such TAM
Acquisition but disagrees with the Plan (to the extent not previously agreed) or
the calculation of the TAM Purchase Price, the parties shall promptly negotiate
to resolve such issues during the period referred to in (d) below,
notwithstanding any other time period set forth this Agreement in respect of
negotiation of the Plan including Section 3.1(b).
(d) If the Optionee gives ACNielsen notice that it desires to
make such acquisition, ACNielsen and the Optionee must negotiate in good faith
in a manner consistent with Section 3.4 the consummation of the acquisition by
the Optionee of all or the portion of the ACNielsen TAM Business proposed to be
sold for the period of thirty days immediately following such notice. Cognizant
may not withdraw such notice within such thirty-day period.
(e) (i) Notwithstanding anything set forth herein to the
contrary, after each of the Optionee and ACNielsen has given written notice
confirming such party's approval of a Plan, no term of such Plan shall be
subject to renegotiation, except to the extent that a change in the ACNielsen
TAM Business (including, without limitation, the addition or removal of hybrid
products, Shared TAM Personnel, nonassignable contracts and Multiple-Use Assets)
has rendered such term incomplete or inapplicable. The Optionee and ACNielsen
shall negotiate terms so affected, together with new terms to address changes in
the ACNielsen TAM Business not addressed by the previously approved Plan, during
the Exercise Period.
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(ii) In the event that during the Exercise Period the Optionee
and ACNielsen are unable to agree on (x) a Plan (to the extent the Optionee has
not previously approved any Plan), (y) changes to a Plan to be made pursuant to
clause (i), or (z) ACNielsen fails to submit a plan, as applicable, the Optionee
shall give ACNielsen written notice within [five] Business Days after the
expiration of the Exercise Period whether the Optionee still desires to acquire
the ACNielsen TAM Business proposed to be sold. If so, the Optionee may submit
all or a portion of the Plan to arbitration in accordance with Schedule 3.2(e).
(iii) Article V, as modified by Schedule 3.2(e), shall govern
the submission of all or any part of the Plan to arbitration.
(f) Option Tail. In the event that:
(i) any of the events described in (b)(i), (ii) (iii)
or (iv) above occurs within the one-year period after
the third anniversary of the Distribution Date (such
one-year period referred to as "Year Four", and any
such event a "Year Four Trigger Event"), and
(ii) any of the following actions were taken by any
ACNielsen Party during the one-year period prior to
the third anniversary of the Distribution Date: (A)
the adoption by such ACNielsen Party of resolutions
of the board of directors or equivalent body
authorizing the engagement of investment bankers or
financial advisors in contemplation of such Year Four
Trigger Event or otherwise authorizing the ACNielsen
Party to solicit offers or indications of interest
for the purchase of all or part of the ACNielsen TAM
Business, or the entry into discussions with the
third party with whom such Year Four Trigger Event
was ultimately consummated (such party being referred
to as the "Year Four Purchaser") or with any
representative or agent thereof; (B) the engagement
of investment bankers or financial advisors in
contemplation of a Year Four Trigger Event or the
entry into discussions with the Year Four Purchaser
or any representative or agent thereof in
contemplation of a Year Four Trigger Event, whether
or not such action was authorized by the board of
directors or equivalent body or (C) the solicitation
of the Year Four Purchaser to participate in such
Year Four Trigger Event,
then ACNielsen must notify the Optionee of such Year Four Trigger Event and
treat such Year Four Trigger Event as an Option Trigger Event for all purposes
under this Agreement.
(g) Limits on Option. If the Optionee notifies ACNielsen that
it does not desire to exercise a mature Option to purchase the entire ACNielsen
TAM Business, the Optionee shall no longer have any right to exercise any Option
hereunder and ACNielsen Parties may sell all or any part of the ACNielsen TAM
Business or TAM Assets without any obligation to the Optionee under this Article
III. If after a notice has been delivered with respect to a part of the
ACNielsen TAM Business, including, without limitation, a particular
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country or countries, the Optionee notifies ACNielsen that it does not desire to
exercise its Option with respect to the TAM Assets that are the subject of the
original notification from ACNielsen to the Optionee, it shall thereafter no
longer have any right to exercise any Option hereunder in respect of such TAM
Assets unless such TAM Assets are subsequently offered as part of a larger group
of TAM Assets, in which case such TAM Assets would be subject to the Option
rights hereunder as part of such larger group of TAM Assets.
3.3 Price.
(a) ACNielsen will notify the TAM Purchaser in writing of its
final calculation and estimation of the TAM Purchase Price at least 5 Business
Days prior to the closing of the acquisition. The TAM Purchaser will pay
undisputed Transfer Costs on the TAM Acquisition Date and will deposit any
disputed amounts in escrow. ACNielsen will deliver an accounting of the TAM
Purchase Price within 30 days after the TAM Acquisition Date. The TAM Purchaser
must deliver written notice of any objection to any part of such accounting
within 10 days after receipt of such accounting. If the TAM Purchaser delivers
such notice, the provisions of Article VII will govern the resolution of all
disputed items.
3.4 Other Terms and Conditions of Exercise. (a) ACNielsen
shall use its commercially reasonable efforts (without expending money or making
any contractual concessions) to obtain assignments of (i) employment contracts
of employees working in the ACNielsen TAM Business whom the TAM Purchaser
desires to retain and (ii) such other contracts constituting TAM Assets as the
TAM Purchaser shall reasonably request.
(b) (i) ACNielsen shall represent in each Asset Purchase
Agreement that ACNielsen has not knowingly or recklessly included in the
information delivered by or on behalf of ACNielsen to the TAM Purchaser,
including the Option Information and information provided pursuant to Section
3.2(c) (the "Disclosure Information"), any untrue statement of a material fact,
or omitted to disclose or state any material fact required to be stated therein
or necessary in order to make the Disclosure Information, in light of the
circumstances under which such information was delivered, not misleading.
(ii) Neither ACNielsen nor any TAM Purchaser shall be required
to make any other representation or warranty in any Asset Purchase Agreement.
(c) No Asset Purchase Agreement shall provide for
indemnification of either party by the other in connection with the TAM
Acquisition, except that the parties shall indemnify each other in respect of
third party claims to the extent provided in Article III of the Distribution
Agreement.
(d) Each Asset Purchase Agreement shall subject the parties
thereto to dispute resolution as provided in Article VI of the Distribution
Agreement.
(e) ACNielsen shall covenant in each Asset Purchase Agreement
not to compete with the TAM Purchaser in the TAM Business for a period of three
years after the TAM Acquisition Date in the country or countries in which the
acquired TAM Business was
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operated as of such Acquisition Date, subject to any Contractual Obligation of
any ACNielsen Party existing on the Distribution Date which Contractual
Obligation is not transferred to the TAM Purchaser; provided, however, that
nothing contained herein shall restrict or limit ACNielsen's ability to engage
in any operations, new business ventures or activities relating to the Internet
(including without limitation measurement of Internet usage by consumers) or to
computers.
3.5 Survival. (a) In the event that Cognizant disposes of a
controlling interest in NMR, the purchaser of such controlling interest shall
succeed to Cognizant's rights and obligations under this Article III.
(b) Any person who acquires a controlling interest in
ACNielsen shall acquire such interest subject to this Agreement, provided that
the foregoing shall not operate (i) to toll, extend or duplicate any time period
set forth in Section 3.2 within which the TAM Purchaser must give notice of its
exercise of its option to acquire the ACNielsen TAM Business or (ii) to give a
successor TAM Purchaser the right to give notice that such successor TAM
Purchaser desires to acquire the ACNielsen Business to the extent that such
notice is based on the occurrence of an event described in Section 3.2(a) in
respect of which the predecessor to the TAM Purchaser gave notice that it did
not desire to acquire the ACNielsen TAM Business or failed to give notice within
the period set forth in Section 3.2. The foregoing shall not operate to preclude
a successor TAM Purchaser from exercising its option based on any event that (x)
occurs after it becomes the TAM Purchaser or (y) occurs prior to its becoming
the TAM Purchaser if the time period set forth in Section 3.2(c) has not expired
and the predecessor TAM Purchaser did not give notice that it declined to
exercise the option.
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ARTICLE IV
INDEMNIFICATION
4.1 Indemnification. Article III of the Distribution Agreement
shall govern the rights of Cognizant Parties and ACNielsen Parties with respect
to indemnification. The term "Cognizant Liabilities" in that Article shall be
read to include all Liabilities assumed by Cognizant Parties pursuant to this
Agreement. The term "ACNielsen Liabilities" in that Article shall be read to
include all Liabilities assumed by ACNielsen Parties pursuant to this Agreement.
ARTICLE V
DISPUTE RESOLUTION
5.1 Dispute Resolution. Article VI of the Distribution
Agreement shall govern the rights of Cognizant Parties and ACNielsen Parties
with respect to dispute resolution. The term "Agreement Dispute" in that Article
shall be read to include all disputes between Cognizant Parties and ACNielsen
Parties relating to or arising out of this Agreement.
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ARTICLE VI
CONDITIONS TO EFFECTIVENESS
6.1 The effectiveness of this agreement is subject of the
satisfaction, or waiver by the party to whom performance is owed, of the
following conditions:
(a) Occurrence of Distribution Date. The Distribution Date
shall have occurred.
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ARTICLE VII
COVENANTS
7.1 Further Assurances. In case at any time after the
Distribution Date any further action is reasonably necessary or desirable to
carry out the purposes of this Agreement, any Asset Purchase Agreement or any
Ancillary Licensing Agreements, the proper officers of each party to this
Agreement shall take all such necessary action. Without limiting the foregoing,
Cognizant and ACNielsen shall use their 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, any Asset
Purchase Agreement and the Ancillary Licensing Agreements, including, without
limitation, all applicable governmental and regulatory filings.
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ARTICLE VIII
MISCELLANEOUS
8.1 Construction. This Agreement, including the Exhibits and
Schedules, and the Ancillary Licensing Agreements shall constitute the entire
agreement between the parties with respect to the subject matter hereof and
shall supersede all previous negotiations, commitments and writings with respect
to such subject matter. In the event of any inconsistency between this Agreement
and any Schedule hereto, the Schedule shall prevail. Other than Section 4.5 and
Article V of this Agreement, which shall prevail over any inconsistent or
conflicting provisions in any Ancillary Licensing Agreement, notwithstanding any
other provisions in this Agreement to the contrary, in the event and to the
extent that there shall be a conflict between the provisions of this Agreement
and the provisions of any Ancillary Licensing Agreement, such Ancillary
Licensing Agreement shall control.
8.2 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other parties.
8.3 Expenses. Except as otherwise expressly set forth in this
Agreement or any Ancillary Licensing Agreement, each party shall bear its own
costs and expenses. Any amount or expense to be paid or reimbursed by any party
hereto to any other party hereto shall be so paid or reimbursed promptly after
the existence and amount of such obligation is determined and demand therefor is
made.
8.4 Notices. All notices and other communications hereunder
shall be in writing and hand delivered or mailed by registered or certified mail
(return receipt requested) or sent by any means of electronic message
transmission with delivery confirmed (by voice or otherwise) to the parties at
the following addresses (or at such other addresses for a party as shall be
specified by like notice) and will be deemed given on the date on which such
notice is received:
To Cognizant Corporation: 000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
To ACNielsen Corporation:
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
8.5 Waivers. The failure of any party to require strict
performance by any other party of any provision in this Agreement will not waive
or diminish that party's right to demand strict performance thereafter of that
or any other provision hereof.
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8.6 Amendments. This Agreement may not be modified or amended
except by an agreement in writing signed by each of the parties hereto.
8.7 Assignment. (a) Except as set forth in Article III above,
ACNielsen may not assign this Agreement, in whole or in part, directly or
indirectly, without the prior written consent of Cognizant.
(b) Cognizant may assign this Agreement to a purchaser of a
controlling interest in, or all or substantially all of the Assets of, NMR.
8.8 Successors and Assigns. The provisions to this Agreement
shall be binding upon, inure to the benefit of and be enforceable by the parties
and their respective successors and permitted assigns.
8.9 Subsidiaries. Each of the parties hereto shall cause to be
performed, and hereby guarantees the performance of, all actions, agreements and
obligations set forth herein to be performed by any Subsidiary of such party or
by any entity that is contemplated to be a Subsidiary of such party on or after
the Distribution Date.
8.10 Third-Party Beneficiaries. Except as provided in Article
IV relating to Indemnities, this Agreement is solely for the benefit of the
parties hereto and their respective Subsidiaries and Affiliates and should not
be deemed to confer upon third parties any remedy, claim, Liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
8.11 Titles and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
8.12 Exhibits and Schedules. The Exhibits and Schedules shall
be construed with and as an integral part of this Agreement to the same extent
as if the same had been set forth verbatim herein.
8.13 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
8.14 Consent to Jurisdiction. Without limiting the provisions
of Article V hereof, each of the parties irrevocably submits to the exclusive
jurisdiction of (a) the Supreme Court of the State of New York, New York County,
and (b) the United States District Court for the Southern District of New York,
for the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby. Each of the parties agrees to
commence any action, suit or proceeding relating hereto either in the United
States District Court for the Southern District of New York or if such suit,
action or other proceeding may not be brought in such court for jurisdictional
reasons, in the Supreme Court
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of the State of New York, New York County. Each of the parties further agrees
that service of any process, summons, notice or document by U.S. registered mail
to such party's respective address set forth above shall be effective service of
process for any action, suit or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction in this Section 8.14. Each of
the parties irrevocably and unconditionally waives any objection to the laying
of venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (i) the Supreme Court of the State of New
York, New York County, or (ii) the United States District Court for the Southern
District of New York, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
8.15 Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
COGNIZANT CORPORATION
By
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Name:
Title:
ACNIELSEN CORPORATION
By
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Name:
Title:
