EMPLOYEE BENEFITS AGREEMENT
This EMPLOYEE BENEFITS AGREEMENT is dated as of June 30, 1998
(the "Agreement"), between COGNIZANT CORPORATION, a Delaware corporation
("Corporation") and IMS HEALTH INCORPORATED, a Delaware corporation ("IMS
Health").
WHEREAS, the Board of Directors of Corporation has determined
that it is appropriate, desirable and in the best interests of the holders of
shares of common stock, par value $.01 per share, of Corporation (the
"Corporation Common Stock") to take certain steps to reorganize Corporation's
Subsidiaries (as defined herein) and businesses and then to distribute to the
holders of the Corporation Common Stock all the outstanding shares of common
stock of IMS Health (the "IMS Health Common Stock"); and
WHEREAS, Corporation and IMS Health have 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, Corporation and IMS Health 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.
"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, 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
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contemplated by this Agreement and the Distribution Agreement, including,
without limitation, the Conveyancing and Assumption Instruments, the Shared
Transaction Services Agreement, the Tax Allocation Agreement and the Transition
Services Agreement.
"Assets" shall have the meaning set forth in Section
1.1(f) 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.
"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.
"Cognizant" shall mean Cognizant Corporation, a
Delaware corporation.
"Corporate Staff Employees" shall mean Corporation Pre-
Distribution Employees who performed administrative functions generally for the
Corporation Group prior to the Effective Time and who were based at the
Corporation headquarters in Westport, CT, aviation department in Purchase, NY or
STS department in Allentown, PA.
"Corporation" shall mean Cognizant Corporation, a
Delaware corporation.
"Corporation Committee" shall mean the Compensation and
Benefits Committee of the Board of Directors of Corporation.
"Corporation Common Stock" shall have the meaning set
forth in the recitals hereto.
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"Corporation Disabled Employees" shall mean all employees of
the Corporation Group who are receiving benefits under the Corporation Long-Term
Disability Plan as of the Effective Time, as in effect from time to time.
"Corporation Employee Stock Purchase Plan" shall mean
the 1997 Cognizant Corporation Employee Stock Purchase Plan, as in effect from
time to time.
"Corporation Executive Annual Incentive Plan" shall mean the
Cognizant Corporation Executive Annual Incentive Plan, as in effect from time to
time.
"Corporation Group" shall mean Cognizant Corporation and each
Business Entity that is a Subsidiary of Corporation, except that Corporation
Group shall not include Xxxxx International Inc. or any of its Subsidiaries.
"Corporation Long-Term Disability Plan" shall mean The
Cognizant Long Term Disability Plan or any other long-term disability plan
sponsored by Corporation or any Subsidiary of Corporation prior to the Effective
Time.
"Corporation LSARs" shall have the meaning set forth in
Section 6.2 of this Agreement.
"Corporation Nonqualified Plans" shall have the meaning as set
forth in Section 4.1 of this Agreement.
"Corporation Nonqualified Plan Participants" shall have the
meaning set forth in Section 4.1.
"Corporation Pension REP" shall mean the Cognizant Retirement
Excess Plan, as in effect from time to time.
"Corporation Post-Distribution Employees" shall mean persons
who, immediately after the Effective Time, are employed by the Corporation 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) other
than IMS Health Transitional Employees.
"Corporation Pre-Distribution Employees" shall mean persons
who, at any time prior to the Effective Time, were employed by the Corporation
Group.
"Corporation Ratio" shall have the meaning set forth in
Section 6.1(a) of this Agreement.
"Corporation Restricted Stock" shall have the meaning set
forth in Section 6.3 of this Agreement.
"Corporation Retirees" shall mean persons who (i) were
Corporation Pre-Distribution Employees, (ii) terminated
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employment from the Corporation Group prior to the Effective Time or, with
respect to Corporate Staff Employees, terminated employment prior to or as a
result of the Distribution, (iii) are not IMS Health Employees or IMS Health
Transitional Employees after the Effective Time and (iv) would have been
Corporation Post-Distribution Employees had they remained employed, after the
Distribution, by the same employer from which they terminated employment or were
Corporate Staff Employees; but shall not include any person on Schedule 1.1.
"Corporation Retirement Plan" shall mean the Cognizant
Retirement Plan, as in effect from time to time.
"Corporation Savings BEP" shall mean the Cognizant Corporation
Savings Benefit Equalization Plan, as in effect from time to time.
"Corporation Savings Plan" shall mean the Cognizant
Corporation Savings Plan, as in effect from time to time.
"Corporation Stock Option" shall have the meaning set forth in
Section 6.1 of this Agreement.
"Corporation Stock Option Plans" shall mean the 1996 Key
Employees' Stock Incentive Plan, the 1996 Replacement Plan for Certain Employees
Holding The Dun & Bradstreet Corporation Equity-Based Awards or any other stock
option plan established by the Corporation prior to the Effective Time.
"Corporation SERP" shall mean the Cognizant Corporation
Supplemental Executive Retirement Plan, as in effect from time to time.
"Corporation Transition Plans" shall mean The Cognizant
Corporation Executive Transition Plan and The Cognizant Corporation Career
Transition Plan.
"D&B" shall mean The Dun & Bradstreet Corporation, a Delaware
corporation.
"Distribution" shall mean the distribution on the Distribution
Date to holders of record of shares of Corporation Common Stock as of the
Distribution Record Date of the IMS Health Common Stock owned by Corporation on
the basis of one IMS Health Common Share for each outstanding share of
Corporation Common Stock.
"Distribution Agreement" shall mean the Distribution Agreement
between Corporation and IMS Health, dated as of June 30, 1998.
"Distribution Date" shall mean June 30, 1998.
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"Distribution Record Date" shall mean such date as may be
determined by Corporation's Board of Directors as the record date for the
Distribution.
"Effective Time" shall mean immediately prior to the midnight,
New York time, ending the 24-hour period comprising June 30, 1998.
"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,
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,
worker's 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
Corporation and IMS Health.
"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.
"Employer Stock" shall mean, after the Distribution Date, IMS
Health Common Stock credited to the account of an IMS Health Employee and
Corporation Common Stock credited to the account of a Corporation
Post-Distribution Employee in the pooled
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stock fund of the respective savings plan in which such employee participates,
pursuant to Section 3.4.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and the regulations promulgated thereunder, including any
successor legislation.
"Final IMS Health Retirement Plan Transfer Date" shall have
the meaning set forth in Section 2.2(d) of this Agreement.
"IMS Health" shall mean IMS Health Incorporated, a
Delaware corporation.
"IMS Health Committee" shall mean the Compensation and
Benefits Committee of the Board of Directors of IMS Health.
"IMS Health Common Stock" shall have the meaning set forth in
the recitals hereto.
"IMS Health Disabled Employees" shall mean all employees of
the IMS Health Group who are receiving benefits or are in the waiting period to
receive benefits under the Corporation Long-Term Disability Plan immediately
prior to the Effective Time.
"IMS Health Employees" shall mean persons who, immediately
after the Effective Time, are employed by the IMS Health 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).
"IMS Health Employee Stock Purchase Plan" shall mean the
Employee Stock Purchase Plan to be adopted by IMS Health pursuant to Section
6.5.
"IMS Health Group" shall mean IMS Health and each Business
Entity which is contemplated to remain or become a Subsidiary of IMS Health
pursuant to the Distribution Agreement.
"IMS Health Nonqualified Plans" shall mean the nonqualified
plans to be adopted by IMS Health pursuant to Section 4.2.
"IMS Health Nonqualified Plan Participants" shall have the
meaning set forth in Section 4.2.
"IMS Health Pension REP" shall mean the IMS Health Retirement
Excess Plan to be adopted by IMS Health pursuant to Section 4.2.
"IMS Health Ratio" shall have the meaning set forth in Section
6.1(b) of this Agreement.
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"IMS Health Replacement Plans" shall mean the replacement
plans to be adopted by IMS Health pursuant to Section 6.1(b) of this Agreement.
"IMS Health Restricted Stock" shall have the meaning set forth
in Section 6.3 of this Agreement.
"IMS Health Retirees" shall mean persons who (i) were
Corporation Pre-Distribution Employees, (ii) terminated employment from the IMS
Health Group prior to the Effective Time (iii) are not Corporation
Post-Distribution Employees after the Effective Time and (iv) would have been
IMS Health Employees had they remained employed, after the Distribution, by the
same employer from which they terminated employment but shall not include
Corporate Staff Employees included in the definition of Corporation Retirees;
and shall include any person on Schedule 1.1.
"IMS Health Retirement Plan" shall mean the defined benefit
plan to be adopted by IMS Health pursuant to Section 2.2(a) of this Agreement.
"IMS Health Retirement Plan Effective Date" shall have the
meaning set forth in Section 2.2(a) of this Agreement.
"IMS Health 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 IMS
Health Transferred Retirement Plan Employees under the Corporation 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 Corporation Pre-Distribution Employees under the
Corporation Retirement Plan at the Effective Time.
"IMS Health Savings BEP" shall mean the IMS Health Savings
Benefit Equalization Plan to be adopted by IMS Health pursuant to Section 4.2.
"IMS Health Savings Plan" shall mean the defined contribution
plan to be adopted by IMS Health pursuant to Section 3.2(a) of this Agreement.
"IMS Health Savings Plan Transfer Date" shall have the meaning
set forth in Section 3.2(b) of this Agreement.
"IMS Health SERP" shall mean the IMS Health Supplemental
Executive Retirement Plan to be adopted by IMS Health pursuant to Section 4.2.
"IMS Health Transferred Retirement Plan Employees" shall have
the meaning set forth in Section 2.2(a) of this Agreement.
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"IMS Health Transferred Savings Plan Employees" shall have the
meaning set forth in Section 3.2(a) of this Agreement.
"IMS Health Transitional Employees" shall mean Corporate Staff
Employees who are under an agreement to remain employed by the Corporation after
the Effective Time for a fixed period of time either to perform services in
connection with the Distribution or to perform services primarily for the IMS
Health Group.
"Information Statement" shall mean the Information Statement
sent to the holders of shares of Corporation Common Stock in connection with the
Distribution, including any amendment or supplement thereto.
"Initial IMS Health Retirement Plan Transfer Date" shall have
the meaning set forth in Section 2.2(a) of this Agreement.
"Initial Transferred Assets" shall have the meaning set forth
in Section 2.2(b) of this Agreement.
"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.
"Nonemployer Stock" shall mean, after the Distribution Date,
IMS Health Common Stock credited to the account of a Corporation
Post-Distribution Employee and Corporation Common Stock credited to an account
of an IMS Health Employee in the
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pooled stock fund of the respective savings plan in which such employee
participates, pursuant to Section 3.4.
"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 between Corporation and IMS Health.
"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 between Corporation and IMS Health.
"Transition Services Agreement" shall mean the Amended
and Restated Transition Services Agreement among Corporation, IMS
Health, ACNielsen, D&B and X.X. Xxxxxxxxx Corporation.
"Xxxxx" shall mean Xxxxx International Inc., a Delaware
corporation.
"Xxxxx Optionees" shall mean individuals whose options to
purchase the common stock of Xxxxx were converted into options to purchase
Corporation Common Stock (other than those individuals who are IMS Health
Employees).
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ARTICLE II
CORPORATION RETIREMENT PLAN
SECTION 2.1. Corporation Retirement Plan. From and after the
Effective Time, Corporation shall continue to sponsor the Corporation Retirement
Plan. Active participation of IMS Health Transferred Retirement Plan Employees
in the Corporation Retirement Plan shall cease immediately after the Effective
Time. Nothing contained in this Article II shall have the effect of accelerating
the degree to which any individual has a vested interest in or eligibility for
the Corporation Retirement Plan or the IMS Health Retirement Plan.
SECTION 2.2. IMS Health Retirement Plan. (a) As of the
Effective Time, (herein referred to as the "IMS Health Retirement Plan Effective
Date"), IMS Health shall establish the IMS Health Retirement Plan for the
benefit of IMS Health Employees, IMS Disabled Employees, IMS Health Retirees and
IMS Health Transitional Employees who were participants in the Corporation
Retirement Plan immediately prior to the Effective Time (the "IMS Health
Transferred Retirement Plan Employees"). On the first business day after the
Effective Time (the "Initial IMS Health Retirement Plan Transfer Date"),
Corporation shall cause the trustee of the Corporation Retirement Plan to
segregate, based on a good faith estimate made in accordance with the spinoff
provisions set forth under Section 414(l) of the Code, the assets of the
Corporation Retirement Plan allocable to IMS Health Transferred Retirement Plan
Employees in an amount equal to the sum of (i) and (ii), as follows:
(i) the amount allocable to IMS Health 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
Corporation Retirement Plan over the Present Value of the
vested and nonvested benefits accrued thereunder for all the
Corporation Pre-Distribution Employees as of the Effective
Time, multiplied by the IMS Health Retirement Plan Segregation
Ratio.
(b) On the Initial IMS Health Retirement Plan Transfer Date,
90% of the segregated assets determined under Section 2.2(a) of this Agreement
(the "Initial Transferred Assets") shall be transferred to a separate trust
established under the IMS Health Retirement Plan.
(c) From the Effective Time until the Final IMS Health
Retirement Transfer Date (as defined below), the remaining 10% of the segregated
assets determined under Section 2.2(a) of this Agreement shall be invested by
the trustee of the Corporation Retirement Plan with the same investment managers
and in the same
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proportions as such assets were invested immediately prior to the Effective
Time, which are set forth in Schedule 2.2 hereof.
(d) As soon as practicable after the Effective Time, the
remaining assets allocable to the IMS Health Transferred Retirement Plan
Employees shall be transferred to a separate trust established under the IMS
Health Retirement Plan (such date herein referred to as the "Final IMS Health
Retirement Plan Transfer Date"); provided, however, that in no event shall such
transfer take place until Corporation shall make all required amendments to the
Corporation Retirement Plan and related trust agreement necessary to provide for
the segregation and transfer of assets described in this Section 2.2. The value
of such assets to be transferred shall equal the value of segregated assets
determined based on same methodology as in Section 2.2(a) of this Agreement,
reduced by an amount equal to the Initial Transferred Assets, adjusted as
follows:
(i) reduced by the amount of benefit payments made under the
Corporation Retirement Plan with respect to IMS Health
Transferred Retirement Plan Employees from the Effective Time
to the Final IMS Health Retirement Plan Transfer Date; and
(ii) increased (or decreased) by the share of the net investment
income (or loss) and expenses incurred or for which invoices
are submitted after the Effective Time to the IMS Health
Retirement Plan Transfer Date attributable to the value of
such segregated assets.
(e) Unless otherwise agreed to by Corporation and IMS Health,
the form of the assets to be transferred shall consist of an undivided
percentage interest in each asset that is held by the Corporation Retirement
Plan on the IMS Health Retirement Plan Transfer Date, such undivided percentage
interest being equal to the value of assets allocable to the IMS Health
Transferred Retirement Plan Employees, divided by the fair market value of plan
assets.
(f) If the amount of the Initial Transferred Assets exceeds
the value of the assets to be transferred as determined under Section 2.2(d) of
this Agreement, such excess amount shall promptly be transferred from the IMS
Health Retirement Plan trust to the Corporation Retirement Plan trust.
SECTION 2.3. Allocation of Liabilities. The IMS Health Group
shall assume all Liabilities relating to the participation of IMS Health
Transferred Retirement Plan Employees in the Corporation Retirement Plan. The
Corporation Group shall retain all other Liabilities relating to the Corporation
Retirement Plan.
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ARTICLE III
CORPORATION SAVINGS PLAN
SECTION 3.1. Corporation Savings Plan. From and after the
Effective Time, Corporation shall continue to sponsor the Corporation Savings
Plan. Active participation of IMS Health Transferred Savings Plan Employees in
the Corporation Savings Plan shall cease immediately after the Effective Time.
Nothing contained in this Article III shall have the effect of accelerating the
degree to which any individual has a vested interest in the Corporation Savings
Plan or the IMS Health Savings Plan.
SECTION 3.2. IMS Health Savings Plan. (a) As of the Effective
Time, IMS Health shall adopt the IMS Health Savings Plan for the benefit of IMS
Health Employees, IMS Health Disabled Employees, IMS Health Transitional
Employees and IMS Health Retirees who were participants in the Corporation
Savings Plan immediately prior to the Effective Time (the "IMS Health
Transferred Savings Plan Employees").
(b) Prior to the date on which the transfer of assets and
liabilities to the IMS Health Savings Plan shall occur (the "IMS Health Savings
Plan Transfer Date"), which date shall occur as promptly as practicable
following the Effective Time, Corporation shall (A) cause the trustee of the
Corporation Savings Plan to segregate, in accordance with the spinoff provisions
set forth under Section 414(l) of the Code, the assets of the Corporation
Savings Plan representing the full account balances of IMS Health 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 Corporation
Savings Plan and related trust agreement necessary to provide for the
segregation and transfer of assets described in this Section 3.2.
(c) On the IMS Health Savings Plan Transfer Date, IMS Health
shall cause the trustee of the Corporation Savings Plan to transfer to the
trustee of the IMS Health Savings Plan the full account balances (inclusive of
loans) of IMS Health 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 described in Section 3.4); provided,
however, that loans to IMS Health Transferred Savings Plan Employees shall be
transferred in the form of notes. In consideration of the segregation and
transfer of assets described herein, the IMS Health Savings Plan shall, as of
the IMS Health Savings Plan Transfer Date, assume all Liabilities attributable
to such assets, whether incurred prior to or after the Effective Time. If the
account balances of the IMS Health Transferred Savings Plan that are transferred
on the IMS Health Savings Plan Transfer Date are thereafter determined to have
been incorrect,
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the parties agree to make appropriate payments or asset transfers to correct
such error (appropriately adjusted for subsequent investment experience and
expenses incurred).
SECTION 3.3. Outstanding Loans. During their employment with
Corporation, IMS Health Transferred Savings Plan Employees who have outstanding
loans originally made from the Corporation Savings Plan shall be permitted to
repay such loans by way of regular deductions from their paychecks, and, prior
to the IMS Health Savings Plan Transfer Date, Corporation or IMS Health (as the
case may be) shall cause all such deductions to be forwarded to the Corporation
Savings Plan as promptly as practicable.
SECTION 3.4. Employer Stock Fund. (a) Participants in the
Corporation Savings Plan who, immediately prior to the Effective Time, have
balances in the Corporation Common Stock fund shall have such balances
converted, as of the Effective Time, to the extent applicable, to units in a
pooled stock fund consisting of Corporation Common Stock and IMS Health Common
Stock. The initial ratio of stock in the pooled stock fund shall be one share of
Corporation Common Stock to one share of IMS Health Common Stock. 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 Corporation Common
Stock fund immediately prior to the Effective Time. The IMS Health Savings Plan
shall maintain a pooled stock fund, to which the pooled stock fund assets of IMS
Health Transferred Savings Plan Employees in the Corporation Savings Plan shall
be transferred on the IMS Health Savings Plan Transfer Date. Notwithstanding the
foregoing, the Corporation Savings Plan shall transfer the units of Corporation
Common Stock from the pooled stock fund into the Corporation Common Stock fund
and the IMS Health Savings Plan shall transfer the units of IMS Health Common
Stock from the pooled stock fund into the IMS Health Common Stock fund.
(b) Within nine months after the Distribution Date, each
participant shall liquidate his or her units of Nonemployer Stock in the pooled
stock fund and invest the proceeds thereof in any other investment option
available under the applicable plan. If the participant does not liquidate such
units, such units shall be liquidated and invested in a fixed income investment
option available under the applicable plan.
(c) A participant may not acquire additional units in the
pooled stock fund from or after the Effective Time.
SECTION 3.5. Allocation of Liabilities. The IMS Health Group
shall assume all Liabilities relating to the participation of IMS Health
Transferred Savings Plan Employees in the Corporation Savings Plan. The
Corporation Group shall retain all other Liabilities relating to the Corporation
Savings Plan.
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ARTICLE IV
NONQUALIFIED PLANS
SECTION 4.1. Corporation Nonqualified Plans. From and after
the Effective Time, Corporation shall continue to sponsor the Corporation SERP,
the Corporation Pension REP and the Corporation Savings BEP (collectively, the
"Corporation Nonqualified Plans") for the benefit of Corporation Post-
Distribution Employees and Corporation Retirees who, prior to the Effective
Time, were participants thereunder ("Corporation Nonqualified Plan
Participants").
SECTION 4.2. IMS Health Nonqualified Plans. As of the
Effective Time, IMS Health shall (i) adopt the IMS Health SERP, the IMS Health
Pension REP and the IMS Health Savings BEP (collectively, the "IMS Health
Nonqualified Plans") for the benefit of IMS Health Employees and IMS Health
Retirees who were participants in the Corporation Nonqualified Plans immediately
prior to the Effective Time ("IMS Health Nonqualified Plan Participants") and
(ii) assume the Liabilities for benefits under the Corporation Nonqualified
Plans with respect to such employees.
SECTION 4.3. Joint and Several Liability. Corporation and IMS
Health acknowledge joint and several liability under the Employee Benefits
Agreement dated as of October 28, 1996 among D&B, Corporation and ACNielsen with
respect to certain nonqualified plans maintained by D&B prior to such date. To
the extent such joint and several liability is imposed on Corporation in respect
of a liability assumed by IMS Health under this Agreement, Corporation shall be
entitled to contribution from IMS Health for the amount of such liability
imposed. To the extent joint and several liability is imposed on IMS Health in
respect of a liability assumed by Corporation under this Agreement, IMS Health
shall be entitled to contribution from Corporation for the amount of such
liability imposed.
SECTION 4.4. Third-Party Beneficiaries. It is the intention of
the parties to this Agreement that the provisions of Section 4.3 shall be
enforceable by (a) Corporation and IMS Health Nonqualified Plan Participants and
(b) their respective surviving beneficiaries.
ARTICLE V
WELFARE PLANS
SECTION 5.1. Employee Benefit Welfare Plans. Prior to the
Effective Time, the Corporation shall continue to sponsor its Employee Benefit
Welfare Plans for the benefit of Corporation Pre-Distribution Employees. Except
as provided in Section 5.4 and Section 5.5 below, from and after the Effective
Time, Corporation shall sponsor its Employee Benefit Welfare Plans solely for
the benefit of Corporation Post-Distribution Employees, Corporation Disabled
Employees and Corporation
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Retirees. From and after Effective Time, IMS Health shall sponsor its Employee
Benefit Welfare Plans solely for the benefit of IMS Health Employees, IMS Health
Retirees and IMS Health Disabled Employees. Notwithstanding the foregoing,
neither Corporation nor IMS Health shall have any obligation to sponsor any
Employee Benefit Welfare Plan from or after Effective Time.
SECTION 5.2. Dollar Limits. With respect to any medical and
dental plan that may be sponsored by IMS Health after the Effective Time, IMS
Health shall give effect, in determining any deductible, maximum out-of-pocket
limitations and annual plan maximums, to claims incurred during 1998 prior to
the Effective Time by IMS Health Employees, IMS Health Retirees and IMS Health
Disabled Employees under similar plans maintained by Corporation (or any
Affiliate thereof) for their benefit immediately prior to the Effective Time.
SECTION 5.3. Severance Plans. The Corporation Group shall
retain all Liabilities with respect to severance payments made or to be made to
Corporation Retirees including any liabilities for severance payments under the
Corporation Transition Plans. The IMS Health Group shall retain all Liabilities
with respect to severance payments made or to be made to IMS Health Retirees
including any liabilities for severance payments under the Corporation
Transition Plans. 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, 1998, Corporation shall continue to sponsor its flexible
spending accounts for all Corporation Pre-Distribution Employees; provided,
however, that IMS Health shall cause all deductions from participant paychecks
to be forwarded to Corporation within two business days thereafter; provided,
further, that IMS Health shall reimburse Corporation for the administrative
costs incurred with respect to IMS Health Employees. All unused funds remaining
in the flexible spending accounts of IMS Health Employees after April 30, 1999
shall be paid to IMS Health.
SECTION 5.5. Allocation of Liabilities. (a) The IMS Health
Group shall retain responsibility for and continue to pay all claims relating to
the Corporation self-insured Medical and Dental Plans with respect to claims
incurred prior to the Effective Time, but which are paid after the Effective
Time, by IMS Health Employees, IMS Health Disabled Employees, IMS Health COBRA
participants, IMS Health Transitional Employees and IMS Health Retirees as well
as their covered dependents. Any claims relating to the Corporation self-insured
Medical and Dental Plans with respect to claims incurred prior to the Effective
Time, but which are paid after the Effective Time, by Corporation Pre-
Distribution Employees who are not IMS Health Employees will remain the
responsibility of The Corporation Group.
16
(b) The Corporation Group shall retain responsibility for and
continue to pay all premiums, expenses and benefits relating to the Corporation
Employee Welfare Plans with respect to claims incurred (for self-insured plans)
or premiums due (for insured plans) from and after the Effective Time by
Corporation Post-Distribution Employees, Corporation Disabled Employees,
Corporation COBRA participants and Corporation Retirees as well as their covered
dependents.
(c) The IMS Health Group shall retain responsibility for and
continue to pay all premiums, expenses and benefits relating to the Employee
Welfare Plans with respect to claims incurred (for self-insured plans) or
premiums due (for insured plans) from and after the Effective Time by IMS Health
Employees, IMS Health Disabled Employees, IMS Health COBRA participants, IMS
Health Transitional Employees and IMS Health Retirees as well as their covered
dependents.
(d) For the purposes of this Section 5.5, 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 Corporation
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.
(e) The Corporation Group shall be responsible for all COBRA
coverage for any Corporation Retiree and his or her covered dependents who
participated in a Corporation 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 IMS Health Group shall be responsible for all COBRA coverage
for any IMS Health Retiree and his or her covered dependents who participated in
a Corporation 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 Corporation
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 Corporation Post-Distribution Employee is entitled as
a result of a qualifying event occurring at or after the Effective Time shall be
the responsibility of the Corporation Group.
17
SECTION 5.6. Allocation of the Corporation's Self- Insured
Medical and Dental Plans Reserve for Claims Incurred But Not Yet Reported
(IBNR). The IBNR reserve of which is estimated to be approximately $2.5 million
as of June 30, 1998 will be allocated 61.9% to the Corporation Group and 38.1%
to IMS Health.
SECTION 5.7. Retiree Welfare Plans. The Corporation Group
shall be responsible for providing retiree welfare benefits, where applicable,
to Corporation Retirees and Corporation Post-Distribution Employees. The IMS
Health Group shall be responsible for providing retiree welfare benefits, where
applicable, to IMS Health Retirees and IMS Health Employees.
ARTICLE VI
EQUITY-BASED PLANS
SECTION 6.1. Corporation Stock Options. Stock options
awarded under the Corporation Stock Option Plans ("Corporation Stock Options")
shall be treated as follows:
(a) Corporation Post-Distribution Employees; and Corporation
Disabled Employees. From and after the Effective Time, each unexercised
Corporation Stock Option held by Corporation Post-Distribution Employees,
Corporation Disabled Employees and the specified options held by the persons
listed on Schedule 6.1 shall remain outstanding pursuant to the terms of the
award agreements and the Corporation Stock Option Plans; provided, however, that
from and after such time, each unexercised Corporation Stock Option shall be
adjusted as follows: (i) the number of shares of Corporation Common Stock
covered by the adjusted stock option shall be determined by (A) multiplying the
number of shares of Corporation Common Stock covered by the Corporation Stock
Option by a fraction, the numerator of which equals the average of high and low
trading prices of a share of Corporation Common Stock for the five trading days
immediately preceding the ex-dividend date, and the denominator of which equals
the average of high and low trading prices of a share of Corporation Common
Stock for the five trading days starting on the ex-dividend trading Date
("Corporation Ratio") and (B) rounding down the result to a whole number of
shares and (ii) the exercise price of the adjusted stock option shall equal the
original exercise price divided by the Corporation Ratio.
(b) IMS Health Employees; IMS Health Transitional Employees;
IMS Health Disabled Employees; and Xxxxx Optionees. As of the Effective Time,
(i) each unexercised Corporation Stock Option held by IMS Health Employees, IMS
Health Transitional Employees, IMS Health Disabled Employees and Xxxxx Optionees
shall be cancelled except as provided in Schedule 6.1 and (ii) such individuals
shall except as provided in Schedule 6.1 receive replacement stock options
awarded under the IMS Health
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Replacement Plans, which shall be adopted by IMS Health prior to the Effective
Time. The number of shares of IMS Health Common Stock covered by each
replacement stock option shall be determined by (i) multiplying the number of
shares of Corporation Common Stock covered by the cancelled Corporation Stock
Option by a fraction, the numerator of which equals the average of high and low
trading prices of a share of Corporation Common Stock for the five trading days
immediately preceding the ex-dividend date, and the denominator of which equals
the average of high and low trading prices of an IMS Health Common Share for the
five trading days starting on the regular way trading date ("IMS Health Ratio")
and (ii) rounding down the result to a whole number of shares. The exercise
price of each replacement stock option shall be determined by dividing the
exercise price of the cancelled Corporation Stock Option by the IMS Health
ratio. Except as otherwise provided in the IMS Health Replacement Plans, all
other terms of the replacement stock options shall remain substantially
identical to the terms of the cancelled Corporation Stock Options.
(c) IMS Health Retirees; and Corporation Retirees. As of the
Effective Time, (i) each unexercised Corporation Stock Option held by IMS Health
Retirees and Corporation Retirees shall be adjusted in substantially the same
manner as employees of the Corporation Group and (ii) IMS Health may offer to
such IMS Health Retirees and Corporation Retirees, and the IMS Health Committee
may determine, alternative adjustments or substitutions, provided such Retirees
agree to surrender their adjusted Corporation Stock Options.
SECTION 6.2. Corporation LSARs. All limited stock appreciation
rights awarded under the Corporation Stock Option Plans ("Corporation LSARs")
shall be adjusted or substituted (as the case may be) in substantially the same
manner as the Corporation Stock Options described in Section 6.1 above.
SECTION 6.3. Restricted Stock Plan. Restricted stock awarded
under the Corporation Stock Option Plans ("Corporation Restricted Stock") and
restricted stock received as a result of the Distribution ("IMS Health
Restricted Stock") shall be treated as follows:
(a) Corporation Post-Distribution Employees. As of Effective
Time, IMS Health Restricted Stock credited to Corporation Post-Distribution
Employees shall be adjusted pursuant to the Corporation Stock Option Plans and
each such individual shall receive a number of additional shares of Corporation
Restricted Stock, determined by multiplying the number of shares of forfeited
IMS Health Restricted Stock by the Corporation Ratio and the reciprocal of the
IMS Health Ratio, having the same terms as the Corporation Restricted Stock from
which they arose.
19
(b) IMS Health Employees. As of the Effective Time,
Corporation Restricted Stock and IMS Health Restricted Stock credited to IMS
Health Employees and IMS Health Transitional Employees shall be forfeited and
such individuals shall receive replacement IMS Health Restricted Stock equal to
(i) the number of shares of forfeited IMS Health Restricted Stock plus (ii) the
number of shares of forfeited Corporation Restricted Stock multiplied by the IMS
Health Ratio and the reciprocal of the Corporation Ratio, such replacement
shares of IMS Health Restricted Stock to have the same terms as the Corporation
Restricted Stock from which they arose.
SECTION 6.4. Executive Annual Incentive Plan. Outstanding
awards under the Corporation Executive Annual Incentive Plan shall be treated as
determined by the Corporation and IMS Health, respectively.
SECTION 6.5. Corporation Employee Stock Purchase Plan.
(a) From and after the Effective Time, Corporation shall
continue to sponsor the Corporation Employee Stock Purchase Plan.
(b) As of the Effective Time, IMS Health shall adopt the IMS
Health Employee Stock Purchase Plan for the benefit of IMS Health Employees.
SECTION 6.6. Allocation of Liabilities. The IMS Health Group
shall assume all Liabilities with respect to awards granted to IMS Health
Employees, IMS Health Retirees, Corporation Retirees and IMS Health Disabled
Employees pursuant to the IMS Health Replacement Option Plan. The Corporation
Group shall retain all other Liabilities with respect to awards granted pursuant
to the Corporation Stock Option Plans (including, but not limited to, awards
granted to Corporation Post-Distribution Employees).
ARTICLE VII
FOREIGN EMPLOYEE BENEFIT PLANS
SECTION 7.1. Foreign Plans. Except as set forth in Schedule
7.1, Corporation and IMS Health shall continue to sponsor and retain liability
for any Employee Benefits Plans maintained outside the United States with
respect to their respective employees.
ARTICLE VIII
OTHER EMPLOYEE BENEFIT ISSUES
SECTION 8.1. Employee Benefit Litigation Liabilities. Except
as otherwise expressly provided in this agreement, the IMS Health Group shall
assume all Employee Benefit Litigation Liabilities that are asserted by
Corporation Pre-Distribution Employees who were employees of the IMS Health
Group or Corporate
20
Staff Employees and the Corporation Group shall assume all Employee Benefit
Litigation Liabilities that are asserted by all other Corporation
Pre-Distribution Employees.
SECTION 8.2. Indemnification. To the extent that any claim or
litigation is asserted against Corporation by a Corporation Retiree who was a
Corporate Staff Employee prior to the Distribution, Corporation shall be
entitled to indemnification from IMS Health for the amount of any liability
imposed.
SECTION 8.3. Workers' Compensation. The Corporation Group
shall retain all Liabilities relating to workers' compensation claims that were
incurred (a) prior to the Effective Time with respect to Corporation
Pre-Distribution Employees who were employed by the Corporation Group (not
including the IMS Health Group) and Corporate Staff Employees allocated to
Corporation as a result of the Distribution and (b) on and after the Effective
Time with respect to Corporation Post-Distribution Employees. The IMS Health
Group shall retain all Liabilities relating to workers' compensation claims that
were incurred (a) prior to the Effective Time with respect to Corporation Pre-
Distribution Employees who were employed by the IMS Health Group and Corporate
Staff Employees allocated to IMS Health as a result of the Distribution and (b)
on and after the Effective Time with respect to IMS Health Employees. For
purposes of this paragraph, a claim is deemed incurred when the injury that is
the subject of the claim occurs.
SECTION 8.4. Cash Funding. Sufficient cash shall be left with
Corporation upon the Distribution, based on a good faith estimate, to fund all
severance (and related benefits) Liabilities of Corporate Staff Employees
retained by Corporation Group pursuant to Section 5.3(a) hereof as well as the
unfunded amounts payable by Corporation to Corporation Retirees hereunder who
were Corporate Staff Employees (including the actuarially determined value of
payments under non-qualified plans pursuant to Section 4.1 hereof and the value
of retiree welfare benefits pursuant to Section 5.7 hereof). Such cash amount
shall include amounts sufficient to fund all such payments as well as any
related tax, social security and similar government-mandated payments and
employee plan contributions, (i) without giving effect to any present-value
calculation and (ii) with respect to severance (and related benefits)
liabilities, net of tax benefits calculated at a 40% rate. If the estimated cash
amounts result in an excess or deficit over or under the amounts actually
expended by Corporation for such items, appropriate payments will be made
between the parties to eliminate any such excess or deficit no later than
December 31, 1998.
21
ARTICLE IX
BENEFIT PLAN PARTICIPATION
SECTION 9.1. Corporation Plans. Except as specifically
provided herein, all IMS Health Employees shall cease participation in all
Corporation Employee Benefit Plans as of the Effective Time.
SECTION 9.2. IMS Health Plans. Except as provided in Section
5.7 herein, (a) with respect to any newly created Employee Benefit Plan
sponsored by the IMS Health Group after the Effective Time, the IMS Health Group
shall cause to be recognized (to the extent applicable) each IMS Health
Employee's (i) past service with the Corporation Group to the extent recognized
under similar plans maintained by the Corporation Group immediately prior to the
Effective Time and (ii) accrued but unused vacation time and sick days, and (b)
any IMS Health Employee who participated in a Corporation Employee Benefit Plan
immediately prior to the Effective Time shall be entitled to immediate
participation in a similar newly created Employee Benefit Plan sponsored by the
IMS Health Group.
SECTION 9.3. Subsequent Employer. Except as provided in
Section 5.6 herein, if, during the one-year period following the Effective Time,
a Corporation Post-Distribution Employee or a IMS Health Employee terminates
employment with his or her employer and then immediately commences employment
with the Corporation Group or the IMS Health Group, the subsequent employer
shall cause to be recognized (to the extent applicable) such employee's past
service with the Corporation Group or the IMS Health 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 9.4. Right to Amend or Terminate. Except as
specifically provided herein, nothing in this Agreement shall be construed or
interpreted to restrict the Corporation Group's or the IMS Health Group's right
or authority to amend or terminate any of their Employee Benefit Plans following
the Effective Time.
ARTICLE X
ACCESS TO INFORMATION
SECTION 10.1. Access to Information. Article IV of the
Distribution Agreement shall govern the rights of the Corporation Group and the
IMS Health Group with respect to access to information. The term "Records" in
that Article shall be read to include all Employee Benefit Records.
22
ARTICLE XI
INDEMNIFICATION
SECTION 11.1. Indemnification. Article III of the Distribution
Agreement shall govern the rights of the Corporation Group and the IMS Health
Group with respect to indemnification. The term "Corporation Liabilities" in
that Article shall be read to include all Liabilities assumed or retained by the
Corporation Group pursuant to this Agreement. The term "IMS Health Liabilities"
in that Article shall be read to include all Liabilities assumed or retained by
the IMS Health Group pursuant to this Agreement.
ARTICLE XII
DISPUTE RESOLUTION
SECTION 12.1. Dispute Resolution. Article VI of the
Distribution Agreement shall govern the rights of the Corporation Group and the
IMS Health Group with respect to dispute resolution. The term "Agreement
Dispute" in that Article shall be read to include all Employee Benefit Disputes.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. 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 13.2. 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 13.3. 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.
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SECTION 13.4. 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 13.5. Expenses. Except as otherwise set forth in this
Agreement, the Distribution Agreement or any Ancillary Agreement, all costs and
expenses incurred and for which invoices have been submitted on or prior to the
Effective Time (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, as well as all administrative costs,
fees or expenses relating to any Employee Benefit Plan, shall be charged to and
paid by Corporation, provided that, if such expenses are not paid by Corporation
prior to the Effective Time, they shall be charged to and paid by IMS Health.
Except as otherwise set forth in this Agreement, the Distribution Agreement or
any Ancillary Agreement, all such costs, fees and expenses incurred or for which
invoices are submitted after the Effective Time shall be charged to and paid by
IMS Health. Any amount or expense to be paid or reimbursed by any party hereto
to any other party hereto shall be so paid or reimbursed promptly after the
existence and amount of such obligation is determined and demand therefor is
paid.
SECTION 13.6. 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 Xxxxxxx Media Research, Inc.:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Chief Legal Officer
To IMS Health Incorporated:
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: General Counsel
24
SECTION 13.7. 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 13.8. Amendments. Subject to the terms of
Section 13.11 hereof, this Agreement may not be modified or
amended except by an agreement in writing signed by each of the
parties hereto.
SECTION 13.9. 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 13.10. 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 13.11. Termination. This Agreement (including, without
limitation, Section 4.4 and Article XI 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 Corporation without the approval of the shareholders of
Corporation. In the event of such termination, no party shall have any liability
of any kind to any other party or any other person. After the Distribution, this
Agreement may not be terminated except by an agreement in writing signed by the
parties; provided, however, that Section 4.4 and Article XI shall not be
terminated or amended after the Distribution in respect of the third party
beneficiaries thereto without the consent of such persons.
SECTION 13.12. 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 13.13. Third Party Beneficiaries. Except as provided
in Section 4.4 and Article XI, 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 13.14. Title and Headings. Titles and headings to
sections herein are inserted for the convenience of
25
reference only and are not intended to be a part of or to affect
the meaning or interpretation of this Agreement.
SECTION 13.15. 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 13.16. 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 13.17. Consent to Jurisdiction. Without limiting the
provisions of Article XII 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 13.17. 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 13.18. 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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SECTION 13.19. 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 Corporation and IMS Health 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 13.20. 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.
IN WITNESS WHEREOF, the parties have duly executed and entered
into this Agreement, as of the date first above written.
COGNIZANT CORPORATION
by
/s/ XXXXXX X. XXXXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman and Chief
Executive Officer
IMS HEALTH INCORPORATED
by
/s/ XXXXXXXX X. XXXX
--------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Chief Operating Officer
