Exhibit 10.7
INTERCOMPANY AGREEMENT
This Intercompany Agreement ("Agreement"), dated as of May 15, 1998,
between Cognizant Corporation, a Delaware corporation ("Cognizant"), and
Cognizant Technology Solutions Corporation, a Delaware corporation (the
"Company").
WITNESSETH
WHEREAS, the Company is a subsidiary of Cognizant;
WHEREAS, the Company expects to effect a public offering of its Class A
Common Stock (the "IPO");
WHEREAS, following completion of the IPO, Cognizant will continue to
control the Company;
WHEREAS, in contemplation of the IPO, Cognizant and the Company desire to
enter this Agreement to set forth the terms and define the nature of their
relationship subsequent to the IPO; and
WHEREAS, Cognizant intends to reorganize (the "Reorganization") by
splitting the Xxxxxxx Media Research business from the rest of its businesses,
creating two publicly held companies, IMS Health Incorporated ("IMS HEALTH") and
Xxxxxxx Media Research, and, in connection therewith, the capital stock of the
Company theretofore held by Cognizant will thereafter be held by IMS HEALTH;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained in this Agreement, Cognizant and the Company hereby agree
as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the respective
meanings set forth below:
"ACNielsen" shall mean ACNielsen Corporation, a Delaware corporation.
"ACNielsen Liabilities" shall have the meaning ascribed thereto in the
Distribution Agreement.
"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.
"Business Day" shall mean any day that is not a Saturday, Sunday or a day
on which banking institutions in New York, New York are not required to be open.
"Class A Common Stock" shall mean the Class A Common Stock, $.01 par value
per share, of the Company.
"Class B Common Stock" shall mean the Class B Common Stock, $.01 par value
per share, of the Company.
"Cognizant Auditors" shall mean Cognizant's independent certified public
accountants.
"Cognizant Business" shall mean any and all businesses heretofore or
hereafter conducted by Cognizant and its subsidiaries other than the Company
Business, but excluding any businesses operated by Cognizant for and on behalf
of ACNielsen or D&B after the date of the Distribution Agreement.
"Cognizant Indemnitees" shall mean Cognizant and its subsidiaries (other
than the Company) and each of their respective directors, officers, employees
and agents.
"Cognizant Liabilities" shall mean any and all Liabilities relating to,
arising out of or resulting from the operation of the Cognizant Business, but
excluding ACNielsen Liabilities and D&B Liabilities.
"Common Stock" shall mean the Class A Common Stock and the Class B Common
Stock.
"Company Business" shall mean the software development and maintenance
services business heretofore or hereafter conducted by the Company or its
subsidiaries as more fully described in the definitive prospectus for the IPO,
including, without limitations, the business conducted by D&B Xxxxxx Software,
or any other business conducted by the Company after the Effective Date.
"Company Indemnitees" shall mean the Company and its subsidiaries and each
of their respective directors, officers, employees and agents.
"Company Liabilities" shall mean any and all Liabilities relating to,
arising out of or resulting from the operation of the Company Business or any
other business conducted by the Company after the Effective Date.
"D&B" shall mean The Dun & Bradstreet Corporation, a Delaware corporation.
"D&B Liabilities" shall have the meaning ascribed thereto in the
Distribution Agreement.
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"Distribution Agreement" shall mean the Distribution Agreement dated
October 28, 1996, among D & B, Cognizant and ACNielsen, as supplemented by the
Purchase and Sale Agreement dated as of September 2, 1997, among D&B, Cognizant,
Dun & Bradstreet India Private Limited ("D&B IPL") and Dun & Bradstreet
Information Services India Private Limited, the Purchase and Sale Agreement
dated as of September 11, 1997, among ACNielsen, Cognizant, D&B IPL and
ACNielsen Marketing Research India Private Limited and the India Agreement dated
as of October 28, 1996, among D&B, Cognizant and ACNielsen.
"Effective Date" shall mean the date of the initial closing of the IPO.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Fair Market Value" shall mean, with respect to any publicly traded
security, its Market Price, and with respect to any property or assets other
than cash or publicly traded securities, the fair market value thereof
determined in good faith by at least a majority of the Independent Directors.
"GAAP" shall mean United States generally accepted accounting principles.
"Guaranty" means any obligation, contingent or otherwise, of any Person
guaranteeing or having the economic effect of guaranteeing any Indebtedness or
other obligation of any other Person in any manner, whether directly or
indirectly, including any obligation of such Person, direct or indirect, (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment of such Indebtedness or other
obligation, (ii) to purchase property, securities or services for the purpose of
assuring the owner of such Indebtedness or other obligation of the payment
thereof, (iii) to purchase or otherwise pay for merchandise, materials,
supplies, services or other property under an arrangement which provides that
payment for such merchandise, materials, supplies, services or other property
shall be made regardless of whether delivery of such merchandise, materials,
supplies, services or other property is ever made or tendered or (iv) to
maintain the working capital, equity capital or other financial statement
condition of any primary obligor; provided, however, that the term Guaranty
shall not include endorsement of instruments for deposit and collection in the
ordinary course of business.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by (or which
customarily would be evidenced by) bonds, debentures, notes or similar
instruments, (c) all reimbursement obligations of such Person with respect to
letters of credit and similar instruments, (d) all obligations of such Person
under conditional sale or other title retention agreements relating to property
or assets purchased by such Person, (e) all obligations of such Person incurred,
issued or assumed as the deferred purchase price of property or services other
than accounts payable incurred and paid on terms customary in the business of
such Person (it being understood that the "deferred purchase price" in
connection with any purchase of property or assets shall include only that
portion of the purchase price which shall be deferred beyond the date on which
the purchase is actually
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consummated), (f) all obligations secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any lien or other encumbrance on property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (g) all
obligations of such Person under forward sales, futures, options and other
similar hedging arrangements (including interest rate hedging or protection
agreements), (h) all obligations of such Person to purchase or otherwise pay for
merchandise, materials, supplies, services or other property under an
arrangement which provides that payment for such merchandise, materials,
supplies, services or other property shall be made regardless of whether
delivery of such merchandise, materials, supplies, services or other property is
ever made or tendered, (i) all Guaranties by such Person of obligations of
others and (j) all capitalized lease obligations of such Person.
"Independent Directors" shall mean the members of the Board of Directors of
the Company that are not employed by or otherwise affiliated with Cognizant, the
Company (other than solely as a result of being a director thereof) or any of
their respective affiliates.
"Intercompany Agreements" shall mean and include this Agreement, the
Intercompany Services Agreement dated as of the date hereof between Cognizant
and the Company and the License Agreement dated as of the date hereof between
Cognizant and the Company.
"Initial Holdings" shall mean the total number of shares of Common Stock
owned by Cognizant on the Effective Date, plus any shares of Common Stock
received in respect thereof, whether by way of stock dividend, stock split or
otherwise.
"IPO Price" shall mean the initial public offering price per share of Class
A Common Stock of the Company sold in the IPO.
"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, reckoning bonds, specialties, indemnities
and similar obligations, exonerations, covenants, contracts, controversies,
agreements, promises, doings, omissions, variances, guarantees, make whole
agreements and similar obligations and other liabilities, including all
contractual obligations, whether absolute or contingent, matured or unmatured,
liquidated or unliquidated, accrued or unaccrued, known or unknown, whenever
arising, and including those arising under any law, rule, regulation, action,
threatened or contemplated action (including the costs and expenses of demands,
assessments, judgments, settlements and compromises relating thereto and
attorneys' fees and any and all costs and expenses whatsoever reasonably
incurred in investigating, preparing or defending against any such actions or
threatened or contemplated actions), order or consent decree of any governmental
or other regulatory or administrative agency, body or commission or any award of
any arbitrator or mediator of any kind, and those arising under any contract,
commitment or undertaking, 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.
"Market Capitalization" shall mean, on any day, the Market Price of a share
of Class A Common Stock multiplied by the aggregate number of shares of Common
Stock outstanding.
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"Market Price" shall mean, as to any publicly traded security, the average
of the closing prices of such security's sales on all United States securities
exchanges on which such security may at the time be listed, or, if there have
been no sales on any such exchange on any day, the average of the highest bid
and lowest asked prices on all such exchanges at the end of such day, or, if on
any day such security is not so listed, the average of the representative bid
and asked prices quoted in the Nasdaq Stock Market as of 4:00 P.M., New York
time, on such day, or, if on any day such security is not quoted in the Nasdaq
Stock Market, the average of the highest bid and lowest asked prices on such day
in the domestic over-the-counter market as reported by the National Quotation
Bureau, Incorporated, or any similar or successor organization.
"Person" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Regulation S-X" shall mean Regulation S-X promulgated by the SEC.
"Restricted Period" shall mean the period beginning on the Effective Date
and ending on the 18-month anniversary of the Effective Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"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).
ARTICLE III
CONSENTS; TRANSFER RESTRICTIONS;
STANDSTILL; OTHER LIMITATIONS
2.1 COGNIZANT CONSENT TO CERTAIN ACTIONS.
Until the date on which Cognizant ceases to beneficially own at least 50
percent of the voting power of the outstanding Common Stock, the Company will
not permit any of the following to occur without the prior written consent of
Cognizant:
(a) any sale, lease, exchange or other disposition or any acquisition
(by way of merger or consolidation, acquisition of stock, other securities or
assets, or otherwise), in each case by the Company or any subsidiary of the
Company, directly or indirectly, in a single transaction, or series of related
transactions, involving consideration in excess of the greater of $10,000,000
and 6% of the Company's average total Market Capitalization for the preceding 30
calendar days (other than transactions to which the Company and one or more
wholly owned subsidiaries of the Company are the only parties);
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(b) any issuance by the Company or any subsidiary of the Company of
any shares of capital stock or any options, warrants or rights to acquire such
capital stock or securities convertible into or exchangeable for such capital
stock, except shares of Class A Common Stock and any options exercisable
therefor issuable pursuant to the Company's employee and director stock option
plans in effect on the Effective Date or other stock options outstanding on the
Effective Date or any such capital stock, options, warrants, rights or
convertible or exchangeable securities issued in connection with any acquisition
approved by Cognizant pursuant to Section 2.1(a); or
(c) the creation or incurrence by the Company or any subsidiary of
the Company, in a single transaction or a series of related transactions, of
Indebtedness in excess of $10,000,000 except for Indebtedness incurred in
connection with any acquisition approved by Cognizant pursuant to Section 2.1(a)
(it being understood that the acquisition of an entity with Indebtedness in
excess of $10,000,000 shall be deemed to be the incurrence of Indebtedness in
excess of $10,000,000).
2.2 APPROVAL OF MAJOR TRANSACTIONS.
(a) During the Restricted Period, the Company will not consummate any of
the following transactions, or enter into any agreement to consummate any of the
following transactions, without the approval of at least a majority of the
Independent Directors:
(i) any merger or consolidation of the Company with any other person
in which the stockholders of the Company receive consideration other than
Common Stock if the consideration to be received by the stockholders of the
Company on a per share basis has a Fair Market Value that is less than the
IPO Price (as adjusted for any stock split, stock dividend, stock
combination, reverse stock split or similar occurrence after the Effective
Date);
(ii) the sale of all or substantially all of the assets of the Company
in a single transaction or a series of related transactions if the Fair
Market Value of the consideration to be received by the Company divided by
the number of shares of all classes of Common Stock of the Company
outstanding is less than the IPO Price (as adjusted for any stock split,
stock dividend, stock combination, reverse stock split or similar
occurrence after the Effective Date); or
(iii) the liquidation, dissolution or winding-up of the Company if
the Fair Market Value of the consideration to be received by the
stockholders of the Company on a per share basis is less than the IPO price
(as adjusted for any stock split, stock dividend, stock combination,
reverse stock split or similar occurrence after the Effective Date).
(b) During the Restricted Period, the Company will not consummate any of
the following transactions, or enter into any agreement to consummate any of the
following transactions, without (x) the approval of at least one of the
Independent Directors or (y) first obtaining an opinion from a nationally
recognized investment banking firm that the consideration
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to be received by the stockholders of the Company in such transaction is fair to
such stockholders from a financial point of view:
(i) any merger or consolidation of the Company with any other person
in which the stockholders of the Company receive consideration other than
Common Stock if the consideration to be received by the stockholders of the
Company on a per share basis has a Fair Market Value that is equal to or
greater than the IPO Price (as adjusted for any stock split, stock
dividend, stock combination, reverse stock split or similar occurrence
after the Effective Date);
(ii) the sale of all or substantially all of the assets of the Company
in a single transaction or a series of related transactions if the Fair
Market Value of the consideration to be received by the Company divided by
the number of shares of all classes of Common Stock of the Company
outstanding is equal to or greater than the IPO Price (as adjusted for any
stock split, stock dividend, stock combination, reverse stock split or
similar occurrence after the Effective Date); or
(iii) the liquidation, dissolution or winding-up of the Company if
the Fair Market Value of the consideration to be received by the
stockholders of the Company on a per share basis is equal to or greater
than the IPO price (as adjusted for any stock split, stock dividend, stock
combination, reverse stock split or similar occurrence after the Effective
Date).
2.3 LIMITATIONS ON SALES BY COGNIZANT OF COMMON STOCK.
During the Restricted Period, without the approval of at least a majority
of the Independent Directors, Cognizant shall not sell, distribute or otherwise
transfer any shares of Class B Common Stock or shares of Class A Common Stock
into which such shares of Class B Common Stock are convertible, or enter into an
agreement to do so, except:
(a) in a tax-free spin-off of such shares to the stockholders of
Cognizant;
(b) subject to Section 2.2, in a merger or consolidation;
(c) to an Affiliate, provided that such Affiliate agrees in writing
to be bound by the terms of this Agreement;
(d) at a price per share equal to or greater than the IPO price (as
adjusted for any stock split, stock dividend, stock combination, reverse stock
split or similar occurrence after the Effective Date);
(e) in a sale pursuant to Rule 144 promulgated under the Securities
Act (or any successor rule thereto);
(f) in a registered public offering pursuant to Article 4 hereof; or
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(g) for sales not otherwise permitted by this Section 2.3 or approved
by at least a majority of the Independent Directors of up to an aggregate of 15%
of the Initial Holdings.
2.4 STANDSTILL.
During the Restricted Period, without the approval of at least a majority
of the Independent Directors, Cognizant shall not increase its beneficial
ownership of Common Stock above the Initial Holdings, except pursuant to a
tender offer, exchange offer, merger or other transaction involving all of the
outstanding Common Stock, for consideration on a per share basis having a Fair
Market Value greater than the IPO Price (as adjusted for any stock split, stock
dividend, stock combination, reverse stock split or similar occurrence after the
Effective Date), approved by at least one Independent Director or with respect
to which a nationally recognized investment banking firm has first rendered an
opinion that the consideration to be received by the stockholders of the Company
in such transaction is fair from a financial point of view.
2.5 OTHER LIMITATIONS.
During the Restricted Period, Cognizant shall not vote its shares of Common
Stock (or give its written consent in lieu of a vote at a meeting) to take any
of the following actions:
(a) to reduce the number of Independent Directors on the Company's
Board of Directors or to increase the size of the Board of Directors so that the
ratio of the number of Independent Directors to the total number of directors,
expressed as a percentage, is less than the ratio of two to seven, expressed as
a percentage; or
(b) to remove any Independent Director other than with the approval
of a majority of the entire Board of Directors of the Company for cause or with
the approval of the holders of a majority of the outstanding Class A Common
Stock, voting as a separate class, provided that nothing contained herein shall
preclude any action taken to not nominate, or other failure to nominate, an
Independent Director for reelection at an annual meeting of stockholders at the
expiration of his or her term.
ARTICLE III
FINANCIAL AND OTHER INFORMATION
3.1 TWENTY PERCENT THRESHOLD.
The Company agrees that in any period in which Cognizant beneficially owns
at least 20 percent of the voting power of the outstanding Common Stock or
during any period in which Cognizant is required to account for its investment
in the Company on a consolidated basis or under the equity method of accounting
(determined in accordance with GAAP, consistently applied after consultation
with the Cognizant Auditors):
(a) MAINTENANCE OF BOOKS AND RECORDS. The Company shall, and shall cause
each of its consolidated subsidiaries to (i) make and keep books, records and
accounts, which, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of
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the Company and such subsidiaries and (ii) devise and maintain a system of
internal accounting controls sufficient to provide reasonable assurances that:
(A) transactions are executed in accordance with management's general or
specific authorization, (B) transactions are recorded as necessary (1) to permit
preparation of financial statements in conformity with GAAP and (2) to maintain
accountability for assets and (C) access to assets is permitted only in
accordance with management's general or specific authorization.
(b) FISCAL YEAR. The Company shall, and shall cause each of its
consolidated subsidiaries to, maintain a fiscal year that commences on January 1
and ends on December 31 of each calendar year; provided, however, that if on the
date hereof any consolidated subsidiary of the Company does not maintain a
fiscal year that commences on January 1 and ends on December 31, the Company
shall use its best efforts to cause such subsidiary to change its fiscal year to
one which ends on December 31 if such change is reasonably practicable.
(c) UNAUDITED QUARTERLY FINANCIAL STATEMENTS. As soon as practicable, and
within 20 days after the end of each of the first three fiscal quarters in each
fiscal year of the Company, the Company shall deliver to Cognizant drafts of the
consolidated financial statements of the Company (and notes thereto) for such
periods and for the period from the beginning of the current fiscal year to the
end of such quarter setting forth in each case in comparative form for each such
fiscal quarter of the Company the consolidated figures (and noted thereto) for
the corresponding quarter and periods of the previous fiscal year and all in
reasonable detail and prepared in accordance with Article 10 of Regulation S-X.
The information set forth in this subsection (c) is herein referred to as the
"Quarterly Financial Statements." The Company shall deliver to Cognizant all
revisions to such drafts as soon as practicable after any such revisions are
prepared or made. No later than the date the Company publicly files the
Quarterly Financial Statements with the SEC or otherwise, the Company shall
deliver to Cognizant the final form of the Quarterly Financial Statements.
(d) AUDITED ANNUAL FINANCIAL INFORMATION. As soon as is practicable, and
within 40 days after the end of each fiscal year of the Company, the Company
shall deliver to Cognizant drafts of the consolidated financial statements of
the Company (and notes thereto) for such year setting forth in each case in
comparative form the consolidated figures (and notes thereto) for the previous
fiscal year and all in reasonable detail and prepared in accordance with
Regulation S-X. The information set forth in this subsection (d) is herein
referred to as the "Annual Financial Statements." The Company shall deliver to
Cognizant all revisions to such drafts as soon as any such revisions are
prepared or made. The Company shall deliver to Cognizant, no later than 90 days
after the end of each fiscal year of the Company (or on such earlier date on
which the same are filed with the SEC), in final form, the Annual Financial
Statements accompanied by an opinion thereon by the Company's independent
certified public accountants.
(e) OTHER FINANCIAL INFORMATION. The Company shall provide to
Cognizant upon request such other information and analyses as Cognizant may
reasonably request in order to analyze the financial statements and condition of
the Company and its subsidiaries and shall provide Cognizant and its accountants
with an opportunity to meet with management of the Company (and shall use
commercially reasonable efforts to cause its accountants to so meet) in
connection therewith. The Company shall deliver to Cognizant all
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Quarterly Financial Statements and Annual Financial Statements of each
subsidiary of the Company that is itself required to file financial statements
with the SEC or otherwise make such financial statements publicly available,
with such financial statements to be provided in the same manner and detail and
on the same time schedule as those financial statements of the Company required
to be delivered to Cognizant pursuant to this Section 3.1.
(f) GENERAL FINANCIAL STATEMENT REQUIREMENTS. All information provided by
the Company or any of its subsidiaries to Cognizant pursuant to this Section 3.1
shall be consistent in all material respects with the format and detail and
otherwise with the procedures and practices in effect on the date hereof with
respect to the provision of such financial and other information by the Company
and its subsidiaries to Cognizant, with such changes therein as may be
reasonably requested by Cognizant from time to time, unless changes in such
procedures or practices are required in order to comply with GAAP, the rules and
regulations of the SEC or any other applicable regulatory authority, as
applicable.
(g) PUBLIC INFORMATION AND SEC REPORTS. The Company and each of its
subsidiaries that file information with the SEC shall deliver to Cognizant (to
the attention of its General Counsel) as promptly as practicable as the same are
substantially final, drafts of all reports, notices and proxy and information
statements to be sent or made available by the Company or any of its
subsidiaries to their security holders and all regular, periodic and other
reports filed under the Exchange Act (including Reports on Forms 10-K, 10-Q and
8-K and Annual Reports to Shareholders), and all registration statements and
prospectuses to be filed by the Company or any of its subsidiaries with the SEC
or any securities exchange pursuant to the listed company manual (or similar
requirements) of such exchange (collectively, "the Company Public Documents")
prior to the filing thereof with the SEC, and, no later than the date the same
are printed, sent or filed, whichever is earliest, final copies of all the
Company Public Documents. Prior to issuance, the Company shall deliver to
Cognizant copies of all press releases and other statements to be made available
by the Company or any of its subsidiaries to the public, including, without
limitation, information concerning material developments in the business,
properties, results of operations, financial condition or prospects of the
Company or any of its subsidiaries. No report, registration, information or
proxy statement, prospectus or other document that refers, or contains
information with respect to Cognizant shall be filed with the SEC or otherwise
made public by the Company or any of its subsidiaries without the consent of
Cognizant (which shall not be unreasonably withheld or delayed) with respect to
those portions of such document which contain information with respect to
Cognizant except as may be required by law, rule or regulation (in which case
the Company shall use commercially reasonable efforts to notify Cognizant and
obtain its consent before making such a filing with the SEC or otherwise making
any such information public).
(h) BUDGETS AND PROJECTIONS. The Company shall, as promptly as
practicable, deliver to Cognizant copies of annual and other budgets and
financial projections (consistent in terms of format and detail and otherwise
with the procedures in effect on the date hereof) relating to the Company or any
of its subsidiaries and shall provide Cognizant an opportunity to meet with
management of the Company and its subsidiaries to discuss such budgets and
projections.
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(i) OTHER INFORMATION. With reasonable promptness, the Company shall
deliver to Cognizant such additional financial and other information and data
with respect to the Company and its subsidiaries and their business, properties,
financial position, results of operations and prospects as from time to time may
be reasonably requested by Cognizant.
(j) EARNINGS RELEASES. Cognizant agrees that, unless required by law,
rule or regulation or unless the Company shall have consented thereto, Cognizant
shall not publicly release any quarterly, annual or other financial information
of or concerning the Company or any of its subsidiaries (the "Company
Information") delivered to Cognizant pursuant to this Section 3.1 prior to the
time that the Company publicly releases such information. The Company and
Cognizant will consult on the timing of their annual and quarterly earnings
releases. In the event that Cognizant is required by law to publicly release
such Company Information prior to the public release of Cognizant's financial
information, Cognizant will use commercially reasonable efforts to give the
Company notice of such release of the Company Information and to obtain its
consent prior to such release of the Company Information.
(k) COGNIZANT PUBLIC FILINGS. Cognizant and the Company shall cooperate
with each other to the extent reasonably requested by the other in the
preparation of any of their respective public earnings releases, quarterly
reports on Form 10-Q, Annual Reports to Shareholders, annual reports on Form
10-K, any current reports on Form 8-K and any other proxy, information and
registration statements, notices, prospectuses and other filings made by them or
any of their respective subsidiaries with the SEC, any national securities
exchange, any governmental or regulatory authority or otherwise made publicly
available (collectively, "Public Filings"). Cognizant and the Company agree to
provide to each other all information that the other reasonably requests in
connection with any such Public Filings or that, in the reasonable judgment of
their respective General Counsels, is required to be disclosed therein under any
law, rule or regulation. Such information shall be provided by Cognizant or the
Company, as the case may be, in as timely a manner as practicable to enable the
Company or Cognizant, as the case may be, to prepare, print and release the
Public Filings. If and to the extent requested by Cognizant or the Company, the
other party shall diligently review all drafts of such Public Filings and
prepare in a diligent and timely fashion any portion of such Public Filing
pertaining to such other party or its subsidiaries. Unless required by law,
rule or regulation, Cognizant or the Company, as the case may be, shall not
publicly release any financial or other information that conflicts with the
information with respect to the other party that is included in any Public
Filing without the prior written consent of the Company or Cognizant, as the
case may be.
(l) Subject to the requirements of applicable laws, rules and regulations,
(i) if the Company chooses or is required to submit to a vote of its
stockholders the election, approval or ratification of the selection of its
independent certified public accountants pursuant to Schedule 14A under the
Exchange Act, the Company shall so submit to such a vote and (ii) if the Company
does not submit a firm of accountants to such a vote, the Company shall cause
its independent certified public accountants to be such accounting firm as is
designated, from time to time, by Cognizant, unless the stockholders of the
Company oppose or fail to ratify such firm, or elect another firm.
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(m) Promptly, but in no event later than five Business Days following the
receipt thereof, the Company shall deliver to Cognizant copies of all reports
submitted to the Company or any of its subsidiaries by their independent
certified public accountants, including, without limitation, each report
submitted to the Company or any of its subsidiaries concerning its accounting
practices and systems and any comment letter submitted to management in
connection with their annual audit and all responses by management to such
reports and letters.
3.2 COGNIZANT ANNUAL STATEMENTS.
In connection with Cognizant's preparation of its audited annual financial
statements (collectively, the "Cognizant Annual Financial Statements"), during
any period in which Cognizant beneficially owns, in the aggregate, at least 20
percent of the voting power of the outstanding Common Stock, or during any
period in which Cognizant is required to account for its investment in the
Company on a consolidated basis or under the equity method of accounting
(determined in accordance with GAAP consistently applied after consultation with
the Cognizant Auditors), the Company agrees as follows:
(a) COORDINATION OF AUDITOR'S OPINIONS. The Company will use
commercially reasonable efforts to enable its independent certified public
accountants (the "Company Auditors") to complete their audit such that they will
date their opinion on the Company's audited annual financial statements (the
"Company Annual Financial Statements") on or before the date that the Cognizant
Auditors date their opinion on the Cognizant Annual Financial Statements, and to
enable Cognizant to meet its timetable for the printing, filing and public
dissemination of the Cognizant Annual Financial Statements.
(b) ACCESS TO PERSONNEL AND WORKING PAPERS. The Company will
authorize the Company Auditors to make available to the Cognizant Auditors both
the personnel who performed or are performing the annual audit of the Company
and, consistent with customary professional practice and courtesy of such
auditors with respect to the furnishing of work papers, work papers related to
the annual audit of the Company, in all cases within a reasonable time after the
Company Auditor's opinion date, so that the Cognizant Auditors are able to
perform the procedures they consider necessary to take responsibility for the
work of the Company Auditors as it relates to the Cognizant Auditors report on
the Cognizant Annual Financial Statements, all within sufficient time to enable
Cognizant to meet its timetable for the printing, filing and public
dissemination of the Cognizant Annual Financial Statements; provided, however,
that nothing in this Section 3.2(b) shall in any way be construed as a
representation of or covenant by the Company that any or all of such personnel
or work papers will be so provided.
3.3 FORTY PERCENT THRESHOLD.
The Company agrees that, during any period in which Cognizant beneficially
owns at least 40 percent of the voting power of the outstanding Common Stock or
during any period in which Cognizant is required to account for its investment
in the Company on a consolidated basis or under the equity method of accounting
(determined in accordance with GAAP consistently applied after consultation with
the Cognizant Auditors):
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(a) INTERNAL AUDITORS. The Company shall provide Cognizant and the
internal auditors or other representatives of Cognizant reasonable access to the
Company's and its subsidiaries' books and records so that Cognizant may conduct
reasonable audits relating to the financial statements provided by the Company
pursuant to Sections 3.1(c)-(f) inclusive, as well as to the internal accounting
controls and operations of the Company and its subsidiaries; PROVIDED, HOWEVER,
that such audits shall be conducted (i) during regular business hours and (ii)
in such manner as will not interfere with the conduct of business by the Company
or any subsidiary in the ordinary course.
(b) ACCOUNTING ESTIMATES AND PRINCIPLES. The Company will give
Cognizant as much prior notice as reasonably practicable of any proposed
significant charges in accounting estimates or discretionary accounting
principles from those in effect on the date hereof. In this connection, the
Company will consult with Cognizant and, if requested by Cognizant, the Company
will consult with the Cognizant Auditors with respect thereto. The Company will
not make any change in discretionary accounting principles without Cognizant's
prior consent (which consent will not be unreasonably withheld or delayed) if
such a change would be sufficiently material to be required to be disclosed in
the Company's financial statements as filed with the SEC or otherwise publicly
disclosed therein.
3.4 TEN PERCENT THRESHOLD.
The Company agrees that, during any period in which Cognizant beneficially
owns at least 10 percent of the voting power of the outstanding Common Stock,
the Company shall:
(a) furnish to Cognizant as soon as practicable after they are
publicly available, copies of all financial statements, reports, notices and
proxy statements sent by the Company in a general mailing to all its
stockholders, of all reports on Forms 10-K, 10-Q and 8-K, and of all final
prospectuses filed pursuant to Rule 424 under the Securities Act except with
respect to the IPO; and
(b) permit Cognizant to visit and inspect any of the properties,
corporate books, and financial and other records of the Company and its
subsidiaries, and to discuss the affairs, finances and accounts of any such
corporations with the officers of the Company and the Company Auditors, all at
such time as often as Cognizant may reasonably request; provided, however, that
the foregoing shall be conducted (i) during regular business hours and (ii) in
such manner as will not interfere with the conduct of business of the Company or
any subsidiary in the ordinary course.
3.5 CONFIDENTIALITY.
All information provided by the Company and its subsidiaries pursuant to
this Article 3, except if the purpose for which such information is furnished to
Cognizant pursuant to this Agreement contemplates such disclosure be kept
confidential by Cognizant and Cognizant will not disclose any such information
until such information becomes available generally to the public, except as such
disclosure may be required by law, rule or regulation. Further, Cognizant shall
not, (i) use in any manner any such information in connection with the purchase
or sale of or any offer to purchase or sell any securities issued by the Company
or (ii) make any purchase or sale of
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or any offer to purchase or sell any security while in possession of any such
information, unless and until in each such case such information is publicly
disclosed.
ARTICLE IV
REGISTRATION RIGHTS
4.1 PIGGY-BACK RIGHTS.
(a) Each time the Company is planning to file a registration
statement under the Securities Act in connection with the proposed offer and
sale of Common Stock, the Company will give prompt written notice thereof to
Cognizant regarding Cognizant's rights under this Section 4.1, at least 30 days
prior to the anticipated filing date of such registration statement. Upon the
written request of Cognizant made within 15 days after the receipt of any such
notice from the Company, which request shall specify the shares of Common Stock
(the "COGNIZANT PIGGY-BACK SHARES") intended to be disposed of by Cognizant in
such offering, the Company will effect the registration under the Securities Act
of all Cognizant Piggy-Back Shares which the Company has been so requested to
register by Cognizant, to the extent required to permit the disposition of the
Cognizant Piggy-Back Shares to be registered; provided, that (i) if, at any time
after giving written notice of its intention to register any Common Stock and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
proceed with the proposed registration, the Company may at its election give
written notice of such determination to the holder of Cognizant Piggy-Back
Shares and thereupon shall be relieved of its obligation to register any
Cognizant Piggy-Back Shares in connection with such registration, and (ii) if
such registration involves an underwritten offering, the holder of Cognizant
Piggy-Back Shares requesting to be included in the Company's registration must
sell its shares to the underwriters pursuant to the Underwriting Agreement
entered into by the Company in connection therewith.
(b) If a registration pursuant to this Section 4.1 involves an
underwritten offering and the managing underwriter or underwriters in good faith
advise the Company in writing that, in their opinion, the number of shares of
Common Stock which the Company, the holder of Cognizant Piggy-Back Shares and
any other Persons intend to include in such registration exceeds the largest
number of shares of Common Stock which can be sold in such offering without
having an adverse effect on such offering (including the price at which the
shares of Common Stock can be sold), then the Company will include in such
registration (i) first, 100% of the shares of Common Stock the Company proposes
to sell for its own account, if any, and (ii) second, to the extent that the
number of shares of Common Stock which the Company proposes to sell is less than
the number of shares of Common Stock which the Company has been advised can be
sold in such offering without having the adverse effect referred to above, the
number of Cognizant Piggy-Back Shares to be included in such offering will be
determined on the basis of the relative percentage relationships of (a) the
number of Cognizant Piggy-Back Shares and (b) the number of shares of Common
Stock held by any other Persons sought to be included in the offering pursuant
to an agreement granting registration rights.
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4.2 DEMAND REGISTRATION.
(a) Upon the written request (a "Request") of Cognizant that the
Company effect the registration under the Securities Act of all or part of the
shares of Common Stock owned by Cognizant, the Company will as expeditiously as
reasonably practicable effect the registration under the Securities Act of such
shares as provided herein; provided that the Company shall not be required to
file a registration statement pursuant to this Section 4.2 (i) within 120 days
after the effective date of any other registration statement of the Company
requested by Cognizant hereunder or pursuant to which Cognizant shall have been
given the opportunity to participate pursuant to Section 4.1 or (ii) relating to
an offer, on a delayed or continuous basis pursuant to Rule 415 (or any
successor rule to similar effect) promulgated under the Securities Act if the
Company is not at the time, eligible to register shares of Common Stock on Form
S-3 (or a successor form) or (iii) more than two times in any calendar year or
more than six times in any five consecutive calendar years.
(b) The obligations of the Company to cause the shares of Common
Stock to be registered under the Securities Act hereunder are subject to the
limitation that the Company shall be entitled to postpone for a reasonable
period of time not to exceed 90 days the filing or effectiveness of, or suspend
for a reasonable period of time the rights of Cognizant to make sales pursuant
to, any registration statement otherwise required to be prepared, filed and made
and kept effective by it hereunder if there has been a determination made in
good faith by the Board of Directors, in view of the advisability of deferring
public disclosure of material corporate developments or other information, that
such registration statement or any amendments thereto would not be in the best
interest of the Company at such time; provided, however, that the Company may
not exercise its rights under this Section 4.2(b) more than once in any 12-month
period. The Company shall extend the period during which such registration
statement shall be maintained effective as provided in Section 4.4(b) by the
number of days during the period from and including the date of suspension of
the rights of Cognizant to make sales pursuant to the registration statement to
the date sales may recommence.
(c) If a registration pursuant to this Section 4.2 involves an
underwritten offering and the managing underwriter or underwriters in good faith
advise the Company in writing that, in its opinion, the number of shares of
Common Stock which Cognizant and others who are seeking to include shares of
common stock in the offering exceeds the largest number of shares of Common
Stock which can be sold in such offering without having an adverse effect on
such offering (including the price at which the shares of Common Stock can be
sold), then the Company will include in such registration, if such registration
is pursuant to a Request, (i) first, 100% of the shares of Common Stock that
Cognizant proposes to sell (the "Cognizant Amount") and (ii) second, to the
extent that the Cognizant Amount is less than the number of shares of Common
Stock which the Company has been advised can be sold in such offering without
having the adverse effect referred to above (the "Maximum Amount"), shares of
third parties or the Company up to the difference between the Maximum Amount and
the Cognizant Amount.
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4.3 OTHER REGISTRATION-RELATED MATTERS.
(a) The Company agrees not to effect any sales of Common Stock during
the 14 days prior to and the 90 day period beginning on the effective date of
any registration statement in which Cognizant is participating in connection
with an underwritten public offering of Common Stock (including the IPO), if and
to the extent reasonably requested in writing (with reasonable prior notice) by
the managing underwriter of the underwritten public offering.
(b) The Company may require Cognizant, to the extent it is selling
shares of Common Stock pursuant to Section 4.1 or 4.2, to furnish to the Company
such information regarding Cognizant and the distribution of such shares of
Common Stock as may from time to time reasonably be requested in writing in
order to comply with the Securities Act.
4.4 REGISTRATION PROCEDURES.
If and whenever the Company is required by the provisions of this Agreement
to cause the registration of any Common Stock under the Securities Act as
provided in this Agreement, the Company shall, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement on an
appropriate registration form of the SEC for the disposition of such Common
Stock in accordance with the intended method of disposition thereof as shall be
selected by the Company, and use its best efforts to cause such registration
statement to become and remain effective;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for such period
(which shall not be required to exceed 120 days) as Cognizant shall request and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all Common Stock covered by such registration statement in
accordance with the intended methods of disposition by Cognizant set forth in
such registration statement;
(c) furnish, without charge, to Cognizant and each underwriter, if
any, of the securities covered by such registration statement such number of
copies of such registration statement, each amendment and supplement thereto (in
each case including all exhibits), and the prospectus included in such
registration statement (including each preliminary prospectus) in conformity
with the requirements of the Securities Act, and other documents, as such seller
and underwriter may reasonably request in order to facilitate the public sale or
other disposition of the Common Stock owned by Cognizant, but only while the
Company is required under the provisions hereof to keep such registration
statement effective;
(d) use its best efforts to register or qualify the Common Stock
covered by such registration statement under such other securities or "blue sky"
laws of such jurisdictions as Cognizant or any managing underwriter, if any,
shall reasonably request, and do any and all other acts and things which may be
reasonably necessary or advisable to enable Cognizant or such underwriter, if
any, to consummate the disposition of the Common Stock in such jurisdictions,
-16-
except that in no event shall the Company be required to qualify to do business
as a foreign corporation in any jurisdiction where it would not, but for the
requirements of this paragraph (d), be required to be so qualified, to subject
itself to taxation in any such jurisdiction, to consent to general service of
process in any such jurisdiction or to conform the composition of its assets at
the time to the securities or "blue sky" laws of any jurisdiction;
(e) promptly notify Cognizant and each managing underwriter, if any:
(i) when the registration statement, any pre-effective amendment, the prospectus
or any prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed, and, with respect to the registration
statement or any post-effective amendment, when the same has become effective;
(ii) of any request by the Commission for amendments or supplements to the
registration statement or the prospectus related thereto or for additional
information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceedings for that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any Common
Stock for sale under the securities or blue sky laws of any jurisdiction or the
initiation of any proceeding for such purpose; and (v) of the existence of any
fact of which the Company becomes aware which results in the registration
statement, the prospectus related thereto or any document incorporated therein
by reference containing an untrue statement of a material fact or omitting to
state a material fact required to be stated therein or necessary to make any
statement therein not misleading; and, in the case the notification relates to
an event described in clause (v), the Company shall promptly prepare and furnish
to each such seller and each underwriter, if any, a reasonable number of copies
of a prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Common Stock, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein in the light of the
circumstances under which they were made not misleading;
(f) comply with all applicable rules and regulations of the SEC, and
make generally available to its securityholders, as soon as reasonably
practicable after the effective date of the registration statement (and in any
event within 16 months thereafter), an earnings statement (which need not be
audited) covering the period of at least twelve consecutive months beginning
with the first day of the Company's first calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(g) use its best efforts to cause all such Common Stock covered by
such registration statement to be listed on the principal securities exchange on
which similar securities issued by the Company are then listed (if any), if the
listing of such Common Stock is then permitted under the rules of such exchange,
or (ii) if no similar securities are then so listed, use its best efforts to,
either (as the Company may elect) (x) cause all such Common Stock to be listed
on a national securities exchange or (y) cause all such Common Stock to be
quoted on the Nasdaq National Market and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such with
respect to such shares with the National Association of Securities Dealers, Inc.
("NASD");
-17-
(h) provide a transfer agent and registrar for all such Common Stock
covered by such registration statement not later than the effective date of such
registration statement;
(i) enter into such customary agreements (including, if applicable,
an underwriting agreement in customary form containing, among other provisions,
standard provisions with respect to the indemnification of the underwriters) and
take such other actions as Cognizant shall reasonably request in order to
expedite or facilitate the disposition of such Common Stock, provided that the
underwriting agreement, if any, shall be reasonably satisfactory to the Company.
Cognizant shall be a party to such underwriting agreement and may, at its
option, require that the Company make to and for the benefit of Cognizant the
representations, warranties and covenants of the Company which are being made to
and for the benefit of such underwriters and which are of the type customarily
provided to institutional investors in secondary offerings;
(j) use its best efforts to obtain an opinion from the Company's
counsel and a "cold comfort" letter from the Company's independent public
accountants in customary form and covering such matters as are customarily
covered by such opinions and "cold comfort" letters delivered to underwriters in
underwritten public offerings, and to furnish to Cognizant and to each
underwriter, if any, a copy of such opinion and letter addressed to Cognizant or
such underwriter;
(k) deliver promptly to Cognizant and each underwriter, if any,
copies of all correspondence between the Commission and the Company, its counsel
or auditors and all memoranda relating to discussions with the Commission or its
staff with respect to the registration statement and, upon receipt of such
confidentiality agreements as the Company may reasonably request, make available
for inspection by Cognizant, by any underwriter, if any, participating in any
disposition to be effected pursuant to such registration statement and by any
attorney, accountant or other agent retained by Cognizant or any such
underwriter, the properties of the Company and all pertinent financial and other
records and corporate documents of the Company, and cause all of the Company's
officers, directors and employees to supply all information reasonably requested
by Cognizant, any such underwriter, attorney, accountant or agent in connection
with such registration statement and provide them with opportunities to discuss
the business of the Company with its officers and independent public accountants
as shall be necessary in the opinion of Cognizant, any such underwriters or
their counsel, to conduct a reasonable investigation (i.e, "due diligence")
under the Securities Act;
(l) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the registration statement;
(m) cooperate with Cognizant and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Common Stock to be sold; and enable such Common Stock
to be in such denominations and registered in such names as Cognizant or the
managing underwriter or underwriters, if any, may request at least three
business days prior to any delivery of Common Stock;
-18-
(n) provide a CUSIP number for the Common Stock, not later than the
effective date of the registration statement; and
(o) use its best efforts to cause the Common Stock covered by such
registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable Cognizant to consummate the
disposition of such Common Stock.
Cognizant agrees that upon receipt of any notice from the Company of the
happening of any event of the kind described in clause (v) of paragraph (e) of
this Section 4.4, Cognizant will discontinue its disposition of Common Stock
pursuant to the registration statement covering such Common Stock until
Cognizant's receipt of the copies of the supplemented or amended prospectus
contemplated by paragraph (e) of this Section 4.4 and, if so requested by the
Company, will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in Cognizant's possession of the
prospectus covering such Common Stock that was in effect at the time of receipt
of such notice. In the event the Company shall give any such notice, the period
mentioned in paragraph (b) of this Section 4.4 shall be extended by the number
of days during the period from and including the date of the giving of such
notice to and including the date when Cognizant shall have received the copies
of the supplemented or amended prospectus contemplated by paragraph (e) of this
Section 4.4.
If any such registration statement or comparable statement under "blue sky"
laws refers to Cognizant by name or otherwise as a holder of any securities of
the Company, then the Company shall provide copies of such registration or other
statement to Cognizant prior to the filing thereof and Cognizant shall have the
right to require (i) the insertion therein of language, in form and substance
satisfactory to Cognizant and the Company, to the effect that the holding by
Cognizant of such securities is not to be construed as a recommendation by
Cognizant of the investment quality of the Company's securities covered thereby
and that such holding does not imply that Cognizant will assist in meeting any
future financial requirements of the Company, or (ii) in the event that such
reference to Cognizant by name or otherwise is not in the judgment of the
Company, as advised by counsel, required by the Securities Act or any similar
federal statute or any state "blue sky" or securities law then in force, the
deletion of the reference to Cognizant.
4.5 INDEMNIFICATION.
(a) In the event of any registration of any equity securities of the
Company under the Securities Act, the Company will, and hereby does, indemnify
and hold harmless, Cognizant, its directors and officers, each other Person who
participates as an underwriter in the public offering of such securities, each
officer and director of each such underwriter, and each other Person, if any,
who controls Cognizant or any such underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, against any losses,
claims, damages, liabilities and expenses, joint or several, to which such
seller or any such director or officer or participating or controlling Person
may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions or proceedings in
respect thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities
-19-
were registered under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus included therein, or any amendment or
supplement thereto, or any document incorporated by reference therein, or (ii)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company will reimburse Cognizant, and each such director, officer,
underwriter and controlling Person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; PROVIDED, HOWEVER, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, summary prospectus, amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company for use in the preparation thereof by Cognizant or such
underwriter, as the case may be, or (ii) an untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus but
notified to Cognizant and such underwriter prior to any sale of Common Stock and
subsequently corrected by the Company in any final prospectus, amendment or
supplement made available to Cognizant or such underwriter but which final
prospectus, amendment or supplement was not used by Cognizant or such
underwriter in the sale of Common Stock that gave rise to such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense. Such
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of Cognizant or any such director, officer, underwriter or
controlling Person and shall survive the transfer of such Common Stock by
Cognizant.
(b) The Company may require, as a condition to including any Common
Stock in any registration statement filed pursuant to Section 4.1 or Section
4.2, that the Company shall have received an undertaking satisfactory to it from
(i) Cognizant to indemnify and hold harmless (in the same manner and to the same
extent as set forth in Section 4.5(a)), except that Cognizant shall not in any
event be liable to the Company pursuant thereto for an amount in excess of the
net proceeds of sale of Cognizant's Common Stock) the Company, each such
underwriter of such Common Stock, each officer and director of each such
underwriter and each other Person, if any, who controls the Company or any such
underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act, and (ii) each such underwriter of such Common Stock, to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 4.5(a)) the Company, each officer and director of the Company,
Cognizant, each officer and director of and each other Person, if any, who
controls the Company or within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, with respect to any statement in or omission
from such registration statement, any preliminary prospectus, final prospectus
or summary prospectus included therein, or any amendment or supplemental
thereto, if such statement or omission was made in reliance upon and in
conformity with written information furnished by Cognizant or such underwriter,
as the case may be, to the Company for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of the Company
or any such director, officer or controlling Person.
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(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding (including any governmental
investigation) involving a claim referred to in Sections 4.5(a) or (b), such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the proceeding provisions of this Section 4.5, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim (in which case, the indemnifying party shall not be liable for the fees
and expenses of more than one counsel for all sellers of Common Stock, or more
than one counsel for the underwriters in connection with any one action or
separate but similar or related actions), the indemnifying party will be
entitled to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified, to the extent that it may wish with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof. No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof, the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation.
4.6 CONTRIBUTION.
(a) If the indemnification provided for in Section 4.5 is unavailable
to the indemnified parties in respect of any losses, claims, damages or
liabilities referred to therein, then each indemnifying party and the Company
shall contribute to the amounts paid or payable by such indemnified parties as a
result of such losses, claims, damages or liabilities (i) as between the Company
and Cognizant on the one hand, and the underwriters, on the other, in such
proportion as is appropriate to reflect the relative benefits received by the
Company and Cognizant, on the one hand, and the underwriters, on the other, from
the public offering of the Common Stock, or if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits but also the relative fault of the Company and Cognizant, on
the one hand, and of the underwriters, on the other, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations, and (ii) as
between the Company, on the one hand, and Cognizant, on the other, in such
proportion as is appropriate to reflect the relative fault of the Company and of
Cognizant in connection with such statements or omissions, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and Cognizant, on the one hand, and the underwriters, on the other,
shall be deemed to be in the same proportion as the total proceeds from the
public offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and Cognizant bear to the total
underwriting discounts and commissions received by the underwriters. The
relative fault of the Company and Cognizant, on the one hand, and of the
underwriters, on the other, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement
-21-
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and Cognizant or by the
underwriters. The relative fault of the Company, on the one hand, and of
Cognizant, on the other, shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by such party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(b) The Company and Cognizant agree that it would not be just and
equitable if contribution pursuant to this Section 4.6 were determined by pro
rata allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the next preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the next preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 4.6, no underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Common
Stock underwritten by it and distributed to the public were offered to the
public pursuant to such public offering exceeds the amount of any damages that
such underwriter has otherwise been required to pay by reason of such untrue or
alleged statement or omission or alleged omission, and Cognizant shall not be
required to contribute any amount in excess of the amount by which the proceeds
to Cognizant from such public offering exceeds the amount of any damages that
Cognizant has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
4.7 EXPENSES.
The Company shall, whether or not any registration pursuant to this
Agreement becomes effective, pay all fees, costs and expenses incident to the
Company's performance of or compliance with this Article 4, including (i)
commission, stock exchange or NASD registration and filing fees and all listing
fees and fees with respect to the inclusion of securities in the Nasdaq National
Market, (ii) fees and expenses of compliance with federal, state and foreign
securities laws and in connection with the preparation of a "blue sky" survey,
including, without limitation, reasonable fees and expenses of blue sky counsel,
(iii) printing expenses, (iv) messenger and delivery expenses, (v) internal
expenses (including, without limitation, all salaries and expenses of the
Company's officers and employees performing legal and accounting duties), (vi)
fees and disbursements of counsel for the Company, (vii) with respect to each
registration, the fees and disbursements of one counsel for Cognizant (selected
by Cognizant) as well as of one local counsel (as applicable), (viii) fees and
disbursements of all independent public accountants (including the expenses of
any audit and/or "cold comfort" letter) and fees and expenses of other persons,
including special experts, retained by the Company, (ix) any fees and
disbursements of underwriters, if any, customarily paid by issuers or sellers of
securities, and (x) the preparation and execution or filing of any and all
further documents, agreements, forms, applications, contracts or consents
associated with the registration. Notwithstanding the
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foregoing, Cognizant shall pay all underwriting discounts and commissions and
transfer taxes, if any, attributable to the Common Stock transferred by it.
ARTICLE V
INDEMNIFICATION AND RELATED MATTERS
5.1 INDEMNIFICATION BY COGNIZANT.
Subject to the provisions of this Article 5, Cognizant shall indemnify and
hold the Company Indemnitees harmless from and against any and all Liabilities
suffered by the Company Indemnitees that are Cognizant Liabilities.
5.3 INDEMNIFICATION BY THE COMPANY.
(a) Subject to the provisions of this Article 5, the Company agrees
to indemnify and hold the Cognizant Indemnitees harmless from and against any
and all Liabilities suffered by the Cognizant Indemnitees that are Company
Liabilities; provided, however, that nothing contained herein shall entitle
Cognizant to indemnification for Liabilities resulting from the breach by
Cognizant of any of the Intercompany Agreements or for any matters subject to
the indemnification provisions of any underwriting agreement entered into in
connection with the IPO or any registered public offering pursuant to Article IV
hereof or for any matters otherwise subject to the indemnification provisions of
Article IV hereof nor shall anything contained herein entitle any director of
the Company to indemnification for Liabilities for which a corporation is not
permitted under Section 145 of the Delaware General Corporation Law to indemnify
its directors or eliminate the liability of any director of the Company for
breach of fiduciary duty except as permitted by Section 102(b)(7) of the
Delaware General Corporation Law.
5.3 DETERMINATION OF DAMAGES AND RELATED MATTERS.
In calculating any amounts payable to the Company pursuant to Section 5.1
or payable to Cognizant pursuant to Section 5.2, the Company or Cognizant, as
the case may be, shall receive credit for any reduction in tax liability as a
result of the facts giving rise to the claim for indemnification and for any
insurance recoveries. No amount shall be included for the Company's or
Cognizant's, as the case may be, special or consequential damages.
5.4 NOTICE OF INDEMNIFICATION.
In the event any legal proceeding shall be threatened or instituted or any
claim or demand shall be asserted by any person in respect of which payment may
be sought by one party hereto from the other party under the provisions of this
Article 5, the party seeking indemnification (the "Indemnitee") shall promptly
cause written notice of the assertion of any such claim of which it has
knowledge which is covered by this indemnity to be forwarded to the other party
(the "Indemnitor"). Any such notice shall state specifically the provision of
this Agreement with respect to which the claim is made, the facts giving rise to
an alleged basis for the claim, and the amount of the liability asserted against
the Indemnitor by reason of the claim.
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5.5 INDEMNIFICATION PROCEDURE FOR THIRD-PARTY CLAIMS.
(a) In the event of the initiation of any legal proceeding against an
Indemnitee by a third party, the Indemnitor shall have the absolute right after
the receipt of notice, at its option and at its own expense, to engage counsel
of its choice and to defend against, negotiate, settle or otherwise deal with
any proceeding, claim, or demand which relates to any loss, liability or damage
indemnified against hereunder, and the Indemnitee shall cooperate fully with the
Indemnitor and its designee; provided, however, that the Indemnitee may
participate in, but not control, any such proceeding with counsel of its choice
and at its expense.
(b) The parties hereto agree to cooperate fully with each other in
connection with the defense, negotiation or settlement of any legal proceeding,
claim or demand affected by this Agreement and to engage in no action or conduct
that would result in or increase liability on the part of another party. To the
extent the Indemnitor elects not to defend such proceeding, claims or demand,
and the Indemnitee defends against or otherwise deals with any such proceeding,
claim or demand, the Indemnitee may retain counsel, at the expense of the
Indemnitor, and control the defense of such proceeding. The Indemnitee may not
settle any proceeding without the consent of the Indemnitor, which shall not be
unreasonably withheld.
5.6 ASSIGNMENT OF RIGHTS UNDER THE DISTRIBUTION AGREEMENT.
Cognizant hereby assigns to the Company all rights to indemnification from
D&B and ACNielsen pursuant to the Distribution Agreement that relate to D&B
Liabilities and ACNielsen Liabilities to the extent such rights are in respect
of Liabilities suffered by the Company. Anything contained in this Section 5.6
to the contrary notwithstanding, this agreement shall not constitute an
agreement or attempted agreement to assign any contract or any claim of or right
to any benefit arising thereunder or resulting therefrom if an attempted
assignment thereof, without the consent of any other party thereto, would
constitute a breach thereof. Cognizant shall cooperate with Company, to obtain
the consent of any such third party to the assignment or transfer thereof
contemplated by this Section 5.6 to the Company in all cases in which such
consent is required for assignment. If such consent is not obtained, Cognizant
shall cooperate with the Company, at the expense of the Company, in any
arrangements reasonably necessary to provide for the Company the benefits
thereunder.
ARTICLE VI
TAX MATTERS
6.1 TAX BENEFITS.
(a) Any federal or state income tax benefits generated by the Company
and its subsidiaries (i) during the period that the Company and its affiliates
were included in Cognizant's consolidated federal income tax return or in a
state combined income tax return that included Cognizant (the "Consolidated
Returns") and (ii) utilized by Cognizant in its Consolidated Returns shall
remain the property of Cognizant and shall not give rise to any right of
reimbursement in favor of the Company. Cognizant shall bear the risk that such
benefits may be challenged and disallowed in whole or part upon subsequent
examination by the applicable tax
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authorities and in such event shall have no recourse against the Company or its
subsidiaries. Cognizant shall be responsible for properly preparing and timely
filing all Consolidated Returns and for paying all amounts shown on such
Consolidated Returns to be due and payable.
(b) All other income tax benefits (including, without limitation,
federal, state, local and foreign income tax benefits) generated by the Company
and its affiliates during the period the Company was included in Cognizant's
Consolidated Returns shall remain the property of the Company and shall not give
rise to any right of reimbursement against the Company. The Company and its
subsidiaries shall bear the risk that such benefits may be challenged and
disallowed in whole or part upon subsequent examination by the applicable tax
authorities and in such event shall have no recourse against Cognizant. The
Company and its subsidiaries shall be responsible for properly preparing and
timely filing all tax returns (other than Consolidated Returns) that they are
required to file and for paying all amounts shown on such tax returns to be due
and payable.
6.2 TAX INDEMNITY.
(a) From and after the Effective Date, Cognizant shall indemnify and
hold the Company and its subsidiaries harmless from any (x) federal or state
income tax liability assessed or proposed to be assessed against the Company and
its subsidiaries (i) with respect to tax items or income generated by the
Company and its subsidiaries and utilized, included or includible in Cognizant's
Consolidated Returns and (ii) solely as a consequence of having been previously
included in Cognizant's Consolidated Returns and (y) liability for reasonable
legal, accounting and other fees and expenses incurred in connection with such
tax liability.
(b) From and after the Effective Date, the Company shall indemnify
and hold Cognizant harmless from any (x) income tax liability (including,
without limitation federal, state, local and foreign income tax liability)
assessed or proposed to be assessed against the Company and its subsidiaries
other than federal and state income tax liabilities for which Cognizant is
responsible pursuant to Section 6.2.(a) of this Agreement and (y) liability for
reasonable legal, accounting and other fees or expenses incurred in connection
with tax liabilities for which the Company is responsible under this Section
6.2.(b).
6.3 INDEMNIFICATION PROCEDURE.
(a) If a claim shall be made by any tax authority relating to any tax
items generated by the Company and its subsidiaries and utilized, included or
includible in Cognizant's Consolidated Returns ("Tax Claim"), Cognizant shall,
at its expense, control all proceedings and make all decisions in connection
with such Tax Claim (including selection of counsel) and, without limiting the
foregoing, may in its sole discretion pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with any tax
authority with respect thereto, and may, in its sole discretion, either pay the
tax claimed and xxx for a refund where applicable law permits such refund suits
or contest the Tax Claim in any permissible manner. Cognizant shall be under no
obligation to notify the Company of such Tax Claim unless the resolution thereof
may have a material adverse impact on the tax position of the Company or its
subsidiaries for any taxable period beginning after the last taxable period in
which the Company and its subsidiaries were included in a Cognizant Consolidated
Return (the "Post-Cognizant Period"), which determination shall
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be made by Cognizant acting in good faith. If the resolution of such Tax Claim
may have a material adverse impact on the tax position of the Company or its
subsidiaries for a Post-Cognizant Period, Cognizant shall promptly notify, and
consult with, the Company in order to achieve a mutually satisfactory resolution
to the Tax Claim, with both parties acting in good faith. If Cognizant and the
Company cannot agree to a mutually satisfactory resolution within 30 days of the
initial notice by Cognizant to the Company, Cognizant shall retain full control
of the resolution of such Tax Claim in accordance with the first sentence of
this Section 6.3; provided that if the Company waives its right to be
indemnified hereunder and agrees in writing to bear any cost or expense arising
from such Tax Claim and indemnify Cognizant therefor, Cognizant may, but shall
not be obligated to, relinquish control of the resolution of such Tax Claim and
shall have no further responsibility for such Tax Claim. If Cognizant does not
relinquish control of a Tax Claim pursuant to the preceding sentence, it shall
remain liable to the Company and its subsidiaries for indemnification under
Section 6.2(a)
(b) If any claim shall be made by any tax authority relating to any
tax items generated by the Company or its subsidiaries (including, without
limitation, Federal, state, local or foreign tax items) other than those
utilized, included or includible in Cognizant's Consolidated Returns ("Separate
Company Tax Claim"), the Company shall, at its expense, control all proceedings
and make all decisions in connection with such Separate Company Tax Claim
(including selection of counsel) and, without limiting the foregoing, may, in
its sole discretion, pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with any tax authority with respect
thereto, and may, in its sole discretion, either pay the tax claimed and xxx for
a refund where applicable law permits such refund suits or contest the Separate
Company Tax Claim in any permissible manner. The Company shall be under no
obligation to notify Cognizant of such Separate Company Tax Claim.
6.4 PRE-COGNIZANT PERIODS.
With respect to any tax benefits or liabilities generated by, or proposed
to be assessed against, the Company or its Affiliates for taxable periods prior
to the Company having been included in Cognizant's Consolidated Return (the
"Pre-Cognizant Period") which are addressed in, and governed by, the Tax
Allocation Agreement dated October 28, 1996, among D&B, Cognizant and ACNielsen
(the "TAA"), Cognizant hereby assigns the Company its rights and obligations
with respect to the Pre-Cognizant Period under the TAA.
ARTICLE VII
MISCELLANEOUS
7.1 EFFECTIVENESS OF AGREEMENT.
This Agreement shall become effective on the Effective Date.
7.2 NONASSIGNABILITY OF AGREEMENT; ASSIGNMENT TO IMS HEALTH.
(a) Except (i) by operation of law (ii) in connection with the sale
of all or substantially all the assets of a party hereto or (iii) in connection
with the Reorganization, this Agreement shall not be assignable, in whole or in
part, directly or indirectly by either party hereto without the prior written
consent of the other, and any attempt to assign any rights or obligations
arising under this Agreement without such consent shall be void; PROVIDED,
HOWEVER, that the
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provisions of this Agreement shall be binding upon, inure to the benefit of and
be enforceable by Cognizant and the Company and their respective successors and
permitted assigns, including, without limitation, IMS HEALTH.
(b) In connection with the Reorganization, Cognizant shall assign
this Agreement to IMS HEALTH, whereupon all references herein to Cognizant shall
be deemed to be references to IMS HEALTH.
7.3 FURTHER ASSURANCES.
Subject to the provisions hereof, each of the parties hereto shall make,
execute, acknowledge and deliver such other actions and documents as may be
reasonably required in order to effectuate the purposes of this Agreement, and
to comply with all applicable laws, regulations, orders and decrees, and obtain
all required consents and approvals and make all required filings with any
governmental agency, other regulatory or administrative agency, commission or
similar authority, as may be necessary or desirable in connection herewith.
7.4 WAIVERS.
No failure or delay on the part of Cognizant or the Company in exercising
any right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, or any abandonment or discontinuance of
steps to enforce such a right, preclude any other or further exercise thereof or
the exercise of any other right. No modification or waiver of any provision of
this Agreement nor consent to any departure by Cognizant or the Company
therefrom shall in any event be effective unless the same shall be in writing,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Any consent or waiver by the Company under
this Section 7.3 shall be approved by at least a majority of the Independent
Directors.
7.5 ENTIRE AGREEMENT; RULES OF CONSTRUCTION.
(a) This Agreement contains the entire understanding of the parties
with respect to the transactions contemplated hereby.
(b) 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 phase "without limitation."
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.
7.6 AMENDMENTS.
This Agreement may be amended or supplemented only in a writing execute by
the parties (PROVIDED that, in the case of the Company, such amendment or
supplement shall require the approval of at least a majority of the Independent
Directors).
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7.7 NOTICES.
All notices, requests and other communications hereunder shall be in
writing and shall be given (i) by mail (postage prepaid, registered or certified
mail, return receipt requested), (ii) by hand delivery, (iii) by nationally
recognized courier service or (iv) by telecopier, receipt confirmed, addressed
as follows (or to such other address as shall be specified by a party by notice
pursuant hereto):
(a) if to Cognizant, to:
Cognizant Corporation
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Chief Financial Officer
Telecopier: (000) 000-0000;
with a copy to:
Cognizant Corporation
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Telecopier: (000) 000-0000; and
(b) if to the Company, to:
Cognizant Technology Solutions Corporation
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000;
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000.
Each such notice, request or communication shall be effective (i) if mailed,
three Business Days after mailing, (ii) if delivered by hand or by nationally
recognized courier service, when delivered and (iii) if given by telecopier,
when such telecopy is transmitted and the appropriate confirmation is received.
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7.8 DISPUTE RESOLUTION.
(a) NEGOTIATION. In the event of a controversy, dispute or claim
arising out of, in connection with or relating to the interpretation,
performance, nonperformance, validity or breach of this Agreement or otherwise
arising out of, or in any way related to this Agreement or the transactions
contemplated hereby, including, without limitation, any claim based on contract,
tort, statute or constitution (collectively, "Agreement Disputes"), a
representative of each of Cognizant and the Company (the representative of the
Company being selected by the Independent Directors) shall negotiate in good
faith for a reasonable period of time to settle such Agreement Dispute, PROVIDED
such reasonable period shall not, unless otherwise agreed by the parties in
writing, exceed 30 days from the time the parties began such negotiations;
PROVIDED FURTHER that in the event of any arbitration in accordance with Section
7.8(b) hereof, the parties shall not assert the defenses of statute of
limitations and laches arising for the period beginning after the date the
parties began negotiations hereunder, and any contractual time period or
deadline under this Agreement to which such Agreement Dispute relates shall not
be deemed to have passed until such Agreement Dispute has been resolved.
(b) ARBITRATION. If after such reasonable period such
representatives are unable to settle such Agreement Dispute (and in any event,
unless otherwise agreed in writing by the parties, after 60 days have elapsed
from the time the parties began such negotiations), such Agreement Dispute shall
be determined, at the request of any party, by arbitration conducted in New York
City, before and in accordance with the then-existing International Arbitration
Rules of the American Arbitration Association (the "Rules"). In any dispute
between the parties hereto, the number of arbitrators shall be one. Any
judgment or award rendered by the arbitrator shall be final, binding and
nonappealable (except upon grounds specified in 9 U.S.C. Section 10(a) as in
effect on the date hereof). If the parties are unable to agree on an
arbitrator, the arbitrator shall be selected in accordance with the Rules. Any
controversy concerning whether an Agreement Dispute is an arbitrable Agreement
Dispute, whether arbitration has been waived, whether an assignee of this
Agreement is bound to arbitrate or as to the interpretation of enforceability of
this Section 7.8(b) shall be determined by the arbitrator. In resolving any
dispute, the parties intend that the arbitrator apply the substantive laws of
the State of New York, without regard to the choice of law principles thereof.
The parties intend that the provisions to arbitrate set forth herein be valid,
enforceable and irrevocable. The undersigned agree to comply with any award
made in any such arbitration proceedings that has become final in accordance
with the Rules and agree to enforcement of or entry of judgment upon such award,
by any court of competent jurisdiction, including the Supreme Court of the State
of New York, New York County, or the United States District Court for the
Southern District of New York. The arbitrator or arbitrators shall be entitled,
if appropriate, to award any remedy in such proceedings, including, without
limitation, monetary damages, specific performance and all other forms of legal
and equitable relief; PROVIDED, HOWEVER, that the arbitrator shall not be
entitled to award punitive damages. Without limiting the provisions of the
Rules, unless otherwise agreed in writing by or among the relevant parties or
permitted by this Agreement, the parties shall keep confidential all matters
relating to the arbitration or the award, PROVIDED such matters may be disclosed
(A) to the extent reasonably necessary in any proceeding brought to enforce the
award or for entry of a judgment upon the award and (B) to the extent otherwise
required by law. Notwithstanding Article 32 of the Rules, the party other than
the prevailing party in the arbitration shall be responsible for all of
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the costs of the arbitration, including legal fees and other costs specified by
such Article 32. Nothing contained herein is intended to or shall be construed
to prevent any party, in accordance with Article 22(3) of the Rules or
otherwise, from applying to any court of competent jurisdiction for interim
measures or other provisional relief in connection with the subject matter of
any Agreement Disputes.
(c) CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed
in writing, the parties will continue to provide service and honor all other
commitments under this Agreement during the course of dispute resolution
pursuant to the provisions of this Agreement with respect to all matters not
subject to such dispute, controversy or claim.
7.9 GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the choice of law principles
thereof.
7.10 COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which shall, taken together, be
considered one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
COGNIZANT CORPORATION
By:
-----------------------------
Name:
Title:
COGNIZANT TECHNOLOGY SOLUTIONS CORPORATION
By:
-----------------------------
Name:
Title:
