Exhibit 10.3
EMPLOYEE BENEFITS AGREEMENT
This EMPLOYEE BENEFITS AGREEMENT is dated as of June 30, 1998 (the
"Agreement"), between COGNIZANT CORPORATION, a Delaware corporation
("Corporation") and IMS HEALTH INCORPORATED, a Delaware corporation ("IMS
Health").
WHEREAS, the Board of Directors of Corporation has determined that
it is appropriate, desirable and in the best interests of the holders of shares
of common stock, par value $.01 per share, of Corporation (the "Corporation
Common Stock") to take certain steps to reorganize Corporation's Subsidiaries
(as defined herein) and businesses and then to distribute to the holders of the
Corporation Common Stock all the outstanding shares of common stock of IMS
Health (the "IMS Health Common Stock"); and
WHEREAS, Corporation and IMS Health have determined that it is
necessary and desirable to allocate and assign responsibility for certain
employee benefit matters in respect of such entities on and after the Effective
Time (as defined herein).
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, Corporation and IMS Health agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. Capitalized terms used in this Agreement
shall have the following meanings:
"ACNielsen" shall mean ACNielsen Corporation, a Delaware
corporation.
"Action" shall mean any action, suit, arbitration, inquiry,
proceeding or investigation by or before any court, any governmental or other
regulatory or administrative agency, body or commission or any arbitration
tribunal.
"Affiliate" shall mean, when used with respect to a specified
person, another person that controls, is controlled by, or is under common
control with the person specified. As used herein, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, whether through the
ownership of voting securities or other interests, by contract or otherwise.
"Ancillary Agreements" shall mean all of the written agreements,
instruments, assignments or other written arrangements (other than this
Agreement and the Distribution Agreement) entered into in connection with the
transactions
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contemplated by this Agreement and the Distribution Agreement, including,
without limitation, the Conveyancing and Assumption Instruments, [the Data
Services Agreements], [the Intellectual Property Agreement], the Shared
Transaction Services Agreement, the Tax Allocation Agreement and the Transition
Services Agreement.
"Assets" shall have the meaning set forth in Section 1.1(f) of the
Distribution Agreement.
"Board of Directors" shall mean, when used with respect to a
specified corporation, the board of directors of the corporation so specified.
"Business Entity" shall mean any corporation, partnership, limited
liability company or other entity which may legally hold title to Assets.
"COBRA" shall mean the Consolidated Omnibus Budget Reconciliation
Act of 1985, as amended, and the regulations promulgated thereunder, including
any successor legislation.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder, including any successor legislation.
"Conveyancing and Assumption Instruments" shall mean, collectively,
the various agreements, instruments and other documents heretofore entered into
and to be entered into to effect the transfer of Assets and the assumption of
Liabilities in the manner contemplated by the Distribution Agreement, or
otherwise arising out of or relating to the transactions contemplated in the
Distribution Agreement.
"Cognizant" shall mean Cognizant Corporation, a Delaware
corporation.
"Corporate Staff Employees" shall mean Corporation Pre-Distribution
Employees who performed administrative functions generally for the Corporation
Group prior to the Effective Time and who were based at the Corporation
headquarters in Westport, CT, aviation department in Purchase, NY or STS
department in Allentown, PA.
"Corporation" shall mean Cognizant Corporation, a Delaware
corporation.
"Corporation Committee" shall mean the Compensation and Benefits
Committee of the Board of Directors of Corporation.
"Corporation Common Stock" shall have the meaning set forth in the
recitals hereto.
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"Corporation Disabled Employees" shall mean all employees of the
Corporation Group who are receiving benefits under the Corporation Long-Term
Disability Plan as of the Effective Time, as in effect from time to time.
"Corporation Employee Stock Purchase Plan" shall mean the 1997
Cognizant Corporation Employee Stock Purchase Plan, as in effect from time to
time.
"Corporation Executive Annual Incentive Plan" shall mean the
Cognizant Corporation Executive Annual Incentive Plan, as in effect from time to
time.
"Corporation Group" shall mean Cognizant Corporation and each
Business Entity that is a Subsidiary of Corporation, except that Corporation
Group shall not include Xxxxx International Inc. or Pharmaceutical Marketing
Services Inc. or any of their respective Subsidiaries.
"Corporation Long-Term Disability Plan" shall mean The Cognizant
Long Term Disability Plan or any other long-term disability plan sponsored by
Corporation or any Subsidiary of Corporation prior to the Effective Time.
"Corporation LSARs" shall have the meaning set forth in Section 6.2
of this Agreement.
"Corporation Nonqualified Plans" shall have the meaning as set forth
in Section 4.1 of this Agreement.
"Corporation Pension REP" shall mean the Cognizant Retirement Excess
Plan, as in effect from time to time.
"Corporation Post-Distribution Employees" shall mean persons who,
immediately after the Effective Time, are employed by the Corporation Group
(including persons who are absent from work by reason of layoff or leave of
absence and inactive employees treated as such by agreement therewith) other
than IMS Health Transitional Employees.
"Corporation Pre-Distribution Employees" shall mean persons who, at
any time prior to the Effective Time, were employed by the Corporation Group.
"Corporation Ratio" shall have the meaning set forth in Section
6.1(a) of this Agreement.
"Corporation Restricted Stock" shall have the meaning set forth in
Section 6.3 of this Agreement.
"Corporation Retirees" shall mean persons who (i) were Corporation
Pre-Distribution Employees, (ii) terminated employment from the Corporation
Group prior to the Effective Time or, with respect to Corporate Staff Employees,
terminated
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employment prior to or as a result of the Distribution, (iii) are not IMS Health
Employees or IMS Health Transitional Employees after the Effective Time and (iv)
would have been Corporation Post-Distribution Employees had they remained
employed, after the Distribution, by the same employer from which they
terminated employment or were Corporate Staff Employees.
"Corporation Retirement Plan" shall mean the Cognizant Retirement
Plan, as in effect from time to time.
"Corporation Savings BEP" shall mean the Cognizant Corporation
Savings Benefit Equalization Plan, as in effect from time to time.
"Corporation Savings Plan" shall mean the Cognizant Corporation
Savings Plan, as in effect from time to time.
"Corporation Stock Option" shall have the meaning set forth in
Section 6.1 of this Agreement.
"Corporation Stock Option Plans" shall mean the 1996 Key Employees'
Stock Incentive Plan, the 1996 Replacement Plan for Certain Employees Holding
The Dun & Bradstreet Corporation Equity-Based Awards or any other stock option
plan established by the Corporation.
"Corporation SERP" shall mean the Cognizant Corporation Supplemental
Executive Retirement Plan, as in effect from time to time.
"Corporation Transition Plans" shall mean The Cognizant Corporation
Executive Transition Plan and The Cognizant Corporation Career Transition Plan.
"D&B" shall mean The Dun & Bradstreet Corporation, a Delaware
corporation.
["Data Services Agreements" shall mean the Data Services Agreements
to be entered into by Corporation and IMS Health.]
"Distribution" shall mean the distribution on the Distribution Date
to holders of record of shares of Corporation Common Stock as of the
Distribution Record Date of the IMS Health Common Stock owned by Corporation on
the basis of one IMS Health Common Share for each outstanding share of
Corporation Common Stock.
"Distribution Agreement" shall mean the Distribution Agreement
between Corporation and IMS Health, dated as of June __, 1998.
"Distribution Date" shall mean June 30, 1998.
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"Distribution Record Date" shall mean such date as may be determined
by Corporation's Board of Directors as the record date for the Distribution.
"Effective Time" shall mean immediately prior to the midnight, New
York time, ending the 24-hour period comprising June 30, 1998.
"Employee Benefit Dispute" shall include any controversy, dispute or
claim arising out of, in connection with, or in relation to the interpretation,
performance, nonperformance, validity or breach of this Agreement or otherwise
arising out of, or in any way related to this Agreement, including, without
limitation, any claim based on contract, tort, statute or constitution.
"Employee Benefit Litigation Liability" shall mean, with respect to
a Business Entity, a Liability relating to a controversy, dispute or claim
arising out of, in connection with or in relation to the interpretation,
performance, nonperformance, validity or breach of an Employee Benefit Plan of
such Business Entity or otherwise arising out of, or in any way related to such
Employee Benefit Plan, including, without limitation, any claim based on
contract, tort, statute or constitution.
"Employee Benefit Plans" shall mean, with respect to a Business
Entity, all "employee benefit plans" (within the meaning of Section 3(3) of
ERISA), "multiemployer plans" (within the meaning of Section 3(37) of ERISA),
retirement, pension, savings, profit-sharing, welfare, stock purchase, stock
option, equity-based, severance, employment, change-in-control, fringe benefit,
collective bargaining, bonus, incentive, deferred compensation, worker's
compensation and all other employee benefit plans, agreements, programs,
policies or other arrangements (including any funding mechanisms therefor),
whether or not subject to ERISA, whether formal or informal, oral or written,
legally binding or not, under which (i) any past, present or future employee of
the Business Entity or its Subsidiaries has a right to benefits and (ii) the
Business Entity or its Subsidiaries has any Liability.
"Employee Benefit Records" shall mean all agreements, documents,
books, records or files relating to the Employee Benefit Plans of Corporation
and IMS Health.
"Employee Benefit Welfare Plans" shall mean, with respect to a
Business Entity, all Employee Benefit Plans that are "welfare plans" within the
meaning of Section 3(1) of ERISA.
"Employer Stock" shall mean, after the Distribution Date, IMS Health
Common Stock credited to the account of an IMS Health Employee and Corporation
Common Stock credited to the account of a Corporation Post-Distribution Employee
in the pooled
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stock fund of the respective savings plan in which such employee participates,
pursuant to Section 3.4.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended, and the regulations promulgated thereunder, including any
successor legislation.
"Final IMS Health Retirement Plan Transfer Date" shall have the
meaning set forth in Section 2.2(d) of this Agreement.
"IMS Health" shall mean IMS Health Incorporated, a Delaware
corporation.
"IMS Health Committee" shall mean the Compensation and Benefits
Committee of the Board of Directors of IMS Health.
"IMS Health Common Stock" shall have the meaning set forth in the
recitals hereto.
"IMS Health Disabled Employees" shall mean all employees of the IMS
Health Group who are receiving benefits or are in the waiting period to receive
benefits under the Corporation Long-Term Disability Plan immediately prior to
the Effective Time.
"IMS Health Employees" shall mean persons who, immediately after the
Effective Time, are employed by the IMS Health Group (including persons who are
absent from work by reason of layoff or leave of absence and inactive employees
treated as such by agreement therewith).
"IMS Health Employee Stock Purchase Plan" shall mean the Employee
Stock Purchase Plan to be adopted by IMS Health pursuant to Section 6.5.
"IMS Health Group" shall mean IMS Health and each Business Entity
which is contemplated to remain or become a Subsidiary of IMS Health pursuant to
the Distribution Agreement.
"IMS Health Nonqualified Plans" shall mean the nonqualified plans to
be adopted by IMS Health pursuant to Section 4.2.
"IMS Health Pension REP" shall mean the IMS Health Retirement Excess
Plan to be adopted by IMS Health pursuant to Section 4.2.
"IMS Health Ratio" shall have the meaning set forth in Section
6.1(b) of this Agreement.
"IMS Health Replacement Plans" shall mean the replacement plans to
be adopted by IMS Health pursuant to Section 6.1(b) of this Agreement.
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"IMS Health Restricted Stock" shall have the meaning set forth in
Section 6.3 of this Agreement.
"IMS Health Retirees" shall mean persons who (i) were Corporation
Pre-Distribution Employees, (ii) terminated employment from the IMS Health Group
prior to the Effective Time (iii) are not Corporation Post-Distribution
Employees after the Effective Time and (iv) would have been IMS Health Employees
had they remained employed, after the Distribution, by the same employer from
which they terminated employment but shall not include Corporate Staff Employees
included in the definition of Corporation Retirees.
"IMS Health Retirement Plan" shall mean the defined benefit plan to
be adopted by IMS Health pursuant to Section 2.2(a) of this Agreement.
"IMS Health Retirement Plan Effective Date" shall have the meaning
set forth in Section 2.2(a) of this Agreement.
"IMS Health Retirement Plan Segregation Ratio" shall equal a
fraction, the numerator of which is the Present Value of the accrued vested and
nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of the IMS
Health Transferred Retirement Plan Employees under the Corporation Retirement
Plan at the Effective Time, and the denominator of which is the Present Value of
the accrued vested and nonvested benefits (as defined in ERISA Section
4044(a)(1)-(6)) of the Corporation Pre-Distribution Employees under the
Corporation Retirement Plan at the Effective Time.
"IMS Health Savings BEP" shall mean the IMS Health Savings Benefit
Equalization Plan to be adopted by IMS Health pursuant to Section 4.2.
"IMS Health Savings Plan" shall mean the defined contribution plan
to be adopted by IMS Health pursuant to Section 3.2(a) of this Agreement.
"IMS Health Savings Plan Transfer Date" shall have the meaning set
forth in Section 3.2(b) of this Agreement.
"IMS Health SERP" shall mean the IMS Health Supplemental Executive
Retirement Plan to be adopted by IMS Health pursuant to Section 4.2.
"IMS Health Transferred Retirement Plan Employees" shall have the
meaning set forth in Section 2.2(a) of this Agreement.
"IMS Health Transferred Savings Plan Employees" shall have the
meaning set forth in Section 3.2(a) of this Agreement.
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"IMS Health Transitional Employees" shall mean Corporate Staff
Employees who shall remain employed by the Corporation after the Effective Time
for a fixed period of time but shall perform services primarily for the IMS
Health Group.
"Information Statement" shall mean the Information Statement sent to
the holders of shares of Corporation Common Stock in connection with the
Distribution, including any amendment or supplement thereto.
"Initial IMS Health Retirement Plan Transfer Date" shall have the
meaning set forth in Section 2.2(a) of this Agreement.
"Initial Transferred Assets" shall have the meaning set forth in
Section 2.2(b) of this Agreement.
"Intellectual Property Agreement" shall mean the intellectual
property and licensing agreement between Corporation and IMS Health.
"Liabilities" shall mean any and all losses, claims, charges, debts,
demands, actions, causes of action, suits, damages, obligations, payments, costs
and expenses, sums of money, accounts, reckonings, bonds, specialties,
indemnities and similar obligations, exonerations, covenants, contracts,
controversies, agreements, promises, doings, omissions, variances, guarantees,
make whole agreements and similar obligations, and other liabilities, including
all contractual obligations, whether absolute or contingent, matured or
unmatured, liquidated or unliquidated, accrued or unaccrued, known or unknown,
whenever arising, and including those arising under any law, rule, regulation,
Action, threatened or contemplated Action (including the costs and expenses of
demands, assessments, judgments, settlements and compromises relating thereto
and attorneys' fees and any and all costs and expenses (including allocated
costs of in-house counsel and other personnel), whatsoever reasonably incurred
in investigating, preparing or defending against any such Actions or threatened
or contemplated Actions), order or consent decree of any governmental or other
regulatory or administrative agency, body or commission or any award of any
arbitrator or mediator of any kind, and those arising under any contract,
commitment or undertaking, including those arising under this Agreement, the
Distribution Agreement or any Ancillary Agreement, in each case, whether or not
recorded or reflected or required to be recorded or reflected on the books and
records or financial statements of any person.
"Nonemployer Stock" shall mean, after the Distribution Date, IMS
Health Common Stock credited to the account of a Corporation Post-Distribution
Employee and Corporation Common Stock credited to an account of an IMS Health
Employee in the
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pooled stock fund of the respective savings plan in which such employee
participates, pursuant to Section 3.4.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor entity thereto.
"PBGC Assumptions" shall mean the actuarial assumptions set forth in
29 C.F.R. Part 2619, et seq.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any agency or
political subdivision thereof.
"Present Value" shall mean the single sum value of a series of
future payments, determined utilizing PBGC Assumptions in effect as of the
measurement date.
"Service" shall mean the Internal Revenue Service or any successor
entity thereto.
"Shared Transaction Services Agreements" shall mean the Shared
Transaction Services Agreements between Corporation and IMS Health.
"Subsidiary" shall mean any corporation, partnership or other entity
of which another entity (i) owns, directly or indirectly, ownership interests
sufficient to elect a majority of the Board of Directors (or persons performing
similar functions) (irrespective of whether at the time any other class or
classes of ownership interests of such corporation, partnership or other entity
shall or might have such voting power upon the occurrence of any contingency) or
(ii) is a general partner or an entity performing similar functions (e.g., a
trustee).
"Tax Allocation Agreement" shall mean the Tax Allocation Agreement
between Corporation and IMS Health.
"Transition Services Agreement" shall mean the Transition Services
Agreement between Corporation and IMS Health.
ARTICLE II
CORPORATION RETIREMENT PLAN
SECTION 2.1. Corporation Retirement Plan. From and after the
Effective Time, Corporation shall continue to sponsor the Corporation Retirement
Plan. Active participation of IMS Health Transferred Retirement Plan Employees
in the Corporation Retirement Plan shall cease immediately after the Effective
Time. Nothing contained in this Article II shall have the effect of accelerating
the degree to which any individual has a vested interest in or eligibility for
the Corporation Retirement Plan or the IMS Health Retirement Plan.
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SECTION 2.2. IMS Health Retirement Plan. (a) As of the Effective
Time, (herein referred to as the "IMS Health Retirement Plan Effective Date"),
IMS Health shall establish the IMS Health Retirement Plan for the benefit of IMS
Health Employees, IMS Disabled Employees IMS Health Retirees and IMS Health
Transitional Employees who were participants in the Corporation Retirement Plan
immediately prior to the Effective Time (the "IMS Health Transferred Retirement
Plan Employees"). On the first business day after the Effective Time (the
"Initial IMS Health Retirement Plan Transfer Date"), Corporation shall cause the
trustee of the Corporation Retirement Plan to segregate, based on a good faith
estimate made in accordance with the spinoff provisions set forth under Section
414(l) of the Code, the assets of the Corporation Retirement Plan allocable to
IMS Health Transferred Retirement Plan Employees in an amount equal to the sum
of (i) and (ii), as follows:
(i) the amount allocable to IMS Health Transferred Retirement Plan
Employees under ERISA Section 4044 as of the Effective Time,
determined using PBGC Assumptions; and
(ii) the excess (if any) of the fair market value of assets of the
Corporation Retirement Plan over the Present Value of the vested and
nonvested benefits accrued thereunder for all the Corporation
Pre-Distribution Employees as of the Effective Time, multiplied by
the IMS Health Retirement Plan Segregation Ratio.
(b) On the Initial IMS Health Retirement Plan Transfer Date, 80% of
the segregated assets determined under Section 2.2(a) of this Agreement (the
"Initial Transferred Assets") shall be transferred to a separate trust
established under the IMS Health Retirement Plan.
(c) From the Effective Time until the Final IMS Health Retirement
Transfer Date (as defined below), the remaining 20% of the segregated assets
determined under Section 2.2(a) of this Agreement shall be invested by the
trustee of the Corporation Retirement Plan with the same investment managers and
in the same proportions as such assets were invested immediately prior to the
Effective Time, which are set forth in Exhibit 2.2 hereof.
(d) As soon as practicable after the Effective Time, the remaining
assets allocable to the IMS Health Transferred Retirement Plan Employees shall
be transferred to a separate trust established under the IMS Health Retirement
Plan (such date herein referred to as the "Final IMS Health Retirement Plan
Transfer Date"); provided, however, that in no event shall such transfer take
place until Corporation shall make all required amendments to the Corporation
Retirement Plan and related trust agreement necessary to provide for the
segregation and transfer of assets described in this Section 2.2. The value of
such assets to be transferred shall equal the value of segregated
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assets determined based on same methodology as in Section 2.2(a) of this
Agreement, reduced by an amount equal to the Initial Transferred Assets,
adjusted as follows:
(i) reduced by the amount of benefit payments made under the Corporation
Retirement Plan with respect to IMS Health Transferred Retirement
Plan Employees from the Effective Time to the Final IMS Health
Retirement Plan Transfer Date; and
(ii) increased (or decreased) by the share of the net investment income
(or loss) and expenses incurred or for which invoices are submitted
after the Effective Time to the IMS Health Retirement Plan Transfer
Date attributable to the value of such segregated assets.
(e) Unless otherwise agreed to by Corporation and IMS Health, the
form of the assets to be transferred shall consist of an undivided percentage
interest in each asset that is held by the Corporation Retirement Plan on the
IMS Health Retirement Plan Transfer Date, such undivided percentage interest
being equal to the value of assets allocable to the IMS Health Transferred
Retirement Plan Employees, divided by the fair market value of plan assets.
(f) If the amount of the Initial Transferred Assets exceeds the
value of the assets to be transferred as determined under Section 2.2(d) of this
Agreement, such excess amount shall promptly be transferred from the IMS Health
Retirement Plan trust to the Corporation Retirement Plan trust.
SECTION 2.3. Allocation of Liabilities. The IMS Health Group shall
assume all Liabilities relating to the participation of IMS Health Transferred
Retirement Plan Employees in the Corporation Retirement Plan. The Corporation
Group shall retain all other Liabilities relating to the Corporation Retirement
Plan.
ARTICLE III
CORPORATION SAVINGS PLAN
SECTION 3.1. Corporation Savings Plan. From and after the Effective
Time, Corporation shall continue to sponsor the Corporation Savings Plan. Active
participation of IMS Health Transferred Savings Plan Employees in the
Corporation Savings Plan shall cease immediately after the Effective Time.
Nothing contained in this Article III shall have the effect of accelerating the
degree to which any individual has a vested interest in the Corporation Savings
Plan or the IMS Health Savings Plan.
SECTION 3.2. IMS Health Savings Plan. (a) As of the Effective Time,
IMS Health shall adopt the IMS Health Savings
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Plan for the benefit of IMS Health Employees, IMS Health Disabled Employees, IMS
Health Transitional Employees and IMS Health Retirees who were participants in
the Corporation Savings Plan immediately prior to the Effective Time (the "IMS
Health Transferred Savings Plan Employees").
(b) Prior to the date on which the transfer of assets and
liabilities to the IMS Health Savings Plan shall occur (the " IMS Health Savings
Plan Transfer Date"), which date shall occur as promptly as practicable
following the Effective Time, Corporation shall (A) cause the trustee of the
Corporation Savings Plan to segregate, in accordance with the spinoff provisions
set forth under Section 414(l) of the Code, the assets of the Corporation
Savings Plan representing the full account balances of IMS Health Transferred
Savings Plan Employees for all periods of participation through the Effective
Time (including, as applicable, all contributions and all earnings attributable
thereto); (B) make all required filings and submissions to the appropriate
governmental agencies; and (C) make all required amendments to the Corporation
Savings Plan and related trust agreement necessary to provide for the
segregation and transfer of assets described in this Section 3.2.
(c) On the IMS Health Savings Plan Transfer Date, IMS Health shall
cause the trustee of the Corporation Savings Plan to transfer to the trustee of
the IMS Health Savings Plan the full account balances (inclusive of loans) of
IMS Health Transferred Savings Plan Employees in kind based on those investment
funds in which such account balances are then invested (including, but not
limited to, the pooled stock fund described in Section 3.4); provided, however,
that loans to IMS Health Transferred Savings Plan Employees shall be transferred
in the form of notes. In consideration of the segregation and transfer of assets
described herein, the IMS Health Savings Plan shall, as of the IMS Health
Savings Plan Transfer Date, assume all Liabilities attributable to such assets,
whether incurred prior to or after the Effective Time.
SECTION 3.3. Outstanding Loans. During their employment with
Corporation, IMS Health Transferred Savings Plan Employees who have outstanding
loans originally made from the Corporation Savings Plan shall be permitted to
repay such loans by way of regular deductions from their paychecks, and, prior
to the IMS Health Savings Plan Transfer Date, Corporation or IMS Health (as the
case may be) shall cause all such deductions to be forwarded to the Corporation
Savings Plan as promptly as practicable.
SECTION 3.4. Employer Stock Fund. (a) Participants in the
Corporation Savings Plan who, immediately prior to the Effective Time, have
balances in the Corporation Common Stock fund shall have such balances
converted, as of the Effective Time, to the extent applicable, to units in a
pooled stock fund consisting of Corporation Common Stock and IMS Health Common
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Stock. The initial ratio of stock in the pooled stock fund shall be one share of
Corporation Common Stock to one share of IMS Health Common Stock. The percentage
interest of each participant in the pooled stock fund as of the Effective Time
shall equal such participant's percentage interest in the Corporation Common
Stock fund immediately prior to the Effective Time. The IMS Health Savings Plan
shall maintain a pooled stock fund, to which the pooled stock fund assets of IMS
Health Transferred Savings Plan Employees in the Corporation Savings Plan shall
be transferred on the IMS Health Savings Plan Transfer Date. Notwithstanding the
foregoing, the Corporation Savings Plan shall transfer the units of Corporation
Common Stock from the pooled stock fund into the Corporation Common Stock fund
and the IMS Health Savings Plan shall transfer the units of IMS Health Common
Stock from the pooled stock fund into the IMS Health Common Stock fund.
(b) Within nine months after the Distribution Date, each participant
shall liquidate his or her units of Nonemployer Stock in the pooled stock fund
and invest the proceeds thereof in any other investment option available under
the applicable plan. If the participant does not liquidate such units, such
units shall be liquidated and invested in a fixed income investment option
available under the applicable plan.
(c) A participant may not acquire additional units in the pooled
stock fund from or after the Effective Time.
SECTION 3.5. Allocation of Liabilities. The IMS Health Group shall
assume all Liabilities relating to the participation of IMS Health Transferred
Savings Plan Employees in the Corporation Savings Plan. The Corporation Group
shall retain all other Liabilities relating to the Corporation Savings Plan.
ARTICLE IV
NONQUALIFIED PLANS
SECTION 4.1. Corporation Nonqualified Plans. From and after the
Effective Time, Corporation shall continue to sponsor the Corporation SERP, the
Corporation Pension REP and the Corporation Savings BEP (collectively, the
"Corporation Nonqualified Plans") for the benefit of Corporation
Post-Distribution Employees and Corporation Retirees who, prior to the Effective
Time, were participants thereunder.
SECTION 4.2. IMS Health Nonqualified Plans. As of the Effective
Time, IMS Health shall (i) adopt the IMS Health SERP, the IMS Health Pension REP
and the IMS Health Savings BEP (collectively, the "IMS Health Nonqualified
Plans") for the benefit of IMS Health Employees and IMS Health Retirees who were
participants in the Corporation Nonqualified Plans immediately
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prior to the Effective Time and (ii) assume the Liabilities for benefits under
the Corporation Nonqualified Plans with respect to such employees.
SECTION 4.3. Joint and Several Liability. Corporation and IMS Health
acknowledge joint and several liability under the Employee Benefits Agreement
dated as of October 28, 1996 among D&B, Corporation and ACNielsen with respect
to certain nonqualified plans maintained by D&B prior to such date. To the
extent such joint and several liability is imposed on Corporation in respect of
a liability assumed by IMS Health under this Agreement, Corporation shall be
entitled to contribution from IMS Health for the amount of such liability
imposed. To the extent joint and several liability is imposed on IMS Health in
respect of a liability assumed by Corporation under this Agreement, IMS Health
shall be entitled to contribution from Corporation for the amount of such
liability imposed.
ARTICLE V
WELFARE PLANS
SECTION 5.1. Employee Benefit Welfare Plans. Prior to the Effective
Time, the Corporation shall continue to sponsor its Employee Benefit Welfare
Plans for the benefit of Corporation Pre-Distribution Employees. Except as
provided in Section 5.4 and Section 5.5 below, from and after the Effective
Time, Corporation shall sponsor its Employee Benefit Welfare Plans solely for
the benefit of Corporation Post-Distribution Employees, Corporation Disabled
Employees and Corporation Retirees. From and after Effective Time, IMS Health
shall sponsor its Employee Benefit Welfare Plans solely for the benefit of IMS
Health Employees, IMS Health Retirees and IMS Health Disabled Employees.
Notwithstanding the foregoing, neither Corporation nor IMS Health shall have any
obligation to sponsor any Employee Benefit Welfare Plan from or after Effective
Time.
SECTION 5.2. Dollar Limits. With respect to any medical and dental
plan that may be sponsored by IMS Health after the Effective Time, IMS Health
shall give effect, in determining any deductible, maximum out-of-pocket
limitations and annual plan maximums, to claims incurred during 1998 prior to
the Effective Time by IMS Health Employees, IMS Health Retirees and IMS Health
Disabled Employees under similar plans maintained by Corporation (or any
Affiliate thereof) for their benefit immediately prior to the Effective Time.
SECTION 5.3. Severance Plans. The Corporation Group shall retain all
Liabilities with respect to severance payments made or to be made to Corporation
Retirees including any liabilities for severance payments under the Corporation
Transition Plans. The IMS Health Group shall retain all Liabilities with respect
to severance payments made or to be made
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to IMS Health Retirees including any liabilities for severance payments under
the Corporation Transition Plans. For purposes of this Section 5.3, the term
"severance payments" shall include any welfare benefit coverage provided under
severance plans.
SECTION 5.4. Flexible Spending Accounts. From the Effective Time
until December 31, 1998, Corporation shall continue to sponsor its flexible
spending accounts for all Corporation Pre-Distribution Employees; provided,
however, that IMS Health shall cause all deductions from participant paychecks
to be forwarded to Corporation within two business days thereafter; provided,
further, that IMS Health shall reimburse Corporation for the administrative
costs incurred with respect to IMS Health Employees.
SECTION 5.5. Allocation of Liabilities. (a) The IMS Health Group
shall retain responsibility for and continue to pay all claims and
administrative expenses relating to the Corporation self-insured Medical and
Dental Plans with respect to claims incurred prior to the Effective Time, but
which are paid after the Effective Time, by IMS Health Employees, IMS Health
Disabled Employees, IMS Health COBRA participants and IMS Health Retirees as
well as their covered dependents. Any claims and administrative expenses
relating to the Corporation self-insured Medical and Dental Plans with respect
to claims incurred prior to the Effective Time, but which are paid after the
Effective Time, by Corporation Pre-Distribution Employees who are not IMS Health
Employees will remain the responsibility of The Corporation Group.
(b) The Corporation Group shall retain responsibility for and
continue to pay all premiums, expenses and benefits relating to the Corporation
Employee Welfare Plans with respect to claims incurred (for self-insured plans)
or premiums due (for insured plans) from and after the Effective Time by
Corporation Post-Distribution Employees, Corporation Disabled Employees,
Corporation COBRA participants and Corporation Retirees as well as their covered
dependents.
(c) The IMS Health Group shall retain responsibility for and
continue to pay all premiums, expenses and benefits relating to the Employee
Welfare Plans with respect to claims incurred (for self-insured plans) or
premiums due (for insured plans) from and after the Effective Time by IMS Health
Employees, IMS Health Disabled Employees, IMS Health COBRA participants and IMS
Health Retirees as well as their covered dependents.
(d) For the purposes of this Section 5.5, a claim is deemed incurred
when the services that are the subject of the claim are performed; [in the case
of life insurance, when the death occurs]; in the case of long-term disability,
when the disability occurs; and, in the case of a hospital stay, when the
employee first enters the hospital. Notwithstanding the foregoing, claims
incurred by any employee of a pre-Distribution
16
Subsidiary of Corporation or their covered dependents under any welfare plan
maintained by such Subsidiary solely for the benefit of its employees and their
dependents shall, whether incurred prior to, on or after the Effective Time, be
the sole responsibility and liability of that Subsidiary.
(e) The Corporation Group shall be responsible for all COBRA
coverage for any Corporation Retiree and his or her covered dependents who
participated in a Corporation Employee Benefit Welfare Plan and who had or have
a loss of health care coverage due to a qualifying event occurring prior to the
Effective Time. The IMS Health Group shall be responsible for all COBRA coverage
for any IMS Health Retiree and his or her covered dependents who participated in
a Corporation Employee Benefit Welfare Plan and who had or have a loss of health
care coverage due to a qualifying event occurring prior to the Effective Time.
Notwithstanding the foregoing, a pre-Distribution Subsidiary of Corporation
shall be responsible for all COBRA coverage for its former employees and covered
dependents who participated in a plan maintained solely for their benefit
whether the applicable event occurs prior to, on or after the Effective Time.
COBRA coverage to which a Corporation Post-Distribution Employee is entitled as
a result of a qualifying event occurring at or after the Effective Time shall be
the responsibility of the Corporation Group.
SECTION 5.6. Allocation of the Corporation's Self-Insured Medical
and Dental Plans Reserve for Claims Incurred But Not Yet Reported (IBNR). The
IBNR reserve of $2.8 million will be allocated between the Corporation Group and
IMS Health based on the following methodology:
(a) The IBNR reserve will be separated into its components by type
of coverage (i.e., indemnity medical, point-of-service medical and dental).
(b) The IBNR reserve by coverage type will be divided based on the
average number of Corporation Pre-Distribution Employees enrolled in the three
months prior to the Effective Time who were employees of the Corporation Group
(but not of IMS Health Group) and who were employees of the IMS Health Group.
SECTION 5.7. Retiree Welfare Plans. The Corporation Group shall be
responsible for providing retiree welfare benefits, where applicable, to
Corporation Retirees and Corporation Post-Distribution Employees. The IMS Health
Group shall be responsible for providing retiree welfare benefits, where
applicable, to IMS Health Retirees and IMS Health Employees.
17
ARTICLE VI
EQUITY-BASED PLANS
SECTION 6.1. Corporation Stock Options. Stock options awarded under
the Corporation Stock Option Plans ("Corporation Stock Options") shall be
treated as follows:
(a) Corporation Post-Distribution Employees; and Corporation
Disabled Employees. From and after the Effective Time, each unexercised
Corporation Stock Option held by Corporation Post-Distribution Employees ,
Corporation Disabled Employees and the specified options held by the persons
listed on Schedule A shall remain outstanding pursuant to the terms of the award
agreements and the Corporation Stock Option Plans; provided , however, that from
and after such time, each unexercised Corporation Stock Option shall be adjusted
as follows: (i) the number of shares of Corporation Common Stock covered by the
adjusted stock option shall be determined by (A) multiplying the number of
shares of Corporation Common Stock covered by the Corporation Stock Option by a
fraction, the numerator of which equals the average of high and low trading
prices of a share of Corporation Common Stock for the five trading days
immediately preceding the ex-dividend date, and the denominator of which equals
the average of high and low trading prices of a share of Corporation Common
Stock for the five trading days starting on the ex-dividend trading Date
("Corporation Ratio") and (B) rounding down the result to a whole number of
shares and (ii) the exercise price of the adjusted stock option shall equal the
original exercise price divided by the Corporation Ratio.
(b) IMS Health Employees; IMS Health Transitional Employees; and IMS
Health Disabled Employees. As of the Effective Time, (i) each unexercised
Corporation Stock Option held by IMS Health Employees, IMS Health Transitional
Employees and IMS Health Disabled Employees shall be cancelled except as
provided in Schedule A and (ii) such individuals shall except as provided in
Schedule A receive replacement stock options awarded under the IMS Health
Replacement Plans, which shall be adopted by IMS Health prior to the Effective
Time. The number of IMS Health Common Stock covered by each replacement stock
option shall be determined by (i) multiplying the number of shares of
Corporation Common Stock covered by the cancelled Corporation Stock Option by a
fraction, the numerator of which equals the average of high and low trading
prices of a share of Corporation Common Stock for the five trading days
immediately preceding the ex-dividend date, and the denominator of which equals
the average of high and low trading prices of an IMS Health Common Share for the
five trading days starting on the regular way trading date (" IMS Health Ratio")
and (ii) rounding down the result to a whole number of shares. The exercise
price of each replacement stock option shall be determined by dividing the
exercise price of the cancelled Corporation Stock Option by the IMS Health
ratio. Except as otherwise provided in the IMS Health Replacement Plans, all
other terms of the replacement stock options shall remain
18
substantially identical to the terms of the cancelled Corporation Stock Options.
(c) IMS Health Retirees; and Corporation Retirees. As of the
Effective Time, (i) each unexercised Corporation Stock Option held by IMS Health
Retirees and Corporation Retirees shall be adjusted in substantially the same
manner as employees of the Corporation Group and (ii) IMS Health may offer to
such IMS Health Retirees and Corporation Retirees, and the IMS Health Committee
shall determine, alternative adjustments or substitutions, provided such
Retirees agree to surrender their adjusted Corporation Stock Options.
SECTION 6.2. Corporation LSARs. All limited stock appreciation
rights awarded under the Corporation Stock Option Plans ("Corporation LSARs")
shall be adjusted or substituted (as the case may be) in substantially the same
manner as the Corporation Stock Options described in Section 6.1 above.
SECTION 6.3. Restricted Stock Plan. Restricted stock awarded under
the Corporation Stock Option Plans ("Corporation Restricted Stock") and
restricted stock received as a result of the Distribution ("IMS Health
Restricted Stock") shall be treated as follows:
(a) Corporation Post-Distribution Employees. As of Effective Time,
IMS Health Restricted Stock credited to Corporation Post-Distribution Employees
shall be adjusted pursuant to the Corporation Stock Option Plans and each such
individual shall receive a number of additional shares of Corporation Restricted
Stock, determined by multiplying the number of shares of forfeited IMS Health
Restricted Stock by the Corporation Ratio and the reciprocal of the IMS Health
Ratio, having the same terms as the Corporation Restricted Stock from which they
arose.
(b) IMS Health Employees. As of the Effective Time, Corporation
Restricted Stock and IMS Health Restricted Stock credited to IMS Health
Employees and IMS Health Transitional Employees shall be forfeited and such
individuals shall receive replacement IMS Health Restricted Stock equal to (i)
the number of shares of forfeited IMS Health Restricted Stock plus (ii) the
number of shares of forfeited Corporation Restricted Stock multiplied by the IMS
Health Ratio and the reciprocal of the Corporation Ratio, such replacement
shares of IMS Health Restricted Stock to have the same terms as the Corporation
Restricted Stock from which they arose.
SECTION 6.4. Executive Annual Incentive Plan. Outstanding awards
under the Corporation Executive Annual Incentive Plan shall be treated as
determined by the Corporation and IMS Health, respectively.
19
SECTION 6.5. Corporation Employee Stock Purchase Plan. (a) From and
after the Effective Time, Corporation shall continue to sponsor the Corporation
Employee Stock Purchase Plan.
(b) As of the Effective Time, IMS Health shall adopt the IMS Health
Employee Stock Purchase Plan for the benefit of IMS Health Employees.
SECTION 6.6. Allocation of Liabilities. The IMS Health Group shall
assume all Liabilities with respect to awards granted to IMS Health Employees,
IMS Health Retirees, Corporation Retirees and IMS Health Disabled Employees
pursuant to the IMS Health Replacement Option Plan. The Corporation Group shall
retain all other Liabilities with respect to awards granted pursuant to the
Corporation Stock Option Plans (including, but not limited to, awards granted to
Corporation Post-Distribution Employees).
ARTICLE VII
FOREIGN EMPLOYEE BENEFIT PLANS
SECTION 7.1. Foreign Plans. Except as set forth in [Exhibit 7.1],
with respect to its employees, Corporation and IMS Health shall continue to
sponsor and retain liability for any Employee Benefits Plans maintained outside
the United States.
ARTICLE VIII
OTHER EMPLOYEE BENEFIT ISSUES
SECTION 8.1. Employee Benefit Litigation Liabilities. Except as
otherwise expressly provided in this agreement , the IMS Health Group shall
assume all Employee Benefit Litigation Liabilities that are asserted by
Corporation Pre-Distribution Employees who were employees of the IMS Health
Group or Corporate Staff Employees and the Corporation Group shall assume all
Employee Benefit Litigation Liabilities that are asserted by all other
Corporation Pre-Distribution Employees.
SECTION 8.2. Indemnification. To the extent that any claim or
litigation is asserted against Corporation by a Corporation Retiree who was a
Corporate Staff Employee prior to the Distribution, Corporation shall be
entitled to indemnification from IMS Health for the amount of any liability
imposed.
SECTION 8.3. Workers' Compensation. The Corporation Group shall
retain all Liabilities relating to workers' compensation claims that were
incurred (a) prior to the Effective Time with respect to Corporation
Pre-Distribution Employees who were employed by the Corporation Group (not
including the IMS Health Group) and Corporate Staff Employees allocated to
Corporation as a result of the Distribution and (b) on and after
20
the Effective Time with respect to Corporation Post-Distribution Employees. The
IMS Health Group shall retain all Liabilities relating to workers' compensation
claims that were incurred (a) prior to the Effective Time with respect to
Corporation Pre-Distribution Employees who were employed by the IMS Health Group
and Corporate Staff Employees allocated to IMS Health as a result of the
Distribution and (b) on and after the Effective Time with respect to IMS Health
Employees. For purposes of this paragraph, a claim is deemed incurred when the
injury that is the subject of the claim occurs.
SECTION 8.4. Cash Funding. Sufficient cash shall be left with
Corporation upon the Distribution, based on a good faith estimate, to fund all
severance Liabilities retained by Corporation Group pursuant to Section 5.3(a)
hereof as well as the unfunded amounts payable by Corporation to Corporation
Retirees hereunder (including payments under non-qualified plans pursuant to
Section 4.1 hereof and retiree welfare benefits pursuant to Section 5.7 hereof).
Such cash amount shall include amounts sufficient to fund all such payments as
well as any related tax, social security and similar government-mandated
payments and employee plan contributions, all without giving effect to any
present-value calculation and without reduction of any taxes due thereon. If the
estimated cash amounts result in an excess or deficit over or under the amounts
actually expended by Corporation for such items, appropriate payments will be
made between the parties to eliminate any such excess or deficit.
ARTICLE IX
BENEFIT PLAN PARTICIPATION
SECTION 9.1. Corporation Plans. Except as specifically provided
herein, all IMS Health Employees shall cease participation in all Corporation
Employee Benefit Plans as of the Effective Time.
SECTION 9.2. IMS Health Plans. Except as provided in Section 5.7
herein, (a) with respect to any newly created Employee Benefit Plan sponsored by
the IMS Health Group after the Effective Time, the IMS Health Group shall cause
to be recognized (to the extent applicable) each IMS Health Employee's (i) past
service with the Corporation Group to the extent recognized under similar plans
maintained by the Corporation Group immediately prior to the Effective Time and
(ii) accrued but unused vacation time and sick days, and (b) any IMS Health
Employee who participated in a Corporation Employee Benefit Plan immediately
prior to the Effective Time shall be entitled to immediate participation in a
similar newly created Employee Benefit Plan sponsored by the IMS Health Group.
SECTION 9.3. Subsequent Employer. Except as provided in Section 5.6
herein, if, during the one-year period following the Effective Time, a
Corporation Post-Distribution Employee or a
21
IMS Health Employee terminates employment with his or her employer and then
immediately commences employment with the Corporation Group or the IMS Health
Group, the subsequent employer shall cause to be recognized (to the extent
applicable) such employee's past service with the Corporation Group or the IMS
Health Group to the extent recognized under similar plans maintained by the
prior employer. Notwithstanding the foregoing, no past service shall be
recognized with respect to pension accruals under the defined benefit plans of
the subsequent employer.
SECTION 9.4. Right to Amend or Terminate. Except as specifically
provided herein, nothing in this Agreement shall be construed or interpreted to
restrict the Corporation Group's or the IMS Health Group's right or authority to
amend or terminate any of their Employee Benefit Plans following the Effective
Time.
ARTICLE X
ACCESS TO INFORMATION
SECTION 10.1. Access to Information. Article IV of the Distribution
Agreement shall govern the rights of the Corporation Group and the IMS Health
Group with respect to access to information. The term "Records" in that Article
shall be read to include all Employee Benefit Records.
ARTICLE XI
INDEMNIFICATION
SECTION 11.1. Indemnification. Article III of the Distribution
Agreement shall govern the rights of the Corporation Group and the IMS Health
Group with respect to indemnification. The term "Corporation Liabilities" in
that Article shall be read to include all Liabilities assumed or retained by the
Corporation Group pursuant to this Agreement. The term "IMS Health Liabilities"
in that Article shall be read to include all Liabilities assumed or retained by
the IMS Health Group pursuant to this Agreement.
ARTICLE XII
DISPUTE RESOLUTION
SECTION 12.1. Dispute Resolution. Article VI of the Distribution
Agreement shall govern the rights of the Corporation Group and the IMS Health
Group with respect to dispute resolution. The term "Agreement Dispute" in that
Article shall be read to include all Employee Benefit Disputes.
22
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. Complete Agreement; Construction. This Agreement,
including the Exhibits and Schedules (if any), and the Distribution Agreement
shall constitute the entire agreement between the parties with respect to the
subject matter hereof and shall supersede all previous negotiations, commitments
and writings with respect to such subject matter. In the event of any
inconsistency between this Agreement and any Schedule hereto, the Schedule shall
prevail. Other than Sections 2.7 and 4.5 and Article VI of the Distribution
Agreement, which shall prevail over any inconsistent or conflicting provisions
in this Agreement, notwithstanding any other provisions in this Agreement to the
contrary, in the event and to the extent that there shall be a conflict between
the provisions of this Agreement and the provisions of the Distribution
Agreement, this Agreement shall control.
SECTION 13.2. Ancillary Agreements. This Agreement is not intended
to address, and should not be interpreted to address, the matters specifically
and expressly covered by the Ancillary Agreements.
SECTION 13.3. Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other parties.
SECTION 13.4. Survival of Agreements. Except as otherwise
contemplated by this Agreement, all covenants and agreements of the parties
contained in this Agreement shall survive the Distribution Date.
SECTION 13.5. Expenses. Except as otherwise set forth in this
Agreement, the Distribution Agreement or any Ancillary Agreement, all costs and
expenses incurred and for which invoices have been submitted on or prior to the
Effective Time (whether or not paid on or prior to the Distribution Date) in
connection with the preparation, execution, delivery and implementation of this
Agreement, the Distribution Agreement, any Ancillary Agreement, the Information
Statement (including any registration statement on Form 10 of which such
Information Statement may be a part) and the Distribution and the consummation
of the transactions contemplated thereby shall be charged to and paid by
Corporation. Except as otherwise set forth in this Agreement, the Distribution
Agreement or any Ancillary Agreement, all costs and expenses incurred or for
which invoices are submitted after the Effective Time shall be charged to and
paid by IMS Health. Any amount or expense to be paid or reimbursed by any party
hereto to any other party hereto shall be so paid or reimbursed promptly after
the
23
existence and amount of such obligation is determined and demand therefor is
paid.
SECTION 13.6. Notices. All notices and other communications
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or sent by any means of electronic
message transmission with delivery confirmed (by voice or otherwise) to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by like notice) and will be deemed given on the date on which
such notice is received:
To Xxxxxxx Media Research, Inc.:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy:
Attn: Chief Legal Officer
To IMS Health Incorporated:
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: General Counsel
SECTION 13.7. Waivers. The failure of any party to require strict
performance by any other party of any provision in this Agreement will not waive
or diminish that party's right to demand strict performance thereafter of that
or any other provision hereof.
SECTION 13.8. Amendments. Subject to the terms of Section 13.11
hereof, this Agreement may not be modified or amended except by an agreement in
writing signed by each of the parties hereto.
SECTION 13.9. Assignment. This Agreement shall not be assignable, in
whole or in part, directly or indirectly, by any party hereto without the prior
written consent of the other parties hereto, and any attempt to assign any
rights or obligations arising under this Agreement without such consent shall be
void.
SECTION 13.10. Successors and Assigns. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.
SECTION 13.11. Termination. This Agreement (including, without
limitation, Section 4.3 and Article XI hereof) may be terminated and may be
amended, modified or
24
abandoned at any time prior to the Distribution by and in the sole discretion of
Corporation without the approval of the shareholders of Corporation. In the
event of such termination, no party shall have any liability of any kind to any
other party or any other person. After the Distribution, this Agreement may not
be terminated except by an agreement in writing signed by the parties; provided,
however, that Section 4.8 and Article XII shall not be terminated or amended
after the Distribution in respect of the third party beneficiaries thereto
without the consent of such persons.
SECTION 13.12. Subsidiaries. Each of the parties hereto shall cause
to be performed, and hereby guarantees the performance of, all actions,
agreements and obligations set forth herein to be performed by any Subsidiary of
such party or by any entity that is contemplated to be a Subsidiary of such
party on and after the Distribution Date.
SECTION 13.13. Third Party Beneficiaries. Except as provided in
Section 4.3 and Article XI, this Agreement is solely for the benefit of the
parties hereto and their respective Subsidiaries and Affiliates and should not
be deemed to confer upon third parties any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
SECTION 13.14. Title and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
SECTION 13.15. Exhibits and Schedules. The Exhibits and Schedules,
if any, shall be construed with and as an integral part of this Agreement to the
same extent as if the same had been set forth verbatim herein.
SECTION 13.16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
SECTION 13.17. Consent to Jurisdiction. Without limiting the
provisions of Article XII hereof, each of the parties irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New
York County, and (b) the United States District Court for the Southern District
of New York, for the purposes of any suit, action or other proceeding arising
out of this Agreement or any transaction contemplated hereby. Each of the
parties agrees to commence any action, suit or proceeding relating hereto either
in the United States District Court for the Southern District of New York or if
such suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court of the State of New York, New York
County. Each of the parties further
25
agrees that service of any process, summons, notice or document by U.S.
registered mail to such party's respective address set forth above shall be
effective service of process for any action, suit or proceeding in New York with
respect to any matters to which it has submitted to jurisdiction in this Section
13.17. Each of the parties irrevocably and unconditionally waives any objection
to the laying of venue of any action, suit or proceeding arising out of this
Agreement or the transactions contemplated hereby in (i) the Supreme Court of
the State of New York, New York County, or (ii) the United States District Court
for the Southern District of New York, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
SECTION 13.18. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
SECTION 13.19. Governmental Notices; Cooperation. Notwithstanding
anything in this Agreement to the contrary, all actions contemplated herein with
respect to Employee Benefit Plans which are to be consummated pursuant to this
Agreement shall be subject to such notices to, and/or approvals by, the Service
or the PBGC (or any other governmental agency or entity) as are required or
deemed appropriate by such Employee Benefit Plan's sponsor. Each of Corporation
and IMS Health agrees to use its commercially reasonable efforts to cause all
such notices and/or approvals to be filed or obtained, as the case may be. Each
party hereto shall reasonably cooperate with the other parties with respect to
any government filings, employee notices or any other actions reasonably
necessary to maintain and implement the Employee Benefit Plans covered by this
Agreement.
SECTION 13.20. Further Assurances. From time to time, as and when
reasonably requested by any other party hereto, each party hereto shall execute
and deliver, or cause to be executed and delivered, all such documents and
instruments and shall take, or cause to be taken, all such further or other
actions as such other party may reasonably deem necessary or desirable to effect
the purposes of this Agreement and the transactions contemplated hereunder.
26
IN WITNESS WHEREOF, the parties have duly executed and entered into
this Agreement, as of the date first above written.
COGNIZANT CORPORATION
by
-----------------------
Name:
Title:
IMS HEALTH INCORPORATED
by
-----------------------
Name:
Title:
27
Exhibit 2.2
Target % of
Investment Manager Fund Name Portfolio
------------------ --------- -----------
(1)
Barclays Global US Debt Index Fund 34.5%
Investors
Barclays Global US Equity Index Fund 27.5%
Investors
X.X. Xxxxxx Investment Research Optimized 27.5%
Management Equity Fund
Wellington Trust International Research 10.0%
Company, N.A. Equity Fund
Bank of New York Cash/Collective Trust 0.5%
Fund
Short Term Investment
Fund
----------
(1) The actual percent of the portfolio for any one fund may vary plus or
minus three percentage points compared to the target percentages.
