AGREEMENT TO RETIRE
GENERAL PARTNER INTEREST
(IMS AMERICA, LTD)
THIS AGREEMENT TO RETIRE GENERAL PARTNER INTEREST (this "Agreement"), is
entered into and effective this 21st day of October, 1996, by and between D&B
Investors L.P., a Delaware limited partnership (the "Partnership"), and IMS
America, Ltd., a New Jersey corporation (the "Retiring General Partner").
WHEREAS, the Retiring General Partner, The Xxxxxx X. Xxxxxxxxx
Corporation, a Delaware corporation, Dun & Bradstreet, Inc., a Delaware
corporation, and RBDB, LLC, a Delaware limited liability company, formed the
Partnership pursuant to that certain Agreement of Limited Partnership of D&B
Investors L.P., dated October 14, 1993, as amended by that certain Partnership
Agreement Amendment No. 1, dated as of October 14, 1993, and that certain
Amendment No. 2 to the Agreement of Limited Partnership of D&B Investors L.P.,
dated October 5, 1995 (collectively the "Partnership Agreement," terms not
otherwise defined herein are used herein as therein defined); and
WHEREAS, on October 5, 1995, the Xxxxxx X. Xxxxxxxxx Corporation retired
from the Partnership, and on October 1, 1996, Duns Investing VII Corporation, a
Delaware corporation, was assigned a portion of the interest of Dun &
Bradstreet, Inc. and admitted to the Partnership as a Limited Partner, and RBDB,
LLC retired from the Partnership, and on October 18, 1996, Utrecht-America
Finance Co., a Delaware corporation, was assigned a portion of the interest of
Dun & Bradstreet, Inc. and admitted to the Partnership as a Limited Partner; and
WHEREAS, the Retiring General Partner has elected to withdraw from the
Partnership and to require its entire Interest in the Partnership (the
"Redemption Interest") to be retired and redeemed by the Partnership in
accordance with the terms of this Agreement and Section 11.2 of the Partnership
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
ARTICLE I
RETIREMENT, REDEMPTION AND ASSIGNMENT; CLOSING
SECTION 1.01. RETIREMENT AND REDEMPTION Subject to the terms and
conditions set forth herein and Section 11.2 of the Partnership Agreement, the
Retiring General Partner hereby assigns and transfers to the Partnership, and
the Partnership hereby retires and redeems, the Redemption Interest. The closing
of the transactions contemplated hereby (the "Closing") shall take place on the
date first set forth above (the "Retirement Date") at 4:00 p.m. (Delaware time).
SECTION 1.02. REDEMPTION CONSIDERATION. The assets to be conveyed by the
Partnership to the Retiring General Partner as consideration for the retirement
and redemption of the Redemption Interest shall be (a) 800,000 shares of common
stock of The Dun & Bradstreet Corporation and (b) warrants representing the
right to purchase 2,214,799 shares of common stock of The Dun & Bradstreet
Corporation (collectively the "REDEMPTION CONSIDERATION"). In addition, the
Retiring General Partner shall assume the UAF Obligation (as defined and further
described in Section 2.01 hereof). The parties hereto acknowledge that the
Redemption Consideration has been determined in accordance with Section 11.2(b)
of the Partnership Agreement and further acknowledge that the aggregate fair
market value of the Redemption Consideration (net of the UAF Obligation, as
hereafter defined) equals the positive balance in the Retiring General Partner's
Capital Account (taking into account the adjustments and allocations required by
the first sentence of Section 11.2(b)(x) of the Partnership Agreement).
SECTION 1.03. DELIVERIES AT CLOSING. At the Closing, (a) each of the
parties hereto shall deliver an executed counterpart of this Agreement, (b) the
Partnership shall deliver the Redemption Consideration to the Retiring General
Partner, including such documents and instruments as may be necessary to
effectuate the transfer of the stock and warrants that comprise the Redemption
Consideration to the Retiring General Partner as of the Retirement Date, and (c)
the Retiring General Partner shall deliver to the Partnership such documents and
instruments as may be necessary to effectuate the assumption of the UAF
Obligation by the Retiring General Partner in accordance with Section 2.01
hereof.
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ARTICLE II
ASSUMPTION OF UAF OBLIGATION;
CONTINUING LIABILITY
2.01. ASSUMPTION OF UAF OBLIGATION. The parties acknowledge that the
Partnership's outstanding liabilities consist solely of an obligation to
Utrecht-America Finance Co. in the amount of $50 million Investment Principal
and accrued Investment Return thereon (the "UAF Obligation"), which is governed
by that certain Purchase Agreement, dated October 14, 1993, as amended, by that
certain Purchase Agreement Amendment, dated as of October 14, 1993, that certain
Amendment and Waiver to Purchase Agreement, dated April 15, 1994, that certain
Third Amendment to Purchase Agreement, dated September 18, 1995, and that
certain Fourth Amendment to Purchase Agreement dated October 3, 1996. In
connection with the redemption and retirement of the Redemption Interest, the
Partnership hereby assigns to the Retiring General Partner and the Retiring
General Partner hereby assumes from the Partnership, as of the Retirement Date,
the UAF Obligation. The Retiring General Partner hereby agrees, as of the
Retirement Date, to indemnify, defend, protect and hold harmless the
Partnership, the other original General Partners, and the Parent from any loss
or liability relating to the UAF Obligation.
SECTION 2.02. CONTINUING LIABILITY. As among the Partners, the Retiring
General Partner shall be relieved of all liabilities and obligations of the
Partnership, whether contingent or otherwise, as of the Retirement Date,
excluding only (a) the UAF Obligation and (b) any liability or obligation owing
to the fraud, bad faith, wilful misconduct, or gross negligence of the Retiring
Limited Partner. The Partnership and its remaining General Partner shall, as of
the Retirement Date, indemnify, defend, protect, and hold harmless the Retiring
General Partner from all liabilities and obligations from which the Retiring
General Partner is, or is intended to be, relieved under this Section 2.02.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF PARTIES. Each party
hereto represents and warrants to each of the other parties as follows:
(a) ORGANIZATION AND AUTHORIZATION. Such party is duly organized,
validly existing and in good standing under the laws of the state of its
organization and has all necessary power and authority to enter into this
Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the performance by such party of the transactions contemplated hereby have
been duly authorized by all requisite action
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on the part of such party. This Agreement has been duly executed and delivered
by such party. Assuming due authorization, execution and delivery by the other
parties, this Agreement constitutes a legal, valid and binding obligation of
such party enforceable against such party in accordance with its terms, subject
to applicable bankruptcy, insolvency or other laws affecting creditors' rights
generally and to general equity principles.
(b) NO CONFLICT; REQUIRED FILINGS AND CONSENTS. The execution and
delivery of this Agreement by such party does not, and the performance of this
Agreement by such party will not conflict with or violate any law, rule or
regulation applicable to such party or by which any of such party's properties
is bound or affected, the result of which would have a material adverse effect
on such party's ability to perform its obligations under this Agreement, (i)
result in any breach of or constitute a default under any note, bond, mortgage,
indenture, contract or other instrument or obligation to which such party is a
party or by which any of its properties is bound or affected, the result of
which would have a material adverse effect on such party's ability to perform
its obligations under this Agreement, or (ii) require any consent, approval,
exemption, authorization or permit of, or filing with or notification to, or
other action by, any court, administrative agency, or governmental or regulatory
authority.
(c) ABSENCE OF LITIGATION. There is no pending or, to the best knowledge
of such party, threatened claim, action, litigation, arbitration or governmental
investigation or legal, administrative or regulatory proceeding against such
party which purports to affect or challenge the legality, validity or
enforceability of this Agreement or the consummation of the transactions
contemplated hereunder.
SECTION 3.02 ADDITIONAL REPRESENTATION AND WARRANTY OF RETIRING GENERAL
PARTNER. The Retiring General Partner represents and warrants to each of the
other parties hereto that it is the legal and beneficial owner of the Redemption
Interest, that such ownership will be conveyed to the Partnership hereunder, and
that such ownership is free and clear of any security interest, pledge,
mortgage, lien (including environmental and tax liens), charge, adverse claim,
option or other right to purchase, or other encumbrance (collectively an
"Encumbrance").
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SECTION 3.03. ADDITIONAL REPRESENTATION AND WARRANTY OF PARTNERSHIP. The
Partnership represents and warrants to the Retiring General Partner that it is
the legal and beneficial owner of the stock and warrants that comprise the
Redemption Consideration, and that such ownership will be conveyed to the
Retiring General Partner hereunder free and clear of any Encumbrance other than
the UAF Obligation that the Retiring General Partner has assumed hereunder.
ARTICLE IV
INDEMNIFICATION; SURVIVAL
SECTION 4.01 INDEMNIFICATION. Each of the parties hereto thereby agrees
to indemnify each other party against, and hold each other party harmless from,
any and all damage, loss, liability, tax, interest, penalties, and any other
expense (including, without limitation, investigation and attorneys' fees and
expenses in connection with any action, suit, proceeding, claim, investigation,
or other loss) arising out of any inaccuracy or omission in any representation
or warranty made by such party, any violation or breach of any covenant or
agreement of such party, or any default with respect to any obligation of such
party, under this Agreement, which, in the case of any of the foregoing, has a
material adverse effect on the economic benefits to the other party of the
transactions contemplated hereby.
SECTION 4.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations, warranties, covenants and agreement of each of the parties
hereto shall survive and remain in full force and effect until performance in
accordance with the terms hereof.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be made in accordance with the provisions of the
Partnership Agreement, as amended from time to time.
SECTION 5.02 FURTHER ASSURANCES. Each party hereto agrees to execute and
deliver, at its own expense, such other documents and instruments, including,
without limitation, an amendment to or restatement of the Partnership Agreement,
and take such other action, as any other party requests, to (a) consummate more
effectively the transactions contemplated hereby, (b) carry out the terms and
purposes of this Agreement, and (c) respond to or cooperate with any court,
administrative agency, or governmental or regulatory authority.
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SECTION 5.03 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the transferees, successors, assigns, heirs,
beneficiaries, executors, administrators, partners, agents, employees, and
representatives of each party hereto.
SECTION 5.04 NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement,
expressed or implied, is intended or shall be construed to confer upon any
person other than the parties hereto, and their successors and assigns, heirs,
beneficiaries, executors, administrators, partners, agents, employees, and
representatives, any rights, remedies, or claims under or by reason of this
Agreement.
SECTION 5.05 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to the conflict of laws provisions thereof. Any and all suits, legal
actions or proceedings against any party hereto arising out of this Agreement
shall be brought in the state courts of the State of Delaware, or, if such court
shall not have jurisdiction, the court of appropriate jurisdiction sitting in
Wilmington, Delaware, and each party hereby submits to and accepts the exclusive
jurisdiction of such courts for the purpose of such suits, legal action or
proceedings. Each party hereto hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any such suit, legal action
or proceeding in any such court and hereby further waives any claim that any
suit, legal action or proceeding brought in any such court has been brought in
an inconvenient forum.
SECTION 5.06 MODIFICATIONS AND WAIVERS. No supplement, modification,
waiver or termination of this Agreement or any provisions hereof shall be
binding unless executed in writing by all parties hereto. No waiver of any of
the provisions of this Agreement shall constitute a waiver of any other
provision (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided
SECTION 5.07 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one agreement.
SECTION 5.08 SEVERABILITY. Each provision of this Agreement is intended
to be severable. If any term or provision hereof is illegal or invalid for any
reason whatsoever, such illegality or invalidity shall not affect the legality
or validity of the remainder of this Agreement.
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SECTION 5.09 INCORPORATION BY REFERENCE. Every schedule attached to this
Agreement and referred to herein is hereby incorporated in this Agreement by
reference.
SECTION 5.10 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, between
the parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
PARTNERSHIP:
D&B INVESTORS L.P.
By: Dun & Bradstreet, Inc.
Title: Managing General Partner
By: /s/ [ILLEGIBLE]
--------------------------------
Title:
---------------------------
RETIRING GENERAL PARTNER:
By: IMS America, Ltd.
Title: General Partner
By: /s/ [ILLEGIBLE]
--------------------------------
Title: Asst. V.P.
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SIGNATURE PAGE TO AGREEMENT TO RETIRE GENERAL PARTNER INTEREST
(IMS AMERICA, LTD.)
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OFFICER'S CERTIFICATE
The undersigned, Xxxxxxx X. Xxxxxx, Assistant Vice President of IMS
AMERICA, LTD. (the "Company"), hereby certifies that the Company is within the
definition of a qualified institutional buyer as defined in Rule 144A of the
Securities Act of 1933, as amended.
IN WITNESS WHEREOF, I have hereunto signed my name on the 21st day of
October, 1996.
/s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Vice President
WARRANT ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby assigns and tranfers unto IMS
AMERICA, LTD., 000 Xxxxxx Xxxx, Xxxxxx, Xxx Xxxxxx, 00000, the within Warrant,
hereby irrevocably constituting and appointing the appropriate officer of The
Dun & Bradstreet Corporation as attorney to transfer said Warrant on the books
of The Dun & Bradstreet Corporation, with full power of substitution in the
premises.
DATED: October 21, 1996
Signature of Registered Holder:
D&B INVESTORS L.P.
By: DUN & BRADSTREET, INC.
its Managing General Partner
By: /s/ [ILLEGIBLE]
---------------------------
Name:
Title:
IMS AMERICA, LTD.
September 30, 1996
To: Dun & Bradstreet, Inc.,
General Partner
RBDB, LLC, Limited Partner
Re: D&B Investors L.P.
Dear Sirs:
Pursuant to Section 11.2 of the Agreement of Limited Partnership of D&B
Investors L.P. (the "Partnership"), dated October 14, 1993, as amended (the
"Partnership Agreement"), we hereby elect to withdraw from the Partnership and
require that our entire Interest be retired.
The General Partnership Withdrawal Date shall be a date in early October
1996 mutually agreeable to you and to us.
Capitalized terms not defined herein shall have the meanings assigned to
them in the Partnership Agreement.
IMS AMERICA, LTD.
By: /s/ Xxxx X. Xxxxxx
--------------------------
Xxxx X. Xxxxxx
Vice President
