Exhibit 10.3
EMPLOYEE BENEFITS AGREEMENT
This EMPLOYEE BENEFITS AGREEMENT is dated as of June __, 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 SHARES");
WHEREAS, The Corporation has previously entered into an Employee
Benefits Agreement with D&B and ACNielsen in connection with the distribution
dated as of October 28, 1996 and IMS Health shall succeed the Corporation under
such agreement; 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.
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"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 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 Agreements, 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 for both the Corporation Group
and IMS Health Group prior to the Effective Time.
"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.
"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).
"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, (iii) are not IMS Health 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.
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"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
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.
"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 Shares 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 such date as may hereafter be
determined by Corporation's Board of Directors as the date as of which the
Distribution shall be effected.
"DISTRIBUTION RECORD DATE" shall mean such date as may hereafter be
determined by Corporation's Board of Directors as the record date for the
Distribution.
"EFFECTIVE TIME" shall mean 12:01 a.m., New York time, on the
Distribution Date.
"EMPLOYEE BENEFIT DISPUTE" shall include any controversy, dispute or
claim arising out of, in connection with, or in relation to the interpretation,
performance,
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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 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 Shares 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 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.
"IMS HEALTH" shall mean IMS Health Incorporated, a Delaware
corporation.
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"IMS HEALTH COMMITTEE" shall mean the Executive Compensation and
Benefits Committee of the Board of Directors of IMS Health.
"IMS HEALTH COMMON SHARES" 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 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.
"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.
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"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 RETIREMENT PLAN TRANSFER DATE" shall have the meaning set
forth in Section 2.2(b) of this Agreement.
"IMS HEALTH SAVINGS BEP" shall mean the IMS Health Savings
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.
"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.
"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,
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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 Shares 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 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.
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"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 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 the Corporation Retirement Plan or
the IMS Health Retirement Plan.
SECTION 2.2. IMS HEALTH RETIREMENT PLAN. (a) As soon as practicable
after the Effective Time, but not later than the first day of the fourth
calendar month that begins after 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 and IMS Health Retirees who were participants in the Corporation
Retirement Plan immediately prior to the Effective Time (the "IMS HEALTH
TRANSFERRED RETIREMENT PLAN EMPLOYEES"). As soon as practicable after the
Effective Time, Corporation shall cause the trustee of the Corporation
Retirement Plan to segregate, 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
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thereunder for all the Corporation Pre-Distribution Employees as of
the Effective Time, multiplied by the IMS Health Retirement Plan
Segregation Ratio.
(b) As soon as practicable after the Effective Time, the 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 "IMS HEALTH RETIREMENT PLAN TRANSFER
DATE"); PROVIDED, HOWEVER, that in no event shall such transfer take place until
Corporation shall make all required amendments to the Corporation Retirement
Plan and related trust agreement necessary to provide for the segregation and
transfer of assets described in this Section 2.2. The value of such assets to
be transferred shall equal the value of segregated assets determined under
Section 2.2(a) of this Agreement, 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 IMS Health Retirement Plan
Transfer Date; and
(ii) increased (or decreased) by the share of the net investment income (or
loss) and expenses from the Effective Time to the IMS Health
Retirement Plan Transfer Date attributable to the value of such
segregated assets.
(c) 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.
(d) Prior to the IMS Health Retirement Plan Transfer Date, all
benefit payments to IMS Health Transferred Retirement Plan Employees shall be
made from the Corporation Retirement Plan.
SECTION 2.3. ALLOCATION OF LIABILITIES. The IMS Health Group shall
assume all Liabilities relating to the participation of IMS Health Transferred
Retirement Plan Employees in the Corporation Retirement Plan. The Corporation
Group shall retain all other Liabilities relating to the Corporation Retirement
Plan.
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ARTICLE III
CORPORATION SAVINGS PLAN
SECTION 3.1. CORPORATION SAVINGS PLAN. From and after the Effective
Time, Corporation shall continue to sponsor the Corporation Savings Plan. Active
participation of IMS Health Employees in the Corporation Savings Plan shall
cease immediately after the Effective Time. Nothing contained in this Article
III shall have the effect of accelerating the degree to which any individual has
a vested interest in the Corporation Savings Plan or the IMS Health Savings
Plan.
SECTION 3.2. IMS HEALTH SAVINGS PLAN. (a) As of the Effective Time,
IMS Health shall adopt the IMS Health Savings Plan for the benefit of IMS Health
Employees, IMS Health Disabled Employees 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.
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
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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
Shares. 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 Shares. 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.
(b) Prior to the first anniversary of 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.
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SECTION 4.2. IMS HEALTH NONQUALIFIED PLANS. As of the Effective
Time, IMS Health shall (i) adopt the IMS Health SERP, the IMS Health Pension REP
and the IMS Health Savings BEP (collectively, the "IMS Health Nonqualified
Plans") for the benefit of IMS Health Employees and IMS Health Retirees who were
participants in the Corporation Nonqualified Plans immediately prior to the
Effective Time 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 29, 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. 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 the 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 the
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. The IMS Health Group
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shall retain all Liabilities with respect to severance payments made or to be
made to IMS Health Retirees. 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.
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 Subsidiary of Corporation or
their covered dependents under any welfare plan maintained by such Subsidiary
solely for the benefit
15
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, or at, 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 $x.x 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 by the average
number of Corporation Pre-Distribution Employees enrolled in the three months.
SECTION 5.7. RETIREE WELFARE PLANS. The Corporation Group shall be
responsible for providing retiree welfare benefits, where applicable, to
Corporation Retirees and Corporation Post-Distribution Employees. The IMS
Health Group shall be responsible for providing retiree welfare benefits, where
applicable, to IMS Health Retirees and IMS Health Employees.
ARTICLE VI
EQUITY-BASED PLANS
SECTION 6.1. CORPORATION STOCK OPTIONS. Stock options awarded under
the Corporation Stock Option Plans ("CORPORATION STOCK OPTIONS") shall be
treated as follows:
16
(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 and Corporation
Disabled Employees 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; AND IMS HEALTH DISABLED EMPLOYEES. As of
the Effective Time, (i) each unexercised Corporation Stock Option held by IMS
Health Employees and IMS Health Disabled Employees shall be cancelled and (ii)
such individuals shall 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 Shares covered by each
replacement stock option shall be determined by (i) multiplying the number of
shares of Corporation Common Stock covered by the cancelled Corporation Stock
Option by a fraction, the numerator of which equals the average of high and low
trading prices of a share of Corporation Common Stock for the five trading days
immediately preceding the ex-dividend date, and the denominator of which equals
the average of high and low trading prices of an IMS Health Common Share for the
five trading days starting on the regular way trading date ("IMS HEALTH RATIO")
and (ii) rounding down the result to a whole number of shares. The exercise
price of each replacement stock option shall be determined by dividing the
exercise price of the cancelled Corporation Stock Option by the IMS Health
ratio. Except as otherwise provided in the IMS Health Replacement Plans, all
other terms of the replacement stock options shall remain substantially
identical to the terms of the cancelled Corporation Stock Options.
(c) IMS HEALTH RETIREES; AND CORPORATION RETIREES. As of the
Effective Time, (i) each unexercised Corporation Stock Option held by IMS Health
Retirees and Corporation Retirees shall be adjusted in substantially the same
manner as employees of the Corporation Group and (ii) IMS Health shall offer to
such IMS Health Retirees and Corporation Retirees, as the IMS Health
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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 shall be forfeited and such individuals shall receive replacement IMS
Health Restricted Stock equal to (i) the number of shares of forfeited IMS
Health Restricted Stock plus (ii) the number of shares of forfeited Corporation
Restricted Stock multiplied by the IMS Health Ratio and the reciprocal of the
Corporation Ratio, such replacement shares of IMS Health Restricted Stock to
have the same terms as the Corporation Restricted Stock from which they arose.
SECTION 6.4. EXECUTIVE ANNUAL INCENTIVE PLAN. Outstanding awards
under the Corporation Executive Annual Incentive Plan shall be treated as
determined by the Corporation and IMS Health, respectively.
SECTION 6.5. CORPORATION EMPLOYEE STOCK PURCHASE PLAN. (a) From and
after the Effective Time, Corporation shall continue to sponsor the Corporation
Employee Stock Purchase Plan.
(b) As of the Effective Time, IMS Health shall adopt the IMS Health
Employee Stock Purchase Plan for the benefit of IMS Health Employees.
SECTION 6.6. ALLOCATION OF LIABILITIES. The IMS Health Group shall
assume all Liabilities with respect to awards granted to IMS Health Employees,
IMS Health Retirees, Corporation
18
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. Corporation and IMS Health shall agree,
with regard to any plans maintained outside the United States, to the
disposition of such plans.
ARTICLE VIII
OTHER EMPLOYEE BENEFIT ISSUES
SECTION 8.1. EMPLOYEE BENEFIT LITIGATION LIABILITIES. Except as
otherwise expressly provided in this agreement or with respect to Articles II,
III and VI hereof, the IMS Health Group shall assume all Employee Benefit
Litigation Liabilities that are asserted by Corporation Pre-Distribution
Employees prior to the Effective Time.
SECTION 8.2. 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 and (b) on
and after the Effective Time with respect to Corporation Post-Distribution
Employees. The IMS Health Group shall retain all Liabilities relating to
workers' compensation claims that were incurred (a) prior to the Effective Time
with respect to Corporation Pre-Distribution Employees who were employed by the
IMS Health Group and (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.
ARTICLE IX
BENEFIT PLAN PARTICIPATION
SECTION 9.1. CORPORATION PLANS. Except as specifically provided
herein, all IMS Health Employees shall cease participation in all domestic
Corporation Employee Benefit Plans as of the Effective Time.
SECTION 9.2. IMS HEALTH PLANS. Except as provided in Section 5.6
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
19
(to the extent applicable) each IMS Health Employee's (i) past service with the
Corporation Group to the extent recognized under similar plans maintained by the
Corporation Group immediately prior to the Effective Time and (ii) accrued but
unused vacation time and sick days, and (b) any IMS Health Employee who
participated in a Corporation Employee Benefit Plan immediately prior to the
Effective Time shall be entitled to immediate participation in a similar newly
created Employee Benefit Plan sponsored by the IMS Health Group.
SECTION 9.3. SUBSEQUENT EMPLOYER. Except as provided in Section 5.6
herein, if, during the one-year period following the Effective Time, a
Corporation Post-Distribution Employee or a IMS Health Employee terminates
employment with his or her employer and then immediately commences employment
with the Corporation Group or the IMS Health Group, the subsequent employer
shall cause to be recognized (to the extent applicable) such employee's past
service with the Corporation Group or the IMS Health Group to the extent
recognized under similar plans maintained by the prior employer.
Notwithstanding the foregoing, no past service shall be recognized with respect
to pension accruals under the defined benefit plans of the subsequent employer.
SECTION 9.4. RIGHT TO AMEND OR TERMINATE. Except as specifically
provided herein, nothing in this Agreement shall be construed or interpreted to
restrict the Corporation Group's or the IMS Health Group's right or authority to
amend or terminate any of their Employee Benefit Plans following the Effective
Time.
ARTICLE X
ACCESS TO INFORMATION
SECTION 10.1. ACCESS TO INFORMATION. Article IV of the Distribution
Agreement shall govern the rights of the Corporation Group and the IMS Health
Group with respect to access to information. The term "RECORDS" in that Article
shall be read to include all Employee Benefit Records.
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.
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ARTICLE XII
DISPUTE RESOLUTION
Section 12.1. DISPUTE RESOLUTION. Article VI of the Distribution
Agreement shall govern the rights of the Corporation Group and the IMS Health
Group with respect to dispute resolution. The term "AGREEMENT DISPUTE" in that
Article shall be read to include all Employee Benefit Disputes.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1. COMPLETE AGREEMENT; CONSTRUCTION. This Agreement,
including the Exhibits and Schedules (if any), and the Distribution Agreement
shall constitute the entire agreement between the parties with respect to the
subject matter hereof and shall supersede all previous negotiations, commitments
and writings with respect to such subject matter. In the event of any
inconsistency between this Agreement and any Schedule hereto, the Schedule shall
prevail. Other than Sections 2.7 and 4.5 and Article VI of the Distribution
Agreement, which shall prevail over any inconsistent or conflicting provisions
in this Agreement, notwithstanding any other provisions in this Agreement to the
contrary, in the event and to the extent that there shall be a conflict between
the provisions of this Agreement and the provisions of the Distribution
Agreement, this Agreement shall control.
SECTION 13.2. ANCILLARY AGREEMENTS. This Agreement is not intended
to address, and should not be interpreted to address, the matters specifically
and expressly covered by the Ancillary Agreements.
SECTION 13.3. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other parties.
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 on or prior to the Distribution Date (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
21
consummation of the transactions contemplated thereby shall be charged to and
paid by IMS Health. Except as otherwise set forth in this Agreement, the
Distribution Agreement or any Ancillary Agreement, each party shall bear its own
costs and expenses incurred after the Distribution Date. Any amount or expense
to be paid or reimbursed by any party hereto to any other party hereto shall be
so paid or reimbursed promptly after the existence and amount of such obligation
is determined and demand therefor is paid.
SECTION 13.6. NOTICES. All notices and other communications
hereunder shall be in writing and hand delivered or mailed by registered or
certified mail (return receipt requested) or sent by any means of electronic
message transmission with delivery confirmed (by voice or otherwise) to the
parties at the following addresses (or at such other addresses for a party as
shall be specified by like notice) and will be deemed given on the date on which
such notice is received:
To Xxxxxxx Media Research, Inc.:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy:
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.
22
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 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
23
New York, for the purposes of any suit, action or other proceeding arising out
of this Agreement or any transaction contemplated hereby. Each of the parties
agrees to commence any action, suit or proceeding relating hereto either in the
United States District Court for the Southern District of New York or if such
suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court of the State of New York, New York
County. Each of the parties further agrees that service of any process,
summons, notice or document by U.S. registered mail to such party's respective
address set forth above shall be effective service of process for any action,
suit or proceeding in New York with respect to any matters to which it has
submitted to jurisdiction in this Section 13.17. Each of the parties
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in (i) the Supreme Court of the State of New York, New York
County, or (ii) the United States District Court for the Southern District of
New York, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
SECTION 13.18. SEVERABILITY. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
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,
24
or cause to be taken, all such further or other actions as such other party may
reasonably deem necessary or desirable to effect the purposes of this Agreement
and the transactions contemplated hereunder.
IN WITNESS WHEREOF, the parties have duly executed and entered into
this Agreement, as of the date first above written.
COGNIZANT CORPORATION
by
_______________________
Name:
Title:
IMS HEALTH INCORPORATED
by
_______________________
Name:
Title:
