DISTRIBUTION AGREEMENT
This DISTRIBUTION AGREEMENT is dated as of October 28, 1996, among
THE DUN & BRADSTREET CORPORATION, a Delaware corporation ("D&B"), COGNIZANT
CORPORATION, a Delaware corporation ("Cognizant"), and ACNIELSEN CORPORATION, a
Delaware corporation ("ACNielsen").
WHEREAS, D&B, acting through its direct and indirect subsidiaries,
currently conducts a number of businesses, including, without limitation, (i)
providing information and decision support services to the pharmaceutical and
healthcare industries, and providing sales automation solutions and developing,
installing and supporting networked systems for pharmaceutical, healthcare and
consumer packaged goods organizations (the "IMS Business"), (ii) measuring
television audiences and Internet usage and reporting of the results thereof and
related information to advertisers, advertising agencies, syndicators, broadcast
networks, cable networks, cable operators, television stations and/or station
representatives, both in the United States and Canada (the "Xxxxxxx Media
Research Business") and elsewhere (the "Non-U.S. Media Business"), (iii)
providing research and analysis of the computer hardware, software,
communications and related technology industries (the "Gartner Group Business"),
(iv) providing client/server decision support solutions for medium and large
scale enterprises (the "Pilot Business"), (v) developing and marketing
proprietary software applications and services used primarily in the
administration of health care benefits and the support of managed care services
(the "Erisco Business"), (vi) developing other software (the "Xxxxxx Software
Business"), (vii) providing information and analytic support services focusing
on healthcare providers (the "DBHC Business"), (viii) providing financial
application software products and services to the Japanese markets (the "DBTA
Business"), (ix) delivering market research, information and analysis to the
consumer products services industry (the "Nielsen Marketing Business"), and (x)
investing in emerging and established businesses in the information industry
(the "Cognizant Enterprises Business");
WHEREAS, the Board of Directors of D&B has determined that it is
appropriate, desirable and in the best interests of the holders of shares of
common stock, par value $1.00 per share, of D&B (the "D&B Common Stock") to
reorganize D&B to separate from D&B (i) the IMS Business, the Xxxxxxx Media
Research Business, the Gartner Group Business, the Pilot Business, the Erisco
Business, the Xxxxxx Software Business, the DBHC Business, the DBTA Business and
the Cognizant Enterprises Business, and to cause such businesses to be owned and
conducted, directly or
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indirectly, by Cognizant, and (ii) the Nielsen Marketing Business and the
Non-U.S. Media Business and to cause such businesses to be owned and conducted,
directly or indirectly, by ACNielsen;
WHEREAS, in order to effect such separations, the Board of Directors
of D&B has determined that it is appropriate, desirable and in the best
interests of the holders of D&B Common Stock to take certain steps to reorganize
D&B's Subsidiaries and businesses and then to distribute to the holders of the
D&B Common Stock all the outstanding shares of common stock of Cognizant,
together with the appurtenant share purchase rights (the "Cognizant Common
Shares"), and all the outstanding shares of common stock of ACNielsen, together
with the appurtenant share purchase rights (the "ACNielsen Common Shares");
WHEREAS, each of D&B, Cognizant and ACNielsen has determined that it
is necessary and desirable, on or prior to the Distribution Date (as defined
herein), to allocate and transfer those assets and to allocate and assign
responsibility for those liabilities in respect of the activities of the
businesses of such entities and those assets and liabilities in respect of other
businesses and activities of D&B and its current and former Subsidiaries and
other matters; and
WHEREAS, each of D&B, Cognizant and ACNielsen has determined that it
is necessary and desirable to set forth the principal corporate transactions
required to effect such Distribution and to set forth other agreements that will
govern certain other matters following the Distribution.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties hereby agree
as follows:
ARTICLE I. DEFINITIONS
SECTION 1.1. General. As used in this Agreement, the following terms
shall have the following meanings:
(a) "ACNielsen" shall mean ACNielsen Corporation, a
Delaware corporation.
(b) "ACNielsen Assets" shall mean:
(i) any and all Assets that are expressly contemplated by this
Agreement, including the list of pre-Distribution
reorganization steps attached as Schedule 1.1(b)(i)(1) hereto,
or any Ancillary Agreement (or included on Schedule
1.1(b)(i)(2) or any other Schedule hereto or thereto) as
Assets which have been or are to be transferred to
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ACNielsen or any other member of the ACNielsen Group;
(ii) the ownership interests in those Business Entities listed on
Schedule 1.1(b)(ii);
(iii) subject to Article VII, any rights of any member of the
ACNielsen Group under any of the Policies, including any
rights thereunder arising after the Distribution Date in
respect of any Policies that are occurrence policies;
(iv) any ACNielsen Contracts, any rights or claims arising
thereunder, and any other rights or claims or contingent
rights or claims primarily relating to or arising from any
ACNielsen Asset or the ACNielsen Business;
(v) any Assets reflected on the ACNielsen Balance Sheet or the
accounting records supporting such balance sheet and any
Assets acquired by or for ACNielsen or any member of the
ACNielsen Group subsequent to the date of such balance sheet
which, had they been so acquired on or before such date and
owned as of such date, would have been reflected on such
balance sheet if prepared on a consistent basis, subject to
any dispositions of any of such Assets subsequent to the date
of such balance sheet; and
(vi) any and all Assets owned or held immediately prior to the
Distribution Date by D&B or any of its Subsidiaries (including
Cognizant or any of its Subsidiaries) primarily relating to or
used in the ACNielsen Business. The intention of this clause
(vi) is only to rectify any inadvertent omission of transfer
or conveyance of any Asset that, had the parties given
specific consideration to such Asset as of the date hereof,
would have otherwise been classified as an ACNielsen Asset. No
Asset shall be deemed to be an ACNielsen Asset solely as a
result of this clause (vi) if such Asset is within the
category or type of Asset expressly covered by the subject
matter of an Ancillary Agreement. In addition, no Asset shall
be deemed an ACNielsen Asset solely as a result of this clause
(vi) unless a claim with respect thereto is made by ACNielsen
on or prior to the first anniversary of the Distribution Date.
Notwithstanding the foregoing, the ACNielsen Assets
shall not in any event include:
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(x) the Assets listed or described on Schedule 1.1(b)(x); or
(y) any Assets primarily relating to or used in any
terminated or divested Business Entity, business or
operation formerly owned or managed by or associated
with ACNielsen or any ACNielsen Business, except for
those Assets primarily relating to or used in those
Business Entities, businesses or operations listed on
Schedule 1.1(b)(y); or
(z) any and all Assets that are expressly contemplated by
this Agreement or any Ancillary Agreement (or the
Schedules hereto or thereto) as Assets to be retained by
any member of the D&B Group or the Cognizant Group.
In the event of any inconsistency or conflict which may arise
in the application or interpretation of any of the foregoing
provisions, for the purpose of determining what is and is not
an ACNielsen Asset, any item explicitly included on a Schedule
referred to in this Section 1.1(b) shall take priority over
any provision of the text hereof, and clause (i) shall take
priority over clause (v) of this paragraph (b) and over clause
(v) of paragraph (w) of this Section 1.1.
(c) "ACNielsen Balance Sheet" shall mean the combined balance sheet
of the ACNielsen Group, including the notes thereto, as of June 30, 1996, set
forth as Schedule 1.1(c) hereto.
(d) "ACNielsen Business" shall mean (i) the Nielsen Marketing
Business and the Non-U.S. Media Business, (ii) the businesses of the members of
the ACNielsen Group, (iii) any other business conducted primarily through the
use of the ACNielsen Assets, and (iv) the businesses of Business Entities
acquired or established by or for ACNielsen or any of its Subsidiaries after the
date of this Agreement.
(e) "ACNielsen Common Shares" shall have the meaning as defined in
the recitals hereto.
(f) "ACNielsen Contracts" shall mean the following contracts and
agreements to which D&B or any of its Affiliates is a party or by which it or
any of its Affiliates or any of their respective Assets is bound, whether or not
in writing, except for any such contract or agreement (i) that is not expressly
contemplated to be transferred or assigned by any member of the D&B Group or
(ii) that is expressly contemplated to be transferred or assigned to any member
of the Cognizant Group, in
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each case, pursuant to any provision of this Agreement or any Ancillary
Agreement:
(i) any contracts or agreements listed or described on Schedule
1.1(f)(i);
(ii) any contract or agreement entered into in the name of, or expressly
on behalf of, any division, business unit or member of the ACNielsen
Group;
(iii) any contract or agreement that relates primarily to the ACNielsen
Business;
(iv) federal, state and local government and other contracts and
agreements that are listed or described on Schedule 1.1(f)(iv) and
any other government contracts or agreements entered into after the
date hereof and prior to the Distribution Date that relate primarily
to the ACNielsen Business;
(v) any contract or agreement representing capital or operating
equipment lease obligations reflected on the ACNielsen Balance
Sheet, including obligations as lessee under those contracts or
agreements listed on Schedule 1.1(f)(v);
(vi) any contract or agreement that is otherwise expressly contemplated
pursuant to this Agreement or any of the Ancillary Agreements to be
assigned to any member of the ACNielsen Group; and
(vii) any guarantee, indemnity, representation or warranty of the
ACNielsen Group.
(g) "ACNielsen Group" shall mean ACNielsen and each Business Entity
which is contemplated to remain or become a Subsidiary of ACNielsen hereunder,
which shall include those identified as such on Schedule 1.1(g) hereto, which
Schedule shall also indicate the amount of ACNielsen's direct or indirect
ownership interest therein.
(h) "ACNielsen Indemnitees" shall mean each member of the ACNielsen
Group, each of their respective directors, officers, employees and agents and
each of the heirs, executors, successors and assigns of any of the foregoing.
(i) "ACNielsen Liabilities" shall mean:
(i) any and all Liabilities that are expressly contemplated by this
Agreement or any Ancillary Agreement (or the Schedules hereto or
thereto, including Schedule 1.1(i)(i) hereto) as Liabilities to be
assumed by any member of the
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ACNielsen Group, and all agreements, obligations and Liabilities of
any member of the ACNielsen Group under this Agreement or any of the
Ancillary Agreements;
(ii) all Liabilities (other than Taxes and any employee-related
Liabilities), primarily relating to, arising out of or resulting
from:
(A) the operation of the ACNielsen Business, as conducted at
any time prior to, on or after the Distribution Date (including any
Liability relating to, arising out of or resulting from any act or
failure to act by any director, officer, employee, agent or
representative (whether or not such act or failure to act is or was
within such person's authority));
(B) the operation of any business conducted by any member of
the ACNielsen Group at any time after the Distribution Date
(including any Liability relating to, arising out of or resulting
from any act or failure to act by any director, officer, employee,
agent or representative (whether or not such act or failure to act
is or was within such person's authority)); or
(C) any ACNielsen Assets; whether arising before, on or after
the Distribution Date;
(iii) all Liabilities reflected as liabilities or obligations on the
ACNielsen Balance Sheet or the accounting records supporting such
balance sheet, and all Liabilities arising or assumed after the date
of such balance sheet which, had they arisen or been assumed on or
before such date and been retained as of such date, would have been
reflected on such balance sheet if prepared on a consistent basis,
subject to any discharge of such Liabilities subsequent to the date
of the ACNielsen Balance Sheet.
Notwithstanding the foregoing, the ACNielsen Liabilities shall not
include:
(x) any Liabilities that are expressly contemplated by this
Agreement or any Ancillary Agreement (or the Schedules hereto
or thereto) as Liabilities to be retained or assumed by any
member of the D&B Group or by any member of the Cognizant
Group, including any Liabilities set forth on Schedule
1.1(i)(x);
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(y) any Liabilities primarily relating to, arising out of or
resulting from any terminated or divested Business Entity,
business or operation formerly owned or managed by or
associated with ACNielsen or any ACNielsen Business (except
for Liabilities primarily relating to, arising out of or
resulting from those Business Entities, businesses or
operations listed on Schedule 1.1(i)(y)); any Liabilities
which are excluded by this clause (y) from the ACN Liabilities
shall be deemed to be D&B Liabilities; or
(z) all agreements and obligations of any member of the D&B Group
or the Cognizant Group under this Agreement or any of the
Ancillary Agreements.
(j) "ACNielsen Policies" shall mean all Policies, current or past,
which are owned or maintained by or on behalf of D&B or any Subsidiary of D&B,
which relate to the ACNielsen Business but do not relate to the D&B Business or
the Cognizant Business, and which Policies are either maintained by ACNielsen or
a member of the ACNielsen Group or assignable to ACNielsen or a member of the
ACNielsen Group.
(k) "ACNielsen Shared Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of D&B or any Subsidiary of
D&B which relate to the ACNielsen Business, other than ACNielsen Policies.
(l) "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.
(m) "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.
(n) "Agent" shall have the meaning as defined in
Section 2.1(b).
(o) "Agreement Disputes" shall have the meaning as
defined in Section 6.1.
(p) "Ancillary Agreements" shall mean all of the written agreements,
instruments, assignments or other arrangements (other than this Agreement)
entered into in connection with the transactions contemplated hereby, including,
without limitation, the Conveyancing and Assumption Instruments,
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the Data Services Agreements, the Employee Benefits Agreement, the Indemnity and
Joint Defense Agreement, the Intellectual Property Agreement, the Shared
Transaction Services Agreements, the TAM Master Agreement, the Tax Allocation
Agreement and the Transition Services Agreement.
(q) "Assets" shall mean assets, properties and rights (including
goodwill), wherever located (including in the possession of vendors or other
third parties or elsewhere), whether real, personal or mixed, tangible,
intangible or contingent, 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, including, without limitation, the following:
(i) all accounting and other books, records and files whether in
paper, microfilm, microfiche, computer tape or disc, magnetic
tape or any other form;
(ii) all apparatus, computers and other electronic data processing
equipment, fixtures, machinery, equipment, furniture, office
equipment, automobiles, trucks, aircraft and other
transportation equipment, special and general tools, test
devices, prototypes and models and other tangible personal
property;
(iii) all inventories of materials, parts, raw materials, supplies,
work-in-process and finished goods and products;
(iv) all interests in real property of whatever nature, including
easements, whether as owner, mortgagee or holder of a Security
Interest in real property, lessor, sublessor, lessee,
sublessee or otherwise;
(v) all interests in any capital stock or other equity interests
of any Subsidiary or any other person, all bonds, notes,
debentures or other securities issued by any Subsidiary or any
other person, all loans, advances or other extensions of
credit or capital contributions to any Subsidiary or any other
person and all other investments in securities of any person;
(vi) all license agreements, leases of personal property, open
purchase orders for raw materials, supplies, parts or
services, unfilled orders for the manufacture and sale of
products and other contracts, agreements or commitments;
(vii) all deposits, letters of credit and performance and surety
bonds;
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(viii) all written technical information, data, specifications,
research and development information, engineering drawings,
operating and maintenance manuals, and materials and analyses
prepared by consultants and other third parties;
(ix) all domestic and foreign patents, copyrights, trade names,
trademarks, service marks and registrations and applications
for any of the foregoing, mask works, trade secrets,
inventions, data bases, other proprietary information and
licenses from third persons granting the right to use any of
the foregoing;
(x) all computer applications, programs and other software,
including operating software, network software, firmware,
middleware, design software, design tools, systems
documentation and instructions;
(xi) all cost information, sales and pricing data, customer
prospect lists, supplier records, customer and supplier lists,
customer and vendor data, correspondence and lists, product
literature, artwork, design, development and manufacturing
files, vendor and customer drawings, formulations and
specifications, quality records and reports and other books,
records, studies, surveys, reports, plans and documents;
(xii) all prepaid expenses, trade accounts and other accounts and
notes receivables;
(xiii) all rights under contracts or agreements, all claims or
rights against any person arising from the ownership of any
asset, all rights in connection with any bids or offers and
all claims, chooses in action or similar rights, whether
accrued or contingent;
(xiv) all rights under insurance policies and all rights in the
nature of insurance, indemnification or contribution;
(xv) all licenses (including radio and similar licenses), permits,
approvals and authorizations which have been issued by any
Governmental Authority;
(xvi) cash or cash equivalents, bank accounts, lock boxes and other
deposit arrangements; and
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(xvii) interest rate, currency, commodity or other swap, collar, cap
or other hedging or similar agreements or arrangements.
(r) "Assignee" shall have the meaning as defined in Section 2.1(f).
(s) "Business Entity" shall mean any corporation, partnership,
limited liability company or other entity which may legally hold title to
Assets.
(t) "Claims Administration" shall mean the processing of claims made
under the Shared Policies, including, without limitation, the reporting of
claims to the insurance carriers, management and defense of claims and providing
for appropriate releases upon settlement of claims.
(u) "Code" shall mean the Internal Revenue Code of 1986, as amended,
and the Treasury regulations promulgated thereunder, including any successor
legislation.
(v) "Cognizant" shall mean Cognizant Corporation, a Delaware
corporation.
(w) "Cognizant Assets" shall mean:
(i) any and all Assets that are expressly contemplated by this
Agreement, including the list of pre-Distribution
reorganization steps attached as Schedule 1.1(b)(i)(1) hereto,
or any Ancillary Agreement (or included on Schedule 1.1(w)(i)
or any other Schedule hereto or thereto) as Assets which have
been or are to be transferred to Cognizant or any other member
of the Cognizant Group;
(ii) the ownership interests in those Business Entities listed on
Schedule 1.1(w)(ii);
(iii) subject to Article VII, any rights of any member of the
Cognizant Group under any of the Policies, including any
rights thereunder arising after the Distribution Date in
respect of any Policies that are occurrence policies;
(iv) any Cognizant Contracts, any rights or claims arising
thereunder, and any other rights or claims or contingent
rights or claims primarily relating to or arising from any
Cognizant Asset or the Cognizant Business;
(v) any Assets reflected on the Cognizant Balance Sheet or the
accounting records supporting such balance sheet and any
Assets acquired by or for
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Cognizant or any member of the Cognizant Group subsequent to
the date of such balance sheet which, had they been so
acquired on or before such date and owned as of such date,
would have been reflected on such balance sheet if prepared on
a consistent basis, subject to any dispositions of any of such
Assets subsequent to the date of such balance sheet; and
(vi) any and all Assets owned or held immediately prior to the
Distribution Date by D&B or any of its Subsidiaries (including
ACNielsen or any of its Subsidiaries) primarily relating to or
used in the Cognizant Business. The intention of this clause
(vi) is only to rectify any inadvertent omission of transfer
or conveyance of any Asset that, had the parties given
specific consideration to such Asset as of the date hereof,
would have otherwise been classified as a Cognizant Asset. No
Asset shall be deemed to be a Cognizant Asset solely as a
result of this clause (vi) if such Asset is within the
category or type of Asset expressly covered by the subject
matter of an Ancillary Agreement. In addition, no Asset shall
be deemed a Cognizant Asset solely as a result of this clause
(vi) unless a claim with respect thereto is made by Cognizant
on or prior to the first anniversary of the Distribution Date.
Notwithstanding the foregoing, the Cognizant Assets
shall not in any event include:
(x) the Assets listed or described on Schedule 1.1(w)(x); or
(y) any Assets primarily relating to or used in any
terminated or divested Business Entity, business or
operation formerly owned or managed by or associated
with Cognizant or any Cognizant Business, except for
those Assets primarily relating to or used in those
Business Entities, businesses or operations listed on
Schedule 1.1(w)(y); or
(z) any and all Assets that are expressly contemplated by
this Agreement or any Ancillary Agreement (or the
Schedules hereto or thereto) as Assets to be retained by
any member of the D&B Group or the ACNielsen Group.
In the event of any inconsistency or conflict which may arise
in the application or interpretation of any of the foregoing
provisions,
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for the purpose of determining what is and is not a Cognizant
Asset, any item explicitly included on a Schedule referred to
in this Section 1.1(w) shall take priority over any provision
of the text hereof, and clause (i) shall take priority over
clause (v) hereof of this paragraph (w) and over clause (v) of
paragraph (b) of this section 1.1.
(x) "Cognizant Balance Sheet" shall mean the combined balance
sheet of the Cognizant Group, including the notes thereto, as
of June 30, 1996, set forth as Schedule 1.1(x) hereto.
(y) "Cognizant Business" shall mean (i) the IMS Business, the
Xxxxxxx Media Research Business, the Gartner Business, the
Pilot Business, the Erisco Business, the Xxxxxx Software
Business, the DBHC Business, the DBTA Business and the
Cognizant Enterprises Business, (ii) the businesses of the
members of the Cognizant Group, (iii) any other business
conducted primarily through the use of the Cognizant Assets,
and (iv) the businesses of Business Entities acquired or
established by or for Cognizant or any of its Subsidiaries
after the date of this Agreement.
(z) "Cognizant Common Shares" shall have the meaning as defined in
the recitals hereto.
(aa) "Cognizant Contracts" shall mean the following contracts and
agreements to which D&B or any of its Affiliates is a party or by which it or
any of its Affiliates or any of their respective Assets is bound, whether or not
in writing, except for any such contract or agreement (i) that is not expressly
contemplated to be transferred or assigned by any member of the D&B Group or
(ii) that is expressly contemplated to be transferred or assigned to any member
of the ACNielsen Group, in each case, pursuant to any provision of this
Agreement or any Ancillary Agreement:
(i) any contracts or agreements listed or described on Schedule
1.1(aa)(i);
(ii) any contract or agreement entered into in the name of, or
expressly on behalf of, any division, business unit or member
of the Cognizant Group;
(iii) any contract or agreement that relates primarily to the
Cognizant Business;
(iv) federal, state and local government and other contracts and
agreements that are listed or described on Schedule
1.1(aa)(iv) and any other government contracts or agreements
entered into
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after the date hereof and prior to the Distribution Date that
relate primarily to the Cognizant Business;
(v) any contract or agreement representing capital or operating
equipment lease obligations reflected on the Cognizant Balance
Sheet, including obligations as lessee under those contracts
or agreements listed on Schedule 1.1(aa)(v);
(vi) any contract or agreement that is otherwise expressly
contemplated pursuant to this Agreement or any of the
Ancillary Agreements to be assigned to Cognizant or any member
of the Cognizant Group; and
(vii) any guarantee, indemnity, representation or warranty of any
member of the Cognizant Group.
(ab) "Cognizant Enterprises Business" shall have the meaning as
defined in the recitals hereto.
(ac) "Cognizant Group" shall mean Cognizant and each Business Entity
which is contemplated to remain or become a Subsidiary of Cognizant hereunder,
which shall include those identified as such on Schedule 1.1(ac) hereto, which
Schedule shall also indicate the amount of Cognizant's direct or indirect
ownership interest therein.
(ad) "Cognizant Indemnitees" shall mean Cognizant, each member of
the Cognizant Group, each of their respective directors, officers, employees and
agents and each of the heirs, executors, successors and assigns of any of the
foregoing.
(ae) "Cognizant Liabilities" shall mean:
(i) any and all Liabilities that are expressly contemplated by
this Agreement or any Ancillary Agreement (or the Schedules
hereto or thereto, including Schedule 1.1(ae)(i) hereto) as
Liabilities to be assumed by Cognizant or any member of the
Cognizant Group, and all agreements, obligations and
Liabilities of any member of the Cognizant Group under this
Agreement or any of the Ancillary Agreements;
(ii) all Liabilities (other than Taxes and any employee-related
Liabilities), primarily relating to, arising out of or
resulting from:
(A) the operation of the Cognizant Business, as
conducted at any time prior to, on or after the Distribution
Date (including any Liability relating to, arising out of or
resulting from any
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act or failure to act by any director, officer, h employee,
agent or representative (whether or not such act or failure to
act is or was within such person's authority));
(B) the operation of any business conducted by Cognizant
or any Subsidiary of Cognizant at any time after the
Distribution Date (including any Liability relating to,
arising out of or resulting from any act or failure to act by
any director, officer, employee, agent or representative
(whether or not such act or failure to act is or was within
such person's authority)); or
(C) any Cognizant Assets; whether arising before, on
or after the Distribution Date;
(iii) all Liabilities reflected as liabilities or obligations on the
Cognizant Balance Sheet or the accounting records supporting
such balance sheet, and all Liabilities arising or assumed
after the date of such balance sheet which, had they arisen or
been assumed on or before such date and been retained as of
such date, would have been reflected on such balance sheet,
subject to any discharge of such Liabilities subsequent to the
date of the Cognizant Balance Sheet.
Notwithstanding the foregoing, the Cognizant Liabilities shall not
include:
(x) any Liabilities that are expressly contemplated by this
Agreement or any Ancillary Agreement (or the Schedules hereto
or thereto) as Liabilities to be retained or assumed by D&B or
any member of the D&B Group or by ACNielsen or any member of
the ACNielsen Group, including any Liabilities set forth in
Schedule 1.1(ae)(x);
(y) any Liabilities primarily relating to, arising out of or
resulting from any terminated or divested Business Entity,
business or operation formerly owned or managed by or
associated with Cognizant or any Cognizant Business (except
for Liabilities primarily relating to, arising out of or
resulting from those Business Entities, businesses or
operations listed in Schedule 1.1(ae)(y)); any Liabilities
which are excluded by this clause (y) from the definition of
Cognizant Liabilities shall be deemed to be D&B Liabilities;
or
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(z) all agreements and obligations of any member of the D&B Group
or the ACNielsen Group under this Agreement or any of the
Ancillary Agreements.
(af) "Cognizant Policies" shall mean all Policies, current or past,
which are owned or maintained by or on behalf of D&B or any Subsidiary of D&B,
which relate to the Cognizant Business but do not relate to the D&B Business or
the ACNielsen Business, and which Policies are either maintained by Cognizant or
a member of the Cognizant Group or assignable to Cognizant or a member of the
Group.
(ag) "Cognizant Shared Policies" shall mean all Policies, current or
past, which are owned or maintained by or on behalf of D&B or any Subsidiary of
D&B which relate to the Cognizant Business, other than Cognizant Policies.
(ah) "Commission" shall have the meaning as defined in Section
4.2(b).
(ai) "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 this Agreement, or
otherwise arising out of or relating to the transactions contemplated by this
Agreement, which shall be in substantially the forms attached hereto as Schedule
1.1(ai) for transfers to be effected pursuant to New York law or the laws of one
of the other states of the United States, or, if not appropriate for a given
transfer, and for transfers to be effected pursuant to non-U.S. laws, shall be
in such other form or forms as the parties agree and as may be required by the
laws of such non-U.S. jurisdictions.
(aj) "Data Services Agreements" shall mean the Data Services
Agreements between and among D&B, Cognizant and ACNielsen.
(ak) "D&B" shall mean The Dun & Bradstreet Corporation, a Delaware
corporation.
(al) "D&B Assets" shall mean, collectively, all the rights and
Assets owned or held by D&B or any Subsidiary of D&B, except the Cognizant
Assets and ACNielsen Assets.
(am) "D&B Business" shall mean each and every business conducted at
any time by D&B or any Subsidiary of D&B except a Cognizant Business or an
ACNielsen Business.
(an) "D&B Common Stock" shall have the meaning as defined in the
recitals hereto.
16
(ao) "D&B Contracts" shall mean all the contracts and agreements to
which D&B or any of its Affiliates is a party or by which it or any of its
Affiliates is bound, except the Cognizant Contracts and the ACNielsen Contracts.
(ap) "D&B Group" shall mean D&B and each person (other than any
member of the Cognizant Group or the ACNielsen Group) that is a Subsidiary of
D&B.
(aq) "D&B Indemnitees" shall mean D&B, each member of the D&B Group,
each of their respective directors, officers, employees and agents and each of
the heirs, executors, successors and assigns of any of the foregoing, except the
Cognizant Indemnitees and ACNielsen Indemnitees.
(ar) "D&B Liabilities" shall mean collectively, all obligations and
Liabilities of D&B or any Subsidiary of D&B, except the Cognizant Liabilities
and ACNielsen Liabilities.
(as) "D&B Policies" shall mean all Policies, current or past, which
are owned or maintained by or on behalf of D&B or any Subsidiary of D&B which do
not relate to the Cognizant Business or the ACNielsen Business.
(at) "DBHC Business" shall have the meaning as defined in the
recitals hereto.
(au) "DBTA Business" shall have the meaning as defined in the
recitals hereto.
(av) "Distribution" shall mean the distribution on the Distribution
Date to holders of record of shares of D&B Common Stock as of the Distribution
Record Date of (i) the Cognizant Common Shares owned by D&B on the basis of one
Cognizant Common Share for each outstanding share of D&B Common Stock and (ii)
the ACNielsen Common Shares owned by D&B on the basis of one ACNielsen Common
Share for each three outstanding shares of D&B Common Stock.
(aw) "Distribution Date" shall mean November 1, 1996.
(ax) "Distribution Record Date" shall mean such date as may be
determined by D&B's Board of Directors as the record date for the Distribution.
(ay) "Effective Time" shall mean immediately after the midnight, New
York time, ending the 24-hour period comprising October 31, 1996.
(az) "Employee Benefits Agreement" shall mean the Employee Benefits
Agreement among D&B, Cognizant and ACNielsen.
(ba) "Erisco Business" shall have the meaning as defined in the
recitals hereto.
17
(bb) "Gartner Group Business" shall have the meaning as defined in
the recitals hereto.
(bc) "Governmental Authority" shall mean any federal, state, local,
foreign or international court, government, department, commission, board,
bureau, agency, official or other regulatory, administrative or governmental
authority.
(bd) "IMS Business" shall have the meaning as defined in the
recitals hereto.
(be) "Indemnifiable Losses" shall mean any and all losses,
liabilities, claims, damages, demands, costs or expenses (including, without
limitation, reasonable attorneys' fees and any and all out-of-pocket expenses)
reasonably incurred in investigating, preparing for or defending against any
Actions or potential Actions or in settling any Action or potential Action or in
satisfying any judgment, fine or penalty rendered in or resulting from any
Action.
(bf) "Indemnifying Party" shall have the meaning as defined in
Section 3.4.
(bg) "Indemnitee" shall have the meaning as defined in Section 3.4.
(bh) "Indemnity and Joint Defense Agreement" shall mean the
Indemnity and Joint Defense Agreement by and among D&B, Cognizant and ACNielsen.
(bi) "Information Statement" shall mean the Information Statement
sent to the holders of shares of D&B Common Stock in connection with the
Distribution, including any amendment or supplement thereto.
(bj) "Insurance Administration" shall mean, with respect to each
Shared Policy, the accounting for premiums, retrospectively-rated premiums,
defense costs, indemnity payments, deductibles and retentions, as appropriate,
under the terms and conditions of each of the Shared Policies; and the reporting
to excess insurance carriers of any losses or claims which may cause the
per-occurrence, per claim or aggregate limits of any Shared Policy to be
exceeded, and the distribution of Insurance Proceeds as contemplated by this
Agreement.
(bk) "Insurance Proceeds" shall mean those monies (i) received by an
insured from an insurance carrier or (ii) paid by an insurance carrier on behalf
of an insured, in either case net of any applicable premium adjustment,
retrospectively-rated premium, deductible, retention, or cost of reserve paid or
held by or for the benefit of such insured.
(bl) "Insured Claims" shall mean those Liabilities that,
individually or in the aggregate, are covered within the
18
terms and conditions of any of the Shared Policies, whether or not subject to
deductibles, co-insurance, uncollectibility or retrospectively-rated premium
adjustments.
(bm) "Intellectual Property Agreement" shall mean the Intellectual
Property Agreement among D&B, Cognizant and ACNielsen.
(bn) "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, 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 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.
(bo) "Nielsen Marketing Business" shall have the meaning as defined
in the recitals hereto.
(bp) "Xxxxxxx Media Research Business" shall have the meaning as
defined in the recitals hereto.
(bq) "Non-U.S. Media Business" shall have the meaning as defined in
the recitals hereto.
(br) "person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
(bs) "Pilot Business" shall have the meaning as defined in the
recitals hereto.
(bt) "Policies" shall mean insurance policies and insurance
contracts of any kind (other than life and benefits policies or contracts),
including, without limitation, primary,
19
excess and umbrella policies, comprehensive general liability policies, director
and officer liability, fiduciary liability, automobile, aircraft, property and
casualty, workers' compensation and employee dishonesty insurance policies,
bonds and self-insurance and captive insurance company arrangements, together
with the rights, benefits and privileges thereunder.
(bu) "Provider" shall have the meaning as defined in Section 5.1.
(bv) "Recipient" shall have the meaning as defined in Section 5.1.
(bw) "Records" shall have the meaning as defined in Section 4.1.
(bx) "Rules" shall have the meaning as defined in Section 6.2.
(by) "Security Interest" shall mean any mortgage, security interest,
pledge, lien, charge, claim, option, right to acquire, voting or other
restriction, right-of-way, covenant, condition, easement, encroachment,
restriction on transfer, or other encumbrance of any nature whatsoever.
(bz) "Shared Policies" shall mean all Policies, current or past,
which are owned or maintained by or on behalf of D&B or any of its Subsidiaries
which relate to one or more of the D&B Business, the Cognizant Business or the
ACNielsen Business.
(ca) "Shared Transaction Services Agreements" shall mean the Shared
Transaction Services Agreements among D&B, Cognizant and ACNielsen or
Subsidiaries thereof.
(cb) "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).
(cc) "TAM Master Agreement" shall mean the master agreement between
Cognizant and ACNielsen, including any agreements ancillary thereto, relating to
the conduct of the television audience measurement business after the
Distribution.
(cd) "Tax" shall have the meaning set forth in the Tax Allocation
Agreement.
20
(ce) "Tax Allocation Agreement" shall mean the Tax Allocation
Agreement among D&B, Cognizant and ACNielsen.
(cf) "Third Party Claim" shall have the meaning as defined in
Section 3.5.
(cg) "Transition Services Agreement" shall mean the Transition
Services Agreement among D&B, Cognizant and ACNielsen.
SECTION 1.2. References; Interpretation. References in this
Agreement to any gender include references to all genders, and references to the
singular include references to the plural and vice versa. The words "include",
"includes" and "including" when used in this Agreement shall be deemed to be
followed by the phrase "without limitation". Unless the context otherwise
requires, references in this Agreement to Articles, Sections, Exhibits and
Schedules shall be deemed references to Articles and Sections of, and Exhibits
and Schedules to, such Agreement. Unless the context otherwise requires, the
words "hereof", "hereby" and "herein" and words of similar meaning when used in
this Agreement refer to this Agreement in its entirety and not to any particular
Article, Section or provision of this Agreement.
ARTICLE II. DISTRIBUTION AND OTHER TRANSACTIONS; CERTAIN
COVENANTS
SECTION 2.1. The Distribution and Other Transactions.
(a) Certain Transactions. On or prior to the Distribution Date:
(i) D&B shall, on behalf of itself and its Subsidiaries, transfer
or cause to be transferred to Cognizant or another member of the Cognizant
Group effective prior to or as of the Effective Time all of D&B's and its
Subsidiaries' right, title and interest in the Cognizant Assets. D&B
shall, on behalf of itself and its Subsidiaries, transfer or cause to be
transferred to ACNielsen or another member of the ACNielsen Group
effective prior to or as of the Effective Time all of D&B's and its
Subsidiaries' right, title and interest in the ACNielsen Assets.
(ii) Cognizant shall, on behalf of itself and its Subsidiaries,
transfer or cause to be transferred to D&B or another member of the D&B
Group effective prior to or as of the Effective Time all of Cognizant's
and its Subsidiaries' right, title and interest in the D&B Assets.
Cognizant shall, on behalf of itself and its Subsidiaries, transfer or
cause to be transferred to ACNielsen or another member of the ACNielsen
Group effective prior to or as of the
21
Effective Time all of Cognizant's and its Subsidiaries' right, title and
interest in the ACNielsen Assets.
(iii) ACNielsen shall, on behalf of itself and its Subsidiaries,
transfer or cause to be transferred to Cognizant or another member of the
Cognizant Group effective prior to or as of the Effective Time all of
ACNielsen's and its Subsidiaries' right, title and interest in the
Cognizant Assets. ACNielsen shall, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to D&B or another member
of the D&B Group effective prior to or as of the Effective Time all of
ACNielsen's and its Subsidiaries' right, title and interest in the D&B
Assets.
(iv) To the extent not indicated by Schedule 1.1(b)(i)(1) or
otherwise agreed by the parties hereto, D&B, Cognizant or ACNielsen, as
applicable, shall be entitled to designate the Business Entity within such
party's respective Group to which any Assets are to be transferred
pursuant to this Section 2.1(a).
(b) Stock Dividends to D&B. On or prior to the Distribution Date:
(i) Cognizant shall issue to D&B as a stock dividend such number
of Cognizant Common Shares as will be required to effect the Distribution,
as certified by D&B's stock transfer agent (the "Agent"). In connection
therewith D&B shall deliver to Cognizant for cancellation the share
certificate held by it representing Cognizant Common Shares and shall
receive a new certificate representing the total number of Cognizant
Common Shares to be owned by D&B after giving effect to such stock
dividend.
(ii) ACNielsen shall issue to D&B as a stock dividend such number
of ACNielsen Common Shares as will be required to effect the Distribution,
as certified by the Agent. In connection therewith D&B shall deliver to
ACNielsen for cancellation the share certificate held by it representing
ACNielsen Common Shares and shall receive a new certificate representing
the total number of ACNielsen Common Shares to be owned by D&B after
giving effect to such stock dividend.
(c) Charters; By-laws; Rights Plans. On or prior to the Distribution
Date:
(i) All necessary actions shall have been taken to provide for
the adoption of the form of Certificate of Incorporation and By-laws and
the execution and delivery of the form of Rights Agreement filed by
Cognizant with the Commission as exhibits to Cognizant's Registration
Statement on Form 10.
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(ii) All necessary actions shall have been taken to provide for
the adoption of the form of Certificate of Incorporation, By-laws and the
execution and delivery of the form of Rights Agreement filed by ACNielsen
with the Commission as exhibits to ACNielsen's Registration Statement
on Form 10.
(d) Directors. On or prior to the Distribution Date, D&B, as the
sole stockholder of Cognizant and ACNielsen, shall have taken all necessary
action on or prior to the Distribution Date to cause the Board of Directors of
Cognizant and the Board of Directors of ACNielsen to consist of the individuals
identified in the Information Statement as directors of Cognizant and ACNielsen,
respectively.
(e) Certain Licenses and Permits. Without limiting the generality of
the obligations set forth in Section 2.1(a), on or prior to the Distribution
Date or as soon as reasonably practicable thereafter:
(i) all transferable licenses, permits and authorizations issued
by any Governmental Authority which relate primarily to the Cognizant
Business or the ACNielsen Business but which are held in the name of any
member of the D&B Group, or in the name of any employee, officer,
director, stockholder or agent of any such member, or otherwise, on behalf
of a member of the Cognizant Group or the ACNielsen Group, as applicable,
shall be duly and validly transferred or caused to be transferred by D&B
to the appropriate member of the Cognizant Group or the ACNielsen Group,
as applicable;
(ii) all transferable licenses, permits and authorizations issued
by Governmental Authorities which relate primarily to the D&B Business or
the ACNielsen Business but which are held in the name of any member of the
Cognizant Group, or in the name of any employee, officer, director,
stockholder, or agent of any such member, or otherwise, on behalf of a
member of the D&B Group or the ACNielsen Group, as applicable, shall be
duly and validly transferred or caused to be transferred by Cognizant to
the appropriate member of the D&B Group or the ACNielsen Group, as
applicable; and
(iii) all transferable licenses, permits and authorizations issued
by Governmental Authorities which relate primarily to the Cognizant
Business or the D&B Business but which are held in the name any member of
the ACNielsen Group, or any employee, officer, director, stockholder, or
agent of any such member, or otherwise, on behalf of a member of the
Cognizant Group or the D&B Group, as applicable, shall be duly and validly
transferred or caused to be transferred by ACNielsen to the appropriate
23
member of the Cognizant Group or the D&B Group, as applicable.
(f) Transfer of Agreements. Without limiting the generality of the
obligations set forth in Section 2.1(a):
(i) D&B hereby agrees that on or prior to the Distribution Date
or as soon as reasonably practicable thereafter, subject to the
limitations set forth in this Section 2.1(f), it will, and it will cause
each member of the D&B Group to, assign, transfer and convey (A) to the
appropriate member of the Cognizant Group all of D&B's or such member of
the D&B Group's respective right, title and interest in and to any and all
Cognizant Contracts, and (B) to the appropriate member of the ACNielsen
Group all of D&B's or such member of the D&B Group's respective right,
title and interest in and to any and all ACNielsen Contracts.
(ii) Cognizant hereby agrees that on or prior to the Distribution
Date or as soon as reasonably practicable thereafter, subject to the
limitations set forth in this Section 2.1(f), it will, and it will cause
each member of the Cognizant Group to, assign, transfer and convey (A) to
the appropriate member of the D&B Group all of Cognizant's or such member
of the Cognizant Group's respective right, title and interest in and to
any and all D&B Contracts, and (B) to the appropriate member of the
ACNielsen Group all of Cognizant's or such member of the Cognizant Group's
respective right, title and interest in and to any and all ACNielsen
Contracts.
(iii) ACNielsen hereby agrees that on or prior to the Distribution
Date or as soon as reasonably practicable thereafter, subject to the
limitations set forth in this Section 2.1(f), it will, and it will cause
each member of the ACNielsen Group to, assign, transfer and convey (A) to
the appropriate member of the D&B Group all of ACNielsen's or such member
of the ACNielsen Group's respective right, title and interest in and to
any and all D&B Contracts, and (B) to the appropriate member of the
Cognizant Group all of ACNielsen's or such member of the ACNielsen Group's
respective right, title and interest in and to any and all Cognizant
Contracts.
(iv) Subject to the provisions of this Section 2.1(f), any
agreement to which any of the parties hereto or any of their Subsidiaries
is a party that inures to the benefit of more than one of the D&B
Business, Cognizant Business and ACNielsen Business shall be assigned in
part so that each party shall be entitled to the rights and benefits
inuring to its business under such agreement.
24
(v) The assignee of any agreement assigned, in whole or in part,
hereunder (an "Assignee") shall assume and agree to pay, perform, and
fully discharge all obligations of the assignor under such agreement or,
in the case of a partial assignment under paragraph (f)(iv), such
Assignee's related portion of such obligations as determined in accordance
with the terms of the relevant agreement, where determinable on the face
thereof, and otherwise as determined in accordance with the practice of
the parties prior to the Distribution.
(vi) Notwithstanding anything in this Agreement to the contrary,
this Agreement shall not constitute an agreement to assign any agreement,
in whole or in part, or any rights thereunder if the agreement to assign
or attempt to assign, without the consent of a third party, would
constitute a breach thereof or in any way adversely affect the rights of
the assignor or Assignee thereof. Until such consent is obtained, or if an
attempted assignment thereof would be ineffective or would adversely
affect the rights of any party hereto so that the intended Assignee would
not, in fact, receive all such rights, the parties will cooperate with
each other in any arrangement designed to provide for the intended
Assignee the benefits of, and to permit the intended Assignee to assume
liabilities under, any such agreement.
(g) Consents. The parties hereto shall use their commercially
reasonable efforts to obtain required consents to transfer and/or assignment of
licenses, permits and authorizations of Governmental Authorities and of
agreements hereunder.
(h) Delivery of Shares to Agent. D&B shall deliver to the Agent the
share certificates representing the Cognizant Common Shares and the ACNielsen
Common Shares issued to D&B by Cognizant and ACNielsen, respectively, pursuant
to Section 2.1(b) and shall instruct the Agent to distribute, on or as soon as
practicable following the Distribution Date, such Common Shares to holders of
record of shares of D&B Common Stock on the Distribution Record Date as further
contemplated by the Information Statement and herein. Cognizant and ACNielsen
shall provide all share certificates that the Agent shall require in order to
effect the Distribution.
(i) Certain Liabilities. For purposes of this Agreement, including
Article III hereof, D&B agrees with each of Cognizant and ACNielsen that any and
all Liabilities arising from or based upon misstatements in or omissions from
the Form 10 filed by either such party shall be deemed to be D&B Liabilities and
not Cognizant Liabilities or ACNielsen Liabilities, as the case may be.
25
(j) Certain Contingencies.
(i) ACNielsen and Cognizant shall observe and comply with the
provisions of Schedule 2.1(j)(i) pursuant to which, under the
circumstances described therein, certain contributions to the capital of
ACNielsen may be made.
(ii) Cognizant shall be liable for a portion of the liabilities
related to certain prior business transactions to the extent and in the
circumstances described in Schedule 2.1(j)(ii).
(iii) (A) D&B and Cognizant agree that to the extent the aggregate
cash proceeds received by D&B upon the disposition of the businesses
known as Dun & Bradstreet Software, NCH Promotional Services and
American Credit Indemnity are higher or lower than the aggregate
amount set forth on Schedule 2.1(j)(iii)(A), 50% of any such excess
shall be deemed to be a Cognizant Asset and be payable by D&B to
Cognizant immediately upon the consummation of the disposition of
the last of such businesses remaining with D&B, and 50% of any such
deficit shall be deemed to be a Cognizant Liability and be payable
by Cognizant to D&B immediately upon the consummation of the
disposition of the last of such businesses remaining with D&B.
(B) In addition, Cognizant and D&B shall each be entitled to
receive 50% of the aggregate operating cash flow, if any, of each
such business from the Distribution Date to the date of the
disposition of such business (where operating cash flow shall be
determined by the accounting procedures that had been applied by D&B
prior to the Distribution for determining operating cash flow,
applied on a consistent basis), and shall each be liable for 50% of
any liabilities arising in connection with such disposition to the
extent such liabilities exceed the amount set forth in Schedule
2.1(j)(iii)(B).
(C) Cognizant shall have primary responsibility for marketing,
negotiating and consummating the disposition of the business known
as Dun & Bradstreet Software; Cognizant and ACNielsen shall have
primary responsibility for marketing, negotiating and consummating
the disposition of the business known as NCH Promotional Services;
and D&B shall have primary responsibility for marketing, negotiating
and consummating the disposition of the business known as American
Credit Indemnity. D&B shall enter into an agreement to sell the
business known as NCH Promotional Services on such terms as may be
recommended by Cognizant.
26
(iv) D&B and Cognizant shall be liable for the portions of
certain Liabilities described in Schedule 2.1(j)(iv) to the extent and in
circumstances described in such Schedule.
(v) If ACNielsen Company of Canada Limited ("ACN Canada") does
not receive C$ 13,675,000 from The D&B Companies of Canada, Ltd. ("D&B
Canada") with respect to amounts held in the accounts of D&B Canada
pending the final accounting for the restructuring of D&B's operations in
Canada by the Toronto office of Coopers & Xxxxxxx L.L.P., then D&B will
promptly pay ACNielsen an amount equal to the U.S. dollar equivalent of C$
13,675,000 less the amount received by ACN Canada from D&B Canada, and if
ACN-Canada receives more than C$ 13,675,000 from D&B Canada, then
ACNielsen will promptly pay D&B an amount equal to the U.S. dollar
equivalent of the amount received by ACN-Canada in excess of C$
13,675,000. For purposes of the foregoing, the U.S. dollar equivalent
shall be based on the rate published by the Wall Street Journal for
purchasing U.S. dollars with Canadian dollars on the date the final
accounting is made.
(vi) If D&B is required to pay an aggregate amount to discharge
the several categories of expenses set forth on Schedule 2.1 (j)(vi)
hereto in excess of the total estimated amount of such expenses as set
forth on such Schedule, then Cognizant shall be liable for 50% of any such
excess amount, provided, however, that Cognizant shall not be liable for
any expenses incurred by D&B after June 30, 1997, and shall only share in
the responsibility to pay such expenses if such expenses are incurred in
order to consummate the Distribution or the several transactions
contemplated by this Agreement or by any Ancillary Agreement.
(k) Matters Relating to Certain Partnerships.
(i) The interest in Duns Licensing Associates L.P. held by
members of the D&B Group will be retired prior to or as promptly as
practicable after the Distribution in exchange for (x) those assets of
Duns Licensing Associates L.P. that are currently licensed to members of
the D&B Group and (y) the stock of a subsidiary currently held by Duns
Licensing Associates L.P. all as more fully set forth in Schedule
2.1(k)(i). The parties also agree to take the further actions set forth on
Schedule 2.1(k)(i).
(ii) Prior to the Distribution Record Date, IMS America, Ltd.
shall withdraw as a partner of D&B Investors, L.P. (the "Partnership")
and, in connection with such withdrawal, shall receive from the
Partnership 800,000 shares of D&B Common Stock from the Partnership and a
warrant (the "Warrant") to purchase up to 3,000,000 shares of D&B Common
Stock. Cognizant agrees that it will not sell, and will not permit the
sale, to any non-affiliated
27
third-party of any of the D&B Common Stock so received from the
Partnership, the Warrant, any shares of D&B Common Stock received upon
exercise of the Warrant, or any shares of ACNielsen Common Stock received
as a result of being the holder of record of D&B Common Stock on the
Distribution Record Date. D&B agrees that Cognizant or any of its
Subsidiaries may at any time after the Distribution Date sell any of such
D&B Common Stock or the Warrant to D&B at the market value thereof on such
sale date (calculated as described below) by giving D&B written notice of
such proposed sale five business days in advance thereof. ACNielsen agrees
that Cognizant or any of its Subsidiaries may at any time after the
Distribution Date sell any of such ACNielsen Common Stock to ACNielsen at
the market value thereof on such sale date (calculated as described below)
by giving ACNielsen written notice of such proposed sale five business
days in advance thereof. Any such notice to D&B or ACNielsen shall be
irrevocable. For purposes of the foregoing, the market value of the D&B
Common Stock or the ACNielsen Common stock on any date on which any such
securities are to be sold pursuant hereto shall be equal to the average of
the closing prices therefore on the New York Stock Exchange on each of the
five trading days preceding such date, and the market value of the Warrant
on any date shall be equal to the amount determined by Xxxxxxx Xxxxx & Co.
based upon the Black-Scholes option-pricing model as the market value of
such Warrant.
(l) Other Transactions. On or prior to the Distribution Date, each
of D&B, Cognizant and ACNielsen shall consummate those other transactions in
connection with the Distribution that are contemplated by the ruling request
submissions by D&B to the Internal Revenue Service in respect of the ruling
granted on August 6, 1996, and not specifically referred to in subparagraphs
(a)-(k) above. After the Distribution Date, each of D&B, Cognizant and ACNielsen
will exercise good faith commercially reasonable efforts to consummate as
promptly as practicable all other transactions which must be consummated in
order fully to complete the Distribution and any of the transactions
contemplated hereby or by any of the Ancillary Agreements.
SECTION 2.2. Intercompany Accounts.
All intercompany receivables, payables and loans (other than
receivables, payables and loans otherwise specifically provided for hereunder or
under any Ancillary Agreement, including payables created or required hereby or
by any Ancillary Agreement), including, without limitation, in respect of any
cash balances, any cash balances representing deposited checks or drafts for
which only a provisional credit has been allowed or any cash held in any
centralized cash management system, (i) between any member of the Cognizant
Group, on the one hand, and any member of the D&B Group, on the other hand, (ii)
between any
28
member of the ACNielsen Group, on the one hand, and any member of the D&B Group,
on the other hand, or (iii) between any member of the Cognizant Group, on the
one hand, and any member of the ACNielsen Group, on the other hand, in each
case, which exist and are reflected in the accounting records of the relevant
parties as of October 31, 1996 or which arise on or after November 1, 1996 shall
be paid or settled in the ordinary course of business in a manner consistent
with the payment or settlement of similar accounts arising from transactions
with third parties.
SECTION 2.3. Cash Balances. In addition to any other obligations
hereunder or under any Ancillary Agreement or otherwise, on the Distribution
Date, D&B shall deliver, in immediately available funds, $62.0 million to
ACNielsen and $200.6 million to Cognizant. If, by October 31, 1996, any business
referred to in Section 2.1(j)(iii) has not been sold, the amount payable to
Cognizant pursuant to the preceding sentence shall be reduced by the amount of
cash expected to be received upon such sale, as set forth on Schedule
2.1(j)(iii)(A), and, if and when such business is actually sold, Cognizant shall
be entitled to the cash proceeds received upon such sale, subject, however, to
the adjustments required by Section 2.1(j)(iii).
SECTION 2.4. Assumption and Satisfaction of Liabilities. Except as
otherwise specifically set forth in any Ancillary Agreement, and subject to
Section 2.3 hereof, from and after the Effective Time, (i) D&B shall, and shall
cause each member of the D&B Group to, assume, pay, perform and discharge all
D&B Liabilities, (ii) Cognizant shall, and shall cause each member of the
Cognizant Group to, assume, pay, perform and discharge all Cognizant
Liabilities, and (iii) ACNielsen shall, and shall cause each member of the
ACNielsen Group to, assume, pay, perform and discharge all ACNielsen
Liabilities. To the extent reasonably requested to do so by another party
hereto, each party hereto agrees to sign such documents, in a form reasonably
satisfactory to such party, as may be reasonably necessary to evidence the
assumption of any Liabilities hereunder.
SECTION 2.5. Resignations. (a) Subject to Section 2.5(d), D&B shall
cause all its employees to resign, effective as of the Distribution Date, from
all positions as officers or directors of any member of the Cognizant Group in
which they serve, and Cognizant shall cause all its employees to resign,
effective as of the Effective Time, from all positions as officers or directors
of any members of the D&B Group in which they serve.
(b) Subject to Section 2.5(d), D&B shall cause all its employees to
resign, effective as of the Distribution Date, from all positions as officers or
directors of any member of the ACNielsen Group in which they serve, and
ACNielsen shall cause all its employees to resign, effective as of the Effective
Time,
29
from all positions as officers or directors of any members of the D&B Group in
which they serve.
(c) Subject to Section 2.5(d), ACNielsen shall cause all its
employees to resign, effective as of the Distribution Date, from all positions
as officers or directors of any member of the Cognizant Group in which they
serve, and Cognizant shall cause all its employees to resign, effective as of
the Effective Time, from all positions as officers or directors of any member of
the ACNielsen Group in which they serve.
(d) No person shall be required by any party hereto to resign from
any position or office with another party hereto if such person is disclosed in
the Information Statement as the person who is to hold such position or office
following the Distribution.
SECTION 2.6. Further Assurances. In case at any time after the
Effective Time any further action is reasonably necessary or desirable to carry
out the purposes of this Agreement and the Ancillary Agreements, the proper
officers of each party to this Agreement shall take all such necessary action.
Without limiting the foregoing, D&B, Cognizant and ACNielsen shall use their
commercially reasonable efforts promptly to obtain all consents and approvals,
to enter into all amendatory agreements and to make all filings and applications
that may be required for the consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements, including, without limitation, all
applicable governmental and regulatory filings.
SECTION 2.7. Limited Representations or Warranties. Each of the
parties hereto agrees that no party hereto is, in this Agreement or in any other
agreement or document contemplated by this Agreement or otherwise, making any
representation or warranty whatsoever, as to title or value of Assets being
transferred. It is also agreed that, notwithstanding anything to the contrary
otherwise expressly provided in the relevant Conveyancing and Assumption
Instrument, all Assets either transferred to or retained by the parties, as the
case may be, shall be "as is, where is" and that (subject to Section 2.6) the
party to which such Assets are to be transferred hereunder shall bear the
economic and legal risk that such party's or any of the Subsidiaries' title to
any such Assets shall be other than good and marketable and free from
encumbrances. Similarly, each party hereto agrees that, except as otherwise
expressly provided in the relevant Conveyancing and Assumption Instrument, no
party hereto is representing or warranting in any way that the obtaining of any
consents or approvals, the execution and delivery of any amendatory agreements
and the making of any filings or applications contemplated by this Agreement
will satisfy the provisions of any or all applicable agreements or the
requirements of any or all applicable laws or judgments, it being agreed that
the party to which any Assets are transferred shall
30
bear the economic and legal risk that any necessary consents or approvals are
not obtained or that any requirements of laws or judgments are not complied
with.
SECTION 2.8. Guarantees. (a) Except as otherwise specified in any
Ancillary Agreement, D&B, Cognizant and ACNielsen shall use their commercially
reasonable efforts to have, on or prior to the Distribution Date, or as soon as
practicable thereafter, any member of the D&B Group removed as guarantor of or
obligor for any Cognizant Liability or ACNielsen Liability, including, without
limitation, in respect of those guarantees set forth on Schedule 2.8(a) to the
extent that they relate to Cognizant Liabilities or ACNielsen Liabilities.
(b) Except as otherwise specified in any Ancillary Agreement, D&B,
Cognizant and ACNielsen shall use their commercially reasonable efforts to have,
on or prior to the Distribution Date, or as soon as practicable thereafter, any
member of the Cognizant Group removed as guarantor of or obligor for any D&B
Liability or ACNielsen Liability, including, without limitation, in respect of
those guarantees set forth on Schedule 2.8(b) to the extent that they relate to
D&B Liabilities or ACNielsen Liabilities.
(c) Except as otherwise specified in any Ancillary Agreement, D&B,
Cognizant and ACNielsen shall use their commercially reasonable efforts to have,
on or prior to the Distribution Date, or as soon as practicable thereafter, any
member of the ACNielsen Group removed as guarantor of or obligor for any D&B
Liability or Cognizant Liability, including, without limitation, in respect of
those guarantees set forth on Schedule 2.8(c) to the extent that they relate to
D&B Liabilities or Cognizant Liabilities.
(d) If D&B, Cognizant or ACNielsen is unable to obtain, or to cause
to be obtained, any such required removal as set forth in clauses (a)-(c) of
this Section 2.8, the applicable guarantor or obligor shall continue to be bound
as such and, unless not permitted by law or the terms thereof, the relevant
beneficiary shall or shall cause one of its Subsidiaries, as agent or
subcontractor for such guarantor or obligor to pay, perform and discharge fully
all the obligations or other liabilities of such guarantor or obligor thereunder
from and after the date hereof.
SECTION 2.9. Witness Services. At all times from and after the
Distribution Date, each of D&B, Cognizant and ACNielsen shall use their
commercially reasonable efforts to make available to the other, upon reasonable
written request, its and its Subsidiaries' officers, directors, employees and
agents as witnesses to the extent that (i) such persons may reasonably be
required in connection with the prosecution or defense of any Action in which
the requesting party may from time to time be involved and (ii) there is no
conflict in the Action between the
31
requesting party and D&B, Cognizant or ACNielsen, as applicable. A party
providing witness services to the other party under this Section shall be
entitled to receive from the recipient of such services, upon the presentation
of invoices therefor, payments for such amounts, relating to disbursements and
other out-of-pocket expenses (which shall be deemed to exclude the costs of
salaries and benefits of employees who are witnesses), as may be reasonably
incurred in providing such witness services.
SECTION 2.10. Certain Post-Distribution Transactions. (a)(i) D&B
shall comply and shall cause its Subsidiaries to comply with and otherwise not
take action inconsistent with each representation and statement made to the
Internal Revenue Service in connection with the request by D&B for a ruling
letter in respect of the Distribution as to certain tax aspects of the
Distribution and (ii) until two years after the Distribution Date, D&B will
maintain its status as a company engaged in the active conduct of a trade or
business, as defined in Section 355(b) of the Code.
(b)(i) Cognizant shall comply and shall cause its Subsidiaries to
comply with and otherwise not take action inconsistent with each representation
and statement made to the Internal Revenue Service in connection with the
request by D&B for a ruling letter in respect of the Distribution as to certain
tax aspects of the Distribution and (ii) until two years after the Distribution
Date, Cognizant will maintain its status as a company engaged in the active
conduct of a trade or business, as defined in Section 355(b) of the Code.
(c)(i) ACNielsen shall comply and shall cause its Subsidiaries to
comply with and otherwise not take action inconsistent with each representation
and statement made with respect to ACNielsen to the Internal Revenue Service in
connection with the request by D&B for a ruling letter in respect of the
Distribution as to certain tax aspects of the Distribution and (ii) until two
years after the Distribution Date, ACNielsen will maintain its status as a
company engaged in the active conduct of a trade or business, as defined in
Section 355(b) of the Code.
SECTION 2.11. Transfers Not Effected Prior to the Distribution;
Transfers Deemed Effective as of the Distribution Date. To the extent that any
transfers contemplated by this Article II shall not have been consummated on or
prior to the Distribution Date, the parties shall cooperate to effect such
transfers as promptly following the Distribution Date as shall be practicable.
Nothing herein shall be deemed to require the transfer of any Assets or the
assumption of any Liabilities which by their terms or operation of law cannot be
transferred; provided, however, that the parties hereto and their respective
Subsidiaries shall cooperate to seek to obtain any necessary consents or
approvals for the transfer of all Assets and Liabilities contemplated to be
transferred pursuant to this
32
Article II. In the event that any such transfer of Assets or Liabilities has not
been consummated, from and after the Distribution Date the party retaining such
Asset or Liability shall hold such Asset in trust for the use and benefit of the
party entitled thereto (at the expense of the party entitled thereto) or retain
such Liability for the account of the party by whom such Liability is to be
assumed pursuant hereto, as the case may be, and take such other action as may
be reasonably requested by the party to whom such Asset is to be transferred, or
by whom such Liability is to be assumed, as the case may be, in order to place
such party, insofar as is reasonably possible, in the same position as would
have existed had such Asset or Liability been transferred as contemplated
hereby. As and when any such Asset or Liability becomes transferable, such
transfer shall be effected forthwith. The parties agree that, as of the
Distribution Date, each party hereto shall be deemed to have acquired complete
and sole beneficial ownership over all of the Assets, together with all rights,
powers and privileges incident thereto, and shall be deemed to have assumed in
accordance with the terms of this Agreement all of the Liabilities, and all
duties, obligations and responsibilities incident thereto, which such party is
entitled to acquire or required to assume pursuant to the terms of this
Agreement.
SECTION 2.12. Conveyancing and Assumption Instruments. In connection
with the transfers of Assets and the assumptions of Liabilities contemplated by
this Agreement, the parties shall execute or cause to be executed by the
appropriate entities the Conveyancing and Assumption Instruments in
substantially the form contemplated hereby for transfers to be effected pursuant
to New York law or the laws of one of the other states of the United States or,
if not appropriate for a given transfer, and for transfers to be effected
pursuant to non-U.S. laws, in such other form as the parties shall reasonably
agree, including the transfer of real property with deeds as may be appropriate.
The transfer of capital stock shall be effected by means of delivery of stock
certificates and executed stock powers and notation on the stock record books of
the corporation or other legal entities involved, or by such other means as may
be required in any non- U.S. jurisdiction to transfer title to stock and, to the
extent required by applicable law, by notation on public registries.
SECTION 2.13. Ancillary Agreements. Prior to the Distribution Date,
each of D&B, Cognizant and ACNielsen shall enter into, and/or (where applicable)
shall cause members of their respective Groups to enter into, the Ancillary
Agreements and any other agreements in respect of the Distribution reasonably
necessary or appropriate in connection with the transactions contemplated hereby
and thereby.
SECTION 2.14. Corporate Names. (a) Except as otherwise specifically
provided in any Ancillary Agreement:
33
(i) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, Cognizant and
ACNielsen will each, at their own expense, remove (or, if necessary, on an
interim basis, cover up) any and all exterior signs and other identifiers
located on any of their respective property or premises or on the property
or premises used by them or their respective Subsidiaries (except property
or premises to be shared with D&B or its Subsidiaries after the
Distribution) which refer or pertain to D&B or which include the D&B name,
logo or other trademark or other D&B intellectual property;
(ii) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, Cognizant and
ACNielsen will, and will cause their respective Subsidiaries to, remove
from all letterhead, envelopes, invoices and other communications media of
any kind, all references to D&B, including the "Dun & Bradstreet" name,
logo and any other trademark or other D&B intellectual property (except
that neither Cognizant nor ACNielsen shall be required to take any such
action with respect to materials in the possession of customers), and
neither Cognizant, ACNielsen nor any of their respective Subsidiaries
shall use or display the "Dun & Bradstreet" name, logo or other trademarks
or D&B intellectual property without the prior written consent of D&B; and
(iii) as soon as reasonably practicable after the Distribution
Date, but in any event within six months thereafter, Cognizant and
ACNielsen will, and will cause their respective Subsidiaries to, change
their corporate names to the extent necessary to remove and eliminate any
reference to D&B, including the "Dun & Bradstreet" name; provided,
however, that notwithstanding the foregoing requirements of this Section
2.14(a), if Cognizant or ACNielsen has exercised good faith efforts to
comply with this clause (iii) but is unable, due to regulatory or other
circumstance beyond its control, to effect a corporate name change in
compliance with applicable law, then the relevant party or its Subsidiary
will not be deemed to be in breach hereof if it continues to exercise good
faith efforts to effectuate such name change and does effectuate such name
change within nine months after the Distribution Date, and, in such
circumstances, such party may continue to include in exterior signs and
other identifiers and in letterhead, envelopes, invoices and other
communications references to the name which includes references to D&B,
but only to the extent necessary to identify such party and only until
such party's corporate name can be changed to remove and eliminate such
references.
(b) Except as otherwise specifically provided in any Ancillary
Agreement:
34
(i) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, D&B and Cognizant will
each, at their own expense, remove (or, if necessary, on an interim basis,
cover up) any and all exterior signs and other identifiers located on any
of their respective property or premises owned or used by them or their
respective Subsidiaries (except property or premises to be shared with
ACNielsen or its Subsidiaries after the Distribution) which refer or
pertain to ACNielsen or which include the "ACNielsen" or "X.X. Xxxxxxx"
name, logo or other trademark or other ACNielsen intellectual property;
(ii) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, D&B and Cognizant will
each, and will cause their respective Subsidiaries to, remove from all
letterhead, envelopes, invoices and other communications media of any
kind, all references to ACNielsen, including the "ACNielsen" and "X.X.
Xxxxxxx" name, logo and any other trademark or other ACNielsen
intellectual property (except that neither D&B nor Cognizant shall be
required to take any such action with respect to materials in the
possession of customers), and neither D&B nor any of its Subsidiaries
shall use or display the "ACNielsen" or "X.X. Xxxxxxx" name, logo or other
trademarks or ACNielsen intellectual property without the prior written
consent of ACNielsen; and
(iii) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, D&B and Cognizant
will, and will cause their respective Subsidiaries to, change their
corporate names to the extent necessary to remove and eliminate any
reference to ACNielsen, including the "ACNielsen" or "X.X. Xxxxxxx" name;
provided, however, (i) that nothing in this Section 2.14(b) shall be
construed to modify any other agreement of the parties concerning
intellectual property set forth in any Ancillary Agreement, including any
provision thereof concerning the use of a name incorporating, referring to
or derived from the "Nielsen" name, and (ii) that notwithstanding the
foregoing requirements of this Section 2.14(b), if D&B or Cognizant has
exercised good faith efforts to comply with this clause (iii) but is
unable, due to regulatory or other circumstance beyond its control, to
effect a corporate name change in compliance with applicable law, then the
relevant party or its Subsidiary will not be deemed to be in breach hereof
if it continues to exercise good faith efforts to effectuate such name
change and does effectuate such name change within nine months after the
Distribution Date, and, in such circumstances, such party may continue to
include in exterior signs and other identifiers and in letterhead,
envelopes, invoices and other communications references to the name which
includes references to ACNielsen, but only to the extent necessary to
35
identify such party and only until such party's corporate name can be
changed to remove and eliminate such references.
(c) Each of D&B and ACNielsen acknowledges that they have no
interest in nor any right to use or display the Cognizant name or any Cognizant
trademark or intellectual property in any way, except to the extent specifically
set forth in the Intellectual Property Agreement and the TAM Master Agreement.
ARTICLE III. INDEMNIFICATION
SECTION 3.1. Indemnification by D&B. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, D&B shall indemnify, defend and hold harmless the Cognizant
Indemnitees and the ACNielsen Indemnitees from and against any and all
Indemnifiable Losses of the Cognizant Indemnitees and the ACNielsen Indemnitees,
respectively, arising out of, by reason of or otherwise in connection with the
D&B Liabilities or alleged D&B Liabilities, including any breach by D&B of any
provision of this Agreement or any Ancillary Agreement.
SECTION 3.2. Indemnification by Cognizant. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, Cognizant shall indemnify, defend and hold harmless the D&B
Indemnitees and the ACNielsen Indemnitees from and against any and all
Indemnifiable Losses of the D&B Indemnitees and the ACNielsen Indemnitees,
respectively, arising out of, by reason of or otherwise in connection with the
Cognizant Liabilities or alleged Cognizant Liabilities, including any breach by
Cognizant of any provision of this Agreement or any Ancillary Agreement.
SECTION 3.3. Indemnification by ACNielsen. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, ACNielsen shall indemnify, defend and hold harmless the D&B
Indemnitees and the Cognizant Indemnitees from and against any and all
Indemnifiable Losses of the D&B Indemnitees and the Cognizant Indemnitees,
respectively, arising out of, by reason of or otherwise in connection with the
ACNielsen Liabilities or alleged ACNielsen Liabilities, including any breach by
ACNielsen of any provision of this Agreement or any Ancillary Agreement.
SECTION 3.4. Procedures for Indemnification.
(a) Third Party Claims. If a claim or demand is made against an
ACNielsen Indemnitee, a Cognizant Indemnitee or a D&B Indemnitee (each, an
"Indemnitee") by any person who is not a party to this Agreement (a "Third Party
Claim") as to which such Indemnitee is entitled to indemnification pursuant to
this Agreement, such Indemnitee shall notify the party which is or may be
required pursuant to Section 3.1, Section 3.2 or Section 3.3
36
hereof to make such indemnification (the "Indemnifying Party") in writing, and
in reasonable detail, of the Third Party Claim promptly (and in any event within
15 business days) after receipt by such Indemnitee of written notice of the
Third Party Claim; provided, however, that failure to give such notification
shall not affect the indemnification provided hereunder except to the extent the
Indemnifying Party shall have been actually prejudiced as a result of such
failure (except that the Indemnifying Party shall not be liable for any expenses
incurred during the period in which the Indemnitee failed to give such notice).
Thereafter, the Indemnitee shall deliver to the Indemnifying Party, promptly
(and in any event within five business days) after the Indemnitee's receipt
thereof, copies of all notices and documents (including court papers) received
by the Indemnitee relating to the Third Party Claim.
If a Third Party Claim is made against an Indemnitee, the
Indemnifying Party shall be entitled to participate in the defense thereof and,
if it so chooses and acknowledges in writing its obligation to indemnify the
Indemnitee therefor, to assume the defense thereof with counsel selected by the
Indemnifying Party; provided that such counsel is not reasonably objected to by
the Indemnitee. Should the Indemnifying Party so elect to assume the defense of
a Third Party Claim, the Indemnifying Party shall, within 30 days (or sooner if
the nature of the Third Party Claim so requires), notify the Indemnitee of its
intent to do so, and the Indemnifying Party shall thereafter not be liable to
the Indemnitee for legal or other expenses subsequently incurred by the
Indemnitee in connection with the defense thereof; provided, that such
Indemnitee shall have the right to employ counsel to represent such Indemnitee
if, in such Indemnitee's reasonable judgment, a conflict of interest between
such Indemnitee and such Indemnifying Party exists in respect of such claim
which would make representation of both such parties by one counsel
inappropriate, and in such event the fees and expenses of such separate counsel
shall be paid by such Indemnifying Party. If the Indemnifying Party assumes such
defense, the Indemnitee shall have the right to participate in the defense
thereof and to employ counsel, subject to the proviso of the preceding sentence,
at its own expense, separate from the counsel employed by the Indemnifying
Party, it being understood that the Indemnifying Party shall control such
defense. The Indemnifying Party shall be liable for the fees and expenses of
counsel employed by the Indemnitee for any period during which the Indemnifying
Party has failed to assume the defense thereof (other than during the period
prior to the time the Indemnitee shall have given notice of the Third Party
Claim as provided above). If the Indemnifying Party so elects to assume the
defense of any Third Party Claim, all of the Indemnitees shall cooperate with
the Indemnifying Party in the defense or prosecution thereof, including by
providing or causing to be provided, Records and witnesses as soon as reasonably
practicable after receiving any request therefor from or on behalf of the
Indemnifying Party.
37
If the Indemnifying Party acknowledges in writing responsibility for
a Third Party Claim, then in no event will the Indemnitee admit any liability
with respect to, or settle, compromise or discharge, any Third Party Claim
without the Indemnifying Party's prior written consent; provided, however, that
the Indemnitee shall have the right to settle, compromise or discharge such
Third Party Claim without the consent of the Indemnifying Party if the
Indemnitee releases the Indemnifying Party from its indemnification obligation
hereunder with respect to such Third Party Claim and such settlement, compromise
or discharge would not otherwise adversely affect the Indemnifying Party. If the
Indemnifying Party acknowledges in writing liability for a Third Party Claim,
the Indemnitee will agree to any settlement, compromise or discharge of a Third
Party Claim that the Indemnifying Party may recommend and that by its terms
obligates the Indemnifying Party to pay the full amount of the liability in
connection with such Third Party Claim and releases the Indemnitee completely in
connection with such Third Party Claim and that would not otherwise adversely
affect the Indemnitee; provided, however, that the Indemnitee may refuse to
agree to any such settlement, compromise or discharge if the Indemnitee agrees
that the Indemnifying Party's indemnification obligation with respect to such
Third Party Claim shall not exceed the amount that would be required to be paid
by or on behalf of the Indemnifying Party in connection with such settlement,
compromise or discharge. If an Indemnifying Party elects not to assume the
defense of a Third Party Claim, or fails to notify an Indemnitee of its election
to do so as provided herein, such Indemnitee may compromise, settle or defend
such Third Party Claim.
Notwithstanding the foregoing, the Indemnifying Party shall not be
entitled to assume the defense of any Third Party Claim (and shall be liable for
the fees and expenses of counsel incurred by the Indemnitee in defending such
Third Party Claim) if the Third Party Claim seeks an order, injunction or other
equitable relief or relief for other than money damages against the Indemnitee
which the Indemnitee reasonably determines, after conferring with its counsel,
cannot be separated from any related claim for money damages. If such equitable
relief or other relief portion of the Third Party Claim can be so separated from
that for money damages, the Indemnifying Party shall be entitled to assume the
defense of the portion relating to money damages.
(b) In the event of payment by an Indemnifying Party to any
Indemnitee in connection with any Third-Party Claim, such Indemnifying Party
shall be subrogated to and shall stand in the place of such Indemnitee as to any
events or circumstances in respect of which such Indemnitee may have any right
or claim relating to such Third-Party Claim against any claimant or plaintiff
asserting such Third-Party Claim. Such Indemnitee shall cooperate with such
Indemnifying Party in a reasonable manner, and at the cost and expense of such
Indemnifying Party, in prosecuting any subrogated right or claim.
38
(c) The remedies provided in this Article III shall be cumulative
and shall not preclude assertion by any Indemnitee of any other rights or the
seeking of any and all other remedies against any Indemnifying Party.
SECTION 3.5. Indemnification Payments. Indemnification required by
this Article III shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received or
loss, liability, claim, damage or expense is incurred.
ARTICLE IV. ACCESS TO INFORMATION
SECTION 4.1. Provision of Corporate Records.
(a) Other than in circumstances in which indemnification is sought
pursuant to Article III (in which event the provisions of such Article will
govern), after the Distribution Date, upon the prior written request by
Cognizant or ACNielsen for specific and identified agreements, documents, books,
records or files (collectively, "Records") which relate to (x) Cognizant or
ACNielsen or the conduct of the Cognizant Business or ACNielsen Business, as the
case may be, up to the Effective Time, or (y) any Ancillary Agreement to which
D&B and Cognizant and/or ACNielsen are parties, as applicable, D&B shall
arrange, as soon as reasonably practicable following the receipt of such
request, for the provision of appropriate copies of such Records (or the
originals thereof if the party making the request has a reasonable need for such
originals) in the possession or control of D&B or any of its Subsidiaries, but
only to the extent such items are not already in the possession or control of
the requesting party.
(b) Other than in circumstances in which indemnification is sought
pursuant to Article III (in which event the provisions of such Article will
govern), after the Distribution Date, upon the prior written request by D&B or
ACNielsen for specific and identified Records which relate to (x) D&B or
ACNielsen or the conduct of the D&B Business or the ACNielsen Business, as the
case may be, up to the Effective Time, or (y) any Ancillary Agreement to which
Cognizant and D&B and/or ACNielsen are parties, as applicable, Cognizant shall
arrange, as soon as reasonably practicable following the receipt of such
request, for the provision of appropriate copies of such Records (or the
originals thereof if the party making the request has a reasonable need for such
originals) in the possession or control of Cognizant or any of its Subsidiaries,
but only to the extent such items are not already in the possession or control
of the requesting party.
(c) Other than in circumstances in which indemnification is sought
pursuant to Article III (in which event the provisions of such Article will
govern), after the
39
Distribution Date, upon the prior written request by D&B or Cognizant for
specific and identified Records which relate to D&B or Cognizant or the conduct
of the D&B Business or the Cognizant Business, as the case may be, up to the
Effective Time, or any Ancillary Agreement to which ACNielsen and D&B and/or
Cognizant are parties, as applicable, ACNielsen shall arrange, as soon as
reasonably practicable following the receipt of such request, for the provision
of appropriate copies of such Records (or the originals thereof if the party
making the request has a reasonable need for such originals) in the possession
or control of ACNielsen or any of its Subsidiaries, but only to the extent such
items are not already in the possession or control of the requesting party.
SECTION 4.2. Access to Information. Other than in circumstances in
which indemnification is sought pursuant to Article III (in which event the
provisions of such Article will govern), from and after the Distribution Date,
each of D&B, Cognizant and ACNielsen shall afford to the other and its
authorized accountants, counsel and other designated representatives reasonable
access during normal business hours, subject to appropriate restrictions for
classified, privileged or confidential information, to the personnel,
properties, books and records of such party and its Subsidiaries insofar as such
access is reasonably required by the other party and relates to (x) such other
party or the conduct of its business prior to the Effective Time or (y) any
Ancillary Agreement to which each of the party requesting such access and the
party requested to grant such access are parties.
SECTION 4.3. Reimbursement; Other Matters. Except to the extent
otherwise contemplated by any Ancillary Agreement, a party providing Records or
access to information to the other party under this Article IV shall be entitled
to receive from the recipient, upon the presentation of invoices therefor,
payments for such amounts, relating to supplies, disbursements and other
out-of-pocket expenses, as may be reasonably incurred in providing such Records
or access to information.
SECTION 4.4. Confidentiality. Each of (i) D&B and its Subsidiaries,
(ii) Cognizant and its Subsidiaries and (iii) ACNielsen and its Subsidiaries
shall not use or permit the use of (without the prior written consent of the
other) and shall keep, and shall cause its consultants and advisors to keep,
confidential all information concerning the other parties in its possession, its
custody or under its control (except to the extent that (A) such information has
been in the public domain through no fault of such party or (B) such information
has been later lawfully acquired from other sources by such party or (C) this
Agreement or any other Ancillary Agreement or any other agreement entered into
pursuant hereto permits the use or disclosure of such information) to the extent
such information (w) relates to or was acquired during the period up to the
Effective Time, (x) relates to any Ancillary Agreement, (y) is
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obtained in the course of performing services for the other party pursuant to
any Ancillary Agreement, or (z) is based upon or is derived from information
described in the preceding clauses (w), (x) or (y), and each party shall not
(without the prior written consent of the other) otherwise release or disclose
such information to any other person, except such party's auditors and
attorneys, unless compelled to disclose such information by judicial or
administrative process or unless such disclosure is required by law and such
party has used commercially reasonable efforts to consult with the other
affected party or parties prior to such disclosure.
SECTION 4.5. Privileged Matters. The parties hereto recognize that
legal and other professional services that have been and will be provided prior
to the Distribution Date have been and will be rendered for the benefit of each
of the members of the D&B Group, the members of the Cognizant Group, and the
members of the ACNielsen Group, and that each of the members of the D&B Group,
the members of the Cognizant Group, and the members of the ACNielsen Group
should be deemed to be the client for the purposes of asserting all privileges
which may be asserted under applicable law. To allocate the interests of each
party in the information as to which any party is entitled to assert a
privilege, the parties agree as follows:
(a) D&B shall be entitled, in perpetuity, to control the assertion
or waiver of all privileges in connection with privileged information which
relates solely to the D&B Business, whether or not the privileged information is
in the possession of or under the control of D&B, Cognizant or ACNielsen. D&B
shall also be entitled, in perpetuity, to control the assertion or waiver of all
privileges in connection with privileged information that relates solely to the
subject matter of any claims constituting D&B Liabilities, now pending or which
may be asserted in the future, in any lawsuits or other proceedings initiated
against or by D&B, whether or not the privileged information is in the
possession of or under the control of D&B, Cognizant or ACNielsen.
(b) Cognizant shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the Cognizant Business, whether or not the privileged
information is in the possession of or under the control of D&B, Cognizant or
ACNielsen. Cognizant shall also be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the subject matter of any claims constituting Cognizant
Liabilities, now pending or which may be asserted in the future, in any lawsuits
or other proceedings initiated against or by Cognizant, whether or not the
privileged information is in the possession of Cognizant or under the control of
D&B, Cognizant or ACNielsen.
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(c) ACNielsen shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the ACNielsen Business, whether or not the privileged
information is in the possession of or under the control of D&B, Cognizant or
ACNielsen. ACNielsen shall also be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the subject matter of any claims constituting ACNielsen
Liabilities, now pending or which may be asserted in the future, in any lawsuits
or other proceedings initiated against or by ACNielsen, whether or not the
privileged information is in the possession of ACNielsen or under the control of
D&B, Cognizant or ACNielsen.
(d) The parties hereto agree that they shall have a shared
privilege, with equal right to assert or waive, subject to the restrictions in
this Section 4.5, with respect to all privileges not allocated pursuant to the
terms of Sections 4.5(a), (b) and (c). All privileges relating to any claims,
proceedings, litigation, disputes, or other matters which involve two or more of
D&B, Cognizant or ACNielsen in respect of which two or more of such parties
retain any responsibility or liability under this Agreement, shall be subject to
a shared privilege among them.
(e) No party hereto may waive any privilege which could be asserted
under any applicable law, and in which any other party hereto has a shared
privilege, without the consent of the other party, except to the extent
reasonably required in connection with any litigation with third-parties or as
provided in subsection (f) below. Consent shall be in writing, or shall be
deemed to be granted unless written objection is made within twenty (20) days
after notice upon the other party requesting such consent.
(f) In the event of any litigation or dispute between or among any
of the parties hereto, any party and a Subsidiary of another party hereto, or a
Subsidiary of one party hereto and a Subsidiary of another party hereto, either
such party may waive a privilege in which the other party has a shared
privilege, without obtaining the consent of the other party, provided that such
waiver of a shared privilege shall be effective only as to the use of
information with respect to the litigation or dispute between the relevant
parties and/or their Subsidiaries, and shall not operate as a waiver of the
shared privilege with respect to third parties.
(g) If a dispute arises between or among the parties hereto or their
respective Subsidiaries regarding whether a privilege should be waived to
protect or advance the interest of any party, each party agrees that it shall
negotiate in good faith, shall endeavor to minimize any prejudice to the rights
of the other parties, and shall not unreasonably withhold consent to any request
for waiver by another party. Each party hereto
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specifically agrees that it will not withhold consent to waiver for any purpose
except to protect its own legitimate interests.
(h) Upon receipt by any party hereto or by any Subsidiary thereof of
any subpoena, discovery or other request which arguably calls for the production
or disclosure of information subject to a shared privilege or as to which
another party has the sole right hereunder to assert a privilege, or if any
party obtains knowledge that any of its or any of its Subsidiaries' current or
former directors, officers, agents or employees have received any subpoena,
discovery or other requests which arguably calls for the production or
disclosure of such privileged information, such party shall promptly notify the
other party or parties of the existence of the request and shall provide the
other party or parties a reasonable opportunity to review the information and to
assert any rights it or they may have under this Section 4.5 or otherwise to
prevent the production or disclosure of such privileged information.
(i) The transfer of all Records and other information pursuant to
this Agreement is made in reliance on the agreement of D&B, Cognizant and
ACNielsen, as set forth in Sections 4.4 and 4.5, to maintain the confidentiality
of privileged information and to assert and maintain all applicable privileges.
The access to information being granted pursuant to Sections 4.1 and 4.2 hereof,
the agreement to provide witnesses and individuals pursuant to Sections 2.9 and
3.4 hereof, the furnishing of notices and documents and other cooperative
efforts contemplated by Section 3.4 hereof, and the transfer of privileged
information between and among the parties and their respective Subsidiaries
pursuant to this Agreement shall not be deemed a waiver of any privilege that
has been or may be asserted under this Agreement or otherwise.
SECTION 4.6. Ownership of Information. Any information owned by one
party or any of its Subsidiaries that is provided to a requesting party pursuant
to Article III or this Article IV shall be deemed to remain the property of the
providing party. Unless specifically set forth herein, nothing contained in this
Agreement shall be construed as granting or conferring rights of license or
otherwise in any such information.
SECTION 4.7. Limitation of Liability. (a) No party shall have any
liability to any other party in the event that any information exchanged or
provided pursuant to this Agreement which is an estimate or forecast, or which
is based on an estimate or forecast, is found to be inaccurate.
(b) No party or any Subsidiary thereof shall have any liability or
claim against any other party or any Subsidiary of any other party based upon,
arising out of or resulting from any agreement, arrangement, course of dealing
or understanding existing on or prior to the Distribution Date (other than this
43
Agreement or any Ancillary Agreement or any agreement entered into in connection
herewith or in order to consummate the transactions contemplated hereby or
thereby), unless such agreement, arrangement, course of dealing or understanding
is listed on Schedule 4.7(b) hereto, and any such liability or claim, whether or
not in writing, which is not reflected on such Schedule, is hereby irrevocably
cancelled, released and waived.
SECTION 4.8. Other Agreements Providing for Exchange of Information.
The rights and obligations granted under this Article IV are subject to any
specific limitations, qualifications or additional provisions on the sharing,
exchange or confidential treatment of information set forth in any Ancillary
Agreement.
ARTICLE V. ADMINISTRATIVE SERVICES
SECTION 5.1. Performance of Services. Beginning on the Distribution
Date, each party will provide, or cause one or more of its Subsidiaries to
provide, to the other party and its Subsidiaries such services on such terms as
may be set forth in the Transition Services Agreement. Except as otherwise set
forth in the Transition Services Agreement or any Schedule thereto, the party
that is to provide the services (the "Provider") will use (and will cause its
Subsidiaries to use) commercially reasonable efforts to provide such services to
the other party (the "Recipient") and its Subsidiaries in a satisfactory and
timely manner and as further specified in such Transition Services Agreement.
SECTION 5.2. Independence. Unless otherwise agreed in writing, all
employees and representatives of the Provider providing the scheduled services
to the Recipient will be deemed for purposes of all compensation and employee
benefits matters to be employees or representatives of the Provider and not
employees or representatives of the Recipient. In performing such services, such
employees and representatives will be under the direction, control and
supervision of the Provider (and not the Recipient) and the Provider will have
the sole right to exercise all authority with respect to the employment
(including, without limitation, termination of employment), assignment and
compensation of such employees and representatives.
SECTION 5.3. Non-exclusivity. Nothing in this Agreement precludes
any party from obtaining, in whole or in part, services of any nature that may
be obtainable from the other parties from its own employees or from providers
other than the other parties.
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ARTICLE VI. DISPUTE RESOLUTION
SECTION 6.1. Negotiation. In the event of a 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 or the transactions
contemplated hereby, including, without limitation, any claim based on contract,
tort, statute or constitution (but excluding any controversy, dispute or claim
arising out of any agreement relating to the use or lease of real property if
any third party is a party to such controversy, dispute or claim) (collectively,
"Agreement Disputes"), the general counsels of the relevant parties shall
negotiate in good faith for a reasonable period of time to settle such Agreement
Dispute, provided such reasonable period shall not, unless otherwise agreed by
the parties in writing, exceed 30 days from the time the relevant parties began
such negotiations; provided further that in the event of any arbitration in
accordance with Section 6.2 hereof, the relevant parties shall not assert the
defenses of statute of limitations and laches arising for the period beginning
after the date the relevant parties began negotiations hereunder, and any
contractual time period or deadline under this Agreement or any Ancillary
Agreement to which such Agreement Dispute relates shall not be deemed to have
passed until such Agreement Dispute has been resolved.
SECTION 6.2. Arbitration. If after such reasonable period such
general counsels are unable to settle such Agreement Dispute (and in any event,
unless otherwise agreed in writing by the relevant parties, after 60 days have
elapsed from the time the relevant parties began such negotiations), such
Agreement Dispute shall be determined, at the request of any relevant party, by
arbitration conducted in New York City, before and in accordance with the
then-existing International Arbitration Rules of the American Arbitration
Association (the "Rules"). In any dispute between two of the parties hereto, the
number of arbitrators shall be three, and in any dispute among all three parties
hereto, the number of arbitrators shall be one. Any judgment or award rendered
by the arbitrator shall be final, binding and nonappealable (except upon grounds
specified in 9 U.S.C. ss.10(a) as in effect on the date hereof). If the parties
are unable to agree on an arbitrator or arbitrators, the arbitrator or
arbitrators shall be selected in accordance with the Rules. Any controversy
concerning whether an Agreement Dispute is an arbitrable Agreement Dispute,
whether arbitration has been waived, whether an assignee of this Agreement is
bound to arbitrate, or as to the interpretation of enforceability of this
Article VI shall be determined by the arbitrator or arbitrators. In resolving
any dispute, the parties intend that the arbitrator or arbitrators apply the
substantive laws of the State of New York, without regard to the choice of law
principles thereof. The parties intend that the provisions to arbitrate set
forth herein be valid, enforceable and irrevocable. The
45
undersigned agree to comply with any award made in any such arbitration
proceedings that has become final in accordance with the Rules and agree to
enforcement of or entry of judgment upon such award, by any court of competent
jurisdiction, including (a) the Supreme Court of the State of New York, New York
County, or (b) the United States District Court for the Southern District of New
York, in accordance with Section 8.18 hereof. The arbitrator or arbitrators
shall be entitled, if appropriate, to award any remedy in such proceedings,
including, without limitation, monetary damages, specific performance and all
other forms of legal and equitable relief; provided, however, the arbitrator or
arbitrators shall not be entitled to award punitive damages. Without limiting
the provisions of the Rules, unless otherwise agreed in writing by or among the
relevant parties or permitted by this Agreement, the undersigned shall keep
confidential all matters relating to the arbitration or the award, provided such
matters may be disclosed (i) to the extent reasonably necessary in any
proceeding brought to enforce the award or for entry of a judgment upon the
award and (ii) to the extent otherwise required by law. Notwithstanding Article
32 of the Rules, the party other than the prevailing party in the arbitration
shall be responsible for all of the costs of the arbitration, including legal
fees and other costs specified by such Article 32. Nothing contained herein is
intended to or shall be construed to prevent any party, in accordance with
Article 22(3) of the Rules or otherwise, from applying to any court of competent
jurisdiction for interim measures or other provisional relief in connection with
the subject matter of any Agreement Disputes.
SECTION 6.3. Continuity of Service and Performance. Unless otherwise
agreed in writing, the parties will continue to provide service and honor all
other commitments under this Agreement and each Ancillary Agreement during the
course of dispute resolution pursuant to the provisions of this Article VI with
respect to all matters not subject to such dispute, controversy or claim.
SECTION 6.4. Indemnity and Joint Defense Agreement. In no event or
circumstances will any arbitrator or arbitrators appointed hereunder have any
right, authority or jurisdiction to determine the "ACN Maximum Amount" under the
Indemnity and Joint Defense Agreement, or otherwise relating to any dispute
which may arise in connection with Article II thereof, or to prevent, delay or
otherwise interfere with such dispute arbitration or determination.
ARTICLE VII. INSURANCE
SECTION 7.1. Policies and Rights Included Within Assets. (a) The
Cognizant Assets shall include (i) any and all rights of an insured party under
each of the Cognizant Shared Policies, subject to the terms of such Cognizant
Shared Policies and any limitations or obligations of Cognizant contemplated by
46
this Article VII, specifically including rights of indemnity and the right to be
defended by or at the expense of the insurer, with respect to all claims, suits,
actions, proceedings, injuries, losses, liabilities, damages and expenses
incurred or claimed to have been incurred prior to the Distribution Date by any
party in or in connection with the conduct of the Cognizant Business or, to the
extent any claim is made against Cognizant or any of its Subsidiaries, the
conduct of the D&B Business or the ACNielsen Business, and which claims, suits,
actions, proceedings, injuries, losses, liabilities, damages and expenses may
arise out of an insured or insurable occurrence under one or more of such
Cognizant Shared Policies; provided, however, that nothing in this clause shall
be deemed to constitute (or to reflect) an assignment of such Cognizant Shared
Policies, or any of them, to Cognizant, and (ii) the Cognizant Policies.
(b) The ACNielsen Assets shall include (i) any and all rights of an
insured party under each of the ACNielsen Shared Policies, subject to the terms
of such ACNielsen Shared Policies and any limitations or obligations of
ACNielsen contemplated by this Article VII, specifically including rights of
indemnity and the right to be defended by or at the expense of the insurer, with
respect to all claims, suits, actions, proceedings, injuries, losses,
liabilities, damages and expenses incurred or claimed to have been incurred
prior to the Distribution Date by any party in or in connection with the conduct
of the ACNielsen Business or, to the extent any claim is made against ACNielsen
or any of its Subsidiaries, the conduct of the D&B Business or the Cognizant
Business, and which claims, suits, actions, proceedings, injuries, losses,
liabilities, damages and expenses may arise out of an insured or insurable
occurrence under one or more of such ACNielsen Shared Policies; provided,
however, that nothing in this clause shall be deemed to constitute (or to
reflect) an assignment of such ACNielsen Shared Policies, or any of them, to
ACNielsen, and (ii) the ACNielsen Policies.
SECTION 7.2. Post-Distribution Date Claims. (a) If, subsequent to
the Distribution Date, any person shall assert a claim against Cognizant or any
of its Subsidiaries (including, without limitation, where Cognizant or its
Subsidiaries are joint defendants with other persons) with respect to any claim,
suit, action, proceeding, injury, loss, liability, damage or expense incurred or
claimed to have been incurred prior to the Distribution Date in or in connection
with the conduct of the Cognizant Business or, to the extent any claim is made
against Cognizant or any of its Subsidiaries (including, without limitation,
where Cognizant or its Subsidiaries are joint defendants with other persons),
the conduct of the D&B Business or the ACNielsen Business, and which claim,
suit, action, proceeding, injury, loss, liability, damage or expense may arise
out of an insured or insurable occurrence under one or more of the Cognizant
Shared Policies, D&B shall, at the time such claim is asserted, to the extent
any such Policy may require that Insurance Proceeds thereunder be collected
directly by the named
47
insured or anyone other than the party against whom the Insured Claim is
asserted, be deemed to designate, without need of further documentation,
Cognizant as the agent and attorney-in-fact to assert and to collect any related
Insurance Proceeds under such Cognizant Shared Policy, and shall further be
deemed to assign, without need of further documentation, to Cognizant any and
all rights of an insured party under such Cognizant Shared Policy with respect
to such asserted claim, specifically including rights of indemnity and the right
to be defended by or at the expense of the insurer and the right to any
applicable Insurance Proceeds thereunder; provided, however, that nothing in
this Section 7.2(a) shall be deemed to constitute (or to reflect) an assignment
of the Cognizant Shared Policies, or any of them, to Cognizant.
(b) If, subsequent to the Distribution Date, any person shall assert
a claim against ACNielsen or any of its Subsidiaries (including, without
limitation, where ACNielsen or its Subsidiaries are joint defendants with other
persons) with respect to any claim, suit, action, proceeding, injury, loss,
liability, damage or expense incurred or claimed to have been incurred prior to
the Distribution Date in or in connection with the conduct of the ACNielsen
Business or, to the extent any claim is made against ACNielsen or any of its
Subsidiaries (including, without limitation, where ACNielsen or its Subsidiaries
are joint defendants with other persons), the conduct of the D&B Business or the
Cognizant Business, and which claim, suit, action, proceeding, injury, loss,
liability, damage or expense may arise out of an insured or insurable occurrence
under one or more of the ACNielsen Shared Policies, D&B shall, at the time such
claim is asserted, to the extent such Policy may require that Insurance Proceeds
thereunder be collected directly by the named insured or anyone other than the
party against whom the Insured Claim is asserted, be deemed to designate,
without need of further documentation, ACNielsen as the agent and
attorney-in-fact to assert and to collect any related Insurance Proceeds under
such ACNielsen Shared Policy, and shall further be deemed to assign, without
need of further documentation, to ACNielsen any and all rights of an insured
party under such ACNielsen Shared Policy with respect to such asserted claim,
specifically including rights of indemnity and the right to be defended by or at
the expense of the insurer and the right to any applicable Insurance Proceeds
thereunder; provided, however, that nothing in this Section 7.2(b) shall be
deemed to constitute (or to reflect) an assignment of the ACNielsen Shared
Policies to ACNielsen.
SECTION 7.3. Administration; Other Matters. (a) Administration.
Except as otherwise provided in Section 7.2 hereof, from and after the
Distribution Date, D&B shall be responsible for (i) Insurance Administration of
the Shared Policies and (ii) Claims Administration under such Shared Policies
with respect to D&B Liabilities, Cognizant Liabilities and ACNielsen
Liabilities; provided that the retention of such responsibilities by D&B is in
no way intended to limit, inhibit
48
or preclude any right to insurance coverage for any Insured Claim of a named
insured under such Policies as contemplated by the terms of this Agreement; and
provided further that D&B's retention of the administrative responsibilities for
the Shared Policies shall not relieve the party submitting any Insured Claim of
the primary responsibility for reporting such Insured Claim accurately,
completely and in a timely manner or of such party's authority to settle any
such Insured Claim within any period permitted or required by the relevant
Policy. D&B may discharge its administrative responsibilities under this Section
7.3 by contracting for the provision of services by independent parties. Each of
the parties hereto shall administer and pay any costs relating to defending its
respective Insured Claims under Shared Policies to the extent such defense costs
are not covered under such Policies and shall be responsible for obtaining or
reviewing the appropriateness of releases upon settlement of its respective
Insured Claims under Shared Policies. The disbursements, out-of-pocket expenses
and direct and indirect costs of employees or agents of D&B relating to Claims
Administration and Insurance Administration contemplated by this Section 7.3(a)
shall be treated in accordance with the terms of the Transition Services
Agreement, if still in effect with respect to insurance and risk management, or,
if the Transition Services Agreement shall no longer be in effect with respect
to insurance and risk management, then each of D&B, Cognizant and ACNielsen
shall be responsible for its own Claims Administration and Insurance
Administration.
(b) Exceeding Policy Limits.
(i) Where Cognizant Liabilities or ACNielsen Liabilities, as
applicable, are specifically covered under the same Shared Policy for
periods prior to the Distribution Date, or covering claims made after the
Distribution Date with respect to an occurrence prior to the Distribution
Date, then from and after the Distribution Date Cognizant and ACNielsen
may claim coverage for Insured Claims under such Shared Policy as and to
the extent that such insurance is available up to the full extent of the
applicable limits of liability of such Shared Policy (and may receive any
Insurance Proceeds with respect thereto as contemplated by Section 7.2 or
Section 7.3(c) hereof), subject to the terms of this Section 7.3.
(ii) Except as set forth in this Section 7.3(b), D&B, Cognizant
and ACNielsen shall not be liable to one another for claims not reimbursed
by insurers for any reason not within the control of D&B, Cognizant or
ACNielsen, as the case may be, including, without limitation, coinsurance
provisions, deductibles, quota share deductibles, self-insured retentions,
bankruptcy or insolvency of an insurance carrier, Shared Policy
limitations or restrictions, any coverage disputes, any failure to timely
claim by D&B, Cognizant or ACNielsen or any defect in such claim or its
49
processing, provided that D&B shall be responsible for the amount of the
difference, if any, between the deductible set forth in any Shared Policy
and the deductible allocable to Cognizant and/or ACNielsen as set forth in
Schedule 7.3(b) hereto.
(c) Allocation of Insurance Proceeds. Except as otherwise provided
in Section 7.2, Insurance Proceeds received with respect to claims, costs and
expenses under the Shared Policies shall be paid to D&B, which shall thereafter
administer the Shared Policies by paying the Insurance Proceeds, as appropriate,
to D&B with respect to D&B Liabilities, to Cognizant with respect to Cognizant
Liabilities and to ACNielsen with respect to the ACNielsen Liabilities. Payment
of the allocable portions of indemnity costs of Insurance Proceeds resulting
from such Policies will be made by D&B to the appropriate party upon receipt
from the insurance carrier. In the event that the aggregate limits on any Shared
Policies are exceeded by the aggregate of outstanding Insured Claims by two or
more of the relevant parties hereto, such parties agree to allocate the
Insurance Proceeds received thereunder based upon their respective percentage of
the total of their bona fide claims which were covered under such Shared Policy
(their "allocable portion of Insurance Proceeds"), and any party who has
received Insurance Proceeds in excess of such party's allocable portion of
Insurance Proceeds shall pay to the other party or parties the appropriate
amount so that each party will have received its allocable portion of Insurance
Proceeds pursuant hereto. Each of the parties agrees to use commercially
reasonable efforts to maximize available coverage under those Shared Policies
applicable to it, and to take all commercially reasonable steps to recover from
all other responsible parties in respect of an Insured Claim to the extent
coverage limits under a Shared Policy have been exceeded or would be exceeded as
a result of such Insured Claim.
(d) Allocation of Deductibles. In the event that two or more parties
have bona fide claims under any Shared Policy for which a deductible is payable,
the parties agree that the aggregate amount of the deductible paid shall be
borne by the parties in the same proportion which the Insurance Proceeds
received by each such party bears to the total Insurance Proceeds received under
the applicable Shared Policy (their "allocable share of the deductible"), and
any party who has paid more than such share of the deductible shall be entitled
to receive from any other party or parties an appropriate amount so that each
party has borne its allocable share of the deductible pursuant hereto. For
purposes of this paragraph 7.3(d), the amount of the relevant deductible under
any Shared Policy shall be that set forth in Schedule 7.3(b) hereto.
(e) Effective as of the Distribution Date, Cognizant and ACNielsen
shall be responsible for the full amount of the
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deductible for workers' compensation, general liability and automobile liability
claims as set forth in Schedule 7.3(e).
SECTION 7.4. Agreement for Waiver of Conflict and Shared Defense. In
the event that Insured Claims of more than one of the parties hereto exist
relating to the same occurrence, the relevant parties shall jointly defend and
waive any conflict of interest necessary to the conduct of the joint defense.
Nothing in this Article VII shall be construed to limit or otherwise alter in
any way the obligations of the parties to this Agreement, including those
created by this Agreement, by operation of law or otherwise.
SECTION 7.5. Cooperation. The parties agree to use their
commercially reasonable efforts to cooperate with respect to the various
insurance matters contemplated by this Agreement.
ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. Complete Agreement; Construction. This Agreement,
including the Exhibits and Schedules, and the Ancillary Agreements 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 Section 2.1(j)(i), Section 2.1(j)(ii), Section 2.1(j)(iv), Section
2.7, Section 4.5 and Article VI, which shall prevail over any inconsistent or
conflicting provisions in any Ancillary Agreement other than the Indemnity and
Joint Defense Agreement (the provisions of which shall prevail), 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 any Ancillary Agreement, such Ancillary Agreement shall
control.
SECTION 8.2. Ancillary Agreements. Subject to the last sentence of
Section 8.1, this Agreement is not intended to address, and should not be
interpreted to address, the matters specifically and expressly covered by the
Ancillary Agreements. D&B, Cognizant and ACNielsen acknowledge and agree that
except to the extent that the Indemnity and Joint Defense Agreement expressly
states otherwise, the provisions of such agreement are independent of the
provisions hereof, and, subject to the foregoing exception, none of the
agreements herein or in any other Ancillary Agreement are intended to govern in
any way any of the matters which are the subject of such Indemnity and Joint
Defense Agreement.
SECTION 8.3. 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
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when one or more such counterparts have been signed by each of the parties and
delivered to the other parties.
SECTION 8.4. 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 8.5. Expenses. Except as otherwise set forth in this
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 and 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 D&B.
Except as otherwise set forth in this Agreement or any Ancillary Agreement, all
costs and expenses incurred after the Distribution Date in connection with the
implementation of this Agreement or any Ancillary Agreement, the consummation of
the Distribution or the consummation of the transactions contemplated by this
Agreement or any Ancillary Agreement shall be charged to and paid by D&B. Except
as otherwise set forth in this 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 made.
SECTION 8.6. 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 The Dun & Bradstreet Corporation:
Xxx Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attn: General Counsel
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To Cognizant Corporation:
000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: General Counsel
To ACNielsen Corporation:
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attn: General Counsel
SECTION 8.7. 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 8.8. Amendments. Subject to the terms of Section 8.11
hereof, this Agreement may not be modified or amended except by an agreement in
writing signed by each of the parties hereto.
SECTION 8.9. Assignment. (a) 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.
(b) D&B will not distribute to its stockholders any interest in any
D&B Business Entity, by way of a spin-off distribution, split-off or other
exchange of interests in a D&B Business Entity for any interest in D&B held by
D&B stockholders, or any similar transaction or transactions, unless the
distributed D&B Business Entity undertakes to each of Cognizant and ACNielsen to
be jointly and severally liable for all D&B Liabilities hereunder.
(c) Cognizant will not distribute to its stockholders any interest
in any Cognizant Business Entity, by way of a spin-off distribution, split-off
or other exchange of interests in a Cognizant Business Entity for any interest
in Cognizant held by Cognizant stockholders, or any similar transaction or
transactions, unless the distributed Cognizant Business Entity undertakes to
each of D&B and ACNielsen to be jointly and severally liable for all Cognizant
Liabilities hereunder.
53
(d) ACNielsen will not distribute to its stockholders any interest
in any ACNielsen Business Entity, by way of a spin-off distribution, split-off
or other exchange of interests in an ACNielsen Business Entity for any interest
in ACNielsen held by ACNielsen stockholders, or any similar transaction or
transactions, unless the distributed ACNielsen Business Entity undertakes to
each of D&B and Cognizant to be jointly and severally liable for all ACNielsen
Liabilities hereunder.
SECTION 8.10. 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 8.11. Termination. This Agreement (including, without
limitation, Article III hereof) may be terminated and the Distribution may be
amended, modified or abandoned at any time prior to the Distribution by and in
the sole discretion of D&B without the approval of Cognizant or ACNielsen or the
shareholders of D&B. 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 Article III shall not be
terminated or amended after the Distribution in respect of the third party
beneficiaries thereto without the consent of such persons.
SECTION 8.12. 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 8.13. Third Party Beneficiaries. Except as provided in
Article III relating to Indemnitees, 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 8.14. 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 8.15. Exhibits and Schedules. The Exhibits and Schedules
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.
54
SECTION 8.16. 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 8.17. Consent to Jurisdiction. Without limiting the
provisions of Article VI hereof, each of the parties irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New
York County, and (b) the United States District Court for the Southern District
of New York, for the purposes of any suit, action or other proceeding arising
out of this Agreement or any transaction contemplated hereby. Each of the
parties agrees to commence any action, suit or proceeding relating hereto either
in the United States District Court for the Southern District of New York or if
such suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court of the State of New York, New York
County. Each of the parties further agrees that service of any process, summons,
notice or document by U.S. registered mail to such party's respective address
set forth above shall be effective service of process for any action, suit or
proceeding in New York with respect to any matters to which it has submitted to
jurisdiction in this Section 8.17. 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 8.18. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
THE DUN & BRADSTREET CORPORATION
by
----------------------
Name:
Title:
COGNIZANT CORPORATION
by
----------------------
Name:
Title:
ACNIELSEN CORPORATION
by
----------------------
Name:
Title:
