Transition Services Agreement - The Dun & Bradstreet Corp., The New Dun & Bradstreet Corp., Cognizant Corp., IMS Health Inc., ACNielsen Corp. and Gartner Group Inc.
AMENDED AND RESTATED
TRANSITION SERVICES AGREEMENT
This AMENDED AND RESTATED TRANSITION SERVICES AGREEMENT dated as of
June 30, 1998, among THE DUN & BRADSTREET CORPORATION, a Delaware corporation
(the "Corporation"), THE NEW DUN & BRADSTREET CORPORATION, a Delaware
corporation ("New D&B"), COGNIZANT CORPORATION, a Delaware corporation
("Cognizant"), IMS HEALTH INCORPORATED, a Delaware corporation ("IMS Health"),
ACNIELSEN CORPORATION, a Delaware corporation ("ACNielsen"), and GARTNER GROUP,
INC., a Delaware Corporation ("Gartner") amends and restates in its entirety the
Transition Services Agreement dated as of October 28, 1996 (the "1996 Transition
Services Agreement") among the Corporation, Cognizant and ACNielsen.
W I T N E S S E T H
WHEREAS, pursuant to a Distribution Agreement dated as of October
28, 1996 (the "1996 Distribution Agreement") among the Corporation, Cognizant
and ACNielsen, each party agreed to provide to the other parties certain
transitional, administrative and support services, including insurance and risk
management services, on the terms set forth in the 1996 Transition
Services Agreement and the Appendix thereto.
WHEREAS, each of the Corporation, Cognizant and ACNielsen desires to
amend and restate the 1996 Transition Services Agreement as set forth in this
Agreement and to include New D&B, IMS Health and Gartner as parties hereto; and
each of New D&B, IMS Health and Gartner desires to become a party to this
Agreement.
NOW, THEREFORE, in consideration of the agreements, covenants and
provisions in this Agreement and intending to be legally bound hereby, each of
the Corporation, New D&B, Cognizant, IMS Health, ACNielsen and Gartner mutually
covenant and agree as follows:
ARTICLE I
SERVICES PROVIDED
1.1 Transition Services. New D&B (the "Provider") shall provide
comprehensive insurance and risk management services to the Corporation,
Cognizant, IMS Health, ACNielsen and Gartner (each a "Recipient"; collectively,
the "Recipients"). Such services shall include risk identification, development
of appropriate insurance programs, loss prevention initiatives, accounting for
premiums, deductibles, retentions and defense costs, claims management
(including coordination with insurance carriers), the collection and
distribution of insurance proceeds and such other services as the Corporation's
Risk Management staff has been providing to the Corporation, Cognizant and
ACNielsen as of the date hereof (all such services, collectively, the
"Transition Services").
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1.2 Personnel. In providing the Transition Services, the Provider as
it deems necessary or appropriate in its sole discretion, may (i) use the
personnel of such Provider or its Affiliates, and (ii) employ the services of
third parties to the extent such third party services are routinely utilized to
provide similar services to other businesses of such Provider or are reasonably
necessary for the efficient performance of any of such Transition Services. Each
Recipient may retain at its own expense its own consultants and other
professional advisers.
1.3 Representatives. Each of the Corporation, New D&B, Cognizant,
IMS Health, ACNielsen and Gartner shall nominate a representative to act as its
primary contact person for the provision of all of the Transition Services
(collectively, the "Primary Coordinators"). The initial Primary Coordinators
shall be Frank Colarusso, Treasurer, for the Corporation, John Riley, Director
of Risk Management, for New D&B, Stuart Goldshein, Controller, for Cognizant,
Matthew Friedman, Assistant Treasurer, for IMS Health, John Forster for
ACNielsen and Andrea Tarbox for Gartner. Each party may treat an act of a
Primary Coordinator of another party as being authorized by such other party
without inquiring behind such act or ascertaining whether such Primary
Coordinator had authority to so act. The Provider and the relevant Recipient of
a Transition Service shall advise each other in writing of any change in the
Primary Coordinators for such Transition Service, setting forth the name of the
Primary Coordinator to be replaced and the name of the replacement, and
certifying that the replacement Primary Coordinator is authorized to act for
such party in all matters relating to this Agreement. Each of the Corporation,
New D&B, Cognizant, IMS Health, ACNielsen and Gartner agree that all
communications relating to the provision of the Transition Services shall be
directed to the Primary Coordinators.
1.4 Level of Transition Services. (a) The Provider shall perform the
Transition Services for which it is responsible hereunder following commonly
accepted standards of care in the industry and exercising the same degree of
care as it exercises in performing the same or similar services for its own
account as of the date of this Agreement, with priority equal to that provided
to its own businesses or those of any of its Affiliates, Subsidiaries or
divisions. Nothing in this Agreement shall require the Provider to favor the
businesses of any Recipient over its own businesses or those of any of its
Affiliates, Subsidiaries or divisions.
(b) The Provider shall not be required to provide any Recipient of
such Transition Services with extraordinary levels of Transition Services,
special studies, training, or the like or the advantage of systems, equipment,
facilities, training, or improvements procured, obtained or made by the
Provider.
(c) In addition to being subject to the terms and conditions of this
Agreement for the provision of the Transition Services, each Recipient agrees
that the Transition Services provided by third parties shall be subject to the
terms and conditions of any agreements between the Provider and such third
parties. The Provider shall consult with the relevant Recipient concerning the
terms and conditions of any such agreements to be entered into, or proposed to
be entered into, with third parties after the date hereof.
1.5 Limitation of Liability. In the absence of gross negligence or
willful
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misconduct on the part of the Provider, and whether or not the Provider is
negligent, such Provider shall not be liable for any claims, liabilities,
damages, losses, costs, expenses (including, but not limited to, settlements,
judgments, court costs and reasonable attorneys' fees), fines and penalties,
arising out of any actual or alleged injury, loss or damage of any nature
whatsoever in providing or failing to provide Transition Services for which it
is responsible hereunder to the Recipient of such Transition Services.
Notwithstanding anything to the contrary contained herein, in the event the
Provider commits an error with respect to or incorrectly performs or fails to
perform any Transition Service, at the relevant Recipient's request, the
Provider shall use reasonable efforts and good faith to correct such error,
re-perform or perform such Transition Service at no additional cost to such
Recipient; provided, that the Provider shall have no obligation to recreate any
lost or destroyed data to the extent the same cannot be cured by the
re-performance of the Transition Service in question.
1.6 Force Majeure. Any failure or omission by a party in the
performance of any obligation under this Agreement shall not be deemed a breach
of this Agreement or create any liability, if the same arises from any cause or
causes beyond the control of such party, including, but not limited to, the
following, which, for purposes of this Agreement shall be regarded as beyond the
control of each of the parties hereto: acts of God, fire, storm, flood,
earthquake, governmental regulation or direction, acts of the public enemy, war,
rebellion, insurrection, riot, invasion, strike or lockout; provided, however,
that such party shall resume the performance whenever such causes are removed.
Notwithstanding the foregoing, if such party cannot perform under this Agreement
for a period of forty-five (45) days due to such cause or causes, the affected
party may terminate the Agreement with the defaulting party by providing written
notice thereto.
1.7 Modification of Procedures. The Provider may make changes from
time to time in its standards and procedures for performing the Transition
Services for which it is responsible hereunder. Notwithstanding the foregoing
sentence, unless required by law, the Provider shall not implement any
substantial changes affecting a Recipient of the relevant Transition Services
unless:
(a) the Provider has furnished such Recipient notice (which shall be
the same notice the Provider shall provide its own businesses) thereof;
(b) the Provider changes such procedures for its own businesses at
the same time; and
(c) the Provider gives such Recipient a reasonable period of time
for such Recipient (i) to adapt its operations to accommodate such changes or
(ii) to reject the proposed changes. In the event such Recipient fails to accept
or reject a proposed change on or before a date specified in such notice of
change, such Recipient shall be deemed to have accepted such change. In the
event such Recipient rejects a proposed change but does not terminate this
Agreement, such Recipient agrees to pay any charges resulting from the
Provider's need to maintain different versions of the same systems, procedures,
technologies, or services or resulting from requirements of third party vendors
or suppliers.
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1.8 No Obligation to Continue to Use Services. No Recipient shall
have any obligation to continue to use the Transition Services and may terminate
the Transition Services that the Provider is providing to such Recipient by
giving the Provider 180 days notice thereof.
1.9 Provider Access. To the extent reasonably required for personnel
of the Provider to perform the Transition Services for which the Provider is
responsible hereunder, the Recipient of such Transition Services shall provide
personnel of the Provider with access to its equipment, office space, plants,
telecommunications and computer equipment and systems, and any other areas and
equipment.
1.10 Performance Reviews. The Primary Coordinators for each
Recipient shall meet during the fourth quarter of each calendar year with the
Primary Coordinator for the Provider for the purpose of reviewing the
performance of the Provider's Risk Management staff. Any disputes relating to
the quality of such performance shall be brought to the attention of the
respective Chief Financial Officers (or person holding an equivalent title) of
the Provider and the Recipients.
ARTICLE II
COMPENSATION
2.1 Consideration. As consideration for the Transition Services,
each Recipient of Transition Services shall pay to the Provider a portion of the
costs and expenses incurred by the Provider relating to the Risk Management
staff as follows: each Recipient shall pay (i) a base charge of $50,000 per year
plus (ii) a proportionate share of any additional costs and expenses (i.e., not
covered by the total base charge) based on such Recipient's proportion of total
revenue as a percentage of the aggregate total revenue of all parties to this
Agreement. For purposes of calculating any additional amount payable pursuant to
clause (ii) of the preceding sentence, a party's revenue shall be that set forth
on its audited financial statements for the most recent fiscal year-end. Such
costs and expenses shall be calculated in accordance with generally accepted
accounting principles applied consistently and billed in twelve monthly
installments. Notwithstanding the foregoing, however, any services provided by
the Provider's Risk Management staff to the Provider or the Recipients that are
not in the ordinary course (all such services being "extraordinary services")
shall be borne by the company or companies for whom such extraordinary service
was provided. No extraordinary service shall be provided without the specific
approval of the company to be charged. The costs and expenses to be borne by
each Recipient will be in accordance with the annual Risk Management budget to
be provided by the Primary Coordinator for the Provider during the preceding
calendar year by May 1 of each year. The Risk Management budget may increase
each year in an amount equal to 5% over the prior year's budget; increases in
excess of 5% must be approved by the respective Primary Coordinators for each
Recipient.
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2.2 Invoices. After the end of each month, the Provider, together
with its Affiliates or Subsidiaries providing Transition Services will submit
one invoice to the Recipient of such Transition Services for all Transition
Services provided to such Recipient and its Subsidiaries by the Provider during
such month. Such monthly invoices shall be issued no later than the fifteenth
day of each succeeding month. Each invoice shall include a summary list of the
previously agreed upon Transition Service for which there are fixed dollar fees,
together with documentation supporting each of the invoiced amounts that are not
covered by the fixed fee agreements. The total amount set forth on such summary
list and such supporting detail shall equal the invoice total, and will be
provided under separate cover apart from the invoice. All invoices shall be sent
to the attention of the Primary Coordinator of the applicable Recipient at the
address set forth in Section 6.5 hereof or to such other address as such
Recipient shall have specified by notice in writing to the Provider.
2.3 Payment of Invoices. (a) Payment of all invoices in respect of
Transition Services shall be made by check or electronic funds transmission in
U.S. Dollars, without any offset or deduction of any nature whatsoever, within
thirty (30) days of the invoice date. All payments shall be made to the account
designated by the Provider to the relevant Recipient, with written confirmation
of payment sent by facsimile to the Primary Coordinator or other person
designated thereby.
(b) If any payment is not paid when due, the Provider shall have the
right, without any liability to any Recipient of Transition Services, or anyone
claiming by or through such Recipient, upon five days' notice, to cease
providing any or all of the Transition Services provided by the Provider to such
Recipient, which right may be exercised by the Provider in its sole and absolute
discretion.
ARTICLE III
CONFIDENTIALITY
3.1 Obligation. Each party and its Subsidiaries shall not use or
permit the use of (without the prior written consent of the other parties) and
shall keep, and shall cause its consultants and advisors to keep, confidential
all information concerning the other parties received pursuant to or in
connection with this Agreement. Additionally, any information which is
identified by a party as being "highly sensitive" (in connection with a
contemplated acquisition or otherwise) shall not be disclosed outside of the
Provider's Risk Management staff.
3.2 Care and Inadvertent Disclosure. With respect to any
confidential information, each party agrees as follows:
(a) it shall use the same degree of care in safeguarding said
information as it uses to safeguard its own information which must be held
in confidence; and
(b) upon the discovery of any inadvertent disclosure or
unauthorized
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use of said information, or upon obtaining notice of such a disclosure or
use from any other party, it shall take all necessary actions to prevent
any further inadvertent disclosure or unauthorized use, and, subject to
the provisions of Section 1.5 above, each such other party shall be
entitled to pursue any other remedy which may be available to it.
ARTICLE IV
TERM AND TERMINATION
4.1 Term. This Agreement shall become effective on June 30, 1998 and
shall remain in force for a period of three years (or in the case of ACNielsen,
IMS Health and Gartner until November 1, 1999). After such initial period, this
Agreement shall automatically be renewed for successive one-year periods as to
each party unless such party provides at least 180-days notice to the other
parties of its intention not to renew; provided that this Agreement may be
terminated at such other times as are set forth in Sections 1.6, 1.8 and 4.3.
4.2 Reserved.
4.3 Default. If any party (hereafter called the "Defaulting Party")
shall fail to perform or default in the performance of any of its obligations
under this Agreement (other than a payment default), the party entitled to the
benefit of such performance (hereinafter referred to as a "Non-Defaulting
Party") may give written notice to the Defaulting Party specifying the nature of
such failure or default and stating that the Non-Defaulting Party intends to
terminate this Agreement with respect to the Defaulting Party if such failure or
default is not cured within fifteen days of such written notice. If any failure
or default so specified is not cured within such fifteen day period, the
Non-Defaulting Party may elect to immediately terminate this Agreement with
respect to the Defaulting Party; provided, however, that if the failure or
default relates to a dispute contested in good faith by the Defaulting Party,
the Non-Defaulting Party may not terminate this Agreement pending the resolution
of such dispute in accordance with Article V hereof. Such termination shall be
effective upon giving a written notice of termination from the Non-Defaulting
Party to the Defaulting Party and shall be without prejudice to any other remedy
which may be available to the Non-Defaulting Party against the Defaulting Party.
4.4 Termination of Obligations. Each Recipient specifically agrees
and acknowledges that all obligations of the Provider to provide the Transition
Services shall immediately cease, with respect to such Recipient, upon the
termination of this Agreement as to such Recipient. Upon the cessation of the
Provider's obligation to provide any Transition Service to a Recipient, such
Recipient shall immediately cease using, directly or indirectly, the Transition
Services (including, without limitation, any and all software of the Provider or
third party software provided through the Provider, telecommunications services
or equipment, or computer systems or equipment).
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4.5 Survival of Certain Obligations. Without prejudice to the
survival of the other agreements of the parties, Sections 1.5, 2.1 (with respect
to services provided prior to the effective time of the termination), 3.1, 3.2,
4.4, 4.5, 5.1, 6.10, 6.13 and 6.14 shall survive any termination of this
Agreement.
ARTICLE V
DISPUTE RESOLUTION
5.1 Dispute Resolution. Any disputes arising out of or in connection
with this Agreement shall be settled in accordance with the dispute resolution
mechanisms set forth in Article VI of the 1996 Distribution Agreement, with each
of the parties hereto being deemed a party to that agreement for this purpose.
ARTICLE VI
MISCELLANEOUS
6.1 Complete Agreement; Construction. This Agreement shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter.
6.2 Other Agreements. This Agreement is not intended to address, and
should not be interpreted to address, the matters specifically and expressly
covered by other agreements between or among the parties.
6.3 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts has been signed by
each of the parties and delivered to the other parties.
6.4 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 Corporation:
R.H. Donnelley Corporation
One Manhattanville Road
Purchase, New York 10577
Telecopy: (914) 933-6899
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Attn: Treasurer
With a copy to:
R.H. Donnelley Corporation
One Manhattanville Road
Purchase, New York 10577
Telecopy: (914) 933-6899
Attn: General Counsel
To New D&B:
The Dun & Bradstreet Corporation
220 East 42 Street
New York, New York 10017
Telecopy: (212) 883-3403
Attn: Director of Risk Management
With a copy to:
The Dun & Bradstreet Corporation
One Diamond Hill Road
Murray Hill, New Jersey 07974
Telecopy: (908) 665-5803
Attn: Chief Legal Counsel
To Cognizant:
Nielsen Media Research, Inc.
299 Park Avenue
New York, New York 10171
Telecopy: (212) 708-7504
Attn: Controller
With a copy to:
Nielsen Media Research, Inc.
299 Park Avenue
New York, New York 10171
Telecopy: 212-708-6927
Attn: Chief Legal Officer
To IMS Health:
IMS Health Incorporated
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200 Nyala Farms
Westport, Connecticut 06880
Telecopy: (203) 222-4201
Attn: Treasurer
With a copy to:
IMS Health Incorporated
200 Nyala Farms
Westport, Connecticut 06880
Telecopy: (203) 222-4201
Attn: General Counsel
To ACNielsen:
ACNielsen Corporation
177 Broad Street
Stamford, Connecticut 06901
Telecopy: (203) 961-3177
Attn: John Forster
With a copy to:
ACNielsen Corporation
177 Broad Street
Stamford, Connecticut 06901
Telecopy: (203) 961-3179
Attn: General Counsel
To Gartner:
Gartner Group, Inc.
P.O. Box 10212
56 Top Gallant Road
Stamford, Connecticut 06904
Telecopy: (203) 316-6525
Attn: Andrea Tarbox
With a copy to:
Gartner Group, Inc.
P.O. Box 10212
56 Top Gallant Road
Stamford, Connecticut 06904
Telecopy: (203) 316-6525
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Attn: General Counsel
6.5 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.
6.6 Amendments. This Agreement may not be modified or amended except
by an agreement in writing signed by each of the parties hereto.
6.7 Assignment. This Agreement may not be assigned by any party,
other than to an Affiliate of such party or pursuant to a corporate
reorganization or merger, without the consent of the other party. Any assignment
in contravention of this Section 6.7 shall be void.
6.8 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.
6.9 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 applicable Distribution Date.
6.10 Third Party Beneficiaries. This Agreement is solely for the
benefit of the parties hereto 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.
6.11 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.
6.12 Reserved.
6.13 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.
6.14 Consent to Jurisdiction. 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
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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 6.14. 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.
6.15 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.
6.16 Laws and Government Regulations. Each Recipient shall be
responsible for (i) compliance with all laws and governmental regulations
affecting its businesses and (ii) any use such Recipient may make of the
Transition Services to assist it in complying with such laws and governmental
regulations. While the Provider shall not have any responsibility for the
compliance by the Recipient of such Transition Services with such laws and
regulations, the Provider agrees to use reasonable efforts to cause the
Transition Services to be provided by such party to be designed in such manner
that such Transition Services shall be able to assist the Recipient of such
Transition Services in complying with applicable legal and regulatory
responsibilities.
6.17 Relationship of Parties. Nothing in this Agreement shall be
deemed or construed by the parties or any third party as creating the
relationship of principal and agent, partnership or joint venture between the
parties, it being understood and agreed that no provision contained herein, and
no act of the parties, shall be deemed to create any relationship between the
parties other than the relationship of buyer and seller of services nor be
deemed to vest any rights, interests or claims in any third parties. The parties
do not intend to waive any privileges or rights to which they may be entitled.
6.18 Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meanings assigned to such terms in the applicable
Distribution Agreement governing the relevant parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Transition Services Agreement to be executed the day and year first
above written.
THE DUN & BRADSTREET CORPORATION
By: /s/ Frank R. Noonan
___________________________
Name: Frank R. Noonan
Title: Senior Vice President
THE NEW DUN & BRADSTREET CORPORATION
By: /s/ Volney Taylor
___________________________
Name: Volney Taylor
Title: Chairman and
Chief Executive Officer
COGNIZANT CORPORATION
By: /s/ Kenneth S. Siegel
___________________________
Name: Kenneth S. Siegel
Title: Senior Vice President,
General Counsel and Secretary
IMS HEALTH INCORPORATED
By: /s/ Kenneth S. Siegel
___________________________
Name: Kenneth S. Siegel
Title: Senior Vice President,
General Counsel and Secretary
ACNIELSEN CORPORATION
By: /s/ John A. Forster
___________________________
Name: John A. Forster
Title: Vice President and Treasurer
GARTNER GROUP, INC.
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By: /s/ George C. Roy Jr.
___________________________
Name: George C. Roy Jr.
Title: Senior VP - Finance