Agreement to Retire General Partner Interest - D&B Investors LP
AGREEMENT TO RETIRE GENERAL PARTNER INTEREST (IMS AMERICA, LTD)
THIS AGREEMENT TO RETIRE GENERAL PARTNER INTEREST (this "Agreement"), is entered
into and effective this 21st day of October, 1996, by and between D&B Investors
L.P., a Delaware limited partnership (the "Partnership"), and IMS America, Ltd.,
a New Jersey corporation (the "Retiring General Partner").
WHEREAS, the Retiring General Partner, The Reuben H. Donnelley Corporation, a
Delaware corporation, Dun & Bradstreet, Inc., a Delaware corporation, and RBDB,
LLC, a Delaware limited liability company, formed the Partnership pursuant to
that certain Agreement of Limited Partnership of D&B Investors L.P., dated
October 14, 1993, as amended by that certain Partnership Agreement Amendment No.
1, dated as of October 14, 1993, and that certain Amendment No. 2 to the
Agreement of Limited Partnership of D&B Investors L.P., dated October 5, 1995
(collectively the "Partnership Agreement," terms not otherwise defined herein
are used herein as therein defined); and
WHEREAS, on October 5, 1995, the Reuben H. Donnelley Corporation retired from
the Partnership, and on October 1, 1996, Duns Investing VII Corporation, a
Delaware corporation, was assigned a portion of the interest of Dun &
Bradstreet, Inc. and admitted to the Partnership as a Limited Partner, and RBDB,
LLC retired from the Partnership, and on October 18, 1996, Utrecht-America
Finance Co., a Delaware corporation, was assigned a portion of the interest of
Dun & Bradstreet, Inc. and admitted to the Partnership as a Limited Partner; and
WHEREAS, the Retiring General Partner has elected to withdraw from the
Partnership and to require its entire Interest in the Partnership (the
"Redemption Interest") to be retired and redeemed by the Partnership in
accordance with the terms of this Agreement and Section 11.2 of the Partnership
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements hereinafter set forth, the parties hereto hereby agree as follows:
ARTICLE I
RETIREMENT, REDEMPTION AND ASSIGNMENT; CLOSING
SECTION 1.01. RETIREMENT AND REDEMPTION Subject to the terms and conditions set
forth herein and Section 11.2 of the Partnership Agreement, the Retiring General
Partner hereby assigns and transfers to the Partnership, and the Partnership
hereby retires and redeems, the Redemption Interest. The closing of the
transactions contemplated hereby (the "Closing") shall take place on the date
first set forth above (the "Retirement Date") at 4:00 p.m.
(Delaware time).
SECTION 1.02. REDEMPTION CONSIDERATION. The assets to be conveyed by the
Partnership to the Retiring General Partner as consideration for the retirement
and redemption of the Redemption Interest shall be (a) 800,000 shares of common
stock of The Dun & Bradstreet Corporation and (b) warrants representing the
right to purchase 2,214,799 shares of common stock of The Dun & Bradstreet
Corporation (collectively the "REDEMPTION CONSIDERATION"). In addition, the
Retiring General Partner shall assume the UAF Obligation (as defined and further
described in Section 2.01 hereof). The parties hereto acknowledge that the
Redemption Consideration has been determined in accordance with Section 11.2(b)
of the Partnership Agreement and further acknowledge that the aggregate fair
market value of the Redemption Consideration (net of the UAF Obligation, as
hereafter defined) equals the positive balance in the Retiring General Partner's
Capital Account (taking into account the adjustments and allocations required by
the first sentence of Section 11.2(b)(x) of the Partnership Agreement).
SECTION 1.03. DELIVERIES AT CLOSING. At the Closing, (a) each of the parties
hereto shall deliver an executed counterpart of this Agreement, (b) the
Partnership shall deliver the Redemption Consideration to the Retiring General
Partner, including such documents and instruments as may be necessary to
effectuate the transfer of the stock and warrants that comprise the Redemption
Consideration to the Retiring General Partner as of the Retirement Date, and (c)
the Retiring
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General Partner shall deliver to the Partnership such documents and instruments
as may be necessary to effectuate the assumption of the UAF Obligation by the
Retiring General Partner in accordance with Section 2.01 hereof.
ARTICLE II
ASSUMPTION OF UAF OBLIGATION;
CONTINUING LIABILITY
2.01. ASSUMPTION OF UAF OBLIGATION. The parties acknowledge that the
Partnership's outstanding liabilities consist solely of an obligation to
Utrecht-America Finance Co. in the amount of $50 million Investment Principal
and accrued Investment Return thereon (the "UAF Obligation"), which is governed
by that certain Purchase Agreement, dated October 14, 1993, as amended, by that
certain Purchase Agreement Amendment, dated as of October 14, 1993, that certain
Amendment and Waiver to Purchase Agreement, dated April 15, 1994, that certain
Third Amendment to Purchase Agreement, dated September 18, 1995, and that
certain Fourth Amendment to Purchase Agreement dated October 3, 1996. In
connection with the redemption and retirement of the Redemption Interest, the
Partnership hereby assigns to the Retiring General Partner and the Retiring
General Partner hereby assumes from the Partnership, as of the Retirement Date,
the UAF Obligation. The Retiring General Partner hereby agrees, as of the
Retirement Date, to indemnify, defend, protect and hold harmless the
Partnership, the other original General Partners, and the Parent from any loss
or liability relating to the UAF Obligation.
SECTION 2.02. CONTINUING LIABILITY. As among the Partners, the Retiring General
Partner shall be relieved of all liabilities and obligations of the Partnership,
whether contingent or otherwise, as of the Retirement Date, excluding only (a)
the UAF Obligation and (b) any liability or obligation owing to the fraud, bad
faith, wilful misconduct, or gross negligence of the Retiring Limited Partner.
The Partnership and its remaining General Partner shall, as of the Retirement
Date, indemnify, defend, protect, and hold harmless the Retiring General Partner
from all liabilities and obligations from which the Retiring General Partner is,
or is intended to be, relieved under this Section 2.02.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF PARTIES. Each party hereto
represents and warrants to each of the other parties as follows:
(a) ORGANIZATION AND AUTHORIZATION. Such party is duly organized, validly
existing and in good standing under the laws of the state of its organization
and has all necessary power and authority to enter into this Agreement, to carry
out its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the performance by such
party of the transactions contemplated hereby have been duly authorized by all
requisite action on the part of such party. This Agreement has been duly
executed and delivered by such party. Assuming due authorization, execution and
delivery by the other parties, this Agreement constitutes a legal, valid and
binding obligation of such party enforceable against such party in accordance
with its terms, subject to applicable bankruptcy, insolvency or other laws
affecting creditors' rights generally and to general equity principles.
(b) NO CONFLICT; REQUIRED FILINGS AND CONSENTS. The execution and delivery of
this Agreement by such party does not, and the performance of this Agreement by
such party will not conflict with or violate any law, rule or regulation
applicable to such party or by which any of such party's properties is bound or
affected, the result of which would have a material adverse effect on such
party's ability to perform its obligations under this Agreement, (i) result in
any breach of or constitute a default under any note, bond, mortgage, indenture,
contract or other instrument or obligation to which such party is a party or by
which any of its properties is bound or affected, the result of which would have
a material adverse effect on such party's ability to perform its obligations
under this Agreement, or (ii) require any consent, approval, exemption,
authorization or permit of, or filing with or notification to, or other action
by, any court, administrative agency, or governmental or regulatory authority.
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(c) ABSENCE OF LITIGATION. There is no pending or, to the best knowledge of such
party, threatened claim, action, litigation, arbitration or governmental
investigation or legal, administrative or regulatory proceeding against such
party which purports to affect or challenge the legality, validity or
enforceability of this Agreement or the consummation of the transactions
contemplated hereunder.
SECTION 3.02 ADDITIONAL REPRESENTATION AND WARRANTY OF RETIRING GENERAL
PARTNER. The Retiring General Partner represents and warrants to each of the
other parties hereto that it is the legal and beneficial owner of the Redemption
Interest, that such ownership will be conveyed to the Partnership hereunder, and
that such ownership is free and clear of any security interest, pledge,
mortgage, lien (including environmental and tax liens), charge, adverse claim,
option or other right to purchase, or other encumbrance (collectively an
"Encumbrance").
SECTION 3.03. ADDITIONAL REPRESENTATION AND WARRANTY OF PARTNERSHIP. The
Partnership represents and warrants to the Retiring General Partner that it is
the legal and beneficial owner of the stock and warrants that comprise the
Redemption Consideration, and that such ownership will be conveyed to the
Retiring General Partner hereunder free and clear of any Encumbrance other than
the UAF Obligation that the Retiring General Partner has assumed hereunder.
ARTICLE IV
INDEMNIFICATION; SURVIVAL
SECTION 4.01 INDEMNIFICATION. Each of the parties hereto thereby agrees to
indemnify each other party against, and hold each other party harmless from,any
and all damage, loss, liability, tax, interest, penalties, and any other expense
(including, without limitation, investigation and attorneys' fees and expenses
in connection with any action, suit, proceeding, claim, investigation, or other
loss) arising out of any inaccuracy or omission in any representation or
warranty made by such party, any violation or breach of any covenant or
agreement of such party, or any default with respect to any obligation of such
party, under this Agreement, which, in the case of any of the foregoing, has a
material adverse effect on the economic benefits to the other party of the
transactions contemplated hereby.
SECTION 4.01. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants and agreement of each of the parties hereto shall survive
and remain in full force and effect until performance in accordance with the
terms hereof.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be made in accordance with the provisions of the
Partnership Agreement, as amended from time to time.
SECTION 5.02 FURTHER ASSURANCES. Each party hereto agrees to execute and
deliver, at its own expense, such other documents and instruments, including,
without limitation, an amendment to or restatement of the Partnership Agreement,
and take such other action, as any other party requests, to (a) consummate more
effectively the transactions contemplated hereby, (b) carry out the terms and
purposes of this Agreement, and (c) respond to or cooperate with any court,
administrative agency, or governmental or regulatory authority.
SECTION 5.03 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the transferees, successors, assigns, heirs,
beneficiaries, executors, administrators, partners, agents, employees, and
representatives of each party hereto.
SECTION 5.04 NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement, expressed
or implied, is intended or shall be construed to confer upon any person other
than the parties hereto, and their successors and assigns, heirs, beneficiaries,
executors, administrators, partners, agents, employees, and
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representatives, any rights, remedies, or claims under or by reason of this
Agreement.
SECTION 5.05 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
conflict of laws provisions thereof. Any and all suits, legal actions or
proceedings against any party hereto arising out of this Agreement shall be
brought in the state courts of the State of Delaware, or, if such court shall
not have jurisdiction, the court of appropriate jurisdiction sitting in
Wilmington, Delaware, and each party hereby submits to and accepts the exclusive
jurisdiction of such courts for the purpose of such suits, legal action or
proceedings. Each party hereto hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any such suit, legal action
or proceeding in any such court and hereby further waives any claim that any
suit, legal action or proceeding brought in any such court has been brought in
an inconvenient forum.
SECTION 5.06 MODIFICATIONS AND WAIVERS. No supplement, modification, waiver or
termination of this Agreement or any provisions hereof shall be binding unless
executed in writing by all parties hereto. No waiver of any of the provisions of
this Agreement shall constitute a waiver of any other provision (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided
SECTION 5.07 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement.
SECTION 5.08 SEVERABILITY. Each provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the legality or
validity of the remainder of this Agreement.
SECTION 5.09 INCORPORATION BY REFERENCE. Every schedule attached to this
Agreement and referred to herein is hereby incorporated in this Agreement by
reference.
SECTION 5.10 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
prior agreements and undertakings, both written and oral, between the parties
with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
PARTNERSHIP:
D&B INVESTORS L.P.
By: Dun & Bradstreet, Inc.
Title: Managing General Partner
By: /s/ [ILLEGIBLE]
--------------------------------
Title:
--------------------------------
RETIRING GENERAL PARTNER:
By: IMS America, Ltd.
Title: General Partner
By: /s/ [ILLEGIBLE]
--------------------------------
Title: Asst. V.P.
--------------------------------
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SIGNATURE PAGE TO AGREEMENT TO RETIRE GENERAL PARTNER INTEREST
(IMS AMERICA, LTD.)
OFFICER'S CERTIFICATE
The undersigned, Stephen J. Boatti, Assistant Vice President of IMS AMERICA,
LTD. (the "Company"), hereby certifies that the Company is within the definition
of a qualified institutional buyer as defined in Rule 144A of the Securities Act
of 1933, as amended.
IN WITNESS WHEREOF, I have hereunto signed my name on the 21st day of October,
1996.
/s/ Stephen J. Boatti
-------------------------------
Name: Stephen J. Boatti
Title: Assistant Vice President
WARRANT ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby assigns and transfers unto IMS
AMERICA, LTD., 100 Campus Road, Totown, New Jersey, 07512, the within Warrant,
hereby irrevocably constituting and appointing the appropriate officer of The
Dun & Bradstreet Corporation as attorney to transfer said Warrant on the books
of The Dun & Bradstreet Corporation, with full power of substitution in the
premises.
DATED: October 21, 1996
Signature of Registered Holder:
D&B INVESTORS L.P.
By: DUN & BRADSTREET, INC.
its Managing General Partner
By: /s/ [ILLEGIBLE]
---------------------------
Name:
Title:
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IMS AMERICA, LTD.
September 30, 1996
To: Dun & Bradstreet, Inc.,
General Partner
RBDB, LLC, Limited Partner
Re: D&B Investors L.P.
Dear Sirs:
Pursuant to Section 11.2 of the Agreement of Limited Partnership of D&B
Investors L.P. (the "Partnership"), dated October 14, 1993, as amended (the
"Partnership Agreement"), we hereby elect to withdraw from the Partnership and
require that our entire Interest be retired.
The General Partnership Withdrawal Date shall be a date in early October 1996
mutually agreeable to you and to us.
Capitalized terms not defined herein shall have the meanings assigned to them in
the Partnership Agreement.
IMS AMERICA, LTD.
By: /s/ Alan J. Klutch
--------------------------
Alan J. Klutch
Vice President