-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CiHd/nkDGU3AkCaScAC4NFosd+vOZVk+T2XCfmhol5UTpGDwtT/UXtHK1mdDoV/R v7RyX3YRi/NNAgnS0Z7EXQ== 0000950123-96-005898.txt : 19961205 0000950123-96-005898.hdr.sgml : 19961205 ACCESSION NUMBER: 0000950123-96-005898 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 10 CONFORMED PERIOD OF REPORT: 19961024 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19961024 SROS: BSE SROS: CSX SROS: NYSE SROS: PHLX SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: DUN & BRADSTREET CORP CENTRAL INDEX KEY: 0000030419 STANDARD INDUSTRIAL CLASSIFICATION: 8700 IRS NUMBER: 132740040 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-07155 FILM NUMBER: 96647400 BUSINESS ADDRESS: STREET 1: 187 DANBURY ROAD CITY: WILTON STATE: CT ZIP: 06897 BUSINESS PHONE: 2032224200 MAIL ADDRESS: STREET 1: 187 DANBURY ROAD STREET 2: 34TH FLOOR CITY: WILTON STATE: CT ZIP: 06897 FORMER COMPANY: FORMER CONFORMED NAME: DUN & BRADSTREET COMPANIES INC DATE OF NAME CHANGE: 19790429 8-K 1 THE DUN & BRADSTREET CORPORATION 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report: October 24, 1996 The Dun & Bradstreet Corporation A Delaware Corporation Commission File I.R.S. Employer No. 1-7155 No. 13-2740040 200 Nyala Farms Road Westport, CT 06880 Telephone Number (203) 222-4200 2 Item 5. Other Events On January 9, 1996, The Dun & Bradstreet Corporation ("D&B" or "the Company") announced a plan, subject to certain conditions, to reorganize into three public independent companies by spinning off two of its businesses to shareholders. The three companies will be Cognizant Corporation ("Cognizant"), consisting of I.M.S. International, Inc., Gartner Group, Inc., Nielsen Media Research, Inc., Pilot Software, Inc., Erisco, Inc., Dun & Bradstreet Satyam Software Proprietary Limited, Cognizant Enterprises, Inc., Dun & Bradstreet HealthCare Information, Inc., and D&B Technology Asia KK; The Dun & Bradstreet Corporation, consisting of Dun & Bradstreet Information Services, Moody's Investors Service and Reuben H. Donnelley; and ACNielsen Corporation ("ACNielsen"). Cognizant will focus on high-growth emerging markets in healthcare, high-tech and media; D&B will focus on financial-information services; and ACNielsen will focus on the delivery of market research, information and analysis to the consumer-products and service industries. In connection with the new strategy, Dun & Bradstreet Software ("D&B Software") and American Credit Indemnity ("ACI") were slated for divestiture. NCH Promotional Services ("NCH") was subsequently added to the business units to be sold. D&B has received a tax ruling from the U.S. Internal Revenue Service ("IRS") indicating that the receipt by D&B shareholders of the Cognizant Common Stock and the ACNielsen Common Stock in the spin-off distribution will be tax-free to such stockholders and D&B for Federal income tax purposes, except to the extent that cash is received for fractional shares of ACNielsen common stock. In addition, D&B has also received other tax rulings relating to certain international restructurings which are or were to be effected by D&B prior to the spin-off. D&B's Board of Directors on October 10, 1996 declared a dividend distribution (the "Distribution") to shareholders of record October 21, 1996 consisting of one share of Cognizant Common Stock for each share of D&B Common Stock and one share of ACNielsen Common Stock for each three shares of D&B Common Stock held on such record date. The Distribution is expected to be effected on or about November 1, 1996. Pursuant to Accounting Principles Board Opinion No. 30, "Reporting the Results of Operations-Reporting the Effects of Disposal of a Segment of a Business, and Extraordinary, Unusual and Infrequently Occurring Events and Transactions" ("APB 30"), the Consolidated Financial Statements of D&B have been restated to reflect the probable dispositions of the companies that comprise D&B's Marketing Information Services, Software Services and Other Business Services business segments. These segments include the companies that make up Cognizant, ACNielsen, D&B Software and NCH. Accordingly, the revenues, costs and expenses, and assets and liabilities of Cognizant, ACNielsen, D&B Software and NCH have been excluded from the respective captions in the Consolidated Statement of Income and Consolidated Statement of Financial Position. The net operating results of these entities have been reported, net of applicable income taxes, as "Income from Discontinued Operations" and the net assets of these entities have been reported as "Net Assets of Discontinued Operations". -2- 3 D&B's shareholders' equity is estimated to be a deficit of $200 million to $220 million at November 1, 1996 after giving effect to the dividend from the Distribution. This forecast of D&B's shareholders' equity at November 1, 1996 is based on management's forecasts and assumptions concerning events and circumstances which are expected to occur subsequent to June 30, 1996, but prior to and including November 1, 1996 (the anticipated Distribution Date), including future results of operations and other events. Significant assumptions of events between June 30, 1996 and November 1, 1996, include the following: - D&B pre-tax income for the four months ended October 31, 1996 of approximately $141.3 million. - Increase in D&B's cash and cash equivalents of approximately $369 million, primarily reflecting operating cash flows for the four months ended October 31, 1996 and proceeds from divestitures, less dividend payments by D&B totaling $43 million for the four months ended October 31, 1996. Dividends of $111 million were paid by D&B in the comparable period of 1995. In addition, the Distribution Agreement provides for various cash transfers immediately prior to the Distribution by D&B to ACNielsen and to Cognizant, in each case, as a contribution of capital, provided, however, that if the businesses known as D&B Software Services, NCH Promotional Services and/or American Credit Indemnity are not sold by D&B prior to November 1, 1996, then the cash to be transferred to Cognizant will be reduced by the amount of cash proceeds expected to be received upon the sale of the business or businesses not sold. In the event any such business is sold after November 1, Cognizant will be entitled to receive the amount of cash proceeds received upon such sale. In the event that the aggregate cash consideration received by D&B upon the disposition of such businesses differs from the aggregate expected amount, the Distribution Agreement provides that D&B and Cognizant shall share equally in any excess or shortfall. At November 1, 1996, after giving effect to the transfer of cash to Cognizant and to ACNielsen and the dividend of the net assets of Cognizant and ACNielsen in the Distribution (aggregating approximately $1,250 million), the capitalization of D&B is forecasted to consist of net debt (net of cash and short-term debt) in the range of $900 million and a deficiency in shareholders' equity of $200 million to $220 million. If the Distribution had occurred at June 30, 1996, the capitalization of D&B at June 30, 1996 would not have been significantly different from the above forecast capitalization at November 1, 1996. -3- 4 These forecasts and assumptions do not represent an all-inclusive list of those events or transactions expected to occur prior to the Distribution which will affect the capitalization of D&B; however, in D&B management's judgment, the above assumptions and forecasts are the most significant. There have been no changes in accounting principles included in this capitalization forecast. LIMITATIONS ON FORECASTED FINANCIAL INFORMATION The assumptions and estimates underlying the forecasted data and information arc inherently uncertain and, although considered reasonable by management of D&B, are subject to significant business, economic and competitive uncertainties, many of which are beyond the control of D&B. Accordingly, there can be no assurance that the forecasted financial results will be realized. In fact, actual results in the future usually will differ from the forecasted financial results, and the differences may be material. D&B does not intend to update any forecasted financial data or information contained in this Form 8-K, and the absence of any such update should not be construed as an indication that management of D&B continues to believe the forecasted data or information contained herein is reasonable. The Company's Consolidated Statement of Income for the six months ended June 30, 1996 and the three years ended December 31, 1995, and Consolidated Statement of Financial Position at June 30, 1996 and December 31, 1995 presented in accordance with APB 30 follow. ITEM 7. Financial Statements, Proforma Financial Statements and Exhibits (c) Exhibits
EXHIBIT NO. DESCRIPTION -------- --------------------------------------------------------------------------------- 27 -- Financial Data Schedule 99.1 -- Form of Distribution Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.2 -- Form of Tax Allocation Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.3 -- Form of Employee Benefits Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.4 -- Form of Intellectual Property Agreement between and among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.5 -- Form of Shared Transaction Services Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.6 -- Form of Data Services Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.7 -- Form of Transition Services Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.8 -- Form of Indemnity and Joint Defense Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation
-4- 5 The Dun & Bradstreet Corporation Consolidated Statement of Income (unaudited)
SIX MONTHS ENDED DOLLAR AMOUNTS IN THOUSANDS, JUNE 30, YEAR ENDED DECEMBER 31, EXCEPT PER SHARE DATA 1996 1995 1994 1993 ------------ ------------ ------------ ------------ Operating Revenues.................... $ 1,032,947 $ 2,158,218 $ 2,124,852 $ 2,127,000 ------------ ------------ ------------ ------------ Operating Costs....................... 379,914 838,743 524,522 571,707 Selling and Administrative Costs...... 471,439 874,321 857,732 950,709 Depreciation & Amortization........... 80,305 164,522 143,527 130,034 Restructuring (Income) Expense-Net.... 0 (118,000) 4,170 141,735 ------------ ------------ ------------ ------------ Operating Income...................... 101,289 398,632 594,901 332,815 ------------ ------------ ------------ ------------ Interest Income....................... 8,091 24,434 7,029 18,052 Interest Expense...................... (20,142) (51,463) (21,371) (17,856) Other Income/(Expense)-Net............ (23,237) (40,926) (20,684) 1,543 ------------ ------------ ------------ ------------ Non-Operating (Expense) Income-Net.... (35,288) (67,955) (35,026) 1,739 ------------ ------------ ------------ ------------ Income from Continuing Operations before Provision for Taxes.......... 66,001 330,677 559,875 334,554 Provision For Income Taxes............ 46,235 113,142 191,239 122,689 ------------ ------------ ------------ ------------ Income from Continuing Operations..... 19,766 217,535 368,636 211,885 Income from Discontinued Operations, Net of Income Tax (Benefit) Expense of $(2,687), $9,767, $58,451 and $36,675 for June 30, 1996 and December 31, 1995, 1994 and 1993, respectively..................... 42,565 103,272 260,864 72,602 Cumulative Effect to January 1, 1993, of Changes in Accounting Principles: Accounting Principles: -- SFAS No. 106, "Employers' Accounting for Postretirement Benefits Other than Pensions," Net of Income Tax Benefits of $80,611.......................... (121,105) -- SFAS No. 112, "Employers' Accounting for Postemployment Benefits," Net of Income Tax Benefits of $75,169.............. (125,283) ------------ ------------ ------------ ------------ Net Income............................ $ 62,331 $ 320,807 $ 629,500 $ 38,079 =========== =========== =========== =========== Earnings Per Share of Common Stock: Income from Continuing Operations..... $ .12 $ 1.28 $ 2.17 $ 1.20 Income from Discontinued Operations... .25 .61 1.53 .41 Cumulative Effect to January 1, 1993, of Changes in Accounting Principles: Accounting Principles: -- SFAS No. 106, "Employers' Accounting for Postretirement Benefits Other than Pensions".... (.68) -- SFAS No. 112, "Employers' Accounting for Postemployment Benefits"........................ (.70) ------------ ------------ ------------ ------------ Net Earnings Per Share of Common Stock............................... $ .37 $ 1.89 $ 3.70 $ .23 ------------ ------------ ------------ ------------ Average Number of Shares Outstanding......................... 169,808,000 169,522,000 169,946,000 177,181,000 =========== =========== =========== ===========
The accompanying notes are an integral part of the consolidated financial statements. -5- 6 THE DUN & BRADSTREET CORPORATION CONSOLIDATED STATEMENT OF FINANCIAL POSITION (UNAUDITED)
June 30, December 31, Dollar amounts in thousands, except per share data 1996 1995 ----------- ------------ Cash & Cash Equivalents.......................................... $ 147,529 $ 147,072 Marketable Securities............................................ 12,823 22,635 Accounts Receivable -- Net....................................... 573,749 588,897 Other Current Assets............................................. 263,894 257,612 ----------- ------------ Current Assets.............................................. 997,995 1,016,216 ----------- ------------ Other Investments and Notes Receivable........................... 389,001 376,205 Property, Plant & Equipment -- Net............................... 373,103 382,937 Deferred Charges................................................. 261,557 266,144 Computer Software................................................ 107,541 83,496 Other Intangibles................................................ 79,763 95,306 Goodwill......................................................... 226,632 295,508 ----------- ------------ Total Other Assets.......................................... 675,493 740,454 ----------- ------------ Net Assets of Discontinued Operations............................ 1,334,240 1,326,302 ----------- ------------ Total Assets..................................................... $ 3,769,832 $ 3,842,114 ========== ============ Accounts and Notes Payable....................................... $ 483,154 $ 503,368 Accrued and Other Current Liabilities............................ 445,081 456,448 Accrued Income Taxes............................................. 52,161 20,599 Redeemable Partnership Interests................................. 625,000 625,000 ----------- ------------ Total Current Liabilities................................... 1,605,396 1,605,415 ----------- ------------ Unearned Subscription Income..................................... 413,143 319,603 Postemployment and Postretirement Benefits....................... 368,979 393,047 Deferred Income Taxes............................................ 53,800 57,789 Other Liabilities and Minority Interests......................... 282,706 283,795 ----------- ------------ Total Liabilities................................................ $ 2,724,024 $ 2,659,649 ----------- ------------ Preferred Stock, par value $1 per share, authorized -- 10,000,000 shares; outstanding -- none Common Stock, par value $1 per share, authorized -- 400,000,000 shares; issued 188,420,995 and 188,420,996 shares for June 30, 1996 and December 31, 1995, respectively............................ $ 188,421 $ 188,421 Capital in Excess of Par Value................................... 69,985 69,985 Retained Earnings................................................ 2,042,840 2,204,706 Treasury Stock, at cost, 17,546,150 and 19,031,922 at June 30, 1996 and December 31, 1995, respectively....................... (1,072,343) (1,107,316) Cumulative Translation Adjustment................................ (184,933) (177,318) Unrealized Gains (Losses) on Investments......................... 1,838 3,987 ----------- ------------ Total Shareholders' Equity....................................... $ 1,045,808 $ 1,182,465 ----------- ------------ Total Liabilities and Shareholders' Equity....................... $ 3,769,832 $ 3,842,114 ========== ============
The accompanying notes are an integral part of the consolidated financial statements. -6- 7 The Dun & Bradstreet Corporation Notes to Consolidated Financial Statements (Unaudited) (Restated for Discontinued Operations in Accordance with APB 30) Note 1 - Basis of Presentation Pursuant to Accounting Principles Board Opinion No. 30, "Reporting the Results of Operations - Reporting the Effects of Disposal of a Segment of a Business, and Extraordinary, Unusual and Infrequently Occurring Events and Transactions" ("APB 30"), the Consolidated Financial Statements of D&B have been restated to reflect the probable dispositions of the companies that comprise D&B's Marketing Information Services, Software Services and Other Business Services business segments. These segments include companies that make up Cognizant, ACNielsen, D&B Software and NCH. Accordingly, the revenues, costs and expenses, and assets and liabilities of Cognizant, ACNielsen, D&B Software and NCH have been excluded from the respective captions in the Consolidated Statement of Income and Consolidated Statement of Financial Position. The net operating results of these entities have been reported, net of applicable income taxes, as "Income from Discontinued Operations" and the net assets of these entities have been reported as "Net Assets of Discontinued Operations". These consolidated financial statements should be read in conjunction with the financial statements and related notes in D&B's 1995 Annual Report on Form 10-K, the Company's filings on Form 10-Q for the quarters ended March 31, 1996 and June 30, 1996 and the Information Statements filed on Form 10 for Cognizant and ACNielsen ("the Information Statements"). Note 2 - Relationships Among D&B, Cognizant and ACNielsen after the Distribution For purposes of governing certain of the ongoing relationships among the Company, Cognizant and ACNielsen after the Distribution and to provide for orderly transition, the Company, Cognizant and ACNielsen will enter into various agreements, including a Distribution Agreement, Tax Allocation Agreement, Employee Benefits Agreement, Indemnity and Joint Defense Agreement, Intellectual Property Agreement, Shared Transaction Services Agreements, Data Services Agreement and Transition Services Agreement. Note 3 - Employee Benefit and Stock Plans At the Distribution, Cognizant and ACNielsen will assume responsibility for defined benefit pension and postretirement benefits for active employees of Cognizant and ACNielsen only; the responsibility for all D&B active employees and all others, principally retirees, will remain with D&B. Therefore, D&B will allocate to Cognizant and ACNielsen net liabilities totalling $5 million and $19 million, relating to defined benefit pension plans and postretirement benefit plans, respectively. -7- 8 Note 3 - Employee Benefit and Stock Plans (continued) D&B will retain the liability for all nonqualified supplemental pension plans related to benefits that were vested prior to the Distribution date. Cognizant and ACNielsen will guarantee payment of these benefits to their respective vested employees in the event that D&B is unable to satisfy its obligations. In connection with the Distribution, all existing restricted stock grants, that generally would have otherwise vested over a three-year period, will vest, resulting in a charge of approximately $9 million. Unexercised D&B stock options held by D&B employees, retirees and disabled employees as of the Distribution date will be adjusted to reflect the Distribution. Specifically, the terms of the unexercised options will be adjusted to preserve (i) the ratio of the exercise price per option to the fair market value per share and (ii) the aggregate spread between the fair market value per share over the exercise price per option. The other terms of the unexercised options will remain substantially identical to the terms in effect prior to the Distribution. The adjustment of the stock options will not result in a compensation charge to D&B. Note 4 - Reorganization Costs Management estimates costs of approximately $108 million to complete the reorganization. In addition, approximately $86 million of costs that would have been recorded in 1996 and future years will be accelerated entirely into 1996. Reorganization costs, which are recorded as incurred, totaled $9 million for the six months ended June 30, 1996. Reorganization costs include legal, investment banking, other advisory fees and employee and management incentive payments payable contingent upon successful completion of the Distribution. -8- 9 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. The Dun & Bradstreet Corporation By: Thomas W. Young --------------- Thomas W. Young Senior Vice President and Controller October 24, 1996 -9- 10 Exhibit Index
EXHIBIT NO. DESCRIPTION -------- --------------------------------------------------------------------------------- 27 -- Financial Data Schedule 99.1 -- Form of Distribution Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.2 -- Form of Tax Allocation Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.3 -- Form of Employee Benefits Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.4 -- Form of Intellectual Property Agreement between and among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.5 -- Form of Shared Transaction Services Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.6 -- Form of Data Services Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.7 -- Form of Transition Services Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation 99.8 -- Form of Indemnity and Joint Defense Agreement among The Dun & Bradstreet Corporation, Cognizant Corporation and ACNielsen Corporation
EX-27 2 FINANCIAL DATA SCHEDULE
5 DUN & BRADSTREET CORPORATION FINANCIAL DATA SCHEDULE FORM 8-K 1,000 6-MOS 12-MOS DEC-31-1996 DEC-31-1995 JUN-30-1996 DEC-31-1995 147,529 147,072 12,823 22,635 573,749 588,897 0 0 0 0 263,894 257,612 794,711 805,233 421,608 422,296 3,769,832 3,842,114 1,605,396 1,605,415 0 0 0 0 0 0 188,421 188,421 857,387 994,044 3,769,832 3,842,114 0 0 1,032,947 2,158,218 0 0 931,658 1,759,586 23,237 40,926 0 0 12,051 27,029 66,001 330,677 46,235 113,142 19,766 217,535 42,565 103,272 0 0 0 0 62,331 320,807 0.37 1.89 0.37 1.89
EX-99.1 3 DISTRIBUTION AGREEMENT 1 EXHIBIT 99.1 FORM OF DISTRIBUTION AGREEMENT This DISTRIBUTION AGREEMENT is dated as of [ ], 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 "Nielsen 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 "Saytam 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 marketing 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 Nielsen Media Research Business, the Gartner Group Business, the Pilot Business, the Erisco Business, the Saytam 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 2 2 indirectly, by Cognizant, and (ii) the Nielsen Marketing Business and the Non-U.S. and Non-Canadian 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 3 3 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: 4 4 (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 5 5 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) (i) 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 6 6 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; 7 7 (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, 8 8 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; 9 9 (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 10 10 (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 11 11 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, 12 12 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 Nielsen Media Research Business, the Gartner Business, the Pilot Business, the Erisco 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 after the date hereof and prior to the 13 13 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(ab) 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 act or failure to act by any director, officer, 14 14 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; (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 (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. 15 15 (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 to be entered into by 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. (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. 16 16 (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 such date as may hereafter be determined by D&B's Board of Directors as the date as of which the Distribution shall be effected. (ax) "Distribution Record Date" shall mean such date as may hereafter be determined by D&B's Board of Directors as the record date for the Distribution. (ay) "Effective Time" shall mean 12:01 a.m., New York time, on the Distribution Date. (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. (bb) "Gartner Group Business" shall have the meaning as defined in the recitals hereto. 17 17 (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 terms and conditions of any of the Shared Policies, whether or 18 18 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) "Nielsen 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, excess and umbrella policies, comprehensive general liability 19 19 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. (ce) "Tax Allocation Agreement" shall mean the Tax Allocation Agreement among D&B, Cognizant and ACNielsen. 20 20 (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 Effective Time all of Cognizant's and its Subsidiaries' right, title and interest in the ACNielsen Assets. 21 21 (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. (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 22 22 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 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): 23 23 (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. (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 24 24 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. (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 25 25 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 contingent liabilities arising in connection with such disposition to the extent such contingent 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 businesses known as Dun & Bradstreet Software and 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. (iv) D&B and Cognizant shall be liable for the portions of certain contingent liabilities described in Schedule 2.1(j)(iv) to the extent and in circumstances described in such Schedule. (k) Matters Relating to Certain Partnerships. (i) The interest in Duns Licensing Associates L.P. held by members of the Cognizant 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 Cognizant 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). 26 26 (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 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 Merrill Lynch & 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 have consummated those other transactions in connection with the Distribution that are contemplated by the Information Statement and 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. 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) 27 27 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 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 September 30, 1996 or which arise on or after October 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, $12.7 million to ACNielsen and $229.6 million to Cognizant. If, by November 1, 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 Effective Time, 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 Effective Time, from all positions as officers or directors of any member of the ACNielsen 28 28 Group in which they serve, and ACNielsen 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. (c) Subject to Section 2.5(d), ACNielsen 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 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 29 29 requirements of any or all applicable laws or judgments, it being agreed that the party to which any Assets are transferred shall 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). (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). (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). (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 requesting party and D&B, Cognizant or ACNielsen, as applicable. 30 30 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 Article II. In the event that any such transfer of Assets or 31 31 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: (i) as soon as reasonably practicable after the Distribution Date but in any event within six months 32 32 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; and (ii) as soon as is 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. (b) Except as otherwise specifically provided in any Ancillary Agreement: (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 "A.C. Nielsen" name, logo or other trademark or other ACNielsen intellectual property; and (ii) as soon as is 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 "A.C. Nielsen" 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 "A.C. Nielsen" name, 33 33 logo or other trademarks or ACNielsen intellectual property without the prior written consent of ACNielsen. (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 34 34 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. 35 35 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. 36 36 (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 37 37 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 38 38 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. 39 39 (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 40 40 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 41 41 Agreement or any Ancillary Agreement), 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. 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, 42 42 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. Section 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 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 43 43 (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 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 44 44 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 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 45 45 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 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 46 46 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 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. 47 47 (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 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 48 48 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 2.7, 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 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. 49 49 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, 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: One Diamond Hill Road Murray Hill, NJ 07974 Telecopy: (908) 665-5803 Attn: General Counsel To Cognizant Corporation: 200 Nyala Farms Westport, Connecticut 06880 Telecopy: (203) 222-4201 Attn: General Counsel To ACNielsen Corporation: 177 Broad Street Stamford, Connecticut 06901 Telecopy: (203) 961-3190 Attn: General Counsel 50 50 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. (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 51 51 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. 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. 52 52 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. 53 53 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: EX-99.2 4 TAX ALLOCATION AGREEMENT 1 EXHIBIT 99.2 FORM OF TAX ALLOCATION AGREEMENT This TAX ALLOCATION AGREEMENT is dated as of [ ], 1996, among THE DUN & BRADSTREET CORPORATION, a Delaware corporation ("D&B"), COGNIZANT CORPORATION, a Delaware corporation ("Cognizant"), and ACNIELSEN CORPORATION, a Delaware corporation ("ACNielsen") (collectively, the "Parties"). WHEREAS, as of the date hereof, D&B is the common parent of an affiliated group of domestic corporations within the meaning of Section 1504(a) of the Code, including members of the Cognizant Group (as defined below) and members of the ACNielsen Group (as defined below), and the members of the affiliated group have heretofore joined in filing consolidated federal income tax returns; WHEREAS, D&B proposes to distribute all of the outstanding stock of Cognizant and ACNielsen to its stockholders (the "Distribution") and, as a result of the Distribution, the Cognizant Group and the ACNielsen Group will not be included in the consolidated Federal income tax return of D&B for the portion of the year following the Distribution or in future years; WHEREAS, D&B, Cognizant and ACNielsen have entered into an agreement (the "Distribution Agreement") to, among other things, allocate certain assets and to allocate and assign responsibility for certain liabilities of the present D&B and its present and former subsidiaries; and WHEREAS, D&B, Cognizant and ACNielsen desire to allocate the tax burdens and benefits of transactions which occurred on or prior to the Distribution Date and to provide for certain other tax matters, including the assignment of responsibility for the preparation and filing of tax returns, the payment of taxes, and the prosecution and defense of any tax controversies; 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 Business" shall mean the businesses of the members of the ACNielsen Group, as conducted at any time 2 2 prior to, on or after the Distribution Date. Notwithstanding the foregoing, the ACNielsen Businesses shall not include (i) any activities or operations primarily related to, arising out of or resulting from any business terminated or divested prior to the Distribution Date; or (ii) any of the businesses listed on Schedule 1.1(b). (c) "ACNielsen Common Shares" shall mean all the outstanding shares of common stock of ACNielsen, together with the appurtenant share purchase rights. (d) "ACNielsen Group" shall mean ACNielsen and each corporation, partnership, limited liability company, or other entity contemplated to remain or become a Subsidiary of ACNielsen pursuant to the Distribution Agreement. (e) "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 Distribution Agreement, the Conveyancing and Assumption Instruments, the Employee Benefits Services and Liability Agreement, the Shared Transaction Services Agreement, the Transition Services Agreement, the Data Processing Agreement and the Intellectual Property Agreements. (f) "Code" shall mean the Internal Revenue Code of 1986, as amended, and the Treasury regulations promulgated thereunder, including any successor legislation. (g) "Cognizant" shall mean Cognizant Corporation, a Delaware corporation. (h) "Cognizant Business" shall mean the businesses of the members of the Cognizant Group, as conducted at any time prior to, on or after the Distribution Date. Notwithstanding the foregoing, the Cognizant Businesses shall not include (i) any activities or operations primarily related to, arising out of or resulting from any business terminated or divested prior to the Distribution Date; or (ii) any of the businesses listed on Schedule 1.1(h). (i) "Cognizant Common Shares" shall mean all the outstanding shares of common stock of Cognizant, together with the appurtenant share purchase rights. (j) "Cognizant Group" shall mean Cognizant and each corporation, partnership, limited liability company, or other entity contemplated to remain or become a Subsidiary of Cognizant pursuant to the Distribution Agreement. (k) "Consolidated Return" shall mean the consolidated federal income tax return of D&B for the period commencing on January 1, 1996, and including the members of the ACNielsen Group 3 3 and the members of the Cognizant Group through the Distribution Date. (l) "Controlled Entity" 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). (m) "D&B" shall mean The Dun & Bradstreet Corporation, a Delaware corporation. (n) "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. (o) "D&B Common Stock" shall mean the shares of common stock, par value $1.00 per share, of D&B. (p) "D&B Group" shall mean D&B and each person (other than a member of the Cognizant Group or the ACNielsen Group) that is a Subsidiary of D&B. (q) "Deferred Compensation Deduction" shall mean a deduction with respect to deferred compensation payments and/or the exercise of stock options in D&B by any former employee of the Old D&B Group if such deduction is disallowed for a member of the D&B Group and may be claimed by any member of the Cognizant Group or any member of the ACNielsen Group. (r) "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 share of D&B Common Stock. (s) "Distribution Agreement" shall have the meaning as defined in the recitals hereto. (t) "Distribution Date" shall mean such date as may hereafter be determined by D&B's Board of Directors as the date as of which the Distribution shall be effected. (u) "Distribution Record Date" shall mean such date as may hereafter be determined by D&B's Board of Directors as the record date for the Distribution. 4 4 (v) "Final Determination" shall mean the final resolution of liability for any Tax for any taxable period, including any related interest or penalties, by or as a result of: (i) a final and unappealable decision, judgment, decree or other order by any court of competent jurisdiction; (ii) a closing agreement or accepted offer in compromise under Section 7121 or 7122 of the Code, or comparable agreement under the laws of other jurisdictions which resolves the entire tax liability for any taxable period; (iii) any allowance of a refund or credit in respect of an overpayment of tax, but only after the expiration of all periods during which such refund may be recovered by the jurisdiction imposing the Tax; or (iv) any other final disposition, including by reason of the expiration of the applicable statute of limitations. (w) "Foreign Tax Agreement" shall have the meaning as defined in Section 6.2. (x) "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. (y) "Included Party" shall have the meaning as defined in Section 2.1. (z) "Income Taxes" shall mean any federal, state or local Taxes determined by reference to income or imposed in lieu of income taxes, such as taxes based on net worth or gross receipts. (aa) "Indemnifying Party" shall have the meaning as defined in Section 3.6. (ab) "Indemnitee" shall have the meaning as defined in Section 3.6. (ac) "IRS" shall mean the Internal Revenue Service. (ad) "Nonperforming Party" shall have the meaning as defined in Section 5.2. (ae) "Old D&B Consolidated Group" shall mean D&B and all of the direct and indirect Subsidiaries of D&B prior to the Distribution Date that joined in or were eligible to join the Consolidated Return or any Prior Period Consolidated Return. (af) "Old D&B Group" shall mean D&B and all of its Subsidiaries (direct and indirect, domestic and foreign) prior to the Distribution. (ag) "Other Taxes" shall mean any federal, state or local Taxes other than Income Taxes. 5 5 (ah) "Parties" shall have the meaning as defined in the recitals hereto. (ai) "person" shall mean any natural person, corporation, business trust, joint venture, association, company, partnership or government, or any agency or political subdivision thereof. (aj) "Preparing Party" shall have the meaning as defined in Section 2.1. (ak) "Prior Period Consolidated Return" shall mean any consolidated tax return of D&B filed, or to be filed, for years prior to the Consolidated Return year. (al) "Reorganization Tax Payment" shall mean the payment of any Tax for which Cognizant or D&B is liable pursuant to Section 3.3 of this Agreement and the imposition and/or payment of which will permit another Party or any Subsidiary to increase deductions, losses or tax credits or decrease income, gains or recapture of tax credits for any taxable period or periods beginning after or including but not ending on the Distribution Date. (am) "Reorganizations" shall mean the series of contributions and distributions of Controlled Entities and assets, transfers and assumptions of liabilities, and other transactions whereby the D&B Group, the ACNielsen Group and the Cognizant Group are formed and all other Controlled Entities of D&B prior to the Distribution are placed under the control of the appropriate parent corporation(s) in preparation for the Distribution. (an) "Separate Business Foreign Taxes" shall have the meaning as defined in Section 3.1(d). (ao) "Separate Company Income Tax Item" shall mean any item or position reported or reportable on a state or local Income Tax Return other than those items determined by the D&B corporate office and allocated by the corporate office to the operating division or entity filing such Income Tax Return. (ap) "Subpart F Income" shall have the meaning as defined in Section 3.5. (aq) "Subsidiary" shall mean any entity of which another entity's ownership satisfies the 80-percent voting and value test defined in Section 1504(a)(2) of the Code, whether directly or indirectly. (ar) "Tax" or "Taxes" whether used in the form of a noun or adjective, shall mean taxes on or measured by income, franchise, gross receipts, sales, use, excise, payroll, personal property, real property, ad-valorem, value-added, leasing, 6 6 leasing use or other taxes, levies, imposts, duties, charges or withholdings of any nature. Whenever the term "Tax" or "Taxes" is used (including, without limitation, regarding any duty to reimburse another party for indemnified taxes or refunds or credits of taxes) it shall include penalties, fines, additions to tax and interest thereon. (as) "Tax Benefit" shall mean the sum of the amount by which the tax liability (after giving effect to any alternative minimum or similar tax) of a corporation or group of affiliated corporations to the appropriate taxing authority is reduced (including, without limitation, by deduction, entitlement to refund, credit or otherwise, whether available in the current taxable year, as an adjustment to taxable income in any other taxable year or as a carryforward or carryback, as applicable) plus any interest from such government or jurisdiction relating to such tax liability. (at) "Tax Item" shall mean any item of income, capital gain, net operating loss, capital loss, deduction, credit or other tax attribute relevant to the calculation of a Tax liability. (au) "Tax Returns" shall mean all reports or returns (including information returns) required to be filed or that may be filed for any period with any taxing authority (whether domestic or foreign) in connection with any Tax or Taxes (whether domestic or foreign). (av) "Timing Adjustment" shall mean any adjustment which (x) decreases deductions, losses or credits or increases income (including any increases in income where no income was previously reported), gains or recapture of tax credits for the period in question, and for which D&B is liable pursuant to this Agreement, and (y) will permit any member of the ACNielsen Group or any member of the Cognizant Group to increase deductions, losses or tax credits or decrease income, gains or recapture of tax credits for any taxable period or periods beginning after or including but not ending on the Distribution Date. 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. 7 7 ARTICLE II. PREPARATION AND FILING OF TAX RETURNS SECTION 2.1. Manner of Preparation. (a) All Tax Returns filed after the Distribution Date shall be prepared on a basis that is consistent with the rulings obtained from the IRS or any other Governmental Authority in connection with the Reorganizations or Distribution (in the absence of a controlling change in law or circumstances) and shall be filed on a timely basis (including pursuant to extensions) by the party responsible for such filing under this Agreement. In the absence of a controlling change in law or circumstances and unless deviation from past practice would have no adverse effect on any of the Parties, all Tax Returns filed after the date of this Agreement shall be prepared on a basis consistent with the elections, accounting methods, conventions, assumptions and principles of taxation used for the most recent taxable periods for which Tax Returns involving similar Tax Items have been filed; provided, however, that a party filing any Tax Return that does not conform to such past practices shall not be liable for any additional Tax liability imposed, in whole or in part, as a result of such deviation from past practice if: (i) for Tax Returns filed within three years of the Distribution Date, 30 days prior to the filing of such Tax Return, the party filing such Tax Return notifies all parties that may be adversely affected; and (ii) the party filing such Tax Return establishes that conformity with past practice involves a significant risk of the imposition of a penalty. Subject to the provisions of this Agreement, all decisions relating to the preparation of Tax Returns shall be made in the sole discretion of the party responsible under this Agreement for its preparation; provided, however, that to the extent a party (or any of its businesses) is included in a Tax Return prepared by another party (the "Preparing Party"), the party not responsible for preparing the Tax Return (the "Included Party") shall have the right to review and comment on such Tax Return prior to the filing thereof in the following manner: (i) The Preparing Party shall submit any part of such Tax Return relating to the Included Party to the Included Party at least 21 days prior to the date on which such Tax Return is due (including extensions). The Included Party shall submit its comments to the Preparing Party within 10 days of receipt of the relevant portions of such Tax Return. The Preparing Party shall alter such Tax Return to reflect the comments of the Included Party unless the Preparing Party reasonably believes that such alteration would have an adverse impact upon the Preparing Party. (b) Unless otherwise required by the IRS, any Governmental Authority or a court, the Parties hereby agree to file all Tax Returns, and to take all other actions, in a manner consistent with the position that the last day on which any member of the ACNielsen Group and any member of the Cognizant Group was included in the Old D&B Consolidated Group is the 8 8 Distribution Date. For any period that includes but does not end on the Distribution Date, to the extent permitted by law or administrative practice, the taxable year of each member of the Old D&B Consolidated Group and any group of such members shall be treated as closing on the Distribution Date. If a taxable year of any member of the Old D&B Consolidated Group or any group or other combination of such members that begins on or before and ends after the Distribution Date is not treated under the previous sentence as closing on the Distribution Date, it will be treated for purposes of this Agreement as if the member or group had a taxable year that ended on the Distribution Date, except that Tax Items that are calculated on an annual basis shall be apportioned on a time basis. SECTION 2.2. Predistribution Tax Returns. (a) All consolidated federal Income Tax Returns of the Old D&B Consolidated Group, as well as any separate, non-consolidated federal Income Tax Returns of any member of the Old D&B Group, that are required to be filed for periods beginning before the Distribution Date shall be prepared and filed by D&B. (b) All state and local Income Tax Returns of any member of the Old D&B Consolidated Group that may be or are required to be filed for periods beginning before the Distribution Date shall be prepared and filed by D&B. (c) All Tax Returns for Other Taxes of any member of the Old D&B Consolidated Group that may be or are required to be filed for any period beginning before the Distribution Date shall be prepared and filed by ACNielsen if they relate to an ACNielsen Business, by Cognizant if they relate to a Cognizant Business, and by D&B if they relate to a D&B Business. If any such Tax Return relates to businesses of more than one of the Parties, then the entity that filed the corresponding Tax Return for the most recent period for which such a Tax Return has been filed, or, if no such corresponding Tax Return has been filed, the appropriate entity in accordance with local law or custom, shall prepare and file such Tax Return. (d) All foreign Tax Returns that are required to be filed by or relating to any member of the Old D&B Group for periods beginning before the Distribution Date shall be prepared and filed by the entity that filed the corresponding Tax Return for the most recent period for which such a Tax Return has been filed, or, if no such corresponding Tax Return has been filed, by the appropriate entity in accordance with local law or custom. SECTION 2.3. Post-Distribution Tax Returns. (a) The filing of all Tax Returns for periods beginning on or after the Distribution Date shall be the responsibility of D&B if they relate to the D&B Group or any 9 9 member thereof, shall be the responsibility of ACNielsen if they relate to the ACNielsen Group or any member thereof, and shall be the responsibility of Cognizant if they relate to the Cognizant Group or any member thereof. (b) In the case of any partnership in which a member of the Old D&B Consolidated Group is the designated tax matters partner, such entity shall continue to be responsible for the preparation and filing of such partnership's Tax Returns. ARTICLE III. PAYMENT OF TAXES SECTION 3.1. Predistribution Taxes. (a) D&B shall be liable for and shall pay all Taxes due (or receive all refunds) in connection with the filing of the Old D&B Consolidated Group's consolidated federal Income Tax Return, as well as any separate, non-consolidated federal Income Taxes of any member of the Old D&B Group, for all taxable periods beginning before the Distribution Date. (b) Except to the extent provided below, D&B shall be liable for and shall pay to the relevant taxing authority all state and local Income Taxes (or receive all refunds) for any taxable periods for which D&B has filing responsibility under Section 2.2(b) of this Agreement, including any audit adjustments to such Taxes. To the extent that any Tax Return for such state and local Income Taxes includes Income Taxes relating to a business of Cognizant or ACNielsen, the Included Party shall prepare and deliver to D&B, at least 90 days prior to the due date (including extensions) of such Tax Return, a true and correct accounting of all relevant Tax Items relating to the Included Party's business. (i) Straddle Periods. (A) In the case of any such taxable period that does not end on or before the Distribution Date, ACNielsen shall also provide D&B, at least 90 days prior to the due date (including extensions) of the relevant Tax Return, with a true and correct accounting of all relevant Tax Items and corresponding Taxes of each member of the ACNielsen Group as if the taxable period for such entity began immediately after the Distribution Date (using the principles provided in Section 2.1(b) of this Agreement) and ACNielsen shall be liable for and shall pay to D&B any such Taxes attributable to such period, including any audit adjustments to such Taxes. (B) In the case of any such taxable period that does not end on or before the Distribution Date, Cognizant shall also provide D&B, at least 90 days prior to the due date (including extensions) of the relevant Tax Return, with a true and correct accounting of all relevant Tax Items and corresponding Taxes of 10 10 each member of the Cognizant Group as if the taxable period for such entity began immediately after the Distribution Date, (using the principles provided in Section 2.1(b) of this Agreement) and Cognizant shall be liable for and shall pay to D&B any such Taxes attributable to such period, including any audit adjustments to such Taxes. (ii) Adjustments to Separate Company Income Tax Items. (A) If an audit adjustment to any separate, non-consolidated state or local Income Tax Return of a member of the ACNielsen Group for any period beginning prior to the Distribution Date is made by the state or local governmental authority and relates to a Separate Company Income Tax Item, then ACNielsen shall be liable for such audit adjustment. (B) If an audit adjustment to any separate, non-consolidated state or local Income Tax Return of a member of the Cognizant Group for any period beginning prior to the Distribution Date is made by the state or local governmental authority and relates to a Separate Company Income Tax Item, then Cognizant shall be liable for such audit adjustment. (c) The entity responsible for the filing of any Tax Return for Other Taxes pursuant to Section 2.2(c) shall pay to the relevant taxing authority all Other Taxes due or payable (or receive all refunds) in connection therewith; provided, however, that each of the Parties shall be liable for all Other Taxes (or be entitled to receive all refunds) for all periods prior to the Distribution Date, including audit adjustments thereto, relating to such Party's businesses. To the extent any Tax Return for such Other Taxes includes Other Taxes relating to a business other than the Preparing Party's businesses, the Included Party shall prepare and deliver to the Preparing Party, at least 90 days prior to the due date (including extensions) of such Tax Return, a true and correct accounting of all relevant Tax Items and corresponding Taxes relating to the Included Party's business and shall pay the Preparing Party the amount of any such Other Taxes attributable to the Included Party's business at that time. (d) Except as provided in Schedule 3.1(d), the entity responsible for the filing of any foreign Tax Return pursuant to Section 2.2(d) shall pay to the relevant taxing authority all Taxes due or payable (or receive all refunds) in connection therewith; provided, however, that each of the Parties shall be liable for all foreign Taxes (or be entitled to receive all refunds) for all taxable periods beginning prior to the Distribution Date, including audit adjustments thereto, relating to such Party's businesses. To the extent any foreign Tax Return includes Taxes relating to a business other than the Preparing Party's business, the Included Party shall prepare and deliver to the Preparing Party, at least 90 days prior to the due date (including extensions) of such foreign Tax Return, a true and correct accounting of all relevant Tax Items and corresponding 11 11 Taxes relating to the Included Party's business for the taxable period ("Separate Business Foreign Taxes") and shall pay the Preparing Party the amount of any such Separate Business Foreign Taxes at that time. (i) Separate Business Foreign Taxes shall be calculated as if the Included Party's business were a separate taxpayer for the relevant taxable period. All such calculations shall be based upon the business's actual tax attributes for the relevant taxable period, including the use of the business's tax attributes (such as losses or credits) from prior periods that are not otherwise utilized and that are carried over to the relevant taxable period under local law. (ii) Tax items that relate to or arise out of the tax planning of the group of entities or businesses included in the relevant foreign Tax Return as a whole rather than any separate entity or business shall not be included in the calculation of Separate Business Foreign Taxes. (iii) If the total liability for Taxes reported as due and payable on the relevant foreign Tax Return exceeds or is less than the total of the Separate Business Foreign Taxes for all businesses included in such foreign Tax Return, then the cost or benefit of any net difference shall be allocated to each business in proportion to the amount of taxable income generated by such business. (iv) Notwithstanding any statement to the contrary in this Section 3.1(d), the Separate Business Foreign Taxes of any entity shall not exceed the total liability for Taxes reported as due and payable on the relevant foreign Tax Return. (v) In the event of any Final Determination upholding an audit adjustment to the amount of foreign Taxes reported as due and payable on the relevant foreign Tax Return, Separate Business Foreign Taxes shall be recalculated to incorporate any such adjustment. SECTION 3.2. Post-Distribution Taxes. Unless otherwise provided in this Agreement: (a) D&B shall pay all Taxes and shall be entitled to receive and retain all refunds of Taxes with respect to periods beginning on or after the Distribution Date that are attributable to the D&B Group or any member thereof; (b) Cognizant shall pay all Taxes and shall be entitled to receive and retain all refunds of Taxes with respect to periods beginning on or after the Distribution Date that are attributable to the Cognizant Group or any member thereof; (c) ACNielsen shall pay all Taxes and shall be entitled to receive and retain all refunds of Taxes with respect 12 12 to periods beginning on or after the Distribution Date that are attributable to the ACNielsen Group or any member thereof. SECTION 3.3. Restructuring Taxes. Notwithstanding any statement to the contrary in this Agreement and except as otherwise provided in the Distribution Agreement, to the extent that any Taxes are found to arise out of the Reorganizations, then any such Tax liability incurred by the Parties (or any of their Subsidiaries) shall be the responsibility of D&B. SECTION 3.4. Gain Recognition Agreements. (a) In the event that the Cognizant Group transfers, liquidates or otherwise disposes of the stock or assets of any entity listed on Schedule 3.4(a) and such transfer, liquidation or disposition results in the D&B Group recognizing gain pursuant to a gain recognition agreement under Section 367(a) of the Code, then Cognizant shall be liable for any resulting Taxes, including interest, that any member of the D&B Group is required to pay. (b) In the event that the ACNielsen Group transfers, liquidates or otherwise disposes of the stock or assets of any entity listed on Schedule 3.4(b) and such transfer, liquidation or disposition results in the D&B Group recognizing gain pursuant to a gain recognition agreement under Section 367(a) of the Code, then ACNielsen shall be liable for any resulting Taxes, including interest, that any member of the D&B Group is required to pay. SECTION 3.5. Subpart F Inclusions. (a) If income earned by any foreign member of the Cognizant Group is required to be included in the United States federal income tax return of any member of the Cognizant Group pursuant to Subpart F of the Code ("Subpart F Income"), then D&B shall be liable for the Taxes attributable to the portion of such income generated while such foreign member of the Cognizant Group was a member of the Old D&B Group. The portion of such income which shall be considered attributable to the period in which such foreign member was a member of the Old D&B Group shall be computed as if the foreign member's taxable year ended on the Distribution Date. (b) If income earned by any foreign member of the ACNielsen Group constitutes Subpart F Income of any member of the ACNielsen Group, then D&B shall be liable for the Taxes attributable to the portion of such income generated while such foreign member of the ACNielsen Group was a member of the Old D&B Group. The portion of such income which shall be considered attributable to the period in which such foreign member was a member of the Old D&B Group shall be computed as if the foreign member's taxable year ended on the Distribution Date. (c) The amount payable by D&B pursuant to this Section 3.5 shall not exceed the actual Taxes payable with respect to 13 13 such Subpart F Income minus any foreign tax credits attributable to such Subpart F Income. SECTION 3.6. Indemnification. (a) Indemnification by D&B. D&B shall indemnify, defend and hold harmless Cognizant and ACNielsen (and their respective affiliates) from and against any and all Tax liabilities allocated to D&B by this Agreement. (b) Indemnification by Cognizant. Cognizant shall indemnify, defend and hold harmless D&B and ACNielsen (and their respective affiliates) from and against any and all Tax liabilities allocated to Cognizant by this Agreement. (c) Indemnification by ACNielsen. ACNielsen shall indemnify, defend and hold harmless D&B and Cognizant (and their respective affiliates) from and against any and all Tax liabilities allocated to ACNielsen by this Agreement. (d) Indemnity Payments. (i) To the extent that one party (the "Indemnifying Party") owes money to another party (the "Indemnitee") pursuant to this Section 3.6, the Indemnitee shall, within 14 days after receiving the Indemnifying Party's calculations (as specified in Sections 3.1(b), 3.1(c) and 3.1(d)), submit to the Indemnifying Party the Indemnitee's calculations of the amount required to be paid pursuant to this Section 3.6, showing such calculations in sufficient detail so as to permit the Indemnifying Party to understand the calculations. The Indemnifying Party shall pay the Indemnitee, no later than 30 days prior to the due date (including extensions) of the relevant Tax Returns or 14 days after the Indemnifying Party receives the Indemnitee's calculations, the amount for which the Indemnifying Party is required to pay or indemnify the Indemnitee under this Section 3.6. The Indemnifying Party shall have the right to disagree with the Indemnitee's calculations. Any dispute regarding such calculations shall be resolved in accordance with Section 5.4 of this Agreement. (ii) All indemnity payments shall be calculated on a pre-tax basis and shall be treated as contributions to capital and/or dividends immediately prior to the Distribution. ARTICLE IV. TAX ATTRIBUTES, TIMING ADJUSTMENTS AND REORGANIZATION TAX PAYMENTS SECTION 4.1. Carrybacks. In the event of the realization of any deduction, loss or credit by a party for any taxable period beginning on or after the Distribution Date, the party realizing such deduction, loss or credit may, in its sole discretion, and to the extent permitted under applicable tax law, elect not to carry back such deduction, loss or credit. To the 14 14 extent any amount is carried back and used by D&B for a taxable period beginning prior to the Distribution Date, D&B shall not be obligated to make any payment regarding such carryback. SECTION 4.2. Deductions or Credits. Except as provided in Section 4.3, none of the Parties shall be obligated to make a payment to another party as a result of utilizing a net operating loss, credit or similar tax attribute arising in a period beginning prior to the Distribution Date. SECTION 4.3. Timing Adjustments, Reorganization Tax Payments, and Deferred Compensation Deductions. (a) If an audit or other examination of any federal, state or local Tax Return (x) for any period beginning prior to the Distribution Date shall result (by settlement or otherwise) in a Timing Adjustment in favor of the ACNielsen Group or any member thereof or the Cognizant Group or any member thereof, or (y) for any taxable period shall result (by settlement or otherwise) in a Deferred Compensation Deduction in favor of the ACNielsen Group or any member thereof or the Cognizant Group or any member thereof, or if any Reorganization Tax Payment in favor of the ACNielsen Group or any member thereof or the Cognizant Group or any member thereof is made by D&B, then: (i) D&B shall notify ACNielsen or Cognizant, as the case may be, and shall provide ACNielsen or Cognizant with adequate information so that it can reflect on the appropriate Tax Returns any resulting increases in deductions, losses or tax credits or decreases in income, gains or recapture of tax credits; (ii) ACNielsen or Cognizant, as the case may be, shall pay D&B the amount of any Tax Benefit that results from such Timing Adjustment, Reorganization Tax Payment, or Deferred Compensation Deduction within 30 days of the date such Tax Benefits are realized; (iii) Notwithstanding the foregoing, ACNielsen or Cognizant, as the case may be, shall only be required to take steps to obtain such Tax Benefit or to pay D&B if, in the opinion of ACNielsen's or Cognizant's tax counsel, which counsel shall be reasonably acceptable to D&B, the reporting of such Tax Benefit shall not subject ACNielsen or Cognizant to the imposition of a penalty. (b) If any Reorganization Tax Payment in favor of the ACNielsen Group or any member thereof or the D&B Group or any member thereof is made by Cognizant, then: (i) Cognizant shall notify ACNielsen or D&B, as the case may be, and shall provide ACNielsen or D&B with adequate information so that it can reflect on the appropriate Tax Returns 15 15 any resulting increases in deductions, losses or tax credits or decreases in income, gains or recapture of tax credits; (ii) ACNielsen or D&B, as the case may be, shall pay Cognizant the amount of any Tax Benefit that results from such Reorganization Tax Payment within 30 days of the date such Tax Benefits are realized. (iii) Notwithstanding the foregoing, ACNielsen or D&B, as the case may be, shall only be required to take steps to obtain such Tax Benefit or to pay Cognizant if, in the opinion of ACNielsen's or D&B's tax counsel, which counsel shall be reasonably acceptable to Cognizant, the reporting of such Tax Benefit shall not subject ACNielsen or D&B to the imposition of a penalty. (c) Realization of Tax Benefits. (i) For purposes of this Section 4.3, a Tax Benefit shall be deemed to have been realized at the time any refund of Taxes is received or applied against other Taxes due, or at the time of filing of a Tax Return (including any Tax Return relating to estimated Taxes) on which a loss, deduction or credit is applied in reduction of Taxes which would otherwise be payable; provided, however, that where a party has other losses, deductions, credits or similar items available to it, such deductions, credits or similar items of such party may be applied prior to the use of any Timing Adjustment, Reorganization Tax Payment, or Deferred Compensation Deduction. (ii) The party in receipt of a Tax Benefit may, at its election, pay the amount of any Tax Benefit to D&B rather than filing amended returns or otherwise reflecting adjustments or taking positions on its Tax Returns. If such an election is made, the party will be treated as having realized a Tax Benefit at the time it would have realized a Tax Benefit had it chosen to file amended returns or otherwise to reflect adjustments or to take positions on its Tax Returns. (d) Tax Benefits Subsequently Denied. If any Tax Benefit realized pursuant to Section 4.3(c)(i) is subsequently denied, then D&B shall refund the amount of any payment for such Tax Benefit within 30 days of its notification by ACNielsen or Cognizant, as the case may be, that a Final Determination has been reached denying the claimed Tax Benefit. SECTION 4.4. Competent Authority Relief. If as a result of any audit of a taxable period beginning prior to the Distribution Date, a Party (or Subsidiary) is required to adjust its income, deductions, credits or allowances under Section 482 of the Code or under similar principles in a foreign jurisdiction, and the payment of additional Taxes in accordance with such a determination allows another Party (or Subsidiary) to obtain competent authority relief as a result thereof, then the 16 16 Party eligible to obtain such relief shall: (a) execute or cause to be executed any powers of attorney or other documents necessary to enable the other Party to pursue such relief at its own expense; and (b) cooperate with the other Party and the competent authorities in seeking such relief. If a mutual agreement is reached among the competent authorities, then the Party (or Subsidiary) realizing a Tax Benefit as a result thereof shall pay the amount of such Tax Benefit to the Party (or Subsidiary) for which the Tax liability is correspondingly increased within 30 days of the date such Tax Benefit is realized (within the meaning of Section 4.3(c) of this Agreement). If any Tax Benefit so realized is subsequently denied, then the Party in receipt of payment therefor shall refund the amount of any such payment within 30 days of its notification by the payor that a Final Determination has been reached denying the claimed Tax Benefit. ARTICLE V. TAX AUDITS, TRANSACTIONS AND OTHER MATTERS SECTION 5.1. Tax Audits and Controversies. In the case of any audit, examination or other proceeding ("Proceeding") brought against any Party (or Subsidiary) with respect to Taxes for which another Party is or may be liable pursuant to this Agreement, the Party subject to such Proceeding shall promptly inform the other Party and shall execute or cause to be executed any powers of attorney or other documents necessary to enable the other Party to take all actions desired with respect to such Proceeding to the extent such Proceeding may affect the amount of Taxes for which the other Party is liable pursuant to this Agreement. Each Party shall have the right to control, at its own expense, the portion of any such Proceeding that relates to Taxes for which such Party is or may be liable pursuant to this Agreement; provided, however, that such Party shall consult with the other Parties with respect to any issue that may affect another Party (or Subsidiary). The Party in control of such Proceeding or any part thereof shall not enter into any final settlement or closing agreement that may adversely affect another Party (or Subsidiary) without the consent of such other Party, which consent may not unreasonably be withheld. Where consent to any final settlement or closing agreement is withheld, the Party withholding consent shall continue or initiate further proceedings, at its own expense, and the liability of the Party in control of such Proceeding shall not exceed the liability that would have resulted from the proposed closing agreement or final settlement (including interest, additions to tax and penalties which have accrued at that time). SECTION 5.2. Cooperation. D&B, ACNielsen and Cognizant shall cooperate with each other in the filing of any Tax Returns and the conduct of any audit or other proceeding and each shall execute and deliver such powers of attorney and other documents and make available such information and documents as are necessary to carry out the intent of this Agreement. To the extent such cooperation involves the services of officers, 17 17 directors, employees, or agents of a Party, such services shall be made available in accordance with Section 2.9 of the Distribution Agreement. Each party agrees to notify the other parties of any audit adjustment that does not result in Tax liability but can reasonably be expected to affect Tax Returns of the other parties or any of their Subsidiaries. Notwithstanding any other provision of this Agreement, if a party (the "Nonperforming Party") fails to give its full cooperation and use its best efforts in the conduct of an audit or other proceeding as provided by this Section 5.2, and such failure results in the imposition of additional Taxes for the period or periods involved in the audit or other proceeding, the Nonperforming Party shall be liable in full for such additional Taxes. SECTION 5.3. Retention of Records; Access. Beginning on the Distribution Date, D&B, ACNielsen and Cognizant shall, and shall cause each of their Controlled Entities to: (a) retain adequate records, documents, accounting data and other information (including computer data) necessary for the preparation and filing of all Tax Returns required to be filed by any member of the Old D&B Group or any combination of such members and for any audits and litigation relating to such Tax Returns or to any Taxes payable by any member of the Old D&B Group or any combination of such members; and (b) give to the other parties reasonable access to such records, documents, accounting data and other information (including computer data) and to its personnel and premises, for the purpose of the review or audit of such reports or returns to the extent relevant to an obligation or liability of a party under this Agreement and in accordance with the procedures provided in Article IV of the Distribution Agreement. The obligations set forth in these paragraphs 5.3(a) and 5.3(b) shall continue until the final conclusion of any litigation to which the records and information relate or until expiration of all applicable statutes of limitations, whichever is longer. SECTION 5.4. Dispute Resolution. Any 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, shall be resolved in the manner set forth in Article VI of the Distribution Agreement. SECTION 5.5. Confidentiality; Ownership of Information; Privileged Information. The provisions of Article IV of the Distribution Agreement relating to confidentiality of information, ownership of information, privileged information and related matters shall apply with equal force to any records and information prepared and/or shared by and among the Parties in carrying out the intent of this Agreement. 18 18 ARTICLE VI. MISCELLANEOUS SECTION 6.1. 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 Sections 2.1(j)(i), 2.1(j)(ii), 2.7, 2.10 and 4.5 and Article VI of the Distribution Agreement, which shall prevail over any inconsistent or conflicting provisions in this Agreement, notwithstanding any other provisions in this Agreement to the contrary, in the event and to the extent that there shall be a conflict between the provisions of this Agreement and the provisions of the Distribution Agreement, this Agreement shall control. SECTION 6.2. Master Tax Allocation Agreement. This Agreement, including the Exhibits and Schedules, shall take precedence over any and all agreements with respect to foreign taxes among members of the D&B Group, the ACNielsen Group, and the Cognizant Group (a "Foreign Tax Agreement"). In the event that any payment is made or other action taken by a member of the D&B Group, the ACNielsen Group, or the Cognizant Group pursuant to any Foreign Tax Agreement and contrary to the terms of this Agreement, then an offsetting indemnity payment shall be made by the appropriate Party to the injured Party to conform with the provisions of this Agreement. SECTION 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 have been signed by each of the parties and delivered to the other parties. SECTION 6.4. 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 6.5. Expenses. Except as otherwise set forth in this 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 shall be charged to and paid by D&B. Except as otherwise set forth in this Agreement, each party shall bear its own costs and expenses incurred after the Distribution Date. SECTION 6.6. 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 19 19 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: One Diamond Hill Road Murray Hill, NJ 07974 Telecopy: (908) 665-5803 Attn: General Counsel To Cognizant Corporation: 200 Nyala Farms Westport, CT 06880 Telecopy: (203) 222-4201 Attn: General Counsel To ACNielsen Corporation: 177 Broad Street Stamford, CT 06901 Telecopy: (203) 961-3190 Attn: General Counsel SECTION 6.7. 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 6.8. Amendments. This Agreement may not be modified or amended except by an agreement in writing signed by each of the parties hereto. SECTION 6.9. Assignment. This Agreement shall not be assignable, in whole or in part, directly or indirectly, by any party hereto without the prior written consent of the other parties hereto, and any attempt to assign any rights or obligations arising under this Agreement without such consent shall be void. SECTION 6.10. 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. 20 20 SECTION 6.11. Termination. This Agreement may be terminated, 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 stockholders 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. SECTION 6.12. Controlled Entities. 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 Controlled Entity of such party or by any entity that is contemplated to be a Controlled Entity of such party on and after the Distribution Date. SECTION 6.13. Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and their respective Subsidiaries 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 6.14. 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 6.15. 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. SECTION 6.16. 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 6.17. Consent to Jurisdiction. Without limiting the provisions of Section 5.4 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, 21 21 suit or proceeding in New York with respect to any matters to which it has submitted to jurisdiction in this Section 6.17. 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 6.18. 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. 22 22 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: EX-99.3 5 EMPLOYEE BENEFITS AGREEMENT 1 EXHIBIT 99.3 FORM OF EMPLOYEE BENEFITS AGREEMENT This EMPLOYEE BENEFITS AGREEMENT is dated as of ________ __, 1996 (the "Agreement"), among THE DUN & BRADSTREET CORPORATION, a Delaware corporation ("D&B"), COGNIZANT CORPORATION, a Delaware corporation, ("Cognizant"), and ACNIELSEN CORPORATION, a Delaware corporation ("ACNielsen"). 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 take certain steps to reorganize D&B's Subsidiaries (as defined herein) 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"); and WHEREAS, each of D&B, Cognizant and ACNielsen has determined that it is necessary and desirable to allocate and assign responsibility for certain employee benefit matters in respect of such entities on and after the Effective Time (as defined herein). NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, D&B, Cognizant and ACNielsen agree as follows: ARTICLE I DEFINITIONS SECTION 1.1. Definitions. Capitalized terms used in this Agreement shall have the following meanings: "ACNielsen" shall mean ACNielsen Corporation, a Delaware corporation. "ACNielsen Bifurcated Savings Plan Employees" shall have the meaning set forth in Section 3.3(a) of this Agreement. "ACNielsen Common Shares" shall have the meaning set forth in the recitals hereto. "ACNielsen Employees" shall mean persons who, immediately after the Effective Time, are employed by the ACNielsen Group (including persons who are absent from work by reason of layoff or leave of absence and inactive employees treated as such by agreement therewith). 2 2 "ACNielsen Group" shall mean ACNielsen and each Business Entity which is contemplated to remain or become a Subsidiary of ACNielsen pursuant to the Distribution Agreement. "ACNielsen Lump-Sum Savings Plan Employees" shall have the meaning set forth in Section 3.3(a) of this Agreement. "ACNielsen Replacement Plan" shall mean the replacement plan to be adopted by ACNielsen pursuant to Section 6.1(c) of this Agreement. "ACNielsen Retirement Eligible Employees" shall have the meaning set forth in Section 5.6 of this Agreement. "ACNielsen Retirement Plan" shall mean the defined benefit plan to be adopted by ACNielsen pursuant to Section 2.3(a) of this Agreement. "ACNielsen Retirement Plan Effective Date" shall have the meaning set forth in Section 2.3(a) of this Agreement. "ACNielsen Retirement Plan Segregation Ratio" shall equal a fraction, the numerator of which is the Present Value of the accrued vested and nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of the ACNielsen Transferred Retirement Plan Employees under the D&B Retirement Plan at the Effective Time, and the denominator of which is the Present Value of the accrued vested and nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of the D&B Pre-Distribution Employees under the D&B Retirement Plan at the Effective Time. "ACNielsen Retirement Plan Transfer Date" shall have the meaning set forth in Section 2.3(b) of this Agreement. "ACNielsen Savings Plan" shall mean the defined contribution plan to be adopted by ACNielsen pursuant to Section 3.3(a) of this Agreement. "ACNielsen Savings Plan Transfer Date" shall have the meaning set forth in Section 3.3(b) of this Agreement. "ACNielsen Transferred Retirement Plan Employees" shall have the meaning set forth in Section 2.3(a) of this Agreement. "ACNielsen Transferred Savings Plan Employees" shall have the meaning set forth in Section 3.3(a) of this Agreement. "Action" shall mean any action, suit, arbitration, inquiry, proceeding or investigation by or before any court, any governmental or other regulatory or administrative agency, body or commission or any arbitration tribunal. "Affiliate" shall mean, when used with respect to a specified person, another person that controls, is controlled by, 3 3 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. "Ancillary Agreements" shall mean all of the written agreements, instruments, assignments or other written arrangements (other than this Agreement and the Distribution Agreement) entered into in connection with the transactions contemplated by this Agreement and the Distribution Agreement, including, without limitation, the Conveyancing and Assumption Instruments, the Data Services Agreements, the Intellectual Property Agreement, the Shared Transaction Services Agreements, the Tax Allocation Agreement and the Transition Services Agreement. "Assets" shall have the meaning set forth in Section 1.1(q) of the Distribution Agreement. "Board of Directors" shall mean, when used with respect to a specified corporation, the board of directors of the corporation so specified. "Business Entity" shall mean any corporation, partnership, limited liability company or other entity which may legally hold title to Assets. "COBRA" shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and the regulations promulgated thereunder, including any successor legislation. "Code" shall mean the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder, including any successor legislation. "Cognizant" shall mean Cognizant Corporation, a Delaware corporation. "Cognizant and ACNielsen Nonqualified Plan Participants" shall have the meaning as set forth in Section 4.2 of this Agreement. "Cognizant Bifurcated Savings Plan Employees" shall have the meaning set forth in Section 3.2(a) of this Agreement. "Cognizant Common Shares" shall have the meaning set forth in the recitals hereto. "Cognizant Employees" shall mean persons who, immediately after the Effective Time, are employed by the Cognizant Group (including persons who are absent from work by reason of layoff or leave of absence and inactive employees treated as such by agreement therewith). 4 4 "Cognizant Group" shall mean Cognizant and each Business Entity which is contemplated to remain or become a Subsidiary of Cognizant pursuant to the Distribution Agreement. "Cognizant Lump-Sum Savings Plan Employees" shall have the meaning set forth in Section 3.2(a) of this Agreement. "Cognizant Replacement Plans" shall mean the replacement plans (including, without limitation, the replacement plan for certain IMS employees) to be adopted by Cognizant pursuant to Section 6.1(b) of this Agreement. "Cognizant Retirement Eligible Employees" shall have the meaning set forth in Section 5.6 of this Agreement. "Cognizant Retirement Plan" shall mean the defined benefit plan to be adopted by Cognizant pursuant to Section 2.2(a) of this Agreement. "Cognizant Retirement Plan Effective Date" shall have the meaning set forth in Section 2.2(a) of this Agreement. "Cognizant Retirement Plan Segregation Ratio" shall equal a fraction, the numerator of which is the Present Value of the accrued vested and nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of the Cognizant Transferred Retirement Plan Employees under the D&B Retirement Plan at the Effective Time, and the denominator of which is the Present Value of the accrued vested and nonvested benefits (as defined in ERISA Section 4044(a)(1)-(6)) of the D&B Pre-Distribution Employees under the D&B Retirement Plan at the Effective Time. "Cognizant Retirement Plan Transfer Date" shall have the meaning set forth in Section 2.2(b) of this Agreement. "Cognizant Savings Plan" shall mean the defined contribution plan to be adopted by Cognizant pursuant to Section 3.2(a) of this Agreement. "Cognizant Savings Plan Transfer Date" shall have the meaning set forth in Section 3.2(b) of this Agreement. "Cognizant Transferred Retirement Plan Employees" shall have the meaning set forth in Section 2.2(a) of this Agreement. "Cognizant Transferred Savings Plan Employees" shall have the meaning set forth in Section 3.2 of this Agreement. 5 5 "Conveyancing and Assumption Instruments" shall mean, collectively, the various agreements, instruments and other documents heretofore entered into and to be entered into to effect the transfer of Assets and the assumption of Liabilities in the manner contemplated by the Distribution Agreement, or otherwise arising out of or relating to the transactions contemplated in the Distribution Agreement. "D&B" shall mean The Dun & Bradstreet Corporation, a Delaware corporation. "D&B Career Transition Plan" shall mean The Dun & Bradstreet Career Transition Plan. "D&B Committee" shall mean the Executive Compensation and Stock Option Committee of the Board of Directors of D&B. "D&B Common Stock" shall have the meaning set forth in the recitals hereto. "D&B Disabled Employees" shall mean all D&B Pre- Distribution Employees who are receiving benefits under the D&B Long-Term Disability Plan as of the Effective Time. "D&B Group" shall mean D&B and each Business Entity (other than any member of the Cognizant Group or the ACNielsen Group) that is a Subsidiary of D&B. "D&B Long-Term Disability Plan" shall mean The Dun & Bradstreet Corporation Long Term Disability Plan or any other long-term disability plan sponsored by D&B or any Subsidiary of D&B prior to the Effective Time. "D&B LSARs" shall have the meaning set forth in Section 6.2 of this Agreement. "D&B Nonqualified Plans" shall have the meaning as set forth in Section 4.1 of this Agreement. "D&B Pension BEP" shall mean the Pension Benefit Equalization Plan of The Dun & Bradstreet Corporation, as amended effective December 21, 1994. "D&B Pension BEP Trust" shall mean the trust established in connection with the D&B Pension BEP and made as of December 15, 1995. "D&B Post-Distribution Employees" shall mean persons who, immediately after the Effective Time, are employed by the D&B Group (including persons who are absent from work by reason of layoff or leave of absence and inactive employees treated as such by agreement therewith). 6 6 "D&B Pre-Distribution Employees" shall mean persons who, at any time prior to the Effective Time, were employed by D&B or its Subsidiaries. "D&B Retirees" shall mean persons who (i) were D&B Pre- Distribution Employees, (ii) terminated employment from D&B prior to the Effective Time and (iii) are neither Cognizant Employees nor ACNielsen Employees immediately after the Effective Time. "D&B Retirement Plan" shall mean the Master Retirement Plan of The Dun & Bradstreet Corporation, as amended and restated effective January 1, 1994, with certain earlier effective dates. "D&B Savings BEP" shall mean the Profit Participation Benefit Equalization Plan of The Dun & Bradstreet Corporation, as amended and restated effective January 1, 1995. "D&B Savings Plan" shall mean the Profit Participation Plan of The Dun & Bradstreet Corporation, as in effect on January 1, 1994, with certain earlier effective dates. "D&B Stock Option" shall have the meaning set forth in Section 6.1 of this Agreement. "D&B Stock Option Plans" shall mean (i) the 1982 Key Employees Stock Option Plan for The Dun & Bradstreet Corporation and Subsidiaries and (ii) the 1991 Key Employees Stock Option Plan for The Dun & Bradstreet Corporation and Subsidiaries. "D&B Supplemental EBP" shall mean the Supplemental Executive Benefit Plan of The Dun & Bradstreet Corporation, as amended effective December 21, 1994. "D&B Supplemental EBP Trust" shall mean the trust established in connection with the D&B Supplemental EBP and made as of December 15, 1995. "Daily Average Trading Price" of a given stock on a given day shall mean the average of the high and low trading prices for such stock on such date. "Data Services Agreements" shall mean the Data Services Agreements to be entered into by D&B, Cognizant and ACNielsen. "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 share of ACNielsen Common Share for each three outstanding shares of D&B Common Stock. 7 7 "Distribution Agreement" shall mean the Distribution Agreement among D&B, Cognizant and ACNielsen. "Distribution Date" shall mean such date as may hereafter be determined by D&B's Board of Directors as the date as of which the Distribution shall be effected. "Distribution Record Date" shall mean such date as may hereafter be determined by D&B's Board of Directors as the record date for the Distribution. "Effective Time" shall mean 12:01 a.m., New York time, on the Distribution Date. "Employee Benefit Dispute" shall include any controversy, dispute or claim arising out of, in connection with, or in relation to the interpretation, performance, 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. "Employee Benefit Litigation Liability" shall mean, with respect to a Business Entity, a Liability relating to a controversy, dispute or claim arising out of, in connection with or in relation to the interpretation, performance, nonperformance, validity or breach of an Employee Benefit Plan of such Business Entity or otherwise arising out of, or in any way related to such Employee Benefit Plan, including, without limitation, any claim based on contract, tort, statute or constitution. "Employee Benefit Plans" shall mean, with respect to a Business Entity, all "employee benefit plans" (within the meaning of Section 3(3) of ERISA), "multiemployer plans" (within the meaning of Section 3(37) of ERISA), retirement, pension, savings, profit-sharing, welfare, stock purchase, stock option, equity- based, severance, employment, change-in-control, fringe benefit, collective bargaining, bonus, incentive, deferred compensation and all other employee benefit plans, agreements, programs, policies or other arrangements (including any funding mechanisms therefor), whether or not subject to ERISA, whether formal or informal, oral or written, legally binding or not, under which (i) any past, present or future employee of the Business Entity or its Subsidiaries has a right to benefits and (ii) the Business Entity or its Subsidiaries has any Liability. "Employee Benefit Records" shall mean all agreements, documents, books, records or files relating to the Employee Benefit Plans of D&B, Cognizant and ACNielsen. "Employee Benefit Welfare Plans" shall mean, with respect to a Business Entity, all Employee Benefit Plans that are "welfare plans" within the meaning of Section 3(1) of ERISA. 8 8 "ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder, including any successor legislation. "ESOP" shall mean an "employee stock ownership plan" within the meaning of Section 4975(e)(7) of the Code. "FSA Coverage Period" shall have the meaning set forth in Section 5.4 of this Agreement. "IMS" shall mean I.M.S. International, Inc., a Delaware corporation. "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. "Intellectual Property Agreement" shall mean the intellectual property and licensing agreement among D&B, Cognizant and ACNielsen. "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 (including allocated costs of in-house counsel and other personnel), whatsoever reasonably incurred in investigating, preparing or defending against any such Actions or threatened or contemplated Actions), order or consent decree of any governmental or other regulatory or administrative agency, body or commission or any award of any arbitrator or mediator of any kind, and those arising under any contract, commitment or undertaking, including those arising under this Agreement, the Distribution Agreement or any Ancillary Agreement, in each case, whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of any person. "Participant Election Period" shall mean the period during which the elections described in Sections 3.2 and 3.3 are permitted (such period, in no event, to be less than 30 days 9 9 following notice thereof to persons who are eligible to make the election). "PBGC" shall mean the Pension Benefit Guaranty Corporation or any successor entity thereto. "PBGC Assumptions" shall mean the actuarial assumptions set forth in 29 C.F.R. Part 2619, et seq. "person" shall mean any natural person, corporation, business trust, joint venture, association, company, partnership or government, or any agency or political subdivision thereof. "Present Value" shall mean the single sum value of a series of future payments, determined utilizing PBGC Assumptions in effect as of the measurement date. "Service" shall mean the Internal Revenue Service or any successor entity thereto. "Shared Transaction Services Agreements" shall mean the Shared Transaction Services Agreements among D&B, Cognizant and ACNielsen. "Subsidiary" shall mean any corporation, partnership or other entity of which another entity (i) owns, directly or indirectly, ownership interests sufficient to elect a majority of the Board of Directors (or persons performing similar functions) (irrespective of whether at the time any other class or classes of ownership interests of such corporation, partnership or other entity shall or might have such voting power upon the occurrence of any contingency) or (ii) is a general partner or an entity performing similar functions (e.g., a trustee). "Tax Allocation Agreement" shall mean the Tax Allocation Agreement among D&B, Cognizant and ACNielsen. "Transition Services Agreement" shall mean the Transition Services Agreement among D&B, Cognizant and ACNielsen. ARTICLE II DEFINED BENEFIT PLANS SECTION 2.1. D&B Retirement Plan. From and after the Effective Time, D&B shall continue to sponsor the D&B Retirement Plan for the benefit of D&B Post-Distribution Employees, D&B Retirees and D&B Disabled Employees. Active participation of Cognizant Employees and ACNielsen Employees in the D&B Retirement Plan shall cease immediately after the Effective Time. SECTION 2.2. Cognizant Retirement Plan. (a) As soon as practicable after the Effective Time, but not later than the first day of the fourth calendar month that begins after the 10 10 Effective Time (herein referred to as the "Cognizant Retirement Plan Effective Date"), Cognizant shall establish the Cognizant Retirement Plan for the benefit of Cognizant Employees who were participants in the D&B Retirement Plan immediately prior to the Effective Time (the "Cognizant Transferred Retirement Plan Employees"). As soon as practicable after the Effective Time, D&B shall cause the trustee of the D&B Retirement Plan to segregate the assets of the D&B Retirement Plan allocable to Cognizant Transferred Retirement Plan Employees in an amount equal to the sum of (i) and (ii), as follows: (i) the amount allocable to Cognizant Transferred Retirement Plan Employees under ERISA Section 4044 as of the Effective Time, determined using PBGC Assumptions; and (ii) the excess (if any) of the fair market value of assets of the D&B Retirement Plan over the Present Value of the vested and nonvested benefits accrued thereunder for all the D&B Pre-Distribution Employees as of the Effective Time, multiplied by the Cognizant Retirement Plan Segregation Ratio. (b) As soon as practicable after the Effective Time, the assets allocable to the Cognizant Transferred Retirement Plan Employees shall be transferred to a separate trust established under the Cognizant Retirement Plan (such date herein referred to as the "Cognizant Retirement Plan Transfer Date"); provided, however, that in no event shall such transfer take place until (i) D&B has made all required filings and submissions to the appropriate governmental agencies and (ii) Cognizant has furnished to D&B (A) a favorable determination letter that the Cognizant Retirement Plan is qualified under Section 401(a) of the Code or (B) an opinion letter from Simpson Thacher & Bartlett to the effect that the Cognizant Retirement Plan is qualified under Section 401(a) of the Code. The value of such assets to be transferred shall equal the value of segregated assets determined under Section 2.2(a) of this Agreement, adjusted as follows: (i) reduced by the amount of benefit payments made under the D&B Retirement Plan with respect to Cognizant Transferred Retirement Plan Employees from the Effective Time to the Cognizant Retirement Plan Transfer Date; and (ii) increased (or decreased) by the share of the net investment income (or loss) from the Effective Time to the Cognizant Retirement Plan Transfer Date attributable to the value of such segregated assets. (c) Unless otherwise agreed to by D&B and Cognizant (as well as ACNielsen if it has assets in the D&B Retirement Plan on the Cognizant Retirement Plan Transfer Date), the form of the assets to be transferred shall consist of an undivided percentage 11 11 interest in each asset that is held by the D&B Retirement Plan on the Cognizant Retirement Plan Transfer Date, such undivided percentage interest being equal to the value of assets allocable to the Cognizant Transferred Retirement Plan Employees, divided by the fair market value of plan assets. (d) Prior to the Cognizant Retirement Plan Transfer Date, all benefit payments to Cognizant Transferred Retirement Plan Employees shall be made from the D&B Retirement Plan. SECTION 2.3 ACNielsen Retirement Plan. (a) As soon as practicable after the Effective Time, but not later than the first day of the fourth calendar month that begins after the Effective Time (herein referred to as the "ACNielsen Retirement Plan Effective Date"), ACNielsen shall establish the ACNielsen Retirement Plan for the benefit of ACNielsen Employees who were participants in the D&B Retirement Plan immediately prior to the Effective Time (the "ACNielsen Transferred Retirement Plan Employees"). As soon as practicable after the Effective Time, D&B shall cause the trustee of the D&B Retirement Plan to segregate the assets of the D&B Retirement Plan allocable to ACNielsen Transferred Retirement Plan Employees in an amount equal to the sum of (i) and (ii), as follows: (i) the amount allocable to ACNielsen Transferred Retirement Plan Employees under ERISA Section 4044 as of the Effective Time, determined using PBGC Assumptions; and (ii) the excess (if any) of the fair market value of assets of the D&B Retirement Plan over the Present Value of the vested and nonvested benefits accrued thereunder for all the D&B Pre-Distribution Employees as of the Effective Time, multiplied by the ACNielsen Retirement Plan Segregation Ratio. (b) As soon as practicable after the Effective Time, the assets allocable to the ACNielsen Transferred Retirement Plan Employees shall be transferred to a separate trust established under the ACNielsen Retirement Plan (such date herein referred to as the "ACNielsen Retirement Plan Transfer Date"); provided, however, that in no event shall such transfer take place until (i) D&B has made all required filings and submissions to the appropriate governmental agencies and (ii) ACNielsen has furnished to D&B (A) a favorable determination letter that the ACNielsen Retirement Plan is qualified under Section 401(a) of the Code or (B) an opinion letter from Simpson Thacher & Bartlett to the effect that the ACNielsen Retirement Plan is qualified under Section 401(a) of the Code. The value of such assets to be transferred shall equal the value of segregated assets determined under Section 2.3(a) of this Agreement, adjusted as follows: (i) reduced by the amount of benefit payments made under the D&B Retirement Plan with respect to ACNielsen 12 12 Transferred Retirement Plan Employees from the Effective Time to the ACNielsen Retirement Plan Transfer Date; and (ii) increased (or decreased) by the share of the net investment income (or loss) from the Effective Time to the ACNielsen Retirement Plan Transfer Date attributable to the value of such segregated assets. (c) Unless otherwise agreed to by D&B and ACNielsen (as well as Cognizant if it has assets in the D&B Retirement Plan on the ACNielsen Retirement Plan Transfer Date), the form of the assets to be transferred shall consist of an undivided percentage interest in each asset that is held by the D&B Retirement Plan on the ACNielsen Retirement Plan Transfer Date, such undivided percentage interest being equal to the value of assets allocable to the ACNielsen Transferred Retirement Plan Employees, divided by the fair market value of plan assets. (d) Prior to the ACNielsen Retirement Plan Transfer Date, all benefit payments to ACNielsen Transferred Retirement Plan Employees shall be made from the D&B Retirement Plan. SECTION 2.4. Allocation of Liabilities. The Cognizant Group shall assume all Liabilities relating to the participation of Cognizant Transferred Retirement Plan Employees in the D&B Retirement Plan and in the Cognizant Retirement Plan. The ACNielsen Group shall assume all Liabilities relating to the participation of ACNielsen Transferred Retirement Plan Employees in the D&B Retirement Plan and in the ACNielsen Retirement Plan. The D&B Group shall retain all other Liabilities relating to the D&B Retirement Plan. ARTICLE III DEFINED CONTRIBUTION PLANS SECTION 3.1. D&B Savings Plan. From and after the Effective Time, D&B shall continue to sponsor the D&B Savings Plan for the benefit of D&B Post-Distribution Employees, D&B Retirees, D&B Disabled Employees, Cognizant Bifurcated Savings Plan Employees (as defined in Section 3.2(a) below) and ACNielsen Bifurcated Savings Plan Employees (as defined in Section 3.3(a) below). Active participation of Cognizant Employees and ACNielsen Employees in the D&B Savings Plan shall cease immediately after the Effective Time. SECTION 3.2. Cognizant Savings Plan. (a) As of the Effective Time, Cognizant shall adopt the Cognizant Savings Plan for the benefit of Cognizant Employees who were participants in the D&B Savings Plan immediately prior to the Effective Time. Prior to the Effective Time, Cognizant Employees shall be given the right to elect one of the following options with respect to their D&B Savings Plan account balances: (i) Cognizant Employees 13 13 may keep their balances in the D&B Savings Plan (such employees being known as "Cognizant Bifurcated Savings Plan Employees"); (ii) Cognizant Employees may receive a lump-sum payment (in cash and/or stock) of their balances (such employees being known as "Cognizant Lump-Sum Savings Plan Employees") or (iii) Cognizant Employees may transfer their balances to the Cognizant Savings Plan (such employees being known as "Cognizant Transferred Savings Plan Employees"). If a Cognizant Employee fails to elect any of the foregoing options prior to the end of the Participant Election Period, (i) his or her balance shall remain in the D&B Savings Plan, and (ii) such employee shall be treated as a Cognizant Bifurcated Savings Plan Employee. (b) Prior to the date on which the transfer of assets and liabilities to the Cognizant Savings Plan shall occur (the "Cognizant Savings Plan Transfer Date"), which date shall occur as promptly as practicable following the Participant Election Period, (i) D&B shall (A) cause the trustee of the D&B Savings Plan to segregate, in accordance with the spinoff provisions set forth under Section 414(l) of the Code, the assets of the D&B Savings Plan representing the full account balances of Cognizant Transferred Savings Plan Employees for all periods of participation through the Effective Time (including, as applicable, all contributions and all earnings attributable thereto); (B) make all required filings and submissions to the appropriate governmental agencies; and (C) make all required amendments to the D&B Savings Plan and related trust agreement necessary to provide for the segregation and transfer of assets described in this Section 3.2, and (ii) Cognizant shall furnish to D&B (A) a favorable determination letter that the Cognizant Savings Plan is qualified under Section 401(a) of the Code or (B) an opinion letter from Simpson Thacher & Bartlett to the effect that the Cognizant Savings Plan is qualified under Section 401(a) of the Code. (c) On the Cognizant Savings Plan Transfer Date, D&B shall cause the trustee of the D&B Savings Plan to transfer to the trustee of the Cognizant Savings Plan the full account balances (inclusive of loans) of Cognizant Transferred Savings Plan Employees in kind based on those investment funds in which such account balances are then invested (including, but not limited to, the pooled stock fund); provided, however, that loans to Cognizant Transferred Savings Plan Employees shall be transferred in the form of notes and amounts in the D&B stock fund shall be transferred in the form of cash. In consideration of the segregation and transfer of assets described herein, the Cognizant Savings Plan shall, as of the Cognizant Savings Plan Transfer Date, assume all Liabilities attributable to such assets. (d) Notwithstanding anything in this Agreement to the contrary, (i) a Cognizant Employee may not elect to be treated as a Cognizant Bifurcated Savings Plan Employee if his or her account balance in the D&B Savings Plan is $3,500 or less (in 14 14 which case such Cognizant Employee shall be treated as a Cognizant Lump-Sum Savings Plan Employee) and (ii) a Cognizant Bifurcated Savings Plan Employee may, prior to the second anniversary of the Distribution Date, elect to receive a distribution of his or her account balance in the D&B Savings Plan. SECTION 3.3. ACNielsen Savings Plan. (a) As of the Effective Time, ACNielsen shall adopt the ACNielsen Savings Plan for the benefit of ACNielsen Employees who were participants in the D&B Savings Plan immediately prior to the Effective Time. Prior to the Effective Time, ACNielsen Employees shall be given the right to elect one of the following options with respect to their D&B Savings Plan account balances: (i) ACNielsen Employees may keep their balances in the D&B Savings Plan (such employees being known as "ACNielsen Bifurcated Savings Plan Employees"); (ii) ACNielsen Employees may receive a lump-sum payment (in cash and/or stock) of their balances (such employees being known as "ACNielsen Lump-Sum Savings Plan Employees") or (iii) ACNielsen Employees may transfer their balances to the ACNielsen Savings Plan (such employees being known as "ACNielsen Transferred Savings Plan Employees"). If an ACNielsen Employee fails to elect any of the foregoing options prior to the end of the Participant Election Period, (i) his or her balance shall remain in the D&B Savings Plan, and (ii) such employee shall be treated as a ACNielsen Bifurcated Savings Plan Employee. (b) Prior to the date on which the transfer of assets and liabilities to the ACNielsen Savings Plan shall occur (the "ACNielsen Savings Plan Transfer Date"), which date shall occur as promptly as practicable following the Participant Election Period, (i) D&B shall (A) cause the trustee of the D&B Savings Plan to segregate, in accordance with the spinoff provisions set forth under Section 414(l) of the Code, the assets of the D&B Savings Plan representing the full account balances of ACNielsen Transferred Savings Plan Employees for all periods of participation through the Effective Time (including, as applicable, all contributions and all earnings attributable thereto); (B) make all required filings and submissions to the appropriate governmental agencies; and (C) make all required amendments to the D&B Savings Plan and related trust agreement necessary to provide for the segregation and transfer of assets described in this Section 3.3, and (ii) ACNielsen shall furnish to D&B (A) a favorable determination letter that the ACNielsen Savings Plan is qualified under Section 401(a) of the Code or (B) an opinion letter from Simpson Thacher & Bartlett to the effect that the ACNielsen Savings Plan is qualified under Section 401(a) of the Code. (c) On the ACNielsen Savings Plan Transfer Date, D&B shall cause the trustee of the D&B Savings Plan to transfer to the trustee of the ACNielsen Savings Plan the full account balances (inclusive of loans) of ACNielsen Transferred Savings Plan Employees in kind based on those investment funds in which 15 15 such account balances are then invested (including, but not limited to, the pooled stock fund); provided, however, that loans to ACNielsen Transferred Savings Plan Employees shall be transferred in the form of notes and amounts in the D&B stock fund shall be transferred in the form of cash. In consideration of the segregation and transfer of assets described herein, the ACNielsen Savings Plan shall, as of the ACNielsen Savings Plan Transfer Date, assume all Liabilities attributable to such assets. (d) Notwithstanding anything in this Agreement to the contrary, (i) an ACNielsen employee may not elect to be treated as an ACNielsen Bifurcated Savings Plan Employee if his or her account balance in the D&B Savings Plan is $3,500 or less (in which case such ACNielsen Employee shall be treated as an ACNielsen Lump-Sum Savings Plan Employee) and (ii) an ACNielsen Bifurcated Savings Plan Employee may, prior to the second anniversary of the Distribution Date, elect to receive a distribution of his or her account balance in the D&B Savings Plan. SECTION 3.4. Vesting. As of the Effective Time, the account balances of Cognizant Employees and ACNielsen Employees in the D&B Savings Plan shall fully vest. SECTION 3.5. Outstanding Loans. During their employment with Cognizant or ACNielsen (as the case may be), Cognizant Transferred Savings Plan Employees and ACNielsen Transferred Savings Plan Employees who have outstanding loans originally made from the D&B Savings Plan shall be permitted to repay such loans by way of regular deductions from their paychecks, and, prior to the Cognizant Savings Plan Transfer Date or ACNielsen Savings Plan Transfer Date (as the case may be), D&B, Cognizant or ACNielsen (as the case may be) shall cause all such deductions to be forwarded to the D&B Savings Plan as promptly as practicable. No such deductions by Cognizant or ACNielsen shall be made in respect of Cognizant Bifurcated Savings Plan Employees and ACNielsen Bifurcated Savings Plan Employees who have outstanding loans from the D&B Savings Plan, and all such employees shall be required to repay their loans directly to the D&B Savings Plan in accordance with the existing terms thereof. Notwithstanding the foregoing, prior to the end of the Participant Election Period, and for such period thereafter as may be reasonably determined by D&B, Cognizant Employees and ACNielsen Employees who have outstanding loans from the D&B Savings Plan shall be permitted to repay such loans by way of regular deductions from their paychecks. SECTION 3.6. Employer Stock Fund. Participants in the D&B Savings Plan who, immediately prior to the Effective Time, have balances in the D&B Common Stock fund shall have such balances converted, as of the Effective Time, to units in a pooled stock fund consisting of D&B Common Stock, Cognizant Common Shares and ACNielsen Common Shares. The initial ratio of 16 16 stock in the pooled stock fund shall be one share of D&B Common Stock to one share of Cognizant Common Shares to 1/3 share of ACNielsen Common Shares. The percentage interest of each participant in the pooled stock fund as of the Effective Time shall equal such participant's percentage interest in the D&B Common Stock fund immediately prior to the Effective Time. Each of the Cognizant Savings Plan and ACNielsen Savings Plan shall maintain a pooled stock fund, to which the pooled stock fund assets of Cognizant Transferred Savings Plan Employees and ACNielsen Transferred Savings Plan Employees in the D&B Savings Plan shall be transferred on the Cognizant Savings Plan Transfer Date and the ACNielsen Savings Plan Transfer Date (as the case may be). From and after the Effective Time, a participant may liquidate his or her units in the pooled stock fund and invest the proceeds thereof in any other investment option available under the applicable plan. A participant may not acquire additional units in the pooled stock fund from or after the Effective Time. SECTION 3.7. Matching Contributions. D&B shall make its regular monthly matching contributions to the D&B Savings Plan accounts of Cognizant Employees and ACNielsen Employees for all periods of service on or prior to the Effective Time. SECTION 3.8. Allocation of Liabilities. The Cognizant Group shall assume all Liabilities relating to the participation of (a) Cognizant Transferred Savings Plan Employees in the D&B Savings Plan and in the Cognizant Savings Plan and (b) Cognizant Bifurcated Savings Plan Employees in the Cognizant Savings Plan. The ACNielsen Group shall assume all Liabilities relating to the participation of (a) ACNielsen Employees in the D&B Savings Plan and in the ACNielsen Savings Plan and (b) ACNielsen Bifurcated Savings Plan Employees in the ACNielsen Savings Plan. The D&B Group shall retain all other Liabilities relating to the D&B Savings Plan. ARTICLE IV NONQUALIFIED PLANS SECTION 4.1. D&B Nonqualified Plans. From and after the Effective Time, D&B shall continue to sponsor the D&B Supplemental EBP, the D&B Supplemental EBP Trust, the D&B Pension BEP, the D&B Pension BEP Trust and the D&B Savings BEP (collectively, the "D&B Nonqualified Plans") for the benefit of persons who, prior to the Effective Time, were participants thereunder; provided, however, that, with respect to Cognizant Employees and ACNielsen Employees, D&B shall retain only those Liabilities for benefits under the D&B Nonqualified Plans that, prior to the Effective Time, were accrued and to which such participants had earned vested rights thereunder. SECTION 4.2. Service Credit. Cognizant Employees and ACNielsen Employees who were participants in the D&B Nonqualified 17 17 Plans immediately prior to the Effective Time (the "Cognizant and ACNielsen Nonqualified Plan Participants") shall continue to receive service credit under such plans for their service with the Cognizant Group or the ACNielsen Group (as the case may be) from and after the Effective Time, but solely for purposes of satisfying the one-year waiting requirement for a valid election under the D&B Nonqualified Plans. SECTION 4.3. Consent to Termination. Solely with respect to determining the level of benefits payable under the D&B Nonqualified Plans, Cognizant and ACNielsen shall have the authority to consent to the termination of employment prior to age 60 of a Cognizant or ACNielsen Nonqualified Plan Participant from the Cognizant Group or the ACNielsen Group (as the case may be). SECTION 4.4. Termination of Employment. Benefits under the D&B Nonqualified Plans shall not become payable to a Cognizant or ACNielsen Nonqualified Plan Participant until such participant terminates employment from the Cognizant Group or the ACNielsen Group (as the case may be). SECTION 4.5. Noncompetition. Solely with respect to the noncompetition clauses of the D&B Nonqualified Plans, D&B hereby consents to the employment of the Cognizant and ACNielsen Nonqualified Plan Participants by the Cognizant Group or the ACNielsen Group (as the case may be) after the Effective Time, whether or not such employment would otherwise trigger such noncompetition clauses. SECTION 4.6. Distributions; Lump-Sum Elections. Cognizant and ACNielsen Nonqualified Plan Participants who participated in the D&B Savings BEP immediately prior to the Effective Time shall receive a distribution thereunder, based on their notional elective deferrals through the Effective Time, at the time distributions are otherwise made under such plan. SECTION 4.7. Guarantees; Subrogation. The Cognizant Group agrees that, in the event the D&B Group is unable to satisfy its obligations in respect of the benefits of any Cognizant Employee that have accrued under the D&B Nonqualified Plans prior to the Effective Time, the Cognizant Group shall make payment when due with respect to such obligations of the D&B Group. The ACNielsen Group agrees that, in the event the D&B Group is unable to satisfy its obligations in respect of the benefits of any ACNielsen Employee that have accrued under the D&B Nonqualified Plans prior to the Effective Time, the ACNielsen Group shall make payment when due with respect to such obligations of the D&B Group. In the event that the Cognizant Group or the ACNielsen Group is required to make any payment pursuant to this Section 4.7, the Cognizant Group or the ACNielsen Group (as the case may be) shall have full rights of subrogation against the D&B Group. 18 18 SECTION 4.8. Third-Party Beneficiaries. It is the intention of the parties to this Agreement that the provisions of Section 4.7 shall be enforceable by (a) the Cognizant and ACNielsen Nonqualified Plan Participants and (b) their respective surviving beneficiaries. ARTICLE V WELFARE PLANS SECTION 5.1. Employee Benefit Welfare Plans. Except as provided in Section 5.4 and Section 5.5 below, from and after the Effective Time, D&B shall sponsor its Employee Benefit Welfare Plans solely for the benefit of D&B Post-Distribution Employees, D&B Retirees and D&B Disabled Employees. From and after the Effective Time, Cognizant shall sponsor its Employee Benefit Welfare Plans solely for the benefit of Cognizant Employees. From and after the Effective Time, ACNielsen shall sponsor its Employee Benefit Welfare Plans solely for the benefit of ACNielsen Employees. Notwithstanding the foregoing, none of D&B, Cognizant or ACNielsen shall have any obligation to sponsor any Employee Benefit Welfare Plan from or after the Effective Time. SECTION 5.2. Pre-Existing Conditions; Dollar Limits. With respect to any medical plan that may be sponsored by Cognizant or ACNielsen after the Effective Time, Cognizant and ACNielsen (a) shall cause there to be waived any pre-existing condition limitations and (b) shall give effect, in determining any deductible and maximum out-of-pocket limitations, to claims incurred, and amounts paid by, and amounts reimbursed to, (in each case during 1996 prior to the Effective Time) ACNielsen Employees and Cognizant Employees under similar plans maintained by D&B (or any Affiliate thereof) for their benefit immediately prior to the Effective Time. SECTION 5.3. Severance Plans. The Cognizant Group shall retain all Liabilities with respect to severance payments made or to be made to employees of the Cognizant Group who terminated employment prior to the Effective Time. The ACNielsen Group shall retain all Liabilities with respect to severance payments made or to be made to employees of the ACNielsen Group who terminated employment prior to the Effective Time. The D&B Group shall retain all Liabilities with respect to severance payments made or to be made to all other D&B Pre-Distribution Employees who terminated employment prior to the Effective Time. For purposes of this Section 5.3, the term "severance payments" shall include any welfare benefit coverage provided under severance plans. SECTION 5.4. Flexible Spending Accounts. From the Effective Time until December 31, 1996 (the "FSA Coverage Period"), D&B shall continue to sponsor its flexible spending accounts for all D&B Pre-Distribution Employees; provided, 19 19 however, that Cognizant and ACNielsen shall cause all deductions from participant paychecks to be forwarded to D&B as promptly as practicable. SECTION 5.5. Allocation of Liabilities. (a) The D&B Group shall retain responsibility for and continue to pay all expenses and benefits relating to the D&B Employee Benefit Welfare Plans with respect to (i) claims incurred prior to the Effective Time by D&B Pre-Distribution Employees and their covered dependents and (ii) claims incurred from and after the Effective Time by D&B Post-Distribution Employees, D&B Retirees and D&B Disabled Employees. The Cognizant Group shall be responsible for and pay expenses and benefits relating to all Employee Benefit Welfare Plan claims incurred by Cognizant Employees and their covered dependents from and after the Effective Time. The ACNielsen Group shall be responsible for and pay expenses and benefits relating to all Employee Benefit Welfare Plan claims incurred by ACNielsen Employees and their covered dependents from and after the Effective Time. For purposes of this paragraph, a claim is deemed incurred when the services that are the subject of the claim are performed; in the case of life insurance, when the death occurs; in the case of long-term disability, when the disability occurs; and, in the case of a hospital stay, when the employee first enters the hospital. Notwithstanding the foregoing, claims incurred by any employee of a pre-Distribution Subsidiary of D&B or their covered dependents under any welfare plan maintained by such Subsidiary solely for the benefit of its employees and their dependents shall, whether incurred prior to, on or after the Effective Time, be the sole responsibility and liability of that Subsidiary. (b) The Cognizant Group shall be responsible for all COBRA coverage for any employee of the Cognizant Group and his or her covered dependents who participated in a D&B Employee Benefit Welfare Plan and who had or have a loss of health care coverage due to a qualifying event occurring prior to the Effective Time. The ACNielsen Group shall be responsible for all COBRA coverage for any employee of the ACNielsen Group and his or her covered dependents who participated in a D&B Employee Benefit Welfare Plan and who had or have a loss of health care coverage due to a qualifying event occurring prior to the Effective Time. The D&B Group shall be responsible for all COBRA coverage for any other D&B Pre-Distribution Employee and his or her covered dependents who participated in a D&B Employee Benefit Welfare Plan and who had or have a loss of health care coverage due to a qualifying event occurring prior to the Effective Time. Notwithstanding the foregoing, a pre-Distribution Subsidiary of D&B shall be responsible for all COBRA coverage for its former employees and covered dependents who participated in a plan maintained solely for their benefit whether the applicable event occurs prior to, on or after the Effective Time. COBRA coverage to which a Cognizant Employee or ACNielsen Employee is entitled as a result of a qualifying event occurring at or after the Effective Time 20 20 shall be the responsibility of the Cognizant Group or the ACNielsen Group, respectively. SECTION 5.6. Retiree Welfare Plans. The Cognizant Group shall be responsible for providing retiree welfare benefits to those D&B Pre-Distribution Employees who are Cognizant Employees and who, immediately prior to the Effective Time, are (i) eligible to retire and (ii) eligible to elect such coverage under the D&B Employee Benefit Welfare Plans (but who do not in fact elect such coverage) (the "Cognizant Retirement Eligible Employees"); provided, however, that in the event the Cognizant Group fails to provide to a Cognizant Retirement Eligible Employee one or more components of retiree welfare coverage (such components consisting of medical, dental and life benefits), the D&B Group shall be responsible for the missing component(s), but only to the same extent it provides such component(s) to its retirees from and after the time when such Cognizant Retirement Eligible Employee retires or loses his or her coverage. In the event the D&B Group must provide the benefits described hereunder, it shall have full rights of reimbursement from the Cognizant Group. The ACNielsen Group shall be responsible for providing retiree welfare benefits to those D&B Pre-Distribution Employees who are ACNielsen Employees and who, immediately prior to the Effective Time, are (i) eligible to retire and (ii) eligible to elect such coverage under the D&B Employee Benefit Welfare Plans (but who do not in fact elect such coverage) (the "ACNielsen Retirement Eligible Employees"); provided, however, that in the event the ACNielsen Group fails to provide to an ACNielsen Retirement Eligible Employee one or more components of retiree welfare coverage (such components consisting of medical, dental and life benefits), the D&B Group shall be responsible for the missing component(s), but only to the same extent it provides such component(s) to its retirees from and after the time when such ACNielsen Retirement Eligible Employee retires or loses his or her coverage. In the event the D&B Group must provide the benefits described hereunder, it shall have full rights of reimbursement from the ACNielsen Group. Notwithstanding the provisions of Sections 10.2, 10.3 or 10.4 hereof, in the event any D&B Pre-Distribution Employee elects to retire on or prior to the Effective Time and receive retiree welfare coverage under the D&B Employee Welfare Benefit Plans, neither the Cognizant Group nor the ACNielsen Group shall provide such employee with past service credit under their respective Employee Benefit Plans, nor shall any assets and liabilities be transferred in respect of such employee under Article II hereof, upon any subsequent employment of such individual by the Cognizant Group or the ACNielsen Group. 21 21 ARTICLE VI EQUITY-BASED PLANS SECTION 6.1. D&B Stock Options. Stock options awarded under the D&B Stock Option Plans ("D&B Stock Options") shall be treated as follows: (a) D&B Retirees; D&B Disabled Employees; D&B Post- Distribution Employees. From and after the Effective Time, each unexercised D&B Stock Option held by D&B Post-Distribution Employees, D&B Retirees and D&B Disabled Employees shall remain outstanding pursuant to the terms of the award agreements and the D&B Stock Option Plans; provided, however, that from and after such time, each unexercised D&B Stock Option shall be adjusted as follows: (i) the exercise price of the adjusted stock option shall be determined by multiplying the exercise price of the D&B Stock Option by a fraction, the numerator of which is the average of the Daily Average Trading Prices of D&B Common Stock for the five consecutive trading days starting on the first date on which D&B Common Stock is traded ex-dividend, and the denominator of which is the average of the Daily Average Trading Prices of D&B Common Stock for the five consecutive trading days immediately preceding the first date on which D&B Common Stock is traded ex-dividend and (ii) the number of shares of D&B Common Stock covered by the adjusted stock option shall be determined by (A) multiplying the number of shares of D&B Common Stock covered by the D&B Stock Option by a fraction, the numerator of which is the average of the Daily Average Trading Prices of D&B Common Stock for the five consecutive trading days immediately preceding the first date on which D&B Common Stock is traded ex-dividend, and the denominator of which is the average of the Daily Average Trading Prices of D&B Common Stock for the five consecutive trading days starting on the first date on which D&B Common Stock is traded ex-dividend and (B) rounding down the result to a whole number of shares. (b) Cognizant Employees. As of the Effective Time, (i) each unexercised D&B Stock Option held by Cognizant Employees shall be cancelled and (ii) such individuals shall receive replacement stock options awarded under the Cognizant Replacement Plans, which shall be adopted by Cognizant prior to the Effective Time. The exercise price of each replacement stock option shall be determined by multiplying the exercise price of the cancelled D&B Stock Option by a fraction, the numerator of which is the average of the Daily Average Trading Prices of Cognizant Common Shares for the five consecutive trading days starting on the first date on which Cognizant Common Shares are traded regular way, and the denominator of which is the average of the Daily Average Trading Prices of D&B Common Stock for the five consecutive trading days immediately preceding the first date on which D&B Common Stock is traded ex-dividend. The number of shares of Cognizant Common Shares covered by each replacement stock option shall be determined by (i) multiplying the number of shares of D&B Common Stock covered by the cancelled D&B Stock 22 22 Option by a fraction, the numerator of which is the average of the Daily Average Trading Prices of D&B Common Stock for the five consecutive trading days immediately preceding the first date on which D&B Common Stock is traded ex-dividend, and the denominator of which is the average of the Daily Average Trading Prices of Cognizant Common Shares for the five consecutive trading days starting on the first date on which Cognizant Common Shares are traded regular way and (ii) rounding down the result to a whole number of shares. Except as otherwise provided in the Cognizant Replacement Plans, all other terms of the replacement stock options shall remain substantially identical to the terms of the cancelled D&B Stock Options. (c) ACNielsen Employees. As of the Effective Time, (i) each unexercised D&B Stock Option held by ACNielsen Employees shall be cancelled and (ii) such individuals shall receive replacement stock options awarded under the ACNielsen Replacement Plan, which shall be adopted by ACNielsen prior to the Effective Time. The exercise price of each replacement stock option shall be determined by multiplying the exercise price of the cancelled D&B Stock Option by a fraction, the numerator of which is the average of the Daily Average Trading Prices of ACNielsen Common Shares for the five consecutive trading days starting on the first date on which ACNielsen Common Shares are traded regular way, and the denominator of which is the average of the Daily Average Trading Prices of D&B Common Stock for the five consecutive trading days immediately preceding the first date on which D&B Common Stock is traded ex-dividend. The number of shares of ACNielsen Common Shares covered by each replacement stock option shall be determined by multiplying the number of shares of D&B Common Stock covered by the cancelled D&B Stock Option by a fraction, the numerator of which is the average of the Daily Average Trading Prices of D&B Common Stock for the five consecutive trading days immediately preceding the first date on which D&B Common Stock is traded ex-dividend, and the denominator of which is the average of the Daily Average Trading Prices of ACNielsen Common Shares for the five consecutive trading days starting on the first date on which ACNielsen Common Shares are traded regular way and (ii) rounding down the result to a whole number of shares. Except as otherwise provided in the ACNielsen Replacement Plan, all other terms of the replacement stock options shall remain substantially identical to the terms of the cancelled D&B Stock Options. SECTION 6.2. D&B LSARs. All limited stock appreciation rights awarded under the D&B Stock Option Plans ("D&B LSARs") shall be adjusted or substituted (as the case may be) in substantially the same manner as the D&B Stock Options described in Section 6.1 above. SECTION 6.3. Allocation of Liabilities. The Cognizant Group shall assume all Liabilities with respect to awards granted to Cognizant Employees pursuant to the Cognizant Replacement Option Plan. The ACNielsen Group shall assume all Liabilities 23 23 with respect to awards granted to ACNielsen Employees pursuant to the ACNielsen Replacement Option Plan. The D&B Group shall retain all other Liabilities with respect to awards granted pursuant to the D&B Stock Option Plans (including, but not limited to, awards granted to D&B Post-Distribution Employees, D&B Retirees and D&B Disabled Employees). ARTICLE VII FOREIGN EMPLOYEE BENEFIT PLANS SECTION 7.1. UK Pensions. D&B, Cognizant and ACNielsen shall use their best efforts to ensure that the relevant employers may continue to participate in The Dun & Bradstreet (UK) Pension Plan (the "D&B UK Plan") on the terms and for the period following the Effective Time set forth in Schedule 7.1. Cognizant and ACNielsen shall cause the relevant employers to establish or nominate replacement pension arrangements which comply with the provisions of Schedule 7.1 and which are capable of receiving a transfer of assets and liabilities from the D&B UK Plan in respect of the "transferring members" (as defined in Schedule 7.1). D&B shall request the trustees of the D&B UK Plan to make a transfer to such replacement arrangements on the basis set forth in Schedule 7.1(a) subject to compliance by Cognizant and ACNielsen with their respective obligations thereunder. ARTICLE VIII EMPLOYEE STOCK OWNERSHIP PLAN SECTION 8.1. Employee Stock Ownership Plan. After the Effective Time, D&B, Cognizant and ACNielsen shall each establish an ESOP for the benefit of their respective employees, but only to the extent required by any letter ruling issued by the Service with respect to the Distribution. ARTICLE IX OTHER EMPLOYEE BENEFIT ISSUES SECTION 9.1. Employee Benefit Litigation Liabilities. Except as otherwise expressly provided in this agreement or with respect to Articles II, III and VI hereof, the D&B Group shall retain all Employee Benefit Litigation Liabilities that are asserted by D&B Pre-Distribution Employees prior to the Effective Time. SECTION 9.2. Workers' Compensation. The D&B Group shall retain all Liabilities relating to workers' compensation claims that were incurred (a) prior to the Effective Time with respect to D&B Pre-Distribution Employees who were employed by the D&B Group and (b) on and after the Effective Time with respect to D&B Post-Distribution Employees. The Cognizant Group shall retain all Liabilities relating to workers' compensation 24 24 claims that were incurred (a) prior to the Effective Time with respect to D&B Pre-Distribution Employees who were employed by the Cognizant Group and (b) on and after the Effective Time with respect to Cognizant Employees. The ACNielsen Group shall retain all Liabilities relating to workers' compensation claims that were incurred (a) prior to the Effective Time with respect to D&B Pre-Distribution Employees who were employed by the ACNielsen Group and (b) on and after the Effective Time with respect to ACNielsen Employees. For purposes of this paragraph, a claim is deemed incurred when the injury that is the subject of the claim occurs. ARTICLE X BENEFIT PLAN PARTICIPATION SECTION 10.1. D&B Plans. Except as specifically provided herein, all Cognizant Employees and ACNielsen Employees shall cease participation in all domestic D&B Employee Benefit Plans as of the Effective Time. SECTION 10.2. Cognizant Plans. Except as provided in Section 5.6 herein, (a) with respect to any Employee Benefit Plan sponsored by the Cognizant Group after the Effective Time, the Cognizant Group shall cause to be recognized (to the extent applicable) each Cognizant Employee's (i) past service with the D&B Group to the extent recognized under similar plans maintained by the D&B Group immediately prior to the Effective Time and (ii) accrued but unused vacation time and sick days, and (b) any Cognizant Employee who participated in a D&B Employee Benefit Plan immediately prior to the Effective Time shall be entitled to immediate participation in a similar Employee Benefit Plan sponsored by the Cognizant Group. SECTION 10.3. ACNielsen Plans. Except as provided in Section 5.6 herein, (a) with respect to any Employee Benefit Plan sponsored by the ACNielsen Group after the Effective Time, the ACNielsen Group shall cause to be recognized (to the extent applicable) each ACNielsen Employee's (i) past service with the D&B Group to the extent recognized under similar plans maintained by the D&B Group immediately prior to the Effective Time and (ii) accrued but unused vacation time and sick days, and (b) any ACNielsen Employee who participated in a D&B Employee Benefit Plan immediately prior to the Effective Time shall be entitled to immediate participation in a similar Employee Benefit Plan sponsored by ACNielsen. SECTION 10.4. Subsequent Employer. Except as provided in Section 5.6 herein, if, during the one-year period following the Effective Time, a D&B Post-Distribution Employee, a Cognizant Employee or ACNielsen Employee terminates employment with his or her employer and then immediately commences employment with one of the D&B Group, the Cognizant Group or the ACNielsen Group, the subsequent employer shall cause to be recognized (to the extent 25 25 applicable) such employee's past service with the D&B Group, the Cognizant Group or the ACNielsen Group to the extent recognized under similar plans maintained by the prior employer. Notwithstanding the foregoing, no past service shall be recognized with respect to pension accruals under the defined benefit plans of the subsequent employer. SECTION 10.5. Right to Amend or Terminate. Except as specifically provided herein, nothing in this Agreement shall be construed or interpreted to restrict the D&B Group's, the Cognizant Group's or the ACNielsen Group's right or authority to amend or terminate any of their Employee Benefit Plans following the Effective Time. ARTICLE XI ACCESS TO INFORMATION SECTION 11.1. Access to Information. Article IV of the Distribution Agreement shall govern the rights of the D&B Group, the Cognizant Group and the ACNielsen Group with respect to access to information. The term "Records" in that Article shall be read to include all Employee Benefit Records. ARTICLE XII INDEMNIFICATION SECTION 12.1. Indemnification. Article III of the Distribution Agreement shall govern the rights of the D&B Group, the Cognizant Group and the ACNielsen Group with respect to indemnification. The term "D&B Liabilities" in that Article shall be read to include all Liabilities assumed by the D&B Group pursuant to this Agreement. The term "Cognizant Liabilities" in that Article shall be read to include all Liabilities assumed by the Cognizant Group pursuant to this Agreement. The term "ACNielsen Liabilities" in that Article shall be read to include all Liabilities assumed by the ACNielsen Group pursuant to this Agreement. ARTICLE XIII DISPUTE RESOLUTION SECTION 13.1. Dispute Resolution. Article VI of the Distribution Agreement shall govern the rights of the D&B Group, the Cognizant Group and the ACNielsen Group with respect to dispute resolution. The term "Agreement Dispute" in that Article shall be read to include all Employee Benefit Disputes. 26 26 ARTICLE XIV MISCELLANEOUS SECTION 14.1. Complete Agreement; Construction. This Agreement, including the Exhibits and Schedules (if any), and the Distribution Agreement shall constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede all previous negotiations, commitments and writings with respect to such subject matter. In the event of any inconsistency between this Agreement and any Schedule hereto, the Schedule shall prevail. Other than Sections 2.7 and 4.5 and Article VI of the Distribution Agreement, which shall prevail over any inconsistent or conflicting provisions in this Agreement, notwithstanding any other provisions in this Agreement to the contrary, in the event and to the extent that there shall be a conflict between the provisions of this Agreement and the provisions of the Distribution Agreement, this Agreement shall control. SECTION 14.2. Ancillary Agreements. This Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Ancillary Agreements. SECTION 14.3. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the parties and delivered to the other parties. SECTION 14.4. 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 14.5. Expenses. Except as otherwise set forth in this Agreement, the Distribution Agreement or any Ancillary Agreement, all costs and expenses incurred on or prior to the Distribution Date (whether or not paid on or prior to the Distribution Date) in connection with the preparation, execution, delivery and implementation of this Agreement, the Distribution Agreement, any Ancillary Agreement, the Information Statement (including any registration statement on Form 10 of which such Information Statement may be a part) and the Distribution and the consummation of the transactions contemplated thereby shall be charged to and paid by D&B. Except as otherwise set forth in this Agreement, the Distribution Agreement or any Ancillary Agreement, each party shall bear its own costs and expenses incurred after the Distribution Date. Any amount or expense to be paid or reimbursed by any party hereto to any other party hereto shall be so paid or reimbursed promptly after the existence and amount of such obligation is determined and demand therefor is paid. 27 27 SECTION 14.6. 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: One Diamond Hill Road Murray Hill, NJ 07974 Telecopy: (908) 665-5803 Attn: General Counsel To Cognizant Corporation: 200 Nyala Farms Westport, CT 06880 Telecopy: (203) 222-4201 Attn: General Counsel To ACNielsen Corporation: 177 Broad Street Stamford, CT 06901 Telecopy: (203) 961-3190 Attn: General Counsel SECTION 14.7. 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 14.8. Amendments. Subject to the terms of Section 14.11 hereof, this Agreement may not be modified or amended except by an agreement in writing signed by each of the parties hereto. SECTION 14.9. Assignment. This Agreement shall not be assignable, in whole or in part, directly or indirectly, by any party hereto without the prior written consent of the other parties hereto, and any attempt to assign any rights or obligations arising under this Agreement without such consent shall be void. SECTION 14.10. 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. 28 28 SECTION 14.11. Termination. This Agreement (including, without limitation, Section 4.8 and Article XII hereof) may be terminated and may be amended, modified or abandoned at any time prior to the Distribution by and in the sole discretion of 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 Section 4.8 and Article XII shall not be terminated or amended after the Distribution in respect of the third party beneficiaries thereto without the consent of such persons. SECTION 14.12. 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 14.13. Third Party Beneficiaries. Except as provided in Section 4.8 and Article XII, 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 14.14. 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 14.15. Exhibits and Schedules. The Exhibits and Schedules, if any, shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein. SECTION 14.16. 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 14.17. Consent to Jurisdiction. Without limiting the provisions of Article XIII 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 29 29 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 14.17. 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 14.18. Severability. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. SECTION 14.19. Governmental Notices; Cooperation. Notwithstanding anything in this Agreement to the contrary, all actions contemplated herein with respect to Employee Benefit Plans which are to be consummated pursuant to this Agreement shall be subject to such notices to, and/or approvals by, the Service or the PBGC (or any other governmental agency or entity) as are required or deemed appropriate by such Employee Benefit Plan's sponsor. Each of D&B, Cognizant and ACNielsen agrees to use its commercially reasonable efforts to cause all such notices and/or approvals to be filed or obtained, as the case may be. Each party hereto shall reasonably cooperate with the other parties with respect to any government filings, employee notices or any other actions reasonably necessary to maintain and implement the Employee Benefit Plans covered by this Agreement. SECTION 14.20. Further Assurances. From time to time, as and when reasonably requested by any other party hereto, each party hereto shall execute and deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all such further or other actions as such other party may reasonably deem necessary or desirable to effect the purposes of this Agreement and the transactions contemplated hereunder. 30 30 IN WITNESS WHEREOF, the parties have duly executed and entered into this Agreement, as of the date first above written. THE DUN & BRADSTREET CORPORATION by__________________________ Name: Title: COGNIZANT CORPORATION by__________________________ Name: Title: ACNIELSEN CORPORATION by__________________________ Name: Title: EX-99.4 6 INTELLECTUAL PROPERTY AGREEMENT 1 EXHIBIT 99.4 FORM OF INTELLECTUAL PROPERTY AGREEMENT This INTELLECTUAL PROPERTY AGREEMENT ("Agreement") is dated as of ______________, 1996, between and among THE DUN & BRADSTREET CORPORATION, a Delaware corporation ("D&B"), COGNIZANT CORPORATION, a Delaware corporation ("Cognizant"), and ACNIELSEN CORPORATION, a Delaware corporation ("ACNielsen") (each a "Party" and collectively, the "Parties"). RECITALS WHEREAS, D&B, acting through its direct and indirect subsidiaries, currently owns various intellectual property rights used in connection with a number of businesses, which businesses are described in the Distribution Agreement dated as of __________, 1996, among D&B, Cognizant and ACNielsen (the "Distribution Agreement"); and WHEREAS, the Parties hereto have determined that this Agreement is appropriate in order to effectuate the purposes of the Distribution Agreement as described therein, and in order to promote a clear understanding of their respective intellectual property rights subsequent to the execution of said Distribution Agreement and the Distribution (as defined therein) contemplated thereby; NOW, THEREFORE, in consideration of the mutual agreements, undertakings and covenants herein and therein, the sufficiency of which is hereby acknowledged, the Parties hereby agree as follows: ARTICLE I. DEFINITIONS 1. Except as may be set forth herein, all defined terms shall have the meaning set forth in Article I, Section 1.1 of the Distribution Agreement. 2. "Data Services Agreements" shall mean the Data Services Agreements between and among D&B, Cognizant and ACNielsen. 3. "Infringement" shall mean any unauthorized use or conduct in violation or derogation of the rights in question. 4. "Intellectual Property" shall mean all intellectual property rights related to the assets or businesses in question, including without limitation: 2 2 a. any and all rights, privileges and priorities arising under the laws or treaties of the United States, any state, territory or possession thereof, any other country or political subdivision or territory thereof, or the European Community, relating to patents, copyrights, trade names, trademarks, service marks, mask works, trade secrets, inventions, databases, names and logos, trade dress, and other proprietary information and licenses from third persons granting the right to use any of the foregoing, including all registrations and applications for any of the foregoing that have been issued by or filed with the appropriate authorities prior to the Distribution Date, any common-law rights arising from the use of the foregoing prior to the Distribution Date, any rights commonly known as "industrial property rights" or the "moral rights" of authors relating to the foregoing, and all claims, causes of action, or other rights arising out of or relating to any actual or threatened Infringement by any person not a Party to this Agreement accruing, commencing or occurring prior to the Distribution Date; b. all computer applications, programs and other software, including without limitation operating software, network software, firmware, middleware, design software, design tools, systems documentation and instructions, except to the extent that they may be more specifically addressed in the Data Services Agreements; and c. 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. 5. "Intellectual Property Disputes" shall mean any and all controversies, disputes or claims 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 Intellectual Property, including, without limitation, any and all claims based on contract, tort, statute or constitution. 3 3 6. "LLC" shall mean CZT/ACN Trademarks, L.L.C., a Delaware limited liability company to be jointly owned by Cognizant and ACN pursuant to the LLC Agreement. 7. "LLC Agreement" shall mean the agreement to be entered into by Cognizant and ACN substantially in the form of Schedule I. 8. "Nielsen Intellectual Property" shall mean those patents, trademarks, service marks, registrations and applications therefor identified in the Schedules described in Article III of this Agreement. ARTICLE II. OWNERSHIP OF INTELLECTUAL PROPERTY. General Principles of Allocation and Recognition Section 2.01. Without limiting any obligation or liability of D&B under the Distribution Agreement or any Ancillary Agreement, and subject to the provisions set forth in Article III below, each of the Parties hereto acknowledges, recognizes and agrees that, after the Distribution, D&B (or another member of the D&B Group) shall retain all right, title and interest in all Intellectual Property that (i) originated primarily with the conduct of the D&B Business or primarily in connection with the D&B Assets; (ii) was obtained by, or exclusively or primarily for the conduct of, the D&B Business or in connection with the D&B Assets; (iii) was developed exclusively or primarily for the conduct of the D&B Business or in connection with the D&B Assets; (iv) arose from funding by, or exclusively or primarily for the benefit of the conduct of, the D&B Business or in connection with the D&B Assets; or (v) as of the Distribution Date is used or held for use exclusively or primarily for the conduct of the D&B Business or in connection with the D&B Assets. If a conflict exists between any of the subsections (i) through (iv) of this Section on the one hand and subsection (v) of this Section on the other hand, then subsection (v) shall prevail. Section 2.02. Without limiting any obligation or liability of Cognizant under the Distribution Agreement or any Ancillary Agreement, and subject to the provisions set forth in Article III below, each of the Parties hereto acknowledges, recognizes and agrees that, after the Distribution, Cognizant (or another member of the Cognizant Group) shall retain all right, title and interest in all Intellectual Property that (i) originated primarily with the conduct of the Cognizant Business or primarily in connection with the Cognizant Assets; (ii) was obtained by, or exclusively or primarily for the conduct of, the Cognizant Business or in connection with the Cognizant Assets; (iii) was developed exclusively or primarily for the conduct of the Cognizant Business or in connection with the Cognizant Assets; (iv) arose from funding by, or exclusively or primarily 4 4 for the benefit of the conduct of, the Cognizant Business or in connection with the Cognizant Assets; or (v) as of the Distribution Date is used or held for use exclusively or primarily for the conduct of the Cognizant Business or in connection with the Cognizant Assets. If a conflict exists between any of the subsections (i) through (iv) of this Section on the one hand and subsection (v) of this Section on the other hand, then subsection (v) shall prevail. Section 2.03. Without limiting any obligation or liability of ACNielsen under the Distribution Agreement or any Ancillary Agreement, and subject to the provisions set forth in Article III below, each of the Parties hereto acknowledges, recognizes and agrees that, after the Distribution, ACNielsen (or another member of the ACNielsen Group) shall retain all right, title and interest in all Intellectual Property that (i) originated primarily with the conduct of the ACNielsen Business or primarily in connection with the ACNielsen Assets; (ii) was obtained by, or exclusively or primarily for the conduct of, the ACNielsen Business or in connection with the ACNielsen Assets; (iii) was developed exclusively or primarily for the conduct of the ACNielsen Business or in connection with the D&B Assets; (iv) arose from funding by, or exclusively or primarily for the benefit of the conduct of, the ACNielsen Business or in connection with the ACNielsen Assets; or (v) as of the Distribution Date is used or held for use exclusively or primarily for the conduct of the ACNielsen Business or in connection with the ACNielsen Assets. If a conflict exists between any of the subsections (i) through (iv) of this Section on the one hand and subsection (v) of this Section on the other hand, then subsection (v) shall prevail. Section 2.04. Certain Specified Items. Without limiting any obligation or liability of any Party under the Distribution Agreement or any Ancillary Agreement, and subject to the provisions set forth in Article III below, each of the Parties hereto acknowledges, recognizes and agrees that, after the Distribution, all right, title and interest in all Intellectual Property relating to and associated with the items identified in Schedule A shall be owned by or vested in the Party indicated therein. This provision is intended to supplement the preceding Sections 2.01-2.03 with regard to these specified items, and should not be construed in any manner that would tend to derogate from the validity or applicability of the general principles of allocation and recognition set forth therein. Nevertheless, in the event of conflict between this provision and Sections 2.01-2.03, this Section 2.04 shall prevail. Section 2.05. Rights Arising in Future. Subject to the provisions set forth in Article III below, each of the Parties hereto acknowledges, recognizes and agrees that, after the Distribution Date, (i) any and all Intellectual Property created by or on behalf of a Party, including common-law rights related thereto, shall belong solely and exclusively to such 5 5 Party; and (ii) any and all subsequent ownership, possession and use by each Party of the Intellectual Property that it will own subsequent to the Distribution pursuant to the terms of this Agreement (excluding any possession or use pursuant to license granted by another Party), including common-law rights related thereto, shall inure solely to such Party's own benefit. Section 2.06. No Warranties. Each of the Parties hereto understands and agrees that, except as otherwise expressly provided, 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 regarding the Intellectual Property, including, without limitation, as to title, value or legal sufficiency. It is also agreed and understood that any and all Intellectual Property assets either transferred or retained by the Parties, as the case may be, shall be "as is, where is". Section 2.07. Recognition of Non-Party Rights. The recognition among the Parties of ownership of Intellectual Property rights under Sections 2.01-2.05 of this Agreement is subject to all pre-existing rights, obligations and restrictions of non-parties to this Agreement as of the Distribution Date. ARTICLE III. NIELSEN INTELLECTUAL PROPERTY. PATENTS AND PATENT APPLICATIONS Section 3.01. Notwithstanding the provisions of Article II of this Agreement, each of the Parties hereto acknowledges, recognizes and agrees that, after the Distribution, Cognizant shall have all right, title and interest in, to and under those patents and patent applications previously owned by ACNielsen identified in Schedule B, together with all Intellectual Property related thereto and associated therewith, for the exclusive use and benefit of Cognizant in connection with the Cognizant Business as it is now or may hereinafter be conducted anywhere in the world. Section 3.02. Notwithstanding the provisions of Article II of this Agreement, each of the parties hereto acknowledges, recognizes and agrees that, after the Distribution, ACNielsen shall retain all right, title and interest in, to and under those patents and patent applications identified in Schedule C, together with all Intellectual Property related thereto and associated therewith, for the exclusive use and benefit of ACNielsen in connection with the ACNielsen Business as it is now or may hereinafter be conducted anywhere in the world. Section 3.03. Notwithstanding the provisions of Article II of this Agreement, each of the Parties hereto acknowledges, recognizes and agrees that NCH Promotional Services, Inc., shall own all right, title and interest in, to 6 6 and under those patents identified in Schedule D, together with all Intellectual Property related thereto and associated therewith, for the exclusive use and benefit of NCH Promotional Services, Inc., in connection with its business as it is now or may hereinafter be conducted anywhere in the world. TRADEMARKS AND TRADEMARK APPLICATIONS Section 3.04. Notwithstanding the provisions of Article II of this Agreement, each of the Parties hereto acknowledges, recognizes and agrees that, after the Distribution, Cognizant shall have all right, title and interest in, to and under those trademarks, service marks, registrations and applications therefor identified in Schedule E, together with all goodwill and Intellectual Property related thereto and associated therewith, for the exclusive use of Cognizant in connection with the Cognizant Business as it is now or may hereinafter be conducted anywhere in the world. Section 3.05. Notwithstanding the provisions of Article II of this Agreement, each of the Parties hereto acknowledges, recognizes and agrees that, after the Distribution, ACNielsen shall have all right, title and interest in, to and under those trademarks, service marks, registrations and applications therefor identified in Schedule F, together with all goodwill and Intellectual Property related thereto and associated therewith, for the exclusive use of ACNielsen in connection with the ACNielsen Business as it is now or may hereinafter be conducted anywhere in the world. Section 3.06. Notwithstanding the provisions of Article II of this Agreement, each of the Parties hereto acknowledges, recognizes and agrees that NCH Promotional Services, Inc., shall own all right, title and interest in, to and under those trademarks, service marks, registrations and applications therefor identified in Schedule G, together with all goodwill and Intellectual Property related thereto and associated therewith, for the exclusive use and benefit of NCH Promotional Services, Inc., in connection with its business as it is now or may hereinafter be conducted anywhere in the world. Section 3.07. Notwithstanding the provisions of Article II of this Agreement, each of the parties hereto acknowledges, recognizes and agrees that, after the Distribution, all right, title and interest in, to and under those trademarks, service marks, registrations and applications therefor identified in Schedule H, together with all goodwill and Intellectual Property related thereto and associated therewith, shall be owned by the LLC, which shall have sole responsibility for maintaining and preserving the quality of those trademarks, service marks, registrations and applications therefor in a manner consistent with the high standards and reputation for quality associated with the "NIELSEN" name. The LLC will be organized and governed according to the LLC Agreement, substantially in the form of 7 7 Schedule I and as it may be amended or modified by Cognizant and ACNielsen pursuant to its terms, with the fundamental purpose at all times of assisting both Cognizant and ACNielsen in achieving their legitimate business purposes to the greatest extent possible while also preserving the integrity of the trademarks, service marks, registrations and applications therefor owned by it and minimizing the risk of confusion to any relevant group of consumers for any product or service associated with any such trademark, service mark, registration or application therefor. Schedule H also identifies those trademark and service mark applications that cannot be immediately transferred or assigned to the LLC under the relevant local law. Ownership of each such application shall be retained by ACNielsen pursuant to an escrow agreement, in a form valid and legally enforceable pursuant to the relevant local law, until such application is granted; at which time the registration and all goodwill and Intellectual Property related thereto and associated therewith, if any, shall be transferred to the LLC, as shall be specified in both the LLC Agreement and the pertinent escrow agreement. Section 3.08. Reversion of Certain Property. Schedule H also identifies certain trademarks and service marks that shall be distributed, together with all goodwill and Intellectual Property related thereto and associated therewith, by the LLC to either Cognizant or ACNielsen as indicated therein and to the extent appropriate under the LLC Agreement, in the event that the relevant local law pursuant to which rights in such trademarks or service marks are granted should subsequently, in the opinion of counsel to the LLC with expertise in the relevant local law, both (a) permit the ownership of such trademarks or service marks by unrelated entities without substantial jeopardy to their validity or enforceability, and (b) not present a substantial impediment to the future registration (subject to the other provisions of this Article) by either Cognizant or ACNielsen of a trademark or service mark incorporating, referring to or derived from the "NIELSEN" name, if applications for concurrent registration of such trademarks or service marks were to be made by unrelated entities. In no event, however, shall any trademark or service mark consisting of the "NIELSEN" name or the "split-N" symbol, standing alone, be so distributed, for so long as both Cognizant and ACNielsen shall continue to use any trademark or service mark anywhere in the world incorporating, referring to or derived from the "NIELSEN" name. Section 3.09. Clear Identification of Source. Cognizant and ACNielsen agree that, subsequent to the Distribution Date, neither Cognizant nor ACNielsen shall possess or acquire any right to use the "NIELSEN" name or "split-N" symbol standing alone or by itself in any manner for any purpose, including use of the name as an Internet domain name or the equivalent or as the name or logo for a business, corporation, or other legal entity, except as may otherwise be agreed by and between Cognizant and ACNielsen; provided, however, that both 8 8 Cognizant and ACNielsen may continue to use the "NIELSEN" name or "split-N" symbol in any usage for which each, respectively, is currently using the name or symbol, including usage of the name as part of electronic mail or messaging addresses for its employees using existing systems, during a transitional period of six months subsequent to the Distribution Date (a "Transitional Use"). Subsequent to the Distribution Date, except for a Transitional Use, any use that Cognizant or ACNielsen may make of the "NIELSEN" name or "split-N" symbol for any business purpose, including any use in trade, advertising, publicity, packaging, or labeling, and including any use of any trademark or service mark identified in Schedule H or in Schedules E and F that incorporates, refers to, or is derived from the "NIELSEN" name or "split-N" symbol, shall only be made in conjunction with other words, names, symbols or logos prominently displayed in as near proximity thereto as is reasonably feasible and, at minimum, on the same page, panel, sheet or screen therewith, clearly identifying the source of the communication, good or service: (a) with regard to Cognizant, as "NIELSEN TV," "NIELSEN MEDIA," "NIELSEN MEDIA RESEARCH," or another entity using a name not incorporating, referring to, or derived from the "NIELSEN" name; and (b) with regard to ACNielsen, as "ACNIELSEN" or another entity using a name not incorporating, referring to, or derived from the "NIELSEN" name. In addition, in the event that ACNielsen enters into any television audience measurement business in the United States or Canada subsequent to the Distribution Date, its use of any name incorporating, referring to, or derived from the "NIELSEN" name in connection with such business shall be subject to the provisions of Schedule J. Section 3.10. Limitations on Concurrent Use. The provisions in this Article shall in no way restrict the rights of Cognizant or ACNielsen to sell any product or service or enter into any business identical or similar to any product or service sold, or business conducted by, the other before or after the Distribution Date. Cognizant and ACNielsen agree, however, that in the event that either Cognizant or ACNielsen sells any product or service, or enters into any business, after the Distribution Date in any country that is identical or substantially similar to those sold or conducted by the other in that country prior to the Distribution Date, neither Cognizant nor ACNielsen shall use any name incorporating, referring to or derived from the "NIELSEN" name or the "split-N" symbol to describe or identify such product, service, or business; provided that any product, service or business relating to the measurement of Internet usage or to research and analysis of Internet usage, utilization, advertising, or purchasing patterns, by businesses or consumers, shall not be subject to such restriction and shall only be subject to the restrictions set forth in Section 3.09, and provided further that any product or service that may in future be sold by ACNielsen in connection with any television audience measurement business in the United States or Canada shall be subject to both this restriction and the provisions of Schedule J. 9 9 Section 3.11. Clear Fields. Cognizant and ACNielsen agree that, subsequent to the Distribution Date, neither Cognizant nor ACNielsen shall use (except pursuant to license), register or attempt to register any trademark or service mark (whether registered or not) that has been used (except pursuant to license), owned or applied for by the other in any country or geographic area as of the Distribution Date, including but not limited to those trademarks and service marks identified in Schedules A, F, G and H, in either that country or geographic area or in any other country or geographic area. Section 3.12. Notice and Publicity. Prior to or subsequent to the Distribution, both Cognizant and ACNielsen agree to give or cause to be given, in each distinct geographic area or line of business in which they intend to operate or to sell any product or service, such notice and publicity of their separation and distinct identities as the source of any such business, product or service as may be reasonable under the circumstances or required by the relevant local law, where the local law imposes such a duty so to notify and/or publicize. Section 3.13. Internet Hyperlinks. Cognizant and ACNielsen agree to assign and transfer all rights in the existing "nielsen.com" Internet domain name to the LLC, and to cause the LLC to provide and maintain an Internet or Web site using that domain name for the purpose of providing and maintaining "hyperlinks" to the principal Internet or Web sites maintained by both Cognizant and ACNielsen. In addition, both Cognizant and ACNielsen agree to provide and maintain in any Internet or Web site maintained by Cognizant or ACNielsen, respectively, for a period of two (2) years subsequent to the Distribution Date, a hyperlink to the principal Internet or Web site maintained by the other. All such hyperlinks shall be displayed together with appropriate text indicating the nature and purpose of the hyperlink and describing in summary the separation and distinct identities of each as sources of their respective goods and services. Cognizant and ACNielsen further agree to cooperate reasonably in the identification of appropriate addresses and/or domain names and in resolving technical issues necessary to provide and maintain such hyperlinks. Section 3.14. Assignments and Sublicenses; Remedies for Improper Use. Cognizant and ACNielsen agree that any form of transfer of, or grant of rights in or to, any trademark or service mark (whether registered or not) incorporating, referring to or derived from the "NIELSEN" name or "split-N" symbol by either Cognizant or ACNielsen (the "Granting Party") to a non- party to this Agreement shall be made explicitly subject to all pertinent provisions of Article III of this Agreement concerning the Granting Party's own use of any such trademark or service mark, and notice shall be given by the Granting Party to the Party other than the Granting Party (the "Interested Party") of any such transfer or grant of rights. Any such grant of rights that is not an outright transfer, assignment, sale or disposition 10 10 of all of the Granting Party's rights and interests in any such trademark or service mark, including any sub-license, consent or permission to use, to a non-party to this Agreement (a "Grantee") shall be pursuant to a written instrument that shall both (a) explicitly bind the Grantee to all pertinent provisions of this Agreement restricting the Granting Party's own use of any such trademark or service mark, and (b) explicitly provide that the Granting Party may revoke the grant of rights, in its sole discretion, upon not more than thirty days' notice to the Grantee. It shall be the obligation of the Granting Party to use its best efforts to police the use made of any such trademark or service mark by a Grantee. If the Granting Party reasonably believes that a Grantee is using any such trademark or service mark in a manner that is (c) inconsistent with the terms of this Agreement or (d) injurious to the high standards and reputation for quality associated with the "NIELSEN" name (an "Improper Use"), the Granting Party shall promptly so notify both the Grantee and the Interested Party. If the Grantee does not thereafter correct or terminate the Improper Use within thirty days, the Granting Party shall revoke the grant of rights to the Grantee, and shall give notice thereof to the Interested Party. If the Interested Party reasonably believes that the use made by a Grantee of rights granted by the Granting Party is an Improper Use, it may so notify the Granting Party, which shall thereupon take appropriate measures to investigate the use in question and shall notify the Interested Party within fourteen (14) days as to whether it also reasonably believes that the Grantee is engaging in an Improper Use. If the Granting Party, after receiving notice from the Interested Party, also reasonably believes that the Grantee is engaging in an Improper Use, it shall take all appropriate measures to correct or terminate the Improper Use, including the giving of notice of revocation to the Grantee, if necessary. If the Granting Party (x) gives notice to the Interested Party that it does not reasonably believe that a Grantee is engaging in an Improper Use, or (y) fails to take appropriate measures to correct or terminate an Improper Use after giving notice to the Interested Party that it reasonably believes a Grantee is engaging in an Improper Use, or (z) is unable to correct or terminate an Improper Use by a Grantee within sixty (60) days of the first notice of suspected Improper Use given by either the Granting Party or the Interested Party, the Interested Party may both take such legal measures it deems appropriate against the Grantee and invoke its rights against the Granting Party in the event of an Intellectual Property Dispute as defined in this Agreement. Section 3.15. Duty to Avoid Confusion. The Parties hereto confirm their belief that likelihood of confusion will not result from the Parties' use of their respective trademarks and service marks as provided for in this Agreement, due to the differences in the environments in which and the customers to whom the goods and services of the Parties associated therewith are primarily offered and sold. The Parties further believe that any potential future confusion will be prevented under the terms 11 11 of this Agreement. Furthermore, in order to enable and permit each other to continue using and to register their respective trademarks and service marks and to ensure that there is no confusion in any relevant marketplace between them, the Parties agree to use their best efforts to avoid actual or potential confusion arising from their use, to advise any other affected Party of any instance of actual or potential confusion that comes to a Party's attention concerning use of their respective trademarks and service marks, to take all such steps as may be appropriate and necessary to remedy any actual or potential confusion caused by their actions, and to cooperate with each other in good faith to avoid and prevent actual or potential confusion. Section 3.16. Consent to Registration. Subject to the other provisions of this Article, each Party agrees that any other Party may use a copy of this Agreement to evidence the other Party's express consent to registration of the Party's trademarks or service marks, if necessary to obtain or maintain a registration of such mark in the United States Patent and Trademark Office or any other pertinent governmental agency in any country or group of countries; and further agrees to take any other necessary action that any other Party may reasonably request to express or confirm such consent. Section 3.17. Transfer at or Prior to Distribution. The Parties agree to execute all such documents, and to take all such actions, prior to or at the Distribution as they may deem to be necessary to achieve or confirm the respective ownership of rights in the Nielsen Intellectual Property as contemplated in this Article to be effective upon the Distribution Date. Section 3.18. Construction. In the event of any inconsistency between Article III and Article II of this Agreement with respect to the Nielsen Intellectual Property, then Article III shall prevail. ARTICLE IV. FURTHER ASSURANCES AND COOPERATION. Section 4.01. Without limiting the obligations of any party under Article III of this Agreement, each Party hereto shall execute and deliver, or cause to be executed and delivered, as and when reasonably requested by any other Party hereto, all such documents and instruments and shall take, or cause to be taken, all such further or other actions as such other Party may reasonably deem necessary or desirable to effect the purposes of this Agreement and/or to clarify or confirm the respective ownership rights of the Parties as provided for in this Agreement. Section 4.02. Without limiting the obligations of any party under Article III of this Agreement, each Party hereto shall reasonably cooperate with the other Parties with respect to 12 12 any government filings or any other actions reasonably necessary to maintain and enforce the rights to the Intellectual Property covered by this Agreement. Section 4.03. Without limiting the obligations of any Party under Article III of this Agreement, each Party hereto shall, upon the prior written request of another Party, arrange for the provision of appropriate copies of Records in its possession or control (or the originals thereof if the Party making the request has a reasonable need for such originals) created prior to the Distribution Date and relating to the Intellectual Property, as soon as reasonably practicable following the receipt of such request, but only to the extent such items are not already in the possession or control of the requesting Party. ARTICLE V. INDEMNIFICATION. Section 5.01. Article III of the Distribution Agreement shall govern the rights of D&B, Cognizant and ACNielsen with respect to indemnification for any and all Indemnifiable Losses incurred by any Party related to the Intellectual Property. The term "D&B Liabilities" in that Article shall be read to include all Liabilities relating to the Intellectual Property to be owned by D&B pursuant to this Agreement. The term "Cognizant Liabilities" in that Article shall be read to include all Liabilities relating to the Intellectual Property to be owned by Cognizant pursuant to this Agreement. The term "ACNielsen Liabilities" in that Article shall be read to include all Liabilities relating to the Intellectual Property to be owned by ACNielsen pursuant to this Agreement. The term "Third Party Claim" in that Article shall be read to include all claims or demands made by a non-party to this Agreement concerning the Intellectual Property, including but not limited to claims for Infringement accruing or arising before the Distribution Date. ARTICLE VI. DISPUTE RESOLUTION. Section 6.01. Article VI of the Distribution Agreement shall govern the rights of D&B, Cognizant and ACNielsen with respect to dispute resolution. The term "Agreement Dispute" in that Article shall be read to include all Intellectual Property Disputes. ARTICLE VII. MISCELLANEOUS. Section 7.01. Complete Agreement; Construction. This Agreement, the Schedules thereto, the Distribution Agreement, the LLC Agreement and the Data Services Agreements shall constitute the entire agreement between the Parties with respect to the subject matter hereof and shall supersede all previous 13 13 negotiations, commitments and writings with respect to such subject matter. In the event of any inconsistency between this Agreement and any Schedule thereto, the Schedule shall prevail. In the event of any inconsistency between this Agreement and the LLC Agreement, this Agreement shall prevail. Other than Sections 2.7, 2.14 and 4.5 and Article VI of the Distribution Agreement, which shall prevail over any inconsistent or conflicting provisions in this Agreement notwithstanding any other provisions in this Agreement to the contrary, in the event and to the extent that there shall be an inconsistency between the provisions of this Agreement and the provisions of the Distribution Agreement, this Agreement shall prevail. Section 7.02. Other Agreements. This Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Distribution Agreement and/or other Ancillary Agreements. Section 7.03. Counterparts. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more such counterparts have been signed by each of the Parties and delivered to the other Parties. Section 7.04. 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 7.05. Expenses. Except as otherwise set forth in this Agreement, the LLC Agreement, the Distribution Agreement or any Ancillary Agreement, all costs and expenses incurred on or prior to the Distribution Date (whether or not paid on or prior to the Distribution Date) in connection with the preparation, execution, delivery and implementation of this Agreement 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 and the LLC Agreement, each Party shall bear its own costs and expenses related to the Intellectual Property, including the performance of any obligation arising under Articles III and IV of this Agreement. Section 7.06. 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 14 14 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: One Diamond Hill Road Murray Hill, NJ 07974 Telecopy: (908) 665-5803 Attn: General Counsel To Cognizant Corporation: 200 Nyala Farms Westport, Connecticut 06880 Telecopy: (203) 222-4201 Attn: General Counsel To ACNielsen Corporation: 177 Broad Street Stamford, Connecticut 06901 Telecopy: (203) 961-3190 Attn: General Counsel Section 7.07. 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 7.08. Amendments. Subject to the terms of Section 7.11 hereof, this Agreement may not be modified or amended except by an agreement in writing signed by each of the Parties hereto. Section 7.09. Assignment. This Agreement shall not be assignable, in whole or in part, directly or indirectly, by any Party hereto without the prior written consent of the other Parties hereto, and any attempt to assign any rights or obligations arising under this Agreement (except as set forth in Section 3.14) without such consent shall be void. Section 7.10. 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. 15 15 Section 7.11. Termination. This Agreement may be terminated and 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. Section 7.12. 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 7.13. Third Party Beneficiaries. 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 7.14. 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 7.15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. Section 7.16. 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 7.16. 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 16 16 (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 7.17. 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. 17 17 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: EX-99.5 7 SHARED TRANSACTION SERVICES AGREEMENT 1 EXHIBIT 99.5 FORM OF SHARED TRANSACTION SERVICES AGREEMENT BETWEEN [SERVICE PROVIDER] AND [RECIPIENT] DATED AS OF ___________________ 2 TABLE OF CONTENTS
Page ARTICLE 1. DEFINITIONS AND CONSTRUCTION................................. 1 1.01 Definitions............................................... 1 1.02 References................................................ 3 1.03 Headings.................................................. 3 1.04 Interpretation of Documents............................... 4 ARTICLE 2. TERM OF AGREEMENT............................................ 4 ARTICLE 3. SERVICES..................................................... 4 3.01 Services.................................................. 4 3.02 Priority.................................................. 4 3.03 Reports................................................... 4 3.04 Additional Services....................................... 4 3.05 Facilities................................................ 5 3.06 Tax and Accounting Work Group............................. 5 ARTICLE 4. RECIPIENT OBLIGATIONS........................................ 5 4.01 Recipient Hardware........................................ 5 4.02 Generally................................................. 6 4.03 Associated Equipment...................................... 6 4.04 Security.................................................. 6 4.05 Business Planning......................................... 6 ARTICLE 5. PROPRIETARY RIGHTS........................................... 7 5.01 Recipient Software........................................ 7 5.02 Service Provider Software................................. 7 ARTICLE 6. DATA......................................................... 7 6.01 Form of Data.............................................. 7 6.02 Ownership of Data......................................... 7 6.03 Ownership of Media........................................ 7 6.04 Responsibility for Data................................... 7 ARTICLE 7. FEES......................................................... 8 7.01 Fees...................................................... 8 7.02 Time of Payment........................................... 8 7.03 Substantial Change in Volume.............................. 8 7.04 Taxes..................................................... 8 7.05 Late Payments............................................. 8 7.06 Termination Fees.......................................... 8
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Page ARTICLE 8. AUDITS....................................................... 9 ARTICLE 9. CONFIDENTIALITY.............................................. 9 ARTICLE 10. INDEMNITY................................................... 9 ARTICLE 11. DISCLAIMER AND LIMITATION OF LIABILITY...................... 10 11.01 DISCLAIMER............................................... 10 11.02 Limitation of Liability.................................. 10 ARTICLE 12. DISPUTE RESOLUTION.......................................... 10 12.01 Negotiation.............................................. 10 12.02 Arbitration.............................................. 10 12.03 Continuity of Services and Performance................... 11 ARTICLE 13. CONTINUED PROVISION OF SERVICES............................. 12 13.01 Force Majeure............................................ 12 13.02 Disaster Recovery........................................ 12 ARTICLE 14. TERMINATION................................................. 12 14.01 For Convenience.......................................... 12 14.02 Effect of Termination.................................... 12 ARTICLE 15. TERMINATION ASSISTANCE SERVICES............................. 12 ARTICLE 16. MISCELLANEOUS PROVISIONS.................................... 13 16.01 No Waivers............................................... 13 16.02 Consents, Approvals and Requests......................... 13 16.03 Partial Invalidity....................................... 13 16.04 Notices.................................................. 13 16.05 Relationship............................................. 14 16.06 Governing Law............................................ 14 16.07 Covenant of Further Assurances........................... 14 16.08 Assignment............................................... 14 16.09 Entire Understanding..................................... 14 16.10 Successors............................................... 14 16.11 Amendments............................................... 15 16.12 Survival................................................. 15 16.13 Counterparts............................................. 15 16.14 Good Faith and Fair Dealing.............................. 15 16.15 Third Party Beneficiaries................................ 15
ii 4 SCHEDULES Schedule A Services and Capacity Levels Schedule B Service Levels Schedule C Reports Schedule D Recipient Software Schedule E Fees Schedule F Extended Term Charges Schedule G Real Estate and Facilities Agreements Schedule H Service Provider Software Schedule I Termination Fees Schedule J Disaster Recovery Plan iii 5 SHARED TRANSACTION SERVICES AGREEMENT (this "Agreement"), dated as of ___________, 1996 (the "Agreement Date"), by and between [SERVICE PROVIDER], a ___________ corporation ("Service Provider") and [RECIPIENT], a ___________ corporation ("Recipient"). W I T N E S S E T H: WHEREAS, The Dun & Bradstreet Corporation shall be separated into three separate and independent businesses by means of a spin-off (the "Distribution"), pursuant to a Distribution Agreement dated as of ________________, 1996 (the "Distribution Agreement"), among The Dun & Bradstreet Corporation ("D&B"), Cognizant Corporation ("Cognizant") and ACNielsen Corporation ("ACN") (collectively, called the "Newcos"); and WHEREAS, the target date of the Distribution is October 1, 1996, and the actual date that the Distribution becomes effective shall be called the "Distribution Date"; and WHEREAS, prior to the Distribution Date, Service Provider has provided and Recipient has purchased, pursuant to various written and oral agreements, the Shared Transaction Services and the Other Services described in this Agreement; and WHEREAS, in order to facilitate the orderly continuation of Recipient's business for a transitional period after the Distribution Date, Service Provider has agreed to provide to Recipient, and Recipient has agreed to purchase from Service Provider, the Shared Transaction Services and the Other Services described in this Agreement. NOW, THEREFORE, in consideration of the agreements of Service Provider and Recipient set forth below, Service Provider and Recipient agree as follows: ARTICLE 1. DEFINITIONS AND CONSTRUCTION. 1.01 Definitions. The following defined terms shall have the meanings specified below: (1) "ACN" shall have the meaning set forth in the Recitals. (2) "Additional Services" shall mean those services in addition to the Services requested by Recipient pursuant to Section 3.05. (3) "Agreement" shall have the meaning set forth in the Heading. 6 2 (4) "Agreement Date" shall have the meaning set forth in the Heading. (5) "Agreement Disputes" shall have the meaning set forth in Section 12.01. (6) "Alternative Provider" shall mean any alternative external service provider selected by Recipient for the provision of services similar to the Services following the expiration or termination of this Agreement. (7) "Cognizant" shall have the meaning set forth in the Recitals. (8) "D&B" shall have the meaning set forth in the Recitals. (9) "Distribution" shall have the meaning set forth in the Recitals. (10) "Distribution Agreement" shall have the meaning set forth in the Recitals. (11) "Distribution Date" shall have the meaning set forth in the Recitals. (12) "Extended Term" shall have the meaning set forth in Article 2. (13) "Fees" shall mean those charges for the Services set forth in Schedule E. (14) "Initial Term" shall have the meaning set forth in Article 2. (15) "Licensed Documentation" shall mean all documentation that is used in connection with the operation of the Licensed Software. (16) "Licensed Software" shall mean the software described in Schedule D. (17) "Newcos" shall have the meaning set forth in the Recitals. (18) "Other Services" shall mean the services described in Schedule A-2. (19) "Parties" shall mean Service Provider and Recipient, collectively. (20) "Party" shall mean either of Service Provider or Recipient, as the case may be. (21) "Recipient" shall have the meaning set forth in the Heading. (22) "Recipient Data" shall mean all data or information supplied by Recipient to Service Provider for processing or transmission in connection with the Services. 7 3 (23) "Rules" shall have the meaning set forth in Section 12.02. (24) "Service Provider" shall have the meaning set forth in the Heading. (25) "Service Provider Service Location" shall mean any Service Provider service location from which Service Provider provides or performs the Services. The Service Provider Service Locations as of the Agreement Date are located at _________________. (26) "Service Provider Software" shall mean the software and related documentation (a) owned, acquired or developed by Service Provider that is used in connection with the provision of the Services or (b) licensed or leased by Service Provider from a third party which is used in connection with the provision of the Services. The Service Provider Software includes the software set forth in Schedule H. (27) "Services" shall mean the Shared Transaction Services and the Other Services, collectively. (28) "Shared Transaction Services" shall mean the services described in Schedule A-1. 1.02 References. In this Agreement and the Schedules to this Agreement: (1) the Schedules to this Agreement shall be incorporated in and deemed part of this Agreement and all references to this Agreement shall include the Schedules to this Agreement; and (2) references to the word "including" or the phrase "e.g." in this Agreement shall mean "including, without limitation". 1.03 Headings. The article and section headings and the table of contents are for reference and convenience only and shall not be considered in the interpretation of this Agreement. 1.04 Interpretation of Documents. In the event of a conflict between this Agreement and the terms of any of the Schedules, the terms of this Agreement shall prevail. ARTICLE 2. TERM OF AGREEMENT. 8 4 The initial term of this Agreement shall commence on the Distribution Date and shall continue until 12:00 midnight (Eastern Standard Time) on December 31, 1997 (the "Initial Term"), unless terminated earlier pursuant to Section 14.01; provided, however, that Recipient may, upon notice to Service Provider at least 120 days prior to the expiration of the Initial Term, extend the term of this Agreement for a period to be specified in such notice of up to one additional 12-month period (the "Extended Term") at the charges set forth in Schedule F. ARTICLE 3. SERVICES. 3.01 Services. Service Provider shall provide to Recipient, and Recipient shall purchase from Service Provider, (1) the Shared Transaction Services and (2) the Other Services. The Services shall be of substantially the same type, quality and utilization levels and provided with substantially the same degree of care and diligence as such services had been provided to Recipient during the period prior to the Distribution Date. The Services shall be provided at the levels of service set forth in Schedule B. 3.02 Priority. Service Provider shall provide the Services to Recipient with respect to prioritizing, processing and recovery in accordance with Schedule B. 3.03 Reports. Service Provider shall provide Recipient with the reports set forth in Schedule C according to the schedule set forth in Schedule C. 3.04 Additional Services. Service Provider shall provide to Recipient, upon commercially reasonable terms and at a commercially reasonable charge, the Additional Services requested by Recipient. Service Provider and Recipient shall execute a written amendment to this Agreement setting forth any additional terms and conditions applicable to such Additional Services. In connection with its receipt of the Services, Recipient may purchase or lease upgrades to the machines used to provide the Services and request that Service Provider install such upgrades; provided, however, that, in the event such upgrade requires Service Provider to incur any incremental expense or provide additional resources, Recipient shall (a) obtain Service Provider's consent prior to such installation and (b) be responsible for the payment of such incremental expense or the costs of such additional resources. Except as otherwise provided in this Agreement, Service Provider shall not be obligated to (i) purchase or otherwise acquire any hardware or software in addition to that used before the Distribution Date in connection with the Services or (ii) provide any services to Recipient other than the Services. 9 5 3.05 Facilities. Certain matters relating to real estate matters and the use of facilities shared by D&B and the Newcos subsequent to the Distribution Date are set forth in Schedule G. 3.06 Tax and Accounting Work Group. Each Party shall appoint a member of its staff to provide such assistance as may be necessary to address issues relating to tax periods prior to the Distribution Date. Each Party shall maintain accurate and complete accounting and tax records relating to such tax periods. ARTICLE 4. RECIPIENT OBLIGATIONS. 4.01 Recipient Hardware. For Recipient owned or leased equipment, Recipient shall: (1) maintain all equipment, software and operational features at the same level that was provided immediately prior to the Distribution Date, and shall receive maintenance services from those third party service providers that provided maintenance services to Recipient immediately prior to the Distribution Date; and (2) upon notice from Service Provider (which notice shall include Service Provider's estimate of the costs, if any, of the enhancement or modification) as soon as possible after it has been determined that an enhancement or modification is necessary, but in any event upon at least 30 days' notice, enhance or modify such equipment, software and operational features as may be necessary to remain compatible with any systems used by Service Provider in connection with the Services; provided, however, in the event such enhancement or modification results in Service Provider incurring any incremental expense or providing any additional resources, Recipient shall be responsible for the payment of such incremental expense or the costs of such additional resources; 4.02 Generally. Recipient shall: (1) comply with any reasonable instructions provided by Service Provider that are necessary for Service Provider to adequately provide the Services; (2) comply with all applicable standards and procedures applicable to the Service Provider Service Location; (3) promptly report any operational or system problem to Service Provider; 10 6 (4) maintain a business recovery plan detailing the requirements of Recipient in the event of the occurrence of a disaster affecting the Services and periodically test such plan; and (5) provide the working environment, including space, furniture, electricity, telephones and other infrastructure requirements for Service Provider's employees located at Recipient's premises. 4.03 Associated Equipment. Except to the extent otherwise provided for herewith in any Schedule, Recipient shall maintain and be responsible for all costs (including personnel, maintenance and repair) associated with communications equipment (including terminals, communications hardware, modems and telephone lines) that Recipient owns or operates and that are not located at the Service Provider Service Location necessary to provide the Services or to transmit the Recipient Data for processing at the Service Provider Service Location. 4.04 Security. Recipient shall ensure that user accounts shall only be used by the person for whom such account was created or other authorized personnel. Recipient shall promptly inform Service Provider of any individual who is no longer authorized to use the Services. 4.05 Business Planning. During the Initial Term and, if any, the Extended Term, Recipient shall, within a reasonable period of time after such plans are available, provide Service Provider with a detailed plan identifying any changes in Recipient's business that may affect the Services or result in additional capacity being required in order for Service Provider to provide the Services to Recipient. Recipient's business plan provided to Service Provider pursuant to this Section 4.05 shall be deemed confidential information of Recipient. ARTICLE 5. PROPRIETARY RIGHTS. 5.01 Recipient Software. Recipient shall grant a non-exclusive, non-transferable, royalty-free right for Service Provider, solely in connection with providing the Services, to (1) have access to and (a) operate the Licensed Software set forth in Schedule D and (b) use the Licensed Documentation, and (2) use any other hardware, software and documentation owned by, leased by or licensed to Recipient that is necessary to allow Service Provider to perform the Services. Recipient shall obtain any consents or approvals necessary in connection with Service Provider's use of the Licensed Software, the Licensed Documentation and any other such hardware, software and documentation. 11 7 5.02 Service Provider Software. All Service Provider Software is, or shall be, and shall remain, the exclusive property of Service Provider or its third party licensor and Recipient shall have no rights or interests to the Service Provider Software, except as described in this Section 5.02. Service Provider shall obtain any consents or approvals necessary in connection with Service Provider's use of the Service Provider Software to provide the Services to Recipient. ARTICLE 6. DATA. 6.01 Form of Data. All data submitted by Recipient to Service Provider in connection with the Services shall be in the form substantially similar to that submitted before the Distribution Date, unless otherwise agreed to in writing by the parties. 6.02 Ownership of Data. The Recipient Data is and shall remain the property of Recipient or its customers. 6.03 Ownership of Media. Unless furnished to Service Provider by Recipient, all media upon which Recipient Data is stored is and shall remain the property of Service Provider. Recipient may, upon Service Provider's consent, (1) provide Service Provider with a replacement for the media upon which the Recipient Data is stored or (2) purchase such media from Service Provider at the price specified by Service Provider. 6.04 Responsibility for Data. Recipient is responsible from the Agreement Date for (1) the accuracy and completeness of the data submitted by Recipient in connection with the Services and (2) any errors in and with respect to data obtained from Service Provider because of any inaccurate or incomplete data submitted by Recipient to Service Provider. ARTICLE 7. FEES. 7.01 Fees. Recipient shall pay to Service Provider the fees set forth in Schedule E in respect of each of the Services. 7.02 Time of Payment. The Fees shall be paid by Recipient monthly in arrears on or before the first business day immediately following the end of each whole or partial calendar month of the Initial Term and, if any, the Extended Term. 7.03 Substantial Change in Volume. In the event that Recipient's use of a Service increases above that set forth in Schedule A for such Service, Service Provider shall determine whether any additional hardware or software is necessary 12 8 in order for Service Provider to provide the Service and, in the event that Service Provider and Recipient determine, pursuant to this Section 7.03, that additional hardware or software is required, (1) Service Provider shall acquire, upon Recipient's request, such additional hardware or software on behalf of Recipient and Recipient shall pay to Service Provider or to the supplier or third party lessor, as may be applicable, the purchase or lease fees in respect of such additional hardware or software, (2) Service Provider shall implement an appropriate increase to the Fees and (3) the Parties shall establish a mechanism for determining the costs to Service Provider of maintaining such additional hardware or software beyond the Initial Term and, if any, the Extended Term and Recipient shall pay such costs to Service Provider upon the expiration or termination of this Agreement. Except as otherwise agreed in writing by the Parties, all rights in and title to any hardware or software acquired by Service Provider on behalf of Recipient and paid for by Recipient shall belong to Recipient. 7.04 Taxes. Recipient shall pay any value-added tax and any tariff, duty, export or import fee, sales tax, use tax, service tax or other tax or charge subsequently imposed by any government or government agency on Recipient or Service Provider with respect to the Services or the execution or performance of this Agreement. 7.05 Late Payments. Any fees or payments owing to Service Provider pursuant to this Agreement that are not paid when due shall bear interest at the rate of _______ percent per month, but in no event to exceed the highest lawful rate of interest, calculated from the date such amount was due until the date payment is received by Service Provider. 7.06 Termination Fees. Upon the termination of this Agreement, Recipient shall pay to Service Provider the fees set forth in Schedule I. ARTICLE 8. AUDITS. Recipient shall have the right during normal business hours and upon reasonable advance notice, to review the computer printouts and reports and other records of Service Provider to the extent such books and records relate to the provision by Service Provider of the Services. Any such review shall be conducted at Recipient's sole expense. ARTICLE 9. CONFIDENTIALITY. Each of the Parties shall not use or permit the use of (without the prior consent of the other) and shall keep, and shall cause its consultants and advisors 13 9 to keep, confidential all information concerning the other Party in its possession, its custody or under its control (except to the extent that (1) such information has been in the public domain through no fault of such Party or (2) such information has been later lawfully acquired from other sources by such Party or (3) this Agreement or any other agreement entered into pursuant to this Agreement permits the use or disclosure of such information) to the extent such information (a) relates to the period up to the Distribution Date or (b) is obtained in the course of providing or receiving the Services pursuant to this Agreement, and each Party shall not (without the prior 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 Party prior to such disclosure. ARTICLE 10. INDEMNITY. Each Party agrees to indemnify and hold harmless the other Party in respect of all claims, costs, expenses, damages and liabilities (including reasonable attorney's fees) arising from the gross negligence or willful misconduct of the employees, agents or other representatives of the indemnifying Party after the Agreement Date or the breach of such Party's covenants or other obligations under this Agreement. In no event shall either Party have any liability to the other Party for any claims, losses, damages, judgments, costs or expenses which the other Party may suffer or incur as a result of injuries to personnel of such other Party or loss or theft or damage to any personal property of such other Party at the Service Provider Service Location, except as provided in the foregoing sentence. ARTICLE 11. DISCLAIMER AND LIMITATION OF LIABILITY. 11.01 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF THE SERVICES, THE LICENSED SOFTWARE, THE SERVICE PROVIDER SOFTWARE OR THE LICENSED DOCUMENTATION, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 11.02 Limitation of Liability. Recipient acknowledges that the Services are provided by Service Provider (1) at the request of Recipient in order to accommodate the Distribution, (2) at Service Provider's cost and that no profit is being made by Service Provider and (3) with the expectation that Service Provider is not assuming any financial or operational risks, including those usually assumed by a service provider. Accordingly, Recipient agrees that Service Provider shall not 14 10 be liable for any direct, indirect, special, incidental or consequential damages, including lost profits or savings, whether or not such damages are foreseeable, or for any third party claims relating to the Services or Service Provider's performance under this Agreement. ARTICLE 12. DISPUTE RESOLUTION. 12.01 Negotiation. In the event of a controversy, dispute or claim arising out of, or 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 any claim based on contract, tort, statute or constitution (collectively, "Agreement Disputes"), the general counsels of the 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 Parties began such negotiations; provided further, that in the event of any arbitration in accordance with Section 12.02, the Parties shall not assert the defenses of statute of limitations and laches arising for the period beginning after the date the Parties began negotiations hereunder, and any contractual time period or deadline under this Agreement to which such Agreement Dispute relates shall not be deemed to have passed until such Agreement Dispute has been resolved. 12.02 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 Parties, after 60 days have elapsed from the time the Parties began such negotiations), such Agreement Dispute shall be determined, at the request of a Party, by arbitration conducted in ___________, before and in accordance with the then-existing International Arbitration Rules of the American Arbitration Association (the "Rules"). In any dispute between the Parties, the number of arbitrators shall be three. Any judgment or award rendered by the arbitrators shall be final, binding and nonappealable (except on grounds specified in 9 U.S.C. Section 10(a), as in effect on the Agreement Date). If the Parties are unable to agree on the arbitrators, the 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 or enforceability of this Article 12 shall be determined by the arbitrators. In resolving any dispute, the Parties intend that the arbitrators apply the substantive laws of _____________, without regard to the choice of law principles thereof. The Parties intend that the provisions to arbitrate set forth in this Section 12.02 be valid, enforceable and irrevocable. The undersigned agree to comply with any award made in any such arbitration proceedings that has become 15 11 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 (1) _______________________, or (2) ________________________________. The arbitrators shall be entitled, if appropriate, to award any remedy in such proceedings, including monetary damages, specific performance and all other forms of legal and equitable relief; provided, however, the arbitrators shall not be entitled to award punitive damages. Without limiting the provisions of the Rules, unless otherwise agreed in writing by the Parties or as permitted by this Agreement, the undersigned shall keep confidential all matters relating to the arbitration or the award, provided such matters may be disclosed (a) to the extent reasonably necessary in any proceeding brought to enforce the award or for entry of a judgment upon the award and (b) to the extent otherwise required by law. Notwithstanding Article 32 of the Rules, the losing 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 in this Section 12.02 is intended to or shall be construed to prevent either 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. 12.03 Continuity of Services and Performance. Unless otherwise agreed in writing, the Parties shall continue to provide the Services and honor all other commitments under this Agreement during the course of dispute resolution pursuant to the provisions of this Article 12 with respect to all matters not subject to such dispute, controversy or claim. ARTICLE 13. CONTINUED PROVISION OF SERVICES. 13.01 Force Majeure. Service Provider shall not be in default of its obligations hereunder for any delays or failure in performance resulting from any cause or circumstance beyond the reasonable control of Service Provider, provided that Service Provider exercises commercially reasonable efforts to perform its obligations in a timely manner. If any such occurrence prevents Service Provider from providing any of the Services, Service Provider shall cooperate with Recipient in obtaining, at Recipient's sole expense, an alternative source for the affected Services, and Recipient shall be released from any payment obligation to Service Provider in respect of such Services during the period of such force majeure. 13.02 Disaster Recovery. Service Provider shall maintain a disaster recovery policy in accordance with Schedule J. Upon the occurrence of a disaster affecting the Services, Service Provider shall implement the disaster recovery policy and Recipient shall be responsible for its proportionate share of any fees incurred by Service Provider in connection with implementing the disaster recovery policy. 16 12 ARTICLE 14. TERMINATION. 14.01 For Convenience. Recipient may terminate this Agreement at any time during the Initial Term upon 90 days' notice to Service Provider. 14.02 Effect of Termination. Upon the termination of this Agreement pursuant to Section 14.01, Recipient shall pay to Service Provider, no later than the effective date of such termination, the balance of the Fees due for the Initial Term and, if any, the Extended Term. ARTICLE 15. TERMINATION ASSISTANCE SERVICES. Upon the expiration of this Agreement or the effective date of termination of this Agreement, Service Provider shall have no further obligation to provide the Services to Recipient: (1) for a period up to (a) 60 days prior to the expiration or the effective date of termination of this Agreement and (b) 30 days following the expiration of this Agreement or the effective date of termination of this Agreement, Service Provider shall use reasonable efforts to cooperate, at Recipient's expense, with (i) the Alternative Provider or (ii) Recipient, in connection with the transfer of the Services, the Recipient Data, the Licensed Software and the Licensed Documentation, from Service Provider to the facilities of (x) the Alternative Provider or (y) Recipient, as requested by Recipient; and (2) the rights granted to Service Provider in Section 5.01 shall immediately terminate and Service Provider shall deliver to Recipient (a) a current copy of the Licensed Software in the form in use as of that time and (b) a current copy of the Licensed Documentation in the form in use as of that time. ARTICLE 16. MISCELLANEOUS PROVISIONS. 16.01 No Waivers. No failure on the part of either Party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof nor shall any single or partial exercise by a Party of any right or remedy hereunder preclude any other right or remedy or further exercise thereof or the exercise of any other right. 16.02 Consents, Approvals and Requests. Unless otherwise specified in this Agreement, all consents and approvals, acceptances or similar actions to be given by either Party under this Agreement shall not be unreasonably 17 13 withheld or delayed and each Party shall make only reasonable requests under this Agreement. 16.03 Partial Invalidity. In the event any of the provisions of this Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected or impaired. 16.04 Notices. All notices, designations, approvals, consents, requests, acceptances, rejections or other communications required or permitted by this Agreement shall be in writing and shall be sent via telecopy to the telecopy number specified below. A copy of any such notice shall also be sent by registered express air mail on the date such notice is transmitted by telecopy to the address specified below: If to Service Provider: Telecopy No.: Attention: General Counsel If to Recipient: Telecopy No.: Attention: General Counsel Any Party may at any time, by notice to the other Party transmitted or sent in the manner described above, change the address or telecopy number to which communications to it are to be sent. 16.05 Relationship. The performance by Service Provider of its duties and obligations under this Agreement shall be that of an independent contractor and nothing herein contained shall create or imply an agency relationship between the Parties, nor shall this Agreement be deemed to constitute a joint venture or partnership between the Parties. 16.06 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of ___________. 16.07 Covenant of Further Assurances. The Parties covenant and agree that, subsequent to the execution and delivery of this Agreement and without any additional consideration, each of the Parties will execute and deliver 18 14 any further legal instruments and perform any acts which are or may become reasonably necessary to effectuate this Agreement. 16.08 Assignment. This Agreement may not be assigned by either 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 16.08 shall be void. 16.09 Entire Understanding. This Agreement represents the entire understanding of the Parties with respect to the Services and supersedes all previous writings, correspondence and memoranda with respect thereto, and no representations, warranties, agreements or covenants, express or implied, of any kind or character whatsoever with respect to such subject matter have been made by either Party to the other, except as herein expressly set forth. 16.10 Successors. Subject to the restrictions on assignment set forth in Section 16.08, this Agreement shall be binding upon and inure to the benefit of and be enforceable against the Parties hereto and their respective successors and assigns. 16.11 Amendments. This Agreement can be modified or amended only by a written amendment executed by both Parties. 16.12 Survival. The provisions of Article 5, Article 8, Article 9, Article 10, Article 11, Article 12, Article 15, Section 3.06, Section 6.02, Section 6.03, Section 7.02, Section 14.02, Section 16.06, this Section 16.12 and Section 16.14 shall survive the expiration or termination of this Agreement. 16.13 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 16.14 Good Faith and Fair Dealing. Each Party hereby agrees that its performance of all obligations and exercise of all rights under this Agreement shall be governed by the fundamental principles of good faith and fair dealing. 16.15 Third Party Beneficiaries. Each Party intends that this Agreement shall not benefit or create any right or cause of action in or on behalf of any person or entity other than Recipient and Service Provider. 19 15 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized officers as of the day and year first above written. [SERVICE PROVIDER] By:______________________________ Name: Title: [RECIPIENT] By:______________________________ Name: Title: EX-99.6 8 DATA SERVICES AGREEMENT 1 EXHIBIT 99.6 FORM OF DATA SERVICES AGREEMENT BETWEEN [SERVICE PROVIDER] AND [RECIPIENT] DATA CENTER LOCATION: SERVICE PROVIDER: RECIPIENT: 2 SCHEDULES
Schedule A Services and Capacity Levels Schedule B Service Levels Schedule C Reports Schedule D Recipient Software Schedule E Fees Schedule F Extended Term Charges Schedule G Service Provider Software Schedule H Termination Fees Schedule I Disaster Recovery Schedule J Recipient Obligations
3 DATA SERVICES AGREEMENT (this "Agreement"), dated as of ___________, 1996 (the "Agreement Date"), by and between [ ] ("[ ]") and [ ] ("[ ]"). W I T N E S S E T H: WHEREAS, the Board of Directors of The Dun & Bradstreet Corporation ("D&B") has determined that it is appropriate, desirable and in the best interests of the shareholders of D&B to reorganize D&B so as to separate certain businesses to be owned and operated apart from D&B (the "Distribution"); WHEREAS, as part of the Distribution, D&B will be divesting certain of its businesses, including subsidiaries of [ ] and/or [ ]; WHEREAS, prior to the Distribution Date, [ ]("Service Provider") a subsidiary of [ ], has provided and [ ] ("Recipient"), a subsidiary of [ ], has purchased, pursuant to various written and oral agreements, the Services described in this Agreement; and WHEREAS, in order to facilitate the orderly continuation of Recipient's business for a transitional period after the Distribution Date, [ ], on behalf of Service Provider, has agreed to provide to Recipient, and [ ], on behalf of Recipient, has agreed to purchase from Service Provider, the Services described in this Agreement. NOW, THEREFORE, in consideration of the agreements as set forth below, it is agreed as follows: ARTICLE 1. DEFINITIONS AND CONSTRUCTION. 1.01 Definitions. The following defined terms shall have the meanings specified below: "Agreement" shall have the meaning set forth in the Heading. "Agreement Date" shall have the meaning set forth in the Heading. "Agreement Disputes" shall have the meaning set forth in Section 12.01. "Alternative Provider" shall mean any alternative external service provider selected by Recipient for the provision of services similar to the Services following the expiration or termination of this Agreement. "D&B" shall have the meaning set forth in the Recitals. 4 2 "Data Center" shall mean Service Provider's data center located at - - ------------- --------, and any successor location. "Data Processing Services" shall mean the data processing services described in Schedule A. "Distribution" shall have the meaning set forth in the Recitals. "Distribution Agreement" shall mean the Distribution Agreement, dated ___________, 1996, by and among D&B, Cognizant Corporation and ACNielsen Corporation. "Distribution Date" shall mean the date on which the distributions to effect the reorganization of D&B are made under the Distribution Agreement. "Extended Term" shall have the meaning set forth in Article 2. "Fees" shall mean those charges for the Services set forth in Schedule E. "Initial Term" shall have the meaning set forth in Article 2. "Licensed Documentation" shall mean all documentation that is used in connection with the operation of the Licensed Software. "Licensed Software" shall mean the software described in Schedule D. "Recipient" shall have the meaning set forth in the Recitals. "Recipient Data" shall mean all data or information supplied by Recipient to Service Provider for processing or transmission in connection with the Services. "Service Provider" shall have the meaning set forth in the Recitals. "Service Provider Software" shall mean the software and related documentation (a) owned, acquired or developed by Service Provider that is used in connection with the provision of the Services or (b) licensed or leased by Service Provider from a third party which is used in connection with the provision of the Services. The Service Provider Software includes the software set forth in Schedule G. "Services" shall mean the Data Processing Services. 5 3 1.02 References. In this Agreement and the Schedules to this Agreement: (1) the Schedules to this Agreement shall be incorporated in and deemed part of this Agreement and all references to this Agreement shall include the Schedules to this Agreement; and (2) references to the word "including" or the phrase "e.g." in this Agreement shall mean "including, without limitation". 1.03 Headings. The article and section headings and the table of contents are for reference and convenience only and shall not be considered in the interpretation of this Agreement. 1.04 Interpretation of Documents. In the event of a conflict between this Agreement and the terms of any of the Schedules, the terms of this Agreement shall prevail. ARTICLE 2. TERM OF AGREEMENT. The initial term of this Agreement shall commence on the Distribution Date and shall continue until 12:00 midnight (Eastern Standard Time) on _____________, 1997 (the "Initial Term"), unless terminated earlier pursuant to Section 14.01; provided, however, that Recipient may, upon notice to Service Provider at least 120 days prior to the expiration of the Initial Term or the Extended Term described in (2) below, extend the term of this Agreement for either of (1) one additional six-month period or (2) one additional three-month period (each of (1) and (2), the "Extended Term") at the charges set forth in Schedule F. ARTICLE 3. SERVICES. 3.01 Services. Service Provider shall provide to Recipient, and Recipient shall purchase from Service Provider the Data Processing Services described in Schedule A. The Services shall be provided with substantially the same degree of care and diligence as such services had been provided to Recipient during the period prior to the Distribution Date. The Services shall be provided at the levels of service set forth in Schedule B. 3.02 Priority. Service Provider shall provide the Services to Recipient with respect to prioritizing, processing and recovery in accordance with Schedule B. 3.03 Reports. Service Provider shall provide Recipient with the reports set forth in Schedule C according to the schedule set forth in Schedule C. 3.04 New Releases and Versions of the Software. Except as provided in Schedule A, Service Provider shall not be required to provide, install or maintain any new releases or versions of the systems software or the applications software. In the event that Schedule A includes Service Provider's provision, installation and maintenance of the systems software or the applications software, Service Provider shall, at the fees set forth in Schedule 6 4 E, after any such release or version is commercially available, provide, install on the machines used to provide the Services after sufficient testing, and maintain new releases and versions of the systems software and applications software in use as of the Agreement Date. In the event that Service Provider fails to provide, install or maintain any new releases or versions of the systems software or the applications software in accordance with Schedule A, Service Provider shall be responsible for the payment of any incremental expense incurred by Recipient in connection with such failure. ARTICLE 4. RECIPIENT OBLIGATIONS. 4.01 Recipient Equipment. With respect to that equipment owned or leased by Recipient, Recipient shall: (1) maintain all equipment, software and operational features at the same level that was provided immediately prior to the Distribution Date, and shall receive maintenance services from those third party service providers that provided maintenance services to Recipient immediately prior to the Distribution Date; and (2) upon notice from Service Provider (which notice shall include Service Provider's estimate of the costs, if any, of the enhancement or modification) as soon as possible after it has been determined that an enhancement or modification is necessary, but in any event upon at least 30 days' notice, enhance or modify such equipment, software and operational features as may be necessary to remain compatible with any systems used by Service Provider in connection with the Services; provided, however, in the event such enhancement or modification results in Service Provider incurring any incremental expense or providing any additional resources, Recipient shall be responsible for the payment of such incremental expense or the costs of such additional resources. 4.02 Generally. Recipient shall: (1) comply with any reasonable instructions provided by Service Provider that are necessary for Service Provider to adequately provide the Services; (2) comply with all standards and procedures applicable to the Data Center; (3) promptly report any operational or system problem to Service Provider; (4) maintain a business recovery plan detailing the requirements of Recipient in the event of the occurrence of a disaster affecting the Services and periodically test such plan; (5) provide the working environment, including space, furniture, electricity, telephones and other infrastructure requirements for Service Provider's employees located at Recipient's premises; and 7 5 (6) except as provided in Schedule J, after any such release or version is commercially available, provide, install after sufficient testing, and maintain new releases and versions of the systems software and applications software in use as of the Agreement Date. In the event that Recipient fails to provide, install or maintain any new releases or versions of the systems software or the applications software in accordance with Schedule J, Recipient shall be responsible for the payment of any incremental expense incurred by Service Provider in connection with such failure. 4.03 Associated Equipment. Except to the extent otherwise provided in this Agreement or any Schedule to this Agreement, Recipient shall maintain and be responsible for all costs (including personnel, maintenance and repair) associated with communications equipment (including terminals, communications hardware, modems and telephone lines) that Recipient owns or operates and that is not located at the Data Center necessary to provide the Services or to transmit the Recipient Data for processing at the Data Center. 4.04 Security. Recipient shall ensure that user accounts shall only be used by the person for whom such account was created or other authorized personnel. Recipient shall promptly inform Service Provider of any individual who is no longer authorized to use the Services. 4.05 Business Planning. During the Initial Term and, if any, the Extended Term, Recipient shall, within a reasonable period of time after such plans are available, provide Service Provider with a detailed plan identifying any changes in Recipient's business that may affect the Services or result in additional capacity being required in order for Service Provider to provide the Services to Recipient, and what action, if any, may be necessary to adjust the level of Services. Recipient's business plan provided to Service Provider pursuant to this Section 4.05 shall be deemed confidential information of Recipient. ARTICLE 5. PROPRIETARY RIGHTS. 5.01 Recipient Software. Recipient shall grant a non-exclusive, non-transferable, royalty-free right for Service Provider, solely in connection with providing the Services, to (1) have access to and (a) operate the Licensed Software set forth in Schedule D and (b) use the Licensed Documentation and (2) use any 8 6 other hardware, software and documentation owned by Recipient that is necessary to allow Service Provider to perform the Services. Recipient shall obtain any consents or approvals necessary in connection with Service Provider's use of the Licensed Software, the Licensed Documentation and any other such hardware, software and documentation. 5.02 Service Provider Software. All Service Provider Software is, or shall be, and shall remain, the exclusive property of Service Provider or its third party licensor and Recipient shall have no rights or interests to the Service Provider Software, except as described in this Section 5.02. Service Provider shall obtain, at its expense, any consents or approvals necessary in connection with Service Provider's use of the Service Provider Software to provide the Services to Recipient. ARTICLE 6. DATA. 6.01 Form of Data. All data submitted by Recipient to Service Provider in connection with the Services shall be in the form substantially similar to that submitted before the Distribution Date, unless otherwise agreed to in writing by the parties. 6.02 Ownership of Data. The Recipient Data is and shall remain the property of Recipient or its customers. 6.03 Ownership of Media. All media upon which Recipient Data is stored is and shall remain the property of Recipient. In the event additional media is needed, it shall be obtained by Recipient, and be the property of Recipient or its lessor. 6.04 Responsibility for Data. Recipient is responsible from the Agreement Date for (1) the accuracy and completeness of the data submitted by Recipient in connection with the Services and (2) any errors in and with respect to data obtained from Service Provider because of any inaccurate or incomplete data submitted by Recipient to Service Provider. 9 7 ARTICLE 7. FEES. 7.01 Fees. Recipient shall pay to Service Provider the fees set forth in Schedule E in respect of each of the Services. 7.02 Time of Payment. The Fees shall be paid by Recipient monthly in arrears on or before the first business day immediately following the end of each whole or partial calendar month of the Initial Term and, if any, the Extended Term. 7.03 Additional Services. In the event that Recipient's use of a Service increases above that set forth in Schedule A for such Service, and/or Recipient notifies Service Provider of the need for such an increase, Service Provider shall determine whether any additional hardware or software is necessary in order for Service Provider to provide the Service and, in the event that Service Provider and Recipient determine, pursuant to this Section 7.03, that additional hardware or software is required, (1) Service Provider shall acquire, upon Recipient's request, such additional hardware or software on behalf of Recipient and Recipient shall pay to Service Provider or to the supplier or third party lessor, as may be applicable, the purchase or lease fees in respect of such additional hardware or software, (2) Service Provider shall implement an appropriate increase to the Fees and (3) the Parties shall establish a mechanism for determining the costs to Service Provider of maintaining such additional hardware or software beyond the Initial Term and, if any, the Extended Term and any impact on the Fees. Except as otherwise agreed in writing by the Parties, all rights in and title to any hardware or software acquired by Service Provider on behalf of Recipient and paid for by Recipient shall belong to Recipient. 7.04 Taxes. Recipient shall pay any value-added tax and any tariff, duty, export or import fee, sales tax, use tax, service tax or other tax or charge subsequently imposed by any government or government agency on Recipient or Service Provider with respect to the Services or the execution or performance of this Agreement. 7.05 Late Payments . Any undisputed fees or payments owing to Service Provider pursuant to this Agreement that are not paid when due shall bear interest at the rate of one and one-half (1 1/2) percent per month, but in no event to exceed the highest lawful rate of interest, calculated from the date such amount was due until the date payment is received by Service Provider. 7.06 Transition/Termination Fees. Upon the termination of this Agreement, Recipient shall pay to Service Provider the fees set forth in Schedule H. ARTICLE 8. AUDITS. Recipient shall have the right during normal business hours and upon reasonable advance notice, to review the computer printouts and reports and other records of Service Provider to the extent such books and records relate to the provision by Service Provider of the Services. Any such review shall be conducted at Recipient's sole expense. 10 8 ARTICLE 9. CONFIDENTIALITY. Each of the Parties shall not use or permit the use of (without the prior consent of the other) and shall keep, and shall cause its consultants and advisors to keep, confidential all information concerning the other Party in its possession, its custody or under its control (except to the extent that (1) such information has been in the public domain through no fault of such Party or (2) such information has been later lawfully acquired from other sources by such Party or (3) this Agreement or any other agreement entered into pursuant to this Agreement permits the use or disclosure of such information) to the extent such information (a) relates to the period up to the Distribution Date or (b) is obtained in the course of providing or receiving the Services pursuant to this Agreement, and each Party shall not (without the prior 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 Party prior to such disclosure. ARTICLE 10. INDEMNITY. 10.1 Service Provider shall indemnify and hold harmless Recipient in respect of all claims, costs, expenses, damages and liabilities (including reasonable attorneys' fees) arising from any claim by a third party licensor that the Service Provider Software made available to Recipient by Service Provider infringes such third party's proprietary rights. 10.2 Recipient shall indemnify and hold harmless Service Provider in respect of all claims, costs, expenses, damages and liabilities (including reasonable attorneys' fees) arising from any claim by a third party licensor that the Recipient Software made available to Service Provider by Recipient infringes such third party's proprietary rights. ARTICLE 11. DISCLAIMER AND LIMITATION OF LIABILITY. 11.01 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SERVICE PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF THE SERVICES, THE LICENSED SOFTWARE, THE SERVICE PROVIDER SOFTWARE OR THE LICENSED DOCUMENTATION, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 11.02 Limitation of Liability. Neither of the parties shall be liable to the other (or any claiming under or through the other) for any indirect, special, incidental or consequential damages, including lost profits or savings, whether or not such damages are foreseeable, or for any third party claims relating to the Services or a Party's performance under this Agreement regardless of the form of action (including negligence). Except as may 11 9 arise as a result of a party's gross negligence or willful misconduct, and as set forth in Section 10 above, each party's liability for direct damages arising in connection with its performance or failure to perform under this Agreement shall in no event exceed six (6) months' Fees hereunder. ARTICLE 12. DISPUTE RESOLUTION. 12.01 Procedure. 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 Distribution Agreement. 12.02 Continuity of Services and Performance. Unless otherwise agreed in writing, the Parties shall continue to provide the Services and honor all other commitments under this Agreement during the course of dispute resolution pursuant to the provisions of this Article 12 with respect to all matters not subject to such dispute, controversy or claim. ARTICLE 13. CONTINUED PROVISION OF SERVICES. 13.01 Force Majeure. Service Provider shall not be in default of its obligations hereunder for any delays or failure in performance resulting from any cause or circumstance beyond the reasonable control of Service Provider, provided that Service Provider exercises commercially reasonable efforts to perform its obligations in a timely manner. If any such occurrence prevents Service Provider from providing any of the Services, Service Provider shall cooperate with Recipient in obtaining, at Recipient's sole expense, an alternative source for the affected Services, and Recipient shall be released from any payment obligation to Service Provider in respect of such Services during the period of such force majeure. 13.02 Disaster Recovery. Service Provider shall maintain a mainframe computer disaster recovery coverage plan, including coverage for the Services. Upon the occurrence of a disaster affecting the Services relating to mainframe computing, Service Provider shall implement the mainframe computer disaster recovery procedures and Recipient shall be responsible for its proportionate share of any fees incurred by Service Provider in connection with implementing such procedures. Service Provider shall provide Recipient with a copy of the plan upon request. ARTICLE 14. TERMINATION. 14.01 For Convenience. Recipient may terminate this Agreement at any time during the Initial Term upon 90 days' notice to Service Provider. 14.02 Effect of Termination. Upon the termination of this Agreement pursuant to Section 14.01, Recipient shall pay to Service Provider, no later than the effective date of 12 10 such termination, the balance of the Fees due for the Initial Term and, if any, the Extended Term. ARTICLE 15. TERMINATION ASSISTANCE SERVICES. Upon the expiration of this Agreement or the effective date of termination of this Agreement, Service Provider shall have no further obligation to provide the Services to Recipient and: (1) for a period of up to (a) 60 days prior to the expiration or the effective date of termination of this Agreement and (b) 30 days following the expiration of this Agreement or the effective date of termination of this Agreement, Service Provider shall use reasonable efforts to cooperate, at Recipient's expense, with (i) the Alternative Provider or (ii) Recipient, in connection with the transfer of the Services, the Recipient Data, the Licensed Software and the Licensed Documentation, from Service Provider to the facilities of (x) the Alternative Provider or (y) Recipient, as requested by Recipient; and (2) the rights granted to Service Provider in Section 5.01 shall immediately terminate and Service Provider shall deliver to Recipient (a) a current copy of the Licensed Software in the form in use as of that time and (b) a current copy of the Licensed Documentation in the form in use as of that time. ARTICLE 16. MISCELLANEOUS PROVISIONS. 16.01 No Waivers. No failure on the part of either Party to exercise and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof nor shall any single or partial exercise by a Party of any right or remedy hereunder preclude any other right or remedy or further exercise thereof or the exercise of any other right. 16.02 Consents, Approvals and Requests. Unless otherwise specified in this Agreement, all consents and approvals, acceptances or similar actions to be given by either Party under this Agreement shall not be unreasonably withheld or delayed and each Party shall make only reasonable requests under this Agreement. 16.03 Partial Invalidity. In the event any of the provisions of this Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions of this Agreement shall not be affected or impaired. 16.04 Notices. All notices, designations, approvals, consents, requests, acceptances, rejections or other communications required or permitted by this Agreement shall be in writing and shall be sent via telecopy to the telecopy number specified below. A copy of any such notice shall also be sent by registered express air mail on the date such notice is transmitted by telecopy to the address specified below: 13 11 If to Service Provider: Telecopy No.: Attention: General Counsel If to Recipient: Telecopy No.: Attention: General Counsel Any Party may at any time, by notice to the other Party transmitted or sent in the manner described above, change the address or telecopy number to which communications to it are to be sent. 16.05 Relationship. The performance by Service Provider of its duties and obligations under this Agreement shall be that of an independent contractor and nothing herein contained shall create or imply an agency relationship between the Parties, nor shall this Agreement be deemed to constitute a joint venture or partnership between the Parties. 16.06 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of New York. 16.07 Covenant of Further Assurances. The Parties covenant and agree that, subsequent to the execution and delivery of this Agreement and without any additional consideration, each of the Parties will execute and deliver any further legal instruments and perform any acts which are or may become reasonably necessary to effectuate this Agreement. 16.08 Assignment. This Agreement may not be assigned by either 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 16.08 shall be void. 16.09 Entire Understanding. This Agreement represents the entire understanding of the Parties with respect to the Services and supersedes all previous writings, correspondence and memoranda with respect thereto, and no representations, warranties, agreements or covenants, express or implied, of any kind or character whatsoever with respect to such subject matter have been made by either Party to the other, except as expressly set forth herein. 14 12 16.10 Successors. Subject to the restrictions on assignment set forth in Section 16.08, this Agreement shall be binding upon and inure to the benefit of and be enforceable against the Parties hereto and their respective successors and assigns. 16.11 Amendments. This Agreement can be modified or amended only by a written amendment executed by both Parties. 16.12 Survival. The provisions of Article 5, Article 8, Article 9, Article 10, Article 11, Article 12, Article 15, Section 6.02, Section 6.03, Section 7.06, Section 14.02, Section 16.06, this Section 16.12 and Section 16.15 shall survive the expiration or termination of this Agreement. 16.13 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 16.14 Third Party Beneficiaries. Each Party intends that this Agreement shall not benefit or create any right or cause of action in or on behalf of any person or entity other than Recipient and Service Provider. 16.15 Good Faith and Fair Dealing. Each Party hereby agrees that its performance of all obligations and exercise of all rights under this Agreement shall be governed by the fundamental principles of good faith and fair dealing. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers as of the day and year first above written. [ ] By:______________________________ Name: Title: [ ] By:______________________________ Name: Title: EX-99.7 9 TRANSITION SERVICES AGREEMENT 1 EXHIBIT 99.7 FORM OF TRANSITION SERVICES AGREEMENT This TRANSITION SERVICES AGREEMENT is dated as of [ ], 1996, among THE DUN & BRADSTREET CORPORATION, a Delaware corporation ("D&B"), COGNIZANT CORPORATION, a Delaware corporation ("Cognizant"), and ACNIELSEN CORPORATION, a Delaware corporation ("ACN"). W I T N E S S E T H WHEREAS, D&B, Cognizant and ACN have entered into a Distribution Agreement dated as of the date hereof (the "Distribution Agreement") pursuant to which, among other matters, each party has agreed to provide, or cause one or more of its Subsidiaries to provide, to the other parties and their respective Subsidiaries certain transitional, administrative and support services on the terms set forth in this Agreement and the Appendices hereto. Each party, when providing a service pursuant hereto, shall hereinafter be referred to as a "Provider", and each party, when receiving a service pursuant hereto, shall hereinafter be referred to as a "Recipient". NOW, THEREFORE, subject to the terms, conditions, covenants and provisions of this Agreement, each of D&B, Cognizant and ACN mutually covenant and agree as follows: ARTICLE I SERVICES PROVIDED 1.1 Transition Services. Upon the terms and subject to the conditions set forth in this Agreement, with respect to each of those services set forth in an Appendix hereto, each of which Appendices is made a part of this Agreement, the relevant Provider will provide to the relevant Recipient the services indicated in such Appendix (hereinafter referred to individually as a "Transition Service", and collectively as the "Transition Services") during the time period for each such Transition Service set forth in such Appendix (hereinafter referred to as the "Time Periods" for all of the Transition Services, and the "Time Period" for each Transition Service). 1.2 Personnel. In providing the Transition Services, each party, in its capacity as a Provider and 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 party, in its capacity as a Recipient, may retain at its own expense its own consultants and other professional advisers. 2 2 1.3 Representatives. Each of D&B, Cognizant and ACN 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 _____________ for D&B, ____________ for Cognizant and ______________ for ACN. The initial coordinators for each specific Transition Service shall be the individuals named in the Appendix relating to such Transition Service (the "Service Coordinators"). Each party may treat an act of a Primary Coordinator or Service Coordinator of another party as being authorized by such other party without inquiring behind such act or ascertaining whether such Primary Coordinator or Service Coordinator had authority to so act. The relevant Provider and the relevant Recipient of a Transition Service shall advise each other in writing of any change in the Primary Coordinators and any Service Coordinator for such Transition Service, setting forth the name of the Primary Coordinator or Service Coordinator to be replaced and the name of the replacement, and certifying that the replacement Primary Coordinator or Service Coordinator is authorized to act for such party in all matters relating to this Agreement. Each of D&B, Cognizant and ACN 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) Each party, in its capacity as a 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 any party, in its capacity as a Provider, to favor the businesses of any Recipient over its own businesses or those of any of its Affiliates, Subsidiaries or divisions. (b) No Provider of Transition Services shall be required to provide the 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 after the Distribution Date by such Provider. (c) In addition to being subject to the terms and conditions of this Agreement for the provision of the Transition Services, each party, in its capacity as a Recipient, agrees that the Transition Services provided by third parties shall be subject to the terms and conditions of any agreements between the Provider of such Transition Services and such third parties. The relevant Provider shall consult with the relevant Recipient concerning the terms and conditions of any such agreements to be 3 3 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 misconduct on the part of any party acting in its capacity as a Provider, and whether or not such 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 such Provider commits an error with respect to or incorrectly performs or fails to perform any Transition Service, at the relevant Recipient's request, such 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 such 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. Each party, in its capacity as a 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, no party, in its capacity as a Provider, shall implement any substantial changes affecting a Recipient of the relevant Transition Services unless: (a) such Provider has furnished such Recipient notice (which shall be the same notice such Provider shall provide its own businesses) thereof; (b) such Provider changes such procedures for its own businesses at the same time; and 4 4 (c) such 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 such 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. 1.8 No Obligation to Continue to Use Services. No party, in its capacity as a Recipient, shall have any obligation to continue to use any of the Transition Services and may delete any Transition Service from the Transition Services that the Provider thereof is providing to such Recipient by giving the Provider notice thereof in accordance with the notice provisions herein and in the Appendix relating to such Transition Service. 1.9 Provider Access. To the extent reasonably required for personnel of a Provider to perform the Transition Services for which such Provider is responsible hereunder, the Recipient of such Transition Services shall provide personnel of such Provider with access to its equipment, office space, plants, telecommunications and computer equipment and systems, and any other areas and equipment. ARTICLE II COMPENSATION 2.1 Consideration. As consideration for the Transition Services, each party, in its capacity as a Recipient of Transition Services, shall pay to the Provider of such Transition Services the amount specified for each such Transition Service as set forth in the Appendix relating to such Transition Service. 2.2 Invoices. After the end of each month, each party, in its capacity as a Provider, together with such party's 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 such 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 5 5 invoices shall be sent to the applicable Recipient at the following address or to such other address as such Recipient shall have specified by notice in writing to the Provider of the Transition Services referenced on each such invoice: To D&B: The Dun and Bradstreet Corporation [address] Attention: Fax: (___) ___-____ To Cognizant: Cognizant Corporation [address] Attention: Fax: (___) ___-____ To ACN: ACNielsen Corporation [address] Attention: Fax: (___) ___-____ 2.3 Payment of Invoices. (a) Payment of all invoices in respect of a Transition Service 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 unless otherwise specified in the Appendix relating to such Transition Service. All payments shall be made to the account set forth below with written confirmation of payment sent by facsimile to the person set forth below. Account: To D&B: The Dun and Bradstreet Corporation [City and State] Account No. ABA Routing No. To Cognizant: Cognizant Corporation [City and State] Account No. ABA Routing No. To ACN: ACNielsen Corporation 6 6 [City and State] Account No. ABA Routing No. Written Confirmation: To D&B: The Dun and Bradstreet Corporation: [address] Attention: Fax: (___) ___-____ To Cognizant: Cognizant Corporation [address] Attention: Fax: (___) ___-____ To ACN: ACNielsen Corporation [address] Attention: Fax: (___) ___-____ (b) If any payment is not paid when due, the Provider of the relevant Transition Service shall have the right, without any liability to the Recipient of such Transition Service, or anyone claiming by or through such Recipient, to immediately cease providing any or all of the Transition Services provided by such Provider to such Recipient, which right may be exercised by such 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. 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 7 7 (b) upon the discovery of any inadvertent disclosure or unauthorized 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 the Distribution Date and shall remain in force until the expiration of the longest Time Period specified in any Appendix hereto, including any extension thereof, unless all of the Transition Services are deleted by each Recipient in accordance with Section 1.8 above, or this Agreement is terminated under Sections 1.6, 4.3 or 6.16 below prior to the end of such Time Period. 4.2 Extension. Subject to the earlier termination of this Agreement in accordance with Sections 1.6, 4.3 or 6.16 below, each Recipient of a Transition Service may extend each Time Period for such Transition Service for the time period, if any, set forth in the relevant Appendix by giving the Provider of such Transition Service the period of prior written notice set forth in such Appendix prior to the end of the Time Period in question. 4.3 Termination. 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 ______ days of such written notice. If any failure or default so specified is not cured within such ______ 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. 8 8 4.4 Termination of Obligations. Each party, in its capacity as a Recipient, specifically agrees and acknowledges that all obligations of each Provider to provide each Transition Service for which such Provider is responsible hereunder shall immediately cease upon the expiration of the Time Period (and any extension thereof in accordance with Section 4.2) for such Transition Service, and each Provider's obligations to provide all of the Transition Services for which such Provider is responsible hereunder shall immediately cease upon the termination of this Agreement. Upon the cessation of such Provider's obligation to provide any Transition Service, the Recipient of such Transition Service shall immediately cease using, directly or indirectly, such Transition Service (including, without limitation, any and all software of such Provider or third party software provided through such Provider, telecommunications services or equipment, or computer systems or equipment). 4.5 Survival of Certain Obligations. Without prejudice to the survival of the other agreements of the parties, the following obligations shall survive the termination of this Agreement: (a) the obligations of each party under Articles III and IV, and (b) each Provider's right to receive the compensation for the Transition Services provided by it hereunder provided in Section 2.1 above incurred prior to the effective date of termination. 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 Distribution Agreement. ARTICLE VI MISCELLANEOUS 6.1 Complete Agreement; Construction. This Agreement, including the Appendices hereto, 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 Appendix hereto, the Appendix shall prevail. In the event and to the extent that there shall be a conflict between the provisions of this Agreement and the provisions of any other Ancillary Agreement, this Agreement shall control. 6.2 Other Ancillary Agreements. This Agreement is not intended to address, and should not be interpreted to address, 9 9 the matters specifically and expressly covered by the other Ancillary Agreements. 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 have been signed by each of the parties and delivered to the other parties. 6.4 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. 6.5 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 D&B: The Dun & Bradstreet Corporation [address] Attn: General Counsel To Cognizant: Cognizant Corporation [address] Attn: General Counsel To ACN: ACNielsen Corporation [address] Attn: General Counsel 6.6 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. 6.7 Amendments. Subject to the terms of Section 4.3 hereof, this Agreement may not be modified or amended except by an agreement in writing signed by each of the parties hereto. 6.8 Assignment. This Agreement shall not be assignable, in whole or in part, directly or indirectly, by any party hereto without the prior written consent of the other 10 10 parties hereto, and any attempt to assign any rights or obligations arising under this Agreement without such consent shall be void. 6.9 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. 6.10 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. 6.11 Third Party Beneficiaries. 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. 6.12 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. 6.13 Appendices. The Appendices 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. In the event of any inconsistency between the terms of any Appendix and the terms set forth in the main body of this Agreement, the terms of the Appendix shall govern. 6.14 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. 6.15 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 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 11 11 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 6.15. 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. 6.16 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. 6.17 Laws and Government Regulations. Each party, in its capacity as a 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 no party, in its capacity as a Provider, shall have any responsibility for the compliance by the Recipient of such Transition Services with such laws and regulations, each party, in its capacity as a 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. 6.18 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. 6.19 Definitions. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Distribution Agreement. 12 12 IN WITNESS WHEREOF, the parties hereto have caused this Transition Services Agreement to be executed the day and year first above written. THE DUN & BRADSTREET CORPORATION By:___________________________ Name: Title: COGNIZANT CORPORATION By:___________________________ Name: Title: ACNIELSEN CORPORATION By:___________________________ Name: Title: 13 [FORM OF APPENDIX TO TRANSITION SERVICES AGREEMENT] Description of Transition Service (including the identity of the Provider and Recipient(s) of such Transition Service): Payment: Time Period (including terms of extension, if any): Service Coordinator for Provider: Service Coordinator for each Recipient: Notice Period for Deletion of Transition Services: Any Other Terms: EX-99.8 10 INDEMNITY AND JOINT DEFENSE AGREEMENT 1 EXHIBIT 99.8 FORM OF INDEMNITY AND JOINT DEFENSE AGREEMENT This INDEMNITY AND JOINT DEFENSE AGREEMENT is dated as of ________ __, 1996 (the "Agreement"), among THE DUN & BRADSTREET CORPORATION, a Delaware corporation ("D&B"), COGNIZANT CORPORATION, a Delaware corporation, ("Cognizant"), and ACNIELSEN CORPORATION, a Delaware corporation ("ACNielsen"). 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 take certain steps to reorganize D&B's Subsidiaries (as defined herein) 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, and all the outstanding shares of common stock of ACNielsen, together with the appurtenant share purchase rights; and WHEREAS, D&B, A.C. Nielsen Company and I.M.S. International, Inc. ("IMS") have been named as defendants in an action commenced by Information Resources, Inc. ("IRI") by the filing of its complaint dated July 29, 1996 in the action captioned Information Resources, Inc. v. The Dun & Bradstreet Corporation, A.C. Nielsen Co. and IMS International, Inc. (S.D.N.Y.) 96 Civ. 5716 (this action and any amended complaint or action arising out of the same or substantially similar factual allegations by IRI or any successor or affiliate thereof are referred to herein as the "Lawsuit"); WHEREAS, the reorganization of D&B's Subsidiaries and businesses as contemplated by the Distribution Agreement (as defined herein) could be potentially affected by the commencement of the Lawsuit, and in order to consummate such reorganization in a timely fashion and in substantially the manner contemplated prior to the commencement of the Lawsuit, the parties hereto have determined that it is desirable to enter into this Agreement, and each party hereto expressly acknowledges that the execution and delivery of this Agreement does not in any manner constitute an admission that the Lawsuit has any merit; WHEREAS, pursuant to the terms and subject to the limitations hereof, (x) ACNielsen has agreed, inter alia, to indemnify D&B and Cognizant against IRI Liabilities (as defined below), up to a certain amount, which may be incurred directly or indirectly by D&B or Cognizant, and (y) D&B and Cognizant have agreed, inter alia, to indemnify ACNielsen against IRI Liabilities, in excess of such amount, if any, which may be incurred directly or indirectly by ACNielsen; WHEREAS, the parties believe that they have a mutuality of interest in a joint defense in connection with the Lawsuit and 2 2 any additional actions, investigations or proceedings that have arisen or may arise in connection with the subject matter of the Lawsuit; WHEREAS, it is the intention and understanding of the parties that communications between and among them as provided herein and any joint interviews of prospective witnesses for the purpose of a joint defense are confidential and are protected from disclosure to any third party by the attorney-client privilege, the work product doctrine and any other applicable privileges; WHEREAS, in order to pursue a joint defense effectively, the parties have also concluded that, from time to time, their mutual interests will be best served by sharing privileged material, mental impressions, memoranda, interview reports and other work products and information, including the confidences of each party; WHEREAS, it is a purpose of this Agreement to insure that the exchanges and disclosures of privileged materials contemplated herein do not diminish or constitute a waiver of any privilege that may otherwise be available by virtue of any prior agreement, conduct, operation of law or otherwise; NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, D&B, Cognizant and ACNielsen agree as follows: ARTICLE I DEFINITIONS SECTION 1.1. Definitions. Capitalized terms used in this Agreement and not defined herein shall have the meanings set forth in the Distribution Agreement (as defined herein) and the following terms shall have the following meanings: "ACN Maximum Amount" means the maximum amount which, at the time any IRI Liability becomes payable, a hypothetical investment banking firm would determine that ACNielsen would be able to pay after giving effect to (i) any recapitalization or similar corporate transaction, including, without limitation, asset dispositions and/or increased borrowings or other capital raising transactions, which would be recommended by such hypothetical investment bank in order to maximize the claims paying ability of ACNielsen (a "Hypothetical Recapitalization Plan"), and (ii) the payment of interest which would be reasonably expected to be incurred on any ACN Notes and the payment of investment banking, legal and other fees and expenses which would be reasonably expected to be incurred in connection with such Hypothetical Recapitalization Plan, without impairing the financial viability of ACNielsen or A.C. Nielsen Company as either such company would exist after consummation of such 3 3 Hypothetical Recapitalization Plan and the payment of such interest, fees and expenses. "ACN Note" shall have the meaning set forth in Section 2.1(c) hereto. "ACN Payment" shall have the meaning set forth in Section 2.1(b). "ACNielsen" shall have the meaning set forth in the preamble hereto. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of Voting Stock, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Ancillary Agreements" shall mean all of the written agreements, instruments, assignments or other written arrangements (other than this Agreement and the Distribution Agreement) entered into in connection with the transactions contemplated by this Agreement and the Distribution Agreement, including, without limitation, the Conveyancing and Assumption Instruments, the Data Services Agreement, the Employee Benefits Agreement, the Intellectual Property Agreement, the Shared Transaction Services Agreements, the TAM Master Agreement, the Tax Allocation Agreement and the Transition Services Agreement. "Board of Directors" shall mean, when used with respect to a specified corporation, the board of directors of the corporation so specified. "Business Combination" means, with respect to any Person, any consolidation or merger or any sale, conveyance, assignment, transfer, lease or other disposition of all or substantially all of the properties and assets of such Person as an entirety in one transaction or series of transactions. "Capital Lease Obligations" of a Person means any obligation which is required to be classified and accounted for as a capital lease on the balance sheet of such Person prepared in accordance with GAAP; the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP. "Capital Stock" means, with respect to any Person, any and all shares, interests, participations, rights to purchase, warrants, options, or other equivalents (however designated) of capital stock of a corporation, and any and all equivalent 4 4 ownership interests in a Person other than a corporation, in each case whether now outstanding or hereafter issued. "Cash Equivalents" means, at any time, (a) any evidence of Indebtedness with a maturity of 180 days or less from the date of acquisition issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof); (b) certificates of deposit, money market deposit accounts and acceptances with a maturity of 180 days or less from the date of acquisition of any financial institution that is a member of the Federal Reserve System having combined capital and surplus and undivided profits of not less than $500 million; (c) commercial paper with a maturity of 180 days or less from the date of acquisition issued by a corporation that is not an Affiliate of ACNielsen and is organized under the laws of any state of the United States or the District of Columbia whose debt rating, at the time as of which such investment is made, is at least "A-1" by Standard & Poor's Corporation or at least "P-1" by Moody's Investors Service, Inc. or rated at least an equivalent rating category of another nationally recognized securities rating agency; (d) repurchase agreements and reverse repurchase agreements having a term of not more than 30 days for underlying securities of the types described in clause (a) above entered into with a financial institution meeting the qualifications described in clause (b) above; (e) any security, maturing not more than 180 days after the date of acquisition, backed by standby or direct pay letters of credit issued by a bank meeting the qualifications described in clause (b) above; and (f) any security, maturing not more than 180 days after the date of acquisition, issued or fully guaranteed by any state, commonwealth, or territory of the United States of America, or by any political subdivision thereof, and rated at least "A" by Standard & Poor's Corporation or at least "A" by Moody's Investors Service, Inc. or rated at least an equivalent rating category of another nationally recognized securities rating agency. "Cognizant" shall have the meaning set forth in the preamble hereto. "Cognizant Counsel" shall have the meaning set forth in Section 4.1(b) hereto. "Cognizant/D&B Payment" shall have the meaning set forth in Section 2.1(b) hereto. "Consolidated Earnings Before Interest, Taxes, Depreciation and Amortization" means for any period the sum of Consolidated Net Income plus, to the extent deducted in computing Consolidated Net Income, Consolidated Interest Expense, Consolidated Tax Expense, all depreciation and, without duplication, all amortization, in each case, for such period, of 5 5 the Relevant Party and its Subsidiaries on a consolidated basis, all as determined in accordance with GAAP. "Consolidated Interest Expense" means for any period the sum of (a) the aggregate of the interest expense on Indebtedness of the Relevant Party and its Subsidiaries for such period, on a consolidated basis as determined in accordance with GAAP (excluding the amortization of costs relating to original debt issuances but including the amortization of debt discount) plus (b) without duplication, that portion of Capital Lease Obligations of the Relevant Party and its Subsidiaries representing the interest factor for such period as determined in accordance with GAAP plus (c) without duplication, dividends paid in respect of preferred stock of Subsidiaries or Disqualified Stock of the Relevant Party to Persons other than the Relevant Party or a wholly owned Subsidiary. "Consolidated Net Income" means for any period the net income or loss of the Relevant Party and its Subsidiaries for such period on a consolidated basis as determined in accordance with GAAP, adjusted by excluding the after-tax effect of (a) any gains (but not losses) from currency exchange transactions not in the ordinary course of business; (b) the net income of any Person which is not a Subsidiary or is accounted for by the equity method of accounting except to the extent of the amount of dividends or distributions actually paid in cash by such Person to the Relevant Party or a Subsidiary of the Relevant Party during such period; (c) except to the extent includible pursuant to clause (b), the net income of any Person accrued prior to the date it becomes a Subsidiary of the Relevant Party or is merged into or consolidated with the Relevant Party or any of its Subsidiaries or such Person's assets are acquired by the Relevant Party or any of its Subsidiaries; (d) net gains attributable to write-ups (determined after taking into account losses attributable to write-downs) of assets or liabilities other than in the ordinary course of business; (e) the cumulative effect of a change in accounting principles; and (f) net income from discontinued operations. "Consolidated Net Worth" of a Person and its Subsidiaries means as of any date all amounts that would be included under stockholders' equity on a consolidated balance sheet of such Person and its Subsidiaries determined in accordance with GAAP. "Consolidated Tax Expense" means for any period the aggregate of the federal, state, local and foreign income tax expense of the Relevant Party and its Subsidiaries for such period, on a consolidated basis as determined in accordance with GAAP, to the extent deducted in computing Consolidated Net Income. "Counsel of Record" shall have the meaning set forth in Section 4.1(a). 6 6 "D&B" shall have the meaning set forth in the preamble hereto. "D&B Common Stock" shall have the meaning set forth in the recitals hereto. "D&B Counsel" shall have the meaning set forth in Section 4.1(b) hereto. "Defense Costs" shall have the meaning set forth in Section 4.1(h). "Defense Materials" shall have the meaning set forth in Section 4.1(c) hereto. "Disqualified Firm" shall have the meaning set forth in Section 2.2(a) hereto. "Disqualified Stock" means any Capital Stock which pays a mandatory dividend (other than in Capital Stock) or which, by its terms (or by the terms of any security into which it is convertible or exchangeable), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder thereof, in whole or in part or is exchangeable for debt securities of ACNielsen or its Subsidiaries. "Distribution Agreement" shall mean the Distribution Agreement among D&B, Cognizant and ACNielsen. "Fixed Charge Coverage Ratio" means for any period the ratio of Consolidated Earnings Before Interest, Taxes, Depreciation and Amortization to Consolidated Interest Expense for such period; provided, however, that in making such computation, the interest expense on any Indebtedness to be incurred and computed on a pro forma basis and bearing a floating interest rate shall be computed as if the rate in effect on the date of computation had been the applicable rate for the entire period. "GAAP" means the generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession in the United States, in each case applied on a consistent basis. "Hypothetical Recapitalization Plan" shall have the meaning set forth in the definition of "ACN Maximum Amount", above. 7 7 "IMS" shall have the meaning set forth in the recitals hereto. "IMS Counsel" shall have the meaning set forth in Section 4.1(b) hereto. "Indebtedness" means, with respect to any Person, without duplication, (a) the principal of and premium (if any) in respect of (i) indebtedness of such Person for money borrowed and (ii) indebtedness evidenced by notes, indentures, bonds, other similar instruments for the payment of which such Person is responsible or liable; (b) all Capital Lease Obligations of such Person; (c) all obligations of such Person issued or assumed as the deferred purchase price of property; (d) all obligations of such Person for the reimbursement of any obligor on any letter of credit or similar credit transaction; (e) all dividends on Capital Stock issued by third parties for the payment of which such Person is responsible; (f) all obligations of the type referred to in clauses (a) through (e) above of third parties secured by any Lien on any property or asset of such Person, the amount of such obligation being deemed to be the lesser of the value of such property or assets or the amount of the obligation so secured; (g) indebtedness secured by any Lien existing on property acquired by such Person subject to such Lien, whether or not the indebtedness secured thereby shall have been assumed, provided that if such Person has not assumed such Indebtedness the amount of Indebtedness of such Person shall be deemed to be the lesser of the value of such acquired property or the amount of the indebtedness secured; (h) guarantees, endorsements and other obligations, whether or not contingent, in respect of, or agreements to purchase or otherwise acquire, Indebtedness of other Persons; (i) all Disqualified Stock issued by such Person valued at the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid dividends; (j) preferred stock issued by any Subsidiary valued at the greater of its voluntary or involuntary maximum fixed repurchase price plus accrued and unpaid dividends; and (k) all obligations under or in respect of Interest Rate Protection or other Hedging Agreements. For purposes of this definition, "maximum fixed repurchase price" of any preferred stock issued by any Subsidiary and of any Disqualified Stock which does not have a fixed repurchase price shall be calculated in accordance with the terms of such preferred stock or such Disqualified Stock as if such preferred stock or such Disqualified Stock were purchased on any date on which Indebtedness shall be required to be determined pursuant to the Indenture, and if such price is based upon, or measured by, the fair market value of such preferred stock or Disqualified Stock, such fair market value shall be determined in good faith by the board of directors of the issuer of such preferred stock or such Disqualified Stock. 8 8 "Interest Rate Protection and Other Hedging Agreements" means one or more of the following agreements entered into by one or more financial institutions: (a) interest rate protection agreements (including, without limitation, interest rate swaps, caps, floors, collars and similar agreements), (b) foreign exchange contracts, currency swap agreements or other, similar agreements or arrangements designed to protect against fluctuations in currency values and/or (c) other types of hedging agreements from time to time. "IRI" shall have the meaning set forth in the recitals hereto. "IRI Liabilities" shall have the meaning set forth in Section 2.1(a) hereto. "Lawsuit" shall have the meaning set forth in the recitals hereto. "Lien" means any mortgage, lien, pledge, security interest, conditional sale or other title retention agreement or other security interest or encumbrance of any kind (including any agreement to give any security interest). "Note Amount" shall have the meaning set forth in Section 2.1(c) hereto. "Parent" of a Person means any other Person with the power to direct the management and policies of such Person, directly or indirectly, whether through ownership of Voting Stock, by contract or otherwise. "Party Counsel" shall have the meaning set forth in Section 4.1(b) hereto. "Payment Date" shall mean the day on which the IRI Liabilities, if any, are ultimately required to be paid. "Person" shall mean any natural person, corporation, business trust, joint venture, association, company, partnership or government, or any agency or political subdivision thereof. "Recapitalization Plan" shall have the meaning set forth in Section 2.2(c) hereto. "Related Person" means (a) any Affiliate of ACNielsen, (b) any Person who directly or indirectly holds 5% or more of any class of Voting Stock of ACNielsen, (c) any Person who is an executive officer or director of ACNielsen and (d) any Affiliate of or any relative by blood, marriage or adoption not more remote than first cousin of any such Person referred to in clause (b) or (c) above. 9 9 "Relevant Party" shall have the meaning set forth in Section 3.4 hereto. "Restricted Payment" means, with respect to ACNielsen and its Subsidiaries, (a) any declaration or payment of any dividend on, or any distribution in respect of, or any purchase, redemption or retirement for value of, any Capital Stock of ACNielsen or such Subsidiary or any deposit with respect to the foregoing (other than (i) through the issuance of Capital Stock of ACNielsen, other than Disqualified Stock or rights to Disqualified Stock, and (ii) dividends or distributions payable solely to ACNielsen or a wholly owned Subsidiary), other than dividends or repurchases contemplated by the Distribution Agreement or any Ancillary Agreement, (b) any charitable contribution, (c) any voluntary payments to pension or other benefit plans, or (d) any accelerated payment of any accounts payable or any cancellation or discounting of, or delay or extension in the collection of, any accounts receivable, unless such acceleration, cancellation, discounting, delay or extension, as the case may be, is in the ordinary course of ACNielsen's business. "Service" shall mean the Internal Revenue Service or any successor entity thereto. "Strategic Transaction" shall mean any acquisition or disposition of any business or of any assets comprising a business, or any acquisition or disposition of any interest in a joint venture or other equity investment in any business. "Subsidiary" shall mean any corporation, partnership or other entity of which another entity (a) 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 (b) is a general partner or an entity performing similar functions (e.g., a trustee). "Viability Opinion" shall have the meaning set forth in Section 2.2(c) hereto. "Voting Stock" means all outstanding classes of Capital Stock of any entity entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof. "Withdrawing Party" shall have the meaning set forth in Section 4.1(g). ARTICLE II ALLOCATION OF LIABILITIES/ARBITRATION OF ACN MAXIMUM AMOUNT 10 10 SECTION 2.1. Allocation of Liabilities. (a) The parties agree that in the event that liabilities are incurred by any party hereto or any Subsidiary thereof directly relating to, arising out of or resulting from a final, non-appealable judgment being entered, or any settlement permitted hereby being entered into, in connection with the Lawsuit, such liabilities ("IRI Liabilities") shall be allocated among the parties as follows: (i) ACNielsen agrees to assume exclusive liability for the IRI Liabilities up to the ACN Maximum Amount; and (ii) Cognizant and D&B each agree to assume exclusive liability for 50% of any IRI Liabilities not payable by ACNielsen pursuant to this Agreement. (b) No later than five business days after the date on which any IRI Liabilities are incurred, ACNielsen shall give notice to each of Cognizant and D&B of the amount of such IRI Liabilities which ACNielsen will then pay (such amount, the "ACN Payment") and of the amount which ACNielsen has determined to be the ACN Maximum Amount, and ACNielsen will deliver the ACN Payment to Counsel of Record for delivery to the plaintiff in the Lawsuit. Each of Cognizant and D&B agrees to pay to the plaintiff in the Lawsuit on the Payment Date an amount equal to 50% of the excess (if any) of (x) the aggregate amount of the IRI Liabilities over (y) the ACN Payment (such amount, the "Cognizant/D&B Payment"). In the event Cognizant or D&B disputes or disagrees with ACNielsen's determination of the ACN Maximum Amount, the dispute shall be resolved and the ACN Maximum Amount determined as described in Section 2.2. (c) Upon the payment of the Cognizant/D&B Payment pursuant to the immediately preceding sentence, ACNielsen shall issue a note (an "ACN Note") to each of Cognizant and D&B. The principal amount of each ACN Note shall be equal to the Note Amount, as defined below, and each such ACN Note shall be in the form of Schedule A hereto. Interest on the Note Amount as finally determined for each ACN Note shall accrue at a rate equal to the rate of interest per annum publicly announced from time to time by The Chase Manhattan Bank as its prime rate in effect at its principal office in New York City and shall be payable at maturity. For purposes hereof, the "Note Amount" of each Note shall initially be equal to the Cognizant/D&B Payment, provided, however, (i) that upon the determination of the ACN Maximum Amount, if the Note Amount is greater than 50% of the difference between the ACN Maximum Amount and the ACN Payment, then the Note Amount shall be reduced to and shall equal 50% of such difference, and (ii) that upon receipt of the aggregate amount of proceeds generated by any Recapitalization Plan (as defined below) upon completion thereof in accordance with the first sentence of Section 2.2(g), if the Note Amount (after giving effect to any adjustment pursuant to clause (i)) is greater than 11 11 50% of the amount of such proceeds, then the Note Amount shall be reduced to and shall equal 50% of the amount of such proceeds. The Note Amount, together with accrued and unpaid interest thereon, shall be payable upon the earlier of (x) the completion of the Recapitalization Plan, provided, however, that if the Recapitalization Plan is structured to generate proceeds which are receivable by ACNielsen at different times without being contingent upon the completion of any other aspect of the Recapitalization Plan, then at each time that proceeds are so received, 50% of such proceeds shall be payable to each of Cognizant and D&B, and the receipt by Cognizant and D&B of their respective share of such proceeds shall reduce the then applicable Note Amount accordingly, and (y) the declaration by the Payee of an ACN Note (as defined therein) that such Note Amount and interest thereon are immediately due and payable in accordance with the terms of such ACN Note upon determination being made under Section 2.2(g) hereof that ACNielsen has not exercised its good faith best efforts to implement the Recapitalization Plan as soon as practicable, or as otherwise provided by such ACN Note. (d) Immediately after the Payment Date, ACNielsen agrees to grant to, and to cause each of its Subsidiaries to grant to, Cognizant and D&B, as collateral security for the payment and performance of ACNielsen's obligations under the ACN Notes and otherwise to indemnify Cognizant and D&B against any IRI Liabilities as required by this Article II, a perfected first priority security interest in all of its tangible and intangible assets (including, without limitation, intellectual property, real property and all of the capital stock of each of its direct and indirect domestic subsidiaries and first-tier foreign subsidiaries), to the extent permitted by any other bona fide security or other similar agreements with third-parties not controlled by ACNielsen or any of its Affiliates, pursuant to such documents (the "Security Documents") as Cognizant and D&B shall deem reasonably necessary or advisable to grant to them a perfected first priority lien on such assets. Each of the Security Documents shall be in form and substance reasonably satisfactory to Cognizant and D&B, shall contain terms and conditions which are usual and customary for similar documents delivered in secured financings and shall include guarantees executed and delivered by each of ACNielsen's Subsidiaries which shall be secured by the security interests granted by such Subsidiaries pursuant to the Security Documents. Without limiting the foregoing, ACNielsen agrees to take, and to cause each of its Subsidiaries to take, all actions necessary or advisable to cause the liens granted pursuant to the Security Documents to be duly perfected in accordance with all applicable requirements of law, including, without limitation, the filing of financing statements in such jurisdictions as may be requested by Cognizant and D&B and the delivery to Cognizant and D&B (or their representative) of any certificates representing pledged stock, together with undated stock powers executed and delivered in 12 12 blank by a duly authorized officer of ACNielsen or the relevant Subsidiary. SECTION 2.2. Arbitration of ACN Maximum Amount. (a) Cognizant, D&B and ACNielsen expressly agree that any dispute or disagreement concerning the ACN Maximum Amount shall be submitted to binding arbitration and agree that disputes concerning the ACN Maximum Amount shall be resolved by an internationally recognized investment banking firm, as arbitrator, pursuant to the procedures and instructions set forth below. Such arbitrator shall be chosen by ACNielsen, Cognizant and D&B, unless the parties cannot agree within two business days of the determination of the Cognizant/D&B Payment, in which case the arbitrator shall be selected through a random drawing, conducted jointly by the parties, in which each party selects and enters the name of one of the firms listed on Schedule B hereto and the firm whose name is picked in such drawing shall be the arbitrator, provided, however, that if the firm picked is a "Disqualified Firm", the process shall be repeated until the firm picked is not a Disqualified Firm. A "Disqualified Firm" shall be any firm which could reasonably be expected to be partial to one or more parties hereto within the meaning of Section 10(b) of the Federal Arbitration Act. Any firm picked by such drawing shall, within two business days, disclose to each of the parties hereto any and all potential conflicts of interest with respect to any of the parties. The parties shall have two business days from receiving such disclosure to dispute such firm's impartiality. The parties agree that failure to dispute any such firm's impartiality within such period shall constitute a waiver of any right to challenge such firm's impartiality based on facts known or disclosed at such time. Any dispute concerning whether or not a firm is a Disqualified Firm shall be resolved by a single arbitrator, who shall be a lawyer, selected by the parties or, if the parties are unable to agree on an arbitrator within two business days, then one shall be selected by the American Arbitration Association in accordance with its most expeditious procedures. The arbitrator selected to resolve any dispute concerning the impartiality of a proposed investment banking firm shall be instructed to resolve such dispute within ten business days pursuant to the dispute resolution procedures set forth in Section 6.2 of the Distribution Agreement. The place of any such arbitration shall be in New York City, New York. (b) Cognizant, D&B and ACNielsen agree that any arbitrator or arbitrators appointed to resolve any dispute pursuant to Article VI of the Distribution Agreement shall have no right, authority or jurisdiction to determine the ACN Maximum Amount, to resolve any dispute concerning the determination of the ACN Maximum Amount, to resolve any other dispute arising under this Article II (except in the limited circumstance explicitly set forth in the penultimate sentence of the preceding paragraph), or to prevent, delay or otherwise interfere with any such dispute arbitration or determination, and that any dispute 13 13 concerning the determination of the ACN Maximum Amount shall only be resolved by an investment banking firm appointed as arbitrator pursuant hereto. The determination of the ACN Maximum Amount and the resolution of any other dispute arising under this Article II by such investment banking firm shall be made without any party hereto asserting any other claims, offsets, defenses or counterclaims. Each of Cognizant, D&B and ACNielsen agrees that notwithstanding any other disputes between or among any of them or any of their respective Subsidiaries under the Distribution Agreement, any Ancillary Agreement or otherwise, such party will not take any action to prevent or delay the arbitration contemplated hereby or claim any right to offset any claim or amount payable hereunder. The parties hereto intend the provisions to arbitrate set forth in this Article II to be valid, enforceable and irrevocable. Any award rendered by the arbitrator shall be final and binding on the parties and their respective Subsidiaries, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof in accordance with Section 5.15 hereof. (c) The investment banking firm chosen as arbitrator to resolve any disputes concerning the ACN Maximum Amount may perform such financial analyses and studies and consider such historical and projected financial information and other data as it deems relevant, and shall afford each party with an opportunity to be heard and to present financial information and other data relevant to the determination of the ACN Maximum Amount. Such investment banking firm shall be directed to make an award determining the ACN Maximum Amount as the maximum amount which, at the time any such IRI Liabilities become payable, ACNielsen is able to pay after giving effect to (i) any recapitalization or similar corporate transaction, including, without limitation, asset dispositions and/or increased borrowings or other capital raising transactions, that may be submitted pursuant to paragraph (e) below in order to maximize the claims paying ability of ACNielsen (a "Recapitalization Plan"), and (ii) the payment of interest on the ACN Notes and investment banking, legal and other fees and expenses reasonably expected to be incurred in connection with such Recapitalization Plan, without impairing the financial viability of ACNielsen or A.C. Nielsen Company as either such company would exist after consummation of the Recapitalization Plan and the payment of such interest, fees and expenses. The award made by such investment banking firm shall also allocate the IRI Liabilities based on the ACN Maximum Amount, as determined by such investment banking firm, strictly in accordance with Section 2.1 (a) hereof. Such investment banking firm shall consider the amount of any proceeds to be received by ACNielsen pursuant to any counterclaim against IRI in connection with the Lawsuit. In addition to the award required by this paragraph (c), such investment banking firm shall deliver a written opinion addressed to the Boards of Directors of each of ACNielsen, Cognizant, D&B and A.C. Nielsen Company (a) confirming any determination of the ACN Maximum Amount and (b) to the effect that, after taking into account the 14 14 Recapitalization Plan, the payment of interest on the ACN Notes, the payment of related fees and expenses and the payment of the ACN Maximum Amount as so determined, each of ACNielsen and A.C. Nielsen Company will be financially viable as described below (the "Viability Opinion"). (d) Notwithstanding any amount determined by an investment banking firm as contemplated hereby, the ACN Maximum Amount may never exceed an amount which would require the portion of the ACN Maximum Amount payable by A.C. Nielsen Company to exceed an amount which, if paid by A.C. Nielsen Company immediately prior to the Distribution, would have prevented A.C. Nielsen Company from immediately after the Distribution paying $1.00 of dividends out of surplus in compliance with Delaware law. (e) In addition to the award required by paragraph (c) above, such investment banking firm shall be directed to prepare and submit to the parties a Recapitalization Plan which shall be designed to give effect to the goal of the parties to maximize the ACN Maximum Amount without preventing such investment banking firm from delivering the Viability Opinion, but which shall not require any action requiring shareholder approval pursuant to the Delaware General Corporation Law or the Certificate of Incorporation or By-Laws of ACNielsen as in effect on the date hereof or any transaction which, in the sole discretion of such investment banking firm, is not reasonably practicable in the circumstances. (f) For purposes of this Section 2.2 and of the Viability Opinion, financial viability of each of ACNielsen and A.C. Nielsen Company shall mean the ability of ACNielsen and A.C. Nielsen Company, respectively, after giving effect to the Recapitalization Plan, the payment of interest on the ACN Notes, the payment of related fees and expenses and the payment by ACNielsen of the ACN Maximum Amount and the payment by A.C. Nielsen Company of the portion, if any, of the ACN Maximum Amount payable by A.C. Nielsen Company, (i) to pay its debts as they become due and payable and (ii) to finance the current and anticipated operating and capital requirements of its business, as reconstituted, for two years from the date any such Recapitalization Plan is expected to be implemented. (g) ACNielsen agrees (i) to cause its management to cooperate with such investment banking firm and (ii) to exercise its good faith best efforts, and to cause its Board of Directors and management to use good faith best efforts, to implement the Recapitalization Plan as soon as practicable and to take all actions which may be necessary or appropriate in connection therewith. Cognizant and D&B agree that notwithstanding Section 2.1(a), if ACNielsen has used its good faith best efforts to implement the Recapitalization Plan as soon as practicable but the sum of the aggregate proceeds generated thereby and the ACN Payment are less than the ACN Maximum Amount, then, upon payment 15 15 of such proceeds to Cognizant and D&B, any such deficit shall be forgiven, and ACNielsen's obligation to assume the IRI Liabilities up to the ACN Maximum Amount hereunder shall be deemed discharged. In no event will the failure of ACNielsen to take the action provided for in the first sentence of this Section 2.2(g) relieve ACNielsen of its obligation to pay the ACN Maximum Amount, and ACNielsen agrees that if a determination is made pursuant to the next succeeding sentence that ACNielsen has not used its good faith best efforts to implement the Recapitalization Plan as soon as practicable, then (x) ACNielsen shall remain liable for the full ACN Maximum Amount, and (y) immediately after receiving the investment banking firm's determination referred to in the succeeding sentence, Cognizant and D&B shall be entitled (a) to enforcement of or entry of a judgment upon the award of the ACN Maximum Amount by the Supreme Court of the State of New York, New York County, or the United States District Court for the Southern District of New York in accordance with Section 5.15 hereof or (b) to declare the Note Amount and interest thereon to be immediately due and payable in accordance with the terms of such ACN Note. Any dispute concerning whether or not ACNielsen has used its good faith best efforts to implement the Recapitalization Plan as promptly as practicable shall be submitted to and finally determined by the investment banking firm which prepared and submitted such Recapitalization Plan, in the sole discretion of such investment banking firm, after giving each of the parties hereto an opportunity to be heard, and based on its knowledge of the Recapitalization Plan, the manner and degree to which such plan has actually been implemented and the goal of the parties to maximize ACN Maximum Amount pursuant hereto. Any such determination shall be made in writing and delivered to the parties hereto promptly (i) upon the completion of such Recapitalization Plan or (ii) in response to a request by any party hereto that such a determination be made. (h) Without prejudice to such arbitral immunity to which the arbitrator shall be entitled, each of ACNielsen, Cognizant and D&B agrees to enter into an indemnification agreement with the investment banking firm engaged to act as arbitrator to determine the ACN Maximum Amount, to deliver the Viability Opinion and to make the determination contemplated by Section 2.2(g) hereof in such form as such investment banking firm may reasonably request and as may be reasonably customary in the circumstances. Each of the parties further acknowledges that the fees and expenses of such investment banking firm shall be included in the expenses used in determining the ACN Maximum Amount, and that such firm shall look to ACNielsen as the primary obligor for payment of such fees and expenses and to Cognizant and D&B as secondary obligors. Each of the parties further agrees that such investment banking firm may retain its own counsel (the reasonable fees of such counsel to be included in the expenses used in determining the ACN Maximum Amount) and that such investment banking firm may rely on such counsel for legal advice and may rely on financial information, including 16 16 projections, provided by ACNielsen management and may assume the accuracy and reasonableness of any such projections. SECTION 2.3. Other Agreements Relating to Allocation of IRI Liabilities. (a) Each of ACNielsen, Cognizant and D&B agrees not to amend or waive any provision of this Agreement which would have the effect of releasing Cognizant or D&B of their obligations under Section 2.1 (a)(ii) above unless, at such time, A.C. Nielsen Company could pay the maximum possible amount of any IRI Liabilities and immediately thereafter pay $1.00 of dividends out of surplus in compliance with Delaware law. (b) If either D&B or Cognizant acquires beneficial ownership of 20% or more of the outstanding Voting Stock of IRI or any successor thereof (an "IRI Investor"), then such IRI Investor shall be deemed to be Withdrawing Party for purposes of and with the consequences set forth in Section 4.1 (g). (c) Cognizant and D&B agree that if it shall be necessary to post any bond pending any appeal of the Lawsuit or otherwise in connection therewith, Cognizant and D&B shall promptly procure such a bond, and each shall pay 50% of the cost thereof, provided that such cost shall be added to and be deemed to be part of the IRI Liabilities hereunder. (d) The directors of A.C. Nielsen Company immediately prior to the Distribution shall be third-party beneficiaries of the agreements set forth in Article II. ARTICLE III COVENANTS OF ACNIELSEN SECTION 3.1. Limitation on Restricted Payments. ACNielsen will not, directly or indirectly, and will not permit any Subsidiary to, make any Restricted Payment if, at the time of such Restricted Payment, and giving effect thereto, the aggregate amount of all Restricted Payments (the amount of such payments, if other than in cash, having been determined in good faith by the ACNielsen Board of Directors, whose determination shall be conclusive and evidenced by a Board resolution certified and delivered to each of Cognizant and D&B) declared and made after the Distribution Date would exceed the sum of: (a) $15 million; and (b) 20% of the aggregate Consolidated Net Income (or, if such Consolidated Net Income is a negative number, 100% of such consolidated net loss) of ACNielsen accrued on a cumulative basis during the period beginning on the Distribution Date and ending on the last day of ACNielsen's last fiscal quarter ending prior to the date of such proposed Restricted Payment (except that the amount, if any, of consolidated net loss shall not 17 17 reduce the $15 million amount available pursuant to clause (a) above); provided, however, that the foregoing provisions will not prevent the payment of a dividend within 60 days after the date of its declaration if at the date of declaration such payment was permitted by the foregoing provisions. SECTION 3.2. Limitation on Transactions with Related Persons. At any time when the Voting Stock of ACNielsen is not listed and traded on The New York Stock Exchange, The American Stock Exchange or the National Market System of the National Association of Securities Dealers Automated Quotation System, ACNielsen will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or suffer to exist any transaction or series of related transactions (including, without limitation, the sale, purchase, exchange or lease of assets, property or services) with any Related Person (other than a wholly owned Subsidiary) unless such transaction or series of transactions is on terms that are no less favorable to ACNielsen or such Subsidiary, as the case may be, than would be available in a comparable transaction with an unrelated third party and (a) where such transaction or series of transactions involves aggregate consideration (including, without limitation, the assumption of indebtedness) in excess of 2.5% of ACNielsen's Consolidated Net Worth as of the end of the prior fiscal year, such transaction or series of transactions is approved by a majority of the Board of Directors of ACNielsen, including the approval of a majority of the independent, disinterested directors, and (b) where such transaction or series of transactions involves aggregate consideration (including, without limitation, the assumption of indebtedness) in excess of 7.5% of ACNielsen's Consolidated Net Worth as of the end of the prior fiscal year, ACNielsen also delivers to Cognizant and D&B an opinion from an internationally recognized investment banking firm as to the fairness of such transaction or series of transactions to ACNielsen or such Subsidiary from a financial point of view (without considering, for purposes of such fairness opinion, any impact which such transaction may have on the ACN Maximum Amount). For purposes of the foregoing, a series of related transactions will be deemed to include, without limitation, a series of transactions if, within six months of closing one transaction, another transaction is entered into with the same Person or with a successor or affiliate thereof. Notwithstanding the foregoing, this provision will not apply to (i) any transactions contemplated by the Distribution Agreement or any Ancillary Agreement; (ii) compensation or employee benefit arrangements with any officer or director of ACNielsen; and (iii) any transaction entered into in the ordinary course of business by ACNielsen or a wholly owned Subsidiary with a wholly owned Subsidiary. SECTION 3.3. Merger and Consolidation. ACNielsen may not engage in any Business Combination with any Person, unless 18 18 (a) either (i) ACNielsen shall be the continuing corporation and the Persons who were ACNielsen stockholders immediately prior to transaction or series of transactions continue to hold more than 50% of the Voting Stock of the continuing corporation upon consummation of such transaction or series of transactions, or (ii) (A) such Person and such Person's Parent, if any, (x) shall be a corporation, partnership or trust organized and validly existing under the laws of the United States or any State thereof or the District of Columbia or (y) shall duly execute and deliver a consent to jurisdiction in substantially the form of Schedule C hereto, (B) such Person and, if such Person has a Parent, such Parent shall expressly assume all of ACNielsen's obligations hereunder, (C) such Person, or such Person's Parent, if any, shall be included with ACNielsen for purposes of determining the ACN Maximum Amount and (D) in the event clause (ii)(y) is applicable, a certificate signed by ACNielsen's Chief Executive Officer and by its General Counsel is delivered to each of Cognizant and D&B at least 30 days prior to the consummation of the proposed transaction which certifies that the consent to jurisdiction contemplated by such clause (ii)(y) has been executed and will take effect on the consummation of such transaction and which certificate attaches thereto a duly executed copy of such consent to jurisdiction; (b) immediately after such transaction or each element of such series, ACNielsen and its Subsidiaries or such Person, or such Person's Parent, if any, and its Subsidiaries shall have a Consolidated Net Worth equal to or greater than the Consolidated Net Worth of ACNielsen and its Subsidiaries immediately prior to such transaction or element; and (c) such transaction or series of transactions is permitted under Section 3.4 below. SECTION 3.4. Limitation on Certain Transactions. (a) ACNielsen will not enter into any Strategic Transaction or engage in any Business Combination unless the Chief Executive Officer or the Chief Financial Officer of ACNielsen delivers a certificate to Cognizant and D&B certifying that, after giving pro forma effect to such Strategic Transaction or Business Combination, the Fixed Charge Coverage Ratio of ACNielsen, or, in the case of a Business Combination, the Fixed Charge Coverage Ratio of the continuing corporation following such Business Combination (ACNielsen or such continuing corporation, as the case may be, referred to as the "Relevant Party"), in each case calculated as set forth in Section 3.4(c) below, is greater than 4 to 1, which certificate shall be accompanied by a letter from the Relevant Party's independent accountants confirming that such Fixed Charge Coverage Ratio has been correctly calculated in accordance with the requirements hereof and based on financial statements prepared in accordance with U.S. generally accepted accounting principles. (b) In addition, ACNielsen will not enter into any Strategic Transaction or engage in any Business Combination involving aggregate consideration (including, without limitation, 19 19 the assumption of indebtedness) in excess of $50 million, unless the following conditions are met: (i) the Board of Directors of each of ACNielsen, Cognizant and D&B has received an opinion in writing from an internationally recognized investment bank chosen by ACNielsen, to the effect that such transaction is fair, from a financial point of view, to ACNielsen (without considering, for purposes of such fairness opinion, any impact which such transaction may have on the ACN Maximum Amount); and (ii) in the case of a disposition of a business, an equity interest in a business or the disposition of assets comprising a business, which disposition does not involve the simultaneous equity investment in a joint venture entity which is the acquirer of such business, equity investment or assets, the consideration therefor is limited to cash, Cash Equivalents and/or marketable securities which are freely tradable on a public stock exchange or inter-dealer quotation system. (c) The Fixed Charge Coverage Ratio shall be for the most recent four consecutive full fiscal quarters ending prior to such certification, taken as one period, and calculated on the assumptions that (i) any Indebtedness to be incurred in connection with an acquisition or Business Combination had been incurred on the first day of such four-quarter period, (ii) any other Indebtedness incurred, repaid or retired by the Relevant Party and its Subsidiaries since the beginning of such four-quarter period was incurred, repaid or retired, as the case may be, on the first day of such four-quarter period (except that, in making such computation, the amount of Indebtedness under any revolving credit facility outstanding on the date of such calculation shall be computed based on (A) the average daily balance of such Indebtedness during such four-quarter period or during such shorter included period when such facility was outstanding or (B) if such facility was created after the end of such four-quarter period, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of the calculation) and (iii) any acquisition or disposition by the Relevant Party or its Subsidiaries of any assets out of the ordinary course of business or of any company, division or line of business, in each case since the first day of its last four completed fiscal quarters, had been consummated on such first day of such four-quarter period. (d) For purposes of the foregoing, any issuance or transfer of any Capital Stock of a wholly owned Subsidiary which is a holder of obligations of a Subsidiary that constitute Indebtedness shall be deemed an incurrence of Indebtedness if such issuance or transfer results in such wholly owned Subsidiary no longer being a wholly owned Subsidiary. 20 20 (e) Paragraphs (a) and (b) above shall not apply to any transaction which is contemplated by the Distribution Agreement or any Ancillary Agreement. SECTION 3.5. Limitation on Reincorporation. ACNielsen will not, without the prior written consent of each of Cognizant and D&B, re-incorporate or re-organize its corporate form under the laws of a jurisdiction other than the State of Delaware unless ACNielsen, as re-incorporated or re-organized under the laws of such other jurisdiction, could take substantially the same actions without stockholder (or equity holder) consent or approval under the laws of such jurisdiction and ACNielsen's then applicable certificate of incorporation, charter, by-laws or other organizational documents as ACNielsen could take without stockholder consent or approval under the General Corporation Law of the State of Delaware and ACNielsen's certificate of incorporation and by-laws as of the date hereof, and counsel reasonably satisfactory to Cognizant and D&B confirms the foregoing in writing to the reasonable satisfaction of Cognizant and D&B. ARTICLE IV JOINT DEFENSE PROVISIONS SECTION 4.1. Counsel. (a) ACNielsen shall select counsel of record to represent ACNielsen, D&B and Cognizant (which reference to Cognizant shall be deemed to include I.M.S. International, Inc.) in the Lawsuit ("Counsel of Record"). Counsel of Record shall communicate and consult with all parties in connection with the defense of the Lawsuit, but shall be subject to direction only from ACNielsen. (b) D&B and Cognizant shall be free to retain at their own expense counsel to monitor the Lawsuit ("D&B Counsel" and "Cognizant Counsel" respectively, and, collectively, "Party Counsel"). Counsel of Record shall communicate and consult with any Party Counsel. Neither D&B Counsel nor any other counsel retained by D&B shall appear in the Lawsuit unless D&B shall have become a Withdrawing Party under Section 4.1(g) hereof. Neither Cognizant Counsel nor any other counsel retained by Cognizant shall appear in the Lawsuit unless Cognizant shall have become a Withdrawing Party under Section 4.1(g) hereof. (c) Counsel of Record and Party Counsel shall make available to other such counsel and any party confidential oral information and memoranda or other documents related to the defense of the Lawsuit ("Defense Materials") to the extent that they deem it prudent and consistent with the objectives of the joint defense provided for herein. (d) The Defense Materials obtained by counsel for any party shall remain confidential and shall be protected from disclosure to any third party except as provided herein. 21 21 (e) Counsel of Record and Party Counsel shall not disclose Defense Materials or the contents thereof to anyone except their respective clients, expert witnesses and consultants, counsel for other parties to the Agreement, or attorneys, paralegals and staff within their firms, without first obtaining the consent of Counsel of Record and Party Counsel whose clients (or who themselves) may be entitled to claim any privilege with respect to such materials. All persons permitted access to Defense Materials shall be specifically advised that the Defense Materials are privileged and subject to the terms of this Agreement. (f) If any other person or entity requests or demands, by subpoena or otherwise, any Defense Materials from any of the parties or their counsel, the recipient of the request will immediately notify Counsel of Record and Party Counsel, and each such counsel shall take all steps necessary to permit the assertion of all applicable rights and privileges with respect to such Defense Materials and shall cooperate fully with such other counsel in any proceeding relating to the disclosure of Defense Materials. (g) If D&B or Cognizant decides that it no longer wishes to engage in a joint defense (a "Withdrawing Party"), the Withdrawing Party immediately shall notify the other parties to the Agreement in writing and shall simultaneously return to Counsel of Record the originals and all copies of Defense Materials provided to it. In such event, the Withdrawing Party shall no longer have any rights to obtain Defense Materials, but shall retain other rights and obligations set forth in the Agreement, including the obligations to share Defense Costs pursuant to Section 4.1(h) below, unless otherwise specifically provided. The Withdrawing Party shall lose its right, if any, to indemnification by ACNielsen under this Agreement and shall be liable for one third of the amount of any IRI Liabilities incurred in the Lawsuit. The Withdrawing Party shall continue to be obligated to pay 50% of any IRI Liabilities in excess of the amount payable by ACNielsen pursuant to this Agreement. ACNielsen shall have the absolute right to continue to be represented in all matters in and affecting the Lawsuit by Counsel of Record. All parties expressly agree that Counsel of Record may continue to represent parties that have not withdrawn, and all parties agree and acknowledge that receipt and use of Defense Materials by Counsel of Record or any action taken or knowledge gained by Counsel of Record in connection with its representation of a Withdrawing Party shall not be grounds for disqualification of Counsel of Record as counsel for any other party to this Agreement in the Lawsuit. (h) It is the intention of the parties that ACNielsen, D&B and Cognizant shall share equally the costs of defending the Lawsuit, including attorneys' fees, expert witness and consultants fees and all other costs and expenses for the defense of the Lawsuit (or prosecution of any counterclaim to the 22 22 Lawsuit) duly incurred by ACNielsen or Counsel of Record ("Defense Costs"). ACNielsen shall forward on a monthly basis a statement of the Defense Costs incurred in the preceding month and D&B and Cognizant shall each reimburse ACNielsen for one third of such Defense Costs promptly thereafter. In the event that ACNielsen obtains reimbursement for Defense Costs from IRI in accordance with a certain Settlement Agreement and Release between ACNielsen and IRI, dated as of July 1, 1985, or for any other reason, ACNielsen shall repay to each of D&B and Cognizant one third of such reimbursement up to the extent of their respective payments. (i) No party may enter into any settlement agreement in the Lawsuit without express consent in writing of the other parties, except that ACNielsen may, if it so chooses, enter into a full and final settlement of the Lawsuit if ACNielsen agrees to pay the full amount of the settlement and obtains a full and final release of D&B and Cognizant with respect to the Lawsuit. Such a settlement shall impose no obligation on any other party to this Agreement without the party's express consent in writing. In the event that any party receives a settlement proposal with respect to the Lawsuit, it shall immediately communicate the substance of the offer to the Counsel of Record. (j) All other parties to this Agreement shall cooperate with ACNielsen in the defense of the Lawsuit and the prosecution of any counterclaim therein, including providing, or causing to be provided, records or witnesses as soon as practicable after receipt of any request therefor from or on behalf of ACNielsen. ARTICLE V MISCELLANEOUS SECTION 5.1. Complete Agreement; Construction. This Agreement, including the Exhibit hereto, 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 and to the extent that there shall be a conflict between the provisions of this Agreement and the provisions of the Distribution Agreement or any other agreement, this Agreement shall control. SECTION 5.2. Ancillary Agreements. This Agreement is not intended to address, and should not be interpreted to address, the matters specifically and expressly covered by the Ancillary Agreements. SECTION 5.3. 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 23 23 when one or more such counterparts have been signed by each of the parties and delivered to the other parties. SECTION 5.4. 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 5.5. 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: One Diamond Hill Road Murray Hill, NJ 07974 Telecopy: (908) 665-5803 Attn: General Counsel To Cognizant Corporation: 200 Nyala Farms Westport, Connecticut 06880 Telecopy: (203) 222-4201 Attn: General Counsel To ACNielsen Corporation: 177 Broad Street Stamford, Connecticut 06901 Telecopy: (203) 961-3190 Attn: General Counsel SECTION 5.6. 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 5.7. Amendments. Subject to the terms of Sections 2.3(a) and 5.10 hereof, this Agreement may not be modified or amended except by an agreement in writing signed by each of the parties hereto. 24 24 SECTION 5.8. Assignment. This Agreement shall not be assignable, in whole or in part, directly or indirectly, by any party hereto without the prior written consent of the other parties hereto, and any attempt to assign any rights or obligations arising under this Agreement without such consent shall be void. SECTION 5.9. 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 5.10. Termination. Subject to the terms of Section 2.3(a), this Agreement may be terminated and may be amended, modified or abandoned at any time prior to the Distribution by and in the sole discretion 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. Subject to Section 2.3(a), after the Distribution, this Agreement may not be terminated except by an agreement in writing signed by the parties. SECTION 5.11. Third Party Beneficiaries. Except as provided in Article II, 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 5.12. 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 5.13. Exhibits. The Exhibit shall be construed with and as an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein. SECTION 5.14. 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 5.15. 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 25 25 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 5.15. 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. This consent to jurisdiction shall not be construed to be and is not in any way an exception to the agreement of the parties to resolve any dispute concerning the determination ACN Maximum Amount exclusively through the arbitration procedures set forth in Article II hereof. SECTION 5.16. Dispute Resolution. The investment banking firm engaged pursuant to Section 2.2 shall have the authority to act as an arbitrator to resolve any dispute concerning the ACN Maximum Amount or any other provision contained in Article II, except in the limited circumstance explicitly set forth in Section 2.2(a). Any dispute or disputes arising out of or in connection with Articles III, IV or V of this Agreement shall be settled in accordance with the dispute resolution mechanisms set forth in Article VI of the Distribution Agreement. SECTION 5.17. Severability. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions, the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions. SECTION 5.18. Further Assurances. From time to time, as and when reasonably requested by any other party hereto, each party hereto shall execute and deliver, or cause to be executed and delivered, all such documents and instruments and shall take, or cause to be taken, all such further or other actions as such other party may reasonably deem necessary or desirable to effect the purposes of this Agreement and the transactions contemplated hereunder. 26 26 IN WITNESS WHEREOF, the parties have duly executed and entered into this Agreement, as of the date first above written. THE DUN & BRADSTREET CORPORATION by ----------------------- Name: Title: COGNIZANT CORPORATION by ----------------------- Name: Title: ACNIELSEN CORPORATION by ----------------------- Name: Title: -----END PRIVACY-ENHANCED MESSAGE-----