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Exhibit 10.1
DISTRIBUTION AGREEMENT
between
THE DUN & BRADSTREET CORPORATION
and
THE NEW DUN & BRADSTREET CORPORATION
Dated as of June __, 1998
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS................................................... 2
SECTION 1.1. General.................................................. 2
SECTION 1.2. References; Interpretation............................... 13
ARTICLE II. DISTRIBUTION AND OTHER TRANSACTIONS; CERTAIN
COVENANTS..................................................... 13
SECTION 2.1. The Distribution and Other Transactions.................. 13
SECTION 2.2. Intercompany Accounts.................................... 17
SECTION 2.3. Cash balances............................................ 17
SECTION 2.4. Assumption and Satisfaction of Liabilities............... 17
SECTION 2.5. Resignations............................................. 18
SECTION 2.6. Further Assurances....................................... 18
SECTION 2.7. Limited Representations or Warranties.................... 18
SECTION 2.8. Guarantees............................................... 18
SECTION 2.9. Witness Services......................................... 19
SECTION 2.10. Certain Post-Distribution Transactions.................. 19
SECTION 2.11. Transfers Not Effected Prior to the Distribution;
Transfers Deemed Effective as of the Distribution Date.. 20
SECTION 2.12. Conveyancing and Assumption Instruments................. 21
SECTION 2.13. Ancillary Agreements.................................... 21
SECTION 2.14. Corporate Names......................................... 21
ARTICLE III. INDEMNIFICATION.............................................. 23
SECTION 3.1. Indemnification by the Corporation....................... 23
SECTION 3.2. Indemnification by New D&B............................... 24
SECTION 3.3. Procedures for Indemnification........................... 24
SECTION 3.4. Indemnification Payments................................. 26
ARTICLE IV. ACCESS TO INFORMATION......................................... 26
SECTION 4.1. Provision of Corporate Records........................... 26
SECTION 4.2. Access to Information.................................... 26
SECTION 4.3. Reimbursement; Other Matters............................. 26
SECTION 4.4. Confidentiality.......................................... 27
SECTION 4.5. Privileged Matters....................................... 27
SECTION 4.6. Ownership of Information................................. 29
SECTION 4.7. Limitation of Liability.................................. 29
SECTION 4.8. Other Agreements Providing for Exchange of Information... 29
ARTICLE V. ADMINISTRATIVE SERVICES........................................ 29
SECTION 5.1. Performance of Services.................................. 29
SECTION 5.2. Independence............................................. 30
SECTION 5.3. Non-exclusivity.......................................... 30
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Page
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ARTICLE VI. DISPUTE RESOLUTION............................................ 30
SECTION 6.1. Negotiation.............................................. 30
SECTION 6.2. Arbitration.............................................. 30
SECTION 6.3. Continuity of Service and Performance.................... 31
ARTICLE VII. INSURANCE.................................................... 31
SECTION 7.1. Policies and Rights Included Within Assets; Assignment
of Policies.............................................. 31
SECTION 7.2. Post-Distribution Date Claims............................ 32
SECTION 7.3. Administration; Other Matters............................ 32
SECTION 7.4. Agreement for Waiver of Conflict and Shared Defense...... 34
SECTION 7.5. Cooperation.............................................. 34
ARTICLE VIII. MISCELLANEOUS............................................... 34
SECTION 8.1. Complete Agreement; Construction......................... 34
SECTION 8.2. Ancillary Agreements..................................... 34
SECTION 8.3. Counterparts............................................. 34
SECTION 8.4. Survival of Agreements................................... 34
SECTION 8.5. Expenses................................................. 34
SECTION 8.6. Notices.................................................. 35
SECTION 8.7. Waivers.................................................. 35
SECTION 8.8. Amendments............................................... 35
SECTION 8.9. Assignment............................................... 36
SECTION 8.10. Successors and Assigns.................................. 36
SECTION 8.11. Termination............................................. 36
SECTION 8.12. Subsidiaries............................................ 36
SECTION 8.13. Third Party Beneficiaries............................... 36
SECTION 8.14. Title and Headings...................................... 36
SECTION 8.15. Schedules and Exhibits.................................. 37
SECTION 8.16. GOVERNING LAW........................................... 37
SECTION 8.17. Consent to Jurisdiction................................. 37
SECTION 8.18. Severability............................................ 37
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DISTRIBUTION AGREEMENT
DISTRIBUTION AGREEMENT, dated as of June __, 1998, between THE DUN &
BRADSTREET CORPORATION, a Delaware corporation (the "Corporation") and THE NEW
DUN & BRADSTREET CORPORATION, a Delaware corporation ("New D&B").
WHEREAS, the Corporation acting through its direct and indirect
subsidiaries, currently conducts a number of businesses, including, without
limitation, (i) providing sales, marketing and publishing services for yellow
pages and other directory products (the "▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Business"), (ii)
supplying business, commercial-credit and business-marketing information
services and receivables management services (the "D&B Opco Inc. Business") and
(iii) providing credit ratings on fixed-income securities and other credit
obligations (the "Moody's Business").
WHEREAS, the Board of Directors of the Corporation 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 the Corporation (the "D&B
Common Stock"), as well as of the Corporation and its businesses, to reorganize
the Corporation to separate from the Corporation all businesses currently
conducted by the Corporation other than the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Business and to
cause such businesses to be owned and conducted, directly or indirectly, by New
D&B;
WHEREAS, in order to effect such separation, the Board of Directors
of the Corporation has determined that it is appropriate, desirable and in the
best interests of the holders of D&B Common Stock, as well as of the Corporation
and its businesses, for the Corporation (i) to take certain steps to reorganize
the Corporation's Subsidiaries (as defined herein) and businesses, including
prior to the Distribution (as defined herein) (A) to cause Dun & Bradstreet,
Inc. ("D&B Opco Inc.") to merge with and into New D&B, with New D&B as the
surviving corporation, (B) upon the completion of the transaction described in
(A), to cause the Corporation to contribute all of the non-stock assets held
directly by the Corporation (other than assets specified herein to remain with
the Corporation after the Distribution) to New D&B, (C) upon the completion of
the transaction described in (B), to contribute the capital stock held by the
Corporation in ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), Dun & Bradstreet
International, Ltd. ("D&B International") and all of the other first-tier
subsidiaries of the Corporation other than New D&B and The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Corporation ("RHD") to New D&B, (D) upon the completion of the transactions
described in (C), to cause New D&B to contribute all of its non-stock assets,
other than its interest in the corporate headquarters of New D&B to New Dun &
Bradstreet, Inc., a newly formed Delaware corporation and wholly-owned
subsidiary of New D&B ("New D&B Opco Inc.") and (E) upon the completion of the
transactions described in (D) to cause New D&B to contribute the capital stock
of all of its first-tier subsidiaries other than Moody's to New D&B Opco Inc.
and (ii) upon the completion of such reorganization to distribute to the holders
of the D&B Common Stock all the outstanding shares of common stock of New D&B
(the "New D&B Common Shares"), together with the associated Rights (as defined
herein), as set forth herein;
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WHEREAS, each of the Corporation and New D&B 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 the Corporation and its current and former
Subsidiaries and other matters; and
WHEREAS, each of the Corporation and New D&B 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) "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.
(b) "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.
(c) "Agent" shall have the meaning set forth in Section 2.1(b).
(d) "Agreement Disputes" shall have the meaning set forth in Section
6.1.
(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 Conveyancing and Assumption Instruments, the Data
Services Agreement, the Employee Benefits Agreement, the Intellectual Property
Agreement, the Shared Transaction Services Agreement, the Tax Allocation
Agreement and the Transition Services Agreement.
(f) "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
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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;
(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;
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(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, 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
(xvii) interest rate, currency, commodity or other swap,
collar, cap or other hedging or similar agreements or
arrangements.
(g) "Assignee" shall have the meaning set forth in Section 2.1(f).
(h) "Business Entity" shall mean any corporation, partnership,
limited liability company or other entity which may legally hold title to
Assets.
(i) "Claims Administration" shall mean the processing of claims made
under the Shared Policies, including, without limitation, the reporting of
claims to the insurance carriers and the management of the defense of claims.
(j) "Code" shall mean the Internal Revenue Code of 1986, as amended,
and the Treasury regulations promulgated thereunder, including any successor
legislation.
(k) "Commission" shall mean the U.S. Securities and Exchange
Commission.
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(l) "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(l) 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.
(m) the "Corporation" or "D&B" shall mean The Dun & Bradstreet
Corporation, a Delaware corporation, which will change its name at the time of
the Distribution to "The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Corporation".
(n) "Corporation Debt" shall have the meaning set forth in Section
2.1(n).
(o) "D&B Opco Inc. Business" shall have the meaning set forth in the
recitals.
(p) "Data Services Agreement" shall mean the Data Services Agreement
between the Corporation and New D&B (or Subsidiaries thereof).
(q) "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 the New D&B Common Shares owned by the Corporation on the basis
of one New D&B Common Share for each outstanding share of D&B Common Stock.
(r) "Distribution Date" shall mean July 1, 1998.
(s) "Distribution Record Date" shall mean as of the close of
business of such date as may be determined by the Corporation's Board of
Directors as the record date for the Distribution.
(t) "Effective Time" shall mean immediately after the midnight, New
York time, ending the 24-hour period comprising June 30, 1998.
(u) "Employee Benefits Agreement" shall mean the Employee Benefits
Agreement between the Corporation and New D&B.
(v) "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.
(w) "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
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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.
(x) "Indemnifying Party" shall have the meaning set forth in Section
3.3.
(y) "Indemnitee" shall have the meaning set forth in Section 3.3.
(z) "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.
(aa) "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.
(ab) "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.
(ac) "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 not subject to deductibles, co-insurance,
uncollectibility or retrospectively-rated premium adjustments.
(ad) "Intellectual Property Agreement" shall mean the Intellectual
Property Agreement between the Corporation and New D&B.
(ae) "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
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required to be recorded or reflected on the books and records or financial
statements of any person.
(af) "Moody's" shall have the meaning set forth in the recitals.
(ag) "Moody's Business" shall have the meaning set forth in the
recitals.
(ah) "New D&B Assets" shall mean, collectively, all the rights and
Assets owned or held by the Corporation or any Subsidiary of the Corporation
immediately prior to the Effective Time, except the RHD Assets.
(ai) "New D&B Business" shall mean each and every business conducted
at any time by the Corporation or any Subsidiary of the Corporation prior to the
Effective Time, except an RHD Business.
(aj) "New D&B Common Shares" shall have the meaning set forth in the
recitals hereto.
(ak) "New D&B Contracts" shall mean all the contracts and agreements
to which the Corporation or any of its Affiliates is a party or by which it or
any of its Affiliates is bound immediately prior to the Effective Time, except
the RHD Contracts.
(al) "New D&B Group" shall mean New D&B and each person (other than
any member of the RHD Group) that is a Subsidiary of the Corporation immediately
prior to the Effective Time.
(am) "New D&B Indemnitees" shall mean New D&B, each member of the
New D&B Group, each of their respective present and former directors, officers,
employees and agents and each of the heirs, executors, successors and assigns of
any of the foregoing, except the RHD Indemnitees.
(an) "New D&B Liabilities" shall mean collectively, all obligations
and Liabilities of the Corporation or any Subsidiary of the Corporation
immediately prior to the Effective Time, except the RHD Liabilities.
(ao) "New D&B Opco Inc." shall mean a newly formed Delaware
corporation and wholly owned subsidiary of D&B Opco Inc. created to hold the
assets and liabilities related to, and to operate, the D&B Opco Inc. Business
after the Distribution.
(ap) "New D&B Policies" shall mean all Policies, current or past,
which are owned or maintained by or on behalf of the Corporation or any
Subsidiary of the Corporation immediately prior to the Effective Time which do
not relate to the RHD Business and which Policies are either maintained by New
D&B or a member of the New D&B Group or are assignable to New D&B or a member of
the New D&B Group.
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(aq) "1996 Distribution" shall mean the Distribution described in
the 1996 Distribution Agreement.
(ar) "1996 Distribution Agreement" shall mean the Distribution
Agreement among the Corporation, Cognizant Corporation and ACNielsen Corporation
dated as of October 28, 1996.
(as) "person" shall mean any natural person, corporation, business
trust, joint venture, association, company, partnership, other entity or
government, or any agency or political subdivision thereof.
(at) "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 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.
(au) "Provider" shall have the meaning set forth in Section 5.1.
(av) "Recipient" shall have the meaning set forth in Section 5.1.
(aw) "Records" shall have the meaning set forth in Section 4.1.
(ax) "RHD" shall mean The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Corporation, a
Delaware corporation and a wholly-owned subsidiary of the Corporation.
(ay) "RHD Assets" shall mean:
(i) the ownership interests in those Business Entities
listed on Schedule 1.1(ay)(i);
(ii) any and all Assets that are expressly contemplated by
this Agreement, including those on the list of
pre-Distribution reorganization transactions attached
as Schedule 1.1(ay)(ii) hereto, or any Ancillary
Agreement (or included on any Schedule hereto or
thereto) as Assets which have been or are to be
transferred to the Corporation, RHD or any other member
of the RHD Group prior to the Effective Time or are to
remain with the Corporation, RHD or any other member of
the RHD Group subsequent to the Effective Time;
(iii) any Assets reflected on the RHD Balance Sheet or the
accounting records supporting such balance sheet and
any Assets acquired by or for RHD or any member of the
RHD 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
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prepared on a consistent basis, subject to any
dispositions of any of such Assets subsequent to the
date of such balance sheet;
(iv) subject to Article VII, any rights of any member of the
RHD Group under any of the Policies, including any
rights thereunder arising from and after the Effective
Time in respect of any Policies that are occurrence
policies;
(v) any RHD 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 RHD Asset or the RHD Business; and
(vi) any and all Assets of the Corporation from and after
the Effective Time.
Notwithstanding the foregoing, the RHD Assets
shall not in any event include:
(w) any rights of the Corporation under the 1996
Distribution Agreement or the Tax Allocation
Agreement, Employee Benefits Agreement or the
Ancillary Agreements referred to in the 1996
Distribution Agreement; or
(x) the Assets listed or described on Schedule
1.1(ay)(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 the Corporation, RHD or any RHD
Business, except for those Assets primarily
relating to or used in those Business Entities,
businesses or operations listed on Schedule
1.1(ay)(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
transferred or conveyed to any member of the New
D&B 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 RHD Asset, any item explicitly included on a Schedule
referred to in this Section 1.1(ay) shall take priority over
any provision of the text hereof, and clause (ii) shall take
priority over clause (iii) hereof of this paragraph (ay).
(az) "RHD Balance Sheet" shall mean the combined balance sheet of
the RHD Group, including the notes thereto, as of March 31, 1998, set forth as
Schedule 1.1(az) hereto.
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(ba) "RHD Business" shall mean (i) the ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Business,
(ii) the businesses of the members of the RHD Group, (iii) any other business
conducted by the Corporation or any Subsidiary of the Corporation primarily
through the use of the RHD Assets, (iv) the businesses of Business Entities
acquired or established by or for RHD or any of its Subsidiaries after the date
of this Agreement and (v) the business of the Corporation from and after the
Effective Time.
(bb) "RHD Contracts" shall mean the following contracts and
agreements to which the Corporation 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 that is not
expressly contemplated to be transferred or assigned to the Corporation or any
member of the RHD Group prior to the Effective Time or to remain with the
Corporation or any member of the RHD Group subsequent to the Effective Time,
pursuant to any provision of this Agreement or any Ancillary Agreement:
(i) any contracts or agreements listed or described on
Schedule 1.1(bb)(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 RHD Group;
(iii) any contract or agreement that relates primarily to the
RHD Business;
(iv) federal, state and local government and other contracts
and agreements that are listed or described on Schedule
1.1(bb)(iv) and any other government contracts or
agreements entered into after the date hereof and prior
to the Effective Time that relate primarily to the RHD
Business;
(v) any contract or agreement representing capital or
operating equipment lease obligations reflected on the
RHD Balance Sheet, including obligations as lessee
under those contracts or agreements listed on Schedule
1.1(bb)(v);
(vi) any contract or agreement that is otherwise expressly
contemplated pursuant to this Agreement or any of the
Ancillary Agreements to be transferred or assigned to
the Corporation or any member of the RHD Group prior to
the Effective Time or to remain with the Corporation or
any member of the RHD Group subsequent to the Effective
Time; and
(vii) any guarantee, indemnity, representation or warranty of
any member of the RHD Group.
(bc) "RHD Group" shall mean RHD, each Business Entity which is
contemplated to become a Subsidiary of the Corporation or RHD hereunder prior to
the Effective Time or to remain a Subsidiary of the Corporation or RHD hereunder
subsequent to the Effective Time, which shall include those identified as such
on Schedule 1.1(ay)(i) hereto, which Schedule
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shall also indicate the amount of the Corporation's or RHD's direct or indirect
ownership interest therein, and the Corporation from and after the Effective
Time.
(bd) "RHD Indemnitees" shall mean RHD, each member of the RHD Group,
each of their respective present and former directors, officers, employees and
agents and each of the heirs, executors, successors and assigns of any of the
foregoing.
(be) "RHD 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(be)(i) hereto) as Liabilities to be assumed by the
Corporation or any member of the RHD Group prior to the
Effective Time or to remain with the RHD Group
subsequent to the Effective Time, and all agreements,
obligations and Liabilities of the Corporation or any
member of the RHD Group under this Agreement or any of
the Ancillary Agreements;
(ii) all Liabilities (other than Taxes and any
employee-related Liabilities subject to the provisions
of the Tax Allocation Agreement and the Employee
Benefits Agreement, respectively), primarily relating
to, arising out of or resulting from:
(A) the operation of the RHD Business, as
conducted at any time prior to, on or after the
Effective Time (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 the
Corporation or any Subsidiary of the Corporation at any
time from and after the Effective Time (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 RHD Assets;
whether arising before, on or after the Effective Time;
(iii) all Liabilities reflected as liabilities or obligations
on the RHD 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 RHD Balance Sheet; and
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(iv) the Corporation Debt.
Notwithstanding the foregoing, the RHD 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
assumed by New D&B or any member of the New D&B
Group, including any Liabilities set forth in
Schedule 1.1(be)(x);
(y) any Liabilities primarily relating to, arising out
of or resulting from any terminated or divested
Business Entity, business or operation formerly
owned or managed by or associated with the
Corporation or any RHD Business except for
Liabilities primarily relating to, arising out of
or resulting from those Business Entities,
businesses or operations listed in Schedule
1.1(be)(y); or
(z) all agreements and obligations of any member of
the New D&B Group under this Agreement or any of
the Ancillary Agreements.
(bf) "RHD Policies" shall mean all Policies, current or past, which
are owned or maintained by or on behalf of the Corporation or any Subsidiary of
the Corporation immediately prior to the Effective Time, which do not relate to
the New D&B Business.
(bg) "Rights" shall have the meaning set forth in Section 2.1(c).
(bh) "Rules" shall have the meaning set forth in Section 6.2.
(bi) "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.
(bj) "Shared Policies" shall mean all Policies, current or past,
which are owned or maintained by or on behalf of the Corporation or any
Subsidiary of the Corporation immediately prior to the Effective Time which
relate to the New D&B Business and the RHD Business.
(bk) "Shared Transaction Services Agreement" shall mean the Shared
Transaction Services Agreement between the Corporation and New D&B (or
Subsidiaries thereof).
(bl) "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,
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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).
(bm) "Tax" shall have the meaning set forth in the Tax Allocation
Agreement.
(bn) "Tax Allocation Agreement" shall mean the Tax Allocation
Agreement between the Corporation and New D&B.
(bo) "Third Party Claim" shall have the meaning set forth in Section
3.3.
(bp) "Transition Services Agreement" shall mean the Transition
Services Agreement between the Corporation and New D&B.
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, Schedules and
Exhibits shall be deemed references to Articles and Sections of, and Schedules
and Exhibits 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) the Corporation shall, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to New D&B or another
member of the New D&B Group, effective prior to or as of the Effective
Time, all of the Corporation's and its Subsidiaries' right, title and
interest in the New D&B Assets.
(ii) New D&B shall to the extent not already held by the
Corporation or a member of the RHD Group, on behalf of itself and its
Subsidiaries, transfer or cause to be transferred to the Corporation or a
member of the RHD Group, effective prior to or as of the Effective Time,
all of New D&B's and its Subsidiaries' right, title and interest in the
RHD Assets.
(iii) To the extent not indicated by Schedule 1.1(ay)(i) or
(ii) or otherwise agreed by the parties hereto, the Corporation or New
D&B, as applicable, shall be entitled to designate the Business Entity
within the RHD Group or the New D&B Group, as applicable, to which any
Assets are to be transferred pursuant to this Section 2.1(a).
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(b) Stock Dividend to the Corporation. On or prior to the
Distribution Date, New D&B shall issue to the Corporation as a stock dividend
such number of New D&B Common Shares as will be required to effect the
Distribution, as certified by the Corporation's stock transfer agent (the
"Agent"). In connection with such issuance, the Corporation shall deliver to New
D&B for cancellation the share certificate held by it representing New D&B
Common Shares and shall receive a new certificate representing the total number
of New D&B Common Shares to be owned by the Corporation after giving effect to
such stock dividend.
(c) Charters; By-laws; Rights Plans. On or prior to the Distribution
Date, 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, relating to the preferred share
purchase rights relating to the New D&B Common Shares (the "Rights"), filed by
New D&B with the Commission as exhibits to New D&B's Registration Statement on
Form 10.
(d) Directors. On or prior to the Distribution Date, the Corporation
as the sole stockholder of New D&B, shall have taken all necessary action on or
prior to the Distribution Date to cause the Board of Directors of New D&B to
consist of the individuals identified in the Information Statement as directors
of New D&B.
(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 do not relate primarily to the
RHD Business but which are held in the name of the Corporation or any
member of the RHD Group, or in the name of any employee, officer,
director, stockholder or agent of the Corporation or any such member, or
otherwise, on behalf of a member of the New D&B Group shall be duly and
validly transferred or caused to be transferred by the Corporation to the
appropriate member of the New D&B Group; and
(ii) all transferable licenses, permits and authorizations
issued by Governmental Authorities which relate primarily to the RHD
Business but which are held in the name of any member of the New 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 RHD
Group shall be duly and validly transferred or caused to be transferred by
New D&B to the Corporation or the appropriate member of the RHD Group.
(f) Transfer of Agreements. Without limiting the generality of the
obligations set forth in Section 2.1(a):
(i) the Corporation 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 RHD Group to, assign,
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transfer and convey to the appropriate member of the New D&B Group all of
the Corporation's or such member of the RHD Group's respective right,
title and interest in and to any and all New D&B Contracts;
(ii) New 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 New D&B Group to, assign, transfer and convey to
the Corporation or the appropriate member of the RHD Group all of New
D&B's or such member of the New D&B Group's respective right, title and
interest in and to any and all RHD Contracts;
(iii) 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 both the RHD Business and the New
D&B 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;
(iv) 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)(iii), such
Assignee's related portion of such obligations as determined in accordance
with the terms of the relevant agreement, where determinable on the face
thereof, and otherwise as determined in accordance with the practice of
the parties prior to the Distribution; and
(v) 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. The Corporation shall deliver to the
Agent the share certificates representing the New D&B Common Shares issued to
the Corporation by New D&B pursuant to Section 2.1(b) and shall instruct the
Agent to distribute, on or as soon as practicable following the Distribution
Date, certificates representing such Common Shares to holders of record of
shares of D&B Common Stock on the Distribution Record Date as further
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contemplated by the Information Statement and herein. New D&B 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, New D&B agrees with the Corporation that:
(i) any and all Liabilities arising from or based upon
"controlling person" liability relating to the Form 10 filed by New D&B
shall be deemed to be New D&B Liabilities and not RHD Liabilities; and
(ii) notwithstanding Section 2.1(m) below, any and all
Liabilities arising from or related to the spin-off of Cognizant
Corporation and ACNielsen Corporation from the Corporation pursuant to the
1996 Distribution Agreement, other than those set forth on Schedule
2.1(i), shall be deemed to be New D&B Liabilities and not RHD Liabilities.
(j) Certain Contingencies. Notwithstanding anything to the contrary
herein or in the Tax Allocation Agreement, on or prior to the Distribution Date,
each of the Corporation and New D&B agree to take all actions necessary to cause
the Corporation's interests in certain prior business transactions set forth in
Schedule 2.1(j) to be transferred to New D&B or a member of the New D&B Group,
and each of the Corporation and New D&B agree that any rights with respect
thereto shall be held by New D&B or a member of the New D&B Group and not by RHD
or any member of the RHD Group and any Liabilities arising in connection with
such interests and any transactions relating thereto (including, without
limitation, any Liabilities for Taxes of any member of the Pre-Distribution D&B
Group (as defined in the Tax Allocation Agreement) imposed by reason of audit
adjustment or otherwise) shall be New D&B Liabilities and not RHD Liabilities.
(k) [Reserved]
(l) Other Transactions. On or prior to the Distribution Date, each
of the Corporation and New D&B shall consummate those other transactions in
connection with the Distribution that are contemplated by the ruling request
submissions by the Corporation to the Internal Revenue Service in respect of the
ruling granted on April 9, 1998, and not specifically referred to in
subparagraphs (a)-(k) above. After the Distribution Date, each of the
Corporation and New D&B will exercise good faith commercially reasonable efforts
to consummate as promptly as practicable all other transactions which must be
consummated in order fully to complete the Distribution and any of the
transactions contemplated hereby or by any of the Ancillary Agreements.
(m) Undertaking of New D&B. On or prior to the Distribution Date,
New D&B will undertake to each of Cognizant Corporation and ACNielsen
Corporation to be jointly and severally liable for all "D&B Liabilities" (as
defined in the 1996 Distribution Agreement) under the 1996 Distribution
Agreement pursuant to an undertaking substantially in the form of Exhibit 2.1(m)
hereto.
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(n) Corporation Debt. In connection with the Distribution, the
Corporation shall borrow up to an aggregate of $500 million, a portion of the
proceeds of which shall be used by the Corporation to repay existing
indebtedness to third parties, another portion of the proceeds of which shall be
contributed to New D&B to pay the remaining costs and expenses related to the
Distribution as described in Section 8.5 and the rest of which shall be used to
repay existing intercompany indebtedness of the Corporation or members of the
RHD Group to members of the New D&B Group. This indebtedness shall be an
obligation of the Corporation after the Distribution.
(o) 1996 Distribution. The Corporation agrees that it will not take
any action it is required or permitted to take pursuant to the terms of (i) the
1996 Distribution Agreement or (ii) the Indemnity and Joint Defense Agreement,
the Tax Allocation Agreement, the Employee Benefits Agreement or any Ancillary
Agreement referred to in the 1996 Distribution Agreement, in each such case
without the prior written consent of New D&B.
(p) D&B Restricted Stock. At the time of the Distribution, the
Corporation shall contribute to New D&B any New D&B Common Shares received by
the Corporation as a result of the forfeiture of restricted D&B Common Stock by
D&B employees who will become New D&B employees in connection with the
Distribution.
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 between
any member of the New D&B Group, on the one hand, and the Corporation or any
member of the RHD Group, on the other hand, which exist and are reflected in the
accounting records of the relevant parties as of _______ __, 1998 or which arise
on or after ______ __, 1998 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, the Corporation shall deliver, in immediately available funds, $___
million to New D&B.
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) the Corporation
shall, and shall cause each member of the RHD Group to, assume, pay, perform and
discharge all RHD Liabilities and (ii) New D&B shall, and shall cause each
member of the New D&B Group to, assume, pay, perform and discharge all New D&B
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.
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SECTION 2.5. Resignations. (a) Subject to Section 2.5(b), the
Corporation and RHD shall cause all their employees to resign, effective as of
the Distribution Date, from all positions as officers or directors of any member
of the New D&B Group in which they serve, and New D&B shall cause all its
employees to resign, effective as of the Effective Time, from all positions as
officers or directors of the Corporation or any members of the RHD Group in
which they serve.
(b) 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, the Corporation and New D&B shall use their
commercially reasonable efforts promptly to obtain all consents and approvals,
to enter into all amendatory agreements and to make all filings and applications
that may be required for the consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements, including, without limitation, all
applicable governmental and regulatory filings.
SECTION 2.7. Limited Representations or Warranties. Each of the
parties hereto agrees that no party hereto is, in this Agreement or in any other
agreement or document contemplated by this Agreement or otherwise, making any
representation or warranty whatsoever, as to title or value of Assets being
transferred. It is also agreed that, notwithstanding anything to the contrary
otherwise expressly provided in the relevant Conveyancing and Assumption
Instrument, all Assets either transferred to or retained by the parties, as the
case may be, shall be "as is, where is" and that (subject to Section 2.6) the
party to which such Assets are to be transferred hereunder shall bear the
economic and legal risk that such party's or any of the Subsidiaries' title to
any such Assets shall be other than good and marketable and free from
encumbrances. Similarly, each party hereto agrees that, except as otherwise
expressly provided in the relevant Conveyancing and Assumption Instrument, no
party hereto is representing or warranting in any way that the obtaining of any
consents or approvals, the execution and delivery of any amendatory agreements
and the making of any filings or applications contemplated by this Agreement
will satisfy the provisions of any or all applicable agreements or the
requirements of any or all applicable laws or judgments, it being agreed that
the party to which any Assets are transferred shall 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, the Corporation and New D&B shall use their commercially
reasonable efforts to have, on or prior to the Distribution Date, or as soon as
practicable thereafter, the Corporation and any member of the RHD Group removed
as guarantor of or obligor for any New D&B Liability, including, without
limitation, in respect of those guarantees set forth on Schedule 2.8(a) to the
extent that they relate to New D&B Liabilities.
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(b) Except as otherwise specified in any Ancillary Agreement, the
Corporation and New D&B 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 New D&B Group removed as guarantor of or obligor for any RHD
Liability, including, without limitation, in respect of those guarantees set
forth on Schedule 2.8(b) to the extent that they relate to RHD Liabilities.
(c) If the Corporation or New D&B is unable to obtain, or to cause
to be obtained, any such required removal as set forth in clauses (a) or (b) 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 the Corporation and New D&B 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 the Corporation or New
D&B as applicable. A party providing witness services to the other party under
this Section shall be entitled to receive from the recipient of such services,
upon the presentation of invoices therefor, payments for such amounts, relating
to disbursements and other out-of-pocket expenses (which shall be deemed to
exclude the costs of salaries and benefits of employees who are witnesses), as
may be reasonably incurred in providing such witness services.
SECTION 2.10. Certain Post-Distribution Transactions. (a) (i) The
Corporation 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 the
Corporation 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, the Corporation will cause RHD to 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, will continue to own stock of RHD constituting control (within the
meaning of Section 368(c) of the Code) of RHD and will maintain at least ninety
percent of the fair market value of the Corporation's assets in stock and
securities of RHD and such other assets which, based on an opinion of a law firm
reasonably acceptable to New D&B, or a supplemental ruling from the Internal
Revenue Service, will not cause the Corporation or RHD to be in violation of the
active business requirement under the holding company test.
(b)(i) New 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 the Corporation for a ruling letter in respect of the Distribution as
to certain tax aspects of the Distribution and (ii) until two years after the
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Distribution Date, New D&B will cause each of Moody's and New D&B Opco Inc. to
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, will continue to own stock
in each of Moody's and New D&B Opco Inc. constituting control (within the
meaning of Section 368(c) of the Code) of Moody's and New D&B Opco Inc. and will
maintain at least ninety percent of the fair market value of New D&B's assets in
stock and securities of Moody's and New D&B Opco Inc. and such other assets
which, based on an opinion of a law firm reasonably acceptable to the
Corporation, or a supplemental ruling from the Internal Revenue Service, will
not cause New D&B, Moody's or New D&B Opco Inc. to be in violation of the active
business requirement under the holding company test.
(c) The Corporation agrees that until two years after the
Distribution Date, it will not (i) merge or consolidate with or into any other
corporation, (ii) liquidate or partially liquidate, (iii) sell or transfer all
or substantially all of its assets (within the meaning of Rev. Proc. 77-37, 1977
- 2 C.B. 568) in a single transaction or series of related transactions, (iv)
redeem or otherwise repurchase any D&B Common Stock (other than as described in
Section 4.05(1)(b) of Rev. Proc. 96-30, 1996-1 C.B. 696), or (v) take any other
action or actions which in the aggregate would have the effect of causing or
permitting one or more persons to acquire directly or indirectly stock
representing a 50 percent or greater interest (within the meaning of Section
355(e) of the Code) in the Corporation, unless prior to taking such action the
Corporation has obtained (and provided to New D&B) a written opinion of a law
firm reasonably acceptable to New D&B, or a supplemental ruling from the
Internal Revenue Service, that such action or actions will not result in (i) the
Distribution failing to qualify under Section 355(a) of the Code or (ii) the New
D&B Common Shares failing to qualify as qualified property for purposes of
Section 355(c)(2) of the Code by reason of Section 355(e) of the Code.
(d) Notwithstanding anything to the contrary herein or in the Tax
Allocation Agreement, if the Corporation or New D&B (or any of their respective
Subsidiaries) fails to comply with any of its obligations under Sections
2.10(a), 2.10(b) and 2.10(c) above or takes or fails to take any action on or
after the Distribution Date, and such failure to comply, action or omission
contributes to a determination that (i) the Distribution fails to qualify under
Section 355(a) of the Code or (ii) the New D&B Common Shares fail to qualify as
qualified property for purposes of Section 355(c)(2) of the Code by reason of
Section 355(e) of the Code, the party shall indemnify and hold harmless the
other party and each member of the consolidated group of which the other party
is a member from and against any and all federal, state and local taxes,
including any interest, penalties or additions to tax, imposed upon or incurred
by such other party, any member of its group or any stockholder of either party
as a result of the failure of the Distribution to qualify under Section 355(a)
of the Code or the application of Section 355(e). The obligation of the
Corporation to indemnify New D&B pursuant to the preceding sentence shall not be
affected by the delivery of any legal opinion or supplemental ruling under
Section 2.10(c).
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
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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 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 the Corporation and New D&B shall enter into, and/or (where applicable)
shall cause members of the RHD Group or the New D&B Group, as applicable, 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) on or prior to the Distribution Date, the Corporation
shall change its name to remove any reference to "Dun & Bradstreet"
therein;
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(ii) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, the Corporation will,
at its own expense, remove (or, if necessary, on an interim basis, cover
up) any and all exterior signs and other identifiers located on any of its
property or premises or on the property or premises used by it or its
Subsidiaries (except property or premises to be shared with New D&B or its
Subsidiaries after the Distribution) which refer or pertain to D&B or
which include the Dun & Bradstreet name, logo or other trademark or other
intellectual property utilizing D&B;
(iii) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, the Corporation will,
and will cause its 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 intellectual property utilizing D&B (except that the Corporation
shall not be required to take any such action with respect to materials in
the possession of customers), and neither the Corporation nor its
Subsidiaries shall use or display the "Dun & Bradstreet" name, logo or
other trademarks or intellectual property utilizing D&B without the prior
written consent of New D&B;
(iv) as soon as reasonably practicable after the Distribution
Date, but in any event within six months thereafter, the Corporation will
cause its Subsidiaries to change their corporate names to the extent
necessary to remove and eliminate any reference to D&B, including the "Dun
& Bradstreet" name; provided, however, that notwithstanding the foregoing
requirements of this Section 2.14(a), if the Corporation has exercised
good faith efforts to comply with this clause (iv) but is unable, due to
regulatory or other circumstance beyond its control, to effect a corporate
name change in compliance with applicable law, then the Corporation or its
Subsidiary will not be deemed to be in breach hereof if it continues to
exercise good faith efforts to effectuate such name change and does
effectuate such name change within nine months after the Distribution
Date, and, in such circumstances, such party may continue to include in
exterior signs and other identifiers and in letterhead, envelopes,
invoices and other communications references to the name which includes
references to D&B, but only to the extent necessary to identify such party
and only until such party's corporate name can be changed to remove and
eliminate such references; and
(v) notwithstanding the foregoing clauses (i) through (iv),
nothing herein or in any Ancillary Agreement shall require the Corporation
to take any action to remove any reference to D&B, including the "Dun &
Bradstreet" name, from any stock certificate relating to shares of D&B
Common Stock outstanding on or prior to the Record Date; provided that
from and after the Record Date, any newly issued stock certificates
representing D&B Common Stock (which at the Effective Time will become RHD
Common Stock) shall not have any reference to D&B, including the "Dun &
Bradstreet" name.
(b) Except as otherwise specifically provided in any Ancillary
Agreement:
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(i) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, New D&B will, at its
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 the
Corporation or its Subsidiaries after the Distribution) which refer or
pertain to RHD or which include the "▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇" or "▇▇▇▇▇▇▇▇▇"
name, logo or other trademark or other RHD intellectual property;
(ii) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, New D&B will, and will
cause its respective Subsidiaries to, remove from all letterhead,
envelopes, invoices and other communications media of any kind, all
references to RHD, including the "▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇" or "Donnelley"
name, logo and any other trademark or other RHD intellectual property
(except that New D&B shall not be required to take any such action with
respect to materials in the possession of customers), and neither New D&B
nor any of its Subsidiaries shall use or display the "▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇"
or "Donnelley" name, logo or other trademarks or RHD intellectual property
without the prior written consent of the Corporation; and
(iii) as soon as reasonably practicable after the Distribution
Date but in any event within six months thereafter, New D&B will, and will
cause its Subsidiaries to, change their corporate names to the extent
necessary to remove and eliminate any reference to RHD, including the
"▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇" or "▇▇▇▇▇▇▇▇▇" name; provided, however, that
notwithstanding the foregoing requirements of this Section 2.14(b), if New
D&B has exercised good faith efforts to comply with this clause (iii) but
is unable, due to regulatory or other circumstance beyond its control, to
effect a corporate name change in compliance with applicable law, then New
D&B or its Subsidiary will not be deemed to be in breach hereof if it
continues to exercise good faith efforts to effectuate such name change
and does effectuate such name change within nine months after the
Distribution Date, and, in such circumstances, such party may continue to
include in exterior signs and other identifiers and in letterhead,
envelopes, invoices and other communications references to the name which
includes references to RHD but only to the extent necessary to identify
such party and only until such party's corporate name can be changed to
remove and eliminate such references.
ARTICLE III. INDEMNIFICATION
SECTION 3.1. Indemnification by the Corporation. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, the Corporation shall indemnify, defend and hold harmless the New D&B
Indemnitees from and against any and all Indemnifiable Losses of the New D&B
Indemnitees arising out of, by reason of or otherwise in connection with the RHD
Liabilities or alleged RHD Liabilities, including any breach by the Corporation
of any provision of this Agreement or any Ancillary Agreement.
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SECTION 3.2. Indemnification by New D&B. Except as otherwise
specifically set forth in any provision of this Agreement or of any Ancillary
Agreement, New D&B shall indemnify, defend and hold harmless the RHD Indemnitees
from and against any and all Indemnifiable Losses of the RHD Indemnitees arising
out of, by reason of or otherwise in connection with the New D&B Liabilities or
alleged New D&B Liabilities, including any breach by New D&B of any provision of
this Agreement or any Ancillary Agreement.
SECTION 3.3. Procedures for Indemnification.
(a) Third Party Claims. If a claim or demand is made against an RHD
Indemnitee or a New 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 or Section 3.2 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
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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.
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.
(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.
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SECTION 3.4. 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 New D&B
for specific and identified agreements, documents, books, records or files
(collectively, "Records") which relate to (x) New D&B or the conduct of the New
D&B Business up to the Effective Time, or (y) any Ancillary Agreement to which
the Corporation and New D&B are parties, as applicable, the Corporation 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 the Corporation 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 the
Corporation for specific and identified Records which relate to (x) the
Corporation, RHD or the conduct of the RHD Business up to the Effective Time, or
(y) any Ancillary Agreement to which New D&B and the Corporation are parties, as
applicable, New 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 New 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.
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 the Corporation and New D&B 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
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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, as well as reimbursements on a per diem basis for the reasonable
costs of any personnel reasonably utilized by the party providing Records or
access to information under this Article IV to respond to the relevant request.
SECTION 4.4. Confidentiality. Each of (i) the Corporation and its
Subsidiaries and (ii) New D&B 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 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 Corporation, the members of the RHD Group and the members of the New D&B
Group, and that each of the Corporation, the members of the RHD Group and the
members of the New D&B 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) The Corporation shall be entitled, in perpetuity, to control the
assertion or waiver of all privileges in connection with privileged information
which relates solely to the RHD Business, whether or not the privileged
information is in the possession of or under the control of the Corporation or
New D&B. The Corporation 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 RHD
Liabilities, now pending or which may be asserted in the future, in any lawsuits
or other proceedings initiated against or by the Corporation, whether or not the
privileged information is in the possession of or under the control of the
Corporation or New D&B.
(b) New 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 New D&B
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Business, whether or not the privileged information is in the possession of or
under the control of the Corporation or New D&B. New D&B 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 New D&B Liabilities, now pending or which may
be asserted in the future, in any lawsuits or other proceedings initiated
against or by New D&B whether or not the privileged information is in the
possession of or under the control of the Corporation or New D&B.
(c) 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) and (b). All privileges relating to any claims,
proceedings, litigation, disputes, or other matters which involve both the
Corporation and New D&B in respect of which both parties retain any
responsibility or liability under this Agreement, shall be subject to a shared
privilege among them.
(d) 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 (e) 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.
(e) 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 parties and/or
their Subsidiaries, and shall not operate as a waiver of the shared privilege
with respect to third parties.
(f) 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 specifically agrees that it will
not withhold consent to waiver for any purpose except to protect its own
legitimate interests.
(g) 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
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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.
(h) The transfer of all Records and other information pursuant to
this Agreement is made in reliance on the agreement of the Corporation and New
D&B, 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 3.3
hereof, the furnishing of notices and documents and other cooperative efforts
contemplated by Section 3.3 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
Agreement or any Ancillary Agreement or any agreement entered into in connection
herewith or in order to consummate the transactions contemplated hereby or
thereby), unless such agreement, arrangement, course of dealing or understanding
is listed on Schedule 4.7(b) hereto, and any such liability or claim, whether or
not in writing, which is not reflected on such Schedule, is hereby irrevocably
cancelled, released and waived.
SECTION 4.8. Other Agreements Providing for Exchange of Information.
The rights and obligations granted under this Article IV are subject to any
specific limitations, qualifications or additional provisions on the sharing,
exchange or confidential treatment of information set forth in any Ancillary
Agreement.
ARTICLE V. ADMINISTRATIVE SERVICES
SECTION 5.1. Performance of Services. Beginning on the Distribution
Date, each party will provide, or cause one or more of its Subsidiaries to
provide, to the other party and its Subsidiaries such services on such terms as
may be set forth in the Transition Services Agreement. Except as otherwise set
forth in the Transition Services Agreement or any Schedule thereto, the party
that is to provide the services (the "Provider") will use (and will cause its
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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 party from its own employees or from providers
other than the other party.
ARTICLE VI. DISPUTE RESOLUTION
SECTION 6.1. Negotiation. In the event of a controversy, dispute or
claim arising out of, in connection with, or in relation to the interpretation,
performance, nonperformance, validity or breach of this Agreement or otherwise
arising out of, or in any way related to this Agreement or the transactions
contemplated hereby, including, without limitation, any claim based on contract,
tort, statute or constitution (but excluding any controversy, dispute or claim
arising out of any agreement relating to the use or lease of real property if
any third party is a party to such controversy, dispute or claim) (collectively,
"Agreement Disputes"), the general counsels of the 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 6.2 hereof, 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 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 parties, after 60 days have elapsed
from the time the parties began such negotiations), such Agreement Dispute shall
be determined, at the request of any 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 the parties hereto, the number of arbitrators shall be three. Any
judgment or award rendered by the arbitrators shall be final, binding and
nonappealable (except upon grounds specified in 9 U.S.C. ss.10(a) as in
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effect on the date hereof). If the parties are unable to agree on the
arbitrators, the arbitrators shall be selected in accordance with the Rules;
provided that each arbitrator shall be a U.S. national. 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 arbitrators. In resolving any dispute, the
parties intend that the 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 parties agree to comply with any award made in any such
arbitration proceeding that has become final in accordance with the Rules and
agree to enforcement of or entry of judgment upon such award, by any court of
competent jurisdiction, including (a) the Supreme Court of the State of New
York, New York County, or (b) the United States District Court for the Southern
District of New York, in accordance with Section 8.17 hereof. The 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 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 parties or
permitted by this Agreement, the parties 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.
ARTICLE VII. INSURANCE
SECTION 7.1. Policies and Rights Included Within Assets; Assignment
of Policies. (a) Policy Rights. The New D&B Assets shall include (i) any and all
rights of an insured party under each of the Shared Policies, subject to the
terms of such Shared Policies and any limitations or obligations of New D&B
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 New D&B Business
or, to the extent any claim is made against New D&B or any of its Subsidiaries,
the conduct of the RHD Business, and which
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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 Shared Policies.
(b) Assignment of Shared Policies. Subject to the terms and
conditions hereof, the Corporation hereby assigns, transfers and conveys to New
D&B all of the Corporation's right, title and interest in and to any and all of
the Shared Policies, including, without limitation, the right of indemnity, the
right to be defended by or at the expense of the insurer and the right to any
applicable Insurance Proceeds thereunder; and the Corporation and New D&B shall
use their commercially reasonable efforts to obtain any required consents of
insurers to the assignment contemplated by this paragraph.
SECTION 7.2. Post-Distribution Date Claims. If, subsequent to the
Distribution Date, any person shall assert a claim against New D&B or any of its
Subsidiaries (including, without limitation, where New D&B 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 New D&B Business or, to the extent any claim is made
against New D&B or any of its Subsidiaries (including, without limitation, where
New D&B or its Subsidiaries are joint defendants with other persons), in
connection with the conduct of the RHD 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 Shared Policies, the
Corporation 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, New
D&B as the agent and attorney-in-fact to assert and to collect any related
Insurance Proceeds under such Shared Policy.
SECTION 7.3. Administration; Other Matters. (a) Administration. From
and after the Distribution Date, New D&B shall be responsible for (i) Insurance
Administration of the Shared Policies and (ii) Claims Administration under such
Shared Policies with respect to RHD Liabilities and New D&B Liabilities;
provided that the assumption of such responsibilities by New 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; provided further that New D&B's assumption of the
administrative responsibilities for the Shared Policies shall not relieve the
party submitting any Insured Claim of the primary responsibility for reporting
such Insured Claim accurately, completely and in a timely manner or of such
party's authority to settle any such Insured Claim within any period permitted
or required by the relevant Policy; and provided further that all direct or
indirect communications with insurers relating to the Shared Policies shall be
conducted by New D&B. New 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 New D&B relating to Claims Administration and Insurance
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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 the Corporation and New D&B shall be responsible
for its own Claims Administration and Insurance Administration.
(b) Exceeding Policy Limits. Except as set forth in this Section
7.3(b), the Corporation and New D&B shall not be liable to one another for
claims not reimbursed by insurers for any reason not within the control of the
Corporation or New D&B, 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 the Corporation or New D&B or any defect in such claim or its processing,
provided that New 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 the Corporation as set forth in Schedule 7.3(b) hereto.
(c) Allocation of Insurance Proceeds. Insurance Proceeds received
with respect to claims, costs and expenses under the Shared Policies shall be
paid to New D&B, which shall thereafter administer the Shared Policies by paying
the Insurance Proceeds, as appropriate, to the Corporation with respect to RHD
Liabilities and to New D&B with respect to New D&B Liabilities. Payment of the
allocable portions of indemnity costs of Insurance Proceeds resulting from such
Policies will be made by New 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 both of the
parties hereto, the 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 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 both 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
the other party 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.
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(e) Effective as of the Distribution Date, each of New D&B and the
Corporation shall be responsible for its applicable 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 both of the parties hereto exist relating to
the same occurrence, the parties shall jointly defend and waive any conflict of
interest necessary to the conduct of the joint defense. Nothing in this Article
VII shall be construed to limit or otherwise alter in any way the obligations of
the parties to this Agreement, including those created by this Agreement, by
operation of law or otherwise.
SECTION 7.5. Cooperation. The parties agree to use their
commercially reasonable efforts to cooperate with respect to the various
insurance matters contemplated by this Agreement.
ARTICLE VIII. MISCELLANEOUS
SECTION 8.1. Complete Agreement; Construction. This Agreement,
including the Schedules and Exhibits, and the Ancillary Agreements shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter. In the event of any inconsistency
between this Agreement and any Schedule hereto, the Schedule shall prevail.
Other than Section 2.1(j), Section 2.7, Section 4.5 and Article VI, which shall
prevail over any inconsistent or conflicting provisions in any Ancillary
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 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.
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.
SECTION 8.5. Expenses. Except as set forth on Schedule 8.5 or 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 required implementation of this Agreement and any
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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 the Corporation. Except as set forth on Schedule 8.5
or as otherwise set forth in this Agreement or any Ancillary Agreement, all
costs and expenses incurred after the Distribution Date in connection with the
required implementation of this Agreement and any Ancillary Agreement, the
Distribution or the consummation of the transactions contemplated by this
Agreement or any Ancillary Agreement shall be borne by New 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 Corporation:
The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
To New D&B:
The Dun & Bradstreet Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: General Counsel
SECTION 8.7. Waivers. The failure of any party to require strict
performance by any other party of any provision in this Agreement will not waive
or diminish that party's right to demand strict performance thereafter of that
or any other provision hereof.
SECTION 8.8. Amendments. Subject to the terms of Section 8.11
hereof, this Agreement may not be modified or amended except by an agreement in
writing signed by each of the parties hereto.
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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) The Corporation will not distribute to its stockholders any
interest in any RHD Business Entity, by way of a spin-off distribution,
split-off or other exchange of interests in a RHD Business Entity for any
interest in the Corporation held by RHD stockholders, or any similar transaction
or transactions, unless the distributed RHD Business Entity undertakes to New
D&B to be jointly and severally liable for all RHD Liabilities hereunder.
(c) New D&B will not distribute to its stockholders any interest in
any New D&B Business Entity, by way of a spin-off distribution, split-off or
other exchange of interests in a New D&B Business Entity for any interest in New
D&B held by New D&B stockholders, or any similar transaction or transactions,
unless the distributed New D&B Business Entity undertakes to the Corporation to
be jointly and severally liable for all New D&B 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 the Corporation without the approval of New D&B or the
shareholders of the Corporation. In the event of such termination, no party
shall have any liability of any kind to any other party or any other person.
After the Distribution, this Agreement may not be terminated except by an
agreement in writing signed by the parties; provided, however, that 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.
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SECTION 8.15. Schedules and Exhibits. The Schedules and Exhibits
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. Subject to Article
VI hereof, each of the parties agrees to commence any action, suit or proceeding
relating hereto either in the United States District Court for the Southern
District of New York or if such suit, action or other proceeding may not be
brought in such court for jurisdictional reasons, in the Supreme Court of the
State of New York, New York County. Each of the parties further agrees that
service of any process, summons, notice or document by U.S. registered mail to
such party's respective address set forth above shall be effective service of
process for any action, suit or proceeding in New York with respect to any
matters to which it has submitted to jurisdiction in this Section 8.17. Each of
the parties irrevocably and unconditionally waives any objection to the laying
of venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (i) the Supreme Court of the State of New
York, New York County, or (ii) the United States District Court for the Southern
District of New York, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
SECTION 8.18. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the day and year first above written.
THE DUN & BRADSTREET CORPORATION
By:
-----------------------------
Name:
Title:
THE NEW DUN & BRADSTREET
CORPORATION
By:
-----------------------------
Name:
Title: