Exhibit 10.15
TIER-I
CHANGE-IN-CONTROL AGREEMENT
FOR CERTAIN EXECUTIVES
OF IMS HEALTH INCORPORATED
Date
PERSONAL AND CONFIDENTIAL
[FirstName]
[JobTitle]
[Company]
Dear [LastName]:
IMS Health Incorporated (the "Company") considers it essential to the best
interests of its stockholders to ▇▇▇▇▇▇ the continued employment of key
management personnel. In this connection, the Board of Directors of the Company
(the "Board") recognizes that the possibility of a change in ownership or
control of the Company may result in the departure or distraction of such
personnel to the detriment of the Company and its stockholders. As you are a
skilled and dedicated executive with important management responsibilities and
talents, the Company believes that its best interests will be served if you are
encouraged to remain with the Company.
The Company has determined that your ability to perform your
responsibilities and utilize your talents for the benefit of the Company, and
the Company's ability to retain you as an employee, will be significantly
enhanced if you are provided with fair and reasonable protection from the risks
of a change in ownership or control of the Company. Accordingly, in order to
induce you to remain in the employ of the Company, you and the Company agree as
follows:
1. Term of Agreement.
(a) Generally. Except as provided in Section 1(b) hereof, (i) this
Agreement shall be effective as of the date on which the shares of common stock
of the Company that are owned by Cognizant Corporation ("Cognizant") are
distributed to the holders of record of shares of Cognizant (July 1, 1998), and
shall continue in effect through December 31, 2001, and (ii) commencing on
January 1, 2002, and each January 1 thereafter, this Agreement shall be
automatically extended for one additional year unless, not later than September
30th of the preceding year, either party to this Agreement gives notice to the
other that the Agreement shall not be extended under this Section 1(a);
provided, however, that no such notice by the Company shall be effective if a
Change in Control or Potential Change in Control (both as defined herein) shall
have occurred prior to the date of such notice.
(b) Upon a Change in Control. If a Change in Control shall have occurred at
any time during the period in which this Agreement is effective, this Agreement
shall continue in effect for (i) the remainder of the month in which the Change
in Control occurred and (ii) a term of 24
months beyond the month in which such Change in Control occurred (such entire
period hereinafter referred to as the "Protected Period").
2. Change in Control; Potential Change in Control.
(a) A "Change in Control" shall be deemed to have occurred if, during the
term of this Agreement:
(i) any "Person," as such term is used for purposes of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") (other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any company
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the
Company), becomes the "Beneficial Owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's
then-outstanding securities;
(ii) during any period of twenty-four months (not including any period
prior to the effectiveness of this Agreement), individuals who at the
beginning of such period constitute the Board, and any new director (other
than (A) a director nominated by a Person who has entered into an agreement
with the Company to effect a transaction described in Sections (2)(a)(i),
(iii) or (iv) hereof, (B) a director nominated by any Person (including the
Company) who publicly announces an intention to take or to consider taking
actions (including, but not limited to, an actual or threatened proxy
contest) which if consummated would constitute a Change in Control or (C) a
director nominated by any Person who is the Beneficial Owner, directly or
indirectly, of securities of the Company representing 10% or more of the
combined voting power of the Company's securities) whose election by the
Board or nomination for election by the Company's stockholders was approved
in advance by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved, cease
for any reason to constitute at least a majority thereof;
(iii) the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or consolidated
with any other company, other than a merger or consolidation (A) which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 66 2/3% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation and (B) after which no Person holds 20%
or more of the combined voting power of the then-outstanding securities of
the Company or such surviving entity;
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets; or
(v) the Board adopts a resolution to the effect that, for purposes of
this Agreement, a Change in Control has occurred.
(b) A "Potential Change in Control" shall be deemed to have occurred if:
(i) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control;
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(ii) any Person (including the Company) publicly announces an
intention to take or to consider taking actions which if consummated would
constitute a Change in Control; or
(iii) the Board adopts a resolution to the effect that, for purposes
of this Agreement, a Potential Change in Control has occurred.
(c) Employee Covenants. You agree that, subject to the terms and conditions
of this Agreement, in the event of a Potential Change in Control, you will
remain in the employ of the Company until the earliest of (i) a date which is
180 days from the occurrence of such Potential Change in Control, (ii) the
termination of your employment by reason of Disability (as defined herein) or
(iii) the date on which you first become entitled under this Agreement to
receive the benefits provided in Section 3(b) hereof.
(d) Company Covenant Regarding Potential Change in Control. In the event of
a Potential Change in Control, the Company shall, not later than 15 days
thereafter, have established one or more rabbi trusts and shall deposit therein
cash in an amount sufficient to provide for full payment of all potential
obligations of the Company that would arise assuming consummation of a Change in
Control and a subsequent termination of your employment under Section 3(b). Such
rabbi trust(s) shall be irrevocable and shall provide that the Company may not,
directly or indirectly, use or recover any assets of the trust(s) until such
time as all obligations which potentially could arise hereunder have been
settled and paid in full, subject only to the claims of creditors of the Company
in the event of insolvency or bankruptcy of the Company.
3. Termination.
(a) Termination by the Company for Cause, by You Without Good Reason, or by
Reason of Death or Disability. If during the Protected Period your employment by
the Company is terminated by the Company for Cause, by you without Good Reason,
or because of your death or Disability, the Company shall be relieved of its
obligation to make any payments to you other than (i) its payment of amounts
otherwise accrued and owing but not yet paid and (ii) any amounts payable under
then-existing employee benefit programs at the time such amounts are due.
(b) Termination by the Company Without Cause or by You for Good Reason. If
during the Protected Period your employment by the Company is terminated by the
Company without cause or by you for Good Reason, you shall be entitled to the
compensation and benefits described in this Section 3(b). If your employment by
the Company is terminated prior to a Change in Control at the request of a
Person engaging in a transaction or series of transactions that would result in
a Change in Control, the Protected Period shall commence upon the subsequent
occurrence of a Change in Control, your actual termination shall be deemed a
termination occurring during the Protected Period and covered by this Section
3(b), your Date of Termination shall be deemed to have occurred immediately
following the Change in Control, and Notice of Termination shall be deemed to
have been given by the Company immediately prior to your actual termination.
Your continued employment shall not constitute consent to, or a waiver of rights
with respect to, any circumstances constituting Good Reason hereunder. The
compensation and benefits provided under this Section 3(b) are as follows:
(i) The Company shall pay you your full base salary through the Date
of Termination at the rate in effect at the time Notice of Termination is
given, no later than the fifth day following the Date of Termination, and
you shall receive all other amounts to which you are entitled under any
compensation or benefit plan of the Company, at the time such payments are
due.
(ii) At the time specified in Section 3(d) hereof, the Company shall
pay you, in lieu of any further salary, bonus or severance payments for
periods subsequent to the Date of Termination, a lump sum amount in cash
equal to three times the sum of:
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(A) the greater of (I) your annual base salary in effect
immediately prior to the Change in Control of the Company or (II) your
annual base salary in effect at the time Notice of Termination is
given; and
(B) the greater of (I) your annual target bonus for the year in
which the Change in Control occurs or, (II) if no such target bonus
has yet been determined for such year, your annual target bonus
actually earned by you in the year immediately preceding the year in
which the Change in Control occurs.
(iii) You shall be deemed fully vested under any nonqualified pension
plan of a type described in Section 201(2) of the Employee Retirement
Income Security Act of 1974, as amended, in which you participate at the
time of the Change in Control (except for any such plan established for the
sole purpose of restoring qualified pension benefits that were reduced due
to limitations imposed by Sections 415 and 401(a)(7) of the Internal
Revenue Code of 1986, as amended (the "Code")), and such nonqualified
pension plan shall be referred to as a "Covered Top-Hat Plan" for purposes
of this Section 3(b)(iii). The benefit to which you shall be entitled under
any Covered Top-Hat Plan (the "Covered Top-Hat Plan Benefit") shall be
determined using:
(A) the maximum credited service allowed to be taken into account
under the Covered Top-Hat Plan's benefit formula; and
(B) your salary and bonus taken into account under Section
3(b)(ii) hereof as your final average compensation.
Your Covered Top-Hat Plan benefit shall be payable upon the later of (A)
the date on which you turn 55 or (B) the date on which you terminate
employment from the Company. For purposes of calculating your Covered
Top-Hat Plan Benefit, you shall be deemed to have retired from the Company
at normal retirement age as if the Company had consented to such
retirement. Exhibit A to this Agreement sets forth an example of how the
compensation and benefits provided under this Section 3(b)(iii) shall be
determined.
(iv) At the time specified in Section 3(d) hereof, the Company shall
pay to you, in lieu of amounts which may otherwise be payable to you under
any bonus plan (a "Bonus Plan"), an amount in cash equal to (A) your annual
target bonus for the year in which the Change in Control occurs, multiplied
by a fraction, (I) the numerator of which equals the number of full or
partial days in such annual performance period during which you were
employed by the Company and (II) the denominator of which is 365, and (B)
the entire target bonus opportunity with respect to each performance period
in progress under all other Bonus Plans in effect at the time of
termination. Notwithstanding the foregoing, this Section 3(b)(iv) shall not
apply with respect to any amounts which may otherwise be payable to you
under the Company's Senior Executive Incentive Plan or any other Bonus Plan
of the Company that applies primarily to "covered employees" within the
meaning of Section 162(m) of the Code.
(v) The Company shall provide you with a cash allowance, at the time
specified in Section 3(d) hereof, for outplacement and job search
activities (including, but not limited to, office and secretarial expenses)
in the amount of 20% of your annual base salary and annual target bonus
taken into account under Section 3(b)(ii) hereof, provided that (A) such
cash allowance shall not exceed $100,000 and (B) such cash allowance shall
apply only to those costs or obligations that are incurred by you during
the 36-month period following your termination of employment.
(vi) For a 36-month period following your termination of employment,
the Company shall arrange to provide you with life and health insurance
benefits no less favorable than those which you were receiving immediately
prior to the Notice of Termination. Notwithstanding the foregoing, any
benefit described in the preceding sentence shall constitute
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secondary coverage with respect to any life and health insurance benefits
actually received by you in connection with any subsequent employment (or
self-employment) during the 36-month period following your termination.
(vii) Starting at age 55, you shall receive retiree medical and life
benefits from the Company. Such benefits shall be no less favorable than
the benefits that you would have received had you, at the time Notice of
Termination is given, both (A) attained age 55 and (B) retired from the
Company. Notwithstanding the foregoing, any benefit described in the
preceding sentence shall constitute secondary coverage with respect to
retiree medical and life benefits actually received by you in connection
with any subsequent employment (or self-employment) following your
termination.
(c) Excise Tax. In the event you become entitled to any amounts payable in
connection with a Change in Control (whether or not such amounts are payable
pursuant to this Agreement) (the "Severance Payments"), if any of such Severance
Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of
the Code (or any similar federal, state or local tax that may hereafter be
imposed), the Company shall pay to you at the time specified in Section 3(d)
hereof an additional amount (the "Gross-Up Payment") such that the net amount
retained by you, after deduction of any Excise Tax on the Total Payments (as
hereinafter defined) and any federal, state and local income tax and Excise Tax
upon the payment provided for by this Section 3(c), shall be equal to the Total
Payments. For purposes of determining whether any of the Severance Payments will
be subject to the Excise Tax and the amount of such Excise Tax: (i) any other
payments or benefits received or to be received by you in connection with a
Change in Control or your termination of employment (whether pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Company, any Person whose actions result in a Change in Control or any Person
affiliated with the Company or such Person) (which, together with the Severance
Payments, constitute the "Total Payments") shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax, unless in the opinion of
nationally-recognized tax counsel selected by you such other payments or
benefits (in whole or in part) do not constitute parachute payments, or such
excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code in excess of the base amount within the meaning of
Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax;
(ii) the amount of the Total Payments which shall be treated as subject to the
Excise Tax shall be equal to the lesser of (A) the total amount of the Total
Payments and (B) the amount of excess parachute payments within the meaning of
Section 280G(b)(1) of the Code (after applying Section 3(c)(i) hereof); and
(iii) the value of any non-cash benefits or any deferred payments or benefit
shall be determined by a nationally-recognized accounting firm selected by you
in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, you shall be
deemed to pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Gross-Up Payment is to be made
and state and local income taxes at the highest marginal rate of taxation in the
state and locality of your residence on the Date of Termination, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
of termination of your employment, you shall repay to the Company within ten
days after the time that the amount of such reduction in Excise Tax is finally
determined the portion of the Gross-Up Payment attributable to such reduction
(plus the portion of the Gross-Up Payment attributable to the Excise Tax and
federal and state and local income tax imposed on the Gross-Up Payment being
repaid by you if such repayment results in a reduction in Excise Tax and/or
federal and state and local income tax deduction) plus interest on the amount of
such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the
event that the Excise Tax is determined to exceed the amount taken into account
hereunder at the time of the termination of your employment (including by reason
of any payment the existence or amount of which cannot be determined at the time
of the Gross-Up Payment), the Company shall make an
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additional gross-up payment in respect of such excess within ten days after the
time that the amount of such excess is finally determined.
(d) Time of Payment. The payments provided for in Sections 3(b)(ii),
3(b)(iv) and 3(c) hereof shall be made not later than the fifteenth day
following the Date of Termination; provided, however, that if the amount of such
payments cannot be finally determined on or before such day, the Company shall
pay to you on such day an estimate, as determined in good faith by the Company,
of the minimum amount of such payments and shall pay the remainder of such
payments (together with interest at the rate provided in Section 1274(b)(2)(B)
of the Code) as soon as the amount thereof can be determined but in no event
later than the thirtieth day after the Date of Termination. In the event that
the amount of the estimated payments exceeds the amount subsequently determined
to have been due, such excess shall constitute a loan by the Company to you,
payable on the fifteenth day after the demand by the Company (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code). The
payments provided in Section 3(b)(v) hereof shall be made not later than the
fifteenth day following the submission of each receipt to the Company evidencing
costs or obligations incurred by you in connection with outplacement counseling
and job search activities.
(e) Notice. During the Protected Period, any purported termination of your
employment by the Company or by you shall be communicated by written Notice of
Termination to the other party hereto.
(f) Certain Definitions. Except as otherwise indicated in this Agreement,
all definitions in this Section 3(f) shall be applicable during the Protected
Period only.
(i) Disability. "Disability" shall mean your absence from the
full-time performance of your duties with the Company for six consecutive
months as a result of your incapacity due to physical or mental illness or
disability, and within 30 days after written Notice of Termination is
thereafter given you shall not have returned to the full-time performance
of your duties.
(ii) Cause. "Cause" shall mean termination on account of (A) the
willful and continued failure by you to substantially perform your duties
with the Company (other than any such failure resulting from your
incapacity due to physical or mental illness or disability or any failure
after the issuance of a Notice of Termination by you for Good Reason) which
failure is demonstrably and materially damaging to the financial condition
or reputation of the Company and/or its subsidiaries, and which failure
continues more than 48 hours after a written demand for substantial
performance is delivered to you by the Board, which demand specifically
identifies the manner in which the Board believes that you have not
substantially performed your duties or (B) the willful engaging by you in
conduct which is demonstrably and materially injurious to the Company,
monetarily or otherwise. No act, or failure to act, on your part shall be
deemed "willful" unless done, or omitted to be done, by you not in good
faith and without reasonable belief that your action or omission was in the
best interest of the Company. Notwithstanding the foregoing, you shall not
be deemed to have been terminated for Cause unless and until there shall
have been delivered to you a copy of the resolution duly adopted by the
affirmative vote of not less than three-quarters (3/4) off the entire
membership of the Board at a meeting of the Board (after reasonable notice
to you and an opportunity for you, together with your counsel, to be heard
before the Board) finding that, in the good faith opinion of the Board, you
were guilty of conduct set forth above in this Section 3(f)(ii) and
specifying the particulars thereof in detail.
(iii) Good Reason. "Good Reason" shall mean, without your express
written consent, the occurrence upon or after a Change in Control of any of
the following circumstances unless, in the case of Sections 3(f)(iii)(A),
(E), (F) or (G) hereof, such circumstances are fully corrected prior to the
Date of Termination specified in the Notice of Termination given in respect
thereof:
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(A) the assignment to you of any duties inconsistent with the
position in the Company that you held immediately prior to the Change
in Control, or an adverse alteration in the nature or status of your
responsibilities or the conditions of your employment from those in
effect immediately prior to such Change in Control; for this purpose,
if, at the time of the Change in Control, you held the office of Chief
Executive Officer of the Company, it shall constitute duties
inconsistent with such position if you shall be required to report to
and take direction from anyone other than the Board of Directors of
the Company, and if, at the time of the Change in Control, you held
the office of Chief Operating Officer of the Company, it shall
constitute duties inconsistent with such position if you shall be
required to report to and take direction from anyone other than the
Board of Directors or the Chief Executive Officer of the Company;
(B) a reduction by the Company in your annual base salary, any
target bonus or perquisites as in effect immediately prior to the
Change in Control or as the same may be increased from time to time
except for across-the-board perquisite reductions similarly affecting
all senior executives of the Company and all senior executives of any
Person in control of the Company;
(C) the relocation of the principle place of your employment to a
location outside of (I) New York City, (II) Westchester County, New
York, (III) Fairfield County, Connecticut (IV) ▇▇▇▇▇▇▇▇▇▇ County,
Pennsylvania or (V) Passaic County, New Jersey; except for required
travel on the Company's business to an extent substantially consistent
with your business travel obligations prior to the Change in Control;
(D) the failure by the Company to pay to you any portion of your
compensation or to pay to you any portion of an installment of
deferred compensation under any deferred compensation program of the
Company within seven days of the date such compensation is due;
(E) the failure by the Company to continue in effect any material
compensation or benefit plan in which you participated immediately
prior to the Change in Control, unless an equitable arrangement
(embodied in an ongoing substitute or alternative plan) has been made
with respect to such plan, or the failure by the Company to continue
your participation therein (or in such substitute or alternative plan)
on a basis not materially less favorable, both in terms of the amounts
of benefits provided and the level of your participation relative to
other participants, as existed at the time of the Change in Control;
(F) the failure of the Company to obtain a satisfactory agreement
from any successor to assume and agree to perform this Agreement, as
contemplated in Section 6 hereof; or
(G) any purported termination of your employment that is not
effected pursuant to a Notice of Termination satisfying the
requirements of Section 3(f)(iv) hereof (and, if applicable, the
requirements of Section 3(f)(ii) hereof), which purported termination
shall not be effective for purposes of this Agreement.
(iv) Notice of Termination. "Notice of Termination" shall mean notice
indicating the specific termination provision in this Agreement relied upon
and setting forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of your employment under the provision
so indicated.
(v) Date of Termination. "Date of Termination" shall mean (A) if your
employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the
full-time performance of your duties during such 30-day period) or (B) if
your employment is terminated for any other reason, the date specified in
the Notice of
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Termination (which, in the case of a termination for Cause, shall not be
less than 30 days from the date such Notice of Termination is given and, in
the case of a termination for Good Reason, shall not be less than 15 nor
more than 60 days from the date such Notice of Termination is given).
4. Mitigation. Except as provided in Section 3(b)(vi) and (vii) hereof, you
shall not be required to mitigate the amount of payment provided for under this
Agreement by seeking other employment or otherwise, nor shall the amount of
payment or benefit provided for under this Agreement be reduced by any
compensation earned by you as the result of employment by another employer, by
retirement benefits, by offset against any amount claimed to be owed by you to
the Company, or otherwise.
5. Costs of Proceedings. The Company shall pay all costs and expenses,
including all attorneys' fees and disbursements, of the Company and, at least
monthly, you in connection with any legal proceedings, whether or not instituted
by the Company or you, relating to the interpretation or enforcement of any
provision of this Agreement; provided that if you instituted the proceeding and
a finding (no longer subject to appeal) is entered that you instituted the
proceeding in bad faith, you shall pay all of your costs and expenses, including
attorneys' fees and disbursements. The Company shall pay prejudgment interest on
any money judgment obtained by you as a result of such proceeding, calculated at
the prime rate of The Chase Manhattan Bank as in effect from time to time from
the date that payment should have been made to you under this Agreement.
6. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to expressly assume and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by you
and your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. In the event of your
death, all amounts otherwise payable to you hereunder shall, unless otherwise
provided herein, be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, if there is no such designee, to your
estate.
7. Notice. Notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
(a) personally delivered or (b) mailed by United States certified or registered
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the first page of this Agreement; provided that all
notice to the Company shall be directed to the attention of the Board with a
copy to the General Counsel of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon receipt.
8. Miscellaneous. No provision of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing
and signed by you and such officer as may be designated by the Board. No waiver
by either party hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the time or at any prior or subsequent time. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of New York without regard to its conflicts of law
principles. All references to sections of the
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Exchange Act or the Code shall be deemed also to refer to any successor
provisions to such sections. Any payments provided for hereunder shall be paid
net of any applicable withholding required under federal, state or local law.
The obligations of the Company under this Agreement shall survive the expiration
of this Agreement to the extent necessary to give effect to this Agreement.
9. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
10. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
11. Entire Agreement. This Agreement sets forth the entire agreement of the
parties hereto in respect of the subject matter contained herein and during the
term of this Agreement supersedes the provisions of all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereof with respect to the subject matter contained herein. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. Notwithstanding anything to the
contrary in this Agreement, the procedural provisions of this Agreement shall
apply to all benefits payable as a result of a Change in Control (or other
change in control) under any employee benefit plan, agreement, program, policy
or arrangement of the Company.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter, which
will then constitute our agreement on this subject.
IMS HEALTH INCORPORATED
By: _______________________________________
[Chairman and Chief Executive Officer]
or
[President and Chief Operating Officer]
Agreed to this ____________________ day
of ____________________________, 199[ ].
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Name
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EXHIBIT A
Covered Top Hat Plan
Sample Illustration
Name of Participant Sample Employee
Social Security Number ▇▇▇-▇▇-▇▇▇▇
Date of Birth 01/01/48
Date of Hire 01/01/91
Current Age 50
Calculation as of: 01/01/98 01/01/98
No Change Change in
in Control Control
---------- -------
1) Final Average 250,000 300,000
Earnings*
2) Credited Service 7 15
(for Covered Top
Hat Plan)
3) Benefit 35% 60%
Percentage
(5% x (2) up to
10 years of
service plus 2%
x (2) from 10 to
15 years of
service)
4) Total Gross 87,500 180,000
Benefit
((1) x (3))
5) Retirement Plan 9,400 9,400
Offset **
6) Social Security 6,700 6,700
Benefit Offset
7) Accrued Covered 71,400 163,900
Top Hat Plan
Benefit
((4) - (5) - (6))
8) Early Retirement 50% 100%
Reduction
Factor***
9) Vested 100% 100%
Percentage ****
10) Vested Covered 35,700 163,900
Top Hat Plan
Benefit
((7) x (8) x (9))
*****
10
----------
* The calculations based on "No Change in Control" reflect the terms of the
proposed covered top hat plan including five-year final average earnings;
"Change in Control" calculations are based on earnings as determined
under Section 3(b)(ii) of the Agreement.
** The retirement plan offset is based on the terms of Cognizant's current
Master Retirement Plan. It is equal to the vested benefit payable from
that plan. For participants with less than 5 years of service, the vested
benefit is 0.
*** If a participant terminates prior to retirement eligibility (age 55 and
10 years of service) and without the Corporation's consent, benefits are
reduced 10% for each year that commencement precedes age 60.
**** "No Change in Control" calculations reflect full vesting after 5 years;
"Change in Control" calculations reflect automatic 100% vesting
regardless of service.
***** Annual benefit payable for life starting at age 55, or immediately if
over age 55.
11
TIER-2
CHANGE-IN-CONTROL AGREEMENT
FOR CERTAIN EXECUTIVES
OF IMS HEALTH INCORPORATED
Date
PERSONAL AND CONFIDENTIAL
[FirstName]
[JobTitle]
[Company]
Dear [LastName]:
IMS Health Incorporated (the "Company") considers it essential to the
best interests of its stockholders to ▇▇▇▇▇▇ the continued employment of key
management personnel. In this connection, the Board of Directors of the Company
(the "Board") recognizes that the possibility of a change in ownership or
control of the Company may result in the departure or distraction of such
personnel to the detriment of the Company and its stockholders. As you are a
skilled and dedicated executive with important management responsibilities and
talents, the Company believes that its best interests will be served if you are
encouraged to remain with the Company.
The Company has determined that your ability to perform your
responsibilities and utilize your talents for the benefit of the Company, and
the Company's ability to retain you as an employee, will be significantly
enhanced if you are provided with fair and reasonable protection from the risks
of a change in ownership or control of the Company. Accordingly, in order to
induce you to remain in the employ of the Company, you and the Company agree as
follows:
1. Term of Agreement.
(a) Generally. Except as provided in Section 1(b) hereof, (i) this
Agreement shall be effective as of the date on which the shares of common stock
of the Company that are owned by Cognizant Corporation ("Cognizant") are
distributed to the holders of record of shares of Cognizant (July 1, 1998), and
shall continue in effect through December 31, 2001, and (ii) commencing on
January 1, 2002, and each January 1 thereafter, this Agreement shall be
automatically extended for one additional year unless, not later than September
30th of the preceding year, either party to this Agreement gives notice to the
other that the Agreement shall not be extended under this Section 1(a);
provided, however, that no such notice by the Company shall be effective if a
Change in Control or Potential Change in Control (both as defined herein) shall
have occurred prior to the date of such notice.
(b) Upon a Change in Control. If a Change in Control shall have occurred
at any time during the period in which this Agreement is effective, this
Agreement shall continue in effect for (i) the remainder of the month in which
the Change in Control occurred and (ii) a term of 24 months beyond the month in
which such Change in Control occurred (such entire period hereinafter referred
to as the "Protected Period").
2. Change in Control; Potential Change in Control.
12
(a) A "Change in Control" shall be deemed to have occurred if, during the
term of this Agreement:
(i) any "Person," as such term is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than the Company, any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, or any
company owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the
Company), becomes the "Beneficial Owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's
then-outstanding securities;
(ii) during any period of twenty-four months (not including any
period prior to the effectiveness of this Agreement), individuals who at
the beginning of such period constitute the Board, and any new director
(other than (A) a director nominated by a Person who has entered into an
agreement with the Company to effect a transaction described in Sections
(2)(a)(i), (iii) or (iv) hereof, (B) a director nominated by any Person
(including the Company) who publicly announces an intention to take or to
consider taking actions (including, but not limited to, an actual or
threatened proxy contest) which if consummated would constitute a Change
in Control or (C) a director nominated by any Person who is the
Beneficial Owner, directly or indirectly, of securities of the Company
representing 10% or more of the combined voting power of the Company's
securities) whose election by the Board or nomination for election by the
Company's stockholders was approved in advance by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to
constitute at least a majority thereof;
(iii) the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or consolidated
with any other company, other than a merger or consolidation (A) which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 66 2/3% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation and (B) after which no
Person holds 20% or more of the combined voting power of the
then-outstanding securities of the Company or such surviving entity;
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets; or
(v) the Board adopts a resolution to the effect that, for purposes
of this Agreement, a Change in Control has occurred.
(b) A "Potential Change in Control" shall be deemed to have occurred if:
(i) the Company enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control;
(ii) any Person (including the Company) publicly announces an
intention to take or to consider taking actions which if consummated
would constitute a Change in Control; or
(iii) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
13
(c) Employee Covenants. You agree that, subject to the terms and
conditions of this Agreement, in the event of a Potential Change in Control, you
will remain in the employ of the Company until the earliest of (i) a date which
is 180 days from the occurrence of such Potential Change in Control, (ii) the
termination of your employment by reason of Disability (as defined herein) or
(iii) the date on which you first become entitled under this Agreement to
receive the benefits provided in Section 3(b) hereof.
(d) Company Covenant Regarding Potential Change in Control. In the event
of a Potential Change in Control, the Company shall, not later than 15 days
thereafter, have established one or more rabbi trusts and shall deposit therein
cash in an amount sufficient to provide for full payment of all potential
obligations of the Company that would arise assuming consummation of a Change in
Control and a subsequent termination of your employment under Section 3(b). Such
rabbi trust(s) shall be irrevocable and shall provide that the Company may not,
directly or indirectly, use or recover any assets of the trust(s) until such
time as all obligations which potentially could arise hereunder have been
settled and paid in full, subject only to the claims of creditors of the Company
in the event of insolvency or bankruptcy of the Company.
3. Termination.
(a) Termination by the Company for Cause, by You Without Good Reason, or
by Reason of Death or Disability. If during the Protected Period your employment
by the Company is terminated by the Company for Cause, by you without Good
Reason, or because of your death or Disability, the Company shall be relieved of
its obligation to make any payments to you other than (i) its payment of amounts
otherwise accrued and owing but not yet paid and (ii) any amounts payable under
then-existing employee benefit programs at the time such amounts are due.
(b) Termination by the Company Without Cause or by You for Good Reason.
If during the Protected Period your employment by the Company is terminated by
the Company without cause or by you for Good Reason, you shall be entitled to
the compensation and benefits described in this Section 3(b). If your employment
by the Company is terminated prior to a Change in Control at the request of a
Person engaging in a transaction or series of transactions that would result in
a Change in Control, the Protected Period shall commence upon the subsequent
occurrence of a Change in Control, your actual termination shall be deemed a
termination occurring during the Protected Period and covered by this Section
3(b), your Date of Termination shall be deemed to have occurred immediately
following the Change in Control, and Notice of Termination shall be deemed to
have been given by the Company immediately prior to your actual termination.
Your continued employment shall not constitute consent to, or a waiver of rights
with respect to, any circumstances constituting Good Reason hereunder. The
compensation and benefits provided under this Section 3(b) are as follows:
(i) The Company shall pay you your full base salary through the
Date of Termination at the rate in effect at the time Notice of
Termination is given, no later than the fifth day following the Date of
Termination, and you shall receive all other amounts to which you are
entitled under any compensation or benefit plan of the Company, at the
time such payments are due.
(ii) At the time specified in Section 3(d) hereof, the Company
shall pay you, in lieu of any further salary, bonus or severance payments
for periods subsequent to the Date of Termination, a lump sum amount in
cash equal to three times the sum of:
(A) the greater of (I) your annual base salary in effect
immediately prior to the Change in Control of the Company or (II)
your annual base salary in effect at the time Notice of
Termination is given; and
14
(B) the greater of (I) your annual target bonus for the
year in which the Change in Control occurs or, (II) if no such
target bonus has yet been determined for such year, your annual
target bonus actually earned by you in the year immediately
preceding the year in which the Change in Control occurs.
(iii) At the time specified in Section 3(d) hereof, the Company
shall pay to you, in lieu of amounts which may otherwise be payable to
you under any bonus plan (a "Bonus Plan"), an amount in cash equal to (A)
your annual target bonus for the year in which the Change in Control
occurs, multiplied by a fraction, (I) the numerator of which equals the
number of full or partial days in such annual performance period during
which you were employed by the Company and (II) the denominator of which
is 365, and (B) the entire target bonus opportunity with respect to each
performance period in progress under all other Bonus Plans in effect at
the time of termination. Notwithstanding the foregoing, this Section
3(b)(iii) shall not apply with respect to any amounts which may otherwise
be payable to you under the Company's Senior Executive Incentive Plan or
any other Bonus Plan of the Company that applies primarily to "covered
employees" within the meaning of Section 162(m) of the Code.
(iv) The Company shall provide you with a cash allowance, at the
time specified in Section 3(d) hereof, for outplacement and job search
activities (including, but not limited to, office and secretarial
expenses) in the amount of 20% of your annual base salary and annual
target bonus taken into account under Section 3(b)(ii) hereof, provided
that (A) such cash allowance shall not exceed $100,000 and (B) such cash
allowance shall apply only to those costs or obligations that are
incurred by you during the 36-month period following your termination of
employment.
(v) For a 36-month period following your termination of
employment, the Company shall arrange to provide you with life and health
insurance benefits no less favorable than those which you were receiving
immediately prior to the Notice of Termination. Notwithstanding the
foregoing, any benefit described in the preceding sentence shall
constitute secondary coverage with respect to any life and health
insurance benefits actually received by you in connection with any
subsequent employment (or self-employment) during the 36-month period
following your termination.
(vi) Starting at age 55, you shall receive retiree medical and
life benefits from the Company. Such benefits shall be no less favorable
than the benefits that you would have received had you, at the time
Notice of Termination is given, both (A) attained age 55 and (B) retired
from the Company. Notwithstanding the foregoing, any benefit described in
the preceding sentence shall constitute secondary coverage with respect
to retiree medical and life benefits actually received by you in
connection with any subsequent employment (or self-employment) following
your termination.
(c) Excise Tax. In the event you become entitled to any amounts payable
in connection with a Change in Control (whether or not such amounts are payable
pursuant to this Agreement) (the "Severance Payments"), if any of such Severance
Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of
the Code (or any similar federal, state or local tax that may hereafter be
imposed), the Company shall pay to you at the time specified in Section 3(d)
hereof an additional amount (the "Gross-Up Payment") such that the net amount
retained by you, after deduction of any Excise Tax on the Total Payments (as
hereinafter defined) and any federal, state and local income tax and Excise Tax
upon the payment provided for by this Section 3(c), shall be equal to the Total
Payments. For purposes of determining whether any of the Severance Payments will
be subject to the Excise Tax and the amount of such Excise Tax: (i) any other
payments or benefits received or to be received by you in connection with a
Change in Control or your termination of employment (whether pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Company, any Person whose actions result in a Change in Control or any Person
affiliated with the Company or such Person) (which, together with the Severance
Payments, constitute the "Total Payments") shall be treated as "parachute
15
payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax, unless in the opinion of
nationally-recognized tax counsel selected by you such other payments or
benefits (in whole or in part) do not constitute parachute payments, or such
excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code in excess of the base amount within the meaning of
Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax;
(ii) the amount of the Total Payments which shall be treated as subject to the
Excise Tax shall be equal to the lesser of (A) the total amount of the Total
Payments and (B) the amount of excess parachute payments within the meaning of
Section 280G(b)(1) of the Code (after applying Section 3(c)(i) hereof); and
(iii) the value of any non-cash benefits or any deferred payments or benefit
shall be determined by a nationally-recognized accounting firm selected by you
in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, you shall be
deemed to pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Gross-Up Payment is to be made
and state and local income taxes at the highest marginal rate of taxation in the
state and locality of your residence on the Date of Termination, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
of termination of your employment, you shall repay to the Company within ten
days after the time that the amount of such reduction in Excise Tax is finally
determined the portion of the Gross-Up Payment attributable to such reduction
(plus the portion of the Gross-Up Payment attributable to the Excise Tax and
federal and state and local income tax imposed on the Gross-Up Payment being
repaid by you if such repayment results in a reduction in Excise Tax and/or
federal and state and local income tax deduction) plus interest on the amount of
such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the
event that the Excise Tax is determined to exceed the amount taken into account
hereunder at the time of the termination of your employment (including by reason
of any payment the existence or amount of which cannot be determined at the time
of the Gross-Up Payment), the Company shall make an additional gross-up payment
in respect of such excess within ten days after the time that the amount of such
excess is finally determined.
(d) Time of Payment. The payments provided for in Sections 3(b)(ii),
3(b)(iii) and 3(c) hereof shall be made not later than the fifteenth day
following the Date of Termination; provided, however, that if the amount of such
payments cannot be finally determined on or before such day, the Company shall
pay to you on such day an estimate, as determined in good faith by the Company,
of the minimum amount of such payments and shall pay the remainder of such
payments (together with interest at the rate provided in Section 1274(b)(2)(B)
of the Code) as soon as the amount thereof can be determined but in no event
later than the thirtieth day after the Date of Termination. In the event that
the amount of the estimated payments exceeds the amount subsequently determined
to have been due, such excess shall constitute a loan by the Company to you,
payable on the fifteenth day after the demand by the Company (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code). The
payments provided in Section 3(b)(iv) hereof shall be made not later than the
fifteenth day following the submission of each receipt to the Company evidencing
costs or obligations incurred by you in connection with outplacement counseling
and job search activities.
(e) Notice. During the Protected Period, any purported termination of
your employment by the Company or by you shall be communicated by written Notice
of Termination to the other party hereto.
(f) Certain Definitions. Except as otherwise indicated in this Agreement,
all definitions in this Section 3(f) shall be applicable during the Protected
Period only.
(i) Disability. "Disability" shall mean your absence from the
full-time performance of your duties with the Company for six consecutive
months as a result of your
16
incapacity due to physical or mental illness or disability, and within 30
days after written Notice of Termination is thereafter given you shall
not have returned to the full-time performance of your duties.
(ii) Cause. "Cause" shall mean termination on account of (A) the
willful and continued failure by you to substantially perform your duties
with the Company (other than any such failure resulting from your
incapacity due to physical or mental illness or disability or any failure
after the issuance of a Notice of Termination by you for Good Reason)
which failure is demonstrably and materially damaging to the financial
condition or reputation of the Company and/or its subsidiaries, and which
failure continues more than 48 hours after a written demand for
substantial performance is delivered to you by the Board, which demand
specifically identifies the manner in which the Board believes that you
have not substantially performed your duties or (B) the willful engaging
by you in conduct which is demonstrably and materially injurious to the
Company, monetarily or otherwise. No act, or failure to act, on your part
shall be deemed "willful" unless done, or omitted to be done, by you not
in good faith and without reasonable belief that your action or omission
was in the best interest of the Company. Notwithstanding the foregoing,
you shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to you a copy of the resolution
duly adopted by the affirmative vote of not less than three-quarters
(3/4) off the entire membership of the Board at a meeting of the Board
(after reasonable notice to you and an opportunity for you, together with
your counsel, to be heard before the Board) finding that, in the good
faith opinion of the Board, you were guilty of conduct set forth above in
this Section 3(f)(ii) and specifying the particulars thereof in detail.
(iii) Good Reason. "Good Reason" shall mean, without your express
written consent, the occurrence upon or after a Change in Control of any
of the following circumstances unless, in the case of Sections
3(f)(iii)(A), (E), (F) or (G) hereof, such circumstances are fully
corrected prior to the Date of Termination specified in the Notice of
Termination given in respect thereof:
(A) the assignment to you of any duties inconsistent with
the position in the Company that you held immediately prior to the
Change in Control, or an adverse alteration in the nature or
status of your responsibilities or the conditions of your
employment from those in effect immediately prior to such Change
in Control;
(B) a reduction by the Company in your annual base salary,
any target bonus or perquisites as in effect immediately prior to
the Change in Control or as the same may be increased from time to
time except for across-the-board perquisite reductions similarly
affecting all senior executives of the Company and all senior
executives of any Person in control of the Company;
(C) the relocation of the principle place of your
employment to a location more than 50 miles from the location of
such place of employment on the date of this Agreement; except for
required travel on the Company's business to an extent
substantially consistent with your business travel obligations
prior to the Change in Control;
(D) the failure by the Company to pay to you any portion of
your compensation or to pay to you any portion of an installment
of deferred compensation under any deferred compensation program
of the Company within seven days of the date such compensation is
due;
(E) the failure by the Company to continue in effect any
material compensation or benefit plan in which you participated
immediately prior to the Change in Control, unless an equitable
arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan, or the failure by
the Company to continue your participation therein (or in such
substitute or alternative plan) on a basis not materially
17
less favorable, both in terms of the amounts of benefits provided
and the level of your participation relative to other
participants, as existed at the time of the Change in Control;
(F) the failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement, as contemplated in Section 6 hereof; or
(G) any purported termination of your employment that is
not effected pursuant to a Notice of Termination satisfying the
requirements of Section 3(f)(iv) hereof (and, if applicable, the
requirements of Section 3(f)(ii) hereof), which purported
termination shall not be effective for purposes of this Agreement.
(iv) Notice of Termination. "Notice of Termination" shall mean
notice indicating the specific termination provision in this Agreement
relied upon and setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your
employment under the provision so indicated.
(v) Date of Termination. "Date of Termination" shall mean (A) if
your employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the
full-time performance of your duties during such 30-day period) or (B) if
your employment is terminated for any other reason, the date specified in
the Notice of Termination (which, in the case of a termination for Cause,
shall not be less than 30 days from the date such Notice of Termination
is given and, in the case of a termination for Good Reason, shall not be
less than 15 nor more than 60 days from the date such Notice of
Termination is given).
4. Mitigation. Except as provided in Section 3(b)(v) and (vi) hereof, you
shall not be required to mitigate the amount of payment provided for under this
Agreement by seeking other employment or otherwise, nor shall the amount of
payment or benefit provided for under this Agreement be reduced by any
compensation earned by you as the result of employment by another employer, by
retirement benefits, by offset against any amount claimed to be owed by you to
the Company, or otherwise.
5. Costs of Proceedings. The Company shall pay all costs and expenses,
including all attorneys' fees and disbursements, of the Company and, at least
monthly, you in connection with any legal proceedings, whether or not instituted
by the Company or you, relating to the interpretation or enforcement of any
provision of this Agreement; provided that if you instituted the proceeding and
a finding (no longer subject to appeal) is entered that you instituted the
proceeding in bad faith, you shall pay all of your costs and expenses, including
attorneys' fees and disbursements. The Company shall pay prejudgment interest on
any money judgment obtained by you as a result of such proceeding, calculated at
the prime rate of The Chase Manhattan Bank as in effect from time to time from
the date that payment should have been made to you under this Agreement.
6. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
As used in this Agreement, "Company" shall mean the Company as hereinbefore
defined and any successor to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement by operation of law, or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by
you and your personal or legal representatives, executors, administrators,
successors, heirs, distributees,
18
devisees and legatees. In the event of your death, all amounts otherwise payable
to you hereunder shall, unless otherwise provided herein, be paid in accordance
with the terms of this Agreement to your devisee, legatee or other designee or,
if there is no such designee, to your estate.
7. Notice. Notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
(a) personally delivered or (b) mailed by United States certified or registered
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the first page of this Agreement; provided that all
notice to the Company shall be directed to the attention of the Board with a
copy to the General Counsel of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon receipt.
8. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by you and such officer as may be designated by the Board. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the time or at any prior or subsequent
time. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of New York without regard
to its conflicts of law principles. All references to sections of the Exchange
Act or the Code shall be deemed also to refer to any successor provisions to
such sections. Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local law. The
obligations of the Company under this Agreement shall survive the expiration of
this Agreement to the extent necessary to give effect to this Agreement.
9. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
10. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
11. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and during
the term of this Agreement supersedes the provisions of all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereof with respect to the subject matter contained herein. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. Notwithstanding anything to the
contrary in this Agreement, the procedural provisions of this Agreement shall
apply to all benefits payable as a result of a Change in Control (or other
change in control) under any employee benefit plan, agreement, program, policy
or arrangement of the Company.
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter, which
will then constitute our agreement on this subject.
IMS HEALTH INCORPORATED
By: _______________________________________
[Chairman and Chief Executive Officer]
19
or
[President and Chief Operating Officer]
Agreed to this ____________________ day
of ____________________________, 1997.
---------------------------------------
Name
20
TIER-3
CHANGE-IN-CONTROL AGREEMENT
FOR CERTAIN EXECUTIVES
OF IMS HEALTH INCORPORATED
Date
PERSONAL AND CONFIDENTIAL
[FirstName]
[JobTitle]
[Company]
Dear [LastName]:
IMS Health Incorporated (the "Company") considers it essential to the
best interests of its stockholders to ▇▇▇▇▇▇ the continued employment of key
management personnel. In this connection, the Board of Directors of the Company
(the "Board") recognizes that the possibility of a change in ownership or
control of the Company may result in the departure or distraction of such
personnel to the detriment of the Company and its stockholders. As you are a
skilled and dedicated executive with important management responsibilities and
talents, the Company believes that its best interests will be served if you are
encouraged to remain with the Company.
The Company has determined that your ability to perform your
responsibilities and utilize your talents for the benefit of the Company, and
the Company's ability to retain you as an employee, will be significantly
enhanced if you are provided with fair and reasonable protection from the risks
of a change in ownership or control of the Company. Accordingly, in order to
induce you to remain in the employ of the Company, you and the Company agree as
follows:
1. Term of Agreement.
(a) Generally. Except as provided in Section 1(b) hereof, (i) this
Agreement shall be effective as of the date on which the shares of common stock
of the Company that are owned by Cognizant Corporation ("Cognizant") are
distributed to the holders of record of shares of Cognizant (July 1, 1998), and
shall continue in effect through December 31, 2001, and (ii) commencing on
January 1, 2002, and each January 1 thereafter, this Agreement shall be
automatically extended for one additional year unless, not later than September
30th of the preceding year, either party to this Agreement gives notice to the
other that the Agreement shall not be extended under this Section 1(a);
provided, however, that no such notice by the Company shall be effective if a
Change in Control or Potential Change in Control (both as defined herein) shall
have occurred prior to the date of such notice.
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(b) Upon a Change in Control. If a Change in Control shall have occurred
at any time during the period in which this Agreement is effective, this
Agreement shall continue in effect for (i) the remainder of the month in which
the Change in Control occurred and (ii) a term of 24 months beyond the month in
which such Change in Control occurred (such entire period hereinafter referred
to as the "Protected Period").
2. Change in Control; Potential Change in Control.
(a) A "Change in Control" shall be deemed to have occurred if, during the
term of this Agreement:
(i) any "Person," as such term is used for purposes of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than the Company, any trustee or other fiduciary
holding securities under an employee benefit plan of the Company, or any
company owned, directly or indirectly, by the stockholders of the Company
in substantially the same proportions as their ownership of stock of the
Company), becomes the "Beneficial Owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's
then-outstanding securities;
(ii) during any period of twenty-four months (not including any
period prior to the effectiveness of this Agreement), individuals who at
the beginning of such period constitute the Board, and any new director
(other than (A) a director nominated by a Person who has entered into an
agreement with the Company to effect a transaction described in Sections
(2)(a)(i), (iii) or (iv) hereof, (B) a director nominated by any Person
(including the Company) who publicly announces an intention to take or to
consider taking actions (including, but not limited to, an actual or
threatened proxy contest) which if consummated would constitute a Change
in Control or (C) a director nominated by any Person who is the
Beneficial Owner, directly or indirectly, of securities of the Company
representing 10% or more of the combined voting power of the Company's
securities) whose election by the Board or nomination for election by the
Company's stockholders was approved in advance by a vote of at least
two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination
for election was previously so approved, cease for any reason to
constitute at least a majority thereof;
(iii) the stockholders of the Company approve any transaction or
series of transactions under which the Company is merged or consolidated
with any other company, other than a merger or consolidation (A) which
would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than 66 2/3% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation and (B) after which no
Person holds 20% or more of the combined voting power of the
then-outstanding securities of the Company or such surviving entity;
(iv) the stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition by
the Company of all or substantially all of the Company's assets; or
(v) the Board adopts a resolution to the effect that, for purposes
of this Agreement, a Change in Control has occurred.
(b) A "Potential Change in Control" shall be deemed to have occurred if:
(i) the Company enters into an agreement, the consummation of
which would result in the occurrence of a Change in Control;
22
(ii) any Person (including the Company) publicly announces an
intention to take or to consider taking actions which if consummated
would constitute a Change in Control; or (iii) the Board adopts a
resolution to the effect that, for purposes of this Agreement, a
Potential Change in Control has occurred.
(c) Employee Covenants. You agree that, subject to the terms and
conditions of this Agreement, in the event of a Potential Change in Control, you
will remain in the employ of the Company until the earliest of (i) a date which
is 180 days from the occurrence of such Potential Change in Control, (ii) the
termination of your employment by reason of Disability (as defined herein) or
(iii) the date on which you first become entitled under this Agreement to
receive the benefits provided in Section 3(b) hereof.
(d) Company Covenant Regarding Potential Change in Control. In the event
of a Potential Change in Control, the Company shall, not later than 15 days
thereafter, have established one or more rabbi trusts and shall deposit therein
cash in an amount sufficient to provide for full payment of all potential
obligations of the Company that would arise assuming consummation of a Change in
Control and a subsequent termination of your employment under Section 3(b). Such
rabbi trust(s) shall be irrevocable and shall provide that the Company may not,
directly or indirectly, use or recover any assets of the trust(s) until such
time as all obligations which potentially could arise hereunder have been
settled and paid in full, subject only to the claims of creditors of the Company
in the event of insolvency or bankruptcy of the Company.
3. Termination.
(a) Termination by the Company for Cause, by You Without Good Reason, or
by Reason of Death or Disability. If during the Protected Period your employment
by the Company is terminated by the Company for Cause, by you without Good
Reason, or because of your death or Disability, the Company shall be relieved of
its obligation to make any payments to you other than (i) its payment of amounts
otherwise accrued and owing but not yet paid and (ii) any amounts payable under
then-existing employee benefit programs at the time such amounts are due.
(b) Termination by the Company Without Cause or by You for Good Reason.
If during the Protected Period your employment by the Company is terminated by
the Company without cause or by you for Good Reason, you shall be entitled to
the compensation and benefits described in this Section 3(b). If your employment
by the Company is terminated prior to a Change in Control at the request of a
Person engaging in a transaction or series of transactions that would result in
a Change in Control, the Protected Period shall commence upon the subsequent
occurrence of a Change in Control, your actual termination shall be deemed a
termination occurring during the Protected Period and covered by this Section
3(b), your Date of Termination shall be deemed to have occurred immediately
following the Change in Control, and Notice of Termination shall be deemed to
have been given by the Company immediately prior to your actual termination.
Your continued employment shall not constitute consent to, or a waiver of rights
with respect to, any circumstances constituting Good Reason hereunder. The
compensation and benefits provided under this Section 3(b) are as follows:
(i) The Company shall pay you your full base salary through the
Date of Termination at the rate in effect at the time Notice of
Termination is given, no later than the fifth day following the Date of
Termination, and you shall receive all other amounts to which you are
entitled under any compensation or benefit plan of the Company, at the
time such payments are due.
(ii) At the time specified in Section 3(d) hereof, the Company
shall pay you, in lieu of any further salary, bonus or severance payments
for periods subsequent to the Date of Termination, a lump sum amount in
cash equal two times the sum of:
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(A) the greater of (I) your annual base salary in effect
immediately prior to the Change in Control of the Company or (II)
your annual base salary in effect at the time Notice of
Termination is given; and
(B) the greater of (I) your annual target bonus for the
year in which the Change in Control occurs or, (II) if no such
target bonus has yet been determined for such year, your annual
target bonus actually earned by you in the year immediately
preceding the year in which the Change in Control occurs.
(iii) At the time specified in Section 3(d) hereof, the Company
shall pay to you, in lieu of amounts which may otherwise be payable to
you under any bonus plan (a "Bonus Plan"), an amount in cash equal to (A)
your annual target bonus for the year in which the Change in Control
occurs, multiplied by a fraction, (I) the numerator of which equals the
number of full or partial days in such annual performance period during
which you were employed by the Company and (II) the denominator of which
is 365, and (B) the entire target bonus opportunity with respect to each
performance period in progress under all other Bonus Plans in effect at
the time of termination. Notwithstanding the foregoing, this Section
3(b)(iii) shall not apply with respect to any amounts which may otherwise
be payable to you under the Company's Senior Executive Incentive Plan or
any other Bonus Plan of the Company that applies primarily to "covered
employees" within the meaning of Section 162(m) of the Code.
(iv) The Company shall provide you with a cash allowance, at the
time specified in Section 3(d) hereof, for outplacement and job search
activities (including, but not limited to, office and secretarial
expenses) in the amount of 20% of your annual base salary and annual
target bonus taken into account under Section 3(b)(ii) hereof, provided
that (A) such cash allowance shall not exceed $100,000 and (B) such cash
allowance shall apply only to those costs or obligations that are
incurred by you during the 36-month period following your termination of
employment.
(v) For a 24-month period following your termination of
employment, the Company shall arrange to provide you with life and health
insurance benefits no less favorable than those which you were receiving
immediately prior to the Notice of Termination. Notwithstanding the
foregoing, any benefit described in the preceding sentence shall
constitute secondary coverage with respect to any life and health
insurance benefits actually received by you in connection with any
subsequent employment (or self-employment) during the 24-month period
following your termination.
(vi) Starting at age 55, you shall receive retiree medical and
life benefits from the Company. Such benefits shall be no less favorable
than the benefits that you would have received had you, at the time
Notice of Termination is given, both (A) attained age 55 and (B) retired
from the Company. Notwithstanding the foregoing, any benefit described in
the preceding sentence shall constitute secondary coverage with respect
to retiree medical and life benefits actually received by you in
connection with any subsequent employment (or self-employment) following
your termination.
(c) Excise Tax. In the event you become entitled to any amounts payable
in connection with a Change in Control (whether or not such amounts are payable
pursuant to this Agreement) (the "Severance Payments"), if any of such Severance
Payments are subject to the tax (the "Excise Tax") imposed by Section 4999 of
the Code (or any similar federal, state or local tax that may hereafter be
imposed), the Company shall pay to you at the time specified in Section 3(d)
hereof an additional amount (the "Gross-Up Payment") such that the net amount
retained by you, after deduction of any Excise Tax on the Total Payments (as
hereinafter defined) and any federal, state and local income tax and Excise Tax
upon the payment provided for by this Section 3(c), shall be equal to the Total
Payments. For purposes of determining whether any of the Severance Payments will
be subject to the Excise Tax and the amount of such Excise Tax: (i) any
24
other payments or benefits received or to be received by you in connection with
a Change in Control or your termination of employment (whether pursuant to the
terms of this Agreement or any other plan, arrangement or agreement with the
Company, any Person whose actions result in a Change in Control or any Person
affiliated with the Company or such Person) (which, together with the Severance
Payments, constitute the "Total Payments") shall be treated as "parachute
payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess
parachute payments" within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax, unless in the opinion of
nationally-recognized tax counsel selected by you such other payments or
benefits (in whole or in part) do not constitute parachute payments, or such
excess parachute payments (in whole or in part) represent reasonable
compensation for services actually rendered within the meaning of Section
280G(b)(4) of the Code in excess of the base amount within the meaning of
Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax;
(ii) the amount of the Total Payments which shall be treated as subject to the
Excise Tax shall be equal to the lesser of (A) the total amount of the Total
Payments and (B) the amount of excess parachute payments within the meaning of
Section 280G(b)(1) of the Code (after applying Section 3(c)(i) hereof); and
(iii) the value of any non-cash benefits or any deferred payments or benefit
shall be determined by a nationally-recognized accounting firm selected by you
in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
For purposes of determining the amount of the Gross-Up Payment, you shall be
deemed to pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Gross-Up Payment is to be made
and state and local income taxes at the highest marginal rate of taxation in the
state and locality of your residence on the Date of Termination, net of the
maximum reduction in federal income taxes which could be obtained from deduction
of such state and local taxes. In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
of termination of your employment, you shall repay to the Company within ten
days after the time that the amount of such reduction in Excise Tax is finally
determined the portion of the Gross-Up Payment attributable to such reduction
(plus the portion of the Gross-Up Payment attributable to the Excise Tax and
federal and state and local income tax imposed on the Gross-Up Payment being
repaid by you if such repayment results in a reduction in Excise Tax and/or
federal and state and local income tax deduction) plus interest on the amount of
such repayment at the rate provided in Section 1274(b)(2)(B) of the Code. In the
event that the Excise Tax is determined to exceed the amount taken into account
hereunder at the time of the termination of your employment (including by reason
of any payment the existence or amount of which cannot be determined at the time
of the Gross-Up Payment), the Company shall make an additional gross-up payment
in respect of such excess within ten days after the time that the amount of such
excess is finally determined.
(d) Time of Payment. The payments provided for in Sections 3(b)(ii),
3(b)(iii) and 3(c) hereof shall be made not later than the fifteenth day
following the Date of Termination; provided, however, that if the amount of such
payments cannot be finally determined on or before such day, the Company shall
pay to you on such day an estimate, as determined in good faith by the Company,
of the minimum amount of such payments and shall pay the remainder of such
payments (together with interest at the rate provided in Section 1274(b)(2)(B)
of the Code) as soon as the amount thereof can be determined but in no event
later than the thirtieth day after the Date of Termination. In the event that
the amount of the estimated payments exceeds the amount subsequently determined
to have been due, such excess shall constitute a loan by the Company to you,
payable on the fifteenth day after the demand by the Company (together with
interest at the rate provided in Section 1274(b)(2)(B) of the Code). The
payments provided in Section 3(b)(iv) hereof shall be made not later than the
fifteenth day following the submission of each receipt to the Company evidencing
costs or obligations incurred by you in connection with outplacement counseling
and job search activities.
(e) Notice. During the Protected Period, any purported termination of
your employment by the Company or by you shall be communicated by written Notice
of Termination to the other party hereto.
25
(f) Certain Definitions. Except as otherwise indicated in this Agreement,
all definitions in this Section 3(f) shall be applicable during the Protected
Period only.
(i) Disability. "Disability" shall mean your absence from the
full-time performance of your duties with the Company for six consecutive
months as a result of your incapacity due to physical or mental illness
or disability, and within 30 days after written Notice of Termination is
thereafter given you shall not have returned to the full-time performance
of your duties.
(ii) Cause. "Cause" shall mean termination on account of (A) the
willful and continued failure by you to substantially perform your duties
with the Company (other than any such failure resulting from your
incapacity due to physical or mental illness or disability or any failure
after the issuance of a Notice of Termination by you for Good Reason)
which failure is demonstrably and materially damaging to the financial
condition or reputation of the Company and/or its subsidiaries, and which
failure continues more than 48 hours after a written demand for
substantial performance is delivered to you by the Board, which demand
specifically identifies the manner in which the Board believes that you
have not substantially performed your duties or (B) the willful engaging
by you in conduct which is demonstrably and materially injurious to the
Company, monetarily or otherwise. No act, or failure to act, on your part
shall be deemed "willful" unless done, or omitted to be done, by you not
in good faith and without reasonable belief that your action or omission
was in the best interest of the Company. Notwithstanding the foregoing,
you shall not be deemed to have been terminated for Cause unless and
until there shall have been delivered to you a copy of the resolution
duly adopted by the affirmative vote of not less than three-quarters
(3/4) off the entire membership of the Board at a meeting of the Board
(after reasonable notice to you and an opportunity for you, together with
your counsel, to be heard before the Board) finding that, in the good
faith opinion of the Board, you were guilty of conduct set forth above in
this Section 3(f)(ii) and specifying the particulars thereof in detail.
(iii) Good Reason. "Good Reason" shall mean, without your express
written consent, the occurrence upon or after a Change in Control of any
of the following circumstances unless, in the case of Sections
3(f)(iii)(A), (E), (F) or (G) hereof, such circumstances are fully
corrected prior to the Date of Termination specified in the Notice of
Termination given in respect thereof:
(A) the assignment to you of any duties inconsistent with
the position in the Company that you held immediately prior to the
Change in Control, or an adverse alteration in the nature or
status of your responsibilities or the conditions of your
employment from those in effect immediately prior to such Change
in Control;
(B) a reduction by the Company in your annual base salary,
any target bonus or perquisites as in effect immediately prior to
the Change in Control or as the same may be increased from time to
time except for across-the-board perquisite reductions similarly
affecting all senior executives of the Company and all senior
executives of any Person in control of the Company;
(C) the relocation of the principle place of your
employment to a location more than 50 miles from the location of
such place of employment on the date of this Agreement; except for
required travel on the Company's business to an extent
substantially consistent with your business travel obligations
prior to the Change in Control;
(D) the failure by the Company to pay to you any portion of
your compensation or to pay to you any portion of an installment
of deferred compensation under any deferred compensation program
of the Company within seven days of the date such compensation is
due;
26
(E) the failure by the Company to continue in effect any
material compensation or benefit plan in which you participated
immediately prior to the Change in Control, unless an equitable
arrangement (embodied in an ongoing substitute or alternative
plan) has been made with respect to such plan, or the failure by
the Company to continue your participation therein (or in such
substitute or alternative plan) on a basis not materially less
favorable, both in terms of the amounts of benefits provided and
the level of your participation relative to other participants, as
existed at the time of the Change in Control;
(F) the failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement, as contemplated in Section 6 hereof;
(G) any purported termination of your employment that is
not effected pursuant to a Notice of Termination satisfying the
requirements of Section 3(f)(iv) hereof (and, if applicable, the
requirements of Section 3(f)(ii) hereof), which purported
termination shall not be effective for purposes of this Agreement;
or
(H) the lapse of twelve months following the last day of
the month in which the Change in Control occurs.
(iv) Notice of Termination. "Notice of Termination" shall mean
notice indicating the specific termination provision in this Agreement
relied upon and setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of your
employment under the provision so indicated.
(v) Date of Termination. "Date of Termination" shall mean (A) if
your employment is terminated for Disability, 30 days after Notice of
Termination is given (provided that you shall not have returned to the
full-time performance of your duties during such 30-day period) or (B) if
your employment is terminated for any other reason, the date specified in
the Notice of Termination (which, in the case of a termination for Cause,
shall not be less than 30 days from the date such Notice of Termination
is given and, in the case of a termination for Good Reason, shall not be
less than 15 nor more than 60 days from the date such Notice of
Termination is given).
4. Mitigation. Except as provided in Section 3(b)(v) and (vi) hereof, you
shall not be required to mitigate the amount of payment provided for under this
Agreement by seeking other employment or otherwise, nor shall the amount of
payment or benefit provided for under this Agreement be reduced by any
compensation earned by you as the result of employment by another employer, by
retirement benefits, by offset against any amount claimed to be owed by you to
the Company, or otherwise.
5. Costs of Proceedings. The Company shall pay all costs and expenses,
including all attorneys' fees and disbursements, of the Company and, at least
monthly, you in connection with any legal proceedings, whether or not instituted
by the Company or you, relating to the interpretation or enforcement of any
provision of this Agreement; provided that if you instituted the proceeding and
a finding (no longer subject to appeal) is entered that you instituted the
proceeding in bad faith, you shall pay all of your costs and expenses, including
attorneys' fees and disbursements. The Company shall pay prejudgment interest on
any money judgment obtained by you as a result of such proceeding, calculated at
the prime rate of The Chase Manhattan Bank as in effect from time to time from
the date that payment should have been made to you under this Agreement.
6. Successors; Binding Agreement.
(a) The Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or
27
assets of the Company to expressly assume and agree to perform this Agreement in
the same manner and to the same extent that the Company would be required to
perform it if no such succession had taken place. As used in this Agreement,
"Company" shall mean the Company as hereinbefore defined and any successor to
its business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable by
you and your personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. In the event of your
death, all amounts otherwise payable to you hereunder shall, unless otherwise
provided herein, be paid in accordance with the terms of this Agreement to your
devisee, legatee or other designee or, if there is no such designee, to your
estate.
7. Notice. Notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly given when
(a) personally delivered or (b) mailed by United States certified or registered
mail, return receipt requested, postage prepaid, addressed to the respective
addresses set forth on the first page of this Agreement; provided that all
notice to the Company shall be directed to the attention of the Board with a
copy to the General Counsel of the Company, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon receipt.
8. Miscellaneous. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing and signed by you and such officer as may be designated by the Board. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the time or at any prior or subsequent
time. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of New York without regard
to its conflicts of law principles. All references to sections of the Exchange
Act or the Code shall be deemed also to refer to any successor provisions to
such sections. Any payments provided for hereunder shall be paid net of any
applicable withholding required under federal, state or local law. The
obligations of the Company under this Agreement shall survive the expiration of
this Agreement to the extent necessary to give effect to this Agreement.
9. Validity. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement, which shall remain in full force and effect.
10. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
11. Entire Agreement. This Agreement sets forth the entire agreement of
the parties hereto in respect of the subject matter contained herein and during
the term of this Agreement supersedes the provisions of all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of any party hereof with respect to the subject matter contained herein. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. Notwithstanding anything to the
contrary in this Agreement, the procedural provisions of this Agreement shall
apply to all benefits payable as a result of a Change in Control (or other
change in control) under any employee benefit plan, agreement, program, policy
or arrangement of the Company.
28
If this letter sets forth our agreement on the subject matter hereof,
kindly sign and return to the Company the enclosed copy of this letter, which
will then constitute our agreement on this subject.
IMS HEALTH INCORPORATED
By:_______________________________________
[Chairman and Chief Executive Officer]
or
[President and Chief Operating Officer]
Agreed to this ____________________ day
of ____________________________, 199[ ].
-----------------------------------------
Name
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