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Exhibit 10(e)
TAM MASTER AGREEMENT
between
Cognizant Corporation
and
ACNielsen Corporation
dated as of
October 28, 1996
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TABLE OF CONTENTS
Recitals 1
Article I
Definitions................................................. 2
1.1 Defined Terms .................................................................. 2
1.2 References; Interpretation ..................................................... 12
Article II
Technology and Trademarks.......................................... 13
2.1 Obligation to License Technology ............................................... 13
2.2 Limited Obligation ............................................................. 14
2.3 Research and Development ....................................................... 14
Article III
Option to Purchase.............................................. 17
3.1 Segregation of ACNielsen TAM Business .......................................... 17
3.2 Option ......................................................................... 18
3.3 Price .......................................................................... 22
3.4 Other Terms and Conditions of Exercise ......................................... 22
3.5 Survival ....................................................................... 23
Article IV
Indemnification............................................... 24
4.1 Indemnification............................................................. 24
Article V
Dispute Resolution.............................................. 24
5.1 Dispute Resolution ............................................................. 24
Article VI
Conditions to Effectiveness......................................... 25
6.1 25
Article VII
Covenants.................................................. 25
7.1 Further Assurances. ............................................................ 25
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Article VIII
Miscellaneous................................................ 26
8.1 Construction ................................................................... 26
8.2 Counterparts ................................................................... 26
8.3 Expenses ....................................................................... 26
8.4 Notices ........................................................................ 26
8.5 Waivers ........................................................................ 26
8.6 Amendments ..................................................................... 26
8.7 Assignment ..................................................................... 27
8.8 Successors and Assigns ......................................................... 27
8.9 Subsidiaries ................................................................... 27
8.10 Third-Party Beneficiaries ..................................................... 27
8.11 Titles and Headings ........................................................... 27
8.12 Exhibits and Schedules ........................................................ 27
8.13 Governing Law ................................................................. 27
8.14 Consent to Jurisdiction ....................................................... 27
8.15 Severability .................................................................. 28
8.16 Confidentiality ............................................................... 28
Schedules
Schedule 1.1 (a) Countries in which ACNielsen TAM Business is Conducted
Schedule 1.1 (b) Financial Statements
Schedule 1.1 (c) ▇▇▇ ▇▇▇▇▇
Schedule 1.1 (d) Calculation of TAM Purchase Price
Schedule 1.1 (e) TAM Technology
Schedule 3.1 (a) Principles Governing Separation of Shared TAM Assets and
Shared TAM Employees
Exhibits
Exhibit A Form of Technology Licensing Agreement
Exhibit B-1 Form of Trademark Licensing Agreement (Cognizant Party to
ACNielsen Party)
Exhibit B-2 Form of Trademark Licensing Agreement (ACNielsen Party to
Cognizant Party) (Media Advisor)
Exhibit C Form of "Media Advisor" Software Licensing Agreement
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This MASTER AGREEMENT is dated as of October 28, 1996, between
COGNIZANT CORPORATION, a Delaware corporation ("Cognizant") and ACNIELSEN
CORPORATION, a Delaware corporation ("ACNielsen").
RECITALS
* WHEREAS, The Dun & Bradstreet Corporation, a Delaware
corporation ("D&B"), has determined that it is in the best
interests of the holders of common stock of D&B to separate
from D&B certain businesses currently conducted by D&B;
* WHEREAS, D&B has determined to cause certain of such
businesses, including the NMR TAM Business (as defined herein)
to be owned and conducted, directly or indirectly, by
Cognizant, and to cause certain other businesses, including
the ACNielsen TAM Business (as defined herein), to be owned
and conducted, directly or indirectly, by ACNielsen; and
* WHEREAS, each of Cognizant and ACNielsen has determined that
it is necessary and desirable to set forth agreements relating
to the TAM Business (as defined herein), including their use
of ▇▇▇ ▇▇▇▇▇ and ▇▇▇ Technology (each as defined herein) and
their rights upon a change of control of ACNielsen or the
ACNielsen TAM Business.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties hereby agree
as follows:
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I
Definitions
I.1 Defined Terms. As used in this Agreement, the following
terms have the following meanings:
"ACN Change of Control Transaction": an event or series of
events by which
(a) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act as in effect on the Distribution Date), of more than 50%
of the total voting power of all voting stock of ACNielsen then
outstanding;
(b) another corporation merges into ACNielsen or ACNielsen
consolidates with or merges into any other corporation, in one
transaction or a series of related transactions with the effect that a
person or group, other than a person or group which is the beneficial
owner of more than 50% of the total voting power of all voting stock of
ACNielsen immediately prior to such transaction becomes the beneficial
owner of more than 50% of the total voting power of all voting stock of
the surviving or transferee corporation of such transaction or series;
or
(c) ACNielsen, in one transaction or a series of transactions
(each, a "Disposition"), conveys, transfers, spins off, or leases
Assets to any person or persons other than Cognizant or a wholly owned
Subsidiary of ACNielsen or Cognizant, (i) which Assets would have
constituted greater than 66 2/3% of ACNielsen's Assets as of the
Distribution Date or (ii) which Disposition or Dispositions would have
resulted in a 50% decrease in ACNielsen's revenue for the fiscal year
immediately preceding the first such Disposition had each such
Disposition taken place on the first day of such preceding fiscal year;
provided, however, that to the extent that within three months of such
Disposition such ACNielsen party (A) reinvests or enters into a binding
agreement or letter of intent to reinvest the proceeds from such
Disposition in Assets that are used in connection with the ACNielsen
Business or (B) outsources to third parties the functions or
information generated by the Assets disposed of, such Disposition shall
not be deemed to be an ACNielsen Change of Control Transaction or count
as a Disposition for purposes of subsequent applications of this
provision; or
(d) during any period of two consecutive years, individuals
who at the beginning of such period constituted ACNielsen's Board of
Directors (together with any new directors whose election by
ACNielsen's Board of Directors, or whose nomination for election by
ACNielsen's shareholders, was approved by a vote of a majority of the
Directors then still in office who were either Directors at the
beginning of such period or
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whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the Directors then in
office.
"ACNielsen Business": the meaning ascribed in the Distribution
Agreement.
"ACNielsen Party": each of ACNielsen and each Subsidiary
thereof on or after the Distribution Date.
"ACNielsen Policies": "ACNielsen Policies" as defined in the
Distribution Agreement, together with all Policies owned or maintained
by or on behalf of any ACNielsen Party or assigned to any ACNielsen
Party on or after the Distribution Date.
"ACNielsen Shared Policies": the meaning ascribed in the
Distribution Agreement.
"ACNielsen TAM Business": the TAM Business outside the United
States and Canada conducted by ACNielsen Parties on the Distribution
Date in the countries listed on Schedule 1.1(a) hereto and any
additional TAM Assets acquired or created by any ACNielsen Parties
after the Distribution Date ("After Acquired Assets"), to the extent
such businesses or Assets have been integrated into and are not easily
severable from the TAM Business outside the United States and Canada
conducted by ACNielsen Parties on the Distribution Date; provided, that
such integrated After Acquired Assets may be separated and excluded
from the ACNielsen TAM Business only if such separation leaves the
remaining business intact. After Acquired Assets that are either
severable in the manner described above or not integrated into the
ACNielsen TAM Business existing on the Distribution Date (including, by
way of example and without limitation, new operations begun or acquired
in a country where ACNielsen does not currently have a TAM Business)
shall be excluded from the ACNielsen TAM Business. Notwithstanding
anything to the contrary contained herein, if an ACNielsen Party
establishes, purchases or otherwise acquires a TAM Business in India
(i) within a reasonable period of time after the Distribution Date and
(ii) in accordance with the business plan currently in effect with
respect to India, such TAM Business will be deemed to be part of the
ACNielsen TAM Business as of the Distribution Date. If ACNielsen
abandons its current plans to begin a TAM Business in India and
subsequently establishes, purchases or otherwise acquires a TAM
Business in India, such TAM Business in India shall be deemed to be an
After Acquired Asset subject to the provisions of this paragraph
regarding After Acquired Assets.
"Action": any action, suit, arbitration, inquiry, proceeding
or investigation by or before any court, any governmental or other
regulatory or administrative agency, body or commission or any
arbitration tribunal.
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"Affiliate": when used with respect to a specified person,
another person that controls, is controlled by, or is under common
control with the person specified. As used herein, "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, whether
through the ownership of voting securities or other interests, by
contract or otherwise.
"After Acquired Assets": the meaning set forth in the
definition of ACNielsen TAM Business.
"Ancillary Licensing Agreements": the collective reference to
the Technology Licensing Agreement, the Trademark Licensing Agreement
and the Computer Software License.
"Asset Purchase Agreement": an Asset purchase agreement to be
executed by the TAM Purchaser and ACNielsen in connection with a TAM
Acquisition.
"Assets": with respect to any party, assets, properties and
rights (including goodwill), wherever located (including in the
possession of vendors or other third parties or elsewhere), whether
real, personal or mixed, tangible, intangible or contingent, in each
case whether or not recorded or reflected or required to be recorded or
reflected on the books and records or financial statements of any
person, including, without limitation, the following:
a. all accounting and other books, records and files
whether in paper, microfilm, microfiche, computer tape
or disc, magnetic tape or any other form;
b. all apparatus, computers and other electronic data
processing equipment, fixtures, machinery, equipment,
furniture, office equipment, automobiles, trucks,
aircraft and other transportation equipment, special and
general tools, test devices, prototypes and models and
other tangible personal property;
c. all inventories of materials, parts, raw materials,
supplies, work-in-process and finished goods and
products;
d. all interests in real property of whatever nature,
including easements, whether as owner, mortgagee or
holder of a Security Interest in real property, lessor,
sublessor, lessee, sublessee or otherwise;
e. all interests in any capital stock or other equity
interests of any Subsidiary or any other person, all
bonds, notes, debentures or other securities issued
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by any Subsidiary or any other person, interests in
partnerships or joint ventures (whether or not majority
interests), all loans, advances or other extensions of
credit or capital contributions to any Subsidiary or any
other person and all other investments in securities of
any person;
f. all license agreements, leases of personal property,
open purchase orders for raw materials, supplies, parts
or services, unfilled orders for the manufacture and
sale of products and other contracts, agreements or
commitments;
g. letters of credit and performance and surety bonds
issued in favor of such party by a third party;
h. all written technical information, data, specifications,
research and development information, engineering
drawings, operating and maintenance manuals, and
materials and analyses prepared by consultants and other
third parties;
i. all domestic and foreign patents, copyrights, trade
names, trademarks, service marks and registrations and
applications for any of the foregoing, mask works, trade
secrets, inventions, data bases, other proprietary
information and licenses from third persons granting the
right to use any of the foregoing;
j. all computer applications, programs and other software,
including operating software, network software,
firmware, middleware, design software, design tools,
systems documentation and instructions;
k. all cost information, sales and pricing data, customer
prospect lists, supplier records, customer and supplier
lists, customer and vendor data, correspondence and
lists, product literature, artwork, design, development
and manufacturing files, vendor and customer drawings,
formulations and specifications, quality records and
reports and other books, records, studies, surveys,
reports, plans and documents;
l. all prepaid expenses, deposits made by such party, trade
accounts and other accounts and notes receivable;
m. all rights under contracts or agreements, all claims or
rights against any person arising from the ownership of
any asset, all rights in connection with any bids or
offers and all claims, chooses in action or similar
rights, whether accrued or contingent;
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n. all rights under insurance policies and all rights in
the nature of insurance, indemnification or
contribution;
o. all licenses (including radio and similar licenses),
permits, approvals and authorizations which have been
issued by any Governmental Authority;
p. cash and Cash Equivalents, bank accounts, lock boxes and
other deposit arrangements; and
q. interest rate, currency, commodity or other swap,
collar, cap or other hedging or similar agreements or
arrangements.
"Book Value": The amounts at which the TAM Assets to be
transferred with all or that portion of the ACNielsen TAM Business
being offered or sold are reflected on the accounting records of the
ACNielsen Parties, as determined in accordance with generally accepted
accounting principles in the United States in effect from time to time,
or, if ACNielsen Parties do not prepare their financial statements or
keep their accounting records in accordance with such principles, in
accordance with accounting principles applied consistently throughout
the consolidated group of which ACNielsen Parties are members, less the
amounts at which the TAM Liabilities to be transferred with all or that
portion of the ACNielsen TAM Business being offered or sold are
reflected on the accounting records of the ACNielsen Parties, as
determined in accordance with generally accepted accounting principles
in the United States in effect from time to time, or, if ACNielsen
Parties do not prepare their financial statements or keep their
accounting records in accordance with such principles, in accordance
with accounting principles applied consistently throughout the
consolidated group of which ACNielsen Parties are members.
"Business Day": a day other than Saturday, Sunday or other day
on which commercial banks in New York, New York or Connecticut are
authorized or required by law to be closed.
"Cash Equivalents": certificates of deposit, securities issued
by the United States Treasury and similar readily marketable
securities.
"Cognizant Business": shall have the meaning ascribed in the
Distribution Agreement.
"Cognizant Party": each of Cognizant and each Subsidiary
thereof on or after the Distribution Date.
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"Computer Software License": the license entered into by
ACNielsen, as licensor, and a Cognizant Party, as licensee, in respect
of the "Media Advisor" software and such other items as are listed on
the schedules thereto.
"Contractual Obligation": as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any
of its property is bound.
"Corporate Administration": all personnel, equipment, office
space and other Assets required to perform internal management
functions such as accounting, hiring, payroll, benefits and in-house
legal services.
"D&B": The Dun & Bradstreet Corporation, a Delaware
corporation.
"D&B Party": D&B and each Subsidiary of D&B on and after the
Distribution Date.
"Disclosure Schedules": the meaning ascribed in Section
3.2(a).
"Distribution Agreement": the agreement dated as of October
28, 1996 among D&B, Cognizant and ACNielsen.
"Distribution-Related Agreements": the Distribution Agreement
and all of the written agreements, instruments, assignments or other
arrangements (other than this Agreement and the TAM Ancillary
Agreements) entered into in connection with the transactions
contemplated hereby, including, without limitation, the Conveyancing
and Assumption Instruments, the Data Services Agreements, the Employee
Benefits Agreement, the Indemnity and Joint Defense Agreement, the
Intellectual Property Agreement, the Shared Transaction Services
Agreements, the Tax Allocation Agreement and the Transition Services
Agreement.
"Distribution Date": the meaning ascribed in the Distribution
Agreement.
"Effective Date": November 1, 1996, the effective date of this
Agreement.
"Exercise Period": the meaning ascribed in Section 3.2(c).
"Financial Statements" shall mean all of the financial
statements and schedules listed on Schedule 1.1(b) to be delivered
pursuant to Article III.
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"Governmental Authority": any federal, state, local, foreign
or international court, government, department, commission, board,
bureau, agency, official or other regulatory, administrative or
governmental authority.
"Liabilities": the meaning ascribed in the Distribution
Agreement.
"License Term": the meaning set forth in Section 2.1.
"Material Adverse Effect": a material adverse effect on the
validity or enforceability of this Agreement or any of the transactions
contemplated hereby.
"MONITOR-PLUS Agreement": the agreement dated as of October
28, 1996 between NMR and ACNielsen pursuant to which NMR agrees to
provide MONITOR-PLUS UPC Linking Services to ACNielsen and ACNielsen
agrees to provide certain data to NMR.
"NMR": ▇▇▇▇▇▇▇ Media Research Inc., a Delaware corporation.
"NMR TAM Business": the TAM Business in the United States and
Canada that is conducted by Cognizant Parties on the Distribution Date.
"Open Issues": the meaning ascribed in Section 3.2(e).
"Option": shall mean the option described in Section 3.2
pursuant to which the Optionee may, under certain circumstances,
acquire all or part of the ACNielsen TAM Business.
"Option Information": the meaning set forth in Section 3.2.
"Option Trigger Event": shall mean each of the events
described in Section 3.2(b)(i), (ii), (iii) and (iv).
"Person": any natural person, corporation, business trust,
joint venture, association, company, partnership or government, or any
agency or political subdivision thereof.
"Policies": insurance policies and insurance contracts of any
kind (other than life and benefits policies or contracts), including,
without limitation, primary, excess and umbrella policies,
comprehensive general liability policies, director and officer
liability, fiduciary liability, automobile, aircraft, property and
casualty, workers' compensation and employee dishonesty insurance
policies, bonds and self-insurance and captive insurance company
arrangements, together with the rights, benefits and privileges
thereunder.
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"Records": specific and identified agreements, documents,
books, records or files.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation or
determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Security Interest": any mortgage, security interest, pledge,
lien, charge, claim, option, right to acquire, voting or other
restriction, right-of-way, covenant, condition, easement, encroachment,
restriction on transfer, or other encumbrance of any nature whatsoever.
"Shared TAM Asset": any Asset of any ACNielsen Party that is
employed in the ACNielsen TAM Business and one or more other businesses
conducted by an ACNielsen Party.
"Shared TAM Employees": the collective reference to each
person employed by any ACNielsen Party after the Distribution Date,
which person divides (in any manner) his or her working hours between
the ACNielsen TAM Business and other ACNielsen Businesses.
"Subsidiary": any corporation, partnership or other entity of
which another entity (i) owns, directly or indirectly, ownership
interests sufficient to elect a majority of the board of directors (or
persons performing similar functions) (irrespective of whether at the
time any other class or classes of ownership interests of such
corporation, partnership or other entity shall or might have such
voting power upon the occurrence of any contingency) or (ii) is a
general partner or an entity performing similar functions (e.g., a
trustee).
"TAM Acquisition": an acquisition of all or part of the
ACNielsen TAM Business by the TAM Purchaser as contemplated by Article
III.
"TAM Acquisition Date": the date of the consummation of the
related TAM Acquisition.
"TAM Assets": at any date of determination, without
duplication:
a. any and all Assets employed by any ACNielsen Party in
connection with the ACNielsen TAM Business;
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b. subject to Article VII of the Distribution Agreement,
any rights of any ACNielsen Party under any of the
ACNielsen Policies or the ACNielsen Shared Policies
arising out of any ACNielsen Party's conduct of the
ACNielsen TAM Business, including any rights thereunder
arising after the Distribution Date in respect of any
Policies that are (i) occurrence Policies or (ii) claims
made policies, to the extent that claims relating to a
TAM Acquisition are made prior to the related TAM
Acquisition Date;
c. any contract of any ACNielsen Party, any rights or
claims arising thereunder, and any other rights or
claims or contingent rights or claims to the extent
relating to or arising from any TAM Asset or the
ACNielsen TAM Business;
Notwithstanding the foregoing, TAM Assets shall not,
in any event, include any Asset that is expressly contemplated by this
Agreement, including the schedules hereto, as an Asset to be retained
by any ACNielsen Party upon the consummation of a TAM Acquisition.
In the event of any inconsistency or conflict which
may arise in the application or interpretation of any of the foregoing
provisions, for the purpose of determining what is and is not a TAM
Asset, any item expressly included or excluded as a TAM Asset on a
Schedule to this Agreement or any Ancillary Licensing Agreement shall
take priority over any provision of the text hereof.
"TAM Business": the measurement, for the primary purpose of
establishing audience size, of audiences for television programming
(and for incidental VCR playback, electronic games and other incidental
television usage) based on viewing activity by a panel selected to
represent the viewing of the universe from which the panel is selected,
including viewing of television programming on personal computer
monitors and other devices, and delivered by any means including,
without limitation, over-the-air broadcasting, cable and satellite, and
delivery via the Internet.
"TAM Liabilities": at any date of determination, without
duplication: all obligations and Liabilities of any ACNielsen Party
under this Agreement or any of the Ancillary Licensing Agreements and
all Liabilities of each ACNielsen Party primarily relating to, arising
out of or resulting from:
r. the operation of the ACNielsen TAM Business (including
any Liability relating to, arising out of or resulting
from any act or failure to act by any director, officer,
employee, agent or representative (whether or not such
act or failure to act is or was within such person's
authority)); or
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s. any TAM Assets;
whether arising before, on or after the Distribution Date.
Notwithstanding the foregoing, the TAM Liabilities shall not include:
(x) Liabilities allocated to another party
pursuant to the Tax Allocation Agreement;
(y) any Liabilities that are expressly
contemplated by this Agreement or any
Ancillary Licensing Agreements, including the
Schedules hereto or thereto, in particular,
the excluded Liabilities listed on Schedule
1.1(d) hereto) as Liabilities to be retained
or assumed by any ACNielsen Party or by any
Cognizant Party upon any TAM Acquisition; or
(z) any agreement or obligation of (i) any D&B
Party or any Cognizant Party under the
Distribution-Related Agreements or (ii) any
Cognizant Party under this Agreement or any of
the Ancillary Licensing Agreements.
"▇▇▇ ▇▇▇▇▇": the trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles,
service marks, logos and other source or business identifiers, and the
goodwill associated therewith, now existing or hereafter adopted or
acquired for use in connection with the TAM Business, and all
applications in connection therewith, whether in the United States
Patent and Trademark Office or in any similar office or agency of the
United States, any state thereof or any other country or any political
subdivision thereof, or otherwise, including, without limitation, any
thereof referred to on Schedule 1.1(c), and all renewals thereof.
"TAM Personnel": the collective reference to Shared TAM
Employees and to each person employed by any ACNielsen Party after the
Distribution Date, which person devotes all of his or her working hours
to the ACNielsen TAM Business.
"TAM Purchase Price": Book Value, as adjusted in accordance
with Schedule 1.1 (d) plus Transfer Costs.
"TAM Purchaser": any of Cognizant, NMR or a permitted
successor or assign of either that acquires all or part of the
ACNielsen TAM Business pursuant to Article III.
"TAM Technology": the technology set forth on Schedule 1.1(e)
hereto and the schedules to the Ancillary Licensing Agreements.
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"Tax" or "Taxes": taxes on or measured by income, franchise,
gross receipts, sales, use, excise, payroll, personal property, real
property, ad-valorem, value-added, leasing, leasing use or other taxes,
levies, imposts, duties, charges or withholdings of any nature.
Whenever the term "Tax" or "Taxes" is used (including, without
limitation, regarding any duty to reimburse another party for
indemnified taxes or refunds or credits of taxes), it shall include
penalties, fines, additions to tax and interest thereon.
"Technology Licensing Agreement": the collective reference to
one or more nonexclusive technology licensing and support services
agreements substantially in the form of Exhibit A, by and between a
Cognizant Party, as licensor, and one or more ACNielsen Parties, as
licensee and any related permitted sublicensing agreements between
ACNielsen Parties or between an ACNielsen Party and a joint venture
partner.
"Trademark Licensing Agreement": the collective reference to
the nonexclusive trademark licensing agreements covering ▇▇▇ ▇▇▇▇▇ and
substantially in the forms of Exhibits B-1 and B-2 by and between a
Cognizant Party or an ACNielsen Party, as licensor, and one or more
ACNielsen Parties or Cognizant Parties, respectively, as licensee, and
any related permitted sublicensing agreements between ACNielsen
Parties, between Cognizant Parties or between an ACNielsen Party or a
Cognizant Party and a joint venture partner.
"Transfer Costs": costs reasonably attributable to the
transfer of all or that portion of the ACNielsen TAM Business being
offered or sold including, without limitation, transfer taxes and
filing fees, but excluding ACNielsen's (i) accountants' fees incurred
in connection with the determination of Book Value and the TAM Purchase
Price in accordance with Article III, (ii) any investment bankers' fees
incurred by ACNielsen in connection with such transfer or (iii) income
taxes incurred by ACNielsen in connection with such transfer.
"Year Four": the meaning set forth in Section 3.2.
"Year Four Purchaser": the meaning set forth in Section 3.2.
"Year Four Trigger Event": the meaning set forth in Section
3.2.
I.2 References; Interpretation. References in this Agreement
to any gender include references to all genders, and references to the singular
include references to the plural and vice versa. The words "include", "includes"
and "including" when used in this Agreement shall be deemed to be followed by
the phrase "without limitation". Unless the context otherwise requires,
references in this Agreement to Articles, Sections, Exhibits and schedules shall
be deemed references to Articles and Sections of, and Exhibits and schedules to,
this Agreement.
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Unless the context otherwise requires, the words "hereof", "hereby" and "herein"
and words of similar meaning when used in this Agreement refer to this Agreement
in its entirety and not to any particular Article, Section or provision of this
Agreement.
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II
Technology
and Trademarks
II.1 Obligation to License Technology.
(a) Each Cognizant Party shall license to each ACNielsen Party
that so requests, (i) TAM Technology for use in Australia, Ireland and, subject
to Section 2.1(b), India to which such Cognizant Party has rights in commercial
use, (ii) upgrades thereof to the extent required to permit such ACNielsen Party
to fulfill a Contractual Obligation existing on the Distribution Date including,
without limitation, any Contractual Obligation resulting from the exercise of a
unilateral renewal (or other) right by a party other than such ACNielsen Party
and (iii) additional licenses to permit use of new technology in connection with
the technology described in clauses (i) and (ii) to the extent required to
permit such ACNielsen Party to fulfill a Contractual Obligation existing on the
Distribution Date with respect to such country, pursuant to the Technology
Licensing Agreement for the period commencing on the Distribution Date to and
including the later of the fifth anniversary thereof and such date as is
required to permit such ACNielsen Party to fulfill any Contractual Obligation
existing on the Distribution Date, including, without limitation, any
Contractual Obligation resulting from the exercise of a unilateral renewal (or
other) right by a party other than such ACNielsen Party (each such period, a
"License Term") provided that ACNielsen may terminate any or all of such
Licenses prior to the expiration of the License Term upon two months notice to
the licensing Cognizant Party.
(b) (i) Cognizant and ACNielsen will, or will cause the
appropriate Cognizant Party or ACNielsen Party, as the case may be, to
enter into each Technology Licensing Agreement with respect to
Australia and Ireland within thirty days after the Effective Date. In
the event that a Cognizant Party or an ACNielsen Party does not execute
each Technology Licensing Agreement within such period, each such
Technology Licensing Agreement shall be deemed to have been executed on
the Effective Date by the appropriate Cognizant Party and the
appropriate ACNielsen Party in the form attached hereto, and shall be
enforceable against each such party in accordance with its terms.
(ii) Cognizant and ACNielsen will, or will cause the
appropriate Cognizant Party or ACNielsen Party, as the case may be, to
enter into the Technology Licensing Agreement with respect to India
within thirty days after an ACNielsen Party establishes, purchases or
otherwise acquires a TAM Business in India in the manner described in
the penultimate sentence of the definition of "ACNielsen TAM Business";
provided, however, that if ACNielsen abandons its current plans to
begin a TAM Business in India in the manner described in the last
sentence of the definition of "ACNielsen TAM Business", no Cognizant
Party shall have the obligation to enter into such Technology Licensing
Agreement. In the event that a Cognizant Party does not
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execute such Technology Licensing Agreement to the extent and within
the period required by the preceding sentence, such Technology
Licensing Agreement shall be deemed to have been executed by the
appropriate Cognizant Party and the appropriate ACNielsen Party on the
date such ACNielsen Party established, purchased or otherwise acquired
such business in the form attached hereto, and shall be enforceable
against each such party in accordance with its terms.
(c) ACNielsen agrees that ACNielsen or the relevant ACNielsen
Party will pay to Cognizant for as long as such TAM Technology is licensed a
royalty in a dollar amount to be agreed upon.
(d) ACNielsen agrees that ACNielsen or the relevant ACNielsen
Party will reimburse each relevant Cognizant Party for such party's actual costs
of technology maintenance and support services provided to ACNielsen Parties in
Australia, Ireland and India. For such purpose, actual costs shall include
out-of-pocket expenses and overhead allocable to the provision of such services.
The parties agree that Cognizant shall not make a profit nor incur a loss in
connection with the provision of such services.
II.2 Limited Obligation. Nothing contained herein shall
prohibit any ACNielsen Party from amending or modifying any existing Contractual
Obligation relating to the licensed TAM Technology provided that such amendment
or modification does not in any way extend the Cognizant Party licensor's
obligations other than as permitted hereunder.
II.3 Research and Development. (a) Each Cognizant Party, on
the one hand, and each ACNielsen Party, on the other, will maintain ownership
and control over, and will bear all costs with respect to, all technology
research and development originated by such party.
(a) No Cognizant Party or ACNielsen Party shall have any
obligation to share research and development except to the extent expressly set
forth in Section 2.1 or in any Ancillary Licensing Agreement.
II.4 Audit Rights. ACNielsen shall, and shall cause each
relevant ACNielsen Party to, maintain complete and accurate accounts and records
of each ACNielsen Party's revenues in respect of which a royalty is payable
under the relevant Technology Licensing Agreement in accordance with generally
accepted accounting principles. Cognizant shall have the right to cause an audit
during normal business hours of each ACNielsen Party's records referred to in
the first sentence of this Section 2.4 once a year upon reasonable notice.
Cognizant shall bear the cost of any audit performed pursuant to this Section
2.4 except that if, as a result of Cognizant's audit (which shall be calculated
in accordance with generally accepted accounting principles) the royalty owed to
Cognizant is determined to be greater than the royalty determined by ACNielsen
by 10% or more, ACNielsen shall bear the cost of such audit.
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II.5 Trademark Licensing Agreements and Computer Software
License Between the Parties. (a) Cognizant and ACNielsen will, or will cause the
appropriate Cognizant Party or ACNielsen Party, as the case may be, to enter
into each Trademark Licensing Agreement and the Computer Software License within
thirty days after the Effective Date. To the extent that a Cognizant Party or an
ACNielsen Party does not execute each Trademark Licensing Agreement and the
Computer Software License within such period, each such Trademark Licensing
Agreement and the Computer Software License shall be deemed to have been
executed by the appropriate Cognizant Party and the appropriate ACNielsen Party
in the form attached hereto on the Effective Date, and shall be enforceable
against each such party in accordance with its terms.
(b) Without limiting the generality of clause (a), Cognizant
shall grant to ACNielsen a non-exclusive, non-transferable license substantially
in the form of Exhibit B-1, pursuant to which ACNielsen will obtain the right to
use certain trademarks identified in a schedule thereto in the conduct of the
ACNielsen TAM Business for a five-year period commencing on the Effective Date,
all as more specifically set forth in Exhibit B-1. ACNielsen Parties shall have
the right to use such licensed trademarks in every country, other than the
United States and Canada, whether or not such country is set forth on Schedule
1.1(a), except that no ACNielsen Party shall have the right to use trademarks
owned by Cognizant and incorporating the name "Nielsen" (e.g. "▇▇▇▇▇▇▇ Media"
and "▇▇▇▇▇▇▇ Media Research") in countries where no ACNielsen Party is doing
business on the Effective Date. During the term of such Trademark Licensing
Agreement, Cognizant shall not grant any license to use such trademarks to any
person unrelated to either Cognizant or ACNielsen outside the United States and
Canada. Cognizant Parties may, however, use such trademarks worldwide in
connection with any business, including a business that competes directly with
the ACNielsen TAM Business.
(c) ACNielsen shall grant to Cognizant a non-exclusive license
(without right to sub-license to a party unrelated to Cognizant), transferable
only under the circumstances set forth in Section 8.7(b), substantially in the
form of Exhibit B-2 and Exhibit C hereto, pursuant to which Cognizant will
obtain the right to use the "Media Advisor" trademark and/or computer software
programs relating thereto in the conduct of the TAM Business in Canada until the
fifth anniversary of the Distribution Date.
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III
Option to Purchase
III.1 Segregation of ACNielsen TAM Business. (a) ACNielsen
shall, no later than January 1, 1998, produce and deliver to Cognizant or the
then-Optionee a comprehensive, detailed and feasible written plan (the "Plan")
for segregating the ACNielsen TAM Business from other ACNielsen businesses, for
the purpose of rendering feasible the consummation of a TAM Acquisition with
respect to the ACNielsen TAM Business as a whole pursuant to Section 3.2 and
enabling the TAM Purchaser, commencing on the TAM Acquisition Date, to operate
the ACNielsen TAM Business as a going concern without interruption, subject to
Section 3.1(b) below; provided, however, that ACNielsen shall not be required to
create a standalone Corporate Administration pursuant to the Plan to satisfy the
requirements of this Section 3.1(a). The Plan shall be based on the principles
and guidelines set forth on Schedule 3.1(a) and shall include, without
limitation, the following:
(i) complete and correct schedules setting forth the
following in reasonable detail:
(x) each Asset, including each Shared TAM Asset,
employed in connection with the ACNielsen TAM
Business and a description thereof; and
(y) the TAM Personnel and the Shared TAM Employees,
including without limitation persons involved in
Corporate Administration for the ACNielsen TAM
Business, each employee's job description, the
approximate percentage of each employee's time
spent on the TAM Business, if less than all, and a
description of such employee's compensation
(salary, benefits, bonuses and options); and
(ii) provisions identifying Assets and specified TAM
Personnel to be transferred to the TAM Purchaser upon
the consummation of the TAM Acquisition based upon a
fair and equitable allocation of Multiple Use Assets and
Shared TAM Employees together with a transition plan
demonstrating how such transfers would be effected and
that the accomplishment of such transfers in accordance
with the transition plan would enable the TAM Purchaser
to operate the ACNielsen TAM Business as a going concern
without interruption commencing on the TAM Acquisition
Date, subject to Section 3.1(b) below. Such provisions
must expressly address transition arrangements,
technical infrastructure,
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operations, sales, customer relations, and data
collection, transmission and analysis on a
country-by-country basis.
(a) Cognizant, any subsequent Optionee and ACNielsen shall at
all relevant times cooperate in good faith with respect to the Plan. Each such
party will act in good faith in negotiating the allocation of Shared TAM
Employees and Shared TAM Assets. For the period commencing on the date that the
Optionee has given notice of the exercise of the Option and ending on the
earlier of (i) the date the Optionee gives notice that it no longer desires to
acquire the relevant ACNielsen TAM Business and (ii) the first anniversary of
the TAM Acquisition Date, no party shall attempt to solicit for employment or
otherwise influence any ACNielsen employee to accept employment with an employer
other than the employer designated by the Plan for such employee. Prior to the
exercise of the Option, ACNielsen may move employees from one business group to
another or change an employee's job description in good faith in the ordinary
course of business but may not do so with the purpose of adversely affecting
(from the TAM Purchaser's perspective) the allocation of Shared TAM Employees
pursuant to the Plan. Each of Cognizant and ACNielsen understand and acknowledge
that the separation of Shared TAM Employees and Multiple Use Assets will cause
disruption of and create expense for the ACNielsen TAM Business and other
ACNielsen businesses. The parties further agree that the transition arrangements
contained in the Plan regarding Shared TAM Employees and Multiple Use Assets
shall be in accordance with Schedule 3.1(a) and that the parties shall make a
good faith effort to divide the potential disruption and expense to the
ACNielsen TAM Business and the other ACNielsen businesses fairly and equitably.
Each party acknowledges that such party may be required to hire additional
personnel and replace Assets to enable its businesses to operate as going
concerns after the TAM Acquisition.
(b) During the 60 days following delivery of the Plan,
ACNielsen shall afford to the Optionee and its outside accountants, counsel,
financial advisors and other representatives, access during normal business
hours to all officers, employees and information (including, without limitation,
books and records) reasonably necessary for the Optionee to determine the
feasibility of the Plan and ACNielsen's compliance with the terms of this
Agreement relating to the Plan, and shall furnish to the Optionee such
information concerning the ACNielsen TAM Business as the Optionee may reasonably
request. ACNielsen shall respond promptly in writing to any written questions,
objections and counter-proposals submitted by the Optionee in respect of the
Plan.
(c) ACNielsen shall, and shall cause each other ACNielsen
Party, promptly after the Distribution Date to use reasonable efforts (without
expending money or making any contractual concessions) to cause each new and
each existing contract with employees working in the ACNielsen TAM Business to
be assignable to the TAM Purchaser without consent. Contracts (other than
employee contracts) which cannot be assigned shall be addressed in the
transition arrangements of the Plan and ACNielsen will (or will cause the
appropriate ACNielsen Party to) endeavor to obtain the benefits of such contract
for the TAM Purchaser.
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III.2 Option.
(a) Voluntary Option. At any time after the Distribution Date
ACNielsen, acting in good faith, may notify the Optionee in writing that it
desires to sell all or a portion of the ACNielsen TAM Business to the Optionee
(which notice, with respect to TAM Assets constituting less than all of the
ACNielsen TAM Business, must be based upon ACNielsen's good faith intention to
find a purchaser for such TAM Assets), by submitting to the Optionee with such
notification the following items relating to all or the portion of the ACNielsen
TAM Business being offered, (i) the Plan (unless ACNielsen has already submitted
the Plan to the Optionee), (ii) a statement setting forth Book Value and an
estimate of the TAM Purchase Price, each as of a reasonably recent date, setting
forth in reasonable detail the basis for their respective calculations, (iii)
the Financial Statements and (iv) schedules setting forth as of a recent date
(but in no event dating back more than 60 days), all known Liabilities and known
contingent Liabilities not reflected in the Financial Statements which
individually or in the aggregate are material, threatened or pending litigation
matters that individually or in the aggregate are material, material
non-compliance with laws, material required consents, and material Assets
(including contracts) which require approval to be transferred (the "Disclosure
Schedules"). The items set forth in (i), (ii), (iii) and (iv), as they relate to
all or any portion of the ACNielsen TAM Business being offered or sold, are
hereinafter referred to as the "Option Information". Upon receipt of the Option
Information, the provisions of Section 3.2(d), (e), (f) and (g) and the
remaining provisions of this Article III shall apply.
(b) Mandatory Option. If on or prior to the third anniversary
of the Distribution Date, subject to (f) below:
(i) an ACN Change of Control Transaction occurs; or
(ii) any ACNielsen Party executes a binding agreement or
letter of intent (each of which must be subject to the
Cognizant Party's Option rights hereunder) in connection with
the sale or other disposition of TAM Assets that (A) generate
50% or more of the revenue of the ACNielsen TAM Business for
the preceding twelve months or (B) represent greater than 50%
of the TAM Assets before giving effect to such sale or
disposition, including, for purposes of determining whether
the tests in (A) or (B) are met, any prior dispositions that,
when aggregated with the proposed disposition, would cause the
aggregate amount of TAM Assets disposed of collectively by the
ACNielsen Parties in a series of transactions to exceed 50% of
TAM Assets or constitute TAM Assets generating 50% or more of
the revenue of the ACNielsen TAM Business for the twelve
months preceding the first such disposition; provided,
however, that to the extent
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that within three months of such disposition, such ACNielsen
party (A) reinvests or enters into a binding agreement or
letter of intent to reinvest the proceeds from such
disposition of TAM Assets in Assets that are used in
connection with the ACNielsen TAM Business or (B) outsources
or enters into a binding agreement or letter of intent to
outsource to third parties the functions or information
generated by the TAM Assets disposed of, such disposition
shall not be deemed to be an Option Trigger Event or count as
a disposition for purposes of subsequent applications of this
provision; or
(iii) any ACNielsen Party executes a binding agreement or
letter of intent (each of which must be subject to the
Cognizant Party's Option rights hereunder) in connection with
the sale or other disposition of TAM Assets that (A) generate
50% or more of the revenue of the ACNielsen TAM Business in
any country for the preceding twelve months or (B) represent
greater than 50% of the TAM Assets in any country before
giving effect to such sale or disposition, including, for
purposes of determining whether the tests in (A) or (B) are
met, any prior dispositions that, when aggregated with the
proposed disposition, would cause the aggregate amount of TAM
Assets disposed of collectively by the ACNielsen Parties in
such country in a series of transactions to exceed 50% of such
Assets or constitute Assets generating 50% or more of the
revenue in such country for the twelve months preceding such
disposition; provided, however, that to the extent that within
three months of such disposition, such ACNielsen party (A)
reinvests or enters into a binding agreement or letter of
intent to reinvest the proceeds from the proposed disposition
of TAM Assets in such country in Assets that are used in
connection with the TAM Business in such country or (B)
outsources or enters into a binding agreement or letter of
intent to outsource to third parties the functions or
information generated by the TAM Assets disposed of in such
country, such disposition shall not be deemed to be an Option
Trigger Event with respect to such country or count as a
disposition for purposes of subsequent applications of this
provision; or
(iv) any ACNielsen Party adopts a definitive plan or takes
similar definitive action to shut down or otherwise terminate
the operations of the ACNielsen TAM Business in any country or
other geographic area which constitutes a distinct TAM
Business.
ACNielsen must give Cognizant written notice within ten Business Days of such
event and must provide to Cognizant, within sixty Business Days of such event,
the Option Information.
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(c) To the extent that a TAM Acquisition is to be consummated
pursuant to this Article III, ACNielsen shall deliver updated Disclosure
Schedules dated as of the related TAM Acquisition Date to the TAM Purchaser.
Such updated Disclosure Schedules shall include all Liabilities, other than
Liabilities incurred in the ordinary course of business, which would have been
required to be included by ACNielsen in the Disclosure Schedules originally
provided to the Optionee had such Liabilities existed on such date. To the
extent that such updated Disclosure Schedules contain material changes from the
original Disclosure Schedules that would affect the TAM Purchase Price, the TAM
Purchase Price shall be recalculated as of the related TAM Acquisition Date
based on the TAM Assets and TAM Liabilities actually being transferred as set
forth in such schedules. To the extent that the updated Disclosure Schedules
reflect a material adverse change in the relevant ACNielsen TAM Business, the
Optionee shall have the right not to purchase such business.
(d) During the period beginning on the fifteenth day after the
occurrence of the Option Trigger Event and ending no later than the thirtieth
day following the Optionee's receipt of all of the Option Information, ACNielsen
shall provide to Cognizant during ACNielsen's normal business hours (and upon
reasonable notice) reasonable access to (i) members of ACNielsen's management
and ACNielsen's independent accountants and counsel who possess an in-depth
understanding of the ACNielsen TAM Business and (ii) the premises, books and
records of ACNielsen that relate to all or that portion of the ACNielsen TAM
Business proposed to be sold. On or prior to the expiration of the thirty-day
period following the Optionee's receipt of all of the Option Information (the
"Exercise Period"), the Optionee must notify ACNielsen in writing whether the
Optionee desires to acquire all or the portion of the ACNielsen TAM Business
described in the notice in (b) above for the TAM Purchase Price. Failure of the
Optionee timely to give such notice shall be deemed to be notice that the
Optionee does not desire to effect such TAM Acquisition. If the Optionee
notifies ACNielsen that the Optionee desires to effect such TAM Acquisition but
disagrees with the Plan (to the extent not previously agreed) or the calculation
of the TAM Purchase Price, the parties shall promptly negotiate to resolve such
issues during the thirty-day period immediately following receipt of such
notice, notwithstanding any other time period set forth in this Agreement in
respect of the negotiation of the Plan, including Section 3.1(b).
In the event that (x) during the thirty-day negotiation period
referred to in the preceding paragraph, the Optionee and ACNielsen (i) are
unable to agree on a Plan or (ii) are unable to agree on changes to a Plan, or
(y) ACNielsen fails to submit all of the Option Information, as applicable, the
Optionee shall give ACNielsen written notice within ten Business Days thereafter
stating whether the Optionee still desires to acquire the ACNielsen TAM Business
proposed to be sold. If so, the Optionee may submit all or a portion of the Plan
(to the extent delivered) to binding arbitration in accordance with Article V
hereof and the arbitrator shall determine the final provisions of the Plan or
the portion thereof so submitted.
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(e) The parties shall use reasonable efforts to close as soon
as practicable after agreement on the Plan.
(f) Option Tail. In the event that:
(i) any of the events described in (b)(i), (ii) (iii)
or (iv) above occurs within the one-year period after
the third anniversary of the Distribution Date (such
one-year period referred to as "Year Four", and any
such event a "Year Four Trigger Event"), and
(ii) any of the following actions were taken by any
ACNielsen Party during the one-year period prior to
the third anniversary of the Distribution Date: (A)
the adoption by such ACNielsen Party of resolutions
of the board of directors or equivalent body
authorizing the engagement of investment bankers or
financial advisors in contemplation of such Year Four
Trigger Event or otherwise authorizing the ACNielsen
Party to solicit offers or indications of interest
for the purchase of all or part of the ACNielsen TAM
Business, or the entry into discussions with the
third party with whom such Year Four Trigger Event
was ultimately consummated (such party being referred
to as the "Year Four Purchaser") or with any
representative or agent thereof; (B) the engagement
of investment bankers or financial advisors in
contemplation of a Year Four Trigger Event or the
entry into discussions with the Year Four Purchaser
or any representative or agent thereof in
contemplation of a Year Four Trigger Event, whether
or not such action was authorized by the board of
directors or equivalent body or (C) the solicitation
of the Year Four Purchaser to participate in such
Year Four Trigger Event,
then ACNielsen must notify the Optionee of such Year Four Trigger Event and
treat such Year Four Trigger Event as an Option Trigger Event for all purposes
under this Agreement.
(g) Limits on Option. If the Optionee notifies ACNielsen that
it does not desire to exercise an Option to purchase the entire ACNielsen TAM
Business (or chooses not to purchase such business in accordance with (c)
above), the Optionee shall no longer have any right to exercise any Option
hereunder and ACNielsen Parties may sell all or any part of the ACNielsen TAM
Business or TAM Assets without any obligation to the Optionee under this Article
III. If after a notice has been delivered with respect to a part of the
ACNielsen TAM Business, including, without limitation, a particular country or
countries, the Optionee notifies ACNielsen that it does not desire to exercise
its Option with respect to the TAM Assets that are the subject of the original
notification from ACNielsen to the Optionee (or chooses not to purchase such
business in accordance with (c) above), it shall thereafter no longer have any
right to exercise any Option hereunder in respect of such TAM Assets unless such
TAM Assets are
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subsequently offered as part of a larger group of TAM Assets, in which case such
TAM Assets would be subject to the Option rights hereunder as part of such
larger group of TAM Assets.
III.3 Price. ACNielsen will notify the TAM Purchaser in
writing of its final calculation and estimation of the TAM Purchase Price at
least 5 Business Days prior to the closing of the acquisition. The TAM Purchaser
will pay undisputed Transfer Costs on the TAM Acquisition Date and will deposit
any disputed amounts in escrow. ACNielsen will deliver an accounting of the TAM
Purchase Price within 30 days after the TAM Acquisition Date. The TAM Purchaser
must deliver written notice of any objection to any part of such accounting
within 21 days after receipt of such accounting. If the TAM Purchaser delivers
such notice, the provisions of Article V will govern the resolution of all
disputed items.
III.4 Other Terms and Conditions of Exercise. (a) ACNielsen
shall use its reasonable efforts (without expending money or making any
contractual concessions) to obtain assignments of (i) employment contracts of
employees working in the ACNielsen TAM Business whom the TAM Purchaser desires
to retain and (ii) such other contracts constituting TAM Assets as the TAM
Purchaser shall reasonably request.
(a) (i) ACNielsen shall represent in each Asset Purchase
Agreement that ACNielsen has not knowingly or recklessly included in the
information delivered by or on behalf of ACNielsen to the TAM Purchaser,
including the Option Information and information provided pursuant to Section
3.2(c) (the "Disclosure Information"), any untrue statement of a material fact,
or omitted to disclose or state any material fact required to be stated therein
or necessary in order to make the Disclosure Information, in light of the
circumstances under which such information was delivered, not misleading.
(ii) Neither ACNielsen nor any TAM Purchaser shall be required
to make any other representation or warranty in any Asset Purchase Agreement.
(b) No Asset Purchase Agreement shall provide for
indemnification of either party by the other in connection with the TAM
Acquisition, except that the parties shall indemnify each other in respect of
third party claims to the extent provided in Article III of the Distribution
Agreement.
(c) Each Asset Purchase Agreement shall subject the parties
thereto to dispute resolution as provided in Article VI of the Distribution
Agreement.
(d) (i) ACNielsen shall covenant in each Asset Purchase
Agreement not to compete with the TAM Purchaser in the TAM Business for a period
of three years after the TAM Acquisition Date in the country or countries in
which the acquired TAM Business was operated as of such TAM Acquisition Date,
subject to any Contractual Obligation of any ACNielsen Party
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existing on the Distribution Date which Contractual Obligation is not
transferred to the TAM Purchaser.
(ii) Such covenant shall not restrict or limit any ACNielsen
Party's ability to engage in activities relating to computers or to the
Internet, except measurement of viewing of programming of a type that, prior to
the date hereof, primarily has been viewed on television sets via broadcast,
cable and satellite transmission.
(iii) Nothing contained herein shall prevent any ACNielsen
Party from engaging in measurement of accessing or retrieving information, other
than the programming described in clause (ii), on the Internet or otherwise,
even if such accessing or retrieving occurs via a television set.
(e) Each Asset Purchase Agreement shall require ACNielsen to
use reasonable efforts (without expending money) to transfer to the TAM
Purchaser its interests in joint ventures in which ACNielsen or its Affiliates
hold an interest and which are part of the ACNielsen TAM Business being sold.
ACNielsen shall in good faith attempt to obtain the right to assign to the TAM
Purchaser without further consent, such party's interest in any such joint
venture that such party enters into from and after the Effective Date.
III.5 Survival. In the event that Cognizant disposes of a
controlling interest in NMR, the purchaser of such controlling interest shall
succeed to Cognizant's rights and obligations as Optionee under this Article
III.
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IV
INDEMNIFICATION
4.1 Indemnification. Article III of the Distribution Agreement
shall govern the rights of Cognizant Parties and ACNielsen Parties with respect
to indemnification. The term "Cognizant Liabilities" in that Article shall be
read to include all Liabilities assumed by Cognizant Parties pursuant to this
Agreement. The term "ACNielsen Liabilities" in that Article shall be read to
include all Liabilities assumed by ACNielsen Parties pursuant to this Agreement.
V
DISPUTE RESOLUTION
5.1 Dispute Resolution. Article VI of the Distribution
Agreement shall govern the rights of Cognizant Parties and ACNielsen Parties
with respect to dispute resolution. The term "Agreement Dispute" in that Article
shall be read to include all disputes between Cognizant Parties and ACNielsen
Parties relating to or arising out of this Agreement.
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VI
CONDITIONS TO EFFECTIVENESS
6.1 The effectiveness of this Agreement is subject of the
satisfaction, or waiver by the party to whom performance is owed, of the
following conditions:
(a) Occurrence of Distribution Date. The Distribution Date
shall have occurred.
VII
COVENANTS
VII.1 Further Assurances. In case at any time after the
Distribution Date any further action is reasonably necessary or desirable to
carry out the purposes of this Agreement, any Asset Purchase Agreement or any
Ancillary Licensing Agreements, the proper officers of each party to this
Agreement shall take all such necessary action. Without limiting the foregoing,
Cognizant and ACNielsen shall use their reasonable efforts (without expending
money) promptly to obtain all consents and approvals, to enter into all
amendatory agreements and to make all filings and applications that may be
required for the consummation of the transactions contemplated by this
Agreement, any Asset Purchase Agreement and the Ancillary Licensing Agreements,
including, without limitation, all applicable governmental and regulatory
filings.
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VIII
MISCELLANEOUS
VIII.1 Construction. This Agreement, including the Exhibits
and Schedules, and the Ancillary Licensing Agreements shall constitute the
entire agreement between the parties with respect to the subject matter hereof
and shall supersede all previous negotiations, commitments and writings with
respect to such subject matter. In the event and to the extent that there shall
be a conflict between the provisions of this Agreement and the provisions of any
Ancillary Licensing Agreement, this Agreement shall control.
VIII.2 Counterparts. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more such counterparts have been signed
by each of the parties and delivered to the other parties.
VIII.3 Expenses. Except as otherwise expressly set forth in
this Agreement or any Ancillary Licensing Agreement, each party shall bear its
own costs and expenses. Any amount or expense to be paid or reimbursed by any
party hereto to any other party hereto shall be so paid or reimbursed promptly
after the existence and amount of such obligation is determined and demand
therefor is made.
VIII.4 Notices. All notices and other communications hereunder
shall be in writing and hand delivered or mailed by registered or certified mail
(return receipt requested) or sent by any means of electronic message
transmission with delivery confirmed (by voice or otherwise) to the parties at
the following addresses (or at such other addresses for a party as shall be
specified by like notice) and will be deemed given on the date on which such
notice is received:
To Cognizant Corporation: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
To ACNielsen Corporation: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
VIII.5 Waivers. The failure of any party to require strict
performance by any other party of any provision in this Agreement will not waive
or diminish that party's right to demand strict performance thereafter of that
or any other provision hereof.
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VIII.6 Amendments. This Agreement may not be modified or
amended except by an agreement in writing signed by each of the parties hereto.
VIII.7 Assignment. (a) Except as set forth in Article III
above, ACNielsen may not assign this Agreement, in whole or in part, directly or
indirectly, without the prior written consent of Cognizant.
(a) Cognizant may assign this Agreement to a purchaser of a
controlling interest in, or all or substantially all of the Assets of, NMR.
VIII.8 Successors and Assigns. The provisions to this
Agreement shall be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and permitted assigns.
VIII.9 Subsidiaries. Each of the parties hereto shall cause to
be performed, and hereby guarantees the performance of, all actions, agreements
and obligations set forth herein to be performed by any Subsidiary of such party
or by any entity that is contemplated to be a Subsidiary of such party on or
after the Distribution Date.
VIII.10 Third-Party Beneficiaries. Except as provided in
Article IV relating to Indemnities, this Agreement is solely for the benefit of
the parties hereto and their respective Subsidiaries and Affiliates and should
not be deemed to confer upon third parties any remedy, claim, Liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
VIII.11 Titles and Headings. Titles and headings to sections
herein are inserted for the convenience of reference only and are not intended
to be a part of or to affect the meaning or interpretation of this Agreement.
VIII.12 Exhibits and Schedules. The Exhibits and Schedules
shall be construed with and as an integral part of this Agreement to the same
extent as if the same had been set forth verbatim herein.
VIII.13 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
VIII.14 Consent to Jurisdiction. Without limiting the
provisions of Article V hereof, each of the parties irrevocably submits to the
exclusive jurisdiction of (a) the Supreme Court of the State of New York, New
York County, and (b) the United States District Court for the Southern District
of New York, for the purposes of any suit, action or other proceeding
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arising out of this Agreement or any transaction contemplated hereby. Each of
the parties agrees to commence any action, suit or proceeding relating hereto
either in the United States District Court for the Southern District of New York
or if such suit, action or other proceeding may not be brought in such court for
jurisdictional reasons, in the Supreme Court of the State of New York, New York
County. Each of the parties further agrees that service of any process, summons,
notice or document by U.S. registered mail to such party's respective address
set forth above shall be effective service of process for any action, suit or
proceeding in New York with respect to any matters to which it has submitted to
jurisdiction in this Section 8.14. Each of the parties irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in (i) the Supreme Court of the State of New York, New York County, or
(ii) the United States District Court for the Southern District of New York, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
VIII.15 Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions, the economic effect of which comes as close as possible to
that of the invalid, illegal or unenforceable provisions.
VIII.16 Confidentiality. Each of Cognizant and ACNielsen
agrees, on behalf of itself and the other Cognizant Parties and ACNielsen
Parties, respectively, that (i) no such party shall, for a period of three years
from the latest date of delivery of all required Option Information, use or
permit the use of (without the prior written consent of the other) and each such
party shall at all times hereafter keep, and shall cause its consultants and
advisors to keep, confidential all information concerning the other parties in
its possession, its custody or under its control (except to the extent that (A)
such information has been in the public domain through no fault of such party or
(B) such information has been later lawfully acquired from other sources by such
party or (C) this Agreement or any agreement entered into pursuant hereto
permits the use or disclosure of such information) to the extent such
information (w) relates to or was acquired during the period up to the
Distribution Date, (x) relates to any of this Agreement, the Distribution
Agreement or any agreement contemplated hereby or thereby, (y) is obtained in
the course of performing services for the other party pursuant to any such
agreement, or (z) is based upon or is derived from information described in the
preceding clauses (w), (x) or (y), and no party shall not (without the prior
written consent of the other) otherwise release or disclose such information to
any other person, except such party's auditors and attorneys, unless compelled
to disclose such information by judicial or administrative process or unless
such disclosure is required by law and such party has used commercially
reasonable efforts to consult with the other affected party or parties prior to
such disclosure.
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IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the day and year first above written.
COGNIZANT CORPORATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
ACNIELSEN CORPORATION
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
______________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: