Exhibit 10.6


 


EXECUTION COPY


 


 


SECOND AMENDED AND RESTATED


IMS HEALTH GUARANTY


 


by


 


IMS HEALTH INCORPORATED


 


for and in favor of


 


UTRECHT-AMERICA FINANCE CO.


 


and


 


EDAM, L.L.C.


 


 


Effective as of July 1, 2003


 





















 


TABLE OF CONTENTS


 


 


	
  SECTION 1. Definitions

  	
   

  
	
   

  	
   

  
	
  SECTION 2. Obligations

  	
   

  
	
   

  	
   

  
	
  SECTION 3.
  Obligation Absolute

  	
   

  
	
   

  	
   

  
	
  SECTION 4.
  Waiver

  	
   

  
	
   

  	
   

  
	
  SECTION 5. Subrogation

  	
   

  
	
   

  	
   

  
	
  SECTION 6. Costs
  of Enforcement

  	
   

  
	
   

  	
   

  
	
  SECTION 7.
  Representations and Warranties

  	
   

  
	
   

  	
   

  
	
  SECTION 8.
  Covenants

  	
   

  
	
   

  	
   

  
	
  SECTION 9. IMS
  Health Events

  	
   

  
	
   

  	
   

  
	
  SECTION 10.
  Amendments, Etc

  	
   

  
	
   

  	
   

  
	
  SECTION 11.
  Addresses for Notices

  	
   

  
	
   

  	
   

  
	
  SECTION 12. No
  Waiver; Remedies

  	
   

  
	
   

  	
   

  
	
  SECTION 13.
  Accounting Terms

  	
   

  
	
   

  	
   

  
	
  SECTION 14. Assignment

  	
   

  
	
   

  	
   

  
	
  SECTION 15. Severability

  	
   

  
	
   

  	
   

  
	
  SECTION 16. Governing
  Law

  	
   

  
	
   

  	
   

  
	
  SECTION 17.
  Waiver of Jury Trial

  	
   

  
	
   

  	
   

  
	
  SECTION 18.
  Scope of Agreement; Termination

  	
   

  
	
   

  	
   

  
	
  SECTION 19.
  Survival

  	
   

  



 


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This SECOND
AMENDED AND RESTATED IMS HEALTH GUARANTY (the “Agreement”)
is given by IMS HEALTH INCORPORATED, a Delaware corporation (“IMS Health”) on this 1st day of
July, 2003, for and in favor of Utrecht-America Finance Co., a Delaware
corporation (“Utrecht”), and Edam, L.L.C.,
a Delaware limited liability company (“Edam,”
and together with Utrecht, the “Investors”),
as Class Limited Partners, and each of those other persons who become
Class A Limited Partners of IMS Health Licensing Associates, L.P., a
Delaware limited partnership (the “IMS Health Partnership”).


 


INTRODUCTION


 


IMS AG (the “General Partner”), the Investors and
Coordinated Management Systems, Inc. (“CMS”)
are partners in the IMS Health Partnership pursuant to the Eighth Amended and
Restated Agreement of Limited Partnership of IMS Health Licensing Associates,
L.P. effective as of July 1, 2003 (the “Partnership
Agreement”). Each of the General Partner and CMS is a Wholly
Owned Affiliate of IMS Health.


 


As a material inducement
to the Investors to enter into the Partnership Agreement, IMS Health has agreed
to enter into this Agreement for and in favor of the Investors, pursuant to
which IMS Health guarantees certain obligations of the General Partner and CMS
and has agreed to other covenants and representations and warranties as set
forth herein.  This Agreement completely
amends, restates and supersedes that certain Amended and Restated IMS Health
Guaranty in favor of the Investors made by IMS Health and effective as of July 1,
2000.


 


NOW, THEREFORE, in
consideration of the premises, IMS Health hereby agrees, for the benefit and in
favor of the Investors and their successors and assigns (collectively referred
to herein, together with their respective officers, directors, employees,
agents and Affiliates, as the “Indemnitee”),
as follows:


 


SECTION 1. Definitions.


 


Capitalized terms used in
this Agreement which are defined in the Partnership Agreement and not otherwise
defined herein shall have the respective meanings set forth in the Partnership
Agreement.  All other capitalized terms
used in this Agreement shall have the respective meanings set forth below:


 


“1934
Act” means the U.S. Securities and Exchange Act of 1934, as
amended.


 


“1993
Contribution Agreement” means that certain Contribution
Agreement dated as of July 6, 1993 pursuant to which CMS contributed the
intangible assets specified therein to the IMS Health Partnership.


 


“1997
Contribution Agreement” means that certain Contribution
Agreement dated as of January 1, 1997 pursuant to which CMS contributed
the intangible assets specified therein to the IMS Health Partnership.


 





















 


“1998
Contribution Agreement” means that certain Contribution
Agreement dated as of April 29, 1998 pursuant to which CMS contributed the
intangible assets specified therein to the IMS Health Partnership.


 


“2000
Contribution Agreement” means that certain Contribution
Agreement entered into on July 31, 2000 and effective as of July 1,
2000 pursuant to which CMS contributed the software and database assets
specified therein to the IMS Health Partnership.


 


“2003
Contribution Agreement” means that certain Contribution
Agreement dated as of July 1, 2003 pursuant to which CMS contributed the
software and database assets specified therein to the IMS Health Partnership.


 


“Affiliate” means,
with respect to any Person, (i) any Person directly or indirectly
controlling, controlled by or under common control with such Person,
(ii) any officer, director or general partner of such Person, or
(iii) any Person who is an officer, director, general partner or trustee
of any Person described in clauses (i) or (ii) of this sentence.  For purposes of this definition, the term “control,” (including, with
correlative meanings, the terms “controlling,”
“controlled by” or “under common control with”) means
the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.  “Wholly
Owned Affiliate”
of any Person means (i) an Affiliate of such Person 100% of the capital
stock (or its equivalent in the case of entities other than corporations) of
which is owned beneficially by such Person, directly or indirectly, through one
or more Wholly Owned Affiliates, or by any Person who, directly or indirectly,
owns beneficially 100% of the capital stock (or its equivalent in the case of
entities other than corporations) of such Person, and (ii) an Affiliate of
such Person who, directly or indirectly, owns beneficially 100% of the capital
stock (or its equivalent in the case of entities other than corporations) of
such Person; provided that, for purposes of
determining the ownership of the capital stock of any Person, de minimis amounts of stock held by directors, nominees and
similar persons pursuant to statutory or regulatory requirements shall not be
taken into account.


 


“Class
A Limited Partner” means any Person who (i) is
referred to as such in the introductory statement of this Agreement or who has
become a substituted Class A Limited Partner pursuant to the terms of the
Partnership Agreement, and (ii) has not ceased to be a Class A
Limited Partner.


 


“CMS” means
Coordinated Management
Systems, Inc., a Delaware corporation, or any successor in interest.


 


“Consolidated
Subsidiary” means, as to any Person, each Subsidiary of such
Person (whether now existing or hereafter created or acquired) the financial
statements of which shall be (or should have been) consolidated with the
financial statement of such Person in accordance with GAAP.


 


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“Control”
means beneficial ownership of, or control or power to vote, outstanding
securities of IMS Health representing more than 25% of the aggregate ordinary
voting power represented by the issued and outstanding securities of IMS
Health.


 


“Debt”
has the meaning set forth in Section 8(d)(i) hereof.


 


“Edam” means
Edam, L.L.C., a Delaware limited liability company.


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from time
to time, and the regulations promulgated and the rulings issued thereunder.


 


“ERISA
Affiliate” means any corporation or trade or business which is a
member of the same controlled group of corporations (within the meaning of Section 414(c)
of the Code) as IMS Health or is under common control (within the meaning of Section 414(c)
of the Code) with IMS Health.


 


“GAAP”
means generally accepted accounting principles in the United States.


 


“General Partner” means IMS
AG, a Swiss corporation (and successor in interest to IMS Pharminform Holding
AG), or any successor in interest.


 


“Governmental
Authority” means (i) any governmental or political
subdivision thereof whether foreign or domestic, federal, state, county,
municipal or regional or any other governmental authority, (ii) any agency
or instrumentality of any such government, policy subdivision or other
governmental entity, (iii) any court, arbitral tribunal or arbitrator and
(iv) any non-governmental regulating body, to the extent that the rules,
regulations or orders of such body have the force of law.


 


“Guaranty”
has the meaning set forth in Section 2(a) hereof.


 


“IMS Health” means IMS
Health Incorporated (f/k/a Cognizant Corporation), a Delaware corporation, or
any successor in interest.


 


“IMS
Health Event” has the meaning set forth in Section 9
hereof.


 


“IMS
Health Partners” means the General Partner and CMS and
any other Affiliate of IMS Health which may from time to time own an Interest
under the Partnership Agreement.


 


“IMS
Health Partnership” means IMS Health Licensing Associates, L.P.,
a Delaware limited partnership, and any successor in interest.


 


“Indebtedness”
means, as to any Person, at a particular time without duplication, (i) all
indebtedness of such Person for borrowed money or on account of advances made
to such Person or for the deferred purchase price of property (excluding
accounts payable to trade creditors for goods and services which are incurred
in the ordinary course of business and on customary trade terms), in respect of
which such Person is liable or 


 


3





















 


evidenced by any
bond, debenture, note or other instrument; (ii) indebtedness arising under
acceptance facilities and the face amount of all letters of credit issued for
the account of such Person and, without duplication, all drafts drawn
thereunder; (iii) all liabilities secured by any lien on any property
owned by such Person even though it has not assumed or otherwise become liable
for the payment thereof; (iv) obligations under leases which have been, or
under GAAP are required to be, capitalized; and (v) all indebtedness of
others with respect to which such Person has provided a guarantee or otherwise
has agreed to become directly or indirectly liable.


 


“Indemnitee”
has the meaning set forth in the Introduction to this Agreement.


 


“Investment
Documents” means this Agreement, the Partnership Agreement, the
1993 Contribution Agreement, the 1997 Contribution Agreement, the 1998
Contribution Agreement, the 2000 Contribution Agreement and the 2003
Contribution Agreement.


 


“Investors” means
Utrecht and Edam collectively.


 


“Legal
Restriction” means any federal, state, local or foreign statute,
law (including common law), regulation, ordinance, code, rule, judgment, order,
writ, injunction, decree, Permit, concession, grant, franchise, license,
agreement or other governmental restriction, or any applicable interpretation,
guideline or other policy document issued by a Governmental Authority or its
staff, to the extent that such interpretation, guideline or policy has the
force of law or would customarily be complied with in the ordinary course of
conduct of business by a Person subject to such interpretation, guideline or
policy.


 


“Lien”
means any mortgage, pledge, hypothecation, assignment, deposit arrangement,
encumbrance, lien (statutory or other), or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, any conditional sale or other title retention
agreement, any financial lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable law of any jurisdiction in respect of any
of the foregoing).


 


“Margin
Stock” has the meaning given to such term in Regulation U
of the Federal Reserve Board, 12 C.F.R. § 221 et
seq.


 


“Material
Subsidiary” means, at any time, any Subsidiary of IMS Health
other than the IMS Health Partnership that (i) is any of the General
Partner or CMS (ii) has total assets (as shown on the most recent balance
sheet of such Subsidiary prepared in accordance with GAAP) of U.S. $150,000,000
or more.


 


“Multiemployer
Plan” means a multiemployer plan defined as such in Section 3(37)
of ERISA to which contributions have been made by IMS Health or any ERISA
Affiliate and which is covered by Title IV of ERISA.


 


“Partnership
Agreement” has the meaning set forth in the Introduction to this
Agreement.


 


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“Performance
Obligations” has the meaning set forth in Section 2(a)
hereof.


 


“Permit”
means any application, action, approval, consent, waiver, exemption, variance,
franchise, order, permit, certificate, authorization, right or license of or
from any Person.


 


“Person”
means any individual, partnership (whether general or limited and whether
domestic or foreign), limited liability company, corporation, trust, estate,
association, custodian, nominee or other entity.


 


“Plan”
means any “employee pension benefit plan”, as defined in Section 3(2) of
ERISA, and any “employee welfare benefit plan”, as defined in Section 3(1)
of ERISA.


 


“Restricted Margin Stock” means
Margin Stock owned by IMS Health or any Subsidiary which represents not more
than 331/3% of the aggregate value (determined in accordance with
Regulation U), on a consolidated basis, of the property and assets of the
Company and its Subsidiaries (other than any Margin Stock) that is subject to
the provisions of Section 8(d) hereof.


 


“Subsidiary”
means, as to any Person (i) any corporation of which at least a majority
of the outstanding shares of stock whose class or classes have by the terms
thereof ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether or not at the time stock of any other
class or class of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by such Person or one or more Subsidiaries of
such Person and (ii) any partnership or other entity in which such Person
or one or more Subsidiaries of such Person shall have an ownership or
controlling interest (whether in the form of voting or participation in profits
or capital contribution) of more than fifty percent (50%).  “Wholly Owned Subsidiary”
of any Person means any Subsidiary of which all of such shares or ownership
interests, other than (in the case of a corporation) directors’ qualifying
shares, are so owned or controlled.


 


“Unrestricted Margin Stock” means any
Margin Stock owned by IMS Health or any Subsidiary which is not Restricted
Margin Stock.


 


“Utrecht” means
Utrecht-America Finance Co., a Delaware corporation.


 


SECTION 2. Obligations.


 


(a)                                  Performance Guaranty.  IMS Health hereby absolutely,
unconditionally and irrevocably guarantees to each Indemnitee the due and
punctual performance by the General Partner (in its capacity as General Partner
or the Liquidator) and CMS of the terms, conditions, undertakings, covenants,
obligations and indemnities to be performed or observed by them under the
Partnership Agreement and each other Investment Document to which any of them
are parties, as applicable, and under applicable law (such obligations of
performance are hereinafter referred to as the “Performance
Obligations”; such guaranty of the Performance Obligations is
hereinafter referred to as the “Guaranty”).


 


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(b)                                 General Indemnification.


 


(i)                                     IMS Health hereby agrees, absolutely,
unconditionally and irrevocably, to indemnify and hold harmless, to the maximum
extent permitted by law, each Indemnitee from all liability, loss or damage
(including without limitation any special, indirect, direct, or consequential
damages) and reasonable out-of-pocket costs and expenses any of them may incur
or suffer (including without limitation reasonable attorneys’ fees and
expenses) as a result of any misstatement of any material fact contained in any
representation or warranty made by IMS Health, the General Partner or CMS in,
or any breach or default by any of them in the due and punctual performance of
any covenant, obligation or indemnity under, any Investment Document to which
any of them are parties.


 


(ii)                                  Without limiting the generality of the foregoing,
IMS Health agrees to pay each Class A Limited Partner delay damages for
(x) the failure by the Liquidator to pay the full amount of such Class A
Limited Partner’s Capital Account within the time period required by Section 12.02
of the Partnership Agreement, (y) the failure by any IMS Health Partner or
its designee to pay the Purchase Price to any Class A Limited Partner within
the time period required in Section 14.03 of the Partnership Agreement, or
(z) the failure of the IMS Health Partnership to distribute and pay to
such Class A Limited Partner on the applicable Retirement Date the amounts
required to be so distributed and paid pursuant to Section 10.08(b) of the
Partnership Agreement.  Delay damages for
any such Class A Limited Partner shall be in an amount, accrued and
payable daily without demand, calculated as the excess, if any, of (A) an
amount equal to interest at 2.5% per annum in excess of the London Inter Bank
Offered Rate at approximately 11:00 a.m. London time on such day for
three-month Eurodollar deposits offered by prime banks in the Eurodollar market
on the amount not distributed or paid over (B) any amount of Priority
Return (whether distributed or paid as part of the Purchase Price) paid to such
Class A Limited Partner.


 


SECTION 3. Obligation
Absolute.


 


To the maximum extent
permitted by law, the obligation of IMS Health under the Guaranty shall be
absolute and unconditional irrespective of:


 


(a)                                  Any lack of validity or enforceability of any of
the Performance Obligations or any provision of applicable law or regulation
purporting to prohibit the Performance Obligations; or


 


(b)                                 Any change in the time, manner or place of
performance, or in any other term, of all or any of the Performance Obligations,
or any other amendment or waiver of or any consent to departure from the
Investment Documents, including, without limitation, any increase in or
modification of the Performance Obligations or the dissolution of the IMS
Health Partnership; or


 


(c)                                  Any change, restructuring or termination of the
corporate structure, existence or ownership of the IMS Health Partnership, the
General Partner or CMS; or


 


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(d)                                 Any other circumstance, including without limitation
any statute of limitation, which might otherwise constitute a defense (other
than a defense of payment or performance) available to, or a discharge of, the
General Partner, CMS or IMS Health or a guarantor or indemnitor generally; or


 


(e)                                  Any act or omission of any Indemnitee or any past
or future Indemnitee; or


 


(f)                                    The existence of any claims, setoff or other right
that IMS Health may have hereunder or under any other document at any time
against any Indemnitee, the IMS Health Partnership, the General Partner, CMS or
any other Person (but the foregoing shall not constitute a waiver or surrender
of any such rights).


 


Without limiting the
generality of the foregoing, IMS Health’s liability hereunder shall extend to
all liability, loss or damage and reasonable out-of-pocket costs and expenses
incurred or suffered by an Indemnitee arising from any breach of or failure to
perform any Performance Obligations for which the General Partner or CMS would
have been obligated under the Investment Documents but for the fact that such
Performance Obligation is unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving the General
Partner or CMS, as the case may be.  The obligations of IMS Health under this
Agreement are independent of the Performance Obligations and a separate action
or actions may be brought and prosecuted against IMS Health to enforce this
Agreement, irrespective of whether any action is brought against the General
Partner or CMS or whether the General Partner or CMS is joined in any such
action or actions.  Such action or actions may be brought by the
Indemnitee without the necessity of joining any prior Indemnitee in such action
or actions.  IMS Health’s obligations
under this Agreement shall continue to be effective or be reinstated, as the
case may be, if at any time any payment by IMS Health, the General Partner or
CMS in satisfaction of any of their respective Performance Obligations is
rescinded or must otherwise be returned upon the insolvency, bankruptcy or
reorganization of any of IMS Health, the IMS Health Partnership, the General
Partner or CMS or otherwise, all as though such payment had not been made.


 


SECTION 4. Waiver.


 


IMS Health hereby waives
promptness, presentment, demand, protest, diligence, and any other notice with
respect to any of the Performance Obligations and IMS Health’s obligations
under this Agreement and any requirement that the Indemnitee exhaust any right
or take any action against the IMS Health Partnership, the General Partner or
CMS or any other person or entity.


 


SECTION 5. Subrogation.


 


(a)                                  IMS Health understands that the exercise by any
Indemnitee of certain rights and remedies contained in the Investment Documents
may affect or eliminate IMS Health’s right of subrogation against the General
Partner or CMS and that IMS Health may therefore incur a partially or totally
nonreimbursable liability hereunder; nevertheless, IMS Health hereby authorizes
and empowers each Indemnitee to exercise any right or remedies, or any
combination thereof, which may then be available even if the effect of such
exercise is to affect or eliminate IMS Health’s right of subrogation as
aforesaid, since it is the intent and purpose of IMS Health 


 


7





















 


that the obligations of IMS
Health hereunder shall be absolute, independent and unconditional under any and
all circumstances.


 


(b)                                 IMS Health shall not exercise any rights which it
may acquire by way of subrogation under this Agreement, by any payment made
hereunder or otherwise, until all the Performance Obligations shall have been
indefeasibly paid in full in cash or performed in full.  If any amount
shall be paid to IMS Health on account of such subrogation rights at any time
when all the Performance Obligations shall not have been paid in full in cash,
such amount shall be held in trust for the benefit of the Indemnitee and shall
forthwith be paid to the Indemnitee to be credited and applied to the
Performance Obligations, whether matured or unmatured, in accordance with the
terms of the Investment Documents.  If
(i) IMS Health shall make payment to the Indemnitee of all or any part of
the Performance Obligations and (ii) all the Performance Obligations shall
be paid in full in cash, the Indemnitee shall, at IMS Health’s request and
expense, execute and deliver to IMS Health appropriate documents, without
recourse and without representation or warranty, necessary to evidence the
transfer by subrogation to IMS Health of an interest in the Performance
Obligations resulting from such payment by IMS Health.


 


SECTION 6. Costs of
Enforcement.


 


IMS Health hereby agrees
to pay any and all reasonable out-of-pocket costs and expenses (including
attorneys’ fees and expenses) incurred by any Indemnitee in maintaining and
enforcing any rights under this Agreement.


 


SECTION 7.
Representations and Warranties.


 


IMS Health hereby
represents and warrants as follows:


 


(a)                                  Existence and Power.  Each of
IMS Health and its Material Subsidiaries (i) is a corporation duly
organized and validly existing under the laws of the jurisdiction of its
incorporation (or, in the case of a Subsidiary that is not a corporation, is a
partnership or other entity duly organized and validly existing under the laws
of its jurisdiction of organization); (ii) has all corporate or
partnership power (as applicable), and has all material Permits, necessary to
own its assets and carry on its business as now being or as proposed to be
conducted; and (iii) is qualified to do business as a foreign corporation
in all jurisdictions in which the nature of the business conducted by it makes
such qualification necessary and where failure to so qualify would have a
material adverse effect on the consolidated financial condition, operations,
business, or prospects of IMS Health and its Consolidated Subsidiaries, taken
as a whole.


 


(b)                                 Authority; Validity.  IMS
Health has all necessary corporate power and authority to execute, deliver and
perform its obligations under this Agreement; the execution, delivery and
performance by IMS Health of this Agreement has been duly authorized by all
necessary corporate action on its part; and this Agreement has been duly and
validly executed and delivered by IMS Health and constitutes the legal, valid
and binding obligation of IMS Health, enforceable in accordance with its terms.


 


(c)                                  Conflicts; Consents.  None of
the execution and delivery by IMS Health of this Agreement, the consummation by
IMS Health of the transactions contemplated herein and 


 


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compliance by IMS Health with the
terms and provisions hereof will conflict with or result in a breach of, or
require any consent under, the charter or by-laws of IMS Health, or any
applicable Legal Restriction, or any order, writ, injunction or decree of any
Governmental Authority, or any agreement or instrument to which IMS Health is a
party or by which it is bound or to which it is subject, or constitute a
default under any such agreement or instrument, except any conflict, breach, or
default that would not have a material adverse effect on IMS Health or any
consent that, if not obtained, would not have a material adverse effect on IMS
Health.


 


(d)                                 Approvals.  No
waiver, consent or approval by, notification of or filing with, or any other
action by, any Person is required in connection with the execution, delivery
and performance by IMS Health of this Agreement or the consummation by IMS
Health of the transactions contemplated hereby.


 


(e)                                  Pension Plans.  IMS
Health and its ERISA Affiliates have fulfilled their respective obligations
under the minimum funding standards of ERISA and the Code with respect to each
Plan and are in compliance in all material respects with the presently
applicable provisions of ERISA and the Code, and have not incurred any
liability to the Pension Benefit Guaranty Corporation or any Plan or
Multiemployer Plan (other than to make contributions in the ordinary course of
business).


 


(f)                                    Litigation.  Except as
stated in IMS Health’s Annual Report on Form 10-K for the year ended December 31,
2002 and on its Form 10-Q for the quarter ended March 31, 2003, there
is no action, suit or proceeding pending against, or to the best knowledge of
IMS Health, threatened against or affecting, IMS Health or any of its assets,
before or by any Governmental Authority in which there is a reasonable
possibility of an adverse decision which would (i) materially adversely
affect the business, financial position, results of operations or prospects of
IMS Health, or (ii) affect the legality, validity or enforceability of
this Agreement or any other Investment Document or the transactions
contemplated hereby or thereby.


 


(g)                                 Investment Company Act.  Neither
IMS Health nor any of its Subsidiaries is an “investment company”, or a company
“controlled” by an “investment company”, within the meaning of the Investment
Company Act of 1940, as amended.


 


(h)                                 Public Utility Holding Company
Act.  Neither IMS Health nor any of its
Subsidiaries is a “holding company”, or an “affiliate” of a “holding company”
or a “subsidiary company” of a “holding company”, within the meaning of the
Public Utility Holding Company Act of 1935, as amended.


 


(i)                                     Obligations Pari Passu.  The obligations of IMS Health under this
Agreement do rank and will rank at least pari passu in
priority of payment with all other unsecured indebtedness of IMS Health which
is not subject to any subordination provisions.


 


(j)                                     Solvency.  IMS Health was solvent immediately prior
to the execution of this Agreement and will not, as a result of the
transactions contemplated hereby, be rendered insolvent.


 


9





















 


SECTION 8. Covenants.


 


IMS Health covenants and
agrees that, until the payment by it in full of all amounts payable by it
hereunder, it will, unless the Indemnitee shall otherwise consent in writing:


 


(a)                                  Financial Statements.  IMS Health shall deliver to each Class A
Limited Partner:


 


(i)                                     As soon as available and in any event within fifty
(50) days after the end of each quarterly fiscal period (other than the final
quarterly period) of each fiscal year of IMS Health, consolidated statements of
income and cash flows of IMS Health and its Consolidated Subsidiaries for such
period and for the period from the beginning of the respective fiscal year to
the end of such period, and the related consolidated statement of financial
position as at the end of such period, setting forth in each case in
comparative form the corresponding consolidated financial statements for the
corresponding period in the preceding fiscal year;


 


(ii)                                  As soon as available and in any event within
ninety-five (95) days after the end of each fiscal year of IMS Health,
consolidated statements of income, cash flows and stockholders’ equity of IMS
Health and its Consolidated Subsidiaries of such year and the related
consolidated statement of financial position as at the end of such year,
setting forth in each case in comparative form the corresponding consolidated
financial statements for the preceding fiscal year, and accompanied by an
unqualified opinion thereon of PricewaterhouseCoopers LLP or any other
independent certified public accountants of recognized national standing, which
opinion shall state that said consolidated financial statements fairly present
in all material respects the consolidated financial condition and results of
operations of IMS Health and its Consolidated Subsidiaries as at the end of,
and for, such fiscal year;


 


(iii)                               Promptly upon their becoming available, copies of
all registration statements and regular periodic reports (other than
registration statements filed on Form S-8 and pricing supplements), if any,
which IMS Health shall have filed with the U.S. Securities and Exchange
Commission (or any Governmental Authority substituted therefor) or any national
securities exchange; and


 


(iv)                              Promptly upon the mailing thereof to the
shareholders of IMS Health generally, copies of all reports and proxy
statements so mailed.


 


IMS Health will be deemed to have complied with the
requirements of Section 8(a)(i) hereof if within 50 days after the end of
each quarter (other than the final quarter) of each of its fiscal years, a copy
of IMS Health’s Form 10-Q as filed with the Securities and Exchange
Commission with respect to such quarter is furnished to each Class A Limited
Partner, and IMS Health will be deemed to have complied with the requirements
of Section 8(a)(ii) hereof if within 95 days after the end of each of its
fiscal years, a copy of IMS Health’s Annual Report and Form 10-K as filed
with the Securities 


 


10





















 


and
Exchange Commission with respect to such year is furnished to each Class A
Limited Partner.


 


(b)                                 Corporate Existence, Etc.  IMS Health will, and will cause each of its
Material Subsidiaries to: (i) preserve and maintain its legal existence
and maintain its good standing in the jurisdiction of its incorporation or
organization and in each other jurisdiction in which the failure to do so could
reasonably be expected to have a material adverse effect on the financial
condition of IMS Health and its Material Subsidiaries, taken as a whole (provided that nothing in this Section 8(b) shall
prohibit any transaction expressly permitted under Section 8(d) hereof);
(ii) comply in all material respects with the requirements of all
applicable Legal Restrictions other than those the non-compliance with which
would not have a material adverse effect on the business, property, condition
(financial or otherwise) of IMS Health and its Material Subsidiaries, taken as a
whole; and (iii) pay and discharge all taxes imposed on it or on its
income or profits or on any of its property prior to the date on which
penalties attach thereto, except for any such tax the payment of which is being
contested in good faith and by proper proceedings or against which adequate
reserves are being maintained.


 


(c)                                  Mergers.  IMS Health shall not consolidate with or
merge into any other Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, unless the Person formed by
such consolidation or into which IMS Health is merged or the Person which
acquires by conveyance or transfer, or which leases the properties and assets
of IMS Health substantially as an entirety expressly assumes in writing the due
and punctual payment of all obligations and the performance of every obligation
of IMS Health to be paid or performed hereunder.


 


(d)                                 Liens, Etc.  IMS Health will not, nor will it permit any
Subsidiary to, create, incur, assume or permit to exist any Lien upon any of
its assets, whether now owned or hereafter acquired, except:


 


(i)                                     Liens existing on the date hereof, which are
reflected in the balance sheet referred to in Section 8(a)(i) hereof or
the footnotes thereto; and renewals, extensions and continuations thereof, provided that such renewals, extensions and continuations
shall not (A) increase the amount of Indebtedness secured thereby, or
(B) extend the coverage thereof beyond the original coverage of such Lien;


 


(ii)                                  Liens for taxes, assessments or other governmental
charges not yet delinquent or being contested in good faith and by appropriate
proceedings; Liens in connection with workers’ compensation, unemployment
insurance or other social security obligations; Liens securing the performance
of bids, tenders, contracts, surety and appeal bonds; Liens to secure progress
or partial payments and other Liens of like nature arising in the ordinary
course of business; mechanics’, workmen’s, materialmen’s or other like Liens
arising in the ordinary course of business in respect of obligations which are
not yet due or which are being contested in good faith; and other Liens arising
in the ordinary course of business and incidental to the conduct of the
business of IMS Health or such 


 


11





















 


Subsidiary or to the ownership of its properties
or assets, which were not incurred in connection with the borrowing of money
and which do not materially detract from the value of its properties or assets
or materially affect the use thereof in the operation of its business;


 


(iii)                               Liens in respect of judgments and awards to the
extent that such judgments or awards are being contested in good faith and
adequate insurance or appropriate reserves are maintained with respect thereto
on the books of IMS Health to the extent required by GAAP and so long as
execution is not levied thereunder;


 


(iv)                              Liens on property acquired after the date hereof
which Liens existed when such property was acquired, and extensions and
renewals of such Liens; provided that
no such extension or renewal shall increase the aggregate amount of
Indebtedness secured thereby, nor add to the property subject to such Lien;


 


(v)                                 any Lien on any asset securing Indebtedness
incurred or assumed for the purpose of financing all or any part of the cost of
acquiring or improving such asset; provided that
such Lien attaches to such asset concurrently with or within 120 days after the
acquisition or completion of the improvement thereof;


 


(vi)                              other Liens incurred by IMS Health in the ordinary
course of its business, provided that
the aggregate amount of Indebtedness secured by all Liens permitted by this
clause (vi) shall not exceed $20,000,000 in the aggregate;


 


(vii)                           zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions, waivers, restrictions on the
use of property or minor irregularities of title which do not in the aggregate
materially detract from the value of its property or assets or materially
impair the use thereof in the operations, business or prospects of IMS Health
or its Subsidiaries;


 


(viii)                        Liens on the property or assets of any Subsidiary
in favor of IMS Health or any wholly owned Subsidiary; and


 


(ix)                                Liens on Unrestricted Margin Stock.


 


SECTION 9. IMS Health Events.


 


For purposes of this
Agreement, an “IMS Health Event” shall
occur:


 


(a)                                  Upon
a material breach of any material representation or warranty contained herein;


 


(b)                                 If
and when IMS Health or any of its Subsidiaries shall (i) fail to make any
payment of principal of or interest on any Indebtedness of IMS Health or any
Subsidiary when due (whether at stated maturity, by acceleration, on demand or
otherwise after 


 


12





















 


giving effect to any applicable grace period), (ii) fail to
observe or perform any covenant or agreement contained in any agreement or
instrument (existing on the date hereof or entered into hereafter, in each
case, without giving effect to any amendment, supplement or other modification
thereto after the date hereof, unless each Class A Limited Partner has
consented in writing to any such amendment, supplement or other modification)
relating to any Indebtedness of, or guaranteed by, IMS Health or any Subsidiary
within any applicable grace period, or any other event (other than a voluntary
sale or transfer of property or assets securing any Indebtedness) shall occur
if the effect of such failure or other event is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders) to cause (determined without regard to whether any notice is
required), any such Indebtedness to become due prior to its stated maturity or
(iii) have any Indebtedness of IMS Health or any of its Subsidiaries
declared to be due and payable, or required to be prepaid other than by a
regularly scheduled required prepayment, prior to the stated maturity thereof; provided that it shall not constitute a IMS Health Event
pursuant hereto unless the aggregate amount of all Indebtedness referred to in
each of clause (i), (ii) or (iii) above exceeds $50,000,000 at any one time; or


 


(c)                                  If
and when (i) any person or group (as such term is defined in Section 13(d)
of the 1934 Act and the rules and regulations promulgated thereunder, all as in
effect on the date hereof) shall attain or acquire Control of IMS Health or
(ii) at any time or during any calendar year, more than 50% of the full
Board of Directors of IMS Health shall have resigned or retired or been removed
or replaced; provided that a vacancy on the
Board of Directors that is created or filled as a result of the death,
disability, resignation or retirement of a director shall not be included in
any determination of whether a IMS Health Event has occurred pursuant to this
subparagraph (c) to the extent that, if such vacancy is filled, it is
filled by a successor director elected or designated by a majority of those
directors who either (A) were directors at the commencement of such year
or (B) were appointed by persons who were themselves directors at the
commencement of such year.


 


SECTION 10. Amendments, Etc


 


No amendment or waiver of
any provision of this Agreement, and no consent to any departure by IMS Health
herefrom, shall in any event be effective unless the same shall be in writing
and signed by each Class A Limited Partner and then such waiver or consent
shall be effective only against the Class A Limited Partner signing the
same and only in the specific instance and for the specific purpose for which
given.


 


SECTION 11.
Addresses for Notices.


 


All notices and other
communications provided for hereunder shall be in writing (including
telecopier, telegraphic, telex or cable communication, and in each such case
only if a copy thereof is promptly provided by mail) and mailed, telecopied,
telegraphed, telexed, cabled or delivered to it, if to IMS Health, at its
address at 1499 Post Road, Fairfield, Connecticut 06824, Attention: General
Counsel (Facsimile: (203) 319-4552), and if to any Class A Limited
Partner, at such Class A Limited Partner’s address referred to in the
Partnership Agreement or 


 


13





















 


otherwise provided
to the General Partner, with copies to such Persons as IMS Health or any
Indemnitee may specify by notice to each other from time to time.  All
such notices and other communications shall, when mailed, telecopied,
telegraphed, telexed, cabled, or delivered, be effective when received.


 


SECTION 12. No Waiver;
Remedies.


 


No failure on the part of
any Indemnitee to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right.  The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.


 


SECTION 13. Accounting
Terms.


 


All accounting terms not
specifically defined herein shall be construed in accordance with GAAP
consistently applied, except as otherwise stated herein.


 


SECTION 14. Assignment.


 


This Agreement shall
(i) be binding upon IMS Health and its successors, and (ii) inure to
the sole and exclusive benefit of, and be enforceable by, each Indemnitee (each
of whom or which shall be deemed a third party beneficiary of this Agreement)
and each Indemnitee’s successors, transferees and assigns.  No other Person shall be entitled to any
benefit hereunder.


 


SECTION 15. Severability.


 


If any one or more
provisions contained in this Agreement shall, for any reason, be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, but
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.


 


SECTION 16. Governing Law.


 


THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.


 


SECTION 17. Waiver of Jury
Trial.


 


IMS Health irrevocably
waives to the extent permitted by law all rights to trial by jury in any
action, proceeding or counterclaim arising out of or relating to this
Agreement.


 


SECTION 18.
Scope of Agreement; Termination.


 


This Agreement
constitutes the entire agreement of IMS Health and supersedes all prior written
and oral agreements and understandings with respect to the subject matter
hereof between and among IMS Health and any Indemnitee.  IMS Health’s obligations hereunder shall
continue in full force and effect until the earlier to occur of:


 


14





















 


(i)                                     The date on which all of the Performance
Obligations have been performed in full; or


 


(ii)                                  The date on which the Certificate of Cancellation
of the Certificate of Limited Partnership of the IMS Health Partnership is
filed with the Secretary of State of the State of Delaware;


 


provided, however, that
this Agreement shall continue in full force and effect for all Performance
Obligations accrued with respect to the period up to and including the date of
termination of this Agreement.


 


SECTION 19. Survival.


 


Without prejudice to the
survival of any other agreement of IMS Health hereunder, the agreements and
obligations of IMS Health contained in this Agreement shall survive (a) the
completion of performance by the General Partner and CMS of their respective
Performance Obligations, (b) Transfer (whether or not such Transfer was a
Permitted Transfer) by the General Partner and CMS of all or any portion
of their respective Interests in the IMS Health Partnership, (c) any
termination of the General Partner’s status as the general partner, or in the
case of CMS, status as a limited partner, pursuant to the Partnership
Agreement, and (d) any Indemnitee’s terminating or changing its status in
relation to the IMS Health Partnership.


 


 


[Signatures follow on next page.]


 


15





















 


IN WITNESS WHEREOF, the
parties have entered into this Agreement as of the date first above written.


 


 


	
   

  	
  IMS
  HEALTH INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By 

  	
   /s/ John R. Walsh

  	
   

  
	
   

  	
  Name:

  	
  John R. Walsh

  
	
   

  	
  Title:

  	
  Vice President
  and Treasurer

  
	
   

  
	
  Acknowledged and
  Agreed

  
	
  as of the date
  first above written:

  
	
   

  
	
  UTRECHT-AMERICA
  FINANCE CO.

  
	
   

  
	
   

  
	
  By

  	
   /s/ Kevin P. Moclair

  	
   

  
	
   

  	
  Name:

  	
  Kevin P. Moclair

  
	
   

  	
  Title:

  	
  AT

  
	
   

  
	
   

  
	
  By

  	
   /s/ Nancy J. McIver

  	
   

  
	
   

  	
  Name:

  	
  Nancy J. McIver

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
  EDAM,
  L.L.C.

  
	
  By

  	
  Merel Corp.

  
	
   

  	
  Its Managing
  Member

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   /s/ Nancy J. McIver

  	
   

  
	
   

  	
  Name:

  	
  Nancy J. McIver

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   /s/ Chris G. Kortlandt

  	
   

  
	
   

  	
  Name:

  	
  Chris G.
  Kortlandt

  
	
   

  	
  Title:

  	
  Treasurer