Exhibit
10.2


 


EXECUTION
COPY


 


THIRD 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 March 17, 2005


 





















 


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 THIRD AMENDED AND RESTATED
IMS HEALTH GUARANTY (the “Agreement”)
is given by IMS HEALTH INCORPORATED, a Delaware corporation (“IMS Health”), as of the 17th day of
March, 2005, 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 A Members, and each of those other persons who become Class A
Members of IMS Health Licensing Associates, L.L.C., a Delaware limited liability
company (the “IMS Health LLC”).


 


INTRODUCTION


 


IMS Health, IMS AG, the Investors and Coordinated
Management Systems, Inc. (“CMS”)
were partners in IMS Health Licensing Associates, L.P., a Delaware limited
partnership (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”), until 9:05 A.M.,
New York time on the date hereof, whereupon the IMS Health Partnership was
converted (the “Conversion”) to a Delaware limited liability company.


 


IMS Health, IMS AG, the Investors and CMS are currently
members of the IMS Health LLC pursuant to the Agreement of Limited Liability
Company of IMS Health Licensing Associates, L.L.C. effective as of the date
hereof (the “Operating Agreement”). Each
of IMS AG and CMS is a Wholly Owned Affiliate of IMS Health.


 


As a material inducement to the Investors to consent
to the Conversion and enter into the Operating 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 IMS AG 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 Second
Amended and Restated IMS Health Guaranty in favor of the Investors made by IMS
Health and effective as of July 1, 2003.


 


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 Operating Agreement and not otherwise defined herein shall have
the respective meanings set forth in the Operating 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 Member”
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 Member
pursuant to the terms of the Operating Agreement, and (ii) has not ceased
to be a Class A Member.


 


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“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.


 


“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.


 


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


 


“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.


 


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


 


“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 LLC”
means IMS Health Licensing Associates, L.L.C., a Delaware limited liability
company, and any successor in interest.


 


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


 


“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 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 Operating Agreement, the 1993 Contribution Agreement,
the 1997 Contribution Agreement, the 1998 Contribution Agreement, the 2000
Contribution Agreement, the 2003 Contribution Agreement and the Partnership
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 LLC
that (i) is any of the IMS AG or CMS (ii) has total assets (as


 


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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.


 


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


 


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


 


“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.


 


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“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 IMS AG and CMS of the terms, conditions, undertakings, covenants,
obligations and indemnities to be performed or observed by them under the Operating
Agreement and each other Investment Document to which any of them is a party,
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”).


 


(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, IMS AG 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 Member delay damages for
(x) the failure by the Liquidator to pay the full amount of such Class A
Member’s Capital Account within the time period required by Section 12.02
of the Operating Agreement, (y) the failure by any IMS Health Member or
its designee to pay the Purchase Price to any Class A Member within the
time period required in Section 14.03 of the Operating Agreement, or
(z) the failure of the IMS Health LLC to distribute and pay to such Class A
Member on the applicable Retirement Date the amounts required to be so
distributed and paid pursuant to Section 10.08(b) of the Operating
Agreement. Delay damages for any such Class A Member 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 Member.


 


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


 


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(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 LLC; or


 


(c)                                  Any change, restructuring or termination of the
corporate structure, existence or ownership of the IMS Health LLC, IMS AG
or CMS; or


 


(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, IMS AG, 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 LLC, IMS AG, 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 IMS AG 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 IMS AG 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 IMS AG or CMS or whether IMS AG
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, IMS AG 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 LLC, IMS AG 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 LLC, IMS AG or CMS or any other person or entity.


 


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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 IMS AG 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 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.


 


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(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 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,
2004, 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.


 


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(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.


 


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
Member:


 


(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.


 


10





















 


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 Member, 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 and Exchange
Commission with respect to such year is furnished to each Class A Member.


 


(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,


 


11





















 


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 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:


 


12





















 


(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 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 Member 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
Member and then such waiver or consent shall be effective only against the Class A
Member signing the same and only in the specific instance and for the specific
purpose for which given.


 


13





















 


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 Member, at such Class A Member’s address referred
to in the Operating Agreement or otherwise provided to IMS Health, 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.


 


14





















 


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:


 


(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 Formation of IMS Health LLC 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 IMS AG and CMS of their respective Performance Obligations,
(b) Transfer (whether or not such Transfer was a Permitted Transfer)
by IMS AG and CMS of all or any portion of their respective Interests
in the IMS Health LLC, (c) any termination of IMS AG’s or CMS’ status
as a member pursuant to the Operating Agreement, and (d) any Indemnitee’s
terminating or changing its status in relation to the IMS Health LLC.


 


[Signatures
follow on the next page]


 


15





















 


IN WITNESS WHEREOF, the parties have entered into this
Agreement as of 9:05 A.M. on the date first above written.


 


 


	
   

  	
  IMS HEALTH INCORPORATED

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Robert H. Steinfeld

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Robert H. Steinfeld

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President,
  General Counsel

  & Corporate Secretary

  
	
   

  	
   

  
	
  Acknowledged and Agreed

  	
   

  
	
  as of the date first
  above written:

  	
   

  
	
   

  	
   

  
	
  UTRECHT-AMERICA FINANCE CO.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
  /s/
  Nancy J. McIver

  	
   

  	
   

  
	
   

  	
  Name: Nancy J.
  McIver

  	
   

  
	
   

  	
  Title:   Vice
  President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/ J.W. den Baas

  	
   

  	
   

  
	
   

  	
  Name: J.W. den Baas

  	
   

  
	
   

  	
  Title:   Vice
  President

  	
   

  
	
   

  	
   

  	
   

  
	
  EDAM, L.L.C.

  	
   

  
	
  By

  	
  Merel Corp.

  	
   

  
	
   

  	
  Its Managing Member

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/ Kevin Moclair

  	
   

  	
   

  
	
   

  	
  Name: Kevin Moclair

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
  /s/ J.W. den Baas

  	
   

  	
   

  
	
   

  	
  Name: J.W. den Baas

  	
   

  
	
   

  	
  Title:   Vice President

  	
   

  
							



 


THIS IS
THE SIGNATURE PAGE TO THE THIRD AMENDED AND RESTATED GUARANTY (2005) MADE
BY IMS HEALTH INCORPORATED