**EXHIBIT 10.1**

 

**AMENDED AND RESTATEDINDEMNITY AND JOINT DEFENSE AGREEMENT**

 

This Amended and Restated Indemnity and JointDefense Agreement (this “Agreement”), is entered into as of July 30,2004, by and among VNU, N.V., a corporation organized under the laws of theNetherlands (“VNU”), VNU, Inc., a New York corporation and a whollyowned subsidiary of VNU (“VNU Inc.”), ACNielsen Corporation, a Delawarecorporation and a wholly owned subsidiary of VNU (“ACNielsen”), ACNielsen (US), Inc., a Delaware corporation and a wholly owned subsidiary of VNUInc. (“New ACN”), Nielsen Media Research, Inc. (formerly, CognizantCorporation (“Cognizant”)), a Delaware corporation and a wholly ownedsubsidiary of VNU Inc. (“NMR”), R.H. Donnelley Corporation (formerly,The Dun & Bradstreet Corporation (“Old D&B”)), a Delawarecorporation (“Donnelley”), The Dun & Bradstreet Corporation, aDelaware corporation (“D&B”), Moody’s Corporation, a Delawarecorporation (“Moody’s”), and IMS Health Incorporated, a Delawarecorporation (“IMS”) (each individually, a “Party,” andcollectively, the “Parties”).

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**WHEREAS**, OldD&B, ACNielsen Company (a subsidiary of ACNielsen) and I.M.S.International, Inc. (formerly a subsidiary of Cognizant and a predecessor ofIMS) have been named as defendants in an action commenced by InformationResources, Inc. (“IRI”) by the filing of its complaint dated July 29,1996 in the action captioned Information Resources, Inc. v. The Dun &Bradstreet Corporation, A.C. Nielsen Co. and I.M.S. International, Inc. (S.D.N.Y.)96 Civ. 5716 (this action and any amended complaint or action arising out ofthe same or substantially similar factual allegations by IRI or any successoror Affiliate thereof are referred to herein as the “Lawsuit”);

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**WHEREAS**, OldD&B, Cognizant and ACNielsen are parties to an Indemnity and Joint DefenseAgreement, dated as of October 28, 1996 (the “Original Agreement”),which provided for, among other things (i) allocation of financialresponsibility among Old D&B, Cognizant and ACNielsen for the liabilitiesarising out of, or in connection with, the Lawsuit, and (ii) terms andconditions for the joint defense by the parties thereto against the Lawsuit;

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**WHEREAS,** pursuant tothe terms of the Distribution Agreement, dated as of October 28, 1996, amongOld D&B, Cognizant and ACNielsen (the “1996 Distribution Agreement”),the shares of Cognizant and ACNielsen were distributed by Old D&B to thestockholders of Old D&B (the “1996 Distribution”);

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**WHEREAS,** the 1996Distribution Agreement provided for, among other things, assumptions ofliabilities and cross indemnities designed to allocate among Old D&B,Cognizant and ACNielsen financial responsibility for the liabilities arisingout of, or in connection with, the businesses conducted by Old D&B and itsSubsidiaries before the 1996 Distribution;

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**WHEREAS,** pursuant tothe terms of the Distribution Agreement, dated as of June 30, 1998, betweenCognizant (subsequently renamed NMR) and IMS (the “1998 Cognizant/IMSDistribution Agreement”), the shares of IMS were distributed by Cognizantto the stockholders of Cognizant (the “1998 Cognizant/IMS Distribution”);

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**WHEREAS,** the 1998Cognizant/IMS Distribution Agreement provided for, among other things,assumptions of liabilities and cross indemnities designed to allocate betweenCognizant and IMS financial responsibility for the liabilities arising out of,or in connection with, the businesses conducted by Cognizant and itssubsidiaries before the 1998 Cognizant/IMS Distribution, including Cognizant’sliabilities under the 1996 Distribution Agreement and the Original Agreement;

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**WHEREAS,** under theterms of the 1996 Distribution Agreement, as a condition to the 1998Cognizant/IMS Distribution, IMS was required to undertake, and did undertake,to each of Old D&B and ACNielsen to be jointly and severally liable withCognizant for all of Cognizant’s liabilities under the 1996 DistributionAgreement;

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**WHEREAS,** pursuant tothe terms of the Distribution Agreement, dated as of June 30, 1998, between OldD&B (subsequently renamed Donnelley) and The New Dun & BradstreetCorporation (subsequently renamed The Dun & Bradstreet Corporation) (the “1998Old D&B/Donnelley Distribution Agreement”), the shares of The New Dun& Bradstreet Corporation were distributed by Old D&B to the stockholdersof Old D&B (the “1998 Old D&B/Donnelley Distribution”);

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**WHEREAS,** the 1998Old D&B/Donnelley Distribution Agreement provided for, among other things,assumptions of liabilities and cross indemnities designed to allocate betweenOld D&B and The New Dun & Bradstreet Corporation financialresponsibility for the liabilities arising out of, or in connection with, thebusinesses conducted by Old D&B and its subsidiaries before the 1998 OldD&B/Donnelley Distribution, including Old D&B’s liabilities under the1996 Distribution Agreement and the Original Agreement;

** **

**WHEREAS,** under theterms of the 1996 Distribution Agreement, as a condition to the 1998 OldD&B/Donnelley Distribution, The New Dun & Bradstreet Corporation wasrequired to undertake, and did undertake, to each of Cognizant and ACNielsen tobe jointly and severally liable with Old D&B for all of Old D&B’sliabilities under the 1996 Distribution Agreement;

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**WHEREAS,** pursuant tothe terms of the Agreement and Plan of Merger, dated as of August 15, 1999,among VNU USA, Inc. (“VNU USA”), Niner Acquisition, Inc., a wholly ownedsubsidiary of VNU USA (“Niner”), and NMR, Niner merged with and intoNMR, with NMR continuing as the surviving corporation and a wholly ownedsubsidiary of VNU USA;

** **

**WHEREAS,** pursuant tothe terms of the Distribution Agreement, dated as of September 30, 2000,between The Dun & Bradstreet Corporation (subsequently renamed Moody’s) andThe New Dun & Bradstreet Corporation (subsequently renamed

 

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D&B) (the “2000D&B/Moody’s Distribution Agreement”), the shares of D&B weredistributed by Moody’s to the stockholders of Moody’s (the “2000D&B/Moody’s Distribution”);

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**WHEREAS,** the 2000D&B/Moody’s Distribution Agreement provided for, among other things,assumptions of liabilities and cross indemnities designed to allocate betweenThe Dun & Bradstreet Corporation and The New Dun & BradstreetCorporation financial responsibility for the liabilities arising out of, or inconnection with, the businesses conducted by The Dun & BradstreetCorporation and its subsidiaries before the 2000 Distribution, including TheDun & Bradstreet Corporation’s liabilities under the 1996 DistributionAgreement, the Original Agreement and the 1998 Old D&B/DonnelleyDistribution Agreement;

** **

**WHEREAS,** under theterms of the 1996 Distribution Agreement, as a condition to the 2000D&B/Moody’s Distribution, The New Dun & Bradstreet Corporation wasrequired to undertake, and did undertake, to each of NMR (as successor toCognizant) and ACNielsen to be jointly and severally liable with Donnelley (assuccessor to Old D&B) for all of Old D&B’s liabilities under the 1996Distribution Agreement;

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**WHEREAS,** under theterms of the 1998 Old D&B/Donnelley Distribution Agreement, as a conditionto the 2000 D&B/Moody’s Distribution, The New Dun & BradstreetCorporation was required to undertake, and did undertake, to Donnelley (assuccessor to Old D&B) to be jointly and severally liable with The Dun &Bradstreet Corporation for all of The Dun & Bradstreet Corporation’sliabilities under the 1998 Old D&B/Donnelley Distribution Agreement;

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**WHEREAS,** pursuant tothe terms of the Agreement and Plan of Merger, dated as of December 17, 2000,among VNU, Artist Acquisition, Inc., a wholly owned subsidiary of VNU (“Artist”),and ACNielsen, Artist merged with and into ACNielsen, with ACNielsen continuingas the surviving corporation and a wholly owned subsidiary of VNU (the “ACNielsenAcquisition”);

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**WHEREAS,** under theterms of the Original Agreement, in connection with the ACNielsen Acquisition,VNU was required to assume, and did assume, all of ACNielsen’s obligationsunder the Original Agreement;

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**WHEREAS,** pursuant tothe terms and subject to the limitations hereof, VNU, VNU Inc., ACNielsen, NewACN****and NMR, jointly andseverally, have agreed, *inter alia*,(i) to assume and duly and punctually perform, be bound by, and otherwisedischarge in accordance with their terms the IRI Liabilities and (ii) indemnifyDonnelley (as successor to Old D&B), D&B, Moody’s and IMS against anyIRI Liabilities which may be incurred, directly or indirectly, by any of them;

** **

**WHEREAS,** the Partiesbelieve that they have a mutuality of interest in a joint defense in connectionwith the Lawsuit and any additional actions, investigations or 

 

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proceedings that have arisen ormay arise in connection with the subject matter of the Lawsuit;

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**WHEREAS,** it is theintention and understanding of the Parties that communications between andamong them as provided herein and any joint interviews of prospective witnessesfor the purpose of a joint defense are confidential and are protected fromdisclosure to any third party by the attorney-client privilege, the workproduct doctrine and any other applicable privileges;

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**WHEREAS,** in order topursue a joint defense effectively, the Parties have also concluded that, fromtime to time, their mutual interests will be best served by sharing privilegedmaterial, mental impressions, memoranda, interview reports and other workproducts and information, including the confidences of each party;

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**WHEREAS,** it is apurpose of this Agreement to insure that the exchanges and disclosures ofprivileged materials contemplated herein do not diminish or constitute a waiverof any privilege that may otherwise be available by virtue of any prioragreement, conduct, operation of law or otherwise;

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**WHEREAS,** the Partiesdesire to amend and restate the Original Agreement as set forth herein and eachParty expressly acknowledges that the execution and delivery of this Agreementdoes not in any manner constitute an admission that the Lawsuit has any merit.

** **

**NOW, THEREFORE,** inconsideration of the mutual promises, covenants and releases contained in thisAgreement, and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the Parties hereby agree asfollows:

 

**ARTICLE IDEFINITIONS**

 

**SECTION 1.1.         **Definitions.  The following termsshall have the following meanings:

 

“1996 Distribution” shall have themeaning set forth in the recitals hereto.

 

“1996 Distribution Agreement” shallhave the meaning set forth in the recitals hereto.

 

“1998 Cognizant/IMS Distribution”shall have the meaning set forth in the recitals hereto.

 

“1998 Cognizant/IMS Distribution Agreement”shall have the meaning set forth in the recitals hereto.

 

“1998 Old D&B/Donnelley Distribution“ shall have the meaning set forth in the recitals hereto.

 

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“1998 Old D&B/Donnelley DistributionAgreement” shall have the meaning set forth in the recitals hereto.

 

“2000 D&B/Moody’s Distribution”shall have the meaning set forth in the recitals hereto.

 

“2000 D&B/Moody’s DistributionAgreement” shall have the meaning set forth in the recitals hereto.

 

“ACNielsen” shall have the meaning setforth in the recitals hereto.

 

“ACNielsen Acquisition” shall have themeaning set forth in the recitals hereto.

 

“Affiliate” of any specified Personmeans any other Person, directly or indirectly, controlling or controlled by orunder direct or indirect common control with such specified Person.  For the purposes of this definition,“control” when used with respect to any specified Person means the power todirect the management and policies of such Person, directly or indirectly,whether through the ownership of Voting Stock, by contract or otherwise; andthe terms “controlling” and “controlled” have meanings correlative to theforegoing.

 

“Ancillary Agreements” shall mean allof the written agreements, instruments, assignments or other writtenarrangements (other than this Agreement and the 1996 Distribution Agreement)entered into in connection with the transactions contemplated by this Agreementand the 1996 Distribution Agreement, including, without limitation, theConveyancing and Assumption Instruments, the Data Services Agreement, theEmployee Benefits Agreement, the Intellectual Property Agreement, the SharedTransaction Services Agreements, the TAM Master Agreement, the Tax AllocationAgreement and the Transition Services Agreement.

“Artist” shall have the meaning setforth in the recitals hereto.

 

“Board of Directors” shall mean, whenused with respect to a specified corporation, the board of directors of thecorporation so specified, and when used with respect to VNU, the executiveboard of VNU.

 

“Business Combination” means, withrespect to any Person, any consolidation or merger or any sale, conveyance,assignment, transfer, lease or other disposition of all or substantially all ofthe properties and assets of such Person as an entirety in one transaction orseries of transactions.

 

“Business Day” means any day that isnot a Saturday, a Sunday or any other day on which banks are required orauthorized by law to be closed in New York, New York.

 

“Capital Lease Obligations” of aPerson means any obligation which is required to be classified and accountedfor as a capital lease for financial reporting 

 

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purposes in accordance with GAAP;the amount of such obligations shall be the capitalized amount thereof,determined in accordance with GAAP.

“Capital Stock” means, with respect toany Person, any and all shares, interests, participations, rights to purchase,warrants, options, or other equivalents (however designated) of capital stockof a corporation, and any and all equivalent ownership interests in a Personother than a corporation, in each case whether now outstanding or hereafterissued.

 

“Cash Equivalents” means, at any time,(a) any evidence of Indebtedness with a maturity of 180 days or less from thedate of acquisition issued or directly and fully guaranteed or insured by theUnited States of America or any agency or instrumentality thereof (provided,that the full faith and credit of the United States of America is pledged insupport thereof); (b) certificates of deposit, money market deposit accountsand acceptances with a maturity of 180 days or less from the date ofacquisition of any financial institution that is a member of the FederalReserve System having combined capital and surplus and undivided profits of notless than $500 million; (c) commercial paper with a maturity of 180 days orless from the date of acquisition issued by a corporation that is not anAffiliate of a VNU Party whose debt rating, at the time as of which suchinvestment is made, is at least “A-1” by Standard & Poor’s Corporation orat least “P-1” by Moody’s Investors Service, Inc., or rated at least anequivalent rating category of another nationally recognized securities ratingagency; (d) repurchase agreements and reverse repurchase agreements having aterm of not more than 30 days for underlying securities of the types describedin clause (a) above entered into with a financial institution meeting thequalifications described in clause (b) above; (e) any security, maturing notmore than 180 days after the date of acquisition, backed by standby or directpay letters of credit issued by a bank meeting the qualifications described inclause (b) above; and (f) any security, maturing not more than 180 days afterthe date of acquisition, issued or fully guaranteed by any state, commonwealth,or territory of the United States of America, or by any political subdivisionthereof, and rated at least “A” by Standard & Poor’s Corporation or atleast “A” by Moody’s Investors Service, Inc., or rated at least an equivalentrating category of another nationally recognized securities rating agency.

 

“Cognizant” shall have the meaning setforth in the recitals hereto.

 

“Consolidated EBITDA” means for anyperiod the sum of Consolidated Net Income *plus*,to the extent deducted in computing Consolidated Net Income, ConsolidatedInterest Expense, Consolidated Tax Expense, all depreciation and, withoutduplication, all amortization, in each case, for such period, of the RelevantParty and its Subsidiaries on a consolidated basis, all as determined inaccordance with GAAP.

 

“Consolidated Interest Expense” meansfor any period the sum of (a) the aggregate of the interest expense onIndebtedness of the Relevant Party and its Subsidiaries for such period, on aconsolidated basis as determined in accordance with GAAP (excluding theamortization of costs relating to original debt issuances but including theamortization of debt discount) *plus*(b) without duplication, that portion of 

 

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Capital Lease Obligations ofthe Relevant Party and its Subsidiaries representing the interest factor forsuch period as determined in accordance with GAAP *plus* (c) without duplication, dividends paid in respect ofpreferred stock of Subsidiaries or Disqualified Stock of the Relevant Party andits Subsidiaries to Persons other than the Relevant Party or a wholly ownedSubsidiary of the Relevant Party.

 

“Consolidated Net Income” means, forany period, the net income or loss of the Relevant Party and its Subsidiariesfor such period on a consolidated basis as determined in accordance with GAAP,adjusted by excluding the after-tax effect of (a) any gains (but not losses)from currency exchange transactions not in the ordinary course of business; (b)the net income of any Person which is not a Subsidiary of the Relevant Party oris accounted for by the equity method of accounting except to the extent of theamount of dividends or distributions actually paid in cash by such Person tothe Relevant Party or a Subsidiary of the Relevant Party during such period;(c) except to the extent includible pursuant to clause (b), the net income ofany Person accrued prior to the date it becomes a Subsidiary of the RelevantParty or is merged into or consolidated with the Relevant Party or any of itsSubsidiaries or such Person’s assets are acquired by the Relevant Party or anyof its Subsidiaries; (d) net gains attributable to write-ups (determined aftertaking into account losses attributable to write-downs) of assets orliabilities other than in the ordinary course of business; (e) the cumulativeeffect of a change in accounting principles; and (f) net income from discontinuedoperations.

 

“Consolidated Net Worth” of a Personand its Subsidiaries means as of any date all amounts that would be includedunder stockholders’ equity on a consolidated balance sheet of such Person andits Subsidiaries determined in accordance with GAAP.

 

“Consolidated Tax Expense” means forany period the aggregate of the federal, state, local and foreign income taxexpense of the Relevant Party and its Subsidiaries for such period, on aconsolidated basis as determined in accordance with GAAP, to the extentdeducted in computing Consolidated Net Income.

 

“Covenant Party” shall have themeaning set forth in Section 3.1 hereto.

 

“Counsel of Record” shall have themeaning set forth in Section 4.1 hereto.

 

“D&B” shall have the meaning setforth in the recitals hereto.

 

“D&B Party” shall have the meaningset forth in Section 2.2 hereto.

 

“D&B Parties Counsel” shall havethe meaning set forth in Section 4.1 hereto.

 

“Defense Costs” shall have the meaningset forth in Section 4.1 hereto.

 

“Defense Costs Statement” shall havethe meaning set forth in Section 4.1 hereto.

 

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“Defense Materials” shall have themeaning set forth in Section 4.1 hereto.

 

“Designated Officers” means, withrespect to any VNU Party, the chief financial officer (or equivalent officer)of such VNU Party.

 

“Disqualified Stock” means any CapitalStock which pays a mandatory dividend (other than in Capital Stock) or which,by its terms (or by the terms of any security into which it is convertible orexchangeable), or upon the happening of any event, (i) matures or ismandatorily redeemable, pursuant to a sinking fund obligation or otherwise,(ii) is redeemable at the option of the holder thereof, in whole or in part or(iii) is convertible or exchangeable for Indebtedness or Disqualified Stock ofany Relevant Party or its Subsidiaries.

 

“Donnelley” shall have the meaning setforth in the recitals hereto.

 

“Federal Funds Rate” means, for anyperiod, a fluctuating interest rate per annum equal for each day during suchperiod to the weighted average of the rates on overnight Federal fundstransactions with members of the Federal Reserve System arranged by Federalfunds brokers, as published for such day (or, if such day is not a BusinessDay, for the next preceding Business Day) by the Federal Reserve Bank of NewYork.

 

“Fixed Charge Coverage Ratio” meansfor any period the ratio of Consolidated EBITDA to Consolidated InterestExpense for such period; provided, however,that in making such computation, the interest expense on any Indebtedness to beincurred and computed on a pro forma basis and bearing a floating interest rateshall be computed as if the rate in effect on the date of computation had beenthe applicable rate for the entire period.

 

“GAAP” means the generally acceptedaccounting principles in the United States, including those set forth in theopinions and pronouncements of the Accounting Principles Board of the AmericanInstitute of Certified Public Accountants and statements and pronouncements ofthe Financial Accounting Standards Board or in such other statements by suchother entity as may be approved by a significant segment of the accountingprofession in the United States, in each case applied on a consistent basis.

 

“IMS” shall have the meaning set forthin the recitals hereto.

 

“IMS Counsel” shall have the meaningset forth in Section 4.1 hereto.

 

“Indebtedness” means, with respect toany Person, without duplication, (a) the principal of and premium (if any) inrespect of (i) indebtedness of such Person for money borrowed and (ii)indebtedness evidenced by notes, indentures, bonds, other similar instrumentsfor the payment of which such Person is responsible or liable; (b) all CapitalLease Obligations of such Person; (c) all obligations of such Person issued orassumed as the deferred purchase price of property; (d) all obligations of suchPerson for the reimbursement of any obligor on any letter of credit or similarcredit transaction; (e) all dividends on Capital Stock issued by third partiesfor the payment of which such 

 

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Person is responsible; (f) allobligations of the type referred to in clauses (a) through (e) above of thirdparties secured by any Lien on any property or asset of such Person, the amountof such obligation being deemed to be the lesser of the value of such propertyor assets or the amount of the obligation so secured; (g) indebtedness securedby any Lien existing on property acquired by such Person subject to such Lien,whether or not the indebtedness secured thereby shall have been assumed; provided,that if such Person has not assumed such Indebtedness the amount ofIndebtedness of such Person shall be deemed to be the lesser of the value ofsuch acquired property or the amount of the indebtedness secured; (h)guarantees, endorsements and other obligations, whether or not contingent, inrespect of, or agreements to purchase or otherwise acquire, Indebtedness ofother Persons; (i) all Disqualified Stock issued by such Person valued at thegreater of its voluntary or involuntary maximum fixed repurchase price plusaccrued and unpaid dividends; (j) preferred stock issued by any Subsidiary ofsuch Person valued at the greater of its voluntary or involuntary maximum fixedrepurchase price plus accrued and unpaid dividends; and (k) all obligationsunder or in respect of Interest Rate Protection and Other Hedging Agreements.

 

For purposes of this definition, “maximumfixed repurchase price” of any preferred stock issued by any Subsidiary of aPerson and of any Disqualified Stock which does not have a fixed repurchaseprice shall be calculated in accordance with the terms of such preferred stockor such Disqualified Stock as if such preferred stock or such DisqualifiedStock were purchased on any date on which Indebtedness shall be required to bedetermined pursuant to this Agreement, and if such price is based upon, ormeasured by, the fair market value of such preferred stock or DisqualifiedStock, such fair market value shall be determined in good faith by the Board ofDirectors of the issuer of such preferred stock or such Disqualified Stock.

 

“Indemnified Parties” shall have themeaning set forth in Section 2.2 hereto.

 

“Interest Rate Protection and OtherHedging Agreements” means one or more of the following agreements enteredinto by one or more financial institutions: (a) interest rate protectionagreements (including, without limitation, interest rate, swaps, caps, floors,collars and similar agreements), (b) foreign exchange contracts, currency swapagreements or other similar agreements or arrangements designed to protectagainst fluctuations in currency values and/or (c) other types of hedgingagreements from time to time.

 

“IRI” shall have the meaning set forthin the recitals hereto.

 

“IRI Investor” shall have the meaningset forth in Section 2.3 hereto.

 

“IRI Liabilities” shall have themeaning set forth in Section 2.1 hereto.

 

“Lawsuit” shall have the meaning setforth in the recitals hereto.

 

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“Lien” means any mortgage, lien,pledge, security interest, conditional sale or other title retention agreementor other security interest or encumbrance of any kind (including any agreementto give any security interest).

 

“Moody’s” shall have the meaning setforth in the recitals hereto.

 

“Niner” shall have the meaning setforth in the recitals hereto.

 

“NMR” shall have the meaning set forthin the recitals hereto.

 

“Officer “ means the Chairman of theBoard of Directors, the Vice-Chairman of the Board of Directors, the ChiefExecutive Officer or the Chief Financial Officer of the relevant party.

 

“Officer’s Certificate” means acertificate signed by an Officer.

 

“Old D&B” shall have the meaningset forth in the recitals hereto.

 

“Original Agreement” shall have themeaning set forth in the recitals hereto.

 

“Parent” of a Person means any otherPerson with the power to direct the management and policies of such Person,directly or indirectly, whether through ownership of Voting Stock, by contractor otherwise.

 

“Party” shall have the meaning setforth in the recitals hereto.

 

“Party Counsel” shall have the meaningset forth in Section 4.1 hereto.

 

“Permitted Related Person SubordinatedIndebtedness” shall have the meaning set forth in Section 3.6 hereto.

 

“Person” means any natural person,corporation, business trust, joint venture, association, company, partnershipor government, or any agency or political subdivision thereof.

 

“Prime Rate” means a fluctuatinginterest rate per annum in effect from time to time, which shall at all timesbe equal to the higher of (i) the rate of interest announced publicly byCitibank, N.A. in New York, New York, from time to time, as Citibank, N.A.’sprime rate and (ii) 1⁄2 of 1% per annum above the Federal Funds Rate.

 

“Process Agent” shall have the meaningset forth in Section 5.13 hereto.

 

“Related Person” means (a) anyAffiliate of a Relevant Party, (b) any Person who directly or indirectly holds5% or more of any class of Voting Stock of a Relevant Party or any Subsidiaryof a Relevant Party, (c) any Person who is an executive officer or director ofa Relevant Party and (d) any Affiliate of or any relative by blood, 

 

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marriage or adoption not moreremote than first cousin of any such Person referred to in clause (b) or (c)above.

 

“Relevant Party” shall have themeaning set forth in Section 3.4 hereto.

 

“Restricted Payment” means, withrespect to a Covenant Party and its Subsidiaries, (a) any declaration orpayment of any dividend on, or any distribution in respect of, or any purchase,redemption or retirement for value of, any Capital Stock of such Covenant Partyor its Subsidiary or any deposit with respect to the foregoing (other thandividends or distributions payable solely to such Covenant Party), (b) anycharitable contribution, (c) any voluntary payments to pension or other benefitplans, (d) any payments in respect of any Permitted Related Person SubordinatedIndebtedness (other than amounts paid solely to a Covenant Party) or (e) anyaccelerated payment of any accounts payable or any cancellation or discountingof, or delay or extension in the collection of, any accounts receivable, unlesssuch acceleration, cancellation, discounting, delay or extension, as the casemay be, is in the ordinary course of such Person’s business.

 

“Strategic Transaction” shall mean anydirect or indirect acquisition or disposition of any business or of any assetscomprising a business, or any acquisition or disposition of any interest in ajoint venture or other equity investment in any business.

 

“Subordination Agreement” shall havethe meaning set forth in Section 3.6 hereto.

 

“Subsidiary” shall mean anycorporation, partnership or other entity of which another entity (a) owns,directly or indirectly, ownership interests sufficient to elect a majority ofthe Board of Directors (or persons performing similar functions) (irrespectiveof whether at the time any other class or classes of ownership interests ofsuch corporation, partnership or other entity shall or might have such votingpower upon the occurrence of any contingency) or (b) is a general partner or anentity performing similar functions (*e.g.*,a trustee).  For purposes of thisAgreement, the term “Subsidiary” as it relates to IMS shall be deemed toinclude the following former affiliates of IMS: Gartner Inc., Synavant, Inc. and Cognizant Technology SolutionsCorporation, and their respective successors and assigns, provided, in the caseof any such assigns, that VNU has granted its prior written consent to suchassignment.

 

“Trust” shall have the meaning setforth in Section 2.3 hereto.

 

“VNU” shall have the meaning set forthin the recitals hereto.

 

“VNU USA” shall have the meaning setforth in the recitals hereto.

 

“VNU Inc.” shall have the meaning setforth in the recitals hereto.

 

“VNU Party” shall have the meaning setforth in Section 2.1 hereto.

 

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“Voting Stock” means all outstandingclasses of Capital Stock of any Person ordinarily entitled (without regard tothe occurrence of any contingency) to vote in the election of directors,managers, trustees or other voting members of the governing body of suchPerson.

 

“Withdrawing Party” shall have themeaning set forth in Section 4.1 hereto.

 

**ARTICLE IIALLOCATION OF LIABILITIES/INDEMNIFICATION**

 

**SECTION 2.1. **Allocation of Liabilities.  The Parties agree that in the eventthat liabilities are incurred by any Party hereto or any Subsidiary (including, with respect to IMS, Gartner Inc.,Synavant, Inc. and Cognizant Technology Solutions Corporation, and theirrespective successors and assigns, provided, in the case of any such assigns,that VNU has granted its prior written consent to such assignment) thereof, relating to,arising out of or resulting from a judgment being entered, or any settlementpermitted hereby being entered into, in connection with the Lawsuit, any andall of such liabilities (“IRI Liabilities”) shall be jointly andseverally assumed and duly and fully paid and discharged in accordance withtheir terms exclusively by VNU, VNU Inc., ACNielsen, New ACN and NMR (each, a “VNUParty” and, collectively, the “VNU Parties”).  IRI Liabilities shall not include DefenseCosts (whether or not paid), which shall be shared by the Parties in accordancewith Section 4.1(h).

 

**SECTION 2.2. **Indemnification.  The VNU Parties shall, jointly and severally,indemnify, defend and hold harmless Donnelley, D&B, Moody’s (collectively,the “D&B Parties”) and IMS and their respective Subsidiaries(including, with respect to IMS, Gartner Inc., Synavant, Inc. and CognizantTechnology Solutions Corporation, and their respective successors and assigns,provided, in the case of any such assigns, that VNU has granted its priorwritten consent to such assignment) (collectively, the “Indemnified Parties”)from and against, and shall reimburse the same for and in respect of, any andall IRI Liabilities assessed against any of them, or to which any of thembecomes subject, as a result of the Lawsuit.

 

**SECTION 2.3. **Other Agreements Relating to Allocation of IRI Liabilities. 

 

(a)       Ifany of the D&B Parties or IMS acquires beneficial ownership of 20% or moreof the outstanding contingent value rights issued by the Information ResourcesInc. Litigation Contingent Payment Rights Trust (or any successor thereof) (the“Trust”) (an “IRI Investor”), then such IRI Investor shall bedeemed to be Withdrawing Party for purposes of and with the consequences setforth in Section 4.1(g).

 

(b)       TheVNU Parties agree that if it shall be necessary to post any bond pending anyappeal of the Lawsuit or otherwise in connection therewith, the 

 

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VNU Parties shall promptly procure such abond and shall exclusively pay the full cost thereof.

 

(c)       Thedirectors of A.C. Nielsen Company immediately prior to the 1996 Distributionshall be third-party beneficiaries of the agreements set forth in Article II.

 

**ARTICLE IIICOVENANTS/ REPRESENTATION AND WARRANTIES**

 

**SECTION 3.1.         **Limitation on Restricted Payments.  

 

(a)           NeitherACNielsen nor New ACN (each a “Covenant Party” and, collectively, the “CovenantParties”) will, nor will they permit any of their Subsidiaries to, directlyor indirectly, make any Restricted Payment if, at the time of such RestrictedPayment, and after giving effect thereto, the aggregate amount of suchRestricted Payment and all other Restricted Payments declared or made for thethen current calendar year shall exceed the sum of:

 

(i)    $30million; and

 

(ii)   20%of the aggregate, withoutduplication, Consolidated Net Income (which, for purposes of this Section 3.1,shall not be less than zero) of the Covenant Parties accrued on a cumulativebasis during the last four completed calendar quarters ending on or prior tothe date of such proposed Restricted Payment;

 

provided,however, that the foregoing provisions will not prevent the payment of adividend within 60 days after the date of its declaration if at the date ofdeclaration such payment was permitted by the foregoing provisions.

 

(b)           Theamount of all Restricted Payments (other than cash) shall be the fair marketvalue on the date of such Restricted Payment of the asset(s) or securitiesproposed to be paid, transferred or issued by such Covenant Party or itsSubsidiary, as the case may be, pursuant to such Restricted Payment.  The fair market value of any non-cashRestricted Payment shall be determined by the Board of Directors of such CovenantParty acting in good faith, whose determination shall be conclusive and whoseresolution with respect thereto shall be delivered to each of the D&BParties and IMS not later than three (3) days following the date of making suchRestricted Payment, such determination to be based upon an opinion or appraisalissued by an internationally recognized investment banking firm if such fairmarket value is estimated to exceed $15 million.

 

**SECTION 3.2.     **Limitation on Transactions with Related Persons.

 

(a)       NeitherCovenant Party will, nor will it permit any ofits Subsidiaries to, directly or indirectly, enter into or suffer to exist anytransaction or series of related transactions (including, without limitation,the sale, purchase, exchange or 

 

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lease of assets,property or services) with any Related Person unless (i) such transaction or series of transactions is onterms that are no less favorable to the relevant Covenant Party or its Subsidiary, as the case may be, than would beavailable in a comparable transaction with an unrelated third party and (ii) where such transaction or series of transactionsinvolves aggregate consideration (including, without limitation, the assumptionof indebtedness) in excess of 7.5% of the aggregate Consolidated Net Worth of the Covenant Parties on acombined basis (without duplication) as of the end of the prior fiscal year, therelevant Covenant Party shall also deliver to each of the D&B Parties andIMS not later than the date of entering into any such transaction, an opinion from an internationally recognizedinvestment banking firm chosen by such Covenant Party as to the fairness ofsuch transaction or series of transactions to such Covenant Party or such Subsidiary from a financial point of view.

 

(b)           Forpurposes of the foregoing, a series of related transactions will be deemed toinclude, without limitation, a series of transactions if, within six months ofclosing one transaction, another transaction is entered into with the samePerson or with a successor or affiliate thereof.

 

(c)           Notwithstandingthe foregoing, the provisions of this Section 3.2 will not apply to (i)compensation or employee benefit arrangements with any officer or director of aCovenant Party or (ii) any Restricted Payment permitted to be made pursuant tothis Agreement.

 

**SECTION 3.3.     **Merger and Consolidation.  Neither Covenant Party may engage in anyBusiness Combination with any Person, unless:

 

(a)           either:

 

(i)    the Covenant Party shall be the continuingcorporation and the Persons who were such Covenant Party’s stockholdersimmediately prior to such Business Combination continue to hold more than 50%of the combined voting power of the Voting Stock of the continuing corporationupon consummation of such Business Combination; or

(ii)   (A) such Person and such Person’s Parent, ifany, (x) shall be a corporation, partnership or trust organized and validlyexisting under the laws of the United States or any State thereof or theDistrict of Columbia or (y) shall duly execute and deliver to each of theD&B Parties and IMS a consent to jurisdiction in the form set forth in Exhibit3.3(A) hereto and (B) such Person and such Person’s Parent, if any, shallexpressly assume, by an instrument of assumption in the form set forth in Exhibit3.3(B) hereto executed and delivered to each of the D&B Parties andIMS, all of the VNU Parties’ obligations hereunder;

 

(b)           immediatelyafter the Business Combination, the Covenant Party and its Subsidiaries or suchPerson, or such Person’s Parent, if any, and its Subsidiaries shall have aConsolidated Net Worth equal to or greater than the

 

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Consolidated Net Worth of such Covenant Partyand its Subsidiaries immediately prior to such Business Combination;

 

(c)           theCovenant Party shall have delivered to each of the D&B Parties and IMS (i)an Officer’s Certificate stating that such Business Combination complies withthis Agreement and (ii) an Officer’s Certificate and an opinion of reputableoutside counsel, each stating that such consent to jurisdiction, in the eventclause (a)(ii)(A)(y) is applicable, and such instrument of assumption, in theevent clause (a)(ii)(B) is applicable, constitute legal, valid and bindingobligations of such Person and such Person’s Parent, if any, enforceable inaccordance with their terms; and

 

(d)           suchBusiness Combination is permitted under Section 3.4 below.

 

**SECTION 3.4.     **Limitation on Certain Transactions. 

 

(a)           NeitherCovenant Party will enter into any Strategic Transaction or engage in anyBusiness Combination unless an Officer’s Certificate is delivered to each ofthe D&B Parties and IMS certifying that, after giving pro forma effect tosuch Strategic Transaction or Business Combination, the Fixed Charge CoverageRatio of the Covenant Parties on a combined basis, or, in the case of aBusiness Combination, the Fixed Charge Coverage Ratio on a combined basis ofthe continuing corporation (or, in the case of a Business Combination that is asale, conveyance, assignment, transfer, lease or other disposition of all orsubstantially all of the properties and assets of the Covenant Party, thepurchaser, recipient, assignee, transferee or lessor of such properties andassets) following such Business Combination (the Covenant Party engaging insuch Strategic Transaction or Business Combination, or such continuingcorporation, purchaser, recipient, assignee, transferee or lessor, as the casemay be, and the other Covenant Party referred to individually as the “RelevantParty”) and of the other Covenant Party, in each case calculated as setforth in Section 3.4(c) below, is greater than 2 to 1, which Officer’sCertificate shall be accompanied by a letter from each Relevant Party’sindependent accountants confirming that such Fixed Charge Coverage Ratio hasbeen correctly calculated in accordance with the requirements hereof and basedon financial statements prepared in accordance with GAAP.

 

(b)           Inaddition, neither Covenant Party will enter into any Strategic Transaction orengage in any Business Combination involving aggregate consideration(including, without limitation, the assumption of indebtedness) in excess of$50 million, unless the following conditions are met:

 

(i)    the Board of Directors of such CovenantParty has received an opinion in writing from an internationally recognizedinvestment bank chosen by such Covenant Party, to the effect that suchtransaction is fair, from a financial point of view, to the Covenant Party, acopy of which opinion shall have been delivered to the D&B Parties and IMS;and

 

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(ii)   in the case of a disposition of a business,an equity interest in a business or the disposition of assets comprising abusiness, which disposition does not involve the simultaneous equity investmentin a joint venture entity which is the acquirer of such business, equityinvestment or assets, the consideration therefor is limited to cash, CashEquivalents and/or marketable securities which are freely tradable on a publicstock exchange or inter-dealer quotation system.

 

(c)           TheFixed Charge Coverage Ratio shall be for the most recent four consecutive fullfiscal quarters ending prior to such certification, taken as one period, andcalculated on the assumptions that (i) any Indebtedness to be incurred inconnection with an acquisition or Business Combination had been incurred on thefirst day of such four-quarter period, (ii) any other Indebtedness incurred,repaid or retired by the Relevant Party and its Subsidiaries since thebeginning of such four-quarter period was incurred, repaid or retired, as thecase may be, on the first day of such four-quarter period (except that, inmaking such computation, the amount of Indebtedness under any revolving creditfacility outstanding on the date of such calculation shall be computed based on(A) the average daily balance of such Indebtedness during such four-quarterperiod or during such shorter included period when such facility wasoutstanding or (B) if such facility was created after the end of such four-quarterperiod, the average daily balance of such Indebtedness during the period fromthe date of creation of such facility to the date of the calculation) and (iii)any acquisition or disposition by the Relevant Party or its Subsidiaries of anyassets out of the ordinary course of business or of any company, division orline of business, in each case since the first day of its last four completedfiscal quarters, had been consummated on such first day of such four-quarterperiod.

 

(d)           Forpurposes of the foregoing, any issuance or transfer of any Capital Stock of awholly owned Subsidiary which is a holder of obligations of a Subsidiary thatconstitute Indebtedness shall be deemed an incurrence of Indebtedness if suchissuance or transfer results in such wholly owned Subsidiary no longer being awholly owned Subsidiary.

 

**SECTION3.5.**      Limitation onReincorporation.  Neither CovenantParty will, without the prior written consent of each D&B Party and IMS,re-incorporate or re-organize its corporate form under the laws of ajurisdiction other than the State of Delaware unless such Covenant Party, asre-incorporated or re-organized under the laws of such other jurisdiction,could take substantially the same actions without stockholder (or equityholder) consent or approval under the laws of such jurisdiction and suchCovenant Party’s then applicable certificate of incorporation, charter, by-lawsor other organizational documents as such Covenant Party could take withoutstockholder consent or approval under the General Corporation Law of the Stateof Delaware and such Covenant Party’s certificate of incorporation and by-lawsas of the date hereof, and counsel reasonably satisfactory to the D&BParties and IMS confirms the foregoing in writing to the reasonable satisfactionof the D&B Parties and IMS.

 

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**SECTION3.6.**      Subordination. NoCovenant Party shall (i) directly or indirectly, create, incur, assume orguaranty, suffer to exist, or otherwise become or remain directly or indirectlyliable with respect to any Indebtedness to any Related Person except any suchIndebtedness which is expressly subordinated and made junior to the payment andperformance in full of all of the obligations of the Covenant Parties underthis Agreement in accordance with a subordination agreement in the form of Exhibit3.6 hereto (the “Subordination Agreement”) or (ii) permit any of itsSubsidiaries to directly or indirectly, create, incur, assume or guaranty,suffer to exist, or otherwise become or remain directly or indirectly liablewith respect to any Indebtedness to any Related Person except any suchIndebtedness which is expressly subordinated and made junior to the payment andperformance in full of all of the obligations of the Covenant Parties underthis Agreement to the same extent as set forth in the Subordination Agreement(such subordinated Indebtedness under clauses (i) and (ii), “PermittedRelated Person Subordinated Indebtedness”).

 

**SECTION3.7.**      Notices**.**Each VNUParty shall deliver to each of the D&B Parties and IMS, promptly uponactual awareness of any Designated Officer becoming aware of any default bysuch VNU Party in the performance or observance of its obligations or covenantsunder this Agreement, an Officers’ Certificate specifying such default.

 

**SECTION3.8.**      VNU Covenants. VNUcovenants and agrees to cause each Covenant Party and its respectiveSubsidiaries to fully comply with the covenants set forth in this Agreement.

 

**SECTION3.9.**      Representations andWarranties of the VNU Parties. To induce the D&B Parties and IMS toenter into this Agreement, each VNU Party represents and warrants, as of thedate first written above, that the following statements are true and correct:

 

(a)       Organization;Requisite Power and Authority. Each VNU Party (a) is duly organized,validly existing and in good standing under the laws of its jurisdiction oforganization as identified in the preamble hereto, and (b) has all requisitepower and authority to own and operate its properties, to carry on its businessas now conducted and as proposed to be conducted, to enter into this Agreementto which it is a party and to fulfill the obligations contemplated hereby.

 

(b)       DueAuthorization; Binding Obligation. The execution, delivery and performanceof this Agreement has been duly authorized by all necessary action on the partof each VNU Party.  This Agreement hasbeen duly executed and delivered by each VNU Party and is a legally valid andbinding obligation of each VNU Party, enforceable against each VNU Party inaccordance with its terms, except as may be limited by bankruptcy, insolvency,reorganization or by equitable principles relating to enforceability.

(c)       Propertiesand Assets.  New ACN and itsSubsidiaries collectively own, hold, lease, are licensees of, or otherwise havethe legal right to the use 

 

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of, substantially all of the assets andproperties (in each case, tangible and intangible) utilized in the business andoperations of ACNielsen and New ACN and their respective Subsidiaries aspresently conducted.

** **

**SECTION3.10.**    Representations andWarranties of Donnelley. To induce the VNU Parties to enter into thisAgreement, Donnelly represents and warrants, as of the date first written above,that the following statements are true and correct:

 

(a)       Organization;Requisite Power and Authority. Donnelley (a) is duly organized, validlyexisting and in good standing under the laws of its jurisdiction oforganization as identified in the preamble hereto, and (b) has all requisitepower and authority to own and operate its properties, to carry on its businessas now conducted and as proposed to be conducted, to enter into this Agreementto which it is a party and to fulfill the obligations contemplated hereby.

 

(b)       DueAuthorization; Binding Obligation. The execution, delivery and performanceof this Agreement has been duly authorized by all necessary action on the partof Donnelley.  This Agreement has beenduly executed and delivered by Donnelley and is a legally valid and bindingobligation of Donnelley, enforceable against Donnelley in accordance with itsterms, except as may be limited by bankruptcy, insolvency, reorganization or byequitable principles relating to enforceability.

** **

**SECTION 3.11.**    Representationsand Warranties of D&B. To induce the VNU Parties to enter into thisAgreement, D&B represents and warrants, as of the date first written above,that the following statements are true and correct:

 

(a)       Organization;Requisite Power and Authority. D&B (a) is duly organized, validlyexisting and in good standing under the laws of its jurisdiction oforganization as identified in the preamble hereto, and (b) has all requisitepower and authority to own and operate its properties, to carry on its businessas now conducted and as proposed to be conducted, to enter into this Agreementto which it is a party and to fulfill the obligations contemplated hereby.

 

(b)       DueAuthorization; Binding Obligation. The execution, delivery and performanceof this Agreement has been duly authorized by all necessary action on the partof D&B.  This Agreement has been dulyexecuted and delivered by D&B and is a legally valid and binding obligationof D&B, enforceable against D&B in accordance with its terms, except asmay be limited by bankruptcy, insolvency, reorganization or by equitableprinciples relating to enforceability.

 

**SECTION3.12.**    Representations andWarranties of Moody’s. To induce the VNU Parties to enter into thisAgreement, Moody’s represents and warrants, as of the date first written above,that the following statements are true and correct:

 

(a)       Organization;Requisite Power and Authority. Moody’s (a) is duly organized, validlyexisting and in good standing under the laws of its jurisdiction of organizationas identified in the preamble hereto, and (b) has all requisite power and 

 

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authority to own and operate its properties,to carry on its business as now conducted and as proposed to be conducted, toenter into this Agreement to which it is a party and to fulfill the obligationscontemplated hereby.

 

(b)       DueAuthorization; Binding Obligation. The execution, delivery and performanceof this Agreement has been duly authorized by all necessary action on the partof Moody’s.  This Agreement has been dulyexecuted and delivered by Moody’s and is a legally valid and binding obligationof Moody’s, enforceable against Moody’s in accordance with its terms, except asmay be limited by bankruptcy, insolvency, reorganization or by equitableprinciples relating to enforceability.

 

**SECTION3.13.**    Representations andWarranties of IMS. To induce the VNU Parties to enter into this Agreement,IMS represents and warrants, as of the date first written above, that thefollowing statements are true and correct:

 

(a)       Organization;Requisite Power and Authority. IMS (a) is duly organized, validly existingand in good standing under the laws of its jurisdiction of organization asidentified in the preamble hereto, and (b) has all requisite power andauthority to own and operate its properties, to carry on its business as nowconducted and as proposed to be conducted, to enter into this Agreement towhich it is a party and to fulfill the obligations contemplated hereby.

 

(b)       DueAuthorization; Binding Obligation. The execution, delivery and performanceof this Agreement has been duly authorized by all necessary action on the partof IMS.  This Agreement has been dulyexecuted and delivered by IMS and is a legally valid and binding obligation ofIMS, enforceable against IMS in accordance with its terms, except as may belimited by bankruptcy, insolvency, reorganization or by equitable principlesrelating to enforceability.

 

**ARTICLE IVJOINT DEFENSE PROVISIONS**

 

**SECTION 4.1.         **Counsel.

 

(a)       ACNielsenshall select counsel of record to represent ACNielsen Company, Donnelley (assuccessor to Old D&B), D&B, Moody’s, NMR (as successor to Cognizant)and IMS (which reference to IMS shall be deemed to include I.M.S.International, Inc.), in the Lawsuit (“Counsel of Record”).  Counsel of Record shall communicate andconsult with all Parties in connection with the defense of the Lawsuit, butshall be subject to direction only from ACNielsen.

 

(b)       Eachof the D&B Parties and IMS shall be free to retain at their own expensecounsel to monitor the Lawsuit (“D&B Parties Counsel” and “IMSCounsel” respectively, and, collectively, “Party Counsel”).  Counsel of Record shall communicate andconsult with any Party Counsel.  NeitherParty Counsel nor any other 

 

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counsel retained by any of the D&BParties or IMS shall appear in the Lawsuit unless such Party shall have becomea Withdrawing Party under Section 4.1(g) hereof.

 

(c)       Counselof Record and Party Counsel shall make available to other such counsel and anyParty confidential oral information and memoranda or other documents related tothe defense of the Lawsuit (“Defense Materials”) to the extent that theydeem it prudent and consistent with the objectives of the joint defenseprovided for herein.

 

(d)       TheDefense Materials obtained by counsel for any Party shall remain confidentialand shall be protected from disclosure to any third party except as providedherein.

 

(e)       Counselof Record and Party Counsel shall not disclose Defense Materials or thecontents thereof to anyone except their respective clients, expert witnessesand consultants, counsel for other Parties to the Agreement, or attorneys,paralegals and staff within their firms, without first obtaining the consent ofCounsel of Record and Party Counsel whose clients (or who themselves) may beentitled to claim any privilege with respect to such materials.  All persons permitted access to DefenseMaterials shall be specifically advised that the Defense Materials areprivileged and subject to the terms of this Agreement.

 

(f)        Ifany other person or entity requests or demands, by subpoena or otherwise, anyDefense Materials from any of the Parties or their counsel, the recipient ofthe request will immediately notify Counsel of Record and Party Counsel, andeach such counsel shall take all steps necessary to permit the assertion of allapplicable rights and privileges with respect to such Defense Materials andshall cooperate fully with such other counsel in any proceeding relating to thedisclosure of Defense Materials.

 

(g)       Ifany of the D&B Parties or IMS decides that it no longer wishes to engage ina joint defense (a “Withdrawing Party”), the Withdrawing Partyimmediately shall notify the other Parties to this Agreement in writing andshall simultaneously return to Counsel of Record the originals and all copiesof Defense Materials provided to it.  Insuch event, the Withdrawing Party shall no longer have any rights to obtainDefense Materials, but shall retain other rights and obligations set forth inthe Agreement, including the obligations to share Defense Costs pursuant to andon the terms of Section 4.1(h) below, unless otherwise specificallyprovided.  The Withdrawing Party shalllose its right to indemnification by the VNU Parties under this Agreement.  ACNielsen shall have the absolute right tocontinue to be represented in all matters in and affecting the Lawsuit byCounsel of Record.  All Parties expresslyagree that Counsel of Record may continue to represent Parties that have notwithdrawn, and all Parties agree and acknowledge that receipt and use ofDefense Materials by Counsel of Record or any action taken or knowledge gainedby Counsel of Record in connection with its representation of a WithdrawingParty shall not be grounds for disqualification of Counsel of Record as counselfor any other Party to this Agreement in the Lawsuit.

 

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(h)       Itis the intention of the Parties that ACNielsen, the D&B Parties(collectively, in accordance with their separate agreements) and NMR and IMS(collectively, in accordance with their separate agreement) shall each pay onethird of the costs of defending the Lawsuit, including attorneys’ fees, expertwitness and consultants’ fees and all other costs and expenses for the defenseof the Lawsuit (or prosecution of any counterclaim to the Lawsuit) dulyincurred by ACNielsen or Counsel of Record (“Defense Costs”).  ACNielsen shall forward to each of the D&BParties, IMS and NMR, on a monthly basis, a statement of the Defense Costsincurred in the preceding month (the “Defense Costs Statement”) and theD&B Parties (collectively, in accordance with their separate agreements)and NMR and IMS (collectively, in accordance with their separate agreement)shall each reimburse ACNielsen for one third of such Defense Costs promptlythereafter.  Any such Defense Costs thatare not so reimbursed to ACNielsen within thirty (30) days following receipt ofthe Defense Costs Statement by the Party required to reimburse such DefenseCosts to ACNielsen under this Section 4.1(h) shall accrue interest on theamount of such Defense Costs at the Prime Rate payable by such Party,commencing on the later of (i) the 31st day following such receiptor (ii) the date of actual payment of such costs by ACNielsen, and continuinguntil (but not including) the date of payment in full of such Defense Coststogether with all interest accrued thereon. In the event that ACNielsen obtainsreimbursement for Defense Costs from IRI or the Trust in accordance with acertain Settlement Agreement and Release between ACNielsen and IRI, dated as ofJuly 1, 1985, or for any other reason, the VNU Parties shall repay to each ofthe D&B Parties (collectively) and NMR and IMS (collectively) one third ofsuch reimbursement up to the extent of their respective payments of DefenseCosts pursuant to the Original Agreement or this Agreement.

 

(i)        NoParty may enter into any settlement agreement in the Lawsuit without expressconsent in writing of the other Parties, except that ACNielsen may, if it sochooses, enter into a full and final settlement of the Lawsuit provided thatthe VNU Parties pay the full amount of the settlement and obtain a full andfinal release of each of the D&B Parties, IMS, I.M.S. International, Inc.and their respective Subsidiaries****with respectto the Lawsuit.  Such a settlement shallimpose no obligation on any other Party to this Agreement without such Party’sexpress consent in writing.  In the eventthat any Party receives a settlement proposal with respect to the Lawsuit, itshall immediately communicate the substance of the offer to the Counsel ofRecord.

 

(j)        Allother Parties to this Agreement shall cooperate with ACNielsen in the defenseof the Lawsuit and the prosecution of any counterclaim therein, includingproviding, or causing to be provided, records or witnesses as soon aspracticable after receipt of any request therefor from or on behalf ofACNielsen.

 

**ARTICLE VMISCELLANEOUS**

 

**SECTION 5.1.         **Complete Agreement; Construction.  This Agreement, including the Exhibitshereto, shall constitute the entire agreement between the Parties with respectto the subject matter hereof and shall supersede all previous negotiations,commitments and writings with respect to such subject matter, including theOriginal 

 

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**Agreement. In the event and to the extent that there is a conflict between theprovisions of this Agreement and the provisions of the 1996 DistributionAgreement, this Agreement shall control.**

** **

**SECTION 5.2.         **Ancillary Agreements.  This Agreement is not intended to address,and should not be interpreted to address, the matters specifically andexpressly covered by the Ancillary Agreements.

** **

**SECTION 5.3.         **Counterparts. This Agreement may be executed in one or more counterparts, all of whichshall be considered one and the same agreement, and shall become effective whenone or more such counterparts have been signed by each of the Parties anddelivered to the other Parties.

** **

**SECTION 5.4.         **Notices. All notices and other communications hereunder shall be in writing andhand delivered or mailed by registered or certified mail (return receiptrequested) or sent by any means of electronic message transmission withdelivery confirmed (by voice or otherwise) to the Parties at the followingaddresses (or at such other addresses for a Party as shall be specified by likenotice) and will be deemed given on the date on which such notice is received:

 

Ifto any VNU Party, to:

 

VNU

770 Broadway, 8th Floor

New York, NY 10003

Facsimile: (646) 654-5060

Attention: Chief Legal Officer

 

with a copy to:

 

Shearman & Sterling LLP

599 Lexington Avenue

New York, NY 10022

Facsimile: (212) 848-7179

Attention: Henry Weisburg, Esq.

 

If toDonnelley, to:

 

R.H. Donnelley Corporation

1001 Winstead Dr.

Cary, NC 27513

Facsimile: (919) 297-1518

Attention: General Counsel

 

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Ifto D&B, to:

 

The Dun & Bradstreet Corporation

103 John F. Kennedy Parkway

Short Hills, NJ 07078

Facsimile: (866) 561-5154

Attention: General Counsel

 

with a copy to:

 

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

Facsimile: (212) 735-2000

Attention: David Fox, Esq.

 

Ifto Moody’s, to:

 

Moody’s Corporation

99 Church Street

New York, NY 10007

Facsimile: (212) 553-0084

Attention: General Counsel

 

with a copy to:

 

Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

Facsimile: (212) 735-2000

Attention: David Fox, Esq.

 

Ifto IMS, to:

 

IMS Health Incorporated

1499 Post Road

Fairfield, CT 06824

Facsimile: (203) 319-4552

Attention: General Counsel

 

with a copy to:

 

Sullivan & Cromwell LLP

125 Broad Street

New York, NY 10004

Facsimile: (212) 558-3588

Attention: Alan J. Sinsheimer, Esq.

 

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**SECTION 5.5.         **Waivers. The failure of any Party to require strict performance by any otherParty of any provision in this Agreement will not waive or diminish thatParty’s right to demand strict performance thereafter of that or any otherprovision hereof.

** **

**SECTION 5.6.         **Amendments. This Agreement may not be modified or amended except by an agreement inwriting signed by each of the Parties hereto.

** **

**SECTION 5.7.         **Assignment. This Agreement shall not be assignable, in whole or in part, directly orindirectly, by any Party without the prior written consent of the otherParties, and any attempt to assign any rights or obligations arising under thisAgreement without such consent shall be void.

** **

**SECTION 5.8.         **Successors and Assigns.  The provisions to this Agreement shall bebinding upon, inure to the benefit of and be enforceable by the Parties andtheir respective successors and permitted assigns.

** **

**SECTION 5.9.             **Termination. This Agreement may not be terminated except by an agreement in writingsigned by all Parties.

** **

**SECTION 5.10.           **Third Party Beneficiaries.  Except as provided in Article II, thisAgreement is solely for the benefit of the Parties hereto and their respectiveSubsidiaries (including, with respect to IMS, Gartner Inc., Synavant, Inc. and Cognizant Technology SolutionsCorporation, and their respective successors and assigns, provided, in the case of any such assigns, that VNU has granted its priorwritten consent to such assignment) and Affiliates and should not be deemed toconfer upon third parties any remedy, claim, liability, reimbursement, claim ofaction or other right in excess of those existing without reference to thisAgreement.

** **

**SECTION 5.11.           **Title and Headings.  Titles and headings to sections herein areinserted for the convenience of reference only and are not intended to be apart of or to affect the meaning or interpretation of this Agreement.

** **

**SECTION 5.12.           **GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THELAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMEDIN THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAWPROVISIONS OR RULES THEREOF.

** **

**SECTION 5.13.           **Consent to Jurisdiction.

 

(a)       Eachof the Parties irrevocably submits to the exclusive jurisdiction of (a) theSupreme Court of the State of New York, New York County, and (b) the UnitedStates District Court for the Southern District of New York, for the purposesof any suit, action or other proceeding arising out of this Agreement or anytransaction contemplated hereby.  Each ofthe Parties agrees to commence any action, suit or proceeding relating heretoeither in the United States District Court for the Southern District of NewYork or if such suit, action or other proceeding may not be 

 

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brought in such court for jurisdictionalreasons, in the Supreme Court of the State of New York, New York County.

 

(b)       Eachof the Parties further agrees that service of any process, summons, notice ordocument by U.S. registered mail to such Party’s respective address set forthabove shall be effective service of process for any action, suit or proceedingin New York with respect to any matters to which it has submitted tojurisdiction in this Section, except that in the event that at any time VNUceases to maintain an office in New York, New York, VNU hereby agrees toirrevocably appoint CT Corporation System (the “Process Agent”), with anoffice on the date hereof, at 111 Eight Avenue, 13th Floor, NewYork, New York 10011, United States, as its agent to receive on behalf of VNUservice of copies of the summons and complaint and any other process which maybe served in all such actions and proceedings. Such service may be made by mailing or delivering a copy of such processto VNU in care of the Process Agent at the Process Agent’s above address, andVNU hereby irrevocably authorizes and directs the Process Agent to accept suchservice on behalf of VNU.

 

(c)       Eachof the parties irrevocably and unconditionally waives any objection to thelaying of venue of any action, suit or proceeding arising out of this Agreementor the transactions contemplated hereby in (i) the Supreme Court of the Stateof New York, New York County, or (ii) the United States District Court for theSouthern District of New York, and hereby further irrevocably andunconditionally waives and agrees not to plead or claim in any such court thatany such action, suit or proceeding brought in any such court has been broughtin an inconvenient forum.

 

(d)       Concurrentlywith the execution and delivery of this Agreement, each of the D&B Partiesand IMS have received opinions from De Brauw Blackstone Westbroek N.V., outsideDutch counsel for VNU, and Bird & Bird, outside Dutch counsel for D&B,each dated as of the date hereof, to the effect that, under Dutch law and VNU’sorganizational documents, this Agreement (i) has been duly authorized, executedand delivered by VNU, (ii) constitutes a valid and legally binding agreement ofVNU and (iii) is enforceable against VNU in accordance with its terms.  Copies of such opinions are attached as Exhibit5.13 hereto.

** **

**SECTION 5.14.           **Severability. In the event any one or more of the provisions contained in thisAgreement should be held invalid, illegal or unenforceable in any respect, thevalidity, legality and enforceability of the remaining provisions containedherein and therein shall not in any way be affected or impaired thereby.  The Parties shall endeavor in good-faithnegotiations to replace the invalid, illegal or unenforceable provisions withvalid provisions, the economic effect of which comes as close as possible to thatof the invalid, illegal or unenforceable provisions.

** **

**SECTION 5.15.           **Further Assurances.  From time to time, as and when reasonablyrequested by any other Party hereto, each Party hereto shall execute anddeliver, or cause to be executed and delivered, all such documents andinstruments and shall take, or cause to be taken, all such further or otheractions as such other Party may 

 

**25**

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**reasonably deem necessary or desirable toeffect the purposes of this Agreement and the transactions contemplatedhereunder.**

 

**SECTION 5.16.**            Specific Enforcement.  The parties agree that irreparable damagewould occur and that the parties would not have any adequate remedy at law inthe event that any of the provisions of this Agreement were not performed inaccordance with their specific terms or were otherwise breached.  It is accordingly agreed that the partiesshall be entitled to a preliminary and/or permanent injunction or injunctionsto prevent breaches of this Agreement and to enforce specifically the terms andprovisions of this Agreement in any court set forth in Section 5.13, this beingin addition to any other remedy to which they are entitled at law or in equity.

 

26

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**IN WITNESS WHEREOF**the Parties have caused this Agreement to be executed and delivered as of thedate first above written.

 

 
| ** ** | **VNU, N.V.**                                             |
|------------|-----------------------------------------------------------|
|       |                                                      |
|       |                                                      |
|       | By:                                                       |  /s/ F. J. G. M. Cremers |   |
|       | Name:  F. J. G. M. Cremers                           |
|       | Title:  Member of the Executive  Board               |
|       |                                                      |
|       |                                                      |
| ** ** | **VNU, Inc.**                                             |
|       |                                                      |
|       |                                                      |
|       | By:                                                       |  /s/ Michael E. Elias |   |
|       | Name:  Michael E. Elias                              |
|       | Title:  Vice President &  Deputy General Counsel |
|       |                                                      |
|       |                                                      |
| ** ** | **ACNielsen Corporation**                                 |
|       |                                                      |
|       |                                                      |
|       | By:                                                       |  /s/ Michael E. Elias |   |
|       | Name:  Michael E. Elias                              |
|       | Title:  Vice President &  Assistant Secretary    |
|       |                                                      |
|       |                                                      |
| ** ** | **Nielsen Media Research, Inc.**                          |
|       |                                                      |
|       |                                                      |
|       | By:                                                       |  /s/ James Ross |   |
|       | Name:  James Ross                                    |
|       | Title:  Assistant Secretary                          |
|       |                                                      |
|       |                                                      |
| ** ** | **AC Nielsen (US), Inc.**                                 |
|       |                                                      |
|       |                                                      |
|       | By:                                                       |  /s/ Michael E. Elias |   |
|       | Name:  Michael E. Elias                              |
|       | Title:  Vice President &  Assistant Secretary    |

 

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| ** ** | **R.H Donnelley Corporation**            |
|------------|------------------------------------------|
| ** ** | ** **                               |
| ** ** | ** **                               |
|       | By:                                      |   | /s/ Robert J. Bush |   |
|       | Name:                                    | Robert J. Bush |
|       | Title:                                   | Vice President, General Counsel  and Corporate Secretary |
| ** ** |
| ** ** | ** **                               |
| ** ** | ** **                               |
| ** ** | **The Dun & Bradstreet Corporation** |
| ** ** | ** **                               |
| ** ** | ** **                               |
|       | By:                                      |   | /s/ David Lewinter |   |
|       | Name:                                    | David Lewinter |
|       | Title:                                   | Senior Vice President and General  Counsel |
| ** ** |
| ** ** | ** **                               |
| ** ** | ** **                               |
| ** ** | **Moody’s Corporation**             |
| ** ** | ** **                               |
| ** ** | ** **                               |
|       | By:                                      |   | /s/ John Goggins |   |
|       | Name:                                    | John Goggins |
|       | Title:                                   | Senior Vice President and General  Counsel |
| ** ** | ** **                               |
| ** ** | ** **                               |
| ** ** | **IMS Health Incorporated**              |
| ** ** | ** **                               |
|       | By:                                      |   | /s/ Robert H. Steinfeld |   |
|       | Name:                                    | Robert H. Steinfeld |
|       | Title:                                   | Senior Vice President, General  Counsel and Corporate Secretary |

 

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