**Exhibit 10.3**

 

IMS HEALTH INCORPORATED

 

EXECUTIVEPENSION PLAN

 

 

Effective asof April 17, 2001

 

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**TABLE OF CONTENTS**

 
| INTRODUCTION |
|--------------|
| SECTION  1   | - DEFINITIONS |
| 1.1          | “Actuarial Equivalent Value” |
| 1.2          | “Affiliated Employer” |
| 1.3          | “Average Final Compensation” |
| 1.4          | “Basic  Disability Plan” |
| 1.5          | “Basic Disability Plan Benefit” |
| 1.6          | “Basic Plan” |
| 1.7          | “Basic Plan Benefit” |
| 1.8          | “Board” |
| 1.9          | “Cause” |
| 1.10         | “CEO” |
| 1.11         | “Change in Control” |
| 1.12         | “Change in Control Agreement” |
| 1.13         | “Code” |
| 1.14         | “Company” |
| 1.15         | “Compensation” |
| 1.16         | “Covered Earnings” |
| 1.17         | “Deferred Vested Benefit” |
| 1.18         | “Disability” or “Disabled” |
| 1.19         | “Disability Benefits” |
| 1.20         | “Effective Date” |
| 1.21         | “Former Member” |
| 1.22         | “Good Reason”. |
| 1.23         | “Lump Sum Election” |
| 1.24         | “Member” |
| 1.25         | “Other Disability Income” |
| 1.26         | “Other Retirement Income” |
| 1.27         | “Plan” |

 

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| 1.28       | “Plan Administrator”                  |
|------------|-------------------------------------------------|
| 1.29       | “Potential Change in Control”         |
| 1.30       | “Retirement”                          |
| 1.31       | “Retirement Benefits”                 |
| 1.32       | “Service”                             |
| 1.33       | “Surviving Spouse”                    |
| 1.34       | “Surviving Spouse’s Benefits”    |
| 1.35       | “Vested Former Member”                |
| SECTION  2 | - PARTICIPATION                                 |
| 2.1        | Commencement of Participation                   |
| 2.2        | Termination of Participation                    |
| SECTION 3  | - AMOUNT AND FORM OF BENEFITS                   |
| 3.1        | Retirement Benefits                             |
| 3.2        | Deferred Vested Benefit                         |
| 3.3        | Form of Payment                                 |
| 3.4        | Lump Sum Election                               |
| 3.5        | Cessation of Benefits                           |
| 3.6        | Notification of Cessation of Benefits           |
| 3.7        | Repayment of Benefits Paid as Lump Sum          |
| 3.8        | Change in Control                               |
| SECTION 4  | - DISABILITY BENEFITS                           |
| 4.1        | Eligibility                                     |
| 4.2        | Amount                                          |
| SECTION 5  | - SURVIVING SPOUSE’S BENEFITS              |
| 5.1        | Death Prior to Benefit Commencement             |
| 5.2        | Death On or After Benefit Commencement          |
| 5.3        | Commencement of Surviving Spouse’s Benefit |
| 5.4        | Lump Sum Payment                                |
| 5.5        | Reduction                                       |

 

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| SECTION 6 | - PLAN ADMINISTRATOR                            |
|-----------|-------------------------------------------------|
| 6.1       | Duties and Authority                            |
| 6.2       | Presentation of Claims                          |
| 6.3       | Claims Denial Notification                      |
| 6.4       | Claims Review Procedure                         |
| 6.5       | Timing                                          |
| 6.6       | Final Decision                                  |
| SECTION 7 | - MISCELLANEOUS                                 |
| 7.1       | Amendment; Termination                          |
| 7.2       | No Employment Rights                            |
| 7.3       | Payout in Discretion of the Plan  Administrator |
| 7.4       | Unfunded Status                                 |
| 7.5       | Arbitration                                     |
| 7.6       | No Alienation                                   |
| 7.7       | Withholding                                     |
| 7.8       | Governing Law                                   |
| 7.9       | Successors                                      |
| 7.10      | Integration                                     |

 

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IMS HEALTH INCORPORATED

 

EXECUTIVE PENSION PLAN

 

Effective as of April 17, 2001

 

**INTRODUCTION**

 

The IMS Health Incorporated Executive PensionPlan (the “Plan”) is hereby established to provide a means of ensuring thepayment of a competitive level of retirement income and disability and survivorbenefits, and thereby attract, retain and motivate a select group of executivesof IMS Health Incorporated and its affiliated employers.

 

**SECTION 1** - **DEFINITIONS**

 

1.1                                 “Actuarial Equivalent Value” shall mean a benefit ofequivalent value computed on the basis of the mortality table and interest rateused to calculate accrued benefits under the Basic Plan.

 

1.2                                 “Affiliated Employer” shall mean an entity affiliatedwith the Company.

 

1.3                                 “Average Final Compensation” shall mean a Member’s averageannual Compensation during the five consecutive 12-month periods in the lastten consecutive 12-month periods of his or her Service (or during the totalnumber of consecutive 12-month periods if fewer than five), immediately priorto the month following the Member’s termination of employment with the Companyor an Affiliated Employer or, if earlier, removal from participation under thisPlan, affording the highest such Average Final Compensation.  If actual monthly Compensation for any monthduring the 120-month computational period is

 

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unavailable,Compensation for such month shall be determined by dividing the Member’s annualrate of base pay in the month preceding such unavailable month by 12.

 

1.4                                 “Basic Disability Plan” shall mean as to any Member thelong-term disability plan of the Company or an Affiliated Employer pursuant towhich long-term disability benefits are payable to such Member.

 

1.5                                 “Basic Disability Plan Benefit” shallmean the amount of benefits payable to a Member from the Basic Disability Plan.

 

1.6                                 “Basic Plan” shall mean as to any Member or Vested FormerMember the defined benefit pension plan of the Company or an AffiliatedEmployer intended to meet the requirements of Code Section 401(a) pursuant towhich retirement benefits are payable to such Member or Vested Former Member orto the Surviving Spouse or designated beneficiary of a deceased Member orVested Former Member.

 

1.7                                 “Basic Plan Benefit” shall mean the amount ofbenefits payable from the Basic Plan to a Member or Vested Former Member.

 

1.8                                 “Board” shall mean the Board of Directors of IMS HealthIncorporated, except that any action authorized to be taken by the Boardhereunder may also be taken by a duly authorized committee of the Board or itsduly authorized delegees.

 

1.9                                 “Cause”.  A Membershall not be deemed to have been terminated for “Cause” under this Plan unlesssuch Member shall have been terminated for “Cause” under the terms of suchMember’s employment agreement or Change in Control

 

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Agreement withthe Company, if any.  If no suchemployment agreement or Change in Control Agreement containing a definition of“Cause” shall be in effect, for purposes of this Plan “Cause” shall mean aMember’s:

 

(a)                                  willfuland continued failure to substantially perform his or her duties (other thanany such failure resulting from incapacity due to physical or mental illness orDisability or any failure after the issuance of a notice of termination by theMember for Good Reason) which failure is demonstrably and materially damagingto the financial condition or reputation of the Company and/or its AffiliatedEmployers, and which failure continues more than 48 hours after a writtendemand for substantial performance is delivered to the Member by the Board,which demand specifically identifies the manner in which the Board believesthat the Member has not substantially performed his or her duties; or

 

(b)                                 thewillful engaging by the Member in conduct which is demonstrably and materiallyinjurious to the Company, monetarily or otherwise.

 

No act, orfailure to act, on the part of the Member shall be deemed “willful” unlessdone, or omitted to be done, by the Member not in good faith and withoutreasonable belief that his or her action or omission was in the best interestof the Company.  Notwithstanding theforegoing, the Member shall not be deemed to have been terminated for Causeunless and until there shall have been delivered to the Member a copy of theresolution duly adopted by the affirmative vote of not less than three-quarters(3/4) of the entire membership of the Board at a meeting

 

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of the Board(after reasonable notice to the Member and an opportunity for the Member,together with the Member’s counsel, to be heard before the Board) finding that,in the good faith opinion of the Board, the Member was guilty of conduct setforth above in this definition and specifying the particulars thereof indetail.

 

1.10                           “CEO” shall mean the Chief Executive Officer of the Company.

 

1.11                           “Change in Control”.  If a “Change in Control” shall have occurred or shall be deemedto have occurred under the terms of a Member’s or Vested Former Member’s Changein Control Agreement or employment agreement with the Company, if any, then a“Change in Control” shall be deemed to have occurred under this Plan.   Otherwise a “Change in Control” shall bedeemed to have occurred if:

 

(a)                                  any“Person” as such term is used for purposes of Sections 13(d) or 14(d) of the Securities Exchange Act of 1934, asamended (the “Exchange Act”) (other than the Company, any trustee or otherfiduciary holding securities under an employee benefit plan of the Company, orany company owned, directly or indirectly, by the stockholders of the Companyin substantially the same proportions as their ownership of stock of theCompany), becomes the “Beneficial Owner” (as defined in Rule 13d-3 of theExchange Act), directly or indirectly, of securities of the Company representing20% or more of the combined voting power of the Company’s then outstandingsecurities;

 

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(b)                                 duringany period of 24 months (not including any period prior to the Effective Date),individuals who at the beginning of such period constitute the Board, and anynew director (other than (i) a director nominated by a Person who has enteredinto an agreement with the Company to effect a transaction described inSections 1.11(a), (c), or (d) hereof, (ii) a director nominated by any Person(including the Company) who publicly announces an intention to take or toconsider taking actions (including, but not limited to, an actual or threatenedproxy contest) which if consummated would constitute a Change in Control, or(iii) a director nominated by any Person who is the Beneficial Owner, directlyor indirectly, of securities of the Company representing 10% or more of thecombined voting power of the Company’s securities) whose election by the Boardor nomination for election by the Company’s stockholders was approved inadvance by a vote of at least two-thirds (2/3) of the directors then still inoffice who either were directors at the beginning of the period or whoseelection or nomination for election was previously so approved, cease for anyreason to constitute at least a majority thereof;

 

(c)                                  thestockholders of the Company approve any transaction or series of transactionsunder which the Company is merged or consolidated with any other company, otherthan a merger or consolidation (i) which would result in the voting securitiesof the Company outstanding immediately prior thereto continuing to represent(either by remaining outstanding or by being converted into voting securitiesof the surviving entity) more

 

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than 66 2/3%of the combined voting power of the voting securities of the Company or suchsurviving entity outstanding immediately after such merger or consolidation,and (ii) after which no “Person” holds 20% or more of the combined voting powerof the then outstanding securities of the Company or such surviving entity;

 

(d)                                 thestockholders of the Company approve a plan of complete liquidation of theCompany or an agreement for the sale or disposition by the Company of all orsubstantially all of the Company’s assets; or

 

(e)                                  theBoard adopts a resolution to the effect that, for purposes of this Plan, aChange in Control has occurred.

 

1.12                           “Change in Control Agreement” shall meanany written agreement in effect between any Member or Former Member or VestedFormer Member and the Company or an Affiliated Employer pursuant to whichbenefits may be payable to such Member or Former Member or Vested Former Memberin connection with a Change in Control.

 

1.13                           “Code” shall mean the Internal Revenue Code of 1986, asamended from time to time.

 

1.14                           “Company” shall mean IMS Health Incorporated.

 

1.15                           “Compensation” shallmean base salary, annual bonuses, commissions, overtime and shift pay, in eachcase prior to reductions for elective contributions under Sections 401(k), 125and 132(f)(4) of the Code and deferred compensation under

 

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anynonqualified deferred compensation plan. Notwithstanding the foregoing, Compensation shall exclude severance pay(including, without limitation, severance pay under the Company’s EmployeeProtection Plan), stay-on bonuses, long-term bonuses, retirement income,change-in-control payments, contingent payments, amounts paid under this Plan(other than Disability Benefits) or any other retirement plan or deferredcompensation plan, income derived from stock options, stock appreciation rightsand other equity-based compensation and other forms of special remuneration.

 

1.16                           “Covered Earnings” shall mean a Member’sCompensation in the 12 months immediately preceding the onset of the Member’sDisability.

 

1.17                           “Deferred Vested Benefit” shall mean thebenefits described in Section 3.2(b) hereof

 

1.18                           “Disability” or “Disabled” shall mean disability ordisabled for purposes of the Basic Disability Plan.

 

1.19                           “Disability Benefits” shall mean the benefitsprovided as described in Section 4.2 hereof.

 

1.20                           “Effective Date” shall mean April 17, 2001.

 

1.21                           “Former Member” shall mean (a) a Member whoseemployment with the Company or an Affiliated Employer terminates before he orshe has completed five or more years of Service, or (b) a Member who wasremoved from

 

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participationin the Plan, in accordance with Section 2.2 hereof, before he or she hascompleted five or more years of Service.

 

1.22                           “Good Reason”. If a Member shall have terminated employment for “Good Reason” under theterms of such Member’s Change in Control Agreement or employment agreement withthe Company, if any, then such Member shall be deemed to have terminatedemployment for “Good Reason” under this Plan. Otherwise “Good Reason” shall mean, without the Member’s express writtenconsent, the occurrence of any of the following circumstances unless, suchcircumstances are fully corrected prior to the date of termination specified inthe notice of termination given in respect thereof:

 

(a)                                  theassignment to the Member of any duties inconsistent with the Member’s positionin the Company, or an adverse alteration in the nature or status of theMember’s responsibilities or the conditions of the Member’s employment;

 

(b)                                 areduction by the Company in the Member’s annual base salary, target bonus orperquisites except for across-the-board perquisite reductions similarlyaffecting all senior executives of the Company and all senior executives of anyPerson, as such term is used for purposes of Sections 13(d) or 14(d) of theSecurities Exchange Act of 1934, as amended, in control of the Company; 

 

(c)                                  therelocation of the principal place of the Member’s employment to a location morethan 50 miles from the location of such place of

 

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employment;for this purpose, required travel on the Company’s business will not constitutea relocation so long as the extent of such travel is substantially consistentwith the Member’s customary business travel obligations;

 

(d)                                 thefailure by the Company to pay to the Member any portion of the Member’scompensation or to pay to the Member any portion of an installment of deferredcompensation under any deferred compensation program of the Company withinseven days of the date such compensation is due;

 

(e)                                  thefailure by the Company to continue in effect any material compensation orbenefit plan in which the Member participated unless an equitable arrangement(embodied in an ongoing substitute or alternative plan) has been made withrespect to such plan, or the failure by the Company to continue the Member’sparticipation therein (or in such substitute or alternative plan) on a basisnot materially less favorable, both in terms of the amounts of benefitsprovided and the level of the Member’s participation relative to otherparticipants;

 

(f)                                    thefailure of the Company to obtain a satisfactory agreement from any successor tothe Company to fully assume the Company’s obligations and to perform under thisPlan, as contemplated in Section 7.9 hereof;

 

(g)                                 withrespect to any Member who is a party to an employment agreement or a Change inControl Agreement, any purported termination of such

 

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Member’semployment that is not effected pursuant to the notice provisions, if any, insuch Member’s employment agreement or Change in Control Agreement.

 

1.23                           “Lump Sum Election” shall mean an election to receive allor a portion of the benefits payable hereunder in a lump sum pursuant toSection 3.4 hereof.

 

1.24                           “Member” shall mean an employee of the Company or anAffiliated Employer who becomes a participant in the Plan pursuant to Section2, but excludes any Former Member or Vested Former Member.

 

1.25                           “Other Disability Income” shall mean (i) thedisability insurance benefit that the Member is entitled to receive under theFederal Social Security Act while he or she is receiving the Basic DisabilityPlan Benefit and (ii) the disability income payable to a Member from anysupplemental executive disability plan of the Company or any AffiliatedEmployer or from any other contract, agreement or other arrangement with theCompany or an Affiliated Employer (excluding any Basic Disability Plan).

 

1.26                           “Other Retirement Income” shall mean theretirement income payable to a Member or Vested Former Member from any ‘excessbenefit plan’ as that term is defined in Section 3(36) of the EmployeeRetirement Income Security Act of 1974, as amended (“ERISA”), (increased by theamount of benefits, if any, payable from the Pension Benefit Equalization Planand/or the Supplemental Executive Benefit Plan of The Dun & BradstreetCorporation), any plan described in Section 201(2) of ERISA, and any othercontract, agreement or other

 

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arrangementproviding a defined pension benefit or defined contribution retirement benefit,in any case, maintained or entered into with the Company or an AffiliatedEmployer (excluding this Plan, any Basic Plan, any defined contribution planintended to meet the requirements of Code Section 401(a) and any elective planof deferred compensation).

 

1.27                           “Plan” shall mean this IMS Health Incorporated ExecutivePension Plan, as embodied herein, and any amendments thereto.

 

1.28                           “Plan Administrator” shall mean the Company,except that any action authorized to be taken by the Plan Administratorhereunder may also be taken by any committee or person(s) duly authorized bythe Board or the duly authorized delegate of such duly authorized committee orperson(s).

 

1.29                           “Potential Change in Control”.  If a “Potential Change in Control” shallhave occurred or shall be deemed to have occurred under the terms of a Member’sChange in Control Agreement or employment agreement with the Company, if any,then a “Potential Change in Control” shall be deemed to have occurred underthis Plan.  Otherwise a “PotentialChange in Control” shall be deemed to have occurred if:

 

(a)                                  theCompany enters into an agreement, the consummation of which would result in theoccurrence of a Change in Control;

 

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(b)                                 anyPerson (including the Company), as defined in Section 1.11(a) hereof, publiclyannounces an intention to take or to consider taking actions which ifconsummated would constitute a Change in Control; or

 

(c)                                  theBoard adopts a resolution to the effect that, for purposes of this Plan, aPotential Change in Control has occurred. 

 

1.30                           “Retirement” shall mean the termination of a Member’s orVested Former Member’s employment with the Company or an Affiliated Employerother than by reason of death or Disability (a) after attaining age 65 andcompleting five years of Service or (b) if Disability Benefits have been paidunder the Plan to a Member or Vested Former Member, the later of the cessationof the payment of such Disability Benefits or the Member’s or Vested FormerMember’s attainment of age 55.  Indetermining whether age 65 has been attained under clause (a) of thisdefinition, there shall be included as years of age the number of additionalyears credited as “age” for purposes of the Plan to the Member or Vested FormerMember under this Plan, a then-effective employment agreement between theCompany and such person, a then-effective Change in Control Agreement betweenthe Company and such Person, or otherwise approved in writing by the CEO.

 

1.31                           “Retirement Benefits” shall mean the benefitsdescribed in Section 3.1(b) hereof.

 

1.32                           “Service” shall mean a Member’s service defined as VestingService in the Basic Plan, which is taken into account for vesting purposesthereunder, except that (a) Service will also include that period of timeduring which the Member is

 

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receivingDisability Benefits under this Plan; (b) if a Member was employed by a companyacquired by the Company or an Affiliated Employer after the Effective Date,such Member’s service with that company prior to the date of acquisition willnot constitute Service hereunder unless otherwise approved in writing by theCEO; (c) upon commencement of participation hereunder in accordance with Section2.1 hereof, the CEO may limit any service otherwise to constitute Servicehereunder with respect to periods prior to the date of participation in thePlan; (d) no service of a Former Member or Vested Former Member during anyperiod after removal from participation under Section 2.2 shall constituteService for purposes of the Plan; and (e) service prior to the date anindividual becomes a Member shall initially not be counted for purposes ofdetermining the amount of the Member’s Retirement Benefit pursuant to Section3.1(b)(i) or the Member’s Deferred Vested Benefit pursuant to Section3.2(b)(i), but for such purposes shall be deemed to accrue at the rate of 20%of such prior service for each year of Service completed after such individualbecomes a Member until 100% accrued. The foregoing notwithstanding, there shall be included as Service forall purposes under the Plan the number of additional years (or other additionalperiod) credited as “service” for purposes of the Plan to the Member or FormerMember or Vested Former Member under this Plan, an employment agreement betweenthe Company or an Affiliated Employer and such person or a Change in ControlAgreement in effect at the time of such person’s termination of employment, orotherwise approved in writing by the CEO.

 

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1.33                           “Surviving Spouse” shall mean the spouse of adeceased Member or Vested Former Member to whom such Member or Vested FormerMember is married under applicable state law immediately preceding such Memberor Vested Former Member’s death.

 

1.34                           “Surviving Spouse’s Benefits” shall meanthe benefits described in Section 5 hereof.

 

1.35                           “Vested Former Member” shall mean (a) a Memberwhose employment with the Company or an Affiliated Employer terminates on orafter the date on which he or she has completed five or more years of Service,or (b) a Member who was removed from participation in the Plan, in accordancewith Section 2.2 hereof, on or after the date on which he or she has completedfive or more years of Service.

 

**SECTION 2**- **PARTICIPATION**

 

2.1                                 Commencement of Participation.  Such key executives of the Company and itsAffiliated Employers as are designated by the CEO in writing and, in the caseof officers of the Company or its Affiliated Employers, approved by theCompensation and Benefits Committee of the Board, shall participate in the Planas of a date determined by the CEO.

 

2.2                                 Termination of Participation.  A Member’s participation in the Plan shallterminate upon termination of his or her employment with the Company or anyAffiliated Employer. Prior to termination of employment, a Member may beremoved, upon written notice by the CEO, and, in the case of officers of the

 

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Company or itsAffiliated Employers, as approved by the Compensation and Benefits Committee ofthe Board, from further participation in the Plan.  As of the date of termination or removal, no further benefitsshall accrue to such individual hereunder.

 

**SECTION 3** - **AMOUNT AND FORMOF BENEFITS**

 

3.1                                 RetirementBenefits

 

(a)                                  Eligibility.  Upon the Retirement of a Member or VestedFormer Member from the Company or an Affiliated Employer, he or she shall beentitled to the Retirement Benefit described in Section 3.1(b) hereof, payablein the form specified in Section 3.3.

 

(b)                                 Amount.  The Retirement Benefit of a Member or VestedFormer Member shall be an annual benefit equal to the difference between (i)and the sum of (ii) and (iii) where:

 

(i)                                     is2.5% of his or her Average Final Compensation multiplied by the number of hisor her years of Service not in excess of fifteen years, plus 1.5% of suchAverage Final Compensation multiplied by the number of his or her years ofService over fifteen but not in excess of thirty years;

 

(ii)                                  isthe Basic Plan Benefit payable to the Member or Vested Former Member as of thedate of his or her Retirement expressed in the form of an annual life annuity,or, if the Basic Plan Benefit

 

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becomespayable after the Member’s or Vested Former Member’s Retirement, the ActuarialEquivalent Value of the Basic Plan Benefit payable in the form of an annuallife annuity as of such date, regardless of whether such date precedes theearliest possible payment date under the terms of the Basic Plan; and

 

(iii)                               isthe Other Retirement Income payable to the Member or Vested Former Member as ofthe date of his or her Retirement expressed in the form of an annual lifeannuity, or, if the Other Retirement Income becomes payable after the Member’sor Vested Former Member’s Retirement, the Actuarial Equivalent Value of theOther Retirement Income payable in the form of an annual life annuity as ofsuch date, regardless of whether such date precedes the earliest possiblepayment date under the terms of the appropriate retirement arrangement.

 

3.2                                 Deferred Vested Benefit.

 

(a)                                  Eligibility.  Each Member and Vested Former Member who hascompleted five or more years of Service and whose employment with the Companyor an Affiliated Employer terminates prior to Retirement, for a reason otherthan Cause, death or Disability shall be entitled to the Deferred VestedBenefit described in Section 3.2(b) hereof, payable in the form specified inSection 3.3.

 

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(b)                                 Amount.  The Deferred Vested Benefit of a Member orVested Former Member who terminates and who meets the eligibility requirementsof Section 3.2(a) shall be an annual benefit equal to the difference between(i) and the sum of (ii) and (iii), where:

 

(i)                                     is2.5% of his or her Average Final Compensation, multiplied by the number of hisor her years of Service not in excess of fifteen, plus 1.5% of such AverageFinal Compensation multiplied by the number of his or her years of Service overfifteen, but not in excess of thirty years;

 

(ii)                                  isthe Basic Plan Benefit payable to the Member or Vested Former Member as of thedate his or her Deferred Vested Benefit commences expressed in the form of anannual life annuity, or, if the Basic Plan Benefit becomes payable after theMember’s or Vested Former Member’s Deferred Vested Benefit commences, theActuarial Equivalent Value of the Basic Plan Benefit payable in the form of anannual life annuity as of such date, regardless of whether such date precedesthe earliest possible payment date under the terms of the Basic Plan; and

 

(iii)                               isthe Other Retirement Income payable to the Member or Vested Former Member as ofthe date his or her Deferred Vested Benefit commences expressed in the form ofan annual life annuity, or, if the Other Retirement Income becomes payableafter the Member’s

 

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or VestedFormer Member’s Deferred Vested Benefit commences, the Actuarial EquivalentValue of the Other Retirement Income payable in the form of an annual lifeannuity as of such date, regardless of whether such date precedes the earliestpossible payment date under the terms of the appropriate retirementarrangement.

 

3.3                                 Form of Payment.

 

(a)                                  Exceptas provided under Section 3.3(b) or Section 3.3(c), the Retirement Benefit orDeferred Vested Benefit under this Plan, as the case may be, shall be payablein monthly installments in the form of a straight life annuity and withoutregard to any optional form of benefits elected under the Basic Plan.  Payments shall commence as of the first dayof the calendar month coinciding with or next following (i) the earlier of thedate the Member or Vested Former Member attains age 65 or the date of the Member’sor Vested Former Member’s Retirement, in the case of Retirement Benefits or(ii) the later of the date the Member or Vested Former Member attains age 55 orterminates employment, in the case of Deferred Vested Benefits, and shallcommence to be paid on such date or as soon as administratively practicablethereafter, with interest as determined by the Plan Administrator for any delayin payment.

 

(1)                                  Anythingin this Plan to the contrary notwithstanding, the Deferred Vested Benefitpayable to a Member or Vested Former Member

 

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who terminatesemployment prior to having attained age 55 shall be the Actuarial EquivalentValue of the Deferred Vested Benefit otherwise payable upon such Member’s orVested Former Member’s attainment of age 65, reduced for commencement on thedate of such  Member’s or Vested FormerMember’s attainment of age 55.

 

(2)                                  Anythingin this Plan to the contrary notwithstanding, the Deferred Vested Benefitpayable to a Member or Vested Former Member whose employment has beenterminated by the Company without Cause before such Member or Vested FormerMember has attained age 55 or the Deferred Vested Benefit payable to a Memberor Vested Former Member who terminates employment for Good Reason before suchMember or Vested Former Member has attained age 55 shall be reduced by 20% ifsuch Member or Vested Former Member had not completed ten years of Service asof the date of termination; otherwise, by 10% if such Member or Vested FormerMember had completed ten years of Service as of the date of termination.

 

(3)                                  Anythingin this Plan to the contrary notwithstanding, the Deferred Vested Benefitpayable to a Member or Vested Former Member whose termination of employmentoccurs after such Member or Vested Former Member has attained age 55 but priorto such Member or Vested Former Member having completed 10 years of

 

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Service shallbe reduced by 2% for each 12-month period that such Member’s or Vested FormerMember’s termination of employment precedes such Member’s or Vested FormerMember’s attainment of age 65.

 

(4)                                  Anythingin this Plan to the contrary notwithstanding, the Deferred Vested Benefit payable to a Member or Vested Former Memberwhose  termination of employment occursafter such Member or Vested Former Member has attained age 55 and completed 10years of Service shall be reduced by 2% for each 12-month period that suchMember’s or Vested Former Member’s termination of employment precedes suchMember’s or Vested Former Member’s attainment of age 60.  A Member or Vested Former Member whosetermination of employment occurs after such Member or Vested Former Member hasattained age 60 and completed 10 years of Service shall be paid 100% of suchMember’s or Vested Former Member’s Deferred Vested Benefit.

 

(5)                                  Forpurposes of calculating any Deferred Vested Benefit that is reduced inaccordance with paragraphs (2), (3) or (4) of this Section 3.3(a), aninterpolated percentage shall be used to calculate the percentage reduction insuch Deferred Vested Benefit for any period of fewer than 12 months.

 

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(b)                                 Ifa Member or Vested Former Member has made a Lump Sum Election pursuant toSection 3.4 and such Lump Sum Election becomes effective (i) prior to the dateof such Member’s or Vested Former Member’s Retirement or termination ofemployment with the Company or an Affiliated Employer and (ii) while he or shewas still a Member, the Retirement Benefit, or Deferred Vested Benefit underthis Plan, as the case may be, shall be payable in the form or combination offorms of payment elected pursuant to such Lump Sum Election under Section 3.4and without regard to any optional form of benefits elected under the BasicPlan.  Any portion of the benefitshereunder payable in a lump sum shall be paid within 60 days following (i) theearlier of the date the Member or Vested Former Member attains age 65 or thedate of the Member’s or Vested Former Member’s Retirement, in the case ofRetirement Benefits or (ii) the later of the date the Member or Vested FormerMember attains age 55 or terminates employment, in the case of Deferred VestedBenefits.

 

(c)                                  Notwithstandingany Lump Sum Election made (or not made) under Section 3.4, if the lump sumvalue, determined in the same manner as provided under Section 3.4(a), of aMember’s or Vested Former Member’s Retirement or Deferred Vested Benefit is$10,000 or less at the time such benefit is payable under this Plan, such benefitshall be payable as a lump sum.

 

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3.4                                 Lump Sum Election.

 

(a)                                  AMember or Vested Former Member may elect to receive all, none, or a specifiedportion, as provided in Section 3.4(c), of his or her Retirement Benefit orDeferred Vested Benefit under the Plan as a lump sum and to receive any balanceof such benefit in the form of an annuity; provided that any such Lump SumElection shall be effective for purposes of this Plan only if the conditions ofSection 3.4(b) are satisfied.  A LumpSum Election made by a Member or Vested Former Member in accordance with theterms of any plan maintained by the Company described in Section 201(2) ofERISA, including without limitation, the IMS Health Incorporated U.S. ExecutiveRetirement Plan, shall be effective with respect to this Plan.  A Member or Vested Former Member may elect apayment form different than the payment form previously elected by him or herunder this Section 3.4(a) by filing a revised election form; provided that anysuch new election shall be effective only if the conditions of Section 3.4(b)are satisfied with respect to such new election.  Any prior Lump Sum Election made by a Member that has satisfiedthe conditions of Section 3.4(b) shall remain effective for purposes of thePlan until such Member has made a new election satisfying the conditions ofSection 3.4(b).  The amount of anyportion of a Member’s or a Vested Former Member’s Retirement Benefit orDeferred Vested Benefit payable as a lump sum under this Section 3.4 shall bedetermined by first reducing such portion of the benefit in accordance withSection 3.3 (a)(1), (2), (3) or (4),

 

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if applicable,and then calculating the present value of such portion of the benefit: (i) onthe assumption that it is payable in the form of a joint and 50 percentsurvivor annuity if such Member or Vested Former Member is married; and (ii) onthe basis of (1) a discount rate equal to 85% of the average of the 15-yearnon-callable U.S. Treasury bond yields (or, in the event that 15-yearnon-callable U.S. Treasury bond yields are unavailable, such proxy for the sameas the Plan Administrator may reasonably select) as of the close of business onthe last business day of each of the three months immediately preceding thedate provided in Section 3.3(a) as of which monthly installments wouldotherwise commence, as modified by Section 3.8(a)(i) if applicable, and (2) the1983 Group Annuity Mortality Table.

 

(b)                                 AMember’s Election under Section 3.4(a) becomes effective only if all of thefollowing conditions are satisfied: (i) such Member remains in the employmentof the Company or an Affiliated Employer, as the case may be, for the full 12calendar months immediately following the date of such election (the “ElectionDate”), except in the case of death or Disability of such Member (in which caseSection 3.4(d) shall apply) and (ii) such Member complies with theadministrative procedures set forth by the Plan Administrator with respect tothe making of a Lump Sum Election.

 

(c)                                  AMember making an election under Section 3.4(a) may specify the portion of hisRetirement or Deferred Vested Benefit under the Plan to be received in a lumpsum as follows:  0%, 25%, 50%, 75%, or100%.

 

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(d)           In the event aMember who has made an Election pursuant to Section 3.4(a) dies or becomesDisabled while employed by the Company or an Affiliated Employer and such deathor Disability occurs during the 12 calendar-month period immediately followingthe Election Date, the condition under Section 3.4(b)(i) shall be deemedsatisfied with respect to such Member.

 

3.5                                 Cessation of Benefits.  Subject to Section 3.8 hereof, no benefitsor no further benefits, as the case may be, shall be paid to a Member, VestedFormer Member or Surviving Spouse if the Member or Vested Former Member has:

 

(a)                                  becomea stockholder (unless such stock is listed on a national securities exchange ortraded on a daily basis in the over-the-counter market and the Member’s orVested Former Member’s ownership interest is not in excess of 2% of the companywhose shares are being purchased), employee, officer, director or consultant ofor to a company, or a member or an employee of or a consultant to a partnershipor any other business or firm, which competes with any of the businessesidentified in the Company’s Employee Protection Plan, or such Member or VestedFormer Member accepts any form of compensation from such competing entity; 

 

(b)                                 beendischarged from employment with the Company or any Affiliated Employer forCause;

 

(c)                                  failedto retain in confidence any and all confidential information concerning theCompany or any Affiliated Employer and its respective

 

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business whichwas known or became known to the Member or Vested Former Member, except asotherwise required by law and except information (i) ascertainable or obtainedfrom public information, (ii) received by the Member or Vested Former Member atany time after the Member’s or Vested Former Member’s employment by the Companyor any Affiliated Employer terminated, from a third party not employed by orotherwise affiliated with the Company or any Affiliated Employer, or (iii)which was or became known to the public by any means other than a breach ofthis Section 3.5; or

 

(d)                                 madedisparaging comments about the Company or any Affiliated Employer in anycommunications, written or oral, with any individual, company, government bodyor agency or any other entity whatsoever. For purposes hereof,  “disparage”shall mean any communication, including, but not limited to, any statements, actionsor insinuations, made either directly or through a third party, that would tendto lessen the standing or stature of the Company or any Affiliated Employer in the eyes of a customer, aprospective customer, a shareholder or a prospective shareholder.

 

3.6                                 Notification of Cessation of Benefits.  Subject to Section 3.8 hereof, in any casedescribed in Section 3.5, the Member, Vested Former Member or Surviving Spouseshall be given prior written notice that no benefits or no further benefits, asthe case may be, will be paid to such Member, Vested Former Member or SurvivingSpouse.  Such written notice shallspecify the particular act(s), or

 

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failures toact, and the basis on which the decision to cease paying his or her benefitshas been made.

 

3.7                                 Repayment of Benefits Paid as Lump Sum.

 

(a)                                  Subjectto Section 3.8 hereof, a Member or Vested Former Member who receives in a lumpsum any portion of his or her Retirement Benefit or Deferred Vested Benefitpursuant to a Lump Sum Election, shall receive such lump sum portion of such RetirementBenefit or Deferred Vested Benefit subject to the condition that if such Memberor Vested Former Member engages in any of the acts described in Section 3.5,then such Member or Vested Former Member shall, within 60 days after writtennotice by the Company, repay to the Company the amount described in Section3.7(b).

 

(b)                                 Theamount described in this Section shall equal the amount of the Member’s orVested Former Member’s lump sum benefit paid under this Plan to which suchMember or Vested Former Member would not have been entitled, if such lump sumbenefit had instead been payable in the form of an annuity under this Plan andsuch annuity payments were subject to the provisions of Section 3.5.

 

3.8                                 Change in Control.

 

(a)                                  Anythingin this Plan to the contrary notwithstanding:

 

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(i)                                     AnyMember, whose employment with the Company or an Affiliated Employer isinvoluntarily terminated by the Company or an Affiliated Employer at or withintwo years following a Change in Control for a reason other than Cause or whoseemployment is voluntarily terminated by the Member with Good Reason at orwithin two years following a Change in Control shall be deemed to havecompleted five years of Service for purposes of Section 3.2(a) hereof and shallbe credited with three additional years of Service for purposes of calculatingthe benefits payable under Sections 3.1(b) or 3.2(b) hereof and,notwithstanding the provisions of Section 3.3 of this Plan, any reductions in thebenefits payable under Sections 3.1(b) or 3.2(b) otherwise applicable underSections 3.3 (a) (1), (2), (3) or (4) shall not apply unless such Member shallhave terminated employment prior to attainment of age 52, in which case theActuarial Equivalent Value of such benefits shall be paid, calculated on theassumption that unreduced benefits are payable upon such Member’s attainment ofage 52.  Payment of such benefits shallbe made in the form provided in Section 3.3, commencing as provided in Section3.3(a) or (b), as the case may be, provided that with respect to DeferredVested Benefits, the commencement of payment shall be determined without regardto whether the Member has attained age 55. In addition, in the event that a Member’s Service shall have beenlimited pursuant to

 

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Section 1.32to disregard all or any portion of service prior to such Member’s participationin the Plan, such limitation shall be eliminated in the event of such Member’stermination of employment at or within two years following a Change in Controlas provided above in this subsection (i).

 

(ii)                                  Inthe event of a Potential Change in Control or Change in Control, the Companyshall, not later than 15 days thereafter, have established one or moreso-called “rabbi” trusts and shall deposit therein cash in an amount sufficientto provide for full payment of all potential benefits payable under the Plan ator following a Change in Control.  Suchrabbi trust(s) shall be irrevocable and shall provide that the Company may not,directly or indirectly, use or recover any assets of the trust(s) until suchtime as all obligations which potentially could arise hereunder have beensettled and paid in full, subject only to the claims of creditors of theCompany in the event of insolvency or bankruptcy of the Company; provided,however, that if no Change in Control has occurred within two years after suchPotential Change in Control, such rabbi trust(s) shall at the end of suchtwo-year period become revocable and may thereafter be revoked by the Company.

 

(iii)                               Theprovisions of Sections 3.5 through 3.7 shall be of no force or effect withrespect to Members who Retire or terminate

 

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employment withina two-year period following a Change in Control.

 

**SECTION 4** - **DISABILITY BENEFITS**

 

4.1                                 Eligibility. A Member who is enrolled for the maximum disability insurance coverageavailable under the Basic Disability Plan and who has become Disabled shall beentitled to the Disability Benefit described in Section 4.2.

 

4.2                                 Amount.  TheDisability Benefit of a Member entitled thereto shall be an annual benefitpayable in monthly installments under this Plan during the same period asdisability benefits are actually paid by the Basic Disability Plan, in anamount equal to 60% of the Member’s Covered Earnings, offset by the Member’s(i) Basic Disability Plan Benefit, (ii) Basic Plan Benefit, if the BasicDisability Plan Benefit is offset by such Basic Plan Benefit, and (iii) OtherDisability Income.

 

**SECTION 5******- **SURVIVINGSPOUSE’S BENEFITS**

 

5.1                                 Death Prior to Benefit Commencement.  Upon the death of a Member or Vested FormerMember, prior to the commencement of his or her Retirement Benefit or DeferredVested Benefit hereunder, any such Member shall be deemed to have completedfive years of Service for purposes of Section 3.2(a) and his or her SurvivingSpouse will be entitled to a Surviving Spouse’s Benefit under this Plan equalto 50% of the Retirement or Deferred Vested Benefit that would have beenprovided from the Plan had the Member or Vested Member retired from orterminated employment with the Company or an Affiliated Employer on the date

 

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of death andcommenced benefits on the later of the date the Member would have attained age55 or the date of the Member’s death.

 

5.2                                 Death On or After BenefitCommencement.  Upon the death ofa Vested Former Member while he or she is receiving Retirement or Deferred VestedBenefits, his or her Surviving Spouse shall receive a Surviving Spouse’sBenefit equal to 50%**of theBenefit he or she was receiving at the time of death.  Notwithstanding the foregoing, no benefit shall be payable underthis Section 5.2**to the extent aRetirement Benefit or Deferred Vested Benefit was previously paid to a Memberor Vested Former Member in the form of a lump sum.

 

5.3                                 Commencement of Surviving Spouse’sBenefit.  Except as provided inSection 5.4, the Surviving Spouse’s Benefit provided under Sections 5.1 or 5.2will be payable monthly, at the same time as the Surviving Spouse’s benefitsunder the Basic Plan.  Such benefitsshall continue until the first day of the month in which the Surviving Spousedies.

 

5.4                                 Lump Sum Payment.

 

(a)                                  Ifa Member or a Vested Former Member made an Election under Section 3.4 but suchMember or Vested Former Member died prior to such lump sum payment, theSurviving Spouse’s Benefit payable under Section 5.1 hereof will be payable inthe form or combination of forms of payment so elected by such Member or VestedFormer Member pursuant to such Lump Sum Election.  The amount of any lump sum payment under the

 

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Plan shall bedetermined using the actuarial assumptions set forth in Section 3.4(a).

 

(b)                                 Ifthe lump sum value, determined in the same manner as provided under Section3.4(a), of a Surviving Spouse’s Benefit is $10,000 or less at the time suchSurviving Spouse’s Benefit is payable under this Plan, such benefit shall bepayable as a lump sum.

 

(c)                                  AnySurviving Spouse’s Benefit which is payable as a lump sum shall be paid within60 days after the date when any portion of such benefit payable in annuity formcommences or would commence if any portion of such Surviving Spouse’s Benefitwere payable as an annuity as set forth in Section 5.3.

 

5.5                                 Reduction. Notwithstanding the foregoing provisions of Section 5, the amount of aSurviving Spouse’s Benefit shall be reduced by one percentage point for eachyear (where a half year or more is treated as a full year) in excess of tenyears that the age of the Member or Vested Former Member exceeds the age of theSurviving Spouse.

 

**SECTION 6** - **PLAN ADMINISTRATOR**

 

6.1                                 Duties and Authority.  The Plan Administrator shall be responsiblefor the administration of the Plan and may delegate to any managementcommittee, employee, director or agent its responsibility to perform any acthereunder, including, without limitation, those matters involving the exerciseof discretion;

 

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provided, thatsuch delegation shall be subject to revocation at any time at the PlanAdministrator’s discretion.  The PlanAdministrator shall have the sole discretion to determine all questions arisingin connection with the Plan, to interpret the provisions of the Plan and toconstrue all of its terms, to adopt, amend, and rescind rules and regulationsfor the administration of the Plan, and generally to conduct and administer thePlan and to make all determinations in connection with the Plan as may benecessary or advisable.  All suchactions of the Plan Administrator shall be conclusive and binding upon allMembers, Former Members, Vested Former Members, Surviving Spouses and otherpersons.

 

6.2                                 Presentation of Claims.  Claims for benefits shall be filed inwriting with the Plan Administrator. Written or electronic notice of the disposition of a claim shall befurnished to the claimant within 90 days after the claim is filed (or within180 days if special circumstances require an extension of time for processingthe claim and if notice of such extension and circumstances is provided to theclaimant within the initial 90-day period.)

 

6.3                                 Claims Denial Notification.  If a claim is wholly or partially denied,the Plan Administrator shall furnish to the claimant a written notice settingforth in a manner calculated to be understood by the claimant:

 

(a)                                  thespecific reason(s) for denial;

 

(b)                                 specificreference(s) to pertinent Plan provisions on which any denial is based;

 

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(c)                                  adescription of any additional material or information necessary for theclaimant to perfect the claim, and an explanation of why such material orinformation is necessary;

 

(d)                                 anexplanation of the Plan’s claims review procedures and the applicable timelimits for such procedures; and

 

(e)                                  astatement that the claimant has a right to bring a civil action under Section502(a) of ERISA following an adverse determination on review.

 

6.4                                 Claims Review Procedure.  Upon a denial, the claimant is entitled(either in person or by his duly authorized representative) to:

 

(a)                                  requesta subsequent review of the claim by the Plan Administrator upon writtenapplication for review made to the Plan Administrator.  In the case of a denial as to which writtennotice of denial has been given to the claimant, any such request for review ofthe claim must be made within 60 days after receipt by the claimant of suchnotice.  A claimant must submit a writtenapplication for review before the claimant is permitted to bring a civil actionfor benefits;

 

(b)                                 reviewpertinent documents relating to the denial; and

 

(c)                                  submitwritten comments, documents, records and other information relating to theclaim.

 

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6.5                                 Timing.  The PlanAdministrator shall make its decision and notify the claimant with respect to aclaim not later than 60 days after receipt of the request.  Such 60-day period may be extended for anotherperiod of 60 days if the Plan Administrator finds that special circumstancesrequire an extension of time for processing and notice of the extension andspecial circumstances is provided to the claimant within the initial 60-dayperiod.

 

6.6                                 Final Decision. The claim for review shall be given a full and fair review that takesinto account all comments, documents, records and other information submittedthat relates to the claim, without regard to whether such information wassubmitted or considered in the initial benefit determination.  The Plan Administrator shall provide theclaimant with written or electronic notice of the decision in a mannercalculated to be understood by the claimant. The notice shall include specific reasons for the decision, specificreferences to the pertinent Plan provisions on which the decision is based, astatement that the claimant has a right to bring a civil action under Section502(a) of ERISA, and a statement that the claimant is entitled to receive, uponrequest and free of charge, reasonable access to and copies of all documents,records and other information relevant to the claim.  A document is relevant to the claim if it was relied upon inmaking the determination, was submitted, considered or generated in the courseof making the determination or demonstrates that benefit determinations aremade in accordance with the Plan and that Plan provisions have been appliedconsistently with respect to similarly situated claimants.

 

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**SECTION 7**- **MISCELLANEOUS**

 

7.1                                 Amendment; Termination.  The Board of Directors of the Company, may,in its sole discretion, terminate, suspend or amend this Plan at any time orfrom time to time, in whole or in part; provided, however, that no termination,suspension or amendment of the Plan may adversely affect (a) a Member’s orVested Former Member’s benefit under the Plan to which he or she has becomeentitled hereunder, or, (b) a Vested Former Member’s right or the right of aSurviving Spouse to receive or to continue to receive a benefit in accordancewith the Plan, such benefits or rights as in effect on the date immediatelypreceding the date of such termination, suspension or amendment.  Notwithstanding the foregoing, the EmployeeBenefits Committee of the Company may amend the Plan without the approval ofthe Board of Directors of the Company with respect to amendments that suchCommittee determines do not have a significant effect on the cost of the Plan.

 

7.2                                 No Employment Rights.  Nothing contained herein will confer uponany Member, Former Member or Vested Former Member the right to be retained inthe service of the Company or any Affiliated Employee, nor will it interferewith the right of the Company or any Affiliated Employer to discharge orotherwise deal with Members, Former Members or Vested Former Members withrespect to matters of employment.

 

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7.3                                 Payout in Discretion of the PlanAdministrator.  Notwithstandinganything herein to the contrary, at any time following the termination ofservice of the Member or Vested Former Member, the Plan Administrator mayauthorize, under uniform rules applicable to all Members, Vested Former Membersand Surviving Spouses under the Plan, a lump sum distribution of a Member’s orVested Former Member’s Retirement Benefit or Deferred Vested Benefit or a lumpsum distribution of a Surviving Spouse’s Benefit in full satisfaction of allpresent and future Plan liability with respect to such Member, Vested FormerMember and/or Surviving Spouse, if the present value of such RetirementBenefit, Deferred Vested Benefit or Surviving Spouse’s Benefit, determined inaccordance with the provisions of Section 3.4(a) with respect to RetirementBenefits and Deferred Vested Benefits, and Section 5.4 with respect toSurviving Spouse’s Benefits, on the assumption that the Member or Vested FormerMember made an Election under Section 3.4, is less than $250,000.  Such lump sum distribution may be madewithout the consent of the Member, Vested Former Member or Surviving Spouse.

 

7.4                                 Unfunded Status.  Members and Vested Former Members shall have the status ofgeneral unsecured creditors of the Company, and this Plan constitutes a merepromise by the Company to make benefit payments at the time or times requiredhereunder. It is the intention of the Company that this Plan be unfunded fortax purposes and for purposes of Title I of ERISA and any trust created by theCompany and any assets held by such trust to assist the Company in meeting its

 

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obligationsunder the Plan shall meet the requirements necessary to retain such unfundedstatus.

 

7.5                                 Arbitration. Any dispute or controversy arising under or in connection with the Planshall be settled exclusively by arbitration in New York, New York in accordancewith the rules of the American Arbitration Association in effect at the time ofsuch arbitration.  Upon submission ofinvoices, the Company shall promptly pay or reimburse all reasonable costs andexpenses (including fees and disbursements of counsel and pension experts)incurred to assert rights under this Plan or in any proceeding in connectiontherewith, brought by a Member, Vested Former Member, Former Member or SurvivingSpouse, whether or not such Member, Vested Former Member, Former Member orSurviving Spouse is ultimately successful in enforcing such rights or in suchproceeding; provided, however, that no reimbursement shall be owed with respectto expenses relating to any unsuccessful assertion of rights or proceeding ifand to the extent that such assertion or proceeding was initiated or maintainedin bad faith or was frivolous as determined by the arbitrators or a courthaving jurisdiction over the matter, in which case any amounts previously paidby the Company shall be promptly repaid.

 

7.6                                 No Alienation. A Member’s or Vested Former Member’s right to benefit payments under thePlan shall not be subject in any manner to anticipation, alienation, sale,transfer, assignment, pledge, encumbrance, attachment or garnishment bycreditors of such Member or Vested Former Member or his or her SurvivingSpouse.

 

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7.7                                 Withholding. The Company may withhold from any benefit under the Plan an amountsufficient to satisfy its tax withholding obligations.

 

7.8                                 Governing Law. The Plan shall be governed by and construed in accordance with the lawsof the State of New York applicable to contracts made and to be performed insuch state to the extent not preempted by federal law.

 

7.9                                 Successors. The Company shall require any successor (whether direct or indirect, bypurchase, merger, consolidation or otherwise) to all or substantially all ofthe business and/or assets of the Company to expressly assume and agree toperform the obligations of the Company under this Plan in the same manner andto the same extent that the Company would have been required to perform suchobligations if no such succession had taken place and such assumption shall bean express condition to the consummation of any such purchase, merger,consolidation or other transaction.

 

7.10                           Integration. In the event of any conflict or ambiguity between this Plan and theterms of any employment agreement between a Member and the Company or anyChange in Control Agreement between a Member and the Company (this Plan and anysuch employment agreement or Change in Control Agreement being collectivelyreferred to herein as the “arrangements”), such conflict or ambiguity shall beresolved in accordance with the terms of that arrangement which are mostbeneficial to the Member; provided, however, that no such resolution of anysuch conflict or ambiguity shall operate to cause the Member to receiveduplicate payments or benefits under the arrangements.

 

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