EX-10.1



 






Exhibit 10.1




IMS HEALTH INCORPORATED

1499 Post Road

Fairfield, CT 06824




November 16, 2005




VNU N.V. and Isaac Acquisition Corp.

c/o VNU N.V.

770 Broadway

New York, NY 10003

Attention: Chief Legal Officer




Ladies and Gentlemen,




          We refer to the Agreement and Plan of Merger, dated as of July 10, 2005 (the Merger
Agreement”), among you and us. Capitalized terms used in this letter agreement but not defined
herein are used as defined in the Merger Agreement.




          In consideration of the mutual covenants and agreements contained herein, you and we have
agreed and hereby confirm as follows:





	1.	 	Termination. The Merger Agreement is hereby terminated in accordance with
Section 8.1(a) thereof and the Merger contemplated by the Merger Agreement is hereby
abandoned.






	2.	 	Representations. (a) The Company hereby represents and warrants to Parent
that there are no Company Acquisition Proposals that have been made known to the Company and
remain pending as of the date hereof, and Parent hereby represents and warrants to the
Company that there are no Parent Acquisition Proposals that have been made known to Parent
and remain pending as of the date hereof.






(b) Each of the Company and Parent hereby represents that the execution, delivery and
performance of this letter agreement by it has been duly and validly authorized by all
necessary corporate action and no other corporate proceedings by or on the part of it are
necessary to authorize this letter agreement or to perform its obligations hereunder; this
letter agreement has been duly and validly executed and delivered by it, and assuming the
due authorization, execution and delivery hereof by the other parties hereto, constitutes
its legal, valid and binding obligation, enforceable against it in accordance with the terms
hereof, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights
generally and general equitable principles (whether considered in a proceeding in equity or
at Law).




	3.	 	Fees and Expenses. Except as expressly provided in this letter agreement,
each of the Company and Parent shall pay all of the fees, costs and expenses that it has
incurred in





 









 











	 	 	connection with the negotiation, execution and delivery of the Merger Agreement and this
letter agreement and all acts taken and documents prepared in connection therewith. Upon
execution of this letter agreement, Parent shall pay the Company $15 million in cash,
payable by wire transfer of same day funds to an account designated by the Company in
writing, as reimbursement for the Company’s out-of-pocket fees and expenses incurred in
connection with the Merger Agreement and this letter agreement.






	4.	 	Company Tail Fee. (a) If a Company Payment Trigger occurs, then the Company
shall pay a Company Tail Fee to Parent, payable by wire transfer of same day funds to an
account designated by Parent in writing, on the date the Company Payment Trigger shall have
occurred. For purposes of this letter agreement, (i) a “Company Payment Trigger”
shall be deemed to have occurred if: (x) within 12 months after the date of this letter
agreement, a Company Transformation shall have been consummated, (y) one or more definitive
agreements shall each have been entered into within 12 months after the date of this letter
agreement (collectively, “Company Transformation Agreements”) for transactions which,
individually or in the aggregate, would constitute a Company Transformation, and subsequently
such Company Transformation shall have been consummated or (z) a Company Transformation
Agreement satisfying clause (y) above is terminated or abandoned and at the time of such
termination or abandonment a proposal for another Company Transformation has been made to the
Board of Directors of the Company or publicly announced and remains pending (a “Topping
Company Transformation”) and such Topping Company Transformation is consummated, (ii)
“Company Transformation” means (x) the acquisition by any person or group (as used in
this letter agreement, “group” has the meaning contemplated under Section 13(d) of the
Securities Exchange Act of 1934, as amended, and the rules promulgated thereunder) of Company
equity securities representing a 50% or greater economic or voting interest in all of the
Company’s outstanding equity securities or (y) the sale in one or more transactions outside
the ordinary course of business of assets that constitute 50% or more of the consolidated
assets of the Company as of the date of this letter agreement, whether sold by the Company or
by entities spun off directly or indirectly to shareholders of the Company, and treating any
entity as having sold all of its assets if any person or group acquires a 50% or greater
economic or voting interest in all of the outstanding equity securities of that entity;
provided that in connection with any such sale 50% or greater of the proceeds of such
sale are paid to the shareholders of the Company or such spun off entity, as applicable, or
the Company or such spun off entity announces a plan (which is not withdrawn prior to such
sale) or effectuates a plan to return 50% or greater of the proceeds of such sale to the
shareholders of the Company or such spun off entity, as applicable, through a share
repurchase program or by dividends or other distributions and (iii) “Company Tail
Fee” means $15 million. For purposes of this Section 4(a), “voting interest”
means voting power to elect directors generally. In no event shall the Company ever be
obligated to pay more than one Company Tail Fee.






(b) The Company shall not spin off any subsidiary to its shareholders unless prior to the
spinoff such subsidiary agrees in writing to be jointly and severally liable for the
obligations of the Company hereunder.




	5.	 	Parent Tail Fee. (a) If a Parent Payment Trigger occurs, then Parent shall
pay a Parent Tail Fee to the Company, payable by wire transfer of same day funds to an
account designated by the Company in writing, on the date the Parent Payment Trigger shall
have occurred. For purposes of this letter agreement, (i) a “Parent Payment Trigger”
shall be





 









 











	 	 	deemed to have occurred if: (x) within 12 months after the date of this letter agreement, a
Parent Transformation shall have been consummated, (y) one or more definitive agreements
shall each have been entered into within 12 months after the date of this letter agreement
(collectively, “Parent Transformation Agreements”) for transactions which,
individually or in the aggregate, would constitute a Parent Transformation and subsequently
such Parent Transformation shall have been consummated or (z) a Parent Transformation
Agreement satisfying clause (y) above is terminated or abandoned and at the time of such
termination or abandonment a proposal for another Parent Transformation has been made to the
Supervisory Board of Parent or publicly announced and remains pending (a “Topping Parent
Transformation”) and such Topping Parent Transformation is consummated, (ii) “Parent
Transformation” means (x) the acquisition by any person or group of Parent equity
securities representing a 50% or greater economic or voting interest in all of Parent’s
outstanding equity securities (other than an acquisition of preference shares in Parent by
Stichting V.N.U.) or (y) the sale in one or more transactions outside the ordinary course of
business of assets that constitute 50% or more of the consolidated assets of Parent as of
the date of this letter agreement (after giving pro forma effect to any extraordinary return
of capital to Parent shareholders announced or publicly disclosed at the time of the
announcement of the execution of this letter agreement, to the extent such return is
actually effected or continues to be planned to be effected), whether sold by Parent or by
entities spun off directly or indirectly to shareholders of Parent, and treating any entity
as having sold all of its assets if any person or group acquires a 50% or greater economic
or voting interest in all of the outstanding equity securities of that entity;
provided that in connection with any such sale 50% or greater of the proceeds of
such sale are paid to the shareholders of Parent or such spun off entity, as applicable, or
Parent or such spun off entity announces a plan (which is not withdrawn prior to such sale)
or effectuates a plan to return 50% or greater of the proceeds of such sale to the
shareholders of Parent or such spun off entity, as applicable, through a share repurchase
program or by dividends or other distributions and (iii) “Parent Tail Fee” means $45
million. For purposes of this Section 5(a), “voting interest” means voting power to
elect members of the supervisory board or the executive board generally. In no event shall
Parent ever be obligated to pay more than one Parent Tail Fee.






(b) Parent shall not spin off any subsidiary to its shareholders unless prior to the spinoff
such subsidiary agrees in writing to be jointly and severally liable for the obligations of
Parent hereunder.




	6.	 	Releases. (a) Parent, on behalf of itself and its predecessors, successors,
assigns, subsidiaries and affiliates and any of the present and former officers, directors
and employees of the foregoing, in their capacity as such, hereby release and discharge the
Company and its subsidiaries and affiliates, and the present and former directors, officers,
employees, representatives, agents, advisors (including financial advisors), and attorneys of
the foregoing, of and from any and all claims, actions, causes of action, suits, rights,
damages, liabilities and demands that each of them ever had, now has or may hereafter have,
in law or in equity, known or unknown, that are based on, arise from or otherwise relate
directly or indirectly to any aspect of the Merger Agreement, excluding claims for the
enforcement of (x) this letter agreement and (y) obligations under the Confidentiality
Agreement.






(b) The Company, on behalf of itself and its predecessors, successors, assigns, subsidiaries
and affiliates and any of the present and former officers, directors and



 









 






employees of the foregoing, in their capacity as such, hereby release and discharge Parent
and its subsidiaries and affiliates, and the present and former directors, officers,
employees, representatives, agents, advisors (including financial advisors), and attorneys
of the foregoing, of and from any and all claims, actions, causes of action, suits, rights,
damages, liabilities and demands that each of them ever had, now has or may hereafter have,
in law or in equity, known or unknown, that are based on, arise from or otherwise relate
directly or indirectly to any aspect of the Merger Agreement, excluding claims for the
enforcement of (x) this letter agreement and (y) obligations under the Confidentiality
Agreement.




	7.	 	Miscellaneous. (a) The provisions of the Confidentiality Agreement shall
survive and remain in full force and effect in accordance with its terms.






(b) The provisions of Sections 9.10 (Jurisdiction) and 9.12 (Waiver of Jury Trial) of the
Merger Agreement are incorporated herein by reference as though they were set forth in their
entirety herein, except that any references to the Agreement in those Sections will be
deemed to instead be references to this letter agreement and any references to the
transactions contemplated by the Agreement in those Sections will be deemed to instead be
references to the transactions contemplated hereby.




(c) Each of the Company and Parent agrees that if either party commences a suit to enforce
the provisions of this letter agreement which suit results in a judgment against the other
party for the payment of damages or injunctive relief, the losing party shall pay to the
other party its reasonable costs and expenses (including reasonable attorneys’ fees) in
connection with such suit, together with interest on the amount due from each date of
payment of any such fees and expenses until the date of the payment under this paragraph at
the prime rate of Citibank, N.A. in effect on the date of such judgment.




(d) This letter agreement shall be governed by, and construed in accordance with, the laws
of the State of Delaware.




(e) This letter agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be deemed to be
an original but all of which taken together shall constitute one and the same agreement.




(f) Each of the Company and Parent agrees to execute such additional documents and take such
additional actions as may be reasonably necessary or desirable to achieve the complete
termination and release of the Merger Agreement and the obligations thereunder contemplated
hereby.




(g) This letter agreement constitutes the entire agreement among the Company and Parent with
respect to the subject matter hereof and supersedes all prior agreements (including Section
8.2(a) of the Merger Agreement) and understandings, both written and oral, among the Company
and Parent, or any of them, with respect to the subject matter hereof.




(h) This letter agreement shall be binding upon and inure solely to the benefit of each of
the Company and Parent, and nothing in this letter agreement, express or implied, is
intended to or shall confer upon any other person any rights, benefits or remedies of any



 









 






nature whatsoever under or by reason of this letter agreement, other than with respect to
the provisions of Section 6 which shall inure to the benefit of the persons or entities
benefiting therefrom who are expressly intended to be third-party beneficiaries thereof.




(i) If any term or other provision of this letter agreement is invalid, illegal or incapable
of being enforced by any rule of Law or public policy, all other conditions and provisions
of this letter agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this letter agreement so as to effect the original intent of the parties as
closely as possible in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the fullest extent possible.



*          *          *          *




 









 








          If the foregoing is in accordance with your understanding, please execute a counterpart of
this letter agreement, whereupon it shall, as of the date first above written, become the binding
and enforceable agreement of the parties who have signed it.




	 	 	 	 	 
	 	 	IMS HEALTH INCORPORATED
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert H. Steinfeld
	 

	 	 	 	 
	 

	 	 	 	Name: Robert H. Steinfeld
	 

	 	 	 	Title: Senior Vice President;
General Counsel
	 
	 	 	 	 
	 	 	VNU N.V.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Earl H. Doppelt
	 

	 	 	 	 
	 

	 	 	 	Name: Earl H. Doppelt
	 

	 	 	 	Title: Authorised Person
	 
	 	 	 	 
	 	 	ISAAC ACQUISITION CORP.
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Earl H. Doppelt
	 

	 	 	 	 
	 

	 	 	 	Name: Earl H. Doppelt
	 

	 	 	 	Title: Chief Executive Officer and
President