EXHIBIT 10.2
NON-COMPETITION AGREEMENT
THIS NON-COMPETITION AGREEMENT (this "Agreement") is effective as of
this 1st day of September, 2004, by and between X. X. Xxxxxxxxx Corporation, a
Delaware corporation, and SBC Communications Inc., a Delaware corporation.
Capitalized terms not herein defined shall have the meanings assigned
in the Directory Services License Agreement, dated as of the date hereof (the
"Directory Services License Agreement"), by and among X. X. Xxxxxxxxx
Corporation, X.X. Xxxxxxxxx Publishing & Advertising of Illinois Partnership
(f/k/a The APIL Partners Partnership), an Illinois general partnership, DonTech
II Partnership, an Illinois general partnership, Ameritech Corporation, a
Delaware corporation and a direct wholly owned subsidiary of SBC Communications
Inc., and SBC Directory Operations, Inc., a Delaware corporation and a direct
wholly owned subsidiary of SBC Communications Inc.
RECITALS:
A. On the date of this Agreement, X. X. Xxxxxxxxx Corporation, or one
of its wholly owned Subsidiaries, is acquiring (i) from API, 1% of the
outstanding partnership interests in APIL Partners and (ii) from API's wholly
owned subsidiary APIL, (a) 99% of the outstanding partnership interests in APIL
Partners, (b) 47% of the outstanding partnership interests in DonTech I, and (c)
50% of the outstanding partnership interests in DonTech II, pursuant to the
Purchase Agreement;
B. The Purchase Agreement provides that RHD and SBC (the "Parties")
will enter into this Agreement as a condition to the closing of the transactions
contemplated by the Purchase Agreement;
C. Pursuant to the terms of the Purchase Agreement, on the date of this
Agreement, X. X. Xxxxxxxxx Corporation, APIL Partners, DonTech II, Ameritech
Corporation and SBC Directory Operations, Inc. are entering into the Directory
Services License Agreement in order to provide for the continued production,
publication and distribution of Print Directories by Publisher following the
closing of the transactions contemplated by the Purchase Agreement;
D. SBC acknowledges that the agreements and covenants contained in this
Agreement are essential to protect the benefits that RHD expects to receive
pursuant to the transactions contemplated by the Purchase Agreement and the
Directory Services License Agreement; and
E. SBC acknowledges that the agreements and covenants contained in this
Agreement were a material inducement to RHD's agreement to enter into the
Purchase Agreement and the other agreements contemplated by the Purchase
Agreement and the Directory Services License Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements set forth in this
Agreement and the consummation of the transactions contemplated by the Purchase
Agreement, the Parties agree as follows:
ARTICLE 1
TERM AND TERMINATION
SECTION 1.1 TERM. This Agreement will terminate immediately and without
any further action when the Directory Services License Agreement expires at the
end of the Term, is terminated by or on behalf of SBC Directory Operations in
accordance with its terms or is terminated by or on behalf of Publisher in
accordance with its terms or otherwise; provided, however, that notwithstanding
the foregoing (i) in the event of a termination of the Directory Services
License Agreement pursuant to Section 9.4 or 10.1(a) thereof, this Agreement
shall remain in effect to the extent and for the periods specified in Section
9.4(d) and 10.1(a)(iv) thereof, respectively, and (ii) no termination or
expiration of this Agreement will release SBC from liability for any prior
breaches of any provision of this Agreement.
ARTICLE 2
EXCLUSIVITY AND NON-COMPETE
SECTION 2.1 PRINT DIRECTORIES.
(a) Exclusivity. Publisher will have the exclusive right to (i) publish
and distribute Print Directories and use the Licensed Marks in the Territory as
contemplated in the Directory Services License Agreement and the other
Commercial Agreements and (ii) solicit and sell Local and National yellow pages
and white pages advertising for inclusion in such Print Directories. As used
with respect to Print Directories, (i) "National" yellow pages and white pages
advertising will have the same meaning as provided for such term under the
current Yellow Pages Integrated Media Association ("YPIMA") minimum standards,
and (ii) "Local" yellow pages and white pages advertising shall mean all such
advertising that does not constitute National (as so defined).
(b) Non-Compete. Until the termination of this Agreement, neither SBC
nor any of its Subsidiaries will directly or indirectly engage in, manage,
operate or have any profit or other equity interest (other than less than 5% of
a Person) in any Person (other than pursuant to the Directory Services License
Agreement) that engages in the business of (i) producing, publishing or
distributing any Print Directories in the Territory, or (ii) soliciting or
selling Local or National yellow pages or white pages advertising for inclusion
in any Print Directories published or distributed in the Territory; provided,
however, if the RHD Entities cease at any time to publish and distribute any
Print Directory in the Territory, SBC may publish and distribute, or cause to be
published and
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distributed, such directory to the extent necessary to comply with the Legal and
Regulatory Requirements.
(c) Permitted Activities. Notwithstanding Sections 2.1(a) and 2.1(b) of
this Agreement, neither RHD's exclusivity rights nor SBC's non-compete
obligations described therein will prohibit (i) any SBC Entity from (A)
producing, publishing or distributing (or selling advertising for inclusion in)
industrial guides (other than the Illinois Industrial Guide) in the Territory so
long as such products do not materially compete with and are not significant
substitutes for Print Directories currently published by Publisher or (B) (1)
managing, operating or having any profit or other equity interest in a Certified
Marketing Representative ("CMR") with respect to the sale of National yellow
pages and white pages advertising or (2) earning and collecting a CMR commission
with respect to the sale of National yellow pages and white pages advertising,
or (ii) the SBC Entities from soliciting or selling Telco-Sold White Pages
Products. The Parties hereby agree to terminate, or cause to be terminated, on
the date hereof the agreements set forth on Exhibit A with respect to street
address directories outside of the Territory sold by DonTech II (and RHD agrees
to transfer, or cause to be transferred, all relevant records for such street
address directories to SBC Directory Operations).
SECTION 2.2 EXISTING IYP DIRECTORIES.
(a) Non-Compete. Until the termination of this Agreement, neither SBC
nor any of its Subsidiaries will directly or indirectly engage in, manage,
operate or have any profit or equity interest (other than less than 5% of a
Person) in any Person (other than pursuant to the IYP Reseller Agreement) that
engages in the business of soliciting or selling Local IYP Advertising for
inclusion in Existing IYP Directories. Furthermore, until the termination of
this Agreement, SBC will not license the Licensed Marks or any other xxxx
relating to any SBC Telco, any Existing IYP Directory or any Future Electronic
Directory for which Publisher is acting as exclusive sales agent in the
Territory, to a third party (or Cingular or any of its Subsidiaries) for use in
connection with soliciting and selling Local IYP Advertising for inclusion in
Existing IYP Directories or, in the case of Cingular or any of its Subsidiaries,
in Future Electronic Directories, except for incidental use ancillary to any
solicitation and sales of Local IYP Advertising by a third party for which SBC
does not receive any incremental monetary consideration.
(b) Local and National IYP Advertising.
(i) "Local IYP Advertising" means, any advertising, which for
this purpose shall include any unpaid listings, to be included in any
Existing IYP Directory or Future Electronic Directory which is
solicited from an advertiser physically located in the Territory (each,
an "Advertiser"), other than any such advertising which (x) promotes
(A) services to be rendered substantially outside the Territory or (B)
products, if such advertising substantially directs potential
purchasers to one or more business establishments or sales personnel
physically located outside the Territory and (y) is solicited from an
Advertiser who at the time of such solicitation has, or has a binding
contract to place, advertisements in
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two or more other IYP or electronic directories, and "National IYP
Advertising" will mean all such advertising which is solicited from an
Advertiser that does not constitute Local IYP Advertising; provided,
however, that for five years from the date of this Agreement (the "Five
Year Period") any advertising to be included in any Existing IYP
Directory or Future Electronic Directory which is solicited from an
Advertiser who at the time of such solicitation (i) had previously
purchased advertising included in SMARTpages (as defined in the IYP
Reseller Agreement) shall be deemed to be Local IYP Advertising or (ii)
(A) has Local white or yellow page advertising in a then current Print
Directory or a binding contract to place such advertising in the next
publication of a Print Directory shall be deemed to be Local IYP
Advertising or (B) has National white or yellow page advertising in a
then current Print Directory or a binding contract to place such
advertising in the next publication of a Print Directory shall be
deemed to be National IYP Advertising; and provided, further, that
except to the extent otherwise provided in clause (ii) of the foregoing
proviso, if at any time YPIMA or any successor directory industry
association officially adopts, or subsequently amends, provisions which
define or establish distinctions between local and national Directory
Advertising for inclusion in IYP or other electronic directories
(excluding Print Directories), then the foregoing definitions of "Local
IYP Advertising" and "National IYP Advertising" will be replaced with
such definitions or will be amended to reflect such distinctions, as
applicable. The date on which such definitions or distinctions first
become effective is referred to herein as the "New Regulation Date."
(ii) Unless the New Regulation Date shall have occurred, a
reasonable time prior to the end of the Five Year Period, the parties
to the Directory Services License Agreement will negotiate in good
faith any revisions to such definitions which they deem appropriate or
desirable and in so doing will give significant weight to any industry
standards which may have developed which define or distinguish between
local and national advertising in the context of Existing IYP
Directories and/or Future Electronic Directories as they may evolve
with changing technologies and practices; provided, however, that the
foregoing shall not obligate either party to agree to any such
revisions. During the term of the Directory Services License Agreement,
the parties will negotiate in good faith policies and procedures (which
must be consistent with the spirit and principles of the definitions in
Section 2.2(b)(i) above, except that the first proviso to such
definitions shall not be given effect for any period after the Five
Year Period) that will be used to determine whether and to what extent
IYP advertising which promotes services to be performed or products to
be sold both inside and outside the Territory is Local IYP Advertising
or National IYP Advertising (as the definitions of such terms may
change over time).
SECTION 2.3 PREFERRED PROVIDER.
(a) Future Electronic Directories. With respect to any Future
Electronic Directory published by SBC or any of its Controlled Subsidiaries, SBC
will give Publisher
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the opportunity to negotiate with SBC Directory Operations, for 30 days on a
non-exclusive basis, a mutually acceptable agreement under which Publisher might
become the sales agent of SBC or such Controlled Subsidiary for Local IYP
Advertising for inclusion in such Future Electronic Directory for an agreed upon
term and each party agrees to conduct such negotiations in good faith; provided,
however, that (i) if Publisher makes a binding offer to SBC Directory Operations
during such 30-day period setting forth in reasonable detail the price and all
other material terms and conditions on which it is prepared to agree to perform
such services, then SBC or such Controlled Subsidiary will not enter into any
agreement with a third party to provide such services unless the price and such
other material terms and conditions of such third party agreement are, in the
aggregate and in SBC Directory Operations' reasonable judgment, more favorable
to SBC or such Controlled Subsidiary than those offered by Publisher to SBC or
such Controlled Subsidiary and (ii) the foregoing will not impose any obligation
on either party to agree to or enter into any such agreement. Neither SBC nor
any of its Controlled Subsidiaries will enter into any agreement with any third
party to offer or sell any Local IYP Advertising for inclusion in a Future
Electronic Directory which agreement has a term of more than three years and,
within a commercially reasonable period before the expiration of the term of any
such agreement, SBC Directory Operations will initiate a new preferred provider
process prior to renewing, extending or replacing such agreement; provided,
however, that if and when Cingular becomes a Controlled Subsidiary of SBC, the
foregoing shall not apply until the expiration (without giving effect to any
discretionary renewal rights in favor of Cingular) or termination of any then
existing sales agency arrangements of Cingular or any of its Subsidiaries with
respect to the sale of Local IYP Advertising in the Territory for inclusion in a
Future Electronic Directory.
(b) Print Directories. With respect to any Print Directory published by
Cingular or any of its Subsidiaries when Cingular is a Controlled Subsidiary of
SBC, SBC will give Publisher the opportunity to negotiate with Cingular, for 30
days on a non-exclusive basis, a mutually acceptable agreement under which
Publisher might become Cingular's sales agent for Local yellow pages and white
pages advertising for inclusion in such Print Directory for an agreed upon term
and each party agrees to conduct such negotiations in good faith; provided,
however, that (i) if Publisher makes a binding offer to Cingular during such
30-day period setting forth in reasonable detail the price and all other
material terms and conditions on which it is prepared to agree to perform such
services, then Cingular will not enter into any agreement with a third party to
provide such services to it unless the price and such other material terms and
conditions of such third party agreement are, in the aggregate and in Cingular's
reasonable judgment, more favorable to it than those offered by Publisher to it
and (ii) the foregoing will not impose any obligation on either party to agree
to or enter into any such agreement. At any time when Cingular is a Controlled
Subsidiary of SBC, SBC will not permit Cingular
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or any of its Subsidiaries to enter into any agreement with any third party to
offer or sell any Local yellow pages or white pages advertising for inclusion in
any Print Directory published by it which agreement has a term of more than
three years and, within a commercially reasonable period before the expiration
of the term of any such agreement, Cingular will initiate a new preferred
provider process prior to renewing, extending or replacing such agreement.
Notwithstanding the foregoing, if any Print Directory published by Cingular or
any of its Subsidiaries at the time when Cingular becomes a Controlled
Subsidiary of SBC is subject to an existing sales agency agreement with respect
to the sale of Local yellow pages or white pages advertising in the Territory
for inclusion in such Print Directory, then this Section 2.3(b) shall not apply
to such Print Directory until the expiration or termination (without giving
effect to any discretionary renewal rights in favor of Cingular or its
Subsidiaries) of such agreement.
SECTION 2.4 ACQUISITION BY OR OF SBC.
(a) If SBC acquires a Person whose operations would cause SBC to
violate Sections 2.1 or 2.2 of this Agreement, then SBC will not be deemed to
have breached such Sections as a result of such operations if it in good faith
attempts to divest or cease such operations and in fact divests or ceases such
operations within 12 months of the closing of such acquisition.
(b) If SBC is acquired by a Person that is engaged in operations that
cause SBC to violate Sections 2.1 or 2.2 of this Agreement, then SBC will not be
deemed to have breached such Sections as a result of such operations of the
acquiring party that exist as of the closing of such sale so long as the
acquiring party agrees in writing that (i) Publisher will continue to have the
exclusive right to produce, publish and distribute (and solicit or sell
advertising for) Print Directories in the Territory and use the ILEC brand as
contemplated in the Directory Services License Agreement and the other
Commercial Agreements, and (ii) it and its Controlled Affiliates will agree to
abide by the restrictions set forth under Sections 2.1(b), 2.2 and 2.3 and
Article 3 of this Agreement; provided, however, in the event that the acquiring
party substitutes a New ILEC Brand for the existing ILEC brand in the Territory,
Publisher will have the exclusive right and obligation to use the New ILEC Brand
for the publishing of Print Directories and the acquiring party must shut down
any of its existing Print Directories or rebrand them so that such directories
do not use the New ILEC Brand, the Licensed Marks or any brand or xxxx which
purchaser previously used on any print directory distributed in the Territory or
on any Existing IYP Directory or Future Electronic Directory for which acquiring
party sold Local IYP Advertising in the Territory.
SECTION 2.5 RESERVATIONS.
(a) No Rights to Electronic Directory Platforms. Subject to the IYP
Reseller Agreement, nothing in this Agreement will give either Party any right
to place advertising or, except as expressly provided in Section 2.3 of this
Agreement, otherwise participate in any existing or future electronic directory
platform or service owned or used by the other Party.
(b) Cingular. None of the obligations set forth in Section 2.1 or 2.2
of this Agreement will apply to Cingular or any of its Subsidiaries; provided,
however, that, Section 2.1(b) shall apply to Cingular and its Subsidiaries from
and after the time (if any) that Cingular becomes a wholly owned Subsidiary of
SBC (the "Wholly Owned Date") and; provided, further, that neither Cingular nor
any of its Subsidiaries will be deemed to
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be in violation of Section 2.1(b) of this Agreement as a result of any
activities that any of them conducts as of the Wholly Owned Date and they may
continue to conduct such activities without violating 2.1(b) of this Agreement,
in each case as long as such activities were commenced for a valid business
purpose and not primarily for the purpose of circumventing the restrictions in
this Section 2.5(b) and Section 2.1(b) of this Agreement. Notwithstanding this
Section 2.5(b), (i) if any Subsidiary or business of SBC that is subject to the
restrictions in Sections 2.1 and 2.2 of this Agreement is sold or otherwise
transferred to Cingular or any of its Subsidiaries, such Subsidiary or business
(but not any other Subsidiary or business of Cingular) will remain subject to
such restrictions as long as they apply to SBC, and (ii) if Cingular or any of
its Subsidiaries merges into, consolidates with or otherwise transfers all or
any portion of its assets or its Subsidiaries' assets to any SBC Entity that is
subject to the restrictions in Sections 2.1 and 2.2 of this Agreement, the
obligations of such SBC Entity under this Agreement shall not be affected by
such transaction.
ARTICLE 3
NON-SOLICITATION
SECTION 3.1 NON-SOLICITATION. During (a) the period between the date of
this Agreement and the second anniversary (or, in the case of senior sales and
executive management, the third anniversary) of the date of this Agreement and
(b) the two year period (or, in the case of senior sales and executive
management, the three year period) following the termination of this Agreement,
no SBC Entity will, directly or indirectly, through one or more of its
Affiliates, on behalf of itself or any other Person, recruit or otherwise
solicit or induce any employee of the RHD Entities or any of their successors to
terminate his or her employment relationship with the RHD Entities or any of
their successors. The foregoing will not, however, prohibit any SBC Entity from
publishing any general public solicitation of employment opportunities or
employing anyone who responds to such solicitation.
ARTICLE 4
OTHER PRINT DIRECTORIES
SECTION 4.1 OTHER PRINT DIRECTORIES. If SBC determines to outsource or
sell all of its print directory publishing business in any State or States
(excluding any such sale which also involves any other non-directory businesses
or assets of any SBC Entity), RHD will be entitled to receive notice of SBC's
intent to so outsource all or sell any such aspect, as the case may be, of its
publishing business and SBC will in good faith provide RHD with the opportunity
to participate in any bidding with respect to such outsourcing or sale process.
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ARTICLE 5
MISCELLANEOUS
SECTION 5.1 ASSIGNMENT. Except as provided in Sections 9.5 and 10.1 of
the Directory Services License Agreement, no Party may assign all or any of its
rights or obligations under the Agreement without the prior written consent of
the other Parties, except that any Party may assign all of its rights and
obligations under this Agreement (a) in connection with a sale of all or
substantially all of its assets or by merger or consolidation if the purchaser
assumes in writing all of the assigning Party's rights and obligations under
this Agreement in a form reasonably acceptable to the other Party and (b) to (i)
any of its Affiliates or (ii) any lender or any other party as collateral in
connection with any financing provided that no such assignment permitted by this
clause (b) will relieve such Party of any of its obligations under this
Agreement.
SECTION 5.2 COSTS; EXPENSES. In addition to any rights and remedies
that the Parties may have under applicable law, if either Party breaches this
Agreement and the other Party seeks and obtains appropriate relief therefor,
then the non-breaching Party will be entitled to recover any reasonable costs or
expenses, including attorneys fees and disbursements, incurred by such
non-breaching Party in obtaining such relief from the breaching Party.
SECTION 5.3 NOTICES. Any notice required or permitted under this
Agreement will be in writing and will be hand-delivered, sent by confirmed
facsimile or mailed by overnight express mail. Notice will be deemed to have
been given when such notice is received. Addresses for notices are as follows:
If to a SBC Entity:
SBC Communications Inc.
000 Xxxx Xxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Facsimile: (000) 000-0000
and
SBC Directory Operations, Inc.
Xxx XXX Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxx, Esq.
Facsimile: (000) 000-0000
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With a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. XxXxxxxxx
Facsimile: (000) 000-0000
If to RHD or Publisher:
X. X. Xxxxxxxxx Corporation
0000 Xxxxxxxx Xxxxx
Xxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx, Esq.
Facsimile: 000-000-0000
With a copy to:
Xxxxx Day
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: 212-755-7306
or at such other address as any Party may provide to the others by written
notice.
SECTION 5.4 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement of the Parties concerning the subject matter of this
Agreement, and supersedes any prior agreements, representations, statements,
understandings, proposals, undertakings or negotiations, whether written or
oral, with respect to the subject matter expressly set forth in this Agreement.
SECTION 5.5 SEVERABILITY. If any term, condition or provision of this
Agreement is held to be invalid or unenforceable for any reason, such invalidity
will not invalidate the entire Agreement, unless such construction would be
unreasonable. This Agreement will be construed as if it did not contain the
invalid or unenforceable provision or provisions, and the rights and obligations
of each Party will be construed and enforced accordingly, except that in the
event such invalid or unenforceable provision or provisions are essential
elements of this Agreement and substantially impair the rights or obligations of
a Party, the Parties will promptly negotiate in good faith a replacement
provision or provisions.
SECTION 5.6 NO THIRD PARTY BENEFICIARIES. This Agreement is intended
solely for the benefit of the Parties, and no third-party beneficiaries are
created by this Agreement. This Agreement does not provide and should not be
construed to provide third parties with any remedy, claim, liability,
reimbursement, cause of action or other
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privilege.
SECTION 5.7 BINDING EFFECT. This Agreement will be binding on and inure
to the benefit of the Parties, and their respective successors and permitted
assigns.
SECTION 5.8 WAIVERS. No waiver of any provision of this Agreement, and
no consent to any default under this Agreement, will be effective unless the
same is in writing and signed by an officer of the Party against whom such
waiver or consent is claimed. In addition, no course of dealing or failure of a
Party strictly to enforce any term, right or condition of this Agreement will be
construed as a waiver of such term, right or condition. Waiver by a Party of any
default by any other Party will not be deemed a waiver of any subsequent or
other default.
SECTION 5.9 HEADINGS. The headings and numbering of sections and
paragraphs in this Agreement are for convenience only and will not be construed
to define or limit any of the terms in this Agreement or affect the meaning or
interpretation of this Agreement.
SECTION 5.10 SURVIVAL. Any liabilities or obligations of a Party for
acts or omissions occurring prior to the cancellation or termination of this
Agreement and any obligations of a Party under any other provisions of this
Agreement which, by their terms, are contemplated to survive (or be performed
after) termination of this Agreement (subject to any time limitations specified
therein) will survive the cancellation or termination of this Agreement.
SECTION 5.11 MODIFICATIONS. No amendments, deletions, additions or
other modifications to this Agreement will be binding unless evidenced in
writing and signed by an officer of each of the respective parties hereto.
SECTION 5.12 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, and each such counterpart will be deemed to be an original
instrument, but all such counterparts together will constitute but one
agreement. This Agreement will become effective when one or more counterparts
have been signed by each and delivered to the other Parties, it being understood
that the Parties need not sign the same counterpart.
SECTION 5.13 REMEDIES. The Parties agree that all disputes or
controversies arising out of or relating to this Agreement shall be resolved
using the procedures set forth in the Directory Services License Agreement,
including Sections 18.1, 18.3, 18.4, 18.5 and 18.6, which are incorporated
herein by this reference.
SECTION 5.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
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SECTION 5.15 ACKNOWLEDGEMENTS. The Parties expressly agree that the
duration, scope and geographic area of the restrictions set forth in Articles 2
and 3 are reasonable. SBC acknowledges that such covenants and restrictions are
necessary, fundamental and required for the protection of the business purchased
by RHD pursuant to the Purchase Agreement, that such covenants and restrictions
relate to matters that are of a special, unique and extraordinary value and that
RHD would not enter into the Purchase Agreement, the Directory Services License
Agreement and related agreements or the transactions contemplated thereby
without the protection provided by this Agreement.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
duly executed as of the day and year first above written.
SBC COMMUNICATIONS INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Sr. Exec. VP - Corp Dev.
X. X. XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Xxxxxx X. Xxxx
Vice President, General Counsel
and Corporate Secretary
