EXHIBIT 10.12
MASTER AGREEMENT
This Master Agreement ("Master Agreement"), executed as of August
19, 1997, is entered into by and among THE XXXXXX X. XXXXXXXXX CORPORATION, a
Delaware corporation ("Donnelley"), THE DUN & BRADSTREET CORPORATION, a
Delaware corporation ("D&B"), THE AM-DON PARTNERSHIP, a/k/a DONTECH, a
general partnership organized under the Illinois Uniform Partnership Act
("DonTech I"), DONTECH II, a general partnership organized under the Illinois
Uniform Partnership Act, AMERITECH PUBLISHING, INC., a Delaware corporation
("API"), AMERITECH PUBLISHING OF ILLINOIS, INC., a Delaware corporation
("API/IL"), AMERITECH CORPORATION, a Delaware corporation ("Ameritech"),
DONTECH I PUBLISHING COMPANY LLC, a Delaware limited liability company
("LLC"), and THE APIL PARTNERS PARTNERSHIP, a general partnership organized
under the Illinois Uniform Partnership Act ("APIL Partners"), (collectively,
the "Parties"; individually, a "Party").
RECITALS
WHEREAS, DonTech I is a general partnership between API/IL and
Donnelley organized under the Illinois Uniform Partnership Act that now
publishes and until December 31, 1997 will publish for distribution classified
telephone directories in the areas served by Ameritech Illinois and the
Northwest Indiana Directories; and
WHEREAS, API/IL and Donnelley have formed DonTech II, a general
partnership organized under the Illinois Uniform Partnership Act, to engage
in, among other things, the business of directory advertising sales for the
Directories; and
WHEREAS, APIL Partners and DonTech II have entered into an
Exclusive Sales Agency Agreement, and the parties thereto desire the term of
such Exclusive Sales Agency Agreement to be perpetual; and
WHEREAS, DonTech I has formed LLC and contributed to LLC certain
rights and assets relating to its activities as the publisher of directories
(collectively, the "Publishing Rights Assets") in exchange for all of the
membership interest of LLC; and
WHEREAS, DonTech I has distributed its membership interest in LLC
to API/IL and to Donnelley; and
WHEREAS, APIL Partners and Donnelley have entered into a Revenue
Participation Agreement pursuant to which Donnelley has contributed its
membership interest in LLC to APIL Partners in exchange for the Revenue
Participation Interests in perpetuity; and
WHEREAS, as a result of the transactions contemplated by this
Master Agreement and the separate agreements, assignments and other documents
attached hereto, Donnelley and API/IL have amended the Amended and Restated
Am-Don Partnership Agreement dated September 20, 1990 (the "DonTech I
Partnership Agreement"); and
WHEREAS, the Parties to this Master Agreement desire to enter into
this Master Agreement and the agreements, assignments, and other documents
referenced herein because the Parties believe that this Master Agreement and
the referenced agreements, assignments, and other documents are for the
benefit of the Parties; and
NOW, THEREFORE, in accordance with the foregoing recitals, and in
consideration of the mutual covenants and obligations set forth herein and
other good and valuable consideration, including the execution of the various
agreements, assignments and other documents referenced herein, the receipt and
sufficiency of which are hereby acknowledged by each of the Parties to this
Master Agreement, the Parties agree as follows:
1. Definitions
(a) For purposes of this Master Agreement, the Parties
incorporate by reference the definitions and other defined terms in the
DonTech II Partnership Agreement, the Exclusive Sales Agency Agreement between
APIL Partners and DonTech II dated
August 19, 1997, and in the Revenue Participation Agreement between APIL
Partners and Donnelley dated August 19, 1997.
(b) "Directory Assets" means:
(i) Accounts Receivable. All accounts receivable relating
to the Directories and Street Address Directories.
(ii) Information and Records. All books, records, files,
databases, plans, specifications, technical information, confidential
information, price lists, promotional materials, advertising copy and data,
marketing research and information, competitive analysis, customer impact
analysis, sales records, service records, customer lists and files (including
customer credit, collection, deposit and complaint information) customer
profiles, customer telephone number lists, other customer information and all
other proprietary information that is used or held for use in, or relates to,
in whole or in part, the Directories or Street Address Directories, and all
financial records and files;
(iii) Intellectual Property. All intellectual property that
relates to, in whole or in part, or is used or held for use in, or relates to,
in whole or in part, the Directories of Street Address Directories; and
(iv) Other Assets. All customer relationships and goodwill;
customer contact, service and other telephone numbers; telephone directory
advertisements; and other intangible assets that relate to, in whole or in
part, the Directories and the Street Address Directories.
(c) "Directory Business" means the business of APIL Partners of
publishing the Directories, the Street Address Directories and products,
whether in electronic or print form, that replace in whole or in part the
Directories and the Street Address Directories.
(d) "Operative Agreements" means the documents identified in
Section 3 of this Agreement and attached as exhibits hereto.
2. Representations and Warranties
2.1 Representations and Warranties of Ameritech, API, API/IL and
APIL Partners. Ameritech, API, API/IL, and APIL Partners represent and
warrant to Donnelley, D&B, DonTech I, and DonTech II as follows:
(a) Due Formation, Incorporation, and Qualification.
APIL Partners is an Illinois general partnership, duly
formed, validly existing and in good standing under the laws of its state of
formation, and has full partnership power and authority necessary to own,
operate, lease or otherwise hold its properties and assets and to carry on its
business as currently conducted.
Each of Ameritech, API, and API/IL is a corporation duly
organized, validly existing and in good standing under the laws of its state
of incorporation and is duly qualified to do business in those jurisdictions
where the nature of its businesses or the property owned or leased by it
requires such qualification, except where failure so to qualify would not have
a material adverse effect on its ability to consummate the transactions
contemplated herein.
(b) Authority
APIL Partners has all requisite partnership power and
authority to enter into this Agreement and all Operative Agreements to which
APIL Partners is a party and to consummate the transactions contemplated
hereby or thereby. All partnership acts and other proceedings required to be
taken by APIL Partners to authorize the execution, delivery and performance of
this Agreement and the Operative Agreements to which APIL Partners is a party
and the consummation of the transactions contemplated hereby or thereby have
been duly and properly taken. This Agreement and the Operative Agreements to
which APIL Partners is a party have been duly executed and delivered by APIL
Partners and constitute valid and binding obligations of APIL Partners,
enforceable against APIL Partners in accordance with their respective terms.
Each of Ameritech, API, and API/IL has all requisite
corporate power and authority to enter into this Agreement and the Operative
Agreements to which it is a party and to consummate the transactions
contemplated hereby or thereby. All corporate acts and other proceedings
required to be taken by each of Ameritech, API, or API/IL to authorize the
execution, delivery and performance of this Agreement and the Operative
Agreements to which it is a party and the consummation of the transactions
contemplated hereby or thereby have been duly and properly taken. This
Agreement and the Operative Agreements to which any of Ameritech, API, or
API/IL is a Party have been duly executed and delivered by each of Ameritech,
API, or API/IL and constitute valid and binding obligations of such Party,
enforceable against it in accordance with their respective terms.
(c) No Conflicts.
The execution and delivery of this Agreement and the
Operative Agreements do not, and the consummation of the transactions
contemplated hereby or thereby and compliance with the terms hereof will not
(i) conflict with, or result in any violation of, (A) any provision of the
organizational documents of Ameritech, API, API/IL, or APIL Partners, or (B)
any judgment, order or decree, or statute, law, ordinance, rule or regulation
applicable to Ameritech, API, API/IL, or APIL Partners or their assets, or (ii)
violate or conflict with or result in a breach under, or require any consent
or approval to be obtained from any party to, any contract to which Ameritech,
API, API/IL, or APIL Partners is subject or is bound. Subject to the
requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976 and
the rules and regulations promulgated thereunder (the "HSR Act"), no consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency, commission or other governmental
authority or instrumentality, domestic or foreign, is required to be obtained
or made by or with respect to Ameritech, API, API/IL, or APIL Partners in
connection with the execution and delivery of this Agreement or the Operative
Agreements or the consummation by Ameritech, API, API/IL, or APIL Partners of
the transactions contemplated hereby or thereby.
2.2 Representations and Warranties of D&B and Donnelley. D&B and
Donnelley hereby represent and warrant to Ameritech, API, API/IL, LLC, APIL
Partners, DonTech I and DonTech II as follows:
(a) Due Formation, Incorporation and Qualification.
Each of D&B and Donnelley is a corporation duly organized,
validly existing and in good standing under the laws of the state of Delaware
and is qualified to do business in those jurisdictions where the nature of its
businesses or the property owned or leased by it requires such qualification,
except where failure so to qualify would not have a material adverse effect on
its ability to consummate the transactions contemplated herein.
(b) Authority.
Each of D&B and Donnelley has all requisite corporate power
and authority to enter into this Agreement and the Operative Agreements to
which it is a party and to consummate the transactions contemplated hereby or
thereby. All corporate acts and other proceedings required to be taken by
each of D&B and Donnelley to authorize the execution, delivery and performance
of this Agreement and the Operative Agreements to which it is a party and the
consummation of the transactions contemplated hereby or thereby have been duly
and properly taken. This Agreement and the Operative Agreements to which
either of D&B and Donnelley is a Party have been duly executed and delivered
by each of D&B and Donnelley and constitute valid and binding obligations of
such Party, enforceable against it in accordance with their respective terms.
(c) No Conflicts.
The execution and delivery of this Agreement and the
Operative Agreements do not, and the consummation of the transactions
contemplated hereby and thereby and in compliance with the terms hereof and
thereof will not (i) conflict with, or result in any violation of, (A) any
provision of the organizational documents of D&B or Donnelley or (B) any
judgment, order or decree, or statute, law, ordinance, rule or regulation
applicable to D&B or Donnelley or their assets, or (ii) violate or conflict
with or result in a breach under, or require any consent or approval to be
obtained from any party to, any contract to which D&B or Donnelley is subject
or is bound. Subject to the requirements of the HSR Act, no consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency, commission or other governmental
authority or instrumentality, domestic or foreign, is required to be obtained
or made by or with respect to D&B or Donnelley in connection with the
execution and delivery of this Agreement or the Operative Agreements or the
consummation by D&B or Donnelley of the transactions contemplated hereby or
thereby.
2.3 Representations and Warranties of DonTech I and DonTech II.
DonTech I and DonTech II represent and warrant to Ameritech, API, API/IL, LLC,
APIL Partners, D&B and Donnelley as follows:
(a) Due Formation, Incorporation, and Qualification.
Each of DonTech I and DonTech II is an Illinois general
partnership, duly formed, validly existing and in good standing under the laws
of its state of formation, and has full partnership power and authority
necessary to own, operate, lease or otherwise hold its properties and assets
and to carry on its business as currently conducted.
(b) Authority
Each of DonTech I and DonTech II has all requisite
partnership power and authority to enter into this Agreement and all Operative
Agreements to which it is a party and to consummate the transactions
contemplated hereby or thereby. All partnership acts and other proceedings
required to be taken by each of DonTech I and DonTech II to authorize the
execution, delivery and performance of this Agreement and the Operative
Agreements to which each of DonTech I and DonTech II is a party and the
consummation of the transactions contemplated hereby or thereby have been duly
and properly taken. This Agreement and the Operative Agreements to which each
of DonTech I and DonTech II is a party have been duly executed and delivered
by such Party and constitute valid and binding obligations of such Party,
enforceable against it in accordance with their terms.
(c) No Conflicts.
The execution and delivery of this Agreement and the
Operative Agreements do not, and the consummation of the transactions
contemplated hereby or thereby and in compliance with the terms hereof will
not (i) conflict with, or result in any violation of, (A) any provision of the
organizational documents of DonTech I or DonTech II, or (B) any judgment,
order or decree, or statute, law, ordinance, rule or regulation applicable to
DonTech I or DonTech II or their assets, or (ii) violate or conflict with or
result in a breach under, or require any consent or approval to be obtained
from any party to, any contract to which DonTech I or DonTech II is subject or
is bound. Subject to the requirements of the HSR Act, no consent, approval,
order or authorization of, or registration, declaration or filing with, any
court, administrative agency, commission or other governmental authority or
instrumentality, domestic or foreign, is required to be obtained or made by or
with respect to DonTech I or DonTech II in connection with the execution and
delivery of this Agreement or the Operative Agreements or the consummation by
DonTech I or DonTech II of the transactions contemplated hereby or thereby.
2.4 Representations and Warranties of LLC. LLC warrants to
Ameritech, API, API/IL, APIL Partners, Donnelley, D&B, DonTech I, and
DonTech II as follows:
(a) Due Formation, Incorporation, and Qualification.
LLC is a Delaware limited liability company, duly formed,
validly
existing and in good standing under the laws of its state of formation, and
has full limited liability company power and authority necessary to own,
operate, lease or otherwise hold its properties and assets and to carry on its
business as currently conducted.
(b) Authority
LLC has all requisite limited liability company power and
authority to enter into this Agreement and all Operative Agreements to which
LLC is a party and to consummate the transactions contemplated hereby or
thereby. All limited liability company acts and other proceedings required to
be taken by LLC to authorize the execution, delivery and performance of this
Agreement and the Operative Agreements to which LLC is a party and the
consummation of the transactions contemplated hereby or thereby have been duly
and properly taken. This Agreement and the Operative Agreements to which LLC
is a party have been duly executed and delivered by LLC and constitute valid
and binding obligations of LLC, enforceable against LLC in accordance with
their terms.
(c) No Conflicts.
The execution and delivery of this Agreement and the
Operative Agreements do not, and the consummation of the transactions
contemplated hereby or thereby and in compliance with the terms hereof will
not (i) conflict with, or result in any violation of, (A) any provision of the
organizational documents of LLC, or (B) any judgment, order or decree, or
statute, law, ordinance, rule or regulation applicable to LLC or its assets,
or (ii) violate or conflict with or result in a breach under, or require any
consent or approval to be obtained from any party to, any contract to which
LLC is subject or is bound. Subject to the requirements of the HSR Act, no
consent, approval, order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, is required to
be obtained or made by or with respect to LLC in connection with the execution
and delivery of this Agreement or the Operative Agreements or the consummation
by LLC of the transactions contemplated hereby or thereby.
3. Operative Agreements
Simultaneously with the execution and delivery of this Agreement, the
applicable Parties shall deliver or cause to be delivered, the following:
(a) the DonTech II Partnership Agreement in the form of Exhibit A
executed and delivered by the Parties thereto;
(b) the Exclusive Sales Agency Agreement in the form of Exhibit B
executed and delivered by the Parties thereto;
(c) evidence of the formation and organization of LLC by DonTech
I;
(d) evidence of the contribution by DonTech I of its right,
title and interest in and to the Publishing Rights Assets to LLC;
(e) evidence of the formation and organization of APIL Partners;
(f) evidence of the distribution by DonTech I of its membership
interests in LLC to API/IL and to Donnelley;
(g) the Revenue Participation Agreement in the form of Exhibit C
duly executed and delivered by the Parties thereto.
All proceedings that shall be taken and all documents that shall be executed
and delivered by the Parties on the date hereof shall be deemed to have been
taken and executed simultaneously, and no proceeding shall be deemed taken nor
any document executed and delivered until all have been taken, executed and
delivered.
4. HSR Matters
(a) Each of the Parties hereto agrees to prepare its respective
Notification and Report Forms under the HSR Act (the "Forms") with respect to
the transactions contemplated by this Agreement and the Operative Agreements,
to cooperate with the other Parties in the preparation of such Parties' Forms
and to file such Forms as promptly as possible after the date hereof and in
any event not later than five business days following the date hereof. The
Parties further agree to respond as promptly as practicable to any request for
additional information made pursuant to the HSR Act.
(b) The consummation of the transactions contemplated by this
Agreement and the Operative Agreements is subject to the expiration of the
applicable waiting period under the HSR Act, including any extension thereof.
In the event that the expiration of such waiting period does not occur within
90 days following the date hereof, any Party shall have the right to terminate
this Agreement and the Operative Agreements without any further liability or
obligations to the other Parties hereof.
5. Grant of Exclusive Status
(a) During the term of the Exclusive Sales Agency Agreement,
Ameritech, on behalf of itself and its Affiliates, grants to DonTech II the
exclusive right in perpetuity pursuant to the terms of the Exclusive Sales
Agency Agreement, as it may be amended: (a) to solicit and sell local
advertising for directories published on or after January 1, 1998 identified
on Schedules 1 and 2 attached to the Exclusive Sales Agency Agreement and any
other alphabetical or classified print directories published on or after
January 1, 1998 by Ameritech or its Affiliates for primary distribution either
(i) in whole or in part in Illinois or (ii) in the geographical area where the
Northwest Indiana Directories are published for primary distribution on the
effective date of the Exclusive Sales Agency Agreement; and (b) to sell or
lease street address directories published on or after January 1, 1998
identified on Schedule 3 attached to the Exclusive Sales Agency Agreement and
any other street address directories of Ameritech or its Affiliates published
on or after January 1, 1998 covering in whole or in part the geographic area
covered by the Street Address Directories identified in Schedule 3 attached to
the Exclusive Sales Agency Agreement. Upon termination of the Exclusive Sales
Agency Agreement, the obligations of Ameritech and its Affiliates under this
Section 5(a) are of no further force and effect.
(b) If, during the term of the Exclusive Sales Agency Agreement,
Ameritech or an Affiliate of Ameritech, other than APIL Partners, publishes on
or after January 1, 1998 any of the directories identified on Schedule 1 and 2
attached to the Exclusive Sales Agency Agreement or any other alphabetical or
classified print directories published on or after January 1, 1998 for primary
distribution (i) in whole or in part in Illinois or (ii) in the geographical
area where the Northwest Indiana Directories are published for primary
distribution on the effective date of the Sales Agency Agreement or publishes
on or after January 1, 1998 the street address directories identified in
Schedule 3 attached to the Exclusive Sales Agency Agreement or any other
street address directories published on or after January 1, 1998 covering in
whole or in part the geographic area covered by the street address directories
identified on Schedule 3 attached to the Exclusive Sales Agency Agreement,
upon either event, Ameritech or its Affiliate publishing such directories or
street address directories shall assume the obligations of APIL Partners with
respect to such directories or street address directories under the Exclusive
Sales Agency Agreement, as it may be amended, with DonTech II.
(c) During the term of the Revenue Participation Agreement,
Ameritech, on behalf of itself and its Affiliates, grants to Donnelley the
Revenue Participation Interests in perpetuity pursuant to the terms of the
Revenue Participation Agreement, as it may be amended. Upon the termination
of the Revenue Participation Agreement, the obligations of Ameritech and its
Affiliates under this Section 5(c) are of no further force and effect.
(d) If, during the term of the Exclusive Sales Agency Agreement,
Ameritech or an Affiliate of Ameritech, other than APIL Partners, publishes on
or after January 1, 1998 any of the directories identified on Schedule 1 and 2
attached to the Exclusive Sales Agency Agreement or any other alphabetical or
classified print directories published on or after January 1, 1998 for primary
distribution (i) in whole or in part in Illinois or (ii) in the geographical
area where the Northwest Indiana Directories are published for primary
distribution on the effective date of the Sales Agency Agreement or publishes
on or after January 1, 1998 the street address directories identified in
Schedule 3 attached to the Exclusive Sales Agency Agreement or any other
street address directories published on or after January 1, 1998 covering in
whole or in part the geographic area covered by the street address directories
identified on Schedule 3 attached to the Exclusive Sales Agency Agreement,
upon either event, Ameritech or its Affiliate publishing such directories or
street address directories shall assume the obligations of APIL Partners with
respect to such directories or street address directories under the Revenue
Participation Agreement, as it may be amended, with Donnelley.
6. Non-Compete
(a) During the term of the Exclusive Sales Agency Agreement,
neither D&B nor its Affiliates will undertake to solicit, sell, market or
publish an alphabetical or classified print directory or directories, other
than the Directories, for primary distribution in any area where the
Directories are primarily distributed or where the directories on Schedule 5
attached to the Exclusive Sales Agency Agreement are primarily distributed on
the effective date of the Exclusive Sales Agency Agreement.
(b) During the term of the Exclusive Sales Agency Agreement,
neither D&B nor its Affiliates will undertake to solicit, market, sell,
publish, or lease a street address directory or directories, other than the
Street Address Directories, covering in whole or in part the geographic areas
covered by the Street Address Directories.
(c) Upon the earlier of (i) the termination of the Exclusive
Sales Agency Agreement or (ii) Donnelley ceasing to be an Affiliate of D&B,
this non-compete provision shall be considered terminated and of no further
force and effect.
(d) Notwithstanding Section 6(c)(ii) above, in the event that
Donnelley ceases to be an Affiliate of D&B, the non-compete provisions in
Sections 6(a) and 6(b) shall remain binding upon Donnelley and its Affiliates.
7. Good Faith of Ameritech and its Affiliates
(a) APIL Partners and Ameritech on behalf of themselves and their
respective Affiliates shall take no action with respect to marketing (which
includes without limitation pricing, scoping, design, branding, and
scheduling), manufacturing, and distributing the Directories, the Street
Address Directories, and any products, whether in electronic or print form,
that replace in whole or in part the Directories or the Street Address
Directories (collectively "Publishing Activities") that favors the interests
of Ameritech and its Affiliates over the interests of the Directory Business.
APIL Partners and Ameritech, on behalf of themselves and their respective
Affiliates, acknowledge that damages are not an adequate remedy for the breach
of the fiduciary duties in this Section 7 and that Donnelley and DonTech II
are entitled to equitable relief to enforce their respective rights under this
Section. Unless specifically prohibited in the DonTech II Partnership
Agreement, the Exclusive Sales Agency Agreement, or the Revenue Participation
Agreement, nothing in this Section is meant to prohibit Ameritech or any of
its Affiliates from selling its assets to non-Affiliates or to prohibit the
merger, sale or consolidation of Ameritech or its Affiliates, subject to
Donnelley's rights under Section 9 hereof.
(b) APIL Partners and Ameritech, on behalf of themselves and
their respective Affiliates, hereby covenant and agree that during the term of
the Revenue Participation Agreement executed and delivered in accordance with
Section 3 hereof, they will maintain LLC as a separate entity and will not
cause LLC to (i) merge or consolidate with any other entity, unless LLC is the
surviving entity of such merger or consolidation or (ii) dissolve, liquidate
or wind-up LLC.
8. Payment Warranties
(a) Ameritech warrants that APIL Partners, any successor in
interest to APIL Partners under the Revenue Participation Agreement, or any
Affiliate of Ameritech that assumes the obligations in the Revenue
Participation Agreement, as it may be amended, will pay Donnelley or its
assignee (such assignment being in Donnelley's sole discretion) the Revenue
Participation Interests and Ameritech assumes such payment obligations if and
to the extent that APIL Partners, any successor in interest to APIL Partners,
or any Affiliate of Ameritech that assumes the obligations in the Revenue
Participation Agreement, as it may be amended, fails to pay the Revenue
Participation Interests as required by the Revenue Participation Agreement to
Donnelley or its assignee. It is further agreed that Donnelley, in its sole
discretion, may assign its rights under this Section 8(a) and that such
assignee may bring an action directly against APIL Partners, Ameritech, or any
of their respective Affiliates that breaches the obligations in this Section
8(a).
(b) Ameritech further warrants that APIL Partners, any successor
in interest to APIL Partners under the Exclusive Sales Agency Agreement, or
any Affiliate of Ameritech that assumes the obligations in the Exclusive Sales
Agency Agreement, as it may be amended, will pay DonTech II its commissions
for sale of advertising in the Directories and sale or lease of Street Address
Directories as provided in the Exclusive Sales Agency Agreement and Ameritech
assumes such payment obligations if and to the extent that APIL Partners, any
successor in interest to APIL Partners, or any Affiliate of Ameritech that
assumes the obligations in the Exclusive Sales Agency Agreement, as it may be
amended, fails to pay the commissions as required by the Exclusive Sales
Agency Agreement.
9. Asset Disposition
(a) In the event that APIL Partners, Ameritech or any of their
respective Affiliates discontinues publication of any of the Directories or
Street Address Directories as a result of any sale, exchange, lease, transfer
or other disposition of any of the Directories, Street Address Directories or
Directory Assets, other than to an Affiliate of APIL Partners or Ameritech,
(such event, an "Asset Disposition"), then APIL Partners and Ameritech, on
behalf of themselves and their respective Affiliates, will cause to be paid to
Donnelley an amount equal to fifty percent (50%) of the proceeds received by
APIL Partners, Ameritech or any of their respective Affiliates (the "Ameritech
Disposition Party") in connection with such Asset Disposition. The Ameritech
Disposition Party causing such Asset Disposition, as defined in this Section
9(a), shall notify Donnelley of the Asset Disposition upon the execution of
documents causing such Asset Disposition and provide a copy of such documents
to Donnelley within five (5) days of their execution and make such payment to
Donnelley within ten (10) days of the closing on such Asset Disposition.
(b) In the event that an Asset Disposition also involves the
sale of other assets, then APIL Partners and Ameritech, on behalf of
themselves and their respective Affiliates, will cause to be paid to Donnelley
an amount equal to fifty percent (50%) of the fair market value of the
Directories, Street Address Directories, and Directory Assets included in such
Asset Disposition, as determined pursuant to Sections 9(d) and (e).
(c) In the event that APIL Partners, Ameritech or any of their
respective Affiliates enters into an agreement with a third party pursuant to
which APIL Partners, Ameritech or any of their respective Affiliates agrees to
cease publication of one or more Directories or Street Address Directories for
a period of 24 months or more, then such agreement shall be deemed to be an
"Asset Disposition" of such Directories, Street Address Directories, and the
Directory Assets associated therewith and upon cessation of publication
thereof, APIL Partners and Ameritech, on behalf of themselves and their
respective Affiliates, will cause to be paid to Donnelley an amount equal to
fifty percent (50%) of the fair market value of such Directories, Street
Address Directories, and the Directory Assets associated therewith, as
determined pursuant to Sections 9(d) and (e).
(d) (i) In the event that an Asset Disposition as defined in
Sections 9(b) or (c) occurs, the Ameritech Disposition Party shall notify
Donnelley of the Asset Disposition upon the execution of documents causing
such Asset Disposition and provide a copy of such documents to Donnelley
within five (5) days of their execution. At the same time such documents are
sent to Donnelley, the Ameritech Disposition Party shall describe the assets
subject to the Asset Disposition with reasonable particularity and state the
fair market value of the assets subject to the Asset Disposition (the "FMV
Notice").
(ii) Following Donnelley's receipt of such documents and
the FMV Notice, Donnelley and the Ameritech Disposition Party shall attempt to
agree upon the fair market value in connection with such Asset Disposition.
If no agreement is reached on the fair market value within 20 days of
Donnelley's receipt of the FMV Notice, Donnelley may have the fair market
value (as determined pursuant to Section 9(e)) of the assets subject to the
Asset Disposition determined by delivering a Notice to cause such
determination (the "Determination Notice") to the Ameritech Asset Disposition
Party within twenty-five (25) days of Donnelley's receipt of the FMV Notice.
If no Determination Notice is received by the Ameritech Asset Disposition
Party within such time period, the Ameritech Disposition Party shall pay to
Donnelley an amount equal to fifty percent (50%) of the fair market value of
the assets subject to the Asset Disposition, as stated in the FMV Notice,
within thirty days (30) days of Donnelley's receipt of the FMV Notice.
(iii) Delivery of the Determination Notice will obligate the
Ameritech Disposition Party to pay Donnelley the amount equal to the higher of
either (a) an amount equal to fifty percent (50%) of the fair market value of
the assets subject to the Asset Disposition as stated in the FMV Notice or (b)
an amount equal to fifty percent (50%) of the fair market value of such assets
subject to the Asset Disposition as determined pursuant to Section 9(e).
(iv) If the fair market value of the assets subject to the
Asset Disposition, as determined pursuant to Section 9(e), is higher than the
fair market value stated in the FMV Notice, the Ameritech Asset Disposition
Party shall be responsible for 100% of the fees of the investment banker
referred to in Section 9(e). If the fair market value of the assets subject
to the Asset Disposition, as determined pursuant to Section 9(e), is lower
than the fair market value stated in the FMV Notice, Donnelley shall be
responsible for 100% of the fees of the investment banker referred to in
Section 9(e).
(e) (i) Fair market value shall be determined by a nationally
recognized investment banker selected by mutual agreement of Donnelley and the
Ameritech Disposition Party within 10 days (the "Mutual Selection Period") of
the Determination Notice. In the event that an investment banker is not
selected by the Ameritech Disposition Party and Donnelley within the Mutual
Selection Period, then the Ameritech Disposition Party and Donnelley shall
each select an investment banker from the list of three investment bankers (or
their successors) attached hereto as Exhibit D. The Ameritech Disposition
Party and Donnelley shall simultaneously deliver to the other party its
selection of an investment banker on the fifth day after the termination of
the Mutual Selection Period. If both the Ameritech Disposition Party and
Donnelley select the same investment banker, the investment banker so selected
shall serve as the investment banker for the purpose of determining fair market
value. If Donnelley and the Ameritech Disposition Party select a different
investment banker, then the investment banker listed on Exhibit D, which
neither selected, shall serve as the investment banker to determine fair
market value.
(ii) The selected investment banker shall value the Assets
subject to the Asset Disposition at their fair private market value by valuing
such assets in the context of an auction process taking into account such
other factors as the investment banker deems relevant to such analysis. The
valuation shall be completed within sixty (60) days of the selection of the
investment banker and promptly communicated in writing to the Ameritech
Disposition Party and Donnelley. The fair market value so determined shall be
final and binding on the Ameritech Disposition Party and Donnelley. Within 10
days of the delivery of the investment banker's valuation, the Ameritech
Disposition Party shall pay Donnelley the amount equal to the higher of (a) an
amount equal to fifty percent (50%) of the fair market value of the assets
subject to the Asset Disposition as stated in the FMV Notice or (b) an amount
equal to fifty percent (50%) of the fair market value of the assets subject to
the Asset Disposition as determined under Section 9(e).
(f) In the event that APIL Partners, Ameritech or any of its
respective Affiliates enters into an agreement with a third party pursuant to
which APIL Partners, Ameritech or one of their respective Affiliates agrees to
cease publication of one or more Directories or Street Address Directories for
a period less than 24 months (such period, the "Non-Compete Period"), then,
during the Non-Compete Period, APIL Partners and Ameritech, on behalf of
themselves and their respective Affiliates, will add to the Monthly Advertiser
Contract Amount and Monthly Street Address Directory Contract Amount an amount
equal to the average Monthly Advertiser Contract Amount and Monthly Street
Address Directory Contract Amount with respect to such Directories or Street
Address Directories over the 12 month period immediately prior to the
commencement of the Non-Compete Period.
(g) Notwithstanding anything herein contained to the contrary,
it is expressly agreed that the provisions of Section 9 shall not apply to
Directories (or the Directory Assets associated therewith) published on or
after January 1, 1998 by APIL Partners, Ameritech or any of their respective
Affiliates for primary distribution in areas where the Directories are not
published for primary distribution on this Agreement's effective date or
Street Address Directories (or the Directory Assets associated therewith)
published on or after January 1, 1998 by APIL Partners, Ameritech or any of
their respective Affiliates in geographic areas not covered by the Street
Address Directories on this Agreement's effective date.
10. DonTech II's Rights with Respect to Internet and Replacement
Products Advertising
(a) APIL Partners and Ameritech, on behalf of themselves and
their respective Affiliates, hereby grant to DonTech II in perpetuity the
right, subject to DonTech II's acceptance or rejection as provided in Section
10(b): (a) to be the exclusive sales agency to solicit and sell local internet
yellow pages advertising in Illinois and in the geographic area where the
Directories listed in Schedule 2 attached to the Exclusive Sales Agency
Agreement are primarily distributed and (b) to be the exclusive sales agency
(i) to solicit and sell local advertising for any products, whether in
electronic or print form, that replace in whole or in part the Directories and
(ii) to sell or lease any products, whether in electronic or print form, that
replace in whole or in part the Street Address Directories. For purposes of
this Section 10(a), to solicit and sell "local" advertising means to solicit
and sell to Persons residing exclusively in Illinois or residing exclusively
in the geographic area where the Directories on Schedule 2 attached to the
Exclusive Sales Agency Agreement are primarily distributed.
(b) When an opportunity accrues for DonTech II under Section
10(a), APIL Partners, Ameritech or the Ameritech Affiliate offering the
opportunity to DonTech II must make a presentation which includes the exact
nature of the business opportunity, the forecasted revenues for the next
twelve (12) months as best as can be determined, the geographic area in which
the business is to be performed, the manner, if any, in which the business
would affect or compete with the Directories and the Street Address
Directories, and such other information as would assist DonTech II in making
an informed judgment of whether it should engage in such business. Within
thirty (30) days from such presentation, DonTech II must either: (i) accept
the opportunity; (ii) reasonably request additional information regarding the
business opportunity in which case the additional information is to be
provided within thirty (30) days from receipt of the request, after which time
DonTech II has an additional thirty (30) days to accept or reject the business
opportunity; or (iii) reject the business opportunity. For purposes of this
Section 10, Ameritech and API/IL represent and warrant that the vote cast by
APIL/IL's Voting Director as a member of the DonTech II Board of Directors
will be the same vote as cast by Donnelley's Voting Director on the DonTech II
Board of Directors concerning whether to (i) accept the opportunity;
(ii) reasonably request additional information regarding the opportunity; or
(iii) reject the opportunity.
11. Entire Agreement
This Agreement and the Operative Agreements constitute the entire
agreement and understanding among the Parties concerning the subject matter of
this Agreement and the Operative Agreements and supersede all prior
negotiations and proposed agreements or understandings.
12. Governing Law
This Agreement shall be deemed to have been executed and delivered
within the State of Illinois, and shall in all respects be interpreted,
enforced and governed by the laws of the State of Illinois, irrespective of
choice of law principles to the contrary.
13. Counterparts
This Agreement may be executed in one or more counterparts, and each such
counterpart shall be deemed to be an original instrument, but all such
counterparts shall constitute but one agreement.
14. Waiver
Any of the terms and conditions of this Agreement may be waived at any
time and from time to time in writing by the Party entitled to the benefit
thereof without affecting any other terms and conditions of this Agreement.
The waiver by either Party of a breach of any provision of this Agreement will
not operate or be construed as a waiver of any subsequent breach. Any waiver
must be made in writing and may not be inferred from a failure to assert any
right that could have been asserted.
15. Validity
The invalidity or unenforceability of any term or provision of this
Agreement does not affect the validity or enforceability of any of the
remaining terms or provisions of this Agreement unless the provision found to
be invalid is essential to the primary purposes of this Agreement.
16. Confidentiality
Except to the extent compelled by court order or as may be otherwise
required by applicable law, the Parties shall keep the terms, conditions and
other material provisions of this Agreement confidential.
17. Successors and Assigns
This Agreement is binding upon and will inure to the benefit of the
successors and assigns of the Parties. Except as may be permitted herein, no
Party may assign its rights and obligations under this Agreement without all
other Parties' consent, which may be granted in the sole discretion of each
Party.
18. Amendments
No amendment to this Agreement shall be effective unless it is in
writing and signed by each of the Parties hereto. No waiver of any term or
condition hereunder shall be effective unless it is in writing and signed by
the Party against whom such waiver is to be enforced.
19. Notices
The Parties shall send all notices or consents that are required or
permitted under this Agreement as follows (unless such addresses are modified
by any of the Parties). Notices, consents, or communications shall have been
deemed duly given if delivered in person, by facsimile or mailed by certified
or registered mail, return receipt requested and postage prepaid, as follows:
If to Ameritech, to:
Chief Executive Officer
Ameritech Corporation
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
FAX (000) 000-0000
with a copy to:
General Counsel
Ameritech Corporation
00 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
FAX (000) 000-0000
If to API, API/IL, APIL Partners or LLC, to:
President
Ameritech Publishing, Inc.
000 X. Xxx Xxxxxx
Xxxx, Xxxxxxxx 00000
FAX (000) 000-0000
with a copy to:
General Counsel
Ameritech Publishing, Inc.
000 X. Xxx Xxxxxx
Xxxx, Xxxxxxxx 00000
FAX (000) 000-0000
If to D&B, to:
Chief Executive Officer
The Dun & Bradstreet Corporation
Xxx Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000-0000
FAX (000) 000-0000
with a copy to:
General Counsel
The Dun & Bradstreet Corporation
Xxx Xxxxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000-0000
FAX (000) 000-0000
If to Donnelley, to:
Chief Executive Officer
The Xxxxxx X. Xxxxxxxxx Corporation
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
FAX (000) 000-0000
General Counsel
The Xxxxxx X. Xxxxxxxxx Corporation
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
FAX (000) 000-0000
If to DonTech I or DonTech II, to:
Chief Executive Officer
DonTech II
Boulevard Towers South
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
FAX (000) 000-0000
with copies to:
General Counsel
The Xxxxxx X. Xxxxxxxxx Corporation
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
FAX (000) 000-0000
General Counsel
Ameritech Publishing of Illinois, Inc.
000 X. Xxx Xxxxxx
Xxxx, Xxxxxxxx 00000
FAX (000) 000-0000
20. Interpretation
(a) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(b) No provision of this Agreement shall be interpreted in favor
of, or against, any of the parties hereto by reason of the extent to which any
such party or its counsel participated in the drafting thereof or by reason of
the extent to which any such provision is inconsistent with any prior draft
hereof or thereof.
(c) All references to "$" or dollar amounts shall be to lawful
currency of the United States of America.
IN WITNESS WHEREOF, the Parties have executed this Master
Agreement as of the date first indicated above.
The Xxxxxx X. Xxxxxxxxx Corporation
By: __________________________________ Date:_____________________________
Xxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
The Dun & Bradstreet Corporation
By:__________________________________ Date:_____________________________
Title:_______________________________
The AM/DON Partnership, a/k/a DonTech (DonTech I)
Ameritech Publishing of The Xxxxxx X. Xxxxxxxxx
Illinois, Inc. Corporation
By:__________________________________ By:_______________________________
Xxxxx X. XxXxxxxx Xxxxx X. Xxxxxx
Title: President Title: President and Chief
Executive Officer
Date:________________________________ Date:_____________________________
DonTech II
Ameritech Publishing of The Xxxxxx X. Xxxxxxxxx
Illinois, Inc. Corporation
By:__________________________________ By:_______________________________
Xxxxx X. XxXxxxxx Xxxxx X. Xxxxxx
Title: President Title: President and Chief
Executive Officer
Date:________________________________ Date:_____________________________
Ameritech Publishing, Inc.
By:_________________________________ Date:_____________________________
Xxxxx X. XxXxxxxx
Title: President
Ameritech Publishing of Illinois, Inc.
By:__________________________________ Date:_____________________________
Xxxxx X. XxXxxxxx
Title: President
Ameritech Corporation
By:__________________________________ Date:_____________________________
Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
DonTech I Publishing Company, LLC
By:__________________________________ Date:_____________________________
Xxxxx Xxxxxxx
Title: President
The APIL Partners Partnership
Ameritech Publishing, Inc. Ameritech Publishing of Illinois,
Inc.
By:__________________________________ Date:_____________________________
Xxxxx X. XxXxxxxx Xxxxx X. XxXxxxxx
Title: President Title: President
Date:________________________________ Date:_____________________________
