NON-COMPETITION AGREEMENT
Exhibit 2.5
This Non-Competition Agreement (this “Agreement”) is entered into as of March 31, 2008
between Idearc Media Corp., a Delaware corporation (“Publisher”), and Northern New England
Spinco Inc., a Delaware corporation (“Spinco”). Capitalized terms not otherwise defined
herein shall have the meanings assigned to such terms the Publishing Agreement (as defined below).
RECITALS
WHEREAS, Verizon Communications Inc. (“Verizon”), Spinco’s ultimate parent company,
and Spinco have entered into a Distribution Agreement, dated as of January 15, 2007 (the
“Distribution Agreement”), pursuant to which (i) Verizon shall separate the Spinco
Assets (as defined in the Distribution Agreement) from the Verizon Assets (as defined in the
Distribution Agreement) and (ii) Verizon shall distribute all of the issued and outstanding
shares of Spinco Common Stock to Verizon’s stockholders (the “Distribution”);
WHEREAS, Spinco and FairPoint Communications, Inc. (“Buyer”) have entered into an
Agreement and Plan of Merger, dated as of January 15, 2007 (the “Merger Agreement”),
pursuant to which Buyer will merge with and into Spinco (the “Merger”) immediately after the
consummation of the Distribution;
WHEREAS, Publisher and Verizon, are parties to a Non-Competition Agreement, dated as of
November 17, 2006 (the “Verizon Non-Competition Agreement”), Section 2.2(b) of which
provides, among other things, that in the event Verizon ceases to provide local telephone service
in all or a portion of one or more certain geographic areas (the “Verizon Service Areas”),
Verizon shall, subject to certain conditions, require the acquiring Person to agree to enter into
with Publisher, and Publisher shall enter into with such Person, an agreement substantially similar
to the Verizon Non-Competition Agreement that relates to the relevant Verizon Service Areas;
WHEREAS, as a result of the Distribution and the Merger, Verizon will cease to provide local
telephone service in the Service Areas, which are Verizon Service Areas, and, therefore, in
accordance with Section 2.2(b) of the Verizon Non-Competition Agreement, Spinco, as the acquirer of
the access lines with which Verizon provides such service, and Publisher have agreed to enter into
this Agreement;
WHEREAS, in connection with the transactions contemplated by the Distribution Agreement,
Publisher, Spinco and certain of Spinco’s Affiliates are, concurrently with the execution of this
Agreement, entering the Publishing Agreement (the “Publishing Agreement”), pursuant to
which Spinco is, among other things, designating Publisher as
its exclusive official publisher of Directory Products within certain of its Service Areas,
subject to the terms and conditions set forth therein;
WHEREAS, in connection with the transactions contemplated by the Distribution Agreement and
the Publishing Agreement, Spinco has agreed to certain non-competition and non-solicitation
covenants, as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants and agreements
herein contained, the Parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.1 General Rules of Construction. For all purposes of this Agreement: (i) the
terms defined in this Agreement include the plural as well as the singular; (ii) all references in
this Agreement to designated “Articles,” “Sections” and other subdivisions are to the designated
Articles, Sections and other subdivisions of the body of this Agreement; (iii) pronouns of either
gender or neuter include, as appropriate, the other pronoun forms; (iv) the words “herein,”
“hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and
not to any particular Article, Section or other subdivision; (v) “or” is not exclusive; (vi)
“including” and “includes” shall be deemed to be followed by “but not limited to” and “but is not
limited to,” respectively; (vii) any definition of or reference to any law, agreement, instrument
or other document herein shall be construed as referring to such law, agreement, instrument or
other document as from time to time amended, supplemented or otherwise modified; and (viii) any
definition of or reference to any statute shall be construed as referring also to any rules and
regulations promulgated thereunder.
Section 1.2 Definitions. The following definitions shall apply within this Agreement.
“Affiliate” has the meaning set forth in the Publishing Agreement.
“Agreement” has the meaning set forth in the introductory paragraph of this Agreement.
“Branding Agreement” means the Branding Agreement, dated as of the date hereof,
between Buyer and Publisher.
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“Business Day” means any day other than a Saturday, a Sunday or a day on which banks
in New York, New York are authorized or obligated by law or executive order to close.
“Buyer” has the meaning set forth in the second recital of this Agreement
“Covenant Cure Period” has the meaning set forth in Section 3.2.
“Directory Product” means a telephone directory product or service consisting
principally of searchable (e.g., by alphabet letter or category of products or services) multiple
landline telephone listings and classified advertisements that is delivered or otherwise made
available to end users in tangible media (e.g., paper directories, CD-ROM), or digital media (e.g.,
PDA download but only downloads of a complete directory product that is otherwise published in
tangible media) but shall not include any of the foregoing products or service made available or
delivered by electronic media (e.g., Internet, CATV, satellite, broadcasting).
“Distribution Agreement” has the meaning set forth in the first recital of this
Agreement.
“Excluded Affiliates” means any entity as to which Spinco does not directly or
indirectly possess the sole legal or contractual right to cause such entity to enter into
contractual arrangements (it being understood that no wholly owned subsidiary of Spinco shall be an
Excluded Affiliate); provided that any such entity shall cease to be an Excluded Affiliate
if, when and for so long as Spinco obtains the sole legal or contractual right to cause such entity
to enter into contractual arrangements.
“Internet” means the collection of computer and telecommunications facilities,
including equipment and operating software, which comprise the interconnected world-wide network of
networks that employ the “transmission control protocol/internet protocol,” or any predecessor or
successor protocols to such protocol, and includes the world wide web.
“Internet Services” has the meaning set forth in the Branding Agreement.
“Law” means any federal, state, local, municipal, foreign, international,
multinational or other constitution, law, ordinance, principle of common law, code, regulation,
statute or treaty.
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“Material Default” means, with respect to either Party, a breach of any material term,
condition, covenant or obligation of this Agreement that is so material and continuing that it has
the effect of abrogating such Party’s performance and the other Party’s enjoyment of the benefits
under this Agreement taken as a whole, including an uncured breach by Spinco of Section 2.2(a).
“Merger” has the meaning set forth in first recital of this Agreement.
“Party” means each of Publisher and Spinco (collectively, the “Parties”).
“Person” means an association, a corporation, an individual, a partnership, a limited
liability company, a trust or any other entity or organization, including a Governmental Entity.
“Publisher” has the meaning set forth in the preamble to this Agreement.
“Publisher Parties” has the meaning set forth in the introductory paragraph of this
Agreement.
“Publishing Agreement” has the meaning set forth in the fifth recital of this
Agreement.
“Publisher Region” means the geographic area (which may not be contiguous) comprised
of all of the Service Areas.
“Remediable Breach” has the meaning set forth in Section 3.2
“Restricted Activity Notice” has the meaning set forth in Section 3.1.
“Spinco” has the meaning set forth in the preamble to this Agreement.
“Spinco Restricted Activities” has the meaning set forth in Section 2.1.
“Spinco Successor” has the meaning set forth in Section 2.2 (a).
“Verizon” has the meaning set forth in first recital of this Agreement.
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“Voice Portal Directory” means a telephone directory product or service that the user
accesses through an interactive voice portal.
ARTICLE II
SPINCO NON-COMPETITION COVENANTS
SPINCO NON-COMPETITION COVENANTS
Section 2.1 Restrictions. Subject to the exclusions, exceptions and limitations
expressly set forth in this Agreement, Spinco agrees that it and its Affiliates (other than the
Excluded Affiliates) (i) shall not, (ii) shall not act as a sales agent on behalf of a third Person
in order to, or (iii) shall not enter into a joint venture, strategic alliance, product bundling,
revenue sharing or similar arrangement with a third Person a purpose of which is to (or
subsequently vote in favor of or give its consent to any modification of any such arrangement a
primary purpose of which is to), publish, market, sell or distribute any Directory Products that
(A) consist principally of listings and classified advertisements of subscribers in the Publisher
Region and (B) are directed primarily at end users in the Publisher Region (“Spinco Restricted
Activities”); provided, however, that if the Publishing Agreement is terminated
with respect to any Service Area(s) (thereby causing the definition of Publisher Region to exclude
such Service Area(s)), the obligations and restrictions of this Section 2.1 shall no longer apply
with respect to such Service Area(s), without limiting the continued application of such
obligations and restrictions with respect to the remaining Service Areas.
Section 2.2 Successor Restrictions.
(a) Subject to the exclusions, exceptions and limitations expressly set forth in this
Agreement, following a Change of Control of Spinco whereby Spinco is no longer directly bound as a
Party to this Agreement (e.g., because the Change of Control is a sale or transfer of assets or is
the result of a transaction pursuant to which the successor, surviving or acquiring entity (the
“Spinco Successor”) does not automatically succeed to the obligations of Spinco by
operation of law), Spinco shall require the Spinco Successor to agree in writing to assume this
Agreement on substantially similar terms as are then in effect hereunder.
(b) Subject to the exclusions, exceptions and limitations expressly set forth in this
Agreement, if Spinco exits any Service Area in the Publisher Region as a result of (i) a sale,
assignment or other transfer of access lines, (ii) a merger or other business combination
transaction with a Person in respect of access lines, or (iii) any other agreement with any third
Person pursuant to which such Person shall provide local telephone service in lieu of Spinco in
such Service Area (or portion thereof), and, in any of the foregoing cases, such event does not
constitute a Change of Control: (A) Spinco shall, if Publisher has entered into with the
acquiring Person binding agreements on terms substantially similar to the Publishing Agreement and
Branding Agreement (to the extent set forth in Section 3.8(c) of the Publishing Agreement), require
the acquiring Person to agree to enter into with Publisher, and Publisher shall enter into with
such Person, a binding agreement on terms substantially similar to this Agreement with respect to
the
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relevant Service Area(s) and (B) neither Publisher nor Spinco shall be released from
its obligations under this Agreement other than with respect to such Service Area or portion
thereof.
Section 2.3 Exceptions and Limitations.
(a) None of Spinco, the Spinco Successor or any of their respective Affiliates shall be deemed
to have engaged in Spinco Restricted Activities with respect to marketing and sales by non-employee
sales agents if such Person uses its commercially reasonable efforts, including establishing
reasonable procedures, to restrict the activities of those of their respective agents and other
distribution parties that are marketing Spinco local telephone service on an exclusive basis (e.g.,
the agents do not represent any other provider of local telephone service) from engaging in Spinco
Restricted Activities.
(b) Publisher acknowledges and agrees that none of Spinco, the Spinco Successor or any of
their respective Affiliates (including the Excluded Affiliates) shall have any restrictions on the
publication, marketing, sale or distribution of Directory Products directed principally at
end-users outside the Publisher Region using any brand, other than the brands “SuperPages” or any
combination xxxx of “SuperPages” and “Idearc” or any other brand of Publisher or its Affiliates.
(c) Nothing contained in this Agreement shall prohibit any of Spinco, the Spinco Successor or
any of their respective Affiliates (including, for the avoidance of doubt, the Excluded Affiliates)
from engaging in any activity in which it is required by Law to engage in itself or through its
Affiliates, including publishing or distributing White Pages to the extent permitted or required in
the event of a Publishing Order, subject and pursuant to the terms and conditions of Section 3.11
of the Publishing Agreement.
(d) Nothing contained in this Agreement shall restrict the Spinco Successor from continuing to
publish, market, sell or distribute (on its own behalf or on behalf of any third Person) Directory
Products in those Service Areas in the Publisher Region in which it was conducting any such
business at the date of execution of the agreement(s) pursuant to which such Change of Control or
disposition transaction occurs; provided, however, that the Spinco Successor: (i)
may not materially expand the geographic scope of such Directory Products within such Service
Area(s); and (ii) beginning with the publication of any Directory Product that is printed or
otherwise distributed more than 15 months after the Change of Control or disposition transaction is
consummated, the Spinco Successor may not brand any such Directory Product with the brand used by
Spinco or any successor of Spinco (other than the Spinco Successor) that is an incumbent local
exchange carrier in the Service Areas in its capacity as the incumbent local exchange carrier in
the Service Area(s) covered by such Directory Product.
(e) Nothing contained in this Agreement shall prohibit Spinco or any its Affiliates from
acting as a sales agent or entering into a joint venture, strategic alliance, product bundling,
revenue sharing or similar relationship with an entity that is engaged in a Spinco Restricted
Activity so long as Spinco or such Affiliate (it being understood that
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no Person with which Spinco or any of its Affiliates enters into any relationship contemplated
by this Section 2.3(e) shall be considered an Affiliate of Spinco or any of its Affiliates) is not
itself engaged in any activity in connection with such relationship that is a Spinco Restricted
Activity.
(f) Nothing contained in this Agreement shall prohibit Spinco or any of its Affiliates from
distributing in any Service Area a de minimis number of telephone directories that cover a
geographic area that does not include such Service Area.
(g) Nothing contained in this Agreement shall prohibit Spinco or any of its Affiliates from
providing, directly or indirectly, products and services of any kind, delivered or accessed through
the internet, over the telephone network, via CATV system or any other similar methods of
transmission, including products or services that are available or accessible in the Publisher
Region that contain searchable (e.g., by alphabet letter or category) multiple telephone listings
and classified advertisements of Persons doing business and located in the Publisher Region.
(h) Nothing contained in this Agreement shall prohibit Spinco or any of its Affiliates from
providing any tangible or intangible telephone directory product consisting principally of
searchable (e.g., by alphabet letter or category of products or services) multiple wireless or
mobile telephone listings and classified advertisements.
(i) Nothing contained in this Agreement shall prohibit Spinco or any of its Affiliates from
providing any “411” or similar service that delivers information in the form of a voice response
(live or automated), text message, web page link or download to a wireless or mobile telephone in
response to a user-initiated request.
(j) The restrictions in Section 2.1 shall cease to apply to any Affiliate of Spinco at such
time as such Affiliate is no longer an Affiliate of Spinco or any successor of Spinco.
(k) Nothing contained in this Agreement shall prohibit any of Spinco, the Spinco Successor or
any of their respective Affiliates from holding and making passive investments in securities of any
Person whose securities are publicly traded in a generally recognized market, provided that
the equity interest of Spinco, the Spinco Successor or such Affiliate therein does not exceed 40%
of the outstanding shares or interests in such Person and Spinco, the Spinco Successor or such
Affiliate does not have effective control of management or policies of such Person.
(l) Publisher acknowledges and agrees that none of Spinco, the Spinco Successor or any of
their respective Affiliates shall be under any restrictions with respect to any Voice Portal
Directory.
(m) Nothing contained in this Agreement shall restrict Spinco from making an acquisition of
any business that engages in activities that would, if engaged in by Spinco, constitute a violation
of the restrictions contained in this Article II, so long as such activities account for less than
20% of the revenues of such business and, within two years of the date of such acquisition, Spinco
disposes of (including by means of a
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distribution to its stockholders or placing such business in trust for sale to a third-party)
or otherwise ceases, and causes its Affiliates to cease, to engage in such activities, but only to
the extent conducted in the Service Areas.
(n) Nothing contained in this Agreement shall prohibit any Excluded Affiliate from providing
any product or services of any kind or nature, including products or services that would otherwise
constitute Spinco Restricted Activities.
ARTICLE III
DISPUTE RESOLUTION
Section 3.1 Notice. Publisher shall promptly notify Spinco of any activity it
believes violates or will violate any of its rights under Article II (a “Restricted Activity
Notice”), which Restricted Activity Notice shall indicate whether Publisher reasonably believes
the alleged or threatened breach is capable of cure. Spinco shall respond in writing within 15
Business Days to any Restricted Activity Notice it receives, describing any objection to the
assertions set forth in such Restricted Activity Notice or, if such matters are not objected to,
describing its intentions regarding the cure of such violation(s).
Section 3.2 Cure. If a breach or threatened breach of Spinco’s obligations under
Article II is capable of cure (a “Remediable Breach”), Spinco shall have 90 days after its
receipt of a Restricted Activity Notice with respect to such Remediable Breach to cure such
Remediable Breach (“Covenant Cure Period”); provided, however, that such
Covenant Cure Period shall be extended for such additional period of time as shall be reasonably
necessary to permit Spinco to cure or cause to be cured such Remediable Breach if such Remediable
Breach has not been remedied within the initial Covenant Cure Period, so long as during the initial
Covenant Cure Period Spinco diligently endeavors to cure or cause to be cured such Remediable
Breach, and if such extension would not reasonably be expected to have a material adverse effect on
Publisher. If the existence of a Remediable Breach is disputed in good faith and a timely manner,
but it is then determined pursuant to Section 3.3 that such Remediable Breach exists, Spinco shall
then have 60 days from the date of such determination (or such longer period as may be reasonably
necessary to cure or caused to be cured such Remediable Breach as may be permitted on the same
terms and conditions set forth in the proviso to the preceding sentence) to cure or caused to be
cured such Remediable Breach.
Section 3.3 Escalation. If there is any continuing objection or dispute in connection
with a Restricted Activity Notice following the Covenant Cure Period, if applicable, the Parties
shall refer such dispute to a senior executive officer of each of Spinco and Publisher, who shall
for 15 Business Days attempt in good faith to resolve such dispute and determine the appropriate
remedial action.
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ARTICLE IV
REMEDIES AND ENFORCEMENT
REMEDIES AND ENFORCEMENT
Section 4.1 Injunctive Relief. Spinco recognizes and agrees that a breach or
threatened breach of any of its obligations under Article II would cause irreparable harm to
Publisher and its Affiliates, that Publisher’s remedies at law in the event of such breach or
threatened breach would be inadequate. Accordingly, if Spinco fails to cure or cause to be cured
any breach or threatened breach after notice thereof and, if applicable, expiration of the Covenant
Cure Period (and any extension thereof as contemplated by Section 3.2), a restraining order or
injunction or both may be issued against Spinco, in addition to, and not in lieu of, any other
right or remedy that may be available to Publisher, without posting any bond or other form of
security and without the necessity of proving actual damages. In connection with any such action or
proceeding for injunctive relief, Spinco hereby agrees, to the maximum extent permitted by law, to
have each provision of this Section 4.1 specifically enforced against it, and consents to the entry
of injunctive relief against it, enforcing or restraining any breach or threatened breach of its
obligations under this Agreement.
Section 4.2 Term and Termination.
(a) This Agreement shall become effective at the Effective Time and remain in effect until
November 17, 2036, unless earlier terminated in whole or in part as provided herein.
(b) If the Publishing Agreement is terminated in accordance with its terms, either Party may
terminate this Agreement immediately.
(c) If the Publishing Agreement is terminated with respect to one or more Service Areas
pursuant to any of the provisions of Section 6.2 thereof, Spinco may terminate the restrictions
under Article II with respect to such Service Area(s).
(d) If the Branding Agreement is terminated with respect to one or more Service Areas pursuant
to Section 11(c)(v) thereof, Spinco may terminate the restrictions under Article II with respect to
such Service Area(s).
Section 4.3 Acknowledgments. Spinco expressly agrees that the duration, scope and
geographic area of the restrictions set forth in each of Article II are reasonable. Spinco
acknowledges and agrees that the covenants and restrictions above are necessary, fundamental and
required for the protection of Publisher’s business, that such covenants and restrictions relate to
matters that are of a special, unique and extraordinary value and that the Parties would not enter
into the Distribution Agreement or the Publishing Agreement, or the transactions contemplated
thereby, without the protection provided by this Agreement.
Section 4.4 Enforcement. The covenants set forth in Article II shall be construed as
divided in separate and distinct covenants with respect to each jurisdiction. If any provision or
covenant in this Agreement is more restrictive than permitted by the laws of any jurisdiction in
which either Party seeks enforcement hereof, such provision shall be
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limited to the extent required to permit enforcement under such laws. If, in any proceeding, a
court or arbitral panel refuses to enforce any of the separate covenants contained herein, then
such unenforceable covenant shall be deemed eliminated from this Agreement for the purpose of those
proceedings to the extent necessary to permit the remaining separate covenants to be enforced. If
the provisions of this Agreement are ever deemed to exceed the duration, geographical limitations
or scope permitted by applicable law, then such provisions shall be reformed to the maximum time or
geographic limitations in scope, as the case may be, permitted by applicable law.
ARTICLE V
MISCELLANEOUS
MISCELLANEOUS
Section 5.1 Confidentiality. Each Party may disclose to the other Confidential
Information. Each Party agrees to keep Confidential Information of the other Party confidential,
and not to disclose such information to any third Party, except to those of its employees,
subcontractors, consultants and agents with a need to know such Confidential Information solely for
the purpose of performing the receiving Party’s obligations under this Agreement and the other
Commercial Agreements and as otherwise permitted under this Agreement and the other Commercial
Agreements; provided, that any such employees, subcontractors, consultants or agents shall
first be informed by the recipient Party of the confidential nature of the Confidential Information
and agree to be bound by confidentiality terms no less restrictive than those set forth herein. The
recipient of Confidential Information may use the Confidential Information and make copies of
Confidential Information only as reasonably necessary to perform its obligations under this
Agreement and the other Commercial Agreements and as otherwise permitted under this Agreement and
the other Commercial Agreements. All such copies will be subject to the same restrictions and
protections as the original. Each Party will safeguard such Confidential Information from
unauthorized use or disclosure with at least the same degree of care with which the recipient Party
safeguards its own Confidential Information. The recipient Party will be responsible for any breach
of the obligations set forth herein by the recipient’s employees, subcontractors, consultants or
agents. Confidential Information belonging to a Party that is in the possession of the other Party
will be returned, or destroyed at the disclosing Party’s request, within 30 days after a written
request is delivered to the recipient, including any copies made by the recipient Party. If either
Party loses or makes an unauthorized disclosure of the other Party’s Confidential Information, it
will notify such other Party immediately and use commercially reasonable efforts to retrieve the
lost or wrongfully disclosed information. A Party may disclose Confidential Information which is
required to be disclosed by law, a court of competent jurisdiction or governmental or
administrative agency so long as the disclosing Party has been notified of the requirement promptly
after the receiving Party becomes aware of the requirement and so long as the receiving Party
undertakes all lawful measures to avoid disclosing such information until the disclosing Party has
had reasonable time to seek a protective order and complies with any protective order that covers
the Confidential Information to be disclosed.
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Section 5.2 Further Assurances. Each Party shall take such other actions as any other
Party may reasonably request or as may be necessary or appropriate to consummate or implement the
transactions contemplated by this Agreement or to evidence such events or matters.
Section 5.3 No Agency. Nothing in this Agreement, and no action of or inaction by any
of the Parties, shall be deemed or construed to constitute an agency relationship between the
Parties. Each Party is acting independently of the other and neither Party has the authority to act
on behalf of or bind the other Party.
Section 5.4 Governing Law; Service of Process; Jurisdiction. This Agreement and the
legal relations between the parties hereto shall be governed by and construed in accordance with
the laws of the State of New York, without regard to the conflict of laws rules thereof to the
extent such rules would require the application of the law of another jurisdiction. The state or
federal courts located within the City of New York shall have exclusive jurisdiction over any and
all disputes between the parties hereto, whether in law or equity, arising out of or relating to
this agreement and the agreements, instruments and documents contemplated hereby and the parties
consent to and agree to submit to the exclusive jurisdiction of such courts. Each of the Parties
hereby waives and agrees not to assert in any such dispute, to the fullest extent permitted by
applicable law, any claim that (i) such Party is not personally subject to the jurisdiction of such
courts, (ii) such party and such Party’s property is immune from any legal process issued by such
courts or (iii) any litigation or other proceeding commenced in such courts is brought in an
inconvenient forum. The Parties hereby agree that mailing of process or other papers in connection
with any such action or proceeding in the manner provided in Section 5.8, or in such other manner
as may be permitted by law, shall be valid and sufficient service thereof and hereby waive any
objections to service accomplished in the manner herein provided.
Section 5.5 Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER RELATED DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 5.6 Amendments; Waivers. Except as expressly provided herein, this Agreement
and any attached schedule may be amended only by agreement in writing of all Parties. No waiver of
any provision nor consent to any exception to the terms of this Agreement shall be effective unless
in writing and signed by all Parties and then only to the specific purpose, extent and instance so
provided. No failure on the part of any Party to exercise or delay in exercising any right
hereunder shall be deemed a waiver thereof, nor shall any single or partial exercise preclude any
further or other exercise of such or any other right.
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Section 5.7 No Assignment. Neither this Agreement nor any rights or obligations
hereunder are assignable by one Party without the express prior written consent of the other Party;
provided, however, that:
(i) either Party may assign this Agreement upon written notice to the other Party to
any of its Affiliates without the consent of the other Party if the assigning Party
requires such Affiliate to agree in writing to assume this Agreement and the assigning
Party remains liable for its obligations under each such agreement;
(ii) a Change of Control of either Party shall not be deemed to be an assignment of
this Agreement, provided that if the relevant Party is no longer directly bound as
a Party to this Agreement (e.g., because the Change of Control is a sale or transfer of
assets or is the result of a transaction pursuant to which the successor, surviving or
acquiring entity does not automatically succeed to the obligations of such Party by
operation of law), the successor, surviving or acquiring entity shall agree in writing (in
form and substance reasonably satisfactory to the other Party) to assume this Agreement;
and
(iii) Publisher may assign this Agreement as to the Primary Directories with respect
to any Service Areas to any Person (other than an Affiliate of Publisher), provided
that such Person shall agree in writing (in form and substance reasonably satisfactory to
Spinco) to assume this Agreement to the extent of the relevant Service Area(s) and Spinco
consents in writing to such assignment (such consent to not be unreasonably withheld).
Section 5.8 Notices. All notices, demands and other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given: (i) immediately when personally delivered; (ii) when received by first
class mail, return receipt requested; (iii) one day after being sent by Federal Express or other
overnight delivery service; or (iv) when receipt is acknowledged, either electronically or
otherwise, if sent by facsimile, telecopy or other electronic transmission device. Notices, demands
and communications to the other Party shall, unless another address is specified by such Party in
writing, be sent to the address indicated on Schedule 5.8, as such Schedule may be amended with
respect to a party from time to time by such party by written notice to the other party.
Section 5.9 Entire Agreement. This Agreement, including any schedules attached hereto,
and the Commercial Agreements constitute the entire agreement between the Parties pertaining to the
subject matter hereof and supersedes all prior agreements and understandings of the Parties in
connection therewith.
Section 5.10 Severability. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if possible, to achieve the
intent of the Parties. All other provisions of this Agreement shall be deemed valid and enforceable
to the extent possible.
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Section 5.11 Headings. The descriptive headings of the Articles, Sections and
subsections of this Agreement are for convenience only and do not constitute a part of this
Agreement.
Section 5.12 Counterparts. This Agreement and any amendment hereto or any other
agreement delivered pursuant hereto may be executed in one or more counterparts and by different
Parties in separate counterparts. All counterparts shall constitute one and the same agreement and
shall become effective when one or more counterparts have been signed by each Party and delivered
to the other Party.
Section 5.13 Successors and Assigns; No Third Party Beneficiaries. This Agreement is
binding upon and shall inure to the benefit of each Party and their respective successors or
assigns, and nothing in this Agreement, express or implied, is intended to confer upon any other
Person or Governmental Entity any rights or remedies of any nature whatsoever under or by reason of
this Agreement.
Section 5.14 Representation by Counsel; Interpretation. Each Party acknowledges that
it has been represented by counsel in connection with this Agreement. Accordingly, any rule of law
or any legal decision that would require interpretation of any claimed ambiguities in this
Agreement against the Party that drafted it has no application and is expressly waived. The
provisions of this Agreement shall be interpreted in a reasonable manner to effect the intent of
the Parties.
[Signature Page Follows]
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed by its duly
authorized officers as of the day and year first above written.
| NORTHERN NEW ENGLAND SPINCO INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | XXXXXXX X. XXXXX | |||
| Title: | VICE PRESIDENT | |||
| IDEARC MEDIA CORP. |
||||
| By: | /s/ Xxxxx X. [illegible] | |||
| Name: | ||||
| Title: | ||||
Explanatory Note Regarding Schedules
The following schedule was omitted pursuant to Item 601 (b)(2) of Regulation S-K. FairPoint agrees
to furnish a copy of the omitted schedule to the SEC upon request.
Non-Competition Agreement, dated as of March 31, 2008, by and between FairPoint
Communications, Inc. and Idearc Media Corp.
| • | Schedule 5.8 – Notices |
