Exhibit 2.4
BRANDING AGREEMENT
between
FAIRPOINT COMMUNICATIONS, INC.
and
IDEARC MEDIA CORP.
Dated as of March 31, 2008
BRANDING AGREEMENT
This Branding Agreement (the “
Branding Agreement ”), dated as of March 31,
2008, is between FairPoint Communications, Inc., a Delaware
corporation (“ Licensor ”), and Idearc Media
Corp., a Delaware corporation (“ IMC ” or
“ Licensee ”) (Licensor and Licensee being
hereinafter referred to individually as a “ Party
” and collectively as the “ Parties
”).
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, IMC, Verizon and certain of
Verizon’s Affiliates are parties to a Publishing Agreement,
dated as of November 17, 2006 (the “ Verizon
Publishing Agreement ”), Section 3.8(c) of which
provides, among other things, that in the event Verizon ceases to
provide local telephone service in certain geographic areas (the
“ Verizon Service Areas ”), Verizon shall
require the acquiring Person to agree to enter into with IMC, and
IMC shall enter into with such Person, certain agreements,
including an agreement equivalent in all material respect to the
Branding Agreement, between Verizon Licensing Company and IMC,
dated as of November 17, 2006 (the “ Verizon Branding
Agreement ”), other than any terms of the Verizon
Branding Agreement that do not relate to the license granted
pursuant to Section 2(b) of the Verizon Branding Agreement or that
relate to that portion of the license granted pursuant to Section
2(b) thereof that applies to Special Directory Products (as defined
in the Verizon Branding Agreement) or portion thereof;
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 3.8(c) of
the Verizon Publishing Agreement, Spinco, as the acquiror of the
access lines with which Verizon provides such service, and IMC have
agreed to enter into this Agreement;
WHEREAS, IMC, Spinco and certain of
Spinco’s Affiliates have entered in to Publishing Agreement,
dated as of the date hereof, (the “ Publishing
Agreement ”) pursuant to which IMC will fulfill the
Publishing Obligations (as defined in the
1
Publishing Agreement) of Spinco on the terms and conditions set
forth in the Publishing Agreement; and
WHEREAS, following the Distribution,
in connection with and furtherance of, and as consideration for,
the performance by Licensee of its obligations under the Publishing
Agreement, Licensee will have an exclusive, limited license to use
the trademarks, service marks, domain names, slogans, geographical
indications, trademark designs, logos and trade names identified on
Schedule A attached hereto and hereby made a part of this
Branding Agreement (the “ Licensed Marks ”) in
connection with the printing and distribution of the Primary
Directories (other than Internet Services), but only for so long as
and to the extent that Licensee performs the Publishing Obligation
pursuant to the Publishing Agreement, and upon the following terms
and conditions.
ARTICLE I
In consideration of the mutual
promises contained herein and intending to be legally bound, the
Parties agree as follows:
1. Definitions .
Capitalized terms used herein have the meanings set forth below or
in the body of this Branding Agreement.
“ Activity Default
Notice ” is defined in Section 11(c)(v).
“ Affiliate ” is
defined in the Publishing Agreement.
“ Business ” means
the business of publishing and providing directory products and
services, consisting principally of searchable ( e .
g ., by alphabet letter or category) multiple wireline
telephone listings and classified advertisements primarily of
Persons located in the Territory that are targeted primarily at and
distributed primarily to end users located in the Territory in
tangible media ( e . g ., paper directories),
electronic media ( e . g ., Internet) and digital
media ( e . g ., PDA download) and soliciting and
entering into agreements with advertisers to place advertising in
the foregoing directory products; provided, however, the foregoing
shall not include directory products and services comprised
primarily or substantially of wireless telephone listings.
“ Business Day ”
means a day (excluding Saturday and Sunday) on which banks
generally are open for the transaction of business in New York, New
York.
“ Buyer ” is
defined in the Recitals of this Branding Agreement.
“ Directory Product
” means a telephone directory product consisting principally
of searchable ( e . g ., by alphabet letter or
category of products or services) multiple wireline telephone
listings and/or 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).
2
“ Deficiency ” is
defined in Section 11(iv) of this Branding Agreement.
“ Effective Date ”
means the date on which the Effective Time occurs.
“ Effective Time ”
means immediately after the Distribution.
“ ILEC ” means an
incumbent local exchange carrier.
“ IMC ” is defined
in the Preamble of this Branding Agreement.
“ IMC Co-Brand Marks
” is defined in Section 4(d) of this Branding
Agreement.
“ Intellectual Property
” means all (i) United States and foreign patents and
patent applications of any kind, (ii) United States and
foreign works of authorship, mask-works, copyrights, and copyright
and mask work registrations and applications for registration, and
(iii) Trademarks and (iv) all unpatented inventions (whether
or not patentable), trade secrets, know-how and proprietary
information, including but not limited to (in whatever form or
medium), discoveries, ideas, compositions, formulas, computer
programs (including source and object codes), computer software
documentation, database, drawings, designs, plans, proposals,
specifications, photographs, samples, models, processes,
procedures, data, information, manuals, reports, financial,
marketing and business data, and pricing and cost information,
correspondence and notes, and any rights or licenses in the
foregoing which may be granted without the payment of compensation
or other consideration to any Person
“ Internet Services
” means the marketing, advertising, sale and/or provision of
services offered by Company as of November 17, 2006, delivered
over wireless networks to the handsets of end users, which are
known as “SuperPages On the Go” services.
“ License ” means
the licenses granted in Section 2(a) of this Branding
Agreement.
“ License Term ”
means the period from the Effective Time until the termination or
cancellation of this Branding Agreement pursuant to
Section 11.
“ Licensee ” is
defined in the Preamble of this Branding Agreement.
“ Licensed Marks ”
is defined in the Recitals of this Branding Agreement.
“ Licensor ” is
defined in the Preamble of this Branding Agreement.
“ Non-Compete Agreement
” means the Non-Competition Agreement entered into as of the
date hereof between Spinco and IMC.
“ Notice of Deficiency
” is defined in Section 11(iv) of this Branding
Agreement.
3
“ Person ” is
defined in the Publishing Agreement.
“ Primary Directories
” is defined in the Publishing Agreement. Without limiting
the foregoing, Primary Directories shall also include: ( i
) any Directory Product Licensee is required to Publish
pursuant to the terms of the Publishing Agreement; and ( ii
) any underlay or overlay (as such terms are generally used in
the telephone directories publishing business) print Directories
Products that cover all or a portion of a geographic area covered
by a Primary Directory, which, for the avoidance of doubt, includes
portable, compact-sized directories that may lack some of the
features of full-sized directories.
“ Publish ” or
“ Publisher ” is defined in the Publishing
Agreement.
“ Publishing Agreement
” is defined in Recitals of this Branding Agreement.
“ Related Agreements
” means the Publishing Agreement and the Branding
Agreement.
“ Restricted Activity
Default ” is defined in Section 11(c)(v).
“ Service Area(s)
” is defined in the Publishing Agreement.
“ Spinco ” is
defined in the Preamble of this Branding Agreement.
“ Standards ” is
defined in Section 4 of this Branding Agreement.
“ Subsidiary ”
means, with respect to any Person, any Person in which such Person
has a direct or indirect equity or ownership interest in excess of
50%.
“ Telecommunications
Services ” is defined in Section 11(c)(v) of this
Branding Agreement.
“ Territory ”
means ( A ) with respect to tangible media Directory
Products, the then current Service Area(s); and ( B
) with respect to digital media Directory Products, the United
States of America, excluding its territories or possessions, in
each case as modified, from time to time, pursuant to: ( i
) Section 3.8 of the Publishing Agreement; ( ii
) any partial termination/cancellation pursuant to
Section 11 hereof of the licenses granted hereunder; (
iii ) any termination of the Non-Competition Agreement
pursuant to Section 4.2(e) of the Non-Compete Agreement and (
iv ) any termination/cancellation of a Service Area(s)
pursuant to Section 6.2(e) of the Publishing Agreement.
“ Unauthorized Use
” is defined in Section 6(a) of this Branding
Agreement.
“ Verizon Branding
Agreement ” is defined in Recitals of this Branding
Agreement.
4
“ Verizon Publishing
Agreement ” is defined in Recitals of this Branding
Agreement.
“ Verizon Service Areas
” is defined in Recitals of this Branding Agreement.
“ Video Services ”
is defined in Section 11(c)(v) of this Branding
Agreement.
2. Grant of Licenses and
Rights .
(a) Subject to previously
granted rights and licenses, if any, and subject to the terms and
conditions of this Branding Agreement and effective upon the
Effective Time, Licensor hereby grants to Licensee and to its
Subsidiaries the following licenses:
(i) a personal, royalty-free, fully
paid-up, ( A ) exclusive and nontransferable (except
and to the extent expressly permitted pursuant to Section 16
below) right and license to use the Licensed Marks in connection
with the conduct of the Business in the Territory (excluding
digital media Directory Products and Internet Services) by IMC and
its Subsidiaries during the License Term of this Branding
Agreement, ( B ) nonexclusive and nontransferable
(except as expressly permitted pursuant to Section 16 below)
right and license to use the Licensed Marks in connection with the
publishing, printing and distribution of digital media Directory
Products (excluding Internet services) in the Territory in which
such digital media directory Product is authorized to be Published
and for the license term specified below;
(ii) a personal, royalty-free, fully
paid-up, ( A ) exclusive and nontransferable (except as
expressly permitted pursuant to Section 16 below) right and
license to use the Licensed Marks in connection with the
solicitation of and sale to Persons solely located in or solely
conducting business in the Territory of classified advertising and
telephone listings for inclusion in tangible media Directory
Products in the Territory during the License Term; and ( B
) nonexclusive and nontransferable (except as expressly
permitted pursuant to Section 16 below) right and license to
use the Licensed Marks in connection with the solicitation of and
sale to Persons located in or conducting business in the Territory
of classified advertising and telephone listings for inclusion in
Directory Products during the License Term; and
(iii) a personal, royalty-free, fully
paid-up, nonexclusive and nontransferable (except as expressly
permitted pursuant to Section 16 below) right and license,
during the License Term, to identify Licensee (including on
business cards, correspondence, order forms, approved signage for
Primary Directories, customer bills and sales collateral, provided
they include, respectively, billing and sales collateral for
Primary Directories bearing Licensed Mark) as “the
official
5
publisher of
[Spinco] print directories,” in a form and content approved
by Licensor pursuant to Section 4, in the Service Areas.
(b) Licensee shall have the
right to grant sublicenses during the License Term of its licensed
rights with respect to the Licensed Marks to its Subsidiaries,
resellers, agents, distributors and dealers in connection with the
conduct solely in the Territory of the applicable portion of the
Business of Licensee and Licensee’s Subsidiaries during the
License Term; provided that:
(i) Licensee shall not grant any
other sublicense without the prior written approval of Licensor,
which approval shall not be unreasonably withheld or delayed;
(ii) Such sublicenses shall be in
writing, shall be subject to compliance with the terms of this
Branding Agreement, shall provide for a term not to exceed the
License Term, shall terminate when this Branding Agreement or the
applicable license terminates, is cancelled or expires, whichever
occurs first, and shall prohibit further sublicensing without
Licensor’s prior written consent;
(iii) Such sublicenses shall provide
that should the sublicensee or any of its Affiliates become
bankrupt or file a petition in bankruptcy, or should the business
of any such entity be placed in the hands of a receiver, assignee
or trustee for the benefit of creditors, whether by voluntary act
of the entity or otherwise, all licenses and rights granted
pursuant to such sublicense to such entity (including its
Affiliates, if any) shall terminate automatically; and
(iv) Licensee shall not have the
right to grant any sublicenses to any provider of Telecommunication
Services or Video Services.
(c) Licensee may sublicense the
Licensed Marks to any Person (other than any provider of
Telecommunication Services or Video Services) with which Licensee
forms a joint venture, marketing alliance, co-branding alliance or
strategic alliance, in each instance solely to permit such joint
venture, marketing alliance, co-branding alliance or strategic
alliance to market, advertise, sell and provide products and
services in the conduct solely in the Territory of the applicable
portion of the Business by Licensee and Licensee’s
Subsidiaries in connection with the Licensed Marks; provided
that:
(i) Licensee shall not grant such
sublicenses without the prior written approval of Licensor, which
approval shall not be unreasonably withheld or delayed;
(ii) Such sublicenses shall be in
writing, shall be subject to compliance with the terms of this
Branding Agreement, shall provide for a term not to exceed the
License Term, shall terminate when this Branding Agreement or
the
6
applicable
license terminates, is cancelled or expires or when the joint
venture or alliance terminates, is cancelled or expires, whichever
occurs first, and shall prohibit further sublicensing without
Licensor’s prior written consent; and
(iii) Such sublicenses shall provide
that should the sublicensee, any Person in such joint venture or
alliance, or any Affiliates of any of the foregoing become bankrupt
or file a petition in bankruptcy, or should the business of any
such entity be placed in the hands of a receiver, assignee or
trustee for the benefit of creditors, whether by voluntary act of
the entity or otherwise, all licenses and rights granted pursuant
to such sublicense to such entity (including its Affiliates, if
any) shall terminate automatically.
(d) Except and to the extent
expressly permitted pursuant to Section 2(a), Licensee, its
Subsidiaries and Licensee’s sublicensees shall not use the
Licensed Marks in connection with the marketing, advertising, sale
or provision of any goods or services to Persons outside the
Territory or otherwise in the conduct of any Business outside of
the Territory; provided, however, ( i ) Licensee,
Licensee’s Subsidiaries and Licensee’s sublicensees may
provide a de minimis number of Directory Products using the
Licensed Marks to Persons located outside of the Territory or the
geographic area in which such Directory Product is permitted to be
Published; and ( ii ) the inclusion of de minimis
content from outside the Territory or the geographic area in which
such Directory Product is permitted to be Published in Directory
Products primarily including listings of Persons located in the
Territory or geographic area in which such Directory Product is
permitted to be Published and primarily directed at end users
located in the Territory or geographic area in which such Directory
Product is permitted to be Published shall not be a use of the
Licensed Marks outside of the Territory or geographic area in which
such Directory Product is permitted to be Published.
(e) Except and only to the
extent expressly provided herein, and then only during the License
Term, nothing contained herein shall restrict Licensor’s
ability to use or sublicense the use of any Licensed Marks.
Notwithstanding the foregoing, nothing contained herein shall
prevent Licensor or its Affiliates from using any Licensed Marks
to: ( i ) market, advertise, sell or provide
internet-based services on and through websites on the Internet (as
defined in the Non-Competition Agreement), including, but not
limited to the website at “www.[ ].com,” or any other
communications networks; ( ii ) publish and provide
directory products and services primarily comprised of listings of
Persons located or doing business outside of the Territory for
which an exclusive license has been granted; ( iii ) publish
and provide directory products and services primarily comprised of
listings of Persons located or doing business outside of the
Territory for which an exclusive license has been granted but
including listings of Persons located or doing business in the
Territory for which an exclusive license has been granted that are
de minimis when compared to the entirety of the listings included
in such directory products and services and when compared to the
totality of the listings that are available in the
7
Territory for which an exclusive license has been granted for
inclusion in such directory products and services; ( iv
) publish and provide directory products and services
primarily comprised of listings of wireless telephone numbers,
including those of Persons located or doing business in the
Territory for which an exclusive license has been granted; (
v ) distribute or make available in the Territory for
which an exclusive license has been granted any of the foregoing
directory products or services.
3. Inspection and Quality
Control .
(a) Licensor has the right to
control the quality of the products and services marketed,
advertised, sold or provided by Licensee, Licensee’s
Subsidiaries and Licensee’s sublicensees in connection with
the use of the Licensed Marks as specifically described
herein.
(b) Licensee agrees that the
nature and quality of all products and services provided by
Licensee, Licensee’s Subsidiaries and Licensee’s
sublicensees which are marketed, advertised, sold or provided under
or in association with the use of any Licensed Marks shall conform
to such guidelines and standards as are provided in writing from
time to time by Licensor, and, in any event, shall be of at least
the quality of the products and services provided by IMC under the
Verizon Branding Agreement immediately prior to the Effective
Time.
(c) Licensee agrees to
reasonably cooperate, and to require Licensee’s Subsidiaries
and Licensee’s sublicensees to cooperate, with Licensor in
facilitating Licensor’s control of the nature and quality of
the products and services provided by Licensee, Licensee’s
Subsidiaries or Licensee’s sublicensees in connection with
the use of the Licensed Marks, and to permit (and require its
Subsidiaries and sublicensees to permit) reasonable, periodic
inspections of Licensee’s, Licensee’s
Subsidiaries’ and Licensee’s sublicensees’
operations as requested in writing by Licensor. Such inspection
shall be at Licensor’s expense. Licensee agrees, and will
require Licensee’s Subsidiaries and Licensee’s
sublicensees to agree, that the products and services provided by
Licensee, Licensee’s Subsidiaries and Licensee’s
sublicensees which are marketed, advertised, sold or provided in
connection with the use of the Licensed Marks will be marketed,
advertised, sold and provided in accordance with all applicable
laws and regulations and in compliance with any regulatory agency
that has jurisdiction over such matters.
(d) Except to the extent that
compliance with the last sentence of Section 3(c) requires a higher
standard of quality, Licensor agrees that Licensee will have met
the required stan
| 
