SALE AND PURCHASE AGREEMENT
This Agreement is made this 27th day of January, 1997, by and between McLeodUSA
Publishing Company, formerly known as TelecomoUSA Publishing Company, an Iowa
corporation ("XxXxxx"), Fronteer Financial Holdings, Ltd., a Colorado
corporation ("Fronteer"), Classified Directories, Inc., a North Dakota
corporation ("Classified"), Xxxxx X. Xxxxx ("Xxxxx"), Xxxxx Xxxxx ("Xxxxx"),
Xxxxxxx X. Xxxxx ("Xxxxx"), Xxxxx Xxxxxxxx ("Xxxxxxxx") and certain directors,
officers and shareholders of Fronteer.
XxXxxx and Fronteer entered into a Sale and Purchase Agreement dated April 27,
1995 ("the Idaho Sale Agreement"), also executed by Scott, Greff, Xxxxxxxx and
Xxxxx. XxXxxx and Fronteer entered into an Option Agreement dated April 27, 1995
("the Option Agreement"). Scott, Greff, Xxxxxxxx and Xxxxx are the principal and
only shareholders, directors and officers of Classified. XxXxxx and Xxxxx
entered into a Covenant not to Compete and Confidentiality Agreement dated May
5, 1995, pursuant to terms of the Idaho Sale Agreement and agreed to enter into
a separate Covenant not to Compete and Confidentiality Agreement pursuant to
terms of the Option Agreement. XxXxxx and Xxxxx entered into a Covenant not to
Compete and Confidentiality Agreement dated May 2, 1995, pursuant to terms of
the Idaho Sale Agreement. XxXxxx and Xxxxxxxx entered into a Covenant not to
Compete and Confidentiality Agreement dated May 5, 1995, pursuant to terms of
the Idaho Sale Agreement and agreed to enter into a separate Covenant not to
Compete and Confidentiality Agreement pursuant to terms of the Option Agreement.
XxXxxx and Xxxxx entered into a Covenant not to Compete and Confidentiality
Agreement dated April 28, 1995, pursuant to terms of the Idaho Sale Agreement
and agreed to enter into a separate Covenant not to Compete and Confidentiality
Agreement pursuant to terms of the Option Agreement.
The parties desire to modify the various agreements described or mentioned above
(referred to collectively as "the Various Agreements"). The parties have agreed
to modify certain rights, obligations, terms and conditions of the Various
Agreements pursuant to this Agreement and as set out in this Agreement.
XxXxxx and Classified desire to purchase certain telephone directory business of
Fronteer. Fronteer desires to sell certain of its telephone directory business
to XxXxxx and Classified under the terms and conditions set out below. The
parties desire to fully resolve all rights and duties regarding Fronteer's
telephone directories listed on Exhibit "A" attached hereto and incorporated
herein (collectively referred to as the "Directories").
In consideration of the representations set out above and the following
covenants, promises and representations, the parties agree as follows:
1. VARIOUS AGREEMENTS
This Agreement modifies, replaces and supplements certain rights and
obligations of the parties as set out in the Various Agreements and to the
extent any of the terms of this Agreement conflict with any of the terms of
the Various Agreements this Agreement controls. In the event this Agreement
is declared null and void pursuant to any provision of this Agreement, all
rights, obligations, terms and conditions of the Various Agreements shall
remain in full force and effect without any modifications, replacements or
supplements.
2. DIRECTORIES TO BE PURCHASED BY XxXXXX
Fronteer hereby sells and XxXxxx hereby purchases Fronteer's telephone
directories designated on Exhibit "A" as being purchased by XxXxxx, and, in
the event XxXxxx is required to pay the consideration due from Classified
pursuant to Section 5 below, the Durum Triangle directory listed on Exhibit
"A," (referred to as the "XxXxxx Purchase Directories"), including all
product designs and drawings (subject to the rights of advertising
subscribers or third parties in such literary property), catalogs, data,
files, records, price lists, and other documents relating to suppliers of
Fronteer, and all customer lists and contracts, catalogs and marketing
materials, and contract lead systems used by Fronteer in connection with
the XxXxxx Purchase Directories. This transaction includes all patents,
trademarks, licenses, copyrights, brand names, and trade names (whether
registered or subject to being registered), including specifically and not
by way of limitation, the name "Fronteer Directory Company" all proprietary
information and all trade secrets used or owned by Fronteer, except (1) the
licenses, copyrights and directory names used in connection with the "Durum
Triangle," "Souris River," and "Southeast North Dakota" directories, and
(2) the following corporate names: Fronteer Financial Holdings, Fronteer
Personnel Service and Fronteer Marketing Group.
The purchase specifically includes Fronteer's audiotex and similar
equipment associated with or used in connection with the XxXxxx Purchase
Directories or audiotex services identified in the XxXxxx Purchase
Directories, such equipment being listed on Exhibit "B" attached hereto and
incorporated herein, which Fronteer warrants is not presently in need of
and on Closing (as described below) will not be in need of maintenance or
service work. Such equipment shall be delivered by Xxxx of Sale in the form
attached as Exhibit "C." After Closing, Fronteer will use such audiotex
equipment is accordance with the provisions of Section 8 of this Agreement,
but XxXxxx will perform all maintenance and service work on such audiotex
equipment.
The above-described items relating to the XxXxxx Purchase Directories
published by Fronteer prior to Closing shall be delivered to XxXxxx on or
before Closing. The above-described items relating to the XxXxxx Purchase
Directories to be published by Fronteer after Closing shall be delivered to
XxXxxx on the date each of the XxXxxx Purchase Directories is delivered to
a printer for printing. Fronteer shall deliver to XxXxxx fifty (50) copies
of the Fargo directory at Closing and fifty (50) copies of each of the
other Directories within ten (10) days after each such Directory is
published.
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This transaction does not include any receivables of Fronteer, and XxXxxx
is not assuming any liabilities of Fronteer. Fronteer is entitled to all
receivables in connection with the Directories from the editions listed on
Exhibit "A" and prior editions of the Directories sold, published and
delivered by Fronteer. XxXxxx is entitled to all receivables generated from
all future editions of the XxXxxx Purchase Directories.
3. DIRECTORIES TO BE PURCHASED BY CLASSIFIED
Fronteer hereby sells and Classified hereby purchases Fronteer's Durum
Triangle directory, designated on Exhibit "A" as being purchased by
Classified, including all product designs and drawings (subject to the
rights of advertising subscribers or third parties in such literary
property), catalogs, data, files, records, price lists, and other documents
relating to suppliers of Fronteer for the Durum Triangle directory, and all
customer lists and contracts, catalogs and marketing materials, and
contract lead systems used by Fronteer in connection with the Durum
Triangle directory. This transaction includes any licenses, copyrights and
the directory name used by Fronteer in connection with the Durum Triangle
directory, but specifically does not include any right to use in any manner
the name "Fronteer" or "Fronteer Directory Company."
The above described items relating to the Durum Triangle directory shall be
delivered to the purchaser of the Durum Triangle directory on the date of
payment of consideration for the Durum Triangle directory. Fronteer shall
deliver to the purchaser of the Durum Triangle directory fifty (50) copies
of the Durum Triangle directory within ten (10) days after the Durum
Triangle directory is published.
XxXxxx hereby assigns to Classified its right, title and interest in or to
the Souris River and Southeast North Dakota directories and, in the event
Classified pays the cash consideration for the Durum Triangle directory, in
and to the Durum Triangle directory.
This transaction does not include any receivables of Fronteer, and
Classified is not assuming any liabilities of Fronteer. Fronteer is
entitled to all receivables in connection with the Directories from the
editions listed on Exhibit "A" and prior editions of the Directories sold,
published and delivered by Fronteer. Classified is entitled to all
receivables generated from all future editions of the directories purchased
by Classified.
4. PAYMENT BY OF CONSIDERATION BY XxXXXX
The cash consideration from XxXxxx for this Agreement is estimated to be
$4,000,000.00, which is based upon estimated net cash revenue of
$3,700,000.00 from the first six directories listed on Exhibit "A", plus
$300,000.00 over and above said estimated net cash revenue, and is subject
to the adjustment requirements of Section 6 below. $1,000,000.00 of the
consideration from XxXxxx will be allocated and paid to the
officers/shareholder/directors of Fronteer in exchange for the Covenant not
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to Compete and Confidentiality Agreements described and required below, and
the remaining consideration will be allocated and paid to Fronteer. The
consideration from XxXxxx will be paid, subject to the conditions set out
in Sections 10, 13, 14 & 21 below, as follows:
(1) $1,000,000.00 to Fronteer on March 1, 1997, to be paid in the form
of $500,000.00 in cash and $500,000.00 by payoff of the full amount of the
promissory note given to XxXxxx by Fronteer pursuant to the Option
Agreement, which will then be marked by XxXxxx as paid on March 1, 1997,
(2) $1,000,000.00 to officers/shareholders/directors, in the
percentage amounts shown on Exhibit "D," within five (5) business days
after the later of [a] the date when Fronteer certifies to XxXxxx that
Fronteer has completed publication and distribution of the Fargo and
Badlands (Xxxxxxxxx) directories listed on Exhibit "A," or [b] March 1,
1997,
(3) $900,000.00 to Fronteer within five (5) business days after
Fronteer certifies to XxXxxx that Fronteer has completed publication and
distribution of the fifth directory listed on Exhibit "A," and,
(4) all remaining unpaid consideration to Fronteer within five (5)
business days after [a] Fronteer certifies that all XxXxxx Purchase
Directories have been published and distributed, and, [b] the total net
cash revenue for the XxXxxx Purchase Directories has been determined
pursuant to Section 6 below, with the final payment adjusted pursuant to
the provisions of Section 6 below.
5. PAYMENT OF CONSIDERATION BY CLASSIFIED
The cash consideration from Classified for this Agreement is equal to the
net cash revenue from the April, 1997 edition of the Durum Triangle
directory listed on Exhibit "A." Twenty-five percent (25%) of the
consideration from Classified will be allocated and paid to the
officers/shareholder/directors of Fronteer listed, and in the percentage
amounts shown, on Exhibit "D" in exchange for the Covenant not to Compete
and Confidentiality Agreements described and required below, and the
remaining consideration will be allocated and paid to Fronteer. The
consideration from Classified will be paid to Fronteer within fourteen (14)
days after Fronteer certifies that publication and distribution of the
Durum Triangle directory has been completed and the total net cash revenue
for the Durum Triangle directory has been determined pursuant to Section 6
below, adjusted pursuant to the provisions of Section 6 below.
In the event Classified fails to timely pay consideration to Fronteer in
accordance with this section, Fronteer will notify XxXxxx of such fact and
XxXxxx will pay to Fronteer the consideration due from Classified within
fourteen (14) days of said notice. Upon payment by XxXxxx, (1) Fronteer
will convey to XxXxxx all right, title and interest in the Durum Triangle
directory, (2) the Durum Triangle directory will thereafter be treated as
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though it were one of the XxXxxx Purchase Directories and XxXxxx will have
the same rights with respect to the Durum Triangle directory as Classified
had to the Durum Triangle directory and as it has in and to the XxXxxx
Purchase Directories, and, (3) all rights of Classified in and to the Durum
Triangle directory will be terminated and Classified will have no further
right, title or interest in or to the Durum Triangle directory.
6. NET CASH REVENUE REQUIREMENT
Fronteer represents and warrants that the net cash revenue of the editions
of each of the Directories listed on Exhibit "A" was, or will, be as shown
on Exhibit "A." Net cash revenue shall include all contracted for gross
revenue in the form of cash paid or accounts receivable (reduced by any
commissions or share paid to any telephone company), including national
revenue, but shall exclude cancellations, promotional discounts, payment
plan/cash discounts, and any revenue traded for value other than cash or
accounts receivables for each directory. If the net cash revenue from any
directory listed on Exhibit "A" is more or less than as shown on Exhibit
"A," the consideration paid, as set out in Section 4 or 5 above, as
applicable, shall be increased or reduced accordingly by one dollar for
each dollar the net cash revenue for such directory is above or below that
shown on Exhibit "A." XxXxxx and Fronteer shall determine the net cash
revenue for each of the XxXxxx Purchase Directories upon certification of
completion of each such directory by Fronteer as described in Section 8
below and such determination shall be acceptable to XxXxxx, in its sole
discretion. Fronteer and the purchaser of the Durum Triangle directory
shall determine the net cash revenue for the Durum Triangle directory upon
certification of completion of such directory by Fronteer as described in
Section 8 below.
7. CLOSING
Closing shall take place at Fronteer's offices at 216 North 23 Street,
Bismarck, North Dakota, at 2:00 p.m., c.s.t., on January 27, 1997, or at
such other time, date, and place as may be agreed by the parties
("Closing").
8. CONDUCT OF FRONTEER
All sales, production and distribution of the Directories set out on
Exhibit "A" shall be (1) continued and completed by Fronteer, (2) completed
no later than the last day of the month immediately following the month of
publication set out on Exhibit "A," and (3) continued and completed in the
same manner as the last published editions of such Directories, including
but not limited to, the number of Directories printed and distributed (as
set out on Exhibit "A" or, where no number is set out, the number will be
the same number of directories as printed and distributed during the
immediately preceding calendar year), the distribution area, the pricing,
the credit terms, the quality and size of print and paper, and the general
production standards. Fronteer shall promptly pay all sales and production
expenses for said editions of the Directories and for all prior editions of
the Directories.
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Fronteer shall, at its cost, continue to provide all information, updates,
data and telephone lines for audiotex service described in, related to or
associated with any of the Directories for one year after the date each of
the Directories is published, in the same manner as provided in the prior
edition of each such directory. Fronteer will have the right to continue to
use the audiotex equipment sold and transferred pursuant to this Agreement
at no charge.
If XxXxxx determines, in its sole discretion, that Fronteer has failed to
complete all sales, production and distribution of the Directories and
provision of all elements of audiotex service, as set out above, XxXxxx
shall have, in addition to any other right it may have, the right to
terminate this Agreement, declare this Agreement null and void and receive
a full refund of any and all of the purchase price previously paid.
Beginning on the date hereof, XxXxxx shall have the right to conduct an
investigation of Fronteer and its telephone directory business as XxXxxx
deems necessary. Fronteer shall cooperate fully with XxXxxx in such
investigation.
9. PRE-SALES
Fronteer may have made sales for editions of the XxXxxx Purchase
Directories to be published by XxXxxx ("Pre-Sales"), but will make no more
Pre-Sales after Closing. XxXxxx will have the right to review and approve
any such Pre-Sales, but such approval shall not be unreasonably withheld.
All approved receivables, contracts, cash, trade agreements, finished
copies and any other items held by Fronteer in connection with such
approved Pre-Sales will be delivered on or before Closing, or as soon
thereafter as is commercially possible. XxXxxx will pay Fronteer, in
addition to the consideration set out in Section 4 above, a commission
equal to 25% of the net cash amount of such approved Pre-Sales on or before
the date of the last payment due under Section 4 above.
10. REPRESENTATIONS AND WARRANTIES OF FRONTEER
Fronteer hereby covenants, represents and warrants to the other parties
that:
Due Organization. Fronteer is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Colorado and
has the power and authority, corporate and otherwise, to own its properties
and conduct the business in which it is presently engaged.
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Authorization of Agreement. The execution and delivery of this Agreement
and consummation of the transactions contemplated by this Agreement have
been duly and validly authorized by all necessary corporate action on the
part of Fronteer and this Agreement constitutes a valid and legally binding
obligation of Fronteer enforceable according to its terms. The execution
and delivery of this Agreement, consummation of the transactions
contemplated by this Agreement and compliance by Fronteer with all the
provisions of this Agreement will not (i) violate any provision of the
terms of any applicable law, rule, or regulation of any governmental body
having jurisdiction; (ii) conflict with or result in a breach of any
provision of Fronteer's Articles of Incorporation or Bylaws or constitute a
default under any of the terms, conditions, or provisions of, or result in
the breach of, or accelerate or permit the acceleration of the performance
required by any note, bond, mortgage, indenture, license, agreement, or
other instrument or obligation of any nature whatsoever to which Fronteer
is a party; or (iii) violate any order, writ, injunction, decree, statute,
rule, or regulation applicable to Fronteer or any of its property or
assets.
Payment of Taxes. Fronteer has filed all federal, state, and local tax
returns required to be filed, and has made timely payment of all taxes
shown by those returns to be due and payable. All filed tax returns are
complete, true and correct in all material respects.
No Adverse Conditions. There are no adverse conditions or circumstances
that may interfere with the use and enjoyment of or opportunity to operate
the directory business of Fronteer to be purchased and sold pursuant to
this Agreement.
No Omissions or Misrepresentations. No representation, warranty or
statement of Fronteer contains any misrepresentation or misstates any
material fact or omits to state any material fact necessary to make each
representation or warranty or statement in this Agreement, or in any
certificates or other instruments furnished or to be furnished to XxXxxx,
accurate and not misleading in any material respect.
Investigation by XxXxxx. No investigation conducted by XxXxxx shall affect
the representations and warranties of Fronteer herein, and each such
representation and warranty shall survive the execution and closing hereof.
Title and liens. Fronteer on the date of delivery will own and deliver good
and marketable title and all right, title and interest, free and clear of
any and all liens or encumbrances, in and to all assets, rights and
equipment to be sold and delivered pursuant to this Agreement.
Consent of Creditors. Fronteer has obtained, or will obtain no later than
February 28, 1997, any and all necessary consents with respect to the
transactions contemplated by this Agreement, including and not limited to
all necessary consents and/or necessary releases from all of Fronteer's
lenders and said lenders have executed prior to Closing, or will execute no
later than February 28, 1997, a release of any and all liens or security
interests covering the Directories and the audiotex equipment being
purchased pursuant to the terms of this Agreement, such consents are
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attached hereto as Exhibit "E." In the event the conditions set out in this
section are not satisfied, or are violated in the sole opinion of XxXxxx,
XxXxxx may declare this Agreement null and void and shall be entitled to an
immediate return of all amounts paid by it pursuant to this Agreement.
Publication Agreements. Fronteer is a party to agreements with
telecommunications carriers listed on Exhibit "F," attached hereto and
incorporated herein, in connection with the XxXxxx Purchase Directories and
copies of those agreements, or written explanation of the agreements if
oral, are attached to Exhibit "F."
Corporate Actions. Fronteer shall take such action and shall file all
documents necessary to comply with all federal, state and local laws and
regulations which may require shareholder or director consent or approval
of this Agreement or the transactions contemplated or required by this
Agreement.
Sales Force. Fronteer presently employs ten individuals in a position
involving the sale of advertising in the Directories, which includes nine
sales representatives and one sales manager and all individuals employed in
a position involving the sale of advertising in the Directories are listed
on Exhibit "G."
11. REPRESENTATIONS AND WARRANTIES OF XxXXXX
XxXxxx covenants, represents and warrants to the other parties:
Due Organization. XxXxxx is a corporation duly organized, validly existing,
and in good standing under the laws of the State of Iowa and has the power
and authority, corporate and otherwise, to own its properties and conduct
the business in which it is presently engaged.
Authorization of Agreement. The execution and delivery of this Agreement
and consummation of the transactions contemplated by this Agreement have
been duly and validly authorized by all necessary corporate action on the
part of XxXxxx and this Agreement constitutes a valid and legally binding
obligation of XxXxxx enforceable according to its terms. The execution and
delivery of this Agreement, consummation of the transactions contemplated
by this Agreement and compliance by XxXxxx with all the provisions of this
Agreement will not (i) violate any provision of the terms of any applicable
law, rule, or regulation of any governmental body having jurisdiction; (ii)
conflict with or result in a breach of any provision of XxXxxx'x Articles
of Incorporation or Bylaws or constitute a default under any of the terms,
conditions, or provisions of, or result in the breach of, or accelerate or
permit the acceleration of the performance required by any note, bond,
mortgage, indenture, license, agreement, or other instrument or obligation
of any nature whatsoever to which XxXxxx is a party; or (iii) violate any
order, writ, injunction, decree, statute, rule, or regulation applicable to
XxXxxx or any of its property or assets.
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12. REPRESENTATIONS AND WARRANTIES OF CLASSIFIED
Classified covenants, represents and warrants to the other parties that:
Due Organization. Classified is a corporation duly organized, validly
existing, and in good standing under the laws of the State of North Dakota
and has the power and authority, corporate and otherwise, to own its
properties and conduct the business in which it is presently engaged.
Authorization of Agreement. The execution and delivery of this Agreement
and consummation of the transactions contemplated by this Agreement have
been duly and validly authorized by all necessary corporate action on the
part of Classified and this Agreement constitutes a valid and legally
binding obligation of Classified enforceable according to its terms. The
execution and delivery of this Agreement, consummation of the transactions
contemplated by this Agreement and compliance by Classified with all the
provisions of this Agreement will not (i) violate any provision of the
terms of any applicable law, rule, or regulation of any governmental body
having jurisdiction; (ii) conflict with or result in a breach of any
provision of Classified's Articles of Incorporation or Bylaws or constitute
a default under any of the terms, conditions, or provisions of, or result
in the breach of, or accelerate or permit the acceleration of the
performance required by any note, bond, mortgage, indenture, license,
agreement, or other instrument or obligation of any nature whatsoever to
which Classified is a party; or (iii) violate any order, writ, injunction,
decree, statute, rule, or regulation applicable to Classified or any of its
property or assets.
Scope of Directories. Classified will not expand the white page coverage,
yellow page coverage or distribution area of the Souris River, Southeast
North Dakota or Durum Triangle directories beyond that of the last edition
of the Souris River, Southeast North Dakota or Durum Triangle directories
published by Fronteer, except, if any telecommunications carrier which is a
party to a written, valid, binding and enforceable Publication Agreement
with Classified as of the date of this Agreement purchases additional
exchanges, and a copy of the Publication Agreement with such carrier has
been delivered to XxXxxx on or before February 28, 1997, then, to the
limited extent of such purchase, the listings associated with the exchanges
so purchases may be added to the white pages and yellow pages of the Souris
River, Southeast North Dakota or Durum Triangle directory and the
subscribers associated with the exchanges so purchased may be added to the
distribution area of the same directory.
Employees of Other Parties. Classified will not hire, interview, solicit,
or attempt to interview or hire any individual employed in any capacity,
now or hereafter, by Fronteer or XxXxxx.
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13. ASSIGNMENT OF AGREEMENT AND RIGHTS
Fronteer will deliver an assignment to XxXxxx, in the form attached as
Exhibit "H," of the Publication Agreements with telecommunications carriers
described in Section 10 above and listed on Exhibit "F," accompanied by
fully executed consents to the assignment, in the form attached as Exhibit
"I," executed by no less than five of those seven telecommunications
carriers, including specifically those associated with the Bismarck/Mandan
Metro directory, no later than February 28, 1997. Fronteer will assign any
and all rights and privileges it may have in any non-compete agreements it
now has to the fullest extent such agreements apply to the distribution
area of any directories published by XxXxxx, including the XxXxxx Purchase
Directories. Fronteer will assign all its right, title and interest in the
intellectual property, proprietary information and trade secrets described
in Section 2 to XxXxxx at Closing, and XxXxxx hereby grants a limited
license to Fronteer to use such property and information to complete the
publication of the Directories in accordance with this Agreement and the
collection of receives generated by such publication. In the event the
conditions set out in this section are not satisfied, or are violated in
the sole opinion of XxXxxx, XxXxxx may declare this Agreement null and void
and shall be entitled to an immediate return of all amounts paid by it
pursuant to this Agreement.
14. EMPLOYEES AND INDEPENDENT CONTRACTORS
XxXxxx has the right to interview and hire all of the Fronteer sales force
identified on Exhibit "G" and plans and desires to do so. Fronteer will
assist XxXxxx in said interviewing and hiring. Payment of any amount under
this Agreement is contingent on XxXxxx hiring, no later than February 28,
1997, no less than seven of nine sales representatives and the sales
manager listed on Exhibit "G," under arrangements for the same to begin
employment with XxXxxx no later than seven days after the close of sales by
Fronteer in the Bismarck/Mandan Metro directory. XxXxxx will not, as a term
or condition of this Agreement, assume any of Fronteer's obligations with
respect to employment contracts or independent contractor contracts, if
any, and is not doing so by this Agreement. Classified will not, as a term
and condition of this Agreement, interview or hire any employees of
Fronteer. In the event the conditions set out in this section are not
satisfied, or are violated in the sole opinion of XxXxxx, XxXxxx may
declare this Agreement null and void and shall be entitled to an immediate
return of all amounts paid by it pursuant to this Agreement.
15. PUBLIC ANNOUNCEMENT
Except to the extent disclosure, filing, reporting or announcement of this
Agreement is required by law, including any rules or regulations of any
applicable governmental, regulatory or stock exchange agency or authority,
(i) no party shall make any public announcement of this Agreement or the
transactions contemplated hereby prior to March 1, 1997, and (ii) after
that date public announcement may be made only after notification the
content of such announcement has been approved by the other parties hereto,
which approval will not be unreasonably withheld.
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16. NON-COMPETE AGREEMENTS
In Favor of XxXxxx. In consideration of XxXxxx'x purchase of the XxXxxx
Purchase Directories, XxXxxx'x payment of cash consideration, XxXxxx'x
assignment of rights in and to the Souris River, Southeast North Dakota and
possibly Durum Triangle directories and XxXxxx'x execution of a Covenant
not to Compete and Confidentiality Agreement as described below, Scott,
Greff, Xxxxxxxx and Xxxxx each execute, jointly with execution by
Classified, a Covenant Not to Compete and Confidentiality Agreement at
Closing substantially in the form attached hereto as Exhibit "J," and
Fronteer and all other Directors, Officers and Shareholders listed on
Exhibit "D" will each execute a Covenant Not to Compete and Confidentiality
Agreement substantially in the form attached hereto as Exhibit "K."
Fronteer will assign to XxXxxx, in the form attached as Exhibit "H," any
and all non-competition agreements or covenants binding upon any of
Fronteer's sales representatives or sales managers to the fullest extent
such non-competition agreements apply to the current distribution areas of
any directories published by XxXxxx, including the directories purchased by
XxXxxx pursuant to this Agreement.
In Favor of Classified. In consideration of Classified's possible purchase
of the Durum Triangle directory and execution of a Covenant not to Compete
and Confidentiality Agreement, XxXxxx will execute at Closing a Covenant
not to Compete and Confidentiality Agreement in favor of Classified
substantially in the form attached as Exhibit "L."
17. INDEMNIFICATION OF XxXXXX
Fronteer hereby indemnifies and saves XxXxxx harmless from and against any
and all costs, liability, or expenses, including reasonable attorneys'
fees, arising out of (i) any breach of warranty, covenant, agreement, or
representation made by Fronteer; (ii) any nonfulfillment of any agreement,
conditions or covenants of Fronteer under this Agreement or any
misrepresentation in or omission from this Agreement or from any
certificates or other instrument furnished or to be furnished to XxXxxx;
and (iii) all actions, suits, proceedings, demands, assessments, judgments,
costs, and expenses incident to any of the foregoing.
Classified, Scott, Greff, Xxxxxxxx and Xxxxx, jointly and severally, hereby
indemnify and hold XxXxxx harmless from and against any and all costs,
liability, or expenses, including reasonable attorneys' fees, arising out
of (i) any breach of warranty, covenant, agreement, or representation made
by any of them; (ii) any nonfulfillment of any condition or covenant under
this Agreement, or any misrepresentation in or omission from this
Agreement, or any certificates or other instrument furnished or to be
furnished to XxXxxx, by any of them; (iii) any cause of action or expense
directly or indirectly related to Classified's sale, publication or
distribution of directories published by Classified; and (iv) all actions,
suits, proceedings, demands, assessments, judgments, costs, and expenses
incident to any of the foregoing.
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18. INDEMNIFICATION OF FRONTEER
XxXxxx hereby indemnifies and saves Fronteer harmless from and against any
and all costs, liability, or expenses, including reasonable attorneys'
fees, arising out of (i) any breach of warranty, covenant, agreement, or
representation made by XxXxxx; (ii) any nonfulfillment of any agreement,
condition or covenant of XxXxxx under this Agreement or any
misrepresentation in or omission from this Agreement or from any
certificates or other instrument furnished or to be furnished to Fronteer;
and (iii) all actions, suits, proceedings, demands, assessments, judgments,
costs, and expenses incident to any of the foregoing.
Classified, Scott, Greff, Xxxxxxxx and Xxxxx, jointly and severally, hereby
indemnify and hold Fronteer harmless from and against any and all costs,
liability, or expenses, including reasonable attorneys' fees, arising out
of (i) any breach of warranty, covenant, agreement, or representation made
by any of them; (ii) any nonfulfillment of any condition or covenant under
this Agreement, or any misrepresentation in or omission from this
Agreement, or any certificates or other instrument furnished or to be
furnished to Fronteer, by any of them; (iii) any cause of action or expense
directly or indirectly related to Classified's sale, publication or
distribution of directories published by Classified; and (iv) all actions,
suits, proceedings, demands, assessments, judgments, costs, and expenses
incident to any of the foregoing.
19. INDEMNIFICATION OF CLASSIFIED
XxXxxx hereby indemnifies and saves Classified harmless from and against
any and all costs, liability, or expenses, including reasonable attorneys'
fees, arising out of (i) any breach of warranty, covenant, agreement, or
representation made by XxXxxx; (ii) any nonfulfillment of any agreement,
condition or covenant of XxXxxx under this Agreement or any
misrepresentation in or omission from this Agreement or from any
certificates or other instrument furnished or to be furnished to
Classified; and (iii) all actions, suits, proceedings, demands,
assessments, judgments, costs, and expenses incident to any of the
foregoing.
20. CONFIDENTIAL INFORMATION
Definition. For purposes of this Section, "Confidential Information" means
any information or compilation of information not generally known, which is
proprietary to the business, and includes, without limitation, trade
secrets, inventions, and information pertaining to development, marketing,
sales, accounting, and licensing of the business products and services,
customer information contained in customer records, working papers or
correspondence files, all financial information contained in federal and
state tax returns, and the financial terms of this transaction. Information
shall be treated as Confidential Information irrespective of its source and
12
all information that is identified by Fronteer, XxXxxx or Classified as
being "confidential", "trade secret", or is identified or marked with any
similar reference, or any information that Fronteer, XxXxxx or Classified
should know is being treated by Fronteer, XxXxxx or Classified as
confidential, shall be presumed to be Confidential Information.
Covenants by Parties. XxXxxx, Classified, Scott, Greff, Xxxxxxxx, Xxxxx and
Fronteer agree and covenant with respect to all Confidential Information
received or learned by any of them as follows:
A. that they will treat as confidential all Confidential Information
made available to them or any of their employees, agents or
representatives;
B. that they will maintain the same in a secure place and limit access
to the Confidential Information to those employees, agents and
representatives to whom it is necessary to disclose the Confidential
Information in furtherance of the transactions contemplated by this
Agreement;
C. that they and their employees, agents and representatives will not
copy any Confidential Information (unless authorized), disclose any
Confidential Information to any unauthorized party, or use any Confidential
Information for any purpose other than the publication of the directories
purchased pursuant to this Agreement, including competition with the other
party or solicitation of the other party's customers; and
D. that each party will assume liability for any breach of this
paragraph by him or it, or any of its employees, agents or representatives.
21. PRODUCTION SERVICES
Following the Closing, XxXxxx will negotiate with Xxxxxx Xxxxxxxx at
Fronteer to finalize an white page production agreement between XxXxxx and
Fronteer for Fronteer to produce the white page listings of the
telecommunications carriers who have executed consents pursuant to Section
13 for a period of three years. The agreement will include the provisions
that only Xxxxxx X. Xxxxx or Xxxxxx Xxxxxxxx will have direct contact with
the telecommunications carriers, that the agreement is non-assignable and
non-delegable without prior written consent of all parties to that
agreement, and that the agreement can be canceled by XxXxxx in its sole
discretion in the event of a change in control in Fronteer to anyone other
than a group including Xxxxxx X. Xxxxx or Xxxxxx Xxxxxxxx. Fronteer may
also provide production services for Classified for production of the
Souris River, Southeast North Dakota and possibly Durum Triangle
directories to be published by Classified, limited as described in Section
12. Except as provided in this Section 20, Fronteer will no longer publish
the Directories.
13
22. INVESTIGATION CONDITION
XxXxxx'x obligations hereunder are expressly contingent upon XxXxxx'x
successful completion of its investigation of Fronteer's telephone
directory business, as set out in Section 8 above.
23. MISCELLANEOUS
Broker or Finder. The parties represent that no person is entitled to any
brokerage commission, finder's fee, or any other like payment in connection
with any transaction contemplated by this Agreement by reason of the action
of any party to this Agreement.
Severability. If any provision of this Agreement is held for any reason to
be unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall, nevertheless, remain in full force and effect.
Applicable Law. This Agreement shall be construed in accordance with the
laws of the State of Iowa. Venue for any action to enforce this Agreement
shall be in Iowa or in North Dakota, at the option of the party filing such
action.
Notices. Any notices or other communications required or permitted under
this Agreement shall be sufficiently given if sent by certified mail,
return receipt requested, postage prepaid, addressed as follows:
XxXxxx: McLeodUSA Publishing Company
P. O. Xxx 0000
Xxxxx Xxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxxxxxxxxx, President
Fronteer: Fronteer Financial Holdings, Ltd.
X.X.Xxx 0000
Xxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, President
Classified: Classified Directories, Inc.
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
14
Xxxxx: Xxxxx X. Xxxxx
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxx: Xxxxx Xxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxxx: Xxxxxxx X. Xxxxx
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxxxx: Xxxxx Xxxxxxxx
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Captions. The captions and Section numbers in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Signatures. The parties hereto expressly consent to the use of facsimile
signatures and agree that such facsimile signatures shall be binding as
originals. The parties hereto expressly consent to the use of multiple
counterparts each of which shall constitute and original and all of which
together will constitute one and the same instrument.
Survival. Each and every provision, representation and warranty of this
Agreement shall survive the execution and closing hereof and shall remain
binding on the parties hereto until all performance called for hereunder is
complete.
Binding Effect. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that no party hereto
may make any assignment of this Agreement or any interest herein without
the prior written consent of the other parties hereto. Assignments without
such consent shall be void.
Executed effective the date first written above.
McLEODUSA PUBLISHING COMPANY FRONTEER DIRECTORY COMPANY, LTD.
By:/s/Xxxxxx X. Xxxxxxxxxxxxxx By:/s/Xxxxxx X. Xxxxx
----------------------------------- -----------------------------
Xxxxxx X. Xxxxxxxxxxxxxx, President Xxxxxx X. Xxxxx, President
15
Executed the date first above written.
/s/Xxxxxx X. Xxxxx /s/Xxxxxx Xxxx
-------------------------------------- ---------------------------------
Xxxxxx X. Xxxxx Xxxxxx Xxxx
/s/Xxxxxx X. Xxxxxxxx /s/Xxxxx X. Xxxxxx
-------------------------------------- ---------------------------------
Xxxxxx X. Xxxxxxxx Xxxxx X. Xxxxxx
/s/Xxxxxx Xxxxxxxx /s/Xxxxx X. Xxxxx
-------------------------------------- ---------------------------------
Xxxxxx Xxxxxxxx Xxxxx X. Xxxxx
16
Executed the date first above written.
/s/Xxxxx Xxxxxxxx
--------------------------------
Xxxxx Xxxxxxxx
CLASSIFIED DIRECTORIES, INC.
By:/s/Xxxxx Xxxxx /s/Xxxxx X. Xxxxx
----------------------------------- ---------------------------------
Xxxxx Xxxxx, President Xxxxx X. Xxxxx
/s/Xxxxx Xxxxx /s/Xxxxxx X. Xxxxx
-------------------------------------- ---------------------------------
Xxxxx Xxxxx Xxxxxx X. Xxxxx
17
EXHIBIT "D"
Allocation of Consideration to Directors, Officers and Shareholders
Agreeing to Execute Covenants Not to Compete and Confidentiality Agreements
Name Percentage of Payment
---- ---------------------
Xxxxxx X. Xxxxx 31.25%
Xxxxxx Xxxxxxxx 21.25%
Xxxxxx Xxxx 17.50%
Xxxxx Xxxxx 10.00%
Xxxxx Xxxxx 6.25%
Xxxxx X. Xxxxxx 6.25%
Xxxxx Xxxxxxxx 2.50%
Xxxxxxx Xxxxx 2.50%
Xxxxxx "Xxxxx" Xxxxxxxx 2.50%
EXHIBIT "J"
Covenant not to Compete
and Confidentiality Agreement
McLeodUSA Publishing Company, an Iowa corporation, ("XxXxxx"), Fronteer
Financial Holdings, Ltd., a Colorado corporation, ("Fronteer"), Classified
Directories, Inc., a North Dakota corporation, ("Classified"), Xxxxx X. Xxxxx
("Xxxxx"), Xxxxx Xxxxx ("Xxxxx"), Xxxxx Xxxxxxxx ("Xxxxxxxx"), Xxxxxxx X. Xxxxx
("Xxxxx") and certain Directors, Officers and Shareholders of Fronteer have
entered into a Sale and Purchase Agreement dated January 27, 1997 ("the
Agreement") which provides for the execution of this Covenant not to Compete and
Confidentiality Agreement.
In fulfillment of the terms of the Agreement, ________________________ and
Classified, jointly and severally, (referred to hereafter as "the undersigned,"
meaning any one, some or all of them) enter into this agreement with XxXxxx, as
follows:
1. For a period of three (3) years from the date hereof, the undersigned shall
not directly or indirectly, as a shareholder, proprietor, partner,
consultant, employee, agent, officer, director, associate, lender, investor
or in any other capacity, engage in the telephone directory business in
competition with XxXxxx, nor shall the undersigned invest in, lend money
to, guarantee loans of, make gifts to, advise or by any other means assist
or contract with any other person or entity in the telephone directory
business or to so compete with XxXxxx, within the distribution area of any
directory published by XxXxxx, including those being purchased by XxXxxx
from Fronteer pursuant to the Agreement, except to the extent the parties
recognize that competition currently exists within the geographic
boundaries of the Jamestown, the Valley City and the Southeast North Dakota
directories and the western-most portion of the Fargo directory, and agree
that such competition will continue in the future. "Competition" or
"compete" does not include the sale of advertising in a directory published
and distributed by the undersigned outside the distribution areas of XxXxxx
directories to advertisers within said distribution areas (also known as
foreign advertising), so long as directories are not published or
distributed by the undersigned within said distribution areas of XxXxxx'x
directories.
2. The undersigned will not disclose any Confidential Information to others
outside XxXxxx or use same for any unauthorized purposes without written
approval from an officer of XxXxxx. "Confidential Information" means any
information or compilation of information not generally known, that is
proprietary to the business of XxXxxx or Fronteer or related to XxXxxx'x
publication of any directory which is a subject of the Agreement, and
includes, without limitation, trade secrets, inventions, information
pertaining to development, marketing, sales, accounting, and licensing of
the business products and services, customer lists and contracts, customer
information contained in or related to customer records, papers,
correspondence or files and all financial information contained in federal
and state tax returns. Confidential Information does not include
information that is independently developed or received from a third party
unrelated to XxXxxx or Fronteer. In addition, the undersigned shall not be
in default under this agreement if the undersigned's disclosure of
Confidential Information is pursuant to a subpoena or other court order.
3. The parties acknowledge and agree that customer lists and contracts,
customer information and customer trust and good will are the primary
assets of XxXxxx, are the primary assets previously purchased by XxXxxx
from Fronteer and are the primary assets being purchased pursuant to the
Agreement. The parties desire and agree to protect these interests, assets
and information in order to maintain the adequacy of the consideration for
the Agreement, for this agreement and for the payments made by XxXxxx
pursuant to the Agreement.
4 The undersigned acknowledges that (i) XxXxxx is paying substantial and
valuable consideration for this agreement, (ii) the undersigned will
directly benefit from the transactions contemplated by the Agreement and
the terms of the Agreement, described above, (iii) Xxxxx, Xxxxxxxx and
Xxxxx, as shareholders of Fronteer, will benefit directly and financially
from the Agreement, (iv) that Scott, Greff, Xxxxxxxx and Xxxxx, as the
principals of Classified, will benefit directly from the terms of the
Agreement, (v) that the terms of this agreement are reasonable and
necessary to protect the legitimate interests of XxXxxx and (vi)
competition by the undersigned as herein prohibited would cause substantial
loss and expense, irreparable damage and harm to XxXxxx, its assignees or
successors, which cannot be fully compensated by monetary award.
5. The parties agree that in the event the provisions of this agreement should
ever be adjudicated to exceed the time or geographic limitations permitted
by law, then such provisions shall be deemed reformed by the parties to
this agreement pursuant to this sentence to the maximum time and geographic
limitation allowed by law.
6. The undersigned agree that upon a violation of this agreement, XxXxxx or an
assignee or successor in interest to it, shall have the following rights,
which are cumulative, separate causes of action that may be asserted
against the undersigned, jointly and severally. XxXxxx, its successors or
assigns, in the event of violation by the undersigned of this agreement,
may:
6.1. Commence an action to secure an injunction to enjoin the undersigned
from violating this agreement;
6.2. Commence an action to require the undersigned to specifically perform
this agreement;
6.3. Commence an action to secure a judgment for monetary damages for
violation of this agreement, including, if applicable, punitive
damages; or
2
6.4. Commence an action to assert any and all of the rights that XxXxxx, or
its successor or assign, may have against the undersigned at such time
because of any breach of this agreement.
6.5. In addition, XxXxxx, its successor or assignee, may secure reasonable
attorney's fees and costs incurred as a result of judgment, order or
injunction being rendered against the undersigned.
7. No delay or omission by XxXxxx in exercising any right under this agreement
shall operate as a waiver of that or any other right. A waiver or consent
given by XxXxxx on any one occasion shall be effective only in that
instance and shall not be construed as a bar or waiver of any right on any
other occasion. In case any provision of this agreement shall be invalid,
illegal, or otherwise unenforceable, the parties shall negotiate in good
faith with respect to a substitute provision, such unenforceable provision
will be deemed severable and all remaining provisions will remain in full
force and effect.
8. The parties hereto expressly consent to the use of multiple counterparts
each of which shall constitute an original and all of which together will
constitute one and the same instrument.
9. This agreement shall be governed by and construed in accordance of the laws
of the State of Iowa.
Dated: January 27, 1997
McLeodUSA Publishing Company Classified Directories, Inc.
By: By:
---------------------------------- ----------------------------
-------------------------------------
name
3
EXHIBIT "K"
Covenant not to Compete
and Confidentiality Agreement
McLeodUSA Publishing Company, an Iowa corporation, ("XxXxxx"), Fronteer
Financial Holdings, Ltd., a Colorado corporation, ("Fronteer"), Classified
Directories, Inc., a North Dakota corporation, ("Classified"), Xxxxx X. Xxxxx
("Xxxxx"), Xxxxx Xxxxx ("Xxxxx"), Xxxxx Xxxxxxxx ("Xxxxxxxx"), Xxxxxxx X. Xxxxx
("Xxxxx") and certain Directors, Officers and Shareholders of Fronteer have
entered into a Sale and Purchase Agreement dated January 27, 1997 ("the
Agreement") which provides for the execution of this Covenant not to Compete and
Confidentiality Agreement.
In fulfillment of the terms of the Agreement, ______________________________
enters into this agreement with XxXxxx, as follows:
1. For a period of fifteen (15) years from the date hereof, the undersigned
shall not directly or indirectly, as a shareholder, proprietor, partner,
consultant, employee, agent, officer, director, associate, lender, investor
or in any other capacity, engage in the telephone directory business in
competition with XxXxxx, nor shall the undersigned invest in, lend money
to, guarantee loans of, make gifts to, advise or by any other means assist
or contract with any other person or entity in the telephone directory
business or to so compete with XxXxxx, within the distribution area of any
directory published by XxXxxx, including those being purchased by XxXxxx
from Fronteer pursuant to the Agreement. "Competition" or "compete" does
not include production services for the Souris River, Southeast North
Dakota or Durum Triangle directories, specifically limited in scope to the
white page coverage, yellow page coverage and distribution area of the last
edition of those directories published by Fronteer, except, if any
telecommunications carrier which is a party to a written, valid, binding
and enforceable Publication Agreement with Classified as of the date of the
Agreement purchases additional exchanges, and a copy of the Publication
Agreement with such carrier has been delivered to XxXxxx on or before
February 28, 1997, then, to the limited extent of such purchase, the
listings associated with the exchanges so purchased may be added to the
white pages and yellow pages of the Souris River, Southeast North Dakota or
Durum Triangle directory and the subscribers associated with the exchanges
so purchased may be added to the distribution area of the same directory.
The above restriction notwithstanding, Fronteer shall also have the limited
right to contract for directory production service as a third party
independent vendor for telephone directory publishers other than Classified
and may conduct CMR business limited to "A" advertising accounts only, as
those accounts are defined by the Yellow Pages Publishers Association.
1
2. The undersigned will not disclose any Confidential Information to others
outside XxXxxx or use same for any unauthorized purposes without written
approval from an officer of XxXxxx. "Confidential Information" means any
information or compilation of information not generally known, that is
proprietary to the business of XxXxxx or related to XxXxxx'x publication of
any directory which is a subject of the Agreement, and includes, without
limitation, trade secrets, inventions, information pertaining to
development, marketing, sales, accounting, and licensing of the business
products and services, customer lists and contracts, customer information
contained in or related to customer records, papers, correspondence or
files and all financial information contained in federal and state tax
returns. Confidential Information does not include information that is
independently developed or received from a third party unrelated to XxXxxx
or Fronteer. In addition, the undersigned shall not be in default under
this agreement if the undersigned's disclosure of Confidential Information
is pursuant to a subpoena or other court order.
3. The parties acknowledge and agree that customer lists and contracts,
customer information and customer trust and good will are the primary
assets of XxXxxx, are the primary assets previously purchased by XxXxxx
from Fronteer and are the primary assets being purchased pursuant to the
Agreement. The parties desire and agree to protect these interests, assets
and information in order to maintain the adequacy of the consideration for
the Agreement, for this agreement and for the payments made by XxXxxx
pursuant to the Agreement.
4. The undersigned acknowledges that (i) XxXxxx is paying substantial and
valuable consideration for this agreement, (ii) the undersigned will
directly benefit from the transactions contemplated by the Agreement and
the terms of the Agreement, described above, (iii) XxXxxx has paid Fronteer
a substantial sum of money for directories, (iv) ______________________, as
a director and/or shareholder of Fronteer, will benefit directly and
financially from the Agreement, (v) that the terms of this agreement are
reasonable and necessary to protect the legitimate interests of XxXxxx and
(vi) competition by the undersigned as herein prohibited would cause
substantial loss and expense, irreparable damage and harm to XxXxxx, its
assignees or successors, which cannot be fully compensated by monetary
award.
5. The parties agree that in the event the provisions of this agreement should
ever be adjudicated to exceed the time or geographic limitations permitted
by law, then such provisions shall be deemed reformed by the parties to
this agreement pursuant to this sentence to the maximum time and geographic
limitation allowed by law.
6. The undersigned agree that upon a violation of this agreement, XxXxxx or an
assignee or successor in interest to it, shall have the following rights,
which are cumulative, separate causes of action that may be asserted
against the undersigned, jointly and severally. XxXxxx, its successors or
assigns, in the event of violation by the undersigned of this agreement,
may:
2
6.1. Commence an action to secure an injunction to enjoin the undersigned
from violating this agreement;
6.2. Commence an action to require the undersigned to specifically perform
this agreement;
6.3. Commence an action to secure a judgment for monetary damages for
violation of this agreement, including, if applicable, punitive
damages; or
6.4. Commence an action to assert any and all of the rights that XxXxxx, or
its successor or assign, may have against the undersigned at such time
because of any breach of this agreement.
6.5. In addition, XxXxxx, its successor or assignee, may secure reasonable
attorney's fees and costs incurred as a result of judgment, order or
injunction being rendered against the undersigned.
7. No delay or omission by XxXxxx in exercising any right under this agreement
shall operate as a waiver of that or any other right. A waiver or consent
given by XxXxxx on any one occasion shall be effective only in that
instance and shall not be construed as a bar or waiver of any right on any
other occasion. In case any provision of this agreement shall be invalid,
illegal, or otherwise unenforceable, the parties shall negotiate in good
faith with respect to a substitute provision, such unenforceable provision
will be deemed severable and all remaining provisions will remain in full
force and effect.
8. This agreement shall be governed by and construed in accordance of the laws
of the State of Iowa.
Dated: January 27, 1997
McLeodUSA Publishing Company
By:
------------------------------------ -----------------------------------
name
3
