EXHIBIT 10.3
SMARTPAGES RESELLER AGREEMENT
THIS SMARTPAGES RESELLER AGREEMENT, dated as of this 1st day of
September, 2004 (this "Agreement"), is made and entered into by and among SBC
Communications, Inc., a Delaware corporation, Southwestern Xxxx Yellow Pages,
Inc., a Missouri corporation ("Southwestern Xxxx, Inc."), SBC Knowledge
Ventures, L.P., a Nevada limited partnership, X. X. Xxxxxxxxx Corporation, a
Delaware corporation, X.X. Xxxxxxxxx Publishing & Advertising of Illinois
Partnership (f/k/a The APIL Partners Partnership), an Illinois general
partnership, and DonTech II Partnership, an Illinois general partnership.
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Directory Services License Agreement, dated as of the
date hereof (the "Directory Services License Agreement"), by and among RHD, APIL
Partners, DonTech II, Ameritech, SBC Directory Operations and SBC Knowledge
Ventures.
In this Agreement, RHD and Publisher, on the one hand, and SBC,
Southwestern Xxxx and SBC Knowledge Ventures, on the other hand, are sometimes
referred to individually as a "Party" and collectively as the "Parties".
RECITALS:
A. On the date of this Agreement, RHD, or one of its wholly owned
Subsidiaries, is acquiring (i) from API, 1% of the outstanding partnership
interests in APIL Partners and (ii) from API's wholly owned subsidiary APIL, (a)
99% of the outstanding partnership interests in APIL Partners, (b) 47% of the
outstanding partnership interests in DonTech I, and (c) 50% of the outstanding
partnership interests in DonTech II, pursuant to the Purchase Agreement.
B. Southwestern Xxxx currently owns and operates an Existing IYP
Directory using the domain name "XXXXXxxxxx.xxx" (as of any determination date,
such Existing IYP Directory or any successor product which has become, as of
such determination date, the principal electronic directional advertising
product or service sold by Southwestern Xxxx outside the Territory is referred
to herein as "SMARTpages").
C. Southwestern Xxxx desires to grant Publisher, and Publisher
desires to obtain from Southwestern Xxxx, the exclusive right to sell Local IYP
Advertising (as defined in the Non-Competition Agreement) and the non-exclusive
right to sell National IYP Advertising (as defined in the Non-Competition
Agreement) for inclusion in SMARTpages to any Person physically located in the
Territory, in each case on the terms and conditions set forth in this Agreement
and the other Commercial Agreements.
D. The Purchase Agreement provides that the Parties will enter
into this Agreement as a condition to the closing of the transactions
contemplated by the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements set forth in this
Agreement and the other Commercial Agreements and the consummation of the
transactions contemplated by the Purchase Agreement and the other Commercial
Agreements, the Parties agree as follows:
1. GRANT OF RIGHTS. Subject to the terms and conditions of this
Agreement, Southwestern Xxxx hereby grants Publisher the exclusive right to sell
Local IYP Advertising and the non-exclusive right to sell National IYP
Advertising to any Person physically located in the Territory (an "Advertiser")
for inclusion in SMARTpages; provided, however, Publisher will not have the
right to sell any advertising for inclusion in SMARTpages to, or through a
certified marketing representative (a "CMR") for the account of, any Advertiser
that qualifies to place National (as defined in the Non-Competition Agreement)
white or yellow pages advertising under the current YPIMA (as defined in the
Non-Competition Agreement) minimum standards. Without limiting the foregoing,
Publisher will be permitted to determine the pricing for all Basic Listings and
Premium Products, in its sole discretion, except that Publisher will price
Premium Products (other than Local Premium Products) generally at rate card
rates, and, subject to compliance with Section 2 in the case of Basic Listings
and Section 3 in the case of Premium Products, will be entitled to all revenue
from the sale of such advertising.
2. BASIC LISTINGS.
(a) During each year of the Term (as hereinafter
defined), Southwestern Xxxx will include on SMARTpages an unlimited number of
Basic Listings sold by Publisher, and Publisher will pay Southwestern Xxxx the
following monthly amounts, which shall be payable in installments monthly in
arrears:
Months of the Term Monthly Payment
------------------ ---------------
Months 1 through 6 $ 0
Months 7 through 12 $ 83,333
Months 13 through 18 $233,333
Months 19 through 24 $250,000
Months 25 through 36 $291,667
Months 37 through 48 $333,333
Months 49 through 60 and thereafter $375,000
For purposes of this Agreement, "Basic Listings" means basic
local enhanced listings for inclusion in SMARTpages, which listings (i) are
accessible by users of SMARTpages searching listings within the Territory or any
smaller geographic area constituting a part thereof (e.g., local, regional or
Illinois statewide), and Publisher may make available to Advertisers that
purchase Basic Listings all such geographic areas then available on SMARTpages,
(ii) appear sorted in alphabetical order among the basic local
-2-
enhanced listing tier within the "featured businesses" or other substantially
comparable section of SMARTpages, (iii) will include, and Publisher may select
with respect to any Advertiser, any of the following information relating to an
Advertiser: (A) the business name, address and telephone number, (B) the brands
offered, (C) hours of operation, (D) payment options, (E) Internet links to a
website, (F) Internet links to a SMARTpages web page, (G) Internet links to maps
and driving directions and (H) Internet links to a customer's print ad;
provided, however, in the case of Internet links to certain websites or web
pages as specified in clauses (E), (F) and (H), Southwestern Xxxx will not be
responsible for providing the content for such websites or web pages, and (iv)
any other content or features which SMARTpages may from time to time decide in
its sole discretion to include in Basic Listings.
(b) Southwestern Xxxx will place each Advertiser's Basic
Listings under any headings that Publisher may select among all headings then
available on SMARTpages (each, an "Existing Heading").
(c) If any Advertiser purchases Basic Listings directly
from SMARTpages through self-fulfillment, Southwestern Xxxx will notify
Publisher of such purchase and remit to Publisher any amounts received by
Southwestern Xxxx from such sale within 30 days of receipt, after which
Publisher shall be responsible for servicing such Advertiser with respect to
such advertising. The foregoing shall not apply to any purchase of Premium
Products (as defined below) through self-fulfillment.
(d) During the Non-Compete Term (as hereinafter defined),
Publisher will provide to Southwestern Xxxx free of charge all published
non-listing information relating to Advertisers which (i) is consistent with
what is then considered a Basic Listing, (ii) has been sold from time to time by
Publisher for any Existing IYP Directory or Future Electronic Directory and
(iii) is usable by Southwestern Xxxx on any of its Existing IYP Directories or
Future Electronic Directories (but subject to third party rights, which
Publisher will use its commercially reasonable efforts to assist Southwestern
Xxxx in obtaining) (collectively, the "Publisher Provided Information").
Southwestern Xxxx and Publisher will cooperate in good faith to agree upon the
format in which such published information will be delivered to Southwestern
Xxxx. During the Non-Compete Term, Southwestern Xxxx will include the Publisher
Provided Information in SMARTpages as a Basic Listing for which Publisher will
pay the monthly amounts specified in Section 2(a) above.
(e) On the date of this Agreement, Southwestern Xxxx will
transfer to Publisher all rights it has to receive any payments from the sale of
advertising in the Territory by Southwestern Xxxx for inclusion in SMARTpages
prior to such date which have not been invoiced prior to the date of this
Agreement, and Publisher will remit to Southwestern Xxxx an amount equal to 50%
of the then current published rate card rate for any such advertising within 30
days of receipt.
-3-
3. PREMIUM PRODUCTS.
(a) If Publisher sells any advertising product or service
included in SMARTpages other than Basic Listings (each, a "Premium Product"),
then Publisher will pay to Southwestern Xxxx the lesser of (i) 50% of the
then-current published rate card rate for such Premium Product and (ii) the
price then available for such Premium Product on a most-favored-customer basis
for similarly situated customers that are purchasing equivalent volumes and
types of advertising (the "Premium Product Rate"). Premium Products may include,
but are not limited to: (x) any improved placement product, service or
functionality offered on SMARTpages, whether or not such product, service or
functionality exists as of the date of this Agreement, including "Look Here
First", premium banner and trademark premium banner, trademark banner, single
banner or double banner, enhanced placement listing and enhanced placement
listings with logo products (each, an "Improved Placement Product"), which in
each case will include click-to-call functionality, (y) any headings other than
Existing Headings and (z) any advertising product or service accessible by users
of SMARTpages searching listings outside the Territory. With respect to any
Improved Placement Product sold by Publisher which it provides to Southwestern
Xxxx in a "production ready" format, the Parties will negotiate in good faith an
appropriate reduction in the price relative to the Premium Product Rate for such
Improved Placement Product.
(b) If any Advertiser purchases Premium Products that are
accessible solely by users of SMARTpages searching listings within the Territory
(each, a "Local Premium Product") directly from SMARTpages through
self-fulfillment, Southwestern Xxxx will notify Publisher of such purchase and
remit to Publisher any amounts received by Southwestern Xxxx from such sale
within 30 days of receipt, after which (i) Publisher (x) will pay Southwestern
Xxxx the Premium Product Rate for such purchase and (y) shall be responsible for
servicing such Advertiser with respect to such advertising and (ii) such Local
Premium Products will be deemed to be sold by Publisher in accordance with
Section 3(a) above.
4. NATIONAL SALES. Publisher will refer to Southwestern Xxxx all
sales of advertising to, or through a CMR for the account of, any Advertiser
that qualifies to place National advertising under the current YPIMA minimum
standards. Within 30 days following the end of each year of the Term,
Southwestern Xxxx will pay to Publisher an aggregate amount equal to 3.0% of
Southwestern Xxxx'x gross revenues during the most recent prior year from the
sale of advertising on SMARTpages through CMRs (the "Revenue Share"). Upon
Publisher's request, Southwestern Xxxx will provide Publisher or its
representatives with reasonable access once a year to the books and records and
other documents of Southwestern Xxxx that Publisher may reasonably request
concerning the calculation of the Revenue Share for the prior year.
5. OTHER DIRECTORIES. RHD and its Subsidiaries may resell or
enter into any other relationship to sell or benefit from the sale of
advertising for inclusion in any other Existing IYP Directory or Future
Electronic Directory, other than in the Territory with respect to any Existing
IYP Product or Future Electronic Directory owned or operated by
-4-
Verizon Communications Inc. or any of its Affiliates (each, a "Prohibited IYP
Directory") unless at such time Southwestern Xxxx also sells any advertising for
inclusion in such Prohibited IYP Directory.
6. PUBLISHER OBLIGATIONS.
(a) Standards. Publisher will comply with all advertising
standards and guidelines for SMARTpages advertising that Southwestern Xxxx may
issue from time to time and provide to Publisher (as modified in accordance with
the next sentence, the "IYP Advertising Policies"). Southwestern Xxxx may, in
its sole discretion, change the IYP Advertising Policies. Southwestern Xxxx will
notify Publisher promptly of any such change a reasonable period before it
becomes effective. Southwestern Xxxx will not be obligated to accept from
Publisher, and may at any time remove from SMARTpages, any advertising sold by
Publisher that Southwestern Xxxx reasonably determines does not comply with the
IYP Advertising Policies.
(b) Customization. Publisher may request programming
changes for SMARTpages and will be responsible for all costs and expenses
incurred by Southwestern Xxxx to implement such changes if such changes are
implemented only with respect to the Territory; provided, however, prior to
incurring any such costs and expenses, Southwestern Xxxx will provide Publisher
with an estimate thereof and will not commence any such programming changes
without Publisher's prior approval of such estimate; and provided, further, that
this Section 6(b) will not obligate Southwestern Xxxx to agree to implement any
such changes.
7. NON-COMPETITION. During the Non-Compete Term, neither SBC nor
any of its Subsidiaries will sell any Local IYP Advertising for any Existing IYP
Directory or Future Electronic Directory. For purposes of this Agreement,
"Non-Compete Term" means the period commencing on the date of this Agreement and
ending on the later of (i) the fifth anniversary of the date of this Agreement
and (ii) the 18-month anniversary of the date on which Publisher terminates this
Agreement pursuant to Section 8 below.
8. CONSORTIUM PRODUCT. If Southwestern Xxxx enters into a
strategic arrangement with one or more third parties regarding a successor
product to SMARTpages (a "Consortium Product"), Southwestern Xxxx will use
commercially reasonable efforts to secure for Publisher the right to sell
advertising to Advertisers for such Consortium Product under the same terms and
conditions as this Agreement. If despite such efforts Southwestern Xxxx is
unable to secure such right on or prior to the date on which the Consortium
Product is first generally made available to the public, then on or before such
date Southwestern Xxxx will propose amendments to this Agreement as required to
be compatible with such strategic arrangement; provided, that Southwestern Xxxx
may not amend the annual rates for Basic Listings set forth in Section 2 of this
Agreement or clause (ii) of the definition of Premium Product Rate and will
negotiate with Publisher in good faith any amendments to the fees for Premium
Products included in clause (i) of the definition of Premium Product Rate (a
"Successor Proposal"). Within 30 days of receiving a Successor Proposal,
Publisher may, in its sole discretion, (i) accept
-5-
the Successor Proposal and enter into a new IYP Reseller Agreement on the terms
and conditions of the Successor Proposal or (ii) terminate this Agreement
without any further obligation or liability except as provided in Sections 2(a)
and 2(d) of this Agreement.
9. TERM. The term of this Agreement shall commence on the date of
this Agreement and will continue for a term of five years (the "Term");
provided, however, this Agreement will terminate immediately and without any
further action when (i) the Directory Services License Agreement expires in
accordance with its terms, is terminated by or on behalf of Southwestern Xxxx in
accordance with its terms or is terminated by or on behalf of Publisher in
accordance with its terms or otherwise or (ii) Publisher terminates this
Agreement pursuant to Section 8 above, and provided, further, that if this
Agreement terminates pursuant to Section 8 above, then Sections 2(a), 2(d) and 7
of this Agreement will survive during the Non-Compete Term. Unless earlier
terminated, the Parties agree to negotiate in good faith to extend the term of
this Agreement; provided, however, that neither Party will be obligated to agree
to any such extension of the Term.
10. SMARTPAGES XXXX.
(a) Subject to the terms and conditions of this
Agreement, each of Southwestern Xxxx and SBC Knowledge Ventures (each, an "IYP
Licensor") hereby grants to Publisher a non-transferable (except as provided in
Section 12), non-exclusive right to use for the Term the xxxx "SMARTpages" (the
"SMARTpages Xxxx") on sales collateral, contracts, invoices, customer
correspondences and advertising and promotional materials solely in connection
with soliciting and selling advertising to Advertisers for inclusion in
SMARTpages as permitted by this Agreement and oral communications with respect
thereto.
(b) Publisher will comply with all standards for usage of
the SMARTpages Xxxx, as issued from time to time by an IYP Licensor to Publisher
(the "Usage Standards"), provided, that such IYP Licensor will notify Publisher
of any such Usage Standards a reasonable period before they become effective.
During the Term, any IYP Licensor may request from time to time, and Publisher
agrees to provide, access to or samples of Publisher's public usage of the
SMARTpages Xxxx to ensure Publisher's compliance with the Usage Standards.
Immediately upon termination of this Agreement, Publisher will cease displaying
and using the SMARTpages Xxxx on any materials and destroy or turn over to IYP
Licensors any materials using the SMARTpages Xxxx; provided, however, that
Publisher may retain copies of materials containing the SMARTpages Xxxx for
archival purposes.
(c) Publisher shall not use the SMARTpages Xxxx or the
name "SMARTpages" in its corporate or business name, nor allow its Affiliates to
use the SMARTpages Xxxx or the name "SMARTpages" in their respective corporate
or business names, except that any use of the SMARTpages Xxxx by Publisher in
accordance with Section 10(a) above will not violate this Section 10(c). IYP
Licensors reserve all rights in and to the SMARTpages Xxxx not otherwise
expressly granted to Publisher under Section 10(a),
-6-
(d) Publisher shall promptly notify IYP Licensors of any
infringement of the SMARTpages Xxxx that comes to its attention. Publisher shall
cooperate with IYP Licensors to take such actions as IYP Licensors in their sole
discretion may consider necessary to protect the SMARTpages Xxxx with all
expenses being borne by IYP Licensors.
(e) Each IYP Licensor represents and warrants that it has
the power and authority to enter into this Agreement and grant the rights it is
granting under this Agreement.
11. INDEMNIFICATION.
(a) Publisher Indemnity. Publisher will defend, hold
harmless and indemnify Southwestern Xxxx and each of its Affiliates, officers,
directors, shareholders, employees, contractors, agents and representatives from
and against any and all Losses and Expenses arising out of, resulting from or
based upon any pending or threatened claim, action, proceeding or suit by any
third party, whether based on contract, tort or otherwise, arising out of or in
connection with (i) any breach of this Agreement by RHD or Publisher, (ii) the
use of the SMARTpages Xxxx by Publisher in violation of this Agreement, (iii)
any advertising for inclusion in SMARTpages provided by Publisher to
Southwestern Xxxx pursuant to this Agreement and (iv) any published non-listing
information for Existing IYP Directories or Future Electronic Directories
provided to any SBC Entity by any RHD Entity (other than any such information
which no RHD Entity had any role in creating, in which case the applicable RHD
Entity will assign any indemnification rights such RHD Entity may have with
respect to such information) pursuant to Section 2(d) of this Agreement.
(b) Southwestern Xxxx Indemnity. Southwestern Xxxx will
defend, hold harmless and indemnify Publisher and each of its Affiliates,
officers, directors, shareholders, employees, contractors, agents and
representatives from and against any and all Losses and Expenses arising out of,
resulting from or based upon any pending or threatened claim, action, proceeding
or suit by any third party, whether based on contract, tort or otherwise,
arising out of or in connection with (i) any breach of this Agreement by SBC or
Southwestern Xxxx or (ii) the use of the SMARTpages Xxxx by Publisher in
accordance with the terms of this Agreement.
(c) Procedure. Promptly after receipt by the indemnified
party of notice by a third party of a claim or of the commencement of any action
or proceeding with respect to which such indemnified party may be entitled to
receive payment from the other party for any Losses or Expenses, such
indemnified party will notify the indemnifying party of the notice of such claim
or of the commencement of such action or proceeding; provided, however, that the
failure to so notify the indemnifying party will relieve the indemnifying party
from liability under this Agreement with respect to such claim, action or
proceeding only if, and only to the extent that, such failure to notify the
indemnifying party results in the forfeiture by the indemnifying party of rights
and defenses otherwise available to the indemnifying party with respect to such
claim, action
-7-
or proceeding. The indemnifying party will have the right, upon written notice
delivered to the indemnified party, to assume the defense of such claim, action
or proceeding, including the employment of counsel reasonably satisfactory to
the indemnified party and the payment of the fees and disbursements of such
counsel. In any claim, action or proceeding with respect to which
indemnification is being sought hereunder, the indemnified party or the
indemnifying party, whichever is not assuming the defense of such action, will
have the right to participate in such matter and to retain its own counsel at
such party's own expense. The indemnifying party or the indemnified party, as
the case may be, will at all times use reasonable efforts to keep the
indemnifying party or the indemnified party, as the case may be, reasonably
apprised of the status of the defense of any action the defense of which they
are maintaining and to cooperate in good faith with each other with respect to
the defense of any such action. If the indemnifying party has assumed the
defense of a claim, action or proceeding, no indemnified party may settle or
compromise such matter or consent to the entry of any judgment with respect to
such matter without the prior written consent of the indemnifying party. An
indemnifying party may not, without the prior written consent of the indemnified
party, settle or compromise any claim or consent to the entry of any judgment
with respect to which indemnification is being sought hereunder unless (i)
simultaneously with the effectiveness of such settlement, compromise or consent,
the indemnifying party pays in full any obligation imposed on the indemnified
party by such settlement, compromise or consent (ii) such settlement, compromise
or consent contains a complete release of the indemnified party and its
Affiliates and their respective directors, officers and employees and (iii) such
settlement, compromise or consent does not contain any equitable order, judgment
or term which in any manner affects, restrains or interferes with the business
of the indemnified party or any of the indemnified party's Affiliates. In the
event an indemnified party will claim a right to payment pursuant to this
Agreement not involving a third party claim covered by this Section 11, such
indemnified party will send written notice of such claim to the appropriate
indemnifying party. Such notice will specify the basis for such claim.
12. BINDING EFFECT; ASSIGNMENT. This Agreement will be binding on
and inure to the benefit of the Parties, and their respective successors and
permitted assigns. Except as provided in Section 10.1 of the Directory Services
License Agreement, no Party may assign all or any of its rights or obligations
under this Agreement without the prior written consent of the other Party,
except that any Party may assign all of its rights and obligations under this
Agreement (a) in connection with a sale of all or substantially all of its
assets or by merger or consolidation if the purchaser assumes in writing all of
the assigning Party's rights and obligations under this Agreement in a form
reasonably acceptable to the other Party, and (b) to any of its Affiliates; or
(ii) any lender or other party as collateral in connection with any financing,
provided, that no such assignment permitted by this clause (b) will relieve such
Party of any of its obligations under this Agreement.
13. NOTICES. Any notice required or permitted under this Agreement
will be given in accordance with the notice provisions of the Directory Services
License Agreement.
-8-
14. REMEDIES. The Parties agree that all disputes or controversies
arising out of or relating to this Agreement shall be resolved using the
procedures set forth in the Directory Services License Agreement, including
Sections 18.1, 18.4 and 18.6, which are incorporated herein by this reference.
15. GOVERNING LAW; FORUM SELECTION. This Agreement shall be
governed, construed and enforced in accordance with the laws of the State of New
York without reference to the conflict of laws principles thereof. Each Party
irrevocably submits to the jurisdiction of the Federal and state courts in the
Borough of Manhattan, The City of New York for the resolution of any and all
disputes relating to this Agreement and waives any and all objections it might
otherwise have to such jurisdiction and venue.
16. AMENDMENT; WAIVER. No amendments, deletions, additions or
other modifications to this Agreement will be binding unless evidenced in
writing and signed by an officer of each of the respective Parties hereto. No
waiver of any provision of this Agreement, and no consent to any default under
this Agreement, will be effective unless the same is in writing and signed by an
officer of the Party against whom such waiver or consent is claimed. In
addition, no course of dealing or failure of a Party strictly to enforce any
term, right or condition of this Agreement will be construed as a waiver of such
term, right or condition. Waiver by either Party of any default by the other
Party will not be deemed a waiver of any subsequent or other default.
17. RELATIONSHIP. Nothing contained in this Agreement shall be
construed to create the relationship of employer and employee between the
Parties, franchiser - franchisee, or to make the Parties partners, joint
venturer or co-employer of the other, or result in joint service offerings to
their respective customers. The relationship between the Parties is that of an
independent contractor. Each Party will be solely responsible for such Party's
employees, including compliance with all employment laws, regulations, and rules
and payment of wages, benefits and employment taxes such as Social Security,
unemployment, workers compensation and federal and state withholding with
respect to such employees.
18. HEADINGS. The headings and numbering of sections and
paragraphs in this Agreement are for convenience only and will not be construed
to define or limit any of the terms in this Agreement or affect the meaning or
interpretation of this Agreement.
19. SURVIVAL. Any liabilities or obligations of a Party for acts
or omissions occurring prior to the cancellation or termination of this
Agreement and any obligations of a Party under any other provisions of this
Agreement which, by their express terms, are contemplated to survive (or be
performed after) termination of this Agreement (subject to any time limitations
specified therein) will survive the cancellation or termination of this
Agreement.
20. ENTIRE AGREEMENT. The Commercial Agreements constitute the
entire understanding and agreement of the Parties concerning the subject matter
of this Agreement and the other Commercial Agreements, and supersede any prior
agreements,
-9-
representations, statements, understandings, proposals, undertakings or
negotiations, whether written or oral, with respect to the subject matter set
forth in the Commercial Agreements.
21. SEVERABILITY. If any term, condition or provision of this
Agreement is held to be invalid or unenforceable for any reason, such invalidity
will not invalidate the entire Agreement, unless such construction would be
unreasonable. This Agreement will be construed as if it did not contain the
invalid or unenforceable provision or provisions, and the rights and obligations
of each Party will be construed and enforced accordingly, except that in the
event such invalid or unenforceable provision or provisions are essential
elements of this Agreement and substantially impair the rights or obligations of
either Party, the Parties will promptly negotiate in good faith a replacement
provision or provisions.
22. COMPLIANCE WITH LAWS AND REGULATIONS. Each Party will comply
with all federal, state, and local laws, regulations, rules, ordinances and
orders relating to the performance of its obligations and the use of services
provided under this Agreement, including any rulings, modifications, regulations
or orders of the Federal Communications Commission and/or any applicable state
utility commission to the extent this Agreement is subject to the jurisdiction
of such regulating authority.
23. THIRD PARTY BENEFICIARIES. This Agreement is intended solely
for the benefit of the Parties, and no third-party beneficiaries are created by
this Agreement. This Agreement does not provide and should not be construed to
provide third parties with any remedy, claim, liability, reimbursement, cause of
action or other privilege.
24. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart will be deemed to be an original
instrument, but all such counterparts will constitute but one agreement. This
Agreement will become effective when one or more counterparts have been signed
by each and delivered to the other Party, it being understood that the Parties
need not sign the same counterpart.
25. SOUTHWESTERN XXXX. For purposes of this Agreement,
"Southwestern Xxxx" means, collectively, Southwestern Xxxx, Inc., any Person
into whom Southwestern Xxxx, Inc. merges or consolidates and any other Person to
whom SMARTpages or all or substantially all of the business or assets of
Southwestern Xxxx, Inc. is transferred. Prior to the time that the defined term
"Southwestern Xxxx" applies to any Person other than Southwestern Xxxx, Inc.,
Southwestern Xxxx, Inc. shall cause such Person to enter into a written
agreement, in form and substance reasonably satisfactory to RHD pursuant to
which such Person assumes all of Southwestern Xxxx'x obligations under this
Agreement. From and after such assumption, such Person shall also be deemed to
be Southwestern Xxxx, Inc. for purposes of this Agreement, but such assumption
shall not discharge or release any other Persons to which such defined term then
applies.
-10-
26. DIRECTORY SERVICES LICENSE AGREEMENT. No breach of any
provision of this Agreement (other than Sections 2(d) and 5 hereof) will be
deemed to give rise to any termination right under Article 9 of the Directory
Services License Agreement.
-11-
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the day and year first above written.
X.X. XXXXXXXXX PUBLISHING & ADVERTISING
OF ILLINOIS PARTNERSHIP
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Xxxxxx X. Xxxx
Vice President, General Counsel
and Corporate Secretary
DONTECH II PARTNERSHIP
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Xxxxxx X. Xxxx
Vice President, General Counsel
and Corporate Secretary
X. X. XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
Xxxxxx X. Xxxx
Vice President, General Counsel
and Corporate Secretary
SOUTHWESTERN XXXX YELLOW PAGES, INC.
By: /s/ Xxxxxx Xxxxx
-------------------------------------
Name: Xxxxxx Xxxxx
Title: President and CEO
SBC COMMUNICATIONS, INC.
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Sr. Exec. VP. - Corp. Dev.
SBC KNOWLEDGE VENTURES, L.P.
By: SBC Knowledge Ventures GP, Inc.,
its general partner
By: /s/ Xxxx X. Divine
-------------------------------------
Name: Xxxx X. Divine
Title: President and CEO
