Ex-10.7



 







Exhibit 10.7




TRADEMARK LICENSE AGREEMENT




     THIS TRADEMARK LICENSE AGREEMENT (this “Agreement”), dated as of this 16th
day of May, 2006, by and between Embarq Directory Trademark Company, LLC (“Licensor”), a
Delaware limited liability company, and R.H. Donnelley Publishing & Advertising, Inc. (f/k/a Sprint
Publishing & Advertising, Inc.), a Kansas corporation (“RHDPA”), CenDon, L.L.C., a Delaware
limited liability company (“CenDon”), and R.H. Donnelley Directory Company (f/k/a Centel
Directory Company), a Delaware corporation (“RHDDC”) (RHDPA, CenDon and RHDDC are referred
to collectively in this Agreement as the “Licensees”) (Licensor and each Licensee are
sometimes referred to in this Agreement as a “Party” and collectively as the
“Parties”).



RECITALS:




     A. On the date of this Agreement, the Licensees, Embarq Parent and Embarq LEC (such terms, and
each other term used in this Agreement with initial capitalization and not otherwise defined
herein, shall have the meaning ascribed to such term in the Directory Services License Agreement)
are entering into a Directory Services License Agreement (the “Directory Services License
Agreement”) in order to provide Licensees, subject to the terms set forth therein, the right to
continue producing, publishing and distributing the Embarq Directories following the completion of
the Spin-off;



     B. Licensor owns the trademarks listed on Exhibit A (as amended from time to time
pursuant to the terms of this Agreement and the Directory Services License Agreement, the
“Licensed Marks”);



     C. Licensor and Licensees are entering into this Agreement to provide for the continued use of
the Licensed Marks by the Licensees during the Term of the Directory Services License Agreement;
and



     D. Licensor desires to grant, and Licensees desire to obtain, subject to the terms and
conditions of this Agreement, a license to use the Licensed Marks in connection with the Permitted
Uses.



AGREEMENT




     NOW, THEREFORE, in consideration of the mutual agreements of the Parties and other good and
valuable consideration, the receipt and adequacy of which is acknowledged, the Parties agree as
follows:



     Section 1. Trademark License.



     (a) Subject to the terms and conditions of this Agreement and consistent with all of the terms
and conditions of the Directory Services License Agreement, Licensor hereby grants to Licensees a
non-transferable, royalty free, exclusive right to use for the term of this Agreement, the Licensed
Marks on (i) any physical media directory that (A) contains primarily Subscriber



 









 







Listing Information and other Directional Information with respect to Subscribers and other
persons or businesses located or providing products or services within the Service Areas, (B) that
is classified and/or searchable (e.g., by alphabet letter or category) and (C) is primarily
distributed in the Service Area and (ii) related aspects of producing, publishing or distributing
directories and soliciting and selling advertising in connection therewith in the Geographic
Coverage Areas, such as sales collateral, stationary, contracts, invoices, customer correspondence,
business cards and advertising and promotional materials.



     (b) Subject to the terms and conditions of this Agreement and consistent with all of the terms
and conditions of the Directory Services License Agreement, Licensor hereby grants to Licensees a
non-transferable, royalty free, exclusive right to use for the term of this Agreement, the Licensed
Marks on (i) any non-physical media directory that (x) contains primarily Subscriber Listing
Information and other Directional Information with respect to Subscribers and other persons or
businesses located or providing products or services within the Service Areas, (y) that is
classified and/or searchable (e.g., by alphabet letter or category) and (z) is primarily directed
at Subscribers and other persons or businesses located or providing products or services within the
Service Areas, and (ii) related aspects of producing, publishing or distributing directories and
soliciting and selling advertising in connection therewith in the Geographic Coverage Areas, such
as sales collateral, stationary, contracts, invoices, customer correspondence, business cards and
advertising and promotional materials (collectively with the uses set forth in Section 1(a), the
“Permitted Uses”).



     (c) Licensees may only sub-license their license to use the Licensed Marks under this
Agreement to any controlled Affiliate of any Licensee and pursuant to Section 19.



     (d) Licensor will not license the Licensed Marks to any party in violation of the
noncompetition obligations of Embarq Parent and its Affiliates under the Non-Competition Agreement.



     Section 2. Use of Trademark. Other than the Permitted Uses, Licensees may not use the
Licensed Marks in connection with any service or product or for any other purpose whatsoever,
including any telecommunications services, Internet services other than non-physical media
directories as provided in the Directory Services License Agreement or cable services.
Notwithstanding anything to the contrary in this Section 2, upon the request of Licensees, the
Licensor will register any Internet domain names which include both the Licensed Marks and the
brand used by Publisher pursuant to Section 7.3 of the Directory Services License Agreement and
such domain names shall automatically become “Licensed Marks” hereunder. The Parties acknowledge
that Publisher may use any domain name listed on Exhibit B, which will be deemed to be “Licensed
Marks” for the purposes of this Agreement.



     Section 3. Compliance with Brand Identity Standards.



     (a) Licensor’s “Brand Identity Standards” are attached as Exhibit C. If there is an
inconsistency between the terms of this Agreement and the Brand Identity Standards, the terms of
this Agreement control. The parties acknowledge that the Brand Identity Standards are currently
embodied in a document written for Embarq LEC’s internal departments, and as such, their
application to Licensees under this Agreement should be read and interpreted with logical



2









 







modifications, it being understood that the document may be modified in the future by mutual
agreement of the Licensor and Licensees to apply more specifically to Licensees. For example, with
respect to the current Brand Identity Standards and without limitation:




     (i) most references to “Embarq Legal” or “Embarq Law Department” should be read as
referring to Licensees’ law department,




     (ii) many references to “Embarq” with respect to the introduction of new products
should be read as referring to Licensees.



     Licensor shall also replace the Brand Identity Standards with a summarized version analogous
to the Brand Identity Standards applicable to the Original DSLA as soon as practicable following
the parties’ reaching agreement in writing that resolves the subject matter of that certain
Standstill Agreement, dated the date hereof, by and between Embarq Corporation and RHDPA.
Licensor may modify the Brand Identity Standards at any time, in its sole discretion, and will
deliver a copy of the revised Brand Identity Standards to Licensees promptly after making any such
modifications; provided that any such modification must apply generally to substantially all
licensees of the Licensed Marks. Licensees must comply at all times with the Brand Identity
Standards established by Licensor and delivered to Licensees from time to time for each Licensed
Mark. In addition to the foregoing, Licensees must at all times use each Licensed Mark in a manner
that will preserve and protect the goodwill, reputation and name of the Licensed Mark and of
Licensor with respect to the Licensed Mark. Compliance with the terms of the Directory Services
License Agreement by the Licensees preserves and protects the goodwill, reputation and name of the
Licensed Marks and of Licensor.



     (b) Upon a modification or substitution of the Licensed Marks as utilized by Embarq Parent or
its Affiliates in their business generally or in a particular Service Area pursuant to the
Directory Services Licenses Agreement, the Licensed Marks in Exhibit A will be amended to include
such modifications or substitutions with respect to the affected Service Area(s). If Licensees’
use of any Licensed Mark varies from the Brand Identity Standards because of a change to the Brand
Identity Standards or the Licensed Marks by Licensor, Licensees (i) may exhaust their existing
stocks of materials displaying the Licensed Mark within a commercially reasonable period of time,
(ii) will be permitted to produce, publish and distribute Embarq Directories containing the
Licensed Marks which have a WHOA Date preceding the date of the change to the Brand Identity
Standards or the Licensed Marks by Licensor, and (iii) will not be required to recall any Embarq
Directories containing the Licensed Marks published prior to the date of the change to the Brand
Identity Standards or the Licensed Marks by Licensor. If Licensees’ use of any Licensed Mark
varies from this Agreement, the Directory Services License Agreement or the Brand Identity
Standards, for any reason other than a change to the Brand Identity Standards or the Licensed Marks
by Licensor, Licensees will immediately cease using all materials displaying the Licensed Mark in
violation of this Agreement, the Directory Services License Agreement or the Brand Identity
Standards.



     (c) Licensees may request in writing that Licensor permit Licensees to vary from the Brand
Identity Standards for Licensed Marks. Licensor may in its sole discretion approve or refuse the
foregoing request, however, any approval to vary from the Brand Identity Standards for Licensed
Marks must be in writing.



3









 





     Section 4. Reservation of Rights. Licensor reserves the right to use the Licensed
Marks or license their use to third parties in connection with any activities that Embarq LEC or
its Affiliates are not prohibited from engaging in under the terms of the Non-Competition
Agreement.



     Section 5. Co-Branding. Licensees will not use any other trademark, service mark,
phrase, word or symbol, whether owned by Licensees, their Affiliates or by third parties, in
conjunction with the Licensed Marks, except as permitted by Section 7.3 of the Directory Services
License Agreement.



     Section 6. Similar Marks. Neither Licensees nor their Affiliates may use:



     (a) any trademark or phrase which is similar to any Licensed Mark; or



     (b) any word, symbol, character, or set of words, symbols, or characters, which in any
language would be identified as substantially the equivalent of a Licensed Mark.



     Section 7. Proprietary Rights; Legends. Licensees’ use of the Licensed Marks on the
services and products authorized by this Agreement, shall include use of the notice of registration
- ® - one time on each good or service in a manner that is visible to the public.



     Section 8. Publisher’s Corporate Name. Licensees will not use any Licensed Mark or
the name “Embarq” in their corporate or business name, nor allow any of their Affiliates to use any
Licensed Mark or the name “Embarq” in their respective corporate or business names. Furthermore,
Licensees and their Affiliates will not use any corporate or business name or any mark, logo or
indicia that suggests in any manner that Licensees or their Affiliates are a subsidiary of or
affiliated with Embarq LEC or Licensor; provided, however, that Licensees may suggest and hold
themselves out as having the rights provided to Publisher pursuant to Section 2.1 of the Directory
Services License Agreement. The Parties acknowledge that any use of the Licensed Marks by
Licensees in accordance with Section 1 hereof will not violate this Section 8.



     Section 9. Approval of Materials. Subject to Article 7 of the Directory Services
License Agreement, on Licensor’s reasonable request, Licensees will provide to Licensor for
approval prior to distribution reasonable samples of material on which a Licensed Mark appears and
Licensees agree to modify any Embarq Directory, packaging, labels, advertising and other material
if the use of a Licensed Mark is not in accordance with the provisions of the Directory Services
License Agreement. Licensees will provide to Licensor for review and approval representative
samples of Licensees’ proposed use of the Licensed Marks whenever such samples are not consistent
with the provisions of the Directory Services License Agreement, this Agreement or the Brand
Identity Standards. In the event that Licensor does not notify Licensees within ten (10) days of
its receipt of any such samples that it disapproves of Licensees’ proposed use of the Licensed
Marks, Licensor will be deemed to have approved of such use.



     Section 10. Rights to the Licensed Marks




     (a) Interest in Licensed Marks. Licensees agree that the Licensed Marks are
proprietary to Licensor and nothing in this Agreement constitutes the grant of a general license
for their use; rather, they may only be used in accordance with the terms and conditions of this



4









 







Agreement and the Directory Services License Agreement. Licensor represents and warrants that
(i) it owns all right, title and interest (including the goodwill) in and to the Licensed Marks and
(ii) the execution and performance of this Agreement by Licensor will not breach any other
agreement or license relating to the Licensed Marks. In accepting this Agreement, Licensees
acknowledge Licensor’s ownership of the Licensed Marks, the goodwill connected with them.
Licensees acquire no right, title, or interest in the Licensed Marks or the goodwill associated
with the Licensed Marks due to their use of the Licensed Marks, other than the right to use the
Licensed Marks in accordance with the terms and conditions of this Agreement and the Directory
Services License Agreement. Use of the Licensed Marks by Licensees and their Affiliates inures to
the benefit of Licensor or its Affiliates. Neither Licensees nor their Affiliates will attack the
Licensed Marks in any manner whatsoever nor assist anyone in attacking the Licensed Marks.



     (b) Registration of Marks. Licensees agree that neither they nor their Affiliates
will make any application to register the Licensed Marks, nor use, license or attempt to register
any confusingly similar trademark, service mark, trade name or derivation, during and after
expiration or termination of this Agreement. Licensees will not and neither will any of their
Affiliates adopt, use, file for registration, or register any trademark, service mark, or trade
name that is similar to any Licensed Mark or results in a likelihood of confusion with a Licensed
Mark. Licensor shall maintain the federal registration of all Licensed Marks that are registered
with the United States Patent and Trademark Office throughout the Term. Upon Licensee’s request,
Licensor will promptly register any trademark or service mark owned by Licensor and used by
Licensees for all goods and services covered by its Permitted Use in accordance with this Agreement
and the Directory Services License Agreement which are not already registered in the United States
Patent and Trademark office and will add such trademarks and service marks to Exhibit A as Licensed
Marks. Licensor shall bear all of the expenses relating to the prosecution of any application
pursuant to this provision as well as all expenses relating to the maintenance of any registration
issued pursuant to this provision. Licensees will take all reasonable actions necessary to assist
with the prosecution of any application under this provision and the filing of any document or
other materials required to maintain any registration issued pursuant to this provision.



     Section 11. Termination or Expiration of Agreement. This Section 11 survives the
termination or expiration of this Agreement. On termination or expiration of this Agreement,
subject to the transition provisions in the Directory Services License Agreement, all rights
granted to Licensees under this Agreement in and to the Licensed Marks, together with any interest
in and to the Licensed Marks which Licensees may have or may have acquired pursuant to this
Agreement, the Directory Services License Agreement or otherwise, will forthwith, without further
act or instrument, be assigned to and revert to Licensor. In addition, Licensees will execute any
reasonable instruments prepared at the sole expense of and requested by Embarq LEC and Licensor
that are necessary to accomplish or confirm the foregoing. Licensees will destroy all materials in
Licensees’ possession which contain the Licensed Marks within a reasonable period after the
termination or expiration of the Agreement, provided that Licensees will be permitted to produce,
publish and distribute Embarq Directories containing the Licensed Marks which have a WHOA Date
preceding the date of the termination or expiration of this Agreement and provided further that
Licensees will not be required to recall any Embarq Directories containing the Licensed Marks
published prior to the date of termination or expiration of this Agreement. Licensees will refrain
from further use of the Licensed Marks, or



5









 







any other trademark, service mark, trade name, design or logo that is confusingly similar to
the Licensed Marks. Licensees acknowledge and admit that there would be no adequate remedy at law
for their failure to cease use of the Licensed Marks upon termination of this Agreement and the
Directory Services License Agreement. Licensees agree that, in the event of such failure, Licensor
will be entitled to seek equitable relief by the way of temporary, preliminary and permanent
injunction and seek further relief as any court with jurisdiction may deem just and proper.



     Section 12. Infringement.



     (a) Notice of Infringement. Licensor and Licensees will promptly notify each other of
any infringement of any of the Licensed Marks that comes to their attention. Licensor may take
such action as it determines may be required to terminate the infringement. If Licensor decides
that action should be taken, Licensor may take the action either in its own name or, alternatively,
Licensor may authorize Licensees to initiate the action in Licensor’s name, at Licensor’s sole cost
and expense.



     (b) Defense by Licensees. If Licensor does not decide to take any action within
thirty (30) days of its notification of the infringement, Licensees may notify Licensor in writing
of its intention to prosecute the action at its own expense. Licensor will have twenty (20) days
in which to respond to Licensees regarding their planned action in response to the notification,
which action shall be in Licensor’s reasonable discretion. If the response does not entail
Licensor responding to the infringement, or if Licensor fails to respond to Licensees within the
twenty (20) day period, Licensees will be entitled to undertake the action at Licensees’ expense;
provided that, if the infringement relates to activities outside the Permitted Uses, Licensees will
be entitled to take such action only if the licensee under that certain Embarq Trademark License
Agreement, between Licensor and Embarq Holdings Company LLC, of even date herewith, fails to pursue
such infringement pursuant to Section 7 thereof. Licensees and Licensor will keep each other
apprised of all material developments in the case and will make no settlement of the action that
could impair the goodwill or reputation of the Licensed Marks or Licensor’s ownership in the name
“Embarq” or the “Embarq jet” for other purposes.



     (c) Cooperation. Each Party agrees to cooperate fully with the other Party to
whatever extent necessary to prosecute any action with all expenses being borne by the Party
bringing the action, or shared equally, if the Parties agree to both prosecute the action.



     (d) Damages. Regardless of which Party prosecutes a Licensed Mark infringement claim,
the damages recovered by the Parties will first be used to reimburse the expenses on a pro rata
basis that each Party and any other licensees of Licensor incurred in pursuing the prosecution.
Expenses shall include time spent by in-house lawyers in managing and pursuing the prosecution. If
there are recovered damages in excess of expenses then such recovered damages will be allocated
between the Parties and any other licensees of Licensor in accordance with the damage suffered by
each. The provisions of this Section 12 will not be construed as limiting the rights of either
Party to recover damages from, or to exercise any other right or remedy against, any third parties
in respect of any other claim that either Party may have against the third parties.



6









 





     Section 13. Further Protection. At the reasonable request of Licensor and at
Licensor’s sole expense, Licensees will execute any papers or documents necessary to protect the
rights of Licensor in the Licensed Marks and execute and deliver the other documents as may be
reasonably requested by Licensor.



     Section 14. Term. This Agreement will become effective when and if the Effective Date
occurs and will terminate upon the termination of the Directory Services License Agreement in
accordance with its terms; provided that, if the Effective Date has not occurred prior to October
31, 2006, this Agreement will terminate and become void and of no force and effect as if it had
never been entered into.



     Section 15. Indemnification.



     (a) Licensees Indemnity. Licensees will defend, hold harmless and indemnify Licensor
and each of its Affiliates, officers, directors, shareholders, employees, contractors, agents and
representatives from and against any and all losses, damages, claims, demands, suits, liabilities,
fines, penalties, costs, obligations, settlement payments, awards, judgments, deficiencies or other
charges (“Losses”) and any and all expenses incurred in connection with investigating, defending or
asserting any claim, action, suit or proceeding incident to any matter indemnified under the
Agreement (“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 Licensees and (ii) the
use of the Licensed Marks by Licensees in violation of this Agreement.



     (b) Licensor Indemnity. Licensor will defend, hold harmless and indemnify Licensees
and each of their 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 Licensor and (ii) the use of the Licensed Marks by Licensees 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 or
proceeding. The indemnifying party will have the right, upon written notice delivered to the
indemnified party within thirty (30) days thereafter assuming formal responsibility for any Losses
and Expenses resulting from such claim, action or proceeding, 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



7









 







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 Section 15, such indemnified party will send written
notice of such claim to the appropriate indemnifying party. Such notice will specify the basis for
such claim. As promptly as possible after the indemnified party has given such notice, such
indemnified party and the appropriate indemnifying party will establish the merits and amount of
such claim (by mutual agreement, litigation, arbitration or otherwise) and, within five business
days of the final determination of the merits and amount of such claim, the indemnifying party will
pay to the indemnified party immediately available funds in an amount equal to such claim as
determined hereunder.



     (d) Limitation on Liability. Notwithstanding anything to the contrary set forth in
this Agreement, the sum of any amounts payable by (i) Embarq Parent or its Affiliates for
consequential damages resulting from a breach of this Agreement, and (ii) Sellers (as defined in
the Stock Purchase Agreement) pursuant to their indemnification obligations under the Stock
Purchase Agreement, by and between Sprint Nextel, Centel Directories LLC, a Delaware limited
liability company and RHD, dated as of September 21, 2002 (the “Stock Purchase Agreement”),
shall not exceed in the aggregate $660,000,000.



     Section 16. Dispute Resolution.



     (a) Option to Negotiate Disputes. Other than a suit for injunctive relief to maintain
the status quo, to stop an ongoing violation of this Agreement or to prevent a threatened violation
of this Agreement, in the event of any dispute arising between the Parties in connection with the
interpretation or performance of this Agreement, before either Party may initiate a formal
proceeding in any tribunal, including arbitration or judicial proceedings, the Parties will
negotiate in good faith to resolve such dispute amicably after receipt by the allegedly breaching
Party of written notice of a dispute, stating the specific nature of the claimed breach and the
specific nature of, and period for, the cure allegedly required, sent by the other Party in the
manner set forth in Section 20. Within ten (10) days after delivery of the notice, representatives



8









 







of the Parties will meet at a mutually acceptable time and place, and thereafter as often as
they reasonably deem necessary, to exchange relevant information and to attempt to resolve the
dispute by the respective representatives of the Parties within the time frames and escalation
process set forth below:



	 	 	 	 	 
	 	 	Licensor (Title)	 	Licensees (Title)
	 
	 	 	 	 	 
	Within 10 days

	 	Vice President — Law,
Marketing and Sales
	 	General Counsel
	Within 20 days

	 	Vice President — Business
Planning and Development
	 	Chief Financial Officer
	Within 30 days

	 	Chief Executive Officer
	 	Chief Executive Officer






     If a Party intends to be accompanied at a meeting by an attorney, the other Party will be
given at least two business days’ notice of such intention and may also be accompanied by an
attorney. All negotiations pursuant to this Section 16(a) are confidential and will be treated as
compromise and settlement negotiations for purposes of the Federal Rules of Evidence and State
Rules of Evidence.



     (b) Other than a dispute for injunctive relief to maintain the status quo, to stop an ongoing
violation of this Agreement or to prevent a threatened violation of this Agreement, any dispute
between the Parties that is not resolved in accordance with the informal notice of breach
provisions set forth in Section 16(a) and remains disputed by the Party alleged to have been in
breach, shall be resolved by arbitration using the arbitration procedures set forth in this Section
16(b). In such event, either Party may serve a demand for arbitration in accordance with the
Center for Public Resources Non-Administered Arbitration Rules (“Arbitration Rules”) in which, in
addition to any other requirements of the Arbitration Rules, the Party serving the demand states
the specific nature of the claimed breach and the specific nature of, and period for, the cure
allegedly required, and demands a determination by the arbitrators of the Parties’ respective
rights together with any other relief sought. Three arbitrators shall be chosen, and the
proceedings shall be conducted in New York, New York generally in accordance with the Arbitration
Rules, provided that (i) the Parties shall choose three arbitrators through a self-administered
process of striking names from a list of potential arbitrators and shall not employ the method
provided for in the Arbitration Rules; (ii) the rules of evidence employed in federal courts at the
time shall apply; and (iii) discovery shall be permitted in accordance with the Federal Rules of
Civil Procedure. Any arbitration will be subject to the governing law provision set forth in
Section 16(c) of this Agreement. If any interim or conservatory measures have been issued by a
court or other tribunal, the arbitration tribunal shall not be bound by such interim or
conservatory decision or measures when rendering its decision. The decision of the arbitrators
will be final and binding upon the Parties to the maximum extent permitted under applicable law,
and a final judgment may be entered on the award in any court of competent jurisdiction.



     (c) Governing Law. This Agreement shall be governed by and construed in accordance
with laws of the State of Delaware (regardless of the laws that might otherwise



9









 







govern under applicable principles of conflict of laws thereof) as to all matters, including
but not limited to matters of validity, construction, effect, performance and remedies.



     (d) Attorneys’ Fees. The prevailing Party in any formal dispute will be entitled to
reasonable attorneys’ fees and costs, including reasonable expert fees and costs. This provision
will not apply if the prevailing Party rejected a written settlement offer that exceeds the
prevailing Party’s recovery.



     (e) Cumulative Remedies. No right or remedy in this Agreement conferred upon or
reserved to any Party is intended to be exclusive of any other right or remedy, and each and every
right and remedy will be cumulative and in addition to any other right or remedy under this
Agreement or under applicable law, whether now or hereafter existing. The Parties agree that
irreparable damage would occur in the event any provision of this Agreement was not performed in
accordance with its terms and that the Parties will be entitled to seek specific performance in
addition to any other remedy to which they are entitled at law or equity.



     Section 17. Assignment. Except as provided in Section 9.1 of the Directory Services
License Agreement, neither Party may assign all or any of its rights or obligations under the
Agreement without the prior written consent of the other Party, except that either Party may assign
all of its rights and obligations under the Agreement (a) in connection with a sale of all or
substantially all of its assets or by merger 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 or (b) to (i) any of its Affiliates or (ii) any lender or any 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.



     Section 18. Relationship. Nothing contained in this Agreement shall be construed to
create the relationship of employer and employee between any Licensor and Licensees, franchiser -
franchisee, or to make any Licensor or Licensees partners, joint venturer or co-employer of the
other, or result in joint service offerings to their respective customers.



     Section 19. Subcontractors. Notwithstanding the prohibition on transferability set
forth in Section 1, any Party may subcontract with third parties or Affiliates of such Party for
the performance of any of such Party’s obligations which require the use of the Licensed Marks. If
any obligation is performed for either Party through a subcontractor, such Party will remain fully
responsible for the performance of its obligations under this Agreement in accordance with its
terms and such Party will be solely responsible for payments due to its subcontractors. No
contract, subcontract or other agreement entered into by either Party with any third party in
connection with the provision of services utilizing the Licensed Marks will provide for any
indemnity, guarantee or assumption of liability by, or other obligation of, the other Party with
respect to such arrangement, except as consented to in writing by the other Party. No
subcontractor will be deemed a third party beneficiary for any purposes under this Agreement.



     Section 20. Notices. Any notice required or permitted under this Agreement will be in
writing and will be hand-delivered, sent by confirmed facsimile or mailed by overnight express
mail. Notice will be deemed to have been given when such notice is received. Addresses for
notices are as follows:



10









 





	 	 	 	 	 
	 	 	If to Licensor:
	 
	 	 	 	 
	 

	 	 	 	Embarq Corporation
	 

	 	 	 	5454 West 110th Street
	 

	 	 	 	Overland Park, Kansas 66211
	 

	 	 	 	Attention: Senior Vice President, Corporate Strategy & Development
	 

	 	 	 	Facsimile: 913-523-9625
	 
	 	 	 	 
	 	 	With a copy to:
	 
	 	 	 	 
	 

	 	 	 	Embarq Corporation
	 

	 	 	 	5454 W. 110th Street
	 

	 	 	 	Overland Park, Kansas 66211
	 

	 	 	 	Attention: Vice President & Corporate Secretary
	 

	 	 	 	Facsimile: 913-523-9825
	 
	 	 	 	 
	 	 	If to Licensees:
	 
	 	 	 	 
	 

	 	 	 	R.H. Donnelley Corporation
	 

	 	 	 	1001 Winstead Drive
	 

	 	 	 	Cary, North Carolina 27513
	 

	 	 	 	Facsimile: 919-297-1518
	 

	 	 	 	Attention: General Counsel





or at such other address as either Party may provide to the other by written notice.




     Section 21. Independent Contractor. 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.



     Section 22. Entire Agreement. This Agreement, the Directory Services License
Agreement, the Non-Competition Agreement, the Subscriber Listings Agreement, and the Publisher
Trademark License Agreement constitute the entire understanding and agreement of the Parties
concerning the subject matter of this Agreement, and on the Effective Date will supersede any prior
agreements, representations, statements, understandings, proposals, undertakings or negotiations,
whether written or oral, with respect to the subject matter expressly set forth in this Agreement.



     Section 23. 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



11









 







and substantially impair the rights or obligations of either Party, the Parties will promptly
negotiate in good faith a replacement provision or provisions.



     Section 24. Force Majeure. Neither Party will be liable for any delay or failure in
performance of any part of this Agreement caused by a Force Majeure condition, including acts of
God, a public enemy or terrorism, fires, floods, freight embargoes, earthquakes, volcanic actions,
wars (whether against a nation or otherwise), civil disturbances or other similar causes beyond the
reasonable control of the Party claiming excusable delay or other failure to perform (a “Force
Majeure”). If any Force Majeure condition occurs, the Party whose performance fails or is delayed
because of such Force Majeure condition will give prompt notice to the other Party, will use
commercially reasonable efforts to perform in spite of the Force Majeure condition and upon
cessation of such Force Majeure condition will give like notice and commence performance under the
Agreement as promptly as reasonably practicable.



     Section 25. No 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.



     Section 26. Binding Effect. This Agreement will be binding on and inure to the
benefit of the Parties, and their respective successors and permitted assigns.



     Section 27. Waivers. 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.



     Section 28. 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.



     Section 29. 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 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.



     Section 30. Modifications. 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.



     Section 31. 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 together 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.



12









 





     Section 32. Conflict. In the event of any conflict between this Agreement and the
provisions of the Directory Services License Agreement, the provisions of the Directory Services
License Agreement will control.




13









 








     IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the day
and year first above written.



LICENSOR:




EMBARQ DIRECTORY TRADEMARK COMPANY, LLC




By: /s/ Michael B. Fuller




Name: Michael B. Fuller




Title: President




	 	 	 	 	 
	LICENSEES:
	 	 	 	 
	 
	 	 	 	 
	R.H. DONNELLEY PUBLISHING &
	 	 	 	 
	ADVERTISING, INC. (f/k/a Sprint
	 	 	 	 
	Publishing & Advertising, Inc.)

	 	 	 	CENDON, L.L.C.
	 
	 	 	 	 
	By: /s/ Robert J. Bush

	 	 	 	By: /s/ Robert J. Bush
	 
	 	 	 	 
	Name: Robert J. Bush

	 	 	 	Name: Robert J. Bush
	 
	 	 	 	 
	Title: Vice President

	 	 	 	Title: Manager
	 
	 	 	 	 
	R.H. DONNELLEY DIRECTORY COMPANY
	 	 	 	 
	(f/k/a Centel Directory Company)
	 	 	 	 
	 
	 	 	 	 
	By: /s/ Robert J. Bush
	 	 	 	 
	 
	 	 	 	 
	Name: Robert J. Bush
	 	 	 	 
	 
	 	 	 	 
	Title: Vice President