EXHIBIT 2.2
AMENDMENT NO. 1 TO
PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO PURCHASE AGREEMENT (this "AMENDMENT")
is entered into as of September 9, 2003 by and between Qwest Dex, Inc., a
Colorado corporation ("SELLER"), Qwest Services Corporation, a Colorado
corporation ("QSC"), and Qwest Communications International Inc., a Delaware
corporation ("QWEST" and, collectively with Seller and QSC, the "QWEST
PARTIES"), on the one hand, and Dex Holdings LLC, a Delaware limited liability
company ("BUYER"), on the other hand.
RECITALS
A. On August 19, 2002, the Qwest Parties and the Buyer
entered into a purchase agreement (the "XXXXXX PURCHASE AGREEMENT") providing
for the sale by Seller of all of the outstanding limited liability company
membership interests of GPP LLC, a Delaware limited liability company, to Buyer,
on the terms and conditions set forth therein; and
B. The Qwest Parties and Buyer desire to amend the
Xxxxxx Purchase Agreement as set forth herein.
AGREEMENT
In consideration of the mutual promises contained in this
Amendment and intending to be legally bound, the parties agree as follows:
1. AMENDMENTS TO THE XXXXXX PURCHASE AGREEMENT.
Effective as of the date hereof, the Xxxxxx Purchase Agreement is amended as
follows:
(a) Section 1.2 of the Xxxxxx Purchase Agreement is
amended to include the following definitions:
"DOCUMENT" means any document, writing, transmission
or record in physical form (including letters, memoranda, reports,
notes, post-it notes, handwritten entries on other documents, calendar
entries, notebooks, checks, ledgers) or electronic form (including
emails (both sent and received), attachments to emails, Word documents,
spreadsheets, daytimer and calendar entries, meeting notes, notes from
telephone calls and entries in Palm Pilots and similar devices).
"LEGAL HOLD" means the following communications from
a Qwest attorney or from the Qwest Law Department directing the
recipient and/or reader of that communication to retain Documents, true
and complete copies of which communications have been previously
provided by Qwest to Buyer: (i) the Legal Hold dated March 11, 2002;
(ii) the Supplement to the March 11, 2002 Legal Hold dated June 7,
2002; (iii) the Legal Hold Reminder and Second Supplemental Legal Hold
dated August 30, 2002; (iv) the Legal Hold Reminder and Third
Supplemental Legal Hold dated September 27, 2002; (v) the Legal Hold
Reminder and Fourth Supplemental Legal Hold dated October 9, 2002; (vi)
the Legal Hold Reminder and Fifth Supplemental Legal Hold dated October
16, 2002; (vii) the Legal Hold Reminder and Sixth Supplemental Legal
Hold dated November 19, 2002; (viii) the Legal Hold Reminder and
Seventh Supplemental Legal Hold dated March 18, 2003; (ix) the Legal
Hold Reminder and Eighth Supplemental Legal Hold dated June 9, 2003;
and (x) the Legal Hold Reminder and Ninth Supplemental Legal Hold dated
July 21, 2003.
(b) Section 2.9 of the Xxxxxx Purchase Agreement is
amended to include the following as a new subsection (f): "The parties
acknowledge and agree that Working Capital and Working Capital Target shall be
calculated, and the Preliminary Closing Date Statement and the Final Statement
shall be prepared, in a manner consistent with the calculation of Working
Capital and Working Capital Target and Seller's preparation of the Preliminary
Closing Date Statement and the Final Statement under the Dexter Purchase
Agreement."
(c) The last sentence of Section 3.14(b) of the Xxxxxx
Purchase Agreement is amended to read as follows: "The "TRANSFERABLE PATENTS"
shall mean the applicable ownership interests in the Patents to be transferred
to Dex Media, Inc. pursuant to the IP Contribution Agreement and shall not, in
any event, include the ownership interests in the Patents already transferred to
Dex Media, Inc."
(d) The last sentence of Section 3.14(c) of the Xxxxxx
Purchase Agreement is amended to read as follows: "The "TRANSFERABLE COPYRIGHTS"
shall mean the Copyrights to be transferred to Dex Media, Inc. in connection
with the Closing pursuant to the IP Contribution Agreement."
(e) Section 3.14(f) of the Xxxxxx Purchase Agreement is
amended to read in its entirety as follows:
"INTELLECTUAL PROPERTY SUFFICIENCY. To Seller's
Knowledge, except as otherwise provided in Section 3.14 of Seller's
Disclosure Schedule, the assignments, licenses and other rights granted
by Qwest and its current Affiliates to Dex Media, Inc., Buyer, Company
and/or their controlled affiliates under this Agreement, the other
Transaction Documents and the Commercial Agreements and other actions
taken in accordance with Section 5.18 of Exhibit P to the Dexter
Purchase Agreement accord to Company (except to the extent Company is
not a controlled affiliate of Dex Media, Inc. and/or Buyer (as
applicable for the particular intellectual property assets)) the rights
with respect to the intellectual property assets owned or licensed by
Qwest and such Affiliates that are necessary for continued operation of
the Xxxxxx Transferred Business after the Closing in substantially the
same manner as such business has been operated by Seller during the six
months prior to the Closing."
(f) The second sentence of Section 5.7 of the Xxxxxx
Purchase Agreement is deleted in its entirety.
(g) Section 5.18 of the Xxxxxx Purchase Agreement is
amended to include the following as a new, final sentence: "The Xxxxxx IP
Products Condition shall be satisfied if sufficient rights for the use by Dex
Media, Inc., Buyer and/or their controlled affiliates of Initial
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IP Products (as defined in the Dexter Purchase Agreement) shall have been
obtained such that Dex Media East LLC and Company (except to the extent Dex
Media East LLC or Company, as the case may be, is not a controlled affiliate of
Dex Media, Inc. and/or Buyer (as applicable for the particular intellectual
property assets)) can use such Initial IP Products to conduct their respective
businesses (Company and Dex Media East LLC, together in the aggregate) without
material interruption following the Closing in the same manner and on
substantially the same terms and conditions as is currently conducted by Seller,
in the case of Company, and as was conducted by Seller as of November 8, 2002,
in the case of Dex Media East LLC (it being understood and agreed that
enterprise licenses of Dex Media, Inc. and/or Buyer, pursuant to which such
controlled affiliates are permitted licensees, or an alternative arrangement
whereby such controlled affiliates outsource certain services for each other,
are acceptable in satisfying this condition)."
(h) Section 5.19 of the Xxxxxx Purchase Agreement is
amended to read in its entirety as follows:
"B&C SYSTEMS TRANSITION PLAN. The Qwest Parties, in
consultation with Buyer, Dex Media West LLC and their respective
representatives, established the detailed systems implementation plan
attached as Exhibit U (the "B&C SYSTEMS TRANSITION PLAN") that provides
for the potential accelerated transition of Company's billing and
collection services (which are to be performed by Qwest Corporation
under the Billing and Collection Agreement) from Qwest Corporation to
Company. Each of the Qwest Parties have, in accordance with the B&C
Systems Transition Plan, caused Qwest Corporation and Company to carry
out and perform the various systems implementation actions contemplated
by such plan. Following implementation of the systems modifications
contemplated by the B&C Systems Transition Plan, each of the Qwest
Parties agrees to use commercially reasonable efforts to cause Qwest
Corporation to properly maintain such modified systems so as to permit
the accelerated transitioning of Company's billing and collection
services at any time upon Company's directions in accordance with the
Billing and Collections Agreement. Each of the Qwest Parties shall, and
Seller shall cause Qwest Corporation to, permit Buyer and its
representatives (including financing sources and consultants) to have
reasonable access to the appropriate systems personnel of, and such
systems documentation and other material of, Qwest Corporation to
enable Buyer and its representatives (including financing sources and
consultants) to review and establish, to their reasonable satisfaction,
the proper maintenance of the B&C Systems Transition Plan. For
clarification purposes, following Closing, the Qwest Parties will not
be responsible for Company's actions, and Buyer will cause Company to
cooperate and perform in accordance with the B&C Systems Transition
Plan. Buyer agrees that it shall be obligated to pay all of Qwest
Corporation's and Company's reasonable costs and expenses incurred in
connection with the implementation and maintenance of the B&C Systems
Transition Plan (provided that it is agreed and understood by the
parties that such amount is estimated to equal no more than
$6,500,000). At least two Business Days prior to the Closing Date,
Seller shall use commercially reasonable efforts to cause Qwest
Corporation and Company to provide written notice to Buyer of the
actual amount of costs and expenses so incurred (to the extent that
such amounts are available) and a good faith estimate of other amounts
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incurred and to be incurred between such date and completion of such
work to the systems (the sum of such actual and estimates amount being
the "ESTIMATED MIGRATION AMOUNT"). Buyer shall pay such Estimated
Migration Amount, subject only to an opportunity to discuss and consult
with Qwest Corporation about such amount prior to the Closing, to Qwest
Corporation at the Closing. On or before November 21, 2003, Qwest
Corporation will provide written notice to Buyer documenting the costs
and expenses incurred pursuant to this Section 5.19 (the "ACTUAL
MIGRATION AMOUNT"). The parties will in good faith promptly resolve any
disputes in respect of the Actual Migration Amount. If the Estimated
Migration Amount paid by Buyer to Qwest Corporation on the Closing Date
is greater than the Actual Migration Amount, Qwest Corporation shall
pay such excess amount to Buyer or its designee by December 2, 2003, by
wire transfer of immediately available funds to an account designated
in writing by Buyer. If the Estimated Migration Amount paid by Buyer to
Qwest Corporation on the Closing Date is less than the Actual Migration
Amount, Buyer shall pay such shortfall amount to Qwest Corporation by
December 2, 2003, by wire transfer of immediately available funds to an
account designated in writing by Qwest Corporation."
(i) Section 6.3 of the Xxxxxx Purchase Agreement is
amended to read in its entirety as follows:
"MAINTAIN RECORDS.
(a) Until the later of (i) 5 years after the Closing Date
or (ii) the expiration of the applicable statute of limitations for the
Tax Return in question, Qwest and Buyer will maintain (or cause to be
maintained) all Tax records, working papers, and other supporting
financial records and documents relating to the Tax Returns filed by,
on behalf of, or relating to Company or the Xxxxxx Transferred Business
or to any Taxes for the last closed year and for all open years of
Company (including the taxable year in which the Closing Date occurs).
All such documents that relate primarily to Company or the Xxxxxx
Transferred Business will be delivered to and maintained by Buyer
during the period set forth above, and Buyer will make the same
available to Seller or its Representatives at reasonable times for
inspection and copying. All such remaining documents will be retained
by Seller during the period set forth above, and Seller will make the
same available to Buyer or its Representatives at reasonable times, for
inspection and copying. At the end of the period set forth above, Qwest
or Buyer, as the case may be, may dispose of such documents, provided
that notice of such disposition must be given to the other parties at
least 60 days in advance of such disposition. Upon receipt of such
notice, Qwest or Buyer, as the case may be, may request, at the
requesting party's expense, that such documents be delivered to them
instead of disposing of such documents.
(b) Buyer acknowledges that Qwest has issued the Legal
Holds to its employees as a result of pending government investigations
and/or private litigations that have been commenced or asserted against
Qwest or its Affiliates. Buyer acknowledges and agrees that it will
comply with the Legal Holds as if it were subject to the Legal Holds.
Notwithstanding anything else in this Section 6.3, Buyer and its
Subsidiaries
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(including Dex Media East LLC and its Subsidiaries) shall be required
to retain and maintain all Documents that are subject to a Legal Hold
or that would be subject to a Legal Hold if such Documents were owned
by Qwest or in the possession of Qwest employees until Buyer receives
written notice from the Qwest Parties that the Legal Holds are no
longer in effect. The Qwest Parties will provide prompt written notice
to Buyer of any change in the effective status of the Legal Holds,
including true and complete copies of any communication relating to
such change. The Qwest Parties and Buyer acknowledge and agree that
they have a common interest in preserving the Documents that are
subject to the Legal Holds and that review of Legal Holds by Buyer or
its Affiliates or employees for purposes of compliance with this
Section 6.3 shall not cause a waiver of any attorney-client, work
product or other applicable privilege that may exist with respect to
such Legal Holds or the Documents subject thereto and that such Legal
Holds shall be subject to the provisions of the Confidentiality
Agreements. Buyer further acknowledges and agrees that any disclosure
of the Legal Holds or the Documents subject thereto in violation of the
Confidentiality Agreements is not authorized by the Qwest Parties and
shall not cause a waiver of any attorney-client, work product or other
applicable privilege that may exist with respect to such Legal Holds or
Documents. Without limiting the foregoing, so long as the Legal Holds
continue to be in effect, the Qwest Parties shall be permitted to make
copies, at their expense, of Documents relating to the Xxxxxx
Transferred Business as they may deem necessary or advisable to obtain
and to make copies, at their expense, of Documents in the possession of
Company that are subject to any of the Legal Holds of the Qwest Parties
in effect at the time of Closing. The Qwest Parties agree to indemnify
and hold harmless the Buyer for any and all out-of-pocket Losses of any
kind arising out of Buyer's complying with the Legal Holds."
(j) Section 6.4 of the Xxxxxx Purchase Agreement is
amended to read in its entirety as follows:
"COOPERATION.
(a) After the Closing Date, upon Seller's request (at
Seller's expense) and without necessity of subpoena, Buyer will cause
Company and its representatives and counsel to cooperate fully with the
Qwest Parties and their representatives and counsel for purposes of
permitting the Qwest Parties to address and respond to any matters
involving the Qwest Parties that arise as a result of Seller's prior
ownership of and the Qwest Parties' association with Company and the
Xxxxxx Transferred Business, whether or not related to this Agreement,
including claims made by or against the Qwest Parties or any of their
Affiliates, whether involving any Governmental Entity or third party.
After the Closing Date, upon Buyer's request (at Buyer's expense) and
without necessity of subpoena, the Qwest Parties will cause their
Affiliates and their representatives and counsel to cooperate fully
with Buyer and its representatives and counsel for purposes of
permitting Buyer to address and respond to any matters involving Buyer
that arise as a result of Seller's prior ownership of Company and the
Xxxxxx Transferred Business, whether or not related to this Agreement,
whether involving any Governmental Entity or third party. Such
cooperation shall include (a) reasonable access during normal business
hours and upon reasonable notice to the other party's officers,
directors, employees,
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auditors, counsel, representatives, properties, books, records and
operating instructions and procedures and (b) the right to make and
retain copies of all pertinent documents and records relating to any
such matters. The parties' obligations under this Section 6.4 are in
addition to the parties' other obligations to cooperate with each other
contained in this Agreement, including the parties' obligations under
Section 6.1(e).
(b) Without limiting the foregoing, Buyer shall notify
Qwest (by email, to an address to be supplied by Qwest to Buyer in
writing within three Business Days after the Closing Date) of its
intention to sell, destroy or otherwise dispose of any of its
computers, or to erase any of the hard drives contained therein
(including, in each case, in connection with the resignation or
termination of any of Buyer's employees), at least 45 days prior to
such sale, destruction, disposal or erasure. For a period of 45 days
after Qwest's receipt of such notice, Qwest shall have the right to
take possession and ownership of any such computer or to "image" any
such computer or hard drive, in each case at Qwest's sole cost and
expense; provided that, within 30 days after receipt of such notice,
Qwest has notified Buyer (by email, to an address to be supplied by
Buyer to Qwest in writing within three Business Days after the Closing
Date) of its election to take ownership and possession or to image any
computer or hard drive, as the case may be."
(k) Section 7.2(m) of the Xxxxxx Purchase Agreement is
deleted in its entirety and marked as "Reserved."
(l) The second sentence of Section 9.7 of the Xxxxxx
Purchase Agreement is amended to read in its entirety as follows: "The foregoing
shall not limit the right of either party to indemnification in accordance with
the provisions of this Article IX with respect to all components of any claim,
settlement, award or judgment against such party by any unaffiliated third
party."
(m) Item 1 of Section 3.4(b) of Seller's Disclosure
Schedule is amended to read in its entirety as follows:
"The consent of the lenders under the Amended and
Restated Credit Agreement entered into by Qwest and certain of its
Affiliates as of March 12, 2002 (the "LENDERS") will be required in
connection with (i) the transactions contemplated by Section 8.2(b) of
the Dexter Purchase Agreement, and (ii) the Interim Financings (as
defined in Section 5.2 of this Disclosure Schedule)."
(n) The table captioned "UCC FILINGS" in Section 1.2PE of
Seller's Disclosure Schedule is amended so that, in each entry under the column
captioned "ASSETS ENCUMBERED," the word "Office" is inserted before the word
"Equipment."
(o) Section 7.2(d) of Seller's Disclosure Schedule is
amended to read in its entirety as follows: "The consent of the Lenders to the
transactions contemplated by Section 8.2(b) of the Dexter Purchase Agreement."
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(p) Exhibit U to the Xxxxxx Purchase Agreement is deleted
and replaced in its entirety by the document attached as Exhibit U to this
Amendment.
2. EFFECT OF AMENDMENT. Except as specifically provided
herein, this Amendment does not in any way affect or impair the terms,
conditions and other provisions of the Xxxxxx Purchase Agreement, and all terms,
conditions and other provisions of the Xxxxxx Purchase Agreement shall remain in
full force and effect, except to the extent expressly amended hereby.
3. CAPITALIZED TERMS. Capitalized terms used but
independently defined in this Amendment shall have the meanings ascribed to them
in the Xxxxxx Purchase Agreement.
4. GOVERNING LAW. This Amendment and the legal relations
between the parties will be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and performed in such
State and without regard to conflicts of law doctrines unless certain matters
are preempted by federal law.
5. HEADINGS. The descriptive headings of the Sections of
this Amendment are for convenience only and do not constitute a part of this
Amendment.
6. COUNTERPARTS. This Amendment may be executed in one
or more counterparts and by different parties in separate counterparts. All
counterparts will constitute one and the same instrument and will become
effective when one or more counterparts have been signed by each party and
delivered to the other party.
* * * * *
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment to be executed by its duly authorized officers as of the day and year
first above written.
DEX HOLDINGS LLC
By: /s/ Xxxxx X. Xxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Managing Director
"QWEST"
QWEST COMMUNICATIONS
INTERNATIONAL INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice Chairman and Chief Financial
Officer
"QSC"
QWEST SERVICES CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President - Finance
and Treasurer
"SELLER"
QWEST DEX, INC.
By: /s/ Xxx X. Xxxxxxx
---------------------------------------
Name: Xxx X. Xxxxxxx
Title: Senior Vice President - Corporate
Development
Amendment No. 1 to Purchase Agreement Execution Copy
S-1
EXHIBIT U
SEE ATTACHED
Ex. U
