Exhibit 2.1(b)
AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT ("Amendment") dated as of
July 31, 2002, is entered into between CenturyTel, Inc., a Louisiana corporation
("Seller"), and ALLTEL Communications, Inc., a Delaware corporation ("Buyer").
RECITALS
Buyer and Seller desire to amend a Stock Purchase Agreement dated as of
March 19, 2002, between Buyer and Seller (the "Agreement"), in the manner
specified herein.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained the parties agree as follows:
1. The definition of "Excluded Cellular Interest Amounts" in Section 1.1 of
the Agreement is hereby deleted in its entirety and replaced with the following:
"Excluded Cellular Interest Amounts" means, with respect to
any Excluded Cellular Interest, the greater of (i) the Agreed
Value of the Cellular Interest that is or has become an
Excluded Cellular Interest in accordance with Sections
2.4(c), 5.5(d) or 5.19 or (ii) any payments received, or to
be received, by Seller or any of its Affiliates in the event
an Excluded Cellular Interest has been sold or transferred,
or is to be sold or transferred, by Seller or any Affiliate
of Seller to any First Refusal Right Holder.
2. The definition of "Excluded Cellular Interest" in Section 1.1 of the
Agreement is hereby deleted in its entirety and replaced with the following:
"Excluded Cellular Interest" is a Cellular Interest that is
or becomes excluded, in accordance with the terms and
conditions of Sections 2.4(c), 5.5(d) or 5.19, from the
Cellular Interests for which the Buyer is to assume Control
at the Closing.
3. The following is hereby added in the Agreement after Section 2.4(b) of
the Agreement and before Section 2.5 of the Agreement:
"(c) Buyer acknowledges that it will not be acquiring the
Company's Cellular Interest in the Lafayette MSA Limited
Partnership ("Lafayette Partnership") and Buyer and Seller
agree that such Cellular Interest in the Lafayette
Partnership constitutes an Excluded Cellular Interest for
purposes of this Agreement. Seller shall cause the Company to
transfer and assign on or before the Closing Date, all right,
title and interest of the Company in and to the Company's
Excluded Cellular Interest in the Lafayette Partnership to
Seller. Any transfer or other actions taken with respect to
the Company's Excluded Cellular Interest in the Lafayette
Partnership pursuant to this Section 2.4(c) shall be without
recourse to, and shall not impose any Liability upon, any
CenturyTel Entity from and after the Closing Date. Without
limiting the generality of the preceding sentence and in
addition to the indemnification obligations of Seller set
forth elsewhere herein, Seller shall indemnify, defend and
hold harmless each Buyer Indemnitee against and in respect of
any and all Losses or Taxes incurred or suffered by any Buyer
Indemnitee that result from, relate to or arise out of any
transfer or other action contemplated by this Section 2.4(c).
With respect to such Excluded Cellular Interest, the Base
Purchase Price shall be reduced in accordance with Section
2.2 by an amount equal to all Excluded Cellular Interest
Amounts."
4. Section 2.5 of the Agreement is hereby deleted in its entirety and
replaced with the following:
"2.5 Closing. Unless this Agreement shall have been earlier
terminated in accordance with the terms and conditions of
this Agreement, the Closing shall occur, unless otherwise
agreed to in writing by the parties, at 9:00 a.m. central
time on the first Business Day of the calendar month
immediately following the calendar month in which the last
condition precedent set forth in Article 6 (other than such
other conditions precedent that are not capable of being
satisfied until the Closing) is satisfied or waived. If the
Closing occurs, for purposes of this Agreement the Closing
shall be deemed to have occurred at 12:01 a.m. central time
on the Closing Date (the "Effective Time"). The Closing shall
take place at the office of Buyer in Little Rock, Arkansas."
5. The third sentence of Section 8.12(c) of the Agreement is hereby deleted
in its entirety and replaced with the following:
"As soon as reasonably practicable after the Closing Date
(but in no event later than the date that is 30 Business Days
prior to the date required to timely file the Section 338
Forms with the appropriate Taxing authorities), Buyer and
Seller shall execute IRS Form(s) 8023 and any forms required
to make any elections under state or local law that are
analogous to a Section 338(h)(10) Election."
6. The following is hereby added in the Agreement after Section 9.5 of the
Agreement and before Article 10 of the Agreement:
"9.6 Lafayette Partnership. (a) Because the Lafayette
Partnership holds the B Band FCC Authorization serving
Iberville Parish, Louisiana and Buyer's Affiliate holds the A
Band FCC Authorization serving Iberville Parish, Louisiana,
the Cellular Interest in the Lafayette Partnership has been
designated an Excluded Cellular Interest in accordance with
Section 2.4(c) of the Agreement. For a period of six months
following the Closing Date, each of Seller and Buyer shall
use its commercially reasonable efforts to obtain (i) an
affirmative waiver from the FCC of its cross ownership rule
set forth in 47 C.F.R. Section 22.942 and (ii) an amendment
to the Lafayette Partnership duly executed by each of the
partners in the Lafayette Partnership in the form attached
hereto as Schedule 9.6(a) or such other form approved in
writing by Buyer which approval shall not be unreasonably
withheld, in each case, necessary to permit Buyer to acquire
the entire right, title and interest of Seller in and to
Seller's Excluded Cellular Interest in the Lafayette
Partnership (inclusive of the B Band FCC Authorization
serving Iberville Parish, Louisiana) and to retain the
ownership held by Buyer's Affiliate of the A Band FCC
Authorization serving Iberville Parish, Louisiana (the waiver
and amendment set forth in Section 9.6(a)(i) and (ii) shall
be referred to collectively as the "Lafayette Waivers").
(b) The Lafayette Waivers shall (i) be Final Orders, (ii) be
free from any adverse terms, conditions and restrictions on
the business or operations of Buyer or its Affiliates,
including, without limitation, any requirement that Buyer or
its Affiliates divest any FCC Authorization and (iii) not
result in the waiver of any right asserted by Buyer or its
Affiliates that is or is reasonably likely to be adverse to
Buyer or its Affiliates.
(c) If the parties obtain the Lafayette Waivers in accordance
with the terms and conditions set forth in this Section 9.6,
Seller agrees to grant, sell, transfer and deliver to Buyer
the entire right, title and interest of Seller in and to, and
Buyer agrees to purchase from Seller, the Excluded Cellular
Interest in the Lafayette Partnership (inclusive of the B
Band FCC Authorization serving Iberville Parish, Louisiana)
for an amount of cash equal to the Agreed Value attributable
to the Excluded Cellular Interest in the Lafayette
Partnership on terms and conditions substantially similar to
the terms and conditions set forth in this Agreement,
including, without limitation, substantially similar
representations, warranties, covenants and agreements (the
"Lafayette Purchase Agreement").
(d) From and following the Closing Date, Seller shall, and
shall cause its Affiliates to, perform and comply with the
covenants set forth in Sections 5.3, 5.4, 5.9 and 5.12 of
this Agreement with respect to the Excluded Cellular Interest
in the Lafayette Partnership regardless of the fact that such
Cellular Interest is an Excluded Cellular Interest.
(e) In the event (i) the parties are unable to obtain the
Lafayette Waivers in accordance with the terms and conditions
of this Section 9.6 on or before the last day of the six
month period following the Closing or (ii) any other
condition to Buyer's obligation to purchase Seller's Excluded
Cellular Interest in the Lafayette Partnership set forth in
the Lafayette Purchase Agreement has not been satisfied or
fulfilled on or before the last day of the six month period
following the Closing, Buyer shall have no obligation or
liability of any type or description whatsoever with respect
to the Seller's Excluded Cellular Interest in the Lafayette
Partnership and this Section 9.6 shall become void and of no
further force or effect."
7. The reference to the Real Property located at 371 Bert Kouns Industrial
Loop, Shreveport, Louisiana set forth on Schedule 3.15(a) Real Property - Retail
of the Agreement is hereby deleted in its entirety.
8. Capitalized terms used herein but not otherwise defined shall have the
meaning ascribed to such terms in the Agreement.
9. All other terms and conditions of the Agreement, not otherwise
inconsistent with this Amendment, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amendment on
the date first written above.
CENTURYTEL, INC.
By: /s/ Stacey Goff
____________________________
Name: Stacey Goff
Title: Vice President and
Assistant Legal Counsel
ALLTEL COMMUNICATIONS, INC.
By: /s/ Francis Xavier Frantz
____________________________
Name: Francis Xavier Frantz
Title: Executive Vice President