EXHIBIT 2.2
AMENDMENT NO. 1 TO THE PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO THE PURCHASE AGREEMENT is made as of the 1st day
of September, 2004 (this "Amendment") to the Purchase Agreement, dated as of
July 28, 2004 (the "Purchase Agreement"), by and among Ameritech Corporation
("Ameritech"), Ameritech Publishing Inc., a Delaware corporation ("API", and
together with Ameritech, "Sellers"), and R. H. Donnelley Corporation, a Delaware
corporation ("Buyer"). Capitalized terms used but not defined herein shall have
the meanings ascribed to such terms in the Purchase Agreement.
RECITAL
Sellers and Buyer desire to amend the Purchase Agreement in the manner
described herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Final Balance Sheet. Section 5.2 of the Purchase Agreement is hereby
amended by adding the following as clause 5.2(e):
"(e) Sellers shall deliver to Buyer no later than December 31, 2004
an audited combined consolidated balance sheet of the DonTech Business as
of the close of business on the Closing Date (the "Closing Balance
Sheet"). The Closing Balance Sheet to be delivered to Buyer will be
prepared from, and will be consistent with, the books and records of the
Seller Entities which relate to the DonTech Business and will present
fairly and accurately, in all material respects, the financial position of
the DonTech Business on a combined consolidated basis as of the date
indicated, in conformity with GAAP consistently applied (the "Accounting
Principles") except as noted therein. Sellers shall engage Ernst & Young
(the "Sellers Auditor") to conduct the audit with respect to the Closing
Balance Sheet. Sellers shall deliver to Buyer the Closing Balance Sheet
together with the opinion of the Sellers Auditor thereon stating that the
audit has been conducted in accordance with the Accounting Principles
except as noted therein. Upon Buyer's reasonable request, Sellers shall
(i) provide Buyer or its representatives reasonable access to the work
papers, schedules and other documents prepared by Sellers in connection
with the preparation of the Closing Balance Sheet and (ii) use all
commercially reasonable efforts to cause the Sellers Auditor to provide
Buyer and its accounting firm with reasonable access the Sellers Auditor's
work papers used in connection with its audit with respect to the Closing
Balance Sheet. The Closing Balance Sheet shall in no event be deemed to be
included in the definition of Financial Statements for purposes of Section
3.6 of this Agreement. Buyer shall reimburse Sellers for all reasonable
costs and expenses incurred by Sellers in connection with the fulfillment
of their obligations under this clause (e). Notwithstanding anything to
the contrary in Section 5.14 of this Agreement, Sellers may retain any
financial books and records relating to the DonTech Business as reasonably
required to fulfill their obligations under this clause (e); provided,
that (A) Sellers shall provide Buyer or its representatives with
reasonable access to such retained financial books and records and (B) on,
or as reasonably practicable after, Sellers' delivery of the Closing
Balance Sheet to Buyer, subject to Section 5.14 of this
Agreement, Sellers will transfer, or caused to be transferred, to Buyer
all such retained financial books and records."
2. Vendor Contracts. Section 5.3 of the Purchase Agreement is hereby
amended by adding the following as clause 5.3(e):
"(e) Notwithstanding anything to the contrary in (x) Section 5.3(b)
or 5.3(c) of this Agreement or (y) any amendment to a Vendor Contract to
which Buyer or any of its Affiliates is a party (each such Vendor
Contract, as amended, an "Amended Vendor Contract"), in the event any
Vendor under an Amended Vendor Contract ceases for any reason (other than
a material breach by Buyer or any of its Affiliates of such Amended Vendor
Contract) to provide Buyer or any of its Affiliates with the services or
products provided under such Amended Vendor Contract prior to December 31,
2004, Sellers agree to provide such services and products, directly or
indirectly, to Buyer or its Affiliates on terms and conditions
substantially similar to those set forth in such Amended Vendor Contract,
for the period from and including the date on which the Vendor ceases to
provide such services or products until and including December 31, 2004."
3. Intercompany Accounts. Section 5.16 of the Purchase Agreement is hereby
amended to read in its entirety as follows:
"SECTION 5.16 INTERCOMPANY ACCOUNTS.
(a) All intercompany accounts, agreements or arrangements (other
than the Ancillary Agreements and the existing billing and collection
accounts, agreements and arrangements between the Companies, on the one
hand, and the SBC Telcos, on the other, and the financial rights and
obligations arising out of those accounts, agreements and arrangements)
between any Seller Entity (other than APIL Partners) and any of the
Companies shall be terminated as of the Closing without any settlement,
offset or payment of any consideration and shall be deemed without further
action to be fully discharged as of the Closing Date.
(b) From and after the Closing, the SBC Telcos shall continue to
bill and collect from customers of the Companies with respect to the
amounts listed in Account Nos. 1101.410 and 1199.999 of APIL Partners'
general ledger as of the Closing Date (the "Gross AR"), all in accordance
with the billing and collection practices that the SBC Telcos currently
utilize on behalf of the Companies and in accordance with the Transition
Services Agreement. In addition, the SBC Telcos shall perform similar
billing and collection services with respect to all new accounts
receivable (collectively, with the Gross AR, the "Companies AR") generated
by the Companies during the period from the Closing Date until 30 days
after the date on which the SBC Telcos cease to provide billing and
collection services under the Transition Services Agreement (the
"Transition Period").
(c) During the Transition Period, the SBC Telcos shall remit to
SBC Directory Operations monthly any amounts purchased from the Companies
AR in the
-2-
prior month net of the uncollectible settlement. SBC Directory Operations
will remit all such amounts to Buyer in accordance with the Transition
Services Agreement.
(d) Within 30 days following the end of the Transition Period,
except as otherwise provided in the Transition Services Agreement, the SBC
Telcos shall transfer all Companies AR which remain outstanding to SBC
Directory Operations (the "Outstanding AR"). SBC Directory Operations will
promptly transfer the Outstanding AR to the Buyer. Within 30 days after
such transfer the parties shall make a final settlement of all Companies
AR by netting the final prior month's monthly remittance amount due to
Buyer plus the holdback for the cumulative estimate for the uncollectible
due to Buyer less the amount due from the Buyer for the Outstanding AR
transferred to Buyer and due SBC. The net settlement amount, as determined
to be owed to SBC or Buyer, shall then be paid within five business days.
(e) Sellers agree that, as of the Closing, the Companies will own
all of the accounts receivable, whether billed or unbilled, of the DonTech
Business, whether or not such receivables are reflected in the financial
statements of the DonTech Business, other than any such accounts
receivable which have been transferred to the SBC Telcos in accordance
with the billing and collection agreements and arrangements with the SBC
Telcos that the Companies currently utilize. Payment for the final month's
billing prior to close which is recorded as an accounts receivable on APIL
Partners' balance sheet will be remitted to Buyer according to the
Transition Services Agreement."
4. Agreed Upon Procedures.
(a) Section 5.2(c) of the Purchase Agreement is hereby amended by
replacing "30 days" with "45 days" in the sixth sentence thereof.
(b) Schedule 5.2(c) of the Purchase Agreement is hereby amended
and replaced in its entirety with Schedule 5.2(c) attached hereto.
5. Company Disclosure Letter. Section 3.13 of the Company Disclosure
Letter is hereby amended by replacing "Knowledge Solutions/SRI" under the
caption "Usage Studies" with "Knowledge Networks/SRI".
6. Ancillary Agreements. Any amendments to the form of each of the
Ancillary Agreements (including any exhibits or schedules thereto) since the
date of the Purchase Agreement have been mutually agreed upon by the parties
hereto as evidenced by their execution and delivery by the applicable Seller
Parties and Buyer Parties on the date hereof.
7. No Other Amendments. Except as expressly amended hereby, the
provisions of the Purchase Agreement are and shall remain in full force and
effect.
8. Governing Law. This Amendment shall be governed and construed in
accordance with the laws of the State of New York.
9. Counterparts and Effectiveness. This Amendment may be executed in
one or more counterparts, all of which shall be considered one and the same
agreement and shall
-3-
become effective when one or more counterparts have been signed by each of the
parties and delivered to the other party, it being understood that both parties
need not sign the same counterpart.
-4-
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly
executed as of the date first above written.
AMERITECH CORPORATION
By: /s/ James S. Kahan
---------------------------------------
Name: James S. Kahan
Title: Sr. Exec. VP-Corp. Dev.
AMERITECH PUBLISHING, INC.
By: /s/ Dennis Payne
---------------------------------------
Name: Dennis Payne
Title: President and CEO
R. H. DONNELLEY CORPORATION
By: /s/ Robert J. Bush
---------------------------------------
Robert J. Bush
Vice President, General Counsel
and Corporate Secretary