0000895345-05-000050.txt : 20120626
0000895345-05-000050.hdr.sgml : 20120626
20050112170308
ACCESSION NUMBER: 0000895345-05-000050
CONFORMED SUBMISSION TYPE: SC 13D/A
PUBLIC DOCUMENT COUNT: 2
FILED AS OF DATE: 20050112
DATE AS OF CHANGE: 20050112
GROUP MEMBERS: GOLDMAN SACHS DIRECT INVESTMENT FUND 2000, L.P.
GROUP MEMBERS: GOLDMAN, SACHS & CO.
GROUP MEMBERS: GOLDMAN, SACHS & CO.OHG
GROUP MEMBERS: GOLDMAN, SACHS MANAGEMENT GP GMBH
GROUP MEMBERS: GS ADVISORS 2000, L.L.C.
GROUP MEMBERS: GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
GROUP MEMBERS: GS CAPITAL PARTNERS 2000 GMBH & CO. BETEILIGUNGSKG
GROUP MEMBERS: GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
GROUP MEMBERS: GS CAPITAL PARTNERS 2000, L.P.
GROUP MEMBERS: GS EMPLOYEE FUNDS 2000 GP, L.L.C.
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: R H DONNELLEY CORP
CENTRAL INDEX KEY: 0000030419
STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ADVERTISING [7310]
IRS NUMBER: 132740040
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D/A
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-12472
FILM NUMBER: 05526423
BUSINESS ADDRESS:
STREET 1: 1001 WINSTEAD DRIVE
CITY: CARY
STATE: NC
ZIP: 27513
BUSINESS PHONE: 9198046000
MAIL ADDRESS:
STREET 1: 1001 WINSTEAD DRIVE
CITY: CARY
STATE: NC
ZIP: 27513
FORMER COMPANY:
FORMER CONFORMED NAME: DUN & BRADSTREET CORP
DATE OF NAME CHANGE: 19920703
FORMER COMPANY:
FORMER CONFORMED NAME: DUN & BRADSTREET COMPANIES INC
DATE OF NAME CHANGE: 19790429
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: GOLDMAN SACHS GROUP INC/
CENTRAL INDEX KEY: 0000886982
STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211]
IRS NUMBER: 134019460
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1128
FILING VALUES:
FORM TYPE: SC 13D/A
BUSINESS ADDRESS:
STREET 1: 85 BROAD ST
CITY: NEW YORK
STATE: NY
ZIP: 10004
BUSINESS PHONE: 2129021000
MAIL ADDRESS:
STREET 1: 85 BROAD ST
CITY: NEW YORK
STATE: NY
ZIP: 10004
SC 13D/A
1
ds13da2.txt
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 4)*
R.H. Donnelley Corporation
-------------------------------------------------------------------------------
(Name of Issuer)
Common Stock (Par Value $ 1.00 Per Share)
-------------------------------------------------------------------------------
(Title of Class of Securities)
74955W307
-------------------------------------------------------------------------------
(CUSIP Number)
David N. Shine, Esq. David J. Greenwald, Esq.
Fried, Frank, Harris, Shriver & Jacobson LLP Goldman, Sachs & Co.
One New York Plaza 85 Broad Street
New York, NY 10004 New York, NY 10004
(212) 859-8000 (212) 902-1000
-------------------------------------------------------------------------------
(Name, Address and Telephone Number of Persons Authorized to Receive Notices
and Communications)
January 10, 2005
-------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box |_|.
*The remainder of this cover page will be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page will not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but will be subject to all other provisions of the
Act (however, see the Notes).
SCHEDULE 13D
CUSIP No. 74955W 30 7 Page 2 of 34
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Goldman Sachs Group, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
12,000
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 11,568,647
9 SOLE DISPOSITIVE POWER
EACH
12,000
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 11,568,647
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,580,647
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.9%
14 TYPE OF REPORTING PERSON
HC-CO
SCHEDULE 13D
CUSIP No. 74955W 30 7 Page 3 of 34
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs & Co.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF, WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |X|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 11,568,647
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 11,568,647
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11,568,647
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
26.9%
14 TYPE OF REPORTING PERSON
BD-PN-IA
SCHEDULE 13D
CUSIP No. 74955W 30 7 Page 4 of 34
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Advisors 2000, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 8,697,750
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 8,697,750
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,697,750
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
21.6%
14 TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 74955W 30 7 Page 5 of 34
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs & Co. oHG
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 266,558
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 266,558
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
266,558
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.8%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 74955W 30 7 Page 6 of 34
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman, Sachs Management GP GmbH
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 266,558
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 266,558
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
266,558
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.8%
14 TYPE OF REPORTING PERSON
CO
SCHEDULE 13D
CUSIP No. 74955W 30 7 Page 7 of 34
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Employee Funds 2000 GP, L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 2,604,181
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 2,604,181
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,604,181
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.6%
14 TYPE OF REPORTING PERSON
OO
SCHEDULE 13D
CUSIP No. 74955W 30 7 Page 8 of 34
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners 2000, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 6,379,658
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 6,379,658
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
6,379,658
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.8%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 74955W 30 7 Page 9 of 34
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners 2000 Offshore, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Cayman Islands
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 2,318,092
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 2,318,092
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,318,092
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.9%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 74955W 30 7 Page 10 of 34
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Germany
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 266,558
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 266,558
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
266,558
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.8%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 74955W 30 7 Page 11 of 34
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GS Capital Partners 2000 Employee Fund, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 2,025,767
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 2,025,767
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,025,767
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.0%
14 TYPE OF REPORTING PERSON
PN
SCHEDULE 13D
CUSIP No. 74955W 30 7 Page 12 of 34
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Goldman Sachs Direct Investment Fund 2000, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 578,414
9 SOLE DISPOSITIVE POWER
EACH
0
REPORTING
PERSON 10 SHARED DISPOSITIVE POWER
WITH 578,414
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
578,414
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.8%
14 TYPE OF REPORTING PERSON
PN
This Amendment No. 4 is being filed by The Goldman Sachs Group, Inc.
("GS Group"), Goldman, Sachs & Co. ("Goldman Sachs"), GS Advisors 2000,
L.L.C. ("GS Advisors"), Goldman, Sachs & Co. oHG ("GS oHG"), Goldman, Sachs
Management GP GmbH ("GS GmbH"), GS Employee Funds 2000 GP, L.L.C. ("GS
Employee 2000"), GS Capital Partners 2000, L.P. ("GS Capital"), GS Capital
Partners 2000 Offshore, L.P. ("GS Offshore"), GS Capital Partners 2000 GmbH
& Co. Beteiligungs KG ("GS Germany"), GS Capital Partners 2000 Employee
Fund, L.P. ("GS Employee"), Goldman Sachs Direct Investment Fund 2000, L.P.
("GS Direct" and, together with GS Capital, GS Offshore, GS Germany and GS
Employee, the "Purchasers") (GS Group, Goldman Sachs, GS Advisors, GS oHG,
GS GmbH, GS Employee 2000, and the Purchasers, collectively, the "Filing
Persons"). This Amendment No. 4 amends and supplements the Schedule 13D
filed on behalf of the Filing Persons with the Securities and Exchange
Commission on December 5, 2002 (as amended by Amendment No. 1 filed on
January 7, 2003, by Amendment No. 2 filed on July 24, 2003 and by Amendment
No. 3 filed on October 21, 2004 the "Schedule 13D"), relating to the common
stock, par value $1.00 per share (the "Common Stock"), of R.H. Donnelley
Corporation, a Delaware corporation (the "Company"). Capitalized terms used
but not otherwise defined herein shall have the meanings ascribed to such
terms in the Schedule 13D.1
ITEM 1 SECURITY AND ISSUER.
-------------------
The last sentence of Item 1 is hereby amended in its entirety as follows:
The principal executive offices of the Company are at 1001 Winstead
Drive, Cary, N.C. 27513.
ITEM 3 SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
-------------------------------------------------
Item 3 is hereby amended to add the following at the end thereof:
As of January 10, 2005, the Purchasers beneficially owned 9,918,489
shares of Common Stock as a result of the shares of Preferred Stock held by
them. This number includes shares of Common Stock that the Preferred Stock
is convertible into as a result of dividends that have accrued on the
shares of Preferred Stock in accordance with the Certificate of
Designations as of January 10, 2005 and will accrue within 60 days
thereafter.
ITEM 4. PURPOSE OF TRANSACTION.
----------------------
Item 4 is hereby amended by adding the following immediately before the
section entitled "Other Plans and Proposals" contained in the Schedule 13D:
Stock Purchase Agreement
------------------------
--------
1 Neither the present filing nor anything contained herein will be
construed as an admission that any Filing Person constitutes a "person"
for any purpose other than for compliance with Section 13(d) of the
Securities Exchange Act of 1934.
On January 10, 2005, the Purchasers entered into a Stock Purchase
Agreement with the Company (the "2005 Purchase Agreement") pursuant to
which the Company agreed to acquire from the Purchasers an aggregate amount
of 100,303 shares of Preferred Stock (the "Repurchased Shares"), or
approximately 50% of the aggregate amount of shares of Preferred Stock held
by the Purchasers, for an aggregate purchase price of approximately $277.2
million. Assuming all other conditions to the 2005 Purchase Agreement are
satisfied, the sale of the Repurchased Shares will close concurrently with
or immediately following the closing (the "Repurchase Closing") of the
Company's issuance of $300 million of Senior Notes due 2013 (the
"Financing") (the date of such Repurchase Closing, the "Repurchase Closing
Date"). The 2005 Purchase Agreement is filed as Exhibit 24 hereto and is
incorporated herein by reference.
Representations and Warranties
The 2005 Purchase Agreement contains customary representations and
warranties by the parties for transactions contemplated thereby.
Conditions to Obligations of the Purchasers
The obligations of the Purchasers to consummate the sale of the
Repurchased Shares are subject to the satisfaction or waiver of each of the
following conditions on or prior to the Repurchase Closing: (i) all of the
representations and warranties of the Company set forth in the 2005
Purchase Agreement and the Ancillary Documents (as defined in the 2005
Purchase Agreement) must be true and correct in all material respects on
and as of the date of the 2005 Purchase Agreement and as of the Repurchase
Closing Date; (ii) the Company must have performed all obligations and
complied with all agreements, undertakings, covenants and conditions
required to be performed by the Company at or prior to the Repurchase
Closing; (iii) no statute, rule, order, decree or injunction of a
Governmental Entity (as defined in the 2005 Purchase Agreement) of
competent jurisdiction is enjoining or prohibiting the consummation of the
transactions contemplated by the 2005 Purchase Agreement; and (iv) the
delivery by the Company to the Purchasers of a certificate, dated the
Repurchase Closing Date, signed by a duly authorized officer of the Company
that the conditions described in clauses (i) through (iii) of this
paragraph have been satisfied.
Conditions to Obligations of the Company
The obligations of the Company to consummate the repurchase of the
Repurchased Shares are subject to the satisfaction or waiver of each of the
following conditions on or prior to the Repurchase Closing: (i) all of the
representations and warranties of the Purchasers set forth in the 2005
Purchase Agreement and the Ancillary Documents must be true and correct in
all material respects on and as of the date of the 2005 Purchase Agreement
and as of the Repurchase Closing Date; (ii) the Purchasers must have
performed all obligations and complied with all agreements, undertakings,
covenants and conditions required to be performed by the Purchasers at or
prior to the Repurchase Closing; (iii) no statute, rule, order, decree or
injunction of a Governmental Entity of competent jurisdiction is enjoining
or prohibiting the consummation of the transactions contemplated by the
2005 Purchase Agreement; (iv) the Company shall have received proceeds of
at least $280 million from the Financing and (v) the delivery by each of
the Purchasers to the Company of a certificate, dated the Repurchase
Closing Date, signed by an authorized signatory of the Purchaser that the
conditions described in clauses (i) through (iii) of this paragraph have
been satisfied.
Termination
The 2005 Purchase Agreement may be terminated on or any time prior to
the Repurchase Closing:
(i) by the mutual written consent of each of the Purchasers and the
Company; or
(ii) by either the Company or the Purchasers if the Repurchase Closing
has not occurred prior to January 31, 2005, provided, that the right to
terminate the 2005 Purchase Agreement is not available to any party that
fails to perform or observe any agreement set forth in the 2005 Purchase
Agreement required to be performed or observed by such party on or before
the Repurchase Closing; or
(iii) by either the Company or the Purchasers if a Governmental Entity
issues a nonappealable final order, decree or ruling or takes any other
action having the effect of permanently restraining, enjoining or otherwise
prohibiting the transactions contemplated by the 2005 Purchase Agreement.
Termination of the 2005 Purchase Agreement will terminate all
obligations and liabilities of the Company and the Purchasers under the
2005 Purchase Agreement except for certain liabilities and obligations,
including liabilities for breach by any party of the 2005 Purchase
Agreement.
Indemnification
Pursuant to the 2005 Purchase Agreement, representations, warranties,
covenants and agreements of the parties contained in the 2005 Purchase
Agreement survive the Repurchase Closing and the delivery of the Ancillary
Documents.
Pursuant to the 2005 Purchase Agreement, the Company agreed, from and
after the Repurchase Closing Date, to indemnify the Purchasers, their
affiliates, and their officers, directors, partners, employees, agents,
representatives, successors and any assigns of any of the foregoing
("Purchaser Indemnitees") against all claims, losses, liabilities, damages,
interest and penalties, costs and expenses (other than any of the foregoing
resulting from any tax liabilities incurred by any of the Purchasers),
including, without limitation, losses resulting from the defense,
settlement or compromise of a claim, action, suit, investigation, subpoena
or other compulsion of testimony, or proceeding, reasonable attorneys',
accountants' and expert witnesses' fees, costs and expenses of
investigation, and the costs and expenses of enforcing the indemnification
provided hereunder incurred by any of the Purchaser Indemnitees arising out
of or relating to: (i) any breach of any representation or warranty made by
the Company in the 2005 Purchase Agreement or any Ancillary Document, (ii)
any breach of any covenant, agreement or obligation of the Company
contained in the 2005 Purchase Agreement or any Ancillary Document, or
(iii) any actual or threatened claim, litigation, action, suit,
investigation or proceeding by any person (other than a Purchaser
Indemnitee) in connection with (A) the transactions contemplated by the
2005 Purchase Agreement or by the Ancillary Documents or (B) the
negotiation, execution, delivery and performance of the 2005 Purchase
Agreement or the Ancillary Documents.
Expenses
Each of the parties to the 2005 Purchase Agreement agreed to bear the
legal, accounting and other expenses incurred by such party in connection
with the negotiation, preparation and execution of the 2005 Purchase
Agreement, the Ancillary Documents and the transactions contemplated
thereby. The Company agreed to pay all sales, transfer, recordation and
documentary taxes and fees that are payable in connection with the
transactions contemplated by the 2005 Purchase Agreement.
Acknowledgement of Rights
The Company acknowledged and agreed that the transactions contemplated
by the 2005 Purchase Agreement do not amend or change any of the Purchasers
rights as holders of the shares of Preferred Stock to be owned by the
Purchasers after the Repurchase Closing.
Item 4 is hereby further amended by adding the following at the end thereof:
Other Proposals
---------------
Except as described above or otherwise described in the Schedule 13D
or in this Amendment No. 4, the Filing Persons currently have no plans or
proposals which relate to or would result in any transaction, event or
action enumerated in paragraphs (a) through (j) of Item 4 of the form of
Schedule 13D promulgated under the Act.
Each of the Filing Persons reserves the right, in light of its ongoing
evaluation of the Company's financial condition, business, operations and
prospects, the market price of the Common Stock, conditions in the
securities markets generally, general economic and industry conditions, its
business objectives and other relevant factors, to change its plans and
intentions at any time, as it deems appropriate. In particular, any one or
more of the Filing Persons (and their respective affiliates) reserves the
right, in each case subject to any applicable limitations imposed on the
sale of any of their Company securities by the Securities Act or other
applicable law, to (i) purchase additional shares of Common Stock or other
securities of the Company, (ii) sell or transfer shares of Preferred Stock,
Common Stock or other securities beneficially owned by them from time to
time in public or private transactions, (iii) cause any of the Purchasers
to distribute in kind to their respective partners or members, as the case
may be, shares of Preferred Stock, Common Stock or other securities owned
by such Purchasers and (iv) enter into privately negotiated derivative
transactions with institutional counterparties to hedge the market risk of
some or all of their positions in the shares of Common Stock, Preferred
Stock, or other securities. To the knowledge of each Filing Person, each of
the persons listed on Schedules I, II-A-i, II-A-ii, II-B-i, II-B-ii, II-C-i
or II-C-ii hereto may make similar evaluations from time to time or on an
ongoing basis.
ITEM 5. INTERESTS IN SECURITIES OF THE ISSUER.
-------------------------------------
Item 5 is hereby amended in its entirety as follows:
(a) As of January 10, 2005, GS Group may be deemed to beneficially own
an aggregate of 11,580,647 shares of Common Stock, consisting of (i)
200,604 shares of Preferred Stock, which are convertible into 9,918,489
shares of Common Stock, which may be deemed to be beneficially owned by the
Purchasers, (ii) November Warrants (which are exercisable immediately) to
purchase 577,500 shares of Common Stock, which may be deemed to be
beneficially owned by the Purchasers, (iii) Warrants (which are exercisable
immediately) to purchase 1,072,500 shares of Common Stock, which may be
deemed to be beneficially owned by the Purchasers, (iv) 158 shares of
Common Stock acquired by Goldman Sachs in ordinary course trading
activities, and (v) (a) (I) 1,500 options granted to Terence O'Toole on
January 3, 2003 pursuant to the R.H. Donnelley Corporation 2001 Stock Award
and Incentive Stock Plan, of which two-thirds of such options are currently
exercisable and convertible into 1,000 shares of Common Stock and the
remaining one-third of such options will vest and become exercisable at the
close of business on the day preceding the next annual meeting of the
Company's stockholders, (II) 1,500 options granted to Terence O'Toole on
May 1, 2003 pursuant to the R.H. Donnelley Corporation 2001 Stock Award and
Incentive Stock Plan, of which one-third of such options are currently
exercisable and convertible into 500 shares of Common Stock and the
remaining two-thirds of such options will vest and become exercisable in
equal installments at the close of business on the day preceding each of
the next two annual meetings of the Company's stockholders, (III) 1,500
options granted to Mr. O'Toole on May 5, 2004 pursuant to the R.H.
Donnelley Corporation 2001 Stock Award and Incentive Stock Plan, none of
which such options are currently exercisable and such options will vest and
become exercisable in equal installments at the close of business on the
day preceding each of the next three annual meetings of the Company's
stockholders, (IV) 1,500 deferred shares granted to Mr. O'Toole on January
3, 2003 pursuant to the R.H. Donnelley Corporation 2001 Stock Award and
Incentive Stock Plan, 1,000 of which deferred shares are currently vested
and the remaining 500 deferred shares will vest in at the close of business
on the day preceding the next annual meeting of the Company's stockholders,
(V) 1,500 deferred shares granted to Mr. O'Toole on May 1, 2003 pursuant to
the R.H. Donnelley Corporation 2001 Stock Award and Incentive Stock Plan,
500 of which deferred shares are currently vested and the remaining 1,000
deferred shares will vest in equal installments at the close of business on
the day preceding each of the next two annual meetings of the Company's
stockholders, and (VI) 1,500 deferred shares granted to Mr. O'Toole on May
5, 2004 pursuant to the R.H. Donnelley Corporation 2001 Stock Award and
Incentive Stock Plan, none of which deferred shares are currently vested
and such 1,500 deferred shares will vest in equal installments at the close
of business on the day preceding each of the next three annual meetings of
the Company's stockholders (Mr. O'Toole has an understanding with GS Group
pursuant to which he holds such options and deferred shares for the benefit
of GS Group), and (b) (I) 1,500 options granted to Robert R. Gheewalla on
January 3, 2003 pursuant to the R.H. Donnelley Corporation 2001 Stock Award
and Incentive Stock Plan, of which two-thirds of such options are currently
exercisable and convertible into 1,000 shares of Common Stock and the
remaining one-third of such options will vest and become exercisable at the
close of business on the day preceding the next annual meeting of the
Company's stockholders, (II) 1,500 options granted to Mr. Gheewalla on May
1, 2003 pursuant to the R.H. Donnelley Corporation 2001 Stock Award and
Incentive Stock Plan, of which one-third of such options are currently
exercisable and convertible into 500 shares of Common Stock and the
remaining two-thirds of such options will vest and become exercisable in
equal installments at the close of business on the day preceding each of
the next two annual meetings of the Company's stockholders, (III) 1,500
options granted to Mr. Gheewalla on May 5, 2004 pursuant to the R.H.
Donnelley Corporation 2001 Stock Award and Incentive Stock Plan, none of
which such options are currently exercisable and such options will vest and
become exercisable in equal installments at the close of business on the
day preceding each of the next three annual meetings of the Company's
stockholders, (IV) 1,500 deferred shares granted to Mr. Gheewalla on
January 3, 2003 pursuant to the R.H. Donnelley Corporation 2001 Stock Award
and Incentive Stock Plan, 1,000 of which deferred shares are currently
vested and the remaining 500 deferred shares will vest in at the close of
business on the day preceding the next annual meeting of the Company's
stockholders, (V) 1,500 deferred shares granted to Mr. Gheewalla on May 1,
2003 pursuant to the R.H. Donnelley Corporation 2001 Stock Award and
Incentive Stock Plan, 500 of which deferred shares are currently vested and
the remaining 1,000 deferred shares will vest in equal installments at the
close of business on the day preceding each of the next two annual meetings
of the Company's stockholders, and (VI) 1,500 deferred shares granted to
Mr. Gheewalla on May 5, 2004 pursuant to the R.H. Donnelley Corporation
2001 Stock Award and Incentive Stock Plan, none of which deferred shares
are currently vested and such 1,500 deferred shares will vest in equal
installments at the close of business on the day preceding each of the next
three annual meetings of the Company's stockholders (Mr. Gheewalla has an
understanding with GS Group pursuant to which he holds such options and
deferred shares for the benefit of GS Group), representing in the aggregate
approximately 26.9% of the outstanding Common Stock, based on calculations
made in accordance with Rule 13d-3(d) of the Act.
As of January 10, 2005, Goldman Sachs may be deemed to beneficially
own an aggregate of 11,568,647 shares of Common Stock, consisting of (i)
200,604 shares of Preferred Stock, which are convertible into 9,918,489
shares of Common Stock, which may be deemed to be beneficially owned by the
Purchasers, (ii) November Warrants (which are exercisable immediately) to
purchase 577,500 shares of Common Stock, which may be deemed to be
beneficially owned by the Purchasers, (iii) Warrants (which are exercisable
immediately) to purchase 1,072,500 shares of Common Stock, which may be
deemed to be beneficially owned by the Purchasers and (iv) 158 shares of
Common Stock acquired by Goldman Sachs in ordinary course trading
activities, representing in the aggregate approximately 26.9% of the
outstanding shares of Common Stock based on calculations made in accordance
with Rule 13d-3(d) of the Act.
GS Group and Goldman Sachs disclaim beneficial ownership of the shares
of Common Stock beneficially owned by the Purchasers to the extent that
partnership interests in the Purchasers are held by persons other than
Goldman Sachs or its affiliates.
In accordance with Securities and Exchange Commission Release No.
34-39538 (January 12, 1998), this filing reflects the securities
beneficially owned by the investment banking division ("IBD") of GS Group
and its subsidiaries and affiliates (collectively, "Goldman Sachs Group").
This filing does not reflect securities, if any, beneficially owned by any
other operating unit of Goldman Sachs Group. IBD disclaims beneficial
ownership of the securities beneficially owned by (i) any client accounts
with respect to which IBD or its employees have voting or investment
discretion, or both and (ii) certain investment entities, of which IBD is
the general partner, managing general partner or other manager, to the
extent interests in such entities are held by persons other than IBD.
As of January 10, 2005, GS Advisors may be deemed to beneficially own
the aggregate of 8,697,750 shares of Common Stock that may be deemed to be
beneficially owned by GS Capital and GS Offshore, consisting of (i) 150,824
shares of Preferred Stock, which are convertible into 7,457,211 shares of
Common Stock, (ii) November Warrants (which are exercisable immediately) to
purchase 434,189 shares of Common Stock and (iii) Warrants (which are
exercisable immediately) to purchase 806,350 shares of Common Stock,
representing in the aggregate, approximately 21.6% of the outstanding
shares of Common Stock based on calculations made in accordance with Rule
13d-3(d) of the Act.
As of January 10, 2005, each of GS oHG and GS GmbH may be deemed to
beneficially own the aggregate of 266,558 shares of Common Stock that may
be deemed to be beneficially owned by GS Germany, consisting of (i) 4,622
shares of Preferred Stock which are convertible into 228,526 shares of
Common Stock, (ii) November Warrants (which are exercisable immediately) to
purchase 13,311 shares of Common Stock and (iii) Warrants (which are
exercisable immediately) to purchase 24,721 shares of Common Stock,
representing in the aggregate, approximately 0.8% of the outstanding shares
of Common Stock based on calculations made in accordance with Rule 13d-3(d)
of the Act.
As of January 10, 2005, GS Employee 2000 may be deemed to beneficially
own the aggregate of 2,604,181 shares of Common Stock that may be deemed to
be beneficially owned by GS Employee and GS Direct, consisting of (i)
45,158 shares of Preferred Stock which are convertible into 2,232,752
shares of Common Stock, (ii) November Warrants (which are exercisable
immediately) to purchase 130,000 shares of Common Stock and (iii) Warrants
(which are exercisable immediately) to purchase 241,429 shares of Common
Stock, representing in the aggregate, approximately 7.6% of the outstanding
shares of Common Stock based on calculations made in accordance with Rule
13d-3(d) of the Act.
As of January 10, 2005, GS Capital may be deemed to beneficially own
6,379,658 shares of Common Stock, consisting of (i) 110,627 shares of
Preferred Stock, which are convertible into 5,469,746 shares of Common
Stock, (ii) November Warrants (which are exercisable immediately) to
purchase 318,470 shares of Common Stock and (iii) Warrants (which are
exercisable immediately) to purchase 591,442 shares of Common Stock,
representing in the aggregate, approximately 16.8% of the outstanding
shares of Common Stock based on calculations made in accordance with Rule
13d-3(d) of the Act.
As of January 10, 2005, GS Offshore may be deemed to beneficially own
2,318,092 shares of Common Stock, consisting of (i) 40,197 shares of
Preferred Stock, which are convertible into 1,987,465 shares of Common
Stock, (ii) November Warrants (which are exercisable immediately) to
purchase 115,719 shares of Common Stock and (iii) Warrants (which are
exercisable immediately) to purchase 214,908 shares of Common Stock,
representing in the aggregate, approximately 6.9% of the outstanding shares
of Common Stock based on calculations made in accordance with Rule 13d-3(d)
of the Act.
As of January 10, 2005, GS Germany may be deemed to beneficially own
266,558 shares of Common Stock, consisting of (i) 4,622 shares of Preferred
Stock, which are convertible into 228,526 shares of Common Stock, (ii)
November Warrants (which are exercisable immediately) to purchase 13,311
shares of Common Stock and (iii) Warrants (which are exercisable
immediately) to purchase 24,721 shares of Common Stock, representing in the
aggregate, approximately 0.8% of the outstanding shares of Common Stock
based on calculations made in accordance with Rule 13d-3(d) of the Act.
As of January 10, 2005, GS Employee may be deemed to beneficially own
2,025,767 shares of Common Stock, consisting of (i) 35,128 shares of
Preferred Stock, which are convertible into 1,736,838 shares of Common
Stock, (ii) November Warrants (which are exercisable immediately) to
purchase 101,125 shares of Common Stock and (iii) Warrants (which are
exercisable immediately) to purchase 187,804 shares of Common Stock,
representing in the aggregate, approximately 6.0% of the outstanding shares
of Common Stock based on calculations made in accordance with Rule 13d-3(d)
of the Act.
As of January 10, 2005, GS Direct may be deemed to beneficially own
578,414 shares of Common Stock, consisting of (i) 10,030 shares of
Preferred Stock, which are convertible into 495,914 shares of Common Stock,
(ii) November Warrants (which are exercisable immediately) to purchase
28,875 shares of Common Stock and (iii) Warrants (which are exercisable
immediately) to purchase 53,625 shares of Common Stock, representing in the
aggregate, approximately 1.8% of the outstanding shares of Common Stock
based on calculations made in accordance with Rule 13d-3(d) of the Act.
None of the Filing Persons or, to the knowledge of the Filing Persons,
the persons listed on Schedules I, II-A-i, II-A-ii, II-B-i, II-B-ii, II-C-i
or II-C-ii hereto beneficially owns any shares of Common Stock other than
as set forth herein.
(b) GS Group holds the sole power to direct the vote and disposition
of the options and deferred shares held for the benefit of GS Group by
Messrs. O'Toole and Gheewalla. Except as described in the previous
sentence, each Filing Person shares the power to vote or direct the vote
and to dispose or to direct the disposition of shares of Common Stock
beneficially owned by such Filing Person as indicated above.
(c) Except as described above and elsewhere in this Amendment No. 4,
no other transactions in the shares of Common Stock were effected by the
Filing Persons, or, to their knowledge, any of the persons listed on
Schedules I, II-A-i, II-A-ii, II-B-i, II-B-ii, II-C-i or II-C-ii hereto,
during the last 60 days.
(d) Except for clients of Goldman Sachs who may have the right to
receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, any shares of Common Stock held in Managed
Accounts, no other person is known by any Filing Person to have the right
to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, any shares of Common Stock that are beneficially
owned by any Filing Person.
(e) Not applicable.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
--------------------------------
Exhibit 1 Joint Filing Agreement, dated as of December 4, 2002.*
Exhibit 2 Letter Agreement, dated as of November 25, 2002, by and
among the Purchasers, R.H. Donnelley, Inc. and the Company.*
Exhibit 3 Series B-1 Convertible Cumulative Preferred Stock
Certificate of Designations.*
Exhibit 4 Form of Warrant issued to the Purchasers on November 25,
2002.*
Exhibit 5 Preferred Stock and Warrant Purchase Agreement, dated as of
September 21, 2002, by and among the Company and the
Purchasers.*
Exhibit 6 Form of Convertible Cumulative Preferred Stock Certificate
of Designations.*
Exhibit 7 Form of Warrant.*
Exhibit 8 Registration Rights Agreement, dated as of November 25,
2002, among the Purchasers and the Company.*
Exhibit 9 Power of Attorney, dated as of December 12, 2003, relating
to The Goldman Sachs Group, Inc.*
Exhibit 10 Power of Attorney, dated as of November 19, 2003, relating
to Goldman, Sachs & Co.*
Exhibit 11 Power of Attorney, dated as of August 19, 2004, relating to
GS Advisors 2000, L.L.C.*
Exhibit 12 Power of Attorney, dated as of August 5, 2004, relating to
Goldman, Sachs & Co. oHG.*
Exhibit 13 Power of Attorney, dated as of August 19, 2004, relating to
Goldman, Sachs Management GP GmbH.*
Exhibit 14 Power of Attorney, dated as of August 19, 2004, relating to
GS Employee Funds 2000 GP, L.L.C.*
Exhibit 15 Power of Attorney, dated as of August 19, 2004, relating to
GS Capital Partners 2000, L.P.*
Exhibit 16 Power of Attorney, dated as of August 19, 2004, relating to
GS Capital Partners 2000 Offshore, L.P.*
Exhibit 17 Power of Attorney, dated as of August 19, 2004, relating to
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG.*
Exhibit 18 Power of Attorney, dated as of August 19, 2004, relating to
GS Capital Partners 2000 Employee Fund, L.P.*
Exhibit 19 Power of Attorney, dated as of October 21, 2004, relating to
Goldman Sachs Direct Investment Fund 2000, L.P.*
Exhibit 20 Convertible Cumulative Preferred Stock Certificate of
Designations.*
Exhibit 21 Form of warrants issued on January 3, 2003.*
Exhibit 22 Agreement regarding certain definitions contained in the
Purchase Agreement.*
Exhibit 23 Letter Agreement, dated as of July 22, 2003, by and among
the Purchasers, R.H. Donnelley, Inc. and the Company.*
Exhibit 24 Stock Purchase Agreement, dated as of January 10, 2005, by
and among the Purchasers and the Company.
--------
* Previously filed
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
January 12, 2005
THE GOLDMAN SACHS GROUP, INC.
By: /s/ Ted Chang
------------------------
Name: Ted Chang
Title: Attorney-in-fact
GOLDMAN, SACHS & CO.
By: /s/ Ted Chang
------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS ADVISORS 2000, L.L.C.
By: /s/ Ted Chang
------------------------
Name: Ted Chang
Title: Attorney-in-fact
GOLDMAN, SACHS & CO. OHG
By: /s/ Ted Chang
------------------------
Name: Ted Chang
Title: Attorney-in-fact
GOLDMAN, SACHS MANAGEMENT GP GMBH
By: /s/ Ted Chang
------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS EMPLOYEE FUNDS 2000 GP, L.L.C.
By: /s/ Ted Chang
------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000, L.P.
By: /s/ Ted Chang
------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: /s/ Ted Chang
------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 GMBH & CO.
BETEILIGUNGS KG
By: /s/ Ted Chang
------------------------
Name: Ted Chang
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND,
L.P.
By: /s/ Ted Chang
------------------------
Name: Ted Chang
Title: Attorney-in-fact
GOLDMAN SACHS DIRECT INVESTMENT FUND
2000, L.P.
By: /s/ Ted Chang
------------------------
Name: Ted Chang
Title: Attorney-in-fact
SCHEDULE II-A-i
---------------
Schedule II-A-i to the Schedule 13D is hereby amended by replacing it
in its entirety with the following:
The name, position and present principal occupation of each executive
officer of GS Advisors 2000, L.L.C., the sole general partner of GS Capital
Partners 2000, L.P. and GS Capital Partners 2000 Offshore, L.P., are set
forth below.
The business address for all the executive officers listed below is
c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except
as follows: The business address of Richard S. Sharp, Hughes B. Lepic,
Robert R. Gheewalla, Bjorn P. Killmer, Benoit Valentin and Ulrika Werdelin
is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The
business address of Mary Nee is Cheung Kong Center, 68th Floor, 2 Queens
Road, Central, Hong Kong. The business address of Joseph P. DiSabato is 555
California Street, San Francisco, CA 94104. The business address of Muneer
A. Satter is 4900 Sears Tower, Chicago, IL 60606.
All executive officers listed below are United States citizens, except
as follows: Richard S. Sharp is a citizen of the United Kingdom. Hughes B.
Lepic and Benoit Valentin are citizens of France. Ulrika Werdelin is a
citizen of Sweden. Bjorn P. Killmer is a citizen of Germany.
Name Position Present Principal Occupation
Richard A. Friedman President Managing Director of Goldman, Sachs &
Co.
Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs &
Co
Terence M. O'Toole Vice President Managing Director of Goldman, Sachs &
Co.
Henry Cornell Vice President Managing Director of Goldman, Sachs &
Co.
Richard S. Sharp Vice President Managing Director of Goldman Sachs
International
Esta E. Stecher Assistant Managing Director of Goldman, Sachs &
Secretary Co.
Sanjeev K. Mehra Vice President Managing Director of Goldman, Sachs &
Co.
Muneer A. Satter Vice President Managing Director of Goldman, Sachs &
Co.
Steven M. Bunson Assistant Managing Director of Goldman, Sachs &
Secretary Co.
Elizabeth C. Treasurer Managing Director of Goldman, Sachs &
Fascitelli Co.
David M. Weil Assistant Managing Director of Goldman, Sachs &
Treasurer Co.
David J. Greenwald Assistant Managing Director of Goldman, Sachs &
Secretary Co.
Hughes B. Lepic Vice President Managing Director of Goldman Sachs
International
Russell E. Makowsky Assistant Managing Director of Goldman, Sachs &
Secretary Co.
Sarah G. Smith Assistant Managing Director of Goldman, Sachs &
Treasurer Co.
Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs &
Co.
Stephen S. Trevor Vice President Managing Director of Goldman, Sachs &
Co.
Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs &
Co.
Robert R. Gheewalla Vice President Managing Director of Goldman Sachs
International
Ben I. Adler Vice President Managing Director of Goldman, Sachs &
Co.
Melina E. Higgins Vice President Managing Director of Goldman, Sachs &
Co.
Adrian M. Jones Vice President Managing Director of Goldman, Sachs &
Co.
John E. Bowman Vice President Vice President of Goldman, Sachs & Co.
Katherine B. Enquist Vice President/ Managing Director of Goldman, Sachs &
Secretary Co.
Beverly L. O'Toole Assistant Vice President of Goldman, Sachs & Co.
Secretary
Mitchell S. Weiss Vice President Vice President of Goldman, Sachs & Co.
Matthew E. Tropp Assistant Associate General Counsel of Goldman,
Secretary Sachs & Co.
Mary Nee Vice President Executive Director of Goldman Sachs
(Asia) L.L.C.
Ulrika Werdelin Vice President Executive Director of Goldman Sachs
International
Kenneth A. Pontarelli Vice President Managing Director of Goldman, Sachs &
Co.
Stuart A. Katz Vice President Managing Director of Goldman, Sachs &
Co.
Bjorn P. Killmer Vice President Managing Director of Goldman Sachs
International
Benoit Valentin Vice President Managing Director of Goldman Sachs
International
SCHEDULE II-A-ii
----------------
Schedule II-A-ii to the Schedule 13D is hereby amended by replacing it
in its entirety with the following:
The name and principal occupation of each member of the Principal
Investment Area Investment Committee of Goldman, Sachs & Co., which
exercises the authority of Goldman, Sachs & Co. in managing GS Advisors
2000, L.L.C., GS Capital Partners 2000, L.P., GS Capital Partners 2000
Offshore, L.P., GS Capital Partners 2000 GmbH & Co. Beteiligungs KG, GS
Capital Partners 2000 Employee Fund, L.P. and Goldman Sachs Direct
Investment Fund 2000, L.P., are set forth below.
The business address for each member listed below is c/o Goldman,
Sachs & Co., 85 Broad Street, New York, New York 10004, except as follows:
The business address of Richard S. Sharp, Rob Gheewalla, and Hughes Lepic
is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The
business address of Muneer A. Satter is 4900 Sears Tower, Chicago, IL
60606.
All members listed below are United States citizens, except as
follows: Richard S. Sharp is a citizen of the United Kingdom and Hughes B.
Lepic is a citizen of France.
Name Present Principal Occupation
Peter M. Sacerdote Advisory Director of Goldman, Sachs & Co.
Richard A. Friedman Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Managing Director of Goldman, Sachs & Co.
Henry Cornell Managing Director of Goldman, Sachs & Co.
Richard S. Sharp Managing Director of Goldman Sachs International
Sanjeev K. Mehra Managing Director of Goldman, Sachs & Co.
Muneer A. Satter Managing Director of Goldman, Sachs & Co.
Peter G. Sachs Senior Director of The Goldman Sachs Group, Inc.
Scott Kapnick Managing Director of Goldman, Sachs & Co.
Melina Higgins Managing Director of Goldman, Sachs & Co.
Ben Adler Managing Director of Goldman, Sachs & Co.
David Weil Managing Director of Goldman, Sachs & Co.
Stephen Trevor Managing Director of Goldman, Sachs & Co.
Rob Gheewalla Managing Director of Goldman Sachs International
Hughes Lepic Managing Director of Goldman Sachs International
SCHEDULE II-B-i
---------------
Schedule II-B-i to the Schedule 13D is hereby amended by replacing it
in its entirety with the following:
The name, position and present principal occupation of each executive
officer and director of Goldman, Sachs & Co. Finanz GmbH which is the sole
managing general partner of Goldman, Sachs & Co. oHG are set forth below.
The business address for each of the executive officers and directors
listed below is MesseTurm, 60308 Frankfurt am Main, Germany.
The executive officers and directors listed below are citizens of
Germany.
Name Position Present Principal Occupation
Andreas Koernlein Managing Director Managing Director of Goldman, Sachs
& Co. oHG
Alexander C. Dibelius Managing Director Managing Director of Goldman, Sachs
& Co. oHG
Peter Hollmann Managing Director Managing Director of Goldman, Sachs
& Co. oHG
SCHEDULE II-C-i
---------------
Schedule II-C-i to the Schedule 13D is hereby amended by replacing it
in its entirety with the following:
The name, position and present principal occupation of each executive
officer of GS Employee Funds 2000 GP, L.L.C., the sole general partner of
GS Capital Partners 2000 Employee Fund, L.P. and Goldman Sachs Direct
Investment Fund 2000, L.P., are set forth below.
The business address for all the executive officers listed below is
c/o Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, except
as follows: The business address of Richard S. Sharp, Hughes B. Lepic,
Robert R. Gheewalla, Bjorn P. Killmer, Benoit Valentin and Ulrika Werdelin
is 133 Fleet Street, London EC4A 2BB, England. The business address of Mary
Nee is Cheung Kong Center, 68th Floor, 2 Queens Road, Central, Hong Kong.
The business address of Joseph P. DiSabato is 555 California Street, San
Francisco, CA 94104. The business address of Muneer A. Satter is 4900 Sears
Tower, Chicago, IL 60606.
All executive officers listed below are United States citizens, except
as follows: Richard S. Sharp is a citizen of the United Kingdom. Hughes B.
Lepic and Benoit Valentin are citizens of France. Ulrika Werdelin is a
citizen of Sweden. Bjorn P. Killmer is a citizen of Germany.
Name Position Present Principal Occupation
Richard A. Friedman President Managing Director of Goldman, Sachs
& Co.
Joseph H. Gleberman Vice President Managing Director of Goldman, Sachs
& Co.
Terence M. O'Toole Vice President Managing Director of Goldman, Sachs
& Co.
Henry Cornell Vice President Managing Director of Goldman, Sachs
& Co.
Richard S. Sharp Vice President Managing Director of Goldman Sachs
International
Esta E. Stecher Vice President/ Managing Director of Goldman, Sachs
Assistant & Co.
Secretary
Sanjeev K. Mehra Vice President Managing Director of Goldman, Sachs
& Co.
Muneer A. Satter Vice President Managing Director of Goldman, Sachs
& Co.
Steven M. Bunson Vice President/ Managing Director of Goldman, Sachs
Assistant & Co.
Secretary
Elizabeth C. Vice President Managing Director of Goldman, Sachs
Fascitelli & Co.
David M. Weil Assistant Managing Director of Goldman, Sachs
Treasurer & Co.
David J. Greenwald Vice President/ Managing Director of Goldman, Sachs
Assistant & Co.
Secretary
Hughes B. Lepic Vice President Managing Director of Goldman Sachs
International
Russell E. Makowsky Vice President/ Managing Director of Goldman, Sachs
Assistant & Co.
Secretary
Sarah E. Smith Assistant Managing Director of Goldman, Sachs
Treasurer & Co.
Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs
& Co.
Stephen S. Trevor Vice President Managing Director of Goldman,
Sachs & Co.
Joseph P. DiSabato Vice President Managing Director of Goldman, Sachs
& Co.
Robert R. Gheewalla Vice President Managing Director of Goldman Sachs
International
Ben I. Adler Vice President Managing Director of Goldman, Sachs
& Co.
Melina E. Higgins Vice President Managing Director of Goldman, Sachs
& Co.
Adrian M. Jones Vice President Managing Director of Goldman, Sachs
& Co.
John E. Bowman Vice President Vice President of Goldman, Sachs &
Co.
Katherine B. Enquist Vice President/ Managing Director of Goldman, Sachs
Secretary & Co.
Beverly L. O'Toole Assistant Vice President of Goldman, Sachs &
Secretary Co.
Raymond G. Matera Vice President Vice President of Goldman, Sachs &
Co.
Mitchell S. Weiss Vice President Vice President of Goldman, Sachs &
Co.
Mary Nee Vice President Executive Director of Goldman Sachs
(Asia) L.L.C.
Matthew Tropp Vice President Associate General Counsel of
Goldman, Sachs, & Co.
Richard J. Stingi Vice President Vice President of Goldman, Sachs &
Co.
Ulrika Werdelin Vice President Executive Director of Goldman Sachs
International
Kenneth A. Pontarelli Vice President Managing Director of Goldman, Sachs
& Co.
Stuart A. Katz Vice President Managing Director of Goldman, Sachs
& Co.
Bjorn P. Killmer Vice President Managing Director of Goldman Sachs
International
Benoit Valentin Vice President Managing Director of Goldman Sachs
International
SCHEDULE II-C-ii
----------------
Schedule II-C-ii to the Schedule 13D is hereby amended by replacing it
in its entirety with the following:
The name and principal occupation of each member of the GS Employee
Funds Investment Committee of Goldman, Sachs & Co., which exercises the
authority of Goldman, Sachs & Co. in managing GS Employee Funds 2000 GP,
L.L.C., and Goldman Sachs Direct Investment Fund 2000, L.P. are set forth
below.
The business address for each member listed below is 85 Broad Street,
New York, New York 10004, except as follows: The business address of
Richard S. Sharp, Rob Gheewalla and Hughes Lepic is 133 Fleet Street,
London EC4A 2BB, England. The business address of Muneer A. Satter is 4900
Sears Tower, Chicago, IL 60606.
All members listed below are United States citizens, except as
follows: Richard S. Sharp is a citizen of the United Kingdom and Hughes
Lepic is a citizen of France.
Name Present Principal Occupation
Peter M. Sacerdote Advisory Director of Goldman, Sachs & Co.
Richard A. Friedman Managing Director of Goldman, Sachs & Co.
Joseph H. Gleberman Managing Director of Goldman, Sachs & Co.
Terence M. O'Toole Managing Director of Goldman, Sachs & Co.
Henry Cornell Managing Director of Goldman, Sachs & Co.
Richard S. Sharp Managing Director of Goldman Sachs International
Sanjeev K. Mehra Managing Director of Goldman, Sachs & Co.
Muneer A. Satter Managing Director of Goldman, Sachs & Co.
Peter G. Sachs Senior Director of The Goldman Sachs Group, Inc.
Scott Kapnick Managing Director of Goldman, Sachs & Co.
Melina Higgins Managing Director of Goldman, Sachs & Co.
Ben Adler Managing Director of Goldman, Sachs & Co.
David Weil Managing Director of Goldman, Sachs & Co.
Stephen Trevor Managing Director of Goldman, Sachs & Co.
Rob Gheewalla Managing Director of Goldman Sachs International
Hughes Lepic Managing Director of Goldman Sachs International
EX-99.24
2
exhibit99_24.txt
EXECUTION COPY
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STOCK PURCHASE AGREEMENT
BY AND AMONG
R.H. DONNELLEY CORPORATION
GS CAPITAL PARTNERS 2000, L.P.,
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.,
GS CAPITAL PARTNERS 2000 GMBH & CO. BETEILIGUNGS KG,
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
AND
GOLDMAN SACHS DIRECT INVESTMENT FUND 2000, L.P.
DATED AS OF JANUARY 10, 2005
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TABLE OF CONTENTS
-----------------
Page
----
ARTICLE I PURCHASE AND SALE OF SHARES; CLOSING...........................2
Section 1.1. Sale and Transfer of Purchased Shares.....................2
Section 1.2. Closing...................................................2
Section 1.3. Conditions to the Closing.................................2
ARTICLE II REPRESENTATIONS AND WARRANTIES.................................4
Section 2.1. Representations and Warranties of RHD.....................4
Section 2.2. Representations and Warranties of the Stockholders........5
ARTICLE III TERMINATION....................................................6
Section 3.1. Termination...............................................6
Section 3.2. Effect of Termination.....................................6
ARTICLE IV MISCELLANEOUS..................................................7
Section 4.1. Taking of Necessary Action; Consent.......................7
Section 4.2. Expenses; Transfer Taxes..................................7
Section 4.3. Entire Agreement; Amendments; Waivers.....................7
Section 4.4. Counterparts..............................................7
Section 4.5. Governing Law.............................................7
Section 4.6. Public Announcements......................................7
Section 4.7. Notices...................................................8
Section 4.8. Successors and Assigns....................................9
Section 4.9. Jurisdiction; Waiver of Jury Trial........................9
Section 4.10. Captions; References......................................9
Section 4.11. Schedule..................................................9
Section 4.12. Third Parties............................................10
Section 4.13. Certain Definitions......................................10
Section 4.14. Severability.............................................10
Section 4.15. No Strict Construction...................................11
Section 4.16. Survival; Indemnification................................11
Section 4.17. Acknowledgement of Rights................................11
Section 4.18. Use of Proceeds..........................................11
Section 4.19. Capitalization Notice....................................12
Schedule A - Selling Stockholders; Specified Purchase Price
TABLE OF DEFINED TERMS
Page
----
Affiliate....................................................................10
Agreement.....................................................................1
Amendment.....................................................................1
Ancillary Documents...........................................................4
Closing.......................................................................2
Closing Date..................................................................2
Financing.....................................................................3
Governmental Entity...........................................................4
Liens.........................................................................2
Material Adverse Effect......................................................10
Person.......................................................................10
Preferred Stock...............................................................1
Purchase Agreement...........................................................10
Purchased Shares..............................................................1
Remaining Shares.............................................................11
RHD...........................................................................1
Specified Purchase Price......................................................2
Stockholder...................................................................1
Stockholder Indemnitees......................................................11
Stockholders..................................................................1
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "AGREEMENT"), dated as of January
10, 2005, is by and among R.H. Donnelley Corporation, a Delaware
Corporation ("RHD"), and the stockholders listed on Schedule A attached
hereto (each, a "STOCKHOLDER" and collectively, the "STOCKHOLDERS").
RECITALS:
A. Immediately prior to the execution of this Agreement, the
Stockholders are the record and beneficial owners of the number of shares
of Convertible Cumulative Preferred Stock, par value $1 per share, of RHD
(the "PREFERRED STOCK") set forth opposite such Stockholder's name under
the caption "Shares of Preferred Stock Beneficially Owned" on Schedule A
attached hereto, and each Stockholder has the right to vote and dispose of
all of such shares of Preferred Stock.
B. RHD has agreed to acquire from the Stockholders, and the
Stockholders have agreed to sell to RHD, subject to the terms and
conditions of this Agreement, the number of shares of Preferred Stock set
forth opposite such Stockholder's name under the caption "Shares of
Preferred Stock To Be Sold" on Schedule A attached hereto (such shares of
Preferred Stock are referred to collectively in this Agreement as the
"PURCHASED SHARES").
C. Prior to entering into this Agreement, RHD's board of directors
established a special committee (the "SPECIAL COMMITTEE"), that did not
include any representatives of the Stockholders, to negotiate the terms of
the transaction contemplated herein with the Stockholders on an arms-length
basis (the "TRANSACTION").
D. The Special Committee, after its negotiation and review of the
Transaction, which included advice from an independent investment bank of
national reputation, determined that the Transaction was beneficial and
fair to RHD and that it should be consummated as described herein.
E. The Second Amendment (the "AMENDMENT") to the Amended and Restated
Credit Agreement, dated as of September 1, 2004, among RHD, R.H. Donnelley
Inc., the several banks and other financial institutions or entities from
time to time party thereto, Deutsche Bank Trust Company Americas, as
administrative agent, and the other agents parties thereto, has been duly
executed by or on behalf of each of the parties to the Amendment and is in
full force and effect.
F. RHD and the Stockholders desire to set forth certain agreements
herein.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereby
agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES; CLOSING
Section 1.1 Sale and Transfer of Purchased Shares. At the Closing,
effective as of the Closing Date, and subject to the terms and conditions
set forth in this Agreement, the Stockholders shall sell, transfer, convey,
assign and deliver to RHD, and RHD shall purchase and acquire from the
Stockholders, the Purchased Shares, free and clear of any mortgage, pledge,
hypothecation, rights of others, claim, security interest, encumbrance,
title defect, title retention agreement, voting trust agreement, option,
lien, charge or similar restrictions or limitations, including any
restriction on the right to vote, sell or otherwise dispose of the
Purchased Shares but excluding any restrictions or limitations under
applicable law (collectively, "LIENS"). The purchase price to be paid to
each Stockholder at the Closing in exchange for such Stockholder's
Purchased Shares shall be as set forth opposite such Stockholder's name
under the caption "Specified Purchase Price" on Schedule A (with respect to
each such Stockholder, such Stockholder's "SPECIFIED PURCHASE PRICE").
Section 1.2 Closing. Subject to the satisfaction or waiver of the
conditions set forth in Section 1.3, the closing of the sale of the
Purchased Shares (the "CLOSING") shall take place at the offices of Jones
Day, North Point, 901 Lakeside Avenue, Cleveland, Ohio 44114 concurrently
with or immediately following the closing of the Financing, or at such
other time and/or place as shall be mutually agreed upon by RHD and the
Stockholders. The date upon which the Closing occurs is referred to herein
as the "CLOSING DATE."
Section 1.3 Conditions to the Closing.
(a) RHD. The obligation of RHD to purchase the Purchased Shares
at the Closing is subject to the satisfaction or waiver of each of the
following conditions at or prior to the Closing:
(i) Representations and Warranties; Covenants. The
representations and warranties of the Stockholders contained in
this Agreement and the Ancillary Documents shall be true and
correct in all material respects (disregarding for these purposes
any materiality, Material Adverse Effect or corollary
qualifications contained therein) on and as of the date of this
Agreement and on and as of the Closing Date with the same effect
as though made on and as of such date, and the Stockholders shall
have performed all obligations and complied with all agreements,
undertakings, covenants and conditions required under this
Agreement and the Ancillary Documents to be performed by the
Stockholders at or prior to the Closing.
(ii) No Injunction. There shall not be in effect any
statute, law, regulation, rule, order, decree or injunction of a
Governmental Entity of competent jurisdiction that enjoins or
prohibits consummation of the transactions contemplated hereby.
(iii) Financing. RHD shall have received net proceeds of at
least $280 million from the financing contemplated by the
Offering Memorandum related to the issuance of $300 million of
RHD's Senior Notes due 2013 on the terms and subject to the
conditions thereof (the "FINANCING").
(iv) Stock Certificates and Stock Powers. RHD shall have
received stock certificates representing the Purchased Shares
owned by the Stockholders with duly executed stock powers
attached for transfer to RHD.
(v) Stockholders' Officer Certificates. RHD shall have
received a certificate from each Stockholder, in form and
substance reasonably satisfactory to RHD, dated the Closing Date,
duly executed by an authorized signatory of each such
Stockholder, certifying that the conditions set forth in Section
1.3(a)(i) and (ii) have been satisfied.
(b) The Stockholders. The obligation of each Stockholder to sell
the Purchased Shares at the Closing is subject to the satisfaction or
waiver of each of the following conditions at or prior to the Closing:
(i) Representations and Warranties; Covenants. The
representations and warranties of RHD contained in this Agreement
and the Ancillary Documents shall be true and correct in all
material respects (disregarding for these purposes any
materiality, Material Adverse Effect or corollary qualifications
contained therein) on and as of the date of this Agreement and on
and as of the Closing Date with the same effect as though made on
and as of such date, and RHD shall have performed all obligations
and complied with all agreements, undertakings, covenants and
conditions required under this Agreement and the Ancillary
Documents to be performed by RHD at or prior to the Closing.
(ii) No Injunction. There shall not be in effect any
statute, law, regulation, rule, order, decree or injunction of a
Governmental Entity of competent jurisdiction that enjoins or
prohibits consummation of the transactions contemplated hereby.
(iii) Payment of the Specified Purchase Price. Such
Stockholder shall have received payment of the Specified Purchase
Price by bank wire transfer to an account or accounts designated
in writing for this purpose by such Stockholder to RHD at least
two business days prior to the Closing Date.
(iv) Stock Certificates. Such Stockholder shall have
received a stock certificate representing the shares of Preferred
Stock owned by the Stockholders after giving effect to the
purchase of the Purchased Shares.
(v) RHD's Officer Certificate. The Stockholders shall have
received a certificate from RHD, in form and substance reasonably
satisfactory to the Stockholders, dated the Closing Date, duly
executed by an authorized officer of RHD, certifying that the
conditions set forth in Section 1.3(b)(i) and (ii) have been
satisfied.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of RHD. RHD represents and
warrants to, and agrees with, the Stockholders on the date hereof and at
and as of the Closing as follows:
(a) Organization; Authorization. RHD is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority
to execute and deliver this Agreement and the other agreements and
instruments executed and delivered or to be executed and delivered
under this Agreement (the "ANCILLARY DOCUMENTS") to which it is a
party and perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement and the Ancillary Documents
and the performance by RHD of its covenants and agreements under this
Agreement and the Ancillary Documents have been duly and validly
authorized by the Board of Directors of RHD, and no other corporate
proceedings on the part of RHD (including, without limitation, any
stockholder vote or approval) are necessary to authorize the
execution, delivery and performance of this Agreement or the Ancillary
Documents or the consummation of the transactions contemplated hereby
and thereby. This Agreement has been, and each of the Ancillary
Documents will be at Closing, duly executed and delivered by RHD and
constitutes, or as of the Closing will constitute, the valid and
binding agreement of RHD, enforceable against RHD in accordance with
its terms, except that (a) such enforcement may be subject to any
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other laws, now or hereafter in effect relating to or
limiting creditors' rights generally, and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(b) No Conflicts. Neither the execution and delivery of this
Agreement or the Ancillary Documents nor the consummation of the
transactions contemplated by this Agreement or the Ancillary Documents
will (i) conflict with or result in any breach of any provision of the
incorporation documents or By-laws of RHD or any of its subsidiaries,
(ii) require any filing with, or the obtaining of any permit,
authorization, consent or approval of, any court, department, body,
board, bureau, administrative agency or commission or other
governmental authority or instrumentality, whether federal, state,
local or foreign ("GOVERNMENTAL ENTITY"), (iii) assuming RHD's receipt
of the Amendment, violate, conflict with or result in a default (or
any event which, with notice or lapse of time or both, would
constitute a default) or require any consent under, or give rise to
any right of termination, cancellation or acceleration under, any of
the terms, conditions or provisions of any (x) note, mortgage,
indenture, credit agreement, other evidence of indebtedness or
guarantee, or (y) license, agreement, lease or other contract,
instrument or obligation, to which RHD or any of its subsidiaries is a
party or by which RHD or any of its subsidiaries or any of their
respective assets may be bound, or (iv) violate any order, injunction,
decree, statute, law, rule or regulation applicable to RHD or any of
its subsidiaries, excluding from the foregoing clauses (ii) and
(iii)(y) such requirements, violations, conflicts, defaults or rights
that would not, individually or in the aggregate, constitute a
Material Adverse Effect.
(c) Solvency. RHD is not, and after giving effect to the
Financing and the purchase of the Purchased Shares will not be,
insolvent within the meaning of Title 11 of the United States Code,
the General Corporation Law of the State of Delaware, or the General
Laws of the State of New York.
(d) Capitalization. As of the date of this Agreement, there are
31,486,001 shares of RHD common stock, $1 par value per share, that
are issued and outstanding.
(e) No Other Representation. Except for the representations of
RHD contained in this Agreement and the Ancillary Documents, RHD makes
no other representation or warranties, express or implied.
Section 2.2. Representations and Warranties of the Stockholders. Each
Stockholder represents and warrants to, and agrees with, RHD on the date
hereof and at and as of the Closing as follows:
(a) Organization; Authorization. Such Stockholder is a limited
partnership duly organized and validly existing under the laws of the
state or country of its jurisdiction of formation. Such Stockholder
has the power and authority to execute and deliver this Agreement and
the Ancillary Documents to which it is a party and perform its
obligations hereunder and thereunder. The execution and delivery of
this Agreement and the Ancillary Documents to which it is a party and
the performance by such Stockholder of its covenants and agreements
under this Agreement and the Ancillary Documents to which it is a
party have been duly and validly authorized by the general partner of
such Stockholder, and no further proceedings on the part of such
Stockholder are necessary to authorize the execution, delivery and
performance of this Agreement or the Ancillary Documents to which it
is a party or the consummation of the transactions contemplated hereby
and thereby. This Agreement has been, and each of the Ancillary
Documents to which such Stockholder is a party will be at Closing,
duly executed and delivered by such Stockholder and constitutes, or as
of the Closing will constitute, the valid and binding agreement of
such Stockholder, enforceable against such Stockholder in accordance
with its terms, except that (a) such enforcement may be subject to any
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other laws, now or hereafter in effect, relating to or
limiting creditors' rights generally, and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(b) No Conflicts. Neither the execution and delivery of this
Agreement or the Ancillary Documents to which such Stockholder is a
party nor the consummation of the transactions contemplated by this
Agreement or the Ancillary Documents to which such Stockholder is a
party will (i) conflict with or result in any breach of any provision
of the organization documents or by-laws of such Stockholder, (ii)
require any filing with, or the obtaining of any permit,
authorization, consent or approval of, any Governmental Entity, (iii)
violate, conflict with or result in a default (or any event which,
with notice or lapse of time or both, would constitute a default) or
require any consent under, or give rise to any right of termination,
cancellation or acceleration under, any of the terms, conditions or
provisions of any note, mortgage, indenture, other evidence of
indebtedness, guarantee, license, agreement, lease or other contract,
instrument or obligation to which such Stockholder is a party or by
which such Stockholder or any of its assets may be bound, or (iv)
violate any order, injunction, decree, statute, law, rule or
regulation applicable to such Stockholder, excluding from the
foregoing clauses (ii) and (iii) such requirements, violations,
conflicts, defaults or rights that would not adversely affect the
ability of such Stockholder to consummate the transactions
contemplated by this Agreement.
(c) Purchased Shares and Interest. Such Stockholder is the sole
record and beneficial owner of the Preferred Stock owned by such
Stockholder as set forth opposite such Stockholder's name on Schedule
A attached hereto under the caption "Shares of Preferred Stock
Beneficially Owned" and has good and marketable title to such
Preferred Stock, free and clear of any Liens.
(d) No Other Representation. Except for the representations of
such Stockholder contained in this Agreement and the Ancillary
Documents to which it is a party, such Stockholder makes no other
representation or warranties, express or implied.
ARTICLE III
TERMINATION
Section 3.1. Termination. This Agreement may be terminated on or any
time prior to the Closing:
(a) by the mutual written consent of each of the Stockholders and
RHD; or
(b) by either RHD or the Stockholders if the Closing shall not
have occurred prior to January 31, 2005, unless the failure of such
occurrence shall be due to the failure of such party to perform or
observe any agreement set forth herein required to be performed or
observed by such party on or before the Closing; or
(c) by RHD or the Stockholders if a Governmental Entity shall
have issued a nonappealable final order, decree or ruling or taken any
other action having the effect of permanently restraining, enjoining
or otherwise prohibiting the transactions contemplated by this
Agreement.
Section 3.2. Effect of Termination. In the event of the termination of
this Agreement as provided in Section 3.1, all obligations and agreements
of the parties set forth in this Agreement shall forthwith become void
except for the obligations set forth in Sections 4.2 - 4.15 and the second
sentence of Section 4.16 (which, in each case, shall remain in full force
and effect) and there shall be no liability or obligation on the part of
the parties hereto except as otherwise provided in this Agreement.
Notwithstanding the foregoing, the termination of this Agreement under
Section 3.1 shall not relieve either party of any liability for breach of
this Agreement prior to the date of termination.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Taking of Necessary Action; Consent. Each of the parties
hereto shall use its reasonable best efforts promptly to take or cause to
be taken all action and promptly to do or cause to be done all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this
Agreement, including without limitation, in the case of RHD, using
reasonable best efforts to cause the Financing to be successfully
completed, and for such purpose, at the reasonable request of the other
party, before, at or after the Closing will, without further consideration,
promptly execute and deliver, or cause to be executed and delivered, to the
other party such other instruments in addition to those required by this
Agreement, in form and substance satisfactory to the other party. The
Stockholders hereby consent, pursuant to Section 4.04 of the Purchase
Agreement, to the transactions contemplated by this Agreement, including,
without limitation, the Financing and the purchase of the Purchased Shares.
Section 4.2. Expenses; Transfer Taxes. Each party hereto will bear the
legal, accounting and other expenses incurred by such party in connection
with the negotiation, preparation and execution of this Agreement, the
Ancillary Documents and the transactions contemplated hereby and thereby.
All sales, transfer, recordation and documentary taxes and fees that may be
payable in connection with the transactions contemplated by this Agreement
will be borne by RHD.
Section 4.3. Entire Agreement; Amendments; Waivers. This Agreement,
the Ancillary Documents and the agreements, certificates and documents
referred to herein and therein set forth the entire agreement between the
parties hereto with respect to the transactions contemplated by this
Agreement. Any provision of this Agreement may be amended or modified in
whole or in part at any time by an agreement in writing among the parties
hereto executed in the same manner as this Agreement. No failure on the
part of any party to exercise, and no delay in exercising, any right shall
operate as a waiver thereof nor shall any single or partial exercise by any
party of any right preclude any other or future exercise thereof or the
exercise of any other right. No investigation by the Stockholders of RHD
prior to or after the date hereof shall stop or prevent the Stockholders
from exercising any right hereunder or be deemed to be a waiver of any such
right.
Section 4.4. Counterparts. This Agreement may be executed by facsimile
signature and may be executed in one or more counterparts, each of which
shall be deemed to constitute an original, but all of which together shall
constitute one and the same documents.
Section 4.5. Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of New York
applicable to contracts made and to be performed in that State without
giving effect to any conflict of laws rules or principles that might
require the application of the laws of another jurisdiction.
Section 4.6. Public Announcements. Each of the parties hereto agree to
hold in strict confidence and not to publicly disclose the status of any
discussions or relations between the parties with respect to the subject
matter of this Agreement, or any of the terms or conditions of this
Agreement, except to the extent that (i) the parties mutually agree to
publicly disclose such information or (ii) any party is legally required
(whether by federal securities laws, the rules of any stock exchange or
otherwise) to disclose such information, provided, however, that in each
case, the disclosing party shall consult with the non-disclosing party
prior to making any such disclosure and shall give the non-disclosing party
a reasonable opportunity to comment on the content of such disclosure.
Section 4.7. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given, if
delivered personally, by facsimile or sent by overnight courier as follows:
If to the Stockholders, to:
GS Capital Partners 2000, L.P.
GS Capital Partners 2000 Offshore, L.P.
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG
GS Capital Partners 2000 Employee Fund, L.P.
Goldman Sachs Direct Investment Fund 2000, L.P.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Phone: (212) 902-1000
Fax: (212) 357-5505
Attention: Mr. Stuart Katz
Attention: Ben Adler, Esq.
with a copy to (which shall not constitute notice):
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, New York 10004
Phone: (212) 859-8000
Fax: (212) 859-8586
Attention: David N. Shine, Esq.
If to RHD, to:
R.H. Donnelley Corporation
1001 Winstead Drive
Cary, North Carolina 27513
Phone: (919) 297-1600
Fax: (919) 297-1518
Attention: Robert J. Bush, Esq.
with a copy to (which shall not constitute notice):
Jones Day
901 Lakeside Avenue
Cleveland, Ohio 44114
Phone: (216) 586-3939
Fax: (216) 579-0212
Attention: Thomas C. Daniels, Esq.
or to such other address or addresses as shall be designated in writing.
All notices shall be effective when received.
Section 4.8. Successors and Assigns. The terms of this Agreement shall
be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and permitted assigns. RHD may not assign any of its
rights or delegate any of its duties under this Agreement without the prior
written consent of the Stockholders, provided that, after the Closing,
subject to applicable law, RHD may assign its rights under this Agreement
in whole or in part to any of its Affiliates, but no such assignment shall
relieve RHD of its obligations hereunder. No Stockholder may assign any of
its rights or delegate any of its duties under this Agreement without the
prior written consent of RHD, provided that, after the Closing, subject to
applicable law, such Stockholder may assign its rights under this Agreement
in whole or in part to any of its Affiliates, but no such assignment shall
relieve such Stockholder of its obligations hereunder. Any purported
assignment in violation of this Section 4.8 shall be void.
Section 4.9. Jurisdiction; Waiver of Jury Trial. The state and federal
courts located in the State of New York in New York County shall have
jurisdiction over the parties with respect to any dispute or controversy
between them arising under or in connection with this agreement and, by
execution and delivery of this agreement, each of the parties to this
Agreement submits to the jurisdiction of those courts, including but not
limited to the in personam and subject matter jurisdiction of those courts,
waives any objections to such jurisdiction on the grounds of venue or forum
non conveniens, the absence of in personam or subject matter jurisdiction
and any similar grounds, consents to service of process by mail (in
accordance with Section 4.7) or any other manner permitted by law, and
irrevocably agrees to be bound by any judgment rendered thereby in
connection with this Agreement. EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY
JURY, TO THE EXTENT LAWFUL, AND AGREES THAT ANY OF THEM MAY FILE A COPY OF
THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY
AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS
RIGHT TO TRIAL BY JURY IN ANY DISPUTE WHATSOEVER BETWEEN THEM RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 4.10. Captions; References. The captions contained in this
Agreement are for reference purposes only and are not part of this
Agreement. Unless otherwise indicated, all references to Articles,
Sections, subsections or Schedules in this Agreement refer to the Articles,
Sections, subsections and clauses of, and the Schedules to, this Agreement.
Section 4.11. Schedule. The Schedule attached to this Agreement are
incorporated herein and will be part of this Agreement for all purposes.
Section 4.12. Third Parties. Nothing expressed or implied in this
Agreement is intended, or will be construed, to confer upon or give any
Person other than RHD and the Stockholders and their respective Affiliates
any rights or remedies under or by reason of this Agreement.
Section 4.13. Certain Definitions.
(a) For purposes of this Agreement, the term "AFFILIATE" means
any Person that directly, or indirectly through one or more Persons,
controls, is controlled by, or is under common control with, the
Person specified. As used in this definition, "control" (including its
correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of power to direct or
cause the direction of management or policies (whether through
ownership of securities or partnership or other ownership interests,
by contract or otherwise) of such Person.
(b) For purposes of this Agreement, the term "PERSON" means any
partnership, corporation, association, joint stock company, trust,
joint venture, limited liability company or other entity or any
individual or Governmental Entity.
(c) For purposes of this Agreement, the term "PURCHASE AGREEMENT"
means the Preferred Stock and Warrant Purchase Agreement, dated as of
September 21, 2002, by and among RHD and the Stockholders, as amended
by the Letter Agreement, dated as of November 25, 2002, by and among
the Stockholders, RHD and R.H. Donnelley Inc., the Second Letter
Agreement, dated as of January 3, 2003, by and among the Stockholders,
RHD and R.H. Donnelley Inc. and the Third Letter Agreement, dated as
of July 22, 2003, by and among the Stockholders, RHD and R.H.
Donnelley Inc.
(d) For purposes of this Agreement, the term "MATERIAL ADVERSE
EFFECT" means, with respect to any reference to a state of facts,
event, change, effect or condition, such state of facts, event,
change, effect or condition that has had, has, or could reasonably be
expected to have, a material adverse effect on (i) the business,
assets, operations, properties, condition (financial or otherwise),
prospects, contingent liabilities or material agreements of RHD and
RHD's subsidiaries, taken as a whole (ii) the ability of RHD to
perform its obligations under this Agreement or the Ancillary
Documents or (iii) the validity or enforceability of this Agreement or
the Ancillary Documents or the rights or remedies of the Stockholders
hereunder and thereunder. Notwithstanding anything contained herein to
the contrary, the commencement by or against RHD or any of RHD's
Subsidiaries of any case, proceeding or other action under any law
relating to bankruptcy, insolvency or reorganization or the seeking of
an appointment of a receiver, trustee, custodian or other similar
official for RHD or any of RHD's Subsidiaries or for all or any
substantial part of RHD's or any of RHD's Subsidiaries' assets, shall
be deemed a Material Adverse Effect.
Section 4.14. Severability. Should any part of this Agreement for any
reason be declared invalid, such decision shall not affect the validity of
any remaining portion, which remaining portion shall remain in full force
and effect as if this Agreement had been executed with the invalid portion
thereof eliminated, and it is hereby declared the intention of the parties
hereto that they would have executed the remaining portion of this
Agreement without including therein any such part or parts which may, for
any reason, be hereafter declared invalid.
Section 4.15. No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement and
the Ancillary Documents. If any ambiguity or question of intent or
interpretation arises, this Agreement and the Ancillary Documents shall be
construed as if drafted jointly by the parties hereto, and no presumption
or burden of proof shall arise favoring or disfavoring any party by virtue
of the authorship of any of the provisions of this Agreement or any of the
Ancillary Documents.
Section 4.16. Survival; Indemnification. The representations,
warranties, covenants and agreements of the parties hereto contained in
this Agreement or in any of the other Ancillary Documents shall survive the
Closing and the delivery of the Ancillary Documents. In the case of the
representations and warranties made by the Stockholders in this Agreement
or in any of the other Ancillary Documents, such representations and
warranties are being made severally and not jointly by such Stockholders.
From and after the Closing, RHD agrees to indemnify, defend and hold
harmless the Stockholders, their Affiliates, and their officers, directors,
partners, employees, agents, representatives, successors and any assigns of
any of the foregoing ("Stockholder Indemnitees") against all claims,
losses, liabilities, damages, interest and penalties, costs and expenses
(other than any of the foregoing resulting from tax liabilitities incurred
by any of the Stockholders), including, without limitation, losses
resulting from the defense, settlement or compromise of a claim, action,
suit, investigation, subpoena or other compulsion of testimony, or
proceeding, reasonable attorneys', accountants' and expert witnesses' fees,
costs and expenses of investigation, and the costs and expenses of
enforcing the indemnification provided hereunder incurred by any of the
Stockholder Indemnitees arising out of or relating to: (i) any breach of
any representation or warranty made by RHD in this Agreement or any
Ancillary Document, (ii) any breach of any covenant, agreement or
obligation of RHD contained in this Agreement or any Ancillary Document, or
(iii) any actual or threatened claim, litigation, action, suit,
investigation or proceeding by any Person (other than a Stockholder
Indemnitee) in connection with (A) the transactions contemplated hereby or
by the Ancillary Documents or (B) the negotiation, execution, delivery and
performance of this Agreement or the Ancillary Documents. Any payments made
by RHD to a Stockholder under this Section 4.16 shall be considered an
increase to such Stockholder's Specified Purchase Price.
Section 4.17. Acknowledgement of Rights. For avoidance of doubt, RHD
hereby acknowledges and agrees that (i) the transactions contemplated by
this Agreement will not amend, modify or result in any changes in the
preferences, terms, rights or remedies of the shares of Preferred Stock to
be owned by the Stockholders after the Closing (the "Remaining Shares"),
(ii) by way of example and without limiting the generality of the
foregoing, by virtue of the Remaining Shares, the Stockholders will, after
the Closing, have the right to designate the same number of directors, veto
the same corporate actions, and exercise the same registration rights with
respect to the Remaining Shares, as they had with respect to the Preferred
Stock prior to the Closing and (iii) the Purchased Shares will cease to be
Registrable Shares for purposes of the Registration Rights Agreement, dated
November 25, 2002.
Section 4.18. Use of Proceeds. RHD covenants and agrees that the net
proceeds of the Financing will first be applied to the purchase of the
Purchased Shares as described herein.
Section 4.19. Capitalization Notice. RHD shall deliver to the
Stockholders, within 5 days after Closing, a statement as to the number of
shares of RHD common stock, $1 par value per share, that were issued and
outstanding as of immediately after the Closing.
(Signatures are on the following pages.)
IN WITNESS WHEREOF, this Agreement has been executed by the respective
duly authorized officers of the parties hereto, all as of the date first
above written.
R.H. DONNELLEY CORPORATION
By: /s/ David C. Swanson
-----------------------------------
Name: David C. Swanson
Title: Chief Executive Officer
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By: /s/ John E. Bowman
-----------------------------------
Name: John E. Bowman
Title: Vice President
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By: /s/ John E. Bowman
-----------------------------------
Name: John E. Bowman
Title: Vice President
GS CAPITAL PARTNERS 2000 GmbH & CO
BETEILIGUNGS KG
By: Goldman Sachs Management GP GmbH
Its General Partner
By: /s/ John E. Bowman
-----------------------------------
Name: John E. Bowman
Title: Managing Director
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND,
L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its General Partner
By: /s/ John E. Bowman
-----------------------------------
Name: John E. Bowman
Title: Vice President
GOLDMAN SACHS DIRECT INVESTMENT FUND
2000, L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its General Partner
By: /s/ John E. Bowman
-----------------------------------
Name: John E. Bowman
Title: Vice President
SCHEDULE A
SELLING STOCKHOLDERS; SPECIFIED PURCHASE PRICE
Shares of
Preferred
Stock Shares of
Beneficially Preferred Stock
Stockholder Owned To Be Sold Specified Purchase Price
----------- ----- ---------- ------------------------
GS Capital Partners 2000, L.P. 110,627 55,314 $152,865,502.78
GS Capital Partners 2000 40,197 20,099 $55,545,499.16
Offshore, L.P.
GS Capital Partners 2000 GmbH & 4,622 2,311 $6,386,668.42
Co. Beteiligungs KG
GS Capital Partners 2000 Employee 35,128 17,564 $48,539,785.42
Fund, L.P.
Goldman Sachs Direct Investment 10,030 5,015 $13,859,429.74
Fund 2000, L.P.