-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Hpi8DiFSt7OVW5PCeb9ckb9iLLblgZ69tXymFtGOls2ut1N4hPeuRCBHBvKEN2F4 uAEv5ukwpPEyn4FmrGixUw== 0000895345-03-000013.txt : 20030107 0000895345-03-000013.hdr.sgml : 20030107 20030107161712 ACCESSION NUMBER: 0000895345-03-000013 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20030107 GROUP MEMBERS: GOLDMAN SACHS DIRECT INVESTMEN GROUP MEMBERS: GOLDMAN, SACHS &CO. GROUP MEMBERS: GOLDMAN, SACHS &CO.OHG GROUP MEMBERS: GOLDMAN, SACHS MANAGEMENT GP G GROUP MEMBERS: GS ADVISORS 2000, L.L.C. GROUP MEMBERS: GS CAPITAL PARTNERS 2000 EMPLO GROUP MEMBERS: GS CAPITAL PARTNERS 2000 GMBH GROUP MEMBERS: GS CAPITAL PARTNERS 2000 OFFSH GROUP MEMBERS: GS CAPITAL PARTNERS 2000, L.P. GROUP MEMBERS: GS EMPLOYEE FUNDS 2000 GP, L.L 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: 005-10057 FILM NUMBER: 03506670 BUSINESS ADDRESS: STREET 1: ONE MANHATTANVILLE ROAD CITY: PURCHASE STATE: NY ZIP: 10577 BUSINESS PHONE: 9149336800 MAIL ADDRESS: STREET 1: ONE MANHATTANVILLE ROAD CITY: PURCHASE STATE: NY ZIP: 10577 FORMER COMPANY: FORMER CONFORMED NAME: DUN & BRADSTREET COMPANIES INC DATE OF NAME CHANGE: 19790429 FORMER COMPANY: FORMER CONFORMED NAME: DUN & BRADSTREET CORP DATE OF NAME CHANGE: 19920703 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: 1129 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 ds13da.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1)* 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 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 3, 2003 - --------------------------------------------------------------------------- (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 33 - ------------------------------ --------------------------------- - ---------- -------------------------------------------------------------------- 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 0 SHARES -------- -------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 9,991,177 -------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 0 REPORTING -------- -------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 9,991,177 - ---------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,991,177 - ---------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| - ---------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.2% - ---------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON HC-CO - ---------- -------------------------------------------------------------------- SCHEDULE 13D - ------------------------------ --------------------------------- CUSIP No. 74955W 30 7 Page 3 of 33 - ------------------------------ --------------------------------- - ---------- -------------------------------------------------------------------- 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 9,991,177 -------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 0 REPORTING -------- -------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 9,991,177 - ---------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 9,991,177 - ---------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| - ---------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 25.2% - ---------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON BD-PN-IA - ---------- -------------------------------------------------------------------- SCHEDULE 13D - ------------------------------ --------------------------------- CUSIP No. 74955W 30 7 Page 4 of 33 - ------------------------------ --------------------------------- - ---------- -------------------------------------------------------------------- 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 7,511,806 -------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 0 REPORTING -------- -------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 7,511,806 - ---------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 7,511,806 - ---------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| - ---------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 20.2% - ---------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON OO - ---------- -------------------------------------------------------------------- SCHEDULE 13D - ------------------------------ --------------------------------- CUSIP No. 74955W 30 7 Page 5 of 33 - ------------------------------ --------------------------------- - ---------- -------------------------------------------------------------------- 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 230,214 -------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 0 REPORTING -------- -------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 230,214 - ---------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 230,214 - ---------- -------------------------------------------------------------------- 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 33 - ------------------------------ --------------------------------- - ---------- -------------------------------------------------------------------- 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 230,214 -------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 0 REPORTING -------- -------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 230,214 - ---------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 230,214 - ---------- -------------------------------------------------------------------- 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 33 - ------------------------------ --------------------------------- - ---------- -------------------------------------------------------------------- 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 2,249,099 -------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 0 REPORTING -------- -------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 2,249,099 - ---------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,249,099 - ---------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| - ---------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 7.0% - ---------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON OO - ---------- -------------------------------------------------------------------- SCHEDULE 13D - ------------------------------ --------------------------------- CUSIP No. 74955W 30 7 Page 8 of 33 - ------------------------------ --------------------------------- - ---------- -------------------------------------------------------------------- 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 5,509,787 SHARES -------- -------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 -------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 5,509,787 REPORTING -------- -------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 0 - ---------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 5,509,787 - ---------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| - ---------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 15.6% - ---------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - ---------- -------------------------------------------------------------------- SCHEDULE 13D - ------------------------------ --------------------------------- CUSIP No. 74955W 30 7 Page 9 of 33 - ------------------------------ --------------------------------- - ---------- -------------------------------------------------------------------- 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 2,002,019 SHARES -------- -------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 -------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 2,002,019 REPORTING -------- -------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 0 - ---------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,002,019 - ---------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| - ---------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.3% - ---------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - ---------- -------------------------------------------------------------------- SCHEDULE 13D - ------------------------------ --------------------------------- CUSIP No. 74955W 30 7 Page 10 of 33 - ------------------------------ --------------------------------- - ---------- -------------------------------------------------------------------- 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 230,214 SHARES -------- -------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 -------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 230,214 REPORTING -------- -------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 0 - ---------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 230,214 - ---------- -------------------------------------------------------------------- 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 33 - ------------------------------ --------------------------------- - ---------- -------------------------------------------------------------------- 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 1,749,552 SHARES -------- -------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 -------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 1,749,552 REPORTING -------- -------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 0 - ---------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,749,552 - ---------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| - ---------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.6% - ---------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - ---------- -------------------------------------------------------------------- SCHEDULE 13D - ------------------------------ --------------------------------- CUSIP No. 74955W 30 7 Page 12 of 33 - ------------------------------ --------------------------------- - ---------- -------------------------------------------------------------------- 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 499,547 SHARES -------- -------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 0 -------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 499,547 REPORTING -------- -------------------------------------------- PERSON 10 SHARED DISPOSITIVE POWER WITH 0 - ---------- -------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 499,547 - ---------- -------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| - ---------- -------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.7% - ---------- -------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - ---------- -------------------------------------------------------------------- This Amendment No. 1 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. 1 amends and supplements the Schedule 13D filed on behalf of the Filing Persons with the Securities and Exchange Commission on December 5, 2002 (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) - ------------------------------- (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. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. ------------------------------------------------- Item 3 is hereby amended to add the following at the end thereof: The Preferred Stock Closing was consummated on January 3, 2003 (the "Closing Date"). At the Preferred Stock Closing (i) the Purchasers purchased the Preferred Shares and the Warrants for the Closing Proceeds less a closing payment of 1% of the Closing Proceeds which was netted against the Closing Proceeds and (ii) the November Shares held by the Purchasers automatically converted into 70,604 shares of Preferred Stock in accordance with the terms of the Series B-1 Certificate of Designations. The funds used by the Purchasers to purchase the Preferred Shares and the Warrants were obtained from capital contributions made by their respective partners. As of January 3, 2003, the shares of Preferred Stock held by the Purchasers are convertible into 8,341,119 shares of Common Stock. The Certificate of Designations governing the Preferred Stock (the "Certificate of Designations") is filed as Exhibit 20 hereto and is incorporated herein by reference. The form of warrants issued on January 3, 2003 is filed as Exhibit 21 hereto and is incorporated herein by reference. 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: Pursuant to the Purchase Agreement and the Letter Agreement, the Company and the Purchasers agreed to certain definitions in the Purchase Agreement that by the terms of the Purchase Agreement were to be defined by the parties prior to the Preferred Stock Closing Date. A copy of this agreement is filed as Exhibit 22 hereto and is incorporated herein by reference. Purchase of Preferred Stock and Warrants and Conversion of Series B-1 - --------------------------------------------------------------------- Preferred Stock - --------------- The purpose of the acquisition of the Preferred Stock and Warrants pursuant to the Purchase Agreement is to acquire a significant equity interest in the Company and to provide the Company with financing for the Company's acquisition of Sprint's directory publishing business. Pursuant to the Purchase Agreement, the Purchasers purchased the Preferred Shares and the Warrants for the Closing Proceeds less a closing payment of 1% of the Closing Proceeds which was netted against the Closing Proceeds. In accordance with the Series B-1 Certificate of Designations, the November Shares held by the Purchasers automatically converted into 70,604 shares of Preferred Stock. The Purchasers have the right to elect certain directors to the board of directors of the Company as described in Item 6 of this Schedule 13D under the caption "Preferred Stock Certificate of Designations -- Voting Rights". The initial Purchasers' designees to the board of directors of the Company are Terence M. O'Toole and Robert R. Gheewalla, and such designees were elected to the board of directors of the Company, effective as of January 3, 2003. Item 4 is hereby further amended by adding the following at the end thereof: Except as described above or otherwise described in the Schedule 13D or in this Amendment No. 1, 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 (a) the restrictions contained in the Purchase Agreement and (b) 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) Pursuant to a capitalization schedule provided by the Company and attached to the Letter Agreement, as of the November Closing Date there were 29,714,335 shares of Common Stock outstanding. As of the Closing Date, GS Group may be deemed to beneficially own an aggregate of 9,991,177 shares of Common Stock, consisting of (i) 200,604 shares of Preferred Stock, which are convertible into 8,341,119 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) 58 shares of Common Stock acquired by Goldman Sachs in ordinary course trading activities, representing in the aggregate approximately 25.2% of the outstanding Common Stock, based on calculations made in accordance with Rule 13d-3(d) of the Act. As of the Closing Date, Goldman Sachs may be deemed to beneficially own an aggregate of 9,991,177 shares of Common Stock, consisting of (i) 200,604 shares of Preferred Stock, which are convertible into 8,341,119 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) 58 shares of Common Stock acquired by Goldman Sachs in ordinary course trading activities, representing in the aggregate approximately 25.2% 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 the Closing Date, GS Advisors may be deemed to beneficially own the aggregate of 7,511,806 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 6,271,267 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 20.2% of the outstanding shares of Common Stock based on calculations made in accordance with Rule 13d-3(d) of the Act. As of the Closing Date, each of GS oHG and GS GmbH may be deemed to beneficially own the aggregate of 230,214 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 192,182 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 the Closing Date, GS Employee 2000 may be deemed to beneficially own the aggregate of 2,249,099 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 1,877,670 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 7.0% of the outstanding shares of Common Stock based on calculations made in accordance with Rule 13d-3(d) of the Act. As of the Closing Date, GS Capital may be deemed to beneficially own 5,509,787 shares of Common Stock, consisting of (i) 110,627 shares of Preferred Stock, which are convertible into 4,599,875 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 15.6% of the outstanding shares of Common Stock based on calculations made in accordance with Rule 13d-3(d) of the Act. As of the Closing Date, GS Offshore may be deemed to beneficially own 2,002,019 shares of Common Stock, consisting of (i) 40,197 shares of Preferred Stock, which are convertible into 1,671,392 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 6.3% of the outstanding shares of Common Stock based on calculations made in accordance with Rule 13d-3(d) of the Act. As of the Closing Date, GS Germany may be deemed to beneficially own 230,214 shares of Common Stock, consisting of (i) 4,622 shares of Preferred Stock, which are convertible into 192,182 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 the Closing Date, GS Employee may be deemed to beneficially own 1,749,552 shares of Common Stock, consisting of (i) 35,128 shares of Preferred Stock, which are convertible into 1,460,623 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 5.6% of the outstanding shares of Common Stock based on calculations made in accordance with Rule 13d-3(d) of the Act. As of the Closing Date, GS Direct may be deemed to beneficially own 499,547 shares of Common Stock, consisting of (i) 10,030 shares of Preferred Stock, which are convertible into 417,047 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 1.7% 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) 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 elsewhere in this Amendment No. 1, no 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 period from November 26, 2002 through January 3, 2003. (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 will be beneficially owned by any Filing Person after the purchase pursuant to the Purchase Agreement. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. ---------------------------------------- Item 6 is hereby amended to add the following at the end thereof: Certificate of Designations - --------------------------- On the Closing Date, all outstanding shares of Series B-1 Preferred Stock automatically converted into an aggregate of 70,604 shares of Preferred Stock. On the Closing Date, the Company filed the Certificate of Designations with the Secretary of State of the State of Delaware and issued to the Purchasers, in connection with conversion of shares of Series B-1 Preferred Stock and in connection with the purchase of the Preferred Shares pursuant to the Purchase Agreement, the Preferred Stock having the terms set forth in the Certificate of Designations. The terms of the Certificate of Designations are substantially identical to the form of the Certificate of Designations governing the Preferred Stock summarized in the Schedule 13D, except as follows: The Certificate of Designations provides that each share of Preferred Stock is convertible at any time at the option of the holder into a number of fully paid and nonassessable shares of Common Stock equal to the Convertible Preferred Amount per share as of the date of conversion divided by $24.05. The Certificate of Designations also contains customary anti-dilution protection for the shares of Preferred Stock. Warrants - -------- Pursuant to and in connection with the Purchase Agreement, on the Closing Date, the Company issued to the Purchasers Warrants that provide the Purchasers with the right to purchase 1,072,500 shares of Common Stock of the Company for $28.62 per share. The Purchasers may exercise the Warrants, in whole or in part, at any time on or prior to the fifth anniversary of the Closing Date. The Warrants contain customary anti-dilution protection. The Warrants do not grant the holder any voting rights or other rights as a stockholder of the Company. The foregoing descriptions of the Preferred Stock and the Warrants are not intended to be complete and are qualified in their entirety by the complete text of the Certificate of Designations and the form of warrants issued on January 3, 2003, which are filed as Exhibit 20 and Exhibit 21 hereto, respectively, and both of which are incorporated herein by reference. 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 8, 2000, relating to The Goldman Sachs Group, Inc.* Exhibit 10 Power of Attorney, dated as of December 8, 2000, relating to Goldman, Sachs & Co.* Exhibit 11 Power of Attorney, dated as of December 20, 2000, relating to GS Advisors 2000, L.L.C.* Exhibit 12 Power of Attorney, dated as of March 28, 2000, relating to Goldman, Sachs & Co. oHG.* Exhibit 13 Power of Attorney, dated as of December 20, 2000, relating to Goldman, Sachs Management GP GmbH.* Exhibit 14 Power of Attorney, dated as of December 20, 2000, relating to GS Employee Funds 2000 GP, L.L.C.* Exhibit 15 Power of Attorney, dated as of December 20, 2000, relating to GS Capital Partners 2000, L.P.* Exhibit 16 Power of Attorney, dated as of December 20, 2000, relating to GS Capital Partners 2000 Offshore, L.P.* Exhibit 17 Power of Attorney, dated as of December 20, 2000, relating to GS Capital Partners 2000 GmbH & Co. Beteiligungs KG.* Exhibit 18 Power of Attorney, dated as of December 20, 2000, relating to GS Capital Partners 2000 Employee Fund, L.P.* Exhibit 19 Power of Attorney, dated as of November 27, 2002, 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. - -------------------- * 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 7, 2003 THE GOLDMAN SACHS GROUP, INC. By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GOLDMAN, SACHS & CO. By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GS ADVISORS 2000, L.L.C. By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GOLDMAN, SACHS & CO. OHG By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GOLDMAN, SACHS MANAGEMENT GP GMbH By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GS EMPLOYEE FUNDS 2000 GP, L.L.C. By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GS CAPITAL PARTNERS 2000, L.P. By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GS CAPITAL PARTNERS 2000 OFFSHORE, L.P. By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GS CAPITAL PARTNERS 2000 GMBH & CO. BETEILIGUNGS KG By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P. By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-fact GOLDMAN SACHS DIRECT INVESTMENT FUND 2000, L.P. By: /s/ Roger S. Begelman ------------------------------------ Name: Roger S. Begelman Title: Attorney-in-fact SCHEDULE I ---------- Schedule I to the Schedule 13D is hereby amended by replacing it in its entirety with the following: The name of each director of The Goldman Sachs Group, Inc. is set forth below. The business address of each person listed below is c/o Goldman, Sachs & Co., 85 Broad Street, New York, NY 10004. Each person is a citizen of the United States of America except for Lord Browne of Madingley, who is a citizen of the United Kingdom. The present principal occupation or employment of each of the listed persons is set forth below.
- --------------------------------------- ------------------------------------------------------------------------------ Name Present Principal Occupation - --------------------------------------- ------------------------------------------------------------------------------ Henry M. Paulson, Jr. Chairman and Chief Executive Officer of The Goldman Sachs Group, Inc. - --------------------------------------- ------------------------------------------------------------------------------ Robert J. Hurst Vice Chairman of The Goldman Sachs Group, Inc. - --------------------------------------- ------------------------------------------------------------------------------ John A. Thain President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc. - --------------------------------------- ------------------------------------------------------------------------------ John L. Thornton President and Co-Chief Operating Officer of The Goldman Sachs Group, Inc. - --------------------------------------- ------------------------------------------------------------------------------ Lord Browne of Madingley Group Chief Executive of BP plc - --------------------------------------- ------------------------------------------------------------------------------ James A. Johnson Vice Chairman of Perseus, L.L.C. - --------------------------------------- ------------------------------------------------------------------------------ John H. Bryan Retired Chairman and Chief Executive Officer of Sara Lee Corporation - --------------------------------------- ------------------------------------------------------------------------------ Ruth J. Simmons President of Brown University - --------------------------------------- ------------------------------------------------------------------------------ William W. George Retired Chairman and Chief Executive Officer of Medtronic, Inc. - --------------------------------------- ------------------------------------------------------------------------------
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, Antoine L. Schwartz, Hughes B. Lepic, Stephen S. Trevor, Atul Kapur, Michel Plantevin, Robert G. Doumar, Jr. 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 and Melina E. Higgins is 2765 Sand Hill Road, Menlo Park, CA 94025. 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. Sanjeev K. Mehra is a citizen of India. Atul Kapur is a citizen of Singapore. Antoine L. Schwartz, Hughes B. Lepic and Michel Plantevin are citizens of France. Ulrika Werdelin is a citizen of Sweden.
- ------------------------------- ---------------------------- --------------------------------------------------------- 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 Secretary Managing Director of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- Sanjeev K. Mehra Vice President Managing Director of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- Antoine L. Schwartz Vice President Managing Director of Goldman Sachs International - ------------------------------- ---------------------------- --------------------------------------------------------- Steven M. Bunson Assistant Secretary Managing Director of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- Elizabeth C. Fascitelli Treasurer Managing Director of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- David M. Weil Assistant Treasurer Managing Director of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- David J. Greenwald Assistant Secretary Managing Director of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- Hughes B. Lepic Vice President Managing Director of Goldman Sachs International - ------------------------------- ---------------------------- --------------------------------------------------------- Russell E. Makowsky Assistant Secretary Managing Director of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- Randall A. Blumenthal Vice President Managing Director of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- Douglas F. Londal Vice President Managing Director of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- Stephen S. Trevor Vice President Managing Director of Goldman Sachs International - ------------------------------- ---------------------------- --------------------------------------------------------- Abraham Bleiberg 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 & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- Atul Kapur Vice President Managing Director of Goldman Sachs International - ------------------------------- ---------------------------- --------------------------------------------------------- Michel Plantevin Vice President Managing Director of Goldman Sachs International - ------------------------------- ---------------------------- --------------------------------------------------------- Robert G. Doumar, Jr. 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. - ------------------------------- ---------------------------- --------------------------------------------------------- Elizabeth C. Marcellino 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/Secretary Vice President of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- James B. McHugh Assistant Secretary Vice President of Goldman, Sachs & Co. - ------------------------------- ---------------------------- --------------------------------------------------------- Beverly L. O'Toole Assistant Secretary 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. - ------------------------------- ---------------------------- --------------------------------------------------------- Ulrika Werdelin Vice President Executive 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. 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 and Antoine L. Schwartz is Peterborough Court, 133 Fleet Street, London EC4A 2BB, England. The business address of Gene T. Sykes is Fox Plaza, Suite 2600, 2121 Avenue of the Stars, Los Angeles, CA 90067. 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, Sanjeev K. Mehra is a citizen of India and Antoine L. Schwartz 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. - ------------------------------------- -------------------------------------------------------------------------------- Gene T. Sykes Managing Director of Goldman, Sachs & Co. - ------------------------------------- -------------------------------------------------------------------------------- Henry Cornell Managing Director of Goldman, Sachs & Co. - ------------------------------------- -------------------------------------------------------------------------------- Robert V. Delaney 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. - ------------------------------------- -------------------------------------------------------------------------------- Antoine L. Schwartz 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 except Wayne L. Moore, who is a citizen of the United States.
- ---------------------------------- ---------------------------- ------------------------------------------------------ Name Position Present Principal Occupation - ---------------------------------- ---------------------------- ------------------------------------------------------ Andreas Koernlein Managing Director Managing Director of Goldman, Sachs & Co. oHG - ---------------------------------- ---------------------------- ------------------------------------------------------ Wayne L. Moore Managing Director Managing Director of Goldman, Sachs & Co. oHG - ---------------------------------- ---------------------------- ------------------------------------------------------ Alexander C. Dibelius Managing Director Managing Director of Goldman, Sachs & Co. oHG - ---------------------------------- ---------------------------- ------------------------------------------------------ Carsten Kengeter Managing Director Managing Director of Goldman, Sachs & Co. oHG - ---------------------------------- ---------------------------- ------------------------------------------------------
SCHEDULE II-B-ii ---------------- Schedule II-B-ii 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 Management GP GmbH, the sole managing partner of GS Capital Partners 2000 GmbH & Co. Beteiligungs KG, 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. All executive officers listed below are United States citizens.
- ----------------------------------- ------------------------------ --------------------------------------------------- Name Position Present Principal Occupation - ----------------------------------- ------------------------------ --------------------------------------------------- Richard A. Friedman Managing Director Managing Director of Goldman, Sachs & Co. - ----------------------------------- ------------------------------ --------------------------------------------------- Joseph H. Gleberman Managing Director Managing Director of Goldman, Sachs & Co. - ----------------------------------- ------------------------------ --------------------------------------------------- Terence M. O'Toole Managing Director Managing Director of Goldman, Sachs & Co. - ----------------------------------- ------------------------------ --------------------------------------------------- David M. Weil Managing Director Managing Director of Goldman, Sachs & Co. - ----------------------------------- ------------------------------ --------------------------------------------------- Henry Cornell Managing Director Managing Director of Goldman, Sachs & Co. - ----------------------------------- ------------------------------ --------------------------------------------------- Esta E. Stecher Managing Director Managing Director of Goldman, Sachs & Co. - ----------------------------------- ------------------------------ --------------------------------------------------- Elizabeth C. Fascitelli Managing Director Managing Director of Goldman, Sachs & Co. - ----------------------------------- ------------------------------ --------------------------------------------------- David J. Greenwald Managing Director Managing Director of Goldman, Sachs & Co. - ----------------------------------- ------------------------------ --------------------------------------------------- Sarah E. Smith Managing Director Managing Director of Goldman, Sachs & Co. - ----------------------------------- ------------------------------ --------------------------------------------------- James B. McHugh Managing Director Vice President of Goldman, Sachs & Co. - ----------------------------------- ------------------------------ --------------------------------------------------- Katherine B. Enquist Managing Director Vice President of Goldman, Sachs & Co. - ----------------------------------- ------------------------------ --------------------------------------------------- John E. Bowman Managing Director Vice President of Goldman, Sachs & Co. - ----------------------------------- ------------------------------ ---------------------------------------------------
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, Antoine L. Schwartz, Hughes B. Lepic, Stephen S. Trevor, Atul Kapur, Michel Plantevin 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 and Melina E. Higgins is 2765 Sand Hill Road, Menlo Park, CA 94025. 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. Sanjeev K. Mehra is a citizen of India. Atul Kapur is a citizen of Singapore. Antoine L. Schwartz, Hughes B. Lepic and Michel Plantevin are citizens of France. Ulrika Werdelin is a citizen of Sweden.
- --------------------------------- ---------------------------- ------------------------------------------------------ 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 & Co. Assistant Secretary - --------------------------------- ---------------------------- ------------------------------------------------------ Sanjeev K. Mehra Vice President Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Muneer A. Satter Vice President Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Antoine L. Schwartz Vice President Managing Director of Goldman Sachs International - --------------------------------- ---------------------------- ------------------------------------------------------ Steven M. Bunson Vice President/ Managing Director of Goldman, Sachs & Co. Assistant Secretary - --------------------------------- ---------------------------- ------------------------------------------------------ Elizabeth C. Fascitelli Vice President Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ David M. Weil Assistant Treasurer Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ David J. Greenwald Vice President/ Managing Director of Goldman, Sachs & Co. Assistant Secretary - --------------------------------- ---------------------------- ------------------------------------------------------ Hughes B. Lepic Vice President Managing Director of Goldman Sachs International - --------------------------------- ---------------------------- ------------------------------------------------------ Russell E. Makowsky Vice President/ Managing Director of Goldman, Sachs & Co. Assistant Secretary - --------------------------------- ---------------------------- ------------------------------------------------------ Sarah G. Smith Assistant Treasurer Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Randall A. Blumenthal Vice President Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Gerald J. Cardinale Vice President Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Douglas F. Londal Vice President Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Stephen S. Trevor Vice President Managing Director of Goldman Sachs International - --------------------------------- ---------------------------- ------------------------------------------------------ Abraham Bleiberg 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 & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Robert G. Doumar, Jr. Vice President Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Ben I. Adler Vice President Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Melina E. Higgins Vice President Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Elizabeth C. Marcellino Vice President Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Adrian M. Jones Vice President Managing Director of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Atul Kapur Vice President Managing Director of Goldman Sachs International - --------------------------------- ---------------------------- ------------------------------------------------------ Michel Plantevin Vice President Managing Director of Goldman Sachs International - --------------------------------- ---------------------------- ------------------------------------------------------ John E. Bowman Vice President Vice President of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Katherine B. Enquist Vice President/ Vice President of Goldman, Sachs & Co. Secretary - --------------------------------- ---------------------------- ------------------------------------------------------ James B. McHugh Assistant Secretary Vice President of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Beverly L. O'Toole Assistant Secretary Vice President of Goldman, Sachs & 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. - --------------------------------- ---------------------------- ------------------------------------------------------ Richard J. Stingi Vice President Vice President of Goldman, Sachs & Co. - --------------------------------- ---------------------------- ------------------------------------------------------ Ulrika Werdelin Vice President Executive 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 and Antoine L. Schwartz is 133 Fleet Street, London EC4A 2BB, England. The business address of Gene T. Sykes is Fox Plaza, Suite 2600, 2121 Avenue of the Stars, Los Angeles, CA 90067. 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, Sanjeev K. Mehra is a citizen of India and Antoine L. Schwartz 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. - ------------------------------------ --------------------------------------------------------------------------------- Gene T. Sykes Managing Director of Goldman, Sachs & Co. - ------------------------------------ --------------------------------------------------------------------------------- Henry Cornell Managing Director of Goldman, Sachs & Co. - ------------------------------------ --------------------------------------------------------------------------------- Robert V. Delaney 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. - ------------------------------------ --------------------------------------------------------------------------------- Scott B. Kapnick Managing Director of Goldman, Sachs & Co. - ------------------------------------ --------------------------------------------------------------------------------- Peter G. Sachs Senior Director of The Goldman Sachs Group, Inc. - ------------------------------------ --------------------------------------------------------------------------------- Antoine L. Schwartz Managing Director of Goldman Sachs International - ------------------------------------ ---------------------------------------------------------------------------------
SCHEDULE III On April 6, 2000, in connection with an industry-wide investigation by the Securities and Exchange Commission (the "SEC") relating to the pricing of government securities in advance refunding transactions, Goldman, Sachs & Co. ("Goldman Sachs") joined in a global settlement resolving the SEC investigation as well as a related qui tam lawsuit purportedly brought on behalf of the United States entitled United States ex rel. Lissack v. Goldman, Sachs & Co., et al., 95 Civ. 1363 (S.D.N.Y.) (BSJ). Pursuant to the settlement, without admitting or denying the findings, Goldman Sachs consented to the issuance of an SEC administrative order (SEA Rel. No. 42640) which, among other things, found that Goldman Sachs had violated Sections 17(a)(2) and (3) of the Securities Act of 1933 in connection with such pricing of government securities, required Goldman Sachs to cease and desist from violating such provisions, and ordered Goldman Sachs to make payments totaling approximately $5.1 Million to the U.S. Treasury and $104,000 to two municipalities. Under the global settlement, the qui tam lawsuit was dismissed with prejudice, and the Internal Revenue Service agreed not to challenge the tax-free nature of the refundings by virtue of the pricing of such securities. In November 2002, the SEC, the National Association of Securities Dealers ("NASD") and the New York Stock Exchange, Inc. ("NYSE") alleged that five broker dealers, including Goldman Sachs, violated Section 17(a) of the Exchange Act and Rule 17a-4 hereunder, NYSE Rules 440 and 342 and NASD Rules 3010 and 3110 by allegedly failing to preserve electronic mail communications for three years and/or to preserve electronic mail communications for the first two years in an accessible place, and by allegedly having inadequate supervisory systems and procedures in relation to the retention of electronic mail communications. Without admitting or denying the allegations, the five broker dealers, including Goldman Sachs, consented to censure by the SEC, NASD and NYSE and to the imposition of a cease-and-desist order by the SEC and Goldman Sachs paid a total fine of $1,650,000 ($550,000 each to the SEC, NASD and NYSE). Goldman Sachs also undertook to review its procedures regarding the preservation of electronic mail communications for compliance with the federal securities laws and regulations and the rules of the NASD and NYSE, and to confirm within a specified period of time that it has established systems and procedures reasonably designed to achieve compliance with those laws, regulations and rules. EX-99.20 3 ex99_20.txt Exhibit 20 CERTIFICATE OF DESIGNATIONS OF CONVERTIBLE CUMULATIVE PREFERRED STOCK OF R.H. DONNELLEY CORPORATION --------------------------- Pursuant to Section 151 of the General Corporation Law of the State of Delaware --------------------------- R.H. Donnelley Corporation (the "CORPORATION"), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the "DGCL"), hereby certifies as follows: FIRST: The Restated Certificate of Incorporation, as amended, of the Corporation authorizes the issuance of up to 10,000,000 shares of Preferred Stock, par value $1 per share (the "PREFERRED STOCK"), and further authorizes the Board of Directors of the Corporation by resolution or resolutions to provide for the issuance of Preferred Stock in series and to establish the number of shares to be included in each such series and to fix the designation, voting powers, preferences and relative rights and qualifications, limitations or restrictions of each such series. SECOND: On November 24, 2002, the Board of Directors of the Corporation adopted the following resolution authorizing the creation and issuance of a series of said Preferred Stock to be known as Convertible Cumulative Preferred Stock: RESOLVED, that pursuant to the authority vested in the Board of Directors of the Corporation in accordance with the provisions of its Restated Certificate of Incorporation, as amended, a series of Preferred Stock of the Corporation be, and it hereby is, created, and that the designation and amount thereof and the voting powers, preferences and relative, participating, optional and other special rights of the shares of such series, and the qualifications, limitations or restrictions thereof are as set forth in the Corporation's Restated Certificate of Incorporation and in this Certificate of Designations as follows: 1. Designation and Amount. The shares of such series of Preferred Stock shall be designated as Convertible Cumulative Preferred Stock (the "CONVERTIBLE PREFERRED STOCK"), and the number of shares constituting such series shall be 250,000. The initial liquidation preference of the Convertible Preferred Stock shall be $1,000 per share or right (the "LIQUIDATION VALUE"). 2. Rank. The Convertible Preferred Stock shall, with respect to dividend rights and rights on liquidation, winding up and dissolution, rank (i) senior to both the Corporation's Common Stock and to all classes and series of stock of the Corporation now or hereafter authorized, issued or outstanding which by their terms expressly provide that they are junior to the Convertible Preferred Stock or which do not specify their rank (collectively with the Common Stock, the "JUNIOR SECURITIES"); (ii) on a parity with each other class of capital stock or series of preferred stock issued by the Corporation after the date hereof the terms of which specifically provide that such class or series will rank on a parity with the Convertible Preferred Stock as to dividend distributions and distributions upon the liquidation, winding up and dissolution of the Corporation (collectively referred to as "PARITY SECURITIES"); and (iii) junior to each other class of capital stock or other series of Preferred Stock issued by the Corporation after the date hereof the terms of which specifically provide that such class or series will rank senior to the Convertible Preferred Stock as to dividend distributions or distributions upon the liquidation, winding up and dissolution of the Corporation (collectively referred to as "SENIOR SECURITIES"). 3. Dividends. (a) Payment of Dividends. The holders of shares of Convertible Preferred Stock, in preference to the holders of any shares of Common Stock or other capital stock of the Corporation, shall be entitled to receive, when, as and if declared by the Board of Directors, in their sole discretion, out of the assets of the Corporation legally available therefor, distributions in the form of cumulative cash dividends payable at an annual rate per share equal to 8% (the "DIVIDEND RATE") of the Convertible Preferred Amount from and after the date of issuance of the shares of Convertible Preferred Stock (the "ISSUE DATE"), as long as the shares of Convertible Preferred Stock remain outstanding. Dividends shall be (i) computed on the basis of the aggregate Convertible Preferred Amount; (ii) calculated and compounded quarterly; (iii) accrue and be payable quarterly, in arrears, on March 31, June 30, September 30 and December 31 (each such date being referred to herein as a "QUARTERLY DIVIDEND PAYMENT DATE"), except that if any Quarterly Dividend Payment Date is not a Business Day then the Quarterly Dividend Payment Date shall be on the first immediately succeeding Business Day, commencing on the first Quarterly Dividend Payment Date following the Issue Date; and (iv) payable in cash. Notwithstanding anything contained herein to the contrary, on any day on or after the tenth anniversary of the Issue Date during which a Dividend Payment Default (as defined in Section 8(c)(i)) shall exist, the Dividend Rate shall be 10%. (b) Accrual of Dividends. Dividends payable pursuant to subsection (a) of this Section 3 shall begin to accrue on a daily basis and be cumulative from the Issue Date, whether or not declared by the Board of Directors and whether or not there are profits, surplus or other funds of the Corporation legally available for the payment of dividends, and shall continue to accrue and be cumulative (and compound as provided in (a) above) until paid in full in cash or until the date of conversion or redemption of the Convertible Preferred Stock (such dividends being referred to as the "CONVERTIBLE PREFERRED DIVIDENDS"). The amount of dividends so payable shall be determined on the basis of twelve 30-day months and a 360-day year. Any dividends declared by the Board of Directors and paid, in each case, after the tenth anniversary of the Issue Date will be applied first against any dividends that have accrued since the tenth anniversary of the Issue Date but that have not been paid and then to dividends that have accrued since the Issue Date but that have not been paid. Subject to the immediately preceding sentence, dividends paid on shares of Convertible Preferred Stock in an amount less than the total amount of such dividends at the time accrued and payable on such shares shall be allocated pro rata on a share-by-share basis among all such shares at the time outstanding. (c) Restricted Payments. So long as any shares of Convertible Preferred Stock remain outstanding, the Corporation shall not make any payment on account of, or set apart for payment money for a sinking or other similar fund for, the purchase, redemption or other retirement of, any Junior Securities or other capital stock of the Corporation or any warrants, rights, calls or options exercisable for or convertible into any shares of Junior Securities or other capital stock of the Corporation, or make any distribution in respect thereof, either directly or indirectly, and whether in cash, obligations or shares of Junior Securities or other capital stock of the Corporation or other property, and shall not permit any corporation or other entity directly or indirectly controlled by the Corporation to purchase or redeem any of the Junior Securities or other capital stock of the Corporation or any warrants, rights, calls or options exercisable for or convertible into any Junior Securities or other capital stock of the Corporation unless all dividends that have accrued since the tenth anniversary of the Issue Date on the shares of Convertible Preferred Stock shall have been paid. (d) Dividends on Common Stock. So long as any shares of Convertible Preferred Stock remain outstanding, if the Corporation pays a dividend in cash, securities or other property on shares of Common Stock, then at the same time the Corporation shall declare and pay a dividend on shares of Convertible Preferred Stock (which would be in addition to any dividends payable under Section 3(a) and (b)) in the amount of dividends that would be paid with respect to shares of Convertible Preferred Stock if such shares were converted into shares of Common Stock on the record date for such dividend (or if no record date is established, at the date such dividend is declared). 4. Liquidation Preference. (a) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation (each, a "LIQUIDATION EVENT"), the holders of shares of Convertible Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders an amount (as adjusted for any split, subdivision, combination, consolidation, recapitalization or similar event with respect to the Convertible Preferred Stock) in cash equal to the greater of (i) 100% of the Liquidation Value for each share outstanding, plus an amount equal to all accrued but unpaid dividends thereon, whether or not declared, (such amount, the "CONVERTIBLE PREFERRED AMOUNT") to the date of liquidation, dissolution or winding up as calculated pursuant to Section 3 hereof, or (ii) the amount to which such holder would be entitled to receive in connection therewith had such holder converted such share into shares of Common Stock in accordance with the terms hereof immediately prior to such event (such greater amount of (i) and (ii) being referred to herein as the "LIQUIDATION PREFERENCE"), in either case before any payment shall be made or any assets distributed to the holders of any of the Junior Securities. If the assets of the Corporation are not sufficient to pay in full the liquidation payments payable to the holders of outstanding shares of the Convertible Preferred Stock and any Parity Securities, then the holders of all such shares shall share ratably in such distribution of assets in accordance with the amount which would be payable on such distribution if the amounts to which the holders of outstanding shares of Convertible Preferred Stock and the holders of outstanding shares of such Parity Securities are entitled were paid in full. (b) For the purposes of this Section 4, neither the voluntary sale, conveyance, exchange or transfer (for cash, shares of stock, securities or other consideration) of all or substantially all of the property or assets of the Corporation nor the consolidation or merger of the Corporation with any one or more other corporations shall be deemed to be a voluntary or involuntary liquidation, dissolution or winding up of the Corporation, unless such voluntary sale, conveyance, exchange or transfer shall be in connection with a plan of liquidation, dissolution or winding up of the Corporation. 5. Redemption. (a) Optional Redemption. Subject to the rights of holders of shares of Convertible Preferred Stock set forth in Section 9 hereof, the Corporation may, at its option, redeem at any time on or after January 3, 2013, in the manner provided in Section 6 hereof, all but not less than all of the shares of the Convertible Preferred Stock at a redemption price per share equal to the Liquidation Preference, provided, however, that in the event a Change of Control (as defined below) has occurred prior to a redemption pursuant to this Section 5(a), the redemption price per share shall be the greater of (A) the Liquidation Preference and (B) the consideration calculated in accordance with Section 5(b) hereof; provided, further, that the Corporation may redeem the Convertible Preferred Stock pursuant to this Section 5(a) on or after January 3, 2006 and before January 3, 2013, if the Current Market Price (as defined below) of the Common Stock has exceeded 200% of the Conversion Price for 30 of the 45 Trading Days preceding the date notice is given by the Corporation pursuant to Section 6 hereof of its intention to redeem all of the shares of Convertible Preferred Stock pursuant to this Section 5(a). Until January 3, 2018, the Corporation shall pay the redemption price pursuant to this Section 5(a) in cash. After January 3, 2018, the Corporation may elect, in its sole discretion, to pay the redemption price pursuant to this Section 5(a) in cash, Common Stock or a combination thereof. If the Corporation elects to pay all or a portion of the redemption price in Common Stock pursuant to the immediately preceding sentence, the number of shares of Common Stock that the holders of Convertible Preferred Stock shall be entitled to receive will be equal to the quotient of (1) the consideration to be received by the holders of Convertible Preferred Stock as determined pursuant to this Section 5(a) with respect to the shares of Convertible Preferred Stock the Corporation has elected to pay in Common Stock divided by (2) the product of .95 multiplied by the average of the Current Market Price for the 30 Trading Days preceding the date the Corporation mails notice of such redemption pursuant to Section 6(a). (b) Redemption Upon Change in Control. Upon the occurrence of a Change in Control, each holder of Convertible Preferred Stock may elect to cause the Corporation to redeem such holder's Convertible Preferred Stock, in whole or in part, at a redemption price per share in cash equal to the greater of (i) 101% of the Liquidation Value plus accrued and unpaid dividends (whether or not declared) to the date of redemption; provided, however, that if the Change in Control occurs on or before January 3, 2008, the redemption price per share will include dividends that would have accrued or been payable in accordance with Section 3 hereof until January 3, 2008, had the Convertible Preferred Stock not been redeemed prior thereto or (ii) the amount to which such holder would be entitled to receive in connection therewith had such holder converted such share into shares of Common Stock in accordance with the terms hereof immediately prior to such event. 6. Procedure for Redemption. (a) In the event that the Corporation shall redeem shares of Convertible Preferred Stock pursuant to Section 5(a) hereof, notice of such redemption shall be mailed by first-class mail, postage prepaid, and mailed not less than 30 days nor more than 60 days prior to the redemption date, to the holders of record of the shares to be redeemed at their respective addresses as they shall appear in the records of the Corporation; provided, however, that failure to give such notice or any defect therein or in the mailing thereof shall not affect the validity of the proceeding for the redemption of any shares so to be redeemed except as to the holder to whom the Corporation has failed to give such notice or except as to the holder to whom notice was defective. Each such notice shall state: (i) the redemption date; (ii) the number of shares of Convertible Preferred Stock to be redeemed; (iii) the redemption price per share, including a calculation of such redemption price; (iv) the place or places where certificates for such shares are to be surrendered for payment of the redemption price; (v) that dividends on the shares to be redeemed will cease to accrue on such redemption date; and (vi) that the holder's right to convert such shares into shares of Common Stock shall terminate on the close of business on the second Business Day preceding such redemption date. (b) If a Change in Control should occur, then, in any one or more of such events the Corporation shall, within 10 days following the occurrence of the Change in Control, give written notice by first-class mail, postage prepaid, to each holder of Convertible Preferred Stock at its address as it appears in the records of the Corporation, which notice shall describe such Change in Control. Such notice shall also set forth: (i) each holder's right to require the Corporation to redeem in whole or in part shares of Convertible Preferred Stock held by such holder as a result of such Change in Control; (ii) the redemption price, including a calculation of such redemption price; (iii) the redemption date (which date shall be no earlier than 30 days from the date the notice in respect of such Change in Control is mailed); (iv) the procedures to be followed by such holder in exercising its right of redemption, including the place or places where certificates for such shares are to be surrendered for payment of the redemption price; (v) that dividends on the shares to be redeemed will cease to accrue on the redemption date and (vi) that the holder's right to convert such shares into shares of Common Stock shall terminate on the close of business on the second Business Day preceding such redemption date. In the event a holder of shares of Convertible Preferred Stock elects to require the Corporation to redeem any or all of such shares of Convertible Preferred Stock, such holder shall deliver, not later than two Business Days prior to the redemption date as set forth in the Corporation's notice described in this Section 6(b), a written notice stating such holder's election and specifying the number of shares to be redeemed pursuant to Section 5(b) hereof. (c) After notice by the Corporation has been mailed as provided in Section 6(a) hereof, or notices of election have been mailed by the holders as provided in Section 6(b) hereof, and provided that on or before the applicable redemption date funds necessary for such redemption shall have been set aside by the Corporation, separate and apart from its other funds, in trust for the pro rata benefit of the holders of the shares so called for or entitled to redemption, so as to be and to continue to be available therefor, then, from and after the redemption date (unless the Corporation defaults in the payment of the redemption price, in which case such rights shall continue until the redemption price is paid), dividends on the shares of Convertible Preferred Stock so called for or entitled to redemption shall cease to accrue, and said shares shall no longer be deemed to be outstanding and shall not have the status of shares of Convertible Preferred Stock, and all rights of the holders thereof as stockholders of the Corporation (except the right to receive the applicable redemption price and any accrued and unpaid dividends from the Corporation to the date of redemption calculated pursuant to Section 3 hereof and the right to convert such shares into shares of Common Stock, which shall continue until the close of business on the second Business Day preceding the date of redemption in accordance with Section 9 hereof) shall cease. Upon surrender of the certificates for any shares so redeemed (properly endorsed or assigned for transfer, if the Board of Directors of the Corporation shall so require and a notice by the Corporation shall so state), such shares shall be redeemed by the Corporation at the applicable redemption price as aforesaid. In case fewer than all the shares represented by any such certificate are redeemed, a new certificate or certificates representing the unredeemed shares shall be issued to such holder within 5 days of the redemption date. 7. Reacquired Shares. Shares of Convertible Preferred Stock that have been issued and reacquired in any manner, including without limitation shares reacquired by purchase, redemption or conversion pursuant to Section 9 hereof, shall (upon compliance with any applicable provisions of the laws of the State of Delaware) have the status of authorized and unissued shares of the class of Preferred Stock undesignated as to series and may be redesignated and reissued as part of any series of Preferred Stock other than Convertible Preferred Stock. 8. Voting Rights. In addition to any voting rights provided by applicable law, the holders of Convertible Preferred Stock shall have the following voting rights: (a) General. Subject to Section 8(b) hereof, each share of Convertible Preferred Stock shall entitle the holder thereof to vote on all matters submitted to a vote of the stockholders of the Corporation, voting together as a single class with the holders of Common Stock. At any time, each share of Convertible Preferred Stock shall be entitled to a number of votes which is equal to the number of shares of Common Stock that could be obtained upon conversion of one share of Convertible Preferred Stock at the then applicable Conversion Price (as such amount may be adjusted pursuant to Section 9(f) hereof). (b) Voting Rights for Directors. (i) Subject to Section 8(b)(viii), in addition to any other rights to elect directors which the holders of Convertible Preferred Stock may have, from and after the Issue Date, the holders of all outstanding shares of Convertible Preferred Stock, voting separately as a class and to the exclusion of the holders of all other classes of stock of the Corporation, shall be entitled to elect a total of two individuals to serve as members of the Board of Directors. Such directors shall be divided into classes if and to the same extent as the directors to be elected generally by the stockholders of the Corporation. (ii) The right to elect directors as described in Section 8(b)(i) hereof may be exercised either at a special meeting of the holders of Convertible Preferred Stock, called as hereinafter provided in Section 8(b)(iii) hereof, at any annual meeting of stockholders held for the purpose of electing directors, or by the written consent of the holders of Convertible Preferred Stock without a meeting pursuant to Section 228 of the DGCL and thereafter at such annual meeting or by written consent. (iii) The Secretary of the Corporation may, and upon the written request of the holders of record of at least 10% of the outstanding shares of Convertible Preferred Stock (addressed to the Secretary of the Corporation at the principal office of the Corporation) shall, call a special meeting of the holders of Convertible Preferred Stock for the election of the directors to be elected by them as herein provided. Such call shall be made by notice to the holders of record by first-class mail, postage prepaid at their respective addresses as they shall appear in the records of the Corporation, and such notice shall be mailed at least 10 days but no more than 20 days before the date of the special meeting, or as required by law. Such meeting shall be held at the earliest practicable date upon the notice required for special meetings of stockholders at the place designated by the Secretary of the Corporation. If such meeting shall not be called by a proper officer of the Corporation within 15 days after receipt of such written request by the Secretary of the Corporation, then the holders of record of at least 10% of the shares of Convertible Preferred Stock then outstanding may call such meeting at the expense of the Corporation, and such meeting may be called by such holders upon the notice required for special meetings of stockholders and shall be held at the place designated in such notice. Any holder of Convertible Preferred Stock that would be entitled to vote at any such meeting shall have access to the stock record books of the Corporation for the purpose of causing a meeting of holders of Convertible Preferred Stock to be called pursuant to the provisions of this Section 8(b)(iii). (iv) At any meeting held for the purpose of electing directors at which the holders of Convertible Preferred Stock shall have the right to elect directors as provided in this Section 8(b), the presence in person or by proxy of the holders of a majority of the then outstanding shares of Convertible Preferred Stock shall be required and be sufficient to constitute a quorum of such class for the election of directors by such class. At any such meeting or adjournment thereof, (x) the absence of a quorum of the holders of Convertible Preferred Stock shall not prevent the election of directors other than the directors to be elected by the holders of Convertible Preferred Stock, and the absence of a quorum or quorums of the holders of capital stock entitled to elect such other directors shall not prevent the election of the directors to be elected by the holders of Convertible Preferred Stock, and (y) in the absence of a quorum of the holders of Convertible Preferred Stock, a majority of the holders of Convertible Preferred Stock present in person or by proxy shall have the power to adjourn the meeting for the election of directors which such holders are entitled to elect, from time to time, without notice (except as required by law) other than announcement at the meeting, until a quorum shall be present. (v) Except as provided in Section 8(b)(viii) hereof, the term of office of any director elected by the holders of Convertible Preferred Stock pursuant to Section 8(b)(i) hereof in office at any time shall terminate upon the election of his or her successor at the annual meeting of stockholders held for the purpose of electing directors to the class of directors to which such director belongs. (vi) In case of a vacancy occurring in the office of any director so elected pursuant to Section 8(b)(i) hereof, the holders of a majority of the Convertible Preferred Stock then outstanding may, at a special meeting of the holders or by written consent as provided above, elect a successor to hold office for the unexpired term of such director. (vii) At any annual or special meeting held for the purpose of allowing the holders of the Convertible Preferred Stock to take any action pursuant to this Certificate of Designations, the Stock Purchase Agreement or the Registration Rights Agreement and where a majority of the then outstanding shares of Convertible Preferred Stock are present in person or by proxy, the affirmative vote of the holders present in person or by proxy at such meeting shall be sufficient for such action to have received the approval of the holders of the Convertible Preferred Stock. (viii) Notwithstanding the foregoing: (x) at such time, if any, as the outstanding shares of Convertible Preferred Stock then Beneficially Owned by the Initial Purchasers, their respective Affiliates or any Designated Transferees constitutes less than 50% of the number of shares of Common Stock Beneficially Owned by them immediately after the Issue Date (as such number may be adjusted for stock dividends, stock splits, combinations and recapitalizations and other similar events), the number of directors the holders of Convertible Preferred Stock are then entitled to designate and elect under this Section 8(b) shall be reduced by one; and (y) at such time as the outstanding shares of Convertible Preferred Stock then Beneficially Owned by the Initial Purchasers, their respective Affiliates or any Designated Transferees constitutes less than 15% of the number of shares of Common Stock Beneficially Owned by them immediately after the Issue Date (as such number may be adjusted for stock dividends, stock splits, combinations and recapitalizations and other similar events), the holders of Convertible Preferred Stock shall not be entitled to designate or elect any directors under this Section 8(b). (c) Additional Directors. (i) Subject to Section 8(c)(viii), in the event that (i) dividends payable on any Quarterly Dividend Payment Date after the tenth anniversary of the Issue Date are not paid and are in arrears on such Quarterly Dividend Payment Date (each occurrence a "Dividend Payment Default") or (ii) if the Corporation shall have failed to discharge any obligation pursuant to a request for redemption pursuant to Section 5(b) (the "Redemption Obligation") (each of the foregoing a "Triggering Event"), then the number of directors constituting the Board of Directors of the Corporation, without further action, shall be increased by one person and the holders of the Convertible Preferred Stock shall have the exclusive right, voting separately as a class, to nominate and elect such director (the "New Director") of the Corporation to fill such newly created directorship at each meeting of stockholders held for the purpose of electing directors to the class of directors to which such director belongs. (ii) Whenever such voting right shall have vested, such right may be exercised at a special meeting of the holders of the Convertible Preferred Stock called as hereinafter provided, at any annual meeting of stockholders held for the purpose of electing directors or by the written consent of the holders of Convertible Preferred Stock pursuant to Section 228 of the Delaware General Corporation Law. Such voting right shall continue until such time as all cumulative dividends accumulated on the Convertible Preferred Stock since the tenth anniversary of the Issue Date shall have been paid in full or the Corporation shall have fulfilled its Redemption Obligation in full, as the case may be, at which time such voting right of the holders of Convertible Preferred Stock shall terminate, but such voting right shall again vest in the event of each and every subsequent failure of the Corporation to pay dividends for the requisite number of periods or to discharge any Redemption Obligation as described above. (iii) At any time when such voting right shall have vested in the holders of Convertible Preferred Stock and if such right shall not already have been initially exercised, a proper officer of the Corporation shall, upon the written request of any holder of record of Convertible Preferred Stock then outstanding, call a special meeting of holders of Convertible Preferred Stock. Such meeting shall be held at the earliest practicable date upon the notice required for annual meetings of stockholders. If such meeting shall not be called within 20 days after such written request, then the holders of record of 10% of the shares of Convertible Preferred Stock then outstanding may designate in writing a holder of Convertible Preferred Stock to call such meeting at the expense of the Corporation, and such meeting may be called by such person so designated upon the notice required for annual meetings of stockholders. Any holder of Convertible Preferred Stock which would be entitled to vote at such meeting shall have access to the stock books of the Corporation for the purpose of causing a meeting of stockholders to be called pursuant to the provisions of this paragraph. Notwithstanding the provisions of this paragraph, however, no such special meeting shall be called during a period within 60 days immediately preceding the date fixed for the next annual meeting of stockholders. (iv) At any meeting at which the holders of Convertible Preferred Stock shall have the right to elect a New Director as provided herein, the presence in person or by proxy of the holders of at least a majority of the then outstanding shares of Convertible Preferred Stock shall be required and be sufficient to constitute a quorum. At any such meeting or adjournment thereof, the absence of a quorum of the holders of Convertible Preferred Stock shall not prevent the election of directors other than the New Director and the absence of a quorum or quorums of the holders of capital stock entitled to elect such other directors shall not prevent the election of any New Director. (v) For so long as the aforesaid voting rights are vested in the holders of Convertible Preferred Stock, the term of office of the New Director shall terminate upon the election of his successor by the holders of Convertible Preferred Stock. Upon any termination of the aforesaid voting rights in accordance with Section 8(c)(ii) or Section 8(c)(viii), the term of office of any New Director shall thereupon terminate and upon such termination the number of directors constituting the Board of Directors shall, without further action, be reduced by one. (vi) In the case of any vacancy occurring with respect to the New Director, the New Director who shall have been so elected may appoint a successor to hold office until his successor is elected at an annual or a special meeting of the stockholders. If the New Director shall cease to serve as a director before his term shall expire, the holders of Convertible Preferred Stock then outstanding may elect a successor (at any meeting of stockholders held for the purpose of electing directors or by the written consent of the holders of Convertible Preferred Stock pursuant to Section 228 of the Delaware General Corporation Law) to hold office until his successor is elected at an annual or a special meeting of the stockholders. The New Director may be removed, either for or without cause, by the holders of a majority of the Convertible Preferred Stock and any resulting vacancy may be filled as provided for in this subsection (vi). (vii) So long as any shares of Convertible Preferred Stock are outstanding, the Corporation shall take such action as may be necessary so that its By-laws shall contain provisions ensuring that the number of directors of the Corporation shall at all times be such that the exercise, by the holders of the Convertible Preferred Stock, of the right to elect a New Director will not contravene any provisions of the Certificate of Incorporation or By-laws. (viii) Notwithstanding the foregoing, at such time, if any, as the outstanding shares of Convertible Preferred Stock then Beneficially Owned by the Initial Purchasers, their respective Affiliates or any Designated Transferees constitutes less than 50% of the number of shares of Common Stock Beneficially Owned by them immediately after the Issue Date (as such number may be adjusted for stock dividends, stock splits, combinations and recapitalizations and other similar events), the holders of Convertible Preferred Stock shall not be entitled to designate or elect any directors under this Section 8(c). 9. Conversion. (a) Any share of Convertible Preferred Stock shall be convertible at the option of the holder thereof into fully paid and nonassessable shares of Common Stock on the terms and conditions set forth in this Section 9, at any time upon surrender to the Corporation of the certificates for the shares to be converted, into a number of fully paid and nonassessable shares of Common Stock equal to the Convertible Preferred Amount per share as of the date of conversion divided by the Conversion Price. (b) Conversion of the Convertible Preferred Stock as permitted by Section 9(a) hereof may be effected by any holder thereof upon the surrender to the Corporation, at its principal office or at such other office or agency maintained by the Corporation for that purpose, of the certificate for the Convertible Preferred Stock to be converted accompanied by a written notice stating that such holder elects to convert all or a specified whole number of such shares in accordance with the provisions of this Section 9 and specifying the name or names in which such holder wishes the certificate or certificates for shares of Common Stock to be issued. In case such notice shall specify a name or names other than that of such holder, such notice shall be accompanied by payment of all transfer taxes payable upon the issuance of shares of Common Stock in such name or names. Other than such taxes, the Corporation will pay any and all issue and other taxes (other than taxes based on income) that may be payable in respect of any issue or delivery of shares of Common Stock on conversion of Convertible Preferred Stock pursuant hereto. As promptly as practicable, and in any event within 5 Business Days after the surrender of such certificate or certificates and the receipt of such notice relating thereto and, if applicable, payment of all transfer taxes (or the demonstration to the reasonable satisfaction of the Corporation that such taxes have been paid), the Corporation shall deliver or cause to be delivered (i) certificates representing the number of validly issued, fully paid and nonassessable shares of Common Stock to which the holder of shares of Convertible Preferred Stock being converted shall be entitled, (ii) if less than the full number of shares of Convertible Preferred Stock evidenced by the surrendered certificate or certificates is being converted, a new certificate or certificates, of like tenor, for the number of shares and evidenced by such surrendered certificate or certificates less the number of shares being converted, and (iii) payment of all amounts to which a holder is entitled pursuant to Section 9(e) hereof. Such conversion shall be deemed to have been made at the close of business on the date of giving of such notice and of such surrender of the certificate or certificates representing the shares of Convertible Preferred Stock to be converted so that the rights of the holder thereof as to the shares being converted shall cease except for the right to receive shares of Common Stock in accordance herewith, and the Person entitled to receive the shares of Common Stock shall be treated for all purposes as having become the record holder of such shares of Common Stock at such time. (c) In case any shares of Convertible Preferred Stock are to be redeemed pursuant to Section 5 hereof, such right of conversion shall cease and terminate as to such shares at the close of business on the second Business Day preceding the date fixed for redemption or exchange, unless the Corporation shall default in the payment of the applicable redemption price, in which case such right of conversion shall not cease as to any share of Convertible Preferred Stock unless and until the redemption price with respect to such share has been paid in full. (d) The Corporation shall at all times reserve and keep available, free from liens, charges and security interests and not subject to any preemptive rights, for issuance upon conversion of the Convertible Preferred Stock such number of its authorized but unissued shares of Common Stock as will from time to time be sufficient to permit the conversion of all outstanding shares of Convertible Preferred Stock, and shall take all action required to increase the authorized number of shares of Common Stock if necessary to permit the conversion of all outstanding shares of Convertible Preferred Stock. (e) No fractional shares or scrip representing fractional shares of Common Stock shall be issued upon the conversion of any shares of Convertible Preferred Stock. Instead of any fractional interest in a share of Common Stock which would otherwise be deliverable upon the conversion of a share of Convertible Preferred Stock, the Corporation shall pay to the holder of such share an amount in cash equal to such fractional interest multiplied by the Current Market Price of the Common Stock on the day of conversion. If more than one share or right shall be surrendered for conversion at one time by the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate Convertible Preferred Amount so surrendered. (f) The Conversion Price shall be subject to adjustment as follows: (i) In case the Corporation shall at any time or from time to time after the Issue Date (A) pay a dividend or make a distribution in shares of Common Stock or securities convertible into Common Stock, (B) subdivide or reclassify the outstanding shares of Common Stock into a greater number of shares of Common Stock, (C) combine or reclassify the outstanding shares of Common Stock into a smaller number of shares, or (D) otherwise issue by reclassification of the shares of Common Stock any shares of capital stock of the Corporation, then, and in each such case, the Conversion Price shall be adjusted so that the holder of any shares of Convertible Preferred Stock and thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock or other securities of the Corporation which such holder would have owned or have been entitled to receive after the happening of any of the events described above had such shares of Convertible Preferred Stock been surrendered for conversion immediately prior to the happening of such event or the record date therefor, whichever is earlier. An adjustment made pursuant to this Section 9(f)(i) shall become applicable (x) in the case of any such dividend or distribution, immediately after the close of business on the record date for the determination of holders of shares of Common Stock entitled to receive such dividend or distribution and (y) in the case of any such subdivision, reclassification or combination, at the close of business on the day upon which such corporate action becomes effective. Such adjustment shall be made successively. (ii) In case the Corporation shall at any time or from time to time after the Issue Date declare, order, pay or make a dividend or other distribution (including without limitation any distribution of stock or other securities, evidences of indebtedness, property or assets or rights or warrants to subscribe for securities of the Corporation or any of its Subsidiaries) on its Common Stock (other than (A) regular quarterly dividends payable in cash or (B) dividends or distributions of shares of Common Stock referred to in Section 9(f)(i) hereof) (any one of the foregoing other than the items specified in clause (A) or (B) referred to as "SECURITIES OR ASSETS"), then and in each such case, unless the Corporation elects to reserve shares or other units of such Securities or Assets for distribution to the holders of the Convertible Preferred Stock upon the conversion of the shares of Convertible Preferred Stock so that any such holder converting shares of Convertible Preferred Stock will receive upon such conversion, in addition to the shares of the Common Stock to which such holder is entitled, the amount and kind of such Securities or Assets which such holder would have received if such holder had, immediately prior to the record date for the distribution of the Securities or Assets, converted its shares of Convertible Preferred Stock into Common Stock, the Conversion Price shall be adjusted so that such Conversion Price shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price of the Common Stock on such record date less the then fair market value (as determined by the Board in good faith) of the portion of the capital stock or assets or evidences of indebtedness so distributed or of such rights or warrants applicable to one share of Common Stock, and of which the denominator shall be the Current Market Price of the Common Stock on such record date; provided, however, that if the then fair market value (as so determined) of the portion of the Securities or Assets so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the record date mentioned above, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of shares of the Convertible Preferred Stock shall have the right to receive the amount and kind of Securities or Assets which such holder would have received had such holder converted each such share of the Convertible Preferred Stock immediately prior to the record date for the distribution of the Securities or Assets. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. (iii) In case the Corporation shall issue or sell any Common Stock (or rights, options, warrants or other securities convertible into or exercisable or exchangeable for shares of Common Stock) (collectively, "ADDITIONAL SHARES") at any time from and after the Issue Date until January 3, 2006 without consideration or for a consideration per share (or having a conversion, exchange or exercise price per share) (such per share amount, the "SALE PRICE") less than the greater of (A) the Current Market Price per share of Common Stock on the date preceding the earlier of the issuance or public announcement of the issuance of such Additional Shares of Common Stock and (B) the Conversion Price as of the date of such issuance of such shares (or, in the case of convertible or exchangeable or exercisable securities, less than the greater of the Current Market Price or the Conversion Price, as the case may be, as of the date of issuance of the rights, options, warrants or other securities in respect of which shares of Common Stock were issued) then, and in each such case, the Conversion Price shall be reduced to an amount determined by multiplying (A) the Conversion Price in effect on the day immediately prior to such date by (B) a fraction, the numerator of which shall be the sum of (1) the number of shares of Common Stock outstanding immediately prior to such sale or issuance multiplied by the greater of (a) the then applicable Conversion Price per share and (b) the Current Market Price per share of Common Stock on the date preceding the earlier of the issuance or public announcement of the issuance of such Additional Shares of Common Stock (the greater of (a) and (b) above hereinafter referred to as the "ADJUSTMENT PRICE") and (2) the aggregate consideration receivable by the Corporation for the total number of shares of Common Stock so issued (or into or for which the rights, options, warrants or other securities are convertible, exercisable or exchangeable), and the denominator of which shall be equal to the product of (I) the sum of (x) the total number of shares of Common Stock outstanding immediately prior to such sale or issue and (y) the number of additional shares of Common Stock issued (or into or for which the rights, options, warrants or other securities may be converted, exercised or exchanged), multiplied by (II) the Adjustment Price. In case any portion of the consideration to be received by the Corporation shall be in a form other than cash, the fair market value of such noncash consideration shall be utilized in the foregoing computation. Such fair market value shall be determined in good faith by the Board of Directors. An adjustment made pursuant to this subsection (iii) shall be made on the next Business Day following the date on which any such issuance is made and shall be effective retroactively to the close of business on the date of such issuance. For purposes of this subsection (iii), the aggregate consideration receivable by the Corporation in connection with the issuance of shares of Common Stock or of rights, warrants or other securities convertible into shares of Common Stock shall be deemed to be equal to the sum of the aggregate offering price (before deduction of underwriting discounts or commissions and expenses payable to third parties) of all such Common Stock, rights, warrants and convertible securities plus the aggregate amount (as determined on the date of issuance), if any, payable upon exercise or conversion of any such rights, warrants and convertible securities into shares of Common Stock. If, subsequent to the date of issuance of such right, warrants or other convertible securities, the exercise or conversion price thereof is reduced, such aggregate amount shall be recalculated and the Conversion Price shall be adjusted retroactively to give effect to such reduction. On the expiration of any option or the termination of any right to convert or exchange any securities into Additional Shares, the Conversion Price then in effect hereunder shall forthwith be increased to the Conversion Price which would have been in effect at the time of such expiration or termination (but taking into account other adjustments or potential made following the time of issuance of such options or securities) had such option or security, to the extent outstanding immediately prior to such expiration or termination, never been issued. If Common Stock is sold as a unit with other securities, the aggregate consideration received for such Common Stock shall be deemed to be net of the fair market value (as determined by the Board of Directors in good faith) of such other securities. The issuance or reissuance of (A) any shares of Common Stock or rights, warrants or other securities convertible into shares of Common Stock (whether treasury shares or newly issued shares) (1) pursuant to a dividend or distribution on, or subdivision, combination or reclassification of, the outstanding shares of Common Stock requiring an adjustment in the Conversion Price pursuant to subsection (i) of this Section 9(f); (2) pursuant to any restricted stock or stock option plan or program of the Corporation involving the grant of options or rights to acquire shares of Common Stock after the date hereof to directors, officers and employees of the Corporation and its Subsidiaries; (3) pursuant to any option, warrant, right, or convertible security outstanding as of the Issue Date; (4) pursuant to any securities issued to a bank or other similar financial institution solely in connection with the Senior Credit Facility or the Senior Subordinated Credit Facility or (5) pursuant to an underwritten offering registered with the SEC if the offering price is greater than the Conversion Price then in effect; (B) the Series B-1 Convertible Preferred Stock and any shares of Common Stock issuable upon conversion or exercise thereof, or (C) the Warrants and any shares of Common Stock issuable upon exercise thereof, shall not be deemed to constitute an issuance of Common Stock or convertible securities by the Corporation to which this subsection (iii) applies. No adjustment shall be made pursuant to this subsection (iii) in connection with any transaction to which Section 9(g) applies. (iv) For purposes of this Section 9(f), the number of shares of Common Stock at any time outstanding shall not include any shares of Common Stock then owned or held by or for the account of the Corporation. (v) All calculations of the Conversion Price pursuant to this Section 9(f) shall be made to the nearest one one-hundredth of a cent. Anything in this Section 9(f) to the contrary notwithstanding, (A) the Corporation shall not be required to give effect to any adjustment in the Conversion Price unless and until the net effect of one or more adjustments (each of which shall be carried forward), determined as above provided, shall have resulted in a reduction of the Conversion Price of at least 1%, and when the cumulative net effect of more than one adjustment so determined shall be to reduce the Conversion Price by at least 1%, such reduction in Conversion Price shall thereupon be given effect and (B) in no event shall the then current Conversion Price be increased as a result of any calculation made at any time pursuant to this Section 9(f). (g) (i) In case of any capital reorganization or reclassification of outstanding shares of Common Stock (other than a reclassification to which Section 9(f)(i) hereof shall apply), or in case of any merger or consolidation of the Corporation with or into another Person (as defined below), or in case of any sale or conveyance to another Person of all or substantially all of the assets of the Corporation or any compulsory share exchange pursuant to which share exchange the shares of Common Stock are converted into other securities, cash or other property (each of the foregoing being referred to as a "TRANSACTION"), each share of Convertible Preferred Stock then outstanding shall thereafter be convertible into, in lieu of the Common Stock issuable upon such conversion prior to consummation of such Transaction, the kind and amount of shares of stock and other securities and property receivable (including cash) upon the consummation of such Transaction by a holder of that number of shares of Common Stock into which one share of Convertible Preferred Stock was convertible immediately prior to such Transaction (including, on a pro rata basis, the cash, securities or property received by holders of Common Stock in any tender or exchange offer that is a step in such Transaction). (ii) Notwithstanding anything contained herein to the contrary, the Corporation will not effect any Transaction unless, prior to the consummation thereof, (A) the Surviving Person (as defined below) shall agree that the shares of Convertible Preferred Stock shall be treated as provided in paragraph (i) of this Section 9(g) and the agreements governing such Transaction shall so provide, (B) the Surviving Person thereof shall assume, by written instrument mailed, by first-class mail, postage prepaid, to each holder of shares of Convertible Preferred Stock at such holder's address as it appears in the records of the Corporation, the obligation to deliver to such holder such cash or other securities to which, in accordance with the foregoing provisions, such holder is entitled and such Surviving Person shall have mailed, by first-class mail, postage prepaid, to each holder of shares of Convertible Preferred Stock at such holder's address as it appears in the records of the Corporation, an opinion of independent counsel for such Person stating that such assumption agreement is a valid, binding and enforceable agreement of the Surviving Person, and (C) proper provision is made to ensure that the holders of shares of Convertible Preferred Stock will be entitled to receive the benefits afforded by Section 5(b) hereof. (h) In any case, if necessary, appropriate adjustment (as determined in good faith by the Board of Directors) shall be made in the application of the provisions set forth in this Section 9 with respect to rights and interests thereafter of the holders of shares of Convertible Preferred Stock to the end that the provisions set forth herein for the protection of the conversion rights of Convertible Preferred Stock shall thereafter be applicable, as nearly as reasonably may be, to any such other shares of stock and other securities (other than the Common Stock) and property deliverable upon conversion of the shares of Convertible Preferred Stock remaining outstanding with such adjustments in the Conversion Price and such other adjustments in the provisions hereof as the Board of Directors shall in good faith determine to be appropriate. In case securities or property other than Common Stock shall be issuable or deliverable upon conversion as aforesaid, then all references in this Section 9 shall be deemed to apply, so far as appropriate and as nearly as may be, to such other securities or property. (i) If the Corporation shall pay any dividend or make any other distribution to the holders of its Common Stock (other than regular quarterly dividends payable in cash) or shall offer for subscription pro rata to the holders of its Common Stock any additional shares of stock of any class or any other right, or there shall be any Transaction, or there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Corporation, then, in any one or more of said cases the Corporation shall give at least 15 days prior written notice to the holders of record of Convertible Preferred Stock by first-class mail, postage prepaid, at their respective addresses as they shall appear in the records of the Corporation of the earlier of the dates on which (i) the books of the Corporation shall close or a record shall be taken for such stock dividend, distribution or subscription rights or (ii) such Transaction, dissolution, liquidation or winding up shall take place. Such notice shall also specify the date as of which the holders of the Common Stock of record shall participate in said dividend, distribution or subscription rights or shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, sale or conveyance or participate in such dissolution, liquidation or winding up, as the case may be. Failure to give such notice shall not invalidate any action so taken. 10. Reports as to Adjustments. Upon the occurrence of any event specified in Section 9(f) hereof that would result in any adjustment of the Conversion Price, then, and in each such case, the Corporation shall promptly deliver to the holders of record by first-class mail, postage prepaid, at their respective addresses as they shall appear in the records of the Corporation, a certificate signed by the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation setting forth in reasonable detail the event requiring the adjustment and the method by which such adjustment was calculated and specifying the Conversion Price then in effect following such adjustment. Where appropriate, such notice to the holders of Convertible Preferred Stock may be given in advance and included as part of the notice required pursuant to Section 9(i) hereof. 11. Purchase Rights. If the Corporation issues any shares of Common Stock, options, convertible securities, other equity securities or securities containing options or rights to acquire any equity securities or any securities convertible or exchangeable for equity securities, in each case after the date hereof (other than a Permitted Issuance) to any Person (the "OFFEREE"), such issuance (the "OFFER") will be subject to the right of first offer and participation rights set forth in Section 11(a) and Section 11(b) below. (a) Preferred Stock Issuances. If the securities to be issued in the Offer include any class or series of preferred stock of the Corporation whether by liquidation, dividend or voting rights, the Corporation shall offer such securities (the "PREFERRED OFFERED SECURITIES") to the holders of Convertible Preferred Stock by delivery of written notice to such holders not less than 30 days prior to the date of the proposed issuance. Such notice shall disclose in reasonable detail the proposed terms (including price terms) and conditions of the Offer (the "PREFERRED OFFER NOTICE"). Each holder of Convertible Preferred Stock shall have the right to purchase its ratable portion of the Preferred Offered Securities (determined by dividing the number of shares of Convertible Preferred Stock held by such holder by the total number of shares of Convertible Preferred Stock then outstanding) on the terms as set forth in the Preferred Offer Notice, by delivery of written notice to the Corporation of such election within 15 days after delivery of the Preferred Issuance Notice (the "PREFERRED ELECTION NOTICE"). If any holder of Convertible Preferred Stock has elected to purchase any Preferred Offered Securities, the sale of such securities shall be consummated simultaneously with the consummation of the sale to the Offeree. If the holders of Convertible Preferred Stock elect to purchase less than all of the Preferred Offered Securities as described above, the Corporation may issue such remaining Preferred Offered Securities to the Offeree at the same price and on the same terms as set forth in the Preferred Issuance Notice during the 45-day period beginning from the date on which the Preferred Election Notice has been delivered to the Corporation. Any Preferred Offered Securities not issued within such 45-day period will be subject to this Section 11(a) upon subsequent proposed issuance. (b) Other Issuances. If the securities to be issued pursuant to the Offer do not include any class or series of preferred stock of the Corporation whether by liquidation, dividend or voting rights, the Corporation shall offer to sell to each holder of Convertible Preferred Stock a number of such securities (the "OFFERED SECURITIES") so that such holder's Ownership Ratio immediately after the issuance of such securities would be equal to such holder's Ownership Ratio immediately prior to such issuance of securities. The Corporation shall give each holder of Convertible Preferred Stock at least 30 days prior written notice of any proposed issuance, which notice shall disclose in reasonable detail the proposed terms and conditions of such issuance (the "ISSUANCE NOTICE"). Each holder of Convertible Preferred Stock shall be entitled to purchase its ratable portion of the Offered Securities at the same price, on the same terms, and at the same time as the securities are issued to the Offeree by delivery of written notice to the Corporation of such election within 15 days after delivery of the Issuance Notice (the "ELECTION NOTICE"); provided, that if more than one type of security is proposed to be issued, such holder shall, if it exercises its rights pursuant to this Section 11(b), purchase such securities in the same ratio to be issued to the Offeree. If any holder of Convertible Preferred Stock has elected to purchase any Offered Securities, the sale of such securities shall be consummated simultaneously with the consummation of the sale to the Offeree. If the holders of Convertible Preferred Stock elect to purchase less than all of the Offered Securities as described above, the Corporation may issue such remaining Offered Securities to the Offeree at the same price and on the same terms as set forth in the Issuance Notice during the 45-day period beginning from the date on which the Election Notice has been delivered to the Corporation. Any Offered Securities not issued within such 45-day period must be reoffered to the holders of Convertible Preferred Stock in accordance with this Section 11(b) prior to issuance. (c) The election by any holder of Convertible Preferred Stock not to exercise purchase rights under this Section 11 in any one instance shall not affect such holders rights as to any subsequent proposed issuance. Any sale of such securities by the Corporation without first giving such holders the rights described in this Section 11 shall be void and of no force and effect, and the Corporation shall not register such sale or issuance on the books and records of the Corporation. 12. Certain Covenants. Any holder of Convertible Preferred Stock may proceed to protect and enforce its rights and the rights of such holders by any available remedy by proceeding at law or in equity to protect and enforce any such rights, whether for the specific enforcement of any provision in this Certificate of Designations or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. 13. Definitions. For the purposes of this Certificate of Designations, the following terms shall have the meanings indicated: "AFFILIATE" shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations under the Exchange Act or any successor provision. The terms "affiliated" and "non-affiliated" shall have meanings correlative to the foregoing. "BENEFICIALLY OWN" has the meaning set forth in Rules 13d-3 and 13d-5 promulgated under the Exchange Act. "BUSINESS DAY" shall mean any day other than a Saturday, Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close. "CHANGE IN CONTROL" shall mean (i) any sale, transfer, conveyance or other disposition (other than by way of merger or consolidation) of all or substantially all of the Corporation's assets, on a consolidated basis, in one transaction or a series of related transactions, to any Person (including any group that is deemed to be a Person); (ii) the consummation of any transaction involving the Corporation, including, without limitation, any merger or consolidation, whereby any Person (including any group that is deemed to be a Person ) is or becomes the "beneficial owner," directly or indirectly, of more than 40% of the aggregate voting equity securities of the Corporation or the surviving entity or entities of such transaction if other than the Corporation; (iii) the Continuing Directors cease for any reason to constitute a majority of the members of the Board of Directors then in office; (iv) the approval by the Corporation's stockholders of a merger or consolidation of the Corporation with any other company and all other required governmental approvals have been obtained, other than a merger or consolidation which would result in the Voting Securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity) more than 50% of the combined voting power of the Voting Securities of the Corporation or such surviving entity outstanding immediately after such merger or consolidation; or (v) the Corporation adopts a plan of liquidation. "COMMON STOCK" shall mean the common stock, par value $1 per share, of the Corporation, including any associated Right, as defined in and issued pursuant to the Rights Agreement, dated as of October 27, 1998, as amended, by and between the Corporation and The Bank of New York (as successor to First Chicago Trust Company of New York), as Rights Agent. "CONTINUING DIRECTORS" shall mean during any period of 12 consecutive months, individuals who at the beginning of any such 12-month period constituted the Board of Directors (together with any new directors whose election by such Board of Directors or whose nomination for election by the shareholders of the Corporation was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved, including new directors designated in or provided for in an agreement regarding the merger, consolidation or sale, transfer or other conveyance, of all or substantially all of the assets of the Corporation, if such agreement was approved by a vote of such majority of directors). "CONVERSION PRICE" shall mean, $24.05, and shall be subject to adjustment as provided for in Section 9(f). "CURRENT MARKET PRICE," when used with reference to shares of Common Stock or other securities on any date, shall mean the closing price per share of Common Stock or such other securities on such date and, when used with reference to shares of Common Stock or other securities for any period, shall mean the average of the daily closing prices per share of Common Stock or such other securities for such period. For the avoidance of doubt, "CURRENT MARKET PRICE" as used in Section 5(a) hereof shall mean the closing price per share of Common Stock on each of the 30 Trading Days preceding the date notice is given by the Corporation pursuant to Section 6 hereof of its notice of intention to redeem all of the shares of Convertible Preferred Stock pursuant to Section 5(a). The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Stock or such other securities are not listed or admitted to trading on the New York Stock Exchange, as reported, in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Stock or such other securities are listed or admitted to trading or, if the Common Stock or such other securities are not listed or admitted to trading on any national securities exchange, the last quoted sale price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System or such other system then in use, or, if on any such date the Common Stock or such other securities are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Stock or such other securities selected by the Board of Directors of the Corporation. If the Common Stock or such other securities are not publicly held or so listed or publicly traded, "CURRENT MARKET PRICE" shall mean the fair market value per share of Common Stock or of such other securities as determined by an independent investment banking firm with an established national reputation as a valuer of equity securities selected by the Corporation and reasonably acceptable to the holders of a majority of the shares of Convertible Preferred Stock outstanding at the time. "DESIGNATED TRANSFEREE" shall mean any Person to whom the Initial Purchasers or any Designated Transferee shall have sold or otherwise transferred at least 10,000 shares of Convertible Preferred Stock (as such number may be adjusted from time to time for any stock split, stock dividend, reverse split, combination, recapitalization, merger, or otherwise); provided, however, that no Person primarily engaged in the business of publishing, printing or marketing yellow page directories (the "DIRECTORIES BUSINESS") and no Person which owns more than 40% of the outstanding voting equity securities of any Person primarily engaged in the Directories Business shall be a Designated Transferee unless the Corporation gives its written consent to such Person being a Designated Transferee. "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934. "INITIAL PURCHASERS" shall mean GS Capital Partners 2000, L.P., a Delaware limited partnership; GS Capital Partners 2000 Offshore, L.P., a Cayman Islands exempted limited partnership; GS Capital Partners 2000 Employee Fund 2000, L.P., a Delaware limited partnership; GS Capital Partners 2000 GmbH & Co. Beteiligungs KG, a German limited partnership; and Goldman Sachs Direct Investment Fund 2000, L.P. a Delaware limited partnership. "ISSUE DATE" shall mean January 3, 2003. "JUNIOR SECURITIES" shall have the meaning set forth in Section 2 hereof. "OWNERSHIP RATIO" shall mean, as to any Person at any time of determination, the percentage obtained by dividing the amount of shares of Common Stock held by such Person on a fully diluted, as-if-converted basis at such time by the aggregate amount of shares of Common Stock outstanding on a fully diluted, as-if-converted basis at such time. For purposes of this definition, "fully diluted" shall exclude shares of Common Stock issuable pursuant to out-of-the-money options, warrants or other rights and options, warrants or other rights which are not exercisable by the holder thereof on the date of determination. "PARITY SECURITIES" shall have the meaning set forth in Section 2 hereof. "PERMITTED ISSUANCE" shall mean (i) the issuance or granting of Common Stock (including restricted, deferred or performance shares), options or convertible securities to employees of the Corporation and its Subsidiaries or the exercise thereof pursuant to a stock-based incentive plan, (ii) the issuance of Common Stock hereunder, (iii) the issuance of Common Stock by the Corporation for consideration other than cash pursuant to a consummated merger, consolidation, acquisition, or similar business combination, (iv) the issuance of Common Stock pursuant to any securities issued to a bank or other similar financial institution solely in connection with the Senior Credit Facility or the Senior Subordinated Credit Facility, or (v) the issuance of Common Stock upon exercise of Warrants. "PERSON" shall mean any individual, firm, corporation or other entity, and shall include any successor (by merger or otherwise) of such entity. "REGISTRATION RIGHTS AGREEMENT" shall mean that certain Registration Rights Agreement, dated November 25, 2002, by and among the Corporation and the Purchasers named therein. "SENIOR CREDIT FACILITY" shall have the meaning set forth in the Stock Purchase Agreement. "SENIOR SUBORDINATED CREDIT FACILITY" shall have the meaning set forth in the Stock Purchase Agreement. "STOCK PURCHASE AGREEMENT" shall mean that certain Preferred Stock and Warrant Purchase Agreement, dated September 21, 2002, by and among the Corporation and the Purchasers named therein, as such agreement may be amended from time to time. "SUBSIDIARIES" shall have the meaning ascribed to the term "Company Subsidiaries" in the Stock Purchase Agreement. "SURVIVING PERSON" shall mean the continuing or surviving Person of a merger, consolidation or other corporate combination, the Person receiving a transfer of all or a substantial part of the properties and assets of the Corporation, or the Person consolidating with or merging into the Corporation in a merger, consolidation or other corporate combination in which the Corporation is the continuing or surviving Person, but in connection with which the Convertible Preferred Stock or Common Stock of the Corporation is exchanged or converted into the securities of any other Person or the right to receive cash or any other property. "TRADING DAY" shall mean a day on which the principal national securities exchange on which the Common Stock is listed or admitted to trading is open for the transaction of business or, if the Common Stock is not listed or admitted to trading on any national securities exchange, a Business Day. "VOTING SECURITIES" shall mean the Common Stock, the Convertible Preferred Stock and any other securities of the Corporation having the voting power under ordinary circumstances with respect to the election of directors of the Corporation. "WARRANTS" shall mean the warrants to purchase shares of Common Stock issued pursuant to the Stock Purchase Agreement. IN WITNESS WHEREOF, the Corporation has caused this Certificate to be signed in its name and on its behalf and attested on this 3rd of January 2003 by duly authorized officers of the Corporation. R.H. DONNELLEY CORPORATION By: /s/ Frank M. Colarusso ------------------------------------ Name: Frank M. Colarusso Title: Vice President and Treasurer ATTEST: By: /s/ Robert J. Bush ----------------------------- Name: Robert J. Bush Title: Secretary EX-99.21 4 ex99_21.txt Exhibit 21 This Warrant was originally issued on January 3, 2003, and such issuance was not registered under the Securities Act of 1933, as amended. The transfer of this Warrant and the securities obtainable upon exercise hereof is subject to the limitations and conditions on transfer specified in the Preferred Stock and Warrant Purchase Agreement, dated as of September 21, 2002 (as it may be amended from time to time, the "PURCHASE AGREEMENT"), between the Company and the Registered Holder (each as defined herein), and the Company reserves the right to refuse the transfer of any such securities until such limitations have lapsed and conditions have been fulfilled, with respect to such transfer. Upon written request, a copy of the Purchase Agreement shall be furnished by the Company to the holder hereof without charge. R.H. DONNELLEY CORPORATION STOCK PURCHASE WARRANT ---------------------- Date of Issuance: January 3, 2003 Certificate No. W-2-1 FOR VALUE RECEIVED, R.H. Donnelley Corporation, a Delaware corporation (the "COMPANY"), hereby grants to ___________________ or its registered assigns (the "REGISTERED HOLDER") the right to purchase from the Company _______ shares of the Company's Common Stock at the Exercise Price. This Warrant is one of several warrants (collectively, the "SERIES 2 WARRANTS") issued by the Company to certain investors (the "INVESTORS") pursuant to the Preferred Stock and Warrant Purchase Agreement, dated as of September 21, 2002 (as amended, the "PURCHASE AGREEMENT"). Certain capitalized terms used herein are defined in Section 4 and capitalized terms used in this Warrant but not defined herein shall have the meanings ascribed thereto in the Purchase Agreement. The amount and kind of securities obtainable pursuant to the purchase rights granted hereunder and the purchase price for such securities are subject to adjustment pursuant to the provisions contained in this Warrant. This Warrant is subject to the following provisions: Section 1. Exercise of Warrant. (a) Exercise Period. The Registered Holder may exercise, in whole or in part (but not as to a fractional share of Common Stock), the purchase rights represented by this Warrant at any time and from time to time after the Date of Issuance to and including the fifth anniversary thereof (the "EXERCISE PERIOD"). (b) Exercise Procedure. (i) This Warrant shall be deemed to have been exercised when the Company has received all of the following items (the "EXERCISE TIME"): (A) a completed Exercise Agreement, as defined in Section 1(c), executed by the Person exercising all or part of the purchase rights represented by this Warrant (the "PURCHASER"); (B) this Warrant; (C) if this Warrant is not registered in the name of the Purchaser, an Assignment or Assignments in the form set forth in Exhibit I evidencing the assignment of this Warrant to the Purchaser, in which case the Registered Holder shall have complied with the provisions set forth in Section 6; and (D) either (1) a check payable to the Company in an amount equal to the product of the Exercise Price multiplied by the number of shares of Common Stock being purchased upon such exercise (the "AGGREGATE EXERCISE PRICE"), or (2) a written notice to the Company that the Purchaser is exercising the Warrant (or a portion thereof) by authorizing the Company to withhold from issuance a number of shares of Common Stock issuable upon such exercise of the Warrant that when multiplied by the Current Market Price of the Common Stock is equal to the Aggregate Exercise Price (which withheld shares shall no longer be issuable under this Warrant). (ii) Certificates for shares of Common Stock purchased upon exercise of this Warrant shall be delivered by the Company to the Purchaser within five Business Days after the date on which the Exercise Time occurs. Unless this Warrant has expired or all of the purchase rights represented hereby have been exercised, the Company shall prepare a new Warrant, substantially identical hereto, representing the purchase rights formerly represented by this Warrant that have not expired or been exercised and shall within such five-Business Day period deliver such new Warrant to the Person designated for delivery in the Exercise Agreement. (iii) The Common Stock issuable upon the exercise of this Warrant shall be deemed to have been issued to the Purchaser at the Exercise Time, and the Purchaser shall be deemed for all purposes to have become the record holder of such Common Stock as of the Exercise Time. (iv) The issuance of certificates for shares of Common Stock upon exercise of this Warrant shall be made without charge to the Registered Holder or the Purchaser for any issuance tax in respect thereof if issued to the Registered Holder or other cost incurred by the Company in connection with such exercise and the related issuance of shares of Common Stock. Each share of Common Stock issuable upon exercise of this Warrant shall upon payment of the Exercise Price therefor, be fully paid and nonassessable and free from all liens and charges with respect to the issuance thereof. (v) The Company shall not close its books against the transfer of this Warrant or of any share of Common Stock issued or issuable upon the exercise of this Warrant in any manner that interferes with the timely and proper exercise of this Warrant. (vi) Notwithstanding any other provision hereof, if an exercise of any portion of this Warrant is to be made in connection with a registered public offering or the sale of the Company, the exercise of any portion of this Warrant may, at the election of the holder hereof, be conditioned upon the consummation of the public offering or sale of the Company in which case such exercise shall not be deemed to be effective until the consummation of such transaction. (vii) The Company shall at all times reserve and keep available out of its authorized but unissued shares of Common Stock, solely for the purpose of issuance upon the exercise of the Series 2 Warrants, such number of shares of Common Stock issuable upon the exercise of all outstanding Series 2 Warrants. The Company shall take all such actions as may be necessary to assure that all such shares of Common Stock may be so issued without violation of any law or governmental regulation applicable to the Company or any requirements of any domestic securities exchange upon which shares of Common Stock may be listed (except for official notice of issuance that shall be immediately delivered by the Company upon each such issuance). The Company shall not take any action that would cause the number of authorized but unissued shares of Common Stock to be less than the number of such shares required to be reserved hereunder for issuance upon exercise of the Series 2 Warrants. (c) Exercise Agreement. Upon any exercise of this Warrant, the Exercise Agreement shall be substantially in the form set forth in Exhibit II (the "EXERCISE AGREEMENT"), except that if the shares of Common Stock are not to be issued in the name of the Person in whose name this Warrant is registered, the Exercise Agreement shall also state the name of the Person to whom the certificates for the shares of Common Stock are to be issued, and if the number of shares of Common Stock to be issued does not include all the shares of Common Stock purchasable hereunder, it shall also state the name of the Person to whom a new Warrant for the unexercised portion of the purchase rights hereunder is to be delivered. Such Exercise Agreement shall be dated the actual date of execution thereof. (d) Fractional Shares. If a fractional share of Common Stock would be issuable upon exercise of the purchase rights represented by this Warrant, the Company shall, unless prohibited by any agreement to which the Company is a party, within five Business Days after the date on which the Exercise Time occurs, deliver to the Purchaser a check payable to the Purchaser in lieu of such fractional share in an amount equal to the difference between Current Market Price of such fractional share as of the date on which the Exercise Time occurs and the Exercise Price of such fractional share. Section 2. Adjustment of Exercise Price and Number of Shares. In order to prevent dilution of the purchase rights granted under this Warrant, the Exercise Price shall be subject to adjustment from time to time as provided in this Section 2, and the number of shares of Common Stock obtainable upon exercise of this Warrant shall be subject to adjustment from time to time as provided in this Section 2. (a) The Exercise Price shall be subject to adjustment as follows: (i) In case the Company shall at any time or from time to time after the Date of Issuance (A) pay a dividend or make a distribution in shares of Common Stock or Convertible Securities into Common Stock, (B) subdivide or reclassify the outstanding shares of Common Stock into a greater number of shares of Common Stock, (C) combine or reclassify the outstanding shares of Common Stock into a smaller number of shares, or (D) otherwise issue by reclassification of the shares of Common Stock any shares of capital stock of the Company, then, and in each such case, the Exercise Price in effect immediately prior to such action and the number of shares of Common Stock obtainable upon exercise of this Warrant shall be proportionately adjusted so that the holder of this Warrant shall be entitled to receive the number of shares of Common Stock or other securities of the Company upon exercise of this Warrant which such holder would have owned or have been entitled to receive after the happening of any of the events described above had such Warrant been exercised immediately prior to the happening of such event or the record date therefor, whichever is earlier. An adjustment made pursuant to this Section 2(a)(i) shall become applicable (x) in the case of any such dividend or distribution, immediately after the close of business on the record date for the determination of holders of shares of Common Stock entitled to receive such dividend or distribution and (y) in the case of any such subdivision, reclassification or combination, at the close of business on the day upon which such corporate action becomes effective. Such adjustment shall be made successively. (ii) In case the Company shall at any time or from time to time after the Date of Issuance declare, order, pay or make a dividend or other distribution (including without limitation any distribution of stock or other securities, evidences of indebtedness, property or assets or rights or warrants to subscribe for securities of the Company or any of its Subsidiaries) on its Common Stock (other than (A) regular quarterly dividends payable in cash or (B) dividends or distributions of shares of Common Stock referred to in Section 2(a)(i)) (any one of the foregoing other than the items specified in clause (A) or (B) referred to as "SECURITIES OR ASSETS"), then and in each such case, unless the Company elects to reserve shares or other units of such Securities or Assets for distribution to the holders of the Series 2 Warrants upon the exercise of such Series 2 Warrants so that any such holder exercising its Series 2 Warrants will receive upon such exercise, in addition to the shares of the Common Stock to which such holder is entitled, the amount and kind of such Securities or Assets which such holder would have received if such holder had, immediately prior to the record date for the distribution of the Securities or Assets, exercised its Warrant for Common Stock, the Exercise Price shall be adjusted so that such Exercise Price shall equal the price determined by multiplying the Exercise Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the Current Market Price of the Common Stock on such record date less the then fair market value (as determined by the Board in good faith) of the portion of the capital stock or assets or evidences of indebtedness so distributed or of such rights or warrants applicable to one share of Common Stock, and of which the denominator shall be the Current Market Price of the Common Stock on such record date; provided, however, that if the then fair market value (as so determined) of the portion of the Securities or Assets so distributed applicable to one share of Common Stock is equal to or greater than the Current Market Price of the Common Stock on the record date mentioned above, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of the Series 2 Warrants shall have the right to receive the amount and kind of Securities or Assets which such holder would have received had such holder exercised its Warrant immediately prior to the record date for the distribution of the Securities or Assets. Such adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive such distribution. (iii) In case the Company shall issue or sell any Common Stock (or rights, Options, warrants or other Convertible Securities) (collectively, "ADDITIONAL SHARES") at any time after the date hereof until January 3, 2006 without consideration or for a consideration per share (or having a exercise, exchange or exercise price per share) (such per share amount, the "SALE PRICE") less than the greater of (A) the Current Market Price per share of Common Stock on the date preceding the earlier of the issuance or public announcement of the issuance of such Additional Shares of Common Stock and (B) the Exercise Price as of the date of such issuance of shares (or, in the case of Convertible Securities, less than the greater of the Current Market Price or the Exercise Price, as the case may be, as of the date of issuance of the rights, Options, warrants or other securities in respect of which shares of Common Stock were issued) then, and in each such case, the Exercise Price shall be reduced to an amount determined by multiplying (A) the Exercise Price in effect on the day immediately prior to such date by (B) a fraction, the numerator of which shall be the sum of (1) the number of shares of Common Stock outstanding immediately prior to such sale or issuance multiplied by the greater of (a) the then applicable Exercise Price per share and (b) the Current Market Price per share of Common Stock on the date preceding the earlier of the issuance or public announcement of the issuance of such Additional Shares of Common Stock (the greater of (a) and (b) above hereinafter referred to as the "ADJUSTMENT PRICE") and (2) the aggregate consideration receivable by the Company for the total number of shares of Common Stock so issued (or into or for which the rights, Options, warrants or other securities are convertible, exercisable or exchangeable), and the denominator of which shall be equal to the product of (I) the sum of (x) the total number of shares of Common Stock outstanding immediately prior to such sale or issue and (y) the number of additional shares of Common Stock issued (or into or for which the rights, Options, warrants or other securities may be converted, exercised or exchanged), multiplied by (II) the Adjustment Price. In case any portion of the consideration to be received by the Company shall be in a form other than cash, the fair market value of such noncash consideration shall be utilized in the foregoing computation. Such fair market value shall be determined in good faith by the Board of Directors. Upon each such adjustment of the Exercise Price hereunder, the number of Shares of Common Stock acquirable upon exercise of this Warrant shall be adjusted to the number of shares determined by multiplying the Exercise Price in effect immediately prior to such adjustment by the number of shares of Common Stock acquirable upon exercise of this Warrant immediately prior to such adjustment and dividing the product thereof by the Exercise Price resulting from such adjustment. An adjustment made pursuant to this subsection (iii) shall be made on the next Business Day following the date on which any such issuance is made and shall be effective retroactively to the close of business on the date of such issuance. For purposes of this subsection (iii), the aggregate consideration receivable by the Company in connection with the issuance of shares of Common Stock or of rights, warrants or other Convertible Securities shall be deemed to be equal to the sum of the aggregate offering price (before deduction of underwriting discounts or commissions and expenses payable to third parties) of all such Common Stock, rights, warrants and Convertible Securities plus the aggregate amount (as determined on the date of issuance), if any, payable upon exercise or exercise of any such rights, warrants and Convertible Securities into shares of Common Stock. If, subsequent to the date of issuance of such right, warrants or other Convertible Securities, the conversion or exercise price thereof is reduced, such aggregate amount shall be recalculated and the Exercise Price and the number of shares of Common Stock obtainable upon exercise of this Warrant shall be adjusted retroactively to give effect to such reduction. On the expiration of any option or the termination of any right to convert or exchange any securities into Additional Shares, the Exercise Price then in effect hereunder shall forthwith be increased to the Exercise Price which would have been in effect at the time of such expiration or termination (but taking into account other adjustments or potential made following the time of issuance of such Options or securities) had such option or security, to the extent outstanding immediately prior to such expiration or termination, never been issued and the number of shares of Common Stock obtainable upon exercise of this Warrant shall be correspondingly adjusted. If Common Stock is sold as a unit with other securities, the aggregate consideration received for such Common Stock shall be deemed to be net of the fair market value (as determined by the Board of Directors in good faith) of such other securities. The issuance or reissuance of (A) any shares of Common Stock or rights, warrants or other Convertible Securities (whether treasury shares or newly issued shares) (1) pursuant to a dividend or distribution on, or subdivision, combination or reclassification of, the outstanding shares of Common Stock requiring an adjustment in the Exercise Price pursuant to subsection (i) of this Section 2(a); (2) pursuant to any restricted stock or stock option plan or program of the Company involving the grant of Options or rights to acquire shares of Common Stock after the date hereof to directors, officers and employees of the Company and its Subsidiaries; (3) pursuant to any option, warrant, right, or Convertible Security outstanding as of the Date of Issuance; (4) pursuant to any securities issued to a bank or other similar financial institution solely in connection with the Senior Credit Facility and the Senior Subordinated Credit Facility; or (5) pursuant to an underwritten offering registered with the SEC if the offering price is greater than the Exercise Price then in effect; (B) the Preferred Stock and any shares of Common Stock issuable upon conversion or exercise thereof, or (C) the Series 2 Warrants and any shares of Common Stock issuable upon exercise thereof, shall not be deemed to constitute an issuance of Common Stock or Convertible Securities by the Company to which this subsection (iii) applies. No adjustment shall be made pursuant to this subsection (iii) in connection with any transaction to which Section 2(b) applies. (iv) For purposes of this Section 2(a), the number of shares of Common Stock at any time outstanding shall not include any shares of Common Stock then owned or held by or for the account of the Company. (v) All calculations of the Exercise Price pursuant to this Section 2(a) shall be made to the nearest one one-hundredth of a cent. Anything in this Section 2(a) to the contrary notwithstanding, (A) the Company shall not be required to give effect to any adjustment in the Exercise Price unless and until the net effect of one or more adjustments (each of which shall be carried forward), determined as above provided, shall have resulted in a reduction of the Exercise Price of at least 1%, and when the cumulative net effect of more than one adjustment so determined shall be to reduce the Exercise Price by at least 1%, such reduction in Exercise Price shall thereupon be given effect and (B) in no event shall the then current Exercise Price be increased as a result of any calculation made at any time pursuant to this Section 2(a). (b) (i) In case of any capital reorganization or reclassification of outstanding shares of Common Stock (other than a reclassification to which Section 2(a)(i) shall apply), or in case of any merger or consolidation of the Company with or into another Person (as defined below), or in case of any sale or conveyance to another Person of all or substantially all of the assets of the Company or any compulsory share exchange pursuant to which share exchange the shares of Common Stock are converted into other securities, cash or other property (each of the foregoing being referred to as a "TRANSACTION"), this Warrant shall thereafter be exercisable for, in lieu of the shares of Common Stock issuable upon such exercise prior to consummation of such Transaction, the kind and amount of shares of stock and other securities and property receivable (including cash) upon the consummation of such Transaction by a holder of that number of shares of Common Stock into which the Warrant was exercisable for immediately prior to such Transaction (including, on a pro rata basis, the cash, securities or property received by holders of Common Stock in any tender or exchange offer that is a step in such Transaction). (ii) Notwithstanding anything contained herein to the contrary, the Company will not effect any Transaction unless, prior to the consummation thereof, (A) the Surviving Person shall agree that the Series 2 Warrants shall be treated as provided in paragraph (i) of this Section 2(b) and the agreements governing such Transaction shall so provide and (B) the Surviving Person thereof shall assume, by written instrument mailed, by first-class mail, postage prepaid, to each holder of the Series 2 Warrants at such holder's address as it appears in the records of the Company, the obligation to deliver to such holder such cash or other securities to which, in accordance with the foregoing provisions, such holder is entitled and such Surviving Person shall have mailed, by first-class mail, postage prepaid, to each holder of the Series 2 Warrants at such holder's address as it appears in the records of the Company, and an opinion of independent counsel for such Person stating that such assumption agreement is a valid, binding and enforceable agreement of the Surviving Person. (c) In any case, if necessary, appropriate adjustment (as determined in good faith by the Board of Directors) shall be made in the application of the provisions set forth in this Section 2 with respect to rights and interests thereafter of the holders of the Series 2 Warrants to the end that the provisions set forth herein for the protection of the purchase rights of the Series 2 Warrants shall thereafter be applicable, as nearly as reasonably may be, to any such other shares of stock and other securities (other than the Common Stock) and property deliverable upon exercise of the Series 2 Warrants remaining outstanding with such adjustments in the Exercise Price and the number of shares of Common Stock obtainable upon exercise of this Warrant and such other adjustments in the provisions hereof as the Board of Directors shall in good faith determine to be appropriate. In case securities or property other than Common Stock shall be issuable or deliverable upon exercise as aforesaid, then all references in this Section 2 shall be deemed to apply, so far as appropriate and as nearly as may be, to such other securities or property. (d) If the Company shall pay any dividend or make any other distribution to the holders of its Common Stock (other than regularly quarterly dividends payable in cash) or shall offer for subscription pro rata to the holders of its Common Stock any additional shares of stock of any class or any other right, or there shall be any Transaction, or there shall be a voluntary or involuntary dissolution, liquidation or winding up of the Company, then, in any one or more of said cases the Company shall give at least 15 days prior written notice to the holders of the Series 2 Warrants by first-class mail, postage prepaid, at their respective addresses as they shall appear in the records of the Company of the earlier of the dates on which (i) the books of the Company shall close or a record shall be taken for such stock dividend, distribution or subscription rights or (ii) such Transaction, dissolution, liquidation or winding up shall take place. Such notice shall also specify that date as of which the holders of the Common Stock of record shall participate in said dividend, distribution of subscription rights or shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, sale or conveyance or participate in such dissolution, liquidation or winding up, as the case may be. Failure to give such notice shall not invalidate any action so taken. Section 3. Reports as to Adjustments. Upon the occurrence of any event specified in Section 2(a) that would result in any adjustment of the Exercise Price, then, and in each such case, the Company shall promptly deliver by first-class mail, postage prepaid, at their respective addresses as they shall appear in the records of the Company, a certificate signed by the President or a Vice President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Company setting forth in reasonable detail the event requiring the adjustment and the method by which such adjustment was calculated and specifying the Exercise Price then in effect and the number of shares of Common Stock obtainable upon exercise of the Series 2 Warrants following such adjustment. Where appropriate, such notice to the holders of the Series 2 Warrants may be given in advance and included as part of the notice required pursuant to Section 2(d). Section 4. Definitions. The following terms have meanings set forth below: "BUSINESS DAY" means any day other than a Saturday, Sunday, or any day on which banks in New York City are authorized or obligated by applicable law to close. "COMMON STOCK" means, collectively, the Company's Common Stock, par value $1 per share (including any associated Right, as defined in and issued pursuant to the Rights Agreement, dated as of October 27, 1998, as amended, by and between the Company and The Bank of New York (successor to First Chicago Trust Company of New York), as Rights Agent. "CONVERTIBLE SECURITIES" means any stock or securities (directly or indirectly, after the passage of time or otherwise) convertible into or exercisable or exchangeable for Common Stock. "CURRENT MARKET PRICE," when used with reference to shares of Common Stock or other securities on any date, shall mean the closing price per share of Common Stock or such other securities on such date and, when used with reference to shares of Common Stock or other securities for any period, shall mean the average of the daily closing prices per share of Common Stock or such other securities for such period. The closing price for each day shall be the last sale price, regular way, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, in either case as reported in the principal consolidated transaction reporting system with respect to securities listed or admitted to trading on the New York Stock Exchange or, if the Common Stock or such other securities are not listed or admitted to trading on the New York Stock Exchange, as reported in the principal consolidated transaction reporting system with respect to securities listed on the principal national securities exchange on which the Common Stock or such other securities are listed or admitted to trading or, if the Common Stock or such other securities are not listed or admitted to trading on any national securities exchange, the last quoted sale price or, if not so quoted, the average of the high bid and low asked prices in the over-the-counter market, as reported by the National Association of Securities Dealers, Inc. Automated Quotation System or such other system then in use, or, if on any such date the Common Stock or such other securities are not quoted by any such organization, the average of the closing bid and asked prices as furnished by a professional market maker making a market in the Common Stock or such other securities selected by the Board of Directors of the Company. If the Common Stock or such other securities are not publicly held or so listed or publicly traded, "CURRENT MARKET PRICE" shall mean the fair market value per share of Common Stock or of such other securities as determined by an independent investment banking firm with an established national reputation as a valuer of equity securities selected by the Company and reasonably acceptable to the holders of a majority of the shares of Preferred Stock outstanding at the time. "EXERCISE PRICE" shall mean $28.62. "OPTIONS" means any rights, warrants or options to subscribe for or purchase Common Stock or Convertible Securities. "PERSON" or "PERSON" means any corporation, individual, limited liability company, joint stock company, joint venture, partnership, unincorporated association, governmental regulatory entity, country, state or political subdivision thereof, trust, municipality or other entity. "SURVIVING PERSON" shall mean the continuing or surviving Person of a merger, consolidation or other corporate combination, the Person receiving a transfer of all or a substantial part of the properties and assets of the Company, or the Person consolidating with or merging into the Company in a merger, consolidation or other corporate combination in which the Company is the continuing or surviving Person, but in connection with which the Preferred Stock, Series 2 Warrants or Common Stock of the Company is exchanged or converted into the securities of any other Person or the right to receive cash or any other property. "TRADING DAY" shall mean a day on which the principal national securities exchange on which the Common Stock is listed or admitted to trading is open for the transaction of business or, if the Common Stock is not listed or admitted to trading on any national exchange, a Business Day. Section 5. No Voting Rights; Limitations of Liability. This Warrant shall not entitle the holder hereof to any voting rights or other rights as a stockholder of the Company. No provision hereof, in the absence of affirmative action by the Registered Holder to purchase Common Stock, and no enumeration herein of the rights or privileges of the Registered Holder shall give rise to any liability of such holder for the Exercise Price of Common Stock acquirable by exercise hereof or as a stockholder of the Company. Section 6. Warrant Transferable. Subject to the transfer conditions referred to in the legend endorsed hereon, including the provisions of the Purchase Agreement, this Warrant and all rights hereunder are transferable, in whole or in part, without charge to the Registered Holder, upon surrender of this Warrant with a properly executed Assignment (in the form of Exhibit I) at the principal office of the Company. Section 7. Warrant Exchangeable for Different Denominations. This Warrant is exchangeable, upon the surrender hereof by the Registered Holder at the principal office of the Company, for new Series 2 Warrants of like tenor representing in the aggregate the purchase rights hereunder, and each of such new Series 2 Warrants shall represent such portion of such purchase rights as is designated by the Registered Holder at the time of such surrender. The date the Company initially issues this Warrant shall be deemed to be the "DATE OF ISSUANCE" hereof regardless of the number of times new certificates representing the unexpired and unexercised purchase rights formerly represented by this Warrant shall be issued. All Series 2 Warrants representing portions of the purchase rights hereunder are referred to herein as the "SERIES 2 WARRANTS." Section 8. Replacement. Upon receipt of evidence reasonably satisfactory to the Company (an affidavit of the Registered Holder shall be satisfactory) of the ownership and the loss, theft, destruction or mutilation of any certificate evidencing the Series 2 Warrants, and in the case of any such loss, theft or destruction, upon receipt of indemnity reasonably satisfactory to the Company (provided that if the holder is a financial institution or other institutional investor its own agreement shall be satisfactory), or, in the case of any such mutilation upon surrender of such certificate, the Company shall (at its expense) execute and deliver in lieu of such certificate a new certificate of like kind representing the number of Series 2 Warrants of such class represented by such lost, stolen, destroyed or mutilated certificate and dated the date of such lost, stolen, destroyed or mutilated certificate. Section 9. Notices. Except as otherwise expressly provided hereunder, all notices referred to herein shall be in writing and shall be delivered by registered or certified mail, return receipt requested and postage prepaid, or by reputable overnight courier service, charges prepaid, and shall be deemed to have been given when so mailed or sent (i) to the Company, at its principal executive offices, Attention: General Counsel and (ii) to any Registered Holder, at such holder's address as it appears in the stock records of the Company (unless otherwise indicated by any such holder). Section 10. Amendment and Waiver. Any provision of this Warrant may be amended or modified in whole or in part at any time by an agreement in writing among the Company and the holder of this Warrant. No failure on the part of either the Company or the holder of this Warrant to exercise, and no delay in exercising, any right shall operate as a waiver thereof nor shall any single or partial exercise by either the Company or the holder of this Warrant of any right preclude any other or future exercise thereof or the exercise of any other right. Section 11. Descriptive Headings; Governing Law. The descriptive headings of the several Sections and paragraphs of this Warrant are inserted for convenience only and do not constitute a part of this Warrant. References in this Warrant to Sections and Exhibits are references to Sections of, and Exhibits to, this Warrant unless otherwise noted. The corporation laws of the State of Delaware shall govern all issues concerning the relative rights of the Company and its stockholders. All other questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed by the internal law of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. Section 12. Severability. Should any part of this Warrant for any reason be declared invalid, such decision shall not affect the validity of the remaining portion, which remaining portion shall remain in full force and effect as if this Warrant had been executed with the invalid portion thereof eliminated, and it is hereby declared the intention of the Company hereto that it would have executed the remaining portion of this Warrant without including therein any such parts or parts which may, for any reason, be hereafter declared invalid. Section 13. Entire Agreement. This Warrant and the Purchase Agreement and the documents described herein and therein or attached or delivered pursuant hereto or thereto set forth the entire agreement between the Company and the Registered Holder with respect to the transactions contemplated by this Warrant. * * * * * * IN WITNESS WHEREOF, the Company has caused this Warrant to be signed and attested by its duly authorized officers under its corporate seal and to be dated the Date of Issuance hereof. R.H. DONNELLEY CORPORATION By: ------------------------------------ Name: Title: Attest: - ------------------------------------ Name: Title: EXHIBIT I ASSIGNMENT ---------- FOR VALUE RECEIVED, ______________________________ hereby sells, assigns and transfers all of the rights of the undersigned under the attached Warrant (Certificate No. ____) with respect to the number of shares of the Common Stock, par value $1 per share, of R.H. Donnelley Corporation, a Delaware corporation, covered thereby set forth below, unto: Names of Assignee Address No. of Shares - ----------------- ------- ------------- Signature: ------------------------------------ Address: ------------------------------------ Witness: ------------------------------------ EXHIBIT II EXERCISE AGREEMENT ------------------ To: R.H. Donnelley Corporation Dated: The undersigned, pursuant to the provisions set forth in the attached Warrant (Certificate No. ______), hereby agrees to subscribe for the purchase of ______ shares of the Common Stock, par value $1 per share (the "COMMON STOCK"), of R.H. Donnelley Corporation, a Delaware corporation (the "COMPANY"), covered by such Warrant and makes payment herewith in full therefor at the price per share provided by such Warrant. The undersigned(1) represents to the Company as follows: (i) such Person (as defined in the Warrant) is an "accredited investor" within the meaning of Rule 501 of Regulation D promulgated under the Securities Act of 1933 (the "SECURITIES ACT") and was not organized for the specific purpose of acquiring the Common Stock issuable upon exercise thereof; (ii) such person has sufficient knowledge, sophistication and experience in financial and business matters as are necessary to evaluate the risks and merits of an investment in the Company; (iii) such Person has had an opportunity to discuss the Company's business, management and financial affairs with the Company's management; (iv) the Common Stock being acquired by such Person is being acquired for its own account for the purpose of investment and not with a view to or for sale in connection with any distribution thereof; and (v) such Person understands that (A) none of the shares of Common Stock issuable upon the exercise of the Warrant have been registered under the Securities Act and are being issued in reliance upon federal and state exemptions for transactions not involving any public offering, (B) the shares of Common Stock issuable upon the exercise of the Warrant must be held indefinitely unless a subsequent disposition thereof is registered under the Securities Act or is exempt from such registration, (C) the shares of Common Stock issuable upon the exercise of the Warrant will bear a legend to such effect, as applicable, and (D) the Company will make a notation on its transfer books to such effect. [NAME OF PERSON] By: ------------------------------------ Name: Title: Address: - ------------------- (1) In the event that the shares of Common Stock are not issued in the name of the Person (as defined in the Warrant) in whose name the Warrant is registered or if the number of shares of Common Stock to be issued does not include all of the shares purchasable under the Warrant, then this Exercise Agreement shall be modified to include applicable language with respect to the provisions of this Exercise Agreement EX-99.22 5 ex99_22.txt Exhibit 22 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 January 3, 2003 R.H. Donnelley Corporation R.H. Donnelley Inc. One Manhattanville Road Purchase, NY 10577 Re: Investment in Preferred Stock of R.H. Donnelley Corporation Ladies and Gentlemen: Reference is made to the Preferred Stock and Warrant Purchase Agreement, dated as of September 21, 2002 (as amended, the "Purchase Agreement"), by and among R.H. Donnelley Corporation, a Delaware corporation (the "Company") and the investors listed in Schedule A thereto (the "Purchasers"), as amended by the Letter Agreement, dated as of November 25, 2002, by and among the Purchasers, the Company and R.H. Donnelley Inc. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Purchase Agreement. This letter agreement (this "Second Letter Agreement") will confirm our agreement as follows: 1. Amendments to Purchase Agreement. The Purchase Agreement is hereby amended as follows: 1.1. The following definition is added to Section 1.01 in alphanumeric order: "NEW CREDIT AGREEMENT" shall mean the Credit Agreement, dated as of December 6, 2002, by and among the Company, R.H. Donnelley Inc., as Borrower, R.H. Donnelley Finance Corporation II, as Special Purpose Borrower, the several banks and other financial institutions or entities from time to time parties thereto, as Lenders, Deutsche Bank Securities Inc., Salomon Smith Barney Inc. and Bear, Stearns & Co. Inc., as Lead Arrangers, Bear Stearns Corporate Lending Inc. and Citicorp North America, Inc., as Joint Syndication Agents, BNP Paribas and Fleet National Bank, as Joint Documentation Agents, and Deutsche Bank Trust Company Americas, as Administrative Agent. 1.2. Section 4.04(d) is hereby amended by replacing it in its entirety with the following: (d) incur, create, guarantee, become or be liable in any manner with respect to or permit to exist (other than pursuant to the Other Transactions Documents) any Indebtedness (as such term is defined in the New Credit Agreement) if the Consolidated Leverage Ratio (as such term is defined in the New Credit Agreement), as at such time, is greater than 5.0 to 1.0; provided, however, that nothing in this Section 4.04(d) shall prohibit the Company from incurring up to $25 million of Indebtedness in any given twelve-month period; 2. Allocations. Pursuant to Section 2.05 of the Purchase Agreement, the parties agree that the Purchase Price will be allocated 91.9233% to the 130,000 Preferred Shares purchased by the Purchasers at the Closing and 8.0767% to the 1,075,000 Warrants purchased by the Purchasers at the Closing. 3. No Other Amendments. Except as set forth in this Second Letter Agreement, all provisions of the Purchase Agreement shall remain unchanged and in full force and effect. 4. Miscellaneous. 4.1. This Second Letter 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. 4.2. The courts of the State of New York in New York County and the United States District Court for the Southern District of New York shall have jurisdiction over the parties with respect to any dispute or controversy between them arising under or in connection with this Second Letter Agreement and, by execution and delivery of this Second Letter Agreement, each of the parties to this Second Letter 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 8.01 of the Purchase Agreement) or any other manner permitted by law, and irrevocably agrees to be bound by any judgment rendered thereby in connection with this Second Letter Agreement. 4.3. No amendment, modification or alteration of the terms or provisions of this Second Letter Agreement shall be binding on the parties hereto unless the same shall be in writing and duly executed by such parties, except that any of the terms or provisions of this Second Letter Agreement may be waived in writing at any time by the parties entitled to the benefits of such waived terms or provisions. 4.4. This Second Letter 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 but one agreement. 4.5. Nothing contained in this Second Letter Agreement or in any instrument or document executed by any party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person that is not a party hereto or thereto, or, a successor or permitted assign of such a party. [Signatures are on the following pages.] Please confirm your agreement with the foregoing by signing and returning one copy of this Second Letter Agreement to the undersigned, whereupon this Second Letter Agreement shall become a binding agreement between you and the Purchasers. Very truly yours, GS CAPITAL PARTNERS 2000, L.P. By: GS Advisors 2000, L.L.C. Its General Partner By: --------------------------------------- Name: Its: GS CAPITAL PARTNERS 2000 OFFSHORE, L.P. By: GS Advisors 2000, L.L.C. Its General Partner By: --------------------------------------- Name: Its: GS CAPITAL PARTNERS 2000 GmbH & CO. BETEILIGUNGS KG By: Goldman Sachs Management GP GmbH Its General Partner By: --------------------------------------- Name: Its: GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P. By: GS Employee Funds 2000 GP, L.L.C. Its General Partner By: --------------------------------------- Name: Its: GOLDMAN SACHS DIRECT INVESTMENT FUND 2000, L.P. By: GS Employee Funds 2000 GP, L.L.C. Its General Partner By: --------------------------------------- Name: Its: Accepted and agreed as of the date first written above: R.H. DONNELLEY CORPORATION By: -------------------------------- Name: Robert J. Bush Title: Vice President R.H. DONNELLEY INC. By: -------------------------------- Name: Robert J. Bush Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----