Exhibit 2.2
AMENDMENT NO. 1 TO AGREEMENT AND
PLAN OF MERGER
AMENDMENT NO. 1 dated as of July 24,
2009 (this “Amendment”), is by and among Verizon
Communications Inc., a Delaware corporation
(“Verizon”), New Communications Holdings Inc., a
Delaware corporation (“Spinco”) and Frontier
Communications Corporation, a Delaware corporation, parties to the
Agreement and Plan of Merger, dated as of May 13, 2009 (the
“Merger Agreement”). Capitalized terms used but not
defined herein shall have the meanings given to such terms in the
Merger Agreement, and all references to Articles and Sections
herein are references to Articles and Sections of the Merger
Agreement.
In consideration of the premises and
the mutual promises herein made, and in consideration of the
agreements herein contained, the parties, intending to be legally
bound hereby, agree as follows:
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1.
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Amendment to
Section 7.6(j). Section 7.6(j) is hereby amended to read in
its entirety as follows:
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(j) On or prior to the Closing Date,
the Company, at its own expense, shall adopt (to the extent
permitted by State Regulators) the tariffs, price lists, schedules
of rates, other statements of terms and conditions, including
special customer arrangements, special assemblies, price flex
arrangements, and individual customer-based arrangements of Verizon
and other Verizon Affiliates for telecommunications services, which
are applicable in whole or in part in the Territory, are effective
under applicable Laws, and are in effect immediately prior to the
Closing (collectively, the “ Tariffs ”). The
Company shall maintain the Tariffs in effect at least until the end
of the service term specified in (i) the Tariffs (to the
extent permitted by State Regulators), (ii) agreements
implementing such Tariffs with customers served by Verizon’s
Affiliates under retained Blended Customer Contracts, Contracts
governing Retained Customer Accounts, and the agreements of
customers who do not provide Third Party Consents (each a “
Specified Contract ”) and (iii) agreements
implementing such Tariffs with Persons who are Affiliates of
Verizon on or before the Closing Date, and any optional renewal
term exercisable by customers which are party to a Specified
Contract or such Affiliates in such agreements or Tariffs, as
applicable. The Company further agrees that, to the extent such
Tariffs or agreements implementing such Tariffs contain rates and
charges or other terms and conditions based on volume of service,
amount of purchase or spend, or similar volume commitments by the
customers which are party to a Specified Contract or such
Affiliates (the “ Volume Commitments ”), the
Company will reduce such Volume Commitments pro-rata, without a
change in rates and charges or other terms and conditions under
such Tariffs or agreements, to reflect the fact that the customers
who are party to a Specified Contract or such Affiliates may, after
Closing, take service from both Verizon Affiliates and the Company
and not from Verizon Affiliates or the Company alone. The pro-rata
reduction shall be equal to or
exceed the amount of the Volume
Commitment provided by Verizon Affiliates after Closing. By way of
example, and not by limitation, if after Closing, such customer or
Affiliate purchased 75% of a Volume Commitment from the Company and
25% of a Volume Commitment from Verizon Affiliates, then the
Company would reduce the Volume Commitment by 25% in affected
Tariffs and agreements implementing such Tariffs. At its own
expense, the Company shall make all filings and take all other
actions as may be required by applicable Laws to make the Tariffs
and pro-rata reductions of Volume Commitments adopted or made by
the Company under this Section 7.6(j) legally effective not
later than the Effective Time. If the applicable State Regulators
do not permit, in whole or in part, the adoption of such Tariffs by
the Company or the maintenance of such Tariffs during the service
terms described above in this Section 7.6(j), then from and
after the Effective Time and through the date on which the Company
would no longer have been required under this Section 7.6(j)
to maintain the applicable Tariffs had such State Regulators
permitted their adoption, the Company will provide service terms,
rates and services equivalent to the applicable Tariffs, including
reductions in Volume Commitments, by means and methods acceptable
to the applicable State Regulators.
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2.
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Amendment to
Section 7.8(f ).
Section 7.8(f) is hereby amended to read in its entirety as
follows:
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(f) With respect to (x) any
Contracts in effect as of the Closing Date associated with a
Retained Customer Account, (y) any failure to assign any
customer Contract that would have been assigned in the Contribution
as a Spinco Asset but for the failure to obtain a Verizon Third
Party Consent or (z) any failure to assume any Blended
Customer Contract that would have been assumed in part by Spinco
pursuant to Section 7.8(e) but for the failure of the
counterparty to consent to such assumption, then (i) to the
extent such Contract involves t
