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Exhibit 10.4
SUPPORT AGREEMENT
This SUPPORT
AGREEMENT (the "Agreement"), is entered into as of October 3,
2005, by and among R.H. Donnelley
Corporation, a Delaware corporation
("Parent"), Carlyle Partners III, L.P., a
Delaware limited partnership ("CP
III"), CP III Coinvestment, L.P., a
Delaware limited partnership ("Carlyle
Coinvest"), Carlyle High Yield Partners,
L.P., a Delaware limited partnership
("CHYP Coinvest"), Carlyle-Dex Partners
L.P., a Delaware limited partnership
("Carlyle Coinvest I"), and Carlyle-Dex
Partners II L.P., a Delaware limited
partnership ("Carlyle Coinvest II") (each,
a "Stockholder" and collectively, the
"Stockholders").
RECITALS:
A. Dex Media,
Inc., a Delaware corporation (the "Company"), Parent and
Forward Acquisition Corp., a Delaware
corporation and wholly owned subsidiary of
Parent ("Merger Sub"), entered into an
Agreement and Plan of Merger (as amended
from time to time, the "Merger Agreement"),
pursuant to which the Company will
be merged with and into Merger Sub with
Merger Sub as the surviving company (the
"Merger"); and
B. As an
inducement and a condition to entering into the Merger
Agreement,
Parent has required that Stockholders
agree, and Stockholders have agreed, to
enter into this Agreement.
NOW, THEREFORE,
the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Certain
Definitions. Capitalized terms used and not defined herein have
the respective meanings ascribed to them in
the Merger Agreement. In addition,
for purposes of this Agreement, the
following terms have the following meanings
when used herein with initial capital
letters:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to
any
securities means having "beneficial
ownership" of such securities as determined
pursuant to Rule 13d-3 under the Exchange
Act. Without duplicative counting of
the same securities by the same holder,
securities Beneficially Owned by a
Person include securities Beneficially
Owned by all other Persons with whom such
Person would constitute a "group" within
the meaning of Section 13(d) of the
Exchange Act with respect to the securities
of the same issuer and includes all
securities Beneficially Owned by a Person's
Affiliates. Notwithstanding anything
in this Agreement, neither (i) the
Stockholders and Parent nor (ii) the Company
Sponsors, are intended to be a "group" for
purposes of Rule 13d-5 of the
Exchange Act and nothing in this Agreement
will be interpreted in a manner that
requires that they be deemed to be a
"group" thereunder.
(b) "Affiliate" means, with respect to any Person, any Person
who,
directly or indirectly through one or more
intermediaries, controls, is
controlled by or is under common control
with the specified Person and for this
purpose control means the possession of the
power, direct or indirect, to direct
or cause the direction of the management
and policies of a Person, whether
through the ownership of voting shares, by
contract or otherwise. For purposes
of this
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Agreement, (i) none of the following will
be deemed to be an Affiliate of any
Stockholder: (A) the Company, (B) any
portfolio company of the Stockholders or
their Affiliates, (C) any limited partner
of the Stockholders or their
Affiliates or (D) any investment fund that
does not share the same general
partner as such Stockholder and (ii) no
Company Sponsor will be deemed to be an
Affiliate of the other Company Sponsor.
(c) "Existing Shares" has the meaning set forth in Section
3.1(a).
(d) "Securities" means the Existing Shares together with any shares
of
Company Common Stock or other voting
securities of the Company acquired by a
Stockholder or any of its Affiliates after
the date hereof and prior to the
termination of this Agreement whether upon
the exercise of options, warrants or
rights, the conversion or exchange of
convertible or exchangeable securities, or
by means of purchase, dividend,
distribution, split-up, recapitalization,
combination, exchange of shares or the
like, gift, bequest, inheritance or as a
successor in interest in any capacity or
otherwise; provided, however, to the
extent that Securities represent more than
20% of the total issued and
outstanding voting shares of the Company at
any relevant time, then for purposes
of Sections 2.2(a) and (b) and 2.3, the
term "Securities" will be deemed to
refer to Securities representing 20% of the
total issued and outstanding voting
shares of the Company at such time (other
than in respect of a stockholder vote
following an Adverse Recommendation Change
by the Company Board that was
approved by a majority of the members of
the Company Board who are not
affiliated with either of the Company
Sponsors (as defined in the Merger
Agreement) (provided, that the designation
of such directors by the Company
Sponsors pursuant to Section 1(a)(ii)(D) of
the Current Stockholders Agreement
(as defined in the Stockholders Agreement)
shall not cause such directors to be
deemed to be affiliated with the Company
Sponsors), in which case the references
to "20%" in this proviso shall be
references to "15%").
(e) "Stockholders Agreement" means the Sponsor Stockholders
Agreement,
dated as of the date hereof, between Parent
and the Stockholders.
ARTICLE 2
AGREEMENTS OF THE PARTIES
2.1 Disclosure.
Each Stockholder hereby agrees to permit Parent to publish
and disclose in the Form S-4 and the Joint
Proxy Statement (including all
documents and schedules filed with the
SEC), and any press release or other
disclosure document which Parent determines
to be necessary or desirable in
connection with the Merger and any
transactions related thereto, such
Stockholder's identity and ownership of
Company Common Stock and the nature of
its representations, warranties and
covenants in this Agreement. Parent will
provide each Stockholder with a copy of any
proposed disclosure and will provide
each Stockholder with a reasonable
opportunity to comment thereon.
2.2 Voting of
Company Common Stock. (a) During the period commencing on the
date hereof and continuing until the
earlier of (i) the Effective Time and (ii)
termination of the Merger Agreement in
accordance with its terms (the "Support
Period"), at the Company Stockholders
Meeting or at any adjournment,
postponement or continuation thereof or in
any
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other circumstances (including any other
annual or special meeting of the
stockholders of the Company or any action
by prior written consent) occurring
prior to the Company Stockholders Meeting
in which a vote, consent or other
approval with respect to the adoption of
the Merger Agreement or any other
Acquisition Proposal (whether or not a
Superior Proposal) with respect to the
Company is sought, each Stockholder hereby
irrevocably and unconditionally
agrees to vote or to cause to be voted all
of such Stockholder's Securities (A)
in favor of the adoption of the Merger
Agreement and (B) against (1) any other
Acquisition Proposal (whether or not a
Superior Proposal) with respect to the
Company, (2) any proposal for any merger,
consolidation, sale of assets,
business combination, share exchange,
reorganization or recapitalization of the
Company or any of its subsidiaries that is
in competition or inconsistent with
the adoption of the Merger Agreement, or
any proposal to effect the foregoing
which is made in opposition to or in
competition with the adoption of the Merger
Agreement, (3) any liquidation or winding
up of the Company, (4) any
extraordinary dividend by the Company
(other than the payment of any cash
dividend that the Company is expressly
permitted to make under the Merger
Agreement), (5) any change in the capital
structure of the Company (other than
any change in capital structure resulting
from the Merger or expressly permitted
under the Merger Agreement) and (6) any
other action that would reasonably be
expected to (x) impede, delay, postpone or
interfere with the Merger or (y)
result in a breach of any of the covenants,
representations, warranties or other
obligations or agreements of the Company
under the Merger Agreement that would
reasonably be expected to materially
adversely affect the Company.
(b) From and after the date hereof until the earlier of the (i)
Effective Time and (ii) date on which the
Merger Agreement is terminated in
accordance with its terms for any reason
(the "Restricted Period"), except as
otherwise permitted by this Agreement or
the Merger Agreement or as required by
order of a court of competent jurisdiction,
each Stockholder will not commit any
act that could restrict or otherwise affect
such Stockholder's legal power,
authority and right to vote all of its
Securities as required by this Agreement,
including entering into any voting
agreement with any Person or entity with
respect to any of its Securities, granting
any Person or entity any proxy
(revocable or irrevocable) or power of
attorney with respect to any of its
Securities, depositing any of its
Securities in a voting trust or otherwise
entering into any agreement or arrangement
with any Person or entity limiting or
affecting the Stockholder's legal power,
authority or right to vote its
Securities in favor of the adoption of the
Merger Agreement.
2.3 Proxy. For
the duration of the Restricted Period, each Stockholder
hereby appoints Parent and any designee of
Parent, each of them individually,
its proxy and attorney-in-fact, with full
power of substitution and
resubstitution to vote or act by written
consent with respect to all of such
Stockholder's Securities which it has the
right to vote (i) in accordance with
Section 2.2 and (ii) to sign its name (as a
stockholder of the Company) to any
consent, certificate or other document
relating to the Company that the DGCL or
the law of the State of Delaware may permit
or require in connection with any
matter referred to in Section 2.2. This
proxy is given to secure the performance
of the duties and obligations of such
Stockholder under this Agreement. Each
Stockholder affirms that the proxy granted
hereunder is coupled with an interest
and is irrevocable until termination of the
Restricted Period, whereupon such
proxy and power of attorney will
automatically terminate. Each Stockholder will
take such further action and execute such
other instruments as may be necessary
to effectuate the intent of this proxy.
Each Stockholder represents that any
proxy heretofore given by it in respect of
such Securities is not irrevocable,
and hereby revokes any and all such
proxies.
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2.4
Restriction on Transfers; Restrictions on Acquisitions. Without
limiting the generality or effect of
Section 2.2(b), during the period (the
"Sale Restriction Period") commencing on
the date hereof and continuing until
the first to occur of (i) such date that is
three months after the Effective
Time and (ii) the termination of the Merger
Agreement in accordance with its
terms, each Stockholder agrees that it will
not, directly or indirectly,
Transfer, or enter into any contract,
option or other arrangement or
understanding with respect to or consent to
the Transfer of, any or all of the
Securities or any Parent Common Stock into
which the Securities are converted in
the Merger or any interest therein, except
as otherwise provided in this
Agreement.
2.5 No
Solicitation. (a) Except as permitted by Section 6.10 of the
Merger
Agreement, each Stockholder will not, and
such Stockholder will direct and use
its reasonable best efforts to cause its
and its Affiliates' respective
officers, directors, employees, investment
bankers, consultants, attorneys,
accountants, agents and other
representatives not to, directly or indirectly,
take any action to solicit, initiate or
knowingly encourage or facilitate the
making of any Acquisition Proposal or any
inquiry with respect thereto or engage
in discussions or negotiations with any
Person with respect thereto, or disclose
any nonpublic information or afford access
to books or records to, any Person
that has made, or to the Stockholder's
knowledge is considering making, any
Acquisition Proposal, or approve or
recommend, or propose to approve or
recommend, or execute or enter into any
letter of intent, agreement in
principle, merger agreement, option
agreement, acquisition agreement or other
similar agreement relating to an
Acquisition Proposal, or propose publicly or
agree to do any of the foregoing relating
to an Acquisition Proposal.
(b) Except as permitted by Section 6.10 of the Merger Agreement,
the
Stockholder (A) will, and will cause its
Affiliates to, immediately cease and
cause to be terminated and will use
reasonable best efforts to cause its and
their officers, directors, employees,
investment bankers, consultants,
attorneys, accountants, agents and other
representatives to, immediately cease
and cause to be terminated, all discussions
and negotiations, if any, that have
taken place prior to the date hereof with
any Persons with respect to any
Acquisition Proposal and (B) will promptly
request each Person, if any, that has
executed a confidentiality agreement within
one year prior to the date hereof in
connection with its consideration of any
Acquisition Proposal to return or
destroy all confidential information
heretofore furnished to such Person by or
on behalf of it or any of its Affiliates.
In the event a Stockholder receives an
Acquisition Proposal, any indication of
which a Stockholder has knowledge that
any Person is considering making an
Acquisition Proposal, or any request for
nonpublic information relating to the
Stockholder, the Company or any Company
Subsidiary by any Person that has made, or
to the Stockholder's knowledge may be
considering making, an
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Acquisition Proposal, the Stockholder will
(i) promptly (and in no event later
than 48 hours after receipt of any
Acquisition Proposal) notify (which notice
will be provided orally and in writing and
will identify the Person making such
Acquisition Proposal or request and set
forth the material terms thereof) Parent
thereof and (ii) will keep Parent
reasonably and promptly informed of the status
and material terms of (including with
respect to changes to the status or
material terms of) any such Acquisition
Proposal or request and will provide as
soon as practicable after receipt copies of
any correspondence and other written
materials sent or provided to the
Stockholders in connection therewith.
(c) It is understood that any violation of the restrictions set
forth
in this Section 2.5 by any officer,
director, employee, investment banker,
consultant, attorney, accountant, agent or
other representative of such
Stockholder or any of its Affiliates, at
the direction or with the consent of
such Stockholder or any of its Affiliates,
will be deemed to be a breach of this
Section 2.5 by such Stockholder.
(d) Nothing in this Agreement will be deemed to require any
Stockholder or representative of any
Stockholder who is also a member of the
Company Board to take any action or refrain
from taking any action in his or her
capacity as a member of the Company Board
to the extent such action is permitted
by Section 6.10 of the Merger
Agreement.
(e) Th
