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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K/A
(Amendment
No. 1)
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): October 2, 2005
Dex Media, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction
of incorporation)
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001-32249
(Commission File Number)
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14-1855759
(IRS Employer
Identification No.) |
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198 Inverness Drive West, Englewood, Colorado
(Address of principal executive offices)
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80112
(Zip Code) |
(303) 784-2900
(Registrants telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
x Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
TABLE OF CONTENTS
Item 1.01 Entry into a Material Definitive Agreement.
(a)
This Amendment No. 1 to the Current Report on Form 8-K of Dex
Media, Inc. (the Company) is being filed to
correct a typographical error regarding the terms of each of the letter agreements (collectively,
the Letter Agreements) entered into by the Company with each of George Burnett, Marilyn Neal,
Scott Pomeroy, its Senior Vice Presidents and its Vice Presidents (each, an Executive) that was
set forth in Items 1.01(b), (c), (d), (e) and (f) of the Current Report on Form 8-K filed on
October 6, 2005 (the Prior Form 8-K). As reported on
the Prior Form 8-K, pursuant to each of the
Letter Agreements, certain stock options held by each Executive will, subject to the consummation of the transactions (the Merger)
contemplated by that certain Agreement and Plan of Merger (the
Merger Agreement) dated October 3, 2005, by and
among the Company, R.H. Donnelley Corporation (RHD) and
Forward Acquisition Corp., expire on the first to occur of (A)
the tenth anniversary of the stock options grant date, (B) the first anniversary of the
Executives termination of employment due to death or disability or (C) the 15th day of the third
month following the date of termination of employment for any reason other than death or disability
(or December 31 of the calendar year in which the 90th
day following such termination of
employment occurs, if later). However, the Prior Form 8-K should have
stated that each such stock
option held by an Executive would expire on the first to occur of (A) the tenth anniversary of the
stock options grant date, (B) the first anniversary of such Executives termination of employment
due to death or disability or (C) the 15th day of the third month following the date at which, or
December 31 of the calendar year in which, the stock option would otherwise have expired if the
stock option had not been extended, based on the terms of the stock option at the stock options
grant date. The correct terms are reflected in Items 1.01(b), (c), (d), (e) and (f) set forth
below. This Amendment No. 1 to the Current Report on Form 8-K also amends the Prior Form 8-K by
attaching, as Exhibits 10.2, 10.3, 10.4, 10.5, and 10.6,
respectively: (i) the Letter Agreement dated October 2, 2005, by and between Dex Media, Inc. and George
Burnett; (ii) the Letter Agreement dated October 2, 2005, by and between Dex Media, Inc. and Marilyn
Neal; (iii) the Letter Agreement dated October 2, 2005, by and between Dex Media, Inc. and Scott
Pomeroy (which has also been amended to clarify that the date at which Mr. Pomeroy will assume his
position as Executive Vice President and Chief Financial Officer is October 5, 2005 and not October
5, 2004, and that the date of the award of restricted shares is
October 5, 2005); (iv) the Form of Letter Agreement dated
October 2, 2005, by and between Dex Media, Inc. and
each of its Senior Vice Presidents; (v) and the Form of Letter Agreement dated October 2, 2005, by and
between Dex Media, Inc. and each of its Vice Presidents. Such Exhibits correct the same typographical error in the Letter Agreements filed as
Exhibits to the Prior Form 8-K as appeared in Item 1.01 of the Prior Form 8-K. The attached
Exhibits 10.2, 10.3, 10.4, 10.5 and 10.6 supercede and replace entirely the previously filed
Exhibits 10.2, 10.3, 10.4, 10.5 and 10.6.
(b) On October 2, 2005, the Company entered into a letter agreement (the Burnett Letter
Agreement) with George Burnett, the Companys President and Chief Executive Officer, which amended
Mr. Burnetts amended and restated employment agreement and stock option agreements. The Burnett
Letter Agreement will be effective immediately prior to the Effective
Time (as that term is defined in the Merger Agreement). In the event
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the Merger is not consummated, the Burnett Letter Agreement will be void ab initio. The Burnett
Letter Agreement provides that: (i) if, at any time prior to the fourth anniversary of the
Effective Time, Mr. Burnetts employment with
the Company (which, for purposes of the Burnett Letter Agreement, includes any successor to Dex
Media, Inc.) is terminated for any reason or he ceases for any reason to continue in the position
of Chairman of the Board of RHD, subject to Mr. Burnetts execution of a general release of claims
against the Company, the Company will (a) pay Mr. Burnett a lump sum cash amount equal to 1.5 times
his then-current annual base salary (which shall not be less than $475,000) plus his then-current
target annual bonus (which shall not be less than 75% of his annual base salary) and (b) allow Mr.
Burnett to be eligible to continue to receive health and welfare benefits from the Company for
three years following the termination of his employment (for which Mr. Burnett will pay all
premiums); (ii) all of Mr. Burnetts stock options will become fully vested and exercisable
immediately prior to the Effective Time, subject to the consummation
of the Merger; (iii) each of Mr. Burnetts stock options outstanding immediately prior to the Effective Time will be converted
into fully vested RHD options with an economic value that is substantially identical to the value
of Mr. Burnetts outstanding stock options immediately prior to the Effective Time; (iv) each stock
option shall expire on the first to occur of (A) the tenth anniversary of the options grant date,
(B) the first anniversary of Mr. Burnetts termination of employment due to death or disability or
(C) the
15th day
of the third month following the date at which, or December 31
of the calendar year in which, the stock option would otherwise have
expired if the stock option had not been extended, based on the terms
of the stock option at the stock options grant date; (v) as of the Effective Time, the Company shall assign, and RHD shall assume, all rights
and obligations under the Burnett Letter Agreement; and (vi) if it is determined that any payment
or benefit provided to Mr. Burnett under the Burnett Letter Agreement would be subject to the
excise tax imposed by Section 4999 of the Code, then the Company
will pay to Mr. Burnett an
additional payment in an amount such that, after payment by Mr. Burnett of all taxes (including any
excise tax), Mr. Burnett retains an amount equal to such excise tax. A copy of the Burnett Letter
Agreement is filed with this report as Exhibit 10.2 and is incorporated herein by this reference.
(c) On October 2, 2005, the Company entered into a letter agreement (the Neal Letter
Agreement) with Marilyn Neal, the Companys Executive Vice President and Chief Operating Officer,
which amended Ms. Neals amended and restated employment agreement and stock option agreements. The
Neal Letter Agreement provides that: (i) effective January 1, 2006, Ms. Neal will be available to
work on such schedule as shall be reasonably agreed upon by the Company and Ms. Neal; (ii) the
Company will pay or reimburse Ms. Neal for her reasonable relocation and home sale expenses
incurred in connection with her relocation from the Denver metropolitan area to Florida (up to a
maximum of $250,000) (and, if Ms. Neal is unable to sell her Colorado residence by the earlier of
the Effective Time or April 1, 2006, she will instead receive a
lump sum payment of $250,000); (iii)
if Ms. Neals employment with the Company (which, for purposes of the Neal Letter Agreement,
includes any successor to Dex Media, Inc.) is terminated by the Company without Cause, by Ms. Neal
for Good Reason (as those terms are defined in Ms. Neals amended and restated employment
agreement) or by Ms. Neal for any other reason, then, subject to Ms. Neals execution of a general
release of claims against the Company, the Company will (a) pay
Ms. Neal a lump sum cash amount
equal to 1.5 times her then-current annual base salary (which shall not be less than $325,000) plus
her then-current target annual bonus (which shall not be less than 75% of her annual base salary),
(b) pay to Ms. Neal a pro rata portion of her target annual bonus for the year of termination, (c)
allow Ms. Neal to be eligible to continue to receive health and welfare benefits from the Company
for three years following the termination of her employment (for which Ms. Neal will pay all
premiums); (iv) all of Ms. Neals stock options will become fully vested and exercisable as of the
date of the termination of her employment, provided, however, that (X) all of Ms. Neals stock
options will become fully vested and exercisable immediately prior to the Effective Time, subject
to the consummation of the Merger, and (Y) Ms. Neals stock options outstanding immediately prior
to the Effective Time will be converted into fully
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vested RHD options with an economic value that is substantially identical to the value of Ms.
Neals outstanding stock options immediately prior to the Effective Time; (v) each stock option
shall expire on the first to occur of (A) the tenth anniversary of the options grant date, (B) the
first anniversary of Ms. Neals termination of employment due to death or disability or (C) the
15th day
of the third month following the date at which, or December 31
of the calendar year in which, the stock option would otherwise have
expired if the stock option had not been extended based on the terms
of the stock option at the stock options grant date; (vi) as of the Effective Time, the Company shall assign, and RHD shall assume, all rights and
obligations under the Neal Letter Agreement; and (vii) if it is determined that any payment or
benefit provided to Ms. Neal under the Neal Letter Agreement would be subject to the excise tax
imposed by Section 4999 of the Code, then the Company will pay to Ms. Neal an additional payment in
an amount such that, after payment by Ms. Neal of all taxes (including any excise tax), Ms. Neal
retains an amount equal to such excise tax. A copy of the Neal Letter Agreement is filed with this
report as Exhibit 10.3 and is incorporated herein by this reference.
(d) On October 2, 2005, the Company entered into a letter agreement (the Pomeroy Letter
Agreement) with Scott Pomeroy, then the Companys Senior Vice President Finance, which amended
Mr. Pomeroys amended and restated employment agreement and stock option agreements. The Pomeroy
Letter Agreement provides that, effective October 5, 2005: (i) Mr. Pomeroy will assume the position
of Executive Vice President and Chief Financial Officer of the Company; (ii) the term of Mr.
Pomeroys amended and restated employment agreement will be extended through October 2, 2008; (iii)
Mr. Pomeroys base salary will be $275,000 and his annual target bonus will be 75% of his annual
base salary and (iv) 26,000 restricted shares of the Companys common stock will be awarded to Mr.
Pomeroy pursuant to the Companys 2004 Incentive Award Plan. The Pomeroy Letter Agreement also
provides that, effective immediately prior to the consummation of the Merger: (i) if Mr. Pomeroys
employment with the Company (which, for purposes of the Pomeroy Letter Agreement, includes any
successor to Dex Media, Inc.) is terminated by the Company without Cause (as that term is defined
in Mr. Pomeroys amended and restated employment agreement) or by Mr. Pomeroy for Good Reason (as
that term is defined in the Pomeroy Letter Agreement), then, subject to Mr. Pomeroys execution of
a general release of claims against the Company, the Company will (a) pay Mr. Pomeroy a lump sum
cash amount equal to 2 times his then-current annual base salary plus his then-current target
annual bonus and (b) allow Mr. Pomeroy to be eligible to continue to receive health and welfare
benefits from the Company for three years following the termination of his employment (for which
Mr. Pomeroy will pay all premiums); (ii) those of Mr. Pomeroys stock options that are scheduled to
vest automatically on December 31, 2005 will vest on such date; (iii) those of Mr. Pomeroys stock
options that are scheduled to vest based on the Companys achievement of its 2005 EBITDA targets
will vest at the same time and to the same extent as applicable to the Companys senior executive
officers; provided, however, that if any such stock options remain unvested immediately prior to
the Effective Time, such stock options will vest and become fully exercisable immediately prior to
the Effective Time, subject to the consummation of the Merger; (iv) those of Mr. Pomeroys stock
options that are scheduled to vest with respect to the year ending December 31, 2006 will vest and
become fully exercisable immediately prior to the Effective Time, subject to the consummation of
the Merger; (v) all Mr. Pomeroys stock options that are scheduled to vest with respect to the year
ending December 31, 2007 (the 2007 Options) will be converted to time-vesting options and will
become fully exercisable on December 31, 2007; provided, however, that if, on or prior to the
second anniversary of the Effective Time, his employment is terminated by the Company without Cause
or by Mr. Pomeroy for Good Reason, the 2007 Options will become fully vested and exercisable as of
the date of termination; (vi) each stock option shall expire on
the first to occur of (A) the tenth
anniversary of the options grant date, (B) the first anniversary of Mr. Pomeroys termination of
employment due to death or disability or (C) the
15th day
of the third month following the date at which, or December 31
of the calendar year in which, the stock option would otherwise have
expired if the stock option had not been extended based on the terms
of the stock option at the stock options grant date;
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(vii) all shares of restricted
stock held by Mr. Pomeroy will vest immediately prior to the
Effective Time; (viii) as of the
Effective Time, the Company shall assign, and RHD shall assume, all rights and obligations under
the Pomeroy Letter Agreement; and (ix) if it is determined that any payment or benefit provided
to Mr. Pomeroy under the Pomeroy Letter Agreement would be subject to the excise tax imposed by
Section 4999 of the Code, then the Company will pay to Mr. Pomeroy an additional payment in an
amount such that, after payment by Mr. Pomeroy of all taxes (including any excise tax), Mr. Pomeroy
retains an amount equal to such excise tax. In the event the Merger is not consummated, the
provisions of the Pomeroy Letter Agreement described in the preceding sentence will be void ab
initio. A copy of the Pomeroy Letter Agreement is filed with this report as Exhibit 10.4 and is
incorporated herein by this reference.
(e) On October 2, 2005, the Company and each of its Senior Vice Presidents (Linda Martin,
Margaret Le Beau, Scott Bontempo, Kristine Shaw, Frank Eichler, Francis Barker and Helen Cousins,
each being hereinafter referred to as an SVP) entered into a letter agreement (each, an SVP
Letter Agreement) which amended each such SVPs amended and restated employment agreement and
stock option agreements. The SVP Letter Agreements will be effective immediately prior to the
consummation of the Merger. In the event the Merger is not consummated, the SVP Letter Agreements
will be void ab initio. Each SVP Letter Agreement provides that: (i) if the SVPs employment with
the Company (which, for purposes of each SVP Letter Agreement, includes any successor to Dex Media,
Inc.) is terminated by the Company without Cause (as that term is defined in the SVPs amended and
restated employment agreement) or by the SVP for Good Reason (as that term is defined in the SVP
Letter Agreement), then, subject to the SVPs execution of a general release of claims against the
Company, the Company will (a) pay the SVP a lump sum cash amount equal to 2 times his or her
then-current annual base salary plus his or her then-current target annual bonus and (b) allow the
SVP to be eligible to continue to receive health and welfare benefits from the Company for three
years following the termination of his or her employment (for which the SVP will pay all premiums);
(ii) those of the SVPs stock options that are scheduled to vest automatically on December 31, 2005
will vest on such date; (iii) those of the SVPs stock options that are scheduled to vest based on
the Companys achievement of its 2005 EBITDA targets will vest at the same time and to the same
extent as applicable to the Companys senior executive officers; provided, however, that if any
such stock options remain unvested immediately prior to the Effective Time, such stock options will
vest and become fully exercisable immediately prior to the Effective Time, subject to the
consummation of the Merger; (iv) those of the SVPs stock options that are scheduled to vest with
respect to the year ending December 31, 2006 will vest and become fully exercisable immediately
prior to the Effective Time, subject to the consummation of the Merger; (v) all the SVPs stock
options that are scheduled to vest with respect to the year ending December 31, 2007 (the SVP 2007
Options) will be converted to time-vesting options and will become fully exercisable on December
31, 2007; provided, however, that if, on or prior to the second anniversary of the Effective Time,
the SVPs employment is terminated by the Company without Cause or by the SVP for Good Reason, the
SVP 2007 Options will become fully vested and exercisable as of the date of termination; (vi) all
the SVPs stock options that are scheduled to vest with respect to the year ending December 31,
2008 (the SVP 2008 Options) will be converted to time-vesting options and will become fully
exercisable on December 31, 2008; provided, however, that if, on or prior to the second anniversary
of the Effective Time, the SVPs employment is terminated by the Company without Cause or by the
SVP for Good Reason, the SVP 2008 Options will become fully vested and exercisable as of the date
of termination; (vii) each stock option shall expire on the first to occur of (A) the first
anniversary of the options grant date, (B) the tenth anniversary of the SVPs termination of
employment due to death or disability or (C) the
15th day
of the third month following the date at which, or December 31
of the calendar year in which, the stock option would otherwise have
expired if the stock option had not been extended, based on the terms
of the stock option at the stock options grant date; (viii) as of the Effective Time, the
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Company shall assign, and RHD shall assume, all rights and obligations under each SVP Letter
Agreement; and (ix) if it is determined that any payment or benefit provided to an SVP under his or
her SVP Letter Agreement would be subject to the excise tax imposed by Section 4999 of the Code,
then the Company will pay to such SVP an additional payment in an amount such that, after payment
by such SVP of all taxes (including any excise tax), such SVP retains an amount equal to such
excise tax. A copy of the form of SVP Letter Agreement is filed with this report as Exhibit 10.5
and is incorporated herein by this reference.
(f) On October 2, 2005, the Company and each of its Vice Presidents (Robert Houston, Michael
Mansbridge, John Fischer, Cathy Crump, Tony Basile, Simon Greenman, Mark van Duren and John Meyer,
each being hereinafter referred to as a VP) entered into a letter agreement (each, a VP Letter
Agreement) which amended each such VPs amended and restated employment agreement and stock option
agreement(s). The VP Letter Agreements will be effective immediately prior to the consummation of
the Merger. In the event the Merger is not consummated, the VP Letter Agreements will be void ab
initio. Each VP Letter Agreement provides that, effective immediately prior to the consummation of
the Merger: (i) if the VPs employment with the Company (which, for purposes of each VP Letter
Agreement includes any successor to Dex Media, Inc.) is terminated by the Company without Cause (as
that term is defined in the VPs amended and restated employment agreement) or by the VP for Good
Reason (as that term is defined in the VP Letter Agreement), then, subject to the VPs execution of
a general release of claims against the Company, the Company will (a) pay the VP a lump sum cash
amount equal to his or her then-current annual base salary plus his or her then-current target
annual bonus and (b) allow the VP to be eligible to continue to receive health and welfare benefits
from the Company for three years following the termination of his or her employment (for which the
VP will pay all premiums); (ii) those of the VPs stock options that are scheduled to vest
automatically on December 31, 2005 will vest on such date; (iii) those of the VPs stock options
that are scheduled to vest based on the Companys achievement of its 2005 EBITDA targets will vest
at the same time and to the same extent as applicable to the Companys senior executive officers;
provided, however, that if any such stock options remain unvested immediately prior to the
Effective Time, such stock options will vest and become fully exercisable immediately prior to the
Effective Time, subject to the consummation of the Merger; (iv) those of the VPs stock options
that are scheduled to vest with respect to the year ending December 31, 2006 will vest and become
fully exercisable immediately prior to the Effective Time, subject to the consummation of the
Merger; (v) all the VPs stock options that are scheduled to vest with respect to the year ending
December 31, 2007 (the VP 2007 Options) will be converted to time-vesting options and will become
fully exercisable on December 31, 2007; provided, however, that if, on or prior to the second
anniversary of the Effective Time, the VPs employment is terminated by the Company without Cause
or by the VP for Good Reason, the VP 2007 Options will become fully vested and exercisable as of
the date of termination; (vi) all the VPs stock options that are scheduled to vest with respect to
the year ending December 31, 2008 (the VP 2008 Options) will be converted to time-vesting options
and will become fully exercisable on December 31, 2008; provided, however, that if, on or prior to
the second anniversary of the Effective Time, the VPs employment is terminated by the Company
without Cause or by the VP for Good Reason, the VP 2008 Options will become fully vested and
exercisable as of the date of termination; (vii) each stock option shall expire on the first to
occur of (A) the tenth anniversary of the options grant date, (B) the first anniversary of the
VPs termination of employment due to death or disability or
(C) the
15th day
of the third month following the date at which, or December 31
of the calendar year in which, the stock option would otherwise have
expired if the stock option had not been extended, based on the terms
of the stock option at the stock options grant date; (viii) as of the
Effective Time, the Company shall assign, and RHD shall assume, all rights and obligations under
each VP Letter Agreement; and (ix) if it is determined that any payment or benefit provided to a VP
under the his or her VP Letter Agreement would be subject to the excise tax imposed by Section 4999
of the Code, then the Company will pay to such VP an additional payment in an amount such that,
after payment by such VP of all
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taxes (including any excise tax), such VP retains an amount equal to such excise tax. A copy of the
form of VP Letter Agreement is filed with this report as Exhibit 10.6 and is incorporated herein by
this reference.
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits.
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Exhibit No. |
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Description |
10.2
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Letter Agreement dated October 2, 2005, by and between Dex
Media, Inc. and George Burnett. |
10.3
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Letter Agreement dated October 2, 2005, by and between Dex
Media, Inc. and Marilyn Neal. |
10.4
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Letter Agreement dated October 2, 2005, by and between Dex
Media, Inc. and Scott Pomeroy. |
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Exhibit No. |
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Description |
10.5
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Form of Letter Agreement dated October 2, 2005, by and between
Dex Media, Inc. and each of its Senior Vice Presidents. |
10.6
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Form of Letter Agreement dated October 2, 2005, by and between
Dex Media, Inc. and each of its Vice Presidents. |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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DEX MEDIA, INC.
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Date: October 18, 2005 |
By: |
/s/ FRANK M. EICHLER
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Name: |
Frank M. Eichler |
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Title: |
Senior Vice President, General Counsel |
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EXHIBIT INDEX
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Exhibit No. |
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Description |
10.2
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Letter Agreement dated October 2, 2005, by and between Dex
Media, Inc. and George Burnett. |
10.3
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Letter Agreement dated October 2, 2005, by and between Dex
Media, Inc. and Marilyn Neal. |
10.4
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Letter Agreement dated October 2, 2005, by and between Dex
Media, Inc. and Scott Pomeroy. |
10.5
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Form of Letter Agreement dated October 2, 2005, by and between
Dex Media, Inc. and each of its Senior Vice Presidents. |
10.6
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Form of Letter Agreement dated October 2, 2005, by and between
Dex Media, Inc. and each of its Vice Presidents. |
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