Exhibit 10.1(o)
AGREEMENT FOR CONSENTS AND WAIVERS
This Agreement for Consents and Waivers is given by 21st Century
Communications Partners, L.P., 21st Century Communications T-E Partners,
L.P., and 21st Century Communications Foreign Partners, L.P. (the "21st
Century Investors"), and Pulitzer Publishing Company ("Pulitzer"), as of
January 21, 1998.
RECITALS
A. The 21st Century Investors are holders of Series B Senior
Cumulative Compounding Convertible Redeemable Preferred Stock (the "Series B
Preferred Stock") and, together with Pulitzer hold Series C Senior Cumulative
Compounding Convertible Redeemable Preferred Stock (the "Series C Preferred
Stock") of Xxxxxx Media Corp. (the "Corporation');
B. The 21st Century Investors and Pulitzer also are "Majority
Investors" under the following agreements:
(a) that certain Stockholders' Agreement, dated as of September
25, 1996, and amended by that First Amendment to Stockholders' Agreement
dated as of August 29, 1997 (together, the "Stockholders' Agreement");
(b) that certain Preemptive Rights Agreement, dated as of
September 25, 1996, and amended by that First Amendment to Preemptive Rights
Agreement dated as of August 29, 1997 (together, the "Preemptive Rights
Agreement");
(c) that certain Registration Rights Agreement, dated as of
September 25, 1996, and amended by that First Amendment to Registration
Rights Agreement dated as of August 29, 1997 (together, the "Registration
Rights Agreement");
(d) that certain Agreement, dated as of September 25, 1996, and
amended by that First Amendment to Agreement dated as of August 29, 1997
(together, the "Xxxxx Agreement"), relating to that certain promissory note
payable by the Company to Xxxxxx X. Xxxxx (the "Xxxxx Note"), and the
security agreement securing the same (the "Xxxxx Security Agreement").
C. In connection with (i) the Company's offering (the "Offering")
of __ % Senior Secured Notes due 2003 (the "Notes"), and the Warrants issued
concurrently therewith (the "Warrants"), and (ii) the Company's conduct of an
exchange offer (the "Exchange Offer") pursuant to which the Notes are
intended to be exchanged for promissory notes that are the subject of a
registration statement filed with the Securities and Exchange Commission
("Exchange Notes") or in a private exchange (the "Private Exchange Notes"),
the undersigned have agreed to consent to certain matters described below,
effective upon closing of the Offering. For purposes of this Agreement, the
Notes, Exchange Notes and Private Exchange Notes are together referred to as
the
"Senior Notes." For purposes of this Agreement, each of the terms "Notes,"
"Warrants," "Exchange Notes," "Private Exchange Notes," "Senior Notes" and
"Offering" and each reference herein to any Indentures, Security or Pledge
Agreement or other agreement, document or instrument evidencing or relating
to any of the Notes, Warrants, Exchange Notes, Private Exchange Notes or
Offering mean or are references to only such items having terms and
provisions substantially as described in the Offering Memorandum (as
described below), as they may be modified with the specific consent of the
Series B Director as contemplated by paragraph 1 below.
AGREEMENT:
Therefore, with the intent that the Company and its underwriters,
selling agents and representatives, together with the offerees of the Senior
Notes and Warrants, rely on the consents, waivers and covenants set forth
herein, the undersigned agree as follows:
1. CONSENTS AND WAIVERS UNDER STOCKHOLDERS' AGREEMENT. Subject to
paragraph 9 below, pursuant to Section 3.8(a) of the Stockholders' Agreement
(or otherwise as appropriate in connection with item (iv) below), each of the
undersigned, in his, her or its capacity as a party to and an Investor under
the Stockholders' Agreement hereby consents to the actions by the Company
described below in this paragraph; PROVIDED, that in each case, such actions
(including, without limitation, the material terms and conditions of each
document referred to herein) are substantially as described in the
Preliminary Offering Memorandum dated January 21, 1998 furnished to the
undersigned prior to the date hereof (the "Offering Memorandum"), with any
material modifications thereto that may be specifically approved by the
Series B Director (as defined in the Stockholders' Agreement) in his sole
discretion (such consent of the Series B Director constituting the consent of
the Majority Investors under the Stockholders' Agreement).
(i) all actions required to be taken by the Company in connection
with the sale, issuance, delivery of, and performance under, the Senior Notes
and Warrants, including without limitation (a) the execution and delivery by
the Company of all documents necessary to offer, sell, and issue the Senior
Notes and Warrants, including without limitation certificates evidencing the
Notes, Exchange Notes and Private Exchange Notes, global promissory notes, a
global warrant, warrant certificates, warrant agreement, purchase agreement,
security agreement, pledge agreement, indenture, unit agreement, note
registration rights agreement, warrant registration rights agreement, and
UCC-1 financing statements, (b) the issuance of Senior Notes and Warrants
upon the transfer of then outstanding Senior Notes and/or Warrants, as
appropriate, (c) the issuance of shares of common stock of the Company
("Common Stock") upon exercise of the Warrants, (d) the conduct of the
Exchange Offer and exchange of the Notes for Exchange Notes and/or Private
Exchange Notes, (e) the grant by the Company of a security interest covering
substantially all of the assets of the Company, (f) the payment of all
outstanding amounts owed under the Xxxxx Note, (g) the termination of the
Xxxxx Agreement and the Xxxxx Security Agreement, and (h) the modification of
the respective Certificates of Designation for the Series B Preferred Stock
and the Series C Preferred Stock as set forth below.
(ii) all future incurrences of Debt (as defined in the Stockholders'
Agreement) by the Company (including the grant of a security interest in
receivables of the Company in connection
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with a working capital credit facility) and all investments by the Company,
on the terms approved by the Board of Directors of the Company, within the
limitations set forth in the Indenture, Security Agreement and/or Pledge
Agreement to be executed in connection with the issuance of the Senior Notes;
provided that the foregoing is not intended to and does not waive any rights
of the Majority Holders under the Stockholders' Agreement to consent to any
refinancing of the Senior Notes, Indenture, Security Agreement and/or Pledge
Agreement;
(iii) the creation of one or more stock option plans in the form
approved by the Compensation Committee, the options granted pursuant to which
will be considered Employee Options under the Stockholders' Agreement, for
the issuance of Common Stock which shall not exceed 53,000 shares of Common
Stock (as adjusted for stock splits and similar transactions), and the
issuance of Common Stock upon the exercise thereof; provided that the
Employee Options under the plans approved hereunder shall not be issued with
an exercise price per share of Common Stock less than the lesser of (a) $77
(as adjusted for stock splits and other similar transactions) or (b) the
Conversion Price per share of the Series B Preferred Stock, in either case
without the consent of the Series B Director; and
(iv) waiver of compliance with the notice and other requirements of
the Stockholders' Agreement in connection with the Offering and the Exchange
Offer.
2. WAIVER OF PREEMPTIVE RIGHTS. As "Majority Investors," and on behalf
of the "Investors" under the Preemptive Rights Agreement, the undersigned
hereby waive all preemptive rights, if any, under the Preemptive Rights
Agreement with respect to all Notes and Warrants offered, issued or sold in
the Offering, all Exchange Notes and/or Private Exchange Notes that are the
subject of the Exchange Offer, and all shares of Common Stock and of the
securities which are or shall become issuable upon the exercise of Warrants,
and also waive compliance with the notice and other requirements of the
Preemptive Rights Agreement in connection with the Offering and the Exchange
Offer.
3. CONSENT TO AMENDMENT OF REGISTRATION RIGHTS. As "Majority
Investors," and on behalf of the "Investors" under the Registration Rights
Agreement, the undersigned hereby consent to the grant of piggy-back
registration rights (under a warrant registration rights agreement) to the
holders of the Warrants and/or shares of Common Stock issuable upon the
exercise of the Warrants, on a pro-rata basis with, and with the same
relative rights as, the "Investors" under the Registration Rights Agreement
with respect to their piggy-back registration rights in the event of any
Demand Registration or Piggyback Registration, and also waive compliance with
the notice and other requirements of the Registration Rights Agreement in
connection with the Offering and Exchange Offer.
4. CONSENT TO PAYMENT OF XXXXX NOTE AND TERMINATION OF XXXXX AGREEMENT.
As "Majority Investors," and on behalf of all of the "Investors" under the
Xxxxx Agreement, the undersigned consent to (i) the payment of all amounts
owing under the Xxxxx Note (defined in the Xxxxx Agreement as the "New Note")
from the proceeds of the Offering, which payment shall be made immediately
upon closing of the Offering, (ii) the termination of the Xxxxx Agreement,
effective upon such payment, and (iii) the termination of the Xxxxx Security
Agreement, effective upon such
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payment, and also waive compliance with the notice and other requirements of
the Xxxxx Agreement.
5. CONSENT TO MODIFICATION OF CERTIFICATE OF DESIGNATIONS FOR SERIES B
PREFERRED STOCK. The undersigned hereby consent to such modification as may
be deemed advisable by the Board of Directors of the Corporation to the
Certificate of Designation for Series B Preferred Stock to accomplish the
following:
(i) provide that if, at any time while the Senior Notes, or any
obligation or obligations incurred by the Company in a bona fide refinancing
of the Senior Notes (the "Refinancing Obligations") are outstanding, a
redemption of shares of Series B Preferred Stock is required by the terms
thereof (or would be required but for the provisions of this clause), but the
payment to the holders of the Series B Preferred Stock of the redemption
price therefor would result in a breach of or event of default under the
Indenture for the Senior Notes (or other governing document in respect of the
Senior Notes or Refinancing Obligations), then the Company shall comply with
Section 3(i) of the Certificate of Designation for the Series B Preferred
Stock, but unless and until otherwise approved by the requisite holders of
the Senior Notes or Refinancing Obligations, or the outstanding Senior Notes
or Refinancing Obligations are paid in full, the Company shall not pay such
redemption price or consummate any Investor Approved Action to the extent
that such a breach or event of default would occur; HOWEVER, except as
expressly provided in this clause, nothing contained herein is intended to
impair, as between the Company and the holders of the Series B Preferred
Stock, the obligations of the Company, which are absolute and unconditional,
to redeem the shares thereof when and as otherwise would be required, to
affect the relative rights of the holders of such shares and creditors of the
Company other than the holders of the Senior Notes and Refinancing
Obligations or to prevent the holders of the Series B Preferred Stock from
exercising all rights and remedies otherwise permitted by applicable law,
subject to the express terms of this provision for the benefit of the holders
of the Senior Notes and Refinancing Obligations;
(ii) waiver of any adjustment in the conversion price, conversion
rate or otherwise based on the issuance of the Warrants issued in connection
with the Offering (or issued upon transfer of such Warrants) or the Common
Stock issuable upon the exercise of Warrants issued in connection with the
Offering (or issued upon transfer of such Warrants); and
(iii) the creation of one or more stock option plans in the form
approved by the Compensation Committee, the options granted pursuant to which
will be considered Employee Options, for the issuance of Common Stock which
shall not exceed 53,000 shares of Common Stock (as adjusted for stock splits
and similar transactions), and the issuance of Common Stock upon the exercise
thereof, in each case without adjustment in the conversion price, conversion
rate or otherwise; provided that the such Employee Options under the plans
approved hereunder shall not be issued with an exercise price per share of
Common Stock less than the lesser of (a) $77 (as adjusted for stock splits
and other similar transactions) or (b) the Conversion Price per share of the
Series B Preferred Stock, in either case without the consent of the Series B
Director;
6. CONSENT TO MODIFICATION OF CERTIFICATE OF DESIGNATION FOR SERIES C
PREFERRED STOCK. The undersigned hereby consents to such modification as may
be deemed advisable by the Board of
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Directors of the Corporation of the Certificate of Designation for Series C
Preferred Stock to accomplish the following:
(i) provide that if, at any time while the Senior Notes, or any
Refinancing Obligations are outstanding, a redemption of shares of Series C
Preferred Stock is required by the terms thereof (or would be required but
for the provisions of this clause), but the payment to the holders of the
Series C Preferred Stock of the redemption price therefor would result in a
breach of or event of default under the Indenture for the Senior Notes (or
other governing document in respect of the Senior Notes or Refinancing
Obligations), then the Company shall comply with Section 3(h) of the
Certificate of Designation for the Series C Preferred Stock, but unless and
until otherwise approved by the requisite holders of the Senior Notes or
Refinancing Obligations, or the outstanding Senior Notes or Refinancing
Obligations are paid in full, the Company shall not pay such redemption price
or consummate any Investor Approved Action to the extent that such a breach
or event of default would occur; HOWEVER, except as expressly provided in
this clause, nothing contained herein is intended to impair, as between the
Company and the holders of the Series C Preferred Stock, the obligations of
the Company, which are absolute and unconditional, to redeem the shares
thereof when and as otherwise would be required, to affect the relative
rights of the holders of such shares and creditors of the Company other than
the holders of the Senior Notes and Refinancing Obligations or to prevent the
holders of the Series C Preferred Stock from exercising all rights and
remedies otherwise permitted by applicable law, subject to the express terms
of this provision for the benefit of the holders of the Senior Notes and
Refinancing Obligations;
(ii) waiver of any adjustment in the conversion price, conversion
rate or otherwise based on the issuance of the Warrants issued in connection
with the Offering (or issued upon transfer of such Warrants) or the Common
Stock issuable upon the exercise of the Warrants issued in connection with
the Offering (or issued upon transfer of such Warrants);
(iii) the creation of one or more stock option plans in the form
approved by the Compensation Committee, the options granted pursuant to which
will be considered Employee Options, for the issuance of Common Stock which
shall not exceed 53,000 shares of Common Stock (as adjusted for stock splits
and similar transactions), and the issuance of Common Stock upon the exercise
thereof, in each case without adjustment in the conversion price, conversion
rate or otherwise; provided that the such Employee Options under the plans
approved hereunder shall not be issued with an exercise price per share of
Common Stock less than the lesser of (a) $77 (as adjusted for stock splits
and other similar transactions) or (b) the Conversion Price per share of the
Series C Preferred Stock, in either case without the consent of the Series C
Director; and
(iv) the extension of mandatory redemption period for 6 months.
7. APPLICATION OF TAG-ALONG AND DRAG-ALONG RIGHTS. The 21st Century
Investors agree to be bound by the tag-along and drag-along rights as
outlined in the Offering Memorandum.
8. TERMINATION OF OPTION. The 21st Century Investors agree to terminate
that certain Option Agreement, dated as of September 26, 1996, relating to
the Chicago DMA.
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9. EFFECTIVENESS OF CONSENTS. The consents and waivers of the
undersigned hereunder, the agreements in paragraph 7 and the termination of
the Option Agreement described in paragraph 8 above, are effective upon
closing of the Offering on substantially the terms as outlined in the
Offering Memorandum, with such modifications as may be approved by the Series
B Director.
10. DEFINITIONS. Except as otherwise specifically defined herein, the
defined terms contained in this agreement shall have the meaning ascribed to
them in the referenced document.
11. FURTHER ASSURANCES. The undersigned agree that, upon the
Corporation's request, the undersigned will execute one or more separate
consents for the purpose of confirming or otherwise memorializing the
agreements set forth herein.
This Agreement memorializes the parties' understanding and agreement as of
January 21, 1998.
"Majority Investors"
21ST CENTURY COMMUNICATIONS
PARTNERS, L.P.
By: SANDLER INVESTMENT
PARTNERS, L.P., General Partner
By: SANDLER CAPITAL MANAGEMENT,
General Partner
By: MJDM MEDIA CORP., General Partner
By:______________________________
Its: _______________________
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21ST CENTURY COMMUNICATIONS T-E
PARTNERS, L.P.
By: SANDLER INVESTMENT
PARTNERS, L.P., General Partner
By: SANDLER CAPITAL MANAGEMENT,
General Partner
By: MJDM MEDIA CORP., General Partner
By:______________________________
Its ________________________
21ST CENTURY COMMUNICATIONS
FOREIGN PARTNERS, L.P.
By: SANDLER INVESTMENT
PARTNERS, L.P., General Partner
By: SANDLER CAPITAL
MANAGEMENT, General Partner
By: MJDM MEDIA CORP., a General Partner
By:______________________________
Its: _______________________
PULITZER PUBLISHING COMPANY
By:______________________________
Name:_______________________
Title:____________________
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