Exhibit 10.1 (i)
FIRST AMENDMENT TO PREEMPTIVE RIGHTS AGREEMENT
THIS FIRST AMENDMENT TO PREEMPTIVE RIGHTS AGREEMENT is dated as of
August 29, 1997 and is made and entered into by and among the undersigned
parties (this "Amendment").
Recitals
All of the undersigned parties, except Pulitzer Publishing Company
(the "New Investor"), are the parties to a certain Preemptive Rights Agreement,
dated as of September 25, 1996 (the "Preemptive Rights Agreement"), relating to
▇▇▇▇▇▇ Media Corp., a Delaware corporation formerly named The ▇▇▇▇▇▇ Group, Inc.
(the "Company").
Pursuant to one or more Stock Purchase Agreements, dated as of the
date hereof, the Company is selling to certain purchasers, including the New
Investor, shares of the Series C Senior Cumulative Compounding Convertible
Redeemable Preferred Stock, par value $1.00 per share, of the Company.
Such purchasers have advised the Company that the conditions to
their willingness to purchase such shares include the admission of the New
Investors as parties to and certain amendments of the Preemptive Rights
Agreement.
Therefore, in order to induce each such purchaser to purchase such
shares to be purchased by it, and for other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Certain Defined Terms. Unless otherwise expressly defined
in this Amendment, capitalized terms used in this Amendment have the respective
meanings assigned to them in the Preemptive Rights Agreement.
Section 2. Amendments to the Preemptive Rights Agreement. The
undersigned parties who are parties to the Preemptive Rights Agreement hereby
agree that, effective as of the date hereof, the Preemptive Rights Agreement is
hereby amended as follows:
(a) The definition of "Initial Investors" in Section 1.1 of
the Preemptive Rights Agreement is hereby amended to read in its entirety
as follows:
"'Initial Investors' means each of the entities named in
the first paragraph of this Agreement as an 'Initial Investor'
and the New Investor."
(b) Each of the definitions of "Investors", and "Qualifying
Rights" in Section 1.1 of the Preemptive Rights Agreement is amended by
substituting "Senior" for the word and letter "Series B" in each place
such word and letter appear in each such definition.
(c) The definition of "Investors" in Section 1.1 is further amended
by (i) deleting the word "and" at the end of clause (ii) thereof; (ii)
substituting for the phrase "under clause (i) or (ii)" appearing in clause (iii)
thereof the words "under clause (i), (ii), (iv) or this clause (iii)"; (iii) by
adding immediately after the word "Investor" appearing in clause (ii) the phrase
"under clause (i), (ii), (iii) or this clause (iv)"; (iv) by substituting a
semicolon for the period at the end of clause (iv) thereof, inserting the word
"and" immediately after such semicolon and adding a new clause (v) that reads in
its entirety as follows:
"(v) each of the Persons named on Schedule A to this
Agreement, so long as such Person (A) agrees to become a party to
and an Investor under this Agreement pursuant to a written
instrument in form and substance satisfactory to the Majority
Investors and (B) continues to own any shares of Senior Stock or any
shares of Common Stock issued upon conversion of any shares of
Senior Stock formerly held by such Person."
(d) The definition of "Majority Investors" in Section 1.1 is amended
to read in its entirety as follows:
"'Majority Investors'" means, as of any time, any Investor or
Investors who qualify as such under clause (i), (ii) or (iii) of the
definition of 'Investor' in this Section 1.1 and who holds or hold,
in the aggregate, at least a majority of the aggregate number of
shares of Common Stock then held by all Investors who qualify as
such under clause (i), (ii) or (iii) of the definition of 'Investor'
in this Section 1.1, determined consistently with Section 2.1."
(e) The definition of "Transaction Documents" in Section 1.1 of the
Preemptive Rights Agreement is hereby amended to read in its entirety as
follows:
"'Transaction Documents' means any and all of the 'Transaction
Documents' within the definition of such term in the Purchase
Agreement, the Series C Purchase Agreement or any Co-Investment
Agreement."
(f) Section 1.1 of the Preemptive Rights Agreement is hereby further
amended by adding thereto, in the proper alphabetical order, the following
additional defined terms:
"'Additional Purchase Agreements' means the Stock Purchase
Agreement or Agreements, dated as of the date of the Series C
Purchase Agreement, among the Company and certain purchasers of
Series C Preferred Stock other than the Investors, as the same may
be amended from time to time in accordance with their respective
terms and the terms of the Stockholders Agreement.
"Co-Investment Agreement" means a stock purchase agreement
pursuant to which Lazard, Freres & Co., any of its Affiliates or any
one or more other Persons designated by it and reasonably acceptable
to the Company (collectively, "Lazard") acquire shares of the Series
C Preferred Stock after the date of the closing under the Series C
Purchase Agreement and that is substantially in the form of the
Series C Purchase Agreement and provides for the purchase and sale
of such number of shares of Series C Preferred Stock for such price,
at such time and on such terms and conditions as may be approved by
a majority of the Board of Directors of the Company, which majority
includes the Series B Director, in each case as the same may be
amended from time to time in accordance with its terms and with the
prior written consent of the Majority Investors.
"'New Investor' means Pulitzer Publishing Company."
"'Senior Stock' means the Series B Preferred Stock or the
Series C Preferred Stock."
"'Series C Preferred Stock' means the Series C Senior
Cumulative Compounding Convertible Redeemable Preferred Stock, par
value $1.00 per share, of the Company."
"'Series C Purchase Agreement' means that certain Stock
Purchase Agreement among the Company, the original Initial Investors
and the New Investor pursuant to which such Initial Investors and
the New Investor originally acquired shares of Series C Preferred
Stock, as the same may be amended from time to time in accordance
with its terms."
"'Stockholders Agreement'" means the Stockholders Agreement,
dated
September 25, 1996, among the Corporation, the original Initial
Investors and certain other stockholders of the Corporation, as
amended by the First Amendment thereto, dated as of the date of the
Series C Purchase Agreement, among the original parties thereto and
the New Investor and as the same may be further amended from time to
time in accordance with its terms.
(g) Clause (vi) of Section 2.4 of the Preemptive Rights
Agreement is amended by substituting the term "Investors" for the word
"Holders" appearing therein.
(h) Section 2.4 of the Preemptive Rights Agreement is further
amended by (i) deleting the word "or" that immediately precedes clause
(viii) thereof and (ii) the following at the end thereof, immediately
after the end of clause (viii) thereof:
"or (ix) the shares of Series C Preferred Stock originally issued
pursuant to the Series C Purchase Agreement, any of the Additional
Purchase Agreements or any Co-Investment Agreement, or any other
Common Stock Rights or any shares of Common Stock issued upon
conversion thereof."
(i) Section 2.6 of the Preemptive Rights Agreement is amended
by substituting the term "Investor" for the term "Exercising Holder"
appearing therein.
(j) The Preemptive Rights Agreement is further amended by
attaching thereto, as Schedule A thereto, the form of Schedule A attached
to this First Amendment.
Section 3. Admission of New Investor as a Party to the Preemptive
Rights Agreement. The New Investor hereby agrees to become, effective as of the
date hereof, a party to and a "New Investor," an "Initial Investor" and an
"Investor" under the Preemptive Rights Agreement, as amended pursuant to Section
2 hereof, and to be bound by the terms and provisions thereof. Each of the other
parties hereto consents and agrees that, effective as of the date hereof, (i)
the New Investor shall be a party to and a "New Investor," an "Initial Investor"
and an "Investor" under the Preemptive Rights Agreement, as amended pursuant to
Section 2 hereof, and (ii) each of the Persons named on Schedule A hereto shall
be a party to and an "Investor" under the Preemptive Rights Agreement if and so
long as such Person qualifies as such under clause (v) of the definition of such
term (as set forth under Section 2(c) hereof).
Section 4. Subsequent Purchase of Series C Shares. The parties
anticipate
that the Company will enter into a stock purchase agreement pursuant to which
Lazard (as defined under Section 2(d) above) acquires shares of the Series C
Preferred Stock after the date hereof. In the event that such acquisition occurs
pursuant to a stock purchase agreement that qualifies as a Co-Investment
Agreement (as such term is defined under Section 2(d) of this First Amendment),
the parties agree as follows:
(i) Lazard may become a party to, and an "Initial Investor" and an
"Investor" under the Preemptive Rights Agreement, as amended,
by executing and delivering to the Company and each of the
other parties to the Preemptive Rights Agreement, an
instrument pursuant to which Lazard agrees to be a party
thereto and an "Initial Investor" and an "Investor" under the
Preemptive Rights Agreement, as amended, without the necessity
of any consent or action by the parties hereto.
(ii) If Lazard so agrees to become a party to the Preemptive Rights
Agreement, then the Preemptive Rights Agreement shall be
deemed to be amended, without further action by the parties,
to add Lazard as an "Initial Investor" and an "Investor" under
the Preemptive Rights Agreement.
Section 5. Waiver of Preemptive Rights. Each party to this Agreement
who is a party to the Preemptive Rights Agreement hereby waives such party's
right of first refusal, if any, under Article II of the Preemptive Rights
Agreement with respect to all shares of Series C Preferred Stock issued and sold
pursuant to or as expressly provided in Section 2.4 of the Series C Purchase
Agreement, issued pursuant to the ▇▇▇▇▇▇▇▇ Employment Agreement Amendment (as
defined in the Series C Purchase Agreement) or issued and sold to Lazard (as
defined under Section 2(d) above) pursuant to a stock purchase agreement that
qualifies as a Co-Investment Agreement (as defined under Section 2(d) hereof),
and all shares of Common Stock and other securities which are or shall become
issuable upon conversion thereof, and also waives compliance with the notice and
other requirements of Article II of the Preemptive Rights Agreement in
connection with such issuance and sale.
Section 6. Reaffirmation. The undersigned parties hereby acknowledge
that the Preemptive Rights Agreement, as amended hereby, remains in full force
and effect and is hereby ratified and confirmed.
[Signature pages follow]
IN WITNESS WHEREOF, the undersigned have duly executed and delivered this
First Amendment to Preemptive Rights Agreement as of the date first above
written.
▇▇▇▇▇▇ MEDIA CORP.
By: ________________________________________
Name:
Title:
21ST CENTURY COMMUNICATIONS PARTNERS, L.P.
By: SANDLER INVESTMENT
PARTNERS, L.P., General Partner
By: SANDLER CAPITAL MANAGEMENT,
General Partner
By: MJM MEDIA CORP., General Partner
By: ________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
21ST CENTURY COMMUNICATIONS T-E
PARTNERS, L.P.
By: SANDLER INVESTMENT
PARTNERS, L.P., General Partner
By: SANDLER CAPITAL MANAGEMENT,
General Partner
By: MJM MEDIA CORP.,
General Partner
By: ________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
21ST CENTURY COMMUNICATIONS
FOREIGN PARTNERS, L.P.
By: SANDLER INVESTMENT
PARTNERS, L.P., General Partner
By: SANDLER CAPITAL
MANAGEMENT, General Partner
By: MJM MEDIA CORP., a General Partner
By: ________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
PULITZER PUBLISHING COMPANY
By: ________________________________________
Name:
Title:
