Exhibit 10.1(r)
SECOND AMENDMENT TO STOCKHOLDERS' AGREEMENT
THIS SECOND AMENDMENT TO STOCKHOLDERS' AGREEMENT (this "Amendment") is
dated as of January _____ , 1998 and is made and entered into by and among
the undersigned parties.
Recitals
The undersigned parties, constitute the "Majority Investors," "Majority
Shareholders" and the "Company" under that certain Stockholders' Agreement,
dated as of September 25, 1996, and amended by that First Amendment to
Shareholders' Agreement dated as of August 29, 1997 (the "Stockholders'
Agreement")
The undersigned desire to amend the Stockholders' Agreement under
Section 5.3 thereof.
Agreement
Therefore, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as follows:
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 Stockholders' Agreement.
2. Amendments to the Stockholders' Agreement. Effective as of the date
hereof, the Stockholders' Agreement is hereby amended as follows:
a. Section 1.1 of the Stockholders' Agreement is amended to add a
definition of Joint Director, as follows:
Joint Director: As defined in Section 3.1.
b. The definition of Restricted Person, appearing in Section 1.1 of
the Stockholders' Agreement is hereby amended in its entirety to read as
follows:
Restricted Person: (i) Any beneficial owner of 5% or more of any
class or series of equity interests in the Corporation, (ii) any
Affiliate of the Company other than a Wholly Owned Subsidiary, (iii)
any director or officer of the Company or any Subsidiary, (iv) any
beneficial owner of 5% or more of any class or series of equity
interests in any Subsidiary and any director, officer or Affiliate of
any such owner, and (v) any Related Party of any Person covered by
clause (i), (ii), (iii) or (iv) of this sentence; provided that in no
event
shall any of the following Persons be deemed to be a "Restricted
Person": (w) any Investor, any Affiliate or Related Party of any
Investor or any Related Party of any Affiliate of any Investor, (x)
any Series B Director, (y) any Series C Director, or (z) any Joint
Director.
b. Section 3.1 of the Stockholders' Agreement is amended to
read in its entirety as follows:
3.1 Board Representation. Each Stockholder severally
covenants and agrees that, such Stockholder shall vote, or cause
to be voted, all Voting Equity from time to time owned or
controlled by such Stockholder and which such Stockholder is
entitled to vote for such purpose, as of the record date of any
action of the shareholders of the Company, whether by consent or
at a meeting, at which members of the Board of Directors are to
be elected or to establish the number of Directors of the
Company, in favor of a Board of Directors comprised of nine
Directors designated as follows:
(a) Subject to Section 3.2 below, two Directors designated
by the Shareholder Representative.
(b) Subject to Section 3.2 below, four Disinterested
Outside Directors who are nominated by the Shareholder
Representative.
(c) Three additional Directors, to be elected as follows:
(i) one Director (the `Series B Director') elected by
the holders of the Series B Preferred Stock as set
forth in the Series B Certificate of Designation; (ii)
one Director (the `Series C Director') elected by the
holders of the Series C Preferred Stock as set forth in
the Series C Certificate of Designation; and (iii) one
Director (the "Joint Director") elected by the holders
of the Series B and Series C Preferred Stock voting
together as a single class, as set forth in the Series
B Certificate of Designation and the Series C
Certificate of Designation. The provisions of the
Series B Certificate of Designation shall govern the
designation, election and removal of the Series B
Director and filling of any vacancy in the office of
the Series B Director. The provisions of the Series C
Certificate of Designation shall govern the
designation, election and removal of the Series C
Director and the filling of any vacancy in the office
of the Series C Director. The provisions of the Series
B Certificate of Designation and the Series C
Certificate of Designation shall govern the
designation, election and removal of the Joint Director
and filling of any vacancy in the office of the Joint
Director. The provisions of Section 3.2, Section 3.3,
Section 3.4, Section 3.5 and Section 3.6 shall apply
only to the other six Directors comprising the Board of
Directors. If the holders of the Series B Preferred
Stock or the Series C Preferred Stock cease
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being entitled to elect a director as a class pursuant
to the Series B Certificate of Designation or the
Series C Certificate of Designation, respectively, (i)
the size of the entire Board of Directors shall be
reduced by one director, and (ii) the Director then
designated as the Joint Director shall cease to be so
designated and thereafter shall be chosen according to
Section 3.1(b).
3. Reaffirmation. The undersigned parties acknowledge that the
Stockholder's Agreement, as amended hereby, remains in full force and effect
and is hereby ratified and affirmed.
IN WITNESS WHEREOF, the undersigned have duly executed and delivered
this Second Amendment to Stockholders' Agreement as of the date first above
written.
"Company"
MENTUS MEDIA CORP.
By:
----------------------------
Thomas M. Pugliese, Chief Executive Officer
"Majority Shareholders"
-----------------------------------
GERARD P. JOYCE
-----------------------------------
THOMAS P. PUGLIESE
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"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:
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President
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:
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President
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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:
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President
PULITZER PUBLISHING COMPANY
By:
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Name: Title:
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