EXHIBIT 10.3
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AMENDMENT NO. 1 TO
AMENDED AND RESTATED
SERIES B CONVERTIBLE PREFERRED STOCK
AND WARRANT PURCHASE AGREEMENT
This Amendment No. 1, dated as of May 31, 2002 (this "AMENDMENT"), to
the Amended and Restated Series B Convertible Preferred Stock and Warrant
Purchase Agreement, dated as of March 18, 2002 (the "AGREEMENT"), is among
Penton Media, Inc., a Delaware corporation (the "COMPANY"), and the Purchasers
(as defined in the Agreement).
Pursuant to the Agreement, the Company sold to the Purchasers 50,000
shares of the Company's Series B Convertible Preferred Stock, par value $.01 per
share (the "PREFERRED STOCK"), and warrants to purchase 1,600,000 shares of the
Company's common stock, par value $.01 per share.
The Company and the Purchasers have determined that it would be
advisable and in the best interests of the Company and its stockholders to amend
the terms of the Preferred Stock to eliminate the scheduled redemption feature
of the Preferred Stock to address the adverse accounting treatment related to
this feature of the Preferred Stock in exchange for granting the Purchasers the
right to cause the sale of the Company under certain circumstances.
Section 13.6 of the Agreement provides that the Agreement may be
amended if such amendment is in writing and is signed by the Company and each of
the Purchasers.
In consideration of the mutual promises and covenants set forth in this
Agreement, the parties hereto agree as follows:
1. Capitalized terms used but not otherwise defined herein will have
the meanings set forth in the Agreement.
2. Promptly upon receipt of the required stockholder approval, the
Company shall file the Amended Certificate of Designations, attached hereto as
EXHIBIT A (the "AMENDED CERTIFICATE OF DESIGNATIONS"), designating the rights
and preferences of the Preferred Stock.
3. The Agreement is hereby amended to add the following new Section
9.9(e):
(e) From and after the 6th anniversary of the Initial Closing Date,
the holders of a majority of the Series B Shares then outstanding
shall have the right to cause the Company to seek a buyer for all of
the assets or issued and outstanding capital stock of the Company,
and such sale will be conducted in accordance with the procedures
set forth in this Section 9.9 (other than Section 9.9(d)); PROVIDED,
HOWEVER, the rights set forth in this Section 9.9(e) shall not be
effective if less than 3,500 Series B Shares (subject to adjustment
to reflect any stock split, stock dividend, reclassification or
other transaction having a similar effect) are then outstanding.
4. Unless otherwise required by applicable law (i) each of the
Purchasers shall report the amendment of the terms of the Preferred Stock as a
tax-free exchange on all relevant Tax returns and (ii) neither the Company nor
the Purchasers shall treat the Series B Preferred Stock as "preferred stock"
within the meaning of Section 305 of the Code.
5. In consideration for the Purchasers' execution and delivery of the
Amendment and for agreeing to an amendment to the terms of the Preferred Stock,
and in addition to all of the Company's other obligations under the Agreement
and Amendment, the Company shall defend, protect, indemnify and hold harmless
the Indemnitees from and against any and all Indemnified Liabilities, including,
but not limited to, any Tax liabilities (including any Tax imposed on such
Indemnitee as a result of any payment to that Indemnitee under this Section 5),
incurred by the Indemnitees or any of them as a result of, or arising out of, or
relating to (i) the execution, delivery, performance or enforcement of the
Amendment or (ii) the amendment to the terms of the Preferred Stock, as
contemplated in the Amended Certificate of Designations, to remove the scheduled
redemption date. The indemnification rights set forth in this Section 5 are
subject to the procedures set forth in Article XII of the Agreement.
Notwithstanding this Section 5 or Article XII of the Agreement, no Person shall
have any rights to indemnification with respect to any loss arising solely from
or related solely to the covenant set forth in clause (ii) of Section 4 of this
Amendment.
6. The Amendment shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns, including each subsequent
holder of Preferred Stock, Warrants, Conversion Shares or Warrant Shares. Except
as otherwise specifically provided herein, this Amendment shall not be
assignable by any party without the prior written consent of the other parities
hereto; provided, however, that each Purchaser shall be entitled to assign its
rights and obligations under this Amendment to any transferee of the Series B
Shares without the consent of any other party hereto so long as (i) the transfer
of such Series B Shares to such transferee is made in accordance with Sections
6.4 and 13.2 of the Agreement and (ii) such transferee agrees in writing to be
bound by the terms of the Agreement and this Amendment. Except as specifically
set forth or referred to herein, nothing herein is intended or shall be
construed to confer upon any person or entity other than the parties hereto and
their successors or assigns, any rights or remedies under or by reason of this
Amendment.
7. This Amendment may be executed in any number of counterparts, each
of which shall be deemed to be an original, but all of which together shall
constitute one agreement.
8. THIS AMENDMENT SHALL BE GOVERNED BY, CONSTRUED IN ACCORDANCE WITH,
AND ENFORCED UNDER, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS OR
INSTRUMENTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN SUCH STATE.
9. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be affected,
impaired or invalidated.
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10. Except as otherwise provided herein, the remedies provided herein
shall be cumulative and shall not preclude the assertion by any party hereto of
any other rights or the seeking of any other remedies against any other party
hereto.
11. The Agreement, the Related Documents, the Confidentiality
Agreement, the Amended Certificate of Designations for the Preferred Stock and
this Amendment and each other writing referred to herein or therein or delivered
pursuant hereto or thereto constitute the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior arrangements
or understandings, including, without limitation, the Original Agreement.
12. The Company acknowledges that pursuant to Section 13.5(a) of the
Agreement, the Company shall reimburse the Purchasers for all reasonable
expenses and costs (including all reasonable attorneys fees) incurred in
connection with the negotiation and execution of this Amendment, the Amended
Certificate of Designations and any of the related documents.
[SIGNATURES BEGIN ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 to
the Amended and Restated Series B Convertible Preferred Stock and Warrant
Purchase Agreement as of the day and year first above written.
PENTON MEDIA, INC.
By:
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Name: ▇▇▇▇▇▇▇ ▇. Vice
Title: Senior Vice President and Secretary
ABRY MEZZANINE PARTNERS L.P.
By: ABRY Mezzanine Investors, L.P.,
its general partner
By: ABRY Mezzanine Holdings, LLC,
its general partner
By:
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Clerk
ABACUS MASTER FUND, LTD.
By:
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
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SANDLER CAPITAL PARTNERS V, L.P.
By: Sandler Investment Partners, L.P., General Partner
By: Sandler Capital Management, General Partner
By: MJDM, Corp., General Partner
By: ____________________________________
Name:
Title:
SANDLER CAPITAL PARTNERS V FTE, L.P.
By: Sandler Investment Partners, L.P., General Partner
By: Sandler Capital Management, General Partner
By: MJDM, Corp., General Partner
By: ____________________________________
Name:
Title:
SANDLER CAPITAL PARTNERS V GERMANY, L.P.
By: Sandler Investment Partners, L.P., General Partner
By: Sandler Capital Management, General Partner
By: MJDM, Corp., General Partner
By: ____________________________________
Name:
Title:
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