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EXHIBIT 99.3
STOCKHOLDERS AGREEMENT
This AGREEMENT, dated April 27, 1997 (this "Agreement'), by and among
METROMEDIA INTERNATIONAL GROUP, INC., a Delaware corporation ("Seller"), P&F
ACQUISITION CORP., a Delaware corporation ("Buyer"), and each of the other
parties signatory hereto (each, a "Stockholder" and, collectively, the
"Stockholders").
W I T N E S S E T H:
WHEREAS, concurrently herewith, Seller, Orion Pictures Corporation
("Orion"), and Buyer are entering into a Letter of Intent (the "Letter of
Intent") contemplating the execution of a Stock Purchase Agreement, a draft of
which is attached to the Letter of Intent as Exhibit A (such Stock Purchase
Agreement, in the form in which it may be executed by the parties and as it may
be amended, supplemented or modified thereby shall hereinafter be referred to as
the "Stock Purchase Agreement;" capitalized terms used and not defined herein
have the respective meanings ascribed to them in the Stock Purchase Agreement),
pursuant to which Buyer will acquire from Seller all of the issued and
outstanding stock of Orion (the "Stock Purchase");
WHEREAS, each of the Stockholders Beneficially Owns (as defined herein)
the number of shares, par value $.01 per share, of common stock of Seller
("Seller Common Stock") set forth opposite such Stockholder's name on Schedule I
hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Stock
Purchase Agreement, Buyer has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto hereby agree as follows:
1. Provisions Concerning Seller Common Stock. Each Stockholder hereby
agrees that at any meeting of the holders of Seller Common Stock, however
called, or in connection with any written consent of the holders of Seller
Common Stock, such Stockholder shall vote (in the case of Shares for which the
Stockholder has exclusive voting and dispositive power) or cause to be voted (in
the case of Shares which the Stockholder "Beneficially Owns" (as defined below)
but for which the Stockholder does not have exclusive voting and dispositive
power) the Shares held of record or Beneficially Owned (as defined below) by
such Stockholder, whether heretofore owned or hereafter acquired, (i) in favor
of approval of the Stock Purchase Agreement and any actions required in
furtherance thereof and hereof; (ii) against any action or agreement that would
result in a breach in any respect of any covenant, representation or warranty or
any other obligation or agreement of Seller or Orion under the Stock Purchase
Agreement (after giving effect to any materiality or similar qualifications
contained therein); and (iii) except as permitted by the Stock Purchase
Agreement or as otherwise agreed to in writing in advance by Buyer, against the
following actions (other than the Stock Purchase and the transactions
contemplated by the Stock Purchase Agreement): (A) any extraordinary corporate
transaction, such as a merger,
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consolidation or other business combination involving Orion or any of the
Entertainment Companies; (B) a sale, lease, license, transfer or disposition of
any assets outside the ordinary course of business or any which in the aggregate
are material to Orion and its Subsidiaries (other than Landmark) taken as a
whole, or a reorganization, recapitalization, dissolution or liquidation of
Seller or Orion; (C)(1) any change in a majority of the persons who constitute
the board of directors of the Seller; (2) any change in the present
capitalization of Orion or any of its Subsidiaries or any amendment of the
Certificate of Incorporation or By-Laws of Orion or any of its Subsidiaries; (3)
any other material change in the corporate structure or business of Orion or any
of its Subsidiaries; or (4) any other action which, in the case of each of the
matters referred to in clauses C(1), (2), (3) or (4) is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone, or
materially adversely affect the Stock Purchase and the transactions contemplated
by this Agreement and the Stock Purchase Agreement. Such Stockholder shall not
enter into any agreement or understanding with any Person (as defined below) the
effect of which would be inconsistent or violative of the provisions and
agreements contained in Section 1 or 2 hereof. For purposes of this Agreement,
"Beneficially Own" or "Beneficial Ownership" with respect to any securities
shall mean having "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" within the meaning of Section 13(d)(3) of the
Exchange Act. For purposes of this Agreement, "Person" shall mean an individual,
corporation, partnership, joint venture, association, trust, unincorporated
organization or other entity.
2. Other Covenants, Representations and Warranties. Each
Stockholder hereby represents and warrants to Parent and Buyer as follows:
(a) Ownership of Shares. On the date hereof, the Shares set
forth opposite such Stockholder's name on Schedule I hereto constitute all of
the Shares owned of record or Beneficially Owned by such Stockholder. Schedule I
hereto correctly indicates those Shares that are Beneficially Owned and held of
record by such Stockholder and those shares that are Beneficially Owned by such
Stockholder but not held of record by such Stockholder. Schedule I discloses the
number of Shares Beneficially Owned by the Stockholder for which the Stockholder
shares voting or dispositive power with another Person and identifies such other
Person or Persons. Except as referenced in the preceding sentence and Schedule
I, such Stockholder has sole voting power and sole power to issue instructions
with respect to the matters set forth in Section 1 hereof, sole power of
disposition, sole power to demand appraisal rights and sole power to agree to
all of the matters set forth in this Agreement, in each case with respect to all
of the Shares set forth opposite such Stockholder's name on Schedule I hereto,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Such Stockholder has the
legal capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Stockholder will not violate any other
agreement to which such Stockholder is a party including, without
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limitation, any voting agreement, stockholder agreement or voting trust. This
Agreement has been duly and validly executed and delivered by such Stockholder
and constitutes a valid and binding agreement of such Stockholder, enforceable
against such Stockholder in accordance with its terms. There is no beneficiary
or holder of a voting trust certificate or other interest of any trust of which
such Stockholder is trustee who is not a party to this Agreement and whose
consent is required for the execution and delivery of this Agreement or the
consummation by such Stockholder of the transactions contemplated hereby. If
such Stockholder is married and such Stockholder's Shares constitute community
property, this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, such Stockholder's spouse,
enforceable against such person in accordance with its terms.
(c) No Conflicts. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Stockholder or the
consummation by such Stockholder of the transactions contemplated hereby. None
of the execution and delivery of this Agreement by such Stockholder, the
consummation by such Stockholder of the transactions contemplated hereby or
compliance by such Stockholder with any of the provisions hereof shall (1)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which such Stockholder is a party or by
which such Stockholder or any of such Stockholder's properties or assets may be
bound, or (2) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to such Stockholder or any of such
Stockholder's properties or assets.
(d) No Finder's Fees. Other than existing financial advisory and
investment banking arrangements and agreements between Seller and Xxxxxxxxx,
Xxxxxx & Jennrette Securities Corp., which have been disclosed in writing to
Buyer, no broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated by the Stock
Purchase Agreement based upon arrangements made by or on behalf of such
Stockholder or any of its Affiliates (or than Seller and its Subsidiaries) or,
to the knowledge of such Stockholder, Seller or any of its Subsidiaries.
(e) Other Potential Acquirors. Such Stockholder (i) shall
immediately cease any existing discussions or negotiations, if any, with any
parties conducted heretofore with respect to any acquisition of all or any
material portion of the assets of, or any equity interest in, Orion or its
Subsidiaries (other than Landmark) or any business combination with Orion or its
Subsidiaries (other than Landmark), in his, her or its capacity as such, and
(ii) from and after the date hereof until termination of the Stock Purchase
Agreement, unless and until Seller is permitted to take such actions under
Section 5.08 of the Stock Purchase Agreement, shall not, in such capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including by
way of furnishing nonpublic information or assistance), or take any other action
to facilitate knowingly, any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any such transaction or
acquisition, or agree to or endorse any such transaction or acquisition, or
authorize
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or permit any of such Stockholder's directors, officers, stockholders, employees
or agents to do so, and such Stockholder shall promptly notify Buyer of any
proposal and shall provide a copy of any such written proposal and a summary of
any oral proposal to Buyer immediately after receipt thereof (and shall specify
the material terms and conditions of such proposal and identify the person
making such proposal) and thereafter keep Buyer promptly advised of any
development with respect thereto.
(f) Restriction on Transfer, Proxies and Non-Interference.
Except as contemplated by the Stock Purchase Agreement, such Stockholder shall
not, directly or indirectly: (i) offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of such Stockholder's Shares or any interest therein;
(ii) grant any proxies or powers of attorney with respect to the subject matter
of this Agreement, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of such Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling such Stockholder from
performing such Stockholder's obligations under this Agreement.
(g) Reliance by Buyer. Such Stockholder understands and
acknowledges that Buyer is entering into the Letter of Intent, and will enter
into the Stock Purchase Agreement, in reliance upon such Stockholder's execution
and delivery of this Agreement.
3. Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
4. Stop Transfer, Restrictive Legend. (a) Each Stockholder agrees
with, and covenants to, Buyer that such Stockholder shall not request that
Seller register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Shares, unless
such transfer is made in compliance with this Agreement. In the event of a stock
dividend or distribution, or any change in the Seller's Common Stock by reason
of any stock dividend, split-up, recapitalization, combination, exchange of
Shares or the like, the term "Shares" shall be deemed to refer to and include
the Shares as well as all such stock dividends and distributions and any shares
into which or for which any or all of the Shares may be changed or exchanged.
(b) Upon the written request of Buyer, all certificates
representing any of such Stockholder's Shares shall contain the following
legend:
"The securities represented by this certificate, including certain
voting and transfer rights with respect thereto, are subject to the
terms of a Stockholders Agreement, dated May __, 1997, among Metromedia
International Group, Inc., P&F
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Acquisition Corp. and Orion Pictures Corporation, a copy of which is on
file in the principal office of the Issuer."
5. Termination. Except as otherwise provided herein, the covenants
and agreements contained herein with respect to the Shares shall terminate upon
the later of (a) September 30, 1997, or (b) ninety (90) days after the date of
the meeting of Seller's stockholders held for the purpose of approving and
adopting the Stock Purchase Agreement and the transactions contemplated thereby
(provided that, if no such meeting is held prior to September 30, 1997, the
covenants and agreements contained herein with respect to the Shares shall
terminate on September 30, 1997).
6. Stockholder Capacity. No person executing this Agreement who is
or becomes during the term hereof a director of the Seller makes any agreement
or understanding herein in his or her capacity as such director. Each
Stockholder signs solely in his or her capacity as the record and/or beneficial
owner of such Stockholder's Shares.
7. Miscellaneous.
(a) Entire Agreement. This Agreement, the Letter of Intent
and the Stock Purchase Agreement constitute the entire agreement between the
Parties with respect to the subject matter hereof and supersede all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
(b) Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to such Stockholder's
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, such Stockholder's heirs, guardians,
administrators or successors. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all obligations under this
Agreement of the transferor.
(c) Assignment. This Agreement shall not be assigned by
operation of law or otherwise by any Stockholder without the prior written
consent of Buyer or by Buyer without the prior written consent of each
Stockholder; provided that Buyer may assign, in its sole discretion, its rights
and obligations hereunder to any direct or indirect wholly owned subsidiary
thereof, but no such assignment shall relieve such party of its obligations
hereunder if such assignee does not perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated, with
respect to any one or more Stockholders, except upon the execution and delivery
of a written agreement executed by Buyer and such affected Stockholder or
Stockholders; provided that Schedule I hereto may be supplemented by Buyer by
adding the name and other relevant information concerning any Stockholder of
Seller who agrees to be bound by the terms of this Agreement without the
agreement of any other party hereto, and thereafter such added Stockholder shall
be treated as a "Stockholder" for all purposes of this Agreement.
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(e) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery, telegram,
telex or telecopy, or by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered to
the respective parties at the following addresses:
If to Seller or any Stockholder: c/o Metromedia Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Facsimile: (000) 000-0000
If to: Metro-Xxxxxxx-Xxxxx Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such manner as
to be effective and valid under applicable law but if any provision or portion
of any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
the aggrieved party shall be entitled to the remedy of specific performance of
such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity.
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(h) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
(1) Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, Seller, Buyer, each Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
METROMEDIA INTERNATIONAL
GROUP, INC.
By:/s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: Executive Vice President
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P&F ACQUISITION CORP.
By:/s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Executive Vice President
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/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
METROMEDIA COMPANY
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
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Title: President
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MET TELLCELL, INC.
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
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Title: President
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Schedule I
Stockholders Agreement
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Metromedia Company 7,989,206
Xxxx X. Xxxxx 2,605,449
Xxxxxx Xxxxxxxxx 231,225
Met Tellcell, Inc. 4,426,249
