JOINT TENDER OFFER AGREEMENT
Exhibit
(d)(7)
THIS JOINT TENDER OFFER AGREEMENT (this “Agreement”) is made as of January
17, 2008 (the “Effective Date”), by and between MGM MIRAGE, a Delaware corporation (the
“Company”), and Infinity World (Cayman) L.P., a Cayman Islands exempted limited partnership
(“Infinity World”).
RECITALS
WHEREAS, on January 16, 2008, the Company and Infinity World’s indirect parent, Dubai World, a
Dubai, United Arab Emirates government decree entity (“Dubai World”), issued a press
release announcing that they intend to make a joint public tender offer (the “Tender
Offer”) pursuant to an Offer to Purchase and related Letter of Transmittal and other
documentation (together with the Schedule TO (as defined below), as such documentation may be
amended and supplemented, the “Offer Documents”) to purchase up to Fifteen Million
(15,000,000) shares of common stock, par value $.01 per share, of the Company (the “Common
Stock”), at a price of Eighty Dollars ($80.00) per share of Common Stock in cash (the
“Offer Price”), on the terms and conditions to be set forth in the Offer Documents;
WHEREAS, the joint bidders in the Tender Offer will be the Company and Infinity World; and
WHEREAS, pursuant to the terms and conditions of this Agreement, the Company and Infinity
World have agreed to jointly commence the Tender Offer.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises
and covenants hereinafter set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. TENDER OFFER
1.1 Commencement of Tender Offer. Subject to the terms and conditions of this Agreement, the
Company and Infinity World shall commence the Tender Offer, as promptly as practicable after the
Effective Date.
1.2 Conduct of Tender Offer. The several obligation of the Company and Infinity World to
accept for payment and pay for shares of Common Stock tendered pursuant to the Tender Offer shall
be subject to the conditions set forth in the Offer Documents. Neither the Company nor Infinity
World shall take any of the following actions, or announce that it is taking any of the following
actions, without the prior written consent of the other party, which consent shall not be
unreasonably withheld, conditioned or delayed:
(a) Increase or decrease the Offer Price, or change the form of consideration in the Tender
Offer;
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(b) Increase the number of shares of Common Stock to be purchased in the Tender Offer by more
than two percent (2%) of the number of outstanding shares of Common Stock as of the date of such
increase;
(c) Decrease the number of shares of Common Stock offered to be purchased in the Tender Offer;
(d) Extend the Tender Offer period beyond the initial expiration date of twenty (20) business
days following the commencement of the Tender Offer, or extend the Tender Offer period beyond the
expiration date in effect after any extensions which may have been approved after the commencement
of the Tender Offer in accordance with this Agreement; or
(e) Terminate the Tender Offer prior to the scheduled expiration date.
1.3 SEC Filings. As soon as reasonably practicable after the date hereof, the Company and
Infinity World shall file with the United States Securities and Exchange Commission (the
“SEC”) a single, joint Tender Offer Statement on Schedule TO (together with all amendments
thereto, the “Schedule TO”), and shall commence the Tender Offer on the date of such
filing. Each of the Company and Infinity World agrees that the Schedule TO and the other Offer
Documents, on the date filed with the SEC and on the date first published, sent or given to the
Company’s stockholders, will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not misleading, except that no
representation is made by Infinity World or any of its Affiliates with respect to written
information supplied by the Company specifically for inclusion in the Schedule TO or the other
Offer Documents (or any document incorporated by reference in the Schedule TO or the other Offer
Documents) and no representation is made by the Company with respect to written information
supplied by Infinity World or any of its Affiliates specifically for inclusion in the Schedule TO
or the other Offer Documents. Each of the Company and Infinity World further agrees to take all
steps necessary to cause the Offer Documents to be filed with the SEC and to be disseminated to the
Company’s stockholders, in each case as and to the extent required by applicable federal securities
laws. Each of the Company and Infinity World agrees promptly to correct or supplement any
information provided by it or any of its Affiliates for use in the Schedule TO and the other Offer
Documents if and to the extent that it shall have become false and misleading in any material
respect, and each of the Company and Infinity World further agrees to take all steps necessary to
cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to the
Company’s stockholders, in each case as and to the extent required by applicable federal securities
laws. Each of the Company and Infinity World and their respective counsel shall be given a
reasonable opportunity to review the Schedule TO and the other Offer Documents prior to their
filing with the SEC or dissemination to stockholders of the Company. In addition, Infinity World,
on the one hand, and the Company, on the other hand, agree to provide the other and their
respective counsel with any comments or other communications that either party or their counsel may
receive from time to time from the SEC or its staff with respect to the Tender Offer or the Offer
Documents promptly after the receipt of such comments or other communications.
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2. EXPENSES. Except as specifically provided herein, the Company shall bear sixty percent
(60%) and Infinity World shall bear forty percent (40%) of all expenses, other than legal and
accounting fees and expenses, incurred in connection with the Tender Offer, including but not
limited to SEC filing fees, and expenses and fees of financial printers, information agents and
depositaries (collectively, the “Joint Expenses”). Each of the Company and Infinity World
shall bear its own legal and accounting fees and expenses incurred in connection with this
Agreement and the Tender Offer. The Company acknowledges and agrees that the Joint Expenses shall
not include the compensation of regular employees of the Company, which shall be paid in any event
by the Company.
3. MUTUAL INDEMNIFICATION.
3.1 Company Indemnification. To the extent permitted by law, the Company will indemnify and
hold harmless Infinity World and its Affiliates and each Person, if any, who controls (within the
meaning of the Securities Act, as defined below) Infinity World or any of its Affiliates against
any losses, claims, damages, actions, proceedings, causes of action, obligations, penalties, fees,
demands, assessments, settlements, judgments, liabilities, costs and expenses (the
“Losses”) (joint or several) to which any of the foregoing Persons may become subject,
under the Securities Act of 1933, as amended (the “Securities Act”), the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) or other federal or state law,
insofar as such Losses (or actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations: (i) any untrue statement or alleged untrue statement
of a material fact contained in the Schedule TO or the other Offer Documents or any exhibits or any
amendments or supplements thereto, or any document incorporated by reference therein; (ii) the
omission or alleged omission to state therein a material fact (other than any fact pertaining to
Infinity World or any of its Affiliates) required to be stated in the Schedule TO or the other
Offer Documents or any exhibits or any amendments or supplements thereto, or any document
incorporated by reference therein, or necessary to make the statements therein not misleading; or
(iii) any violation or alleged violation by the Company of the Securities Act, the Exchange Act,
any state securities law or any rule or regulation promulgated under the Securities Act, the
Exchange Act or any state securities law; and the Company will pay to Infinity World and its
Affiliates and each Person, if any, who controls Infinity World (or any of its Affiliates) within
the meaning of the Securities Act any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such Losses or action; provided,
however, that the Company shall not be liable in any such case for any such Losses or
action to the extent that it arises out of or is based upon a violation which occurs in reliance
upon and in conformity with written information furnished expressly for use in connection with the
Tender Offer (including information incorporated by reference to any filings made by Infinity World
or its Affiliates with the SEC) by Infinity World or any of its Affiliates.
3.2 Infinity World Indemnification. To the extent permitted by law, Infinity World will
indemnify and hold harmless the Company and its Affiliates and each Person, if any, who controls
(within the meaning of the Securities Act) the Company against any Losses (joint or several) to
which any of the foregoing Persons may become subject, under the Securities Act, the Exchange Act
or other federal or state law, insofar as such Losses (or actions in respect thereof) arise out of
or are based upon any of the following statements, omissions or violations: (i) any untrue
statement or alleged untrue statement of a material fact contained in the Schedule
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TO or the other Offer Documents or any exhibits or any amendments or supplements thereto, or
any document incorporated by reference therein which occurs in reliance upon and in conformity with
written information furnished by Infinity World or any of its Affiliates expressly for use in
connection with the Tender Offer (including information incorporated by reference to any filings
made by Infinity World or its Affiliates with the SEC); (ii) the omission or alleged omission to
state therein a material fact pertaining to Infinity World or any of its Affiliates required to be
stated in the Schedule TO or the other Offer Documents or any exhibits or any amendments or
supplements thereto, or any document incorporated by reference therein, or necessary to make the
statements therein not misleading; or (iii) any violation or alleged violation by Infinity World of
the Securities Act, the Exchange Act, any state securities law or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state securities law; and Infinity
World will pay to the Company and its Affiliates and each Person, if any, who controls the Company
(or any of its Affiliates) within the meaning of the Securities Act any legal or other expenses
reasonably incurred by them in connection with investigating or defending any such Losses or
action; and provided, however, that, in no event shall any indemnity under this
Section 3.2 exceed an amount equal to the product of the Offer Price and the number of shares
purchased by Infinity World pursuant to the Tender Offer.
3.3 Indemnification Notice. Promptly after receipt by any Person entitled to seek
indemnification pursuant to Sections 3.1 or 3.2 (an “Indemnified Party”) of notice of the
commencement of any action (including any governmental action), such Indemnified Party shall, if a
claim in respect thereof is to be made against any party hereto required to provide indemnification
pursuant to Sections 3.1 or 3.2 (an “Indemnifying Party”), deliver to the Indemnifying
Party a written notice of the commencement thereof and the Indemnifying Party shall have the right
to participate in and, to the extent the Indemnifying Party so desires, jointly with any other
Indemnifying Party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an Indemnified Party (together
with all other Indemnified Parties which may be represented without conflict by one counsel) shall
have the right to retain one separate counsel, with the fees and expenses to be paid by the
Indemnifying Party, if representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing interests between
such Indemnified Party and any other party represented by such counsel in such proceeding. The
failure to deliver written notice to the Indemnifying Party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such action, shall relieve
such Indemnifying Party of any liability to the Indemnified Party under this Section 3, but the
omission to deliver written notice to the Indemnifying Party will not relieve it of any liability
that it may have to any Indemnified Party otherwise than under this Section 3.
3.4 Contribution. If the indemnification provided for in this Section 3 is held by a court of
competent jurisdiction to be unavailable to an Indemnified Party with respect to any Losses
referred to therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of
such Losses in such proportion as is appropriate to reflect the relative fault of the Indemnifying
Party on the one hand and of the Indemnified Party on the other in connection with the statements
or omissions that resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of the Indemnifying Party and of the Indemnified Party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
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statement of a material fact or the omission to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties’ relative intent,
knowledge, access to information, and opportunity to correct or prevent such statement or omission.
The amount paid or payable by an Indemnified Party as a result of the Losses or action in respect
thereof, referred to above in this Section 3.4 shall be deemed to include, for purposes of this
Section 3.4, any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
3.5 Survival. The obligations of the Company and Infinity World under this Section 3 shall
survive the completion of the Tender Offer.
4. MISCELLANEOUS.
4.1 Successors and Assigns. Except as otherwise provided herein, the terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon
any party other than the parties hereto or their respective successors and assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties, except that Infinity World may (a) assign,
in its sole discretion, all (but not less than all) of its rights and interests hereunder to any of
its Affiliates, and (b) grant a security interest in or otherwise pledge any or all of its rights
and interests hereunder in favor of one or more institutional financing sources. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the parties and their respective successors and assigns.
4.2 Notices. Unless otherwise provided herein, any notice, request, waiver, instruction,
consent or document or other communication required or permitted to be given by this Agreement
shall be effective only if it is in writing and (i) delivered by hand or sent by certified mail,
return receipt requested, (ii) if sent by a nationally-recognized overnight delivery service with
delivery confirmed, or (iii) if telexed or telecopied (or other similar electronic means), with
receipt confirmed as follows:
Company:
|
MGM MIRAGE | |
| 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx | ||
| Xxx Xxxxx, Xxxxxx 00000 | ||
| Attention: Xxxxx X. Xxxxxx | ||
| Facsimile: (000) 000-0000 |
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with a copy to:
|
Christensen, Glaser, Fink, Jacobs, Weil & | |
| Xxxxxxx, LLP | ||
| 00000 Xxxxxxxxxxxxx Xxxxxxxxx | ||
| Xxxxx 0000 | ||
| Xxx Xxxxxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxxxx X. XxXxxxx, Esq. | ||
| Facsimile: (000) 000-0000 | ||
Infinity World:
|
Infinity World (Cayman) L.P. | |
| c/o Dubai World | ||
| Emirates Towers, Xxxxx 00 | ||
| Xxxxxx Xxxxx Xxxx | ||
| Xxxxx Xxxxxx Xxxx Xxxxxxxx | ||
| Attention: Xxxxx Xxxxx X. Xxxxx Al Ulama | ||
| Facsimile: 971 439 03810 | ||
with a copy to:
|
Xxxxxx X. Xxxxxxx, Esq. | |
| Paul, Hastings, Xxxxxxxx & Xxxxxx LLP | ||
| Park Avenue Tower | ||
| 00 Xxxx 00xx Xxxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
| Facsimile: (000) 000-0000 |
The parties shall promptly notify each other of any change in their respective addresses or
facsimile numbers or of the individual or entity or office to receive notices, requests or other
communications under this Section 4.2. Notice shall be deemed to have been given as of the date
when so personally delivered, when physically delivered by the U.S. Postal Service at the proper
address, the next day when delivered during business hours to an overnight delivery service
properly addressed or when receipt of a telex or telecopy is confirmed, as the case may be, unless
the sending party has actual knowledge that such notice was not received by the intended recipient
4.3 Expenses. If any action at law or in equity is necessary to enforce or interpret the terms
of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and
necessary disbursements in addition to any other relief to which such party may be entitled.
4.4 Amendments and Waivers. This Agreement may not be amended or supplemented, unless set
forth in a writing signed by each party hereto. Except as otherwise permitted in this Agreement,
the terms or conditions of this Agreement may not be waived unless set forth in a writing signed by
the party entitled to the benefits thereof. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of such provision at any time in the future or a
waiver of any other provision hereof. The rights and remedies of the parties hereto are cumulative
and not alternative. Except as otherwise provided in this Agreement, neither the failure nor any
delay by any party hereto in exercising any right, power or privilege under this Agreement will
operate as a waiver of such right, power or privilege, and
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no single or partial exercise of any such right, power or privilege will preclude any other or
further exercise of such right, power or privilege or the exercise of any other right, power or
privilege.
4.5 Severability. Any term or provision of this Agreement that is held by a court of competent
jurisdiction or other authority to be invalid, void or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in any other situation
or in any other jurisdiction. If the final judgment of a court of competent jurisdiction or other
authority declares that any term or provision hereof is invalid, void or unenforceable, the parties
agree that the court making such determination shall have the power to reduce the scope, duration,
area or applicability of the term or provision, to delete specific words or phrases, or to replace
any invalid, void or unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or unenforceable term
or provision.
4.6 Governing Law. This Agreement shall be governed by the laws of the State of Delaware,
without regard to conflict of laws principles.
4.7 Choice of Venue. The parties agree that any actions or other proceedings arising out of or
relating to this Agreement shall be brought by the parties and held and determined only in a
Delaware state court or a federal court sitting in that state which shall be the exclusive venue of
any such action or proceeding. Each party waives any objection which such party may now or
hereafter have to the laying of venue of any such action or proceeding, and irrevocably consents
and submits to the jurisdiction of such court (and the appropriate appellate courts) in any such
action or proceeding. Any and all service of process and any other notice in any such action or
proceeding shall be effective against such party when transmitted in accordance with subsection (i)
of Section 4.2. Nothing contained herein shall be deemed to affect the right of any Party to serve
process in any manner permitted by applicable laws.
4.8 Entire Agreement. This Agreement constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof.
4.9 Counterparts. This Agreement may be executed in two or more counterparts (including by
facsimile or similar means of electronic communication), each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
4.10 Specific Performance. Infinity World and the Company each agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not performed by them in
accordance with the terms hereof and that each party shall be entitled to specific performance of
the terms hereof, in addition to any other remedy at law or equity. Each party hereto expressly
waives any requirement that any other party hereto obtain any bond or provide any indemnity in
connection with any action seeking injunctive relief or specific enforcement of the provisions of
this Agreement.
4.11 Limited Liability. In the event (i) there is any default or alleged default by the
Company under this Agreement, or (ii) Infinity World or the Company or any of their Affiliates
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has or may have any claim arising from or relating to the terms hereof, Infinity World shall
not, and shall cause its Affiliates not to, commence any lawsuit or proceeding (including
arbitration proceedings) or otherwise seek to impose any liability whatsoever against Xxxx
Xxxxxxxxx or the Majority Stockholder or any of their Affiliates other than the Company. Neither
Xxxx Xxxxxxxxx nor the Majority Stockholder shall have any liability whatsoever with respect to
this Agreement. Neither Infinity World nor the Company shall assert, or permit any party claiming
through Infinity World or the Company to assert, a claim or seek to impose any liability against
either Xxxx Xxxxxxxxx or Majority Stockholder or any of their Affiliates (other than the Company),
either collectively or individually, as to any matter or thing arising out of or relating to this
Agreement. Neither Xxxx Xxxxxxxxx nor the Majority Stockholder or any of their Affiliates (other
than the Company), individually or collectively, is a party to this Agreement or is liable for any
alleged breach or default of this Agreement by the Company. It is expressly understood and agreed
that this provision shall have no force and effect with respect to any document or agreement as to
which Xxxx Xxxxxxxxx, the Majority Stockholder and any of their Affiliates is a party with Infinity
World or its Affiliates, except as set forth in such other agreement.
4.12 Definitions. For purposes of this Agreement:
(a) “Affiliate” is a Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control with, the person
specified. Without limiting the generality of the foregoing, Dubai World shall be considered an
Affiliate of Infinity World for all purposes of this Agreement. In addition, none of Infinity
World, Dubai World or any Affiliate thereof shall be considered an Affiliate of the Company for all
purposes of this Agreement.
(b) “Majority Stockholder” means Tracinda Corporation, its sole shareholder and any
successor to Tracinda Corporation wholly owned by the sole shareholder of Tracinda Corporation.
(c) “Person” means a natural person, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association, joint venture,
governmental entity or other entity or organization.
[Signature page follows]
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IN WITNESS WHEREOF, the parties have executed this JOINT TENDER OFFER AGREEMENT as of
the date first written above.
| MGM MIRAGE |
|||||
| /s/ Xxxxx X. Xxxxxx | |||||
| Name: | Xxxxx X. Xxxxxx | ||||
| Title: | Senior Vice President, Assistant General Counsel and Assistant Secretary |
||||
[Signature Page to the Joint Tender Offer Agreement]
| INFINITY WORLD (CAYMAN) L.P. |
||||
| By: | Infinity World (Cayman) Holding, its General Partner | |||
| /s/ Xxxxx Xxxxx X. Xxxxx Al Ulama | ||||
| Name: | Xxxxx Xxxxx X. Xxxxx Al Ulama | |||
| Title: | Secretary | |||
[Signature Page to the Joint Tender Offer Agreement]
