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STOCK PURCHASE AGREEMENT
BY AND BETWEEN
SEVEN NETWORK LIMITED
AND
TRACINDA CORPORATION
AUGUST 19, 1998
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STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into as of August 19, 1998 by and
among Seven Network Limited, a company formed under the laws of Australia
(the "Seller"), and Tracinda Corporation, a Nevada corporation (the
"Purchaser").
WHEREAS the Seller owns 16,208,463 shares of Common Stock of
Metro-Xxxxxxx-Xxxxx, Inc., a Delaware Corporation (the "Company"), par
value $.01 per share (the "Shares"); and
WHEREAS the Purchaser desires to purchase from the Seller, and the
Seller desires to sell to the Purchaser, all of the Shares pursuant to the
terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES;
STOCK PURCHASE PRICE; CLOSING
Section 1.1 Purchase and Sale of Shares. On the terms and subject to
the conditions set forth herein, on the Closing Date, the Seller shall
sell, assign, transfer, convey and deliver to the Purchaser, and the
Purchaser shall purchase, acquire and accept, all of the Shares. At the
Closing, the Seller shall deliver to the Purchaser certificates
representing the Shares duly endorsed for transfer by the Company or
accompanied by duly executed stock powers in blank, which shall be
satisfactory in form and substance to the Purchaser.
Section 1.2 Purchase Price for Shares. On the Closing Date, the
Purchaser shall acquire title to and possession of the Shares in
consideration of the sum of Three Hundred Eighty Nine Million Three
Thousand One Hundred Twelve Dollars ($389,003,112) (the "Purchase Price").
On the Closing Date, the Purchaser shall deliver to the Seller, by wire
transfer of immediately available funds to an account identified by the
Seller two (2) business days before the Closing, an amount equal to the
Purchase Price.
Section 1.3 Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place as soon as is reasonably
practicable after the execution of this Agreement on a date mutually agreed
upon by the Seller and the Purchaser, and in no event after 11:30 a.m. (Los
Angeles time) on September 1, 1998, at the offices of Fried, Frank, Harris,
Xxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, or at
such other place as shall be mutually agreed upon by the Seller and the
Purchaser. The day on which the Closing actually takes place is referred to
herein as the "Closing Date."
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller makes the following representations and warranties to the
Purchaser, each of which is true and correct on the date hereof.
Section 2.1 Title to Shares. The Seller, through its indirect wholly
owned subsidiary, Miltonstar Pty Limited ("Miltonstar"), has (subject to
the options granted to Celsus Financial Corp., a Texas Corporation
("Celsus"), pursuant to a Stock Option Agreement by and between Miltonstar
and Celsus (the "Seven-Celsus Option"), which options shall be terminated
simultaneously with the execution of this Agreement and shall be of no
further force and effect), and on the Closing Date shall deliver to the
Purchaser, legal and beneficial ownership of, good and marketable title to,
and all rights to vote, all of the Shares, free and clear of any and all
covenants, conditions, restrictions, voting restrictions or trust
arrangements, security interests, liens, charges, encumbrances, options and
adverse or equitable claims or rights whatsoever.
Section 2.2 Organization; Power to Transfer; Binding Authority. The
Seller is a company validly existing and in good standing under the laws of
Australia with full power and authority to execute and deliver this
Agreement and all other agreements herein contemplated to be executed by
the Seller, to perform its obligations hereunder and thereunder, to
consummate the transactions contemplated hereby and thereby and to sell,
assign, transfer, and deliver the Shares to the Purchaser pursuant to the
provisions of this Agreement. This Agreement and all other agreements
herein contemplated to be executed by the Seller have been duly executed
and delivered by the Seller, have been effectively authorized by all
necessary action, corporate or otherwise, and constitute the legal, valid
and binding obligations of the Seller, enforceable against the Seller in
accordance with their respective terms except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium, reorganization or
other similar laws affecting creditors rights generally or by general
principles of equity regardless of whether asserted in equity or at law.
Except for approval of the Seller's board of directors, which will be
obtained by August 21, 1998, no proceedings on the part of the Seller are
necessary to approve the execution and delivery of, or to authorize the
transactions contemplated by, this Agreement.
Section 2.3 No Conflicts. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and the
fulfillment of and compliance with the terms and conditions hereof, do not
and will not: (a) violate any judicial or administrative order, award,
judgment, decree (including a consent decree), license or permit that is
applicable to the Seller; (b) conflict with any terms, conditions or
provisions of the charter documents of the Seller; (c) require the
approval, consent, authorization or action of, or filing or registration
with, any person, entity or governmental authority other than any consent
that may be required pursuant to the Investors Shareholder Agreement, dated
August 4, 1997, as amended, by and among the Company, the Seller, the
Purchaser and the parties named therein (the "Investors Shareholder
Agreement") and the Shareholders Agreement, dated August 4, 1997, by and
among the Company, the Seller, the Purchaser, and the parties named therein
(the "Shareholders Agreement"); (d) result in a termination or breach of,
or constitute a default under or accelerate or permit the acceleration of
any performance required by any agreement or instrument to which the Seller
is a party or by which the Seller is bound; (e) result in the creation of
any lien, charge or encumbrance upon any of the capital stock, assets or
property of the Seller; or (f) violate any applicable laws, statutes,
ordinances, or regulations.
Section 2.4 Options. None of the Seller, Xxxxx X. Xxxxxx, Xxxxxxx X.
Xxxxxxx, Culmen Group, L.P., a Texas limited partnership, Celsus, or any
other affiliate, advisor or representative of the Seller has any options,
subscriptions, warrants, commitments, stock-based or stock-related awards,
convertible or exchangeable securities, preemptive rights or other rights
to purchase any securities of, or any other interest in, the Company (other
than options to purchase shares of the Company held by Celsus pursuant to
the Seven-Celsus Option and pursuant to the Amended and Restated Stock
Option Agreement by and between Celsus and the Company).
Section 2.5 Shareholder Rights. Other than rights pursuant to the
Investors Shareholder Agreement and the Shareholders Agreement, which the
Seller agrees shall terminate upon the Closing, the Seller has no interests
or rights in connection with the Company's capital stock, including without
limitation, rights pursuant to a proxy, voting agreement, voting trust or
stockholders' agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller as follows:
Section 3.1 Organization. The Purchaser is a corporation validly
existing and in good standing under the laws of the State of Nevada.
Section 3.2 Authorization of Agreement; Enforceability. The Purchaser
has all requisite corporate power and authority to enter into this
Agreement and to perform all the obligations to be performed by it
hereunder. This Agreement has been duly executed and delivered by the
Purchaser, has been effectively authorized by all necessary action,
corporate or otherwise, and constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or other
similar laws affecting creditors rights generally or by general principles
of equity regardless of whether asserted in equity or at law. No
proceedings on the part of the Purchaser are necessary to approve the
execution and delivery of, or to authorize the transactions contemplated
by, this Agreement.
Section 3.3 No Conflicts. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby and the
fulfillment of and compliance with the terms and conditions hereof, do not
and will not: (a) violate any judicial or administrative order, award,
judgment, decree (including a consent decree), license or permit that is
applicable to the Purchaser; (b) conflict with any terms, conditions or
provisions of the charter documents of the Purchaser; (c) require the
approval, consent, authorization or action of, or filing or registration
with, any person, entity or governmental authority other than any consent
that may be required pursuant to the Investors Shareholder Agreement and
the Shareholders Agreement; (d) result in a termination or breach of, or
constitute a default under or accelerate or permit the acceleration of any
performance required by any agreement or instrument to which the Seller is
a party or by which the Purchaser is bound; (e) result in the creation of
any lien, charge or encumbrance upon any of the capital stock, assets or
property of the Purchaser; or (f) violate any federal or state laws,
statutes, ordinances, or regulations.
ARTICLE IV
COVENANTS
Section 4.1 Resignations. At or prior to the Closing, the Seller shall
cause Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx to deliver letters of
resignation from the Board of Directors of the Company, any subsidiary
boards or committees of the Company and all other offices and positions
held with the Company or any subsidiary of the Company.
Section 4.2 Termination of Options. At or prior to the Closing, the
Seller shall cause Celsus to deliver to the Purchaser in form and substance
reasonably satisfactory to the Purchaser an executed termination of the
Seven-Celsus Option.
Section 4.3 Termination of Shareholder Rights. If reasonably requested
by the Purchaser, the Seller will execute and deliver at or prior to the
Closing, an instrument terminating its rights under the Investors
Shareholder Agreement and the Shareholders Agreement.
ARTICLE V
CLOSING CONDITIONS
Section 5.1 Conditions to Obligations of the Purchaser. The
obligations of the Purchaser under this Agreement to consummate the
transactions contemplated hereby are, at its option, subject to the
conditions precedent set forth below:
(a) Accuracy of Representations and Warranties. All
representations and warranties of the Seller herein contained shall have
been true and correct in all material respects when made, and shall be true
and correct in all material respects with the same force and effect as
though made again on, at and as of the Closing Date.
(b) Performance of Agreements. The Seller shall have performed
all obligations and agreements and complied with all covenants and
conditions contained in this Agreement to be performed and complied with by
it at or prior to the Closing Date, in each case in all material respects.
(c) Legal Opinion. The Seller shall have delivered to the
Purchaser, in a form reasonably acceptable to the Purchaser, a legal
opinion from Xxxxx, Xxxx & Xxxxxxx that at the Closing, the Purchaser shall
take all of the Shares, free and clear of any and all adverse claims
whatsoever.
Section 5.2 Conditions to Obligations of the Seller. The obligations
of the Seller under this Agreement to consummate the transactions
contemplated hereby are, at its option, subject to the conditions precedent
set forth below:
(a) Accuracy of Representations and Warranties. All
representations and warranties of the Purchaser herein contained shall have
been true and correct in all material respects when made, and shall be true
and correct in all material respects with the same force and effect as
though made again on, at and as of the Closing Date.
(b) Performance of Agreements. The Purchaser shall have performed
all obligations and agreements and complied with all covenants and
conditions contained in this Agreement to be performed and complied with by
it at or prior to the Closing Date, in each case in all material respects.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Mutual Release. Effective at the Closing, each party to
this Agreement fully and unconditionally releases and discharges all claims
and causes of action, whether known or unknown, which it or its officers,
directors, employees, shareholders, partners, affiliates, successors or
assigns ever had, now have, or hereafter may have, against each other party
hereto, including without limitation its officers, directors, employees,
shareholders, partners, affiliates, representatives, advisors, successors
and assigns, on account of any matter, act or occurrence relating to the
Shares, except claims or causes of action arising out of or relating to any
breach of this Agreement.
Each party further acknowledges that it is its intention in the
execution of this general release that the same shall be effective as a bar
to each and every claim hereinabove specified; and in furtherance of this
intention, it hereby expressly waives any and all rights and benefits
conferred upon it by Section 1542 of the California Civil Code, which
provides:
1542. General Release: Extent.
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the time of
executing the Release, which if known by him must have materially
affected his settlement with the debtor.
Section 6.2 Notices. All notices, consents, approvals, waivers and
other communications hereunder shall be in writing and shall be deemed to
have been duly given when delivered in person, or one (1) business day
after transmission by telecopier, or two (2) business days after delivery
(prepaid) to any commercial overnight courier, or five (5) business days
after being mailed certified or registered mail, or sent return receipt
requested, with postage prepaid addressed as follows:
If to the Seller:
Seven Network Limited
XXX0, Xxxxx Xxxx
Xxxxxx XXX 0000 Xxxxxxxxx
Attention: Xxxxx X. Xxxxxx
Telecopier No.: 011-61-2-9363-5363
With a copy to:
Xxxxx, Xxxx & Xxxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: F. Xxxxxxx Xxxxxxxx
Telecopier No. (000) 000-0000
If to the Purchaser:
Tracinda Corporation
000 X. Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
or to such other address as the parties may from time to time designate in
writing.
Section 6.3 Assignment. The Seller shall not assign this Agreement, or
any part hereof, by operation of law or otherwise, without the prior
written consent of the Purchaser. The Purchaser may assign the right to
purchase any or all of the Shares pursuant to this Agreement without the
Seller's consent; provided, however, that no such assignment shall release
the Purchaser from the obligation to pay the Purchase Price. Except as
otherwise provided herein, this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns.
Section 6.4 Waiver. Any waiver hereunder must be in writing, duly
authorized and signed by the party to be bound and shall be effective only
in the specific instance and for the purpose for which given. No failure or
delay on the part of the Seller or the Purchaser in exercising any right,
power or privilege under this Agreement shall operate as a waiver thereof
or of this Section 6.4, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
Section 6.5 Entire Agreement. This Agreement and the documents
furnished by the parties hereto in connection with the Closing constitute
the entire agreement among the parties hereto and supersede any other
agreement that may have been made or entered into by the Seller and the
Purchaser relating to the transactions contemplated by this Agreement.
There are no other agreements, commitments or understandings relating to
the subject matter hereof.
Section 6.6 Amendments. This Agreement may be amended or modified in
whole or in part only by a duly authorized written agreement that refers to
this Agreement and is signed by the parties hereto or by their duly
appointed representatives or successors.
Section 6.7 Captions. The captions in this Agreement are inserted for
convenience of reference only and shall not be considered a part of or
affect the construction or interpretation of any provision of this
Agreement.
Section 6.8 Counterparts. This Agreement may be executed in
counterparts and by facsimile signature, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. It shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.
Section 6.9 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State
of Delaware (without regard to conflict of laws principles which would
require the application of the laws of any other State). Each of the
parties hereto agrees that any legal action or proceeding with respect to
this Agreement may be brought in the Courts of the State of Delaware or the
United States District Court located in the State of Delaware and, by
execution and delivery of this Agreement, each party hereto hereby
irrevocably submits itself in respect of its property, generally and
unconditionally to the non-exclusive jurisdiction of the aforesaid courts
in any legal action or proceeding arising out of this Agreement. Each of
the parties hereto hereby irrevocably waives any objection which it may now
or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in
the courts referred to in the preceding sentence. Each party hereto hereby
consents to process being served in any such action or proceeding by the
mailing of a copy thereof to the address set forth in Section 6.2 hereof
and agrees that such service upon receipt shall constitute good and
sufficient service of process or notice thereof.
Section 6.10 Further Assurances. The parties hereto shall execute and
deliver such additional documents and shall take such additional actions as
may be reasonably necessary or appropriate to effect the provisions and
purposes of this Agreement and the consummation of the transactions
contemplated hereby.
Section 6.11 Severability. If any provision of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected, impaired or invalidated
thereby.
Section 6.12 Press Release. Promptly following the execution of this
Agreement, the parties will release a press release in Australia and the
United States in the form attached hereto as Exhibit A.
IN WITNESS WHEREOF, the Seller and the Purchaser have each caused this
Agreement to be duly executed as of the date first above written.
SEVEN NETWORK LIMITED
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Chairman
TRACINDA CORPORATION
By: /s/ Xxxxxx X. York
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Name: Xxxxxx X. York
Title: Vice Chairman
The undersigned, an indirect wholly owned subsidiary of Seven Network
Limited, hereby agrees to be bound by the terms of this Agreement to the
same extent as Seven Network Limited.
MILTONSTAR PTY LIMITED
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Director
EXHIBIT A
For Tracinda Corporation contact: For Seven Network contact:
--------------------------------- --------------------------
Xxx Xxxxxxx Xxxxx Xxxxxxx
(000) 000-0000 011-612-9877-7005
For Immediate Release
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Beverly Hills, California, August 19, 1998 - Tracinda Corporation
("Tracinda") and Seven Network ("Seven") jointly announced today that
Tracinda has agreed to purchase all of Seven's shares in
Metro-Xxxxxxx-Xxxxx, Inc. (MGM:NYSE) for a price of $24 per common share,
or an aggregate price of $389 million. The transaction will settle on
September 1, 1998. Seven Network's Chairman Xxxxx Xxxxxx and Seven's U.S.
representative Xxxxxxx Xxxxxxx will resign from the MGM Board of Directors
effective September 1, 1998.
"We have thoroughly enjoyed our relationship with Xxxx Xxxxxxxxx and MGM.
However, due to economic conditions in our region, we felt that our capital
could be much better employed in Australia. We will, of course, continue
our relationship with MGM through our existing output agreement". Xxxxx
Xxxxxx said. Seven has shown MGM product on free-to-air television in
Australia for nearly 40 years.
Xxxx Xxxxxxxxx said, "Seven has been a strong supporter of our efforts to
enhance the value of MGM over the past two years, and we are pleased that
their long-term relationship with MGM will continue".
XXXX
