EXHIBIT 10.28
WAIVER
AND
AMENDMENT NO. 1
TO
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
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This WAIVER AND AMENDMENT NO. 1 TO AMENDED AND RESTATED SHAREHOLDERS
AGREEMENT (this "Amendment") is made and entered into as of July ___, 1998 by
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and among METRO-XXXXXXX-XXXXX INC., a corporation organized under the laws of
the State of Delaware (the "Company"), SEVEN NETWORK LIMITED, a corporation
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organized under the laws of the Commonwealth of Australia ("Seven"); TRACINDA
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CORPORATION, a corporation organized under the laws of the State of Nevada
("Tracinda"); METRO-XXXXXXX-XXXXX STUDIOS INC., a corporation organized under
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the laws of the State of Delaware ("MGM Studios"); Xx. Xxxxx X. Xxxxxxx ("Mr.
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Xxxxxxx"), and the Persons listed on the signature pages hereto (Xx. Xxxxxxx and
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each such Person is herein referred to as an "Executive" and together as the
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"Executives"). Except as otherwise provided herein, capitalized terms used
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herein will have the meanings ascribed to them in the Shareholders Agreement (as
defined below).
W I T N E S S E T H
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WHEREAS, the Company, Seven, Tracinda, MGM Studios and each of the
Executives entered into that certain Amended and Restated Shareholders
Agreement, dated as of August 4, 1997 (the "Shareholders Agreement"), pursuant
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to which, among other things, Seven, Tracinda and each of the Executives were
granted certain registration rights with respect to the Common Stock of the
Company;
WHEREAS, the Company currently proposes to distribute to all holders
of the Common Stock, transferable subscription rights to subscribe for shares of
the Common Stock pursuant to a registration statement on Form S-1 (the "Rights
Offering");
WHEREAS, Section 5.4 of the Shareholders Agreement provides that the
Shareholders Agreement may be amended by an instrument in writing signed by or
on behalf of each of the parties thereto which, with respect to the Executives,
shall refer to the holders of a majority of the shares of capital stock of the
Company owned by the Executives and subject to the terms of the Shareholders
Agreement;
WHEREAS, the Executives currently hold an aggregate of ________ shares
of the Common Stock, which represent the only shares of capital stock of the
Company owned by the Executives that are subject to the Shareholders Agreement;
WHEREAS, Seven, Tracinda and each of the Executives party hereto now
desire to waive, with respect to the Rights Offering, any and all of their
respective rights of Piggyback Registration, including as provided by Section
4.2 of the Shareholders Agreement; and
WHEREAS, the Company, Seven, Tracinda, MGM Studios and each of the
Executives further desire to amend Section 4.2 of the Shareholders Agreement to
eliminate all rights of Piggyback Registration in connection with any future
distribution to all holders of the Common Stock of rights to purchase or
subscribe for securities of the Company.
NOW, THEREFORE, BE IT RESOLVED, that in consideration of the premises
herein contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT
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1. Each of Seven, Tracinda and the Executives hereby fully and
forever waives, with respect to the Rights Offering, any and all of its, his or
her respective rights of Piggyback Registration, including as provided by
Section 4.2 of the Shareholders Agreement.
2. Section 4.2(a) of the Shareholders Agreement is hereby amended and
restated in its entirety as follows:
"(a) Right to Piggyback. Whenever at anytime after the IPO
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Closing Date, the Company proposes to register any of its equity securities
under the Securities Act (other than (i) a registration on Form S-4 or Form
S-8 or any successor or similar forms or (ii) a registration in connection
with a pro-rata distribution to all holders of the Common Stock then
outstanding of rights to purchase or subscribe for shares of the Common
Stock or securities convertible into, exchangeable for or exercisable for
the purchase of shares of the Common Stock) and the registration form to be
used may be used for the registration of Registrable Securities (a
"Piggyback Registration"), whether or not for sale for its own account, the
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Company will give prompt written notice to each of Tracinda, Seven and the
Executives of its intention to effect such a registration and the class or
classes of equity securities of the Company to be registered and will
include in such registration all Registrable Securities of the same class
or classes with respect to which the Company has received written requests
for inclusion therein within 20 days after the receipt of the notice from
the Company.
3. Except as amended hereby, the Shareholders Agreement shall
continue in full force and effect.
4. This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
Each counterpart may consist of a number of copies of this Agreement, each of
which may be signed by less than all of the parties hereto, but together all
such copies are signed by all of the parties hereto. This Agreement shall
become effective at such time as it has been executed by the Company, MGM
Studios,
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Seven, Tracinda and the holders of a majority of the shares of capital stock of
the Company owned by the Executives and subject to the terms of the Shareholders
Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement and caused the
same to be duly delivered on their behalf as of the day and year first written
above.
SEVEN NETWORK LIMITED
By: ____________________________________
Name:
Title:
TRACINDA CORPORATION
By: ____________________________________
Name:
Title:
METRO-XXXXXXX-XXXXX STUDIOS INC.
By: ____________________________________
Name:
Title:
METRO-XXXXXXX-XXXXX INC.
By: ____________________________________
Name:
Title:
________________________________________
Xxxxx X. Xxxxxxx
Number of shares of the
Common Stock owned: ________________
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OTHER EXECUTIVES SIGNATURE PAGE:
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______________________________________
Name: ____________________
Number of shares of the
Common Stock owned: ______________
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: ________________________________
Name:
Title:
