EXHIBIT 10.25
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FORM OF
AMENDED AND RESTATED INVESTORS SHAREHOLDER AGREEMENT
by and among
SEVEN NETWORK LIMITED
TRACINDA CORPORATION
METRO-XXXXXXX-XXXXX STUDIOS INC.
METRO-XXXXXXX-XXXXX INC.
and
XXXXX X. XXXXXXX
Dated as of August 4, 1997
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS..................................................... 1
Section 1.1. Definitions...................................... 1
ARTICLE II REPRESENTATIONS AND WARRANTIES................................. 4
Section 2.1. Representations and Warranties of the Company.... 4
Section 2.2. Representations and Warranties of Seven.......... 4
Section 2.3. Representations and Warranties of Tracinda....... 4
Section 2.4. Representations and Warranties of MGM Studios.... 5
ARTICLE III CORPORATE GOVERNANCE; CERTAIN CORPORATE ACTIONS............... 5
Section 3.1. Voting of Shares................................. 5
Section 3.2. Composition of the Board of Directors of the
Company and MGM Studios and the Committees
Thereof........................................ 6
Section 3.3. Approval of Certain Matters...................... 9
ARTICLE IV FIRST REFUSAL................................................. 10
Section 4.1. First Refusal.................................... 10
Section 4.2. Legend........................................... 12
ARTICLE V PREEMPTIVE RIGHTS............................................... 12
Section 5.1. Certain Pre-emptive Rights....................... 12
ARTICLE VI BUSINESS; CERTIFICATE OF INCORPORATION AND BYLAWS.............. 14
Section 6.1. Entertainment Business........................... 14
Section 6.2. Certificate of Incorporation and By-laws......... 14
Section 6.3 Conversion of Preferred Stock..................... 14
ARTICLE VII GENERAL PROVISIONS............................................ 14
Section 7.1. Notices.......................................... 14
Section 7.2. Assignment; Binding Effect; Benefit; Successors.. 16
Section 7.3. Entire Agreement................................. 17
Section 7.4. Amendment........................................ 17
Section 7.5. Governing Law.................................... 17
Section 7.6. Counterparts; Effective Date..................... 17
Section 7.7. Headings......................................... 17
Section 7.8. Interpretation................................... 17
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Section 7.9. Severability...................................... 18
Section 7.10. Enforcement of Agreement......................... 18
Section 7.11. Certain Rights................................... 18
Section 7.12. Termination of Original Investors Shareholder
Agreement...................................... 18
Section 7.13. Antidilution Adjustment.......................... 18
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AMENDED AND RESTATED INVESTORS
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SHAREHOLDER AGREEMENT
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THIS AMENDED AND RESTATED INVESTORS SHAREHOLDER AGREEMENT, dated as of
August 4, 1997 (this "Agreement"), by and among SEVEN NETWORK LIMITED, a
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corporation organized under the laws of the Commonwealth of Australia ("Seven");
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TRACINDA CORPORATION, a corporation organized under the laws of the State of
Nevada ("Tracinda"); METRO-XXXXXXX-XXXXX INC., a corporation organized under the
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laws of the state of Delaware and formerly known as P&F Acquisition Corp. (the
"Company"); METRO-XXXXXXX-XXXXX STUDIOS INC., a corporation organized under the
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laws of the State of Delaware and formerly known as Metro-Xxxxxxx-Xxxxx Inc.
("MGM Studios"); and XXXXX X. XXXXXXX ("Xx. Xxxxxxx"), amends and supersedes
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that certain Investors Shareholder Agreement, dated as of October 16, 1996, by
and among Seven, the Company, Tracinda, MGM Studios and Xx. Xxxxxxx (the
"Original Investors Shareholder Agreement").
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A. The Company intends to commence with an Approved Initial Public
Offering (as defined below) of the Common Stock (as defined below) of the
Company and to enter into certain related transactions.
B. The parties hereto have agreed to enter into this Agreement for
the purpose of amending and restating in its entirety the provisions of the
Original Investors Shareholder Agreement as provided herein.
Accordingly, for due and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
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"Affiliate": of any Person, means (i) any other Person controlling,
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controlled by or under common control with such Person, (ii) any director or
executive officer of such Person or of any Affiliate of such Person and (iii)
any family member of any director or executive officer of such Person or any
director or executive officer of any Affiliate of such Person.
"Agreement": as defined in the preamble to this Agreement.
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"Antidilution Adjustment": as defined in Section 7.13.
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"Approved Initial Public Offering": shall mean an offering of Common
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Stock of the Company to the public through a syndicate of underwriters co-
managed by Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx, Inc. and X. X. Xxxxxx
Securities, Inc. and others (with Xxxxxxx Xxxxx Xxxxxx Xxxxxx & Xxxxx, Inc.
acting as book running manager) pursuant to an effective registration statement
under the Securities Act by the Company (other than in connection with any
employee
benefit plan maintained by the Company or any corporation controlled by it)
provided that the following conditions are met:
(i) the initial public offering price of such shares of Common Stock
(before deduction of underwriters' discounts and commissions and the out-of-
pocket expenses of the Company incurred in connection therewith) shall be not
less than the sum of $1,000 per share of Common Stock plus the Carrying Cost
Factor Amount Per Share;
(ii) the aggregate initial offering price of all such shares so sold
in such public offering (before deduction of underwriters' discounts and
commissions and the out-of-pocket expenses of the Company incurred in connection
therewith) shall be not less than $250 million nor more than $450 million; and
(iii) the underwriters shall not have been granted an over-allotment
option to purchase more than 15% of the shares of Common Stock initially sold to
the underwriters at a price equal to the initial public offering price and such
over-allotment option shall only be exercisable within 30 days after the IPO
Closing.
"Carrying Cost Factor Amount Per Share": shall mean the quotient (rounded
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to the nearest $0.25) which results when:
(i) the sum of (A) an amount calculated like interest at the rate of
8% per annum on the sum of $900 million from October 10, 1996 to the IPO Closing
Date, plus (B) an amount calculated like interest at the rate of 8% per annum on
the sum of $360 million from July 10, 1997 to the IPO Closing Date;
is divided by
(ii) 1,260,000 shares of Common Stock;
provided, however, that the parties hereto acknowledge and agree that in
connection with an Approved Initial Public Offering it will be necessary to
adjust the number of shares of Common Stock outstanding through a stock split or
other similar device, and in such event the foregoing amounts per share of
Common Stock shall be appropriately adjusted to give effect thereto.
"Commission": the Securities and Exchange Commission or any other
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Federal agency at the time administering the Securities Act.
"Common Stock": the common stock of the Company.
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"Company": as defined in the preamble to this Agreement.
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"Employment Agreement": the Amended and Restated Employment Agreement
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by and among Xx. Xxxxxxx, the Company and MGM Studios, dated as of August 4,
1997.
"Exchange Act": the Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the Commission thereunder, all as the same shall be
in effect at the time.
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"First Refusal Notice": as defined in Section 4.1(a).
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"HSR Act": the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
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as amended.
"IPO Closing": shall mean the closing of an Approved Initial Public
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Offering at which the Company first receives the funds described in the
definition of "Approved Initial Public Offering", whether or not the
underwriters have at such time exercised any over-allotment option.
"IPO Closing Date": shall mean the date of the IPO Closing.
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"MGM Studios": as defined in the preamble to this Agreement.
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"Non-Transferring Party": as defined in Section 4.1(a).
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"Original Investors Shareholder Agreement": as defined in the
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preamble to this Agreement.
"Person": any natural person, corporation, partnership, limited
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liability company, firm, association, trust, government, governmental agency, or
other legal entity, whether acting in an individual, fiduciary or other
capacity.
"Preferred Stock": shall mean the Series A Convertible Preferred
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Stock of the Company.
"Response Period": as defined in Section 4.1(a).
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"Securities Act": the Securities Act of 1933, as amended, and the
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rules and regulations of the Commission thereunder, as the same shall be in
effect at the time.
"Seven": as defined in the preamble to this Agreement.
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"Shareholders Agreement": the Amended and Restated Shareholders
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Agreement dated as of August 4, 1997 among MGM Studios, the Company, Tracinda,
Seven, Xx. Xxxxxxx and the other parties thereto.
"Stock Split": as defined in Section 7.13.
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"Subsidiary": of any Person shall mean any corporation or other legal
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entity of which such Person (either alone or through or together with any other
direct or indirect Subsidiary) owns, directly or indirectly, 50% or more of the
stock or other equity interests, the holders of which are generally entitled to
vote for the election of the board of directors or other governing body of such
corporation or other legal entity.
"Tracinda": as defined in the preamble to this Agreement.
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"Transfer": as defined in Section 4.1(a).
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"Transferring Party": as defined in Section 4.1(a).
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company. The
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Company hereby represents and warrants to the other parties hereto as follows:
(i) the Company has all requisite corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby; (ii) the
execution and delivery by the Company of this Agreement, and the consummation by
the Company of the transactions contemplated hereby, have been duly authorized
by all necessary corporate action on the part of the Company; (iii) this
Agreement has been duly executed and delivered by the Company and constitutes a
valid and binding obligation of the Company enforceable against the Company in
accordance with its terms, except as the enforceability hereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally or general principles of equity; (iv) no consent, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, is required by, or with respect to, the
Company in connection with the execution and delivery of this Agreement by the
Company or the consummation by the Company of the transactions contemplated
hereby; and (v) the execution and delivery of this Agreement by the Company and
the consummation of the transactions contemplated hereby by the Company does not
conflict with, or result in a breach of, any law or regulation of any
governmental authority applicable to the Company or any material agreement to
which the Company is a party.
Section 2.2. Representations and Warranties of Seven. Seven hereby
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represents and warrants to the other parties hereto as follows: (i) Seven has
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby; (ii) the execution and delivery
by Seven of this Agreement, and the consummation by Seven of the transactions
contemplated hereby, have been duly authorized by all necessary corporate action
on the part of Seven; (iii) this Agreement has been duly executed and delivered
by Seven and constitutes a valid and binding obligation of Seven enforceable
against Seven in accordance with its terms, except as the enforceability hereof
may be limited by bankruptcy, insolvency or other similar laws affecting
creditors' rights generally or general principles of equity; (iv) no consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, is required by, or with
respect to, Seven in connection with the execution and delivery by Seven of this
Agreement or the consummation by Seven of the transactions contemplated hereby;
and (v) the execution and delivery by Seven of this Agreement and the
consummation by Seven of the transactions contemplated hereby does not conflict
with, or result in a breach of, any law or regulation of any governmental
authority applicable to Seven or any material agreement to which Seven is a
party.
Section 2.3. Representations and Warranties of Tracinda. Tracinda
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hereby represents and warrants to the other parties hereto as follows: (i)
Tracinda has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby; (ii) the
execution and delivery by Tracinda of this Agreement, and the
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consummation by Tracinda of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action on the part of Tracinda; (iii) this
Agreement has been duly executed and delivered by Tracinda and constitutes a
valid and binding obligation of Tracinda enforceable against Tracinda in
accordance with its terms, except as the enforceability hereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally or general principles of equity; (iv) no consent, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, is required by, or with respect to,
Tracinda in connection with the execution and delivery of this Agreement by
Tracinda or the consummation by Tracinda of the transactions contemplated
hereby; and (v) the execution and delivery of this Agreement by Tracinda and the
consummation by Tracinda of the transactions contemplated hereby does not
conflict with, or result in a breach of, any law or regulation of any
governmental authority applicable to Tracinda or any material agreement to which
Tracinda is a party.
Section 2.4. Representations and Warranties of MGM Studios. MGM
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Studios hereby represents and warrants to the other parties hereto as follows:
(i) MGM Studios has all requisite corporate power and authority to enter into
this Agreement and to consummate the transactions contemplated hereby; (ii) the
execution and delivery by MGM Studios of this Agreement, and the consummation by
MGM Studios of the transactions contemplated hereby, have been duly authorized
by all necessary corporate action on the part of MGM Studios; (iii) this
Agreement has been duly executed and delivered by MGM Studios and constitutes a
valid and binding obligation of MGM Studios enforceable against MGM Studios in
accordance with its terms, except as the enforceability hereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors' rights
generally or general principles of equity; (iv) no consent, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign, is required by, or with respect to, MGM
Studios in connection with the execution and delivery of this Agreement by MGM
Studios or the consummation by MGM Studios of the transactions contemplated
hereby; and (v) the execution and delivery of this Agreement by MGM Studios and
the consummation by MGM Studios of the transactions contemplated hereby does not
conflict with, or result in a breach of, any law or regulation of any
governmental authority applicable to MGM Studios or any material agreement to
which MGM Studios is a party.
ARTICLE III
CORPORATE GOVERNANCE; CERTAIN CORPORATE ACTIONS
Section 3.1. Voting of Shares.
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(a) Until the fifteenth anniversary of the IPO Closing Date, Seven
shall (i) vote all of the shares of capital stock of the Company beneficially
owned by Seven, and shall take all other necessary or desirable actions within
its control (including, without limitation, by attendance at meetings in person
or by proxy for the purpose of obtaining a quorum and execution of written
consents in lieu of meetings), to effectuate the provisions of this Agreement
and (ii) use its best efforts to cause the Persons designated by it to serve on
the Company's board of directors pursuant to this Article III to take all
actions necessary to effectuate the terms of this Agreement.
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(b) Until the fifteenth anniversary of the IPO Closing Date, Tracinda
shall (i) vote all of the shares of capital stock of the Company beneficially
owned by Tracinda, and shall take all other necessary or desirable action within
its control (including, without limitation, by attendance at meetings in person
or by proxy for the purpose of obtaining a quorum and execution of written
consents in lieu of meetings) to effectuate the provisions of this Agreement and
(ii) use its best efforts to cause the Persons designated by it to serve on the
Company's board of directors pursuant to this Article III to take all actions
necessary to effectuate the terms of this Agreement.
(c) Until the fifteenth anniversary of the IPO Closing Date, each of
the Company and MGM Studios shall take all necessary or desirable actions within
its respective control (including, without limitation, by calling special board
and stockholder meetings) to effectuate the provisions of this Agreement.
(d) Until the fifteenth anniversary of the IPO Closing Date, Xx.
Xxxxxxx shall vote all of the shares of capital stock of the Company
beneficially owned by him, and shall take all other necessary and desirable
action within his control (including, without limitation, by attendance at
meetings in person or by proxy for the purpose of obtaining a quorum and
execution of written consents in lieu of meetings) to effectuate the provisions
of this Agreement.
Section 3.2. Composition of the Board of Directors of the Company and
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MGM Studios and the Committees Thereof.
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(a) Until the fifteenth anniversary of the IPO Closing Date, Seven
shall vote all of the shares of capital stock of the Company from time to time
beneficially owned by Seven, and shall take all necessary or desirable action
within its control, Tracinda shall vote all of the shares of capital stock of
the Company from time to time beneficially owned by Tracinda, and shall take all
necessary or desirable actions within its control, the Company shall vote all
shares of capital stock of MGM Studios beneficially owned by it, and shall take
all necessary or desirable action within its control, Xx. Xxxxxxx shall vote all
shares of capital stock of the Company from time to time owned by him and shall
take all necessary or desirable action, and MGM Studios shall take all necessary
or desirable action within its control, in each case, so that the composition of
the board of directors of each of the Company and MGM Studios and the committees
thereof shall be as follows:
(i) The authorized board of directors of the Company shall
consist of eleven members (subject to the provisions set forth in clause (D)
below) and the members of such board of directors shall be determined as
follows:
(A) four persons shall be nominated by Tracinda so long as
Tracinda beneficially owns 400,000 or more shares of Common Stock or two persons
shall be nominated by Tracinda so long as Tracinda beneficially owns less than
400,000, but at least 250,000, shares of Common Stock; provided, however, that
Tracinda's right to nominate persons to the board of directors of the Company
pursuant to this clause (A) shall expire on the date that Tracinda no longer
beneficially owns at least 250,000 shares of Common Stock; provided, further,
that if at any time Tracinda is entitled to nominate less than four directors
pursuant to this clause (A),
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a majority of the remaining directors of the Company shall be entitled to
nominate a number of directors (who need not qualify as "independent directors"
as specified in clause (D) of this Section 3.2(a)(i)) equal to the amount of
such reduction in directors that Tracinda may nominate; and provided, further,
that so long as Tracinda owns at least 250,000 shares of Common Stock, for each
selection by the board of directors of the Company pursuant to the immediately
preceding proviso of a person who is affiliated with or an associate of Seven
(as such terms are defined in the rules promulgated under the Exchange Act), a
person who is affiliated with or associated with Tracinda shall be selected by
the board of directors to serve as a director of the Company;
(B) two persons shall be nominated by Seven; provided, however,
that Seven's right to nominate two persons to the board of directors of the
Company shall expire on the date that Seven no longer beneficially owns at least
250,000 shares of Common Stock and thereafter such number of directors (who need
not qualify as "independent directors" as specified in clause (D) of this
Section 3.2(a)(i)) shall be nominated by a majority of the remaining directors
of the Company;
(C) two persons shall be nominated by the Chairman and Chief
Executive Officer of the Company (one of which persons shall be Xx. Xxxxxxx so
long as he serves as Chief Executive Officer of the Company); and
(D) three persons who are not affiliated or associated with either
Tracinda or Seven and who otherwise meet the requirements of the New York Stock
Exchange for serving as "independent directors" shall be nominated and selected
by a majority of the members of the board of directors of the Company, which
majority, so long as Tracinda beneficially owns at least 400,000 shares of
Common Stock, must include Tracinda's nominees on the board of directors of the
Company; provided, however, that notwithstanding anything to the contrary in
this Agreement, each of Tracinda and Seven shall only be obligated to vote the
shares of capital stock from time to time beneficially owned by them for
nominees selected pursuant to this clause (D) if such nominee(s) are acceptable
to Tracinda or Seven, as the case may be, and shall have the right to vote
against such nominee(s) if such nominee(s) are not acceptable to Tracinda or
Seven, as the case may be; provided further, however, that the number of
"independent directors" on the board of directors shall be subject to reduction
from three persons to two persons if a majority of the existing board of
directors so determines.
(ii) The compensation committee of the board of directors of the
Company shall include members to be determined as follows:
(A) one person nominated to the board of directors of the Company
by Tracinda, so long as Tracinda beneficially owns 250,000 or more shares of
Common Stock; provided, however, that Tracinda's right to include in the
compensation committee of the board of directors of the Company a person
Tracinda has nominated to the board of directors of the Company pursuant to this
clause (A) shall expire on the date that Tracinda no longer beneficially owns at
least 250,000 shares of Common Stock; provided, further, that if at any time
Tracinda does not have the right to include its nominee on the compensation
committee of the board of directors of the Company pursuant to this clause (A),
the member of the compensation committee
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of the board of directors of the Company shall be a director (who need not
qualify as an "independent director" as specified in clause (C) of this Section
3.2(a)(ii)) nominated by a majority of the remaining directors of the Company;
(B) one person nominated to the board of directors of the Company
by Seven; provided, however, that Seven's right to include in the compensation
committee of the board of directors of the Company one person nominated by it to
the board of directors of the Company shall expire on the date that Seven no
longer beneficially owns at least 250,000 shares of Common Stock and thereafter
such member of the compensation committee of the board of directors of the
Company shall be a director (who need not qualify as an "independent director"
as specified in clause (C) of this Section 3.2(a)(ii)) nominated by a majority
of the remaining directors of the Company; and
(C) one person who is not affiliated or associated with either
Tracinda or Seven and who otherwise meets the requirements of the New York Stock
Exchange for serving as an "independent director" and who was nominated and
selected as a director by a majority of the members of the board of directors of
the Company, which majority, so long as Tracinda beneficially owns at least
400,000 shares of Common Stock, must include Tracinda's nominees to the board of
directors of the Company.
(iii) The Company shall cause the board of directors of MGM Studios
to consist of the members from time to time on the board of directors of the
Company and shall cause the members of the committees of the board of directors
of the Company to serve as members of the comparable committees of the board of
directors of MGM Studios.
(b) Each of Seven and Tracinda, respectively, shall have the exclusive
right (which, to the extent the same may be required by law, may only be
exercised indirectly, through the parties hereto voting at meetings of the
stockholders of the Company and/or through the calling of a special meeting of
the stockholders of the Company) (i) to remove, with or without cause, any
director designated by it in accordance with this Section 3.2 and (ii) to
designate and elect any replacement for a director designated by it in
accordance with this Section 3.2, upon the death, resignation, retirement,
disqualification or removal from office of such director. The board of
directors of the Company shall have the right to remove Xx. Xxxxxxx as a
director of the Company, with or without cause, upon the termination of his
employment as Chief Executive Officer of MGM Studios subject to the terms of Xx.
Xxxxxxx'x employment agreement which shall remain in effect following execution
hereof. Except as specified in the immediately preceding sentence, the board of
directors of the Company shall not have the right to remove Xx. Xxxxxxx as a
director of the Company. Except consistent with the terms of this Agreement,
the board of directors of the Company shall not be authorized to fill a vacancy
on the board of directors of the Company caused by the death, resignation,
retirement, disqualification or removal of a director designated pursuant to
this Section 3.2. To the extent, that at any time, the composition of the board
of directors of the Company is not consistent with provisions of this Section
3.2, each of the parties hereto shall take all necessary or desirable action,
including by calling a special meeting of the stockholders of the Company, to
give effect to the provisions of this Section 3.2. In the event that Xx. Xxxxxxx
shall cease to act as Chief Executive Officer of the Company, promptly
thereafter the parties hereto shall take all necessary or desirable actions,
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including a calling of a special meeting of the stockholders of the Company, to
remove the other person then serving as a director of the Company and MGM
Studios pursuant to clause (C) of Section 3.2(a)(i) unless such other person is
acceptable to the new Chief Executive Officer of the Company.
(c) If Xx. Xxxxxxx shall cease to act as Chief Executive Officer of
the Company, Xx. Xxxxxxx hereby agrees to his resignation as a director of both
the Company and MGM Studios and all other positions held by Xx. Xxxxxxx at MGM
Studios, the Company and their respective Subsidiaries, effective as of the time
he ceases to act as chief executive officer of the Company. For so long as Xx.
Xxxxxxx shall serve as a member of the board of directors of the Company and MGM
Studios, Xx. Xxxxxxx shall act as the chairman of the board of directors of both
the Company and MGM Studios. It shall be a condition precedent to the
nomination by Xx. Xxxxxxx pursuant to clause (C) of Section 3.2(a)(i) of a
person to serve as a director of the Company and MGM Studios that such person
shall have agreed to his resignation as a director of both the Company and MGM
Studios (but not any other positions with the Company or MGM Studios) at such
time as Xx. Xxxxxxx shall no longer serve as the Chief Executive Officer of the
Company.
(d) Each of the parties hereto shall take all such action, and execute
all such documents, as is necessary or desirable to effect the provisions of
this Section 3.2. Each of Tracinda and Seven agrees to use its best efforts to
obtain the resignation from the board of directors of the requisite number of
persons nominated by it in order to accomplish any reduction in the number of
directors contemplated by clauses (A) and (B), respectively, of Section
3.2(a)(i).
(e) Until October 10, 2001, the obligations imposed by this Article
III shall be binding upon any transferee of Seven or Tracinda except that the
provisions of this Article III shall not be binding on:
(i) any person (other than an Affiliate of Tracinda or Seven)
who acquires shares of Common Stock from Tracinda or Seven pursuant to a public
offering registered under the Securities Act or pursuant to Rule 144 or
Regulation S promulgated thereunder; or
(ii) any person (other than an Affiliate of Tracinda or Seven) who
acquires not more than 100,000 shares of Common Stock from Tracinda or Seven, as
the case may be, in one transaction or a series of related transactions.
Section 3.3. Approval of Certain Matters . Until the earlier to
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occur of (i) the fifteenth anniversary of the IPO Closing Date and (ii) the date
that Seven no longer beneficially owns at least 250,000 shares of Common Stock,
neither the Company nor MGM Studios nor any of their Subsidiaries shall (a) sell
or agree to sell or (b) license or agree to license for a period of more than
three years in substantially all major territories of the world in one
transaction or a series of related transactions all or 85% or more of the films
then in the library of the Company, MGM Studios and their Subsidiaries unless
such sale, license or agreement shall have been unanimously approved by the
board of directors of the Company. Thereafter, any such sale, license or
agreement shall only require the approval of a majority of a quorum of directors
at a duly called meeting of the board of directors of the Company.
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ARTICLE IV
FIRST REFUSAL
Section 4.1. First Refusal.
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(a) If prior to October 10, 2001, either Tracinda or Seven (as
appropriate in this Article IV, the "Transferring Party"), desires to sell,
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transfer, assign, pledge or otherwise dispose of (a "Transfer"), directly or
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indirectly, in whole or part, all or any portion of the shares of capital stock
of the Company beneficially owned by it, the Transferring Party shall provide
the other party (the "Non-Transferring Party") with a written notice (the "First
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Refusal Notice") (which First Refusal Notice may be sent concurrently with the
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Tag-Along Notice which may be required to be sent with respect to such
transaction pursuant to Section 3.2 of the Shareholders Agreement) setting
forth:
(i) the number and class of shares of capital stock of the
Company proposed to be Transferred;
(ii) that the Transferring Party has received a bona fide
written offer from a prospective purchaser of said shares of capital stock of
the Company;
(iii) the name and address of the prospective purchaser;
(iv) the material terms and conditions of such proposed
transaction; and
(v) that the Transferring Party is offering to Transfer such
shares of capital stock of the Company to the Non-Transferring Party on the same
terms and conditions as contained in the bona fide offer.
The Non-Transferring Party shall have 20 calendar days following the receipt of
the First Refusal Notice to respond as to whether it desires to purchase the
shares of capital stock of the Company specified in the First Refusal Notice.
Such 20 calendar day period shall be referred to as the "Response Period."
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Within the Response Period, the Non-Transferring Party shall, by notice in
writing to the Transferring Party, have the opportunity and right to purchase
(on the terms and conditions specified in the First Refusal Notice) the shares
of capital stock of the Company specified in the First Refusal Notice. If the
Non-Transferring Party shall not respond within the Response Period, then such
party shall be deemed to have waived its right to purchase the shares of capital
stock of the Company specified in the First Refusal Notice. If the Non-
Transferring Party fails to exercise or waives its right to purchase the shares
of capital stock of the Company referred to in the First Refusal Notice, then
the Transferring Party shall be free, for a six-month period, to enter into a
definitive agreement to Transfer such shares of capital stock of the Company to
such third party on terms equivalent to or better than the terms specified in
the First Refusal Notice without restriction under this Agreement; it being
understood, however, that if the Transferring Party does not enter into such
definitive agreement within such six-month period, or such definitive agreement
is subsequently terminated, the Transferring Party shall once again be subject
to all the provisions of this Section 4.1.
10
(b) Each acceptance made hereunder shall constitute a separate and
binding contract obligating the Transferring Party to sell, and the Non-
Transferring Party to purchase, the shares of capital stock of the Company
accepted at the price and upon the terms and conditions as set forth in the
First Refusal Notice. The parties agree to negotiate in good faith to
consummate the transaction as soon as possible, but in no event later than the
date 30 calendar days after the appropriate Response Period has elapsed (as such
period may be extended up to a maximum period of two months (unless further
extension is agreed to by the Transferring Party) by any applicable waiting
period required under the HSR Act or any other applicable law). At the closing,
the Transferring Party shall deliver the certificate or certificates
representing the shares of capital stock of the Company to be sold, duly
endorsed for transfer or accompanied by duly executed stock powers, against
receipt from the Non-Transferring Party of the purchase price for such shares of
capital stock of the Company, in cash by wire transfer of immediately available
funds or certified check, at the option of the Transferring Party, all in
accordance with the terms and conditions set forth in the First Refusal Notice.
Notwithstanding any provision of this Agreement to the contrary, in the event of
failure by the Non-Transferring Party to close said transaction within the
required time periods, the Transferring Party shall be entitled, in addition to
all other available remedies, to treat such failure as a waiver under Section
4.1(a) of this Agreement by the Non-Transferring Party, entitling the
Transferring Party to take the action specified in Section 4.1(a) of this
Agreement pursuant to such waiver.
(c) If the purchase price specified in the First Refusal Notice
includes any property other than cash, the First Refusal Notice shall state how
the non-cash property was valued, unless the Transferring Party and the proposed
transferee expressly agree otherwise as stated in the First Refusal Notice and,
the Non-Transferring Party may pay cash in an amount equal to the fair market
value of any non-cash property determined in the following manner:
(i) The fair market value of securities which are publicly traded
shall be deemed to be the average of the daily closing prices (or, if no closing
price is available, the average of the last bid and ask prices) of such
securities for the five consecutive trading days immediately prior to the date
of the First Refusal Notice; and
(ii) The fair market value of any other property shall be
determined by the good faith agreement of the parties or, if the parties are
unable to agree, by an appropriate expert mutually selected by the parties.
(d) The provisions of this Section 4.1 shall terminate, with respect
to such capital stock of the Company, upon the transfer, in compliance with this
Section 4.1, by Tracinda or Seven of such capital stock to any Person other than
Tracinda or Seven or their respective Affiliates.
(e) Nothing contained in the provisions of this Section 4.1 shall
affect the tag-along rights of any party pursuant to Section 3.2 of the
Shareholders Agreement.
(f) The provisions of this Section 4.1 shall not apply to any bona
fide pledge to a bank or other institutional financial lender.
11
(g) Notwithstanding anything contained herein to the contrary, the
provisions of this Section 4.1 shall not apply to, in the case of each of
Tracinda and Seven, (i) the transfer of, or the grant of options for the
acquisition of, up to 7,500 shares of Common Stock (such number to be
appropriately adjusted in the event that the Company should effect any stock
dividend, stock split, reverse stock split, or any similar transaction after the
date hereof) beneficially owned by it to officers, directors, employees,
consultants and affiliates so long as such transferee shall agree in writing to
be bound by all the terms of this Agreement applicable to its transferor as if
the transferee originally had been a party to this Agreement and (ii) the
transfer and assignment of all or any portion of the capital stock of the
Company beneficially owned by it to any direct or indirect wholly owned
subsidiary of such entity so long as (y) such transferee shall agree in writing
to be bound by all the terms of this Agreement applicable to its transferor as
if the transferee originally had been a party to this Agreement and (z) the
transferor agrees to cause such direct or indirect wholly owned subsidiary to
continue to be a direct or indirect wholly owned subsidiary of the transferor
for so long as such direct or indirect wholly owned subsidiary beneficially owns
any such capital stock of the Company.
Section 4.2. Legend. The parties hereby acknowledge and agree that
------
each of the certificates representing the Common Stock shall include the
following legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN LIMITATIONS ON SALE, TRANSFER OR OTHER DISPOSITION
AND CERTAIN AGREEMENTS WITH RESPECT TO VOTING SET FORTH IN AN
AMENDED AND RESTATED INVESTORS SHAREHOLDER AGREEMENT DATED AS
OF AUGUST 4, 1997 BY AND AMONG SEVEN NETWORK LIMITED, TRACINDA
CORPORATION, METRO-XXXXXXX-XXXXX STUDIOS INC., METRO-XXXXXXX-
XXXXX INC. AND XX. XXXXX X. XXXXXXX (THE "AGREEMENT"). A COPY
OF THE AGREEMENT IS ON FILE WITH THE SECRETARY OF METRO-XXXXXXX-
XXXXX INC.
ARTICLE V
PREEMPTIVE RIGHTS
5.1 Certain Pre-emptive Rights. If at any time prior to the
--------------------------
fifteenth anniversary of the IPO Closing Date, the Company shall propose to
issue to any Person any shares of its Common Stock or any securities exercisable
for the purchase of or convertible into Common Stock (other than (i) the
issuance of Common Stock or securities exercisable for the purchase of or
convertible into Common Stock pursuant to a firm commitment underwritten public
offering or pursuant to Rule 144A or Regulation S promulgated under the
Securities Act, (ii) the issuance of Common Stock or securities exercisable for
the purchase of or convertible into Common Stock pursuant to a registration
statement directly or indirectly to the holders of the outstanding capital stock
of a corporation or other business entity with a class of equity securities
registered under the Exchange Act in connection with the Company's acquisition
of such corporation or other business or substantially all of its assets
(whether by merger, consolidation, purchase of stock or assets or otherwise), or
(iii) the grant of stock options to officers, directors or employees of the
12
Company or any of its Subsidiaries pursuant to stock option plans approved by
the board of directors of the Company or the issuance of Common Stock upon the
exercise of any such stock option), Seven, Tracinda and Xx. Xxxxxxx shall have
the right to elect at any time within 10 days after receipt of notice from the
Company, as applicable:
(a) if such issuance is of Common Stock, to subscribe for and purchase
for cash a number of shares of Common Stock such that after giving effect to
such issuance to such other Person and such purchase by any one or more of
Seven, Tracinda and Xx. Xxxxxxx, as the case may be, each party so electing
shall continue to beneficially own the same percentage of outstanding Common
Stock that such electing party beneficially owned prior to such issuance to such
other Person and such purchase by any one or more of Seven, Tracinda and Xx.
Xxxxxxx, as the case may be; and
(b) if such issuance is of securities exercisable for the purchase of
or convertible into Common Stock, to subscribe for and purchase for cash a
number of such securities equal to the product of the aggregate number of such
securities to be issued (including pursuant to this Section 5.1) multiplied by
the percentage of the then outstanding Common Stock that is beneficially owned
by Seven, Tracinda or Xx. Xxxxxxx, as the case may be.
The price to be paid in any such purchase by any one or more of Seven, Tracinda
and Xx. Xxxxxxx and the other terms of purchase shall be the same as applicable
to the purchase of Common Stock or such other securities by such other Person,
except that in all cases the price to be paid by Seven, Tracinda and Xx. Xxxxxxx
shall be paid in cash. In the event that such shares of Common Stock or such
other securities are to be issued to such other Person for property or services,
the price per share or other security to be paid by Seven, Tracinda and Xx.
Xxxxxxx shall be equal to the fair market value per share or other security of
the property or services to be received by the Company from such other Person,
as such fair market value is determined by the "independent directors" of the
Company elected to the board of directors of the Company pursuant to the
provisions of clause (D) Section 3.2(a)(i) of this Agreement. The rights of
Seven and Tracinda set forth in this Section 5.1 shall terminate with respect to
each such party at such time as such party beneficially owns less than 250,000
shares of Common Stock. The rights of Xx. Xxxxxxx set forth in this Section 5.1
shall terminate at such time as Xx. Xxxxxxx is no longer the Chief Executive
Officer of the Company.
ARTICLE VI
BUSINESS; CERTIFICATE OF INCORPORATION AND BYLAWS
6.1 Entertainment Business. The parties hereto agree to use their
----------------------
best efforts to ensure that neither the Company nor any of its Subsidiaries
shall engage in any business activity except the entertainment business unless
(i) all directors of the board of directors shall have approved such engagement
in other business activities or (ii) a majority of the board of directors shall
have approved such engagement in other business activities and such engagement
in other business activities shall have been approved by the stockholders of the
Company in accordance with the applicable provisions of the Delaware General
Corporation Law; provided, however, that the obligations of the parties hereto
provided for in this sentence shall terminate on the fifteenth anniversary of
the IPO Closing Date. As used in this Section 6.1 the "entertainment business"
13
shall include the acquisition, development, production, marketing, distribution,
exhibition, publication or use of intellectual property for purposes of
providing entertainment, education or information and all services and
activities reasonably related thereto, including the services and activities
currently provided or conducted by the Company and its Subsidiaries. The parties
hereto may amend or terminate this Section 6.1 by mutual agreement except that
no such amendment or termination shall require (i) the approval of Seven at any
time when it beneficially owns less than 250,000 shares of Common Stock, (ii)
the approval of Tracinda at any time when it beneficially owns less than 250,000
shares of Common Stock or (iii) the approval of Xx. Xxxxxxx after such time as
he shall no longer serve as the Chief Executive Officer of the Company.
6.2 Certificate of Incorporation and By-laws. Each of the parties
----------------------------------------
hereto will take all necessary actions, including, if necessary, by amending the
Certificate of Incorporation and By-laws of the Company and/or MGM Studios, to
assure that the Certificate of Incorporation and By-laws of each of the Company
and MGM Studios do not contain any provision which is inconsistent with the
terms of this Agreement.
6.3 Conversion of Preferred Stock. Each of Seven, Tracinda and Mr.
-----------------------------
Xxxxxxx agrees to convert, on the IPO Closing Date, all shares of Preferred
Stock beneficially owned (as determined in accordance with the rules promulgated
under Section 13 of the Exchange Act) by such holder on the date hereof, which
conversions shall be effected in accordance with the terms of the certificate of
designations establishing such Preferred Stock. Each of the parties hereto
shall use its best efforts to cause each person who beneficially owns Preferred
Stock but who is not a party hereto to convert the same to Common Stock on the
IPO Closing Date.
ARTICLE VII
GENERAL PROVISIONS
Section 7.1. Notices. Any notice required to be given hereunder
-------
shall be sufficient if in writing, and sent by facsimile transmission and by
courier service (with proof of service), hand delivery or certified or
registered mail (return receipt requested and first-class postage prepaid),
addressed as follows:
If to the Company or MGM Studios, to:
Metro-Xxxxxxx-Xxxxx Inc.
0000 Xxxxxxxx, Xxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 X. Xxxxx Xxxxxx
00
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Tracinda, to:
Tracinda Corporation
0000 Xxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Secretary / Treasurer
Telecopy: (000) 000-0000
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, P.C.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Seven, to:
Seven Network Limited
c/o Culmen Group, L.P.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
and:
XXX0
Xxxxx Xxxx
Xxxxxx XXX 0000, Xxxxxxxxx
Attention: Xxxx Xxxx, Managing Director
Telephone: (000) 000-0000
Telecopy: (000) 000-00000
with a copy to:
Xxxxx, Xxxx & Xxxxxxx
000 Xxxx Xxxxxx
Xxxx Xxxxx, XX 00000
15
Attention: F. Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed.
Section 7.2. Assignment; Binding Effect; Benefit; Successors. (a)
-----------------------------------------------
Except as otherwise 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); provided,
however, that each of Tracinda and Seven may assign its rights under this
Agreement to any of their respective direct or indirect wholly owned
Subsidiaries so long as (i) such assignee agrees to be bound by the terms of
this Agreement to the same extent as the applicable assignor pursuant to a
written agreement with the Company and MGM Studios that is reasonably acceptable
to each of them, (ii) the applicable assignor continues to be bound by, and is
not released from, any of its obligations under this Agreement and (iii) the
applicable assignor will cause the applicable direct or indirect wholly owned
subsidiary to continue to be a direct or indirect wholly owned subsidiary of the
applicable assignor for so long as such assignee shall have any rights under
this Agreement. For the purpose of this Agreement, all capital stock of the
Company owned by any direct or indirect wholly owned Subsidiary of Tracinda or
Seven, as applicable, shall be deemed owned by Tracinda or Seven, as applicable.
Subject to the first sentence of this Section 7.2(a), this Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. Except as expressly provided in this
Agreement, notwithstanding anything contained in this Agreement to the contrary,
nothing in this Agreement, express or implied, is intended to confer on any
person other than the parties hereto any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
(b) In the event that the Company or MGM Studios shall enter into a
merger, consolidation or other similar type transaction, all of the terms of
this Agreement relating to the Company and MGM Studios, as applicable, shall
apply to the surviving corporation.
Section 7.3. Entire Agreement. Upon the effectiveness hereof, this
----------------
Agreement, the Shareholders Agreement, the Employment Agreement and any
certificate delivered by the parties in connection herewith constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings (oral and written) among the
parties with respect thereto.
Section 7.4. Amendment. This Agreement may not be amended or
---------
modified except by an instrument in writing signed by or on behalf of each of
the parties hereto, except as otherwise provided in Section 6.1 hereof.
Section 7.5. Governing Law. This Agreement shall be governed by,
-------------
and construed 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).
16
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 7.1 hereof and agrees that such service upon receipt shall
constitute good and sufficient service of process or notice thereof. Nothing in
this Section 7.5 shall affect or eliminate any right to serve process in any
other matter permitted by law.
Section 7.6. Counterparts; Effective Date. 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 the time of the
IPO Closing.
Section 7.7. Headings. Headings of the Articles and Sections of
--------
this Agreement are for the convenience of the parties only and shall be given no
substantive or interpretive effect whatsoever.
Section 7.8. Interpretation. In this Agreement, unless the context
--------------
otherwise requires, words describing the singular number shall include the
plural and vice versa, "including" shall mean including, without limitation, and
words denoting any gender shall include all genders and words denoting natural
persons shall include corporations and partnerships and vice versa.
Section 7.9. Severability. Any term or provision of this Agreement
------------
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or otherwise affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any other
jurisdiction. If any provision of this Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as is
enforceable.
Section 7.10. Enforcement of Agreement. The parties hereto agree
------------------------
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any Delaware court, this
being in addition to any other remedy to which they may be entitled at law or in
equity.
17
Section 7.11. Certain Rights. If either Seven or Tracinda shall
--------------
violate or breach the terms of this Agreement or the Shareholders Agreement (the
"breaching party") then, notwithstanding anything to the contrary in this
Agreement or the Shareholders Agreement, upon written notice provided to the
breaching party and, upon the running of a 30-day cure period after the delivery
of such written notice during which the breaching party fails to cure such
violation or breach, the rights (but not the obligations) of the breaching party
under the terms of this Agreement and the Shareholders Agreement shall terminate
(but such termination shall not affect the rights of any other party under this
Agreement or the Shareholders Agreement). This Section 7.11 is not intended for
the benefit of, or to give rights to, any party other than Tracinda or Seven.
Section 7.12. Termination of Original Investors Shareholder Agreement.
------------------------------------------------------
Seven, Tracinda, the Company, MGM Studios and Xx. Xxxxxxx hereby mutually agree
that, effective as of the IPO Closing Date, the Original Investors Shareholder
Agreement and that certain Letter Agreement dated as of August 4, 1997 among the
parties hereto shall terminate and be of no further force or effect, and none of
them shall have any further rights, duties or obligations thereunder from and
after the effective date of such termination. Until such time as the IPO Closing
Date shall occur, the Original Investors Shareholder Agreement shall remain in
full force and effect and shall be unaffected hereby.
Section 7.13. Antidilution Adjustment. Prior to or concurrent with
-----------------------
the consummation of the IPO Closing, the Company will effect, in one or more
transactions, a net stock split of the Common Stock (the "Stock Split"). As a
-----------
result of the Stock Split, the following changes will be made in this Agreement,
before it becomes effective (the "Antidilution Adjustment"):
-----------------------
(a) The number of shares of Common Stock in the definition of Carrying
Cost Factor Amount Per Share and in Sections 3.2(a)(i)(A), 3.2
(a)(i)(B), 3.2(a)(i)(D), 3.2(e)(ii), 3.3, 5.1, and 6.1 hereof,
prior to the Antidilution Adjustment, will be multiplied by the
Stock Split. By way of illustration, if the Stock Split is 50 for
1, by virtue of the Antidilution Adjustment, the 1,260,000 number
in the definition of Carrying Cost Factor Amount Per Share hereof
and would become 63,000,000; and
(b) The $1,000 amount in the definition of Approved Initial Public
Offering and the quotient in the definition of Carrying Cost Factor
Amount Per Share, in each case prior to the Antidilution
Adjustment, will be divided by the Stock Split. By way of
illustration, if the Stock Split is 50 to 1, by virtue of the
Antidilution Adjustment, the $1,000 amount would become $20 and
the Carrying Cost Factor Amount per Share would be divided by 50.
Except as otherwise provided herein, all dollar amounts changed as a result of
the Antidilution Adjustment will be rounded to the nearest xxxxx.
18
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:
________________________________________________
XX. XXXXX X. XXXXXXX
19
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:
20
