EXHIBIT 10.51
BONUS PAYMENT AGREEMENT
This Bonus Payment Agreement is entered into effective as of November 21,
2001 (this "Agreement") by and between XXXXX X. XXXXXXX ("Xxxxxxx") and METRO-
XXXXXXX-XXXXX STUDIOS INC. ("MGM"), a wholly-owned subsidiary of METRO-XXXXXXX-
XXXXX INC. (the "Company") with respect to the following circumstances:
X. Xxxxxxx is an individual residing in the State of California and
currently serving on the Board of Directors of the Company.
B. Each of MGM and the Company is a corporation duly organized and
existing under the laws of the State of Delaware with its principal place of
business in Santa Monica, California.
C. Pursuant to the Metro-Xxxxxxx-Xxxxx Inc. and Metro-Xxxxxxx-Xxxxx
Studios Inc. Senior Management Bonus Plan (the "Plan"), Xxxxxxx was awarded an
aggregate of 811,756 bonus interests (the "Bonus Interests"), the terms and
conditions of which are set forth in the Bonus Interest Agreement dated as of
November 6, 1997, as amended pursuant to the repricing provisions of the
Consulting Agreement entered into as of August 12, 1999 between MGM and the
Company, on the one hand, and Xxxxxxx, on the other hand (such agreement as so
amended referred to herein as the "Bonus Interest Agreement"). Capitalized
terms used herein, unless otherwise defined herein, shall have the meanings
ascribed to them in the Bonus Interest Agreement.
D. Under the Bonus Interest Agreement, the first Determination Date for
valuing the Bonus Interests will occur on December 31, 2001 and Xxxxxxx would be
entitled to a cash payment, payable April 15, 2002, if the average of the per-
share closing prices of the common stock, $.01 par value per share, of the
Company (the "Common Stock"), on the twenty (20) trading days immediately
preceding December 31, 2001 (the "Fair Market Value per Common Share") is
greater than $14.90 and less than $29.80 (the "Common Share Price Range").
E. MGM has proposed, and Xxxxxxx has agreed, that MGM shall cause to be
issued to Xxxxxxx, and Xxxxxxx shall accept, shares of the Common Stock (the
"Bonus Shares") in lieu of any cash payment otherwise due with respect to the
December 31, 2001 Determination Date. The precise number of Bonus Shares shall
be determined by dividing the cash amount otherwise due under the Bonus Interest
Agreement by the Fair Market Value per Common Share.
F. It is in the best interests of Xxxxxxx and MGM that the Bonus Shares be
sold in an orderly fashion following the issuance thereof and, to that end,
Xxxxxxx has agreed to certain limitations on the number of Bonus Shares that may
be sold for his benefit on any single trading day. In view of the expected day-
to-day fluctuations in the price of the Common Stock, the parties hereto wish to
establish a mechanism that leaves Xxxxxxx in the same economic position
following the sale of the Bonus Shares as he would have enjoyed had the Bonus
Interests been paid in cash (without regard to the benefit to Xxxxxxx by virtue
of the time value of money).
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. Subject to the terms hereof, MGM hereby agrees to cause to be issued,
and Xxxxxxx hereby agrees to accept, the Bonus Shares in lieu of any cash
payment otherwise due with respect to the December 31, 2001 Determination Date
pursuant to the Bonus Interest Agreement. Certificates evidencing the Bonus
Shares will be issued to Xxxxxxx as soon after the December 31, 2001
Determination Date as is practicable, but in no event later than January 5, 2002
(the "Issuance Date").
2. Pursuant to a trading plan which Xxxxxxx will enter into with an
institutional broker (the "Broker") and which will be substantially in the form
of that attached hereto as Exhibit A (the "Trading Plan"), the Broker will sell
from time to time at the market price of the Common Stock trading on the New
York Stock Exchange (the "Exchange"), subject to the volume restrictions set
forth below, the Bonus Shares issued to Xxxxxxx by MGM in full and complete
satisfaction of the Company's and MGM's payment obligations under the Bonus
Interest Agreement with respect to the December 31, 2001 Determination Date,
subject to MGM's obligations pursuant to Section 6 hereof. Xxxxxxx agrees that
the number of Bonus Shares sold on the Exchange on any single trading day during
the Trading Period (as defined below) shall not exceed the greater of (i) 25,000
shares or (ii) fifteen percent (15%) of the average daily volume of the Common
Stock traded on the Exchange over the prior ten (10) trading days (on a "rolling
average" basis); provided, however, that the Trading Plan shall provide that the
Broker may, in its discretion, enter orders to sell a lesser amount on any
trading day in response to market conditions. The provisions hereof with
respect to the Trading Plan shall apply with equal force and effect to (a) the
initial trading plan and (b) any successor trading plan with respect to the
Bonus Shares entered into by Xxxxxxx with an institutional broker prior to the
expiration of the Trading Period.
3. The period covered by this Agreement (the "Trading Period") shall
commence on the Issuance Date and shall continue until the earlier of April 15,
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2002 or the date on which Xxxxxxx shall have completed the sale of all the Bonus
Shares; provided, however, that the Trading Period shall be extended beyond
April 15, 2002 to a date not later than June 15, 2002 to the extent that the
sale of all of the Bonus Shares by April 15, 2002 shall have been precluded by
virtue of (i) the volume limitations set forth in Paragraph 2 hereinabove, (ii)
market or other disruptions as set forth in Exhibit B attached hereto (each a
"Market Disruption") and/or (iii) a suspension of sales under the Trading Plan
by virtue of Broker or any of its affiliates becoming aware of material
nonpublic information concerning MGM or the Common Stock.
4. With respect to all Bonus Shares sold during the Trading Period,
Xxxxxxx shall direct the Broker to provide to MGM within three (3) business days
of each sale, the following information with respect thereto:
a) the date of the trade
b) the number of Bonus Shares sold
c) the price(s) at which sold
d) the brokers' commissions paid with respect thereto
provided that MGM acknowledges that the Broker's failure to have provided the
information specified in this Paragraph 4 in a timely fashion will not be deemed
a breach of this Agreement by Xxxxxxx so long as such information is furnished
to MGM with five (5) business days after written notice from MGM requesting
same. MGM shall assist Xxxxxxx in preparing and filing in a timely fashion any
and all forms and notices (including, without limitation, Forms 4) which Xxxxxxx
may be required to file pursuant to applicable Federal or state securities laws
as a result of his sale of any Bonus Shares.
5. If MGM becomes obligated to withhold an amount on account of any tax
imposed as a result of the issuance of the Bonus Shares to Xxxxxxx (the
"Withholding Liability"), MGM will pay the full amount thereof in accordance
with all applicable laws, rules and regulations. As soon as MGM shall have
calculated the amount of the Withholding Liability, it shall provide Xxxxxxx
with a written schedule setting forth the amount of such liability and the
applicable Federal and state tax rates used in computing same. Xxxxxxx shall
reimburse MGM for the full amount of the Withholding Liability by instructing
the Broker to pay over to MGM thirty-five percent (35%) of the proceeds of the
sale of the Bonus Shares, with the remaining sixty-five percent (65%) of such
proceeds to be disbursed to Xxxxxxx until MGM shall have been reimbursed in
full. After such reimbursement, Xxxxxxx shall be entitled to retain 100% of the
proceeds of any such sales, subject to Paragraph 6 hereinbelow. Xxxxxxx will
indemnify MGM and hold it harmless from and against any Federal, state or local
withholding tax liability (including interest and penalties) to which MGM is
subject or which it may incur resulting from the issuance of the Bonus Shares to
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Xxxxxxx, except to the extent that (a) any such liabilities, interest or
penalties result from (i) the failure of MGM to make a good faith determination
of the amount of the Withholding Liability, and/or (ii) the failure of MGM to
pay over to the relevant taxing authorities on a timely basis any sums paid to
MGM by Xxxxxxx to satisfy any Withholding Liability, and/or (b) MGM fails to pay
Xxxxxxx all amounts to which he is entitled pursuant to Paragraph 6 hereof
(including the indemnification provisions of the second and third grammatical
paragraphs thereof).
6. Within five (5) business days following the end of the Trading Period,
(a) MGM shall pay to Xxxxxxx in cash the excess, if any, of the Fair Market
Value per Common Share over the average per-share proceeds (after deduction of
brokers' commissions) from the sale of the Bonus Shares pursuant to the Trading
Plan (the "Net Proceeds per Common Share") multiplied by the number of Bonus
Shares sold and (b) Xxxxxxx shall pay to MGM the excess, if any, of the Net
Proceeds per Common Share over the Fair Market Value per Common Share multiplied
by the number of Bonus Shares sold. The foregoing calculations shall be
appropriately adjusted to the extent necessary to permit MGM to recoup any
unreimbursed Withholding Liability. Any payment made by MGM to Xxxxxxx pursuant
to this Paragraph 6 shall include an additional amount of money sufficient to
reimburse Xxxxxxx on a full gross-up basis for any and all Federal, state and
local taxes and assessments to which he is subject as a result of any payments
from MGM under this Paragraph 6.
MGM will indemnify and hold harmless Xxxxxxx, or in the event of his
death, his heirs, executor, administrator or other personal representative,
(each, an "Indemnitee") from and against any Federal, state or local tax
liability, interest and penalties (including reasonable attorney's fees and out-
of-pocket disbursements, whether incurred in connection with an audit or other
legal or tax court proceeding) (collectively, the "Tax Liability") to which
Indemnitee may be subject or which Indemnitee may incur, resulting from the
issuance of the Bonus Shares to Xxxxxxx, except to the extent that any such Tax
Liability relates to Xxxxxxx'x failure to have reimbursed MGM for the full
amount of the Withholding Liability pursuant to Paragraph 5 hereinabove;
provided, however, that such indemnity shall be operative only to the extent
that the Tax Liability resulting from or relating to the issuance of the Bonus
Shares exceeds the Tax Liability to which Indemnitee would have been subject had
the Bonus Interests been paid in cash pursuant to the terms of the Bonus
Interest Agreement. In the event of any audit, or other legal or tax court
proceeding in respect of which a claim is to be made hereunder, MGM shall have
the right to select counsel and to make any final determination as to whether to
settle any such proceeding.
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The Joint and Several Indemnity Agreement, dated as of October 10,
1996 (the "Indemnity Agreement") by and between the Company (then known as P&F
Acquisition Corp.) and MGM (then known as Metro-Xxxxxxx-Xxxxx Inc.), on the one
hand, and Xxxxxxx, on the other hand, remains in full force and effect and shall
apply to this Agreement and the Trading Plan and the transactions contemplated
herein to the same extent as if set forth herein in full.
7. In the event Xxxxxxx is unable to sell the Bonus Shares before the end
of the Trading Period (as it may be extended pursuant to Paragraph 3 hereof) (a)
due to the restrictions and limitations contained in Rule 144(c) or Rule 144(e)
under the Securities Act of 1933, as amended (the "Securities Act"), and/or (b)
one or more Market Disruptions and/or (c) because MGM is engaged in an
underwritten offering of its securities pursuant to the Securities Act and the
lead underwriter of such offering has required that MGM's directors and
executive officers enter into a market stand-off or lock-up agreement, then, in
each such event, Xxxxxxx shall have the option, exercisable in his sole
discretion, either (i) to transfer and convey to MGM the number of unsold Bonus
Shares which are then subject to this Agreement (the "Unsold Bonus Shares") or
(ii) to retain all Unsold Bonus Shares and sell them pursuant to Rule 144 under
the Securities Act or otherwise. If Xxxxxxx elects to transfer and convey the
Unsold Bonus Shares to MGM, he may do so only if (A) he shall have notified MGM
of such election as soon as reasonably practicable after the occurrence of the
precipitating event, (B) he owns such Shares free and clear of any and all
claims, liens, security interests and other encumbrances of any nature
whatsoever, and (C) such transfer may be made without violating any applicable
Federal or state securities laws, rules or regulations, or any contract or
agreement to which Xxxxxxx is a party or by which any of his assets or
properties are bound or affected. In connection with such transfer and
conveyance, MGM shall pay to Xxxxxxx in cash an amount equal to the product
derived by multiplying (x) the number of Unsold Bonus Shares by (y) the Fair
Market Value per Common Share, as defined in Recital D of this Agreement, which
payment shall be made by MGM on or about the end of the Trading Period. Xxxxxxx
will execute and deliver to MGM any agreements, instruments or documents which
MGM shall reasonably request in order to confirm Xxxxxxx'x compliance with this
Paragraph 7.
8. MGM represents and warrants to Xxxxxxx that this Agreement is valid,
binding and enforceable in accordance with its terms as to MGM, and all
necessary corporate action has been taken in order to approve the transactions
contemplated in this Agreement. The Bonus Shares have been duly authorized by
all necessary corporate action and, when issued in accordance with the terms of
the Bonus Interest Agreement and this Agreement, will be validly issued, fully
paid and nonassessable. Such shares, when issued, shall have
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been duly registered under the Securities Act and will be freely transferable.
Prior to the beginning of the Trading Period, all necessary action will have
been taken to list the shares for trading on the New York Stock Exchange.
9. Xxxxxxx hereby represents and warrants that (i) he is the sole owner of
the Bonus Interests and has not sold, transferred, assigned, conveyed, gifted,
pledged, hypothecated or otherwise transferred in any manner any of the Bonus
Interests or any right to or interest in the Bonus Interests to any person, (ii)
the number of Bonus Interests set forth in the Bonus Interest Agreement
represents all of the Bonus Interests granted to him, (iii) he, or his
representative, has had an opportunity to ask questions and receive answers and
to undertake whatever additional inquiry regarding the subject matter of this
Agreement as he has deemed necessary or appropriate under the circumstances in
order to reach an informed decision regarding the merits of the transactions
contemplated by this Agreement and (iv) he has carefully reviewed and
understands the Plan, the Bonus Interest Agreement, the Trading Plan and this
Agreement and has had an opportunity to review such documents with counsel of
his choosing. Xxxxxxx agrees and acknowledges that MGM is relying on the
representations of Xxxxxxx in entering into and effecting the transactions
contemplated by this Agreement.
10. Provided the executed form of the Trading Plan to be signed by
Xxxxxxx and the Broker is substantially the same as Exhibit "A" attached hereto,
the parties intend that the Trading Plan will comply with the requirements of
Rule 10b-5(1) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). All Bonus Shares shall be sold in accordance with the Trading Plan and
in compliance with applicable securities laws, including, but not limited to,
Section 16 of the Exchange Act and Rule 144 of the Securities Act. The Trading
Plan shall not be amended without the written consent of MGM (which shall not be
unreasonably withheld or delayed) and shall remain in effect throughout the
Trading Period.
11. Each party acknowledges, represents and warrants that he or it
has been represented by counsel throughout all negotiations which preceded the
execution of this Agreement; that he or it has read this Agreement, has
consulted with counsel and fully understands its contents and consequences; that
the parties hereto have, through their respective counsel, mutually participated
in the preparation of this Agreement and all Exhibits hereto, and it is agreed
that no provision hereof shall be construed against any party hereto by virtue
of the activities of that party, or its attorneys.
12. The warranties and representations in this Agreement are deemed to
survive the date of execution hereof.
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13. Should any legal action or proceeding be instituted concerning
the enforcement, interpretation or effect of any provision of this Agreement,
the prevailing party or parties, in addition to all other legal or equitable
remedies possessed, shall be entitled to recover from the other party or parties
for all reasonable costs and expenses, including reasonable attorneys' fees and
costs, incurred in such action or proceeding. MGM shall reimburse Xxxxxxx on
demand for his reasonable attorney's fees and out-of-pocket disbursements
incurred in connection with the negotiation of this Agreement.
14. Xxxxxxx and MGM agree that the rights granted to each other
pursuant to this Agreement are unique and that their respective remedies at law
for any breach of this Agreement would be inadequate, and they hereby agree and
consent to the remedy of specific performance and equitable injunctive relief
with respect to the enforcement of their respective rights under this Agreement.
15. This Agreement (together with all Exhibits attached hereto, which
are incorporated herein by this reference) contains the entire agreement and
understanding concerning the subject matter hereof between the parties, and
supersedes and replaces all prior negotiations, drafts of proposed agreements
and agreements, written or oral, concerning such subject matter; provided that
the Bonus Interest Agreement shall continue in full force and effect until the
Bonus Shares are issued to Xxxxxxx pursuant to the terms hereof and thereof;
and, provided further, that nothing contained herein shall restrict, limit or
otherwise affect the continuing validity and effectiveness of the Indemnity
Agreement. Notwithstanding anything herein to the contrary, MGM acknowledges
and agrees that if the Bonus Shares are not issued to Xxxxxxx pursuant to the
terms of this Agreement due to the fact that the Fair Market Value per Common
Share is not within the Common Share Price Range as contemplated by Recital D of
this Agreement, then this Agreement shall terminate and be of no further force
or effect, and the Bonus Interest Agreement shall govern the payment of the
Bonus Interests to Xxxxxxx in accordance with its terms.
16. This Agreement may be amended only by an agreement in writing
signed by the parties to be charged therewith.
17. This Agreement shall in all respects be governed by and construed
and enforced in accordance with the laws of the State of California. In the
event any dispute arises under this Agreement, the parties hereto consent and
agree that they shall submit to the jurisdiction of any competent court of the
State of California, County of Los Angeles.
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18. This Agreement may be executed in one or more counterparts, each
of which shall be an original as against any party who signed it, and all of
which shall constitute one and the same instrument.
19. In the event any provision of this Agreement should be held to be
void, voidable, or unenforceable in any respect, the remaining portions remain
in full force and effect. The parties, and each of them, shall execute all
documents necessary to effectuate this Agreement. The recitals appearing in
this Agreement shall be deemed to be substantive provisions of this Agreement as
if set forth in a numbered paragraph hereof.
20. All notices, requests, demands, claims and other communication
required or permitted to be given hereunder shall be in writing and may be
delivered personally, by telecopy, telex or other form of written electronic
transmission, by overnight courier or by first-class mail, postage prepaid, or
by registered or certified mail, return receipt requested, addressed as follows
(such communication to be deemed to have been given upon receipt):
TO XXXXXXX:
Xxxxx X. Xxxxxxx
0000 Xxx Xxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
WITH A COPY TO:
Xxxxxxxxx Xxxxxxx Fields Claman Machtinger & Xxxxxxxx LLP
1900 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq. and Xxxxxx X. Xxxxxxxx, Esq.
TO MGM:
Metro-Xxxxxxx-Xxxxx Studios Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxxx, Chairman and Chief Executive Officer
Xxxxxxx X. Xxxxx, Esq., Senior Executive Vice President
WITH A COPY TO:
Christensen, Miller, Fink, Jacobs, Weil & Xxxxxxx, LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
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Attention: Xxxxx XxXxxxx
or any such other address as any of the parties may designate by written notice
to the other parties in the manner provided in this paragraph.
21. The arbitration provisions of Section 16 of the Bonus Interest
Agreement shall apply to this Agreement to the same extent as if set forth
herein in full.
22. If a date specified herein shall fall on a Saturday, Sunday or a
holiday, the reference shall be deemed to be the next business day.
23. The parties acknowledge that neither Xxxx Xxxxxxxxx nor Tracinda
Corporation, individually or collectively, is a party to this Agreement or any
agreement provided for herein. Accordingly, the parties hereby agree that in
the event (i) there is any alleged breach or default by any party under this
Agreement or any agreement provided for herein, or (ii) any party has any claim
arising from or relating to any such agreement, no party, nor any party Claiming
through such party shall commence any proceedings or otherwise seek to impose
any liability whatsoever against Xxxx Xxxxxxxxx or Tracinda Corporation by
reason of such alleged breach, default or claim.
24. Anything herein to the contrary notwithstanding, this Agreement shall
be void and of no legal force or effect if (a) the Broker is unable to enter
into a trading plan containing the material provisions of Paragraphs 2, 3, 4 and
5 hereof applicable to the Broker, or (b) an authorized officer of MGM (whose
approval shall be binding on MGM) does not approve the definitive form of
Trading Plan containing such provisions executed by Xxxxxxx and the Broker as
soon as reasonably practicable after the execution thereof (which shall be
confirmed in a written communication from MGM to Xxxxxxx).
25. This Agreement shall remain confidential and, except to the extent
required by law or legal process, the parties shall not disclose the terms and
provisions hereof to any other person or entity (except, in the case of Xxxxxxx,
to his professional advisors or family and, in the case of MGM, to its
affiliates and professional advisors); provided, however, that the Company shall
have the right to file this Agreement with the Securities and Exchange
Commission (the "Commission") if required by applicable provisions of the
Exchange Act. Such filing shall be accompanied by a request from the Company to
treat such filing in a confidential manner in accordance with the Commission's
rules.
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the day and year first above written.
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/s/ Xxxxx X. Xxxxxxx
METRO-XXXXXXX-XXXXX STUDIOS INC. -----------------------
XXXXX X. XXXXXXX
By: /s/ Xxxxxxx X. Xxxxx
_________________________________
Xxxxxxx X. Xxxxx
Senior Executive Vice President
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EXHIBIT A
TRADING PLAN
This Trading Plan pursuant to Rule 10b5-1 under the Securities Exchange Act
of 1934 (the "Exchange Act") is entered into as of November 21, 2001 (the
"Trading Plan") by and between Xxxxx X. Xxxxxxx (the "Seller") and
__________________________ (the "Broker") with reference to the following facts:
WHEREAS, the Seller desires to establish this Trading Plan to sell a
certain amount of Metro-Xxxxxxx-Xxxxx Inc. (the "Issuer") common stock, par
value $.01 per share (the "Common Stock"); and
WHEREAS, the Seller desires to engage Broker to effect such sales of Common
Stock in accordance with the Trading Plan;
NOW, THEREFORE, the Seller and Broker hereby agree as follows:
1. TRADING REQUIREMENTS. Subject to the volume restrictions set forth below,
Broker shall from time to time during the effectiveness of this Trading Plan
effect sales (each a "Sale") on the New York Stock Exchange (the "Exchange") of
the shares of Common Stock to be issued to Seller (the "Bonus Shares") on or
about January 1, 2002 (the "Issuance Date") pursuant to the Issuer's Amended and
Restated 1996 Stock Incentive Plan and the Agreement dated as of November 21,
2001 ("the Bonus Payment Agreement") by and between Issuer and Seller in payment
of a cash bonus otherwise due to Seller pursuant to Issuer's Senior Management
Bonus Plan, the precise number of Bonus Shares not being determinable prior to
December 31, 2001. Except as provided in the next succeeding sentence, the
number of Bonus Shares to be sold, the price and the timing of any sales are to
be within the sole discretion of Broker. It is understood and agreed that the
number of Bonus Shares sold on the Exchange on any single trading day may not
exceed the greater of 25,000 shares or fifteen percent (15%) of the average
daily volume of the Common Stock traded on the Exchange over the prior ten (10)
trading days; provided, however, that Broker may in its discretion enter orders
to sell a lesser amount on any trading day in response to market conditions.
2. EFFECTIVE DATE/TERMINATION. This Trading Plan shall become effective on the
Issuance Date and shall terminate upon the earlier of (i) April 15, 2002 or (ii)
the date on which Seller shall have completed the sale of all of the Bonus
Shares; provided, however, that the effectiveness of the Trading Plan shall be
extended beyond April 15, 2002 to the extent that the sale of all of the Bonus
Shares shall have been precluded solely by virtue of the volume limitations set
forth in Paragraph 1 hereinabove and/or a market or other disruption as set
forth in Paragraph 4 hereinbelow.
3. MODIFICATIONS. This Trading Plan may be terminated by Seller at any time or
may be modified by Seller, provided such modification is in writing, made in
good faith and not as part of a plan or scheme to evade prohibitions of Rule
10b-5 of the Exchange Act and pre-cleared or acknowledged in writing by the
Issuer's designated legal officer.
4. MARKET OR OTHER DISRUPTION. Seller understands that Broker may not be able
to effect Sales due to market disruptions or legal, regulatory or contractual
restrictions applicable to the Broker or to the relevant market. If any Sale
cannot be executed due to a market disruption, a legal, regulatory or
contractual restriction applicable to Broker or any other event, Broker shall
effect such Sale as promptly as practicable after the cessation or termination
of such market disruption, applicable restriction or other event, provided such
Sale otherwise complies with the provisions of this Trading Plan.
5. SELLER REPRESENTATIONS AND WARRANTIES. Seller represents and warrants that:
(a) Seller is not aware at the time of his execution hereof of any material
non-public information with respect to the Issuer or any securities of the
Issuer (including the Common Stock) and is entering into this Trading Plan
in good faith and not as part of a plan or scheme to evade the prohibitions
of Rule 10b5-1 of the Exchange Act.
(b) Seller is currently able to sell shares of the Common Stock in accordance
with the Issuer's xxxxxxx xxxxxxx policies and Seller has obtained the
written approval of the Issuer to enter into this Trading Plan.
6. COMPLIANCE WITH THE SECURITIES LAWS.
(a) It is the intent of the parties that this Trading Plan comply with the
requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act, and this
Trading Plan shall be interpreted to comply with the requirements of Rule
10b5-1(c) thereunder.
(b) Broker agrees to conduct all Sales in accordance with the manner of sale
requirement of Rule 144 under the Securities Act of 1933, as amended ("Rule
144"), if applicable, and in no event shall Broker effect any Sale if such
Sale would exceed the then applicable volume limitations under Rule 144,
assuming Broker's Sales under the Trading Plan are the only sales subject
to that limitation. Seller agrees not to take, and agrees to cause any
person or entity with which he or she would be required to aggregate sales
of the Common Stock pursuant to paragraph (a)(2) or (e) of Rule 144 not to
take, any action that would cause the Sales not to comply with Rule 144.
Broker will be responsible for timely completing and filing on behalf of the
Seller the required Forms 144. Seller understands and agrees that Broker shall
make one Form 144 filing at the beginning of each three-month period commencing
on the Issuance Date. Further, Broker shall provide the Issuer within three (3)
days of each Sale the following information with respect thereto: (a) the date
of the applicable trade; (b) the number of Bonus Shares sold; (c) the price(s)
at which such shares were sold; and (d) the Broker's commission paid with
respect thereto. Broker shall provide Seller with copies of all correspondence
sent to the Issue pursuant to this Paragraph 6(b).
(c) Seller agrees to timely make all filings, if any, required under Section
13(d) and 16 of the Exchange Act.
7. GOVERNING LAW. This Trading Plan shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the undersigned have signed this Trading Plan as of the date
first written above.
-----------------------------------
XXXXX X. XXXXXXX [SELLER]
---------------------------[BROKER]
By:
--------------------------------
Name:
Title:
Acknowledged and agreed to:
METRO-XXXXXXX-XXXXX INC. [ISSUER]
By:
-------------------------------
Xxxxxxx X. Xxxxx
Senior Executive Vice President
EXHIBIT B
DEFINITION OF MARKET DISRUPTION
Each of the following events or circumstances will be deemed (and defined to be)
a "Market Disruption" for purposes of the Bonus Payment Agreement to which this
Exhibit B is attached if any such event or circumstance shall occur prior to the
expiration of the Trading Period:
1. A material adverse change in the financial markets, the market activity of
the Common Stock or the internal systems of Broker of one of its affiliates;
2. An outbreak or escalation of hostilities or other crisis or calamity;
3. A trading suspension with regard to the Common Stock by the Securities and
Exchange Commission or the New York Stock Exchange;
4. A delisting of the Common Stock by the New York Stock Exchange;
5. A banking moratorium;
6. Legal, regulatory or contractual restrictions applicable to Broker or any of
its affiliates or to Xxxxxxx; or
7. A declaration by MGM of a blackout period applicable to Xxxxxxx.
Among other material adverse changes that may be deemed to have occurred in the
market activity of the Common Stock, the parties acknowledge that a material
adverse change in the market activity of the Common Stock will be deemed to have
occurred if the trading volume of the Common Stock on the New York Stock
Exchange during the Trading Period were such that Xxxxxxx, selling the Bonus
Shares at the daily rate of 15% of the total trading volume for such day (up to
a maximum of 25,000 bonus shares), would have been unable to sell all of the
Bonus Shares prior to the expiration of the Trading Period.
