EXHIBIT 1.2
______________________________________________________________________________
______________________________________________________________________________
METRO-XXXXXXX-XXXXX INC.
(a Delaware corporation)
1,800,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: November , 1997
______________________________________________________________________________
______________________________________________________________________________
TABLE OF CONTENTS
INTERNATIONAL PURCHASE AGREEMENT...................................... 1
SECTION 1. Representations and Warranties........................................ 3
(a) Representations and Warranties by the Company and Certain of its
Subsidiaries.......................................................... 3
(i) Compliance with Registration Requirements...................... 3
(ii) Independent Accountants........................................ 4
(iii) Financial Statements........................................... 4
(iv) No Material Adverse Change in Business......................... 5
(v) Good Standing of the Company................................... 5
(vi) Good Standing of Subsidiaries.................................. 5
(vii) Capitalization................................................. 6
(viii) Authorization of Agreement..................................... 6
(ix) Authorization and Description of Securities.................... 6
(x) Absence of Defaults and Conflicts.............................. 7
(xi) Absence of Labor Dispute....................................... 7
(xii) Absence of Proceedings......................................... 7
(xiii) Accuracy of Exhibits........................................... 8
(xiv) Possession of Intellectual Property............................ 8
(xv) Absence of Further Requirements................................ 8
(xvi) Possession of Licenses and Permits............................. 8
(xvii) Title to Property.............................................. 9
(xviii)Compliance with Cuba Act....................................... 9
(xix) Investment Company Act......................................... 9
(xx) Environmental Laws............................................. 9
(xxi) Registration Rights............................................ 10
(xxii) 1934 Act....................................................... 10
(xxiii)Amended Credit Facility........................................ 10
(xxiv) Insurance...................................................... 10
(b) Officer's Certificates................................................ 10
SECTION 2. Sale and Delivery to International Managers; Closing.................. 10
(a) Initial Securities.................................................... 10
(b) Option Securities..................................................... 10
(c) Payment............................................................... 11
(d) Denominations; Registration........................................... 12
(e) Appointment of Qualified Independent Underwriter...................... 12
SECTION 3. Covenants of the Company.............................................. 12
(a) Compliance with Securities Regulations and Commission Requests........ 12
(b) Filing of Amendments.................................................. 12
(c) Delivery of Registration Statements................................... 13
(d) Delivery of Prospectuses.............................................. 13
(e) Continued Compliance with Securities Laws............................. 13
(f) Blue Sky Qualifications............................................... 14
(g) Rule 158.............................................................. 14
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(h) Use of Proceeds...................................................... 14
(i) Listing.............................................................. 14
(j) Restriction on Sale of Securities.................................... 14
(k) Reporting Requirements............................................... 15
(l) Compliance with NASD Rules........................................... 15
SECTION 4. Payment of Expenses.................................................. 15
(a) Expenses............................................................. 15
(b) Termination of Agreement............................................. 16
SECTION 5. Conditions of International Managers' Obligations.................... 16
(a) Effectiveness of Registration Statement.............................. 16
(b) Opinion of Counsel for Company....................................... 16
(c) Opinions of Counsel and Special Counsel for the Underwriters......... 16
(i) Opinion of Counsel for Underwriters........................... 16
(ii) Letter from Special Counsel for Underwriters.................. 17
(e) Officers' Certificate................................................ 17
(f) Accountant's Comfort Letter.......................................... 17
(g) Bring-down Comfort Letter............................................ 17
(h) Approval of Listing.................................................. 18
(i) No Objection......................................................... 18
(j) Lock-up Agreements................................................... 18
(k) Purchase of Initial U.S. Securities.................................. 18
(l) Tracinda Purchase.................................................... 18
(m) Conditions to Purchase of International Option Securities............ 18
(i) Officers' Certificate.......................................... 18
(ii) Opinion of Counsel for Company................................. 18
(iii) Opinion of Counsel for International Managers.................. 19
(iv) Bring-down Comfort Letter...................................... 19
(n) Additional Documents................................................. 19
(o) Termination of Agreement............................................. 19
SECTION 6. Indemnification...................................................... 19
(a) Indemnification of International Managers............................ 19
(b) Indemnification of Company, Directors and Officers................... 21
(c) Actions against Parties; Notification................................ 21
(d) Settlement without Consent if Failure to Reimburse................... 22
(e) Indemnification for Reserved Securities.............................. 22
SECTION 7. Contribution......................................................... 23
SECTION 8. Representations, Warranties and Agreements to Survive Delivery....... 24
SECTION 9. Termination of Agreement............................................. 24
(a) Termination; General................................................. 24
(b) Liabilities.......................................................... 25
SECTION 10. Default by One or More of the International Managers................. 25
SECTION 11. Notices.............................................................. 25
SECTION 12. Parties.............................................................. 26
SECTION 13. GOVERNING LAW AND TIME............................................... 26
SECTION 14. Effect of Headings................................................... 26
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SCHEDULES
Schedule A - List of Underwriters Sch A-1
Schedule B - Pricing Information Sch B-1
Schedule C - List of Persons Subject to Lock-up Sch C-1
EXHIBITS
Exhibit A1 - Form of Opinion of Company's Counsel A1-1
Exhibit A2 - Form of Opinion of Underwriter's Special Counsel A2-1
Exhibit B - Form of Lock-up Letter B-1
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Draft of November 3, 1997
METRO-XXXXXXX-XXXXX INC.
(a Delaware corporation)
1,800,000 Shares of Common Stock
(Par Value $.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
November ___, 1997
XXXXXXX XXXXX INTERNATIONAL
X.X. XXXXXX SECURITIES, LTD.
BEAR, XXXXXXX INTERNATIONAL LIMITED
XXXXXX XXXX LLC
as Lead Managers of the several
International Managers
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
Metro-Xxxxxxx-Xxxxx Inc., a Delaware corporation (the "Company"), confirms
its agreement with Xxxxxxx Xxxxx International ("Xxxxxxx Xxxxx") and each of the
other international underwriters named in Schedule A hereto (collectively, the
"International Managers", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Xxxxxxx
Xxxxx, X.X. Xxxxxx Securities, Ltd., Bear Xxxxxxx International Limited, and
Xxxxxx Xxxx LLC are acting as lead managers (in such capacity, the "Lead
Managers"), with respect to the issue and sale by the Company and the purchase
by the International Managers, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.01 per share, of the
Company ("Common Stock") set forth in said Schedule A, and with respect to the
grant by the Company to the International Managers, acting severally and not
jointly, of the option described in Section 2(b) hereof to purchase all or any
part of 216,000 additional shares of Common Stock to cover over-allotments, if
any. The aforesaid 1,800,000 shares of Common Stock (the "Initial International
Securities") to be purchased by the International Managers and all or any part
of the
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216,000 shares of Common Stock subject to the option described in Section 2(b)
hereof (the "International Option Securities") are hereinafter called,
collectively, the "International Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. Purchase Agreement") providing for
the offering by the Company of an aggregate of 7,200,000 shares of Common Stock
(the "Initial U.S. Securities") through arrangements with certain underwriters
in the United States and Canada (the "U.S. Underwriters") for which Xxxxxxx
Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, X.X. Xxxxxx Securities Inc., Bear,
Xxxxxxx & Co., Inc. and Xxxxxx Xxxx LLC are acting as representatives (the "U.S.
Representatives") and the grant by the Company to the U.S. Underwriters, acting
severally and not jointly, of an option to purchase all or any part of the U.S.
Underwriters' pro rata portion of up to 864,000 additional shares of Common
Stock solely to cover overallotments, if any (the "U.S. Option Securities" and,
together with the International Option Securities, the "Option Securities").
The Initial U.S. Securities and the U.S. Option Securities are hereinafter
called the "U.S. Securities". It is understood that the Company is not
obligated to sell and the International Managers are not obligated to purchase,
any Initial International Securities unless all of the Initial U.S. Securities
are contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "Underwriters", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "Initial
Securities", and the International Securities, and the U.S. Securities are
hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as the Lead Managers
deem advisable after this Agreement has been executed and delivered.
The Company and the International Managers agree that up to _______ shares
of the Initial International Securities to be purchased by the International
Managers and that up to __________ shares of the Initial U.S. Securities to be
purchased by the U.S. Underwriters (collectively, the "Reserved Securities")
shall be reserved for sale by the Underwriters to certain eligible employees and
persons having business relationships with the Company, as part of the
distribution of the Securities by the Underwriters, subject to the terms of this
Agreement, the applicable rules, regulations and interpretations of the National
Association of Securities Dealers, Inc. and all other applicable laws, rules and
regulations. To the extent that such Reserved Securities are not orally
confirmed for purchase by such eligible employees and persons having business
relationships with the Company by the end of the first business day after the
date of this Agreement, such Reserved Securities may be offered to the public as
part of the public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-35411) covering the
registration of the Securities
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under the Securities Act of 1933, as amended (the "1933 Act"), including the
related preliminary prospectus or prospectuses. Promptly after execution and
delivery of this Agreement, the Company will prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations. Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the International Securities (the "Form of
International Prospectus") and one relating to the U.S. Securities (the "Form of
U.S. Prospectus"). The Form of International Prospectus is identical to the
Form of U.S. Prospectus, except for the front cover and back cover pages and the
information under the caption "Underwriting. The information included in any
such prospectus that was omitted from such registration statement at the time it
became effective but that is deemed to be part of such registration statement at
the time it became effective (a) pursuant to paragraph (b) of Rule 430A is
referred to as "Rule 430A Information." Each form of International Prospectus
and Form of U.S. Prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a "preliminary prospectus."
Such registration statement, including the exhibits thereto and schedules
thereto at the time it became effective and including the Rule 430A Information
is herein called the "Registration Statement." Any registration statement filed
pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred to as the
"Rule 462(b) Registration Statement," and after such filing the term
"Registration Statement" shall include the Rule 462(b) Registration Statement.
The final Form of International Prospectus and the final Form of U.S. Prospectus
in the forms first furnished to the Underwriters for use in connection with the
offering of the Securities are herein called the "International Prospectus" and
the "U.S. Prospectus," respectively, and collectively, the "Prospectuses." For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the International Prospectus, the U.S. Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and Certain of its
Subsidiaries. The Company and each subsidiary of the Company named on the
signature pages hereto (the "Signatory Subsidiaries"), jointly and severally,
represents and warrants to each International Manager as of the date hereof, as
of the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each
International Manager, as follows:
(i) Compliance with Registration Requirements. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company (which shall mean for all purposes in this Agreement the knowledge
of the senior executives of the Company and each of the Signatory
Subsidiaries, "knowledge of the Company") are
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contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Prospectuses, any
preliminary prospectuses and any supplement thereto or prospectus wrapper
prepared in connection therewith, at their respective times of issuance and
at the Closing Time, complied and will comply in all material respects with
any applicable laws or regulations of foreign jurisdictions in which the
Prospectuses and such preliminary prospectuses, as amended or supplemented,
if applicable, are distributed in connection with the offer and sale of
Reserved Securities. Neither of the Prospectuses nor any amendments or
supplements thereto (including any prospectus wrapper), at the time the
Prospectuses or any amendments or supplements thereto were issued and at
the Closing Time (and, if any International Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
International Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any International
Manager through the Lead Managers expressly for use in the Registration
Statement or the International Prospectus.
The preliminary prospectus filed as part of Amendment No. 1 to the
Registration Statement, each subsequent preliminary prospectus, filed as a
part of an amendment to the Registration Statement, and the Prospectuses
included in the Registration Statement at the time it became effective or
filed pursuant to Rule 424 under the 1933 Act, complied as to form when the
Registration Statement became effective or when so filed, as applicable, in
all material respects with the 1933 Act Regulations and each preliminary
prospectus and the Prospectuses delivered to the Underwriters for use in
connection with this offering was substantially identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) Independent Accountants. Each of the accountants who certified
the financial statements and supporting schedules included in the
Registration Statement are independent public accountants as required by
the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included in the
Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly in all material respects the financial
position of the Company, its predecessors and their respective consolidated
subsidiaries at the dates indicated and the results of operations,
4
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have been
prepared, in all material respects, in conformity with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods involved. The supporting schedules included in the Registration
Statement present fairly in all material respects in accordance with GAAP
the information required to be stated therein. The selected financial data
and the summary financial information included in the Prospectuses present
fairly in all material respects the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. The pro forma financial
statements and the related notes thereto included in the Registration
Statement and the Prospectuses present fairly in all material respects the
information shown therein, have been prepared in all material respects in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate in all material
respects to give effect to the transactions and circumstances referred to
therein.
(iv) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, assets, properties, business affairs or, to the knowledge of the
Company, business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in
the ordinary course of business, which are material with respect to the
Company and its subsidiaries considered as one enterprise, and (C) there
has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(v) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each other
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X), each
Signatory Subsidiary (each a "Subsidiary" and, collectively, the
"Subsidiaries") and, to the Company's knowledge (without any obligation to
make any inquiries or any independent investigation), United International
Pictures ("UIP") has been duly organized and is validly existing as a
corporation or partnership, as the case may be, in good standing under the
laws of the jurisdiction of its formation, has the power and authority to
own, lease and operate its properties and to
5
conduct its business as described in the Prospectuses and is duly qualified
as a foreign corporation or partnership, as the case may be, to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect;
except as otherwise disclosed in the Registration Statement, all of the
issued and outstanding capital stock of each corporate subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable; all
of the outstanding partnership interests in each partnership subsidiary
and, to the Company's knowledge (without any obligation to make any
inquiries or any independent investigation) UIP, have been duly authorized
by such partnership; and except as disclosed in the Prospectus, all of such
capital stock and partnership interests are owned by the Company, directly
or through subsidiaries, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity; none of the outstanding shares
of capital stock or partnership interests, as the case may be, of any
Subsidiary was issued in violation of the preemptive or similar rights of
any securityholder of such Subsidiary. All of the Subsidiaries of the
Company are listed on Exhibit 21 to the Registration Statement.
(vii) Capitalization. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectuses in the column
entitled "Pro Forma" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, or pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses, or pursuant to Tracinda Purchase (as defined in the
Registration Statement), or pursuant to the exercise of convertible
securities or options referred to in the Prospectuses and except for the
Series A Preferred Stock Conversion and the Stock Split, each as referred
to in the Prospectuses). The shares of issued and outstanding capital stock
of the Company have been duly authorized and validly issued and are fully
paid and non-assessable; none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
(viii) Authorization of Agreement. This Agreement and the U.S.
Purchase Agreement have been duly authorized, executed and delivered by the
Company and the Signatory Subsidiaries.
(ix) Authorization and Description of Securities. The Securities
have been duly authorized for issuance and sale to the International
Managers pursuant to this Agreement and the U.S. Underwriters pursuant to
the U.S. Purchase Agreement, respectively, and, when issued and delivered
by the Company pursuant to this Agreement and the U.S. Purchase Agreement,
respectively, against payment of the consideration set forth herein and the
U.S. Purchase Agreement, respectively, will be validly issued and fully
paid and non-assessable; the Common Stock conforms in all material respects
to all statements relating thereto contained in the Prospectuses and such
description conforms to any description thereof set forth in the stock
certificates evidencing the Common Stock, the Company's Restated
Certificate of Incorporation and bylaws; no holder of the Securities will
be subject to personal liability by reason of being such a holder; and the
issuance of the Securities in the Offering is not subject to the preemptive
or other similar rights of any securityholder of the Company.
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(x) Absence of Defaults and Conflicts. Neither the Company nor any
of its subsidiaries is in violation of its charter or by-laws or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement and the U.S. Purchase Agreement and the consummation of the
transactions contemplated in this Agreement, the U.S. Purchase Agreement
and in the Registration Statement (including the issuance and sale of the
Securities, Metro-Xxxxxxx-Xxxxx Studios Inc.'s and Orion Pictures
Corporation's execution of the Amended Credit Facility (as defined in the
Registration Statement), and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company and the Signatory Subsidiaries
with their respective obligations hereunder and the U.S. Purchase Agreement
have been duly authorized by all necessary corporate and partnership action
and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches or defaults, Repayment
Events or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any subsidiary
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations (except in the case of clause (ii)
for such violations that would not have a Material Adverse Effect). As
used herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any subsidiary.
(xi) Absence of Labor Dispute. No labor dispute with the employees
of the Company or any Subsidiary exists or, to the knowledge of the
Company, is imminent, and the Company is not aware of any existing or
imminent labor disturbance by the employees of any of its or any
Subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which the Company believes is likely
to result in a Material Adverse Effect, or which the Company believes is
likely to materially and adversely affect the properties or assets thereof
or the consummation of the transactions contemplated in this Agreement and
the U.S. Purchase Agreement or the performance by the
7
Company of its obligations hereunder or thereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, is not reasonably expected to result in a Material Adverse
Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectuses or to be filed as exhibits thereto which have not been so
described or filed as required.
(xiv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any of its subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of its subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of
the Securities under this Agreement and the U.S. Purchase Agreement or the
consummation of the transactions contemplated by this Agreement and the
U.S. Purchase Agreement, except (i) such as have been already obtained or
as may be required under the 1933 Act or the 1933 Act Regulations or state
and foreign securities or blue sky laws and (ii) such as have been obtained
under the laws and regulations of jurisdictions outside the United States
in connection with the offering the Reserved Securities.
(xvi) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them except where lack of
such possession would not have a Material Adverse Effect; the Company and
its subsidiaries are in compliance with the terms and conditions of all
such Governmental Licenses, except where the failure so to comply would
not, singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of
8
proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a Material
Adverse Effect.
(xvii) Title to Property. Neither the Company nor any of its
subsidiaries own any real property and the Company and each of its
subsidiaries have good title to all properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind ("Encumbrances"), except
Encumbrances which (a) are described or referred to in the Prospectuses,
(b) do not, singly or in the aggregate, materially affect the value of such
property, or (c) do not materially interfere with the use made and proposed
to be made of such property by the Company or any of its subsidiaries; and
all of the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the Company
or any of its subsidiaries holds properties described in the Prospectuses,
are in full force and effect, and neither the Company nor any subsidiary
has any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any of
the leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease except where
the loss of possession of such leased or subleased premises would not have
a Material Adverse Effect.
(xviii) Compliance with Cuba Act. The Company has complied with, and
is and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder
(collectively, the "Cuba Act") or is exempt therefrom.
(xix) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectuses
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xx) Environmental Laws. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
Subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its Subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their
9
requirements, (C) there are no pending or, to the Company's knowledge,
threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its Subsidiaries and (D) there are no events or
circumstances that could reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of its Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxi) Registration Rights. Other than as described in the
Prospectuses, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement or otherwise registered by the Company under the
1933 Act.
(xxii) 1934 Act. The Company has filed a registration statement
pursuant to Section 12(b) of the Securities Exchange Act of 1934 (the "1934
Act"), to register the Common Stock, and such registration statement has
been declared effective.
(xxiii) Amended Credit Facility. The Company has delivered to Xxxxxxx
Xxxxx executed copies of the Amended Credit Facility Documents and there
have been no amendments to the Amended Credit Facility.
(xxiv) Insurance. Except as described in the Registration Statement,
the Company and each of its Subsidiaries maintains insurance of the types
and in the amounts generally deemed adequate for their respective
businesses, all of which insurance is in full force and effect.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global Coordinator, the Lead
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; Closing.
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each International Manager, severally and not jointly,
and each International Manager, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule B, the number of
Initial International Securities set forth in Schedule A opposite the name of
such International Manager, plus any additional number of Initial International
Securities which such International Manager may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the International Managers,
severally and not jointly, to purchase up to an additional
10
216,000 shares of Common Stock at the price per share set forth in Schedule B,
less an amount per share equal to any dividends or distributions declared by the
Company and payable on the Initial International Securities but not payable on
the International Option Securities. The option hereby granted will expire 30
days after the date hereof and may be exercised in whole or in part from time to
time only for the purpose of covering over-allotments which may be made in
connection with the offering and distribution of the Initial International
Securities upon notice by the Global Coordinator to the Company setting forth
the number of International Option Securities as to which the several
International Managers are then exercising the option and the time and date of
payment and delivery for such International Option Securities. Any such time
and date of delivery for the International Option Securities (a "Date of
Delivery") shall be determined by the Global Coordinator, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the International Option Securities, each
of the International Managers, acting severally and not jointly, will purchase
that proportion of the total number of International Option Securities then
being purchased which the number of Initial International Securities set forth
in Schedule A opposite the name of such International Manager bears to the total
number of Initial International Securities, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) Payment. Payment of the purchase price for the Initial Securities
shall be made at the offices of Xxxxxx, Xxxx & Xxxxxxxx LLP, Los Angeles, or at
such other place as shall be agreed to by the Global Coordinator and the
Company, at 7:00 A.M. (California time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day after the
date hereof (unless postponed in accordance with the provisions of Section 10),
or such other time not later than ten business days after such date as shall be
agreed upon by the Global Coordinator and the Company (such time and date of
payment and delivery being herein called "Closing Time").
In addition, if any or all of the International Option Securities are
purchased by the International Managers, payment of the purchase price for such
International Option Securities shall be made at the above-mentioned offices, or
at such other place as shall be agreed upon by the Global Coordinator and the
Company, on each Date of Delivery as specified in the notice from the Global
Coordinator to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Lead Managers for the respective accounts of the International Managers of
certificates for the International Securities to be purchased by them. It is
understood that each International Manager has authorized the Lead Managers, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial International Securities and the International
Option Securities, if any, which it has agreed to purchase. Xxxxxxx Xxxxx,
individually and not as representative of the International Managers, may (but
shall not be obligated to) make payment of the purchase price for the Initial
International Securities or the International Option Securities, if any, to be
purchased by any International Manager whose funds have not been received by the
Closing Time or the relevant Date of Delivery, as the case may be, but such
payment shall not relieve such International Manager from its obligations
hereunder.
11
(d) Denominations; Registration. Certificates for the Initial
International Securities and the International Option Securities, if any, shall
be in such denominations and registered in such names as the Lead Managers may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
International Securities and the International Option Securities, if any, will
be made available for examination and packaging by the Lead Managers in The City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
(e) Appointment of Qualified Independent Underwriter. The Company hereby
confirms its engagement of Xxxxxxx Xxxxx as, and Xxxxxxx Xxxxx, hereby confirms
its agreement with the Company to render services as, a "qualified independent
underwriter" within the meaning of Rule 2720 of the Conduct Rules of the
National Association of Securities Dealers, Inc. (the "NASD") with respect to
the offering and sale of the International Securities. Xxxxxxx Xxxxx solely in
its capacity as qualified independent underwriter and not otherwise, is referred
to herein as the "Independent Underwriter". The Company and the Lead Managers
agree that Xxxxxxx Xxxxx will not receive any additional benefits hereunder for
serving as the Independent Underwriter in connection with the offering and sale
of the International Securities.
SECTION 3. Covenants of the Company. The Company covenants with each
International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A and will notify the Global Coordinator immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectuses or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will promptly effect the filings
necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted
for filing under Rule 424(b) was received for filing by the Commission and,
if it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Filing of Amendments. The Company will give the Global
Coordinator notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the
Prospectuses, and will furnish the Global Coordinator with copies of any
such documents a reasonable
12
amount of time prior to such proposed filing or use, as the case may be,
and will not file or use any such document to which the Global Coordinator
or counsel for the International Managers shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or
will deliver to the Lead Managers and counsel for the International
Managers, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the Lead
Managers, without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the International Managers. The copies of the Registration Statement
and each amendment thereto furnished to the International Managers will be
substantially identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Company will furnish to each International Manager,
without charge, during the period when the International Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the International Prospectus (as amended or supplemented) as such
International Manager may reasonably request. The International Prospectus
and any amendments or supplements thereto furnished to the International
Managers will be substantially identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to the
extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement, the U.S. Purchase Agreement and in the Prospectuses. If at any
time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel
for the International Managers or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that
the Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement any Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will
promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectuses
comply with such requirements, and the Company will furnish to the
International Managers such number of copies of such amendment or
supplement as the International Managers may reasonably request.
13
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the International Managers, to qualify the Securities
for offering and sale under the applicable securities laws of such states
and other jurisdictions (domestic or foreign) as the Global Coordinator may
designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; provided, however,
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds".
(i) Listing. The Company will use its best efforts to effect the
listing of the Common Stock (including the Securities) on the New York
Stock Exchange.
(j) Restriction on Sale of Securities. During a period of 180 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise transfer or dispose of any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the
1933 Act with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply
to (A) the Securities to be sold hereunder or the U.S. Purchase Agreement,
(B) any shares of Common Stock issued by the Company upon the exercise of
an option or warrant or the conversion of a security outstanding on the
date hereof and referred to in the Prospectuses, or (C) any shares of
Common Stock issued or options to purchase Common Stock granted pursuant to
existing employee benefit plans of the Company referred to in the
Prospectuses. The Company also agrees not to accelerate the exercise
period of all or any portion of any option outstanding at the Closing Time
to a date less than
14
180 days from the date of the Prospectuses without the prior written
consent of the Global Coordinator.
(k) Reporting Requirements. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the rules and regulations of the Commission thereunder.
(l) Compliance with NASD Rules. The Company hereby agrees that it
will ensure that the Reserved Securities will be restricted as required by
the NASD or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of this
Agreement. The Underwriters will notify the Company as to which persons
will need to be so restricted. At the request of the Underwriters, the
Company will direct the transfer agent to place a stop transfer restriction
upon such securities for such period of time. Should the Company release,
or seek to release, from such restrictions any of the Reserved Securities,
the Company agrees to reimburse the Underwriters for any reasonable
expenses (including, without limitation, legal expenses) they incur in
connection with such release.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, any Agreement among Underwriters and such other documents as may be
required in connection with the offering, purchase, sale, issuance or delivery
of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, including any stock or
other transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters and the transfer of
the Securities between the U.S. Underwriters and the International Managers,
(iv) the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the fees and disbursements of counsel for the Underwriters in connection
therewith and in connection with the preparation of the Blue Sky Survey and any
supplement thereto, (vi) the printing and delivery to the Underwriters of copies
of each preliminary prospectus and of the Prospectuses and any amendments or
supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the fees and expenses of any transfer agent or registrar for the Securities,
(ix) the filing fees incident to, and the fees and disbursements of counsel to
the Underwriters in connection with, the review by the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the
Securities, (x) the fees and expenses incurred in connection with the listing of
the Securities on the New York Stock Exchange, (xi) the fees and disbursements
of O'Melveny & Xxxxx LLP for legal due diligence with respect to Company's
Intellectual Property and contractual rights to films and television programs in
the Library (as defined in the Registration Statement), and (xii) all costs and
expenses of the Underwriters, including the fees
15
and disbursements of counsel for the Underwriters, in connection with matters
related to the Reserved Securities which are designated by the Company for sale
to employees and others having a business relationship with the Company.
(b) Termination of Agreement. If this Agreement is terminated by the Lead
Managers in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the International Managers for all of their
out-of-pocket expenses, including the fees and disbursements of counsel for the
International Managers.
SECTION 5. Conditions of International Managers' Obligations. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof or in certificates of any officer of the Company or any
Subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
International Managers. A prospectus containing the Rule 430A Information
shall have been filed with the Commission in accordance with Rule 424(b)
(or a post-effective amendment providing such information shall have been
filed and declared effective in accordance with the requirements of Rule
430A).
(b) Opinion of Counsel for Company. At Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of Closing
Time, of Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, in form and
substance satisfactory to counsel for the International Managers, together
with signed or reproduced copies of such letter for each of the other
International Managers to the effect set forth in Exhibit A hereto and to
such further effect as counsel to the International Managers may reasonably
request. In giving such opinion such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the law of the State of
New York, the State of California, the federal law of the United States and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the U.S. Representatives. Such counsel may also
state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of
the Company and its subsidiaries and certificates of public officials.
(c) Opinions of Counsel and Special Counsel for the Underwriters.
(i) Opinion of Counsel for Underwriters. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as
of Closing Time, of O'Melveny & Xxxxx LLP, counsel for the
International Managers, together with signed or reproduced copies
of such letter for each of the other
16
International Managers, with respect to the matters set forth in
clauses (i), (v), (vi) (solely as to preemptive or other similar
rights arising under the charter or bylaws of the Company),
(viii) through (xi), inclusive, (xiii) (solely as to the
information in the Prospectus under "Description of Capital
Stock--Common Stock") and the penultimate paragraph of Exhibit A
hereto (except with respect to any description or interpretation
of the WHV Agreement or any dispute relating thereto). In giving
such opinion such counsel may rely, as to all matters governed by
the laws of jurisdictions other than the law of the State of New
York, the State of California, the federal law of the United
States and the General Corporation Law of the State of Delaware,
upon the opinions of counsel satisfactory to the Lead Managers.
Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(ii) Letter from Special Counsel for Underwriters. At Closing
Time, the Lead Managers shall have received a letter, dated as of the
Closing Time, from Xxxxxx Xxxxxx & Xxxxxxx, special counsel for the
International Managers, together with signed or reproduced copies of
such letter for each of the other International Managers in the form
of Exhibit A2 hereto.
(e) Officers' Certificate. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectuses, any material adverse change in
the condition, financial or otherwise, or in the earnings, assets,
properties, business affairs or, to the knowledge of the Company, business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the Lead
Managers shall have received a certificate of the Vice Chairman or a Senior
Executive Vice President of the Company and of the Chief Financial Officer
of the Company, dated as of Closing Time, to the effect that (i) there has
been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force
and effect as though expressly made at and as of Closing Time, (iii) the
Company has complied with all agreements and satisfied all conditions on
its part to be performed or satisfied at or prior to Closing Time, and (iv)
no stop order suspending the effectiveness of the Registration Statement
has been issued and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, are contemplated by the
Commission.
(f) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Lead Managers shall have received from each of Xxxxxx
Xxxxxxxx LLP, Price Waterhouse LLP and KPMG Peat Marwick LLP a letter dated
such date, in form and substance satisfactory to the Lead Managers,
together with signed or reproduced copies of such letters for each of the
other International Managers containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in the Registration Statement and the Prospectuses.
17
(g) Bring-down Comfort Letter. At Closing Time, the Lead Managers
shall have received from each of Xxxxxx Xxxxxxxx LLP, Price Waterhouse LLP
and KPMG Peat Marwick LLP a letter, dated as of Closing Time, to the effect
that they reaffirm the statements made in the letters furnished pursuant to
subsection (e) of this Section, except that the specified date referred to
shall be a date not more than three business days prior to Closing Time.
(h) Approval of Listing. At Closing Time, the Securities shall have
been approved for listing on the New York Stock Exchange, subject only to
official notice of issuance.
(i) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(j) Lock-up Agreements. At the date of this Agreement, the Lead
Managers shall have received an agreement substantially in the form of
Exhibit B hereto signed by the persons listed on Schedule C hereto.
(k) Purchase of Initial U.S. Securities. Contemporaneously with the
purchase by the International Managers of the Initial International
Securities under this Agreement, the U.S. Underwriters shall have purchased
the Initial U.S. Securities under the U.S. Purchase Agreement.
(l) Tracinda Purchase. Contemporaneously with the purchase by the
International Managers of the Initial International Securities under this
Agreement, Tracinda shall have made the Tracinda Purchase and all executed
copies of all documents relating to the Tracinda Purchase shall have been
delivered to the Lead Managers.
(m) Conditions to Purchase of International Option Securities. If the
International Managers exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the International Option
Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company or
any subsidiary of the Company hereunder shall be true and correct as of
each Date of Delivery and, at the relevant Date of Delivery, the Lead
Managers shall have received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Vice Chairman or a Senior Executive Vice President of
the Company and of the Chief Financial Officer of the Company
confirming that the certificate delivered at the Closing Time pursuant
to Section 5(d) hereof remains true and correct as of such Date of
Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of
Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Company, in form and
substance satisfactory to counsel for the International Managers,
dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(b) hereof.
(iii) Opinion of Counsel for International Managers. The
favorable opinion of O'Melveny & Xxxxx LLP, counsel for the
International Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased on
18
such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(iv) Bring-down Comfort Letter. A letter from each of Xxxxxx
Xxxxxxxx LLP, Price Waterhouse LLP and KPMG Peat Marwick LLP, in form
and substance satisfactory to the Lead Managers and dated such Date of
Delivery, substantially in the same form and substance as the letters
furnished to the Lead Managers pursuant to Section 5(f) hereof, except
that the "specified date" in the letter furnished pursuant to this
paragraph shall be a date not more than five days prior to such Date
of Delivery.
(n) Additional Documents. At Closing Time and at each Date of
Delivery counsel for the International Managers shall have been furnished
with such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company in connection
with the issuance and sale of the Securities as herein contemplated shall
be satisfactory in form and substance to the Lead Managers and counsel for
the International Managers.
(o) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement, or, in the case of any condition to the purchase of
International Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several International Managers to
purchase the relevant Option Securities may be terminated by the Lead
Managers by notice to the Company at any time at or prior to Closing Time
or such Date of Delivery, as the case may be, and such termination shall
be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of International Managers.
(1) The Company and each Signatory Subsidiary, jointly and severally,
agrees to indemnify and hold harmless each International Manager and each
person, if any, who controls any International Manager within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectuses
(or any amendment or supplement thereto), or the omission
19
or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable
laws or regulations of foreign jurisdictions in connection with the offer
or sale of Reserved Securities and (B) any untrue statement or alleged
untrue statement of a material fact included in the supplement or
prospectus wrapper material distributed in Australia, Canada, France, and
the United Kingdom in connection with the reservation and sale of the
Reserved Securities to eligible employees of, and persons having business
relationships with, the Company or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein,
when considered in conjunction with the Prospectuses or preliminary
prospectuses, not misleading;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission or in connection with any violation of
the nature referred to in Section 6(a)(1)(ii)(A) hereof; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company; and
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Xxxxxxx Xxxxx), incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission or in
connection with any violation of the nature referred to in Section
6(a)(1)(ii)(A) hereof, to the extent that any such expense is not paid
under (i), (ii) or (iii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager through the Lead Managers expressly for use in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information, if applicable, or any preliminary prospectus or the International
Prospectus (or any amendment or supplement thereto) and provided further that
the Company will not be liable to a International Manager with respect to any
preliminary international prospectus or International Prospectus (or any
amendments or supplements thereto) to the extent that the Company shall sustain
the burden of proving that any such loss, liability, claim, damage or expense
resulted from the fact that such International Manager, in contravention of a
requirement of this Agreement or applicable law, sold International Securities
to a person to whom such International Manager failed to send or give, at or
prior to the written confirmation of the sale of such Securities to such person,
a copy of the applicable prospectus (as then amended or supplemented if the
Company has furnished any amendments or supplements thereto) if the Company has
previously furnished a copy of such prospectus (or amendment or supplement
thereto) to such International Manager sufficiently in
20
advance of such confirmation date to allow for distribution by such date and the
loss, liability, claim, damage or expense of such International Manager resulted
from an untrue statement or omission or alleged untrue statement or omission of
a material fact contained in or omitted from any previously delivered
preliminary international prospectus or International Prospectus (or amendment
or supplement thereto) which was corrected in such prospectus as amended or
supplemented prior to such confirmation.
(2) In addition to and without limitation of the Company's obligation to
indemnify Xxxxxxx Xxxxx as an Underwriter, the Company also agrees to indemnify
and hold harmless the Independent Underwriter and each person, if any, who
controls the Independent Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, from and against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, incurred as a
result of the Independent Underwriter's participation as a "qualified
independent underwriter" within the meaning of Rule 2720 of the Conduct Rules of
NASD in connection with the offering of the International Securities except to
the extent resulting primarily from the bad faith or gross negligence of the
Independent Underwriter.
(b) Indemnification of Company, Directors and Officers. Each International
Manager severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection
(a)(1) of this Section, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information, if applicable, or any preliminary international prospectus or the
International Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the Company by such
International Manager through the Lead Managers expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the International Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a)(1)
above, counsel to the indemnified parties shall be selected by Xxxxxxx Xxxxx,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances; provided, that, if
21
indemnity is sought pursuant to Section 6(a)(2), then, in addition to the fees
and expenses of such counsel for the indemnified parties, the indemnifying party
shall be liable for the fees and expenses of not more than one counsel (in
addition to any local counsel) separate from its own counsel and that of the
other indemnified parties for the Independent Underwriter in its capacity as a
"qualified independent underwriter" and all persons, if any, who control the
Independent Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of 1934 Act in connection with any one action or separate but similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances if, in the reasonable judgment of the Independent
Underwriter, there may exist a conflict of interest between the Independent
Underwriter and the other indemnified parties. Any such separate counsel for
the Independent Underwriter and such control persons of the Independent
Underwriter shall be designated in writing by the Independent Underwriter. No
indemnifying party shall, without the prior written consent of the indemnified
parties (which consent shall not be unreasonably delayed or withheld), settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(1)(ii) or Section 6(a)(1)(iii) effected without its written consent
if (i) such settlement is entered into more than 60 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 45 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement. Notwithstanding the immediately preceding
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, an indemnifying party shall not be liable for any settlement of the
nature contemplated by Section 6(a)(1)(ii) or Section 6(a)(1)(iii) effected
without its consent if such indemnifying party (i) reimburses such indemnified
party in accordance with such request to the extent it considers such request to
be reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
(e) Indemnification for Reserved Securities. In connection with the offer
and sale of the Reserved Securities, the Company agrees, promptly upon a request
in writing, to indemnify and hold harmless the Underwriters from and against any
and all losses, liabilities, claims, damages and expenses incurred by them as a
result of the failure of eligible employees of, and persons having business
relationships with, the Company to pay for and accept delivery of Reserved
Securities which, by the end of the first business day following the date of
this Agreement, were subject to a properly confirmed agreement to purchase.
22
SECTION 7. Contribution. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the International Managers on the other hand from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
International Managers on the other hand in connection with the statements or
omissions or in connection with any violation of the nature referred to in
Section 6(a)(1)(ii)(A) hereof, which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the Company on the one hand and the
International Managers on the other hand in connection with the offering of the
International Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus.
The relative fault of the Company on the one hand and the International
Managers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the International Managers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission or any violation of the nature referred to in
Section 6(a)(1)(ii)(A) hereof.
The Company and the International Managers agree that it would not be just
and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the International Managers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7 shall
be deemed to include any legal or other expenses incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Managers has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission.
23
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Managers within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The International Managers' respective obligations to contribute pursuant to
this Section 7 are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any International Manager or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the International Managers, provided that in no
event shall this Section 9 be construed as a waiver by the Company of any
applicable statute of limitations.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Lead Managers may terminate this Agreement,
by notice to the Company, at any time at or prior to Closing Time (i) if there
has been, since the time of execution of this Agreement or since the respective
dates as of which information is given in the International Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings, assets, properties, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
judgment of the Lead Managers, impracticable to market the Securities or to
enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the Nasdaq National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and
24
provided further that Sections 1, 6, 7 and 8 shall survive such termination and
remain in full force and effect.
SECTION 10. Default by One or More of the International Managers. If one
or more of the International Managers shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the Lead Managers shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting International Managers, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the Lead
Managers shall not have completed such arrangements within such 24-hour period,
then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, each of
the non-defaulting International Managers shall be obligated, severally and
not jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after the Closing Time,
the obligation of the International Managers to purchase and of the Company
to sell the Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any non-
defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after the Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the Lead Managers or
the Company shall have the right to postpone Closing Time or the relevant Date
of Delivery, as the case may be, for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "International
Manager" includes any person substituted for an International Manager under this
Section 10.
SECTION 11. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at North Tower,
World Financial Center, New York, New York 10281-1201, and 00000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, xxxxxxxxx of Mr. Xxxx
Xxxxxx and Xx. Xxxx Xxxxxx, with a copy to O'Melveny & Xxxxx LLP, 0000 Xxxxxx xx
xxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, attention of Xxxxxxx
Xxxxxx, Esq.; and notices to the Company shall be directed to it at 0000
Xxxxxxxx Xxxxxx, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, attention of Xxxxx Xxxxxxx,
25
Esq., with a copy to Xxxxxx, Xxxx & Xxxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000, attention of Xxxxx Xxxxx, Esq.
SECTION 12. Parties. This Agreement shall each inure to the benefit of
and be binding upon the International Managers and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the International Managers and the Company and their respective successors
and the controlling persons and officers and directors referred to in Sections 6
and 7 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the International Managers and the
Company and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities
from any International Manager shall be deemed to be a successor by reason
merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
26
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the International Managers and the Company in accordance with its terms.
Very truly yours,
METRO-XXXXXXX-XXXXX INC.
By
Title:
GOLDWYN ENTERTAINMENT COMPANY
By
Title:
METRO-XXXXXXX-XXXXX STUDIOS INC.
By
Title:
ORION PICTURES CORPORATION
By
Title:
UNITED ARTISTS CORPORATION
By
Title:
27
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX INTERNATIONAL
X.X. XXXXXX SECURITIES LTD.
BEAR, XXXXXXX INTERNATIONAL LIMITED
XXXXXX XXXX LLC
By
Authorized Signatory
For themselves and as Lead Managers of the
other International Managers named in Schedule A hereto.
28
SCHEDULE A
Number of
Initial
International
Name of International Manager Securities
Xxxxxxx Xxxxx International.................
X.X. Xxxxxx Securities Ltd..................
Bear, Xxxxxxx International Limited.........
Xxxxxx Xxxx LLC.............................
Total ..................................... 1,800,000 [1]
SCH A - 1
SCHEDULE B
METRO-XXXXXXX-XXXXX INC.
1,800,000 Shares of Common Stock
(Par Value $.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $..
2. The purchase price per share for the International Securities to
be paid by the several International Managers shall be $., being an amount
equal to the initial public offering price set forth above less $. per
share; provided that the purchase price per share for any International
Option Securities purchased upon the exercise of the over-allotment option
described in Section 2(b) shall be reduced by an amount per share equal to
any dividends or distributions declared by the Company and payable on the
Initial International Securities but not payable on the International
Option Securities.
SCH B - 1
SCHEDULE C
Xxxxx X. Xxxxxxx
A. Xxxxxx Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx Xxxxxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
Tracinda Corporation
Miltonstar Property
Celsus Financial Corp.
Xxxx X. Xxxxx
Xxxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx
SCH C - 1
Exhibit A1
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
Section 5(b)
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the U.S.
Purchase Agreement and the International Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which the
ownership or leasing of its property or the conduct of its business require such
qualification, except where the failure so to qualify or to be in good standing
would not result in a material adverse effect on the condition, financial or
otherwise, or on the earnings, assets, properties, or business of the Company
and its subsidiaries, considered as one enterprise (a "Material Adverse
Effect").
(iv) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectuses in the column entitled "Pro Forma"
under the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the U.S. Purchase Agreement and the International Purchase Agreement
or pursuant to reservations, agreements or employee benefit plans referred to in
the Prospectuses, or pursuant to the Tracinda Purchase, or pursuant to the
exercise of convertible securities or options referred to in the Prospectuses
and except for the "Series A Preferred Stock Conversion" and the "Stock Split"
(as such terms are defined in the Prospectus); the shares of issued and
outstanding capital stock of the Company have been duly authorized and validly
issued and are fully paid, non-assessable and owned of record by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien or encumbrance; and none of the outstanding shares of
capital stock of the Company was issued in violation of any preemptive or other
similar rights of any securityholder of the Company which may exist under the
certificate of incorporation or bylaws of the Company or under the agreements
that have been filed as exhibits to the Registration Statement.
(v) The Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement respectively, and, when issued and delivered by
the Company pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement respectively, against payment of the consideration set forth
in the U.S. Purchase Agreement and the International Purchase Agreement, will be
validly issued and fully paid and non-assessable and no holder of the Securities
is or will be subject to personal liability by reason of being such a holder.
(vi) The issuance of the Securities is not subject to any preemptive
or other similar rights of any securityholder of the Company which may exist
under the certificate of incorporation or
A1-1
bylaws of the Company or under the agreements that have been filed as exhibits
to the Registration Statement.
(vii) Each of the subsidiaries of the Company listed on Exhibit 21 to
Amendment No. 1 to the Registration Statement which have been incorporated under
the laws of Delaware or New York (the "U.S. Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Prospectuses and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which the
ownership or leasing of its property or the conduct of its business require such
qualification, except where the failure so to qualify or to be in good standing
would not result in a Material Adverse Effect; except as otherwise disclosed in
the Registration Statement, all of the issued and outstanding capital stock of
each U.S. Subsidiary has been duly authorized and validly issued, is fully paid
and non-assessable and, to the best of our knowledge, is owned of record by, and
to the best of our knowledge beneficially owned by, the Company, directly or
through subsidiaries, free and clear of any security interest, mortgage, pledge,
lien or encumbrance; none of the outstanding shares of capital stock of any U.S.
Subsidiary was issued in violation of any preemptive or similar rights of any
securityholder of such U.S. Subsidiary which may exist under the certificate of
incorporation or bylaws of such U.S. Subsidiary or under agreements that have
been filed as exhibits to the Registration Statement.
(viii) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by the Company.
(ix) The Registration Statement[, including any Rule 462(b)
Registration Statement,] has been declared effective under the 1933 Act; any
required filing of the Prospectuses pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and, to the best of
our knowledge, no stop order suspending the effectiveness of the Registration
Statement [or any Rule 462(b) Registration Statement] has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(x) The Registration Statement[, including any Rule 462(b)
Registration Statement,] and the Rule 430A Information [, as applicable], the
Prospectuses and each amendment or supplement to the Registration Statement and
Prospectuses as of their respective effective or issue dates (other than the
financial statements and supporting schedules and other financial data included
therein or omitted therefrom, as to which we need express no opinion) complied
as to form in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
(xi) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory requirements and
with any applicable requirements of the charter and by-laws of the Company.
(xii) Except for the matters described in the Prospectuses, to the
best of our knowledge, there is not pending or threatened any action, suit,
proceeding, inquiry or investigation, to which the Company or any subsidiary is
a party, or to which the property of the Company or any subsidiary is subject,
before or brought by any court or governmental agency or body, that is required
to be disclosed in the Prospectuses pursuant to the
A1-2
1933 Act and the 1933 Act Regulations and that is not so disclosed or which
might reasonably be expected to materially and adversely affect the
enforceability of the U.S. Purchase Agreement and the International Purchase
Agreement.
(xiii) The information in the Prospectuses under "Risk Factors -
Ownership and Control of Principal Stockholders," "Risk Factors - Possible Anti-
Takeover Effect of Certain Charter Provisions," "Risk Factors - Shares Eligible
for Future Sale," "Description of Capital Stock--Common Stock", "Management -
Limitation of Liability and Indemnification Matters," "Description of Capital
Stock," "Ownership of Voting Securities - Investors Shareholder Agreement,"
"Ownership of Voting Securities - Shareholders Agreement," and "Shares Eligible
for Future Sale" and in the Registration Statement under Item 14, to the extent
that it constitutes matters of law, summaries of legal matters, the Company's
charter and by-laws or legal conclusions, has been reviewed by us and is correct
in all material respects.
(xiv) To the best of our knowledge, there are no statutes or
regulations that are required to be described in the Prospectuses that are not
described as required.
(xv) To the best of our knowledge, there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required to be described or referred to in the Registration Statement or to be
filed as exhibits thereto other than those described or referred to therein or
filed as exhibits thereto, and the descriptions thereof or references thereto
are correct in all material respects.
(xvi) To the best of our knowledge, neither the Company nor any
subsidiary is in violation of its charter or by-laws and, except as described in
the Registration Statement and except for such defaults that would not result in
a Material Adverse Effect, no default by the Company or any Subsidiary exists in
the due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is filed as an
exhibit to the Registration Statement.
(xvii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency (other than under the 1933 Act and the 1933 Act Regulations,
which have been obtained, or as may be required under the securities or blue sky
laws of the various states, as to which we need express no opinion) is necessary
or required in connection with the due authorization, execution and delivery of
the U.S. Purchase Agreement and the International Purchase Agreement or for the
offering, issuance, sale or delivery of the Securities.
(xviii) The execution, delivery and performance of the U.S. Purchase
Agreement and the International Purchase Agreement and the consummation of the
transactions contemplated in the U.S. Purchase Agreement, the International
Purchase Agreement and the Registration Statement (including the issuance and
sale of the Securities and the use of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use Of Proceeds")
and compliance by the Company with its obligations under the U.S. Purchase
Agreement and the International Purchase Agreement do not, and (other than the
indemnification and contribution provisions thereof, as to which we express no
opinion) will not, whether with or without the giving of notice or lapse of time
or both,
A1-3
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 1(a)(x) of the Purchase Agreements) under or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, that has been filed as an exhibit to the Registration
Statement and to which the Company or any subsidiary is a party or by which it
or any of them may be bound or to which any of the property or assets of the
Company or any subsidiary is subject (except for such conflicts, breaches or
defaults or Repayment Events or liens, charges or encumbrances that would not
have a Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any U.S. Subsidiary,
or (other than (a) the federal securities laws and regulations, except to the
extent specifically set forth herein, or (b) the securities or blue sky laws of
the various states of the United States of America, as to which we express no
opinion, and except for such violations that would not have a Material Adverse
Effect) any applicable law, statute, rule, regulation, judgment, order, writ or
decree, known to us, of any government, government instrumentality or court
having jurisdiction over the Company or any Subsidiary or any of their
respective properties, assets or operations.
(xix) Except as discussed in the Registration Statement, to the best
of our knowledge, there are no persons with registration rights or other similar
rights to have any securities registered pursuant to the Registration Statement
or otherwise registered by the Company under the 1933 Act.
(xx) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the 1940
Act.
Such opinion shall also state as follows:
During the course of preparation of the Registration Statement and the
Prospectuses, we participated in conferences with representatives of the Company
and their independent accountants and your representatives and your counsel, at
which conferences the contents of the Registration Statement and the
Prospectuses and related matters were discussed. Except as specifically noted
herein, we are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or Prospectuses and we make no representation, express or
implied, that we have independently verified the accuracy, completeness or
fairness of such statements. However, based on and subject to the foregoing,
nothing has come to our attention that would lead us to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information (if applicable), (except for financial statements, schedules and
other financial data included therein or omitted therefrom or information
derived from the foregoing, as to which we need make no statement), at the time
such Registration Statement or any such amendment became effective, contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
or that the Prospectuses or any amendment or supplement thereto (except for
financial statements, schedules and other financial data included therein or
omitted therefrom or information derived from the foregoing, as to which we need
make no statement), at the time the Prospectuses were issued, at the time any
such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a
A1-4
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
A1-5
Exhibit A2
[ ], 1997
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxx Securities Inc.
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Xxxx LLC
as U.S. Representatives of the several
U.S. Underwriters listed on Schedule A
to the U.S. Purchase Agreement referred to below
Xxxxxxx Xxxxx International
X.X. Xxxxxx Securities Ltd.
Bear, Xxxxxxx International Ltd.
Xxxxxx Xxxx LLC
as Lead Managers of the several International
Managers listed on Schedule A to the U.S. Purchase
Agreement referred to below
Re: Metro-Xxxxxxx-Xxxxx Inc. - Initial
Public Offering of Common Stock
Ladies and Gentlemen:
This letter is being furnished to you pursuant to (1) Section [ ]
of the U.S. Purchase Agreement dated as of November [ ], 1997 (the "U.S.
Purchase Agreement") by and among Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated, X.X. Xxxxxx Securities Inc. Bear, Xxxxxxx & Co. Inc., and Xxxxxx
Xxxx LLC as U.S. Representatives of the several U.S. Underwriters listed on
Schedule A thereto ("the U.S. Underwriters"), and Metro-Xxxxxxx-Xxxxx Inc., as
issuer (the "Company"), relating to the issuance and sale by the Company to the
U.S. Underwriters today of an aggregate of [ ] shares of common stock, par value
$.01 per share (the "Common Stock"), of the Company, and (2) Section [ ] of the
International Purchase Agreement dated as of November [ ], 1997 (the
"International Purchase Agreement"; together with the U.S. Purchase Agreement,
the "Purchase Agreements") by and among Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
International, X.X. Xxxxxx Securities Ltd., Bear, Xxxxxxx International Limited
and Xxxxxx Xxxx LLC, as Lead Managers of the International Managers listed on
Schedule A thereto (the "International Managers"), and the Company relating to
the issuance and sale by the Company to
the International Managers today of an aggregate of [ ] shares of Common
Stock. Capitalized terms used herein without definition have the meanings
specified in the Purchase Agreements.
In connection with this letter, we have examined originals,
photocopies or conformed copies certified to our satisfaction of all such
agreements, instruments and documents of the Company and its subsidiaries as we
have deemed appropriate and have made such other investigations as we have
deemed appropriate in connection with the statements set forth herein. In our
examination, we have assumed (a) the authenticity of all documents submitted to
us as originals, (b) the conformity to the original documents of all documents
submitted to us as copies and (c) the genuineness of all signatures on all
documents submitted to us. We have relied, as to certain factual matters, on
certificates of officers of the Company and upon representations and warranties
set forth in the Purchase Agreements.
At your request, we have reviewed (a) that certain Video Rights
Agreement, dated November 1, 1990, by and among Pathe Communications
Corporation, MGM-Pathe Communications Corporations, MGM/UA Communications Co.,
and UA Pictures, Inc. and their affiliated entities, and Warner Home Video, Inc.
(collectively, the "Parties"), as amended by the First Audit Settlement
Agreement, dated April 1, 1995, between the Parties (or their successors-in-
interest), and the exhibits and schedules to each of the foregoing
(collectively, the "WHV Agreement"), and (b) the descriptions of the WHV
Agreement and any disputes relating thereto set forth in the Prospectuses and
the Registration Statement (collectively, the "Disclosures"). We have also
participated in telephonic conferences with certain officers and other
representatives of the Company having familiarity with the WHV Agreement and the
home video business of the Company and its subsidiaries to discuss the WHV
Agreement and related matters. Given the limitations inherent in the role of
outside counsel and the character of determinations involved in the preparation
of the Disclosures, we are not passing upon and do not assume any responsibility
for the accuracy, completeness or fairness of the Disclosures and have made no
independent check or verification thereof. Subject to the foregoing, no facts
have come to our attention that cause us to believe that the Disclosures in the
Registration Statement at the time it became effective or as of the Closing Time
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or that the Disclosures in the Prospectuses as of their
respective dates or as of the Closing Time contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
Disclosures, in the light of the circumstances under which they were made, not
misleading (it being understood that we express no belief with respect to any
financial or statistical data found in or related to the Disclosures or as to
whether the WHV Agreement should or should not be filed as an exhibit to the
Registration Statement).
Neither this letter nor any part hereof may be delivered to, used or
relied upon by any person other than the U.S. Underwriters and the International
Managers without our prior written consent.
A2-2
[FORM OF LOCK-UP FROM DIRECTORS, OFFICERS OR OTHER STOCKHOLDERS PURSUANT TO
SECTION 5(i)]
Exhibit B
November __, 1997
XXXXXXX XXXXX INTERNATIONAL
X.X. XXXXXX SECURITIES LTD.
BEAR, XXXXXXX INTERNATIONAL LIMITED
XXXXXX XXXX LLC
as Lead Managers of the several
International Managers to be
named in the within-mentioned
International Purchase Agreement
c/x Xxxxxxx Xxxxx International
Ropemaker Place
00 Xxxxxxxxx Xxxxxx
Xxxxxx XX00 0X0
Xxxxxxx
Re: Proposed Public Offering by Metro-Xxxxxxx-Xxxxx, Inc.
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of
Metro-Xxxxxxx-Xxxxx Inc., a Delaware corporation (the "Company"), understands
that Xxxxxxx Xxxxx International ("Xxxxxxx Xxxxx"), X.X. Xxxxxx Securities,
Ltd., Bear, Xxxxxxx International Limited and Xxxxxx Xxxx LLC propose to enter
into a Purchase Agreement (the "International Purchase Agreement") with the
Company providing for the public offering of shares (the "Securities") of the
Company's common stock, par value $.01 per share (the "Common Stock"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder [an officer and/or director] of the Company, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agrees with each underwriter to be
named in the International Purchase Agreement that, during a period of 180 days
from the date of the International Purchase Agreement, the undersigned will not,
without the prior written consent of Xxxxxxx Xxxxx, directly or indirectly, (i)
offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant for
the sale of, or otherwise dispose of or transfer any shares of the Company's
Common Stock or any securities convertible into or exchangeable or exercisable
for Common Stock, whether now owned or hereafter acquired by the undersigned or
with respect to which the undersigned has or hereafter acquires the power of
disposition, or file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of
B-1
the Common Stock, whether any such swap or transaction is to be settled by
delivery of Common Stock or other securities, in cash or otherwise.
[Insert in Tracinda lock-up; provided, however, that the U.S. Representatives
acknowledge that the undersigned has pledged and may pledge in the future any
such shares of the Company's Common Stock now or hereafter owned by the
undersigned pursuant to its existing and any future pledge or loan agreements.
[Insert in Tracinda and Seven lock-up; provided, however, that the undersigned
may transfer, or grant options to purchase, up to an aggregate of [145,834] of
such shares of Common Stock to the undersigned's directors, officers, employees
and affiliates so long as such transferee or optionee agrees in writing to be
bound by a letter agreement substantially in the form of this Letter Agreement.]
Very truly yours,
Signature:
Print Name:
B-2
