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EXHIBIT 10(f)
CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT ("Agreement"), dated as of November 1, 1995 among
Met International, Inc., a Delaware corporation ("Met International"),
MetProductions, Inc., a Delaware corporation ("MetProductions"), and The Actava
Group Inc., a Delaware corporation ("Actava").
WHEREAS, pursuant to an Amended and Restated Agreement and Plan of Merger,
dated as of September 27, 1995 (the "Merger Agreement"), among Actava, Orion
Pictures Corporation, a Delaware corporation ("Orion"), MCEG Sterling
Incorporated, a Delaware corporation ("Sterling"), Metromedia International
Telecommunications, Inc., a Delaware corporation ("MITI"), OPC Merger Corp., a
Delaware corporation and a wholly owned subsidiary of Actava ("OPC Mergerco"),
and MITI Merger Corp., a Delaware corporation and a wholly owned subsidiary of
Actava ("MITI Mergerco"), each of Actava, Orion, Sterling, MITI, OPC Mergerco
and MITI Mergerco have agreed that (i) Orion will merge with and into OPC
Mergerco (the "Orion Merger"), with OPC Mergerco being the surviving corporation
of the Orion Merger, (ii) Sterling will merge with and into Actava (the
"Sterling Merger"), with Actava being the surviving corporation (the "Surviving
Corporation") of the Sterling Merger and (iii) MITI will merge with and into
MITI Mergerco (the "MITI Merger" and together with the Orion Merger and the
Sterling Merger, the "Mergers"), with MITI Mergerco being the surviving
corporation of the MITI Merger;
WHEREAS, pursuant to Section 12.3.10 of the Merger Agreement, it is a
condition (the "Section 12.3.10 Condition") to the consummation of the Orion
Merger that all of the MetProductions Indebtedness (as defined in the Merger
Agreement) and the MII Indebtedness (as defined in the Merger Agreement) will be
either refinanced or repaid in full or contributed, assigned or conveyed to the
Surviving Corporation in exchange for shares of common stock of the Surviving
Corporation, par value $1.00 per share (the "Common Stock");
WHEREAS, if the Section 12.3.10 Condition is to be satisfied by the
contribution, assignment or conveyance of the MetProductions Indebtedness and/or
the MII Indebtedness in exchange for shares of Common Stock, MetProductions or
Met International, as the case may be, will contribute, assign or convey to the
Surviving Corporation the MetProductions Indebtedness and/or the MII
Indebtedness, as the case may be, in exchange for shares of Common Stock in
accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto agree as
follows:
ARTICLE I
CONTRIBUTION OF INDEBTEDNESS
1.1 Contribution of Indebtedness and Issuance of Stock. If the Section
12.3.10 Condition is to be satisfied by the contribution, assignment or
conveyance of the MII Indebtedness and/or the MetProductions Indebtedness in
exchange for shares of Common Stock, MetProductions or Met International, as the
case may be, will execute all necessary documentation and take all necessary
action in order to contribute, assign or convey to the Surviving Corporation
such MetProductions Indebtedness and/or MII Indebtedness, as the case may be,
and (b) in exchange therefor, the Surviving Corporation shall issue (i) to
MetProductions, a certificate or certificates registered in the name of
MetProductions, or any permitted assignee of MetProductions, representing a
number of shares of Common Stock equal to the product of (A) the quotient of (I)
the aggregate amount of such MetProductions Indebtedness as of the Effective
Time (as defined in the Merger Agreement) divided by (II) 6, multiplied by (B)
the Orion Exchange Ratio (as defined in the Merger Agreement), and/or (ii) to
Met International, a certificate or certificates registered in the name of Met
International, or any permitted assignee of Met International, representing a
number of shares of Common Stock equal to the product of (A) the quotient of (I)
the aggregate amount of such MII Indebtedness as of
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the Effective Time divided by (II) the quotient of (a) 100,000,000 divided by
(b) the number of shares of MITI Common Stock (as defined in the Merger
Agreement) outstanding as of the Determination Date (as defined in the Merger
Agreement), multiplied by (B) the MITI Exchange Ratio.
If MetProductions and/or Met International does contribute, assign or
convey to the Surviving Corporation the MetProductions Indebtedness or the MII
Indebtedness in the manner described above, for purposes of this Agreement, such
contribution, assignment or conveyance shall be referred to herein as the
"Contribution" and MetProductions and/or Met International, as the case may be,
shall be referred to as a "Metromedia Holder."
1.2 Closing of the Contribution. The closing of such Contribution (the
"Contribution Closing") shall take place at the Effective Time (as such term is
defined in the Merger Agreement) of the Mergers at the offices of Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
1.3 Deliveries at the Closing: At the Closing, Actava shall deliver to
the Metromedia Holders the following:
(a) certificates for a number of duly authorized shares of Common
Stock determined in accordance with Section 1.1 hereof registered in such
name(s) as the Metromedia Holders shall direct; and
(b) an opinion of counsel to Actava in the form of Exhibit 1.3 hereto.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Actava Representations and Warranties. Actava represents and
warrants to Met International and MetProductions that:
(a) Organization and Good Standing. Actava and each of its material
subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted. Actava and
each of its material subsidiaries is duly qualified or licensed and in good
standing to do business in each jurisdiction in which the character of the
property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification or licensing necessary, except
where the failure to be so duly qualified or licensed and in good standing
would not have a material adverse effect on the business, assets, condition
(financial or otherwise) or the results of operations of Actava and its
material subsidiaries, taken as a whole.
(b) Authorization; Binding Agreement. Actava has all requisite
corporate power and authority to execute and deliver this Agreement and the
Registration Rights Agreement (as defined below) and to consummate the
transactions contemplated hereby and thereby. This Agreement and the
Registration Rights Agreement have been duly and validly executed and
delivered by Actava, and this Agreement and the Registration Rights
Agreement constitute the legal, valid and binding agreement of Actava,
enforceable against Actava in accordance with their respective terms,
except to the extent that enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally and by principles
of equity regarding the availability of remedies.
(c) Actava is not required to obtain any consent, approval, waiver,
authorization or order of, or filing or registration with, any court or
governmental agency or other party for the execution and delivery by Actava
of this Agreement or the Registration Rights Agreement and the performance
by Actava of this Agreement or the Registration Rights Agreement and the
transactions contemplated hereby or thereby.
(d) All shares of Common Stock to be issued hereunder to the
Metromedia Holders shall be duly authorized, validly issued, fully paid and
non-assessable and will not be subject to any preemptive or similar rights.
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(e) All shares of Common Stock to be issued hereunder shall be
authorized for listing upon each national securities exchange, if any, upon
which the outstanding Common Stock is listed at the time of such delivery
or shall be authorized for quotation, prior to such delivery, on the
National Association of Securities Dealers, Inc.'s Automated Quotation
System ("NASDAQ"), if the shares of Common Stock are quoted at such time on
NASDAQ.
Section 2.2 Metromedia Holders' Representations and Warranties. The
Metromedia Holders represent and warrant to Actava that:
(a) Each Metromedia Holder has the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed by each of the Metromedia Holders and constitutes the legal, valid
and binding obligation of each of the Metromedia Holders, enforceable
against the Metromedia Holders in accordance with its terms, except to the
extent that enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforceability of creditors' rights generally and by general principles of
equity regarding the availability of remedies.
(b) Except for the consents listed on Schedule 2.2, no consent,
approval, waiver, authorization or order of, or filing or registration
with, any court or governmental agency or other party is required to be
obtained by any of the Metromedia Holders for the execution and delivery by
the Metromedia Holders of this Agreement and the performance by the
Metromedia Holders of this Agreement and the transactions contemplated
hereby.
ARTICLE III
MISCELLANEOUS
Section 3.1 Assignment. The Metromedia Holders may assign all or part of
their rights hereunder to one or more of their Affiliates (as such term is
defined pursuant to Rule 12b-2 of the Securities Exchange Act of 1934, as
amended).
Section 3.2 Amendments. Subject to applicable law, this Agreement may be
amended, modified or supplemented only by a written instrument among Actava and
each of the Metromedia Holders, at any time prior to the Contribution Closing
with respect to any of the terms contained herein.
Section 3.3 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 3.4 Headings. The parties to this Agreement agree that the
Article and Section headings have been prepared for convenience only and are not
part of this Agreement and shall not be taken as an interpretation of any
provision of this Agreement.
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Section 3.5 Notices. All demands, notices and communications hereunder
shall be in writing and shall be delivered or mailed by registered or certified
United States mail, postage prepaid or telecopied or facsimile transmission and
confirmed by first-class mail, and addressed in each case as follows:
(a) If to Actava:
The Actava Group Inc.
000 Xxxx Xxxxx Xxxxx Xxxx,
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: General Counsel
Telecopy: (000) 000-0000
(b) If to the Metromedia Holders:
c/o Metromedia Company
Xxx Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
Any of the foregoing persons may change its address or telecopier number for
notices hereunder by giving notice of such change to the other persons. All
notices and demands shall be deemed to have been given either at the time of the
delivery thereof to any officer of the person entitled to receive such notices
and demands at the address or telecopier number of such person for notices
hereunder, or on the third day after the mailing thereof to such address, as the
case may be.
Section 3.6 Remedies. Each Metromedia Holder, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
Actava agrees that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by it of the provisions of this Agreement
and hereby agrees to waive the defense in any action for specific performance
that a remedy at law would be adequate.
Section 3.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING
EFFECT TO CHOICE-OF-LAW PRINCIPLES.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first written above.
MET INTERNATIONAL, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
METPRODUCTIONS, INC.
By: /s/ XXXXXX X. XXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
THE ACTAVA GROUP INC.
By: /s/ XXXXXX X. XXXXX
--------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President,
General
Counsel and Secretary
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SCHEDULE 2.2
Consent of The Actava Group Inc. pursuant to a Credit Agreement, dated as
of October 11, 1995 among Metromedia Company, a Delaware general partnership,
and The Actava Group Inc., as amended.
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EXHIBIT 1.3
OPINION OF COUNSEL TO ACTAVA
Opinion of Long, Xxxxxxxx & Xxxxxx, Counsel to Actava, shall cover the
following matters, subject to customary exceptions and limitations:
1. Each of Actava, OPC Mergerco and MITI Mergerco (collectively, the
"Corporations") is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware.
2. Each of the Corporations has all necessary corporate power and
authority to execute, deliver and perform its obligations under the Merger
Agreement, the Contribution Agreement and the Registration Rights Agreement
(collectively, the "Agreements"), as appropriate, and the execution,
delivery and performance (including consummation of each of the Mergers) of
the Agreements by the Corporations have been duly authorized by all
necessary action on the part of the Board of Directors and stockholders of
the Corporations, as appropriate. Each of the Agreements has been duly
executed and delivered by the Corporations, as appropriate, and constitutes
the legal, valid and binding obligation of the Corporations, enforceable
against the Corporations in accordance with its terms.
3. The execution, delivery and performance by the Corporations of the
Agreements do not violate or result in a breach of or default under (i) any
provision of the certificate of incorporation or by-laws of the
Corporations, as appropriate, or any law or regulation of the State of
Georgia or the United States or any provision of the General Corporation
Law of the State of Delaware, (ii) any order, writ, injunction or decree of
which we have knowledge (without independent investigation) of any court or
governmental authority binding upon any of the Corporations or to which any
of the Corporations is subject, or (iii) to our knowledge, any provision of
any credit agreement, indenture or similar agreement to which any of the
Corporations is a party or to which any of the Corporations is bound.
4. Upon the filing of the Orion Certificate of Merger, the Sterling
Certificate of Merger and the MITI Certificate of Merger with the Secretary
of State of the State of Delaware in accordance with Section 1.2 of the
Merger Agreement, each of the Mergers will be effective in accordance with
the terms of the Orion Certificate of Merger, the Sterling Certificate of
Merger and the MITI Certificate of Merger, as appropriate.
5. The shares of Common Stock when issued by Actava pursuant to the
terms of the Merger Agreement and the Contribution Agreement will
constitute validly issued, fully paid and non-assessable shares of stock of
Actava.
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