EXHIBIT 2
STOCKHOLDERS AGREEMENT
This AGREEMENT, dated April 27, 1997 (this "Agreement'), by and among
METROMEDIA INTERNATIONAL GROUP, INC., a Delaware corporation ("Seller"), P&F
ACQUISITION CORP., a Delaware corporation ("Buyer"), and each of the other
parties signatory hereto (each, a "Stockholder" and, collectively, the
"Stockholders").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, concurrently herewith, Seller, Orion Pictures Corporation
("Orion"), and Buyer are entering into a Letter of Intent (the "Letter of
Intent") contemplating the execution of a Stock Purchase Agreement, a draft of
which is attached to the Letter of Intent as Exhibit A (such Stock Purchase
Agreement, in the form in which it may be executed by the parties and as it may
be amended, supplemented or modified thereby shall hereinafter be referred to as
the "Stock Purchase Agreement;" capitalized terms used and not defined herein
have the respective meanings ascribed to them in the Stock Purchase Agreement),
pursuant to which Buyer will acquire from Seller all of the issued and
outstanding stock of Orion (the "Stock Purchase");
WHEREAS, each of the Stockholders Beneficially Owns (as defined herein)
the number of shares, par value $.01 per share, of common stock of Seller
("Seller Common Stock") set forth opposite such Stockholder's name on Schedule I
hereto (the "Shares");
WHEREAS, as an inducement and a condition to entering into the Stock
Purchase Agreement, Buyer has required that the Stockholders agree, and the
Stockholders have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
1. Provisions Concerning Seller Common Stock. Each Stockholder hereby
agrees that at any meeting of the holders of Seller Common Stock, however
called, or in connection with any written consent of the holders of Seller
Common Stock, such Stockholder shall vote (in the case of Shares for which the
Stockholder has exclusive voting and dispositive power) or cause to be voted (in
the case of Shares which the Stockholder "Beneficially Owns" (as defined below)
but for which the Stockholder does not have exclusive voting and dispositive
power) the Shares held of record or Beneficially Owned (as defined below) by
such Stockholder, whether heretofore owned or hereafter acquired, (i) in favor
of approval of the Stock Purchase Agreement and any actions required in
furtherance thereof and hereof; (ii) against any action or agreement that would
result in a breach in any respect of any covenant, representation or warranty or
any other obligation or agreement of Seller or Orion under the Stock Purchase
Agreement (after giving effect to any materiality or similar qualifications
contained therein); and (iii) except as permitted by the Stock Purchase
Agreement or as otherwise agreed to in writing in advance by Buyer, against the
following actions (other than the Stock Purchase and the transactions
contemplated by the Stock Purchase Agreement): (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving Orion or any of the Entertainment Companies; (B) a sale,
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lease, license, transfer or disposition of any assets outside the ordinary
course of business or any which in the aggregate are material to Orion and its
Subsidiaries (other than Landmark) taken as a whole, or a reorganization,
recapitalization, dissolution or liquidation of Seller or Orion; (C) (1) any
change in a majority of the persons who constitute the board of directors of the
Seller; (2) any change in the present capitalization of Orion or any of its
Subsidiaries or any amendment of the Certificate of Incorporation or By-Laws of
Orion or any of its Subsidiaries; (3) any other material change in the corporate
structure or business of Orion or any of its Subsidiaries; or (4) any other
action which, in the case of each of the matters referred to in clauses C (1),
(2), (3) or (4) is intended, or could reasonably be expected, to impede,
interfere with, delay, postpone, or materially adversely affect the Stock
Purchase and the transactions contemplated by this Agreement and the Stock
Purchase Agreement. Such Stockholder shall not enter into any agreement or
understanding with any Person (as defined below) the effect of which would be
inconsistent or violative of the provisions and agreements contained in Section
1 or 2 hereof. For purposes of this Agreement, "Beneficially Own" or "Beneficial
Ownership" with respect to any securities shall mean having "beneficial
ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities Beneficially
Owned by all other Persons with whom such Person would constitute a "group"
within the meaning of Section 13(d)(3) of the Exchange Act. For purposes of this
Agreement, "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
2. Other Covenants, Representations and Warranties. Each Stockholder
hereby represents and warrants to Parent and Buyer as follows:
(a) Ownership of Shares. On the date hereof, the Shares set forth
opposite such Stockholder's name on Schedule I hereto constitute all of the
Shares owned of record or Beneficially Owned by such Stockholder. Schedule I
hereto correctly indicates those Shares that are Beneficially Owned and held of
record by such Stockholder and those shares that are Beneficially Owned by such
Stockholder but not held of record by such Stockholder. Schedule I discloses the
number of Shares Beneficially Owned by the Stockholder for which the Stockholder
shares voting or dispositive power with another Person and identifies such other
Person or Persons. Except as referenced in the preceding sentence and Schedule
I, such Stockholder has sole voting power and sole power to issue instructions
with respect to the matters set forth in Section 1 hereof, sole power of
disposition, sole power to demand appraisal rights and sole power to agree to
all of the matters set forth in this Agreement, in each case with respect to all
of the Shares set forth opposite such Stockholder's name on Schedule I hereto,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Such Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Stockholder will not violate any other
agreement to which such Stockholder is a party including, without limitation,
any voting agreement, stockholder agreement or voting trust. This Agreement has
been duly and validly executed and delivered by such Stockholder and constitutes
a valid and binding agreement of such Stockholder, enforceable against such
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Stockholder in accordance with its terms. There is no beneficiary or holder of a
voting trust certificate or other interest of any trust of which such
Stockholder is trustee who is not a party to this Agreement and whose consent is
required for the execution and delivery of this Agreement or the consummation by
such Stockholder of the transactions contemplated hereby. If such Stockholder is
married and such Stockholder's Shares constitute community property, this
Agreement has been duly authorized, executed and delivered by, and constitutes a
valid and binding agreement of, such Stockholder's spouse, enforceable against
such person in accordance with its terms.
(c) No Conflicts. No filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Stockholder or the
consummation by such Stockholder of the transactions contemplated hereby. None
of the execution and delivery of this Agreement by such Stockholder, the
consummation by such Stockholder of the transactions contemplated hereby or
compliance by such Stockholder with any of the provisions hereof shall (1)
result in a violation or breach of, or constitute (with or without notice or
lapse of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which such Stockholder is a party or by
which such Stockholder or any of such Stockholder's properties or assets may be
bound, or (2) violate any order, writ, injunction, decree, judgment, order,
statute, rule or regulation applicable to such Stockholder or any of such
Stockholder's properties or assets.
(d) No Finder's Fees. Other than existing financial advisory and
investment banking arrangements and agreements between Seller and Xxxxxxxxx,
Xxxxxx & Jennrette Securities Corp., which have been disclosed in writing to
Buyer, no broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated by the Stock
Purchase Agreement based upon arrangements made by or on behalf of such
Stockholder or any of its Affiliates (or than Seller and its Subsidiaries) or,
to the knowledge of such Stockholder, Seller or any of its Subsidiaries.
(e) Other Potential Acquirors. Such Stockholder (i) shall
immediately cease any existing discussions or negotiations, if any, with any
parties conducted heretofore with respect to any acquisition of all or any
material portion of the assets of, or any equity interest in, Orion or its
Subsidiaries (other than Landmark) or any business combination with Orion or its
Subsidiaries (other than Landmark), in his, her or its capacity as such, and
(ii) from and after the date hereof until termination of the Stock Purchase
Agreement, unless and until Seller is permitted to take such actions under
Section 5.08 of the Stock Purchase Agreement, shall not, in such capacity,
directly or indirectly, initiate, solicit or knowingly encourage (including by
way of furnishing nonpublic information or assistance), or take any other action
to facilitate knowingly, any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any such transaction or
acquisition, or agree to or endorse any such transaction or acquisition, or
authorize or permit any of such Stockholder's directors, officers,
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stockholders, employees or agents to do so, and such Stockholder shall promptly
of any proposal and shall provide a copy of any such written proposal and a
summary of any oral proposal to Buyer immediately after receipt thereof (and
shall specify the material terms and conditions of such proposal and identify
the person making such proposal) and thereafter keep Buyer promptly advised of
any development with respect thereto.
(f) Restriction on Transfer, Proxies and Non-Interference. Except as
contemplated by the Stock Purchase Agreement, such Stockholder shall not,
directly or indirectly: (i) offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of such Stockholder's Shares or any interest therein;
(ii) grant any proxies or powers of attorney with respect to the subject matter
of this Agreement, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of such Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling such Stockholder from
performing such Stockholder's obligations under this Agreement.
(g) Reliance by Buyer. Such Stockholder understands and acknowledges
that Buyer is entering into the Letter of Intent, and will enter into the Stock
Purchase Agreement, in reliance upon such Stockholder's execution and delivery
of this Agreement.
3. Further Assurances. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further lawful action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
4. Stop Transfer, Restrictive Legend. (a) Each Stockholder agrees with,
and covenants to, Buyer that such Stockholder shall not request that Seller
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Shares, unless
such transfer is made in compliance with this Agreement. In the event of a stock
dividend or distribution, or any change in the Seller's Common Stock by reason
of any stock dividend, split-up, recapitalization, combination, exchange of
Shares or the like, the term "Shares" shall be deemed to refer to and include
the Shares as well as all such stock dividends and distributions and any shares
into which or for which any or all of the Shares may be changed or exchanged.
(b) Upon the written request of Buyer, all certificates representing
any of such Stockholder's Shares shall contain the following legend:
"The securities represented by this certificate, including certain voting
and transfer rights with respect thereto, are subject to the terms of a
Stockholders Agreement, dated April 27, 1997, among Metromedia
International Group, Inc., P&F Acquisition Corp. and Orion Pictures
Corporation, a copy of which is on file in the principal office of the
Issuer."
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5. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Shares shall terminate upon the
later of (a) September 30, 1997, or (b) ninety (90) days after the date of the
meeting of Seller's stockholders held for the purpose of approving and adopting
the Stock Purchase Agreement and the transactions contemplated thereby (provided
that, if no such meeting is held prior to September 30, 1997, the covenants and
agreements contained herein with respect to the Shares shall terminate on
September 30, 1997).
6. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director of the Seller makes any agreement or
understanding herein in his or her capacity as such director. Each Stockholder
signs solely in his or her capacity as the record and/or beneficial owner of
such Stockholder's Shares.
7. Miscellaneous.
(a) Entire Agreement. This Agreement, the Letter of Intent and the
Stock Purchase Agreement constitute the entire agreement between the Parties
with respect to the subject matter hereof and supersede all other prior
agreements and understandings, both written and oral, between the parties with
respect to the subject matter hereof.
(b) Certain Events. Each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including, without
limitation, such Stockholder's heirs, guardians, administrators or successors.
Notwithstanding any transfer of Shares, the transferor shall remain liable for
the performance of all obligations under this Agreement of the transferor.
(c) Assignment. This Agreement shall not be assigned by operation of
law or otherwise by any Stockholder without the prior written consent of Buyer
or by Buyer without the prior written consent of each Stockholder; provided that
Buyer may assign, in its sole discretion, its rights and obligations hereunder
to any direct or indirect wholly owned subsidiary thereof, but no such
assignment shall relieve such party of its obligations hereunder if such
assignee does not perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, with respect
to any one or more Stockholders, except upon the execution and delivery of a
written agreement executed by Buyer and such affected Stockholder or
Stockholders; provided that Schedule I hereto may be supplemented by Buyer by
adding the name and other relevant information concerning any Stockholder of
Seller who agrees to be bound by the terms of this Agreement without the
agreement of any other party hereto, and thereafter such added Stockholder shall
be treated as a "Stockholder" for all purposes of this Agreement.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier
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service, such as Federal Express, providing proof of delivery. All communi-
cations hereunder shall be delivered to the respective parties at the
following addresses:
If to Seller or any Stockholder: c/o Metromedia Company
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
Facsimile: (000) 000-0000
If to: Metro-Xxxxxxx-Xxxxx Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
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party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(1) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, Seller, Buyer, each Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
METROMEDIA INTERNATIONAL
GROUP, INC.
By: /s/ Xxxxxx Xxxxxx
-----------------
Name: Xxxxxx Xxxxxx
---------------
Title: Executive Vice President
-------------------------
P&F ACQUISITION CORP.
By: /s/Xxxxx X. Xxxxxxx
-------------------
Name: Xxxxx X. Xxxxxxx
------------------
Title: Executive Vice President
------------------------
/s/ Xxxx X. Xxxxx
-----------------
Xxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxxxx
--------------------
Xxxxxx Xxxxxxxxx
METROMEDIA COMPANY
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxxxx
------------------
Title: President
-----------------
MET TELLCELL, INC.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
-----------------
Title: President
-----------------
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Schedule I
Stockholders Agreement
----------------------
Metromedia Company 7,989,206
Xxxx X. Xxxxx 2,605,449
Xxxxxx Xxxxxxxxx 231,225
Met Tellcell, Inc. 4,426,249
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