EXHIBIT 7.19
METRO-XXXXXXX-XXXXX INC.
STOCK PURCHASE AGREEMENT
TRACINDA CORPORATION
000 X. Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
250 RODEO, INC.
000 X. Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Dear Sirs:
Metro-Xxxxxxx-Xxxxx Inc., a Delaware corporation (the "Company"),
proposes to distribute, on or about October 15, 1999, to the holders of its
Common Stock, par value $.01 per share (the "Common Stock"), of record as
of the close of business on October 15, 1999, (the "Record Date")
transferable rights (the "Rights") to purchase an aggregate of 49,721,268
shares of Common Stock, subject to adjustment for the exercise of options
prior to the close of business on the Record Date (the "Subscription
Shares"), at a price of $14.50 per share (the "Subscription Price") by
issuing to such holders of record rights certificates (the "Rights
Certificates") evidencing 0.328 Rights for each share of Common Stock held
as of the Record Date rounded up to the nearest whole right. The Company
proposes to offer to sell the Subscription Shares on the basis of one
Subscription Share for each whole Right held (the "Rights Offering"). The
time of the first mailing of the Rights Certificates is hereinafter
referred to as the "Time of Mailing." The Rights will expire at 5:00 P.M.
on November 8, 1999 (the "Expiration Date"). Subject to the terms and
conditions herein, the Company desires to sell, and 250 Rodeo, Inc., a
Delaware corporation ("250 Rodeo"), desires to purchase, all of the
Subscription Shares not subscribed for by the record holders or others in
the Rights Offering (the "Unsubscribed Shares"), which will result in the
receipt by the Company of aggregate proceeds from the sale of Subscription
Shares and Unsubscribed Shares of approximately $721 million (before
expenses payable by the Company). Such Unsubscribed Shares or any portion
thereof are herein referred to as the "Securities."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-82775) and a
related preliminary prospectus for the registration of the Rights and the
Subscription Shares (the "Offering") under the Securities Act of 1933, as
amended (the "1933 Act"). Such registration statement, as amended,
(including all documents, if any, incorporated by reference therein), as
from time to time amended or supplemented pursuant to the 1933 Act, is
hereinafter referred to as the "Registration Statement." The Registration
Statement was declared effective by the Commission on September 9, 1999.
The final prospectus relating to the Offering constituting a part of the
Registration Statement, together with the Company's prospectus supplement
dated October 15, 1999 (including in each case all documents, if any,
incorporated by reference therein), is hereinafter referred to as the
"Prospectus."
Section 1. Purchase, Sale and Delivery of Securities.
(a) Subject to the terms herein, the Company agrees to sell to
250 Rodeo and 250 Rodeo agrees to purchase from the Company at a price per
share equal to the Subscription Price, all the Unsubscribed Shares
simultaneously with the closing of the Rights Offering. Each of 250 Rodeo
and Tracinda Corporation, a Nevada corporation ("Tracinda," and
collectively with 250 Rodeo, the "Tracinda Group") agrees to exercise the
basic subscription privilege (as defined in the Prospectus) with respect to
any Rights held by it immediately prior to the expiration of the Rights
Offering. The Tracinda Group will not exercise the oversubscription
privilege (as defined in the Prospectus).
(b) Payment of the purchase price for, and delivery of
certificates for, the Securities shall be made at the office of
Christensen, Miller, Fink, Jacobs, Xxxxxx, Xxxx & Xxxxxxx, LLP, 2121 Avenue
of the Stars, 18th Floor, Los Angeles, California, or at such other place
as shall be agreed upon by 250 Rodeo and the Company, at 11:30 A.M., Los
Angeles time, on the [third] business day after expiration of the Rights
Offering, or such other time and date as shall be agreed upon by 250 Rodeo
and the Company (such time and date of payment and delivery being herein
called "Closing Time"). Each of the parties hereto acknowledges and agrees
that each of Tracinda and 250 Rodeo is an affiliate of the Company and
accordingly that its ability to resell the Securities or the Subscription
Shares may be limited in accordance with Rule 144 under the 1933 Act and
any other limitations imposed by the Securities and Exchange Commission.
Each of the parties hereto further acknowledges that the Securities, as
well as the Subscription Shares acquired by Tracinda and 250 Rodeo upon
exercise of Rights will be subject to the terms of the Shareholders
Agreement (as such term is defined in the Prospectus). Certificates for
the Securities shall be in such denominations and registered in such names
as 250 Rodeo may request in writing at least two business days before
Closing Time.
Payment for any Unsubscribed Shares shall be made to the Company in
immediately available funds to be delivered by wire transfer to the account
of the Company, against delivery to 250 Rodeo of certificates for the
Securities, with such legends affixed to the reverse thereof as are
required by Section 3.1 of the Shareholders Agreement.
(c) Payment for Subscription Shares being acquired upon exercise
of Rights by Tracinda and 250 Rodeo (and delivery of the certificates
therefor) shall be made as provided in the Prospectus.
Section 2. Representations and Warranties.
(a) The Company hereby represents and warrants to Tracinda and
250 Rodeo as follows: (i) the Company has all requisite corporate power
and authority to enter into this Agreement and to consummate the
transactions set forth in Section 1 hereof, (ii) the execution and
delivery by the Company of this Agreement, and the consummation by the
Company of the transactions set forth in Section 1 hereof, have been duly
authorized by all necessary corporate action on the part of the Company;
(iii) this Agreement has been duly executed and delivered by the Company
and constitutes a valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, except as the
enforceability hereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally or general principles
of equity; (iv) no consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other, governmental authority or instrumentality,
domestic or foreign, is required by, or with respect to, the Company in
connection with the execution and delivery of this Agreement by the
Company or the consummation by the Company of the transactions set forth
in Section 1 hereof (other than the filing and effectiveness of the
Registration Statement and the filing of the Prospectus under the 1933
Act); (v) the execution and delivery of this Agreement by the Company and
the consummation of the transactions set forth in Section 1 hereof by the
Company does not conflict with, or result in a breach of, any law or
regulation of any Governmental authority applicable to the Company or any
material agreement to which the Company is a party, and (vi) when issued
and paid for in accordance with the provisions of Section 1 hereof, the
shares of Common Stock sold to Tracinda and 250 Rodeo pursuant to Section 1
hereof shall be duly authorized, validly issued, fully paid, nonassessable,
and free of any claims or encumbrances, other than (a) any claims or
encumbrances resulting from actions taken by Tracinda or 250 Rodeo with
respect to the shares to be received by it hereunder, or (b) pursuant to
the Shareholders Agreement.
(b) Each of Tracinda and 250 Rodeo hereby represents and
warrants to the Company as follows: (i) it has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions set forth in Section 1 hereof; (ii) the execution and delivery
by it of this Agreement, and the consummation by it of the transactions set
forth in Section 1 hereof, have been duly authorized by all necessary
corporate action on its part; (iii) this Agreement has been duly executed
and delivered by it and constitutes a valid and binding obligation of it
enforceable against it in accordance with its terms, except as the
enforceability hereof may be limited by bankruptcy, insolvency or other
similar laws affecting creditors' rights generally or general principles of
equity; (iv) no consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency
or commission or other governmental authority or instrumentality, domestic
or foreign, is required by, or with respect to, it in connection with the
execution and delivery of this Agreement by it or the consummation by it of
the transactions set forth in Section 1 hereof (other than any filings
pursuant to Section 16(a) of, or Regulation 13D under, the Securities
Exchange Act of 1934, as amended); (v) the execution and delivery of this
Agreement by it and the consummation by it of the transactions set forth in
Section 1 hereof does not conflict with, or result in a breach of, any law
or regulation of any governmental authority applicable to it or, at the
Closing, any material agreement to which it is a party; (vi) it will
acquire the Securities for its own account and not with a view to
distribution or resale in any manner which would be in violation of the
1933 Act, (vi) it will have at the Closing readily available funds in an
amount sufficient to satisfy its obligations hereunder; and (vii) its
outstanding securities are beneficially owned by less than 100 persons and
it is not making, and it does not presently propose to make, a public
offering of its securities.
Section 3. Covenants.
(a) Subject to the terms and conditions of this Agreement, each
party hereto will use its best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things reasonably necessary or
reasonably desirable to consummate the transactions contemplated by this
Agreement.
(b) Fees and Expenses. The Company hereby agrees to pay or
reimburse all out-of-pocket expenses and fees reasonably incurred by
Tracinda and 250 Rodeo and their affiliates in connection with their
performance under this Agreement and the Rights Offering (including
reasonable fees and expenses of legal counsel).
Section 4. Conditions to the Closing.
(a) The obligations of each of Tracinda and 250 Rodeo, on the
one hand, and the Company, on the other hand, to consummate their
respective obligations pursuant to Section 1 hereof are subject to the
satisfaction on or prior to the Expiration Date of each of the following
conditions:
(i) The Registration Statement is effective; and at the Expiration
Date 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.
(ii) Each of the representations and warranties of the other parties
hereto contained in this Agreement shall be true and correct in all
material respects, at and as of the Expiration Date, with the same force
and effect as of the Expiration Date.
(iii) The Rights Offering shall have been completed in conformity
with all of the requirements related thereto provided in the Registration
Statement and the Prospectus.
(b) The obligations of each of Tracinda and 250 Rodeo to
consummate its obligations pursuant to Section 1 hereof shall also be
subject to the satisfaction on or prior to the Expiration Date of each of
the following conditions:
(i) Material Adverse Change. Since the respective dates as to which
information is given in the Registration Statement and the Prospectus (each
as on file with the Commission on the date hereof), there shall not have
been any material adverse change in or affecting the business, prospects,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole except to the extent any such
changes result from changes in general economic conditions or the decline
in prices of stocks generally.
(ii) Legal Opinion. Each of Tracinda and 250 Rodeo shall have
received the opinion, dated as of the date hereof, of Christensen, Miller,
Fink, Jacobs, Xxxxxx, Weil & Xxxxxxx, LLP, counsel for the Company, in form
and substance satisfactory to their counsel, of the type typically rendered
to underwriters in public offerings in the United States relating to
incorporation and good standing, authorization of the Rights Offering and
the issuance of shares of Common Stock in connection therewith,
capitalization of the Company, effectiveness and compliance with regulatory
requirements of the Registration Statement, and other consents and
approvals required in connection with the Rights Offering.
(iii) Accountant's Comfort Letter. Banc of America Securities LLC
and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation (the "Dealer
Managers") shall be in receipt of a comfort letter of the type typically
rendered to underwriters in public offerings in the United States from
Xxxxxx Xxxxxxxx & Co., dated as of the date hereof, and each of Tracinda
and 250 Rodeo shall have been provided with a copy of such comfort letter.
In the event that the Dealer Managers have not received such a comfort
letter or if either Tracinda or 250 Rodeo has not been provided with a copy
of such letter, each of Tracinda and 250 Rodeo shall have received from
Xxxxxx Xxxxxxxx & Co. a comfort letter dated as of the date hereof, in form
and substance satisfactory to it and its counsel, of the type typically
rendered to underwriters in public offerings in the United States.
Section 5. Notices. Any notice required to be given hereunder
shall be sufficient if in writing, and sent by facsimile transmission, by
courier service (with proof of service), hand delivery or certified or
registered mail (return receipt requested and first-class postage prepaid),
addressed as follows:
If to the Company, to:
Metro-Xxxxxxx-Xxxxx Inc.
0000 Xxxxxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Christensen, Miller, Fink, Jacobs, Xxxxxx, Weil & Xxxxxxx, LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000-0000
Telecopy: (000) 000-0000
If to Tracinda or to 250 Rodeo, to:
Tracinda Corporation
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attention: Secretary/Treasurer
Telecopy: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address as any party shall specify by written notice so
given, and such notice shall be deemed to have been delivered as of the
date so telecommunicated, personally delivered or mailed.
Section 6. Parties. This Agreement shall inure to the benefit of
and be binding upon Tracinda, 250 Rodeo, the Company and their respective
successors and any affiliate of Tracinda (a) to whom rights hereunder are
assigned by Tracinda or 250 Rodeo and (b) who assumes in writing the
obligations of the assignor hereunder (a "Permitted Assignee"). Nothing
expressed or mentioned in this Agreement is intended or shall be construed
to give any person, firm or corporation, other than Tracinda, 250 Rodeo,
the Company and their respective successors and Permitted Assignees and the
controlling persons and officers and directors 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 Tracinda, 250 Rodeo, the Company and
their respective successors and Permitted Assignees 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 or Subscription Shares from
Tracinda or 250 Rodeo shall be deemed to be a successor by reason merely of
such purchase.
Section 7. Governing Law and Time. This Agreement shall be
governed by and construed in accordance with the laws of the State of
California applicable to agreements made and to be performed in said State.
Unless otherwise set forth herein, specified times of day refer to New York
City time.
******************
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 Tracinda, 250 Rodeo and the Company in accordance
with its terms. Executed as of this 15th day of October 1999.
Very truly yours,
METRO-XXXXXXX-XXXXX INC.
By: /s/ Xxxxxxx X. Xxxxx
______________________________
Xxxxxxx X. Xxxxx
Senior Executive Vice President & Secretary
Accepted as of the date
first above written
TRACINDA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
__________________________
Xxxxxxx X. Xxxxxxxx
Secretary/Treasurer
250 RODEO, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
___________________________
Xxxxxxx X. Xxxxxxxx
Secretary/Treasurer
