EXHIBIT 10.1
METRO-XXXXXXX-XXXXX INC.
STOCK PURCHASE AGREEMENT
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TRACINDA CORPORATION
000 X. Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
250 RODEO, INC.
150 S- 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,
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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.
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(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, 18/th/ 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.
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(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
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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 I 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.
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Section 3. Covenants.
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(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
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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.
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(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
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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.
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(ii) Legal Opinion. Each of Tracinda and 250 Rodeo shall
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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
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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
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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, 00/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000-0000
Telecopy: (000) 000-0000
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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
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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
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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.
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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:
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Xxxxxxx X.Xxxxx
Senior Executive Vice President & Secretary
Accepted as of the date
first above written
TRACINDA CORPORATION
By:
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Xxxxxxx X. Xxxxxxxx
Secretary/Treasurer
250 RODEO, INC.
By:
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Xxxxxxx X. Xxxxxxxx
Secretary/Treasurer
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