EXHIBIT 10.36
METRO-XXXXXXX-XXXXX INC.
STOCK PURCHASE AGREEMENT
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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, as soon as practicable after the Registration Statement, as
defined herein, becomes effective, to the holders of its Common Stock, par value
$.01 per share (the "Common Stock"), of record as of the close of business on
__________, 1998, or such later date on which the Registration Statement becomes
effective (the "Record Date"), transferable rights (the "Rights") to purchase an
aggregate of __________ shares of Common Stock (the "Subscription Shares") at a
price of $___ per share (the "Subscription Price") by issuing to such holders of
record subscription certificates (the "Subscription Certificates") evidencing
_____ 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 Subscription
Certificates is hereinafter referred to as the "Time of Mailing." The Rights
will expire at 5:00 P.M. on __________, 1998 (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 $500,000,000 (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-1 (No. 333-60723) 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"), has filed such amendments thereto, if any, and such amended preliminary
prospectuses as may have been required to the date hereof, and will file such
additional amendments thereto and such amended prospectuses as may hereafter be
required. The Company has prepared and, promptly upon the execution of this
Agreement, will file with the Commission an amendment to the registration
statement and an
amended prospectus. Such registration statement (as amended, if applicable) and
the final prospectus relating to the offering constituting a part thereof
(including in each case all documents, if any, incorporated by reference
therein), as from time to time amended or supplemented pursuant to the 1933 Act,
are hereinafter referred to as the "Registration Statement" and the
"Prospectus," respectively.
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
Registration Statement) with respect to any Rights issued to it in the Rights
Offerings.
(b) Payment of the purchase price for, and delivery of certificates for,
the Securities shall be made at the office of Xxxxxx, Xxxx & Xxxxxxxx LLP, 000
Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx, or at such other place as shall be
agreed upon by 250 Rodeo and the Company, at 8:30 A.M., Los Angeles time, on the
fourth 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 250 Rodeo is an affiliate of the
Company and accordingly that its ability to resell the Securities 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 will be subject to the terms of the
Shareholders Agreement and the Investors Shareholder Agreement (as such terms
are defined in the Registration Statement). 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 and Section 4.2 of the Investors Shareholder
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); (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 Investors Shareholder Agreement or 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; and (vi) it will have at the Closing
readily available funds in an amount sufficient to satisfy its obligations
hereunder.
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
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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
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out-of-pocket expenses and fees reasonably incurred by Tracinda and 250 Rodeo 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 shall have become effective not later
than 5:30 P.M. on the Record Date; 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
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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
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received the opinion, dated as of the date hereof, of Xxxxxx, Xxxx &
Xxxxxxxx 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
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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. Each of Tracinda and 250 Rodeo
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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.
(c) No Transfer. Neither Tracinda nor 250 Rodeo will sell, transfer or
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assign any of the Rights issued to it in the Rights Offering other than to one
another.
Section 10. 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
Xxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telephone: (000) 000-0000
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
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with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx, P.C.
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 11. 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.
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 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 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 Tracinda or 250 Rodeo shall be deemed to be a successor by reason merely of
such purchase.
Section 12. 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 and the Company in accordance with its terms. Executed as of this ___
day of ________________ 1998.
Very truly yours,
METRO-XXXXXXX-XXXXX INC.
By: ___________________________________
Title:
Accepted as of the date
first above written.
TRACINDA CORPORATION
By: ______________________
Title:
250 RODEO, INC.
By: ______________________
Title:
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