Exhibit 99.1
EXECUTION COPY
VOTING AND SUPPORT AGREEMENT
VOTING AND SUPPORT AGREEMENT, dated as of September 23, 2004
(this "Agreement"), by and among Tracinda Corporation, a Nevada corporation
("Nevada"), 250 Rodeo, Inc., a Delaware corporation ("Delaware" and,
together with Nevada, the "Principal Stockholders"), and LOC Acquisition
Company, a Delaware corporation ("Newco").
WHEREAS, as of the date hereof, Nevada owns 144,290,996 shares of
the Common Stock, par value $0.01 per share (the "Company Common Stock"),
of Metro-▇▇▇▇▇▇▇-▇▇▇▇▇ Inc., a Delaware corporation (the "Company"), and
Delaware owns 19,758,648 shares of the Company Common Stock;
WHEREAS, Newco proposes to enter into a transaction (such
transaction, including the contemplated merger and the effects thereof, the
"Transaction") with the Company, upon the terms and subject to the
conditions set forth in the Agreement and Plan of Merger, dated September
23, 2004, by and between the Company and Newco (the "Merger Agreement");
and
WHEREAS, as a condition to its willingness to enter into the
Merger Agreement, Newco has required that the Principal Stockholders
execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Definitions. For purposes of this Agreement, capitalized terms
used and not defined herein shall have the respective meanings ascribed to
them in the Merger Agreement.
2. Representations of the Principal Stockholders.
(a) The Principal Stockholders hereby, jointly and severally,
represent and warrant to Newco as follows:
(i) Each Principal Stockholder is the beneficial owner (for
purposes of this Agreement, such term shall have the meaning set
forth in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the rules and regulations
promulgated thereunder, but without regard to any conditions
(including the passage of time) to the acquisition of such
shares) of, and has good and valid and marketable title to, the
number of shares of Company Common Stock set forth opposite such
Principal Stockholder's name on Annex A attached hereto, subject
to the First Amended and Restated Pledge Agreement, dated as of
October 30, 1996, by and between Nevada and Bank of America
National Trust and Savings Association, as amended, and the
Pledge Agreement, dated as of August 28, 1998 by and between
Delaware and Bank of America National Trust and Savings
Association, as amended (including any successor or replacement
agreements permitted by this Agreement, the "Pledge Agreements").
All of such shares are collectively referred to herein as the
"Shares."
(ii) As of the date hereof, each Principal Stockholder is
not the beneficial owner of any shares of Company Common Stock or
other voting securities or instruments of the Company, other than
the Shares.
(iii) Each Principal Stockholder is a corporation duly
incorporated, validly existing and in good standing under the
laws of its jurisdiction of organization and has all requisite
corporate power and authority necessary to execute and deliver
this Agreement and to consummate the transactions contemplated
hereby. Subject to the terms of the Pledge Agreements and other
than as required or permitted by this Agreement, each Principal
Stockholder has the power and authority (corporate or other) to
vote the Shares beneficially owned by such Principal Stockholder.
(iv) The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all requisite corporate
action on the part of each Principal Stockholder and no other
corporate proceedings on the part of either Principal Stockholder
are necessary to authorize this Agreement or the consummation of
the transactions contemplated hereby. This Agreement has been
duly executed and delivered by each Principal Stockholder and
this Agreement constitutes a valid and binding agreement of each
Principal Stockholder, enforceable against each Principal
Stockholder in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and similar Laws of
general applicability relating to or affecting creditors' rights
and to general equity principles (regardless of whether such
enforcement is considered in a proceeding at law or in equity).
(v) Subject to the terms of the Pledge Agreements and other
than as required or permitted by this Agreement, the Shares are
now and shall at all times during the term of this Agreement be
owned of record by the Principal Stockholders as set forth in
Annex A (or by a nominee or custodian for the account of the
applicable Principal Stockholder), free and clear of all pledges,
liens, proxies, claims, charges, security interests, preemptive
rights, voting trusts, voting agreements, options, rights of
first offer or refusal and any other encumbrances or arrangements
whatsoever with respect to the ownership, transfer or voting of
the Shares, and there are no outstanding options, warrants or
rights to purchase or acquire, or agreements or arrangements
relating to the voting of, any of the Shares other than this
Agreement.
(vi) The execution and delivery of this Agreement by each
Principal Stockholder, the consummation by each Principal
Stockholder of the transactions contemplated hereby and the
performance by such Principal Stockholder of its obligations
hereunder shall not (including with notice or lapse of time or
both):
(1) require any consent, approval, order, authorization
or permit of, or registration or filing with or notification
to, any Governmental Entity or other party, except for the
filing with the Securities and Exchange Commission (the
"Commission") of any Schedules 13D or 13G or amendments to
Schedules 13D or 13G and filings under Section 16 of the
Exchange Act, and filings under applicable gaming
regulations, as may be required in connection with this
Agreement and the transactions contemplated hereby;
(2) contravene or conflict with the certificate of
incorporation or bylaws of such Principal Stockholder;
(3) result in any violation or the breach of, or
constitute a default under, or give rise to any right of
termination, cancellation or acceleration or any payments
under, or result in a loss of a benefit or in the creation
or imposition of a lien under, any of the terms, conditions
or provisions of any note, lease, mortgage, indenture,
license, agreement or other instrument or obligation to
which such Principal Stockholder is a party or by which such
Principal Stockholder or any of its assets is bound; or
(4) violate the provisions of any order, writ,
injunction, judgment, decree, statute, rule or regulation
applicable to such Principal Stockholder in such a manner as
would, individually or in the aggregate, reasonably be
expected to materially impair the ability of such Principal
Stockholder to perform its obligations under this Agreement
or prevent or delay the consummation of any of the
transactions contemplated by this Agreement, except, in the
case of clause (1) above, with respect to the Pledge
Agreements.
(vii) Each Principal Stockholder acknowledges receipt and
review of the Merger Agreement and understands the terms and
conditions thereof. Each Principal Stockholder has had the
opportunity to review this Agreement and the Merger Agreement
with counsel of its own choosing. Each Principal Stockholder
understands and acknowledges that Newco is entering into the
Merger Agreement in reliance upon such Principal Stockholder's
execution, delivery and performance of this Agreement.
(b) Except where expressly stated to be given as of the date
hereof only, the representations and warranties contained in this Agreement
shall be made as of the date hereof and as of each date from the date
hereof through and including the date of termination of this Agreement.
3. Agreement to Vote Shares.
(a) Whereas the Board of Directors of the Company has approved
and declared advisable the merger of Newco with and into the Company upon
the terms and subject to the conditions of the Merger Agreement and in
accordance with the DGCL, during the period commencing on the date hereof
and continuing until the termination of this Agreement in accordance with
its terms, subject to the terms of the Pledge Agreements, the Principal
Stockholders agree to: (i) appear, or cause the record holder of any Shares
on the applicable record date (each a "Record Holder") to appear (in person
or by proxy), at any annual or special meeting of the stockholders of the
Company for the purpose of obtaining a quorum, or, if stockholders of the
Company are requested to vote their shares through the execution of an
action by written consent in lieu of any such annual or special meeting of
stockholders of the Company, the Principal Stockholders, jointly and
severally, agree to execute or cause all Record Holders to execute such
consent, and (ii) vote (or, if requested, execute consents or proxies with
respect to), and cause each Record Holder to vote (or, if requested,
execute consents or proxies with respect to), the Shares and any New Shares
(as defined in Section 7 hereof): (w) in favor of adoption and approval of
the Merger Agreement and the Transaction, including each other action,
agreement and transaction contemplated by or in furtherance of the Merger
Agreement, the Transaction and this Agreement, at every meeting (or in
connection with any action by written consent) of the stockholders of the
Company at which such matters are considered and at every adjournment or
postponement thereof; (x) against any Takeover Proposal; (y) against any
action, proposal, transaction or agreement which would reasonably be
expected to result in a breach of any covenant, representation or warranty
or any other obligation or agreement of the Company under the Merger
Agreement or of any Principal Stockholder under this Agreement; and (z)
except as otherwise agreed to in writing in advance by Newco, against the
following actions or proposals: (1)(A) other than the transactions
contemplated by Section 2.5 of the Merger Agreement, any change in the
persons who constitute the board of directors of the Company; (B) except as
permitted in the Merger Agreement, any change in the present capitalization
of the Company or any amendment of the Company's amended and restated
certificate of incorporation or amended and restated bylaws; or (C) except
as permitted by the Merger Agreement, any change in the Company's corporate
structure or business; and (2) any other action, proposal, transaction or
agreement that would reasonably be expected to compete with or would
reasonably be expected to interfere with, delay, discourage, adversely
affect or inhibit the timely consummation of the Transaction. Each
Principal Stockholder agrees not to enter into any agreement, letter of
intent, agreement in principle or understanding whatsoever with any Person
that would reasonably be expected to violate, conflict or interfere with
the provisions of this Agreement or that would reasonably be expected to
delay, discourage, adversely affect or inhibit the timely consummation of
the Transaction. Notwithstanding the foregoing, the Principal Stockholders
shall remain free to vote (or execute consents or proxies with respect to)
the Shares with respect to any matter not covered by this Section 3 in any
manner they deem appropriate, provided that such vote (or execution of
consents or proxies with respect thereto) would not reasonably be expected
to interfere with, delay, discourage, adversely affect or inhibit the
timely consummation of the Transaction. Notwithstanding any reference in
this paragraph to actions by written consent, the Principal Stockholders
shall have no obligation to execute any written consent in lieu of a
meeting with respect thereto for the purpose of approving and adopting the
Merger Agreement and the Transaction unless the Company shall have
requested that such approval and adoption be effected through the execution
of any such written consent, in which case the Principal Stockholders
shall, jointly and severally, execute such consent.
(b) In furtherance of the covenants set forth in Sections 3(a)
hereof, each Principal Stockholder agrees to deliver or cause each Record
Holder of any Shares or New Shares of such Principal Stockholder to deliver
to Newco upon request a proxy, substantially in the form of Annex B
attached hereto, for any such stockholder meeting (or action by written
consent), which proxy shall be coupled with an interest and irrevocable to
the fullest extent permitted under Delaware law, except as otherwise
required under the terms of the Pledge Agreements and except that such
proxy shall terminate upon any termination of this Agreement pursuant to
Section 13 hereof, with the total number of Shares and any New Shares
beneficially owned by such Principal Stockholder correctly indicated
thereon.
4. Representations of Newco. Newco hereby represents and warrants
to the Principal Stockholders that:
(a) Newco is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has all
requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby.
(b) The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by all requisite corporate action and no other corporate
proceedings on the part of Newco are necessary to authorize this Agreement
or the consummation of the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by Newco and is a valid
and binding agreement of Newco enforceable against it in accordance with
its terms, subject to bankruptcy, insolvency, reorganization, moratorium
and similar Laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless of whether
such enforcement is considered in a proceeding at law or in equity).
(c) The execution, delivery and performance by Newco of this
Agreement and the consummation by Newco of the transactions contemplated
hereby do not and shall not (including with notice or lapse of time or
both):
(i) contravene or conflict with the certificate of
incorporation or the bylaws of Newco;
(ii) result in any violation or the breach of, or constitute
a default under, or give rise to any right of termination,
cancellation or acceleration or any payments under, or result in
a loss of a benefit or in the creation or imposition of a lien
under, any of the terms, conditions or provisions of any note,
lease, mortgage, indenture, license, agreement or other
instrument or obligation to which Newco is a party or by which
Newco or any of its assets may be bound;
(iii) violate the provisions of any order, writ, injunction,
judgment, decree, statute, rule or regulation applicable to Newco
in such a manner as would, individually or in the aggregate,
reasonably be expected to materially impair the ability of Newco
to perform its obligations under this Agreement or prevent or
delay the consummation of any of the transactions contemplated by
this Agreement; or
(iv) require any consent, approval, order, authorization or
permit of, or registration or filing with or notification to, any
Governmental Entity or other party.
5. No Solicitations. Subject to Section 10 hereof, each Principal
Stockholder, in such Principal Stockholder's capacity as a beneficial owner
of Shares and New Shares (as defined in Section 7 hereof), agrees that such
Principal Stockholder shall not, nor shall such Principal Stockholder
permit any Person "controlling" it or under its "control" (as such term is
used in the Exchange Act) to, (a) directly or indirectly solicit, initiate,
propose or take any other action to facilitate any Takeover Proposal, (b)
enter into any agreement, arrangement or understanding with respect to any
Takeover Proposal (including any letter of intent or agreement in
principle), (c) initiate or participate in any way in any negotiations or
discussions regarding a Takeover Proposal, (d) furnish or disclose to any
Third Party any information with respect to, or which would be reasonably
expected to lead to, any Takeover Proposal, (e) solicit proxies or become a
"participant" in or otherwise assist a "solicitation" (as such terms are
defined in Regulation 14A under the Exchange Act) that would reasonably be
expected to compete with, or would reasonably be expected to interfere
with, delay, discourage, adversely affect or inhibit the timely
consummation of, the Transaction or would reasonably be expected to result
in the abandonment or termination of, or failure to consummate, the
Transaction (including with respect to any Takeover Proposal or any action
related thereto), (f) otherwise encourage or assist any Person in taking or
planning any action (including any Takeover Proposal or any action related
thereto) which would reasonably be expected to compete with or otherwise
would reasonably be expected to interfere with, delay, discourage,
adversely affect or inhibit the timely consummation of, the Transaction or
would reasonably be expected to result in the abandonment or termination
of, or failure to consummate, the Transaction, (g) directly or indirectly
encourage, initiate or cooperate in a stockholders' vote or action by
written consent of the Company's stockholders that would reasonably be
expected to compete with or would reasonably be expected to interfere with,
delay, discourage, adversely affect or inhibit the timely consummation of,
the Transaction or would reasonably be expected to result in the
abandonment or termination of, or failure to consummate, the Transaction
(including with respect to any Takeover Proposal or any action related
thereto) or (h) become a member of a "group" (as such term is used in
Section 13(d) of the Exchange Act) with respect to any voting securities of
the Company for any purpose that would reasonably be expected to compete
with, or would reasonably be expected to interfere with, delay, discourage,
adversely affect or inhibit the timely consummation of the Transaction or
would reasonably be expected to result in the abandonment or termination
of, or failure to consummate the Transaction (including with respect to any
Takeover Proposal or any action related thereto). Each of the Principal
Stockholders shall be liable for any breach of this Section 5 by any Person
controlling it or under its control.
6. Transfer and Encumbrance.
(a) Subject to the terms of the Pledge Agreements and this
Agreement, during the term of this Agreement, each Principal Stockholder
agrees not to, directly or indirectly, transfer, sell, offer, hypothecate,
assign, pledge or otherwise dispose of or encumber ("Transfer"), or enter
into any contract, option or other agreement with respect to, or consent
to, a Transfer of, any of the Shares or New Shares or such Principal
Stockholder's voting or economic interest therein. Subject to the terms of
the Pledge Agreements and this Agreement, during the term of this
Agreement, each Principal Stockholder agrees not to (i) grant any proxies,
options or rights of first offer or refusal with respect to any of the
Shares or New Shares, (ii) permit any such Shares or New Shares to be, or
become subject to, any pledges, liens, preemptive rights, security
interests, claims, charges or other encumbrances or arrangements or (iii)
enter into any voting agreement, voting trust or other voting arrangement
with respect to any of the Shares or New Shares. Notwithstanding the
foregoing, (x) either Principal Stockholder may take any action described
in the previous two sentences, so long as the other party (a "transferee")
to such Transfer or other arrangement described in the second sentence of
this Section 6 executes this Agreement (or a joinder thereto in a form
reasonably satisfactory to Newco) and agrees to be bound by its terms;
provided, however, that notwithstanding such Transfer or arrangement, such
Principal Stockholder shall continue to be liable for any breach by such
transferee of its agreements and covenants under this Agreement, and (y)
the Principal Stockholders are permitted to (1) amend, extend or otherwise
modify the Pledge Agreements and the Second Amended and Restated Credit
Agreement, dated as of August 16, 2000, by and between Nevada, the several
financial institutions from time to time parties thereto, and Bank of
America N.A., as amended (such agreement, together with the Pledge
Agreements, the "Credit Documents") and (2) enter into new credit
arrangements replacing or supplementing the Credit Documents, provided that
such amendment, extension or modification or new credit arrangement, in
each case, does not contain provisions that adversely affect the ability of
the Principal Stockholders to comply with their obligations under this
Agreement other than provisions that are substantially similar to the
provisions in the existing Credit Documents.
7. Additional Purchases. Each Principal Stockholder agrees that
in the event (a) any shares of Company Common Stock or other voting
securities of the Company are issued pursuant to any stock dividend, stock
split, recapitalization, reclassification, combination or exchange of
shares of capital stock of the Company on, of or affecting the Shares of
such Principal Stockholder or otherwise; (b) such Principal Stockholder
purchases or otherwise acquires beneficial ownership of any shares of
Company Common Stock or other voting securities of the Company after the
execution of this Agreement; or (c) such Principal Stockholder acquires the
right to vote or share in the voting of any shares of Company Common Stock
or other voting securities of the Company after the execution of this
Agreement (such Company Common Stock and other voting securities of the
Company, collectively, the "New Shares"), each Principal Stockholder agrees
to vote such New Shares in the same manner as the Shares and to notify
Newco and then deliver promptly to Newco upon request of Newco a proxy with
respect to such New Shares, substantially in the form of Annex B attached
hereto, which shall be irrevocable to the fullest extent permitted under
Delaware law, except as otherwise required under the terms of the Pledge
Agreements and except that such proxy shall terminate upon any termination
of this Agreement pursuant to Section 13 hereof. Each Principal Stockholder
also agrees that any New Shares acquired or purchased by such Principal
Stockholder shall be subject to the terms of this Agreement to the same
extent as if they constituted Shares.
8. Covenants of the Principal Stockholders.
(a) Each Principal Stockholder agrees that such Principal
Stockholder shall not avoid or seek to avoid the observance or performance
of any of the covenants, stipulations or conditions to be observed or
performed hereunder by any of the Principal Stockholders.
(b) Upon receipt by the Principal Stockholders of evidence
reasonably satisfactory to them of the loss, theft, destruction or
mutilation of this Agreement, and (in the case of loss, theft or
destruction) of reasonably satisfactory indemnification, and upon surrender
and cancellation of this Agreement, if mutilated, each Principal
Stockholder shall execute and deliver a new Agreement of like tenor and
date. Any such new Agreement executed and delivered shall constitute an
additional contractual obligation on the part of the Principal
Stockholders, whether or not the Agreement so lost, stolen, destroyed or
mutilated shall at any time be enforceable by anyone.
(c) Each Principal Stockholder will, in its capacity as a
beneficial owner of Shares and New Shares, (1) use all reasonable efforts
to cooperate with the Company and Newco in connection with the Transaction,
(2) promptly take such further actions and execute and deliver such
additional documents as may be necessary or appropriate to consummate the
Transaction, and (3) provide any information reasonably requested by the
Company or Newco for any regulatory application or filing made, or approval
sought, for the Transaction.
(d) Each Principal Stockholder will give prompt written notice to
Newco of any development occurring after the date of this Agreement that
causes, or that would reasonably be expected to cause, any breach of any of
the representations and warranties set forth in Section 2 hereof. The
Principal Stockholders will use their respective reasonable best efforts
not to take any action, or omit to take any action, that would reasonably
be expected to result in an Event of Default under the Pledge Agreements.
"Event of Default" shall have the meaning ascribed to such term under the
applicable Pledge Agreement.
9. Covenants of the Principal Stockholders and Newco.
(a) Each of Newco and the Principal Stockholders shall use their
respective best efforts to make all filings with, and to obtain consents
of, all third parties and Governmental Entities necessary for the
consummation of the transactions contemplated by this Agreement and the
Merger Agreement.
(b) Except as otherwise expressly provided herein, each of the
parties hereto shall bear and pay all costs and expenses incurred by them
or on their behalf in connection with the transactions contemplated
hereunder, including fees and expenses of their own financial consultants,
investment bankers, accountants and counsel.
10. Fiduciary Duties. Nothing contained herein shall limit or
affect any actions taken by either Principal Stockholder or any person or
entity controlling or under the control of either Principal Stockholder of
the types described in clauses (i) and (ii) of the proviso to paragraph (a)
of Section 6.2 of the Merger Agreement in response to a Takeover Proposal,
to the extent that the Company is permitted to take such actions under the
aforementioned proviso and provided that such Principal Stockholder acts in
accordance with any requirement set forth in such proviso, nor shall
anything contained herein limit or affect any actions taken by any person
in his capacity as a director of the Company in accordance with the
provisions of the Merger Agreement, and none of such actions taken in
accordance with the provisions of this Section 10 or in accordance with the
provisions of the Merger Agreement shall be deemed to constitute a breach
of this Agreement.
11. Specific Performance. Each party hereto acknowledges that it
will be impossible to measure in money the damages to the other parties if
a party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of
any such failure, the other parties will not have an adequate remedy at law
or in damages. Accordingly, each party hereto agrees that injunctive relief
or any other equitable remedy, in addition to remedies at law or in
damages, is the appropriate remedy for any such failure and will not oppose
the granting of such relief on the basis that the other party has an
adequate remedy at law or in damages. Each party hereto agrees that it will
not seek, and agrees to waive any requirement for, the securing or posting
of a bond in connection with any other party's seeking or obtaining such
equitable relief.
12. Successors and Assigns. This Agreement shall be binding upon,
inure to the benefit of, and be enforceable by the parties hereto and their
respective successors, assigns, heirs and devises, as applicable; and,
other than in respect of Section 10, nothing in this Agreement, express or
implied, is intended to confer upon any other Person any rights or remedies
of any nature whatsoever under or by reason of this Agreement. This
Agreement shall not be assignable without the written consent of the other
parties hereto, except that Newco may assign, in its sole discretion, all
or any of its rights, interests and obligations hereunder to any of its
Affiliates.
13. Termination. This Agreement will terminate on the earlier of
(a) the mutual agreement of Newco and each Principal Stockholder, (b) the
Effective Time, (c) the termination of the Merger Agreement pursuant to its
terms, and (d) the execution by the Company of any amendment, supplement,
waiver or modification to the Merger Agreement that has not previously been
approved in writing by each Principal Stockholder.
14. Entire Agreement. This Agreement (including the documents and
the instruments referred to herein) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
15. Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the Laws of the State of Delaware,
without giving effect to the principles of conflicts of law thereof. Any
legal action, suit or proceeding arising out of or relating to this
Agreement or the transactions provided for herein shall be brought solely
in the Federal courts of the United States located in the State of
Delaware; provided, that if (and only after) such courts determine that
they lack subject matter jurisdiction over any such legal action, suit or
proceeding, such legal action, suit or proceeding shall be brought in the
United States District Court for the Southern District of New York;
provided, further, that if (and only after) both the Federal courts of the
United States located in the State of Delaware and the United States
District Court for the Southern District of New York determine that they
lack subject matter jurisdiction over any such legal action, suit or
proceeding, such legal action, suit or proceeding shall be brought in the
Chancery Court of the State of Delaware. Each party to this Agreement
hereby irrevocably submits to the exclusive jurisdiction of such courts in
respect of any legal action, suit or proceeding arising out of or relating
to this Agreement or the transactions provided for herein, and hereby
waives, and agrees not to assert, as a defense in any such action, suit or
proceeding, any claim that it is not subject personally to the jurisdiction
of such courts, that the action, suit or proceeding is brought in an
inconvenient forum, that the venue of the action, suit or proceeding is
improper or that this Agreement or the transactions provided for herein may
not be enforced in or by such courts. Each party agrees that notice or the
service of process in any action, suit or proceeding arising out of or
relating to this Agreement or the transactions provided for herein shall be
properly served or delivered if delivered in the manner contemplated by
Section 16 hereof. In addition, each of the parties hereto waives any right
to trial by jury with respect to any claim or proceeding related to or
arising out of this Agreement or any transactions provided for herein.
16. Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given upon receipt by the parties at the
following addresses (or at such other address for a party as shall be
specified by like notice):
(i) if to Newco to:
LOC Acquisition Company
c/o Sony Corporation of America
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
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Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
and
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to either of the Principal Stockholders, to:
Tracinda Corporation
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▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel,
Telecopy: ▇▇▇ ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇, Esq.
Telecopy: ▇▇▇ ▇▇▇-▇▇▇▇
17. Severability. This Agreement shall be deemed severable; the
invalidity or unenforceability of any term or provision of this Agreement
shall not affect the validity or enforceability of the balance of this
Agreement or of any other term hereof, which shall remain in full force and
effect. If any of the provisions hereof are determined to be invalid or
unenforceable, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible.
18. Waiver. The parties hereto may, to the extent permitted by
applicable Law, subject to Section 19 hereof, (a) waive any inaccuracies in
the representations and warranties contained herein or in any document
delivered pursuant hereto or (b) waive compliance with any of the
agreements or conditions contained herein. Any agreement on the part of a
party hereto to any such waiver shall be valid only if set forth in a
written instrument signed on behalf of such party. The failure of any party
to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
19. Modification. No supplement, modification or amendment of
this Agreement will be binding unless made in a written instrument that is
signed by all of the parties hereto and that specifically refers to this
Agreement.
20. Counterparts. This Agreement may be executed in two (2) or
more counterparts, all of which shall be considered one and the same
agreement and shall become effective when such counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
21. Headings. All Section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning
or interpretation of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first written above.
TRACINDA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Secretary/Treasurer
250 RODEO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Secretary/Treasurer
LOC Acquisition Company
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chairman of the Board
ANNEX A
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Shares of Company
Principal Stockholders Common Stock Owned
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Tracinda Corporation 144,290,996
250 Rodeo, Inc. 19,758,648
ANNEX B
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FORM OF IRREVOCABLE PROXY
The undersigned hereby revokes any previous proxies and appoints
LOC Acquisition Company, a Delaware corporation ("Newco"), and any
individual who shall be designated by Newco, with full power of
substitution and resubstitution as attorney-in-fact and proxy of the
undersigned to attend any and all meetings of stockholders (and any
adjournments or postponements thereof) of Metro-▇▇▇▇▇▇▇-▇▇▇▇▇ Inc., a
Delaware corporation (the "Company"), to vote all shares of Common Stock,
par value $0.01 per share, of the Company that the undersigned is then
entitled to vote, and to represent and otherwise to act for the undersigned
in the same manner and with the same effect as if the undersigned were
present, with respect to all matters specified in the Voting and Support
Agreement, dated as of September 23, 2004 (the "Voting Agreement"), by and
among Newco, the undersigned and the other parties signatory thereto.
Capitalized terms used and not defined herein have the respective meanings
ascribed to them in the Voting Agreement.
This proxy has been granted pursuant to Section 3 of the Voting
Agreement. This proxy shall be deemed to be a proxy coupled with an
interest and is irrevocable during the term of the Voting Agreement to the
fullest extent permitted under Delaware law, except as otherwise required
under the terms of the Pledge Agreements and except that such proxy shall
terminate upon any termination of the Merger Agreement pursuant to its
terms.
The undersigned authorizes such attorney and proxy to substitute
any other person to act hereunder, to revoke any substitution and to file
this proxy and any substitution or revocation with the Secretary of the
Company.
Dated: ______, 2004
[NAME]
By:
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Name:
Title: