<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 13, 1995
REGISTRATION NO. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________
FORM S-3
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
__________________________
THE ACTAVA GROUP INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 58-097145
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
945 EAST PACES FERRY ROAD,
SUITE 2210
ATLANTA, GEORGIA 30326
(404) 261-6190
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
W. TOD CHMAR
SENIOR VICE PRESIDENT
THE ACTAVA GROUP INC.
945 EAST PACES FERRY ROAD,
SUITE 2210
ATLANTA, GEORGIA 30326
(404) 261-6190
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
_______________
Copies of Communications to:
WALTER M. GRANT, ESQ. LEONARD A. SILVERSTEIN, ESQ.
SENIOR VICE PRESIDENT LONG, ALDRIDGE & NORMAN
AND GENERAL COUNSEL ONE PEACHTREE CENTER, SUITE 5300
THE ACTAVA GROUP INC. 303 PEACHTREE STREET
945 EAST PACES FERRY ROAD ATLANTA, GEORGIA 30308-3201
SUITE 2210 (404) 527-4000
ATLANTA, GEORGIA 30326
(404) 261-6190
__________________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after the Registration Statement becomes effective.
__________________________
If any of the securities registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Title of shares Amount Proposed maximum Proposed maximum Amount of
to be to be offering price per aggregate offering registration
registered registered share(1) price(1) fee(1)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $1.00 par value per share 3,000,000 $16.6875 $50,062,500 $17,262.93
========================================================================================================================
</TABLE>
(1) Pursuant to Rule 457(c), the proposed offering price and registration
fee are based upon the average of the high and low prices of the
Registrant's Common Stock as reported in the consolidated reporting
system on October 10, 1995.
__________________________
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
ii
<PAGE> 3
PROSPECTUS
3,000,000 SHARES
THE ACTAVA GROUP INC.
COMMON STOCK
The 3,000,000 shares (the "Shares") of common stock, par value $1.00
per share (the "Common Stock"), of The Actava Group Inc. (the "Company")
offered hereby are being offered for the account of Triton Group Ltd. ("Triton"
or the "Selling Stockholder"). The Selling Stockholder will use a portion of
the net proceeds of this offering to repay a loan made by the Company to the
Selling Stockholder. See "Selling Stockholder."
The Selling Stockholder may sell the Shares offered hereby from time
to time, with such sales to be primarily through block transactions but also
may be through market transactions effected through registered broker dealers
on the New York and The Pacific Stock Exchanges or such other national
securities exchange or automated interdealer quotation system on which shares
of the Company's Common Stock are then listed at market prices prevailing at
the time of the sale. Such brokers or dealers may receive compensation in the
form of commissions or otherwise in such amounts as may be negotiated by them.
As of the date of this Prospectus, no agreements have been reached for the sale
of the Shares or the amount of any compensation to be paid to brokers or
dealers in connection therewith. The Selling Stockholder will bear all
expenses in connection with the registration and sale of the Shares being
offered hereby, including commissions, concessions or discounts to brokers or
dealers and fees and expenses of counsel or other advisors to the Selling
Stockholder and up to $25,000 of the fees of counsel to the Company. See "Plan
of Distribution." To the extent that any of the Shares offered hereby remain
unsold upon the termination of this offering, it is anticipated that the
Selling Stockholder will distribute such unsold shares to its stockholders on a
pro rata basis.
The Common Stock of the Company is listed on the New York and The
Pacific Stock Exchanges under the trading symbol "ACT." On October 11, 1995,
the last reported sale price of the Company's Common Stock on the New York
Stock Exchange was $17 per share.
_________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAP-
PROVED BY THE SECURITIES AND EXCHANGE COMMIS-
SION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE COMMISSION OR ANY STATE SECURI-
TIES COMMISSION PASSED UPON THE AC-
CURACY OR ADEQUACY OF THIS PRO-
SPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_________________
The date of this Prospectus is October ___, 1995.
<PAGE> 4
No person has been authorized in connection with this offering to give
any information or to make any representation not contained or incorporated by
reference in this Prospectus, and, if given or made, such information or
representation must not be relied upon as having been authorized by the
Company. Neither the delivery of this Prospectus nor any sales hereunder shall
under any circumstances create any implication that the information contained
herein is correct as of any time subsequent to the date hereof or the dates as
of which information is otherwise set forth or incorporated by reference
herein. This Prospectus does not constitute an offer to sell or a solicitation
of an offer to purchase any securities other than those to which it relates or
an offer to any person in any jurisdiction where such offer or solicitation
would be unlawful.
AVAILABLE INFORMATION
Additional information regarding the Company and the Shares offered
hereby is contained in the Registration Statement on Form S-3 (of which this
Prospectus forms a part) and the exhibits relating thereto (the "Form S-3
Registration Statement") filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"1933 Act"). The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and in accordance
therewith files reports, proxy statements, information statements and other
information with the Commission. Such reports, proxy statements, information
statements and other information can be inspected and copied at the public
reference facilities of the Commission at Room 1024, 450 Fifth Street, N.W.,
Washington, D.C. 20549, and at the Commission's regional offices at CitiCorp
Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and 7
World Trade Center, 13th Floor, New York, New York 10048. Copies of such
material can be obtained from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. Such
reports, proxy statements and other information also may be inspected at the
offices of the New York Stock Exchange, 20 Broad Street, New York, New York
10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission pursuant to the 1934 Act hereby are incorporated by reference into
this Prospectus as of their respective dates:
(1) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994, Form 10-K/A Amendment No. 1 filed on April
28, 1995 and Form 10-K/A Amendment No. 2 filed July 13, 1995
amending the Company's Form 10-K for the year ended December
31, 1994;
(2) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1995;
(3) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995;
(4) The Company's Current Report on Form 8-K dated April 12, 1995
and Form 8-K/A Amendment No. 1 dated April 28, 1995 amending
the Company's Current Report on Form 8-K dated April 12, 1995;
(5) The Company's Current Report on Form 8-K dated September 27,
1995; and
(6) The description of the Common Stock as contained in the
Company's Registration Statement on Form 8-A (Registration
No.1-5706) as filed with the Commission on September 26, 1969,
as amended.
Also incorporated by reference into this Prospectus is the following
document filed by the Company with the Commission:
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<PAGE> 5
Registration Statement on Form S-4 (Registration No. 33-63003)
declared effective by the Commission on September 28, 1995, which includes the
Joint Proxy Statement/Prospectus ("Joint Proxy Statement/Prospectus") with
respect to a special meeting of Stockholders of the Company to be held on
November 1, 1995 (the "Company's Special Meeting"), and all subsequent
amendments thereof, but excluding the material set forth under the following
captions:
"Summary Information -- Opinion of Actava's Financial Advisor," "--
Opinion of Orion's Financial Advisor," "Opinion of MITI's Financial Adviser,"
and "-- Opinion of Sterling's Financial Advisor."
"Proposal No. 1 -- The Proposed Mergers -- Opinions of Financial
Advisors"
"Appendix B -- Fairness Opinion of CS First Boston Corporation"
"Appendix C -- Fairness Opinion of Alex. Brown & Sons Incorporated"
"Appendix D -- Fairness Opinion of Gerard Klauer Mattison & Co.,
L.L.C."
"Appendix E -- Fairness Opinion of Houlihan, Lokey, Howard & Zukin,
Inc."
In addition, all reports and documents filed by the Company pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the date
hereof and prior to the filing of a post-effective amendment which indicates
that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and made a part hereof from the date of the filing of such
documents.
The Company will provide without charge to each person to whom this
Prospectus is delivered, at the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated herein by reference,
other than exhibits to such documents (unless such exhibits are specifically
incorporated by reference into the foregoing documents). The Company also will
provide without charge upon request a copy of the Company's latest Annual
Report. Written or telephonic requests should be directed to Walter M. Grant,
Esq., Senior Vice President and General Counsel, The Actava Group Inc., 945
East Paces Ferry Road, Suite 2210, Atlanta, Georgia 30326; (404) 261-6190.
THE COMPANY
GENERAL
The Company was organized in 1929 under Pennsylvania law and was
reincorporated in 1968 under Delaware law. On July 19, 1993, the Company
changed its name from Fuqua Industries, Inc. to The Actava Group Inc. The
Company's principal executive offices are located at 945 East Paces Ferry Road,
Suite 2210, Atlanta, Georgia 30326, and its telephone number is (404) 261-6190.
Since the late 1960's, the Company has owned, operated and sold dozens
of companies in many diverse industries, including photofinishing, recreation,
sporting goods, yacht and sailboat manufacturing, outdoor power equipment,
manufactured housing, petroleum distribution, movie theaters, retailing,
broadcasting, trucking, food and beverages, grain storage bins, taxicabs,
seating and banking. At the beginning of 1994, the Company owned and operated
businesses in three industries: photofinishing, lawn and garden equipment, and
sporting goods. The Company sold its photofinishing subsidiary and its four
sporting goods subsidiaries during 1994. As a result of these transactions,
the Company presently operates only one business, Snapper Power Equipment
Company ("Snapper"), which is a division of the Company and is engaged in the
manufacture and sale of lawn and garden equipment. In addition to operating
Snapper, the Company owns at the date of this Prospectus 19,169,000 shares or
approximately 39% of the outstanding common stock of Roadmaster Industries,
Inc. ("Roadmaster"). These shares were issued to the Company in connection
with the sale of the Company's four sporting goods subsidiaries to Roadmaster.
The Company is presently evaluating new opportunities and strategies for
enhancing stockholder value, including the proposed business combination with
three other companies as discussed below.
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<PAGE> 6
RECENT DEVELOPMENTS
On September 27, 1995, the Company, Orion Pictures Corporation
("Orion"), MCEG Sterling Incorporated ("Sterling"), and Metromedia
International Telecommunications, Inc. ("MITI") entered into an Amended and
Restated Agreement and Plan of Merger (the "Merger Agreement"), which amends
and restates in its entirety an Agreement and Plan of Merger dated as of April
12, 1995 among the Company, Orion, Sterling and MITI (the "Initial Merger
Agreement"). Pursuant to the Merger Agreement, at the Effective Time (as
defined below), (i) Orion will merge with and into OPC Merger Corp. ("OPC
Mergerco"), a newly formed, wholly-owned subsidiary of the Company (the "Orion
Merger"), with OPC Mergerco being the surviving corporation of the Orion
Merger, (ii) MITI will merge with and into MITI Merger Corp. ("MITI
Mergerco"), a newly formed, wholly-owned subsidiary of the Company (the "MITI
Merger"), with MITI Mergerco being the surviving corporation of the MITI
Merger, and (iii) Sterling will merge with and into the Company (the "Sterling
Merger" and together with the Orion Merger and the MITI Merger, the "Mergers")
with the Company being the surviving corporation of the Sterling Merger. OPC
Mergerco, as the surviving corporation of the Orion Merger (referred to herein
as "New Orion"), will be renamed "Orion Pictures Corporation" and will continue
the business and operations of Orion and Sterling (see below). MITI Mergerco,
as the surviving corporation of the MITI Merger, will be renamed "Metromedia
International Telecommunications, Inc." and will continue the business and
operations of MITI. The Company, as the surviving corporation of the Sterling
Merger, will be renamed "Metromedia International Group, Inc." and will then
transfer the operating assets of Sterling to New Orion. The terms of the
Initial Merger Agreement were approved by the Board of Directors of the Company
by a vote of five to four at a meeting held on April 12, 1995 and, following
the resignations of two members of the Board of Directors, the Board of
Directors unanimously approved the Merger Agreement on September 15, 1995.
The consummation of the Mergers is subject to, among other things, the
approval of the stockholders of each of the Company, Orion, MITI and Sterling.
As of October 11, 1995, there were 17,476,401 shares of Common Stock
outstanding.
The Mergers are described more fully in the Company's Current Report
on Form 8-K dated April 12, 1995, as amended, the Company's Current Report on
Form 8-K dated September 27, 1995, and the Joint Proxy Statement/Prospectus,
included in the Company's Registration Statement on Form S-4 (Registration No.
33-63003) (the "Form S-4 Registration Statement") as declared effective by the
Commission on September 28, 1995, and any subsequent amendment thereto,
regarding the Company's Special Meeting to be held with respect to the Mergers.
All or a portion of such documents are incorporated by reference into this
Prospectus, and copies are available upon request to the Company. See
"Incorporation of Certain Documents By Reference."
SELLING STOCKHOLDER
The Selling Stockholder is Triton Group Ltd., a Delaware corporation.
All of the 3,000,000 Shares offered hereby (17.2% of the presently outstanding
shares of Common Stock as of October 11, 1995) are being offered for the
account of Triton, the Selling Stockholder. Triton acquired the Shares pursuant
to a series of open market purchases and purchases directly from former
affiliates of the Company. As of October 11, 1995, the Selling Stockholder
beneficially owned 4,413,598 shares of Common Stock.
On October 12, 1995, Triton entered into a letter agreement (the
"Triton Letter Agreement") with the Company pursuant to which the Company
agreed to file the Form S-3 Registration Statement of which this Prospectus
forms a part with the Commission within ten days following the date of the
Triton Letter Agreement. Pursuant to the Triton Letter Agreement, the Company
agreed to use all reasonable efforts to cause the Form S-3 Registration
Statement to remain effective until 90 days after the consummation of the
Mergers. Triton agreed that, upon the filing of the Form S-3 Registration
Statement, Triton will deliver to the Company executed proxies covering all of
Triton's shares of Common Stock, which will enable the Company's proxyholders
to vote all of such shares in favor of the Mergers, and that Triton will not
revoke, amend or rescind such proxies unless proxies are required to be
resolicited from all stockholders of the Company as a result of a material
change in the information regarding the Mergers contained in the Company's Form
S-4 Registration Statement. Triton also agreed to pay certain reasonable
out-of-pocket expenses incurred by the Company in effecting the registration.
See "Plan of Distribution." Both parties will cooperate with each other to
ensure the concurrent application of the net proceeds of this offering first to
repay in full all obligations of Triton under the Loan Agreement between Triton
and the Company described below.
In connection with the offering of the Shares hereunder, the Company
has agreed to indemnify and hold harmless the Selling Stockholder and each
other person who participates in the offering or sale of such Shares and their
respective directors, officers, partners, agents and affiliates against any
losses, claims, damages, liabilities (or
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<PAGE> 7
actions or proceedings, whether commenced or threatened, in respect thereof),
joint or several, and expenses (collectively, a "Loss" or "Losses") to which
such party may become subject, insofar as such Losses relate to any untrue
statement or omission, or alleged untrue statement or omission, made in the
Form S-3 Registration Statement to which this Prospectus forms a part, other
than the information provided by Triton for inclusion herein and therein; and
the Selling Stockholder has agreed to indemnify and hold harmless the Company
and each person who participates in the offering or sale of such shares and
their respective directors, officers, partners, agents and affiliates against
any Losses to which such party becomes subject, insofar as such Losses relate
to any untrue statement or omission, or alleged untrue statement or omission,
made in such registration statement in reliance upon and in conformity with
written information furnished to the Company by the Selling Stockholder
expressly for use herein and therein.
Triton and the Company are parties to a Stockholder Agreement (the
"Stockholder Agreement") which, among other things, contains provisions
regarding the Composition of the Board of Directors of the Company.
Under the Triton Letter Agreement, Triton agreed, subject to the consummation
of the Mergers, to waive the provisions of the Stockholder Agreement requiring
that the Board of Directors of the Company consist of nine members and
providing that Triton would be entitled to designate one member of the Board of
Directors of the Company. Triton also has agreed to pay the reasonable costs
and expenses associated with the preparation and mailing of a supplement to the
Joint Proxy Statement/Prospectus, up to a maximum of $35,000. As disclosed in
the Joint Proxy Statement/Prospectus, as of the record date for the Company's
Special Meeting, directors, executive officers and affiliates of the Company
owned beneficially an aggregate of 5,199,991 shares of Common Stock (excluding
shares which may be received upon the exercise of options to acquire shares of
Common Stock), or approximately 29.8% of the outstanding shares of Common
Stock. Included among the 5,199,991 shares of Common Stock owned beneficially
by the Company's directors, executive officers and affiliates is an aggregate
of 4,413,598 shares of Common Stock, or approximately 25.3% of the outstanding
shares of Common Stock, owned by Triton. As a result of the developments
described above, it is anticipated that all such shares of Common Stock held by
the Company's directors, officers and affiliates will be voted in favor of the
Merger Agreement.
Triton and the Company are parties to a Loan Agreement (the "Loan
Agreement") under which the Company has loaned up to $32 million to Triton
secured by a pledge of shares of the Common Stock owned by Triton. As of
October 10, 1995, the outstanding principal balance under the Loan Agreement
was $17,976,000. As of October 10, 1995, the Company held 1,900,776 shares of
the Common Stock owned by Triton as security for the Triton loan. Triton has
agreed to repay all amounts outstanding under the Loan Agreement with the net
proceeds from the sale of the Shares, with payments to be applied initially
toward accrued and unpaid interest and then toward the outstanding principal
balance of the loan. Accordingly, the Company will receive up to approximately
$17,976,000 (not including accrued and unpaid interest which was $56,175 as of
October 10, 1995) of the net proceeds from the sale of the Shares, which amount
will be used for general working capital purposes. The Stockholder Agreement
and the Loan Agreement are described more fully in the Company's Form 10-K/A
Amendment No. 1 filed on April 28, 1995 with the Commission. See
"Incorporation of Certain Documents by Reference." If all of the Shares
offered by the Selling Stockholder hereby are sold, the Selling Stockholder
will beneficially own 1,413,598 shares of Common Stock, or 8.1% of the
outstanding shares as of October 11, 1995.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Stockholder,
with such sales to consist primarily of block sales to institutions but also
may include market transactions effected through registered broker dealers on
the New York or The Pacific Stock Exchanges or such other national securities
exchange or automated interdealer quotation system on which shares of Common
Stock are then listed, at market prices then prevailing. Brokers or dealers
will receive commissions, concessions or discounts from the Selling Stockholder
and/or the purchasers of the Shares in amounts to be negotiated prior to the
sale. In addition, any Shares covered by this Prospectus which qualify for
sale pursuant to Rule 144 under the 1933 Act may be sold under Rule 144 rather
than pursuant to this Prospectus. To the extent that any of the Shares offered
hereby remain unsold upon the termination of this offering, it is anticipated
that the Selling Stockholder will distribute such unsold shares to its
stockholders on a pro rata basis.
The Selling Stockholder will bear all expenses in connection with the
registration and sale of the Shares, including commissions, concessions or
discounts to brokers or dealers and fees and expenses of counsel or other
advisors to the Selling Stockholders and up to $25,000 of the fees of counsel
to the Company.
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<PAGE> 8
The Selling Stockholder and any broker or dealer who acts in
connection with the sale of the Shares hereunder may be deemed to be
"underwriters" within the meaning of Section 2(11) of the 1933 Act, and any
compensation received by them and any profit on any resale of the Shares as
principals might be deemed to be underwriting discounts and commissions under
the 1933 Act.
LEGAL MATTERS
The legality of the Shares offered hereby has been passed upon for the
Company by Long, Aldridge & Norman, Atlanta, Georgia, counsel to the Company
and the beneficial owner of 52,708 shares of Common Stock.
EXPERTS
The consolidated financial statements and related schedule of Orion as
of February 28, 1995 and 1994 and for each of the years in the three-year
period ended February 28, 1995, have been incorporated by reference herein and
in the Form S-3 Registration Statement in reliance upon the report of KPMG Peat
Marwick LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
The report of KPMG Peat Marwick LLP on the February 28, 1995, 1994 and
1993 consolidated financial statements of Orion contains an explanatory
paragraph that states that Orion is a defendant in certain litigation which
alleges various breaches of agreements by Orion, and seeks certain damages. It
is not possible to assess the ultimate damages, if any, at this time.
The report of KPMG Peat Marwick LLP on the February 28, 1995
consolidated financial statements of Orion contains an explanatory paragraph
that states that based upon Orion's inability to meet required debt payments
that are due within the next year under the terms of its Indentures (as defined
in Note 6 of the Notes to Consolidated Financial Statements) there exists
substantial doubt about the entity's ability to continue as a going concern.
The consolidated financial statements do not include any adjustments that might
result from the outcome of that uncertainty.
The report of KPMG Peat Marwick LLP on the February 28, 1994
consolidated financial statements of Orion includes an explanatory paragraph on
the Company's change in method of accounting for income taxes.
The consolidated financial statements of the Company included in the
Company's Annual Report on Form 10-K for the year ended December 31, 1994, have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
report thereon included therein and incorporated herein by reference. Such
financial statements have been incorporated herein by reference in reliance
upon such report given upon the authority of such firm as experts in accounting
and auditing.
The consolidated financial statements of MITI as of December 31, 1994
and 1993 and for each of the years in the two-year period ended December 31,
1994, have been incorporated by reference herein and in the Form S-3
Registration Statement in reliance upon the report of KPMG Peat Marwick LLP,
independent certified public accountants, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing.
The report of KPMG Peat Marwick LLP on the December 31, 1994 and 1993,
consolidated financial statements of MITI contains an explanatory paragraph
that states that MITI's significant recurring losses and negative operating and
investing cash flows raise substantial doubt about MITI's ability to continue
as a going concern. The consolidated financial statements do not include any
adjustments that might result from the outcome of that uncertainty.
The independent auditor's report for the years ended December 31, 1994
and 1993, refers to a change in policy of accounting for investments in Joint
Ventures in 1994.
The combined financial statements of International Telcell, Inc. (ITI)
and International Telcell Group Limited Partnership (ITGLP) (predecessor
entities of MITI) as of December 31, 1992 and for the year then ended have been
incorporated by reference herein and in the Form S-3 Registration Statement in
reliance upon the report of Arthur
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<PAGE> 9
Andersen LLP, independent certified public accountants, incorporated by
reference herein, and upon the authority of said firm as experts in accounting
and auditing.
The report of Arthur Andersen LLP covering the December 31, 1992
combined financial statements of ITI and ITGLP contains an explanatory
paragraph that states that MITI's significant recurring losses and negative
operating and investing cash flows raise substantial doubt about MITI's ability
to continue as a going concern. The combined financial statements do not
include any adjustments that might result from the outcome of that uncertainty.
The financial statements of Kosmos TV as of December 31, 1993 and
September 30, 1994, and for the year ended December 31, 1994 and for the nine
months ended September 30, 1994 have been incorporated by reference herein and
in the Form S-3 Registration Statement in reliance upon the report of KPMG,
independent auditors, incorporated by reference herein, and upon the authority
of said firm as experts in accounting and auditing.
The report of KPMG on the December 31, 1993 and September 30, 1994
financial statements of Kosmos TV contains an explanatory paragraph that states
that Kosmos TV's recurring losses from operations and net capital deficiency
raise substantial doubt about Kosmos TV's ability to continue as a going
concern. The financial statements do not include any adjustments that might
result from the outcome of that uncertainty.
The audited consolidated financial statements and related schedules of
Sterling as of March 31, 1995 and 1994 and for each of the fiscal years ended
March 31, 1995, 1994 and 1993, incorporated by reference herein and in the Form
S-3 Registration Statement, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their reports with respect
thereto, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in giving said reports.
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<PAGE> 10
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee . . . . . . . . . . . . $17,263
NYSE Additional Listing Fee . . . . . . . . . . . . . . . . . . . . . . . . -0-
Accountants' Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . 20,000
Legal Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 25,000
Printing and Engraving Expenses . . . . . . . . . . . . . . . . . . . . . . 6,000
Blue Sky Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . 2,500
Miscellaneous Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 10,000
Total Expenses $80,763
</TABLE>
The foregoing amounts, except for the Securities and Exchange
Commission Registration Fee, are estimated. The Selling Stockholder has agreed
to pay all of the above expenses, plus all broker or dealer fees, discounts and
expenses, and all transfer and other taxes on the sale of the Shares.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
(the "Delaware Law") empowers a Delaware Corporation to indemnify any persons
who are, or are threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceedings, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
such corporation), by reason of the fact that such person was an officer or
director of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided that such officer or director acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best
interests, and, for criminal proceedings, had no reasonable cause to believe
his conduct was illegal. A Delaware corporation may indemnify officers and
directors in an action by or in the right of the corporation under the same
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the corporation
in the performance of his duty. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which such officer or
director actually and reasonably incurred.
In accordance with Delaware Law, the Restated Certificate of
Incorporation of the Registrant (listed as Exhibit 4(a) to this Registration
Statement) contains a provision to limit the personal liability of the
directors of the Registrant for violations of their fiduciary duty. This
provision eliminates each director's liability to the Registrant or its
stockholders for monetary damages except (i) for any breach of the director's
duty of loyalty to the Registrant or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which a director derived an
improper personal benefit. The effect of this provision is to eliminate the
personal liability of directors for monetary damages for actions involving a
breach of their fiduciary duty of care, including any such actions involving
gross negligence.
Article XII of the Amended and Restated By-laws of the Registrant
provides for indemnification of the officers and directors of the Registrant to
the fullest extent permitted by Delaware Law.
II-1
<PAGE> 11
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
Document with which Designation of
Exhibit was previously such Exhibit in
Exhibit No. Description filed with Commission that Document
- ----------- ----------- ---------------------- ---------------
<S> <C> <C> <C>
2(a)(i) Agreement and Plan of Merger dated Current Report on Form 8-K 99(a)
as of April 12, 1995 by and among for event occurring on
The Actava Group Inc., Orion Pictures April 12, 1995
Corporation, MCEG Sterling Incorporated
and Metromedia International Telecom-
munications, Inc.
2(a)(ii) Amended and Restated Agreement Current Report on Form 8-K 99(a)
and Plan of Merger dated as of for event occurring on September
September 27, 1995 by and among 27, 1995
The Actava Group Inc., Orion Pictures
Corporation, MCEG Sterling Incorpor-
ated and Metromedia International
Telecommunications, Inc.
2(b)(i) Credit Agreement dated as of October Current Report on Form 8-K 10(a)
11, 1994 by and between The Actava for event occurring on October
Group Inc. and Metromedia Company. 11, 1994
The following exhibits are omitted:
Exhibit A - Form of Note; Exhibit B -
Form of Pledge Agreement; Exhibit C -
Form of Guaranty; and Exhibit D -
Form of Opinion by Paul, Weiss,
Rifkind, Wharton & Garrison.
Registrant agrees to furnish copies
of such exhibits upon request.
2(b)(ii) Amendment No. 1 dated as of April Amendment No. 1 to Current 99(c)
12, 1995 to the Credit Agreement Report on Form 8-K/A for event
dated as of October 11, 1994 between occurring on April 12, 1995,
The Actava Group Inc. and Metro- filed on April 28, 1995
media Company
2(b)(iii) Amendment No. 2 dated as of
October 10, 1994, to the Credit
Agreement dated as of October 11,
1994 by and between The Actava Group
Inc. and Metromedia Company
4(a) Restated Certificate of Incorpora- Annual Report on Form 10-K 3(a)(i)
tion of The Actava Group Inc. for the year ended December 31,
1993
4(b)(i) Finance and Security Agreement dated Annual Report on Form 10-K for 4(g)(i)
as of October 30, 1992 with respect the year ended December 31, 1994
to a revolving credit facility of up
to $100 million, between The Actava
Group Inc. and ITT Commercial Finance
Corp.
4(b)(ii) Amendment dated as of September 27, Annual Report on Form 10-K for 4(g)(ii)
1993 to Finance and Security Agree- the year ended December 31, 1994
ment dated as of October 30, 1992
with respect to a revolving credit
</TABLE>
II-2
<PAGE> 12
<TABLE>
<S> <C> <C> <C>
facility of up to $100 million
between The Actava Group Inc. and
ITT Commercial Finance Corp.
4(b)(iii) Amendment dated as of March 29, Annual Report on Form 10-K for 4(g)(iii)
1994 to Finance and Security Agree- the year ended December 31, 1994
ment dated as of October 30, 1992
with respect to a revolving credit
facility of up to $100 million
between The Actava Group Inc. and
ITT Commercial Finance Corp.
4(b)(iv) Amendment dated as of April 15, 1994 Annual Report on Form 10-K for 4(g)(iv)
to Finance and Security Agreement the year ended December 31, 1994
dated as of October 30, 1992 with
respect to a revolving credit facility
of up to $10 million between The
Actava Group Inc. and ITT Commercial
Finance Corp.
4(b)(v) Amendment dated as of September 23, Annual Report on Form 10-K for 4(g)(v)
1994 to Finance and Security Agree- the year ended December 31, 1994
ment dated as of October 30, 1992
with respect to a revolving credit
facility of up to $100 million
between The Actava Group Inc. and
ITT Commercial Finance Corp.
4(b)(vi) Amendment dated as of March 3, 1995, Quarterly Report on Form 10-Q for 4
to Finance and Security Agreement, the quarter ended June 30, 1995
dated as of October 30, 1992 with
respect to a revolving credit facility
of up to $100 million between Actava
and ITT Commercial Finance Corp.
4(c) Agreement between NationsBank and Quarterly Report on Form 10-Q for 4.1
The Actava Group Inc. dated as of the quarter ended September 30,
September 26, 1994 with respect 1994
to a $200 million line of credit
for the financing of future acqui-
sitions by The Actava Group Inc.
4(d)(i) Letter Agreement dated October 12,
1995 between Triton Group Ltd.
and The Actava Group Inc.
5 Opinion of Long, Aldridge & Norman
10(a) Amended and Restated Loan Agreement Quarterly Report on Form 10-Q for 19
between Actava and Triton Group Ltd. the three months ended June 30,
dated June 25, 1993 1993
10(b) First Amendment, dated August 19, Quarterly Report on Form 10-Q for 19
1993 to Amended and Restated Loan the three months ended September
Agreement between Actava and Triton 30, 1993
Group Ltd. dated June 25, 1993
10(c) Second Amendment, dated December 7, Annual Report on Form 10-K for 10(r)
1993 to Amended and Restated Loan the year ended December 31,
Agreement between Actava and Triton 1993
Group Ltd. dated June 25, 1993
23(a) Consent of Ernst & Young LLP
regarding the Actava Group Inc.
23(b) Consent of KPMG Peat Marwick LLP
regarding Orion Pictures Corporation
23(c) Consent of KPMG Peat Marwick LLP
regarding Metromedia International
Telecommunications, Inc.
23(d) Consent of KPMG Peat Marwick LLP
regarding Kosmos TV
23(e) Consent of Arthur Andersen LLP
regarding Metromedia International
</TABLE>
II-3
<PAGE> 13
<TABLE>
<S> <C>
Telecommunications, Inc.'s predecessor
entities
23(f) Consent of Arthur Andersen LLP regarding
MCEG Sterling Incorporated
23(g) Consent of Long, Aldridge & Norman
(included in Exhibit 5)
24 Powers of Attorney. See signature page to
this Registration Statement.
</TABLE>
ITEM 17. UNDERTAKINGS
A. RULE 415 OFFERING.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 (the "Act");
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. SUBSEQUENT DOCUMENTS INCORPORATED BY REFERENCE.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-4
<PAGE> 14
C. INDEMNIFICATION OF OFFICERS, DIRECTORS AND CONTROLLING PERSONS.
Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-5
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, as of October 13,
1995.
THE ACTAVA GROUP INC.
By: /s/ John D. Phillips
------------------------------
John D. Phillips
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints W. TOD CHMAR, FREDERICK B. BEILSTEIN, III and
WALTER M. GRANT, and each of them, as his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of October 13, 1995.
<TABLE>
<CAPTION>
Signatures Title
- ---------- -----
<S> <C>
/s/ John D. Phillips President and Chief Executive
- -------------------------- Officer and Director (Principal
John D. Phillips Executive Officer)
/s/ Frederick B. Beilstein, III Senior Vice President-Chief
- -------------------------- Financial Officer (Principal Financial
Frederick B. Beilstein, III and Accounting Officer)
Director
- --------------------------
John E. Aderhold
/s/ Michael E. Cahr Director
- --------------------------
Michael E. Cahr
/s/ John P. Imlay, Jr. Director
- --------------------------
John P. Imlay, Jr.
/s/ Clark A. Johnson Director
- --------------------------
Clark A. Johnson
/s/ Richard Nevins Director
- --------------------------
Richard Nevins
/s/ Carl E. Sanders Director
- --------------------------
Carl E. Sanders
</TABLE>
II-6
<PAGE> 16
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
Document with which Designation of
Exhibit was previously such Exhibit in
Exhibit No. Description filed with Commission that Document
- ----------- ----------- ---------------------- -----------------
<S> <C> <C> <C>
2(a)(i) Agreement and Plan of Merger dated Current Report on Form 8-K 99(a)
as of April 12, 1995 by and among for event occurring on
The Actava Group Inc., Orion Pictures April 12, 1995
Corporation, MCEG Sterling Incorporated
and Metromedia International Telecom-
munications, Inc.
2(a)(ii) Amended and Restated Agreement Current Report on Form 8-K 99(a)
and Plan of Merger dated as of for event occurring on September
September 27, 1995 by and among 27, 1995
The Actava Group Inc., Orion Pictures
Corporation, MCEG Sterling Incorpor-
ated and Metromedia International
Telecommunications, Inc.
2(b)(i) Credit Agreement dated as of October Current Report on Form 8-K 10(a)
11, 1994 by and between The Actava for event occurring on
Group Inc. and Metromedia Company. October 11, 1994
The following exhibits are omitted:
Exhibit A - Form of Note; Exhibit B -
Form of Pledge Agreement; Exhibit C -
Form of Guaranty; and Exhibit D -
Form of Opinion by Paul, Weiss,
Rifkind, Wharton & Garrison.
Registrant agrees to furnish copies
of such exhibits upon request.
2(b)(ii) Amendment No. 1 dated as of April Amendment No. 1 to Current 99(c)
12, 1995 to the Credit Agreement Report on Form 8-K/A for event
dated as of October 11, 1994 between occurring on April 12, 1995,
The Actava Group Inc. and Metro- filed on April 28, 1995
media Company
2(b)(iii) Amendment No. 2 dated as of
October 10, 1994 to the Credit
Agreement dated as of October 11,
1994 by and between The Actava
Group Inc. and Metromedia Company
4(a) Restated Certificate of Incorpora- Annual Report on Form 10-K 3(a)(i)
tion of The Actava Group Inc. for the year ended December 31,
1993
4(b)(i) Finance and Security Agreement dated Annual Report on Form 10-K for 4(g)(i)
as of October 30, 1992 with respect the year ended December 31, 1994
to a revolving credit facility of up
to $100 million, between The Actava
Group Inc. and ITT Commercial Finance
Corp.
</TABLE>
II-7
<PAGE> 17
<TABLE>
<S> <C> <C> <C>
4(b)(ii) Amendment dated as of September 27, Annual Report on Form 10-K for 4(g)(ii)
1993 to Finance and Security Agree- the year ended December 31, 1994
ment dated as of October 30, 1992
with respect to a revolving credit
facility of up to $100 million
between The Actava Group Inc. and
ITT Commercial Finance Corp.
4(b)(iii) Amendment dated as of March 29, Annual Report on Form 10-K for 4(g)(iii)
1994 to Finance and Security Agree- the year ended December 31, 1994
ment dated as of October 30, 1992
with respect to a revolving credit
facility of up to $100 million
between The Actava Group Inc. and
ITT Commercial Finance Corp.
4(b)(iv) Amendment dated as of April 15, 1994 Annual Report on Form 10-K for 4(g)(iv)
to Finance and Security Agreement the year ended December 31, 1994
dated as of October 30, 1992 with
respect to a revolving credit facility
of up to $10 million between The
Actava Group Inc. and ITT Commercial
Finance Corp.
4(b)(v) Amendment dated as of September 23, Annual Report on Form 10-K for 4(g)(v)
1994 to Finance and Security Agree- the year ended December 31, 1994
ment dated as of October 30, 1992
with respect to a revolving credit
facility of up to $100 million
between The Actava Group Inc. and
ITT Commercial Finance Corp.
4(b)(vi) Amendment dated as of March 3, 1995, Quarterly Report on Form 10-Q for 4
to Finance and Security Agreement, the quarter ended June 30, 1995
dated as of October 30, 1992, with
respect to a revolving credit facility
of up to $100 million, between Actava
and ITT Commercial Finance Corp.
4(c) Agreement between NationsBank and Quarterly Report on Form 10-Q for 4.1
The Actava Group Inc. dated as of the quarter ended September 30,
September 26, 1994 with respect 1994
to a $200 million line of credit
for the financing of future acqui-
sitions by The Actava Group Inc.
4(d)(i) Letter Agreement dated October 12,
1995 between Triton Group Ltd.
and The Actava Group Inc.
5 Opinion of Long, Aldridge & Norman
10(a) Amended and Restated Loan Agreement Quarterly Report on Form 10-Q for 19
between Actava and Triton Group Ltd. the three months ended June 30,
dated June 25, 1993 1993
10(b) First Amendment, dated August 19, Quarterly Report on Form 10-Q for 19
1993 to Amended and Restated Loan the three months ended September
Agreement between Actava and Triton 30, 1993
Group Ltd. dated June 25, 1993
10(c) Second Amendment, dated December 7, Annual Report on Form 10-K for 10(r)
1993 to Amended and Restated Loan the year ended December 31,
Agreement between Actava and Triton 1993
Group Ltd. dated June 25, 1993
23(a) Consent of Ernst & Young LLP regarding
The Actava Group Inc.
23(b) Consent of KPMG Peat Marwick LLP
regarding Orion Pictures Corporation
23(c) Consent of KPMG Peat Marwick LLP
regarding Metromedia International
</TABLE>
II-8
<PAGE> 18
<TABLE>
<S> <C>
Telecommunications, Inc.
23(d) Consent of KPMG Peat Marwick LLP
regarding Kosmos TV
23(e) Consent of Arthur Andersen LLP
regarding Metromedia International
Telecommunications, Inc.'s predecessor
entities
23(f) Consent of Arthur Andersen LLP regarding
MCEG Sterling Incorporated
23(g) Consent of Long, Aldridge & Norman
(included in Exhibit 5)
24 Powers of Attorney. See signature page to
this Registration Statement.
</TABLE>
II-9
<PAGE> 1
EXHIBIT 2(b)(iii)
AMENDMENT NO. 2, dated as of October 10, 1995 (this "Amendment"), to
the Credit Agreement dated as of October 11, 1994, as amended (the "Credit
Agreement"), between The Actava Group Inc., a Delaware corporation (the
"Lender"), and Metromedia Company, a Delaware general partnership (the
"Borrower").
The Borrower has requested that the Lender amend certain provisions of
the Credit Agreement. Each party is willing, on the terms, subject to the
conditions and to the extent set forth below, to enter into such an amendment.
In consideration of the premises and the agreements, provisions and
covenants herein contained, the parties hereto agree, on the terms and subject
to the conditions set forth herein, as follows:
Section 1. Amendment of the Credit Agreement.
Section 2.1 of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
"2.1 Commitment. Subject to the terms and conditions hereof,
the Lender agrees to make Loans ("Loans") to the Borrower from time to time
during the Commitment Period, during which period the Borrower may borrow,
prepay and reborrow in accordance with the provisions hereof, provided that
immediately after making each Loan and after giving effect to all Loans repaid
concurrently with the making of any Loans, the aggregate principal amount of
the Loans outstanding at any one time would not exceed the amount of the
Lender's Commitment."
<PAGE> 2
SECTION 2. Representations and Warranties.
The Borrower represents and warrants to the Lender that:
(a) This Amendment has been duly and validly authorized,
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally and by
general equity principles (regardless of whether such enforceability is
considered in a proceeding at law or in equity.)
(b) Before and after giving affect to this Amendment, the
representations and warranties set forth in Section 3 of the Credit Agreement
are true and correct in all material respects with the same effect as if made
on the date hereof (or, if any such representation or warranty is expressly
stated to have been made as of a specific date, as if made on such date).
(c) Before and after giving effect to this Amendment, no Event
of Default or Default has occurred and is continuing.
(d) It shall be an Event of Default for all purposes of the
Credit Agreement as amended hereby, if any representation, warranty or
certification made by the Borrower in this Amendment, or in any certificate,
document or financial or other statement furnished by
<PAGE> 3
it at any time under or in connection with this Amendment shall prove
to have been incorrect in any material respect on or as of the date
made or deemed made.
SECTION 3. Credit Agreement. Except as specifically amended
hereby, the Credit Agreement shall continue in full force and effect in
accordance with the provisions thereof as in existence on the date hereof.
After the date hereof, any reference to the Credit Agreement shall mean the
Credit Agreement as amended hereby.
SECTION 4. Definitions. Capitalized terms used but not
defined herein shall have the respective meanings ascribed to such terms in the
Credit Agreement.
SECTION 5. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 6. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Amendment may be executed in
two or more counterparts, each of which shall constitute an original but all of
which when taken together shall constitute but one contract.
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first written above.
METROMEDIA COMPANY
Arnold L. Wadler
-----------------------------
Name: Arnold L. Wadler
Title: Senior Vice President
THE ACTAVA GROUP INC.
/s/ John D. Phillips
-----------------------------
Name: John D. Phillips
Title: Chief Executive Officer
<PAGE> 1
EXHIBIT 4(d)(i)
October 12, 1995
Triton Group Ltd.
550 West C Street, Suite 1880
San Diego, California 92101
Ladies and Gentlemen:
This letter is to confirm that you have requested
that The Actava Group Inc. ("Actava") register approximately 3,000,000 of the
Actava shares held by Triton Group Ltd. ("Triton") on Form S-3, and Actava
agrees to do so on the following terms:
1. The S-3 registration statement will be
prepared by Actava and filed with the Securities and Exchange Commission
("SEC") as promptly as practicable, but in no event later than ten (10) days
from the date hereof. Triton will provide Actava with information regarding
Triton and its plan of distribution for inclusion in the Form S-3 registration
statement. Actava will use all reasonable efforts to have the Form S-3
declared effective as soon as practicable. The Form S-3 will incorporate by
reference the Proxy Statement/S-4 Registration Statement with respect to the
proposed mergers of Actava, Orion, MCSG Sterling and MITI ("the Mergers").
Actava will also use all reasonable efforts to register or qualify the shares
under applicable Blue Sky laws in such jurisdictions as any broker or dealer
involved in the sale of such shares may reasonably request as long as such
qualification does not subject Actava to general service of process in a state.
2. Actava agrees to use all reasonable efforts
to cause the Form S-3 registration statement to remain effective until ninety
(90) days after the consummation of the Mergers, or, if later, 90 days after
effectiveness. In the event that such effectiveness lapses for any period or
Actava notifies Triton not to use such S-3 for any period, such ninety (90)-day
period will be extended by the period of lapse or non-use.
3. The Form S-3 will specify that Triton's plan
of distribution will involve the sale of the Actava shares primarily through
block transactions but also through open market transactions or other
transactions effected through registered broker dealers. Triton acknowledges
that the offering will be underwritten. Actava will use its reasonable efforts
to assist Triton in the selling effort and agrees to make available a senior
executive officer to attend marketing meetings with broker dealers acceptable
to Actava.
4. Triton agrees that, upon the filing of the
Form S-3 registration statement, it will deliver to Actava proxies in blank
executed by Triton covering all of Triton's shares of Actava Common Stock,
which will enable Actava's proxyholders to vote all of the shares of Actava's
common stock held by Triton in favor of the Mergers. Triton agrees that it
will not revoke, alter or amend such proxies, unless proxies are required to be
resolicited from all stockholders of Actava as a result of a material change in
the information regarding the Mergers contained in the Proxy
<PAGE> 2
Statement/S-4 Registration Statement. Triton acknowledges that the supplement
to the Proxy Statement/S-4 relating to this agreement does not constitute a
resolicitation of proxies. After the filing of the Form S-3, Actava will use
its best efforts to cause the Form S-3 to be declared effective by the SEC as
promptly as practicable.
5. Triton agrees to cooperate with and provide
such additional information to Actava as Actava may reasonably request in order
to register the shares as provided for herein.
6. All expenses incurred by Actava in effecting
any registrations and/or sales of shares pursuant to this letter (including,
without limitation, all registration and filing fees, printing expenses of the
S-3 (but not the Proxy Statement/S-4), Blue Sky expenses, auditors' fees
relating solely to the Form S-3 registration statement and reasonable fees and
expenses of counsel to Actava associated therewith) shall be paid by Triton,
provided that in no event shall the counsel fees exceed $25,000 and provided
that Actava will pay all of its internal costs. In addition, Triton agrees to
pay the reasonable costs and expenses associated with preparation and mailing
of a supplement to the Proxy Statement/S-4 with respect to the contents of this
letter and Triton's Amendment to its Schedule 13D filing, up to a maximum of
$35,000.
7. In connection with the registration of the
Actava shares under the Securities Act of 1933, as amended (the "Act"), Actava
will agree to indemnify and hold harmless Triton and each other person who
participates in the offering or sale of such shares and their respective
directors, officers, partners, agents and affiliates against any losses,
claims, damages, liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof), joint or several, and expenses (collectively,
a "Loss" or "Losses") to which such party may become subject, insofar as such
Losses relate to any untrue statement or omission, or alleged untrue statement
or omission, made in the registration statement under which such shares were
registered under the Act (other that the information provided by Triton for
inclusion in the Form S-3 registration statement); and Triton will agree to
indemnify and hold harmless Actava, and each person who participates in the
offering or sale of such shares and their respective directors, officers,
partners, agents and affiliates against any Losses to which such party becomes
subject, insofar as such Losses relate to any untrue statement or omission, or
alleged untrue statement or omission, made in such registration statement in
reliance upon and in conformity with written information furnished to Actava by
Triton expressly for use in such registration statement.
8. Triton may distribute Actava shares to its
stockholders. In such event, Triton will, upon request, furnish any Triton
stockholder with a copy of the Proxy Statement/S-4 (or the most recent SEC
periodic reports) of Actava. Actava agrees to furnish Triton, at no cost,
sufficient copies of the Proxy Statement/S-4 (or the most recent SEC periodic
reports) to satisfy any such requests.
9. Actava will provide Triton and its counsel
such reasonable access to Actava, its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of Triton's counsel, to conduct a reasonable "due diligence"
investigation within the meaning of the Act. Triton will maintain the
confidentially of any confidential information received from or otherwise made
available by Actava to Triton.
10. Triton and Actava recognize their respective
obligations under the Amended Loan Agreement and Pledge Agreement, and both
parties agree to cooperate with each other to ensure the release of the Actava
shares for sale pursuant to the Form S-3 registration statement and the
<PAGE> 3
concurrent application of the net proceeds of any offering first to repay in
full all obligations of Triton under the Amended Loan Agreement.
11. Attached as Exhibits A and B to this letter
are an Amendment to Triton's Schedule 13D regarding the Actava shares and a
Press Release, in the forms that they will be filed or issued promptly after
the execution of this letter.
12. Subject to the consummation of the Mergers,
Triton hereby waives the provisions of the Amended and Restated Stockholder
Agreement dated as of June 25, 1993 between Triton and Actava requiring that
the Board of Directors of Actava consist of nine members and providing that
Triton would be entitled to designate one or two members of the Board of
Directors of Actava.
13. This letter agreement may be executed in
counterparts.
If the foregoing correctly sets forth our agreement,
please so indicate by signing below.
THE ACTAVA GROUP INC.
By: John D. Phillps
-------------------
Name: John D. Phillps
Title: President, CEO
TRITON GROUP LTD.
By: John C. Stiska
------------------
Name: John C. Stiska
Title: Chairman & CEO
<PAGE> 1
EXHIBIT 5
LONG, ALDRIDGE & NORMAN
October 13, 1995
The Actava Group Inc.
945 East Paces Ferry Road
Suite 2210
Atlanta, Georgia 30326
Re: The Actava Group Inc.
Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to The Actava Group Inc., a Delaware
corporation (the "Company"), in connection with the preparation of a
Registration Statement on Form S-3 (the "Registration Statement") and the
filing thereof with the Securities and Exchange Commission (the "Commission")
for the reoffer and resale of certain securities of the Company owned of record
by Triton Group Ltd. (the "Selling Stockholder"). Pursuant to the Registration
Statement, the Company intends to register under the Securities Act of 1933, as
amended, 3,000,000 shares (the "Shares") of common stock, par value $1.00 per
share (the "Common Stock"), of the Company.
The opinion hereinafter set forth is given to the Company pursuant to
Item 16 of Form S-3 and Item 601(b)(5) of Regulation S-K. The only opinion
rendered by this firm consists of the matter set forth in numbered paragraph
(1) below (our "Opinion"), and no opinion is implied or to be inferred beyond
such matter. Additionally, our Opinion is based upon and subject to the
qualifications, limitations and exceptions set forth in this letter.
In rendering our Opinion, we have examined such agreements, documents,
instruments and records as we deemed necessary or appropriate under the
circumstances for us to express our Opinion, including without limitation,
resolutions duly adopted by consent action by the Executive Committee of the
Board of Directors of the Company on October 12, 1995 authorizing and approving
the preparation and filing of the Registration Statement. In making all of our
examinations, we assumed the genuineness of all signatures, the authenticity of
all documents submitted to us as originals, the conformity to the original
documents of all documents submitted to us as copies, and the due execution and
delivery of all documents by any persons or entities where due execution and
delivery by such persons or entities is a prerequisite to the effectiveness of
such documents.
As to various factual matters that are material to our Opinion, we
have relied upon the factual statements set forth in a certificate of an
officer of the Company and a certificate of a public official. We have not
independently verified or investigated, nor do we assume any responsibility
for, the factual accuracy or completeness of such factual statements.
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Securities and Exchange Commission
October 13, 1995
Page 2
The members of this firm are admitted to the Bar of the State of
Georgia and are duly qualified to practice law in that state. Because the
Company is organized under, and the subject of our Opinion therefore is
governed by, the General Corporation Law of the State of Delaware (the
"Delaware Code"), we do not herein express any opinion concerning any matter
respecting or affected by any laws other than the laws set forth in the
Delaware Code that are now in effect and that, in the exercise of reasonable
professional judgment, are normally considered in transactions such as those
described in the Registration Statement. The Opinion hereinafter set forth
is based upon pertinent laws and facts in existence as of the date hereof, and
we expressly disclaim any obligation to advise you of changes to such pertinent
laws or facts that hereafter may come to our attention.
Based upon and subject to the foregoing, we are of the Opinion that:
(1) the Shares to be sold by the Selling Stockholder are validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this letter as an exhibit to the
Registration Statement and to the reference to this firm under the heading
"Legal Matters" in the Prospectus forming a part of the Registration Statement.
Very truly yours,
LONG, ALDRIDGE & NORMAN
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Exhibit 23(a)
CONSENT OF INDEPENDENT AUDITORS
To the Board of Directors
of the Actava Group Inc.:
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3 filed on or about October 13, 1995) and
related Prospectus of The Actava Group Inc. for the regiestration of 3,000,000
shares of tis common stock and to the incorporation by reference therein of our
report dated March 10, 1995, with respect to the consolidated financial
statements and schedules of The Actava Group Inc. included in its Annual Report
(Form 10-K) for the year ended December 31, 1994, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Atlanta, Georgia
October 13, 1995
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Exhibit 23(b)
INDEPENDENT AUDITOR'S CONSENT
To the Board of Directors and Stockholders
Orion Pictures Corporation:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
Our report dated April 12, 1995, contains an explanatory paragraph that
states that the Company is a defendant in certain litigation which alleges
various breaches of agreements by the Company and seeks certain damages. Our
report also includes an explanatory paragraph that states that based upon the
Company's inability to meet required debt payments that are due within the next
year under the terms of its indebtedness (as defined in note 6 of the Notes to
Consolidated Financial Statements) there exists substantial doubt about its
ability to continue as a going concern. The consolidated financial statements
do not include any adjustments that might result from the outcome of this
uncertainty.
/s/ KPMG Peat Marwick LLP
New York, New York
October 13, 1995
<PAGE> 1
Exhibit 23(c)
INDEPENDENT AUDITORS' REPORT AND CONSENT
To the Board of Directors
Metromedia International Telecommunications, Inc.:
The audits referred to in our report dated April 12, 1995, included the
related financial statement schedule as of December 31, 1994, and for the year
then ended incorporated by reference in the registration statement. This
financial statement schedule is the responsibility of the Company's management.
Our responsibility is to express an opinion on this financial statement
schedule based on our audits. In our opinion, such financial statement
schedule, when considered in relation to the basic consolidated financial
statements taken as a whole, presents fairly in all material respects the
information set forth therein.
Our report dated April 12, 1995, contains an explanatory paragraph that states
that the Company has suffered significant recurring losses and negative
operating and investing cash flows as a result of its investments in joint
ventures which have either not commenced operations or have only recently
commenced operations and are experiencing losses that raise substantial doubt
about its ability to continue as a going concern. The consolidated financial
statements and financial statement schedule do not include any adjustments that
might result from the outcome of this uncertainty.
We consent to the use of our reports incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
New York, New York
October 13, 1995
<PAGE> 1
Exhibit 23(d)
INDEPENDENT AUDITORS' CONSENT
To the Partners
Kosmos TV:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
Our report dated March 24, 1995, contains an explanatory paragraph that states
that the Company has suffered recurring losses from operations and has a net
capital deficiency, which raise substantial doubt about its ability to continue
as a going concern. The financial statements do not include any adjustments
that might result from the outcome of this uncertainty.
/s/ KPMG
Moscow, Russia
October 13, 1995
<PAGE> 1
Exhibit 23(e)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors
The Actava Group Inc.:
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated April 12, 1995,
relating to the consolidated financial statements of International Telcell,
Inc. and International Telcell Group Limited Partnership (predecessor entities
to Metromedia International Telecommunications, Inc.) incorporated by reference
in this registration statement on Form S-3 and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Stamford, Connecticut
October 13, 1995
<PAGE> 1
Exhibit 23(f)
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors
of The Actava Group Inc.:
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated May 19, 1995
included in the Joint Proxy Statement/Prospectus (File No. 33-63003) as filed
with the Securities and Exchange Commission on September 28, 1995 and to all
references to our firm included in this Registration Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Los Angeles, California
October 13, 1995
