AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 28, 1996
REGISTRATION NO. 333- 06453
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
METROMEDIA INTERNATIONAL GROUP, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 59-0971455
(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)
ARNOLD L. WADLER
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
METROMEDIA INTERNATIONAL GROUP, INC.
C/O METROMEDIA COMPANY
ONE MEADOWLANDS PLAZA
EAST RUTHERFORD, NEW JERSEY 07073
(201) 531-8000
(Name, address, including zip code, and telephone number, including area
code of agent for service)
COPIES OF COMMUNICATIONS TO:
JAMES M. DUBIN, ESQ. MEL ZIONTZ, ESQ.
PAUL, WEISS, RIFKIND, WHARTON & GARRISON ROSENFELD, MEYER & SUSMAN, LLP
1285 AVENUE OF THE AMERICAS 9601 WILSHIRE BOULEVARD
NEW YORK, NEW YORK 10019-6064 SUITE 444
(212) 373-3000 BEVERLY HILLS, CALIFORNIA 90210
(310) 858-7000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the Registration Statement becomes effective.
If the securities registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. [ ]
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]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If the delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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.
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PROSPECTUS
1,996,418 SHARES
METROMEDIA INTERNATIONAL GROUP, INC.
COMMON STOCK
The 1,996,418 shares (the "Shares") of Common Stock, par value $1.00 per
share (the "Common Stock"), of Metromedia International Group, Inc. (the
"Company") offered hereby are being offered for the account of The Samuel
Goldwyn, Jr. Family Trust (the "Selling Stockholder"). The Company will not
receive any proceeds from the sale of such securities. See "Selling
Stockholder."
The Selling Stockholder may sell the Shares offered hereby from time to time
on the American Stock Exchange and the Pacific Stock Exchange or such other
national securities exchange or automated interdealer quotation system on which
shares of the Company's Common Stock are then listed, through negotiated
transactions or otherwise (including private sales) at market prices prevailing
at the time of the sale or at negotiated prices. The Selling Stockholder
directly, or through agents designated from time to time, or through
underwriters, brokers or dealers also to be designated, may sell the Shares
from time to time on terms to be determined at the time of sale. Such
underwriters, 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 underwriters,
brokers or dealers in connection therewith. The Company will bear all expenses
in connection with the registration and sale of the Shares being offered by the
Selling Stockholder, other than commissions, concessions or discounts to
underwriters, brokers or dealers and fees and expenses of counsel or other
advisors to the Selling Stockholder. See "Plan of Distribution."
The Common Stock of the Company is listed on the American Stock Exchange and
the Pacific Stock Exchange under the trading symbol "MMG." On June 27, 1996,
the last reported sale price of the Company's Common Stock on the American
Stock Exchange was $12.375 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR
HAS THE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is June 28, 1996.
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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 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 Facilities maintained by the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at
prescribed rates. The Common Stock is listed on the American Stock Exchange
and such reports, proxy statements and other information concerning the Company
may be inspected at the offices of the AMEX, 86 Trinity Place, New York, New
York 10006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the Commission
(File No. 1-5706) are incorporated by reference into this Prospectus and made a
part hereof:
(1)The Company's Annual Report on Form 10-K for the year ended
December 31, 1995, Form 10-K/A Amendment No. 1 filed on April 29, 1996 and
Form 10-K/A Amendment No. 2 filed May 30, 1996, amending the Company's
Form 10-K for the year ended December 31, 1995.
(2)The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996 and Form 10-Q/A Amendment No. 1 filed June 25, 1996 amending
the Company's Form 10-Q for the quarter ended March 31, 1996.
(3)The Company's Current Report on Form 8-K dated January 31, 1996.
(4)The Company's Current Report on Form 8-K dated April 29, 1996.
(5)The Consolidated Financial Statements and related schedules of The
Actava Group Inc. (now known as the Company) included in the Annual Report on
Form 10-K for the fiscal year ended December 31, 1994 of The Actava Group
Inc. (now known as the Company), as amended
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by Form 10-K/A Amendment No. 1,
filed on April 20, 1995 and Form 10-K/A Amendment No. 2, filed on July 13,
1995.
(6)The Company's Registration Statement on Form S-3 (Registration No.
333-03353) filed with the Commission on May 8, 1996, as amended.
(7)The description of the Company's Common Stock contained in its
registration statement on Form 8-A, as filed with the Commission on
November 1, 1995, including any amendment or report filed for the purpose of
amending such description (File No. 1-5706).
Also incorporated by reference into this Prospectus is the following document
filed by the Company with the Commission:
Registration Statement on Form S-4 (Registration No. 333-05049) declared
effective by the Commission on June 3, 1996, which includes the Proxy
Statement/Prospectus (the "Form S-4 Registration Statement") with respect to
a special meeting of stockholders of The Samuel Goldwyn Company relating to
approval of the merger of SGC Merger Corp., a newly formed, wholly-owned
subsidiary of the Company with and into The Samuel Goldwyn Company, and all
subsequent amendments thereof, but EXCLUDING the material set forth under the
following captions:
"Summary Information-Opinions of Financial Advisors,"
"Proposal No. 1-The Goldwyn Merger-Opinion of Financial Advisors"
"Appendix B-Fairness Opinion of Donaldson, Lufkin & Jenrette Securities
Corporation."
"Appendix C-Fairness Opinion of Furman Selz LLC."
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). Any such request
should be directed to Secretary, Metromedia International Group, Inc., c/o
Metromedia Company, One Meadowlands Plaza, East Rutherford, New Jersey 07073,
telephone (201) 531-8000.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements in or incorporated by reference into this Prospectus
constitute "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995 (the "Reform Act"). Such
forward-looking statements involve known and unknown risks, uncertainties and
other factors which may cause the actual results, performance or
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achievements
of the Company, or industry results, to be materially different from any future
results, performance, or achievements expressed or implied by such
forward-looking statements. Such factors include, among others, the following:
general economic and business conditions, which will, among other things,
impact demand for the Company's products and services; industry capacity, which
tends to increase during strong years of the business cycle; changes in public
taste, industry trends and demographic changes, which may influence the
exhibition of films in certain areas; competition from other entertainment and
communications companies, which may affect the Company's ability to generate
revenues; political, social and economic conditions and laws, rules and
regulations, particularly in Eastern Europe, the former Soviet Republics and
other emerging markets, which may affect the Company's results of operations;
timely completion of construction projects for new systems for the joint
ventures in which the Company has invested, which may impact the costs of such
projects; developing legal structures in Eastern Europe, the former Soviet
Republics and other emerging markets which may affect the Company's results of
operations; cooperation of local partners for the Company's communications
investments in Eastern Europe and the former Soviet Republics; exchange rate
fluctuations; license renewals for the Company's investments in Eastern Europe
and the former Soviet Republics; the loss of any significant customers; changes
in business strategy or development plans, which may, among other things,
prolong the time it takes to achieve the performance results included herein;
the significant indebtedness of the Company, including the Company's ability to
service its indebtedness and to comply with certain restrictive covenants;
quality of management; availability of qualified personnel; changes in, or the
failure to comply with, government regulations; and other factors referenced in
this Prospectus.
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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., and on
November 1, 1995, changed its name from The Actava Group Inc. to its present
name, Metromedia International Group, Inc. The Company's principal executive
offices are located at 945 East Paces Ferry Road, Suite 210, Atlanta, Georgia
30326, and its telephone number is (404) 261-6190.
The Company is a global entertainment, media and communications company with
continuing operations currently in two business groups. Through its
Entertainment Group, the Company is engaged primarily in the development,
production, acquisition, exploitation and worldwide distribution in all media
of motion pictures, television programming and other filmed entertainment
product. It has an extensive film library of over 1,200 titles, including the
Academy-Award winning titles, DANCES WITH WOLVES, SILENCE OF THE LAMBS AND
PLATOON. Through its Communications Group, the Company owns interests in and
participates along with local partners in the management of joint ventures
which operate wireless cable television systems, radio stations, paging
systems, an international toll calling service and trunked mobile radio
services in certain countries in Eastern Europe and certain of the former
Soviet Republics. The Company also owns two non-strategic assets: Snapper
Power Equipment Company ("Snapper"), which manufactures and sells lawn and
garden equipment and its investment in Roadmaster Industries Inc.
("Roadmaster"). For accounting purposes, Snapper and the Company's investment
in Roadmaster have been classified as assets held for disposition. The Company
is actively exploring a sale of Snapper. Roadmaster, a NYSE-listed company, is
a leading sporting goods manufacturer of which the Company owns approximately
38% of the outstanding shares. As the Company has disclosed in Amendment No. 1
to its Schedule 13D relating to Roadmaster filed with the Commission on
March 1, 1996, the Company intends to dispose of its investment in Roadmaster
during 1996.
RECENT DEVELOPMENTS
THE SAMUEL GOLDWYN COMPANY
On January 31, 1996, the Company entered into an Agreement and Plan of Merger
with The Samuel Goldwyn Company, a Delaware corporation ("Goldwyn") (as
amended, the "Goldwyn Merger Agreement"), pursuant to which a newly-formed,
wholly-owned subsidiary of the Company ("SGC Mergerco") will merge with and
into Goldwyn (the "Goldwyn Merger"). The acquisition of Goldwyn will expand
the Entertainment Group by adding a valuable library of over 850 film and
television titles, including numerous Hollywood classics and more recent
critically acclaimed films, and what the Company believes is the leading
specialized theatre circuit in the United States with 140 screens.
The Goldwyn Merger Agreement provides that upon consummation of the Goldwyn
Merger, Goldwyn's stockholders (the "Goldwyn Stockholders") will receive .3335
shares of Common Stock for each share of Goldwyn common stock. The consummation
of the Goldwyn Merger is subject to, among other things, the approval of the
Goldwyn Stockholders. The shares of Common Stock to be received by the Selling
Stockholder in the Goldwyn Merger are being offered by this Prospectus.
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The Goldwyn Merger is described more fully in the Company's Current Report on
Form 8-K dated January 31, 1996 and in the Proxy Statement/Prospectus included
in the Form S-4 Registration Statement, and any subsequent amendment thereto,
regarding the special meeting of Goldwyn's stockholders to be held with respect
to the Goldwyn Merger. 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."
The date and time when the Goldwyn Merger is to be consummated is referred to
herein as the "Effective Time."
MOTION PICTURE CORPORATION OF AMERICA
On May 17, 1996, the Company entered into an agreement (the "MPCA Acquisition
Agreement") to acquire Motion Picture Corporation of America (the "MPCA
Acquisition"). MPCA is an independent film production company which focuses on
producing and acquiring commercially marketable films featuring popular actors
at substantially less than average industry cost. MPCA is headed by Bradley
Krevoy and Steven Stabler, who have produced low budget, profitable movies like
the film DUMB AND DUMBER, which cost a reported $16 million to produce and
grossed a reported total of approximately $250 million, and THREESOME, which
cost a reported $3.5 million to produce and grossed a reported total of $60
million. In connection with the MPCA Acquisition, the Company will issue
approximately 1,577,643 shares of Common Stock to MPCA's stockholders, will pay
to MPCA's stockholders up to $5.0 million of cash and will assume certain
indebtedness (approximately $10.0 million at March 31, 1996). Consummation of
the MPCA Acquisition remains subject to certain conditions.
RECENT NEWS STORY
On June 24, 1996, THE WALL STREET JOURNAL published an article
attributing to an unidentified "underwriter" of the Company certain
projections regarding the Company's anticipated financial performance
during 1996 and 1997. The Company has been informed by each of the
managing underwriters for the Company's offering of Common Stock being
consummated on July 2, 1996, that such managing underwriter did not
provide such information to THE WALL STREET JOURNAL. The Company did not
supply such information to THE WALL STREET JOURNAL and does not include
its projected financial information in its public disclosures. The
Company believes that the projections included in THE WALL STREET JOURNAL
article are not appropriate indicators of the Company's results of
operations and that the Company's actual operating results will differ
materially from such projections. As a result, investors are urged not
to rely on such projections in making an investment decision.
Neither the Company nor any of the underwriters for its equity offering
have confirmed, endorsed or adopted any projections or forecasts with respect
to the Company's future results for distribution to prospective purchasers in
connection with such offering. To the extent any comments made in the
foregoing article not included herein are inconsistent with, or conflict with,
the information contained in or incorporated by reference into this Prospectus
or relate to information not contained in or incorporated by reference into
this Prospectus, they are neither attributable to, nor adopted by, nor used by
the Company and the underwriters for its equity offering in any manner and they
are disclaimed by the Company and such underwriters.
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SELLING STOCKHOLDER
Prior to the Effective Time, the Selling Stockholder beneficially owned
approximately 60.2% of the outstanding voting stock of Goldwyn. In addition,
prior to the Effective Time, Samuel Goldwyn, Jr., the trustee of the Selling
Stockholder, was a director and executive officer of Goldwyn. It is a
condition to the consummation of the Goldwyn Merger that Mr. Goldwyn be
employed as Chairman of the surviving corporation of the Goldwyn Merger. In
addition, prior to the Effective Time, pursuant to the Goldwyn Merger Agreement
and that certain Option Agreement, dated as of April 13, 1993, by and among
Goldwyn, Samuel Goldwyn, Jr. and the Selling Stockholder, Goldwyn intends to
exercise its option to issue (the "Goldwyn Put") 875,000 shares of Goldwyn
common stock to the Selling Stockholder. After exercise of the Goldwyn Put,
the Selling Stockholder will beneficially own 5,986,261 shares of Goldwyn
common stock, or approximately 64.0% of the outstanding common stock of
Goldwyn. Pursuant to the Goldwyn Merger Agreement, all of the shares of
Goldwyn common stock held by the Selling Stockholder will be converted into the
Shares. At the Effective Time, the Selling Stockholder will beneficially own
approximately 1,996,418 shares of Common Stock, which are being registered on
this Registration Statement.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Stockholder, or by
pledgees, donees, transferees or other successors in interest. Such sales may
be made on the American or the Pacific Stock Exchange or such other national
securities exchange or automated interdealer quotation system on which shares
of Common Stock are then listed, through negotiated transactions or otherwise
at prices and at terms then prevailing or at prices related to the then current
market price or in negotiated transactions. The Shares may be sold pursuant to
one or more of the following: (a) ordinary brokerage transactions and
transactions in which the broker solicits purchasers; (b) purchases by an
underwriter, a broker or a dealer as principal and resale by such underwriter,
broker or dealer for its account pursuant to this Prospectus; (c) a block trade
in which the broker or dealer so engaged will attempt to sell the Shares as
agent but may position and resell a portion of the block as principal to
facilitate the transaction; (d) an exchange distribution in accordance with the
rules of such exchange; (e) through the writing of options on the Shares; and
(f) directly or through brokers or agents in private sales at negotiated
prices. If necessary, a supplemental prospectus which describes the method of
sale in greater detail may be filed by the Company with the Commission pursuant
to Rule 424(c) under the 1933 Act under certain circumstances. In effecting
sales, underwriters, brokers or dealers engaged by the Selling Stockholder
and/or purchasers of the Shares may arrange for other underwriters, brokers or
dealers to participate. Underwriters, 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.
The Company will bear all expenses in connection with the registration and
sale of the Shares, other than commissions, concessions or discounts to
underwriters, brokers or dealers and fees and expenses of counsel or other
advisors to the Selling Stockholder.
The Selling Stockholder and any underwriter, 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
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resale of the Shares as
principals might be deemed to be underwriting discounts and commissions under
the 1933 Act. Pursuant to a registration rights agreement, the Company has
agreed to indemnify the Selling Stockholder against certain liabilities,
including liabilities under the 1933 Act.
LEGAL MATTERS
The validity of the Common Stock and certain other legal matters in
connection with this Offering will be passed upon for the Company by Paul,
Weiss, Rifkind, Wharton & Garrison, New York, New York.
EXPERTS
The consolidated financial statements and related schedules for Metromedia
International Group, Inc. as of December 31, 1995 and February 28, 1995 and for
the year ended December 31, 1995, and for each of the years in the two-year
period ended February 28, 1995 have been incorporated by reference herein in
reliance upon the report of KPMG Peat Marwick LLP, independent certified
accountants incorporated by reference herein, and upon the authority of such
firm as experts in accounting and auditing.
The consolidated financial statements and related schedules of The Actava
Group Inc. appearing in The Actava Group Inc. Annual Report on Form 10-K for
the year ended December 31, 1994 as amended, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated financial
statements and related schedules are incorporated by reference herein in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The consolidated financial statements and related schedules of The Samuel
Goldwyn Company as of March 31, 1996 and 1995 and for the three years ended
March 31, 1996, appearing in The Samuel Goldwyn Company Annual Report on Form
10-K for the year ended March 31, 1996 have been incorporated herein in
reliance upon the report of Price Waterhouse LLP, independent public
accountants, included therein and upon the authority of such firm as experts in
accounting and auditing.
The report of Price Waterhouse LLP on the consolidated financial statements
of The Samuel Goldwyn Company as at March 31, 1996 and 1995 and for the three
years ended March 31, 1996 contains an explanatory paragraph stating that the
possibility that The Samuel Goldwyn Company's credit facility and loan terms
may not be extended beyond the June 28, 1996 maturity date raises substantial
doubt about its ability to continue as a going concern.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Securities and Exchange Commission registration fee 7,529
AMEX Additional listing fee - 0 -
Accountant's fees and expenses 15,000
Legal fees and expenses 10,000
Blue Sky fees and expenses 2,500
Printing 1,000
Miscellaneous 2,500
Total 38,529
The foregoing items, except for the Securities and Exchange Commission
registration fee, are estimated. The Company will pay all of the above
expenses. The Selling Stockholder will pay its own expenses, including
expenses of its own counsel, 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,
director, employee or agent 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 judgments, fines,
amounts paid in settlement and expenses (including attorneys' fees) 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, with respect to criminal proceedings, had no reasonable cause
to believe his conduct was illegal. A Delaware corporation may indemnify its
officers and directors against expenses actually and reasonably incurred by
them in connection with 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 connection therewith.
Section 102(b)(7) of the Delaware Law further provides that a corporation in
its certificate of incorporation may eliminate or limit the personal liability
of its directors to the corporation or its stockholders for breach of their
fiduciary duties in certain circumstances.
In accordance with Section 145 of the Delaware Law, the Company's Restated
Certificate of Incorporation provides that the Company shall indemnify its
officers and directors against, among other things, any and all judgments,
fines, penalties, amounts paid in settlements and expenses paid
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or incurred by
virtue of the fact that such officer or director was acting in such capacity to
the extent not prohibited by law.
In addition, as permitted by Section 102(b)(7) of the Delaware Law, the
Company's Restated Certificate of Incorporation contains a provision limiting
the personal liability of the Company's directors for violations of their
fiduciary duties to the fullest extent permitted by the Delaware Law. This
provision eliminates each director's liability to the Company or its
stockholders for monetary damages except (i) for any breach of the director's
duty of loyalty to the Company 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 Law, or (iv) for any
transactions from which a director derived an improper personal benefit. The
general effect of this provision is to eliminate a director's personal
liability for monetary damages for actions involving a breach of his or her
fiduciary duty of care, including any such actions involving gross negligence.
Also, in accordance with the Delaware Law and pursuant to the Company's
Restated Certificate of Incorporation, the Company is authorized to purchase
and maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the Company, is or was serving at the request of
the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against any liability
asserted against such person and incurred by such person in any such capacity,
or arising out of such person's status as such, whether or not the Company
would have the power to indemnify such person against liability under the
Delaware Law.
The Company has entered into agreements (the "Indemnification Agreements")
with certain directors and officers of the Company (the "Indemnified Parties")
which require the Company to indemnify each Indemnified Party against, and to
advance expenses incurred by each Indemnified Party in the defense of, any
claim arising out of his or her employment to the fullest extent permitted
under law. The Indemnification Agreements also provide, among other things,
for (i) advancement by the Company of expenses incurred by the director or
officer in defending certain litigation, (ii) the appointment of an independent
legal counsel to determine whether the director or officer is entitled to
indemnity and (iii) the continued maintenance by the Company of directors' and
officers' liability insurance providing each director or officer who is a party
to any such agreement with $5 million of primary coverage and an excess policy
providing $5 million of additional coverage. These Indemnification Agreements
were approved by the stockholders at the Company's 1993 Annual Meeting of
Stockholders.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
The exhibits listed below are filed as part of or incorporated by reference
in this Registration Statement. Where such filing is made by incorporation by
reference to a previously filed report, such report is identified in
parentheses. See Index of Exhibits included with the exhibits filed as part of
this Registration Statement.
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EXHIBIT Description PAGE
No. No.
<S> <C> <C>
2.1 Agreement and Plan of Merger dated as of January 31, 1996 by
and among the Registrant, The Samuel Goldwyn and SGC Merger
Corp., without disclosure schedules (Exhibit 99.1 to the
Current Report on Form 8-K dated January 31, 1996). The
Registrant agrees to furnish a copy of any omitted schedule
supplementally to the Commission upon request.
2.2 Amendment No. 1 to Agreement and Plan of Merger, dated as of
May 29, 1996, by and among the Registrant, The Samuel Goldwyn
Company and SGC Merger Corp. (Exhibit 2.5 to Registration
Statement on Form S-4 (Registration No. 333-05049)).
2.3 Agreement and Plan of Merger, dated as of December 20, 1995, by
and among the Registrant, Alliance Entertainment Corp. and
Alliance Merger Corp., without disclosure schedules (Exhibit
99.1 to the Current Report on Form 8-K dated December 20,
1995). The Registrant agrees to furnish a copy of any omitted
schedule supplementally to the Commission upon request.
2.4 Termination and Release Agreement dated April 29, 1996 by and
among the Registrant, Alliance Merger Corp., and Alliance
Entertainment Corp. (Exhibit 99.2 to the Current Report on Form
8-K dated April 29, 1996)
4.1 Restated Certificate of Incorporation of the Registrant
(Exhibit 3(a) to Registration Statement on Form S-3
(Registration No. 33-63853)).
4.2 Restated By-laws of the Registrant (Exhibit 3(b) to
Registration Statement on Form S-3 (Registration
No. 33-63853)).
4.3* Registration Rights Agreement, dated as of June 19, 1996,
between the Registrant and the Selling Stockholder.
5* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison regarding
the legality of the Securities being registered.
23.1** Consent of KPMG Peat Marwick LLP regarding the Registrant.
23.2** Consent of Ernst & Young LLP regarding the Registrant.
23.3** Consent of Price Waterhouse LLP regarding Goldwyn.
23.4* Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included
in the opinion filed as Exhibit 5 hereto).
24** Power of Attorney
</TABLE>
______________
* Filed herewith.
** Previously filed.
B. FINANCIAL STATEMENT SCHEDULES
Financial Statement Schedules have been omitted because they are not
applicable or not required or because the information has been
incorporated by reference.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS
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.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective
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 on 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 that are incorporated by reference in the
Registration Statement.
(2)That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
section 15(d) of the Securities Exchange Act of 1934) 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.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities Act of 1933 and
is, therefore, unenforceable. In the event that a claim for
indemnification against
II-4
<PAGE>
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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
The Registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of this Registration Statement as of the time
it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus 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-5
<PAGE>
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.
METROMEDIA INTERNATIONAL GROUP, INC.
By /s/ JOHN D. PHILLIPS
John D. Phillips
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Date: June 28, 1996
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons on
behalf of the Registrant and in the capacities indicated on the 28th day
of June, 1996.
<TABLE>
<CAPTION>
SIGNATURES TITLE
<S> <C>
* Chairman of the Board
John W. Kluge
* Vice Chairman of the Board
Stuart Subotnick
* President and Chief Executive Officer
Director (Principal Executive Officer)
John E. Phillips
* Senior Vice President, Chief Financial Officer
and Director (Principal Financial Officer)
Silvia Kessel
* Senior Vice President, General Counsel and
Director
Arnold L. Wadler
Senior Vice President (Principal Accounting
* Officer)
Robert A. Maresca
* Director
John P. Imlay, Jr.
* Director
Clark A. Johnson
* Director
Carl E. Sanders
Director
II-6
<PAGE>
*
Richard J. Sherwin
* Director
Leonard White
/s/ Silvia Kessel
Silvia Kessel
Attorney in fact
</TABLE>
II-7
<PAGE>
INDEX OF EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT Description PAGE
No. No.
<S> <C> <C>
2.1 Agreement and Plan of Merger dated as of January 31, 1996 by
and among the Registrant, The Samuel Goldwyn and SGC Merger
Corp., without disclosure schedules (Exhibit 99.1 to the
Current Report on Form 8-K dated January 31, 1996). The
Registrant agrees to furnish a copy of any omitted schedule
supplementally to the Commission upon request.
2.2 Amendment No. 1 to Agreement and Plan of Merger, dated as of
May 29, 1996, by and among the Registrant, The Samuel Goldwyn
Company and SGC Merger Corp. (Exhibit 2.5 to Registration
Statement on Form S-4 (Registration No. 333-05049)).
2.3 Agreement and Plan of Merger, dated as of December 20, 1995,by
and among the Registrant, Alliance Entertainment Corp. and
Alliance Merger Corp., without disclosure schedules (Exhibit
99.1 to the Current Report on Form 8-K dated December 20,1995,
The Registrant agrees to furnish a copy of any omitted
schedule supplementally to the Commission upon request.
2.4 Termination and Release Agreement dated April 29, 1996 by and
among the Registrant, Alliance Merger Corp., and Alliance
Entertainment Corp. (Exhibit 99.2 to the Current Report on Form
8-K dated April 29, 1996)
4.1 Restated Certificate of Incorporation of the Registrant
(Exhibit 3(a) to Registration Statement on Form S-3
(Registration No. 33-63853)).
4.2 Restated By-laws of the Registrant (Exhibit 3(b) to
Registration Statement on Form S-3 (Registration
No. 33-63853)).
4.3* Registration Rights Agreement, dated as of June 19, 1996,
between the Registrant and the Selling Stockholder.
5* Opinion of Paul, Weiss, Rifkind, Wharton & Garrison regarding
the legality of the Securities being registered.
23.1** Consent of KPMG Peat Marwick LLP regarding the Registrant.
23.2** Consent of Ernst & Young LLP regarding the Registrant.
23.3** Consent of Price Waterhouse LLP regarding Goldwyn.
23.4* Consent of Paul, Weiss, Rifkind, Wharton & Garrison (included
in the opinion filed as Exhibit 5 hereto).
24** Power of Attorney.
</TABLE>
______________
* Filed herewith.
** Previously filed.
REGISTRATION RIGHTS AGREEMENT
Between
METROMEDIA INTERNATIONAL GROUP, INC.
and
THE SAMUEL GOLDWYN, JR. FAMILY TRUST
_____________________________________________________
Common Stock, par value $1.00 per share
_____________________________________________________
Dated as of June 19, 1996
<PAGE>
TABLE OF CONTENTS
Page
1. Registration Under Securities Act, etc. . . . . . . . 1
1.1 Registration on Request. . . . . . . . . . . . . 1
1.2 Registration Procedures. . . . . . . . . . . . . 2
1.3 Underwritten Offerings . . . . . . . . . . . . . 5
1.4 Preparation; Reasonable Investigation. . . . . . 5
1.5 Indemnification. . . . . . . . . . . . . . . . . 6
2. Definitions . . . . . . . . . . . . . . . . . . . . . 9
3. Rule 144 and Rule 144A. . . . . . . . . . . . . . . .10
4. Amendments and Waivers. . . . . . . . . . . . . . . .11
5. Nominees for Beneficial Owners. . . . . . . . . . . .11
6. Notices . . . . . . . . . . . . . . . . . . . . . . .11
7. Assignment. . . . . . . . . . . . . . . . . . . . . .11
8. Calculation of Percentage Interests in
Registrable Securities 12
9. Representations . . . . . . . . . . . . . . . . . . .12
10. Conditions to Obligations of the Company. . . . . . .12
11. Covenants of Holders of Registrable Securities. . . .13
12. No Inconsistent Agreements. . . . . . . . . . . . . .13
13. Remedies. . . . . . . . . . . . . . . . . . . . . . .13
14. Severability. . . . . . . . . . . . . . . . . . . . .13
15. Entire Agreement. . . . . . . . . . . . . . . . . . .14
16. Descriptive Headings. . . . . . . . . . . . . . . . .14
17. Governing Law . . . . . . . . . . . . . . . . . . . .14
i
<PAGE>
18. Counterparts. . . . . . . . . . . . . . . . . . . . .14
REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of June 19, 1996
among The Samuel Goldwyn, Jr. Family Trust (the "Stockholder"), and Metromedia
International Group, Inc., a Delaware corporation ("MIG" or the "Company").
Capitalized terms used herein but not otherwise defined shall have the meanings
given them in Section 2 of this Agreement.
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
January 31, 1996 (as amended, the "Merger Agreement"), among the Company, SGC
Merger Corp., a Delaware corporation and a wholly-owned subsidiary of the
Company ("SGC Mergerco"), and The Samuel Goldwyn Company, a Delaware
corporation ("Goldwyn"), SGC Mergerco will merge with and into Goldwyn, with
Goldwyn being the surviving corporation of such merger (the "Merger"); and
WHEREAS, pursuant to the Merger Agreement, the Stockholder will receive
shares of common stock, par value $1.00 per share, of the Company ("Common
Stock").
1. Registration Under Securities Act, etc.
1.1 Registration on Request.
(a) Shelf Registration. MIG shall file as soon as reasonably
practicable following the date hereof a "shelf" registration statement with
respect to the Registrable Securities (as defined below) to be issued to the
Stockholder pursuant to the Merger Agreement on Form S-3 pursuant to Rule 415
under the Securities Act (the "Shelf Registration Statement"). MIG shall use
its best efforts to have the Shelf Registration Statement declared effective as
soon as reasonably practicable after such filing, and shall use its best
efforts to keep the Shelf Registration Statement continuously effective from
the date such Shelf Registration Statement is declared effective until the
earlier of (i) such time as all of the Registrable Securities shall cease to be
Registrable Securities and (ii) the third anniversary of the Effective Time (as
such term is defined in the Merger Agreement) of the Merger.
Subject to Section 10 hereof, MIG shall supplement or amend, if
necessary, the Shelf Registration Statement, as required by Form S-3, the
instructions applicable thereto, the Securities Act or the rules and
regulations promulgated thereunder or as reasonably requested by the holder or
holders of a majority of the Registrable Securities (the "Majority Holders"),
and MIG shall furnish to the holders of the Registrable Securities to which the
Shelf Registration Statement relates copies of any such supplement or amendment
prior to its being used and/or filed with the Commission. MIG shall pay all
Registration Expenses incurred in connection with the Shelf Registration
Statement and any supplements or amendments thereto, whether or
<PAGE>
not it becomes effective, and whether all, none or some of the Registrable
Securities are sold pursuant to the Shelf Registration Statement.
(b) Underwriting Procedures. If the Majority Holders so
elect, the offering of all or a portion of the Registrable Securities pursuant
to such Shelf Registration shall be in the form of an underwritten offering.
The managing underwriter or managing underwriters of the underwritten offering
to which the Shelf Registration relates shall be a firm or firms of nationally
recognized standing selected by the Majority Holders, and shall be reasonably
acceptable to the Company.
1.2 Registration Procedures. In connection with the filing of the
Shelf Registration Statement pursuant to Section 1.1, the Company will, as
expeditiously as possible:
(i) subject to Section 10 hereof, prepare and file with the
Commission such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement or as may be
reasonably requested by the Majority Holders, until such time as all of
such Registrable Securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth
in such registration statement;
(ii) furnish to each seller of Registrable Securities covered
by such registration statement, such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits) and such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Securities Act, in conformity
with the requirements of the Securities Act, and such other documents, as
such seller may reasonably request;
(iii) use its best efforts (x) to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities or blue sky laws of such States of
the United States of America where an exemption is not available and as
the sellers of Registrable Securities covered by such registration
statement shall reasonably request, (y) to keep such registration or
qualification in effect for so long as such registration statement remains
in effect, and (z) to take any other action which may be reasonably
necessary or advisable to enable such sellers to consummate the
disposition in such jurisdictions of the securities to be sold by such
sellers, except that the Company shall not for any such purpose be
required to qualify
2
<PAGE>
generally to do business as a foreign corporation in any jurisdiction
wherein it would not but for the requirements of this subdivision (iii) be
obligated to be so qualified, subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(iv) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved
by such other federal or state governmental agencies or authorities as may
be necessary in the opinion of counsel to the Company and counsel to the
seller or sellers of Registrable Securities to enable the seller or
sellers thereof to consummate the disposition of such Registrable
Securities;
(v) use its best efforts to furnish at the effective date of
such registration statement and, if applicable, the date of the closing
under the underwriting agreement, to each seller of Registrable
Securities, and each such seller's underwriters, if any, a signed
counterpart of (x) an opinion of counsel for the Company, dated the
effective date of such registration statement and (y) in connection with
an underwritten offering, a "comfort" letter signed by the independent
public accountants who have certified the Company's financial statements
included or incorporated by reference in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' comfort letter, with respect to events subsequent to the date
of such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' comfort letters delivered to the
underwriters in underwritten public offerings of securities and, in the
case of the accountants' comfort letter, such other financial matters,
and, in the case of the legal opinion, such other legal matters, as the
sellers of the Registrable Securities covered by such registration
statement, or the underwriters, may reasonably request;
(vi) subject to Section 10 hereof, promptly notify each seller
of Registrable Securities covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon the happening of any
event as a result of which, the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
3
<PAGE>
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, in the
light of the circumstances under which they were made, and at the request
of any such seller promptly prepare and furnish to it a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the cir-
cumstances under which they were made;
(vii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more than
eighteen months, beginning with the first full calendar month after the
effective date of such registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 promulgated thereunder, and promptly furnish to each such seller
of Registrable Securities a copy of any amendment or supplement to such
registration statement or prospectus; and
(viii) use its best efforts to list all Registrable Securities
covered by such registration statement on the NYSE, the AMEX or such other
national securities exchange on which Registrable Securities of the same
class and, if applicable, series, covered by such registration statement
are then listed or on the National Association of Securities Dealers
Automated Quotations System, Inc. ("NASDAQ") if the Registrable Securities
are quoted on NASDAQ.
The Company may (i) require each seller of Registrable Securities as to which
any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the Company
may from time to time reasonably request in writing and (ii) require each
seller of Registrable Securities to agree to comply with the Securities Act and
the Exchange Act in connection with the registration and distribution of the
Registrable Securities.
Notwithstanding the foregoing, if any such registration or comparable
statement refers to any holder by name or otherwise as the holder of any
securities of the Company and in its sole and exclusive judgment such holder is
or might be deemed to be a controlling person of the Company, such holder shall
have the right to require the insertion therein of language, in form and
substance reasonably satisfactory to such holder and the Company, to the effect
that the holding by such holder of such securities is not to be construed as a
recommendation by such holder of the investment quality of the Company's
securities covered thereby and that such holding does not imply that such
holder will assist in meeting any future financial requirements of the Company.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in subdivision (vi) of this
Section 1.2, such holder will forthwith discontinue such holder's disposition
of Registrable
4
<PAGE>
Securities pursuant to the registration statement relating to such Registrable
Securities until such holder's receipt of the copies of the supplemented or
amended prospectus contemplated by subdivision (vi) of this Section 1.2 and, if
so directed by the Company, will promptly deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
holder's possession of the prospectus relating to such Registrable Securities
current at the time of receipt of such notice.
1.3 Underwritten Offerings. If requested by the underwriters for
any underwritten offering by holders of Registrable Securities pursuant to the
Shelf Registration, the Company will use its best efforts to enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be reasonably satisfactory in form and substance to each such holder, the
Company and the under- writers and to contain such representations and
warranties by the Company and such other terms as are generally prevailing in
agreements of that type, including, without limitation, indemnities to the
effect and to the extent provided in Section 1.5. The holders of the
Registrable Securities proposed to be sold by such underwriters will reasonably
cooperate with the Company in the negotiation of the underwriting agree- ment.
Such holders of Registrable Securities to be sold by such underwriters shall be
parties to such underwriting agreement and may, at their option, require that
any or all of the representations and warranties by, and the other agreements
on the part of, the Company to and for the benefit of such underwriters shall
also be made to and for the benefit of such holders of Registrable Securities
and that any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such holders of Registrable Securities. Any such holder of
Registrable Securities shall not be required to make any representations or
warranties to or agreements with the Company other than representations,
warranties or agreements regarding such holder, such holder's Registrable
Securities and such holder's intended method of distribution or any other
representations required by applicable law.
1.4 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company (i) shall give a representative holder
designated in writing to the Company by the Majority Holders (the
"Representative") and counsel and accountants designated by the Representative
the opportunity to partici- pate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission, and
each amendment thereof or supplement thereto, (ii) shall give each of them such
reasonable access to its books and records and such opportunities to discuss
the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of the Representative and such counsel or accountants, to
conduct a reasonable investigation within the meaning of the Securities Act and
(iii)
5
<PAGE>
shall promptly notify the Representative and its counsel of any stop order
issued or threatened by the Commission and promptly take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered.
1.5 Indemnification.
(a) Indemnification by the Company. The Company will, and
hereby does, indemnify and hold harmless, in the case of any registration
statement filed pursuant to Section 1.1, each seller of any Registrable
Securities covered by such registration statement and each other Person who
participates as an underwriter in the offering or sale of such securities and
each other Person, if any, who controls such seller or any such underwriter
within the meaning of the Securities Act, and their respective directors,
officers, partners, shareholders, employees, trustees, beneficiaries and
affiliates against any losses, claims, damages or liabilities, joint or
several, to which such seller or underwriter or any such director, officer,
partner, shareholder, employee, trustee, beneficiary, affiliate or controlling
person may become subject under the Securities Act or otherwise, including,
without limitation, the fees and expenses of legal counsel, insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such securities were registered under
the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, or any violation by the
Company of the Securities Act or any rule or regulation thereunder applicable
to the Company and the Company will reimburse each such seller or underwriter
and each such director, officer, partner, shareholder, employee, trustee,
beneficiary, affiliate and controlling Person for any legal or any other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, liability, action or proceeding; provided, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability (or action or proceeding in respect thereof) or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
any such prelimi- nary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by or
on behalf of such seller or underwriter, as the case may be, specifically
stating that it is for use in the preparation thereof. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of any such seller or any such director, officer, employee, trustee,
beneficiary, affiliate, partner or controlling person and shall survive the
transfer of such securities by such seller.
6
<PAGE>
(b) Indemnification by the Sellers. As a condition to
including any Registrable Securities in any registration statement, the Company
shall have received an undertaking satisfactory to it from the prospective
seller of such Registrable Securities, to indemnify and hold harmless (in the
same manner and to the same extent as set forth in subdivision (a) of this
Section 1.5) the Company, and each director, officer, employee and shareholder
of the Company and each other Person, if any, who participates as an
underwriter in the offering or sale of such securities and each other Person
who controls the Company or any such underwriter within the meaning of the
Securities Act, with respect to any untrue statement or alleged untrue
statement of a material fact contained in or any omission or alleged omission
to state therein a material fact in any such registration statement, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, if such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company
through an instrument duly executed by or on behalf of such seller specifically
stating that it is for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement; provided, however, that the liability of such indemnifying party
under this Section 1.5(b) shall be limited to the amount of proceeds received
by such indemnifying party in the offering giving rise to such liability. Such
indemnity shall remain in full force and effect, regardless of any
investigation made by or on behalf of the Company or any such director,
officer, employee, shareholder or controlling person and shall survive the
transfer of such securities by such seller.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subdivisions of this Section
1.5, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 1.5, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action is brought
against an indemnified party the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that if the indemnified party has been
advised by counsel that it is advisable for it to be represented by separate
counsel because there exists a conflict of interest between its interests and
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those of the indemnifying party with respect to such claim, or there exist
defenses available to such indemnified party which may not be available to the
indemnifying party, or if the indemnifying party shall fail to assume
responsibility for such defense, the indemnified party may retain counsel
satisfactory to it and the indemnifying party shall pay all fees and expenses
of such counsel. No indemnifying party shall be liable for any settlement of
any action or proceeding effected without its written consent, which consent
shall not be unreasonably withheld or delayed. No indemnifying party shall,
without the consent of the indemnified party, consent to entry of any judgment
or enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such indemnified party of a
release from all liability in respect to such claim or litigation or which
requires action other than the payment of money by the indemnifying party.
Each indemnified party shall furnish such information regarding itself or the
claim in question as an indemnifying party may reasonably request in writing
and as shall be reasonably requested in connection with the defense of such
claim and litigation resulting therefrom.
(d) Contribution. If the indemnification provided for in
this Section 1.5 shall for any reason be held by a court of competent
jurisdiction to be unavailable to an indemnified party under subparagraph (a)
or (b) hereof in respect of any loss, claim, damage or liability, or any action
in respect thereof, then, in lieu of the amount paid or payable under
subparagraph (a) or (b) hereof, the indemnified party and the indemnifying
party under subparagraph (a) or (b) hereof shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating the same), (i) in such
proportion as is appropriate to reflect the relative fault of the Company and
the prospective sellers of Registrable Securities covered by the registration
statement in connection with the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations (the relative fault of the Company and
such prospective sellers to be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or such prospective sellers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission) or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as shall be
appropriate to reflect the relative benefits received by the Company and such
prospective sellers from the offering of the securities covered by such
registration statement. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any Person who was not guilty of such fraudulent
misrepresentation. Such prospective sellers' obligations to contribute as
provided in this subparagraph (d) are several in proportion to the relative
value of their respective Registrable Securities covered by such registration
statement and not joint and no prospective seller shall be liable under this
subparagraph (d) for any amount in excess
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<PAGE>
of the proceeds received by the Seller in the offering giving rise to the
liability hereunder. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not be unreasonably
withheld or delayed.
(e) Other Indemnification. Indemnification and contribution
similar to that specified in the preceding subdivisions of this Section 1.5
(with appropriate modifications) shall be given by the Company and each seller
of Registrable Securities with respect to any required registration or other
qualification of securities under any federal or state law, rule or regulation
of any governmental
authority other than the Securities Act.
(f) Indemnification Payments. The indemnification and
contribution required by this Section 1.5 shall be made by prompt periodic
payments of the amount thereof during the course of the investigation or
defense, as and when bills are received or expense, loss, damage or liability
is incurred.
2. Definitions. As used herein, unless the context otherwise
requires, the following terms have the following respective meanings:
"AMEX" means the American Stock Exchange Inc.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Exchange Act of 1934, as amended, shall
include a reference to the comparable section, if any, of any such successor
federal statute.
"Majority Holders" is defined in Section 1.1.
"NYSE" means the New York Stock Exchange, Inc.
"Person" means any individual, corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
government (or an agency, department or political subdivision thereof) or other
entity of any kind.
"Registrable Securities" means (i) the Shares and (ii) any Related
Registrable Securities. As to any particular Registrable Securities, once
issued such securities shall cease to be Registrable Securities when (a) a
registration statement with
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<PAGE>
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (b) they and all such other Registrable
Securities owned by a holder may be distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act, (c) they shall have
been otherwise transferred, and new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent public distribution of them shall not, in the opinion of counsel to
the Company (or in the opinion of counsel to the holders, which opinion is
reasonably satisfactory to the Company),require registration of them under the
Securities Act, or (d) they shall have ceased to be outstanding. All
references to per- centages of Registrable Securities shall be calculated
pursuant to Section 8.
"Registration Expenses" means all costs, fees and expenses incident to
the Company's performance of or compliance with Section 1, including, without
limitation, all registration, filing and NASD fees, all fees and expenses of
complying with securities or blue sky laws, all word processing, duplicating
and printing expenses, messenger and delivery expenses and the fees and
disbursements of counsel for the Company and of its independent public
accountants, but excluding any underwriting fees, expenses, discounts or other
costs payable to any underwriter, broker or dealer.
"Related Registrable Securities" means any securities of the Company
issued or issuable with respect to the Shares by way of a dividend or stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise.
"Securities Act" means the Securities Act of 1933, or any successor
federal statute, and the rules and regulations of the Commission thereunder,
all as the same shall be in effect at the time. References to a particular
section of the Securities Act of 1933 shall include a reference to the
comparable section, if any, of any such successor federal statute.
"Shares" means the shares of Common Stock to be received by the
Stockholder pursuant to the Merger Agreement.
3. Rule 144 and Rule 144A. The Company shall take all actions
reasonably necessary to enable holders of Registrable Securities to sell such
securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time ("Rule 144"), (b) Rule 144A under the
Securities Act, as such Rule may be amended from time to time, or (c) any
similar rules or regulations hereafter adopted by the Commission, including,
without limiting the generality of the foregoing, filing on a timely basis all
reports required to be filed by the Exchange Act. Upon the
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<PAGE>
request of any holder of Registrable Securities, the Company will deliver to
such holder a written statement as to whether it has complied with such
requirements.
4. Amendments and Waivers. This Agreement may be amended with the
written consent of the Company and the Company may take any action herein
prohibited, or omit to perform any act herein required to be performed by it,
only if the Company shall have obtained the written consent to such amendment,
action or omission to act, of the Majority Holders affected by such amendment,
action or omission to act. Each holder of any Registrable Securities at the
time or thereafter outstanding shall be bound by any consent authorized by this
Section 4, whether or not such Registrable Securities shall have been marked to
indicate such consent.
5. Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing delivered to the
Company, be treated as the holder of such Registrable Securities for purposes
of any request, consent, waiver or other action by any holder or holders of
Registrable Securities pursuant to this Agreement or any determination of any
number or percentage of shares of Registrable Securities held by any holder or
holders of Registrable Securities contemplated by this Agreement. If the
beneficial owner of any Registrable Securities so elects, the Company may
require assurances reasonably satisfactory to it of such owner's beneficial
ownership of such Registrable Securities.
6. Notices. All notices, demands and other communications provided
for or permitted hereunder shall be made in writing and shall be by registered
or certified first-class mail, return receipt requested, telex, telegram,
telecopier, reputable courier service or personal delivery to the address of
the Stockholder set forth below its name on the signature pages hereof and to
the Company at the following address (or at such other address for a party as
shall be specified by like notice):
c/o Metromedia Company
One Meadowlands Plaza
East Rutherford, NJ 07073 Attn: General Counsel
Telecopy: (201) 531-2803
All such notices and communications shall be deemed to have been duly given:
when delivered by hand, if personally delivered; one business day after being
sent by reputable courier service; three business days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; and when
receipt is acknowledged, if telecopied.
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7. Assignment. This Agreement shall be binding upon and inure to the
benefit of and shall be enforceable by the parties hereto and, with respect to
the Company, its respective successors and assigns and, with respect to the
Stockholder, any holder of any Registrable Securities, subject to the
provisions respecting the minimum numbers of percentages of shares of
Registrable Securities required in order to be entitled to certain rights, or
to take certain actions, contained herein.
8. Calculation of Percentage Interests in Registrable Securities. For
purposes of this Agreement, all references to a percentage of the Registrable
Securities shall be calculated based upon the total number of shares of Common
Stock included in the definition of the Registrable Securities outstanding at
the time such calculation is made.
9. Representations. The Stockholder agrees not to sell or otherwise
dispose of the Shares in any transaction which, in the reasonable opinion of
Company's counsel, would be in violation of the Securities Act. The
Stockholder acknowledges that a legend appears on the certificates for the
Shares reflecting the foregoing restriction and the Stockholder hereby consents
to the Company's maintaining "stop transfer" instructions with its transfer
agent with respect thereto.
10. Conditions to Obligations of the Company. It shall be a condition
precedent to the obligation of the Company to take any action pursuant to this
Agreement in respect of the Registrable Securities which are to be registered
at the request of any holder of Registrable Securities that such holder of
Registrable Securities shall furnish to the Company such information regarding
the Registrable Securities held by such holder of Registrable Securities and
the intended method of disposition thereof as the Company shall reasonably
request and as shall be required in connection with the action taken by the
Company.
Notwithstanding any provision in this Agreement to the contrary, if the
Company determines in good faith (which determination in the case of clause (i)
below shall be based on the written advice of the managing underwriter of the
contemplated public offering of the Company's securities) at the time of the
happening of any event of the kind described in subdivision (vi) of Section 1.2
that as a result of any amendment or supplement of the Shelf Registration
Statement filed pursuant to Section 1.1 and the prospectus used in connection
therewith (i) there shall be a material adverse effect on a then contemplated
public offering of the Company's securities, which public offering is
reasonably expected to occur within 60 days (provided, that this clause (i)
shall not apply to the sale by the Stockholder of any Shares received by the
Stockholder upon conversion pursuant to the Merger Agreement of shares of
Goldwyn's common stock received upon the occurrence of the Option Exercise (as
such term is defined in the Merger Agreement)), (ii) the amendment or
supplement would materially interfere with any material financing, acquisition,
corporate reorganization
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<PAGE>
or other material corporate transaction or development involving the Company
that is pending or imminent, (iii) the disclosures that would be required to be
made by the Company in connection with such amendment or supplement would be
materially harmful to the Company because of transactions then being considered
by, or other events then concerning, the Company, or (iv) amendment or
supplement at the time would require the inclusion of pro forma or other
information, which requirement the Company is reasonably unable to comply with
without incurring material expense, and the Company promptly gives each holder
of Registrable Securities notice of that determination (it being understood,
however, that in any such event, the Company shall use all reasonable efforts
to minimize the length of the postponement), then the Company may defer the
amendment or supplement for a reasonable period of time, but not in excess of
90 calendar days; provided, that the Company may not exercise the holdback
rights set forth in this Section 10 more frequently than once every 9 months.
In case of any postponement, upon appropriate notice to the holder of
Registrable Securities, the holder of Registrable Securities shall be required
to discontinue disposition of any Registrable Securities covered by such Shelf
Registration Statement during such period.
11. No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with
the rights granted to the holders of Registrable Securities in this Agreement.
12. Remedies. Each holder of Registrable Securities, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
13. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended and understood that all of the rights and privileges
of the Stockholder shall be enforceable to the fullest extent permitted by law.
14. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
and therein. This
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<PAGE>
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
15. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
16. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS
OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE WITHOUT GIVING EFFECT TO THE CHOICE-OF-LAW RULES
THEREOF.
17. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall toge ther constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized
as of the date first above written.
THE SAMUEL GOLDWYN, JR. FAMILY
TRUST
c/o Goldwyn Entertainment Company
10203 Santa Monica Boulevard
Los Angeles, California 90067-6403
By:
Name:
Title:
METROMEDIA INTERNATIONAL GROUP,
INC.
By:
Name:
Title:
14
Exhibit 5
[PAUL, WEISS, RIFKIND WHARTON AND GARRISON]
June 28, 1996
Metromedia International Group, Inc.
945 East Paces Ferry Road
Suite 2210
Atlanta, Georgia 30326
Metromedia International Group, Inc.
Registration Statement on Form S-3
REGISTRATION NO. 333-
Ladies and Gentlemen:
In connection with the above-captioned Registration Statement
(the "Registration Statement"), filed with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended (the
"Act"), and the Rules and Regulations promulgated thereunder (the
"Rules"), we have been requested by Metromedia International Group, Inc.,
a Delaware corporation (the "Company"), to furnish our opinion as to the
legality of 1,996,418 shares (the "Shares") offered by a certain selling
stockholder of the Company's Common Stock, par value $1.00 per share (the
"Common Stock"), registered for sale thereunder.
In connection with the furnishing of this opinion, we have
reviewed the Registration Statement (including all amendments thereto),
the Merger Agreement, dated as of January 31, 1996, as amended, by and
among the Company, The Samuel Goldwyn Company and SGC Merger Corp. (the
"Merger Agreement"), originals, or copies certified or otherwise
identified to our satisfaction, of the Company's Restated Certificate of
Incorporation and Restated By-laws, each as in effect on the date hereof,
and records of certain of the Company's corporate proceedings. We have
also examined and relied upon representations as to factual matters
contained in certificates of officers of the Company, and have made such
other investigations of fact and law and have examined and relied upon
the originals, or copies certified or otherwise identified to our
satisfaction, of such documents, records, certificates or other
<PAGE>
instruments, and upon such factual information otherwise supplied to us,
as in our judgment are necessary or appropriate to render the opinion
expressed below. In addition, we have assumed, without independent
investigation, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity of original
documents to all documents submitted to us as certified, photostatic,
reproduced or conformed copies, the authenticity of all such latter
documents and the legal capacity of all individuals who have executed any
of the documents.
Based upon the foregoing, we are of the opinion that the
Shares, when issued in accordance with the Merger Agreement, will be duly
authorized, validly issued, fully paid and nonassessable.
Our opinion expressed above is limited to the General
Corporation Law of the State of Delaware. Please be advised that no
member of this firm is admitted to practice in the State of Delaware.
Our opinion is rendered only with respect to laws and the rules,
regulations and orders thereunder, which are currently in effect.
We hereby consent to use of this opinion as an Exhibit to the
Registration Statement and to the use of our name under the heading
"Legal Matters" contained in the Prospectus included in the Registration
Statement. In giving this consent, we do not thereby admit that we come
within the category of persons whose consent is required by the Act or
the Rules.
Very truly yours,
PAUL, WEISS, RIFKIND, WHARTON & GARRISON
