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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(B) OR (G) OF THE
SECURITIES EXCHANGE ACT OF 1934
METROMEDIA INTERNATIONAL GROUP, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 58-0971455
(State of incorporation or organization) (I.R.S. employer identification
ONE MEADOWLANDS PLAZA number)
EAST RUTHERFORD, NEW JERSEY 07073-2137
(Address of principal executive offices) (Zip code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
7.25% CUMULATIVE CONVERTIBLE AMERICAN STOCK EXCHANGE
PREFERRED STOCK PACIFIC STOCK EXCHANGE
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of class)
Page 1 of 4 sequentially numbered pages.
Exhibit Index is at page 4
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Item 1. DESCRIPTION OF SECURITIES TO BE REGISTERED.
Metromedia International Group, Inc.'s (the "Company") Prospectus,
dated September 10, 1997, included as part of the Company's Registration
Statement on Form S-3 (Registration No. 333-24601) is incorporated by
reference herein.
Item 2. EXHIBITS.
1.1 Certificate of Designation of 7.25% Cumulative
Convertible Preferred Stock of the Company.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
METROMEDIA INTERNATIONAL GROUP, INC.
By: /s/ Arnold L. Wadler
---------------------------------------
Name: Arnold L. Wadler
Title: Executive Vice President, General Counsel
and Secretary
Dated: September 11, 1997
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INDEX OF EXHIBITS
EXHIBIT NUMBER TITLE PAGE NUMBER
1.1 Certificate of Designation of
7.25% Cumulative Convertible Preferred
Stock of the Company.
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Exhibit 1.1
CERTIFICATE OF DESIGNATION
OF
7.25% CUMULATIVE CONVERTIBLE PREFERRED STOCK
OF
METROMEDIA INTERNATIONAL GROUP, INC.
-----------------------
Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
-----------------------
METROMEDIA INTERNATIONAL GROUP, INC., a corporation organized and
existing by virtue of the General Corporation Law of the State of Delaware (the
"COMPANY"), does hereby certify that the following resolution was duly adopted
by action of the Board of Directors of the Company, with the provisions thereof
fixing the number of shares of the series, the dividend rate, and the optional
redemption prices being set by action of the Executive Committee of the Board of
Directors of the Company:
RESOLVED that pursuant to the authority expressly granted to and
vested in the Board of Directors of the Company by the provisions of Section 4.1
of the Restated Certificate of Incorporation of the Company, as amended from
time to time (the "CERTIFICATE OF INCORPORATION"), and pursuant to authority
expressly delegated to the Executive Committee of the Board of Directors of the
Company by such Board of Directors, and pursuant to Section 151(g) of the
General Corporation Law of the State of Delaware, there be created from the
70,000,000 shares of preferred stock, par value $1.00 per share, of the Company
authorized to be issued pursuant to the Certificate of Incorporation, a series
of preferred stock, consisting of 4,140,000 shares of 7.25% Cumulative
Convertible Preferred Stock (the "PREFERRED STOCK"), the voting powers,
designations, preferences and relative, participating, optional or other special
rights of which, and qualifications, limitations or restrictions thereof, shall
be as follows:
1. DEFINITIONS. As used herein, the following terms shall have the
following meanings:
1.2 "ACCRUED DIVIDENDS" shall mean, with respect to any share
of Preferred Stock, as of any date, the accrued and unpaid dividends on such
share from and including the most recent Dividend Payment Date (or the Issue
Date, if such date is prior to the first Dividend Payment Date) to but not
including such date.
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1.3 "ACCUMULATED DIVIDENDS" shall mean, with respect to any
share of Preferred Stock, as of any date, the aggregate accumulated and unpaid
dividends on such share from the Issue Date until the most recent Dividend
Payment Date prior to such date. There shall be no Accumulated Dividends with
respect to any share of Preferred Stock prior to the first Dividend Payment
Date.
1.4 "AFFILIATE" shall have the meaning ascribed to it, on the
date hereof, under Rule 405 of the Securities Act of 1933, as amended.
1.5 "AMEX" shall mean the American Stock Exchange or, in the
event the American Stock Exchange is not the principal stock exchange on which
the Preferred Stock is then traded or quoted, any principal successor stock
exchange or nationally recognized market where the Preferred Stock is listed or
included.
1.6 "BOARD OF DIRECTORS" shall mean the Board of Directors of
the Company or, with respect to any action to be taken by the Board of
Directors, any committee of the Board of Directors duly authorized to take such
action.
1.7 "BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or other day on which commercial banks in The City of New York ate
authorized or required by law or executive order to close.
1.8 "CHANGE OF CONTROL" shall mean (i) any merger or
consolidation of the Company with or into any person or any sale, transfer or
other conveyance, whether direct or indirect, of all or substantially all of
the assets of the Company (other than a sale, transfer, assignment or
distribution of shares of capital stock or assets of Snapper and/or Landmark
in one transaction or a series of related transactions), on a consolidated
basis, in one transaction or a series of related transactions, if,
immediately after giving effect to such transaction, any "person" or "group"
(other than Metromedia Company and its Affiliates) is or becomes the
"beneficial owner," directly or indirectly, of more than 50% of the total
voting power, in the aggregate, normally entitled to vote in the election of
directors, managers, or trustees, as applicable, of the transferee or
surviving entity; (ii) when any "person" or "group" (other than Metromedia
Company and its Affiliates) is or becomes the "beneficial owner," directly or
indirectly, of more than 50% of the total voting power, in the aggregate,
normally entitled to vote in the election of directors of the Company; or
(iii) when, during any period of 12 consecutive months after the Issue Date,
individuals who at the beginning of any such 12-month period constituted the
Board of Directors of the Company (together with any new directors whose
election by such Board or whose nomination for election by the stockholders
of the Company was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of the
Company then in office.
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For purposes of the definition of "Change of Control," (i) the
terms "person" and "group" shall have the meaning used for purposes of Rules
13d-3 and 13d-5 of the Exchange Act, as in effect on the Issue Date, whether or
not applicable and (ii) the term "beneficial owner" shall have the meaning used
in Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the original
date of issuance of the Preferred Stock, whether or not applicable, except that
a "person" shall be deemed to have "beneficial ownership" of all shares that any
such person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time or upon the occurrence of certain
events.
1.9 "CHANGE OF CONTROL DATE" shall mean the date on which the
Change of Control event occurs.
1.10 "COMMON STOCK" shall mean the common stock, par value
$1.00 per share, of the Company, or any other class of stock resulting from
successive changes or reclassifications of such common stock consisting solely
of changes in par value, or from par value to no par value, or as a result of a
subdivision, combination, or merger, consolidation or similar transaction in
which the Company is a constituent corporation.
1.11 "DIVIDEND PAYMENT DATE" shall mean September 15,
December 15, March 15 and June 15 of each year, commencing December 15, 1997.
1.12 "DIVIDEND RECORD DATE" shall mean, with respect to each
Dividend Payment Date, a date not more than 60 days nor less than 10 days
preceding a Dividend Payment Date, as shall be fixed by the Board of Directors.
1.13 "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
1.14 "ISSUE DATE" shall mean September 16, 1997, the original
date of issuance of the Preferred Stock.
1.15 "JUNIOR STOCK" shall mean the Common Stock and the shares
of any other class or series of stock of the Company created on or after the
Issue Date that, by the terms of the Certificate of Incorporation or of the
instrument by which the Board of Directors, acting pursuant to authority granted
in the Certificate of Incorporation, shall fix the relative rights, preferences
and limitations thereof, shall be junior to the Preferred Stock in respect of
the right to receive dividends or to participate in any other distribution of
assets.
1.16 "LANDMARK" shall mean Landmark Theatre Corporation, a
California corporation.
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1.17 "LIQUIDATION PREFERENCE" shall mean, with respect to each
share of Preferred Stock, $50.
1.18 "MARKET VALUE" shall mean the average closing price of the
Common Stock on the AMEX for a five consecutive trading day period.
1.19 "METROMEDIA COMPANY" shall mean Metromedia Company, a
Delaware general partnership.
1.20 "OPTIONAL REDEMPTION PRICE PER SHARE" shall mean, as of
any date, the price at which the Company may, at its option, redeem one share of
the Preferred Stock, payable, at the Company's option, in cash, by delivery of
fully paid and nonassessable shares of Common Stock or a combination thereof.
1.21 "PARI PASSU STOCK" shall mean the shares of any class or
series of stock of the Company created on or after the Issue Date that, by the
terms of the Certificate of Incorporation or of the instrument by which the
Board of Directors, acting pursuant to authority granted in the Certificate of
Incorporation, shall fix the relative rights, preferences and limitations
thereof, shall, in the event that the stated dividends thereon are not paid in
full, be entitled to share ratably with the Preferred Stock in the payment of
dividends, including accumulations, if any, in accordance with the sums or other
consideration which would be payable on such shares if all dividends were
declared and paid in full, or shall, in the event that the amounts payable
thereon in liquidation are not paid in full, be entitled to share ratably with
the Preferred Stock in any other distribution of assets in accordance with the
sums or other consideration which would be payable in such distribution if all
sums payable were discharged in full.
1.22 "PERSON" shall mean any individual, corporation, general
partnership, limited partnership, limited liability partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof.
1.23 "SENIOR STOCK" shall mean any capital stock of the Company
ranking senior (either as to dividends or upon liquidation, dissolution or
winding up) to the Preferred Stock.
1.24 "SNAPPER" shall mean Snapper, Inc., a Georgia corporation.
1.25 "VOTING RIGHTS TRIGGERING EVENT" shall mean the failure of
the Company to pay dividends on the Preferred Stock with respect to periods
ending on more than six consecutive Dividend Payment Dates.
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2. DIVIDENDS.
2.1 The holders of shares of the outstanding Preferred Stock
shall be entitled, when, as and if declared by the Board of Directors out of
funds legally available therefor, to receive dividends on each outstanding
share of Preferred Stock, payable quarterly, in arrears, at an annual rate of
7.25% (the "DIVIDEND RATE"). Dividends payable for each full dividend period
will be computed by dividing (x) the product of the Liquidation Preference
times the Dividend Rate by (y) four and shall be payable on each Dividend
Payment Date, to the holders of record of Preferred Stock at the close of
business on the Dividend Record Date applicable to such Dividend Payment
Date, commencing on December 15, 1997. Such dividends shall be cumulative
from the Issue Date and shall accrue on a day-to-day basis, whether or not
earned or declared, from and after the Issue Date. Dividends on the
Preferred Stock which are not declared and paid when due will compound
quarterly on each Dividend Payment Date at the Dividend Rate. Dividends
payable for any partial dividend period shall be computed on the basis of
actual days elapsed over a 360-day year consisting of twelve 30-day months.
2.2 Dividends may, at the option of the Company, be paid on
any Dividend Payment Date either in cash, by issuing fully paid and
nonassessable shares of Common Stock or a combination thereof. If the Company
elects to pay dividends in shares of Common Stock, the number of shares of
Common Stock to be distributed will be calculated by dividing such payment by
95% of the Market Value ending on the Dividend Payment Date.
2.3 No dividends or other distributions (other than a dividend
or distribution in Junior Stock, other than the Common Stock) may be declared,
made or paid or set apart for payment on the Common Stock, Junior Stock or PARI
PASSU Stock, and no Common Stock, Junior Stock or any PARI PASSU Stock,
including the Preferred Stock, may be repurchased, exchanged, redeemed or
otherwise acquired for any consideration (or any money paid to or made available
for a sinking fund for the redemption of any shares of any such stock) by the
Company (except by conversion into or exchange for Junior Stock), nor may funds
be set apart for payment with respect thereto, unless full cumulative dividends
shall have been or contemporaneously are paid or declared and a sum sufficient
for the payment thereof is set apart for such payment on, and all applicable
redemption, exchange and repurchase obligations shall have been satisfied with
respect to, all outstanding shares of Preferred Stock and such other PARI PASSU
Stock. Notwithstanding the foregoing, if full dividends have not been paid on
the Preferred Stock or on any PARI PASSU Stock, dividends may be declared and
paid on the Preferred Stock and such PARI PASSU Stock so long as the dividends
are declared and paid PRO RATA so that the amounts of dividends declared per
share on the Preferred Stock and such PARI PASSU Stock will in all cases bear to
each other the same ratio that Accrued Dividends on the shares of Preferred
Stock and such PARI PASSU Stock bear to
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each other; PROVIDED, that if such dividends are paid in cash, any senior
security or in PARI PASSU Stock on any PARI PASSU Stock, dividends will also be
paid in cash, such senior security or such PARI PASSU Stock, as the case may be,
on the Preferred Stock.
2.4 Holders of shares of Preferred Stock shall not be entitled
to any dividends, whether payable in cash, property or stock, in excess of full
cumulative dividends, as herein provided, on the Preferred Stock. No interest,
or sum of money in lieu of interest, shall be payable in respect of any dividend
payment or payments on the Preferred Stock which may be in arrears (it being
understood that the compounding of unpaid dividends shall not constitute
interest or money in lieu of interest).
2.5 The holders of shares of Preferred Stock at the close of
business on a Dividend Record Date will be entitled to receive the dividend
payment on those shares (except that holders of shares called for redemption on
a redemption date between the record date and the Dividend Record Date will be
entitled to receive such dividend on such redemption date as indicated in
Section 2.1 hereof) on the corresponding Dividend Payment Date notwithstanding
the subsequent conversion thereof or the Company's default in payment of the
dividend due on that Dividend Payment Date. However, shares of Preferred Stock
surrendered for conversion during the period between the close of business on
any Dividend Record Date and the close of business on the day immediately
preceding the applicable Dividend Payment Date (except for shares called for
redemption on a redemption date during that period) must be accompanied by
payment of an amount equal to the dividend payable on the shares on that
Dividend Payment Date. A holder of shares of Preferred Stock on a Dividend
Record Date who (or whose transferee) tenders any shares for conversion on a
Dividend Payment Date will receive the dividend payable by the Company on the
Preferred Stock on that date, and the converting holder need not include payment
in the amount of such dividend upon surrender of shares of Preferred Stock for
conversion. Except as provided above, the Company shall make no payment or
allowance for unpaid dividends, whether or not in arrears, on converted shares
or for dividends on the shares of Common Stock issued upon conversion.
2.6 To the extent that the amount of any dividend payable to a
holder of Preferred Stock (in respect of all shares held by such holder) is
payable in shares of Common Stock and does not equal a whole number of shares of
Common Stock, such fractional amount shall be paid in cash to such holder of
Preferred Stock.
3. OPTIONAL REDEMPTION.
3.1 At any time on or after September 15, 2000, the Company
may, at its sole option, subject to Section 2.3, redeem, out of funds legally
available therefor, all or any part of the outstanding shares of Preferred
Stock, in cash, by
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delivery of fully paid and nonassessable shares of Common Stock or a combination
thereof, upon not less than 30 days nor more than 60 days' notice provided in
the manner specified in Section 4 hereof, during the 12-month periods commencing
on September 15 of the years set forth below for the amount (expressed as a
percentage of the Liquidation Preference thereof) set forth opposite such years,
plus Accumulated Dividends and Accrued Dividends thereon to the redemption date.
Period Redemption Price Per Share
------ --------------------------
2000 $ 52.5375
2001 52.1750
2002 51.8125
2003 51.4500
2004 51.0875
2005 50.7250
2006 50.3625
2007 and thereafter 50.0000
3.2 If the Company elects to make redemption payments in
Common Stock, the number of shares of Common Stock to be distributed will be
calculated by dividing such payment by 95% of the Market Value for the period
ending on the applicable redemption date. If any dividends on the Preferred
Stock are in arrears, no shares of Preferred Stock shall be redeemed unless all
outstanding shares of Preferred Stock are simultaneously redeemed.
4. PROCEDURE FOR REDEMPTION.
4.1 In the event the Company shall elect to redeem shares of
Preferred Stock pursuant to Section 3 hereof, notice of such redemption shall be
given (i) by publication in a newspaper of general circulation in the Borough of
Manhattan, City and State of New York (if such publication shall be required by
applicable law, rule, regulation or securities exchange requirement) or (ii) by
first-class mail to each record holder of the shares to be redeemed, at such
holder's address as the same appears on the books of the Company, in either case
not less than 30 nor more than 60 days prior to the redemption date. Each such
notice shall state (i) the time and date as of which the redemption shall occur;
(ii) the total number of shares of Preferred Stock to be redeemed and, if fewer
than all the shares held by such holder are to be redeemed, the number of such
shares to be redeemed from such holder; (iii) the redemption price (whether to
be paid in cash or shares of Common Stock); (iv) the place or places where
certificates for such shares are to be surrendered for payment of the redemption
price and delivery of certificates representing shares of Common Stock (if the
Company so chooses); (v) that dividends on the shares to be redeemed will cease
to accrue on such redemption date unless the Company defaults in the payment of
the
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redemption price; and (vi) the name of any bank or trust company, if any,
performing the duties referred to in Section 4.3 below.
4.2 On or before any redemption date, each holder of shares of
Preferred Stock to be redeemed shall surrender the certificate or certificates
representing such shares of Preferred Stock to the Company, in the manner and at
the place designated in the notice of redemption and on the redemption date, the
full redemption price, payable in cash, fully paid and nonassessable shares of
Common Stock or a combination thereof, for such shares of Preferred Stock shall
be paid or delivered to the person whose name appears on such certificate or
certificates as the owner thereof, and the shares represented by each
surrendered certificate shall be returned to authorized but unissued shares of
preferred stock of any or no series. Upon surrender (in accordance with the
notice of redemption) of the certificate or certificates representing any shares
to be so redeemed (properly endorsed or assigned for transfer, if the Company
shall so require and the notice of redemption shall so state), such shares shall
be redeemed by the Company at the redemption price. If fewer than all the
shares represented by any such certificate are to be redeemed, a new certificate
shall be issued representing the unredeemed shares, without costs to the holder
thereof, together with the amount of cash, if any, in lieu of fractional shares.
4.3 If a notice of redemption shall have been given as
provided in Section 4.1, dividends on the shares of Preferred Stock so called
for redemption shall cease to accrue, such shares shall no longer be deemed to
be outstanding, and all rights of the holders thereof as stockholders of the
Company with respect to shares so called for redemption (except for the right to
receive from the Company the redemption price) shall cease (including any right
to receive dividends otherwise payable on any Dividend Payment Date that would
have occurred after the time and date of redemption) either (i) from and after
the time and date fixed in the notice of redemption as the time and date of
redemption (unless the Company shall default in the payment of the redemption
price, in which case such rights shall not terminate at such time and date) or
(ii) if the Company shall so elect and state in the notice of redemption, from
and after the time and date (which date shall be the date fixed for redemption
or an earlier date not less than 30 days after the date of mailing of the
redemption notice) on which the Company shall irrevocably deposit in trust for
the holders of the shares to be redeemed with a designated bank or trust for the
holders of the shares to be redeemed with a designated bank or trust company
doing business in the Borough of Manhattan, City and State of New York, as
paying agent, money or a fully paid and nonassessable shares of Common Stock
sufficient to pay at the office of such paying agent, on the redemption date,
the redemption price. Any money or shares of Common Stock so deposited with any
such paying agent which shall not be required for such redemption shall be
returned to the Company forthwith. Subject to applicable escheat laws, any
moneys so set aside by the Company and unclaimed at the end of one year from the
redemption date shall revert to the general funds of the
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Company, after which reversion the holders of such shares so called for
redemption shall look only to the general funds of the Company for the payment
of the redemption price without interest. Any interest accrued on funds so
deposited shall be paid to the Company from time to time.
4.4 In the event that fewer than all the outstanding shares of
Preferred Stock are to be redeemed, the shares to be redeemed shall be
determined PRO RATA or by lot, as determined by the Company, except that the
Company may redeem such shares held by any holder of fewer than 100 shares (or
shares held by holders who would hold fewer than 100 shares as a result of such
redemption), as may be determined by the Company.
5. CHANGE OF CONTROL.
5.1 Upon the occurrence of a Change of Control of the
Company, each holder of Preferred Stock shall, in the event that the Market
Value on the Change of Control Date is less than the Conversion Price, have a
one-time option (the "CHANGE OF CONTROL OPTION"), upon not less than 30 days'
notice nor more than 60 days' notice, to convert such holder's shares of
Preferred Stock into fully paid and nonassessable shares of Common Stock, at
a conversion price equal to the greater of (i) the Market Value for the
period ending on the Change of Control Date and (ii) 66.67% of the Market
Value for the period ending on September 10, 1997. The Change of Control
Option must be exercised within 30 days following a Change of Control. In
lieu of issuing the shares of Common Stock issuable upon conversion in the
event of a Change of Control, the Company may, at its sole option, make a
cash payment equal to the Market Value determined with respect to the period
ending on the Change of Control Date of the shares Common Stock otherwise
issuable.
5.2 In the event of a Change of Control, notice of such Change
of Control shall be given, within five Business Days of the Change of Control
Date, by the Company by first-class mail to each record holder of shares of
Preferred Stock, at such holder's address as the same appears on the books of
the Company. Each such notice shall state: (i) that a Change of Control has
occurred; (ii) the last day on which the Change of Control Option may be
exercised (the "EXPIRATION DATE"); (iii) the name and address of the paying
agent; and (iv) the procedures that holders must follow to exercise the Change
of Control Option.
5.3 On or before the Expiration Date, each holder of shares of
Preferred Stock wishing to exercise the Change of Control Option shall surrender
the certificate or certificates representing the shares of Preferred Stock to be
converted, in the manner and at the place designated in the notice described in
Section 5.2, and on such date the cash or shares of Common Stock due to such
holder shall be delivered to the person whose name appears on such certificate
or certificates as the owner thereof and each surrendered certificate shall be
returned to authorized but unissued shares.
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Upon surrender (in accordance with the notice described in Section 5.2 of the
certificate or certificates representing any shares to be so converted (properly
endorsed or assigned for transfer, if the Company shall so require and the
notice shall so state), such shares shall be converted by the Company at the
conversion price.
5.4 The rights of holders of Preferred Stock pursuant to the
Section 5 are in addition to, and not in lieu of, the rights of holders of
Preferred Stock provided for in Section 8 hereof.
6. VOTING.
6.1 The shares of Preferred Stock shall have no voting rights
except as required by law or as set forth below:
(a) If and whenever at any time or times, a Voting
Rights Triggering Event occurs, then the number of directors constituting the
Board of Directors shall be increased by two and the holders of shares of
Preferred Stock, voting separately as a class with any other PARI PASSU Stock
(the "VOTING RIGHTS CLASS"), will be entitled at the next regular or special
meeting of stockholders of the Company to elect two directors of the Company to
fill the newly created directorships.
(b) Such voting rights may be exercised at a special
meeting of the holders of the shares of the Voting Rights Class, called as
hereinafter provided, or at any annual meeting of stockholders held for the
purpose of electing directors, and thereafter at each such annual meeting until
such time as all dividends in arrears on the shares of Preferred Stock shall
have been paid in full, at which time or times such voting rights and the term
of the directors elected pursuant to Section 6.1(a) shall terminate.
(c) At any time when such voting rights shall have
vested in holders of shares of the Voting Rights Class described in
Section 6.1(a), a proper officer of the Company may call, and, upon the written
request of the record holders of shares representing twenty-five percent (25%)
of the voting power of the shares then outstanding of the Voting Rights Class,
addressed to the Secretary of the Company, shall call a special meeting of the
holders of shares of the Voting Rights Class. Such meeting shall be held at the
earliest practicable date upon the notice required for annual meetings of
stockholders at the place for holding annual meetings of stockholders of the
Company, or, if none, at a place designated by the Board of Directors.
Notwithstanding the provisions of this Section 6.1(c), no such special meeting
shall be called during a period within the 60 days immediately preceding the
date fixed for the next annual meeting of stockholders in which such case, the
election of directors pursuant to Section 6.1(a) shall be held at such annual
meeting of stockholders.
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(d) At any meeting held for the purpose of electing
directors at which the holders of the Voting Rights Class shall have the right
to elect directors as provided herein, the presence in person or by proxy of the
holders of shares representing more than fifty percent (50%) in voting power of
the then outstanding shares of the Voting Rights Class shall be required and
shall be sufficient to constitute a quorum of such class for the election of
directors by such class.
(e) Any director elected pursuant to the voting rights
created under this Section 6.1 shall hold office until the next annual meeting
of stockholders (unless such term has previously terminated pursuant to Section
6.1(b)) and any vacancy in respect of any such director shall be filled only by
vote of the remaining director so elected by holders of the Voting Rights Class,
or if there be no such remaining director, by the holders of shares of the
Voting Rights Class at a special meeting called in accordance with the
procedures set forth in this Section 6, or, if no such special meeting is
called, at the next annual meeting of stockholders. Upon any termination of
such voting rights, the term of office of all directors elected pursuant to this
Section 6 shall terminate.
(f) So long as any shares of Preferred Stock remain
outstanding, unless a greater percentage shall then be required by law, the
Company shall not, without the affirmative vote or consent of the holders of at
least 66-2/3% of the outstanding Preferred Stock voting or consenting, as the
case may be, separately as one class, (i) create, authorize or issue any Senior
Stock or (ii) amend the Certificate of Incorporation so as to affect adversely
the specified rights, preferences, privileges or voting rights of holders of
shares of Preferred Stock, including (x) increasing the authorized number of
shares of preferred stock and (y) issuing any shares of Preferred Stock in
excess of the number of shares authorized in this Certificate of Designation as
of the Issue Date. The holders of at least a majority of the outstanding shares
of Preferred Stock, voting separately as one class, may waive compliance with
any provision of this Certificate of Designation.
(g) In exercising the voting rights set forth in this
Section 6.1, each share of Preferred Stock shall be entitled to one vote.
6.2 Except as set forth in Section 6.1, the Company may
create, authorize or issue any shares of Junior Stock or PARI PASSU Stock or
increase or decrease the amount of authorized capital stock of any class other
than the preferred stock, without the consent of the holders of Preferred Stock,
voting separately as a class, and in taking such actions the Company shall not
be deemed to have affected adversely the rights, preferences, privileges or
voting rights of holders of shares of Preferred Stock.
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7. LIQUIDATION RIGHTS.
7.1 In the event of any liquidation, dissolution or winding-up
of the Company, whether voluntary or involuntary, the holders of the shares of
Preferred Stock shall be entitled to receive out of the assets of the Company
available for distribution to stockholders up to the Liquidation Preference plus
Accumulated Dividends and Accrued Dividends thereon in preference to the holders
of, and before any distribution is made on, any Junior Stock, including, without
limitation, on any Common Stock.
7.2 Neither the sale, conveyance, exchange or transfer (for
cash, shares of stock, securities or other consideration) of all or
substantially all the property and assets of the Company nor the merger or
consolidation of the Company into or with any other corporation, or the merger
or consolidation of any other corporation into or with the Company, shall be
deemed to be a liquidation, dissolution or winding up, voluntary or involuntary,
for the purposes of this Section 7.
7.3 After the payment to the holders of the shares of
Preferred Stock of full preferential amounts provided for in this Section 7, the
holders of Preferred Stock as such shall have no right or claim to any of the
remaining assets of the Company.
7.4 In the event the assets of the Company available for
distribution to the holders of shares of Preferred Stock upon any liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary,
shall be insufficient to pay in full all amounts to which such holders are
entitled pursuant to Section 7.1, no such distribution shall be made on account
of any shares of any PARI PASSU Stock upon such liquidation, dissolution or
winding up unless proportionate distributable amounts shall be paid on account
of the shares of Preferred Stock, ratably, in proportion to the full
distributable amounts for which holders of all Preferred Stock and PARI PASSU
Stock are entitled upon such liquidation, dissolution or winding up.
8. CONVERSION.
(a) Each holder of Preferred Stock shall have the right,
at its option, at any time and from time to time from the Issue Date to convert,
subject to the terms and provisions of this Section 8, any or all of such
holder's shares of Preferred Stock. In such case, the shares of Preferred Stock
shall be converted into such number of fully paid and nonassessable shares of
Common Stock as is equal, subject to Section 8(g), to the product of the number
of shares of Preferred Stock being so converted multiplied by the quotient of
(i) the Liquidation Preference plus any Accumulated Dividends and any Accrued
Dividends to and including the date of conversion divided by (ii) the Conversion
Price (as defined below) then in effect,
<PAGE>
13
except that with respect to any share which shall be called for redemption such
right shall terminate at the close of business on the date of redemption of such
share, unless the Company shall default in performance or payment due upon
exchange or redemption thereof. The Conversion Price shall be $15, subject
to adjustment as set forth in Section 8(c).
The conversion right of a holder of Preferred Stock shall
be exercised by the holder by the surrender of the certificates representing
shares to be converted to the Company at any time during usual business hours at
its principal place of business or the offices of its duly appointed transfer
agent for the Preferred Stock to be maintained by it, accompanied by written
notice that the holder elects to convert all or a portion of the shares of
Preferred Stock represented by such certificate and specifying the name or names
(with address) in which a certificate or certificates for shares of Common Stock
are to be issued and (if so required by the Company or its duly appointed
transfer agent for the Preferred Stock) by a written instrument or instruments
of transfer in form reasonably satisfactory to the Company or its duly appointed
transfer agent for the Preferred Stock duly executed by the holder or its duly
authorized legal representative and transfer tax stamps or funds therefor, if
required pursuant to Section 8(i). Immediately prior to the close of business
on the date of receipt by the Company or its duly appointed transfer agent for
the Preferred Stock of notice of conversion of shares of Preferred Stock, each
converting holder of Preferred Stock shall be deemed to be the holder of record
of Common Stock issuable upon conversion of such holder's Preferred Stock
notwithstanding that the share register of the Company shall then be closed or
that certificates representing such Common Stock shall not then be actually
delivered to such person. Upon notice from the Company, each holder of
Preferred Stock so converted shall promptly surrender to the Company, at any
place where the Company shall maintain a transfer agent for its Preferred Stock,
certificates representing the shares so converted, duly endorsed in blank or
accompanied by proper instruments of transfer. On the date of any conversion,
all rights with respect to the shares of Preferred Stock so converted, including
the rights, if any, to receive notices, will terminate, except only the rights
of holders thereof to (i) receive certificates for the number of shares of
Common Stock into which such shares of Preferred Stock have been converted; (ii)
the payment of any Accumulated Dividends or Accrued Dividends thereon; and (iii)
exercise the rights to which they are entitled as holders of Common Stock.
If the last day for the exercise of the conversion right
shall not be a Business Day, then such conversion right may be exercised on the
next preceding Business Day.
(b) When shares of Preferred Stock are converted
pursuant to this Section 8, all Accumulated Dividends and all Accrued Dividends
(whether or not declared or currently payable) on the Preferred Stock so
converted to
<PAGE>
14
(and not including) the date of conversion shall be immediately due and payable,
at the Company's option, (i) in cash; (ii) in a number of fully paid and
nonassessable shares of Common Stock equal to the quotient of (A) the amount of
Accumulated Dividends and Accrued Dividends payable to the holders of Preferred
Stock hereunder, divided by (B) the Market Value for the period ending on the
date of conversion; or (iii) a combination thereof.
(c) The Conversion Price shall be subject to adjustment
as follows:
(i) In case the Company shall at any time or from
time to time (A) make a redemption payment or pay a dividend (or other
distribution) payable in shares of Common Stock on any class of capital stock
(which, for purposes of this Section 8(c) shall include, without limitation, any
dividends or distributions in the form of options, warrants or other rights to
acquire capital stock) of the Company (other than the issuance of shares of
Common Stock in connection with the payment in redemption for, of dividends on
or the conversion of Preferred Stock); (B) subdivide the outstanding shares of
Common Stock into a larger number of shares; (C) combine the outstanding shares
of Common Stock into a smaller number of shares; (D) issue any shares of its
capital stock in a reclassification of the Common Stock; or (E) pay a dividend
or make a distribution to all holders of shares of Common Stock (other than a
dividend or distribution paid or made to holders of shares of Preferred Stock in
the manner provided in Section 8 (b)) pursuant to a stockholder rights plan,
"poison pill" or similar arrangement then, and in each such case, the Conversion
Price in effect immediately prior to such event shall be adjusted (and any other
appropriate actions shall be taken by the Company) so that the holder of any
share of Preferred Stock thereafter surrendered for conversion shall be entitled
to receive the number of shares of Common Stock that such holder would have
owned or would have been entitled to receive upon or by reason of any of the
events described above, had such share of Preferred Stock been converted
immediately prior to the occurrence of such event. An adjustment made pursuant
to this Section 8(c)(i) shall become effective retroactively (x) in the case of
any such dividend or distribution, to the day immediately following the close of
business on the record date for the determination of holders of Common Stock
entitled to receive such dividend or distribution or (y) in the case of any such
subdivision, combination or reclassification, to the close of business on the
day upon which such corporate action becomes effective.
(ii) In case the Company shall at any time or from
time to time issue or sell shares of Common Stock (or securities convertible
into or exchangeable for shares of Common Stock, or any options, warrants or
other rights to acquire shares of Common Stock) to holders of its Common Stock
at a price per share less than the Market Value for the period ending on the
date of issuance (treating the price per share of any security convertible or
exchangeable or exercisable into
<PAGE>
15
Common Stock as equal to (A) the sum of the price for such security convertible,
exchangeable or exercisable into Common Stock plus any additional consideration
payable (without regard to any anti-dilution adjustments) upon the conversion,
exchange or exercise of such security into Common Stock divided by (B) the
number of shares of Common Stock initially underlying such convertible,
exchangeable or exercisable security), other than (I) issuances or sales for
which an adjustment is made pursuant to another paragraph of this Section 8(c),
(II) issuances of shares of Common Stock or securities exercisable or
convertible into Common Stock pursuant to mergers, acquisitions, consolidations,
exchanges, reorganizations or combinations or bona fide stock incentive plans
for employees, directors and consultants of the Company or (III) issuances that
are subject to certain triggering events (until such time as such triggering
events occur), then, and in each such case, the Conversion Price then in effect
shall be adjusted by dividing the Conversion Price in effect on the day
immediately prior to such record date by a fraction (x) the numerator of which
shall be the sum of the number of shares of Common Stock outstanding on such
record date plus the number of additional shares of Common Stock issued or to be
issued (or the maximum number into which such convertible or exchangeable
securities initially may convert or exchange or for which such options, warrants
or other rights initially may be exercised) and (y) the denominator of which
shall be the sum of the number of shares of Common Stock outstanding on such
record date plus the number of shares of Common Stock which the aggregate
consideration for the total number of such additional shares of Common Stock so
issued (or into which such convertible or exchangeable securities may convert or
exchange or for which such options, warrants or other rights may be exercised
plus the aggregate amount of any additional consideration initially payable upon
conversion, exchange or exercise of such security) would purchase at the Market
Value for the period ending on the date of conversion; PROVIDED, that if the
holders of Preferred Stock are offered the opportunity to participate in any
such offering on a pro rata basis with the holders of Common Stock and decline
to participate or if the holders of Preferred Stock are entitled to receive such
options, warrants or other rights upon conversion at any time of their shares of
Preferred Stock, then in either such case, no adjustment shall be made pursuant
to this Section 8(c)(ii). Such adjustment shall be made whenever such shares,
securities, options, warrants or other rights are issued, and shall become
effective retroactively to a date immediately following the close of business on
the record date for the determination of stockholders entitled to receive such
shares, securities, options, warrants or other rights; PROVIDED, HOWEVER, that
the determination as to whether an adjustment is required to be made pursuant to
this Section 8(c)(ii) shall only be made upon the issuance of such shares or
such convertible or exchangeable securities, options, warrants or other rights,
and not upon the issuance of the security into which such convertible or
exchangeable security converts or exchanges, or the security underlying such
option, warrants or other right; PROVIDED FURTHER, that if any convertible or
exchangeable securities, options, warrants or other rights (or any portions
thereof) which shall have given rise to an adjustment pursuant to this Section
<PAGE>
16
8(c)(ii) shall have expired or terminated without the exercise thereof and/or if
by reason of the terms of such convertible or exchangeable securities, options,
warrants or other rights there shall have been an increase or increases, with
the passage of time or otherwise, in the price payable upon the exercise or
conversion thereof, then the Conversion Price hereunder shall be readjusted (but
to no greater extent than originally adjusted) on the basis of (i) eliminating
from the computation any additional shares of Common Stock corresponding to such
convertible or exchangeable securities, options, warrants or other rights as
shall have expired or terminated; (ii) treating the additional shares of Common
Stock, if any, actually issued or issuable pursuant to the previous exercise of
such convertible or exchangeable securities, options, warrants or other rights
as having been issued for the consideration actually received and receivable
therefor; and (iii) treating any of such convertible or exchangeable securities,
options, warrants or other rights which remain outstanding as being subject to
exercise or conversion on the basis of such exercise or conversion price as
shall be in effect at the time.
(iii) In case the Company shall at any time or from
time to time (A) make a distribution to all holders of shares of its Common
Stock consisting exclusively of cash (excluding any cash portion of
distributions referred to in (i) above, or cash distributed upon a merger or
consolidation to which (g) below applies), that, when combined together with
(x) all other such all-cash distributions made within the then-preceding 12
months in respect of which no adjustment has been made and (y) any cash and the
fair market value of other consideration paid or payable in respect of any
tender offer by the Company or any of its subsidiaries for shares of Common
Stock concluded within the then-preceding 12 months in respect of which no
adjustment has been made, in the aggregate exceeds 15% of the Company's market
capitalization (defined as the product of the Market Value for the period ending
on the record date of such distribution times the number of shares of Common
Stock then outstanding) on the record date of such distribution, (B) complete a
tender or exchange offer by the Company or any of its subsidiaries for shares of
Common Stock that involves an aggregate consideration that, together with
(I) any cash and other consideration payable in a tender or exchange offer by
the Company or any of its subsidiaries for shares of Common Stock expiring
within the then-preceding 12 months in respect of which no adjustment has been
made and (II) the aggregate amount of any such all-cash distributions referred
to in (A) above to all holders of shares of Common Stock within the
then-preceding 12 months in respect of which no adjustments have been made,
exceeds 15% of the Company's market capitalization on the expiration of such
tender offer or (C) make a distribution to all holders of its Common Stock
consisting of evidences of indebtedness, shares of its capital stock other than
Common Stock or assets (including securities, but excluding those dividends,
rights, options, warrants and distributions referred to in (i) and (ii) above),
then, and in each such case, the Conversion Price then in effect shall be
adjusted by dividing the Conversion Price in effect immediately prior to the
date of such distribution by a fraction (x) the
<PAGE>
17
numerator of which shall be the Market Value for the period ending on the record
date referred to below and (y) the denominator of which shall be such Market
Value less then the fair market value (as determined by the Board of Directors
of the Company) of the portion of the cash, evidences of indebtedness,
securities or other assets so distributed, applicable to one share of Common
Stock (but such denominator not to be less than one); PROVIDED, HOWEVER, that no
adjustment shall be made with respect to any distribution of rights to purchase
securities of the Company if the holder of shares of Preferred Stock would
otherwise be entitled to receive such rights upon conversion at any time of
shares of Preferred Stock into shares of Common Stock unless such rights are
subsequently redeemed by the Company, in which case such redemption shall be
treated for purposes of this Section 8(c)(iii) as a dividend on the Common
Stock. Such adjustment shall be made whenever any such distribution is made and
shall become effective retroactively to a date immediately following the close
of business on the record date for the determination of stockholders entitled to
receive such distribution.
(iv) In the case the Company at any time or from
time to time shall take any action affecting its Common Stock (it being
understood that the issuance or sale of shares of Common Stock (or securities
convertible into or exchangeable for shares of Common Stock, or any options,
warrants or other rights to acquire shares of Common Stock) to any Person at a
price per share less than the Conversion Price then in effect shall not be
deemed such an action), other than an action described in any of Section 8(c)(i)
through Section 8(c)(iii), inclusive, or Section 8(g), then, the Conversion
Price shall be adjusted in such manner and at such time as the Board of
Directors of the Company in good faith determines to be equitable in the
circumstances (such determination to be evidenced in a resolution, a certified
copy of which shall be mailed to the holders of the Preferred Stock).
(v) Notwithstanding anything herein to the
contrary, no adjustment under this Section 8(c) need be made to the Conversion
Price unless such adjustment would require an increase or decrease of at least
1% of the Conversion Price then in effect. Any lesser adjustment shall be
carried forward and shall be made at the time of and together with the next
subsequent adjustment, which, together with any adjustment or adjustments so
carried forward, shall amount to an increase or decrease of at least 1% of such
Conversion Price.
(vi) The Company reserves the right to make such
reductions in the Conversion Price in addition to those required in the
foregoing provisions as it considers advisable in order that any event treated
for Federal income tax purposes as a dividend of stock or stock rights will not
be taxable to the recipients. In the event the Company elects to make such a
reduction in the Conversion Price, the Company will comply with the requirements
of Rule 14e-1 under the Exchange Act, and any other securities laws and
regulations thereunder if and to the extent that such
<PAGE>
18
laws and regulations are applicable in connection with the reduction of the
Conversion Price.
(d) If the Company shall take a record of the holders of
its Common Stock for the purpose of entitling them to receive a dividend or
other distribution, and shall thereafter and before the distribution to
stockholders thereof legally abandon its plan to pay or deliver such dividend or
distribution, then thereafter no adjustment in the Conversion Price then in
effect shall be required by reason of the taking of such record.
(e) Upon any increase or decrease in the Conversion
Price, then, and in each such case, the Company promptly shall deliver to each
registered holder of Preferred Stock a certificate signed by an authorized
officer of the Company, setting forth in reasonable detail the event requiring
the adjustment and the method by which such adjustment was calculated and
specifying the increased or decreased Conversion Price then in effect following
such adjustment.
(f) No fractional shares or scrip representing
fractional shares of Common Stock shall be issued upon the conversion of any
shares of Preferred Stock. If more than one share of Preferred Stock shall be
surrendered for conversion at one time by the same holder, the number of full
shares of Common Stock issuable upon conversion thereof shall be computed on the
basis of the aggregate Liquidation Preference of the shares of Preferred Stock
so surrendered. If the conversion of any share or shares of Preferred Stock
results in a fraction, an amount equal to such fraction multiplied by the last
reported sale price of the Common Stock on the AMEX at the close of business on
the trading day next preceding the day of conversion shall be paid to such
holder in cash by the Company.
(g) In case of any capital reorganization or
reclassification or other change of outstanding shares of Common Stock (other
than a change in par value, or from par value to no par value, or from no par
value to par value), or in case of any consolidation or merger of the Company
with or into another Person (other than a consolidation or merger in which
the Company is the resulting or surviving Person and which does not result in
any reclassification or change of outstanding Common Stock), or in case of
any sale or other disposition to another Person of all or substantially all
of the assets of the Company (other than the sale, transfer, assignment or
distribution of shares of capital stock or assets of Snapper and/or Landmark
in one transaction or a series of related transactions) (any of the
foregoing, a "TRANSACTION"), each share of Preferred Stock then outstanding
shall, without the consent of any holder of Preferred Stock, become
convertible only into the kind and amount of shares of stock or other
securities (of the Company or another issuer) or property or cash receivable
upon such Transaction by a holder of the number of shares of Common Stock
into which such share of Preferred Stock could have been converted
immediately prior to such
<PAGE>
19
Transaction after giving effect to any adjustment event. The provisions of this
Section 8(g) and any equivalent thereof in any such certificate similarly shall
apply to successive Transactions. The provisions of this Section 8(g) shall be
the sole right of holders of Preferred Stock in connection with any Transaction
and such holders shall have no separate vote thereon.
(h) In the case of any distribution by the Company to
its stockholders of substantially all of its assets (other than a sale,
transfer, assignment or distribution of shares of capital stock or assets of
Snapper and/or Landmark in one transaction or a series of related
transactions), each holder of Preferred Stock will participate PRO RATA in
such distribution based on the number of shares of Common Stock into which
such holders' shares of Preferred Stock would have been convertible
immediately prior to such distribution.
(i) The Company shall at all times reserve and keep
available for issuance upon the conversion of the Preferred Stock, such number
of its authorized but unissued shares of Common Stock as will from time to time
be sufficient to permit the conversion of all outstanding shares of Preferred
Stock, and shall take all action required to increase the authorized number of
shares of Common Stock if at any time there shall be insufficient authorized but
unissued shares of Common Stock to permit such reservation or to permit the
conversion of all outstanding shares of Preferred Stock.
(j) The issuance or delivery of certificates for Common
Stock upon the conversion of shares of Preferred Stock shall be made without
charge to the converting holder of shares of Preferred Stock for such
certificates or for any tax in respect of the issuance or delivery of such
certificates or the securities represented thereby, and such certificates shall
be issued or delivered in the respective names of, or in such names as may be
directed by, the holders of the shares of Preferred Stock converted; PROVIDED,
HOWEVER, that the Company shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
such certificate in a name other than that of the holder of the shares of
Preferred Stock converted, and the Company shall not be required to issue or
deliver such certificate unless or until the Person or Persons requesting the
issuance or delivery thereof shall have paid to the Company the amount of such
tax or shall have established to the reasonable satisfaction of the Company that
such tax has been paid.
9. TRANSFER AGENT AND REGISTRAR. The duly appointed transfer agent
and registrar (the "TRANSFER AGENT") for the Preferred Stock shall be
ChaseMellon Shareholder Services, L.L.C. The Company may, in its sole
discretion, remove the Transfer Agent with 10 days' prior written notice to the
Transfer Agent; PROVIDED, that the Company shall appoint a successor Transfer
Agent who shall accept such appointment prior to the effectiveness of such
removal.
<PAGE>
20
10. OTHER PROVISIONS.
10.1 With respect to any notice to a holder of shares of
Preferred Stock required to be provided hereunder, neither failure to mail such
notice, nor any defect therein or in the mailing thereof, to any particular
holder shall affect the sufficiency of the notice or the validity of the
proceedings referred to in such notice with respect to the other holders or
affect the legality or validity of any distribution, rights, warrant,
reclassification, consolidation, merger, conveyance, transfer, dissolution,
liquidation or winding up, or the vote upon any such action. Any notice which
was mailed in the manner herein provided shall be conclusively presumed to have
been duly given whether or not the holder receives the notice.
10.2 Shares of Preferred Stock issued and reacquired will be
retired and canceled promptly after reacquisition thereof and, upon compliance
with the applicable requirements of Delaware law, have the status of authorized
but unissued shares of preferred stock of the Company undesignated as to series
and may with any and all other authorized but unissued shares of preferred stock
of the Company be designated or redesignated and issued or reissued, as the case
may be, as part of any series of preferred stock of the Corporation, except that
any issuance or reissuance of shares of Preferred Stock must be in compliance
with this Certificate of Designation.
10.3 The shares of Preferred Stock shall be issuable in whole
shares.
10.4 All notices periods referred to herein shall commence on
the date of the mailing of the applicable notice.
IN WITNESS WHEREOF, the Company has caused this certificate to be
signed and attested this 16th day of September, 1997.
METROMEDIA INTERNATIONAL GROUP,
INC.
By:
-------------------------------------------------
Name: Stuart Subotnick
Title: President and Chief Executive Officer
Attest:
- ----------------------------
Name: Arnold L. Wadler
Title: Secretary
