MGM Holdings Corp, et al. – ‘SC 13D/A’ on 12/15/94 re: Carolco Pictures Inc – EX-99

As of:  Thursday, 12/15/94   ·   Accession #:  950127-94-40   ·   File #:  5-38054

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Amendment to General Statement of Beneficial Ownership   —   Schedule 13D
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D/A    Amendment #3 to Schedule 13D                          12     50K 
 3: EX-99       Joint Filing Statement (Exhibit H)                     1      6K 
 2: EX-99       Termination Agreement (Exhibit G)                      4     20K 

EX-99   —   Termination Agreement (Exhibit G)

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TERMINATION AGREEMENT 

 This Termination Agreement (the "Agreement") is entered into as of this
13th day of October, 1994, by and among LIVE Entertainment Inc., a Delaware     
corporation ("LIVE"), Carolco Acquisition Corp., a Delaware corporation and a   
wholly-owned subsidiary of LIVE ("CAC"), and Carolco Pictures Inc., a Delaware  
corporation ("Carolco").                                                        

W I T N E S S E T H 

  WHEREAS, the parties hereto have entered into that certain Agreement and
Plan of Merger dated as of August 10, 1994 (the "Merger Agreement");            

   WHEREAS, Section 11.1(a) of the Merger Agreement provides that the Merger
Agreement may be terminated and the proposed merger contemplated (the           
"Merger") thereby abandoned by mutual consent of LIVE and Carolco, as           
authorized by their respective Boards of Directors; and                         

WHEREAS, the Boards of Directors of LIVE and Carolco deem it desirable
and in the best interest of their respective corporations to terminate the      
Merger Agreement and abandon the Merger.                                        

   NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants, and agreements herein contained, the parties hereto      
hereby agree as follows:                                                        

  1.   TERMINATION.  Upon execution of this Agreement, each of the parties
hereto agrees that (i) the Merger Agreement shall, automatically and without    
further action, terminate and be void and of no further force and effect, (ii)  
all rights and obligations of the parties under the Merger Agreement shall be   
terminated, (iii) the Merger shall be abandoned, and (iv) notwithstanding       
anything to the contrary contained in the Merger Agreement, there shall be no   
further liability thereunder on the part of Carolco, LIVE or CAC or their       
respective officers or directors, except as set forth herein.                   

2.   FEES AND EXPENSES.  All costs and expenses incurred in connection
with the Merger Agreement and the transactions contemplated thereby shall be    
paid by the party which incurred such costs and expenses, except that the       
legal fees and expenses incurred through the date of this Agreement in          
connection with the preparation of the draft registration statement and proxy   
statement/prospectus relating to the Merger will be shared equally by LIVE and  
Carolco.  Promptly after execution hereof, LIVE and Carolco shall agree on the  
total amount of such fees and expenses.                                         

3.   CONFIDENTIALITY; RETURN OF DOCUMENTS.  Notwithstanding the       
termination of the Merger Agreement, the parties hereto agree to continue to    
abide by and be bound by the provisions concerning confidentiality of non-      
public information and return of documents set forth in Section 9.5 of the      
Merger Agreement.                                                               

4.   REPRESENTATIONS AND WARRANTIES.  Each of LIVE and CAC hereby,    
jointly and severally, represent and warrant to Carolco, and Carolco hereby     
represents and warrants to LIVE and CAC, as follows:                            

  (a)  Such corporation is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, has the  
requisite corporate power and authority to own its property and carry on its    

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business as now being conducted, and is duly qualified to do business, and is   
in good standing, in California.                                                

(b)  Such corporation has all requisite corporate power and 
authority to enter into and execute this Agreement and to consummate the        
transactions contemplated hereby.  The execution and delivery of this           
Agreement by such corporation, the performance by such corporation of its       
obligations hereunder, and the consummation by such corporation of the          
transactions contemplated hereby have been duly authorized by all necessary     
corporate action on the part of such corporation including, without             
limitation, the approval of its Board of Directors, and no other act or         
proceeding on the part of such corporation is necessary to authorize the        
execution, delivery and consummation of this Agreement or the transactions      
contemplated hereby.                                                            

        (c)  This Agreement has been duly and validly executed and delivered
by such corporation and (assuming the valid authorization, execution and        
delivery of this Agreement by the other parties hereto) constitutes a valid     
and binding obligation of such corporation enforceable against such             
corporation in accordance with its terms, except (i) as its obligations may be  
affected by bankruptcy, insolvency, reorganization, moratorium or similar       
laws, or by equitable principles relating to or limiting creditors' rights      
generally, and (ii) that the remedies of specific performance, injunction and   
other forms of equitable relief are subject to certain tests of equity          
jurisdiction, equitable defenses and the discretion of the court before which   
any proceeding therefor may be brought.                                         

     (d)  The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance with the    
provisions hereof will not, breach, conflict with, or result in any violation   
of, any provision of the Certificate of Incorporation or Bylaws of such         
corporation                                                                     

        (e)  Such corporation has not assigned or in any other way conveyed,
transferred or encumbered all or any portion of any Claims (as defined in       
Section 5 below) covered by the Mutual Releases set forth in Section 5 below.   

5.   MUTUAL RELEASE.                                                  

      (a)  As a condition of the termination of the Merger Agreement and
as a material inducement for the parties hereto to enter into this Agreement:   

          (i)  Each of LIVE and CAC, for themselves, their successors,
    agents, affiliates and assigns, hereby fully and forever waives,
 remises, releases, and discharges Carolco and its affiliates,
successors and assigns, agents, employees, consultants,     
    representatives, stockholders, officers, and directors, past and
       present, from any and all rights, obligations, claims, liabilities,
losses, damages, causes of action, actions, suits, demands, 
   judgments, choses in action, residual claims or other claims or
     actions of any kind (collectively, "Claims"), if any, LIVE or CAC
      has had, may have had, now has or hereafter can, shall or may have
        against Carolco, of any kind or nature, by reason of or with respect
to (a) the Merger Agreement, (b) the Merger, (c) any and all
       documents, filings, announcements or releases related to the Merger
        Agreement or the Merger, and (d) any alleged third-party beneficiary
rights arising from the Merger Agreement or the Merger      
  (collectively, (a), (b), (c) and (d) are sometimes referred to
herein as the "Released Matters"); and                      

          (ii) Carolco, for itself, its successors, agents, affiliates
        and assigns, hereby fully and forever waives, remises, releases, and
       discharges LIVE and CAC and their respective affiliates, successors
 and assigns, agents, employees, consultants, representatives,
     stockholders, officers, and directors, past and present, from any
      and all Claims Carolco has had, may have had, now has or hereafter

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      can, shall or may have against LIVE or CAC, of any kind or nature,
by reason of or with respect to the Released Matters.       

        (b)  Notwithstanding anything to the contrary contained in (a)(i) or
(a)(ii) above, the Released Matters shall not include any Claims in connection  
with or arising out of the litigation currently pending in the Court of         
Chancery in the State of Delaware, known as Ballan v. F.J. Afman, et al.,       
Civil Action No. 13435.                                                         

       (c)  Each of LIVE, CAC and Carolco acknowledges and agrees that the
releases set forth in (a)(i) and (a)(ii) above (the "Mutual Releases") apply    
to all claims for losses, whether the losses are known or unknown, foreseen or  
unforeseen, patent or latent.  Each of LIVE, CAC and Carolco expressly          
understands and acknowledges that Section 1542 of the Civil Code of California  
provides as follows:                                                            

"A general release does not extend to claims which the      
creditor does not know or suspect to exist in his favor at  
the time of executing the release which, if known by him,   
must have materially affected his settlement with the       
debtor."                                                    

     (d)  Each of LIVE, CAC and Carolco hereby specifically waives any
rights it may have under Section 1542 of the Civil Code of California to the    
extent such section may be deemed applicable to such party, as well as the      
provisions of all comparable, equivalent, or similar statutes and principles    
of common law of California, Delaware or any other jurisdiction and             
acknowledges and agrees that this waiver is an essential term of this           
Agreement.  Each of LIVE, CAC and Carolco has been advised by legal counsel     
and understands and acknowledges the significance and consequences of the       
Mutual Releases and the specific waiver of Section 1542 and similar laws.       
Each of LIVE, CAC and Carolco understands and acknowledges that the             
significance and consequence of the waiver of Section 1542 and similar laws     
is, among other things, that even if it should suffer additional losses         
arising out of the Released Matters, it will not be able to make any claim for  
such losses.  Furthermore, each of LIVE, CAC and Carolco acknowledges that it   
intends these consequences even as to claims for losses that may exist as of    
the date of this Agreement but which it does not know exist, and which, if      
known, would materially affect its decision to enter into the Mutual Releases,  
regardless of whether its lack of knowledge is the result of oversight, error,  
negligence, or any other cause.                                                 

     (e)  If any term or provision of the Mutual Releases is held by a
court of competent jurisdiction or other authority to be invalid, void or       
unenforceable, (i) the remainder of the terms and provisions of the Mutual      
Releases shall remain in full force and effect and shall in no way be           
affected, impaired or invalidated, and (ii) to the fullest extent possible,     
the provisions of the Mutual Releases (including, without limitation, all       
portions of any section of the Mutual Releases containing such provision held   
to be invalid, illegal or unenforceable that are not themselves invalid,        
illegal or unenforceable) shall be construed so as to give effect to the        
intent manifested by the provision held invalid, illegal or unenforceable;      
provided, however, that LIVE and CAC, on the one hand, and Carolco, on the      
other hand, acknowledge and agree that the releases set forth in (a)(i) and     
(a)(ii) above are mutual, and in no event shall either the release set forth    
in (a)(i) or the release set forth in (a)(ii) be construed in a manner broader  
or more limited than the other release.                                         

6.   GOVERNING LAW.  This Agreement and the rights of the parties     
hereunder shall be governed by, and interpreted in accordance with, the laws    
of the State of Delaware, regardless of the laws of choice of law, or           
conflicts of law, of that or any other jurisdiction.                            

7.   COUNTERPARTS.  This Agreement may be executed in any number of   
counterparts, each of which shall be deemed an original; but such counterparts  
together shall constitute but one and the same instrument.                      

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  8.   ENTIRE AGREEMENT.  This Agreement contains the entire understanding
of the parties hereto with respect to the subject matter contained herein.      
This Agreement supersedes all prior agreements and understandings between the   
parties with respect to such subject matter.                                    

   9.   ADDITIONAL ASSURANCES.  The parties hereto hereby expressly agree to
sign and execute any and all additional documents and to use their best         
efforts to take any other actions as may be reasonably necessary or             
appropriate to carry out the intent of this Agreement.                          

 IN WITNESS WHEREOF, LIVE, CAC and Carolco have caused this Agreement to
be signed by their respective officers thereunto duly authorized all as of the  
date first written above.                                                       

   LIVE ENTERTAINMENT INC.

By:/s/ Robert P. Denton 
        --------------------------
Name:  Robert Denton
  Title:  Vice President
ATTEST:                                                                         

/s/ Michael J. White                                                            
--------------------------                                                      
Name:  Michael J. White                                                         
Title:  Secretary                                                               

     CAROLCO ACQUISITION CORP.

By:/s/ Steven E. Mangel 
        --------------------------
   Name:  Steven E. Mangel
         Title:  Senior Vice President
ATTEST:                                                                         

/s/ Michael J. White                                                            
--------------------------                                                      
Name:  Michael J. White                                                         
Title:  Secretary                                                               

 CAROLCO PICTURES INC.

  By:/s/ Robert W. Goldsmith
        --------------------------
      Name:  Robert W. Goldsmith
         Title:  Senior Vice President
ATTEST:                                                                         

/s/ William Shpall                                                              
--------------------------                                                      
Name:  William Shpall                                                           
Title:  Executive Vice President                                                

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘SC 13D/A’ Filing		Date		First		Last			Other Filings
Filed on:		12/15/94
		8/10/94		1					8-K
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