Form SC 13D/A MGM Resorts Internationa Filed by: TRACINDA CORP

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 13D/A

Under Rule 13d-1 of the Securities Exchange Act of 1934

(Amendment No. 44)

 

 

MGM Resorts International

(Name of Issuer)

Common Stock, par value $.01 per share

(Title of Class of Securities)

552953 10 1

(CUSIP Number)

Anthony L. Mandekic

Tracinda Corporation

6725 Via Austi Parkway, Suite 370

Las Vegas, NV 89119

(702) 978-6161

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

June 13, 2016

(Date of Event which Requires Filing of this Statement)

 

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.  ¨

 

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

 

 

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

---

CUSIP No. 552953 10 1

 

1.		Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only).   Tracinda Corporation
2.		Check the Appropriate Box if a Member of a Group (See Instructions) (a)  ¨        (b)  ¨
3.		SEC Use Only ............................................................................................................................
4.		Source of Funds (See Instructions)   N/A
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)   ¨
6.		Citizenship or Place of Organization   Nevada
Number of Shares Beneficially Owned by Each Reporting Person With				7.		Sole Voting Power   0 shares
				8.		Shared Voting Power   91,173,744 shares
				9.		Sole Dispositive Power   0 shares
				10.		Shared Dispositive Power   91,173,744 shares
11.		Aggregate Amount Beneficially Owned by Each Reporting Person   91,173,744 shares
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
13.		Percent of Class Represented by Amount in Row (11)   16.1%*
14.		Type of Reporting Person (See Instructions)   CO

 

*	Percentage calculated on the basis of 565,153,753 shares of common stock issued and outstanding as of May 3, 2016, based upon information contained in the Company’s Quarterly Report Form 10-Q for the period ended March 31, 2016.

---

CUSIP No. 552953 10 1

 

1.		Names of Reporting Persons. I.R.S. Identification Nos. of above persons (entities only).   Anthony L. Mandekic
2.		Check the Appropriate Box if a Member of a Group (See Instructions) (a)  ¨        (b)  ¨
3.		SEC Use Only ............................................................................................................................
4.		Source of Funds (See Instructions)   N/A
5.		Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)   ¨
6.		Citizenship or Place of Organization   United States
Number of Shares Beneficially Owned by Each Reporting Person With				7.		Sole Voting Power   53,357* shares
				8.		Shared Voting Power   91,173,744 shares
				9.		Sole Dispositive Power   53,357* shares
				10.		Shared Dispositive Power   91,173,744 shares
11.		Aggregate Amount Beneficially Owned by Each Reporting Person   91,227,101 shares
12.		Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)   ¨
13.		Percent of Class Represented by Amount in Row (11)   16.1%*
14.		Type of Reporting Person (See Instructions)   IN

 

*	Percentage calculated on the basis of 565,153,753 shares of common stock issued and outstanding as of May 3, 2016, based upon information contained in the Company’s Quarterly Report Form 10-Q for the period ended March 31, 2016.

---

This Amendment No. 44 amends and supplements the Statement on Schedule 13D filed by Tracinda Corporation, a Nevada corporation (“Tracinda”), and Mr. Kirk Kerkorian, the sole shareholder of Tracinda, with the Securities and Exchange Commission (the “SEC”) on August 20, 1991, as amended on June 8, 1992, October 16, 1992, February 22, 1994, March 11, 1994, November 20, 1995, January 24, 1997, September 25, 1997, August 3, 1998, August 21, 1998, September 1, 1998, June 11, 1999, November 16, 1999, April 18, 2000, February 9, 2001, May 21, 2001, November 2, 2001, May 21, 2007, June 20, 2007, August 7, 2007, August 22, 2007, March 5, 2008, July 8, 2008, September 3, 2008, October 16, 2008, February 19, 2009, May 18, 2009, May 20, 2009, September 9, 2009, October 20, 2009, April 16, 2010, October 13, 2010, October 18, 2010 (two filings), October 21, 2010, November 12, 2010, January 28, 2011, April 20, 2011, August 18, 2011, February 28, 2012, April 4, 2012, March 14, 2013, September 18, 2013 and June 16, 2015, and as amended by that certain Schedule TO-T filed by Tracinda and Mr. Kerkorian with the SEC on December 4, 2006, as amended (as so amended, the “Schedule 13D”), relating to the common stock, $.01 par value per share (“Common Stock”), of MGM Resorts International, a Delaware corporation (the “Company”). Capitalized terms used herein and not otherwise defined in this Amendment No. 44 shall have the meaning set forth in the Schedule 13D.

 

Item 2.

Identity and Background

Item 2 of the Schedule 13D is hereby amended to add the following information to the following information:

The business address of Tracinda and Mr. Mandekic is 6725 Via Austi Parkway, Suite 370, Las Vegas, NV 89119.

 

Item 4.

Purpose of Transaction.

Item 4 of the Schedule 13D is hereby amended to add the following information:

On June 13, 2016, Tracinda entered into a Long Form ISDA Master Agreement with UBS AG (“UBS”) pursuant to which it sold, on June 13, 2016, an aggregate of 20,000,000 European style covered call options with respect to an equivalent number of shares of Common Stock (the “Covered Call Options”). The Covered Call Options, which were sold for $2.12 per option and have an exercise price of $23.9363 per share, are set to mature at a rate of 2,000,000 shares per day, for ten trading days, commencing on February 7, 2017. Tracinda anticipates that if the current market price of the Common Stock exceeds the exercise price (an “in-the-money” price), the Covered Call Options will be settled by the delivery of underlying Common Stock and will not be settled in cash. Tracinda has separately entered into a lock-up agreement with UBS AG that restricts Tracinda’s ability to sell, for a period of 60 trading days following the trade date of the Covered Call Options, any residual shares beyond the number of underlying shares referenced by the Covered Call Options. Tracinda has separately entered into a Pledge Agreement with UBS, pursuant to which Tracinda will deliver to UBS 20,000,000 shares of Common Stock as collateral to secure its obligations under the Covered Call Options. This summary of the Covered Call Options is qualified by reference to the call option documents, forms of which are filed as Exhibits to this Schedule 13D, all of which are incorporated into this filing by reference.

Tracinda continues to believe that there is substantial value in the assets of MGM Resorts and that the company is a good long term investment. Tracinda is evaluating options for an orderly disposition of its position in the Common Stock, as directed in Kirk Kerkorian’s will. The closing of the Covered Call Option agreements described above, the authority for which at all times will rest with the Covered Call Option purchasers, may result in a reduction in Tracinda’s beneficial ownership of the Common Stock. Tracinda is subject to no fixed timetable for the disposition of its position in the Common stock.

---

Item 5.

Interests in Securities of the Issuer.

Item 5 of the Schedule 13D is hereby amended to add the following information:

(a)-(b) The following table sets forth information with respect to the Company’s securities beneficially owned, as of the date hereof, by each person or entity named in Item 2 of the Schedule 13D. Mr. Kerkorian has sole voting and investment power with respect to the shares held by the Filing Persons.

 

Reporting Persons		Number of Share Beneficially Owned with Sole Power to Vote or to Direct the Vote or Sole Power to Dispose or to Direct the Disposition		Number of Share Beneficially Owned with Share Power to Vote or to Direct the Vote or Shared Power to Dispose or to Direct the Disposition		Aggregate Number of Shares Beneficially Owned		Percentage of Class Beneficially Owned (1)
Tracinda Corporation		-0-		-0-		91,173,744		16.1%
Anthony L. Mandekic		53,357 (2)		91,173,744		91,227,101		16.1%

 

(1)	Percentage calculated on the basis of 565,153,753 shares of common stock issued and outstanding as of May 3, 2016, based upon information contained in the Company’s Quarterly Report Form 10-Q for the period ended March 31, 2016.

(2)	Includes 40,000 shares subject to stock appreciation rights exercisable within 60 days. Mr. Mandekic has sole voting and investment power with respect to the shares held by him, subject to applicable community property laws.

(c) Except as set forth in this Schedule 13D, within the last 60 days, no reportable transactions were effected by any Reporting Person.

(d) & (e) Not applicable.

 

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

Item 6 of the Schedule 13D is hereby amended to add the following information:

The disclosure set forth in Item 4 of this Amendment No. 44 is incorporated herein by this reference.

 

Item 7.

Exhibits.

 

99.1		Covered Call Confirmation Agreement, dated June 13 ,2016, between UBS Securities LLC and UBS AG, London Branch, on the one hand, and Tracinda Corporation, on the other.
99.2		Account Control Agreement, dated June 13, 2016, among UBS AG, London Branch, UBS Securities LLC and Tracinda Corporation.
99.3		Power of Attorney, dated June 7, 2016.

---

SIGNATURE

After reasonable inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

June 14, 2016

 

 

*	Power of Attorney filed as Exhibit 99.3 to this Amendment No. 44 to the Schedule 13D.

Exhibit 99.1

EXECUTION VERSION

 

 

		UBS AG
		100 Liverpool Street
		London EC2M 2RH
		Documentation: Tel: +44 207 568 0673
		Fax: +44 207 568 9895/ 9896

 

Date:		June 13, 2016
To:		Tracinda Corporation (“Party B”)
Attention:		Daniel Taylor
From:		UBS AG, LONDON BRANCH (“Party A”)
Re:		Call Option Transaction
		UBS AG, LONDON BRANCH Ref: BKP352STM4384190

 

 

The purpose of this communication (this “Confirmation”) is to confirm the terms and conditions of the above referenced transaction entered into between Party A and Party B on the Trade Date specified below (the “Transaction”). This communication constitutes a “Confirmation” as referred to in the 1992 ISDA Master Agreement published by the International Swaps and Derivatives Association, Inc. (the “ISDA Form”).

The definitions and provisions contained in the 2006 ISDA Definitions (the “2006 Definitions”) and in the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and together with the 2006 Definitions, the “Definitions”), in each case as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between the 2006 Definitions and the Equity Definitions, the Equity Definitions will govern. In the event of any inconsistency between either set of Definitions and this Confirmation, this Confirmation will govern.

This Confirmation evidences a complete binding agreement between you and us as to the terms of the Transaction to which this Confirmation relates. This Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the ISDA Form as if we had executed an agreement in such form (but without any Schedule except for the election of U.S. Dollars as the Termination Currency and such other elections and modifications detailed herein referring to the ISDA Form) (the “Agreement”) on the Trade Date. In addition, you and we hereby amend the Agreement by making the form of the bilateral form 1994 ISDA Credit Support Annex (to the Schedule to ISDA Agreements Subject to New York Law Only) (the “ISDA Credit Support Annex”) (as amended and supplemented herein) a part of the Agreement. In the event of any inconsistency between the provisions of the ISDA Credit Support Annex or the Agreement and this Confirmation, this Confirmation will prevail. For the avoidance of doubt, the Transaction shall be the only transaction under the Agreement.

The terms of the Transaction are as follows:

General Terms

 

Trade Date:		June 13, 2016 (time of execution available upon request)
Tranches:		This Transaction will be divided into ten (10) individual Tranches, each with the terms set forth in this Confirmation. The payments and deliveries to be made upon settlement of each Tranche will be determined separately for each Tranche as if each Tranche were a separate Transaction under the Agreement having the respective Number of Options and Valuation Date set forth in Schedule A to this Confirmation.
Option Style:		European
Option Type:		Call

---

Seller:		Party B
Buyer:		Party A
Shares:		Common stock of MGM Resorts International (the “Issuer”) (Symbol: MGM)
Number of Options:		For each Tranche, as provided in Schedule A to this Confirmation
Multiplier:		1
Strike Price:		USD23.9363
Premium:		USD42,400,000
Premium Payment Date:		Three Currency Business Days after the Trade Date
Exchange:		New York Stock Exchange
Related Exchange(s):		All Exchanges
Expiration Time:		The Valuation Time
Expiration Date:		The Valuation Date.
Automatic Exercise:		Applicable

Valuation

 

Valuation Time:		The Scheduled Closing Time on the Exchange
Valuation Date:		For each Tranche, as provided in Schedule A to this Confirmation; provided that, if the scheduled Valuation Date for any Tranche is a Disrupted Day, the Valuation Date for such Tranche shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day and is not or is not deemed to be a Valuation Date in respect of any other Tranche; provided further that, if such Valuation Date has not occurred pursuant to this clause as of the eighth Scheduled Trading Day following the last scheduled Valuation Date for this Transaction, then the Calculation Agent shall have the right to declare such Scheduled Trading Day to be the final Valuation Date, in which case the VWAP Price for that eighth Scheduled Trading Day shall be the Calculation Agent’s good faith estimate of the fair market value of a Share as of the Valuation Time on that eighth Scheduled Trading Day or on any subsequent Scheduled Trading Day, as the Calculation Agent shall determine using commercially reasonable means. Notwithstanding the foregoing and anything to the contrary in the Equity Definitions, if a Market Disruption Event occurs on any Valuation Date, the Calculation Agent may determine that such Valuation Date is a Disrupted Day only in part, in which case the Calculation Agent shall make adjustments to the Number of Options for the relevant Tranche for which such day shall be the Valuation Date and shall designate the Scheduled Trading Day determined in the manner described in the immediately preceding sentence as the Valuation Date for the remaining Options for such Tranche. Section 6.6 of the Equity Definitions shall not apply to any Valuation Date.

 

Page 2 of 16

---

Settlement Terms

 

Settlement Method Election:		Applicable; provided that a single Settlement Method shall apply for all Tranches
Electing Party:		Party B
Settlement Method Election Date:		Five Business Days prior to the Expiration Date of the Tranche with the earliest Expiration Date
Default Settlement Method:		Physical
Settlement Currency:		USD
Cash Settlement Payment Date:		Three Currency Business Days after the Valuation Date
Settlement Price:		If Cash Settlement is applicable, means the Relevant Price on each Valuation Date
Relevant Price:		For each Valuation Date, the VWAP Price on such Valuation Date
VWAP Price:		For any Exchange Business Day, the per-Share volume weighted average price based on transactions executed in the United States as displayed under the heading “Bloomberg VWAP” on Bloomberg page “MGM US <equity> AQR” (or any successor thereto) in respect of the period from the scheduled open of trading on the Exchange until the Scheduled Closing Time on such Exchange Business Day or, in the event such price is not so reported on such Exchange Business Day for any reason or is erroneous, as determined by the Calculation Agent. Notwithstanding the foregoing, if (i) any Valuation Date is a Disrupted Day only in part and (ii) the Calculation Agent determines that such Valuation Date shall be the Valuation Date for fewer than the full Number of Options for the Tranche to which such Valuation Date corresponds, then the VWAP Price for such Expiration Date shall be a volume-weighted average price per Share on such Expiration Date, as determined by the Calculation Agent based on such sources as it reasonably deems appropriate, taking into account the nature and duration of the relevant Market Disruption Event.
Share Adjustments
Method of Adjustment:		Calculation Agent Adjustment; provided, however, that (i) Section 11.2(c) of the Equity Definitions is deemed amended by the deletion of the words “(provided that no adjustments will be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Share)” and replacing them with the following: “(and, for the avoidance of doubt, adjustments may be made to account solely for changes in volatility, expected dividends, stock loan rate or liquidity relative to the relevant Shares)”; (ii) Section 11.2(a) of the Equity Definitions is deemed amended by deleting the words “a diluting or concentrative” and replacing them with “an” and adding the following words at the end thereof “or options on such Shares”; (iii) Section 11.2(c) of the Equity Definitions is hereby amended by replacing the words “a diluting or concentrative” with “an”; and (iv) Section 11.2(e)(vii) of the Equity Definitions is hereby amended by deleting the words “a diluting or concentrative” and replacing them with the word “an” and adding the following words at the end thereof “or options on such Shares”.   “Extraordinary Dividend” shall mean any cash dividend or distribution paid in respect of the Shares.

 

Page 3 of 16

---

Extraordinary Events

Consequences of Merger Events

 

Share-for-Share:		Modified Calculation Agent Adjustment
Share-for-Other:		Cancellation and Payment - Calculation Agent Determination
Share-for-Combined:		Component Adjustment
Tender Offer:		Applicable
Consequences of Tender Offers:
Share-for-Share:		Modified Calculation Agent Adjustment
Share-for-Other:		Modified Calculation Agent Adjustment
Share-for-Combined:		Modified Calculation Agent Adjustment
Composition of Combined Consideration:		Not Applicable
Nationalization, Insolvency or Delisting:		Cancellation and Payment - Calculation Agent Determination
Limitation on Certain Adjustments:		Notwithstanding any provision of the Equity Definitions or this Confirmation to the contrary, no adjustment solely to account for changes in volatility, expected dividends, stock loan rate or liquidity relevant to the Shares or to the Transaction as a result of a Potential Adjustment Event or an Extraordinary Event shall increase the Number of Shares for any Tranche. Notwithstanding any provision of the Equity Definitions or this Confirmation to the contrary, if the Calculation Agent determines that no such adjustment that it could make in accordance with the preceding sentence will produce a commercially reasonable result, then the Calculation Agent may notify the parties that the consequence of such event shall be the termination of the Transaction, in which case “Cancellation and Payment” will be deemed to apply and any payment to be made by one party to the other shall be calculated in accordance with Section 12.7 of the Equity Definitions and the Calculation Agent shall determine the amount of such payment as if “Calculation Agent Determination” applied.

Additional Disruption Events

 

Change in Law:		Applicable; provided that Section 12.9(a)(ii) of the Equity Definitions is hereby amended by (A) adding the words “(including, for the avoidance of doubt and without limitation, the adoption or promulgation of new regulations authorized or mandated by existing statute)” after the end of the parenthetical spanning the second and third lines thereof, and (B) adding the words “or hedging,” after the word “performing” in clause (Y) thereto.
Hedging Disruption:		Applicable; provided that: (i) Section 12.9(a)(v) of the Equity Definitions is hereby amended by inserting the following two sentences at the end of such Section: “For the avoidance of doubt, the term “equity price risk” shall be deemed to include, but shall not be limited to, stock price and volatility risk. And, for the further avoidance of doubt, any such transactions or assets referred to in phrases (A) or (B) above must be available on commercially reasonable pricing terms.”; and (ii) Section 12.9(b)(iii) of the Equity Definitions is hereby amended by inserting in the third line thereof, after the words “to terminate the Transaction”, the words “or a portion of the Transaction affected by such Hedging Disruption”.

 

Page 4 of 16

---

Increased Cost of Hedging:		Applicable
Hedging Party:		Party A
Increased Cost of Stock Borrow:		Applicable
Initial Stock Loan Rate:		50 basis points per annum
Loss of Stock Borrow:		Applicable
Maximum Stock Loan Rate:		50 basis points per annum
Determining Party:		Party A
Additional Provisions
Calculation Agent:		Party A
Market Disruption Event:		Section 6.3(a) of the Equity Definitions is hereby amended by (x) deleting the words “during the one hour period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation Time or Knock-out Valuation Time, as the case may be” in clause (ii) thereof and (y) replacing the words “or (iii) an Early Closure.” therein with “(iii) an Early Closure or (iv) a Regulatory Disruption.”   Section 6.3(d) of the Equity Definitions is hereby amended by deleting the remainder of the provision following the term “Scheduled Closing Time” in the fourth line thereof.
Regulatory Disruption:		Party A reasonably concludes, in its sole discretion, that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by Party A), including without limitation in the event of any third-party tender offer, for it to refrain from engaging in market transactions relating to the Shares or to reduce the number or size of any such market transactions.
Role of Agent:		UBS Securities LLC shall act as agent (the “Agent”) for Party A and Party B within the meaning of Rule 15a-6 under the Exchange Act of 1934 in connection with this Transaction. Each party agrees and acknowledges that (i) the Agent acts solely as agent on a disclosed basis with respect to the transactions contemplated hereunder, and (ii) the Agent has no obligation, by guaranty, endorsement or otherwise, with respect to the obligations of either Party A or Party B hereunder. In this regard, each of Party A and Party B acknowledges and agrees to look solely to the other for performance hereunder, and not to the Agent. Party A is not a member of the Securities Investor Protection Corporation (SIPC).
Account Details
Account for payments to Party A:		UBS AG, London Branch
Currency:		USD
Correspondent Bank:		UBS AG, STAMFORD

 

Page 5 of 16

---

Swift Address:		UBSWUS33XXX
Favour:		UBS AG, LONDON BRANCH
Swift Address:		UBSWGB2L
Account No:		101-WA-140007-000
Account for payments to Party B:		Party B to advise

Relationship Between Parties

Each party will be deemed to represent to the other party on the date on which it enters into this Transaction that (in the absence of any written agreement between the parties which expressly imposes affirmative obligations to the contrary for this Transaction):

(A) Non-Reliance. It is acting for its own account, and it has made its own independent decision to enter into this Transaction and as to whether this Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into this Transaction, it being understood that information and explanations related to the terms and conditions of this Transaction will not be considered investment advice or a recommendation to enter into this Transaction. No communication (written or oral) received from the other party will be deemed to be an assurance or guarantee as to the expected results of this Transaction.

(B) Assessment And Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of this Transaction. It is also capable of assuming, and assumes, the risks of this Transaction.

(C) Status Of The Parties. The other party is not acting as a fiduciary for or an adviser to it in respect of this Transaction.

 

Non-Reliance:		Applicable
Agreements and Acknowledgements
Regarding Hedging Activities:		Applicable
Additional Acknowledgements:		Applicable

Additional Modifications to and Elections under the ISDA Form:

 

A.	Governing Law and Consent to Jurisdiction:

The Transaction will be governed by and construed in accordance with the laws of New York (without reference to choice of law doctrine). Solely as between the parties hereto, and relating solely to matters arising concerning this Transaction, each party irrevocably submits to the non-exclusive jurisdiction of the courts of the state of New York and the United States District Court located in the Borough of Manhattan in the City of New York, and waives any objection which it may have at any time to the laying of venue of any proceedings concerning this Transaction brought in such court, waives any claim that such proceedings have been brought in an inconvenient forum and further waives the right to object that such court does not have jurisdiction over any party.

 

B.	Representations and Warranties:

 

(i)	Party A and Party B each hereby represents, warrants and agrees as follows:

 

(a)

it is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing;

 

Page 6 of 16

---

(b)

it has the corporate power to execute and deliver this Confirmation and to perform its obligations under this Confirmation and the Transaction evidenced hereby;

 

(c)

such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgement of any court or other agency of government binding upon it or any material contract binding on or affecting it or any of its assets;

 

(d)

all governmental and other consents that are required to have been obtained by it with respect to this Confirmation and the Transaction evidenced hereby have been obtained and are in full force and effect and all material conditions of any such consents have been complied with;

 

(e)

its obligations under this Confirmation and the Transaction evidenced hereby constitute its legal, valid and binding obligations, enforceable in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law));

 

(f)

it is not required by any applicable law, as modified by the practice of any relevant governmental revenue authority, of any relevant jurisdiction to make any deduction or withholding for or on account of any tax from any payment to be made by it to the other party under this Confirmation and the Transaction evidenced hereby;

 

(g)

its payment obligations hereunder rank and will rank at all times at least pari passu in all respects with all of its other unsecured obligations (except for those which are preferred by operation of law);

 

(h)

it is entering into this Confirmation and the Transaction evidenced hereby as principal (and not as agent or in any other capacity, fiduciary or otherwise);

 

(i)

each party makes the following representations, warranties and covenants with respect to the Transaction:

 

(I)

each party is entering into the Transaction for its own account as principal, and not with a view to, or for, resale, distribution or fractionalization thereof, in whole or in part;

 

(II)

each party acknowledges its understanding that the offer and sale of the Transaction with the other party is intended to be exempt from registration under the United States Securities Act of 1933, as amended (the “Securities Act”), by virtue of Section 4(a)(2) of the Securities Act. In furtherance thereof, each party represents and warrants to the other party that (i) it has the financial ability to bear the economic risk of its investment, including a loss of its entire investment, (ii) it is an “accredited investor” as that term is defined under Regulation D under the Securities Act, (iii) it has the knowledge and experience of investing in instruments similar to the Transaction as to be capable of evaluating the risks and merits of the Transaction and has, or has had an opportunity to request, such information as it deemed necessary to make such evaluation, and (iv) it has had access to such information regarding the Transaction and the other party as it requested; and

 

(III)

each party understands that the Transaction has not been, and is not intended to be, registered under the Securities Act or under the securities laws of certain states and, therefore, cannot be resold, pledged, assigned or otherwise disposed of if an exemption from such registration is not available. Neither party is obliged to register the Transaction or to assist the offeree in complying with any exemption from registration under the Securities Act or state securities laws;

the representations, warranties and covenants set forth in this clause (i) will be correct and complied with in all respects at all times so long as the parties continue to have obligations and duties to each other hereunder as if repeated then, by reference to then existing circumstances;

 

(j)

this Transaction is a “securities contract” as defined in Section 741(7) of the Bankruptcy Code and a “swap agreement” as defined in Section 101(53B) of the Bankruptcy Code, and the parties hereto intend that Party A be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g), 546(j), 555, and 560 of the Bankruptcy Code; and

 

Page 7 of 16

---

(k)

the parties intend that this Confirmation constitutes a “binding commitment” as described in the letter dated December 14, 1999 submitted by Robert W. Reeder and Alan L. Beller to Michael Hyatte of the staff of the Securities and Exchange Commission (the “Staff”) to which the Staff responded in an interpretative letter dated December 20, 1999 (the “1999 Interpretive Letter”) or a “contract” as described in the letter dated November 30, 2011 submitted by Robert T. Plesnarski and Glen A. Rae to Thomas Kim of the Staff to which the Staff responded in an interpretive letter dated December 1, 2011 (the “2011 Interpretive Letter” and, together with the 1999 Interpretive Letter, the “Interpretive Letters”).

 

(ii)

Party A hereby further represents, warrants and agrees that Party A will conduct its hedging activity in accordance with the Interpretive Letters, it being understood that Party A will introduce into the public market a quantity of securities of the same class equal to the maximum number of Shares deliverable on settlement of this Transaction in a manner consistent with the manner-of-sale conditions described in Rule 144(f) and (g) under the Securities Act.

 

(iii)

Party B hereby further represents, warrants and agrees as follows:

 

(a)

Party B is not aware of any material non-public information or unpublished price sensitive information with respect to the Shares that, under applicable securities laws, it would have to disclose before effecting a purchase or sale of the Shares;

 

(b)

Party B does not know or have any reason to believe that the Issuer has not complied with the reporting requirements contained in Rule 144(c)(1) under the Securities Act;

 

(c)

on the date hereof, Party B shall file, or shall cause to be filed, in the manner contemplated by Rule 144(h) under the Securities Act, a notice on Form 144 relating to the transactions contemplated hereby in form and substance acceptable to Party A;

 

(d)

Party B acknowledges that:

 

(I)

during the term of the Transaction, Party A and its affiliates may buy or sell Shares or other securities or buy or sell options or futures contracts or enter into swaps or other derivative securities in order to establish, adjust or unwind its hedge position with respect to the Transaction;

 

(II)

Party A and its affiliates may be active in the market for the Shares other than in connection with hedging activities in relation to this Transaction;

 

(III)

any market activities of Party A and its affiliates with respect to the Shares may affect the market price and volatility of the Shares, as well as the Relevant Price, each in a manner that may be adverse to Party B;

 

(e)

Party B is not relying, and has not relied, upon Party A or any of its affiliates with respect to the legal, accounting, tax or other implications of entering into this Transaction. In addition, Party B has conducted its own analysis of the legal, accounting, tax and other implications of entering into this Transaction. Counterparty further acknowledges and agrees that neither Party A nor any of its affiliates have acted as its advisor in any capacity in connection with this Transaction;

 

(f)

Party B is not, and after giving effect to application of the Premium will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;

 

(g)

without limiting any representation contained in Section 3(a)(iii) of the Agreement or elsewhere in this Confirmation, Party B represents that the execution, delivery and performance of this Confirmation and any other documentation relating to this Confirmation to which it is a party do not violate or conflict with any of the terms or provisions of any stockholders’ agreement, lockup agreement, registration rights agreement or co-sale agreement binding on Party B or affecting Party B or any of its assets;

 

(h)

(I) on or prior to the Trade Date, Party B shall deliver to Party A or its designee as Posted Collateral (as defined in the ISDA Credit Support Annex) a number of Shares equal to the aggregate Number of Shares for all Tranches, free and clear of all liens, in book-entry form through the facilities of The Depositary Trust Company; (II) with respect to such Shares, Party B’s holding period (calculated in accordance with Rule 144(d) under the Securities Act) commenced on February 19, 1988; and (III) such Shares are not, and will not at any time prior to the Expiration Date of the Tranche with the latest Expiration Date be, subject to any Transfer Restriction (other than (a) on account of the fact

 

Page 8 of 16

---

that Party B is an affiliate of the Issuer for purposes of Rule 144 under the Securities Act or (b) pursuant to applicable gaming regulations), where for such purpose “Transfer Restriction” means any condition to or restriction on the ability of the holder thereof to sell, assign or otherwise transfer such Shares or to enforce the provisions thereof or of any document related thereto whether set forth in such Shares or in any document related thereto, including without limitation (w) any requirement that any sale, assignment or other transfer or enforcement of such Shares be consented to or approved by any person, including without limitation the Issuer, (x) any limitations on the type or status, financial or otherwise, of any purchaser, pledgee, assignee or transferee of such Shares, (y) any requirement of the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document of any person to the Issuer or any registrar or transfer agent for such Shares prior to the sale, pledge, assignment or other transfer or enforcement of such Shares and (z) any registration or qualification requirement or prospectus delivery requirement for such Shares pursuant to any federal, state or foreign securities law (including without limitation any such requirement arising under the Securities Act);

 

(i)

from the date that is three months prior to the Trade Date until and including the date that is 60 Scheduled Trading Days after the Trade Date, and during the period from and including the date that is 30 Scheduled Trading Days prior to the Expiration Date for the Tranche with the earliest Expiration Date to and including the date that is 30 Scheduled Trading Days after the Expiration Date for the Tranche with the latest Expiration Date, neither Party B nor any affiliate of Party B nor any person who would be considered to be the same “person” as Party B or “act[ing] in concert” with Party B (as such terms are used in clauses (a)(2) and (e)(3)(vi) of Rule 144 under the Securities Act) has sold or will, without the written consent of Party A, sell, or hedge (through swaps, options, short sales or otherwise) any long position in, any Shares; Party B has not solicited or arranged for the solicitation of, and will not solicit or arrange for the solicitation of, orders to buy Shares in anticipation of or in connection with any sales of Shares that Party A (or an affiliate of Party A) may effect in establishing its initial hedge position with respect to the Transaction; Party B has not made or arranged for, and will not make or arrange for, any payment to any person in connection with any sales of Shares that Party A (or an affiliate of Party A) may effect in establishing its initial hedge position with respect to the Transaction; for the purposes of this clause (i), Shares shall be deemed to include securities convertible into or exchangeable or exercisable for Shares;

 

(j)

Party B will not sell any call option or purchase any put option on any Shares or enter into any substantially similar transaction with respect to Shares, in each case, with an exercise date falling within the period from and including the date that is 30 Scheduled Trading Days prior to the Expiration Date for the Tranche with the earliest Expiration Date to and including the date that is 30 Scheduled Trading Days after the Expiration Date for the Tranche with the latest Expiration Date;

 

(k)

none of the transactions contemplated herein will violate any corporate policy of the Issuer or other rules or regulations of the Issuer applicable to Party B or its affiliates, including, but not limited to, the Issuer’s black-out policy;

 

(l)

Party B is and, after giving effect to the Transaction, will be in compliance with its reporting obligations under Section 16 and Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Party B will provide Party A with a copy of any report filed thereunder in respect of the Transaction promptly upon filing thereof;

 

(m)

Party B owns (as such term is used in Rule 16c-4 under the Exchange Act) a number of Shares (including the Shares pledged pursuant to the ISDA Credit Support Annex), after subtracting the number of Shares to which any put equivalent positions (as defined in Rule 16a-1(h) under the Exchange Act) have been established or are maintained by Party B (other than any put equivalent position established as a result of the Transaction), at least equal to the aggregate Number of Shares for all Tranches;

 

(n)

Party B shall not become, and shall not take any action that with the passage of time or the satisfaction of conditions would or would reasonably be expected to cause it to become, an “affiliate” of the Issuer (as such term is defined in Section 101(2) of Title 11 of the United States Code);

 

(o)

none of Party B, its affiliates or the Issuer has commenced or taken a substantial step or steps to commence a tender offer within the meaning of Rule 14e-3 under the Exchange Act;

 

(p)

none of Party B, its affiliates or the Issuer is on the Trade Date engaged in a distribution, as such term is used in Regulation M under the Exchange Act, of any securities of the Issuer; and

 

Page 9 of 16

---

(q)

Party B shall, upon obtaining knowledge of the occurrence of any event that would, with the giving of notice, the passage of time or the satisfaction of any condition, constitute an Event of Default in respect of which it would be the Defaulting Party, a Termination Event in respect of which it would be an Affected Party, a Potential Adjustment Event or an Extraordinary Event (including without limitation an Additional Disruption Event), notify Party A within one Scheduled Trading Day of the occurrence of obtaining such knowledge.

 

C.	Limit on Beneficial Ownership:

Notwithstanding any other provisions hereof, Party A may not exercise any Option hereunder or be entitled to exercise any right of rehypothecation under the ISDA Credit Support Annex or otherwise be entitled to take delivery of any Shares deliverable hereunder or exercise remedies as described in the ISDA Credit Support Annex in respect of Shares constituting Posted Collateral (any such exercise, exercise of rehypothecation rights, delivery or exercise of remedies, a “Share Acquisition”) and Automatic Exercise shall not apply with respect to any Option hereunder to the extent (but only to the extent) that, after such Share Acquisition, (i) the Section 16 Percentage would exceed 4.5%, or (ii) the Share Amount would exceed the Applicable Share Limit. Any purported Share Acquisition hereunder shall be void and have no effect to the extent (but only to the extent) that, after such Share Acquisition, (i) the Section 16 Percentage would exceed 4.5%, or (ii) the Share Amount would exceed the Applicable Share Limit. If any Share Acquisition hereunder is not made, in whole or in part, as a result of this provision, Party B’s obligations in respect of such Share Acquisition shall not be extinguished and Party B shall fulfill such obligations as promptly as practicable after, but in no event later than one Business Day after, Party A gives notice to Party B that, after such Share Acquisition, (i) the Section 16 Percentage would not exceed 4.5%, and (ii) the Share Amount would not exceed the Applicable Share Limit. “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, (A) the numerator of which is the number of Shares that Party A and each person subject to aggregation of Shares with Party A under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder directly or indirectly beneficially own (as defined under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder) and (B) the denominator of which is the number of Shares outstanding. The “Share Amount” as of any day is the number of Shares that Party A and any person whose ownership position would be aggregated with that of Party A (Party A or any such person, a “Party A Person”) under any law, rule, regulation or regulatory order or any organizational documents of the Issuer or any agreement to which Party B is a party that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership of under any Applicable Restriction, as determined by Party A in its reasonable discretion. The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Party A Person, or would result in an adverse effect on a Party A Person, under any Applicable Restriction, as determined by Party A in its reasonable discretion, minus (B) 1% of the number of Shares outstanding.

 

D.	Right to Extend:

Party A may postpone, in whole or in part, any Valuation Date or any other date of valuation or delivery with respect to some or all of the relevant Options (in which event the Calculation Agent shall make appropriate adjustments to the Number of Options with respect to one or more Tranches) if Party A determines, in its commercially reasonable judgment, that such extension is reasonably necessary or appropriate to preserve Party A’s hedging or hedge unwind activity hereunder in light of existing liquidity conditions or to enable Party A to effect purchases or sales of Shares in connection with its hedging, hedge unwind or settlement activity hereunder in a manner that is in compliance with applicable legal, regulatory or self-regulatory requirements, or with related policies and procedures applicable to Party A.

 

E.	Indemnification:

In addition to any remedies afforded Party A in connection with the Transaction or under this Confirmation, Party B agrees to indemnify and hold harmless Party A and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and against any and all losses, claims, damages, judgments, liabilities and expenses (including reasonable attorney’s fees), joint or several (collectively, “Damages”), to which an Indemnified Person may become subject arising out of or in connection with the Transaction and this Confirmation, including without limitation any losses, claims, damages, judgments, liabilities and expenses due, in whole or in part, to any breach of any covenant or representation made by Party B in the Agreement and this Confirmation or any claim, litigation, investigation or proceeding relating thereto, regardless of whether any of such Indemnified Persons is a party thereto, and to reimburse, within 30 days, upon written request, each of such Indemnified Persons for any reasonable legal or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any of the foregoing; provided that Party B shall not have any liability to any Indemnified Person to the extent that such Damages are finally determined by a court of competent jurisdiction to have directly resulted from the gross negligence or willful misconduct of such Indemnified Person or breach by Party A of an express provision of this Confirmation (and in such case, such Indemnified Person shall promptly return to Party B any amounts previously expended by Party B hereunder).

 

Page 10 of 16

---

F.	Additional Termination Event:

It shall constitute an Additional Termination Event with respect to which the Transaction shall be the sole Affected Transaction, Party B shall be the sole Affected Party and Party A shall be the party entitled to designate an Early Termination Date pursuant to Section 6 of the Agreement if Party B shall at any time directly or indirectly own, control or hold with power to vote 18 percent or more of the outstanding voting securities of the Issuer.

 

G.	Specified Entity:

“Specified Entity” means in relation to Party A for the purpose of:

 

Section 5(a)(v),		NONE
Section 5(a)(vi),		NONE
Section 5(a)(vii),		NONE
Section 5(b)(iv),		NONE
and in relation to Party B for the purpose of:
Section 5(a)(v),		NONE
Section 5(a)(vi),		NONE
Section 5(a)(vii),		NONE
Section 5(b)(iv),		NONE

 

H.	Cross-Default:

The “Cross Default” provisions of Section 5(a)(vi) of the ISDA Form, as modified below, will apply to Party A and to Party B. Section 5(a)(vi) of ISDA Form is hereby amended by the addition of the following at the end thereof:

“provided, however, that notwithstanding the foregoing, an Event of Default shall not occur under either (1) or (2) above if, as demonstrated to the reasonable satisfaction of the other party, (a) the event or condition referred to in (1) or the failure to pay referred to in (2) is a failure to pay caused by an error or omission of an administrative or operational nature; and (b) funds were available to such party to enable it to make the relevant payment when due; and (c) such relevant payment is made within three Business Days following receipt of written notice from an interested party of such failure to pay.”

Section 5(a)(vi) of the ISDA Form is hereby further amended by deleting the following text from the seventh line “, or becoming capable at such time of being declared”.

“Specified Indebtedness” means any obligation (whether present or future, contingent or otherwise, as principal or surety or otherwise) for the payment or repayment of any money.

“Threshold Amount” means, with respect to Party A, an amount equal to 2% of shareholders’ equity (howsoever described) of Party A as shown on the most recent annual audited financial statements of Party A, and, with respect to Party B or any Specified Entity, an amount equal to USD 10,000,000.00.

 

I.	Payments on Early Termination:

For the purpose of Section 6(e) of the ISDA Form:

 

(i)

Loss will apply.

 

(ii)

The Second Method will apply.

 

Page 11 of 16

---

J.	Credit Support Document:

The Account Control Agreement dated as of June 13, 2016 (the “Account Control Agreement”) among Party A, Party B and UBS Securities LLC relating to the Shares is a Credit Support Document under the Agreement.

Modifications to the ISDA Credit Support Annex.

The ISDA Credit Support Annex is modified and supplemented as set forth below:

 

(a)	The term “Obligations” as used in the ISDA Credit Support Annex means obligations of Party B only under the Transactions described in this Confirmation.

 

(b)	Subparagraph (i) of Paragraph 7 of the ISDA Credit Support Annex is hereby amended by deleting the phrase “and that failure continues for two Local Business Days after notice of that failure is given to that party.”

 

(c)	For purposes of this Transaction only, for purposes of Paragraph 13 of the ISDA Credit Support Annex (as defined in this Confirmation):

 

(i)

“Exposure” means zero;

 

(ii)

“Credit Support Amount” means the Independent Amount;

 

(iii)

“Independent Amount” means a number of Shares equal to the Number of Options multiplied by the Option Entitlement;

 

(iv)

“Eligible Collateral” means Shares free from Transfer Restrictions, cash and other collateral acceptable to Secured Party;

 

(v)

“Other Eligible Support” includes no other items;

 

(vi)

“Valuation Agent” means the Secured Party;

 

(vii)

“Valuation Date” means the Trade Date and every Exchange Business Day thereafter until the Expiration Date of the Tranche with the latest Expiration Date; and

 

(viii)

“Distributions” means all dividends or other distributions with respect to equity securities, regardless of whether the Secured Party has disposed of that Posted Collateral pursuant to Paragraph 6(c) of the ISDA Credit Support Annex. Distributions will not include any item of property acquired by the Secured Party upon any disposition (other than a disposition pursuant to Paragraph 6(c) of the ISDA Credit Support Annex) or liquidation of Posted Collateral, or with respect to Posted Collateral in the form of Cash, any distributions on that collateral, unless otherwise specified herein.

Notwithstanding anything to the contrary herein or otherwise, the provisions of Paragraph 3 of the ISDA Credit Support Annex will not apply to the Transaction and the provisions of Paragraph 6(c) of the ISDA Credit Support Annex will not apply to Party A.

 

(d)

For purposes of this Transaction only, Party A and Party B agree that, notwithstanding anything to the contrary in the recital to the ISDA Credit Support Annex, Paragraph 1(b) or Paragraph 2 or the definitions in Paragraph 12, (1) the term “Secured Party” as used in the ISDA Credit Support Annex means only Party A, (2) the term “Pledgor” as used in the ISDA Credit Support Annex means only Party B, (3) only Party B makes the pledge and grant in Paragraph 2, the acknowledgment in the final sentence of Paragraph 8(a) and the representations in Paragraph 9, (4) only Party B will be required to make Transfers of Eligible Credit Support under the ISDA Credit Support Annex, (5) Party B shall not be permitted to exercise the right of substitution set forth in Paragraph 4(d) and (6) the term Posted Collateral includes the Account (as defined in the Account Control Agreement) and all Shares and other property from time to time in the Account. Paragraph references in the immediately preceding sentence are to Paragraphs in the ISDA Credit Support Annex.

Settlement

This Transaction has been entered into by a member of the UBS group (“UBS Party”). For the avoidance of doubt, any payment or delivery obligations of the UBS Party in respect of this Transaction (“Obligations”) may be effected by either UBS Limited or UBS AG, London Branch (the “Settlement Agent”). UBS Party has authorised the Settlement Agent to act on its behalf in the same manner and with the same force and effect as UBS Party might or could do. In the event that any Obligations are settled by the Settlement Agent (“Settlement”), such Settlement shall be deemed to be settlement of all Obligations hereunder.

 

Page 12 of 16

---

Contact Information for UBS AG, LONDON BRANCH:

 

Payments:		Tel: +44 207 568 0092
		Fax: +44 207 568 9251
Documentation:		Tel: +44 207 568 0673
		Fax: +44 207 568 9895/ 9896

[Remainder of page intentionally left blank]

 

Page 13 of 16

---

By manually signing this Confirmation and returning it to UBS at facsimile (203) 719-0538, Party B hereby (a) agrees that it has checked this Confirmation carefully for errors or discrepancies and (b) confirms that this Confirmation correctly sets forth the terms of the agreement between Party A and Party B with respect to the Transaction evidenced hereby.

 

 

Page 14 of 16

---

Please confirm that the foregoing correctly sets forth the terms of our agreement by executing the copy of this Confirmation enclosed for that purpose and returning it to us at your earliest convenience.

Agreed and accepted with effect as of the date first written above

for and on behalf of

TRACINDA CORPORATION

 

By:		/s/ Daniel Taylor
Name:		Daniel Taylor
Title:		Executive

UBS AG, LONDON BRANCH, 1 Finsbury Avenue, London EC2M 2PP

UBS AG is a member of the London Stock Exchange and is regulated in the UK by the Financial Services Authority.

Representatives of UBS Limited introduce trades to UBS AG via UBS Limited.

 

Page 15 of 16

---

Schedule A

 

Tranche		Number of Options		Valuation Date
1.		2,000,000		February 7, 2017
2.		2,000,000		February 8, 2017
3.		2,000,000		February 9, 2017
4.		2,000,000		February 10, 2017
5.		2,000,000		February 13, 2017
6.		2,000,000		February 14, 2017
7.		2,000,000		February 15, 2017
8.		2,000,000		February 16, 2017
9.		2,000,000		February 17, 2017
10.		2,000,000		February 21, 2017

 

Page 16 of 16

Exhibit 99.2

EXECUTION VERSION

Account Control Agreement

ACCOUNT OPTIONS: Account 203-21541, Tracinda Corporation – UBS AG, London Branch, as Secured Party

 

This Account Control Agreement (as amended, supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of June 13, 2016 among UBS AG, London Branch (the “Secured Party”), Tracinda Corporation (the “Pledgor”) and UBS Securities LLC (“UBSS”), as the securities intermediary.

WHEREAS, the Secured Party and the Pledgor have entered into a Confirmation for a Call Option Transaction dated as of June 13, 2016 (together with the documents incorporated therein or constituting or supplementing the Agreement referred to therein, and as amended, supplemented or modified from time to time, the “Confirm”), pursuant to which the Pledgor is required to pledge shares of common stock of MGM Resorts International (“Shares”) to the Secured Party;

WHEREAS, UBSS has established the above-referenced Pledgor account (the “Account”), which shall be deemed to be a “securities account” (within the meaning of Section 8-501(a) of the Uniform Commercial Code as in effect in the State of New York (“UCC”));

WHEREAS, the Pledgor has granted the Secured Party a security interest in the Posted Collateral (as defined in the Confirm), which includes the Account and the Shares and all other cash, securities, securities entitlements, financial assets, investment property and other assets held in or credited to the Account from time to time, and the proceeds thereof; and

WHEREAS, the Secured Party, the Pledgor and UBSS are entering into this Agreement to provide for the control of the Account and the Posted Collateral by the Secured Party and to perfect the Secured Party’s security interest in the Account and the Posted Collateral;

NOW THEREFORE, the parties hereby agree as follows:

Section 1. The Account.

(a) The Secured Party and the Pledgor hereby intend that this Agreement establish “control” of the Account and the Posted Collateral by the Secured Party for purposes of perfecting the Secured Party’s security interest therein pursuant to Articles 8 and 9 of the UCC and UBSS hereby acknowledges that it has been advised of the Pledgor’s grant to the Secured Party of a security interest in the Account and the Posted Collateral. The Pledgor and the Secured Party hereby appoint UBSS to perform its duties as securities intermediary as hereinafter set forth. UBSS hereby accepts such appointment and agrees to establish and maintain the Account and to identify such Account on its books and records as pledged by the Pledgor to the

---

Secured Party. The parties agree that UBSS is a “securities intermediary” (within the meaning of Section 8-102(a)(14) of the UCC), and intend that all securities and other property now or hereafter credited by UBSS to the Account will be treated as “financial assets” under Article 8 of the UCC. UBSS makes no representations or warranties with respect to the creation or enforceability of any security interest in the Account or the assets held in the Account.

(b) All securities or other property underlying any financial assets credited to the Account shall be registered in the name of UBSS, indorsed to UBSS or in blank or credited to another securities account maintained in the name of UBSS, and in no case shall any financial asset credited to the Account be registered in the name of the Pledgor, payable to the order of the Pledgor or specially indorsed to the Pledgor except to the extent the foregoing have been specially indorsed to UBSS or in blank.

(c) The Pledgor, simultaneously with the execution and delivery of this Agreement, has caused the Shares to be deposited in the Account as Posted Collateral pursuant to the terms and conditions of the Confirm, which such Posted Collateral, together with any proceeds received by UBSS with respect to such Posted Collateral, shall be held by UBSS upon the terms and conditions hereinafter set forth. The Pledgor represents and warrants that it owns the securities and other property in the Account free and clear of all liens, claims, security interests and encumbrances (except those granted herein and in the Confirm).

(d) UBSS hereby represents and warrants to the Secured Party and the Pledgor that (i) the Account has been established in the name and with the account number recited above and (ii) except for the claims and interests of the Secured Party and the Pledgor in the Account, and except for any claim in favor of UBSS permitted under Section 2, UBSS does not know of any claim or interest in the Account. The parties agree and acknowledge that the title of the Account shall reflect that the Pledgor has granted the Secured Party a security interest in the Account.

Section 2. Priority of Lien.

UBSS hereby acknowledges the security interest granted to the Secured Party by the Pledgor. UBSS hereby confirms that the Account is a fully-paid account and that it will not advance any margin or other credit to the Pledgor with respect to the assets carried in the Account, except as indicated below. UBSS hereby subordinates all liens, encumbrances, claims and rights of setoff it may have against the Account or any financial asset carried in the Account or any free credit balance in the Account, except for liens, encumbrances, claims and rights of setoff for the payment of UBSS customary fees and commissions pursuant to its agreement with the Pledgor. UBSS will not agree with any third party that UBSS will comply with entitlement orders or other directions concerning the Account originated by or on behalf of such third party without the prior written consent of the Secured Party and the Pledgor.

Section 3. Control; Trading in the Account; Investment Advisers.

(a) Subject to the terms of Section 3(b) below, UBSS will comply with entitlement orders originated by the Secured Party concerning the Account without further consent by the Pledgor. Unless “ACCOUNT TRADING PERMITTED?” at the top of this Agreement is marked “NO,” and except as otherwise provided in Section 4, UBSS also will comply with entitlement orders concerning the Account originated by the Pledgor or the Pledgor’s authorized representatives, including any investment adviser, which may be an affiliate of UBSS, that the Pledgor has authorized to exercise investment discretion with respect to the Account (an “Investment Adviser”), until such time as the Secured Party delivers a written notice to UBSS that the Secured Party is thereby exercising exclusive control over the Account (a “Notice of Exclusive Control”). Subject to the terms of Section 3(b) below, after UBSS receives a Notice of Exclusive Control

 

2

---

and has had reasonable opportunity to comply with it, UBSS will cease complying with entitlement orders or other directions concerning the Account that are originated by the Pledgor or its representatives unless and until such time as UBSS receives a written notice from the Secured Party rescinding the Notice of Exclusive Control. If “ACCOUNT TRADING PERMITTED?” at the top of this Agreement is marked “NO,” UBSS will not, except as set forth in Section 4 below, comply with entitlement orders or other directions concerning the Account originated by the Pledgor or the Pledgor’s authorized representatives, including any Investment Adviser without the specific prior written consent of the Secured Party.

(b) The Secured Party agrees that UBSS may, in its sole and absolute discretion, require that the Secured Party provide an authorizing document, in form and substance acceptable to UBSS, identifying the individual(s) authorized by the Secured Party to provide UBSS with entitlement orders, a Notice of Exclusive Control or any other notice or direction concerning the Account (collectively, “Instructions”), and may in its sole and absolute discretion refuse to honor an Instruction pending receipt of such an authorizing document from the Secured Party in a form acceptable to UBSS. Notwithstanding the foregoing, UBSS shall have no obligation to confirm the identity or authority of any individual who purports to provide UBSS with an Instruction on behalf of the Secured Party, and the parties agree and acknowledge that UBSS may accept and follow any Instruction from any individual whom UBSS in good faith and without gross negligence believes to be authorized by the Secured Party to provide such Instruction and, subject to the fulfillment of said obligations of acting in good faith and without gross negligence, UBSS shall not be liable to any party for having honored or allowed any such Instruction. The Pledgor agrees that UBSS shall have no obligation to comply with entitlement orders or other directions originated by the Pledgor or its representatives (including any Investment Adviser).

Section 4. Withdrawals from the Account.

Unless “ACCOUNT WITHDRAWALS PERMITTED?” at the top of this Agreement is marked “YES,” then notwithstanding the provisions of Section 3, UBSS will neither accept nor comply with any entitlement orders or other directions from the Pledgor or its authorized representatives substituting, withdrawing or making a free delivery of any financial assets from the Account nor deliver any such financial assets to the Pledgor nor pay any free credit balance or other amount owing from UBSS to the Pledgor with respect to the Account without the specific prior written consent of the Secured Party; provided that UBSS will take any such action with respect to the Account or the financial assets upon a written instruction of the Secured Party. If “ACCOUNT WITHDRAWALS PERMITTED?” at the top of this Agreement is marked “YES,” unless a Notice of Exclusive Control is in effect, UBSS shall have no responsibility whatsoever to limit, restrict or monitor any withdrawals of transfers of assets from the Account by the Pledgor or to otherwise notify the Secured Party of the depletion of Account assets, even if UBSS knows or believes that as the result of such withdrawals and/or transfers, the number of Shares in the Account is or will be less than is required by the Confirm.

Section 5. Account information.

Pledgor hereby acknowledges that UBSS will send to the Secured Party (at the address set for the below) copies of any activity reports for the Account sent to the Pledgor. In order to receive copies of such activity reports, the Secured Party must provide UBSS with a valid e-mail address and the Secured Party is responsible for notifying UBSS promptly when its email address changes.

 

3

---

Section 6. Limited Responsibility of UBSS.

Except to the extent that it permits trading or a withdrawal or payment in violation of Sections 3 or 4 or advances margin or other credit to the Pledgor in violation of Section 2, UBSS shall have no responsibility or liability to the Secured Party for making trades of financial assets held in the Account at the direction of the Pledgor or the Pledgor’s authorized representatives, including any Investment Adviser, or for complying with entitlement orders concerning the Account from the Pledgor, or the Pledgor’s authorized representatives, including any Investment Adviser. UBSS shall have no responsibility or liability to the Pledgor for complying with a Notice of Exclusive Control or complying with other Instructions concerning the Account originated by the Secured Party. UBSS shall have no responsibility or liability to the Pledgor or the Secured Party with respect to increases or decreases in the value of the Account or increases or decreases in the market value of any asset held therein. UBSS shall have no duty to investigate or make any determination as to whether the Secured Party is entitled or has been authorized to give any Notice of Exclusive Control or any other Instruction, as to whether the Secured Party has provided a copy thereof to any Investment Adviser, or as to whether a default exists under any agreement between the Pledgor and the Secured Party, and UBSS shall comply with a Notice of Exclusive Control or other Instruction even if it believes that no such default exists. This Agreement does not create any obligation or duty of UBSS other than those expressly set forth herein.

Section 7. Indemnification of UBSS.

The Pledgor hereby agrees to indemnify and hold harmless UBSS, its affiliates and their respective directors, officers, agents and employees, on a current basis as incurred against any and all claims, causes of action, liabilities, lawsuits, demands and damages, including without limitation, any and all court costs and reasonable outside attorneys’ fees, in any way related to or arising out of or in connection with this Agreement or any action taken or not taken pursuant hereto, except to the extent caused by UBSS’ breach of its obligations hereunder or gross negligence. The Secured Party hereby agrees to indemnify and hold harmless UBSS, its affiliates and their respective directors, officers, agents and employees, on a current basis as incurred, against any and all claims, causes of action, liabilities, lawsuits, demands and damages, including, without limitation any and all court costs and reasonable attorneys’ fees, in any way related to or arising out of or in connection with any Instruction originated by the Secured Party or any action taken or not taken in connection thereto, except to the extent caused by UBSS’ breach of its obligations hereunder.

Section 8. Conflicts; Instructions.

In the event of a conflict between the express terms of this Agreement and any other agreement between UBSS and the Pledgor, the terms of this Agreement will prevail. Regardless of any provision in any agreement relating to the law governing the Account, the parties hereto agree that the establishment and maintenance of the Account, and all interests, duties and obligations with respect thereto, shall be governed by the law of the State of New York. The Pledgor and the Secured Party agree and acknowledge that any Instruction given by the Secured Party in connection with the Account is deemed to be an Instruction of the Pledgor.

Section 9. Fees and Expenses.

The Pledgor agrees to pay to UBSS the fees as may be agreed upon from time to time. The Pledgor shall reimburse UBSS for all reasonable costs associated with transfers of Posted Collateral to UBSS and records kept in connection with this Agreement, subject to advance written notice to and approval by the Pledgor. The Pledgor shall also reimburse UBSS for reasonable out-of-pocket expenses which are a normal incident of the services provided hereunder, subject to advance written notice to and approval by the Pledgor.

 

4

---

Section 10. Termination.

Unless earlier terminated by UBSS pursuant to this section, the obligations of UBSS under Sections 2, 3, 4 and 5 shall continue in effect until the Secured Party has notified UBSS in writing that this Agreement is to be terminated or that the Secured Party’s security interest in the Account has terminated. Upon receipt of such notice, the obligations of UBSS under Sections 2, 3, 4 and 5 with respect to the operation and maintenance of the Account after the receipt of such notice shall terminate, the Secured Party shall have no further right to originate Instructions concerning the Account and any previous Notice of Exclusive Control delivered by the Secured Party shall be deemed to be of no further force and effect. UBSS reserves the right, unilaterally, to terminate this Agreement, such termination to be effective (30) days after written notice thereof is given to the Pledgor and the Secured Party; provided, however, that no such termination by UBSS shall be effective unless all of the financial assets and other property credited to the Account shall have first been transferred to a successor custodian acceptable to the Secured Party and the Pledgor, such acceptance not to be unreasonably withheld or delayed. Upon the termination of this Agreement, all of the obligations of UBSS to the Secured Party under this Agreement shall terminate and UBSS may follow instructions of the Pledgor with respect to the Account and the financial assets.

Section 11. Entire Agreement; Amendments; Authority to Execute.

This Agreement, any schedules or exhibits hereto and the instructions and notices required or permitted to be executed and delivered hereunder set forth the entire agreement of the parties with respect to the subject matter hereof. No amendment, modification or (except as otherwise specified in Section 10) termination of this Agreement, nor any assignment of any rights hereunder (except to the extent contemplated under Section 13), shall be binding on any party hereto unless it is in writing and is signed by each of UBSS, the Secured Party and the Pledgor, and any attempt to so amend, modify, terminate or assign except pursuant to such a writing shall be null and void. No waiver of any rights hereunder shall be binding on any party hereto unless such waiver is in writing and signed by the party against whom enforcement is sought. Each individual executing this Agreement below on behalf of the Secured Party or the Pledgor represents and warrants that he/she is duly authorized to do so on behalf of such entity.

Section 12. Severability.

If any term or provision set forth in this Agreement shall be invalid or unenforceable, the remainder of this Agreement, or the application of such terms or provisions to persons or circumstances, other than those to which it is held invalid or unenforceable, shall be construed in all respects as if such invalid or unenforceable term or provision were omitted.

Section 13. Successors.

The terms of this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective corporate successors or heirs and personal representatives. The Pledgor may not assign this Agreement without the Secured Party’s prior written consent. UBSS may only assign its rights hereunder or any interest herein (i) with the prior written consent of the Secured Party and the Pledgor or (ii) to any affiliate of UBSS which is a U.S. registered broker-dealer of equal or better credit rating upon prior notice to the Pledgor and execution by such affiliate of its acceptance of the terms of this Agreement.

 

5

---

Section 14. Notices.

Any notice, request or other communication required or permitted to be given under this Agreement shall be in writing and deemed to have been properly given when delivered in person, or when sent by telecopy or other electronic means and electronic confirmation of error free receipt is received or upon receipt of notice sent by certified or registered United States mail, return receipt requested, postage prepaid, addressed to that party: in the case of the Secured Party or the Pledgor, at the address set forth on the signature page hereto; and in the case of UBSS, to the following email address: [email protected]. Any party may change its address for notices in the manner set forth above.

Section 15. Counterparts and Delivery.

This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Agreement by signing and delivering one or more counterparts. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronic mail with PDF attachment shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 16. Choice of Law; Jurisdiction; Waiver of Jury Trial.

(a) This Agreement shall be governed by and construed in accordance with the law of the State of New York and the State of New York is UBSS’s jurisdiction for purposes of Articles 8 and 9 of the UCC.

(b) ANY SUIT, ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY JUDGMENT ENTERED BY ANY COURT WITH RESPECT TO THIS AGREEMENT OR SUCH TRANSACTIONS SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK LOCATED IN THE CITY AND COUNTY OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH ACTION OR PROCEEDING AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH ACTION OR PROCEEDING. EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(c) EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.

 

6

---

IN WITNESS WHEREOF, the parties have signed this Agreement, or caused it to be signed on their behalf by their duly authorized representatives, as of June 13, 2016.

 

Secured Party: UBS AG, LONDON BRANCH						UBSS: UBS SECURITIES LLC
By:		/s/ Lee Frankenfield				By:		/s/ Michael O’Donovan
Name:		Lee Frankenfield				Name:		Michael O’Donovan
Title:		Managing Director				Title:		Managing Director
By:		/s/ Jack Macfarlane				By:		/s/ Jack Macfarlane
Name:		Jack Macfarlane				Name:		Jack Macfarlane
Title:		Director				Title:		Director
Address for Notices:   [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; and [email protected]

 

[Signature Page to Tracinda Corporation Account Control Agreement]

---

AGREED TO AND ACCEPTED:
Pledgor: Tracinda Corporation
By:		/s/ Daniel Taylor
Name:		Daniel Taylor
Title:		Executive
Address for Notices:   6725 Via Austi Parkway, Suite 370 Las Vegas, NV 89119 Phone Number: (702) 978-6161

 

[Signature Page to Tracinda Corporation Account Control Agreement]

Exhibit 99.3

LIMITED POWER OF ATTORNEY

The undersigned, Anthony L. Mandekic, CEO, President and Secretary/Treasurer of Tracinda Corporation, a Nevada corporation (“Tracinda”), hereby grants a limited power of attorney to Janet S. McCloud as attorney-in-fact of the undersigned for the purpose of executing on my behalf, as an individual and as an officer of Tracinda, any and all filings by the undersigned under the Securities Act of 1933, as amended (including Form 144). and the Securities Exchange Act of 1934, as amended (including Forms 4 and 5 and Schedule 13D), with respect to the securities of MGM Resorts International, a Delaware corporation (the “Company”), registered in the name of Tracinda. This power of attorney is effective upon execution, may be revoked by me in writing at any time, and shall automatically be revoked upon my death, provided any person relying on this power of attorney shall have full rights to accept and rely upon the authority of my attorney-in-fact until in receipt of actual notice of revocation.

Dated: June 7, 2016

 

---

Serious News for Serious Traders! Try StreetInsider.com Premium Free!

---

You May Also Be Interested In

• Marriott Vacations Worldwide (VAC) ticks higher on new activist investor