Exhibit 3
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 3, 2002, between
Panavision Inc., a Delaware corporation (the "Company"), and PX Holding
Corporation, a Delaware corporation ("PX Holding").
WHEREAS, M & F Worldwide Corp., a Delaware corporation ("M & F
Worldwide"), PVI Acquisition Corp., a Delaware corporation ("PVI Acquisition")
and a wholly owned subsidiary of M & F Worldwide and PX Holding have entered
into a letter agreement, dated December 3, 2002, (the "Letter Agreement"),
pursuant to which, among other things, PX Holding will purchase from PVI
Acquisition, 7,320,225 shares of common stock, par value $.01 per share, of
the Company (the "Common Stock");
WHEREAS, Mafco Holdings Inc., a Delaware corporation, has contributed
(the "Mafco Contribution") to PX Holding 49,199 shares of Series A
Non-Cumulative Perpetual Participating Preferred Stock, par value $.01 per
share, of the Company ("Series A Preferred Stock") and 1,381,690 shares of the
Company's Series B Cumulative Pay-in-Kind Preferred Stock, par value $0.01 per
share (the "Series B Preferred Stock"); and
WHEREAS, the Board of Directors of the Company has authorized the
officers of the Company to execute and deliver this Agreement in the name and
on behalf of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties to this Agreement hereby agree as
follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Affiliate" means, with respect to any specified person, (i) any
other person 50% or more of whose outstanding voting securities are directly
or indirectly owned, controlled or held with the power to vote by such
specified person or (ii) any other person directly or indirectly controlling,
controlled by or under direct or indirect common control with such specified
person. For purposes of this definition, the term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a person by virtue of ownership of
voting securities, by contract or otherwise.
"Agreement" means this Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to this Registration Rights Agreement as the
same may be in effect at the time such reference becomes operative.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means PX Holding and any other person that holds Registrable
Securities, including their respective transferees, successors and assigns who
acquire Registrable Securities, directly or indirectly, from PX Holding or
such other person, respectively. For purposes of this Agreement, the Company
may deem and treat the registered holder of a Registrable Security as the
Holder and absolute owner thereof, and the Company shall not be affected by
any notice to the contrary.
"Registrable Securities" means (a) any shares of Common Stock
acquired pursuant to the Letter Agreement, (b) any shares of Series A
Preferred Stock and Series B Preferred Stock acquired pursuant to the Mafco
Contribution (c) any shares of Common Stock, Series A Preferred Stock or
Series B Preferred Stock or other shares of capital stock of the Company
issued to PX Holding or acquired by PX Holding on the open market at a time
when PX Holding is deemed to be an "affiliate" (as such term is defined under
Rule 144 under the Securities Act) of the Company, and (d) any securities
issued or issuable in respect of Common Stock, Series A Preferred Stock or
Series B Preferred Stock or other capital stock referred to in clauses (a),
(b) and (c) above by way of conversion, exercise or exchange or any stock
dividend or stock split or in connection with a combination of shares,
recapitalization, reclassification, merger or consolidation, and any other
securities issued pursuant to any other pro rata distribution with respect to
such Common Stock, Series A Preferred Stock or Series B Preferred Stock or
other capital stock. For purposes of this Agreement, a Registrable Security
ceases to be a Registrable Security when (x) it has been effectively
registered under the Securities Act and sold or distributed to the public in
accordance with an effective registration statement covering it (and has not
been reacquired in the manner described in clause (c) above), or (y) it is
sold or distributed to the public pursuant to Rule 144 (or any successor or
similar provision) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
2. Demand Registration. (a) If at any time any Holder shall request
the Company in writing to register under the Securities Act all or a part of
the Registrable Securities held by such Holder (a "Demand Registration"), the
Company shall use all reasonable efforts to cause to be filed and declared
effective as soon as reasonably practicable (but in no event later than the
45th day after such Holder's request is made) a registration statement
providing for the sale of all such Registrable Securities to be registered by
such Holder, including, but not limited to, a sale of such Registrable
Securities in connection with the issuance of any securities convertible into
or exchangeable or exercisable for Registrable Securities or the sale of
Registrable Securities upon conversion, exercise or exchange thereof. The
Company agrees to use its reasonable efforts to keep any such registration
statement continuously effective and usable for resale of Registrable
Securities for so long as the Holder whose Registrable Securities are included
therein shall request. The Company shall be obligated to file registration
statements pursuant to this Section 2(a) until all Registrable Securities have
ceased to be Registrable Securities. Each registration statement filed
pursuant to this Section 2(a) is hereinafter referred to as a "Demand
Registration Statement." The Company may, if permitted by law, effect any
registration pursuant to this Section 2(a) by the filing of a registration
statement on Form S-3. However, if such registration involves an underwritten
public offering and the managing underwriter(s) at any time shall notify the
Company in writing that, in the sole judgment of such managing underwriter(s),
inclusion of some or all of the information required in a more detailed form
specified in such notice is of material importance to the success of the
public offering of such Registrable Securities, the Company shall use all
reasonable efforts to supplement or amend the registration statement to
include such information.
(b) The Company agrees (i) not to effect any public or private sale,
distribution or purchase of any of its securities which are the same as or
similar to the Registrable Securities, including a sale pursuant to Regulation
D under the Securities Act, during the 15-day period prior to, and during the
45-day period beginning on, the closing date of each underwritten offering
under any Demand Registration Statement, and (ii) to use reasonable efforts to
cause each holder of its securities purchased from the Company, at any time on
or after the date of this Agreement (other than in a registered public
offering), to agree not to effect any public sale or distribution of any such
securities during such period, including a sale pursuant to Rule 144 under the
Securities Act.
(c) The Company may postpone for a reasonable period of time, not to
exceed 30 days, the filing or the effectiveness of any Demand Registration
Statement if (i) the Board of Directors of the Company in good faith
determines that (A) such registration would have a material adverse effect on
any plan or proposal by the Company with respect to any financing,
acquisition, recapitalization, reorganization or other material transaction,
or (B) the Company is in possession of material non-public information that,
if publicly disclosed, would result in a material disruption of a major
corporate development or transaction then pending or in progress or in other
material adverse consequences to the Company, and (ii) the Company so notifies
the Holder(s) within five days after the Holder(s) requests such registration.
The Company's right to defer the filing of a registration statement pursuant
to the provisions of the preceding sentence may not be exercised more than
once during any 12 month period.
(d) If at any time any Holder notifies the Company in writing of the
Holder's desire that the Registrable Securities to be covered by a Demand
Registration Statement be sold in an underwritten offering, such Holder shall
have the right to select any nationally recognized investment banking firm(s)
to administer the offering, subject to the approval of the Company, which
approval shall not be unreasonably withheld, and the Company shall enter into
underwriting agreements with the underwriter(s) of such offering, which
agreements shall contain such representations and warranties by the Company,
and such other terms, conditions and indemnities as are at the time
customarily contained in underwriting agreements for similar offerings and the
Company shall take or cause to be taken all such other actions, in addition to
the registration procedures set forth in Section 4 hereof, as are reasonably
requested by the managing underwriter(s) in order to expedite or facilitate
the registration and disposition of the Registrable Securities, including,
without limitation, causing management to participate in "road show"
presentations.
3. Incidental Registration. Subject to the terms and conditions set
forth in this Section 3, if the Company proposes at any time to register any
equity securities (the "Initially Proposed Shares") under the Securities Act,
whether or not for its own account, the Company will promptly give written
notice to the Holders of its intention to effect such registration (such
notice to specify, among other things, the proposed offering price, the kind
and number of securities proposed to be registered and the distribution
arrangements, including identification of the underwriter(s), if any), and the
Holders shall be entitled to include in such registration such number of
shares (the "Holder Shares") to be sold for the account of the Holders (on the
same terms and conditions as the Initially Proposed Shares) as shall be
specified in a request in writing delivered to the Company within 15 days
after the receipt of the Company's notice.
The Company's obligations to include Holder Shares in a registration
statement pursuant to this Section 3 is subject to each of the following
limitations, conditions and qualifications:
(i) If, at any time after the Company gives written notice
to the Holders of its intention to effect a registration of any of
its equity securities (whether or not for its own account) and
prior to the effective date of any registration statement filed in
connection with such registration, either the Company (in the case of
the Company intending to register securities for its own account) or
holders of Company securities (in the case of the Company intending
to register securities on behalf of holders of securities other than
Registrable Securities) shall determine for any reason not to
register any Securities which were theretofore the subject of such
registration, the Company shall give written notice of such
determination to the Holders and thereupon it shall be relieved of
its obligation to use any efforts to register any Holder Shares in
connection with such aborted registration (but not from its
obligation to pay the Registration Expenses (as defined herein) in
connection therewith).
(ii) If the managing underwriter(s) (in the case of an
underwritten offering) of such offering shall notify in writing the
Company and each Holder who shall have requested the inclusion of
Registrable Securities in such underwritten offering that, in the
good faith judgment of such managing underwriter(s), the distribution
of all or a specified portion of the Holder Shares would materially
interfere with the registration and sale, in accordance with the
intended method thereof, of the Initially Proposed Shares, then the
number of Holder Shares to be included in such registration statement
shall be reduced to such number, if any, that, in the good faith
judgment of such managing underwriter(s), can be included without
such interference; provided, however, that, if
(1) the Initially Proposed Shares were being
registered by the Company for its own account,
then the number of securities to be included in
such registration shall be allocated (x) first, to
the Company, and (y) second, pro rata among all
holders of Company securities (including the
Holders) on the basis of the number of shares
requested to be included in such registration
statement by such holders; and
(2) the Initially Proposed Shares were being
registered by the Company for the account of
holders of Company securities (other than the
Holders), then the number of securities to be
included in such registration shall be allocated
(x) first, pro rata among all holders of Company
securities (other than Holders) based upon the
number of securities each such holder requested be
included in such registration, and (y) second, pro
rata among all holders of Company securities not
included in the foregoing clause (x) (including
Holders) and the Company on the basis of the
number of shares requested to be included in such
registration statement by such holders and the
Company.
(iii) If, as a result of the cutback provisions contained in
Section 3(ii) hereof, the Holders are not entitled to include all of
the Holder Shares in such registration, such Holders may elect to
withdraw their request to include Holder Shares in such registration.
(iv) If the Company shall so deliver such a request in
writing to the Holders, each Holder shall not effect any public or
private sale or distribution of any Registrable Securities (other
than the Holder Shares) during the 15-day period prior to, and during
the 45-day period beginning on, the closing date of any underwritten
public offering of shares of Common Stock made for the Company's own
account.
4. Registration Procedures.
(a) Whenever the Company is required to use all reasonable efforts to
effect the registration of any Registrable Securities under the Securities Act
pursuant to the terms and conditions of Section 2(a) or Section 3 hereof (such
Registrable Securities being hereinafter referred to as "Subject Shares"), the
Company will use all reasonable efforts to effect the registration and sale of
the Subject Shares in accordance with the intended method of disposition
thereof. Without limiting the generality of the foregoing, the Company will as
soon as practicable:
(i) furnish to each Holder of Subject Shares (a
"Participating Holder") and to each managing underwriter, if any, a
reasonable time in advance of their filing with the SEC, any
registration statement, amendment or supplement thereto, and any
prospectus used in connection therewith, and each Participating
Holder shall have the opportunity to object to any information
pertaining to such Participating Holder and its plan of distribution
that is contained therein and the Company will make the corrections
reasonably requested by such Participating Holder with respect to
such information prior to filing any such registration statement or
any amendment or supplement thereto; and furnish a copy of any and
all transmittal letters or other correspondence with the SEC or any
other governmental agency or self-regulatory body or other body
having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering of Registrable Securities;
(ii) prepare and file with the SEC a registration statement
with respect to the Subject Shares in form and substance satisfactory
to the Participating Holders, and use all reasonable efforts to cause
such registration statement to become effective as soon as possible;
(iii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the applicable period and to comply with the
provisions of the Securities Act with respect to the disposition of
all Subject Shares and other securities covered by such registration
statement;
(iv) furnish each Participating Holder and each managing
underwriter, if any, without charge, such number of copies of such
registration statement, each amendment and supplement thereto (in
each case including all exhibits thereto and documents incorporated
by reference therein) and the prospectus included in such
registration statement (including each preliminary prospectus and
prospectus supplement) and any other prospectus filed under Rule 424
promulgated under the Securities Act relating to the Registrable
Securities and such other documents as such Participating Holder or
such underwriter may reasonably request;
(v) after the filing of the registration statement, promptly
notify each Participating Holder and each managing underwriter, if
any, of any stop order issued or, to the knowledge of the Company,
threatened to be issued by the SEC;
(vi) use all reasonable efforts to register or qualify the
Subject Shares covered by such registration statement under the
securities or blue sky laws of such jurisdictions (including any
foreign country or any political subdivision thereof) as the managing
underwriter(s) shall reasonably recommend, and do any and all other
acts and things which may be reasonably necessary or advisable to
enable the Participating Holders to consummate the disposition in
such jurisdictions of the Subject Shares covered by such registration
statement, except that the Company shall not for any such purpose be
required to (A) qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified, (B)
subject itself to taxation in any jurisdiction wherein it is not so
subject, or (C) consent to general service of process in any such
jurisdiction or otherwise take any action that would subject it to
the general jurisdiction of the courts of any jurisdiction in which
it is not so subject;
(vii) promptly inform each Participating Holder and the
managing underwriter(s), if any, (x) in the case of any offering of
the Registrable Securities in respect of which a registration
statement is filed under the Securities Act, of the date on which a
registration statement or any post-effective amendment thereto has
been filed and when the same has become effective and, if applicable,
of the date of filing a Rule 430A prospectus, (y) of any written
comments from the SEC with respect to any filing referred to in
clause (x) and of any request by the SEC, any securities exchange,
government agency, self-regulatory body or other body having
jurisdiction for any amendment of or supplement to any registration
statement or preliminary prospectus or prospectus included therein or
any offering memorandum or other offering document relating to such
offering or (z) of the receipt by the Company of any notification
with respect to the suspension of the qualification of any
Registrable Securities for sale under the applicable securities or
blue sky laws of any jurisdiction;
(viii) otherwise use its reasonable efforts to comply with
all applicable rules and regulations of the SEC;
(ix) provide a transfer agent and registrar for all
Registrable Securities covered by such registration statement not
later than the effective date of such registration statement;
(x) furnish, at the Company's expense, unlegended
certificates representing ownership of the securities being sold in
such denominations as shall be requested and instruct the transfer
agent to release any stop transfer orders with respect to the Subject
Shares being sold;
(xi) notify each Participating Holder at any time when a
prospectus relating to the Subject Shares is required to be delivered
under the Securities Act of the happening of any event as a result of
which the prospectus included in such registration statement contains
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein (in the case of the
prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading, and the
Company will promptly thereafter prepare and file with the SEC and
furnish a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of Subject Shares, such
prospectus will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading;
(xii) enter into customary agreements (including, but not
limited to, an underwriting agreement in customary form in the case
of an underwritten offering) and make such representations and
warranties to the sellers, underwriter(s), placement agents and other
financial intermediaries as in form and substance and scope are
customarily made by issuers to such parties and take such other
actions as the Holders or such other parties, if any, reasonably
require in order to expedite or facilitate the disposition of such
Subject Shares. A Participating Holder may, at its option, require
that any or all of the representations and warranties by, and the
other agreements on the part of, the Company to and for the benefit
of such other parties also be made to and for the benefit of any one
or more Participating Holders, and that any or all of the conditions
precedent to the obligations of such other parties under such
agreement also be conditions precedent to the obligations of the
Participating Holders;
(xiii) make available for inspection by the Participating
Holders, any underwriter, agent or other financial intermediary
participating in any disposition pursuant to such registration
statement, and any attorney, accountant or other similar professional
advisor retained by any such Participating Holders or underwriter
(collectively, the "Inspectors"), all pertinent financial and other
records, pertinent corporate documents and properties of the Company,
as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
such Inspector in connection with such registration statement;
(xiv) make available senior management personnel of the
Company to participate in, and cause them to cooperate with any
underwriter, agent or other financial intermediary in connection
with, "road show" and other customary marketing activities, including
"one-on-one" meetings with prospective purchasers of the Subject
Shares;
(xv) obtain for delivery to the Company, any underwriter,
agent or other financial intermediary or their agents, with copies to
the Participating Holders, a "cold comfort" letter from the Company's
independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters as
the Participating Holders or the managing underwriter, agent or other
financial intermediary reasonably request;
(xvi) obtain for delivery to the Participating Holders and
any underwriter, agent or other financial intermediary or their
agents an opinion or opinions from counsel for the Company in
customary form and reasonably satisfactory to the Participating
Holders, underwriters or agents and their counsel;
(xvii) make available to its security holders consolidated
earnings statements, which need not be audited, satisfying the
provisions of Section 11(a) of the Securities Act, no later than 90
days after the end of the 12-month period beginning with the first
month of the Company's first quarter commencing after the effective
date of the registration statement, which earnings statements shall
cover said 12-month period;
(xviii) make every reasonable effort to prevent the issuance
of any stop order suspending the effectiveness of the registration
statement or of any order preventing or suspending the effectiveness
of such registration statement at the earliest possible moment;
(xix) cause the Subject Shares to be registered with or
approved by such other governmental agencies or authorities
(including foreign governmental agencies and authorities) as may be
necessary to enable the sellers thereof or any underwriter, agent or
other financial intermediary to consummate the disposition of such
Subject Shares;
(xx) cooperate with the Holders and the managing
underwriter(s), if any, or any other interested party (including any
interested broker-dealer) in making any filings or submission
required to be made, and the furnishing of all appropriate
information in connection therewith, with the National Association of
Securities Dealers, Inc. ("NASD");
(xxi) cause its subsidiaries to take action necessary to
effect the registration of the Subject Shares contemplated hereby,
including filing any required financial information;
(xxii) effect the listing of the Subject Shares on the New
York Stock Exchange or such other national securities exchange or
over-the-counter market on which shares of the Common Stock shall
then be listed or shall otherwise be requested by the Holders; and
(xxiii) take all other steps necessary to effect the
registration of the Subject Shares contemplated hereby.
(b) The Holders shall provide (in writing and signed by the Holders
and stated to be specifically for use in the related registration statement,
preliminary prospectus, prospectus or other document incident thereto) all
such information and materials and take all such action as may be required in
order to permit the Company to comply with all applicable requirements of the
SEC and any applicable state securities laws and to obtain any desired
acceleration of the effective date of any registration statement prepared and
filed by the Company pursuant to this Agreement.
(c) The Holders shall, if requested by the Company or the managing
underwriter(s) in connection with any proposed registration and distribution
pursuant to this Agreement, (i) agree to sell the Subject Shares on the basis
provided in any underwriting arrangements entered into in connection therewith
and (ii) complete and execute all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents customary in similar
offerings; provided, however, that in no event shall a Participating Holder be
required to make any representations or warranties to or agreements with the
Company or the underwriter(s) other than representations, warranties or
agreements regarding such Participating Holder and its ownership of the
securities being registered on its behalf and its intended method of
distribution and any other representation required by law.
(d) Upon receipt of any notice from the Company that the Company has
become aware that the prospectus (including any preliminary prospectus)
included in any registration statement filed pursuant to Section 2(a) or
Section 3, as then in effect, contains any untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, the Holders shall forthwith
discontinue disposition of Subject Shares pursuant to the registration
statement covering the same until the Holders' receipt of copies of a
supplemented or amended prospectus and, if so directed by the Company, deliver
to the Company (at the Company's expense) all copies other than permanent file
copies then in the Holder's possession, of the prospectus covering the Subject
Shares that was in effect prior to such amendment or supplement.
(e) The Company shall pay all Registration Expenses. For purposes of
this Agreement, "Registration Expenses" shall mean all expenses incident to
the Company's performance of or compliance with its obligations under this
Agreement to effect the registration of Registrable Securities pursuant to
Section 2(a) or Section 3 of this Agreement, and the disposition of such
securities, including, without limitation, all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws, transfer agents and registrars' fees, all word processing,
duplicating and printing expenses, the fees and disbursements of counsel for
the Company and of its independent public accountants, including the expenses
of any special audits or "cold comfort" letters required by or incident to
such performance and compliance, but excluding underwriting discounts and
commissions in respect of Registrable Securities and the fees and
disbursements of any counsel retained by the Participating Holders (which
underwriting discounts and commissions and fees and disbursements of counsel
shall be paid by the Participating Holders).
(f) In connection with any sale of Subject Shares that are registered
pursuant to this Agreement, the Company and the Holders shall enter into an
agreement providing for indemnification of the Holders by the Company, and
indemnification of the Company by the Holders, on terms customary for such
agreements at that time.
5. Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given upon (a) transmitter's confirmation of a
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or when delivered by hand or (c) the expiration of five
business days after the day when mailed in the United States by certified or
registered mail, postage prepaid, addressed at the following addresses (or at
such other address for a party as shall be specified by like notice):
If to the Company, to:
Panavision Inc.
0000 Xx Xxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx
Telephone:
Facsimile:
Attention: Chief Executive Officer
cc: General Counsel
If to PX Holding, to:
PX Holding Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq. and
Xxxx X. Xxxxx, Esq.
If to any other Holder,
to such name at such address as such Holder shall have
indicated in a written notice delivered to the other parties
to this Agreement.
Any party hereto may from time to time change its address for notices under
this Section 5 by giving at least 10 days' notice of such changes to the other
parties hereto.
6. Waivers. No waiver by any party of any default with respect to any
provision, condition or requirement hereof shall be deemed to be a continuing
waiver in the future thereof or a waiver of any other provision, condition or
requirement hereof, nor shall any delay or omission of any party to exercise
any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter.
7. Interpretation. When a reference is made in this Agreement to a
section, article, paragraph, clause, annex or exhibit, such reference shall be
to a reference to this Agreement unless otherwise clearly indicated to the
contrary. The descriptive article and section headings herein are intended for
convenience of reference only and are not intended to be a part of or to
affect the meaning or interpretation of this Agreement. Whenever the words
"include", "includes" or "including" are used in this Agreement they shall be
deemed to be followed by the words "without limitation." The words "hereof,"
"herein" and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement. The meaning assigned to each term used
in this Agreement shall be equally applicable to both the singular and the
plural forms of such term, and words denoting either gender shall include both
genders. Where a word or phrase is defined herein, each of its other
grammatical forms shall have a corresponding meaning.
8. Amendment. This Agreement may be amended, modified or supplemented
by the parties hereto at any time. This Agreement may not be amended except by
a written instrument executed by the parties hereto.
9. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either party hereto
(whether by operation of law or otherwise) without the prior written consent
of the other party; provided, however, that either party may assign this
Agreement to an Affiliate without the prior written consent of the
non-assigning party; provided, further, that in connection with a bone fide
pledge by a Holder of any Registrable Securities, such Holder may assign its
rights under this Agreement to the beneficiary of such pledge. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of and be enforceable by, the parties and their respective successors and
assigns and are not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO
THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
be considered one and the same agreement.
12. Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all prior agreements and understandings (written and
oral) between the parties with respect to the subject matter hereof.
13. Available Information. If at any time the Company is required to
file reports in compliance with either Section 13 or Section 15(d) of the
Exchange Act, the Company will comply with all rules and regulations of the
SEC applicable in connection with the use of Rule 144 or Rule 144A promulgated
under the Securities Act and will, upon the request of any Holder, take such
other actions and furnish the Holder with information as the Holder may
reasonably request in order to avail itself of such rule or any other rule or
regulation of the SEC allowing the Holder to sell any Registrable Securities
without registration, and will, at its expense, forthwith upon the request of
the Holder, deliver to such party a certificate, signed by the Company's
principal financial officer, stating (a) the Company's name, address and
telephone number (including area code), (b) the Company's Internal Revenue
Service identification number, (c) the Company's SEC file number, (d) the
number of shares of each class of stock outstanding as shown by the most
recent report or statement published by the Company, and (e) whether the
Company has filed the reports required to be filed under the Exchange Act for
a period of at least 90 days prior to the date of such certificate and in
addition has filed the most recent annual report required to be filed
thereunder or as to such matters as would then be required to establish
compliance with Rule 144 or any successor rule or rules under the Securities
Act. If at any time the Company is not required to file reports in compliance
with either Section 13 or Section 15(d) of the Exchange Act, the Company at
its expense will, forthwith upon the written request of the Holder, make
available adequate current public information with respect to the Company
within the meaning of paragraph (c)(2) of Rule 144.
14. Specific Performance. Irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached; accordingly, the parties
hereto shall be entitled to an injunction or injunctions to prevent breaches
of this Agreement and to enforce specifically the terms and provisions hereof
in any court of the United States or any state having jurisdiction, this being
in addition to any other remedy to which they are entitled at law or in
equity.
15. Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void, unenforceable or against its regulatory policy, the
remainder of the terms, provisions, covenants and restrictions of this
Agreement shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
16. Submission to Jurisdiction. Each of the Company and PX Holding
hereby irrevocably submits in any action, suit or proceeding arising out of
this Agreement or any of the transactions contemplated hereby to the exclusive
jurisdiction of the United States District Court for the Southern District of
New York and the jurisdiction of any court of the State of New York located in
the City of New York, Borough of Manhattan. The parties hereto waive any and
all objections to the laying of venue of any such litigation in such
jurisdiction and agree not to plead or claim in any such litigation that such
litigation has been brought in an inconvenient forum.
17. Waiver of Jury Trial. Each party acknowledges and agrees that any
controversy which may arise under this Agreement is likely to involve
complicated and difficult issues, and therefore each such party hereby
irrevocably and unconditionally waives any right such party may have to a
trial by jury in respect of any litigation directly or indirectly arising out
of or relating to this Agreement, or the transactions contemplated by this
Agreement. Each party certifies and acknowledges that (i) no representative,
agent or attorney of any other party has represented, expressly or otherwise,
that such other party would not, in the event of litigation, seek to enforce
the foregoing waiver, (ii) each such party understands and has considered the
implications of this waiver, (iii) each such party makes this waiver
voluntarily and (iv) each such party has been induced to enter into this
Agreement by, among other things, the mutual waivers and certifications in
this Section 17.
18. No Other Registration Rights. The Company represents and warrants
to each Holder that there is not in effect on the date of this Agreement any
agreement by the Company pursuant to which any holders of securities of the
Company have a right to cause the Company to register or qualify such
securities under the Securities Act or any securities or blue sky laws of any
jurisdiction.
19. Recapitalization, Exchanges, etc., Affecting the Company's
Capital Stock. The provisions of this Agreement shall apply to the full extent
set forth herein with respect to any and all shares of capital stock of the
Company or any successor or permitted assign of the Company (whether by
merger, consolidation, sale of assets or otherwise), or at the election of a
Holder, any person who controls any of the foregoing, which may be issued in
respect of, in exchange for or in substitution of, the Registrable Securities.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
signed by their respective officers thereunto duly authorized as of the date
first written above.
PX Holding Coporation
By: /s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
PANAVISION INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President and
General Counsel
