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STOCK PURCHASE AGREEMENT
by and between
PX HOLDING CORPORATION
and
M & F WORLDWIDE CORP.
dated as of
April 19, 2001
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TABLE OF CONTENTS
Page
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1 Purchase and Sales of Shares................................1
ARTICLE II
CLOSING; PAYMENT; DELIVERIES
Section 2.1 The Closing.................................................2
Section 2.2 Deliveries by the Purchaser.................................2
Section 2.3 Deliveries by the Selling Stockholder.......................2
Section 2.4 Tax Sharing Agreement.......................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLING STOCKHOLDER
Section 3.1 Organization................................................3
Section 3.2 Authorization; Validity of Agreement........................4
Section 3.3 No Violations; Consents and Approvals.......................4
Section 3.4 Ownership and Possession of Shares..........................5
Section 3.5 Good Title Conveyed.........................................5
Section 3.6 Panavision SEC Reports and Financial Statements.............6
Section 3.7 No Undisclosed Liabilities..................................6
Section 3.8 Brokers.....................................................7
Section 3.9 No Other Representations or Warranties......................7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
Section 4.1 Organization................................................7
Section 4.2 Authorization; Validity of Agreement........................7
Section 4.3 No Violations; Consents and Approvals.......................8
Section 4.4 Issuance of Shares at the Closing...........................9
Section 4.5 Purchaser SEC Reports and Financial Statements..............9
Section 4.6 Brokers....................................................10
Section 4.7 No Other Representations or Warranties.....................10
ARTICLE V
MISCELLANEOUS
Section 5.1 Public Announcements.......................................10
Section 5.2 Fees and Expenses..........................................10
Section 5.3 Non-Survival of Representations and Warranties.............10
Section 5.4 Amendment; Waiver..........................................10
Section 5.5 Notices....................................................10
Section 5.6 Certain Definitions........................................12
Section 5.7 Interpretation.............................................12
Section 5.8 Counterparts...............................................12
Section 5.9 Entire Agreement...........................................12
Section 5.10 Severability...............................................13
Section 5.11 Specific Performance.......................................13
Section 5.12 Governing Law..............................................13
Section 5.13 Submission to Jurisdiction.................................13
Section 5.14 Waiver of Jury Trial.......................................14
Section 5.15 Assignment.................................................14
Annex A Certificate of Designation
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of April 19, 2001
(this "Agreement"), by and between PX Holding Corporation, a Delaware
corporation (the "Selling Stockholder") and M & F Worldwide Corp., a
Delaware corporation (the "Purchaser").
WHEREAS, the Selling Stockholder is the owner of
7,320,225 shares (the "Shares") of common stock, par value $.01 per share
("Panavision Common Stock"), of Panavision Inc., a Delaware corporation
("Panavision");
WHEREAS, upon the terms and subject to the conditions set
forth herein, the Selling Stockholder desires to sell to the Purchaser, and
the Purchaser desires to purchase from the Selling Stockholder, all of the
Shares;
NOW, THEREFORE, in consideration of the foregoing and the
respective representations, warranties, covenants and agreements set forth
herein, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
Section 1.1 Purchase and Sales of Shares. Upon the terms
and subject to the conditions of this Agreement, at the closing
contemplated by this Agreement (the "Closing"), the Selling Stockholder is
selling, transferring, assigning, conveying and delivering to the
Purchaser, and the Purchaser is accepting from the Selling Stockholder, the
Shares for an aggregate consideration to consist of:
(a) 1,500,000 shares of common stock, par value $.01 per
share, of the Purchaser (the "Purchaser Common Stock ");
(b) 6,182,153 shares of preferred stock, having a
liquidation preference of $6.50 per share, of the Purchaser, having the
terms set forth in the Certificate of Designation attached hereto as Annex
A ("Purchaser Preferred Stock"); and
(c) $80,000,000 in cash.
such Shares, and such shares of Purchaser Common Stock and Purchaser
Preferred Stock, in each case, to be free and clear of any and all
Encumbrances.
ARTICLE II
CLOSING; PAYMENT; DELIVERIES
Section 2.1 The Closing. The Closing is taking place on
the date hereof, at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx
LLP, Four Times Square, New York, New York 10036-6522, unless another date
or place is agreed to in writing by the parties hereto.
Section 2.2 Deliveries by the Purchaser. At the Closing,
the Purchaser is delivering to the Selling Stockholder:
(a) the consideration contemplated by Section 1.1 hereof
by (x) wire transfer in immediately available funds to the account or
accounts specified by the Selling Stockholder in a written notice to be
delivered to the Purchaser at least two business days prior to the Closing
and (y) delivery of stock certificates representing the Purchaser Common
Stock and the Purchaser Preferred Stock, in each case duly endorsed or
accompanied by other duly executed instruments of transfer;
(b) resolutions of the Board of Directors of the
Purchaser authorizing the execution, delivery and performance of this
Agreement and a certificate of an officer of the Purchaser dated the date
hereof to the effect that such resolutions were duly adopted and are in
full force and effect; and
(c) a registration rights agreement relating to the
Purchaser Common Stock and Purchaser Preferred Stock being issued pursuant
to this Agreement (the "Registration Rights Agreement").
Section 2.3 Deliveries by the Selling Stockholder. At the
Closing, the Selling Stockholder is delivering to the Purchaser:
(a) a stock certificate or stock certificates
representing the Shares being purchased at the Closing, duly endorsed or
accompanied by other duly executed instruments of transfer;
(b) resolutions of the Board of Directors of the Selling
Stockholder authorizing the execution, delivery and performance of this
Agreement and a certificate of an officer of the Selling Stockholder dated
as of the date hereof to the effect that such resolutions were duly adopted
and are in full force and effect;
(c) a letter from the Selling Stockholder and Panavision
to the Purchaser confirming that upon acquisition of the Shares, the
Purchaser will become a "Holder" under the Registration Rights Agreement
dated as of June 5, 1998, between Panavision and the Selling Stockholder,
and that all Shares acquired pursuant to this Agreement will become
"Registrable Securities" under the terms of such agreement (the
"Registration Rights Transfer Agreement"); and
(d) a letter relating to Xxxxxx X. Xxxxxxxx'x agreement
to disburse funds to the Purchaser, such letter in the form previously
agreed to by the parties.
Section 2.4 Tax Sharing Agreement. At the Closing,
Panavision and the Purchaser will enter into a tax sharing agreement in a
form previously agreed to by the parties.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE SELLING STOCKHOLDER
The Selling Stockholder represents and warrants to the
Purchaser as follows:
Section 3.1 Organization.
(a) The Selling Stockholder is a corporation duly
organized, validly existing, and in good standing under the laws of
Delaware, has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as it is now being
conducted, and is qualified or licensed to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
nature of the business conducted by it makes such qualification or
licensing necessary, except where the failure to be so organized, existing
and in good standing or to have such power and authority, or to be so
qualified or licensed is not reasonably likely to (x) have a Material
Adverse Effect on the Selling Stockholder; or (y) impair the ability of the
Selling Stockholder to perform its obligations hereunder.
(b) As used in this Agreement, the term "Material Adverse
Effect" shall mean a material adverse effect on the business, assets,
results of operations or financial condition of the Selling Stockholder or
the Purchaser, as the case may be; provided, however, that a Material
Adverse Effect shall not include (a) any change or effect relating or due
to general economic or industry-wide conditions and (b) any change or
effect resulting from the announcement by the Selling Stockholder of its
intention to sell or the Purchaser of its intention to purchase, the
Shares, the execution of this Agreement or the consummation of the
transactions contemplated hereby.
Section 3.2 Authorization; Validity of Agreement.
(a) The Selling Stockholder has the requisite corporate
power and authority to execute and deliver this Agreement, the Registration
Rights Agreement and the Registration Rights Transfer Agreement and to
consummate the transactions contemplated hereby and thereby. The execution
and delivery by the Selling Stockholder of this Agreement, the Registration
Rights Agreement and the Registration Rights Transfer Agreement and the
consummation of the transactions contemplated hereby and thereby have been
duly authorized by the Board of Directors of the Selling Stockholder and no
other corporate proceedings on the part of the Selling Stockholder are
necessary to authorize the execution and delivery of this Agreement, the
Registration Rights Agreement and the Registration Rights Transfer
Agreement by the Selling Stockholder and the consummation of the
transactions contemplated hereby and thereby. This Agreement, the
Registration Rights Agreement and the Registration Rights Transfer
Agreement have been duly executed and delivered by the Selling Stockholder
and, assuming due authorization, execution and delivery of this Agreement,
the Registration Rights Agreement and the Registration Rights Transfer
Agreement by the Purchaser, are valid and binding obligations of the
Selling Stockholder, enforceable against the Selling Stockholder in
accordance with their terms, except to the extent such enforcement may be
subject to or limited by (i) bankruptcy, insolvency or other similar laws,
now or hereafter in effect, affecting creditors' rights generally and (ii)
the effect of general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity).
Section 3.3 No Violations; Consents and Approvals.
(a) Neither the execution and delivery of this Agreement,
the Registration Rights Agreement and the Registration Rights Transfer
Agreement by the Selling Stockholder nor the consummation by the Selling
Stockholder of the transactions contemplated hereby and thereby will (i)
violate any provision of the certificate of incorporation or bylaws of the
Selling Stockholder, (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give
rise to any right of termination, amendment, cancellation or acceleration)
under, any of the terms, conditions or provisions of any loan or credit
agreement, note, bond, mortgage, indenture, guarantee, other evidence of
indebtedness, lease, license, contract, agreement or other instrument or
obligation to which the Selling Stockholder is a party or by which any of
its assets may be bound or (iii) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to the Selling Stockholder
or any of its properties or assets; except in the case of clauses (ii) and
(iii) for violations, breaches or defaults which would not reasonably
be likely to (x) have a Material Adverse Effect on the Selling Stockholder;
or (y) impair the ability of the Selling Stockholder to perform its
obligations hereunder.
(b) No filing or registration with, notification to, or
authorization, consent or approval of, any foreign, federal, state, local,
municipal, county or other governmental, administrative or regulatory
authority, body, agency, court, tribunal, commission or similar entity
(including any branch, department or official thereof) (a "Governmental
Entity") is required in connection with the execution and delivery of this
Agreement, the Registration Rights Agreement and the Registration Rights
Transfer Agreement by the Selling Stockholder or the consummation by the
Selling Stockholder of the transactions contemplated hereby and thereby,
except for (i) any applicable requirements under Competition Laws and (ii)
such other consents, approvals, orders, authorizations, notifications,
registrations, declarations and filings the failure of which to be obtained
or made which would not reasonably be likely to (x) have a Material Adverse
Effect on the Selling Stockholder; or (y) impair the ability of the Selling
Stockholder to perform its obligations hereunder.
(c) As used in this Agreement, the term "Competition
Laws" shall mean statutes, rules, regulations, orders, decrees,
administrative and judicial doctrines, and other laws that are designed or
intended to prohibit, restrict or regulate actions having the purpose or
effect of monopolization, lessening of competition or restraint of trade
and include the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended.
Section 3.4 Ownership and Possession of Shares.
(a) Except as set forth on Schedule 3.4(a) of the Selling
Stockholder Disclosure Schedule, the Shares and the certificates
representing the Shares are now, and at all times prior to their transfer
to the Purchaser pursuant to the Closing, were, owned by the Selling
Stockholder, or by a nominee or custodian for the sole and exclusive
benefit of the Selling Stockholder, free and clear of all Encumbrances
whatsoever, except for any Encumbrances created by this Agreement and
Encumbrances arising under the Securities Act or state securities laws.
(b) As used in this Agreement, the term "Encumbrances"
shall mean any and all liens, charges, security interests, options, claims,
mortgages, pledges, proxies, voting trusts or agreements, obligations,
understandings or arrangements or other restrictions on title or transfer
of any nature whatsoever.
Section 3.5 Good Title Conveyed. The stock certificates,
stock powers, endorsements, assignments and other instruments being
executed and delivered by the Selling Stockholder to the Purchaser at the
Closing will be valid and binding obligations of the Selling Stockholder,
enforceable in accordance with their respective terms, and will effectively
vest in the Purchaser good, valid and marketable title to all the Shares to
be transferred to the Purchaser pursuant to and as contemplated by this
Agreement free and clear of all Encumbrances, except restrictions on
transfer imposed by the Securities Act of 1933 (the "Securities Act") and
state securities laws.
Section 3.6 Panavision SEC Reports and Financial
Statements.
(a) Panavision has filed all forms, reports and documents
required to be filed by it with the Securities and Exchange Commission (the
"SEC") since June 4,1998 (collectively, the "Panavision SEC Reports"). The
Panavision SEC Reports (i) were prepared in accordance with the
requirements of the Securities Act or the Securities Exchange Act of 1934
(the "Exchange Act"), as the case may be, and (ii) did not at the time they
were filed contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make
the statements made therein, in the light of the circumstances under which
they were made, not misleading.
(b) Each of the consolidated financial statements
(including, in each case, any notes thereto) contained in the Panavision
SEC Reports (the "Panavision Financial Statements") (i) was prepared from
the books of account and other financial records of Panavision and its
Subsidiaries (as defined herein), (ii) was prepared in accordance with
United States generally accepted accounting principles ("U.S. GAAP")
applied on a consistent basis throughout the periods indicated (except as
may be indicated in the notes thereto) and (iii) presented fairly the
consolidated financial position of Panavision and its consolidated
Subsidiaries as at the respective dates thereof and the results of their
operations and their cash flows for the respective periods indicated
therein except as otherwise noted therein (subject, in the case of
unaudited statements, to the omission of footnotes and normal and recurring
year-end adjustments which were not and are not expected, individually or
in the aggregate, to have a Material Adverse Effect on Panavision).
(c) The Selling Stockholder has heretofore furnished to
the Purchaser complete and correct copies of (i) all agreements, documents
and other instruments not yet filed by Panavision with the SEC but that are
currently in effect and that Panavision expects to file with the SEC after
the date of this Agreement and (ii) all amendments and modifications that
have not been filed by Panavision with the SEC to all agreements, documents
and other instruments that previously had been filed by Panavision with the
SEC and are currently in effect.
Section 3.7 No Undisclosed Liabilities. Except as
disclosed in the Panavision SEC Reports filed prior to the date hereof,
since December 31, 2000, Panavision has not incurred any liabilities
(fixed, contingent or otherwise) that are of a nature that would be
required to be disclosed on a balance sheet of Panavision or the footnotes
thereto prepared in conformity with GAAP, other than (i) liabilities
incurred in the ordinary course of business or (ii) liabilities that,
individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect on Panavision.
Section 3.8 Brokers. Except for Xxxxxxx Xxxxx Xxxxxx
Holdings Inc. ("Xxxxxxx Xxxxx Barney"), no broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Selling Stockholder. The Selling
Stockholder is solely responsible for the fees and expenses of Xxxxxxx
Xxxxx Xxxxxx.
Section 3.9 No Other Representations or Warranties.
Except for the representations and warranties contained in this Article
III, neither the Selling Stockholder nor any other Person (as defined
herein) makes any other express or implied representation or warranty on
behalf of the Selling Stockholder or any of its affiliates.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER
The Purchaser represents and warrants to the Selling
Stockholder as follows:
Section 4.1 Organization. The Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of
Delaware, has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now being conducted,
and is qualified or licensed to do business as a foreign corporation and is
in good standing in each jurisdiction in which the nature of the business
conducted by it makes such qualification or licensing necessary, except
where the failure to be so organized, existing and in good standing or to
have such power and authority, or to be so qualified or licensed is not
reasonably likely to (x) have a Material Adverse Effect on the Purchaser;
or (y) impair the ability of the Purchaser to perform its obligations
hereunder.
Section 4.2 Authorization; Validity of Agreement. The
Purchaser has the requisite corporate power and authority to execute and
deliver this Agreement, the Registration Rights Agreement and the
Registration Rights Transfer Agreement and to consummate the transactions
contemplated hereby and thereby. The execution and delivery by the
Purchaser of this Agreement, the Registration Rights Agreement and the
Registration Rights Transfer Agreement and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by
the Board of Directors of the Purchaser, and no other corporate proceedings
on the part of the Purchaser are necessary to authorize the execution and
delivery of this Agreement, the Registration Rights Agreement and the
Registration Rights Transfer Agreement by the Purchaser and the
consummation of the transactions contemplated hereby and thereby. This
Agreement, the Registration Rights Agreement and the Registration Rights
Transfer Agreement have been duly executed and delivered by the Purchaser
and, assuming due authorization, execution and delivery of this Agreement,
the Registration Rights Agreement and the Registration Rights Transfer
Agreement by the Selling Stockholder, are valid and binding obligations of
the Purchaser, enforceable against the Purchaser in accordance with their
terms, except to the extent such enforcement may be subject to or limited
by (i) bankruptcy, insolvency or other similar laws, now or hereafter in
effect, affecting creditors' rights generally and (ii) the effect of
general principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity).
Section 4.3 No Violations; Consents and Approvals.
(a) Neither the execution and delivery of this Agreement,
the Registration Rights Agreement and the Registration Rights Transfer
Agreement by the Purchaser nor the consummation by the Purchaser of the
transactions contemplated hereby and thereby will (i) violate any provision
of the certificate of incorporation or bylaws of the Purchaser, (ii) result
in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
amendment, cancellation or acceleration) under, any of the terms,
conditions or provisions of any material note, bond, mortgage, indenture,
guarantee, other evidence of indebtedness, license, lease, contract,
agreement or other instrument or obligation to which the Purchaser or any
of its Subsidiaries is a party or by which any of them or any of their
assets may be bound or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to the Purchaser, any of its
Subsidiaries or any of their properties or assets, except in the case of
clauses (ii) and (iii) for violations, breaches or defaults which would not
reasonably be likely to (x) have a Material Adverse Effect on the
Purchaser; or (y) impair the ability of the Purchaser to perform its
obligations hereunder.
(b) No filing or registration with, notification to, or
authorization, consent or approval of, any Governmental Entity is required
in connection with the execution and delivery of this Agreement, the
Registration Rights Agreement and the Registration Rights Transfer
Agreement by the Purchaser or the consummation by the Purchaser of the
transactions contemplated hereby and thereby, except (i) applicable
requirements under Competition Laws and; (ii) the filing of a Certificate
of Designation for the Preferred Stock with the Secretary of State of the
State of Delaware pursuant to the Delaware General Corporation Law; and
(iii) such other consents, approvals, orders, authorizations,
notifications, registrations, declarations and filings the failure of which
to be obtained or made would not reasonably be likely to (x) have a
Material Adverse Effect on the Purchaser; or (y) impair the ability of the
Purchaser to perform its obligations hereunder.
Section 4.4 Issuance of Shares at the Closing. The shares
of Purchaser Common Stock and Purchaser Preferred Stock being issued at the
Closing have been duly authorized by all necessary corporate action on the
part of the Purchaser, and the shares of Purchaser Common Stock and
Purchaser Preferred Stock being issued at the Closing will be validly
issued, fully paid and nonassessable, free and clear of all Encumbrances,
except restrictions on transfer imposed by the Securities Act and state
securities laws, and the issuance of such shares is not subject to
preemptive or subscription rights of any stockholder of the Purchaser.
Section 4.5 Purchaser SEC Reports and Financial
Statements.
(a) The Purchaser has filed all forms, reports and
documents required to be filed by it with the SEC since January 1,1998
(collectively, the "Purchaser SEC Reports"). The Purchaser SEC Reports (i)
were prepared in accordance with the requirements of the Securities Act or
the Exchange Act, as the case may be, and (ii) did not at the time they
were filed contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make
the statements made therein, in the light of the circumstances under which
they were made, not misleading.
(b) Each of the consolidated financial statements
(including, in each case, any notes thereto) contained in the Purchaser SEC
Reports (the "Purchaser Financial Statements") (i) was prepared from the
books of account and other financial records of the Purchaser and its
Subsidiaries, (ii) was prepared in accordance with U.S. GAAP applied on a
consistent basis throughout the periods indicated (except as may be
indicated in the notes thereto) and (iii) presented fairly the consolidated
financial position of the Purchaser and its consolidated Subsidiaries as at
the respective dates thereof and the results of their operations and their
cash flows for the respective periods indicated therein except as otherwise
noted therein (subject, in the case of unaudited statements, to the
omission of footnotes and normal and recurring year-end adjustments which
were not and are not expected, individually or in the aggregate, to have a
Material Adverse Effect on the Purchaser).
(c) The Purchaser has heretofore furnished to the Selling
Stockholder complete and correct copies of (i) all agreements, documents
and other instruments not yet filed by the Purchaser with the SEC but that
are currently in effect and that the Purchaser expects to file with the SEC
after the date of this Agreement and (ii) all amendments and modifications
that have not been filed by the Purchaser with the SEC to all agreements,
documents and other instruments that previously had been filed by the
Purchaser with the SEC and are currently in effect.
Section 4.6 Brokers. Except for Houlihan, Lokey, Xxxxxx &
Zukin ("Xxxxxxxx Xxxxx"), no broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Purchaser. The Purchaser is solely
responsible for the fees and expenses of Xxxxxxxx Xxxxx.
Section 4.7 No Other Representations or Warranties.
Except for the representations and warranties contained in this Article IV,
neither the Purchaser nor any other Person makes any other express or
implied representation or warranty on behalf of the Purchaser or any of its
affiliates.
ARTICLE V
MISCELLANEOUS
Section 5.1 Public Announcements. The Purchaser and the
Selling Stockholder shall consult promptly with each other prior to issuing
any press release or otherwise making any public statement with respect to
this Agreement and the transactions contemplated hereby, shall provide to
the other party for review a copy of any such press release or statement,
and shall not issue any such press release or make any such public
statement prior to such consultation and review, unless required by
applicable law or any listing agreement with a securities exchange.
Section 5.2 Fees and Expenses. All costs and expenses
incurred in connection with this Agreement and the consummation of the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
Section 5.3 Non-Survival of Representations and
Warranties. Other than the representations and warranties set forth in
Sections 3.4, 3.5, and 4.4, which shall survive until December 31, 2002,
the representations and warranties made in this Agreement shall not survive
beyond the Closing.
Section 5.4 Amendment; Waiver. This Agreement may be
amended, modified or supplemented by the parties hereto, at any time. This
Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
Section 5.5 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):
(a) if to the Selling Stockholder, 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
0 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.
(b) if to the Purchaser, to:
M&F Worldwide Corp.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
cc: General Counsel
with a copy to:
Kramer, Levin, Naftalis & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxxxx, Esq.
Section 5.6 Certain Definitions. As used in this
Agreement:
(a) The term "affiliate," as applied to any person, shall
mean any other person directly or indirectly controlling, controlled by, or
under common control with, that person.
(b) The term "Person" or "person" shall include
individuals, corporations, partnerships, trusts, other entities and groups
(which term shall include a "group" as such term is defined in Section
13(d)(3) of the Exchange Act).
(c) The term "Subsidiary" or "Subsidiaries," with respect
to any person, means any corporation, partnership, joint venture or other
legal entity of which such person (either alone or through or together with
any other subsidiary), owns, directly or indirectly, stock or other equity
interests the holders of which are generally entitled to more than 50% of
the vote for the election of the board of directors or other governing body
of such corporation or other legal entity.
Section 5.7 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.
Section 5.8 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.
Section 5.9 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.
Section 5.10 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.
Section 5.11 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 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.
Section 5.12 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 LAW THEREOF.
Section 5.13 Submission to Jurisdiction. Each of the
Selling Stockholder and the Purchaser 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.
Section 5.14 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 5.14.
Section 5.15 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. 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.
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 CORPORATION
By: /s/ Xxxx X. Xxxxxxx
----------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
M & F WORLDWIDE CORP.
By: /s/ Xxxxxx Xxxxxx
----------------------
Name: Xxxxxx Xxxxxx
Title: Chairman of the Board of
Directors, President and Chief
Executive Officer
