Exhibit 1-7
PX Holding Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
November 16, 2004
Panavision Inc.
c/o Xxxxx X. Xxxxxxx
Chief Financial Officer
0000 Xx Xxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Gentlemen:
PX Holding Corporation, a Delaware corporation ("PX Holding"),
and Panavision Inc., a Delaware corporation ("Panavision"), hereby agree that,
simultaneously with the execution hereof, PX Holding will deliver to Panavision
(i) 215,274 shares of Series D Cumulative Pay-In-Kind Preferred Stock, par value
$0.01 per share, of Panavision (the "Series D Preferred Stock"), having an
aggregate liquidation preference of $215,274,000, together with accrued and
unpaid dividends thereon as of the date hereof (which amount is approximately
$18,558,960), in exchange for which Panavision will issue to PX Holding, and PX
Holding will acquire, shares of common stock, par value $0.01 per share ("Common
Stock"), of Panavision, at an exchange ratio (the "Exchange Ratio") of 125
shares of Common Stock for each $1,000 of outstanding liquidation preference or
accrued and unpaid dividends thereon, as the case may be (so as to value the
Common Stock in the transaction at $8.00 per share), and (ii) 1,381,690 shares
of Series E Non-Cumulative Perpetual Participating Preferred Stock, par value
$0.01 per share (together with the 215,274 shares of Series D Preferred Stock,
the "Consideration Shares"), of Panavision, in exchange for which Panavision
will issue to PX Holding, and PX Holding will acquire, 1,381,690 shares of
Common Stock (together with the shares of Common Stock issued by Panavision in
exchange for the Series D Preferred Stock, the "Common Shares").
The parties acknowledge that the Common Shares shall be
Registrable Securities for the purposes of the Registration Rights Agreement,
dated as of December 3, 2002, between Panavision and PX Holding.
In connection with the transactions contemplated by this
Letter Agreement, PX Holding represents and warrants that:
1. PX Holding is a corporation duly organized, validly existing
and in good standing under the laws of Delaware;
2. None of the execution and delivery of this Letter Agreement,
the consummation of the transactions herein contemplated or
compliance with the terms and conditions hereof by PX Holding
will conflict with or result
in a breach of, or require any authorization, approval or
consent which has not been obtained under, or constitute a
default under, the charter or by-laws of PX Holding, or any
applicable provision or term of any law or regulation, or any
order, writ, injunction or decree of any court or governmental
authority or agency, or any material agreement or instrument
to which PX Holding is a party or by which PX Holding or any
of its property is bound or to which it is subject;
3. PX Holding has all necessary corporate power, authority and
legal right to execute, deliver and perform its obligations as
described in this Letter Agreement and the execution, delivery
and performance by PX Holding of this Letter Agreement has
been duly authorized;
4. This Letter Agreement has been duly and validly executed and
delivered by PX Holding and constitutes the legal, valid and
binding obligation of PX Holding, enforceable against PX
Holding in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, fraudulent
transfer or similar laws of general applicability affecting
the enforcement of creditors' rights and (ii) the application
of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law);
5. The transfer of the Consideration Shares will effectively vest
in Panavision good, valid and marketable title to the
Consideration Shares, free and clear of all Encumbrances
whatsoever, except for restrictions on transfer imposed by the
Securities Act of 1933, as amended (the "Securities Act"), or
state securities laws. As used in this Letter Agreement, the
term "Encumbrances" means any and all liens, charges, security
interests, options, claims, mortgages, pledges, or agreements,
obligations, understandings or arrangements or other
restrictions on title or transfer of any nature whatsoever;
6. PX Holding is acquiring the Common Shares for investment and
not with a view toward, or for sale in connection with, any
distribution thereof, nor with any present intention of
distributing or selling the Common Shares. PX Holding agrees
that the Common Shares may not be sold, transferred, offered
for sale, pledged, hypothecated or otherwise disposed of
without registration under the Securities Act and
qualification under any applicable state securities laws,
except pursuant to an exemption from such registration under
the Securities Act and qualification under such laws; and
7. PX Holding is an "accredited investor" as that term is defined
in Regulation D promulgated under the Securities Act.
In connection with the transactions contemplated by this
Letter Agreement, Panavision represents and warrants that:
1. Panavision is a corporation duly organized, validly existing
and in good standing under the laws of Delaware;
2. None of the execution and delivery of this Letter Agreement,
the consummation of the transactions herein contemplated
(including, but not limited to the issuance and sale of the
Common Shares) or compliance with the terms and conditions
hereof by Panavision will conflict with or result in a breach
of, or require any authorization, approval or consent which
has not been obtained under, or constitute a default under,
the charter or by-laws of Panavision, or any applicable
provision or term of any law or regulation, or any order,
writ, injunction or decree of any court or governmental
authority or agency, or any material agreement or instrument
to which Panavision is a party or by which Panavision or any
of its property is bound or to which it is subject;
3. Panavision has all necessary corporate power, authority and
legal right to execute, deliver and perform its obligations as
described in this Letter Agreement and the execution, delivery
and performance by Panavision of this Letter Agreement has
been duly authorized;
4. This Letter Agreement has been duly and validly executed and
delivered by Panavision and constitutes the legal, valid and
binding obligation of Panavision, enforceable against
Panavision in accordance with its terms, except as such
enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, fraudulent
transfer or similar laws of general applicability affecting
the enforcement of creditors' rights and (ii) the application
of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law); and
5. The Common Shares being issued pursuant to this Letter
Agreement have been duly authorized by all necessary corporate
action on the part of Panavision, and the Common Shares being
issued pursuant to this Letter Agreement will be validly
issued, fully paid and nonassessable, will be free and clear
of all Encumbrances whatsoever, except for restrictions on
transfer imposed by the Securities Act or state securities
laws, and the issuance of such shares is not subject to
preemptive or subscription rights of any stockholder of
Panavision.
PX Holding agrees that neither it nor any of its affiliates
(as such term is defined in the Securities Exchange Act of 1934, as amended
("Affiliates")) shall effect or agree to effect a merger with Panavision
pursuant to Section 253 of the Delaware General Corporation Law (or any
successor provision of such law) or the equivalent under the law
of any applicable jurisdiction (a "Short-Form Merger"); provided that the
foregoing restriction shall not apply (i) from and after such time as PX Holding
and its Affiliates collectively own less than 90% of the Common Stock (the
"Termination Date"), provided that the transaction or series of transactions
giving rise to the Termination Date were consummated in good faith and not for
the primary purpose of evading the foregoing restriction; or (ii) if PX Holding
or its Affiliate (as applicable) either:
1. Obtains the prior consent to such Short-Form Merger by a
majority vote of a special committee of Panavision's Board of
Directors composed of no less than two directors, each of whom
is independent from PX Holding and its Affiliates under
Delaware law (each such director, an "Independent Director");
provided that such special committee of Panavision's Board of
Directors shall have first been duly authorized to negotiate
with PX Holding or its Affiliate (as applicable) and to
retain, and shall have retained, outside independent financial
advisors and legal counsel to advise it in connection with
such negotiations and consent; or
2. Shall theretofore have made and consummated (without a waiver
of the Minimum Condition (as defined below)) a Qualifying
Tender Offer (as defined below) for the remaining shares of
Common Stock not owned by PX Holding or its Affiliates (such
shares, "Minority Shares") prior to effecting such Short-Form
Merger; provided that such Short-Form Merger shall be effected
as promptly as practicable following the consummation of the
Qualifying Tender Offer and shall be at the same per share
consideration for all Minority Shares (as adjusted for stock
splits, stock dividends and similar events).
As used in this Letter Agreement, the term "Qualifying Tender
Offer" shall mean an offer by PX Holding or one of its Affiliates to purchase
all of the Minority Shares that satisfies each of the following conditions:
1. A special committee of Panavision's Board of Directors
composed of Independent Directors shall have been established
to consider the tender offer (the "Tender Offer Special
Committee") and such Tender Offer Special Committee shall have
been authorized to retain, and shall have retained, outside
independent financial advisors and legal counsel in connection
therewith;
2. The Tender Offer Special Committee shall be entitled to submit
a Schedule 14D-9 under Rule 14d-9 of the Exchange Act on
behalf of the Company in respect of the tender offer;
3. PX Holding or its applicable Affiliate shall have disclosed in
its Schedule TO with respect to the tender offer its intention
and firm commitment to effect a Short-Form Merger at the same
per-share consideration (as adjusted for stock splits, stock
dividends and similar events) as promptly as practicable
following the consummation of such tender offer; and
4. The tender offer shall be subject to the unwaivable condition
(the "Minimum Condition") that a majority of the Minority
Shares shall have been validly tendered and purchased in
connection with the tender offer; provided that, in the event
that Sony Corporation or an Affiliate (collectively, "Sony")
(i) is a shareholder of Panavision and (ii) is involved in
significant business relationships with either PX Holding,
Panavision or any of their respective Affiliates at the time
of the tender offer such that Sony's independence from PX
Holding or its Affiliates is compromised, any shares of Common
Stock held by Sony shall be disregarded in determining whether
the Minimum Condition has been satisfied.
PX Holding further agrees that, until the earlier to occur of
(i) the Termination Date and (ii) PX Holding or any of its Affiliates having
acquired all Minority Shares, neither it nor its Affiliates will, without the
prior written consent of a majority of the Independent Directors of Panavision's
Board offer, sell, contract to sell, transfer, hypothecate or otherwise dispose
of, directly or indirectly, securities of Panavision in a transaction or series
of transactions that would result in any person or group of related persons
owning 90% or more of the outstanding shares of each class of Panavision's stock
in the aggregate unless the transferee(s) of such stock agrees to (a) promptly
make an offer to purchase all outstanding shares of Common Stock at the same
price per share or (b) be bound by the provisions contained in this Letter
Agreement; provided that this restriction shall not apply to any pledge, grant
of security interest in, hypothecation or similar Encumbrance of any shares of
Common Stock in connection with a bona fide financing transaction or any
foreclosure or sale of such Common Stock in connection with any foreclosure
thereon by the relevant secured parties.
Upon the delivery of the Consideration Shares in exchange for
the Common Shares, PX Holding and Panavision shall execute and deliver a cross
receipt in the form attached hereto as Exhibit A.
The provisions of this Letter Agreement may not be amended or
waived except by an instrument in writing signed by the parties hereto, and, in
the case of Panavision, only upon authorization of a majority of the Independent
Directors. No waiver of any breach or provision of this Letter Agreement by a
party shall be deemed to be a waiver of any other or subsequent breach or
condition, whether of like or different nature.
This Letter Agreement shall be deemed to be a contract made
under the laws of the State of Delaware, and for all purposes shall be governed
by and construed in accordance with the laws of said State, without regard to
conflicts of law principles thereof.
This Letter Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party.
If you are in agreement with the foregoing, please so indicate
by signing the enclosed duplicate copy of this Letter Agreement.
PX HOLDING CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President & Chief
Financial Officer
ACCEPTED AND AGREED TO:
PANAVISION INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President &
Chief Financial Officer
EXHIBIT A
---------
CROSS RECEIPT
Reference is made to that certain Letter Agreement (the "Letter
Agreement"), dated as of November 16, 2004, between PX Holding Corporation, a
Delaware corporation ("PX Holding"), and Panavision Inc., a Delaware corporation
("Panavision").
Panavision hereby acknowledges delivery of (i) 215,274 shares of Series
D Cumulative Pay-In-Kind Preferred Stock, par value $0.01 per share, of
Panavision, on which there are $18,558,960 of accrued and unpaid dividends and
(ii) 1,381,690 shares of Series E Non-Cumulative Perpetual Participating
Preferred Stock, par value $0.01 per share, of Panavision, in satisfaction of PX
Holding's obligations under the Letter Agreement.
PANAVISION INC.
By: __________________________
Name:
Title:
PX Holding hereby acknowledges delivery of 30,610,810 shares of common
stock, par value $0.01 per share, of Panavision, in satisfaction of Panavision's
obligations under the Letter Agreement.
PX HOLDING CORPORATION
By: ___________________________
Name:
Title:
