PANAVISION INC.
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement") is made and entered into
this 26th day of July, 2000, by and among Panavision Inc., a Delaware
corporation (the "Company"), Sony Electronics Inc., a Delaware corporation
("Sony"), and PX Holding Corporation, a Delaware corporation ("PX Holding").
W I T N E S S E T H
WHEREAS, Sony and the Company are parties to that certain Stock and
Warrant Purchase Agreement of even date herewith (the "Purchase Agreement")
pursuant to which Sony is purchasing 714,300 shares (the "Purchase Shares") of
the Company's common stock, par value $.01 per share ("Common Stock"), and a
warrant (the "Warrant") to purchase an additional 714,300 shares of Common Stock
(the "Warrant Shares"); and
WHEREAS, prior to the consummation of the transactions contemplated by
the Purchase Agreement, PX Holding owned more than 90% of the issued and
outstanding Common Stock of the Company.
NOW, THEREFORE, in consideration of the mutual promises and cove nants
set forth herein, the Company, Sony and PX Holding agree as follows:
1. DEFINITIONS
1.1 As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
"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. For purposes of this Agreement, PX Holding and its Affiliates
shall not be deemed to be an Affiliate of Sony or of any of
Sony's Affiliates, and Sony and its Affiliates shall not be deemed to be an
Affiliate of PX Holding or of any of PX Holding's Affiliates.
"Governmental Authority" shall mean any federal, state, municipal or
other governmental authority, department, commission, board, agency or other
instrumen tality.
"Operating Agreement" shall mean the Operating Agreement of DHD
Ventures, LLC, of even date herewith, by and between the Company and Sony.
"Person" shall mean any individual, corporation, partnership, limited
liability company, limited liability partnership, joint venture, estate, trust,
cooperative, foundation, union, syndicate, league, consortium, coalition,
committee, society, firm, company or other enterprise, association, organization
or other entity or any federal, state, municipal or other governmental
authority, department, commission, board, agency or other instrumentality.
"Sony Director" shall mean one person designated by Sony to serve as a
director on the Board who shall be subject to the approval of PX Holding, such
approval not to be unreasonably withheld.
"Third Party" shall mean any Person other than Affiliates of PX Holding
(other than the Company).
1.2 As used in this Agreement, the terms "Purchase Shares" and "Warrant
Shares" shall include all shares of Common Stock issued in respect of the
Purchase Shares or Warrant Shares in the event of a stock split, stock dividend
or similar transaction or pursuant to Sony's anti-dilution rights set forth in
the Warrant, dated the date hereof, issued by the Company to Sony.
2. BOARD OF DIRECTORS
2.1 PX Holding shall vote, and cause its Affiliates to vote, all shares
of Common Stock owned or held of record by PX Holding and its Affiliates at any
regular or special meeting of the stockholders of the Company called for the
purpose of filling positions on the Board of Directors of the Company (the
"Board"), or in any written consent executed in lieu of such a meeting, and
shall take all actions within its control that are necessary to ensure the
election or appointment to the Board of the Sony Director, commencing within
seven days of the date hereof.
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2.2 In the event of any vacancy of the Sony Director on the Board,
whether caused by the death, disability, retirement, resignation, removal,
termination of term of office or otherwise, PX Holding shall take all actions
within its control that are necessary to cause the election to the Board of a
replacement Sony Director.
2.3 Sony may at any time request in writing that the Sony Director be
removed as a member of the Board, with or without cause, and upon such written
request, PX Holding shall vote, and cause its Affiliates to vote, all of its
Common Stock to effect such removal. Neither the Company nor PX Holding nor its
Affili ates shall take any action to remove the Sony Director from the Board
without Sony's prior written consent.
2.4 The Company shall cooperate with Sony and PX Holding, and take all
such actions that it may lawfully take, to achieve the results intended by this
Section 2, including, without limitation, the appointment within seven days of
the date hereof of the Sony Director to the Board.
3. TAG-ALONG RIGHTS
3.1 (a) PX Holding shall not, and shall cause its Affiliates not to,
directly or indirectly, sell, exchange (in a business combination transaction or
otherwise), transfer or otherwise dispose of, to any Third Party in a bona fide
transaction (or series of related transactions (it being understood that any two
or more transactions need not be with the same purchaser in order to be
"related")), a number of shares of Common Stock held by PX Holding and its
Affiliates which constitute at least 40% of all shares of Common Stock then
issued and outstanding (a "40% Sale") (or, after a 40% Sale, a number of shares
of Common Stock which constitute at least 5% of all shares of Common Stock then
issued and outstanding) (in either such event, such number of shares, the
"Tag-Along Minimum Amount") unless PX Holding and its Affiliates comply with
this Section 3.1.
(b) If PX Holding or an Affiliate of PX Holding receives a bona
fide offer (an "Included Offer") from a Third Party to purchase or otherwise
acquire an aggregate number of shares of Common Stock (the "Included Shares")
held by any one or more of PX Holding and its Affiliates which meets or exceeds
the Tag-Along Minimum Amount which PX Holding and/or its Affiliates determines
to accept, PX Holding shall then cause all material terms of the Included Offer
(includ ing the identity of the Third Party, the number of shares which the
Third Party is seeking to purchase or otherwise acquire and the per share price
contained in the Included Offer) to be reduced to writing and shall deliver
written notice (the "Included
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Notice") of such Included Offer to Sony as provided for in this Agreement. The
Included Notice shall contain an offer by such Third Party to purchase or
otherwise acquire, in addition to the Included Shares being acquired from PX
Holding, an aggregate amount of Purchase Shares and Warrant Shares from Sony as
determined pursuant to Section 3.2 below at the same per share price and on the
same other terms as contained in the Included Offer.
(c) Sony shall, within ten (10) days after the date the Included
Notice is given to Sony (the "Included Notice Period"), deliver a reasonably
detailed written notice to PX Holding (the "Tag-Along Notice") which shall
either (i) subject to Section 3.2 below, specify the number of Purchase Shares
and Warrant Shares held by Sony which it wishes to sell pursuant to the Included
Offer (the "Tag-Along Shares") and the total number of Purchase Shares, Warrants
and Warrant Shares then owned by Sony or (ii) indicate that Sony does not wish
to exercise its rights under Section 3 of this Agreement in connection with the
Included Offer. In the event such Third Party modifies any of the material terms
of the Included Offer, the Third Party shall deliver an amended Included Notice
to PX Holding and Sony. Sony shall, if it so desires to sell, exchange, transfer
or otherwise dispose of Tag-Along Shares pursuant to the Included Notice, as so
amended, deliver to PX Holding an amended Tag-Along Notice specifying the
amended number of Tag-Along Shares prior to the date (such date and the last day
of the Included Notice Period, each a "Response Date") which is the later of
five (5) days after the date such amended Included Notice is delivered to Sony
or the end of the original Included Notice Period.
3.2 Sony shall have the right to sell pursuant to the Included Offer a
number of Tag-Along Shares equal to the product of (x) the total number of
shares of Common Stock to be acquired by the Third Party pursuant to such
Included Offer multiplied by (y) a fraction, the numerator of which shall be the
aggregate number of Purchase Shares and Warrant Shares held by Sony and its
Affiliates, and the denomi nator of which shall be the sum of the aggregate
number of shares of Common Stock owned by PX Holding and its Affiliates and the
aggregate number of Purchase Shares and Warrant Shares held by Sony and its
Affiliates. Notwithstanding the foregoing, in the event that the consummation of
the sale of the Included Shares would result in the deregistration of the Common
Stock under the Securities Act of 1933, as amended, Sony shall have the right to
sell, pursuant to the Included Offer, a number of Tag-Along Shares equal to 100%
of the Purchase Shares and Warrant Shares then owned by Sony or its Affiliates.
3.3 If, by 5:00 p.m., New York City time, on the last occurring
Response Date, Sony shall not have delivered to PX Holding a Tag Along Notice
with respect
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to the last Included Notice delivered to Sony, then Sony shall be deemed to have
thereafter irrevocably waived its rights under Section 3 of this Agreement with
respect to such Included Offer provided that the transactions contemplated by
the Included Offer are consummated in accordance with the immediately following
sentence. Thereafter, PX Holding and its Affiliates may sell or otherwise
dispose of the number of shares of Common Stock included in the Included Offer
without including any of the Purchase Shares or the Warrant Shares; provided
that (i) the form of consideration being paid to PX Holding and/or its
Affiliates in such sale or other disposition has not changed from the form
specified in the Included Notice, (ii) in the case where more than one type of
consideration is being paid to PX Holding and/or its Affiliates in such sale or
other disposition, the percentage of the overall consideration that each type of
consideration comprises has not changed from the percentages specified in the
Included Notice, and (iii) such sale or other disposition is completed on terms
no more favorable to PX Holding and its Affiliates than those set forth in the
Included Notice within (A) sixty (60) days after the termination of the last
occurring Response Date or (B) in the event that the transactions contemplated
by the Included Offer require the approval of any one or more Governmental
Authorities, the later to occur of: (1) the date specified in the foregoing
clause (A); and (2) the earlier to occur of (x) the second business day
following the receipt of the last required approval from a Governmental
Authority and (y) one hundred eighty (180) days after the termination of the
last occurring Response Date.
3.4 Any attempt by PX Holding or its Affiliates to transfer Common
Stock in violation of Section 3 hereof shall be void, and the Company shall not
effect such a transfer nor shall it treat any alleged transferee as the holder
of such shares.
4. TERMINATION
4.1 The provisions contained in Section 2 of this Agreement shall
continue in full force and effect from the date hereof through the earliest of
the following dates, upon which such provisions shall terminate in their
entirety:
(a) the date as of which the parties hereto terminate this Agree
ment by written consent of the Company, Sony and PX Holding, or
(b) the date which is the latest of:
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(i) the earlier to occur of the date upon which (A)
an Event of Termination (as defined in the Operating Agreement) has
occurred and (B) the Operating Agreement ceases to be in effect;
(ii) the date upon which Sony and its Affiliates
cease to own shares of Common Stock constituting at least five percent
(5%) of the then issued and outstanding Common Stock; and
(iii) the date upon which Sony and its Affiliates
cease to own shares of Common Stock constituting at least (A) fifty
percent (50%) of the maximum number of shares of Common Stock owned at
any time by Sony and its Affiliates and (B) one percent (1%) of the
then issued and outstanding Common Stock.
For the avoidance of doubt, any Common Stock acquirable upon the exercise of any
unexercised Warrants shall not be deemed to be owned by Sony or any of its
Affili ates unless and until such shares of Common Stock are, in fact, acquired
by Sony or any of its Affiliates upon the exercise of such Warrants.
4.2 The provisions contained in Section 3 of this Agreement shall
continue in full force and effect from the date hereof until Sony and its
Affiliates no longer hold (i) any Purchase Shares, (ii) in the case where the
Warrant has not been exercised or has been exercised in part only, the Warrant
or any warrants issued as a result of the partial exercise of the Warrant, and
(iii) in the event that the Warrant has been exercised in whole or in part, any
Warrant Shares, after which time such provisions shall terminate and have no
further force or effect.
5. MISCELLANEOUS
5.1 The parties hereto hereby declare that it is impossible to measure
in money the damages which will accrue to a party hereto or to its heirs,
personal representatives, or assigns by reason of a failure to perform any of
the obligations under this Agreement and agree that the terms of this Agreement
shall be specifically enforceable. If any party hereto or its heirs, personal
representatives, or assigns institutes any action or proceeding to specifically
enforce the provisions hereof, any person against whom such action or proceeding
is brought hereby waives the claim or defense therein that such party or such
personal representative has an adequate remedy at law, and such person shall not
offer in any such action or proceeding the claim or defense that such remedy at
law exists.
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5.2 All notices or other communications required or permitted hereunder
shall be in writing and shall be deemed given or delivered (i) when delivered
personally or by private courier, (ii) when actually delivered by registered or
certified United States mail, return receipt requested, or (iii) when sent by
telecopy (provided that it is confirmed by a means specified in clause (i) or
(ii)), addressed as follows:
If to Sony, to:
Sony Electronics Inc.
0 Xxxx Xxxxx
Xxxx Xxxxx, Xxx Xxxxxx 00000
Attention: General Counsel, Legal Department
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to PX Holding, to:
PX Holding Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx,
Executive Vice President and
General Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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If to the Company, to:
Panavision Inc.
0000 Xx Xxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy, in the case of PX Holding or the Company, to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
or to such other address as such party may indicate by a notice delivered to the
other parties hereto.
5.3 This Agreement shall not be changed, modified, or amended except by
a writing signed by the party to be affected by such change, modification or
amendment, and this Agreement may not be discharged except by performance in
accordance with its terms or by a writing signed by the party to which
performance is to be rendered.
5.4 If any provision of this Agreement or the application of any
provision hereof to any person or circumstances is held invalid, the remainder
of this Agree ment and the application of such provision to other persons or
circumstances shall not be affected unless the provision held invalid shall
substantially impair the benefits of the remaining portions of this Agreement.
5.5 This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators,
successors and permitted assigns. This Agreement may not be assigned by either
party hereto, except with the prior written consent of the other party hereto;
provided, however, that each party may assign its rights, but not its
obligations, under this Agreement to any Affiliate of such party.
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5.6 (a) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware applicable to contracts made
and to be performed wholly within said State, without giving effect to the
conflict of laws principles thereof.
(b) Neither party shall commence any legal proceeding or action
against the other party under this Agreement unless and until the parties have
attempted in good faith to settle the underlying dispute through negotiation or
mediation for a period of not less than 30 days. Each of the parties hereto
irrevoca xxx and unconditionally submits to the exclusive jurisdiction of the
United States District Court for the Southern District of New York or, if such
court will not accept jurisdiction, the Supreme Court of the State of New York,
New York County or any court of competent civil jurisdiction sitting in New York
County, New York. In any action, suit or other proceeding, each of the parties
hereto irrevocably and uncondi tionally waives and agrees not to assert by way
of motion, as a defense or otherwise any claims that it is not subject to the
jurisdiction of the above courts, that such action or suit is brought in an
inconvenient forum or that the venue of such action, suit or other proceeding is
improper. Each of the parties hereto also agrees that any final and unappealable
judgment against a party hereto in connection with any action, suit or other
proceeding shall be conclusive and binding on such party and that such award or
judgment may be enforced in any court of competent jurisdiction, either within
or outside of the United States. A certified or exemplified copy of such award
or judgment shall be conclusive evidence of the fact and amount of such award or
judgment.
(c) EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO A
JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR
THE EN FORCEMENT OF ANY PROVISION OF THIS AGREEMENT.
5.7 Should any party hereto bring an action to enforce the terms of
this Agreement then, if the party hereto which brought such action prevails in
such action it shall be entitled to recovery of its attorney's fees from the
party hereto against whom such action was brought, and if the party hereto
against whom such action was brought prevails in such action it shall be
entitled to recovery of its attorney's fees from the party hereto which brought
such action.
5.8 This Agreement sets forth the entire agreement and understanding
among the parties as to the subject matter hereof and merges and supersedes all
prior discussions, agreements and understandings of every kind and nature among
them.
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5.9 The captions appearing in this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit or describe
the scope and intent of this Agreement or any of the provisions hereof.
5.10 This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original and all of which taken together shall
constitute a single agreement.
5.11 The parties have participated jointly in the negotiation and
drafting of this Agreement. Consequently, in the event an ambiguity or question
of intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties hereto, and no presumption or burden of proof
shall arise favoring or disfavoring either party by virtue of the authorship of
any provision of this Agree ment.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement as of the date first above written.
PANAVISION INC.
By:
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Name:
Title:
PX HOLDING CORPORATION
By:
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Name:
Title:
SONY ELECTRONICS INC.
By:
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Name:
Title:
