EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated this 26th day of July, 2000, by
and between Panavision Inc., a Delaware corporation (the "Company"), and Sony
Electronics Inc., a Delaware corporation on its own behalf ("Sony") and in its
capacity as the Holder Representative.
WHEREAS, the Company and Sony have entered into a Stock and Warrant
Purchase Agreement, of even date herewith (the "Purchase Agreement"), pursuant
to which Sony is purchasing from the Company 714,300 shares of its common stock,
par value $0.01 per share (the "Common Stock"), and a warrant (the "Warrant") to
purchase an additional 714,300 shares of Common Stock;
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.
"Governmental Authority" shall mean any federal, state, municipal or
other governmental authority, department, commission, board, agency or other
instrumentality.
"Holder" means Sony and any other person that owns Registrable
Securities, including their respective successors and assigns who acquire
Registrable Securities, directly or indirectly, from Sony 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.
"Holder Representative" shall mean, from time to time, Sony or an
Affiliate of Sony which the then-existing Holder Representative may designate in
a reasonably detailed writing delivered to the Company and the Holders from time
to time.
"PX Holding" means PX Holding Corporation, a Delaware corporation.
"PX Holding Registration Rights Agreement" means the Registration
Rights Agreement, dated as of June 5, 1998, by and between PX Holding and the
Company.
"Registrable Securities" means (a) any shares of Common Stock issued in
accordance with Section 2.2 of the Purchase Agreement, (b) any shares of Common
Stock issuable to Sony upon exercise of the Warrant, in whole or in part, (c)
any shares of Common Stock acquired by Sony on the open market at a time when
such party 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 the Common Stock referred to in clauses (a), (b) and (c)
above, by way of 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. 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) Subject to Section 2(e) hereof, if at any time the Holder
Representative shall request the Company in writing to register under the
Securities Act all or a part of the Registrable Securities held by the Holders
(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 the Holder Representative's request is made)
a registration statement providing for the sale of all such Registrable
Securities requested by the Holder Representative to be registered. 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 Representative shall request. 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
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public sale or distribution of any such securities during such period, including
a sale pursuant to Rule 144 under the Securities Act. Except as expressly
provided under this Agreement, the Holders shall not effect any public sale or
distribution of any Company securities during the 15-day period prior to, and
during the 45-day period beginning on, the closing of each underwritten offering
under any Demand Registration Statement; provided, however, that if either or
both of the periods specified in the equivalent provision in the PX Holding
Registration Rights Agreement are shortened by agreement by the Company or by
the Company's waiving its rights under such equivalent provision, then the
corresponding period(s) in this sentence shall be deemed to be automatically
amended to be identical to the period(s) applicable to PX Holding under the
equivalent provision in the PX Holding Registration Rights Agreement.
(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 the Holder Representative notifies the Company in
writing of the Holders' desire that the Registrable Securities to be covered by
a Demand Registration Statement be sold pursuant to an underwritten offering,
the Holder Representative 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
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.
(e) The Company shall not be obligated to effect more than three (3)
Demand Registrations in total under this Section 2 with respect to any or all of
the Holders; provided, however, that, to the extent that the Holders are unable
to include as part of a Demand Registration the lesser of (i) one-half of the
aggregate amount of Registrable Securities requested to be included in such
Demand Registration by such Holders and (ii) Registrable Securities representing
an aggregate of two hundred fifty thousand (250,000) shares of Common Stock (as
such number may be adjusted from time to time to reflect changes in the
outstanding number of shares of Common Stock through a dividend, subdivision,
combination, reclassification, etc.), then such Demand Registration shall not be
deemed to be one of the three (3) Demand Registrations that the Holders are
entitled to pursuant to this Section 2.
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(f) If the Holders are not entitled to include all of their
Registrable Securities requested to be included in a Demand Registration under
this Section 2, the Holder Representative may elect to withdraw its request to
include any or all such Registrable Securities included in such Demand
Registration; provided, however, that if a Demand Registration is effected with
respect to any or all of such Registrable Securities, then such Demand
Registration shall be one of the three Demand Registrations that the Holders are
entitled to under this Section 2 unless the Holders are unable to include as
part of a Demand Registration the lesser of (i) one-half of the aggregate amount
of Registrable Securities requested to be included in such Demand Registration
by such Holders and (ii) Registrable Securities representing an aggregate of two
hundred fifty thousand (250,000) shares of Common Stock (as such number may be
adjusted from time to time to reflect changes in the outstanding number of
shares of Common Stock through a dividend, subdivision, combination,
reclassification, etc.), in which event such Demand Registration shall not be
deemed to be one of the three Demand Registrations that the Holders are entitled
to under this Section 2.
3. Incidental Registration.
(a) Subject to the terms and conditions set forth in this Section 3,
if the Company proposes at any time to register any common equity securities
(the "Initially Proposed Shares") under the Securities Act for sale, whether or
not for its own account, pursuant to an underwritten offering (other than
registration on Form S-4 or on Form S-8 or any substitute or successor form
adopted by the SEC), the Company will promptly give written notice to the Holder
Representative 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)), and the Holder Representative
shall be entitled to include in such registration statement, as a part of such
underwritten offering, 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 by the Holder Representative within 15 days after the
date upon which the Company gave the aforementioned notice.
(b) 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 Holder Representative of its intention to effect a registration of
any of its common 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
exercising demand registration rights) 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 Holder Representative 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).
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(ii) If the managing underwriter(s) of such offering shall
notify in writing the Company and the Holder Representative 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 Company securities to be included in such
registration statement shall be allocated (x) first,
to the Company, and (y) second, pro rata among all
holders of Company securities (including Holders of
Registrable Shares on whose behalf the Holder
Representative has exercised the Holders' rights
under this Agreement) based upon the number of
securities each such holder so requested be included
in such registration statement; and
(2) the Initially Proposed Shares were being registered
by the Company for the account of holders of Company
securities (other than the Holders) pursuant to
demand registration rights, then the number of
Company securities to be included in such
registration statement shall be allocated (x) first,
pro rata among all holders of Company securities
(other than Holders) who are exercising demand
registration rights based upon the number of
securities each such holder so requested be included
in such registration statement, and (y) second, pro
rata among all holders of Company securities not
included in foregoing clause (x) (including Holders
of Registrable Shares on whose behalf the Holder
Representative has exercised the Holders' rights
under this Agreement) 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;
provided, further, however, that the "cutback provisions" contained in the first
proviso of this Section 3(b)(ii) shall only take effect upon PX Holding agreeing
in writing with the Company to amend Section 3 of the PX Holding Registration
Rights Agreement to provide for "cutback provisions" in Section 3 of the PX
Holding Registration Rights Agreement substantially to the same effect. Until
such time, the first proviso of this Section 3(b)(ii) shall be deemed to read:
"provided, however, that, if other holders of the Company securities
have requested that their securities be registered in such underwritten
offering pursuant to a registration rights agreement with the Company
and, unless the Initially Proposed Shares were being registered by the
Company for its own account, the Company desires to register Company
securities for its own account, the number of Holder Shares to be
included in such registration statement shall be reduced to such number
which would result in the
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Holder Shares being included in such registration statement pro rata
with such other holder of registration rights and, if applicable, the
Company on the basis of the number of shares requested to be registered
by the Holder Representative and such other holders of the Company's
securities and, if applicable, the Company."
(c) If, as a result of the cutback provisions contained in Section
3(b)(ii) hereof, the Holders are not entitled to include all of the Holder
Shares in such registration, the Holder Representative may elect to withdraw its
request to include Holder Shares in such registration.
(d) If the Company shall so deliver such a request in writing to the
Holder Representative, 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; provided, however, that if either or both of
the periods specified in the equivalent provision in the PX Holding Registration
Rights Agreement are shortened by agreement by the Company or by the Company's
waiving its rights under such equivalent provision, then the corresponding
period(s) in this sentence shall be deemed to be automatically amended to be
identical to the period(s) applicable to PX Holding under the equivalent
provision in the PX Holding Registration Rights Agreement.
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 3 (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 the Holder Representative 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 the Holder
Representative shall have the opportunity to object to any information
pertaining to any one or more Holders of Subject Shares (each such
Holder, a "Participating Holder") and its plan of distribution that is
contained therein and the Company will make the corrections reasonably
requested by the Holder Representative 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 Holder Representative, and use all reasonable efforts to cause
such registration statement to become effective as soon as possible;
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(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 to the Holder Representative 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 the Holder Representative or such underwriter
may reasonably request;
(v) after the filing of the registration statement, promptly
notify the Holder Representative 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 the Holder Representative 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, self-regulatory body or
Governmental Authority 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;
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(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 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 the Holder Representative 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, as
promptly as practicable 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 an
underwriting agreement in customary form in the case of an underwritten
offering) and make such representations and warranties to the sellers
and underwriter(s) as in form and substance and scope are customarily
made by issuers to underwriters in underwritten offerings and take such
other actions as the Participating Holders or the managing
underwriter(s) or agent, if any, reasonably require in order to
expedite or facilitate the disposition of such Subject Shares. The
Holder Representative 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 underwriter(s) 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 underwriter(s) under such underwriting agreement
also be conditions precedent to the obligations of the Participating
Holders;
(xiii) make available for inspection by the Holder
Representative, any underwriter or agent participating in any
disposition pursuant to such registration statement, and any attorney,
accountant or other similar professional advisor retained by the Holder
Representative or underwriter (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records"), 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;
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(xiv) make available senior management personnel of the
Company to participate in, and cause them to cooperate with the
underwriter(s) 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, the underwriter(s) or
their agent, with copies to the Holder Representative, a "cold comfort"
letter from the
(xvi) Company's independent public accountants in customary
form and covering such matters of the type customarily covered by "cold
comfort" letters as the Holder Representative or the managing
underwriter(s) reasonably request;
(xvii) obtain for delivery to the Holder Representative (on
behalf of the Participating Holders) and the underwriter(s) or their
agent 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;
(xviii) make available to its security holders 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;
(xix) 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;
(xx) cause the Subject Shares to be registered with or
approved by such other Governmental Authorities (including foreign
governmental agencies and authorities) as may be necessary to enable
the sellers thereof or the underwriters(s), if any, to consummate the
disposition of such Subject Shares;
(xxi) cooperate with the Holder Representative 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");
(xxii) cause its subsidiaries to take action necessary to
effect the registration of the Subject Shares contemplated hereby,
including filing any required financial information;
(xxiii) 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; and
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(xxiv) 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) to the
Holder Representative who shall forward the same to the Company all such
information and materials and the Holders shall 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 the 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, the fees and disbursements of the Holder Representative and the fees
and disbursements of any counsel retained by the Holder Representative or any
Participating
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(f) Holders (which underwriting discounts and commissions and fees
and disbursements of the Holder Representative and of counsel shall be paid by
the Participating Holders).
(g) 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 (it being understood that any disputes arising as to
what is customary shall be resolved by counsel to the underwriter(s)).
5. The Holder Representative.
(a) Each Holder, by its acceptance of the benefits under this
Agreement, authorizes, directs and appoints the Holder Representative to act as
its sole and exclusive agent, attorney-in-fact and representative of such
Holder, and authorizes and directs the Holder Representative to (i) take any and
all actions (including, without limitation, executing and delivering any
documents, incurring any costs and expenses for the account of the Holders and
making any and all determinations) which may be required or permitted by this
Agreement to be taken by the Holder Representative or the Holders, (ii) exercise
such other rights, powers and authority as are authorized, delegated or granted
to the Holder Representative hereunder and (iii) exercise such rights, powers
and authority as are incidental to the foregoing. Any such actions taken,
exercises of rights, powers or authority, and any decision or determination made
by the Holder Representative consistent therewith, shall be absolutely and
irrevocably binding on each Holder as if such Holder personally had taken such
action, exercised such rights, powers or authority or made such decision or
determination in such Holder's individual capacity. Notwithstanding any other
provision of this Agreement, each Holder irrevocably relinquishes its right to
act independently and other than through the Holder Representative, except as
expressly provided for under this Agreement. The Holder Representative hereby
accepts the foregoing authorization and appointment and agrees to serve as the
Holder Representative in accordance with this Agreement.
(b) The provisions of this Section 5 shall in no way impose any
obligations on the Company. In particular, notwithstanding any notice received
by the Company to the contrary, the Company (i) shall be fully protected in
relying upon and shall be entitled to rely upon, shall have no liability to any
Holder with respect to, any and all damages and losses arising out of actions,
decisions and determinations of the Holder Representative and (ii) shall be
entitled to assume that all actions, decisions and determinations of the Holder
Representative are fully authorized by each Holder.
6. Notices. Any notice or other communication required or permitted to
be given hereunder shall be in writing and shall be effective (a) upon hand
delivery or delivery by telecopy or facsimile at the address or number
designated below (if delivered on a business day during normal business hours
where such notice is to be received), or the first business day following such
delivery (if delivered other than on a business day during normal business hours
where such notice is to be received) or (b) on the third business day following
the date of mailing by express courier service, fully prepaid, addressed to such
address, or upon actual service, fully prepaid, addressed to such address, or
upon actual receipt of such mailing, whichever shall first
11
occur. The addresses for such communications shall be:
If to the Company, to: Panavision Inc.
0000 Xx Xxxx Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telecopier Number: (000) 000-0000
with a copy to: Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopier Number: (000) 000-0000
If to Sony or the
Holder Representative, to: Sony Electronics Inc.
0 Xxxx Xxxxx
Xxxx Xxxxx, Xxx Xxxxxx 00000
Attention: General Counsel, Legal Department
Telecopier Number: (000) 000-0000
with a copy to: Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier Number: (000) 000-0000
If to any other Holder, to the Holder Representative. Any party hereto
may from time to time change its address for notices under this Section 6 by
giving at least 10 days' notice of such changes to the other parties hereto.
7. 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.
8. Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
9. Successors and Assigns; Amendments; Assignments.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties and their successors and permitted assigns. This Agreement may not
be amended except by a written instrument executed by the parties hereto.
(b) A Holder need not be a party to this Agreement or an assignment
and assumption agreement for it to be able to exercise the rights granted to
Holders under this
12
Agreement; provided, however, that (i) to the extent that this Agreement imposes
obligations upon a Holder, such Holder (by its acceptance of the benefits under
this Agreement) agrees to be bound by the obligations imposed upon such Holder
under this Agreement, and (ii) upon the delivery of a request by the Company to
the Holder Representative in respect thereof, Sony and such Holder shall execute
and deliver to the Company an assignment and assumption agreement in a form
reasonably acceptable to the Company prior to or simultaneously with the
exercise by any Holder (which has not expressly been made a party to this
Agreement or an assignment and assumption agreement in respect thereof) of any
of its rights under this Agreement (whether directly or through the Holder
Representative), and such Holder (either directly or through the Holder
Representative) may not exercise any rights under this Agreement until such
assignment and assumption agreement has been delivered to the Company.
(c) The Holder Representative may not assign any of its rights or
obligations under this Agreement unless it and its assignee delivers an
assignment and assumption agreement in a form reasonably acceptable to the
Company and such assignee satisfies the definition of "Holder Representative"
hereunder.
(d) The Company may assign its rights, but not its obligations,
under this Agreement.
10. No Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and the Holders and their respective successors
and permitted assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
11. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of Delaware
without regard to the principles of conflicts of laws.
12. Entire Agreement. This Agreement contains the entire agreement of
the parties hereto in respect of the subject matter hereof and supersedes all
prior agreements and understandings between the parties with respect to the
subject matter hereof.
13. Execution. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that all parties need not sign
the same counterpart.
14. 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
Securities Exchange Act of 1934, as amended (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 the Holder Representative, take such other actions and
furnish the Holder Representative with information as the Holder Representative
may reasonably request in order for any Holder 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 Representative, deliver to such party a
certificate, signed by the Company's principal financial officer, stating (a)
the
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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 Representative,
make available adequate current public information with respect to the Company
within the meaning of paragraph (c)(2) of Rule 144.
15. Injunctions. Irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with its
specific terms or were otherwise breached. Therefore, the parties hereto shall
be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms and
provisions hereof in any court having jurisdiction, such remedy being in
addition to any other remedy to which they may be entitled at law or in equity.
16. Severability. If any term or provisions of this Agreement is held
by a court of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the terms and provisions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term or provision.
17. Further Assurances. Subject to the specific terms of this
Agreement, the Holder Representative, each Holder and the Company shall make,
execute, acknowledge and deliver such other instruments and documents, and take
all such other actions, as may be reasonably required in order to effectuate the
purposes of this Agreement and to consummate the transactions contemplated
hereby.
18. 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 assign of the Company (whether by merger, consolidation, sale of
assets or otherwise), or at the election of the Holder Representative, 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.
19. Submission to Jurisdiction. No party hereto shall commence any
legal proceeding or action against any 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 irrevocably 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
14
County, New York. In any action, suit or other proceeding, each of the parties
hereto irrevocably and unconditionally 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.
20. Waiver of Jury Trial. EACH OF THE PARTIES HERETO AND, BY ITS
ACCEPTANCE OF THE BENEFITS UNDER THIS AGREEMENT, EACH HOLDER IRREVOCABLY WAIVES
THE RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO
THIS AGREEMENT OR THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT.
21. Interpretation. 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 Agreement.
22. Attorney's Fees. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Registration Rights Agreement to be duly executed by their respective authorized
officers as of the date hereof.
PANAVISION INC.
By: /s/ Xxxx Xxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxx
Title: President and Chief Executive Officer
SONY ELECTRONICS INC.,
on its own behalf and in its capacity
as the Holder Representative:
By: /s/ Xxxxxx Xxxxxx
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Deputy President
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