REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 19,
2001, between M & F Worldwide Corp., a Delaware corporation (the "Company"),
and PX Holding Corporation, a Delaware corporation ("PX Holding").
WHEREAS, the Company and PX Holding have entered into a
Stock Purchase Agreement, dated as of April 19, 2001, (the "Purchase
Agreement"), pursuant to which, among other things, the Company will issue
to PX Holding, and PX Holding will purchase from the Company, shares of the
Company's common stock, par value $0.01 per share (the "Common Stock"), and
shares of the Company's Series B Non-Cumulative Perpetual Participating
Preferred Stock, par value $0.01 per share (the "Preferred 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.
"Agreement" means this Registration Rights Agreement,
including all amendments, modifications and supplements and any exhibits or
schedules to any of the foregoing, and shall refer to this Registration
Rights Agreement as the same may be in effect at the time such reference
becomes operative.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Holder" means PX Holding and any other person that holds
Registrable Securities, including their respective transferees, successors
and assigns who acquire Registrable Securities, directly or indirectly,
from PX Holding or such other person, respectively. For purposes of this
Agreement, the Company may deem and treat the registered holder of a
Registrable Security as the Holder and absolute owner thereof, and the
Company shall not be affected by any notice to the contrary.
"Registrable Securities" means (a) any shares of Common
Stock issued in accordance with Section 1.1 of the Purchase Agreement, (b)
any shares of Preferred Stock issued in accordance with Section 1.1 of the
Purchase Agreement, (c) any shares of Common Stock or Preferred Stock
acquired by PX Holding 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 or the Preferred Stock referred to
in clauses (a), (b) and (c) above by way of conversion, exercise or
exchange or any stock dividend or stock split or in connection with a
combination of shares, recapitalization, reclassification, merger or
consolidation, and any other securities issued pursuant to any other pro
rata distribution with respect to such Common Stock or Preferred Stock. For
purposes of this Agreement, a Registrable Security ceases to be a
Registrable Security when (x) it has been effectively registered under the
Securities Act and sold or distributed to the public in accordance with an
effective registration statement covering it (and has not been reacquired
in the manner described in clause (c) above), or (y) it is sold or
distributed to the public pursuant to Rule 144 (or any successor or similar
provision) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
2. Demand Registration. (a) If at any time any Holder
shall request the Company in writing to register under the Securities Act
all or a part of the Registrable Securities held by such Holder (a "Demand
Registration"), the Company shall use all reasonable efforts to cause to be
filed and declared effective as soon as reasonably practicable (but in no
event later than the 45th day after such Holder's request is made) a
registration statement providing for the sale of all such Registrable
Securities to be registered by such Holder, including, but not limited to,
a sale of such Registrable Securities in connection with the issuance of
any securities convertible into or exchangeable or exercisable for
Registrable Securities or the sale of Registrable Securities upon
conversion, exercise or exchange thereof. The Company agrees to use its
reasonable efforts to keep any such registration statement continuously
effective and usable for resale of Registrable Securities for so long as
the Holder whose Registrable Securities are included therein shall request.
The Company shall be obligated to file registration statements pursuant to
this Section 2(a) until all Registrable Securities have ceased to be
Registrable Securities. Each registration statement filed pursuant to this
Section 2(a) is hereinafter referred to as a "Demand Registration
Statement." The Company may, if permitted by law, effect any registration
pursuant to this Section 2(a) by the filing of a registration statement on
Form S-3. However, if such registration involves an underwritten public
offering and the managing underwriter(s) at any time shall notify the
Company in writing that, in the sole judgment of such managing
underwriter(s), inclusion of some or all of the information required in a
more detailed form specified in such notice is of material importance to
the success of the public offering of such Registrable Securities, the
Company shall use all reasonable efforts to supplement or amend the
registration statement to include such information.
(b) The Company agrees (i) not to effect any public or
private sale, distribution or purchase of any of its securities which are
the same as or similar to the Registrable Securities, including a sale
pursuant to Regulation D under the Securities Act, during the 15-day period
prior to, and during the 45-day period beginning on, the closing date of
each underwritten offering under any Demand Registration Statement, and
(ii) to use reasonable efforts to cause each holder of its securities
purchased from the Company, at any time on or after the date of this
Agreement (other than in a registered public offering), to agree not to
effect any public sale or distribution of any such securities during such
period, including a sale pursuant to Rule 144 under the Securities Act.
(c) The Company may postpone for a reasonable period of
time, not to exceed 30 days, the filing or the effectiveness of any Demand
Registration Statement if (i) the Board of Directors of the Company in good
faith determines that (A) such registration would have a material adverse
effect on any plan or proposal by the Company with respect to any
financing, acquisition, recapitalization, reorganization or other material
transaction, or (B) the Company is in possession of material non-public
information that, if publicly disclosed, would result in a material
disruption of a major corporate development or transaction then pending or
in progress or in other material adverse consequences to the Company, and
(ii) the Company so notifies the Holder(s) within five days after the
Holder(s) requests such registration. The Company's right to defer the
filing of a registration statement pursuant to the provisions of the
preceding sentence may not be exercised more than once during any 12 month
period.
(d) If at any time any Holder notifies the Company in
writing of the Holder's desire that the Registrable Securities to be
covered by a Demand Registration Statement be sold in an underwritten
offering, such Holder shall have the right to select any nationally
recognized investment banking firm(s) to administer the offering, subject
to the approval of the Company, which approval shall not be unreasonably
withheld, and the Company shall enter into underwriting agreements with the
underwriter(s) of such offering, which agreements shall contain such
representations and warranties by the Company, and such other terms,
conditions and indemnities as are at the time customarily contained in
underwriting agreements for similar offerings and the Company shall take or
cause to be taken all such other actions, in addition to the registration
procedures set forth in Section 4 hereof, as are reasonably requested by
the managing underwriter(s) in order to expedite or facilitate the
registration and disposition of the Registrable Securities, including,
without limitation, causing management to participate in "road show"
presentations.
3. Incidental Registration. Subject to the terms and
conditions set forth in this Section 3, if the Company proposes at any time
to register any equity securities (the "Initially Proposed Shares") under
the Securities Act, whether or not for its own account, the Company will
promptly give written notice to the Holders of its intention to effect such
registration (such notice to specify, among other things, the proposed
offering price, the kind and number of securities proposed to be registered
and the distribution arrangements, including identification of the
underwriter(s), if any), and the Holders shall be entitled to include in
such registration such number of shares (the "Holder Shares") to be sold
for the account of the Holders (on the same terms and conditions as the
Initially Proposed Shares) as shall be specified in a request in writing
delivered to the Company within 15 days after the receipt of the Company's
notice.
The Company's obligations to include Holder Shares in a
registration statement pursuant to this Section 3 is subject to each of the
following limitations, conditions and qualifications:
(i) If, at any time after the Company gives written
notice to the Holders of its intention to effect a registration of
any of its 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 other than Registrable Securities)
shall determine for any reason not to register any Securities
which were theretofore the subject of such registration, the
Company shall give written notice of such determination to the
Holders and thereupon it shall be relieved of its obligation to
use any efforts to register any Holder Shares in connection with
such aborted registration (but not from its obligation to pay the
Registration Expenses (as defined herein) in connection
therewith).
(ii) If the managing underwriter(s) (in the case of
an underwritten offering) of such offering shall notify in writing
the Company and each Holder who shall have requested the inclusion
of Registrable Securities in such underwritten offering that, in
the good faith judgment of such managing underwriter(s), the
distribution of all or a specified portion of the Holder Shares
would materially interfere with the registration and sale, in
accordance with the intended method thereof, of the Initially
Proposed Shares, then the number of Holder Shares to be included
in such registration statement shall be reduced to such number, if
any, that, in the good faith judgment of such managing
underwriter(s), can be included without such interference;
provided, however, that, if
(1) the Initially Proposed Shares were being
registered by the Company for its own
account, then the number of securities to be
included in such registration shall be
allocated (x) first, to the Company, and (y)
second, pro rata among the Holders who have
requested the Company to include Registrable
Securities in such registration, based upon
all holders of Company securities (including
the Holders) on the basis of the number of
securities each such Holder shares requested
to be included in such registration and (z)
third, pro rata among all other statement by
such holders of Company securities based upon
the number of securities each such holder
requested be included in such registration;
and
(2) the Initially Proposed Shares were being
registered by the Company for the account of
holders of Company securities (other than the
Holders), then the number of securities to be
included in such registration shall be
allocated (x) first, pro rata among all
holders of Company securities (other than
Holders) based upon the number of securities
each such holder requested be included in
such registration, and (y) second, pro rata
among all holders of Company securities not
included in the foregoing clause (x)
(including Holders of Registrable
Securities)) and = the Company on the basis
of the number of shares requested to be
included in such registration statement by
such holders and the Company;
(iii) If, as a result of the cutback provisions
contained in Section 3(b)(ii) hereof, the Holders are not entitled
to include all of the Holder Shares in such registration, such
Holders may elect to withdraw their request to include Holder
Shares in such registration.
(iv) If the Company shall so deliver such a request
in writing to the Holders, each Holder shall not effect any public
or private sale or distribution of any Registrable Securities
(other than the Holder Shares) during the 15-day period prior to,
and during the 45-day period beginning on, the closing date of any
underwritten public offering of shares of Common Stock made for
the Company's own account.
4. Registration Procedures.
(a) Whenever the Company is required to use all
reasonable efforts to effect the registration of any Registrable Securities
under the Securities Act pursuant to the terms and conditions of Section
2(a) or Section 3 hereof (such Registrable Securities being hereinafter
referred to as "Subject Shares"), the Company will use all reasonable
efforts to effect the registration and sale of the Subject Shares in
accordance with the intended method of disposition thereof. Without
limiting the generality of the foregoing, the Company will as soon as
practicable:
(i) furnish to each Holder of Subject Shares (a
"Participating Holder") and to each managing underwriter, if any,
a reasonable time in advance of their filing with the SEC, any
registration statement, amendment or supplement thereto, and any
prospectus used in connection therewith, and each Participating
Holder shall have the opportunity to object to any information
pertaining to such Participating Holder and its plan of
distribution that is contained therein and the Company will make
the corrections reasonably requested by such Participating Holder
with respect to such information prior to filing any such
registration statement or any amendment or supplement thereto; and
furnish a copy of any and all transmittal letters or other
correspondence with the SEC or any other governmental agency or
self-regulatory body or other body having jurisdiction (including
any domestic or foreign securities exchange) relating to such
offering of Registrable Securities;
(ii) prepare and file with the SEC a registration
statement with respect to the Subject Shares in form and substance
satisfactory to the Participating Holders, and use all reasonable
efforts to cause such registration statement to become effective
as soon as possible;
(iii) prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective for the applicable period and to
comply with the provisions of the Securities Act with respect to
the disposition of all Subject Shares and other securities covered
by such registration statement;
(iv) furnish each Participating Holder and each
managing underwriter, if any, without charge, such number of
copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein) and the
prospectus included in such registration statement (including each
preliminary prospectus and prospectus supplement) and any other
prospectus filed under Rule 424 promulgated under the Securities
Act relating to the Registrable Securities and such other
documents as such Participating Holder or such underwriter may
reasonably request;
(v) after the filing of the registration statement,
promptly notify each Participating Holder and each managing
underwriter, if any, of any stop order issued or, to the knowledge
of the Company, threatened to be issued by the SEC;
(vi) use all reasonable efforts to register or
qualify the Subject Shares covered by such registration statement
under the securities or blue sky laws of such jurisdictions
(including any foreign country or any political subdivision
thereof) as the managing underwriter(s) shall reasonably
recommend, and do any and all other acts and things which may be
reasonably necessary or advisable to enable the Participating
Holders to consummate the disposition in such jurisdictions of the
Subject Shares covered by such registration statement, except that
the Company shall not for any such purpose be required to (A)
qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, (B) subject itself to
taxation in any jurisdiction wherein it is not so subject, or (C)
consent to general service of process in any such jurisdiction or
otherwise take any action that would subject it to the general
jurisdiction of the courts of any jurisdiction in which it is not
so subject;
(vii) promptly inform each Participating Holder and
the managing underwriter(s), if any, (x) in the case of any
offering of the Registrable Securities in respect of which a
registration statement is filed under the Securities Act, of the
date on which a registration statement or any post-effective
amendment thereto has been filed and when the same has become
effective and, if applicable, of the date of filing a Rule 430A
prospectus, (y) of any written comments from the SEC with respect
to any filing referred to in clause (x) and of any request by the
SEC, any securities exchange, government agency, self-regulatory
body or other body having jurisdiction for any amendment of or
supplement to any registration statement or preliminary prospectus
or prospectus included therein or any offering memorandum or other
offering document relating to such offering or (z) of the receipt
by the Company of any notification with respect to the suspension
of the qualification of any Registrable Securities for sale under
the applicable securities or blue sky laws of any jurisdiction;
(viii) otherwise use its reasonable efforts to
comply with all applicable rules and regulations of the SEC;
(ix) provide a transfer agent and registrar for all
Registrable Securities covered by such registration statement not
later than the effective date of such registration statement;
(x) furnish, at the Company's expense, unlegended
certificates representing ownership of the securities being sold
in such denominations as shall be requested and instruct the
transfer agent to release any stop transfer orders with respect to
the Subject Shares being sold;
(xi) notify each Participating Holder at any time
when a prospectus relating to the Subject Shares is required to be
delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration
statement contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements
therein (in the case of the prospectus or any preliminary
prospectus, in light of the circumstances under which they were
made) not misleading, and the Company will promptly thereafter
prepare and file with the SEC and furnish a supplement or
amendment to such prospectus so that, as thereafter delivered to
the purchasers of Subject Shares, such prospectus will not contain
any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein (in the case of the prospectus or any
preliminary prospectus, in light of the circumstances under which
they were made) not misleading;
(xii) enter into customary agreements (including,
but not limited to, an underwriting agreement in customary form in
the case of an underwritten offering) and make such
representations and warranties to the sellers, underwriter(s),
placement agents and other financial intermediaries as in form and
substance and scope are customarily made by issuers to such
parties and take such other actions as the Holders or such other
parties, if any, reasonably require in order to expedite or
facilitate the disposition of such Subject Shares. A Participating
Holder may, at its option, require that any or all of the
representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such other parties
also be made to and for the benefit of any one or more
Participating Holders, and that any or all of the conditions
precedent to the obligations of such other parties under such
agreement also be conditions precedent to the obligations of the
Participating Holders;
(xiii) make available for inspection by the
Participating Holders, any underwriter, agent or other financial
intermediary participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other
similar professional advisor retained by any such Participating
Holders or underwriter (collectively, the "Inspectors"), all
pertinent financial and other records, pertinent corporate
documents and properties of the Company, as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any
such Inspector in connection with such registration statement;
(xiv) make available senior management personnel of
the Company to participate in, and cause them to cooperate with
any underwriter, agent or other financial intermediary in
connection with, "road show" and other customary marketing
activities, including "one-on-one" meetings with prospective
purchasers of the Subject Shares;
(xv) obtain for delivery to the Company, any
underwriter, agent or other financial intermediary or their
agents, with copies to the Participating Holders, a "cold comfort"
letter from the Company's independent public accountants in
customary form and covering such matters of the type customarily
covered by "cold comfort" letters as the Participating Holders or
the managing underwriter, agent or other financial intermediary
reasonably request;
(xvi) obtain for delivery to the Participating
Holders and any underwriter, agent or other financial intermediary
or their agents an opinion or opinions from counsel for the
Company in customary form and reasonably satisfactory to the
Participating Holders, underwriters or agents and their counsel;
(xvii) make available to its security holders
consolidated earnings statements, which need not be audited,
satisfying the provisions of Section 11(a) of the Securities Act,
no later than 90 days after the end of the 12-month period
beginning with the first month of the Company's first quarter
commencing after the effective date of the registration statement,
which earnings statements shall cover said 12-month period;
(xviii) make every reasonable effort to prevent the
issuance of any stop order suspending the effectiveness of the
registration statement or of any order preventing or suspending
the effectiveness of such registration statement at the earliest
possible moment;
(xix) cause the Subject Shares to be registered with
or approved by such other governmental agencies or authorities
(including foreign governmental agencies and authorities) as may
be necessary to enable the sellers thereof or any underwriter,
agent or other financial intermediary to consummate the
disposition of such Subject Shares;
(xx) cooperate with the Holders and the managing
underwriter(s), if any, or any other interested party (including
any interested broker-dealer) in making any filings or submission
required to be made, and the furnishing of all appropriate
information in connection therewith, with the National Association
of Securities Dealers, Inc. ("NASD");
(xxi) cause its subsidiaries to take action
necessary to effect the registration of the Subject Shares
contemplated hereby, including filing any required financial
information;
(xxii) effect the listing of the Subject Shares on
the New York Stock Exchange or such other national securities
exchange or over-the-counter market on which shares of the Common
Stock shall then be listed or shall otherwise be requested by the
Holders; and
(xxiii) take all other steps necessary to effect the
registration of the Subject Shares contemplated hereby.
(b) The Holders shall provide (in writing and signed by
the Holders and stated to be specifically for use in the related
registration statement, preliminary prospectus, prospectus or other
document incident thereto) all such information and materials and take all
such action as may be required in order to permit the Company to comply
with all applicable requirements of the SEC and any applicable state
securities laws and to obtain any desired acceleration of the effective
date of any registration statement prepared and filed by the Company
pursuant to this Agreement.
(c) The Holders shall, if requested by the Company or the
managing underwriter(s) in connection with any proposed registration and
distribution pursuant to this Agreement, (i) agree to sell the Subject
Shares on the basis provided in any underwriting arrangements entered into
in connection therewith and (ii) complete and execute all questionnaires,
powers of attorney, indemnities, underwriting agreements and other
documents customary in similar offerings; provided, however, that in no
event shall a Participating Holder be required to make any representations
or warranties to or agreements with the Company or the underwriter(s) other
than representations, warranties or agreements regarding such Participating
Holder and its ownership of the securities being registered on its behalf
and its intended method of distribution and any other representation
required by law.
(d) Upon receipt of any notice from the Company that the
Company has become aware that the prospectus (including any preliminary
prospectus) included in any registration statement filed pursuant to
Section 2(a) or Section 3, as then in effect, contains any untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
the Holders shall forthwith discontinue disposition of Subject Shares
pursuant to the registration statement covering the same until the Holders'
receipt of copies of a supplemented or amended prospectus and, if so
directed by the Company, deliver to the Company (at the Company's expense)
all copies other than permanent file copies then in the Holder's
possession, of the prospectus covering the Subject Shares that was in
effect prior to such amendment or supplement.
(e) The Company shall pay all Registration Expenses. For
purposes of this Agreement, "Registration Expenses" shall mean all expenses
incident to the Company's performance of or compliance with its obligations
under this Agreement to effect the registration of Registrable Securities
pursuant to Section 2(a) or Section 3 of this Agreement, and the
disposition of such securities, including, without limitation, all
registration, filing, qualification and other fees and expenses of
complying with securities or blue sky laws, transfer agents and registrars'
fees, all word processing, duplicating and printing expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, but
excluding underwriting discounts and commissions in respect of Registrable
Securities and the fees and disbursements of any counsel retained by the
Participating Holders (which underwriting discounts and commissions and
fees and disbursements of counsel shall be paid by the Participating
Holders).
(f) In connection with any sale of Subject Shares that
are registered pursuant to this Agreement, the Company and the Holders
shall enter into an agreement providing for indemnification of the Holders
by the Company, and indemnification of the Company by the Holders, on terms
customary for such agreements at that time.
5. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given upon (a)
transmitter's confirmation of a receipt of a facsimile transmission, (b)
confirmed delivery by a standard overnight carrier or when delivered by
hand or (c) the expiration of five business days after the day when mailed
in the United States by certified or registered mail, postage prepaid,
addressed at the following addresses (or at such other address for a party
as shall be specified by like notice):
If to the Company, to:
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
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 Xxxxxxx, Esq.
If to PX Holding, to:
PX Holding Corporation
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxx, Esq. and
Xxxx X. Xxxxx, Esq.
If to any other Holder, to such name at such address as
such Holder shall have indicated in a written notice
delivered to the other parties to this Agreement.
Any party hereto may from time to time change its address for notices under
this Section 5 by giving at least 10 days' notice of such changes to the
other parties hereto.
6. Waivers. No waiver by any party of any default with
respect to any provision, condition or requirement hereof shall be deemed
to be a continuing waiver in the future thereof or a waiver of any other
provision, condition or requirement hereof, nor shall any delay or omission
of any party to exercise any right hereunder in any manner impair the
exercise of any such right accruing to it thereafter.
7. Interpretation. When a reference is made in this
Agreement to a section, article, paragraph, clause, annex or exhibit, such
reference shall be to a reference to this Agreement unless otherwise
clearly indicated to the contrary. The descriptive article and section
headings herein are intended for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement. Whenever the words "include", "includes" or "including" are used
in this Agreement they shall be deemed to be followed by the words "without
limitation." The words "hereof," "herein" and "herewith" and words of
similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole and not to any particular provision of this
Agreement. The meaning assigned to each term used in this Agreement shall
be equally applicable to both the singular and the plural forms of such
term, and words denoting either gender shall include both genders. Where a
word or phrase is defined herein, each of its other grammatical forms shall
have a corresponding meaning.
8. Amendment. This Agreement may be amended, modified or
supplemented by the parties hereto at any time. This Agreement may not be
amended except by a written instrument executed by the parties hereto.
9. Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by either
party hereto (whether by operation of law or otherwise) without the prior
written consent of the other party; provided, however, that in connection
with a bone fide pledge by a Holder of any Registrable Securities, such
Holder may assign its rights under this Agreement to the beneficiary of
such pledge. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by, the parties
and their respective successors and assigns and are not intended to confer
upon any person other than the parties hereto any rights or remedies
hereunder.
10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
11. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original but all of
which shall be considered one and the same agreement.
12. Entire Agreement. This Agreement constitutes the
entire agreement, and supersedes all prior agreements and understandings
(written and oral) between the parties with respect to the subject matter
hereof.
13. Available Information. If at any time the Company is
required to file reports in compliance with either Section 13 or Section
15(d) of the Exchange Act, the Company will comply with all rules and
regulations of the SEC applicable in connection with the use of Rule 144 or
Rule 144A promulgated under the Securities Act and will, upon the request
of any Holder, take such other actions and furnish the Holder with
information as the Holder may reasonably request in order to avail itself
of such rule or any other rule or regulation of the SEC allowing the Holder
to sell any Registrable Securities without registration, and will, at its
expense, forthwith upon the request of the Holder, deliver to such party a
certificate, signed by the Company's principal financial officer, stating
(a) the Company's name, address and telephone number (including area code),
(b) the Company's Internal Revenue Service identification number, (c) the
Company's SEC file number, (d) the number of shares of each class of stock
outstanding as shown by the most recent report or statement published by
the Company, and (e) whether the Company has filed the reports required to
be filed under the Exchange Act for a period of at least 90 days prior to
the date of such certificate and in addition has filed the most recent
annual report required to be filed thereunder or as to such matters as
would then be required to establish compliance with Rule 144 or any
successor rule or rules under the Securities Act. If at any time the
Company is not required to file reports in compliance with either Section
13 or Section 15(d) of the Exchange Act, the Company at its expense will,
forthwith upon the written request of the Holder, make available adequate
current public information with respect to the Company within the meaning
of paragraph (c)(2) of Rule 144.
14. Specific Performance. Irreparable damage would occur
in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached; accordingly, the parties hereto shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to
any other remedy to which they are entitled at law or in equity.
15. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void, unenforceable or against its
regulatory policy, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
16. Submission to Jurisdiction. Each of the Company and
PX Holding hereby irrevocably submits in any action, suit or proceeding
arising out of this Agreement or any of the transactions contemplated
hereby to the exclusive jurisdiction of the United States District Court
for the Southern District of New York and the jurisdiction of any court of
the State of New York located in the City of New York, Borough of
Manhattan. The parties hereto waive any and all objections to the laying of
venue of any such litigation in such jurisdiction and agree not to plead or
claim in any such litigation that such litigation has been brought in an
inconvenient forum.
17. Waiver of Jury Trial. Each party acknowledges and
agrees that any controversy which may arise under this Agreement is likely
to involve complicated and difficult issues, and therefore each such party
hereby irrevocably and unconditionally waives any right such party may have
to a trial by jury in respect of any litigation directly or indirectly
arising out of or relating to this Agreement, or the transactions
contemplated by this Agreement. Each party certifies and acknowledges that
(i) no representative, agent or attorney of any other party has
represented, expressly or otherwise, that such other party would not, in
the event of litigation, seek to enforce the foregoing waiver, (ii) each
such party understands and has considered the implications of this waiver,
(iii) each such party makes this waiver voluntarily and (iv) each such
party has been induced to enter into this Agreement by, among other things,
the mutual waivers and certifications in this Section 17.
18. No Other Registration Rights. The Company represents
and warrants to each Holder that there is not in effect on the date of this
Agreement any agreement by the Company (other than this Agreement and the
Registration Rights Agreement by and between the Company and a predecessor
of Mafco Consolidated Group, Inc., dated as of June 15, 1995) pursuant to
which any holders of securities of the Company have a right to cause the
Company to register or qualify such securities under the Securities Act or
any securities or blue sky laws of any jurisdiction.
19. Recapitalization, Exchanges, etc., Affecting the
Company's Capital Stock. The provisions of this Agreement shall apply to
the full extent set forth herein with respect to any and all shares of
capital stock of the Company or any successor or permitted assign of the
Company (whether by merger, consolidation, sale of assets or otherwise), or
at the election of a Holder, any person who controls any of the foregoing,
which may be issued in respect of, in exchange for or in substitution of,
the Registrable Securities.
IN WITNESS WHEREOF, the undersigned have caused this
Agreement to be signed by their respective officers thereunto duly
authorized as of the date first written above.
PX HOLDING 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
