VOTING AND STOCKHOLDERS AGREEMENT
Voting and Stockholders Agreement, dated as of December 18, 1997, by and
among Warburg, Xxxxxx Capital Company, L.P., a Delaware limited partnership
("Warburg"), Panavision Inc., a Delaware corporation (the "Company"), and Mafco
Holdings Inc., a Delaware corporation (the "Purchaser"). Capitalized terms used
but not defined herein shall have the meanings set forth in the Merger Agreement
(as defined below).
R E C I T A L S
WHEREAS, concurrently with the execution and delivery of this
Agreement, PX Holding Corporation, a Delaware corporation ("Holdings"), PX
Merger Corporation, a Delaware corporation and a wholly owned subsidiary of
Holdings ("Merger Sub"), and the Company have entered into an Agreement of
Recapitalization and Merger, dated as of December 18, 1997 (as such agreement
may hereafter be amended from time to time, the "Merger Agreement"), pursuant to
which Merger Sub shall be merged with and into the Company (the "Merger"); and
WHEREAS, as an inducement and a condition to the Company and the
Purchaser's subsidiaries entering into the Merger Agreement and incurring the
obligations set forth therein, each of the Company, the Purchaser and Warburg
has required the other parties hereto to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained herein
and in the Merger Agreement, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. REPRESENTATIONS AND WARRANTIES OF WARBURG. Warburg hereby
represents and warrants as follows:
1.1 Ownership of Shares. Warburg is the beneficial owner, and
has sole power to vote and dispose, of 12,717,000 shares of Common
Stock, par value $.01 per share ("Company Common Stock"), of the
Company (such shares shall constitute the "Shares"). On the date
hereof, the Shares constitute all of the outstanding shares of Company
Common Stock owned of record or beneficially by Warburg.
1.2 Authorization; Validity of Agreement; Necessary Action.
Warburg has all necessary power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution,
delivery
and performance by Warburg of this Agreement and the
consummation by Warburg of the transactions contemplated hereby have
been duly and validly authorized. This Agreement has been duly executed
and delivered by Warburg, and constitutes a valid and binding
obligation of Warburg, enforceable against it in accordance with its
terms, except that (i) such enforcement may be subject to applicable
bankruptcy, insolvency or other similar laws, now or hereafter in
effect, affecting creditors' rights generally, and (ii) the remedy of
specific performance and injunctive and other forms of equitable relief
may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
1.3 No Violations. (a) Except for filings, authorizations,
consents and approvals as may be required under, and other applicable
requirements of, the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended (the "HSR Act") and the Securities Exchange Act of
1934, as amended (the "Exchange Act") (A) no filing with, and no
permit, authorization, consent or approval of, any state or federal
public body or authority is necessary for the execution of this
Agreement by Warburg and the consummation by Warburg of the
transactions contemplated hereby and (B) neither the execution and
delivery of this Agreement by Warburg nor the consummation by Warburg
of the transactions contemplated hereby nor compliance by Warburg with
any of the provisions hereof shall (x) conflict with or result in any
breach of any applicable partnership agreement or other agreements or
organizational documents applicable to Warburg, (y) result in a
violation or breach of, or constitute (with or without notice or lapse
of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under
any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which
Warburg is a party or by which Warburg or any of its properties or
assets may be bound or (z) violate any order, writ, injunction, decree,
judgment, statute, rule or regulation applicable to Warburg or any of
its properties or assets.
(b) The Shares and the certificates representing such Shares
are held by Warburg, or by a nominee or custodian for the benefit of
Warburg, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or
any other encumbrances whatsoever, except for any such encumbrances or
proxies
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arising hereunder. Warburg currently has, and upon the
exercise of the options set forth in Sections 3 and 4 hereof shall
sell, assign, transfer and deliver to the Purchaser at the Closing, and
the Purchaser shall receive at the Closing, good, valid and marketable
title to the Company Common Stock.
2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser
hereby represents and warrants to Warburg and the Company as follows:
2.1 Organization. The Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware.
2.2 Authorization; Validity of Agreement; Necessary Action.
The Purchaser has all necessary power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance by the Purchaser of
this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby have been duly and validly authorized.
This Agreement has been duly executed and delivered by the Purchaser,
and constitutes a valid and binding obligation of the Purchaser,
enforceable against it in accordance with its terms, except that (i)
such enforcement may be subject to applicable bankruptcy, insolvency or
other similar laws, now or hereafter in effect, affecting creditors,
rights generally, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
2.3 No Violations. Except for filings, authorizations,
consents and approvals as may be required under, and other applicable
requirements of, the HSR Act and the Exchange Act (A) no filing with,
and no permit, authorization, consent or approval of, any state or
federal public body or authority is necessary for the execution of this
Agreement by the Purchaser and the consummation by it of the
transactions contemplated hereby and (B) neither the execution and
delivery of this Agreement by it nor the consummation by it of the
transactions contemplated hereby nor compliance by it with any of the
provisions hereof shall (x) conflict with or result in any breach of
any organizational documents of the Purchaser, (y) result in a
violation or breach of, or constitute (with or without notice or lapse
of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under
any of the terms,
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conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding,
agreement or other instrument or obligation of any kind to which the
Purchaser is a party or by which the Purchaser or any of its properties
or assets may be bound or (z) violate any order, writ, injunction,
decree, judgment, statute, rule or regulation applicable to the
Purchaser or any of its properties or assets.
3. OPTION GRANTED TO THE PURCHASER. (a) Warburg hereby grants to the
Purchaser an irrevocable option to purchase, in whole and not in part, the
Shares held by Warburg during the Option Period (as defined below), on the terms
and subject to the conditions set forth herein (the "Purchaser Option").
(b) The Purchaser Option may be exercised by the Purchaser
during the period commencing at 9:00 a.m., New York time on the day
following the first anniversary of the Effective Time of the Merger and
ending at 5:00 p.m., New York time on the second anniversary of the
Effective Time of the Merger (the "Option Period").
(c) If the Purchaser wishes to exercise the Purchaser Option,
the Purchaser shall send a written notice to Warburg of its irrevocable
election to exercise the Purchaser option, specifying the place, and,
if then known, the time and the date (the "Purchaser Option Closing
Date") of the closing (the "Purchaser Option Closing") of the purchase.
The Purchaser Option Closing Date shall occur on the fifth business day
(or such longer period as may be required by applicable law or
regulation) after the later of (i) the date on which such notice is
delivered and (ii) the satisfaction of the conditions set forth in
Section 3(f) hereof.
(d) At the Purchaser option Closing, Warburg shall deliver to
the Purchaser (or its designee) all of the Shares by delivery of a
certificate or certificates evidencing such Shares, duly endorsed to
the Purchaser or accompanied by stock powers duly executed in favor of
the Purchaser, with all necessary stock transfer stamps affixed.
(e) At the Purchaser Option Closing, the Purchaser shall pay
to Warburg, by wire transfer in immediately available funds to the
account of Warburg specified in writing no less than one day prior to
the Purchaser Option Closing, an amount equal to the product of $30.00
and the number of Shares (such number being subject to adjustment for
stock splits, recapitalizations and other similar events, as set forth
in Section 13.11 hereof) purchased
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pursuant to the exercise of the Purchaser Option (the "Purchaser
Option Purchase Price").
(f) The Purchaser Option Closing shall be subject to the
satisfaction of each of the following conditions:
(i) no court, arbitrator or governmental body, agency
or official shall have issued any order, decree or ruling (which has
not been stayed or suspended pending appeal) and there shall not be any
effective statute, rule or regulation, restraining, enjoining or
prohibiting the consummation of the purchase and sale of the Shares
pursuant to the exercise of the Purchaser Option;
(ii) any waiting period applicable to the
consummation of the purchase and sale of the Shares pursuant to the
exercise of the Purchaser Option under the HSR Act shall have expired
or been terminated; and
(iii) all actions by or in respect of, and any filing
with, any governmental body, agency, official, or authority required to
permit the consummation of the purchase and sale of the Shares pursuant
to the exercise of the Purchaser Option shall have been obtained or
made and shall be in full force and effect.
4. OPTION GRANTED TO WARBURG. (a) The Purchaser hereby grants to
Warburg an irrevocable option to sell to the Purchaser, in whole and not in
part, the Shares held by Warburg, on the terms and subject to the conditions set
forth herein (the "Warburg Option").
(b) The Warburg Option may be exercised by Warburg during the
Option Period.
(c) If Warburg wishes to exercise the Warburg Option, Warburg
shall send a written notice to the Purchaser of its irrevocable
election to exercise the Warburg Option, specifying the place, and, if
then known, the time and the date (the "Warburg Option Closing Date")
of the closing (the "Warburg Option Closing") of the purchase. The
Warburg Option Closing Date shall occur on the fifth business day (or
such longer period as may be required by applicable law or regulation)
after the later of (i) the date on which such notice is delivered and
(ii) the satisfaction of the conditions set forth in Section 4(f)
hereof.
(d) At the Warburg Option Closing, Warburg shall deliver to
the Purchaser (or its designee) all of the Shares by delivery of a
certificate or certificates evidencing such
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Shares, duly endorsed to the Purchaser or accompanied by stock
powers duly executed in favor of the Purchaser, with all necessary
stock transfer stamps affixed.
(e) At the Warburg option Closing, the Purchaser shall pay to
Warburg, by wire transfer in immediately available funds to the account
of Warburg specified in writing no less than one day prior to the
Warburg Option Closing, an amount equal to the product of $25.00 and
the number of Shares (such number being subject to adjustment for stock
splits, recapitalizations and other similar events, as set forth in
Section 13.11 hereof) purchased pursuant to the exercise of the Warburg
Option (the "Warburg Option Purchase Price").
(f) The Warburg option Closing shall be subject to the
satisfaction of each of the following conditions:
(i) no court, arbitrator or governmental body, agency
or official shall have issued any order, decree or ruling (which has
not been stayed or suspended pending appeal) and there shall not be any
effective statute, rule or regulation, restraining, enjoining or
prohibiting the consummation of the purchase and sale of the Shares
pursuant to the exercise of the Warburg Option;
(ii) any waiting period applicable to the
consummation of the purchase and sale of the Shares pursuant to the
exercise of the Warburg Option under the HSR Act shall have expired or
been terminated; and
(iii) all actions by or in respect of, and any filing
with, any governmental body, agency, official, or authority required to
permit the consummation of the purchase and sale of the Shares pursuant
to the exercise of the Warburg Option shall have been obtained or made
and shall be in full force and effect.
5. THIRD PARTY BUSINESS COMBINATION; REMEDY. (a) If (i) the Merger
Agreement is terminated in accordance with Section 7.1(d),(e) or (f) of the
Merger Agreement, or (ii) the Merger Agreement shall have been amended to
increase the amount of the Merger Consideration in effect on the date hereof,
and, upon or following any such termination or any such amended Merger
Agreement, Warburg receives any cash or non-cash consideration (the "Alternative
Consideration") in respect of all or any portion of the Shares in connection
with (A) a Transaction Proposal for which definitive documentation has been
executed by all the parties to such transaction (the "Alternative Transaction")
during the period commencing on the date hereof and ending nine months from the
date the Merger Agreement is
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terminated, or (B) an amended Merger Agreement, Warburg shall promptly
upon receipt of the Alternative Consideration pay to the Purchaser or its
designee on demand in cash, by wire transfer of same day funds to an account
designated by the Purchaser:
(x) in the case of termination of the Merger Agreement in
accordance with the above-referenced sections of the Merger Agreement,
if the Alternative Consideration is greater than $26.50, but not
greater than $30 per Share, the excess of (x) such Alternative
Consideration over $26.50 multiplied by (y) the number of shares with
respect to which Warburg received such Alternative Consideration;
provided that (i) if the Alternative Consideration received by Warburg
shall be securities listed on a national securities exchange or traded
on the Nasdaq National Market ("Nasdaq"), the per share value of such
consideration shall be equal to the average closing price per share
listed on such national securities exchange or Nasdaq on the five
trading days prior to the date such transaction is consummated and (ii)
if the consideration received by Warburg shall be in a form other than
such listed securities, the per share value shall be determined in good
faith as of the date such transaction is consummated by the Purchaser
or its designee and Warburg, or, if the Purchaser or its designee and
Warburg cannot reach agreement, by a nationally recognized investment
banking firm reasonably acceptable to the parties; and
(y) in the case of termination of the Merger Agreement in
accordance with the above-referenced sections of the Merger Agreement,
if the Alternative Consideration is greater than $30 per Share, the sum
of (I) for the portion of such consideration not greater than $30 per
Share, the amounts payable pursuant to subparagraph (a) hereof and (II)
for the portion of such consideration exceeding $30 per Share, one half
of such Alternative Consideration; provided that (i) if the Alternative
Consideration received by Warburg shall be securities listed on a
national securities exchange or traded on the Nasdaq, the per share
value of such consideration shall be equal to the average closing price
per share listed on such national securities exchange or Nasdaq on the
five trading days prior to the date such transaction is consummated and
(ii) if the consideration received by Warburg shall be in a form other
than such listed securities, the per share value shall be determined in
good faith as of the date such transaction is consummated by the
Purchaser or its designee and Warburg, or, if the Purchaser or its
designee and Warburg cannot reach agreement, by a nationally recognized
investment banking firm reasonably acceptable to the parties;
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(z) in the case of an amended Merger Agreement, an amount
equal to any and all Alternative Consideration above $26.50 per Share.
(b) In connection with an Alternative Transaction, the
Alternative Consideration per Share to be received by the stockholders
of the Company other than Warburg shall not exceed by more than $.50
per share the Alternative Consideration to be received by Warburg.
Warburg shall not enter into any agreement, arrangement or
understanding with any Person the effect of which would be inconsistent
or violative of the provisions and agreement contained in this Section
5(b).
6. AGREEMENT TO VOTE; PROXY.
(a) Voting. Warburg hereby agrees that, until the Termination
Date (as defined in Section 11), at any meeting of the stockholders of
the Company or in connection with any written consent of the
stockholders of the Company, Warburg shall vote (or cause to be voted)
the Shares held of record or beneficially by Warburg (i) in favor of
the Merger, and each of the other actions contemplated by the Merger
Agreement and this Agreement and any actions required in furtherance
hereof and thereof; (ii) against any action or agreement that would
result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement
or this Agreement; and (iii) except as specifically requested in
writing by the Purchaser in advance, against the following actions
(other than the Merger and the transactions contemplated by the Merger
Agreement): (1) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the
Company or its subsidiaries; (2) a sale, lease or transfer of a
material amount of assets of the Company or its subsidiaries or a
reorganization, recapitalization, dissolution or liquidation of the
Company or its subsidiaries; (3) any material change in the present
capitalization of the company including any proposal to sell any equity
interest in the Company or any of its subsidiaries or any amendment of
the Articles of Incorporation of the Company; or (4) any material
change in the Company's corporate structure or business; or (d) any
other action which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, discourage or materially
adversely affect the Merger or the transactions contemplated by the
Merger Agreement or this Agreement. Warburg shall not enter into any
agreement, arrangement or understanding with any Person the effect of
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which would be inconsistent or violative of the provisions and
agreement contained in this Section 6(a).
(b) Proxy. WARBURG HEREBY GRANTS TO, AND APPOINTS, XXXXX X.
XXXXXXXX AND XXXXX X. XXXXX IN THEIR RESPECTIVE CAPACITIES AS OFFICERS
OF THE PURCHASER, AND ANY INDIVIDUAL WHO SHALL HEREAFTER SUCCEED TO ANY
SUCH OFFICE OF THE PURCHASER, AND ANY OTHER DESIGNEE OF THE PURCHASER,
EACH OF THEM INDIVIDUALLY, WARBURG'S IRREVOCABLE (UNTIL THE TERMINATION
DATE) PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO
VOTE THE SHARES AS INDICATED IN SECTION 6(a) ABOVE. WARBURG INTENDS
THIS PROXY TO BE IRREVOCABLE (UNTIL THE TERMINATION DATE) AND COUPLED
WITH AN INTEREST AND WILL TAKE SUCH FURTHER ACTION AND EXECUTE SUCH
OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS
PROXY AND HEREBY REVOKES ANY PROXY PREVIOUSLY GRANTED BY WARBURG WITH
RESPECT TO WARBURG'S SHARES.
7. CERTAIN COVENANTS OF WARBURG. Except in accordance with the terms of
this Agreement, Warburg hereby covenants and agrees as follows:
7.1 No Solicitation. Prior to the Termination Date, Warburg
shall not, directly or indirectly (including through advisors, agents
or other intermediaries), solicit (including by way of furnishing
information) or respond to any inquiries or the making of any proposal
by any person or entity with respect to the Company that constitutes or
could reasonably be expected to lead to an Alternative Transaction; and
shall use its reasonable best efforts to cause any such party in
possession of confidential information about the Company that was
furnished by or on behalf of Warburg to return or destroy all such
information in the possession of any such party (other than the
Purchaser) or in the possession of any Representative of any such
party, provided, however, that the foregoing shall not restrict Warburg
or any of its representatives on the Board of Directors of the Company
from taking actions to the same extent and in the same circumstances
permitted for the Board and the Company by Section 5.9 of the Merger
Agreement.
7.2 Restriction on Transfer, Proxies and Noninterference;
Restriction on Withdrawal. Prior to the Termination Date, Warburg shall
not, directly or indirectly (i) except pursuant to the terms of the
Merger Agreement and to the Purchaser pursuant to this Agreement, offer
for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, enforce or permit the execution of the provisions of any
redemption agreement with the Company or enter into any contract,
option or other arrangement or
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understanding with respect to or consent to the offer for
sale, sell, transfer, tender, pledge, encumbrance, assignment or other
disposition of, or exercise any discretionary powers to distribute, any
or all of the Shares or any interest therein, including any trust
income or principal, except in each case to a transferee who is or
agrees to become bound by this Agreement, (ii) except as contemplated
hereby, grant any proxies or powers of attorney with respect to any
Shares, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares or (iii) take any action that
would make any representation or warranty of Warburg contained herein
untrue or incorrect or would result in a breach by Warburg of its
obligations under this Agreement or a breach by the Company of its
obligations under the Merger Agreement.
7.3 Redeemable Preferred Stock. Immediately prior to the
consummation of the Merger, Warburg shall exchange 88% of the Company
Common Stock it beneficially owns for redeemable preferred stock of the
Company (the "Redeemable Preferred Stock"), on the basis of 100 shares
of Company Common Stock for each share of Redeemable Preferred Stock,
redeemable at the option of the holder at $26.50 per share of
Redeemable Preferred Stock, and shall surrender such Redeemable
Preferred Stock for redemption immediately upon the consummation of the
Merger; provided, however, that in the event the number of Cash
Election Shares is less than the Cash Election Number (as each such
term is defined in the Merger Agreement), immediately prior to the
consummation of the Merger Warburg shall also exchange for Redeemable
Preferred Stock upon the same terms and conditions a number of shares
of additional Company Common Stock (to the extent of Company Common
Stock beneficially owned by it) equal to such deficiency. Warburg shall
elect to retain, in accordance with the terms of the Merger Agreement,
the Company Common Stock not exchanged for Redeemable Preferred Stock
pursuant to this Section.
7.4 Proprietary Information. Except as required by law or as
contemplated by this Agreement, Warburg shall not, directly or
indirectly, make use of or divulge or otherwise disclose to any Person
other than the Purchaser, any trade secret, confidential information or
other proprietary information or data (including any financial data,
mailing lists, customer lists or employee data or records) concerning
the business or policies of the Company or its subsidiaries that
Warburg may have learned, directly or indirectly, as a stockholder,
employee, officer or director of the Company or any of its
subsidiaries.
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8. CERTAIN COVENANTS OF THE PURCHASER AND THE COMPANY. Except in
accordance with the terms of this Agreement, the Purchaser and the Company
hereby severally and not jointly covenant and agree as follows:
8.1 Tag-Along Rights. If, at any time on or prior to December
31, 1999, the Purchaser intends to sell ("Sale"), in a single
transaction or a series of related transactions, more than 25% of
shares of Company Common Stock it beneficially owns other than (i) to
any of its Affiliates who agree to be bound by this Merger Agreement,
(ii) pursuant to a public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended
(the "Securities Act") or (iii) pursuant to a merger or similar
acquisition transaction, in which all the Company Common Stock is
acquired, the Purchaser shall notify all other stockholders of the
Company (the "Public Stockholders"), in writing, of such proposed Sale
and its terms and conditions. Within twenty (20) business days of the
date of such notice, each Public Stockholder shall notify the Purchaser
if it elects to participate in such Sale. Any Public Stockholder that
fails to notify the Purchaser within such twenty (20) business day
period will be deemed to have waived its rights hereunder. Each Public
Stockholder that so notifies the Purchaser shall have the right to
sell, at the same price and on the same terms and conditions as the
Purchaser, an amount of shares of Company Common Stock equal to the
number of shares of Company Common Stock the third party actually
proposes to purchase multiplied by a fraction, the numerator of which
shall be the number of shares of Company Common Stock issued and owned
by such Public Stockholder and the denominator of which shall be the
aggregate number of shares of Company Common Stock issued and owned by
the Purchaser and each Public Stockholder exercising its rights under
this Section 8.1. Notwithstanding anything contained in this Section
8.1, in the event that all or a portion of the purchase price consists
of securities and the sale of such securities to the Public
Stockholders would require either a registration under the Securities
Act, or the preparation of a disclosure document pursuant to Regulation
D under the Securities Act (or any successor regulation) or a similar
provision of any state securities law, then, at the option of the
Purchaser, any one or more of the Public Stockholders may receive, in
lieu of such securities, the fair market value of such securities in
cash, as determined in good faith by unanimous vote of the Board of
Directors of the Company.
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8.2 Independent Directors. From and after the Effective Time
of the Merger until the date on which the Company shall no longer have
any Public Stockholders, the Purchaser and the Company shall take all
action within their respective power to include on the Board of
Directors of the Company two directors, each of whom is (i) considered
to be an independent director pursuant to the rules contained in the
NYSE Listed Company Manual and (ii) is not an officer or employee of
any company affiliated with the Purchaser.
9. FURTHER ASSURANCES. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further action as may be necessary
or desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
10. STOP TRANSFER. Warburg agrees with, and covenants to, the Purchaser
that Warburg shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of Warburg's Shares, unless such transfer is made in compliance
with this Agreement.
11. TERMINATION. The obligations under Sections 6 and 7 hereof shall
terminate upon the first to occur of (i) the Effective Time of the Merger and
(ii) the date the Merger Agreement is terminated in accordance with its terms
(the "Termination Date"). Except as set forth in this Section 11, all other
agreements and obligations of the parties hereto shall survive the Effective
Time of the Merger and/or the Termination Date, as applicable, and in the case
of Section 5 hereof, to the extent set forth in such section.
12. RESTRICTIONS ON TRANSFER.
12.1 Transfer of Shares. (a) During the period of time between
(i) the Effective Time of the Merger Agreement and (ii) the expiration
of the Option Period, Warburg shall not offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, place in
trust (voting or otherwise), enforce or permit the execution of the
provisions of any redemption agreement with the Company or enter into
any contract, option or other arrangement or understanding with respect
to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, or exercise any
discretionary powers to distribute, any or all of Warburg's Shares,
except for transfers made both in compliance with
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all federal and state securities laws and pursuant to the terms hereof.
12.2 Permitted Transfers. Notwithstanding any provision in
this Section to the contrary, the Shares may be transferred (a) to an
Affiliate of Warburg who agrees to be bound by this Agreement or (b) to
any partner of (i) Warburg or (ii) an Affiliate of Warburg, who, in
each case, agrees to be bound by this Agreement.
13. MISCELLANEOUS.
13.1 Entire Agreement; Assignment. This Agreement (i)
constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect
to the subject matter hereof and (ii) shall not be assigned by
operation of law or otherwise without the prior written consent of the
other party.
13.2 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a
written agreement executed by the parties hereto.
13.3 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by hand
delivery, telegram, telex or telecopy, or by mail (registered or
certified mail, postage prepaid, return receipt requested) or by any
courier service, such as Federal Express, providing proof of delivery.
All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Warburg: Warburg, Xxxxxx Capital Company, L.P.
c/o X.X. Xxxxxxx, Xxxxxx & Co., LLC
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx
Telecopier: (000) 000-0000
copy to: Xxxxxxx Xxxx & Xxxxxxxxx
One Citicorp Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxx, Esq.
Telecopier Number: (000) 000-0000
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If to the Mafco Holdings Inc.
Purchaser: 000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telecopier Number: (000) 000-0000
copy to: Skadden, Arps, Slate, Xxxxxxx
& Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxx, Esq.
Telecopier Number: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
13.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof.
13.5 Enforcement. The parties agree that 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. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement.
13.6 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but
both of which shall constitute one and the same Agreement.
13.7 Descriptive Headings. The descriptive headings used
herein are inserted for convenience of reference only and are not
intended to be part of or to affect the meaning or interpretation of
this Agreement.
13.8 Severability. Whenever possible, each provision or
portion of any provision of this Agreement will be interpreted in such
manner as to be effective and valid under applicable law but if any
provision or portion of any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable
law or rule in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and this
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Agreement will be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein.
13.9 Definitions; Construction. For purposes of this
Agreement:
(a) "beneficially own" or "beneficial ownership" with respect
to any securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Exchange
Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting
of the same securities by the same holder, securities Beneficially
owned by a Person shall include securities Beneficially owned by all
other Persons with whom such Person would constitute a "group" as
described in Section 13(d)(3) of the Exchange Act.
(b) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated
organization or other entity.
(c) In the event of a stock dividend or distribution, or any
change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the
Shares as well as all such stock dividends and distributions and any
shares into which or for which any or all of the Shares may be changed
or exchanged.
13.10 Stockholder Capacity. Notwithstanding anything herein to
the contrary, nothing set forth herein shall in any way restrict any
director in the exercise of his or her fiduciary duties as a director
of the Company.
13.11 Adjustment Upon Changes in Capitalization. In the event of
any change in the Common Stock by reason of any stock dividend,
extraordinary dividend or distribution, split-up, recapitalization,
combination, exchange of shares or the like, the number of Shares
subject to Sections 3 and 4 hereof, and the purchase prices therefor,
shall be appropriately adjusted.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
PANAVISION INC.
By:/s/ X. X. Xxxxx
Name:X. X. Xxxxx
Title:
MAFCO HOLDINGS INC.
By:/s/ Xxxxxx Xxxxxx
Name:Xxxxxx Xxxxxx
Title:
WARBURG, XXXXXX CAPITAL COMPANY, L.P.
By: WARBURG, XXXXXX & CO., ITS GENERAL
PARTNER
By:/s/ Xxxxxx Xxxxxxx
Name:Xxxxxx Xxxxxxx
Title:
