AMENDED AND RESTATED VOTING AND STOCKHOLDERS AGREEMENT
Amended and Restated Voting and Stockholders Agreement, dated as of
April 16, 1998 (this "Agreement"), 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 ("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, the Company, Purchaser and Warburg, have previously entered
into a Voting and Stockholders Agreement, dated as of December 18, 1997, as
amended by the First Amendment dated as of March 16, 1998 (collectively,
the "First Stockholders Agreement") and now wish to restate the First
Stockholders Agreement in its entirety; and
WHEREAS, 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 previously 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 required the other parties hereto to enter into the First
Stockholders 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 to amend and restate the First Stockholders
Agreement 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 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, 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 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 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 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;
(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 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 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 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 $2,650 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; provided,
further, that the number of Shares to be exchanged for Redeemable
Preferred Stock, pursuant to the foregoing provisions of this Section
7.3, shall be reduced by the number, if any, of Purchaser Stock
Purchase Shares (as defined below), rounded down to the nearest 100
Shares. Warburg shall elect to retain, in accordance with the terms
of the Merger Agreement, the Company Common Stock not (i) exchanged
for Redeemable Preferred Stock pursuant to this Section 7.3 or (ii)
sold pursuant to Section 7.5.
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.
7.5 Purchaser Stock Purchase
(a) Immediately prior to the consummation of the Merger, Warburg
shall sell, transfer, assign and deliver the Purchaser Stock Purchase
Shares, if any, to Purchaser or its designee, and Purchaser or its designee
shall purchase the Purchaser Stock Purchase Shares, if any, from Warburg
for $26.50 per Share, payable by wire transfer of same day funds; provided,
that all conditions to the Merger contained in the Merger Agreement have
been either satisfied or waived.
(b) In the event that the Designated Number of Common Shares
multiplied by the Designated Per Share Purchase Price (as each such term is
defined in the Merger Agreement) shall equal less than $154,000,000, a
number of Shares calculated by dividing such deficiency by $26.50 (rounded
up to the nearest whole number) shall constitute the "Purchaser Stock
Purchase Shares".
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.
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
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 the Panavision Inc.
Company: 000 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telecopier: (000) 000-0000
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
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 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.
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/ Xxxxxxx X. Xxxxx
__________________________
Name: Xxxxxxx X. Xxxxx
Title: Chairman of the Board and
Chief Executive Officer
MAFCO HOLDINGS INC.
By: /s/ Xxxxxx Xxxxxx
__________________________
Name: Xxxxxx Xxxxxx
Title: Vice Chairman
WARBURG, XXXXXX CAPITAL COMPANY, L.P.
By:
WARBURG, XXXXXX & CO., ITS GENERAL PARTNER
By: /s/ Xxxxxx Xxxxxxx
_____________________________
Name: Xxxxxx Xxxxxxx
Title: Partner
