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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT, OR THE SECURITIES LAWS OF
ANY JURISDICTION. SUCH SECURITIES MAY NOT BE OFFERED, SOLD OR
TRANSFERRED EXCEPT PURSUANT TO (I) A REGISTRATION STATEMENT
WITH RESPECT TO SUCH SECURITIES THAT IS EFFECTIVE UNDER SUCH ACT
AND APPLICABLE STATE SECURITIES LAW, OR (II) ANY EXEMPTION FROM
REGISTRATION UNDER SUCH ACT, AND APPLICABLE STATE SECURITIES
LAW, RELATING TO THE DISPOSITION OF SECURITIES, INCLUDING RULE 144.
THE TRANSFER OF THIS WARRANT IS
RESTRICTED AS DESCRIBED HEREIN.
PANAVISION INC.
WARRANT FOR THE PURCHASE OF SHARES OF COMMON STOCK,
PAR VALUE $.01 PER SHARE
No. W-1 714,300 Shares
THIS CERTIFIES that, for value received, SONY ELECTRONICS INC., a
Delaware corporation (the "Holder"), is entitled to subscribe for and purchase
from PANAVISION INC., a Delaware corporation (the "Company"), upon the terms and
conditions set forth herein, at any time or from time to time after July 26,
2000 and before 5:00 P.M. on July 25, 2010 New York time (the "Exercise
Period"), 714,300 shares of the Company's Common Stock, par value $.01 per share
(the "Common Stock"), at a price per share equal to the Exercise Price (as
defined in Section 1(b) below). This Warrant is the warrant (collectively,
including any warrants issued upon the exercise or transfer of any such warrants
in whole or in part, the "Warrants") issued pursuant to the Stock and Warrant
Purchase Agreement, dated July 26, 2000 (the "Purchase Agreement"), by and
between the Company and the Holder. As used herein the term "this Warrant" shall
mean and include this Warrant and any Warrant or Warrants hereafter issued as a
consequence of the exercise or transfer of this Warrant in whole or in part.
Neither this Warrant nor any shares of Common Stock issued on exercise hereof
may be sold or transferred except in accordance with the legend above, except
that this Warrant or any such shares may be transferred, in whole or in part, to
(i) one or more affiliates of the Holder; (ii) a successor to the Holder, or any
affiliates of such successor; (iii) a purchaser of substantially all of the
assets of the Holder; or (iv) by operation of law; and the term the "Holder" as
used herein shall include any transferee to whom this Warrant has been
transferred in accordance with the above.
The number of shares of Common Stock issuable upon exercise of the
Warrants (the "Warrant Shares") and the Exercise Price may be adjusted from time
to time as hereinafter set forth.
1. (a) Subject to the terms and conditions hereinafter set forth, this
Warrant may be exercised during the Exercise Period, as to the whole or any
lesser number of whole Warrant Shares, by the surrender of this Warrant (with
the form of election attached hereto duly executed) to the Company at its office
at 6219 De Soto Avenue, Woodland Hills, California
<PAGE>
91367, or at such other place as is designated in writing by the Company,
together with, at the option of the Holder, (i) a certified or bank cashier's
check payable to the order of the Company in an amount equal to the Exercise
Price multiplied by the number of Warrant Shares for which this Warrant is being
exercised (the "Aggregate Exercise Price"), (ii) the acceptance by the Holder of
a number of Warrant Shares equal to the number of Warrant Shares being purchased
upon such exercise, less that number of Warrant Shares having an aggregate
Current Market Price (as defined in Section 5(d)) equal to the Aggregate
Exercise Price, or (iii) any combination of the foregoing.
(b) For purposes of this Warrant, the term "Exercise Price" shall mean
$17.50; provided, however, that, in the event that the Company's 2000 EBITDA (as
defined below) is less than sixty-nine million dollars ($69,000,000), then the
"Exercise Price" as of the time of the filing of the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 2000 (the "2000 Form 10-K")
with the Securities and Exchange Commission shall equal the Exercise Price that
would have been effect at the time of filing of the 2000 Form 10-K had the
Exercise Price as of the date of the issuance of this Warrant been $15.50. In
the event that this Warrant has been exercised in whole or in part prior to the
time of filing of the 2000 Form 10-K, then the adjustments contemplated by this
Section 1(b) shall not apply with respect to the Warrant (or any portion
thereof) exercised prior to such time of filing. For purposes of this Section
1(b), the term "2000 EBITDA" shall mean the EBITDA (as reported in the Company's
Selected Financial Data table contained in the 2000 Form 10-K) of the Company
and its consolidated subsidiaries for the twelve months ended December 31, 2000;
provided, however, that (i) EBITDA shall be calculated in manner that is
consistent with the manner of calculation set forth in the Selected Financial
Data table in the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, and (ii) the financial statements of the Company from which
the individual items used to calculate 2000 EBITDA shall have been prepared in
accordance with generally accepted accounting principles, consistently applied.
2. Upon each exercise of the Holder's rights to purchase Warrant
Shares, the Holder shall be deemed to be the holder of record of the Warrant
Shares issuable upon such exercise, notwithstanding that the transfer books of
the Company shall then be closed or certificates representing such Warrant
Shares shall not then have been actually delivered to the Holder. As soon as
practicable after each such exercise of this Warrant, the Company shall issue
and deliver to the Holder a certificate or certificates for the Warrant Shares
issuable upon such exercise, registered in the name of the Holder or its
designee. If this Warrant should be exercised in part only, the Company shall,
upon surrender of this Warrant for cancellation, execute and deliver a new
Warrant evidencing the right of the Holder to purchase the balance of the
Warrant Shares (or portions thereof) subject to purchase hereunder.
3. Any Warrants issued upon the transfer or exercise in part of this
Warrant shall be numbered and shall be registered in a warrant register (the
"Warrant Register") as they are issued. The Company shall be entitled to treat
the registered holder of any Warrant on the
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Warrant Register as the owner in fact thereof for all purposes and shall not be
bound to recognize any equitable or other claim to or interest in such Warrant
on the part of any other person, and shall not be liable for any registration or
transfer of Warrants which are registered or to be registered in the name of a
fiduciary or the nominee of a fiduciary unless made with the actual knowledge
that a fiduciary or nominee is committing a breach of trust in requesting such
registration or transfer, or with the knowledge of such facts that its
participation therein amounts to bad faith. This Warrant shall be transferable
only on the books of the Company upon delivery thereof duly endorsed by the
Holder or by his or its duly authorized attorney or representative, or
accompanied by proper evidence of succession, assignment, or authority to
transfer. In all cases of transfer by an attorney, executor, administrator,
guardian, or other legal representative, duly authenticated evidence of his or
its authority shall be produced. Upon any registration of transfer, the Company
shall deliver a new Warrant or Warrants to the person entitled thereto. This
Warrant may be exchanged, at the option of the Holder thereof, for another
Warrant, or other Warrants of different denominations, of like tenor and
representing in the aggregate the right to purchase a like number of Warrant
Shares (or portions thereof), upon surrender to the Company or its duly
authorized agent. Notwithstanding the foregoing, the Company shall have no
obligation to cause Warrants to be transferred on its books to any person if, in
the opinion of counsel to the Company, such transfer does not comply with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (the "Securities Act").
4. The Company shall at all times reserve and keep available out of its
authorized and unissued Common Stock, solely for the purpose of providing for
the exercise of the rights to purchase all Warrant Shares granted pursuant to
the Warrants, such number of shares of Common Stock as shall, from time to time,
be sufficient therefor. The Company covenants that all shares of Common Stock
issuable upon exercise of this Warrant, upon receipt by the Company of the full
Exercise Price therefor, shall be validly issued, fully paid, nonassessable, and
free of preemptive rights.
5. (a) In case the Company shall at any time after the date the
Warrants were first issued (i) declare a dividend on the outstanding Common
Stock payable in shares of its capital stock, (ii) subdivide the outstanding
Common Stock into a greater number of shares, (iii) combine the outstanding
Common Stock into a smaller number of shares, or (iv) issue any shares of its
capital stock by reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation), then, in each case, the Exercise Price,
and the number of Warrant Shares issuable upon exercise of this Warrant, in
effect immediately prior to the close of business on the record date for the
determination of stockholders entitled to receive such dividend or to
participate in such subdivision, contribution or reclassification or, if no
record date is selected or the fixing of a record date is inapplicable,
immediately prior to the effective time of such subdivision, combination, or
reclassification, shall be proportionately adjusted so that the Holder of any
Warrants exercised after such time shall be entitled to receive the aggregate
number and kind of shares which, if such Warrant had been exercised immediately
prior to such time, such Holder
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<PAGE>
would have owned upon such exercise and been entitled to receive by virtue of
such dividend, subdivision, combination, or reclassification. Such adjustment
shall be made successively whenever any event listed above shall occur and shall
take effect at the close of business on the aforementioned record date or at the
aforementioned effective time, as the case may be. In the event that after
fixing any such record date any such dividend or other transaction is not
effected, the Exercise Price and the number of Warrant Shares shall be
readjusted to the Exercise Price and the number of Warrant Shares which would
then have been in effect if such record date had not been fixed.
(b) (i) (x) In case the Company shall fix a record date with respect
to the issuance of or, if no record date is selected or if the selection of a
record date is inapplicable, in the case the Company shall issue, in either such
case, shares of Common Stock or rights, options, or warrants to subscribe for or
purchase Common Stock, or securities convertible into or exchangeable for Common
Stock, or rights, options, or warrants to subscribe for or purchase such
convertible or exchangeable securities, but excluding (A) rights issued pursuant
to a shareholder rights plan, and (B) shares, rights, options, warrants, or
convertible or exchangeable securities issued or issuable in any of the
transactions with respect to which an adjustment of the Exercise Price is
provided pursuant to Section 5(a) above,
(y) at a price per share lower than the Current Market Price
immediately prior to such issuance (such per share price determined, in the case
of such rights, options, warrants, or convertible or exchangeable securities, by
dividing (A) the aggregate consideration received by the Company for the sale
and issuance of such rights, options, warrants, or convertible or exchangeable
securities, by (B) the maximum number of shares of Common Stock covered by such
rights, options, warrants, or convertible or exchangeable securities),
(z) then the Exercise Price shall be adjusted by multiplying
the Exercise Price in effect immediately prior to such issuance by a fraction,
(A) the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such issuance plus the number of shares of
Common Stock which the aggregate consideration received by the Company for such
sale and issuance would purchase at such Current Market Price, and (B) the
denominator of which shall be the total number of shares of Common Stock
outstanding immediately prior to such issuance plus the number of additional
shares of Common Stock issued and outstanding pursuant to such issuance.
(ii) For the purposes of the foregoing:
(x) the "maximum number of shares of Common Stock covered by
such rights, options, warrants, or convertible or exchangeable securities" (or
words of similar import) shall equal the aggregate number of shares of Common
Stock holders of such rights, options, warrants, or convertible or exchangeable
securities are initially entitled to receive
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<PAGE>
upon their exercise (without regard to any provision contained therein for
subsequent adjustment of such amount to protect against dilution or otherwise),
(y) the "number of additional shares of Common Stock issued
and outstanding pursuant to the issuance of rights, options, warrants, or
convertible or exchangeable securities" (or words of similar import) shall equal
the aggregate number of shares of Common Stock holders of such rights, options,
warrants, or convertible or exchangeable securities are initially entitled to
receive upon exercise (without regard to any provision contained therein for
subsequent adjustment of such amount to protect against dilution or otherwise),
and
(z) the "aggregate consideration received by the Company for
the sale and issuance of rights, options, warrants, or convertible or
exchangeable securities" (or words of similar import) shall equal the aggregate
consideration received or receivable by the Company upon the issuance of such
rights, options, warrants, or convertible or exchangeable securities, plus the
minimum aggregate consideration or premiums stated in such rights, options,
warrants, or convertible or exchangeable securities to be paid upon the
exercise, conversion or exchange thereof for the shares of Common Stock covered
thereby (without regard to any provision contained therein for subsequent
adjustment of such amount to protect against dilution or otherwise).
(iii) No further adjustment of the Exercise Price shall be made
to account for any actual issuance of shares of Common Stock on exercise of such
rights, options, or warrants or on conversion or exchange of such convertible or
exchangeable securities.
(iv) In case the Company shall issue shares of Common Stock or
any such rights, options, warrants, or convertible or exchangeable securities
for a consideration consisting, in whole or in part, of property other than cash
or its equivalent, then the "price per share" and the "consideration received by
the Company" for purposes of this Section 5(b) shall be as determined in good
faith by the board of directors of the Company. Shares of Common Stock owned by
the Company or held for the account of the Company or held by any majority-owned
subsidiary of the Company shall not be deemed outstanding for the purpose of any
such computation.
(v) Any such adjustment pursuant to this Section 5(b) shall
become effective (i) in the case where a record date has been selected for the
determination of stockholders entitled to participate in an issuance
contemplated by Section 5(b)(i)(x) hereof, at the close of business on such
record date, or (ii) in the case where no record date has been selected or where
the selection of a record date is inapplicable with respect to an issuance
contemplated by Section 5(b)(i)(x) hereof, upon such issuance. In the event that
after fixing a record date such rights, options, warrants, or convertible or
exchangeable securities are not so issued, the Exercise Price and the number of
Warrant Shares shall be readjusted to the Exercise
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<PAGE>
Price and number of Warrant Shares which would then have been in effect if such
record date had not been fixed.
(c) In case the Company shall distribute to all holders of Common
Stock (including any such distribution made to the stockholders of the Company
in connection with a consolidation or merger in which the Company is the
continuing corporation) evidences of its indebtedness or assets (other than cash
dividends paid in the ordinary course of business or distributions and dividends
payable in shares of Common Stock), or rights, options, or warrants to subscribe
for or purchase Common Stock, or securities convertible into or exchangeable for
shares of Common Stock (excluding those with respect to the issuance of which an
adjustment of the Exercise Price is provided pursuant to Section 5(b) hereof),
then, in each case, the Exercise Price shall be adjusted by multiplying the
Exercise Price in effect immediately prior to the close of business on the
record date for the determination of stockholders entitled to receive such
distribution by a fraction, (A) the numerator of which shall be the Current
Market Price determined as of such record date, less the fair market value (as
determined in good faith by the board of directors of the Company) of the
portion of the evidences of indebtedness or assets so to be distributed, or of
such rights, options, or warrants or convertible or exchangeable securities,
applicable to one share, and (B) the denominator of which shall be such Current
Market Price. Such adjustment shall be made whenever any such distribution is
made, and shall become effective at the close of business on the aforementioned
record date.
(d) As used in this Warrant, the "Current Market Price" per share of
Common Stock on any date shall be deemed to be the average of the daily closing
prices for the 20 consecutive trading days commencing 25 trading days
immediately preceding the date in question; provided, however, that, for
purposes of Section 1(a)(ii) hereof, the "Current Market Price" of a Warrant
Share shall be deemed to be the closing price of a share of Common Stock as of
the date immediately preceding the date upon which the Warrant is delivered to
the Company for exercise. The closing price for any day shall be the last
reported sales price regular way or, in case no such reported sale takes place
on such day, the average of the closing bid and asked prices regular way, in
either case on the principal national securities exchange (including, for
purposes hereof, Nasdaq) on which the Common Stock is listed or admitted to
trading or, if the Common Stock is not listed or admitted to trading on any
national securities exchange, the highest reported bid price for the Common
Stock as furnished by the National Association of Securities Dealers, Inc.
through Nasdaq or a similar organization if Nasdaq is no longer reporting such
information. If on any such date the Common Stock is not listed or admitted to
trading on any national securities exchange and is not quoted by Nasdaq or any
similar organization, the fair value of a share of Common Stock on such date, as
determined in good faith by the board of directors of the Company, whose
determination shall be conclusive absent manifest error, shall be used.
(e) No adjustment in the Exercise Price shall be required as a
result of the issuance of: (i) any options or rights, or any shares of Common
Stock issuable upon the
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<PAGE>
exercise of options or rights, issued pursuant to the Company's 1999 Stock
Option Plan; (ii) any rights, options, warrants, or other convertible or
exchangeable securities issued under any other employment benefit plans adopted
by the Board of Directors of the Company (but only to the extent that the
aggregate number of rights, options, warrants and other convertible and
exchangeable securities excluded by this clause (ii) and issued after July 26,
2000 shall not exceed the right to receive more than five percent (5%) of the
outstanding Common Stock as of July 26, 2000); or (iii) Common Stock upon
exercise of the Warrant.
(f) No adjustment in the Exercise Price shall be required if such
adjustment is less than $.01; provided, however, that any adjustments which by
reason of this Section 5(f) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations under this
Section 5 shall be made to the nearest cent or to the nearest one-thousandth of
a share, as the case may be.
(g) In any case in which this Section 5 shall require that an
adjustment in the Exercise Price be made effective as of the close of business
on a record date for a specified event, the Company may elect to defer, until
the occurrence of such event, issuing to the Holder, if the Holder exercised
this Warrant as of or after the close of business on such record date, the
shares of Common Stock, if any, issuable upon such exercise over and above the
shares of Common Stock, if any, issuable upon such exercise on the basis of the
Exercise Price in effect prior to such adjustment; provided, however, that the
Company shall deliver to the Holder a due bill or other appropriate instrument
evidencing the Holder's right to receive such additional shares upon the
occurrence of the event requiring such adjustment.
(h) Upon each adjustment of the Exercise Price as a result of the
calculations made in Sections 5(b) or 5(c) hereof, this Warrant shall thereafter
evidence the right to purchase, at the adjusted Exercise Price, that number of
shares (calculated to the nearest thousandth) obtained by dividing (A) the
product obtained by multiplying (i) the number of shares purchasable upon
exercise of this Warrant prior to adjustment of the Exercise Price by (ii) the
Exercise Price in effect prior to adjustment of the Exercise Price by (B) the
Exercise Price in effect after such adjustment of the Exercise Price.
(i) On the expiration, cancellation, retirement or termination of
any rights, options, warrants or convertible or exchangeable securities
described in Sections 5(b) or 5(c), the Exercise Price and the number of Warrant
Shares (but only with respect to Warrants exercised after such expiration,
cancellation, retirement or termination which, for purposes of this Section
5(i), shall be deemed to include the portion of those Warrants which have been
exercised and in respect of which a due bill or other instrument has been
delivered to the Holder in accordance with Section 5(g) hereof) shall be
readjusted at the time of such expiration, cancellation, retirement or
termination to the Exercise Price and the number of Warrant Shares that would
have been in effect if no adjustment had been made on account of the
distribution or issuance of such expired rights, options, warrants, or
convertible or exchangeable securities.
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(j) Whenever there shall be an adjustment as provided in this
Section 5, the Company shall promptly cause written notice thereof to be sent by
registered mail, postage prepaid, to the Holder, at its address as it shall
appear in the Warrant Register, which notice shall be accompanied by an
officer's certificate setting forth the number of Warrant Shares purchasable
upon the exercise of this Warrant and the Exercise Price after such adjustment
and setting forth a brief statement of the facts requiring such adjustment and
the computation thereof.
(k) The Company shall not be required to issue fractions of shares
of Common Stock or other capital stock of the Company upon the exercise of this
Warrant. If any fraction of a share would be issuable on the exercise of this
Warrant (or specified portions thereof), the Company shall purchase such
fraction for an amount in cash equal to the same fraction of the Exercise Price
on the date of exercise of this Warrant.
(l) No adjustment in the Exercise Price or the number of Warrant
Shares purchasable upon the exercise of each Warrant need be made (i) under
Section 5(b) or 5(c) if the Company issues or distributes to each Holder of
Warrants the rights, options, warrants, or convertible or exchangeable
securities, or evidences of indebtedness or other assets referred to in those
Sections which each Holder of Warrants would have been entitled to receive had
the Warrants been exercised prior to the happening of such event or the record
date with respect thereto or (ii) for any change in the par value of the Common
Stock.
(m) If any single action would require adjustment of the Exercise
Price or the number of Warrant Shares purchasable upon the exercise of each
Warrant pursuant to more than one provision of this Warrant, only one adjustment
shall be made.
6. (a) In case of any consolidation with or merger of the Company with
or into another corporation (other than a merger or consolidation in which the
Company is the surviving or continuing corporation), or in case of any sale,
lease, or conveyance to another corporation of all or substantially all of the
assets of the Company, such successor, leasing, or purchasing corporation, as
the case may be, shall (i) execute with the Holder an agreement providing that
the Holder shall have the right thereafter to receive upon exercise of this
Warrant solely the kind and amount of shares of stock and other securities,
property, cash, or any combination thereof receivable upon such consolidation,
merger, sale, lease, or conveyance by a holder of the number of shares of Common
Stock for which this Warrant might have been exercised immediately prior to such
consolidation, merger, sale, lease, or conveyance and (ii) make effective
provision in its certificate of incorporation or otherwise, if necessary, to
effect such agreement. Such agreement shall provide for adjustments which shall
be as nearly equivalent as practicable to the adjustments in Section 5.
(b) In case of any reclassification or change of the shares of
Common Stock issuable upon exercise of this Warrant (including (i) any
consolidation or merger of
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<PAGE>
another corporation into the Company in which the Company is the continuing
corporation and in which there is a reclassification or change (including a
change to the right to receive cash or other property) of the shares of Common
Stock and (ii) any change in the Common Stock into two or more classes or series
of shares) in respect of which an adjustment has not been provided for under
Section 5(a), the Holder shall have the right to receive upon exercise of this
Warrant following the consummation of any such reclassification or change solely
the kind and amount of shares of stock and other securities, property, cash, or
any combination thereof which would have been receivable upon such
reclassification or change by a holder of the number of shares of Common Stock
for which this Warrant might have been exercised immediately prior to such
reclassification or change. Thereafter, appropriate provision shall be made for
adjustments which shall be as nearly equivalent as practicable to the
adjustments in Section 5.
(c) The above provisions of this Section 6 shall similarly apply to
successive reclassifications and changes of shares of Common Stock and to
successive consolidations, mergers, sales, leases, or conveyances.
7. In case at any time the Company shall propose
(a) to pay any dividend (other than cash dividends paid in the
ordinary course of business) or make any distribution on shares of Common Stock
in shares of Common Stock or make any other distribution to all holders of
Common Stock; or
(b) to issue any rights, warrants, or other securities to all
holders of Common Stock entitling them to purchase any additional shares of
Common Stock or any other rights, warrants, or other securities (other than
pursuant to: (i) the Company's 1999 Stock Option Plan; or (ii) other employee
benefit plans of the Company, but only to the extent that no adjustment to the
Exercise Price is required pursuant to Section 5(e) hereof); or
(c) to effect any reclassification or change of outstanding shares
of Common Stock, or any consolidation, merger, sale, lease, or conveyance of
property, described in Section 6; or
(d) to effect any liquidation, dissolution, or winding-up of the
Company; or
(e) to take any other action which would cause an adjustment to the
Exercise Price;
then, and in any one or more of such cases, the Company shall give written
notice thereof, by registered mail, postage prepaid, to the Holder at the
Holder's address as it shall appear in the Warrant Register, mailed at least 15
days prior to (i) the date as of which the holders of record of shares of Common
Stock to be entitled to receive any such dividend, distribution, rights,
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warrants, or other securities are to be determined, (ii) the date on which any
such reclassification, change of outstanding shares of Common Stock,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding-up is expected to become effective, and the date as of
which it is expected that holders of record of shares of Common Stock shall be
entitled to exchange their shares for securities or other property, if any,
deliverable upon such reclassification, change of outstanding shares,
consolidation, merger, sale, lease, conveyance of property, liquidation,
dissolution, or winding up, or (iii) the date of such action which would require
an adjustment to the Exercise Price. Failure to mail the notice or any defect
therein shall not affect the validity of the transaction requiring the mailing
of such notice.
8. The issuance of any shares of Common Stock or other securities upon
the exercise of this Warrant, and the delivery of certificates or other
instruments representing such shares or other securities, in each case to the
registered holder of the Warrants, shall be effected by the Company without the
Company imposing any of charges upon such registered holder. Notwithstanding
anything to the contrary herein, the Company shall not be required to pay any
tax or taxes which may be payable in respect of any transfer of any Warrants or
Warrant Shares to a person or entity other than that of the registered holder of
such Warrant or Warrant Shares, and the Company shall not be required to issue
or deliver such Warrants or Warrant Shares to any person or entity other than
that of the registered holder unless or until such other person or entity
requesting the issuance thereof shall have paid to the Company the amount of
such tax or shall have established to the satisfaction of the Company that such
tax has been paid or is not payable under law.
9. Upon issuance, the Warrant Shares may not be transferred without
registration under the Securities Act and applicable state securities laws
unless counsel to the Holder (which is reasonably acceptable to the Company)
shall advise the Company in writing that such transfer may be effected without
such registration. Each certificate representing any of the Warrant Shares shall
bear legends in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT, OR THE
SECURITIES LAWS OF ANY JURISDICTION. SUCH SECURITIES MAY NOT BE
OFFERED, SOLD OR TRANSFERRED EXCEPT PURSUANT TO (I) A REGISTRATION
STATEMENT WITH RESPECT TO SUCH SECURITIES THAT IS EFFECTIVE UNDER SUCH
ACT AND APPLICABLE STATE SECURITIES LAW, OR (II) ANY EXEMPTION FROM
REGISTRATION UNDER SUCH ACT, AND APPLICABLE STATE SECURITIES LAW,
RELATING TO THE DISPOSITION OF SECURITIES, INCLUDING RULE 144.
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The Company shall remove or cause its registrar and transfer agent to remove
such legend at the time such Warrant Shares are transferred pursuant to an
effective registration statement under the Securities Act or pursuant to Rule
144 under the Securities Act.
10. Upon receipt by the Company of evidence satisfactory to the Company
of the loss, theft, destruction, or mutilation of any Warrant (and upon
surrender of any Warrant if mutilated) and an indemnity from the Holder, and
upon reimbursement of the Company's reasonable incidental expenses by the
Holder, the Company shall execute and deliver to the Holder thereof a new
Warrant of like date, tenor, and denomination.
11. The Holder of any Warrant shall not have, solely on account of such
status, any rights of a stockholder of the Company, either at law or in equity.
Without limiting the immediately preceding sentence, the Holder of any Warrant
shall be given notices of meetings of the stockholders of the Company at the
same time as such notice is given to such stockholders.
12. Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested or sent by Federal Express, Express Mail, or similar overnight
delivery or courier service or delivered (in person or by telecopy, telex, or
similar telecommunications equipment) against receipt to the party to whom it is
to be given, if sent to the Company, at: 6219 De Soto Avenue, Woodland Hills,
California 91367, Attention: The Chairman or the President; or if sent to the
Holder, at the Holder's address as it shall appear on the Warrant Register; or
to such other address as the party shall have furnished in writing in accordance
with the provisions of this Section 12. Any notice or other communication given
by certified mail shall be deemed given at the time of certification thereof,
except for a notice changing a party's address which will be deemed given at the
time of receipt thereof. Any notice given by other means permitted by this
Section 12 shall be deemed given at the time of receipt thereof.
13. This Warrant shall be binding upon the Company and its successors
and assigns and shall inure to the benefit of the Holder and its permitted
successors and assigns.
14. This Warrant shall be construed in accordance with the laws of the
State of Delaware applicable to contracts made and performed within such State,
without regard to principles of conflicts of law.
15. The Company and, by its acceptance of the benefits of this Warrant,
the holder of this Warrant agree that they shall not commence any legal
proceeding or action against the other under this Warrant unless and until they
have attempted in good faith to settle the underlying dispute through
negotiation or mediation for a period of not less than 30 days. The Company and,
by its acceptance of the benefits of this Warrant, the holder of this Warrant
irrevocably and unconditionally submit to the exclusive jurisdiction of the
United States District
11
<PAGE>
Court for the Southern District of New York or, if such court will not accept
jurisdiction, the Supreme Court of the State of New York, New York County or any
court of competent civil jurisdiction sitting in New York County, New York. In
any action, suit or other proceeding, the Company and, by its acceptance of the
benefits of this Warrant, the holder of this Warrant irrevocably and
unconditionally waive and agree not to assert by way of motion, as a defense or
otherwise any claim that it is not subject to the jurisdiction of the above
courts, that such action or suit is brought in an inconvenient forum or that the
venue of such action, suit or other proceeding is improper. The Company and, by
its acceptance of the benefits of this Warrant, the holder of this Warrant also
agree that any final and unappealable judgment against either of them in
connection with any action, suit or other proceeding shall be conclusive and
binding on such party and that such award or judgment may be enforced in any
court of competent jurisdiction, either within or outside of the United States.
A certified or exemplified copy of such award or judgment shall be conclusive
evidence of the fact and amount of such award or judgment.
16. THE COMPANY AND, BY ITS ACCEPTANCE OF THE BENEFITS OF THIS WARRANT,
THE HOLDER OF THIS WARRANT IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE
ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT.
17. Each of the Company and, by its acceptance of the benefits under
this Warrant, the Holder agree that in the event of any action with respect to
the terms and provisions of this Warrant, if the Holder prevails in such action
then the Holder shall be entitled to recovery of its attorney's fees from the
Company, and if the Company prevails in such action the Company shall be
entitled to recovery of its attorney's fees from the Holder(s) party to such
actions.
12
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Warrant to be
duly executed by a duly authorized officer under its corporate seal and attested
by its Secretary on the day and year first written below.
Dated: July ___, 2000
PANAVISION INC.
By:
---------------------------
Name:
Title:
[Seal]
ATTEST:
------------------------------
Secretary
<PAGE>
FORM OF ASSIGNMENT
(To be executed by the registered holder if such holder desires to transfer the
attached Warrant and such transfer is permissible under the terms of the
attached Warrant.)
FOR VALUE RECEIVED, _____________________________ hereby
sells, assigns, and transfers unto __________________ a Warrant to purchase
__________ shares of Common Stock, par value $.01 per share, of Panavision Inc.
(the "Company"), together with all right, title, and interest therein, and does
hereby irrevocably constitute and appoint __________ attorney to transfer such
Warrant on the books of the Company, with full power of substitution.
Dated:
---------------
Signature
---------------------------
NOTICE
The signature on the foregoing Assignment must correspond to
the name as written upon the face of this Warrant in every particular, without
alteration or enlargement or any change whatsoever.
<PAGE>
To: Panavision Inc.
-------------------------
-------------------------
ELECTION TO EXERCISE
The undersigned hereby irrevocably exercises his or its rights to
purchase _______ Warrant Shares covered by the within Warrant and tenders
payment herewith in the amount of $_________ in accordance with the terms
thereof, and requests that certificates for such securities be issued in the
name of, and delivered to:
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
(Print Name, Address and Social Security
or Tax Identification Number)
and, if such number of Warrant Shares shall not be all the Warrant Shares
covered by the within Warrant, that a new Warrant for the balance of the Warrant
Shares covered by the within Warrant be registered in the name of, and delivered
to, the undersigned at the address stated below.
Dated: Name
------------------- ----------------------------
(Print)
Address:
------------------------------------------------------
---------------------------
(Signature)
The above signature must correspond to the name as written upon the
face of the within Warrant in every particular, without alteration or
enlargement or any change whatsoever.
