SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
(Amendment No. 1)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-
1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
PANAVISION INC.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
69830E 209
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(CUSIP Number)
Barry F. Schwartz, Esq.
MacAndrews & Forbes Holdings Inc.
35 East 62nd Street
New York, New York 10021
(212) 572-8600
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
Copy to:
Alan C. Myers, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
(212) 735-3000
June 4, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box ( )
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom
copies are to be sent.
CUSIP No. 69830E 209 13D
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON.
PX Holding Corporation
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ( )
(b) ( )
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
AF
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
( )
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7. SOLE VOTING POWER -0-
SHARES
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 5,784,199
EACH
REPORTING 9. SOLE DISPOSITIVE POWER -0-
PERSON
WITH 10. SHARED DISPOSITIVE POWER
5,784,199
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,784,199
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
( )
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
71.8%
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14. TYPE OF REPORTING PERSON
CO
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CUSIP No. 69830E 209 13D
1. NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON.
Mafco Holdings Inc.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) ( )
(b) ( )
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3. SEC USE ONLY
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4. SOURCE OF FUNDS
WC
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5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
( )
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7. SOLE VOTING POWER -0-
SHARES
BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 5,784,199
EACH
REPORTING 9. SOLE DISPOSITIVE POWER -0-
PERSON
WITH 10. SHARED DISPOSITIVE POWER 5,784,199
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,784,199
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12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
( )
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
71.8%
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14. TYPE OF REPORTING PERSON
CO
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Item 1. Security and Issuer.
This statement relates to the shares of common stock, par value
$.01 per share (the "Common Stock"), of Panavision Inc., a Delaware
corporation (the "Company"). The Company has its principal executive
offices at 6219 DeSoto Avenue, Woodland Hills, California 91367.
Item 2. Identity and Background.
This statement is being filed by (i) Mafco Holdings Inc., a
corporation organized under the laws of the state of Delaware ("Mafco"),
the sole stockholder of which is Ronald O. Perelman and (ii) PX Holding
Corporation, a wholly owned subsidiary of Mafco and a corporation organized
under the laws of the state of Delaware ("PX Holding" and together with and
Mafco, the "Reporting Persons") with respect to shares of Common Stock
beneficially owned by the Reporting Persons. Mafco is a diversified
holding company.
The business address of the Reporting Persons is 35 East 62nd
Street, New York, New York 10021.
To the knowledge of the Reporting Persons, during the last five
years neither the Reporting Persons nor, to the best of their knowledge,
any of the persons listed on Schedule I, has been (i) convicted in a
criminal proceeding (excluding traffic violations or similar misdemeanors)
or (ii) was a party to a civil proceeding of a judicial or administrative
body of competent jurisdiction and as a result of such proceeding was or is
subject to a judgement, decree or final order enjoining future violations
of, or prohibiting or mandating activities subject to, federal or state
securities laws or finding any violations with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The Reporting Persons have purchased 5,784,199 shares of Common
Stock from the Company at a price of $26.69 per share. The purchase price
for such shares totaled approximately $154,000,000. The funds used to
purchase the shares came from resources available to Mafco.
Item 4. Purpose of Transaction.
As previously reported by the Reporting Persons, on December 18, 1997,
PX Holding, PX Merger Corporation, a Delaware corporation and a wholly
owned subsidiary of PX Holding ("PX Merger"), and the Company entered into
an Agreement of Recapitalization and Merger (the "Recapitalization
Agreement"), providing for the merger (the "Merger") of PX Merger with and
into the Company, whereupon the separate existence of PX Merger would cease
and the Company would continue as the surviving corporation.
The Merger and the transactions contemplated thereby were consummated
on June 4, 1998, at which time (i) PX Merger merged with and into the
Company and (ii) PX Holding acquired 5,784,199 shares of Common Stock (the
"Stock Purchase Shares").
After giving effect to the Merger, the members of the board of
directors of the Company included Mr. Perelman, William C. Scott, John S.
Farrand, Howard Gittis, James R. Maher, Joseph P. Page, Martin D. Payson
and Kenneth Ziffren.
As previously reported, in connection with entering into the
Recapitalization Agreement, Mafco, the Company and Warburg, Pincus Capital
Company, L.P., a Delaware limited partnership ("Warburg") entered into the
Voting and Stockholders Agreement, dated December 18, 1997, as amended and
restated on April 16, 1998 (the "Stockholders Agreement"). Pursuant to the
Stockholders Agreement, after giving effect to the Merger, Mafco has an
option to purchase at $30.00 per share of Common Stock, 1,526,040 shares of
Common Stock (the "Warburg Shares") from Warburg and Warburg has an option
to sell at $25.00 per share of Common Stock, the Warburg Shares. Each such
option is exercisable in whole, but not in part, during the period
beginning on June 4, 1999 and ending on June 4, 2000.
Concurrently with the Merger, (i) the certificate of incorporation of
the Company was amended and restated in accordance with the terms of the
Recapitalization Agreement and (ii) the bylaws of PX Merger as in effect at
the effective time of the Merger became the bylaws of the Company.
The foregoing summary of the Recapitalization Agreement does not
purport to be complete and is qualified in its entirety by reference to
such exhibit. The Stockholders Agreement is attached hereto as Exhibit II
and is incorporated herein by reference in its entirety. The foregoing
summary of the Stockholders Agreement does not purport to be complete and
is qualified in its entirety by reference to such exhibit.
The Reporting Persons do not have any plans or proposals, other than
those described in the preceding paragraphs, which relate to or would
result in any of the actions or transactions specified in clauses (a)
through (j) of Item 4 of Schedule 13D. The Reporting Persons reserve the
right to acquire or dispose of Common Stock, or to formulate other
purposes, plans or proposals regarding the Company or the Common Stock held
by the Reporting Persons to the extent deemed advisable in light of general
investment policies, market conditions and other factors.
Item 5. Interest in Securities of the Issuer.
(a)-(b) As of June 4, 1998, following the recapitalization of the
Company and based upon information provided by the Company, there were
8,055,619 shares of Common Stock outstanding, of which, as a result of the
acquisition of the Stock Purchase Shares, the Reporting Persons may be
deemed to have beneficial ownership of 71.8% of the Common Stock then
outstanding.
(c) Other than the transactions described in Item 4 of this Schedule
13D, there were no transactions by the Reporting Persons during the past 60
days.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
See Item 4, above. Except as provided in the Recapitalization
Agreement or the Stockholders Agreement or as set forth herein, to the best
of the Reporting Persons' knowledge, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) among the persons
named in Item 2 or between such persons and any other person with respect
to any securities of the Company, including but not limited to transfer or
voting of any such securities, finder's fees, joint ventures, loan or
option arrangements, puts or calls, guarantees of profits, division of
profits or loss, or the giving or withholding of proxies. Pursuant to the
Registration Rights Agreement, dated as of June 5, 1998, by and between the
Company and PX Holding, the Company has granted certain rights to the
Reporting Persons with respect to the registration under the Securities Act
of 1933, as amended, of the Stock Purchase Shares held by the Reporting
Persons or their transferees. The Registration Right Agreement relating to
such rights is attached hereto as Exhibit III. The Stock Purchase Shares
owned by the Reporting Persons are, and shares of intermediate holding
companies may from time to time be, pledged to secure obligations.
Item 7. Material to be Filed as Exhibits.
Exhibit I - Agreement pursuant to Rule 13d-1(f) filed
herewith.
Exhibit II - Amended and Restated Voting and Stockholders
Agreement, by and among Warburg, Pincus
Capital Company, L.P., Panavision Inc. and
Mafco Holdings Inc., dated as of April 16,
1998.
Exhibit III - Registration Rights Agreement, by and between
PX Holding Corporation and Panavision Inc.,
dated as of June 5, 1998.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Date: June 11, 1998
MAFCO HOLDINGS INC.
By: /s/ Barry F. Schwartz
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Name: Barry F. Schwartz
Title: Executive Vice President and
General Counsel
PX HOLDING CORPORATION
By: /s/ Barry F. Schwartz
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Name: Barry F. Schwartz
Title: Executive Vice President and
General Counsel
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF
Mafco Holdings Inc.
Set forth below is each director and executive officer of Mafco
Holdings Inc. Unless otherwise indicated each person identified below is
principally employed by Mafco Holdings Inc. The principal address of Mafco
Holdings Inc. and, unless otherwise indicated below, the current business
address for each individual listed below is 35 East 62nd Street, New York,
New York 10021. Each such person is a citizen of the United States.
Name and Address Present Principal Occupation or Employment
Ronald O. Perelman Director, Chairman and Chief Executive Officer
Donald G. Drapkin Director and Vice Chairman
Irwin Engelman Executive Vice President and Chief Financial
Officer
Howard Gittis Director and Vice Chairman
James R. Maher Director and President
Barry F. Schwartz Executive Vice President and General
Counsel
DIRECTORS AND EXECUTIVE OFFICERS OF
PX Holding Corporation
Set forth below is each director and executive officer of PX
Holding Corporation. The principal address of PX Holding Corporation and
the current business address for each individual listed below is 35 East
62nd Street, New York, New York 10021. Each such person is a citizen of
the United States.
Ronald O. Perelman Director, Chairman of the Board and Chief
Executive Officer
Howard Gittis Director and Vice Chairman
Irwin Engelman Executive Vice President and Chief Financial
Officer
Barry F. Schwartz Executive Vice President and General Counsel
EXHIBIT I: Agreement pursuant to Rule 13d-1(f) filed herewith
Pursuant to Rule 13d-1(f) of Regulation 13D-G of the General Rules and
Regulations of the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended, the undersigned agree that the statement
to which this Exhibit is attached is filed on behalf of each of them in the
capacities set forth below.
MAFCO HOLDINGS INC.
By: /s/ Barry F. Schwartz
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Name: Barry F. Schwartz
Title: Executive Vice President and
General Counsel
PX HOLDING CORPORATION
By: /s/ Barry F. Schwartz
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Name: Barry F. Schwartz
Title: Executive Vice President and
General Counsel
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, Pincus 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 Hart-Scott-Rodino 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, BARRY F.
SCHWARTZ AND JORAM C. SALIG 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: 885 Third Avenue
Suite 3020
New York, New York 10022
Attn: William C. Scott
Telecopier: (212) 688-6373
If to Warburg: Warburg, Pincus Capital Company, L.P.
c/o E.M. Warburg, Pincus & Co., LLC
466 Lexington Avenue
New York, New York 10019
Attn: Sidney Lapidus
Telecopier: (212) 878-6162
copy to: Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022-4669
Attention: Christopher E. Manno, Esq.
Telecopier Number: (212) 821-8111
If to the Mafco Holdings Inc.
Purchaser: 625 Madison Avenue
New York, New York 10021
Attention:
Telecopier Number: (212) 867-5428
copy to: Skadden, Arps, Slate, Meagher
& Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Alan C. Myers, Esq.
Telecopier Number: (212) 735-2000
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/ William C. Scott
__________________________
Name: William C. Scott
Title: Chairman of the Board and
Chief Executive Officer
MAFCO HOLDINGS INC.
By: /s/ Howard Gittis
__________________________
Name: Howard Gittis
Title: Vice Chairman
WARBURG, PINCUS CAPITAL COMPANY, L.P.
By:
WARBURG, PINCUS & CO., ITS GENERAL PARTNER
By: /s/ Sidney Lapidus
_____________________________
Name: Sidney Lapidus
Title: Partner
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of June 5, 1998, among
Panavision Inc., a Delaware corporation (the "Company"), and PX Holding
Corporation, a Delaware corporation ("PX Holding").
WHEREAS, the Company, PX Holding and PX Merger Corporation, a
Delaware corporation, a Delaware corporation, have entered into an
Agreement of Recapitalization and Merger, dated as of December 18, 1997
(the "Merger Agreement"), pursuant to which, among other things, the
Company will issue to the PX Holding shares of its common stock, par value
$0.01 per share (the "Common Stock");
WHEREAS, the Board of Directors of the Company has authorized the
officers of the Company to execute and deliver this Agreement in the name
and on behalf of the Company;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties to this Agreement hereby agree as
follows:
1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Holder" means PX Holding and any other person that owns
Registrable Securities, including their respective successors and assigns
who acquire Registrable Securities, directly or indirectly, from PX Holding
or such other person, respectively. For purposes of this Agreement, the
Company may deem and treat the registered holder of a Registrable Security
as the Holder and absolute owner thereof, and the Company shall not be
affected by any notice to the contrary.
"Registrable Securities" means (a) any shares of Common Stock
issued in accordance with Section 5.4 of the Merger Agreement upon
consummation of the Merger (b) any shares of Common Stock acquired by PX
Holding the open market at a time when such party is deemed to be an
"affiliate" (as such term is defined under Rule 144 under the Securities
Act) of the Company and (c) any securities issued or issuable in respect of
the Common Stock referred to in clauses (a)and (b) above, by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, reclassification, merger or consolidation, and any other
securities issued pursuant to any other pro rata distribution with respect
to such Common Stock. For purposes of this Agreement, a Registrable
Security ceases to be a Registrable Security when (x) it has been
effectively registered under the Securities Act and sold or distributed to
the public in accordance with an effective registration statement covering
it (and has not been reacquired in the manner described in clause (c)
above), or (y) it is sold or distributed to the public pursuant to Rule 144
(or any successor or similar provision) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended
from time to time.
2. Demand Registration. (a) If at any time any Holder shall
request the Company in writing to register under the Securities Act all or
a part of the Registrable Securities held by such Holder (a "Demand
Registration"), the Company shall use all reasonable efforts to cause to be
filed and declared effective as soon as reasonably practicable (but in no
event later than the 45th day after such Holder's request is made) a
registration statement providing for the sale of all such Registrable
Securities by such Holder. The Company agrees to use its reasonable
efforts to keep any such registration statement continuously effective and
usable for resale of Registrable Securities for so long as the Holder whose
Registrable Securities are included therein shall request. The Company
shall be obligated to file registration statements pursuant to this Section
2(a) until all Registrable Securities have ceased to be Registrable
Securities. Each registration statement filed pursuant to this Section
2(a) is hereinafter referred to as a "Demand Registration Statement." The
Company may, if permitted by law, effect any registration pursuant to this
Section 2(a) by the filing of a registration statement on Form S-3.
However, if such registration involves an underwritten public offering and
the managing underwriter(s) at any time shall notify the Company in writing
that, in the sole judgment of such managing underwriter(s), inclusion of
some or all of the information required in a more detailed form specified
in such notice is of material importance to the success of the public
offering of such Registrable Securities, the Company shall use all
reasonable efforts to supplement or amend the registration statement to
include such information.
(b) The Company agrees (i) not to effect any public or private
sale, distribution or purchase of any of its securities which are the same
as or similar to the Registrable Securities, including a sale pursuant to
Regulation D under the Securities Act, during the 15-day period prior to,
and during the 45-day period beginning on, the closing date of each
underwritten offering under any Demand Registration Statement, and (ii) to
use reasonable efforts to cause each holder of its securities purchased
from the Company, at any time on or after the date of this Agreement (other
than in a registered public offering) to agree not to effect any public
sale or distribution of any such securities during such period, including a
sale pursuant to Rule 144 under the Securities Act.
(c) The Company may postpone for a reasonable period of time,
not to exceed 30 days, the filing or the effectiveness of any Demand
Registration Statement if (i) the Board of Directors of the Company in good
faith determines that (A) such registration would have a material adverse
effect on any plan or proposal by the Company with respect to any
financing, acquisition, recapitalization, reorganization or other material
transaction, or (B) the Company is in possession of material non-public
information that, if publicly disclosed, would result in a material
disruption of a major corporate development or transaction then pending or
in progress or in other material adverse consequences to the Company, and
(ii) the Company so notifies the Holder(s) within five days after the
Holder(s) requests such registration. The Company's right to defer the
filing of a registration statement pursuant to the provisions of the
preceding sentence may not be exercised more than once during any 12 month
period.
(d) If at any time any Holder of Registrable Securities to be
covered by a Demand Registration Statement desires to sell Registrable
Securities in an underwritten offering, such Holder shall have the right to
select any nationally recognized investment banking firm(s) to administer
the offering, subject to the approval of the Company, which approval shall
not be unreasonably withheld, and the Company shall enter into underwriting
agreements with the underwriter(s) of such offering, which agreements shall
contain such representations and warranties by the Company, and such other
terms, conditions and indemnities as are at the time customarily contained
in underwriting agreements for similar offerings and the Company shall take
or cause to be taken all such other actions as are reasonably requested by
the managing underwriter(s) in order to expedite or facilitate the
registration and disposition of the Registrable Securities, including,
without limitation, causing management to participate in "road show"
presentations.
3. Incidental Registration. Subject to the terms and
conditions set forth in this Section 3, if the Company proposes at any time
to register any common equity securities (the "Initially Proposed Shares")
under the Securities Act for sale, whether or not for its own account,
pursuant to an underwritten offering, the Company will promptly give
written notice to the Holders of its intention to effect such registration
(such notice to specify, among other things, the proposed offering price,
the kind and number of securities proposed to be registered and the
distribution arrangements, including identification of the underwriter(s)),
and the Holders shall be entitled to include in such registration
statement, as a part of such underwritten offering, such number of shares
(the "Holder Shares") to be sold for the account of the Holders (on the
same terms and conditions as the Initially Proposed Shares) as shall be
specified in a request in writing delivered to the Company within 15 days
after the date upon which the Company gave the aforementioned notice.
The Company's obligations to include Holder Shares in a
registration statement pursuant to this Section 3 is subject to each of the
following limitations, conditions and qualifications:
i) If, at any time after giving written notice of its
intention to effect a registration of any of its common equity
securities and prior to the effective date of any registration
statement filed in connection with such registration, the Company
shall determine for any reason not to register all of such shares, the
Company may, at its election, give written notice of such
determination to the Holders and thereupon it shall be relieved of its
obligation to use any efforts to register any Holder Shares in
connection with such aborted registration (but not from its obligation
to pay the Registration Expenses (as defined herein) in connection
therewith).
ii) If the managing underwriter(s) of such offering shall
notify in writing the Company and each Holder who shall have requested
the inclusion of Registrable Securities in such underwritten offering
that, in the good faith judgment of such managing underwriter(s), the
distribution of all or a specified portion of the Holder Shares would
materially interfere with the registration and sale, in accordance
with the intended method thereof, of the Initially Proposed Shares,
then the number of Holder Shares to be included in such registration
statement shall be reduced to such number, if any, that, in the good
faith judgment of such managing underwriter(s), can be included
without such interference. If, as a result of the cutback provisions
of the preceding sentence, the Holders are not entitled to include all
of the Holder Shares in such registration, such Holders may elect to
withdraw their request to include Holder Shares in such registration.
If the Company shall so request in writing, each Holder agrees
not to effect any public or private sale or distribution of any Registrable
Securities (other than the Holder Shares) during the 15-day period prior to
and during the 45-day period beginning on, the closing date of any
underwritten public offering of shares of Common Stock made for the
Company's own account.
4. Registration Procedures. (a) Whenever the Company is
required to use all reasonable efforts to effect the registration of any
Registrable Securities under the Securities Act pursuant to the terms and
conditions of Section 2(a) or 3 (such Registrable Securities being
hereinafter referred to as "Subject Shares"), the Company will use all
reasonable efforts to effect the registration and sale of the Subject
Shares in accordance with the intended method of disposition thereof.
Without limiting the generality of the foregoing, the Company will as soon
as practicable:
i) furnish to each Holder of Subject Shares (a
"Participating Holder") and to each managing underwriter, if any, a
reasonable time in advance of their filing with the SEC, any
registration statement, amendment or supplement thereto, and any
prospectus used in connection therewith, and each Participating Holder
shall have the opportunity to object to any information pertaining to
such Participating Holder and its plan of distribution that is
contained therein and the Company will make the corrections reasonably
requested by such Participating Holder with respect to such
information prior to filing any such registration statement or any
amendment or supplement thereto; and furnish a copy of any and all
transmittal letters or other correspondence with the SEC or any other
governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange)
relating to such offering of Registrable Securities;
ii) prepare and file with the SEC a registration statement
with respect to the Subject Shares in form and substance satisfactory
to the Participating Holders, and use all reasonable efforts to cause
such registration statement to become effective as soon as possible;
iii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the applicable period and to comply with the
provisions of the Securities Act with respect to the disposition of
all Subject Shares and other securities covered by such registration
statement;
iv) furnish each Participating Holder and each managing
underwriter, if any, without charge, such number of copies of such
registration statement, each amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by
reference therein) and the prospectus included in such registration
statement (including each preliminary prospectus and prospectus
supplement) and any other prospectus filed under Rule 424 promulgated
under the Securities Act relating to the Registrable Securities and
such other documents as such Participating Holder or such underwriter
may reasonably request;
v) after the filing of the registration statement, promptly
notify each Participating Holder and each managing underwriter, if
any, of any stop order issued or, to the knowledge of the Company,
threatened to be issued by the SEC;
vi) use all reasonable efforts to register or qualify the
Subject Shares covered by such registration statement under the
securities or blue sky laws of such jurisdictions (including any
foreign country or any political subdivision thereof) as the managing
underwriter(s) shall reasonably recommend, and do any and all other
acts and things which may be reasonably necessary or advisable to
enable the Participating Holders to consummate the disposition in such
jurisdictions of the Subject Shares covered by such registration
statement, except that the Company shall not for any such purpose be
required to (A) qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified, (B)
subject itself to taxation in any jurisdiction wherein it is not so
subject, or (C) consent to general service of process in any such
jurisdiction or otherwise take any action that would subject it to the
general jurisdiction of the courts of any jurisdiction in which it is
not so subject;
vii) promptly inform each Participating Holder and the
managing underwriter(s), if any (x) in the case of any offering of the
Registrable Securities in respect of which a registration statement is
filed under the Securities Act, of the date on which a registration
statement or any post-effective amendment thereto has been filed and
when the same has become effective and, if applicable, of the date of
filing a Rule 430A prospectus, (y) of any written comments from the
SEC with respect to any filing referred to in clause (x) and of any
request by the SEC, any securities exchange, government agency, self-
regulatory body or other body having jurisdiction for any amendment of
or supplement to any registration statement or preliminary prospectus
or prospectus included therein or any offering memorandum or other
offering document relating to such offering or (z) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of any Registrable Securities for sale under the
applicable securities or blue sky laws of any jurisdiction;
viii) otherwise use its reasonable efforts to comply with
all applicable rules and regulations of the SEC;
ix) provide a transfer agent and registrar for all
Registrable Securities covered by such registration statement not
later than the effective date of such registration statement;
x) furnish, at the Company's expense, unlegended
certificates representing ownership of the securities being sold in
such denominations as shall be requested and instruct the transfer
agent to release any stop transfer orders with respect to the Subject
Shares being sold;
xi) notify each Participating Holder at any time when a
prospectus relating to the Subject Shares is required to be delivered
under the Securities Act of the happening of any event as a result of
which the prospectus included in such registration statement contains
any untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein (in the case of the
prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading, and the
Company will, as promptly as practicable thereafter, prepare and file
with the SEC and furnish a supplement or amendment to such prospectus
so that, as thereafter delivered to the purchasers of Subject Shares
such prospectus will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading;
xii) enter into customary agreements (including an
underwriting agreement in customary form in the case of an
underwritten offering) and make such representations and warranties to
the sellers and underwriter(s) as in form and substance and scope are
customarily made by issuers to underwriters in underwritten offerings
and take such other actions as the Holders or the managing
underwriter(s) or agent, if any, reasonably require in order to
expedite or facilitate the disposition of such Subject Shares. A
Participating Holder may, at its option, require that any or all of
the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriter(s)
also be made to and for the benefit of the Participating Holder, and
that any or all of the conditions precedent to the obligations of such
underwriter(s) under such underwriting agreement also be conditions
precedent to the obligations of the Participating Holder;
xiii) make available for inspection by the Participating
Holders, any underwriter or agent participating in any disposition
pursuant to such registration statement, and any attorney, accountant
or other similar professional advisor retained by any such
Participating Holders or underwriter (collectively, the "Inspectors"),
all pertinent financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records"),
as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
such Inspector in connection with such registration statement;
xiv) make available senior management personnel of the
Company to participate in, and cause them to cooperate with the
underwriter(s) in connection with, "road show" and other customary
marketing activities, including "one-on-one" meetings with prospective
purchasers of the Subject Shares;
xv) obtain for delivery to the Company, the underwriter(s)
or their agent, with copies to the Participating Holders, a "cold
comfort" letter from the Company's independent public accountants in
customary form and covering such matters of the type customarily
covered by "cold comfort" letters as the Participating Holders or the
managing underwriter(s) reasonably request;
xvi) obtain for delivery to the Participating Holders and
the underwriter(s) or their agent an opinion or opinions from counsel
for the Company in customary form and reasonably satisfactory to the
Participating Holders, underwriters or agents and their counsel;
xvii) make available to its security holders earnings
statements, which need not be audited, satisfying the provisions of
Section 11(a) of the Securities Act no later than 90 days after the
end of the 12-month period beginning with the first month of the
Company's first quarter commencing after the effective date of the
registration statement, which earnings statements shall cover said
12-month period;
xviii) make every reasonable effort to prevent the issuance
of any stop order suspending the effectiveness of the registration
statement or of any order preventing or suspending the effectiveness
of such registration statement at the earliest possible moment;
xix) cause the Subject Shares to be registered with or
approved by such other governmental agencies or authorities (including
foreign governmental agencies and authorities) as may be necessary to
enable the sellers thereof or the underwriters(s), if any, to
consummate the disposition of such Subject Shares;
xx) cooperate with the Holders and the managing
underwriter(s), if any, or any other interested party (including any
interested broker-dealer) in making any filings or submission required
to be made, and the furnishing of all appropriate information in
connection therewith, with the National Association of Securities
Dealers, Inc. ("NASD");
xxi) cause its subsidiaries to take action necessary to
effect the registration of the Subject Shares contemplated hereby,
including filing any required financial information;
xxii) effect the listing of the Subject Shares on the New
York Stock Exchange or such other national securities exchange or
over-the-counter market on which shares of the Common Stock shall then
be listed; and
xxiii) take all other steps necessary to effect the
registration of the Subject Shares contemplated hereby.
(b) The Holders shall provide (in writing and signed by the
Holders and stated to be specifically for use in the related registration
statement, preliminary prospectus, prospectus or other document incident
thereto) all such information and materials and take all such action as may
be required in order to permit the Company to comply with all applicable
requirements of the SEC and any applicable state securities laws and to
obtain any desired acceleration of the effective date of any registration
statement prepared and filed by the Company pursuant to this Agreement.
(c) The Holders shall, if requested by the Company or the
managing underwriter(s) in connection with any proposed registration and
distribution pursuant to this Agreement, (i) agree to sell the Subject
Shares on the basis provided in any underwriting arrangements entered into
in connection therewith and (ii) complete and execute all questionnaires,
powers of attorney, indemnities, underwriting agreements and other
documents customary in similar offerings; provided, however, that in no
event shall a Participating Holder be required to make any representations
or warranties to or agreements with the Company or the underwriter(s) other
than representations, warranties or agreements regarding the Participating
Holder and its ownership of the securities being registered on its behalf
and its intended method of distribution and any other representation
required by law.
(d) Upon receipt of any notice from the Company that the
Company has become aware that the prospectus (including any preliminary
prospectus) included in any registration statement filed pursuant to
Section 2(a) or Section 3, as then in effect, contains any untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading,
the Holders shall forthwith discontinue disposition of Subject Shares
pursuant to the registration statement covering the same until the Holders'
receipt of copies of a supplemented or amended prospectus and, if so
directed by the Company, deliver to the Company (at the Company's expense)
all copies other than permanent file copies then in the Holder's
possession, of the prospectus covering the Subject Shares that was in
effect prior to such amendment or supplement.
(e) The Company shall pay all Registration Expenses. For
purposes of this Agreement, "Registration Expenses" shall mean all expenses
incident to the Company's performance of or compliance with its obligations
under this Agreement to effect the registration of Registrable Securities
pursuant to Section 2(a) or Section 3 of this Agreement, and the
disposition of such securities, including, without limitation, all
registration, filing, qualification and other fees and expenses of
complying with securities or blue sky laws, transfer agents and registrars'
fees, all word processing, duplicating and printing expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or "cold comfort"
letters required by or incident to such performance and compliance, but
excluding underwriting discounts and commissions in respect of Registrable
Securities and the fees and disbursements of any counsel retained by the
Participating Holders (which underwriting discounts and commissions and
fees and disbursements of counsel shall be paid by the Participating
Holders).
(f) In connection with any sale of Subject Shares that are
registered pursuant to this Agreement, the Company and the Holders shall
enter into an agreement providing for indemnification of the Holders by the
Company, and indemnification of the Company by the Holders, on terms
customary for such agreements at that time (it being understood that any
disputes arising as to what is customary shall be resolved by counsel to
the underwriter(s)).
5. Notices. Any notice or other communication required or
permitted to be given hereunder shall be in writing and shall be effective
(a) upon hand delivery or delivery by telecopy or facsimile at the address
or number designated below (if delivered on a business day during normal
business hours where such notice is to be received), or the first business
day following such delivery (if delivered other than on a business day
during normal business hours where such notice is to be received) or (b) on
the third business day following the date of mailing by express courier
service, fully prepaid, addressed to such address, or upon actual service,
fully prepaid, addressed to such address, or upon actual receipt of such
mailing, whichever shall first occur. The addresses for such
communications shall be:
If to the Company, to:
Panavision Inc.
6219 De Soto Avenue
Woodland Hills, California 91367
Attention: Jeffrey J. Marcketta
Telecopier Number: (818) 316-1110
and
Panavision Inc.
885 Third Avenue, Suite 3020
New York, New York 10022
Attention: William C. Scott
Telecopier Number: (212) 688-4748
with a copy to:
Willkie Farr & Gallagher
One Citicorp Center
New York, New York 10022-4669
Attention: Christopher E. Manno, Esq.
Telecopier Number: (212) 821-8111
If to PX Holding, to:
PX Holding Corporation
625 Madison Avenue
New York, New York, 10021
Attention: General Counsel
Telecopier Number: (212) 572-5056
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
Attention: Alan C. Myers, Esq.
Telecopier Number: (212) 735-2000
If to any other Holder,
to such name at such address as such Holder shall have indicated
in a written notice delivered to the other parties to this
Agreement.
Any party hereto may from time to time change its address for notices under
this Section 5 by giving at least 10 days' notice of such changes to the
other parties hereto.
6. Waivers. No waiver by any party of any default with respect
to any provision, condition or requirement hereof shall be deemed to be a
continuing waiver in the future thereof or a waiver of any other provision,
condition or requirement hereof; nor shall any delay or omission of any
party to exercise any right hereunder in any manner impair the exercise of
any such right accruing to it thereafter.
7. Headings. The headings herein are for convenience only, do
not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
8. Successors and Assigns; Amendments. This Agreement shall be
binding upon and inure to the benefit of the parties and their successors
and assigns, including without limitation and without the need for an
express assignment each subsequent Holder of any Registrable Securities.
Except as provided in this Section 8, neither the Company nor any Holder
shall assign this Agreement or any rights hereunder without the prior
written consent of the other parties hereto; provided, that in connection
with a bona fide pledge by the Holder of any Registrable Securities, the
Holder may assign its rights under this Agreement to the beneficiary of
such pledge. The assignment by a party of this Agreement or any rights
hereunder shall not affect the obligations of such party hereunder. This
Agreement may not be amended except by a written instrument executed by the
parties hereto.
9. No Third Party Beneficiaries. This Agreement is intended
for the benefit of the parties hereto and their respective permitted
successors and assigns and is not for the benefit of, nor may any provision
hereof be enforced by, any other person.
10. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the internal laws of the State of
Delaware without regard to the principles of conflicts of laws.
11. Entire Agreement. This Agreement contains the entire
agreement of the parties hereto in respect of the subject matter hereof and
supersedes all prior agreements and understandings between the parties with
respect to the subject matter hereof.
12. Execution. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement
and shall become effective when counterparts have been signed by each party
and delivered to the other party, it being understood that both parties
need not sign the same counterpart.
13. Available Information. If at any time the Company is
required to file reports in compliance with either Section 13 or Section
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), the Company will comply with all rules and regulations of the SEC
applicable in connection with the use of Rule 144 or Rule 144A promulgated
under the Securities Act and will, upon the request of any Holder, take
such other actions and furnish the Holder with information as the Holder
may reasonably request in order to avail itself of such rule or any other
rule or regulation of the SEC allowing the Holder to sell any Registrable
Securities without registration, and will, at its expense, forthwith upon
the request of the Holder, deliver to such party a certificate, signed by
the Company's principal financial officer, stating (a) the Company's name,
address and telephone number (including area code), (b) the Company's
Internal Revenue Service identification number, (c) the Company's SEC file
number, (d) the number of shares of each class of stock outstanding as
shown by the most recent report or statement published by the Company, and
(e) whether the Company has filed the reports required to be filed under
the Exchange Act for a period of at least 90 days prior to the date of such
certificate and in addition has filed the most recent annual report
required to be filed thereunder or as to such matters as would then be
required to establish compliance with Rule 144 or any successor rule or
rules under the Securities Act. If at any time the Company is not required
to file reports in compliance with either Section 13 or Section 15(d) of
the Exchange Act, the Company at its expense will, forthwith upon the
written request of the Holder, make available adequate current public
information with respect to the Company within the meaning of paragraph
(c)(2) of Rule 144.
14. Injunctions. Irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in
accordance with its specific terms or were otherwise breached. Therefore,
the parties hereto shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any court having
jurisdiction, such remedy being in addition to any other remedy to which
they may be entitled at law or in equity.
15. Severability. If any term or provisions of this Agreement
is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the terms and provisions set forth herein
shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term or
provision.
16. Further Assurances. Subject to the specific terms of this
Agreement, each Holder and the Company shall make, execute, acknowledge and
deliver such other instruments and documents, and take all such other
actions, as may be reasonably required in order to effectuate the purposes
of this Agreement and to consummate the transactions contemplated hereby.
17. No Other Registration Rights. The Company represents and
warrants to each Stockholder that there is not in effect on the date of
this Agreement any agreement by the Company (other than this Agreement)
pursuant to which any holders of securities of the Company have a right to
cause the Company to register or qualify such securities under the
Securities Act or any securities or blue sky laws of any jurisdiction.
18. Recapitalization, Exchanges, etc., Affecting the Company's
Capital Stock. The provisions of this Agreement shall apply to the full
extent set forth herein with respect to any and all shares of capital stock
of the Company or any successor or assign of the Company (whether by
merger, consolidation, sale of assets or otherwise), or at the election of
a Holder, any person who controls any of the foregoing, which may be issued
in respect of, in exchange for or in substitution of, the Registrable
Securities.
19. Defined Terms. All capitalized terms used herein but not
defined shall have the meanings ascribed to such terms in the
Recapitalization Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the date
hereof.
PANAVISION INC.
By: /s/ William C. Scott
________________________________
Name: William C. Scott
Title: Chairman and Chief Executive
Officer
PX HOLDING CORPORATION
By: /s/ Joram C. Salig
________________________________
Name: Joram C. Salig
Title: Vice President
