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EXHIBIT 4.9
STANDSTILL AGREEMENT
This STANDSTILL AGREEMENT (this "Agreement") dated as of July 9, 2001
among Imax Corporation, a corporation organized under the laws of Canada (the
"Company"), Xxxxxxx X. Xxxxxxx ("Xxxxxxx") and Xxxxxxx X. Xxxxxxxx
("Wechesler").
WHEREAS, Xxxxxxx and Wechsler are beneficial owners of common shares
of the Company ("Common Shares");
WHEREAS, in 1999 Gelfond, Wechsler, the Company, Xxxxxxxxxxx Xxxxxxx
Partners, L.P., Xxxxxxxxxxx Xxxxxxx Offshore Partners, L.P., WPPN, Inc. and the
Xxxxxxx Xxxxxx Voting Trust entered into a Second Amended and Restated
Shareholders' Agreement (the "1999 Shareholders' Agreement"), a Registration
Rights Agreement (the "1999 Registration Rights Agreement") and an Amended and
Restated Standstill Agreement; and
WHEREAS, this Agreement is being entered into pursuant to Section
3(c)(iv) of the 1999 Shareholders' Agreement;
NOW, THEREFORE, in consideration of the foregoing and the covenants
and agreements set forth herein and for other good and valuable consideration,
the receipt and legal sufficiency of which are hereby acknowledged, the parties
do hereto agree as follows;
SECTION 1 COVENANTS OF XXXXXXX AND WECHSLER.
(a) Prohibited Transactions Involving the Company. Each of Xxxxxxx and
Xxxxxxxx agrees with the Company that he will not, and will cause each
"affiliate" "controlled" by him, as such terms are defined in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (each
referred to herein as an "Affiliate") (whether or not such person or entity is
such an Affiliate or associate on the date hereof), not to, directly or
indirectly:
(i) make, or in any way participate in, directly or indirectly, any
solicitation of proxies, or become a "participant" in any solicitation or
"election contest" (as such terms are defined or used in Regulation 14A
under the Exchange Act), with respect to the Company or any successor or
seek to influence any person or group (within the meaning of Section
13(d)(3) of the Exchange Act) with respect to the voting of any voting
securities of the Company or any successor;
(ii) initiate, propose or otherwise solicit shareholders of the
Company or any successor for the approval of one or more proposals
submitted to the shareholders for a vote with respect to the Company or any
successor;
(iii) deposit any voting securities of the Company or any successor in
a voting) trust or subject any such voting securities to any agreement or
arrangement with respect to the voting of such voting securities, other
than any such trust, agreement or arrangement whereby he or any Affiliate
controlled by him have the right to vote such securities and continue to be
bound by this Agreement or other arrangements entered into for tax purposes
whereby the party having the right to vote such securities agrees to be
bound by the terms of this Agreement;
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(iv) acquire or affect, or attempt to acquire or affect, control of
the Company or any successor or directly or indirectly participate in, or
encourage the formation of, any group (within the meaning of Section
13(d)(3) of the Exchange Act) which owns or seeks to acquire beneficial
ownership of voting securities of the Company or any successor, or to
acquire or affect control of the Company or any successor;
(v) except though normal procedures of the Board of Directors (the
"Board") of the Company or any successor, otherwise act, alone or in
concert with others, to seek to control or to influence in any manner the
management, Board, policies or affairs of the Company or any successor, or
propose or seek to effect any form of business combination transaction with
the Company, any successor or any Affiliate thereof or any restructuring,
recapitalization or similar transaction with respect to any thereof; or
(vi) encourage or render advice to or make any recommendation or
proposal to any person or group (within the meaning of Section 13(d)(3) of
the Exchange Act) to engage in any of the actions covered by clauses (i)
through (v) of this Section 1(a), or render advice with respect to voting
securities of the Company or any successor, without the consent of the
Company or any successor.
Nothing herein shall restrict Xxxxxxx or Wechsler from (A) acquiring
any Common Shares of the Company unless, following such acquisition, they are
the beneficial owners (in the aggregate) of more than 15,900,000 Common Shares,
as such number shall be adjusted to take into account any stock dividend, stock
split, reverse stock split, recapitalization or other similar transaction after
the date hereof or (B) taking any action in his capacity as an officer or
employee of the Company or any of its subsidiaries, including as Co-Chief
Executive Officer or Co-Chairman of the Company.
For purposes of this Agreement, the term "voting securities" shall
mean (x) any securities which are entitled to vote generally in the election of
directors of the Company or any successor, and (y) any options, warrants, rights
or securities of the Company or any successor which by their terms may be
convertible into or exchangeable for any security described in clause (x) above.
(b) Voting of Voting Securities. Each of Xxxxxxx and Xxxxxxxx agrees
with the Company that he will, and will cause each Affiliate he controls to:
(i) be present, in person or by proxy, at all meetings of shareholders
of the Company or any successor, so that all voting securities beneficially
owned by him or any of his Affiliates may be counted for the purpose of
determining the presence of a quorum at such meetings;
(ii) vote or cause to be voted at any meeting of shareholders of the
Company or any successor any voting securities owned by him or any of his
Affiliates in favor of each person nominated by the Board or any successor
for election as a director of the Company or any successor; and
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(iii) not to vote or cause to be voted at any meeting of shareholders
of the Company or any successor any voting securities owned by him or any
of his Affiliates in any way that is inconsistent with this Agreement.
SECTION 2. [INTENTIONALLY OMMITTED]
SECTION 3. REPRESENTATIONS AND WARRANTIES.
Each of the Company, Xxxxxxx and Wechsler represents and warrants to
the other parties to this Agreement that (a) it is duly authorized to execute
and deliver, and to perform its obligations under, this Agreement; (b) this
Agreement has been duly executed and delivered by such party and constitutes a
valid and binding obligation of such party, enforceable against such party in
accordance with its terms; and (c) the execution and delivery of this Agreement
by such party does not, and the performance by such party of its obligations
hereunder will not (i) constitute a violation of, conflict with or result in a
default under any contract, commitment, agreement, instrument, understanding,
arrangement or restriction of any kind to which it is a party or by which it is
bound or any judgment, decree or order applicable to it, or (ii) violate any
provision of law applicable to it or require any consent or approval of, or
filing with or notice to any public body or authority under any provision of law
applicable to it.
SECTION 4. TERM OF AGREEMENT.
(a) Initial Term. This Agreement shall be effective from the date
hereof and shall terminate on July 8, 2002, unless extended by Xxxxxxx and
Xxxxxxxx pursuant to Section 4(b) below.
(b) Extensions. Xxxxxxx and Wechsler may, from time to time, extend
the term of this Agreement beyond July 8, 2002 for additional one year terms
(but no event beyond March 1, 2004) upon written notice delivered to the Company
10 business days prior to the expiration of the term (as it may be extended from
time to time) of this Agreement.
SECTION 5. MISCELLANEOUS.
(a) Specific Performance. The parties hereto acknowledge that in the
event of any breach of the provisions of this Agreement, the nonbreaching party
would be irreparably harmed and could not be made whole by monetary damages. It
is accordingly agreed that, in addition to any other remedy to which a party may
be entitled at law or in equity, the obligations of the parties hereunder shall
be specifically enforceable and no party shall take any action to impede the
other from seeking to enforce such right of specific performance.
(b) Binding Effect. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their directors, officers, heirs, legal
representatives, successors and assigns.
(c) Notices. All notices, requests, claims, demands and other
communications hereunder shall be effective upon receipt, shall be in writing
and shall be delivered in person, by telecopy, telegram or telex, or by mail
(registered or certified mail, postage prepaid, return receipt requested) as
follows:
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if to the Company, to:
Imax Corporation
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telecopier; (000) 000-0000
Attention: Chief Executive Officer
with a copy to:
Imax Corporation
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxx
X0X lBl Canada
Telecopier: (000) 000-0000
Attention: Corporate Secretary
and a copy to:
XxXxxxxx Xxxxxxxx
Xxxxx 0000
Xxxxxxx Xxxxxxxx Bank Tower
Toronto Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X XX0 Xxxxxx
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
and a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx
If to Xxxxxxx, to:
Xxxxxxx X. Xxxxxxx
0 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
with a copy to;
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Telecopier: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx
if to Wechsler, to:
Xxxxxxx X. Xxxxxxxx
00 Xxxx Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx
or to such other address as either party may have furnished to the other in
writing in accordance herewith.
(d) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the Province of Ontario and the laws of Canada
without regard to principles of conflicts of laws.
(e) Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in counterparts, each of which shall be an
original, but all of which together shall constitute one and the same agreement.
(f) Entire Agreement; Amendment; Waiver. This Agreement, together with
the 1999 Shareholders' Agreement and the 1999 Registration Rights Agreement,
constitutes the entire agreement and supersedes all prior agreements and
understandings, whether oral or written, among the parties hereto with respect
to the subject matter hereof, including, without limitation, the Shareholders'
Agreement dated June 16, 1994 and the Standstill Agreement dated June 16, 1994
among the Company and certain of the parties hereto. No amendment or waiver of
any provision of this Agreement or consent to departure therefrom shall be
effective unless in writing and signed by the Company, Xxxxxxx and Xxxxxxxx in
the case of an amendment or by the party which is the beneficiary of any such
provision in the case of a waiver or a consent to departure therefrom. Any
waiver by a party of a breach of any provision of this Agreement shall not
operate as, or be construed to be, a waiver of any other breach of such
provision or any breach of any other provision of this Agreement. The failure of
a party to insist upon strict adherence to any term of this Agreement or one or
more sections shall not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto all as of the day and year first above written.
IMAX CORPORATION
By "Xxxxxx X. Xxxxxx"
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Name: Xxxxxx X. Xxxxxx
Title: Exec. VP, Legal Affairs
& General Counsel
By "G. Xxxx Xxxx"
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Name: G. Xxxx Xxxx
Title: Sr. VP, Legal Affairs
& Corporate Secretary
"Xxxxxxx X. Xxxxxxx"
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Xxxxxxx X. Xxxxxxx
"Xxxxxxx X. Xxxxxxxx"
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Xxxxxxx X. Xxxxxxxx
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