EXBIHIT 4.11
EXECUTION COPY
AMENDED AND RESTATED STANDSTILL AGREEMENT
This STANDSTILL AGREEMENT (this "Agreement") dated as of February 9,
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1999 among Xxxxxxxxxxx Xxxxxxx Partners, L.P., a Delaware limited partnership
("WPLP"), Xxxxxxxxxxx Xxxxxxx Offshore Partners, L.P., a Delaware limited
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partnership ("WPOP"), WPPN, Inc., a Delaware corporation ("WPPN") and the
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Xxxxxxx X. Xxxxxx Voting Trust (together with WPPN, WPOP and WPLP, "WP"), Imax
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Corporation, a corporation organized under the laws of Canada (the "Company"),
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Xxxxxxx X. Xxxxxxx ("Xxxxxxx") and Xxxxxxx X. Xxxxxxxx ("Xxxxxxxx").
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WHEREAS, WP is beneficial owner of common shares of the Company
("Common Shares");
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WHEREAS, certain of the parties hereto entered into a Standstill
Agreement dated June 16, 1994 (the "1994 Standstill Agreement") and now desire
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to amend such agreement; and
WHEREAS, contemporaneously herewith, WP, Xxxxxxx, Wechsler and the
Company are entering into a Second Amended and Restated Shareholders' Agreement
(the "1999 Shareholders' Agreement") and the parties hereto are also entering
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into a Registration Rights Agreement (the "1999 Registration Rights Agreement").
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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 WP.
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Prohibited Transactions Involving the Company. WP agrees with the
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Company and Messrs. Xxxxxxx and Xxxxxxxx that it will not, and will cause each
"affiliate" "controlled" by WP, as such terms are defined in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (each
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referred to herein as an "Affiliate") (whether or not such person or entity is
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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;
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(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 WP or any Affiliate
controlled by WP or employees of WP 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;
(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 through normal procedures of the Board of Directors (the
"Board") or the CEO Advisors (the "CEO Advisors"), so long as the CEO
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Advisors shall remain in existence, 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; provided, however, that action taken by WP
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consistent with the terms of any engagement of WP as a financial advisor to
the Company shall not be a breach of this Section 1(a)(v); 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 l(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 WP from acquiring any Common Shares of
the Company unless, following such acquisition, WP is the beneficial owner 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.
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
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which by their terms may be convertible into or exchangeable for any security
described in clause (x) above.
(b) Voting of Voting Securities. WP agrees with the Company and
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Messrs. Xxxxxxx and Wechsler that it will, and will cause each Affiliate it
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 WP or any of its 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 WP or any of its
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
(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 WP or any of
its Affiliates in any way that is inconsistent with this Agreement or the
1999 Shareholders' Agreement.
(c) Spin-Offs. WP agrees with the Company and Messrs. Xxxxxxx and
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Wechsler that it will not directly or indirectly make any Spin-Off (as
hereinafter defined) of any voting securities held by it or transfer any voting
securities to any Affiliate of WP, unless prior to the consummation of any such
Spin-Off, the prospective transferees execute and deliver to the Company an
agreement, in form and substance reasonably satisfactory to the Company, whereby
such prospective transferees confirm that, with respect to the voting securities
that are the subject of such transfer, they shall be deemed to be parties to
this Agreement for the purposes of this Agreement and agree to be bound by all
the terms of this Agreement. For purposes of this provision, "Spin-Off" means
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the transfer of voting securities by WP (a) to any of its partners in accordance
with its respective partnership agreement as then in effect if any such partner
or any of its Affiliates enter into any agreement with either, WP, any of its
Affiliates or any other partner of such partnership or any Affiliate of such
other partner with respect to the voting or transfer of such securities or (b)
to any employee partnership of which WP or any of its Affiliates is the general
partner, or of which any of their respective executive officers is the general
partner or to any such executive officer.
SECTION 2. CEO ADVISORS, ETC.
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(a) The Company, (i) shall cause there to no longer be CEO Advisors
effective as of the date on which all of the WP Employee Designees (as defined
in the 1999 Shareholders' Agreement) are elected as directors of the Company and
(ii) thereafter, shall not take any action to reestablish the role of the CEO
Advisors as contemplated by Section 5.1 of the Bylaws.
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(b) Each of the Company, Xxxxxxx, Xxxxxxxx and WP shall use its Best
Efforts (as defined in the 1999 Shareholders' Agreement) to amend the Articles
of Incorporation and By-law No. 1 of the Company as provided in Exhibit 2(b) as
of the date on which all of the WP Employee Designees (as defined in the 1999
Shareholders' Agreement) are elected or appointed as directors of the Company.
The Company shall, at its 1999 Annual Shareholders' Meeting, submit to the vote
of its shareholders a resolution to amend the Company's Articles of
Incorporation and a resolution to adopt a by-law each as provided in Exhibit
2(b), and each of WP, Xxxxxxx and Wechsler shall use its Best Efforts (as
defined in the 1999 Shareholders' Agreement), to cause such resolutions to be
approved by such Shareholders, including, without limitation, voting and causing
their Affiliates to vote all their Common Shares in favor of such resolutions.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
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Each of the Company, Xxxxxxx, Xxxxxxxx and WP 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.
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(a) This Agreement shall be effective from the date hereof and
shall terminate on the earlier of (i) June 30, 2001, unless extended by WP
pursuant to Section 4(b) below, and (ii) such date as WP and its Affiliates and
any group of which they are a member shall beneficially own (as defined pursuant
to Section 13(d) of the Exchange Act) less than 700,000 Common Shares (including
the WP Shares); provided, however, if such ownership exceeds 700,000 at any time
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prior to June 30, 2001, then this Agreement shall immediately be reinstated.
(b) WP may, from time to time, extend the term of this Agreement
beyond June 30, 2001 for additional one year terms until March 1, 2004 upon
written notice delivered to the Company and the GW Shareholders 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.
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(a) Specific Performance. The parties hereto acknowledge that in the
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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
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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
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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:
If to WPLP, WPOP, WPPN, or
the Xxxxxxx X. Xxxxxx Voting Trust, to such party:
c/o Xxxxxxxxxxx Xxxxxxx Management Partners, Inc.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: X. Xxxxxxxx Xxxxxxx
with a copy to:
Stikeman, Xxxxxxx
Xxxxx 0000
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X0X0
Telecopier: (000) 000-0000
Attention: Xxxxxx Xxxxxx/Mihkel Xxxxx
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and a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx/Xxxxxxx Xxxxxxx
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 0X0 Xxxxxx
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:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxx
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If to Xxxxxxx, to:
Xxxxxxx X. Xxxxxxx
0 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxx Xxxx 00000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxx
If to Wechsler, to:
Xxxxxxx X. Xxxxxxxx
00 Xxxx Xxxx Xxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxx
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
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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
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(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
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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 among the Company and certain of the
parties hereto and the 1994 Standstill Agreement. No amendment or waiver of any
provision of this Agreement or consent to departure therefrom shall be effective
unless in writing and
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signed by the Company Xxxxxxx, Wechsler and WP 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 /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Director
By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Director
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
XXXXXXXXXXX XXXXXXX PARTNERS, L.P.
By XXXXXXXXXXX XXXXXXX
MANAGEMENT PARTNERS, INC.,
its General Partner
By /s/ X. Xxxxxxxx Xxxxxxx
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Name: X. Xxxxxxxx Xxxxxxx
Title: Vice President
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XXXXXXXXXXX XXXXXXX
OFFSHORE PARTNERS, L.P.
By XXXXXXXXXXX XXXXXXX
MANAGEMENT PARTNERS, INC.,
its General Partner
By /s/ X. Xxxxxxxx Xxxxxxx
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Name: X. Xxxxxxxx Xxxxxxx
Title: Director
WPPN, INC.
By /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer and Secretary
XXXXXXX X. XXXXXX VOTING TRUST
By /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Attorney-in-Fact
