EXHIBIT 4.10
EXECUTION COPY
SECOND AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
This SECOND AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT (this
"Agreement"), dated as of February 9, 1999, by and among Xxxxxxxxxxx Xxxxxxx
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Partners, L.P., a Delaware limited partnership ("WPLP"), Xxxxxxxxxxx Xxxxxxx
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Offshore Partners, L.P., a Delaware limited partnership ("WPOP"), WPPN, Inc., a
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Delaware corporation ("WPPN"), the Xxxxxxx X. Xxxxxx Voting Trust (together with
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WPLP, WPOP and WPPN, "WP"), Xxxxxxx X. Xxxxxxxx ("Wechsler"), Xxxxxxx X. Xxxxxxx
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("Xxxxxxx" and, together with Wechsler, the "GW Shareholders") and Imax
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Corporation, a corporation organized under the laws of Canada (the "Company").
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W I T N E S S E T H:
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WHEREAS, WP is the beneficial holder of common shares of the Company
("Common Shares");
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WHEREAS, the GW Shareholders are the beneficial holders of Common
Shares and options to purchase Common Shares ("Options"); and
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WHEREAS, certain of the parties hereto entered into an Amended and
Restated Shareholders' Agreement dated June 16, 1994 (the "1994 Shareholders'
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Agreement") and now desire to further amend such agreement;
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WHEREAS, contemporaneously herewith, certain of the parties hereto are
entering into an Amended and Restated Standstill Agreement (the "1999 Standstill
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Agreement") and a Registration Rights Agreement (the "1999 Registration Rights
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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
hereto agree as follows:
Section 1. Definitions.
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The terms set forth below shall have the following definitions:
"1994 Shareholders' Agreement" has the meaning set forth in the
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Recitals hereto.
"1998 Employment Agreements" means the employment agreements dated as
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of July 1, 1998 between the Company and each of Xxxxxxx and Xxxxxxxx.
"1999 Registration Rights Agreement" has the meaning set forth in the
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Recitals hereto.
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"1999 Standstill Agreement" has the meaning set forth in the Recitals
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hereto.
"Acceptance Notice" has the meaning set forth in Section 2(b) hereof.
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"Affiliate" of any Person means a Person that directly, or indirectly
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through one or more intermediaries, controls, is controlled by or is under
common control with such Person, and, in the case of a Person who is a
natural person, such natural person's family, including any child,
stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling,
mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law
or sister-in-law, and shall include adoptive relationships, and any
personal representatives. A Person shall be deemed to "control" (including
the correlative meanings, the terms "controlling", "controlled by", and
"under common control with") another Person if the controlling Person
possesses, directly or indirectly, the power to direct or cause the
direction of the management or policies of the controlled Person, whether
through ownership of voting securities, by contract or otherwise.
"Best Efforts" shall mean an undertaking by a party to perform or
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satisfy an obligation or duty or otherwise act in a manner calculated to
obtain the intended result; provided, that the foregoing shall not include
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efforts which require the performing party to, among other things, expend
any funds in an amount disproportionate, unreasonably burdensome or
otherwise unreasonable under the circumstances or to institute litigation.
"Come-Along Notice" has the meaning set forth in Section
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2(c) hereof.
"Common Shares" has the meaning set forth in the Recitals hereto.
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"Company" has the meaning set forth in the introductory paragraph
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hereto.
"Convertible Notes" means the 5 3/4% Convertible Subordinated Notes
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due April 1, 2003 issued by the Company.
"Designated Directors" has the meaning set forth in Section 3(c)(i).
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"Exempted Transfer" has the meaning set forth in Section 2(d) hereof.
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"Xxxxxxx" has the meaning set forth in the introductory paragraph
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hereto.
"GW Designated Director" has the meaning set forth in Section 3(c)(iv)
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hereof.
"GW Shareholders" has the meaning set forth in the introductory
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paragraph hereto.
"GW Shareholders' Standstill Agreement" has the meaning set forth in
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Section 3(c)(iv) hereof.
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"GW Shares" means (i) all Common Shares beneficially owned by the GW
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Shareholders and their Affiliates, including, without limitation, all
restricted Common Shares, all Common Shares subject to outstanding Options
and warrants and all Common Shares subject to options to be granted
pursuant to Section 1(h) of the 1998 Employment Agreements, (ii) all
Liquidation Shares and (iii) all Phantom Shares.
"Independent Person" means an individual who, at all times during such
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person's term as a director of the Company, meets each of the following
three criteria: (a) an individual who is not, and has not previously been
within the past three years, an employee of the Company, Xxxxxxxxxxx & Co.,
any Affiliate of the Company or Xxxxxxxxxxx & Co. or any entity in which
Xxxxxxxxxxx & Co., the GW Shareholders or any of their Affiliates owns or
previously has owned more than five percent of the outstanding voting
securities or other ownership interests; (b) an individual who does not
have, and has not had, any substantial business relationship with and has
not been a partner with, employee of, or a service provider to, the
Company, Xxxxxxxxxxx & Co., the GW Shareholders or any of their respective
Affiliates within the past three years; and (c) an individual who will not,
through relationship, business dealings or otherwise, be susceptible to
influence from the Company, Xxxxxxxxxxx & Co., the GW Shareholders or any
of their respective Affiliates.
"IPO Closing" means the closing of the Company's initial public
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offering of Common Shares.
"IPO Shares" means the Liquidation Shares and the Common Shares,
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including Common Shares subject to Options and warrants, beneficially owned
by the parties on the date of the IPO Closing, subject to adjustment to
reflect any stock dividend, stock split, reverse stock split,
recapitalization or other similar transaction after the IPO Closing.
"Liquidation Shares" means, for purposes of this Agreement only, the
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deemed equivalent of 180,000 Common Shares held by the GW Shareholders
representing the rights of the GW Shareholders to receive special bonuses
pursuant to their employment agreements dated as of March 1, 1994, until
such special bonuses are paid.
"Options" has the meaning set forth in the Recitals hereto.
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"Person" means any individual, corporation, partnership, joint
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venture, trust, unincorporated or governmental organization or any agency
or political subdivision thereof.
"Phantom Shares" means, for purposes of this Agreement only, the
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deemed equivalent of 30,000 Common Shares held by the GW Shareholders
representing the right to receive certain payments pursuant to Section 1(g)
of the 1998 Employment Agreements, until such payments are made.
"Prospective Transferee" has the meaning set forth in Section 2(b)
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hereof.
"Replacement Director" has the meaning set forth in Section 3(c)(iii)
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hereof.
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"resident Canadian" has the meaning as defined in Section 2(1) of the
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Canada Business Corporations Act, as amended.
"Securities" means the Common Shares, the Convertible Notes, Options
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and any securities of the Company entitled to vote generally in the
election of directors or any securities convertible into or exchangeable
for any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended.
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"Shareholders" means the GW Shareholders together with WP.
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"Subsidiary" means any corporation or other entity of which securities
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or other ownership interests having ordinary voting power to elect a
majority of the board of directors or their equivalents of such Person
shall, at the time as of which any determination is being made, be owned by
the Company, either directly or through Subsidiaries.
"Take-Along Notice" has the meaning set forth in Section 2(b) hereof.
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"transfer" has the meaning set forth in Section 2(a) hereof.
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"Xxxxxxxxxxx & Co." means Xxxxxxxxxxx & Co., Inc., a Delaware
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corporation.
"Wechsler" has the meaning set forth in the introductory paragraph
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hereto.
"WP" has the meaning set forth in the introductory paragraph hereto.
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"WP Employee Designees" has the meaning set forth in Section 3(b)(i)
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hereof.
"WP Shares" means all outstanding Common Shares owned by WP and its
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Affiliates and all Common Shares owned by current or former limited
partners of WPLP or WPOP and over which WP or its Affiliates retain both
dispositive power and a right to control voting on all matters submitted to
the shareholders of the Company.
"WPLP" has the meaning set forth in the introductory paragraph hereto.
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"WPOP" has the meaning set forth in the introductory paragraph hereto.
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Section 2. Restrictions on Transfers of Securities and Rights of Co-
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Sale.
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(a) Restrictions on Transfers of Securities. No transfer, sale,
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assignment, pledge or other hypothecation or disposition, voluntary or
involuntary (each, a "transfer"), of Securities by any of the parties hereto
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shall be valid unless the terms and conditions of this Agreement shall have been
complied with. Any attempted transfer in violation of the terms and conditions
of this Agreement shall be ab initio void.
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(b) Take-Along Right. If WP owns at least 10% of the IPO Shares owned
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by it at the time of the IPO Closing and WP proposes to sell or transfer any
Securities held by it
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(including for these purposes WP Shares) in one or more related transactions
which will result in a transfer by WP of 50% or more of the WP Shares
outstanding at such time, then WP shall promptly give written notice thereof (a
"Take-Along Notice") to the GW Shareholders at least 30 days prior to the
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closing of such sale or transfer. The Take-Along Notice shall describe in
reasonable detail the proposed sale or transfer by WP, including, without
limitation, the number and type of the Securities to be sold or transferred, the
name and address of the prospective purchaser or transferee of the Securities (a
"Prospective Transferee"), the proposed amount and form of the consideration to
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be paid and the terms and conditions of payment thereof offered by the
Prospective Transferee, that the Prospective Transferee has been informed of the
take-along right in this Section 2(b) and has agreed to purchase Securities in
accordance with the terms hereof and any other material terms or conditions of
the sale or transfer. Each GW Shareholder shall have the right, exercisable
upon written notice (the "Acceptance Notice") delivered to WP within 15 days
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after such receipt of the Take-Along Notice, to participate in such sale on the
same terms and conditions as set forth in the Take-Along Notice. The Acceptance
Notice shall state that such GW Shareholder wishes to transfer Securities to the
Prospective Transferee on the terms described in the Take-Along Notice, and
shall state the number of Securities thereof that such GW Shareholder wishes to
include in the proposed transfer. If such GW Shareholder has delivered a timely
Acceptance Notice it shall have the right to sell a number of Securities equal
to the product obtained by multiplying (i) the aggregate number of Securities
covered by the Take-Along Notice by (ii) a fraction the numerator of which is
the number of GW Shares at the time of the sale or transfer and the denominator
of which is the number of WP Shares and GW Shares at the time of such sale or
transfer. Notwithstanding the foregoing, WP shall not be required to comply
with the provisions of this Section 2(b) if the GW Shareholders have received an
offer for their Securities on identical terms to those received by WP and WP and
the GW Shareholders shall have had an opportunity to close on the offer on
identical terms.
(c) Come-Along Right. If (i) WP holds at least 35% of the IPO Shares
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held by it at the time of the IPO Closing, (ii) holders of a majority of the
Securities desire to sell their
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Securities and (iii) WP determines to sell or transfer all of the WP Shares in
one or more related transactions and it would like to require the GW
Shareholders to sell their Securities in such sale, then WP shall give written
notice thereof (the "Come-Along Notice") to the GW Shareholders at least 20 days
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prior to such sale. Such notice shall describe in reasonable detail the
proposed sale or transfer by WP, including, without limitation, the name and
address of the Prospective Transferee, the number and type of the Securities
proposed to be sold or transferred, the proposed amount and form of the
consideration to be paid to WP in connection with such sale or transfer and the
terms and conditions of payment of such consideration offered by the Prospective
Transferee and any other material terms or conditions of the sale or transfer.
Each GW Shareholder shall be required to sell all of its Securities to such
third party or parties concurrently with the sale by WP of the WP Shares, on the
terms and conditions approved by WP subject to the consideration to be received
by each GW Shareholder being identical on a pro rata basis to the consideration
being received by WP.
(d) Exempted Transfers. The provisions of Section 2 hereof shall not
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apply to transfers of Securities (including for these purposes WP Shares) (i) by
a party to an Affiliate of such party, (ii) pursuant to an effective
registration statement under the Securities Act or under Rule 144 under the
Securities Act (or any similar or successor rule), (iii) pursuant to a
prospectus filed with any Canadian securities regulatory authority or qualified
for distribution in any province of Canada or a distribution exempt from the
prospectus and registration requirements under applicable Canadian law, (iv)
upon the merger, consolidation or liquidation of a party or an Affiliate of such
party, (v) in which a warrant or warrants are exercised for Common Shares, (vi)
by WP to (a) any of its partners in accordance with its partnership agreement as
then in effect 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 or (vii) by
either GW Shareholder to a Person by will or the laws of descent and
distribution or by gift of any kind for tax or estate planning purposes (each,
an "Exempted Transfer"). Notwithstanding the foregoing, each party to this
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Agreement agrees that it will not directly or indirectly make any Exempted
Transfer of any Securities held by such party pursuant to clause (i) or (vii) of
the first sentence of this Section 2(d) or pursuant to clause (vi) of the first
sentence of this Section 2(d) if such partner is party to any agreement with WP
or one of its Affiliates, or any other partner of WP or one of its Affiliates
with respect to the voting or disposition of such Securities, unless, prior to
the consummation of any such Exempted Transfer, the prospective transferee
executes and delivers to the Company an agreement, in form and substance
reasonably satisfactory to the Company, whereby such prospective transferee
confirms that, with respect to the Securities that are the subject of such
transfer, it shall be deemed to be a party to this Agreement for the purposes of
this Agreement and agrees to be bound by all the terms of this Agreement. Upon
the execution and delivery by such prospective transferee of the agreement
referred to in the immediately preceding sentence, such prospective transferee
shall be deemed a party to this Agreement for the purposes of this Agreement,
and shall, except as provided below, have the rights and be subject to the
obligations of a party to this Agreement with respect to the Securities
transferred to such prospective transferee. Notwithstanding the foregoing, any
transferee of any of the Securities of the GW Shareholders (other than to a
Person in a transfer of Securities of the type referred to in clause (i) or
(vii) of the first sentence of this Section 2(d)) shall not succeed to any of
the GW Shareholder's rights pursuant to this Agreement other than pursuant to
Section 3 hereof and any transferee of any of WP's Securities (including for
these purposes WP Shares) (other than to a Person in a transfer of Securities of
the type
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referred to in clause (i) or (vi) of the first sentence of this Section
2(d) or to a Person pursuant to a transfer in which WP retains the voting
interest, if any, in the Securities transferred and a significant economic
interest in the Company) shall not succeed to any of WP's rights pursuant to
this Agreement other than pursuant to Section 3 hereof.
Section 3. Certain Agreements.
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(a) Composition of Board of Directors. The GW Shareholders shall have
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the right to be elected, and each of WP and the GW Shareholders shall have the
right to designate individuals to be elected, as directors and officers of the
Company as provided in this Section 3.
(b) (i) WP Designees for the Board of Directors. WP shall be
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entitled to, but not required to, designate individuals as directors of the
Company as follows: (x) so long as there are 3,685,759 or more WP Shares, six
nominees for director, of which (A) three may be employees of WP and its
Affiliates ("WP Employee Designees"), and (B) three shall be Independent Persons
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and, so long as the Company is required to have "resident Canadian" directors,
resident Canadians; (y) so long as there are 1,842,879 or more but less than
3,685,759 WP Shares, four nominees for director, of which (A) two may be WP
Employee Designees, and (B) two shall be Independent Persons and, so long as the
Company is required to have "resident Canadian" directors, "resident Canadians"
and (z) so long as there are more than 921,439 but less than 1,842,879 WP
Shares, two nominees for director of which (A) one may be a WP Employee
Designee, and (B) one shall be an Independent Person and, so long as the Company
is required to have "resident Canadian" directors, a "resident Canadian." The
designees of WP who are Independent Persons shall be approved by the GW
Shareholders, which approval will not be unreasonably withheld. WP agrees that
one of its initial designees who is an Independent Person shall be Xxxxxx
Xxxxxxx. The GW Shareholders hereby approve of Xx. Xxxxxxx.
(ii) GW Shareholders Designees for the Board of Directors. Xxxxxxx and
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Wechsler each shall be entitled to be a director of the Company so long as (x)
he serves as either Co-Chief Executive Officer or Chief Executive Officer of the
Company or (y) the GW Shareholders own more than 375,000 GW Shares. The GW
Shareholders shall collectively be entitled to, but not required to, designate
individuals as directors of the Company as follows: (x) so long as the GW
Shareholders own 1,628,000 or more GW Shares, three nominees for director, all
of whom shall be Independent Persons and, so long as the Company is required to
have "resident Canadian" directors, "resident Canadians"; (y) so long as the GW
Shareholders own 1,075,000 or more and less than 1,628,000 GW Shares, two
nominees for director, both of whom shall be Independent Persons and, so long as
the Company is required to have "resident
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Canadian" directors, "resident Canadians"; and (z) if the GW Shareholders own at
least 375,000 but less than 1,075,000 GW Shares, one nominee for director who
shall be an Independent Person and, so long as the Company is required to have
"resident Canadian" directors, a "resident Canadian." WP shall have the right
to approve each individual, other than the GW Shareholders, designated by the GW
Shareholders to serve as a director, such approval to be in WP's sole discretion
for the first individual designated to serve each such position, and thereafter,
not to be unreasonably withheld by WP. The GW Shareholders agree that one of
their initial designees who is an Independent Person shall be Xxxx Xxxxxx. WP
hereby approves the designation of Xx. Xxxxxx; provided, however, that such
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approval shall not establish a precedent for the interpretation of Independent
Person.
(iii) Each of WP and the GW Shareholders shall only designate
pursuant to Section 3(b)(i) or (ii) individuals who they believe in good faith
(A) are qualified to serve as directors of the Company and (B) meet the criteria
established in such sections.
(c) (i) Each of WP and the GW Shareholders shall use its Best
Efforts to cause each of the individuals designated in accordance with Sections
3(b)(i), 3(b)(ii) and 3(c)(ii) (the "Designated Directors") to be elected or
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appointed as a director of the Company at the appropriate meeting of
shareholders of the Company following the date hereof and prior to the
expiration of the 1999 Standstill Agreement, such Best Efforts to include,
without limitation, voting all of its Common Shares in favor of each person
designated to serve as a director in accordance with this Section 3. Each of WP
and the GW Shareholders shall reasonably cooperate with each other to allocate
the Designated Directors among the three terms of office for directors. If, at
the time of the mailing of the proxy materials for the Company's 1999 Annual
Shareholders' Meeting, either WP or the GW Shareholders have not designated all
of the individuals they are entitled to designate pursuant to Section 3(b)
hereof, such party shall be entitled to designate such individuals as promptly
as practicable after the Company's 1999 Annual Shareholders' Meeting. In
furtherance of the foregoing, the parties hereto shall thereafter cooperate to
elect or appoint such individuals as directors of the Company in an orderly and
timely fashion.
(ii) If any of the Designated Directors shall at any time cease to
meet any of the qualifications specified in Section 3(b) of this Agreement
(e.g., he shall no longer be an Independent Person or "resident Canadian"),
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then, each of WP and the GW Shareholders shall use its Best Efforts to cause
such Designated Director to resign or otherwise to be removed as a director of
the Company. In addition, if the number of GW Shares or WP Shares drops below
any numerical thresholds set forth in Section 3(b), then the GW Shareholders and
WP each shall use its Best Efforts to cause one or more directors to resign or
to be removed as a director so that the number of Designated Directors
designated by WP or the GW Shareholders drops to a number corresponding with the
then current shareholdings of WP or the GW Shareholders, as the case may be, and
the Company, WP and the GW Shareholders each shall use its Best Efforts to cause
such person to be replaced as a director by an individual nominated by the
Nominating Committee; provided, however, that in the event that the number of WP
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Shares drops below 3,685,759 one of the two WP Designated Directors to be
replaced as a result shall be replaced by an Independent Person who shall be
designated by WP and approved by the GW Shareholders, such approval not to be
unreasonably withheld.
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(iii) Until such time as the 1999 Standstill Agreement expires, in
the event of the resignation, death, disqualification under the Canada Business
Corporations Act or of the expiration of the term of any Designated Director or
Replacement Director or the removal of any Designated Director or Replacement
Director pursuant to the first sentence of Section 3(c)(ii) of this Agreement,
the party who designated such director shall have the right to designate a
replacement for such director who meets the qualifications set forth in Section
3(b) of this Agreement (who may, in the case of the expiration of the term of
any Designated Director or Replacement Director, be the existing director) (a
"Replacement Director") if the then current share ownership of such party would
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entitle such party to designate a number of Independent Persons, or, in the case
of WP, WP Employee Designees, that exceeds the aggregate number of such
directors designated by such person who are then serving as such directors
following such resignation or removal, and each of WP and the GW Shareholders
shall use its Best Efforts to cause each of the individuals designated in
accordance with this Section 3(c)(iii) to be elected or appointed as a director
of the Company, such Best Efforts to include, without limitation, voting all
Common Shares in favor of each such individual.
(iv) In the event that WP does not extend the term of the 1999
Standstill Agreement, the GW Shareholders may, at their option to be exercised
within the 10 business day period following the expiration of the 1999
Standstill Agreement, enter into a standstill agreement with the Company (the
"GW Shareholders' Standstill Agreement") on the terms set forth in Sections 1,
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2, 3 and 5 of the 1999 Standstill Agreement, which agreement shall have a term
of one year subject to the ability of the GW Shareholders from time to time to
extend the term of such agreement beyond such termination for additional one
year terms until March 1, 2004 upon written notice delivered to the Company and
WP within 10 business days prior to the expiration of the term as it may be
extended from time to time. Until such time as the GW Shareholders' Standstill
Agreement expires, in the event of the resignation, death, disqualification
under the Canada Business Corporations Act or of the expiration of the term of
any Designated Director who had been designated by the GW Shareholders or any
Replacement Director who had been designated by the GW Shareholders, (each of
whom, having been designated by the GW Shareholders, a "GW Designated Director")
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or the removal of any GW Designated Director pursuant to the first sentence of
Section 3(c)(ii) of this Agreement, the GW Shareholders shall have the right to
designate a replacement for such director who meets the qualifications set forth
in Section 3(b) of this Agreement if the then current share ownership of the GW
Shareholders would entitle them to designate a number of Independent Persons
that exceeds the aggregate number of such directors designated by the GW
Shareholders who are then serving as such directors following such resignation
or removal, and WP shall use its Best Efforts to cause each of the individuals
designated in accordance with this Section 3(c)(iv) to be elected or appointed
as a director of the Company, such Best Efforts to include, without limitation,
voting all Common Shares in favor of each such individual.
(d) The Company shall, and each of WP and the GW Shareholders shall
use its Best Efforts to cause the Company to, establish a nominating committee
of the Board of Directors of the Company (the "Nominating Committee"),
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consisting of two directors, one designated by WP and one designated by the GW
Shareholders.
(e) Chairman of the Board; Committees of the Board of Directors.
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(i) Subject to the approval of the GW Shareholders, such approval not
to be unreasonably withheld, WP shall be entitled to designate a WP Employee
Designee for appointment by the Board as the Non-Executive Chairman of the Board
of the Company, so long as there are at least 2,948,607 WP Shares. The GW
Shareholders hereby approve the designation of Xxxxxxx X. Xxxxxx as the Non-
Executive Chairman of the Board and will use their Best Efforts to ensure his
appointment by the Board. If Xx. Xxxxxx shall no longer hold such position, WP
shall then present to the GW Shareholders three individuals to replace him and
the GW Shareholders shall select one of such individuals for appointment as the
Non-Executive Chairman of the Board of the Company and the GW Shareholders will
use their Best Efforts to ensure his appointment by the Board.
(ii) So long as either Xxxxxxx or Xxxxxxxx serves as a Co-Chief
Executive Officer or Chief Executive Officer, he shall also be entitled to be
appointed to serve as a Co-Chairman or Chairman of the Company and WP shall use
its Best Efforts to ensure his appointment by the Board.
(iii) The duties and powers of the Non-Executive Chairman of the
Board and the Co-Chief Executive Officers shall be as set forth in the Bylaws of
the Company, including without limitation, the requirement that the following
actions be approved by the Non-Executive Chairman of the Board and at least one
of the Co-Chief Executive Officers: (x) setting the dates and times of the
meetings of the Board and the shareholders of the Company (other than the
Board's normal quarterly meetings and annual shareholder meetings, which shall
be established by the Board), (y) setting the agenda of such meetings and (z)
appointing members of the committees of the Board other than persons designated
by WP and the GW Shareholders pursuant to Section 3(e)(iv) below. The Co-Chief
Executive Officers shall preside at meetings of the Board and the shareholders
of the Company. None of Xxxxxxx, Xxxxxxxx or the Non-Executive Chairman of the
Board may use the rights granted pursuant to this Section 3(e) to frustrate the
interests of the Company.
(iv) Each of WP and the GW Shareholders shall have the right to
designate one individual director to serve on each committee of the Board. Each
such person shall meet the requirements of the NASDAQ National Market System and
The Toronto Stock Exchange and any other exchange on which the Common Shares are
traded, and no person serving on the compensation committee shall be an employee
of the Company.
(f) CEO Advisors. Each of WP and the GW Shareholders shall use its
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Best Efforts to cause there to no longer be CEO Advisors as of the date on which
all of the WP Employee Designees are elected as directors of the Company.
Thereafter, none of WP or the GW Shareholders shall take any action to
reestablish the CEO Advisors.
Section 4. Miscellaneous.
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(a) Binding Effect. Unless otherwise provided herein, the provisions
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of this Agreement shall be binding upon and accrue to the benefit of the parties
hereto and their respective successors, assigns and transferees.
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(b) Entire Agreement. This Agreement, together with the 1999
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Standstill Agreement and the 1999 Registration Rights Agreement, represents the
entire understanding and agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior and contemporaneous
agreements, understandings, negotiations and discussions, whether oral or
written, of the parties with respect to the subject matter hereof, including,
without limitation, the 1994 Shareholders' Agreement and the Standstill
Agreement dated June 16, 1994 among the Company and certain of the parties
hereto.
(c) Amendments, Etc. This Agreement can be amended, supplemented or
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changed, and any provision hereof can be waived, only by written instrument
signed by the party against whom enforcement of any such amendment, supplement,
modification or waiver is sought.
(d) Severability. If any provision of this Agreement is invalid or
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unenforceable, the balance of this Agreement shall remain in full force and
effect and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
(e) Descriptive Headings. The descriptive headings of this Agreement
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are inserted for convenience only and do not constitute a part of this
Agreement.
(f) Notices. All communications provided for under this Agreement
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shall be in writing and shall be delivered by hand, by telecopy, telegram or
telex, or by mail (registered or certified mail, postage prepaid, return receipt
requested) to the following addresses, or such other addresses as shall be given
by notice delivered hereunder, and shall be deemed to have been given on the day
of such hand delivery thereof or the third business day after such mailing:
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
12
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 Wechsler, to:
Xxxxxxx X. Xxxxxxxx
00 Xxxx Xxxxxx 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
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 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:
13
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 0X0 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
or to such other Persons or at such other addresses as shall be furnished by any
such party by like notice given to the other parties of this Agreement.
(g) 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.
(h) Injunctive Relief. The Company and the Shareholders recognize
-----------------
that in the event they fail to perform, observe or discharge any of their
respective obligations or liabilities under this Agreement, no remedy at law
will provide adequate relief to the injured parties, and agree that the injured
parties shall be entitled to temporary and permanent injunctive relief in any
such case without the necessity of proving actual damages and without being
required to post a bond or other security.
(i) Termination. The provisions of this Agreement shall terminate on
-----------
March 1, 2004, except as otherwise provided therein.
(j) Limitation of Liability. No personal liability or responsibility
-----------------------
of either GW Shareholder or any partner or shareholder of WP shall at any time
be enforceable against either GW Shareholder or any partner or shareholder of WP
on account of any representation, warranty, undertaking, covenant or agreement
made by it hereunder, either express or implied, all such personal liability, if
any, being expressly waived by each party to this Agreement and by all
14
Persons claiming by, through or under any such party, provided that any party
--------
to this Agreement making claim hereunder may realize upon the Securities held by
either the GW Shareholder and each partner or shareholder of WP at such time for
satisfaction of the same.
(k) Execution in Counterparts. This Agreement may be executed and
-------------------------
delivered (including by facsimile transmission) in counterparts, each of which
shall be deemed an original and all of which shall constitute one and the same
instrument.NYDOCS02/435926 14
15
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the day and year first above written.
XXXXXXXXXXX XXXXXXX PARTNERS, L.P.
By XXXXXXXXXXX XXXXXXX MANAGEMENT
CK PARTNERS, INC., its General Partner
By: /s/ X. Xxxxxxxx Xxxxxxx
-----------------------
Name: X. Xxxxxxxx Xxxxxxx
Title: Vice President
XXXXXXXXXXX XXXXXXX OFFSHORE
PARTNERS, L.P.
By XXXXXXXXXXX XXXXXXX MANAGEMENT
CK PARTNERS, INC., its General Partner
By: /s/ X. Xxxxxxxx Xxxxxxx
-----------------------
Name: X. Xxxxxxxx Xxxxxxx
Title: Vice President
WPPN, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer and Secretary
XXXXXXX X. XXXXXX VOTING TRUST
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney-in-Fact
/s/ Xxxxxxx X Xxxxxxx
---------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxx
IMAX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------
Name: Xxxx X. Xxxxxxx
Title: Director
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Director
