CONFORMED COPY
IMAX CORPORATION
9 5/8% SENIOR NOTES DUE 2010
PURCHASE AGREEMENT
November 19, 2003
CREDIT SUISSE FIRST BOSTON LLC,
As Representative of the Several Purchasers,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. IMAX Corporation, a corporation incorporated under the
federal laws of Canada (the "COMPANY"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the several initial purchasers
named in Schedule A hereto (the "PURCHASERS") U.S.$160,000,000 principal amount
of its 9 5/8% Senior Notes due 2010 (the "OFFERED SECURITIES") to be issued
under an indenture (the "INDENTURE"), dated as of the Closing Date (as defined
below), between the Company, the guarantors named therein (each, a "GUARANTOR,"
and collectively the "GUARANTORS") and U.S. Bank National Association, as
trustee (the "TRUSTEE"). The Offered Securities will be irrevocably and
unconditionally guaranteed (the "GUARANTEES") as to payment of principal,
premium, if any, interest and Special Interest (as defined in the Indenture), if
any, on a senior basis, jointly and severally by each of the Guarantors. The
United States Securities Act of 1933 is herein referred to as the "SECURITIES
ACT."
The holders of the Offered Securities will be entitled to the benefits
of a Registration Rights Agreement to be dated December 4, 2003, among the
Company, the Guarantors and the Purchasers (the "REGISTRATION RIGHTS
AGREEMENT"), pursuant to which the Company agrees to file a registration
statement with the Securities and Exchange Commission (the "COMMISSION")
registering the resale of the Exchange Securities (as defined in the
Registration Rights Agreement), under the Securities Act.
The Company and the Guarantors hereby agree with the several Purchasers
as follows:
2. Representations and Warranties of the Company and the Guarantors.
The Company and each of the Guarantors severally represent and warrant to, and
agree with, the several Purchasers that:
(a) A preliminary offering circular and an offering circular
relating to the Offered Securities to be offered by the Purchasers have
been prepared by the Company. Such preliminary offering circular dated
November 12, 2003 (the "PRELIMINARY OFFERING CIRCULAR") and offering
circular (the "OFFERING CIRCULAR"), as supplemented as of the date of
this Agreement, together with the documents incorporated by reference
therein are hereinafter collectively referred to as the "OFFERING
DOCUMENT". On the date of this Agreement, the Offering Document does
not include any untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or
omissions from the Offering Document based upon written information
furnished to the Company by any Purchaser through Credit Suisse
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First Boston LLC ("CSFB") specifically for use therein, it being
understood and agreed that the only such information is that described
as such in Section 7(b) hereof. Except as disclosed in the Offering
Document, on the date of this Agreement, the Company's Annual Report on
Form 10-K/A most recently filed with the Commission and all subsequent
reports which have been filed by the Company with the Commission or
sent to shareholders pursuant to the Securities Exchange Act of 1934
(the "EXCHANGE ACT") do not include any untrue statement of a material
fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. Such documents, when they were filed with
the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder.
(b) The Company has been duly amalgamated and is an existing
corporation in good standing under the federal laws of Canada, with
corporate power and authority to own its properties and conduct its
business as described in the Offering Document; and the Company is duly
qualified or registered to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification or
registration, except where the failure to be so qualified or registered
or to be in good standing would not reasonably be expected to have a
material adverse effect on the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT").
(c) Each of the Guarantors has been duly incorporated or
organized and is an existing corporation or other business
organization, as the case may be, in good standing under the laws of
the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Offering Document; and each of the Guarantors is duly
qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification or
registration, except where the failure to be so qualified or registered
or to be in good standing would not reasonably be expected to have a
Material Adverse Effect; all of the issued and outstanding capital
stock or other ownership interests of each of the Guarantors has been
duly authorized and, in the case of each Guarantor that is a
corporation, validly issued and is fully paid and nonassessable; and
the capital stock or other ownership interests of each Guarantor owned
by the Company, directly or through subsidiaries, is owned free from
liens, encumbrances and defects.
(d) The Indenture has been duly authorized by the Company; the
Offered Securities have been duly authorized by the Company; and when
the Offered Securities are delivered and paid for pursuant to this
Agreement on the Closing Date (as defined below) and duly authenticated
by the Trustee in accordance with the terms of the Indenture, the
Indenture will have been duly executed and delivered by the Company,
such Offered Securities will have been duly executed, issued and
delivered and will conform in all material respects to the description
thereof contained in the Offering Document and the Indenture and,
assuming the due authentication of the Offered Securities by the
Trustee, such Offered Securities will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement, as to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and subject to the effect of general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith
and fair dealing (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(e) On the Closing Date, the Indenture will have been duly
authorized by each Guarantor, and the Guarantee to be endorsed on the
Offered Securities by each Guarantor will have been duly authorized by
the applicable Guarantor. When the Offered Securities have been duly
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authorized, executed and authenticated in accordance with the Indenture
and are delivered to and paid for by the Purchasers in accordance with
the terms of this Agreement on the Closing Date and the Guarantees are
endorsed on the Offered Securities, the Indenture will have been duly
executed and delivered by each Guarantor, the Guarantee of each
Guarantor endorsed on the Offered Securities will have been duly
executed, issued and delivered by such Guarantor and the Indenture and
the Guarantee will constitute valid and legally binding obligations of
such Guarantor, enforceable in accordance with their terms, subject, as
to enforcement, as to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and subject to
the effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(f) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court in Canada or
the United States by the Company and the Guarantors is required for the
consummation of the transactions contemplated by this Agreement and the
Registration Rights Agreement in connection with the issuance and sale
of the Offered Securities and the Guarantees, except (i) for those that
have, as of the date hereof, been obtained or made, (ii) for any
filings with Canadian securities regulatory authorities of trade
reports and copies of any offering memorandum used to effect sales of
the Offered Securities or Exchange Securities (as defined in the
Registration Rights Agreement) on a private placement basis in Canada,
(iii) as required under the Securities Act and the United States Trust
Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), in
connection with the Registration Rights Agreement, (iv) as required
under applicable state securities or blue sky laws and (v) where the
failure to obtain such consent would not reasonably be expected to have
a Material Adverse Effect.
(g) Except as disclosed in the Offering Document, under
current Canadian federal and Ontario laws and regulations, all
interest, principal, premium, if any, and other payments due or made on
the Offered Securities may be paid by the Company to the holder thereof
in United States dollars or Canadian dollars that may be converted into
foreign currency and freely transferred out of Canada and no such
payments made to holders thereof who are Holders as defined in the
Offering Circular under the heading "Certain Federal Income Tax
Considerations -- Canadian Federal Income Tax Considerations" will be
subject to income, withholding or other taxes under the laws and
regulations of Canada or Ontario and all such payments will otherwise
be free and clear of any other Canadian federal or Ontario tax, duty,
withholding or deduction and without the necessity of obtaining any
Canadian federal or Ontario governmental authorization.
(h) The execution, delivery and performance of the Indenture,
this Agreement and the Registration Rights Agreement by the Company and
each of the Guarantors, and the issuance and sale of the Offered
Securities and the Guarantees and compliance with the terms and
provisions thereof will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, (i) any
statute, any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the
Company or any Guarantor or any of their properties, (ii) any material
agreement or instrument to which the Company or any such Guarantor is a
party or by which the Company or any such Guarantor is bound or to
which any of the properties of the Company or any such Guarantor is
subject, or (iii) the charter or by-laws of the Company or any such
Guarantor, except in the case of clauses (i) and (ii), where such
breach, violation or default would not individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect,
and the Company and each Guarantor has full power and authority to
authorize, issue and sell the Offered Securities or the Guarantees, as
applicable, as contemplated by this Agreement.
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(i) This Agreement has been duly authorized, executed and
delivered by the Company and, on the Closing Date, will have been duly
ratified by each of the Guarantors.
(j) Except as disclosed in the Offering Document, the Company
and its subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them, in each
case free from liens, encumbrances, mortgages, pledges, security
interests, restrictions and defects that would materially affect the
value thereof or materially interfere with the use made or to be made
thereof by them, except as would not reasonably be expected to have a
Material Adverse Effect; and except as disclosed in the Offering
Document, the Company and its subsidiaries hold any leased real or
personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof
by them, except as would not reasonably be expected to have a Material
Adverse Effect.
(k) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate U.S.,
Canadian and foreign governmental agencies or bodies necessary to
conduct the business now operated by them in all material respects. The
Company and its subsidiaries have not received any notice of
proceedings relating to the revocation or modification of any such
certificate, authority or permit that would, individually or in the
aggregate, reasonably be expected have a Material Adverse Effect.
(l) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent,
which, in either case, would have a Material Adverse Effect.
(m) Except as disclosed in the Offering Document, the Company
and its subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, or as proposed to be conducted by them as described
in the Offering Circular and have not received any notice of
infringement of or conflict with asserted rights of others with respect
to any intellectual property rights or of any facts or circumstances
that would render the intellectual property rights invalid or
inadequate to protect the interests of the Company or any of its
subsidiaries therein that, if determined adversely to the Company or
any of its subsidiaries, would reasonably be expected to, individually
or in the aggregate, have a Material Adverse Effect.
(n) Except as disclosed in the Offering Document, neither the
Company nor any of its subsidiaries is in violation of any statute,
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(o) Except as disclosed in the Offering Document, there are no
pending actions, suits, proceedings, inquiries or investigations
against or affecting the Company, any of its subsidiaries or any of
their respective properties that, if determined adversely to the
Company or any of its subsidiaries, would reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its
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obligations under the Indenture, this Agreement or the Registration
Rights Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge,
contemplated.
(p) The consolidated financial statements of the Company
included in the Offering Document, together with the related notes,
present fairly in all material respects the financial position of the
Company and its consolidated subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and,
except as otherwise disclosed in the Offering Document, such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis throughout the periods involved.
(q) Except as disclosed in the Offering Document, since the
date of the latest audited financial statements of the Company included
in the Offering Document there has been no material adverse change, nor
any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries taken as a
whole, and, except as disclosed in or contemplated by the Offering
Document, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(r) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Exchange Act and files
reports with the Commission on the Electronic Data Gathering, Analysis,
and Retrieval (▇▇▇▇▇) system.
(s) Neither the Company nor any of the Guarantors is an
open-end investment company, unit investment trust or face-amount
certificate company that is or is required to be registered under
Section 8 of the United States Investment Company Act of 1940 (the
"INVESTMENT COMPANY ACT"); and neither the Company nor any Guarantor is
and, after giving effect to the offering and sale of the Offered
Securities and the application of the proceeds thereof as described in
the Offering Document, will be required to register as an "investment
company" as defined in the Investment Company Act.
(t) No securities of the same class (within the meaning of
Rule 144A(d)(3) under the Securities Act) as the Offered Securities are
listed on any national securities exchange registered under Section 6
of the Exchange Act or quoted in a U.S. automated inter-dealer
quotation system.
(u) Subject to compliance by the Purchasers with the
representations, warranties and procedures set forth in Section 4 of
this Agreement, the offer and sale of the Offered Securities and the
Guarantees to the Purchasers in the manner contemplated by this
Agreement will be exempt from the registration requirements of the
Securities Act by reason of Section 4(2) thereof and Regulation S
thereunder; and it is not necessary to qualify an indenture in respect
of the Offered Securities under the Trust Indenture Act.
(v) None of the Company, the Guarantors, nor any of their
respective affiliates, nor any person acting on its or their behalf
(provided that no representation is made with respect to the Purchasers
and their affiliates) (i) has, within the six-month period prior to the
date hereof, offered or sold the Offered Securities, or any security of
the same class or series as the Offered Securities or (ii) has offered
or will offer or sell the Offered Securities (A) in the United States
by means of any form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities Act, including,
but not limited to, articles, notices or other communications published
in any newspaper, magazine, or similar medium or broadcast over
television or radio, or any seminar or meeting whose attendees have
been invited by any general solicitation or general advertising or (B)
with respect to any such securities sold in reliance on Rule 903 of
Regulation S ("REGULATION S")
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under the Securities Act, by means of any directed selling efforts
within the meaning of Rule 902(c) of Regulation S. The Company, each of
the Guarantors and each of their respective affiliates and any person
acting on its or their behalf have complied and will comply with the
offering restrictions requirement of Regulation S. Neither the Company
nor any Guarantor has entered and neither will enter into any
contractual arrangement with respect to the distribution of the Offered
Securities except for this Agreement.
(w) The proceeds to the Company from the offering of the
Offered Securities will not be used to purchase or carry any margin
security.
(x) The entities listed on Schedule B hereto are the only
subsidiaries (as defined in the Offering Circular), direct or indirect,
of the Company.
(y) On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act, and
the rules and regulations of the Commission applicable to an indenture
which is qualified thereunder, other than the requirements relating to
the eligibility of the trustee.
(z) The Exchange Securities will, when issued, have been duly
authorized by the Company; and when the Exchange Securities are issued,
executed and authenticated in accordance with the terms of the Exchange
Offer (as defined in the Registration Rights Agreement) and the
Indenture, the Exchange Securities will be entitled to the benefits of
the Indenture and will be the valid and legally binding obligations of
the Company, subject, as to enforcement, as to the effect of any
applicable bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally
and subject to the effect of general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith
and fair dealing (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(aa) The Guarantee to be endorsed on the Exchange Securities
by each Guarantor will, when issued, have been duly authorized by the
Guarantor; and when issued, will have been duly executed and delivered
by each such Guarantor. When the Exchange Securities have been issued,
executed, authenticated and delivered in accordance with the terms of
the Exchange Offer and the Indenture and the Guarantee of each
Guarantor is endorsed on the Exchange Securities, the Guarantee of each
Guarantor endorsed on the Exchange Securities will constitute valid and
legally binding obligations of such Guarantor, enforceable in
accordance with its terms, subject, as to enforcement, as to the effect
of any applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and subject to the effect of general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(bb) The Registration Rights Agreement has been duly
authorized by the Company and, on the Closing Date, will have been duly
authorized by the Guarantors and will have been duly executed and
delivered by the Company and each of the Guarantors. When the
Registration Rights Agreement has been duly executed and delivered, the
Registration Rights Agreement will be a valid and binding agreement of
the Company and each of the Guarantors, enforceable against the Company
in accordance with its terms, subject, as to enforcement, as to the
effect of any applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and subject to the effect of general principles of
equity, including, without
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limitation, concepts of materiality, reasonableness, good faith and
fair dealing (regardless of whether enforcement is considered in a
proceeding in equity or at law), and except that rights to
indemnification or contribution may not be enforceable due to the
application of federal or state securities laws or public policy
relating thereto.
(cc) Neither the Company nor any of its subsidiaries is (i) in
violation of its respective charter or by-laws or (ii) in default in
the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries or their
respective property is bound, except for such violations (other than
the case of the Company's charter or by-laws) or defaults that would
not be reasonably expected to have a Material Adverse Effect.
(dd) Except for the Registration Rights Agreement, there are
no contracts, agreements or understandings between the Company or any
Guarantor and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or any Guarantor or to require
the Company or any Guarantor to include such securities with the
Securities registered pursuant to any Registration Statement.
(ee) Neither the Company nor any of the Guarantors nor any
agent thereof acting on the behalf of them has taken, and none of them
will take, any action that might cause this Agreement or the issuance
or sale of the Offered Securities to violate Regulation T, Regulation U
or Regulation X of the Board of Governors of the Federal Reserve
System.
(ff) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act (i) has imposed (or has informed the Company
that it is considering imposing) any condition (financial or otherwise)
on the Company's retaining any rating assigned to the Company, any
securities of the Company or (ii) has indicated to the Company that it
is considering (a) the downgrading, suspension, or withdrawal of, or
any review for a possible change that does not indicate the direction
of the possible change in, any rating so assigned or (b) any change in
the outlook for any rating of the Company or any securities of the
Company.
(gg) The Offered Securities and Guarantees offered and sold in
reliance on Regulation S have been and will be offered and sold only in
offshore transactions.
(hh) The sale of the Offered Securities and the Guarantees
pursuant to Regulation S is not part of a plan or scheme to evade the
registration provisions of the Securities Act.
(ii) The Company maintains and will maintain disclosure
controls and procedures (as defined as Rule 13a-14 of the Exchange Act)
designed to ensure that information required to be disclosed by the
Company in the reports that it files or submits under the Exchange Act
is recorded, processed, summarized and reported in accordance with the
Exchange Act and the rules and regulations thereunder. The Company has
carried out and will carry out evaluations, under the supervision and
with the participation of the Company's management, of the
effectiveness of the design and operation of the Company's disclosure
controls and procedures in accordance with Rule 13a-15 of the Exchange
Act.
(jj) Except as would not reasonably be expected to have a
Material Adverse Effect, the Company and its subsidiaries are in
compliance with, and conduct their businesses in conformity with, all
applicable U.S. and Canadian federal, state, provincial, local and
foreign
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laws, rules and regulations, including all export control rules and
regulations, and all applicable ordinances, judgments, decrees, orders,
units and injunctions of any court or governmental agency or body or
the Toronto Stock Exchange or NASDAQ National Market.
(kk) The Company's existing backlog of orders is as described
in the Offering Document; except as described in the Offering Document
and to the knowledge of the Company, all such orders are valid and
binding and in full force and effect with respect to the Company,
except where the failure of such orders to be valid and binding or in
full force and effect would not reasonably be expected to have a
Material Adverse Effect.
(ll) Provided that a Purchaser is a Holder as defined in the
Offering Circular under the heading "Certain Federal Income Tax
Considerations -- Canadian Federal Income Tax Considerations" and does
not provide services in Canada, no stamp tax or other issuance, goods
and services or transfer taxes or duties and no capital gains, income,
withholding or other taxes are payable by or on behalf of the
Purchasers to any Canadian federal or Ontario taxing authority in
connection with (A) the creation, issuance, sale and delivery of the
Offered Securities to the Purchasers in the manner contemplated in this
Agreement, the Registration Rights Agreement and the Indenture; or (B)
the resale and delivery of such Offered Securities by the Purchasers
outside of Canada in the manner contemplated in this Agreement, the
Registration Rights Agreement and the Indenture.
(mm) The Company and each Guarantor has filed all foreign,
federal, state, provincial and local tax returns that are required to
be filed by it or has requested extensions thereof, except where the
failure to so file such returns would not reasonably be expected to
have a Material Adverse Effect and has paid all taxes required to be
paid by it and any other assessment, interest, fine or penalty levied
against it, to the extent that any of the foregoing is material and due
and payable, except as would not reasonably be expected to have a
Material Adverse Effect.
(nn) The accountants who audited the financial statements of
the Company included in the Offering Document are independent public
accountants as required by the Securities Act and the Rules and
Regulations (as defined below) and are independent with respect to the
Company within the meaning of the Canada Business Corporations Act.
(oo) No withholding tax imposed under the federal laws of
Canada or the laws of Ontario will be payable in respect of the payment
or crediting of the commissions contemplated by this Agreement by the
Company to a Purchaser that is not, and is not deemed to be, a resident
of Canada for the purposes of the Income Tax Act (Canada), or of any
interest or deemed interest on the resale of Offered Securities by a
Purchaser to U.S. residents provided that the Purchaser deals at arm's
length with the Company (as such term is understood for purposes of the
Income Tax Act (Canada)), and that such commissions are payable in
respect of services rendered by the Purchaser wholly outside of Canada
that are performed in the ordinary course of business carried on by the
Purchaser outside of Canada that includes the performance of such
services for a fee;
(pp) No goods and services tax imposed under the federal laws
of Canada or retail sales taxes imposed under the laws of the Province
of Ontario will be payable by the Company or collectable by a Purchaser
in respect of the payment of commissions as contemplated by this
Agreement to a Purchaser that is a non-resident of Canada, provided
that such commissions are in respect of services performed by a
Purchaser wholly outside of Canada.
3. Purchase, Sale and Delivery of Offered Securities . On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Purchasers, and the Purchasers agree, severally and not jointly, to purchase
from the Company, at
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a purchase price of 100% of the principal amount thereof plus accrued interest
from December 4, 2003, to the Closing Date (as hereinafter defined) in the
respective principal amounts set forth opposite the names of the several
Purchasers in Schedule A hereto. As compensation for the services rendered by
the Purchasers to the Company in respect of the issuance and sale of the Offered
Securities, the Company will pay to the Purchasers a commission of 2.69% of the
principal amount thereof sold to the Purchasers under this Agreement.
The Company will deliver against payment of the purchase price the
Offered Securities in the form of one or more permanent global Securities in
definitive form (the "GLOBAL SECURITIES") deposited with the Trustee as
custodian for The Depository Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee for DTC. Interests in any permanent global Securities
will be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the Offered
Securities shall be made by the Purchasers in Federal (same day) funds by
official check or checks or wire transfer to an account at a bank acceptable to
CSFB drawn to the order of the Company at the office of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, Four Times Square, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ at 9:00 A.M. (New York
time), on December 4, 2003, or at such other time not later than seven full
business days thereafter as CSFB and the Company determine, such time being
herein referred to as the "CLOSING DATE", against delivery to the Trustee as
custodian for DTC of the Global Securities representing all of the Securities.
The Global Securities will be made available for checking at the above office of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at least 24 hours prior to the Closing
Date.
4. Representations by Purchasers; Resale by Purchasers.
(a) Each Purchaser severally represents and warrants to the
Company that it is an "accredited investor" within the meaning of
Regulation D under the Securities Act.
(b) Each Purchaser severally acknowledges that the Offered
Securities have not been registered under the Securities Act and may
not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons except in accordance with
Regulation S or pursuant to an exemption from the registration
requirements of the Securities Act. Each Purchaser severally
acknowledges that offers and sales of Offered Securities have and will
be made by the Purchasers or their affiliates who are qualified to do
so in the jurisdiction in which such offers or sales are made. Each
Purchaser severally represents and agrees that it has offered and sold
the Offered Securities, and will offer and sell the Offered Securities
(i) as part of its distribution at any time and (ii) otherwise until 40
days after the later of the commencement of the offering and the
Closing Date, only in accordance with Rule 903 or Rule 144A under the
Securities Act ("RULE 144A"). Accordingly, neither such Purchaser nor
its affiliates, nor any persons acting on its or their behalf, have
engaged or will engage in any directed selling efforts with respect to
the Offered Securities , and such Purchaser, its affiliates and all
persons acting on its or their behalf have complied and will comply
with the offering restrictions requirement of Regulation S. Each
Purchaser severally agrees that, at or prior to confirmation of the
sale of the Offered Securities, other than a sale pursuant to Rule
144A, such Purchaser will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration that
purchases the Offered Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the later of the date of
commencement of the offering and the closing date, except in either
case in accordance with Regulation S (or Rule 144A if available) under
the Securities Act. Terms used above have the meanings given to them by
Regulation S."
Terms used in this subsection (b) have the meanings given to
them by Regulation S.
9
(c) Each Purchaser severally agrees that it and each of its
affiliates has not entered and will not enter into any contractual
arrangement with respect to the distribution of the Offered Securities
except for any such arrangements with the other Purchasers or
affiliates of the other Purchasers or with the prior written consent of
the Company.
(d) Each Purchaser severally agrees that it and each of its
affiliates has not and will not offer or sell the Offered Securities in
the United States by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the
Securities Act, including, but not limited to (i) any advertisement,
article, notice or other communication published in any newspaper,
magazine or similar media or broadcast over television or radio, or
(ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising. Each Purchaser severally
agrees, with respect to resales made in reliance on Rule 144A of any of
the Offered Securities, to deliver either with the confirmation of such
resale or otherwise prior to settlement of such resale a notice to the
effect that the resale of such Offered Securities has been made in
reliance upon the exemption from the registration requirements of the
Securities Act provided by Rule 144A.
(e) Each of the Purchasers severally represents and agrees
that (i) it has not offered or sold and prior to the expiry of a period
of six months from the closing date, will not offer or sell any Offered
Securities to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995;
(ii) it has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Act 2000 (the "FSMA"))
received by it in connection with the issue or sale of any Offered
Securities in circumstances in which section 21(1) of the FSMA does not
apply to the Company; and (iii) it has complied and will comply with
all applicable provisions of the FSMA with respect to anything done by
it in relation to the Offered Securities in, from or otherwise
involving the United Kingdom.
(f) Each Purchaser severally represents, warrants and agrees
to and with the Company that: (i) it will not offer or resell any of
the Offered Securities in any province or territory of Canada so as to
give rise to any requirement on the part of the Company or any
Guarantor to file a prospectus in any such province or territory; (ii)
any offers or resales of Offered Securities made to Canadian residents
will be made only to residents of those provinces defined as "Private
Placement Provinces" in the final confidential Canadian Offering
Memorandum and only to the categories of exempt purchasers referred to
therein pursuant to available prospectus exemptions; and (iii) in
making any offers and resales of Offered Securities in such provinces,
it will comply with all applicable securities laws, rules, regulations,
instruments, policy statements and notices in such provinces
(collectively, "Provincial Securities Laws") at all relevant times
including, without limitation, any applicable dealer registration
requirements. Each Purchaser severally agrees to indemnify and save
harmless the Company and each Guarantor, their officers, directors,
shareholders, agents and employees from and against any and all claims,
demands, suits, proceedings, expenses, losses, obligations, fees,
expenses and liabilities of whatever nature arising, whether directly
or indirectly, as a consequence of any breach by or failure to comply,
on the part of, such Purchaser with the foregoing.
(g) Each Purchaser that offers or resells any Offered
Securities to residents of Canada shall promptly notify the Company in
writing of all details concerning any such offers or
10
resales as may be required by the Company in order to enable it to
fulfill any notice, filing or other obligation arising from such sales
under applicable Provincial Securities Laws in a timely fashion.
5. Certain Agreements of the Company and the Guarantors. The Company
and each of the Guarantors severally agree with the several Purchasers that:
(a) Prior to the completion of the resale of the Offered
Securities by the Purchasers, which shall be evidenced by written
notice by CSFB upon request by the Company, the Company will advise
CSFB promptly of any proposal to amend or supplement the Offering
Document and will not effect such amendment or supplementation without
CSFB's consent (which such consent shall not be unreasonably withheld);
provided, however, this provision shall not prohibit the Company from
complying in a timely manner with its disclosure obligations under
applicable securities legislation and the requirements of any relevant
stock exchange, with respect to events that occur after the date of
this Agreement. If, at any time prior to the earlier of (i) the
completion of the resale of the Offered Securities by the Purchasers,
which shall be evidenced by written notice by CSFB upon request by the
Company and (ii) the effectiveness of the Shelf Registration Statement
(as defined in the Registration Rights Agreement), any event occurs as
a result of which the Offering Document as then amended or supplemented
would include an untrue statement of a material fact or omit to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, or if it is necessary at any such time to amend or
supplement the Offering Document to comply with any applicable law, the
Company promptly will notify CSFB of such event and promptly will
prepare, at its own expense, an amendment or supplement which will
correct such statement or omission or effect such compliance. Upon
receipt of a notice pursuant to this Section 5(a), each Purchaser shall
forthwith discontinue any use of the Offering Document in connection
with the offer or sale of the Offered Securities until such Purchaser
has received an amendment or supplement pursuant to this Section 5(a)
or until such Purchaser is advised by the Company in writing that the
use of the then-exiting Offering Document may be resumed. Neither
CSFB's consent to, nor the Purchasers' delivery to offerees or
investors of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(b) The Company will furnish to CSFB copies of any Preliminary
Offering Circular, the Offering Document and all amendments and
supplements to such documents, in each case as soon as available and in
such quantities as CSFB reasonably requests, and the Company will
furnish to CSFB on the Closing Date, one copy of the Offering Document
certified by a duly authorized officer of the Company. At any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act
and is not exempt from reporting pursuant to Rule 12g3-2(b) under the
Exchange Act, the Company will promptly furnish or cause to be
furnished to CSFB upon request (and, upon request, to each of the other
Purchasers) and, upon request of holders and prospective purchasers of
the Offered Securities, to such holders and purchasers, copies of the
information required to be delivered to holders and prospective
purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under
the Securities Act (or any successor provision thereto) in order to
permit compliance with Rule 144A in connection with resales by such
holders of the Offered Securities. The Company will pay the expenses of
printing and distributing to the Purchasers all such documents.
(c) Each of the Company and the Guarantors will use its
reasonable best efforts to arrange for the qualification of the Offered
Securities and the Guarantees for sale and the determination of their
eligibility for investment under the laws of such jurisdictions in the
United States as CSFB designates and will continue such qualifications
in effect so long as required for the resale of the Offered Securities
by the Purchasers, provided that the Company will not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any such state,
11
which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(d) During the period of two years after the Closing Date, the
Company will, upon request, furnish to CSFB, each of the other
Purchasers and any holder of Offered Securities a copy of the
restrictions on transfer applicable to the Offered Securities.
(e) During the period of two years after the Closing Date, the
Company will not, and, to the best of its ability, will not permit any
of its affiliates (as defined in Rule 144 under the Securities Act) to,
resell any of the Offered Securities that have been reacquired by it,
if after such resale, the Offered Securities would be "restricted
securities" as defined in Rule 144A.
(f) During the period of two years after the Closing Date, the
Company will not be or become, an open-end investment company, unit
investment trust or face-amount certificate company that is or is
required to be registered under Section 8 of the Investment Company
Act.
(g) The Company will pay all expenses (together with VAT where
applicable) incidental to the performance of its obligations under this
Agreement, the Indenture and Registration Rights Agreement, including
(i) the fees and expenses of the Trustee and its professional advisers;
(ii) all expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the Offered
Securities, the Guarantees and, as applicable, the Exchange Securities
(as defined in the Registration Rights Agreement), the preparation and
printing by the Company of this Agreement, the Registration Rights
Agreement, the Offered Securities, the Guarantees, the Indenture, the
Offering Document and amendments and supplements thereto, and any other
document relating to the issuance, offer, sale and delivery of the
Offered Securities, the Guarantees and as applicable, the Exchange
Securities; (iii) the cost of listing the Offered Securities and
qualifying the Offered Securities and Guarantees for trading in The
PortalSM Market ("PORTAL") and any expenses incidental thereto; (iv)
for any expenses (including the reasonable fees and disbursements of
counsel) incurred in connection with qualification of the Offered
Securities, the Guarantees or the Exchange Securities for sale under
the laws of such jurisdictions in the United States and Canada as CSFB
designates (subject to Section 5(c)) and the printing of memoranda
relating thereto; (v) for any fees charged by investment rating
agencies for the rating of the Securities or the Exchange Securities,
and (vi) for expenses incurred in distributing preliminary offering
circulars and the Offering Document (including any amendments and
supplements thereto) to the Purchasers. The Company will also pay or
reimburse the Purchasers (to the extent incurred by them) for all
travel expenses of the Purchasers and the Company's officers and
employees and any other expenses of the Purchasers and the Company in
connection with attending or hosting meetings with prospective
purchasers of the Offered Securities from the Purchasers.
(h) In connection with the offering, until CSFB shall have
notified the Company and the other Purchasers of the completion of the
resale of the Offered Securities, neither the Company nor any of its
affiliates has or will, either alone or with one or more other persons,
bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest any Offered Securities or attempt
to induce any person to purchase any Offered Securities; and neither it
nor any of its affiliates will make bids or purchases for the purpose
of creating actual, or apparent, active trading in, or of raising the
price of, the Offered Securities .
(i) Except as contemplated by this Agreement and the
Registration Rights Agreement, for a period of 90 days after the date
of the initial offering of the Offered Securities by the Purchasers,
the Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any United States
dollar-denominated debt securities issued or guaranteed by the Company
and having a
12
maturity of more than one year from the date of issue, or publicly
disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of CSFB, which
consent shall not be unreasonably withheld or delayed. Each of the
Company will not at any time offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any securities under
circumstances where such offer, sale, pledge, contract or disposition
would cause the exemption afforded by Section 4(2) of the Securities
Act or the safe harbor of Regulation S thereunder to cease to be
applicable to the offer and sale of the Offered Securities.
(j) The Company will indemnify and hold harmless the
Purchasers against any documentary, stamp or similar issuance tax,
including any interest and penalties, on the creation, issuance and
sale of the Offered Securities and on the execution and delivery of
this Agreement. All payments to be made by the Company hereunder shall
be made without withholding or deduction for or on account of any
present or future taxes, duties or governmental charges imposed under
the laws of Canada or the laws of Ontario whatsoever unless the Company
is compelled by law to deduct or withhold such taxes, duties or
charges. In that event, the Company shall pay such additional amounts
as may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been
received if no withholding or deduction had been made, except where
such deduction or withholding was required because the Purchaser is, or
is deemed to be, a resident of Canada, does not deal at arm's length
with the Company or has rendered services to the Company in Canada.
6. Conditions of the Obligations of the Purchasers. The obligations of
the several Purchasers to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company and the Guarantors herein, to the accuracy of the statements of officers
of the Company and the Guarantors made pursuant to the provisions hereof, to the
performance by the Company and the Guarantors of their obligations hereunder and
to the following additional conditions precedent:
(a) The Purchasers shall have received a letter, dated the
date of this Agreement, of PricewaterhouseCoopers LLP, confirming that
they are independent public accountants within the meaning of the
Securities Act and the applicable published rules and regulations
thereunder ("RULES AND REGULATIONS") and to the effect that:
(i) in their opinion the consolidated financial
statements examined by them and included in the Offering
Document, as prepared in accordance U.S. generally accepted
accounting principles, comply as to form in all material
respects with the applicable accounting requirements of the
Securities Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 100, Interim Financial
Information and as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on any
unaudited financial statements included in the Offering
Document;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
consolidated financial statements of the Company, inquiries of
officials of the Company who have responsibility for financial
and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements
included in the Offering Document do not comply as to
form in all material respects with the applicable
13
accounting requirements of the Securities Act and the
related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with U.S. generally accepted accounting
principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the share capital or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Offering Document; or
(C) for the period from the closing date of
the latest income statement included in the Offering
Document to the closing date of the latest available
income statement read by such accountants there were
any decreases, as compared with the corresponding
period of the previous year and with the period of
corresponding length ended the date of the latest
income statement included in the Offering Document,
in consolidated net sales, net operating income,
income before extraordinary items, net income or in
the ratio of earnings to fixed charges;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Offering Document
disclose have occurred or may occur or which are described in
such letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Offering Document (to
the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries subject to the
internal controls of the Company's accounting system or are
derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such
general accounting records and other procedures specified in
such letter and have found such dollar amounts, percentages
and other financial information to be in agreement with such
results, except as otherwise specified in such letter.
(b) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
reasonable judgment of a majority in interest of the Purchasers
including CSFB, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the offering or the sale of
and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public announcement that
any such organization has under surveillance or review its rating of
any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating) or any announcement that the
Company has been placed on negative outlook; (iii) any change in U.S.,
Canada, or international financial, political or economic conditions or
currency exchange rates or exchange controls as would, in the
reasonable judgment of a majority in interest of the Purchasers
including CSFB, be likely to prejudice materially the success of the
proposed issue, sale or distribution of the Offered Securities, whether
in the primary market or in respect of dealings in the
14
secondary market, (iv) any material suspension or material limitation
of trading in securities generally on the New York Stock Exchange or
the NASDAQ National Market, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (v) any banking moratorium declared by U.S. Federal or New York
authorities; (vi) any major disruption of settlements of securities or
clearance services in the United States or (vii) any attack on,
outbreak or escalation of hostilities or act of terrorism involving the
United States or Canada, any declaration of war by Congress, the
Canadian Prime Minister and/or Parliament or any other national or
international calamity or emergency if, in the reasonable judgment of a
majority in interest of the Purchasers including CSFB, the effect of
any such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with
completion of the offering or sale of and payment for the Offered
Securities.
(c) The Purchasers shall have received an opinion, dated the
Closing Date, of Shearman & Sterling LLP, special United States counsel
for the Company and the Guarantors, that:
(i) This Agreement has been duly authorized, executed
and delivered by each of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Productions 70MM Inc.,
IMAX II U.S.A. Inc., IMAX Minnesota Holding Co., IMAX Scribe
Inc., IMAX Theatre Holding Co., IMAX Theatre Holdings (OEI)
Inc., IMAX Theatre Management Company, IMAX U.S.A. Inc.,
Ridefilm Corporation, IMAX (Titanic) Inc., IMAX Film Holding
Co., IMAX Pictures Corporation, Immersive Entertainment Inc.,
IMAX Providence General Partner Co., IMAX Providence Limited
Partner Co., IMAX Theatre Holding (California I) Co., IMAX
Theatre Holding (California II) Co., IMAX Theatre Holding
(Nyack I) Co., IMAX Theatre Holding (Nyack II) Co., Panda
Productions Inc. and Strategic Sponsorship Corporation (each,
a "DELAWARE CORPORATE SUBSIDIARY" and, together, the "DELAWARE
CORPORATE Subsidiaries") and by Nyack Theatre LLC (the "NEW
YORK SUBSIDIARY"), and assuming (i) the due authorization,
execution and delivery of this Agreement by the Company and
IMAX Sandde Animation Inc., IMAX Space Ltd., IMAX Theatre
Services Ltd., Mitey Cinema Inc., Mountainview Theatre
Management Ltd., Starboard Theatres Ltd., Wire Frame Films
Ltd., 1329507 Ontario Inc., 924689 Ontario Inc., IMAX
(Titanica) Ltd., IMAX Music Ltd., IMAX Theatre Holding
(▇▇▇▇▇▇▇▇▇) Inc., Tantus Films Ltd., Tantus II Films Ltd. and
RPM Pictures Ltd. (each, a "CANADIAN SUBSIDIARY" and,
together, the "CANADIAN SUBSIDIARIES") under the laws of
Ontario and Alberta and the federal laws of Canada applicable
therein ("CANADIAN LAW"), (ii) the due authorization,
execution and delivery by Miami Theatre LLC, Sacramento
Theatre LLC and IMAX Chicago Theatre LLC (each, a "DELAWARE
LLC SUBSIDIARY" and together, the "DELAWARE LLC SUBSIDIARIES")
under the laws of Delaware and (iii) the due authorization,
execution and delivery by each of the Non-Delaware
Subsidiaries (as defined below) under the laws of each of
their respective jurisdictions of incorporation or formation,
as applicable, this Agreement (to the extent that execution
and delivery are governed by the laws of the State of New
York) has been executed and delivered by the Company and each
of the Guarantors;
(ii) The Registration Rights Agreement has been duly
authorized, executed and delivered by each of the Delaware
Corporate Subsidiaries and the New York Subsidiary, and
assuming (i) the due authorization, execution and delivery of
the Registration Rights Agreement by the Company and each of
the Canadian Subsidiaries under Canadian Law, (ii) the due
authorization, execution and delivery of the Registration
Rights Agreement by the Delaware LLC Subsidiaries under the
laws of Delaware and (iii) the due authorization, execution
and delivery of the Registration Rights Agreement by the
Non-Delaware Subsidiaries under the laws of each of their
respective jurisdictions of incorporation or formation, as
applicable, the Registration Rights Agreement (to the extent
15
that execution and delivery are governed by the laws of the
State of New York) has been executed and delivered by the
Company, each of the Canadian Subsidiaries, each of the
Delaware LLC Subsidiaries and each of the Non-Delaware
Subsidiaries, and constitutes a valid and binding instrument
of the Company and each of the Guarantors, enforceable against
the Company and each of the Guarantors in accordance with its
terms, subject, as to enforcement, as to the effect of any
applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and subject to the
effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether enforcement is
considered in a proceeding in equity or at law), and except
that rights to indemnification or contribution may not be
enforceable due to the application of federal or state
securities laws or public policy relating thereto;
(iii) The Indenture has been duly authorized,
executed and delivered by each of the Delaware Corporate
Subsidiaries and the New York Subsidiary, and assuming (i) the
due authorization, execution and delivery of the Indenture by
the Company and each of the Canadian Subsidiaries under
Canadian Law, (ii) the due authorization, execution and
delivery of the Indenture by each of the Delaware LLC
Subsidiaries under the laws of Delaware, (iii) the due
authorization, execution and delivery of the Indenture by each
of the Non-Delaware Subsidiaries under the laws of each of
their respective jurisdictions of incorporation or formation,
as applicable, and (iv) due authorization, execution, and
delivery of the Indenture by the Trustee, the Indenture (to
the extent that execution and delivery are governed by the
laws of the State of New York) has been executed and delivered
by the Company and each of the Guarantors and constitutes a
valid and binding instrument of the Company and each of the
Guarantors, enforceable against the Company and each of the
Guarantors in accordance with its terms, subject, as to
enforcement, as to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and subject to the effect of general principles of
equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether enforcement is considered in a
proceeding in equity or at law);
(iv) The Offered Securities conform to the
description thereof contained in the Offering Document and
assuming the due authorization, execution and delivery of the
Offered Securities by the Company under Canadian Law, and
assuming the due authentication of the Offered Securities by
the Trustee in the manner described in its certificate (which
fact such counsel need not have determined by an inspection of
the Offered Securities), the Offered Securities (to the extent
that execution and delivery are governed by the laws of the
State of New York) have been executed and delivered by the
Company and constitute valid and binding obligations of the
Company, enforceable against the Company in accordance with
their terms, subject, as to enforcement, as to the effect of
any applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and subject to the
effect of general principles of equity, including, without
limitation, concepts of materiality, reasonableness, good
faith and fair dealing (regardless of whether enforcement is
considered in a proceeding in equity or at law);
(v) The Guarantees have been duly authorized by the
Delaware Corporate Subsidiaries and the New York Subsidiary.
Assuming (i) the due authorization,
16
execution and delivery of the Guarantees by the Canadian
Subsidiaries under Canadian Law, (ii) the due authorization,
execution and delivery of the Guarantees by the Delaware LLC
Subsidiaries under the laws of Delaware and (iii) the due
authorization, execution and delivery of the Guarantees by the
Non-Delaware Subsidiaries under the laws of each of their
respective jurisdictions of incorporation or formation, as
applicable, the Guarantees endorsed on the Offered Securities
(to the extent execution and delivery are governed by the laws
of the State of New York) have been executed and delivered by
the Guarantors and, assuming the Indenture has been executed
and the Offered Securities have been duly authenticated by the
Trustee in accordance with the terms of the Indenture and
delivered to and paid for by the Purchasers in accordance with
the terms of this Agreement, will be the valid and legally
binding obligations of each Guarantor, enforceable against
each Guarantor in accordance with their terms, subject, as to
enforcement, as to the effect of any applicable bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights
generally and subject to the effect of general principles of
equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing
(regardless of whether enforcement is considered in a
proceeding in equity or at law);
(vi) The statements set forth in the Offering
Circular under the caption (a) "Description of the Notes",
insofar as they purport to constitute a summary of the terms
of the Offered Securities, the Indenture and the Registration
Rights Agreement described therein, fairly summarize such
terms in all material respects, and (b) "Certain Federal
Income Tax Considerations - U.S. Federal Income Tax
Considerations," insofar as they purport to describe the
provisions of the laws or documents referred to therein,
fairly summarize such laws or documents in all material
respects;
(vii) Assuming (a) the accuracy of and compliance
with the representations, warranties and covenants of the
Company and the Guarantors in this Agreement and (b) the
accuracy of and compliance with the representations,
warranties and covenants of the Purchasers in this Agreement,
no registration of the Offered Securities under the Securities
Act and no qualification of an indenture under the Trust
Indenture Act with respect thereto, is required in connection
with the offer, sale and delivery of the Offered Securities to
the Purchasers and the initial resale of the Offered
Securities by the Purchasers in the manner contemplated by the
this Agreement and the Offering Circular (it being understood
that such counsel does not express any opinion as to any
subsequent resale of any of the Offered Securities);
(viii) Neither the Company nor any of the Guarantors
are or, after giving effect to the offering and sale of the
Offered Securities, will be required to be registered as an
"investment company", as such term is defined in the
Investment Company Act;
(ix) No consent, approval, authorization, order,
registration or qualification of or with any United States
federal of New York State court or governmental agency or body
is required for the issue and sale of the Offered Securities
or the Guarantees by the Company and the Guarantors, the
resale of the Offered Securities by the Purchasers or the
consummation by the Company and the Guarantors of the
transactions contemplated by the Purchase Agreement, the
Indenture or the Registration Rights Agreement, except as
required under the Securities Act and the Trust Indenture Act
in connection with the Registration Rights Agreement and
applicable state securities or blue sky laws;
17
(x) The execution, delivery and performance of the
Indenture, this Agreement and the Registration Rights
Agreement and the issuance and sale of the Offered Securities
and the Guarantees and compliance with the terms and
provisions thereof will not result in (a) a breach of, or
constitute a default under, any of the provisions of the
Indenture, dated as of December 4, 1998 between the Company
and U.S. Bank Trust National Association, as trustee, relating
to the Company's $200,000,000 of aggregate principal amount 7
7/8% Senior Notes due December 1, 2005, as supplemented by the
First Supplemental Indenture to be dated prior to or on the
Closing Date between the Company and U.S. Bank Trust National
Association, as trustee, or (b) contravene any United States
federal or New York law, rule or regulation applicable to the
Company, or any order identified to us by the Company
applicable to the Company of any court or of any other United
States federal or New York State governmental body or
instrumentality having jurisdiction over it or any of its
property (it being understood that for the purpose of the
opinion in this paragraph (xiii), we are not passing upon
compliance with respect to antifraud or similar provisions of
any law, rule or regulation); and
(xi) Assuming the due authorization, execution and
delivery of the this Agreement, the Indenture and the
Registration Rights Agreement by the Company under Canadian
Law, the submission by the Company to the non-exclusive
jurisdiction of the courts of the State of New York pursuant
to Section 14 of this Agreement, pursuant to Section 112 of
the Indenture and Section 9 of the Registration Rights
Agreement is effective. Such counsel shall note that a court
of the State of New York or the United States of America
sitting in New York County has the power to decline to hear an
action based on this Agreement, the Indenture or the
Registration Rights Agreement on the ground that the State of
New York is an inconvenient forum.
In addition, such counsel will state in a separate letter that it has
no reason to believe that the Offering Circular, or any amendment or supplement
thereto, as of the date hereof and as of the Closing Date, contained or contains
any untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no opinion as to
the financial statements or other financial data contained in or omitted from
Offering Circular.
(d) The Purchasers shall have received an opinion,
dated such Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Canadian counsel for
the Company and the Canadian Subsidiaries, to the effect that:
(i) The Company has been duly amalgamated and is
validly existing under the federal laws of Canada, with
corporate power and authority to own its properties and
conduct its business as described in the Offering Circular;
and the Company is duly licensed to do business as an
extra-provincial corporation in good standing in all Canadian
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such licenses;
(ii) Each of the Canadian Subsidiaries has been duly
incorporated and is validly existing under the federal laws of
Canada, the laws of Ontario or the laws of Alberta, as the
case may be, with corporate power and authority to own its
properties and conduct its business as described in the
Offering Circular; and each Canadian Subsidiary is duly
licensed to do business as an extra-provincial corporation in
good standing in all Canadian jurisdictions in which its
ownership or lease of property or the conduct of its
18
business requires such license; based solely on an officer's
certificate, all of the issued and outstanding capital stock
of each Canadian Subsidiary has been duly authorized and
validly issued and is fully paid and nonassessable;
(iii) Except for those that have been obtained, no
authorization, approval, permit, consent, license,
registration, filing, order, qualification or exemption of any
Canadian federal or Ontario government, governmental
instrumentality or court is required for (A) the valid
authorization, issuance, sale and delivery by the Company to
the Purchasers of the Offered Securities in the United States
and (B) the valid execution and delivery of, and the
performance by the Company of its obligations, under this
Agreement, the Registration Rights Agreement or the Indenture;
(iv) The statements set forth in the Offering
Circular, under the headings "Risk Factors -- Risks Related to
the Notes -- Certain bankruptcy and insolvency laws may impair
the trustee's ability to enforce remedies under the notes,"
"Risk Factors -- Risks Related to Our Business -- Because we
are incorporated in Canada, it may be difficult for you to
enforce against us liabilities based solely on U.S. federal
securities laws," "Certain Federal Income Tax Considerations
-- Canadian Federal Income Tax Considerations," insofar as
such statements purport to describe matters of Canadian
federal law, provide an accurate summary thereof, in all
material respects, subject to the qualifications and
limitations referred to therein;
(v) The execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the
Indenture, and the issuance and sale of the Offered Securities
to the Purchasers in the United States, in each case, by the
Company will not result in a breach or violation, or
constitute a default under, any applicable Canadian federal or
Ontario statute, rule, or regulation, or the articles or
by-laws of the Company, and the Company has the corporate
power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement, the Registration
Rights Agreement and the Indenture;
(vi) The execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the Indenture
and the issuance of the Guarantees, in each case, by each of
the Canadian Subsidiaries will not result in a breach or
violation, or constitute a default under, any applicable
Canadian federal or Ontario statute, rule, or regulation, or
the articles or by-laws of each of the Canadian Subsidiaries,
and each of the Canadian Subsidiaries has the corporate power
and authority to authorize, issue and deliver the Guarantees
as contemplated by this Agreement, the Registration Rights
Agreement and the Indenture;
(vii) To such counsel's knowledge, no order having
the effect of ceasing or suspending the distribution of the
Offered Securities has been issued by any securities
commission or securities regulatory authority in Canada and no
proceedings for that purpose have been instituted or are
pending;
(viii) The Company is not, to such counsel's
knowledge, on any list of defaulting reporting issuers
maintained under the securities legislation of any Canadian
province that provides for a reporting issuer regime;
(ix) The Indenture is exempt from the trust indenture
requirements of Part VIII of the Canada Business Corporations
Act, including the requirement that the trustee under the
Indenture be a body corporate incorporated under the laws of
Canada or a
19
province and authorized to carry on the business of a trust
company. No registration, filing or recording of the Indenture
under the federal laws of Canada is necessary in order to
preserve or protect the validity or enforceability of the
Indenture or the Offered Securities issued thereunder;
(x) Except as disclosed in the Offering Document,
under current Canadian federal and Ontario laws and
regulations, all interest, principal, premium, if any, and
other payments due or made on the Offered Securities may be
paid by the Company to the holder thereof in United States
dollars or Canadian dollars that may be converted into foreign
currency and freely transferred out of Canada and no such
payments made to holders thereof who are Holders as defined in
the Offering Circular under the heading "Certain Federal
Income Tax Considerations -- Canadian Federal Income Tax
Considerations" will be subject to income, withholding or
other taxes under the laws and regulations of Canada or
Ontario and all such payments will otherwise be free and clear
of any other Canadian federal or Ontario tax, duty,
withholding or deduction and without the necessity of
obtaining any Canadian federal or Ontario governmental
authorization;
(xi) Provided that a Purchaser is a Holder as defined
in the Offering Circular under the heading "Certain Federal
Income Tax Considerations -- Canadian Federal Income Tax
Considerations" and does not provide services in Canada, no
stamp tax or other issuance, goods and services or transfer
taxes or duties and no capital gains, income, withholding or
other taxes are payable by or on behalf of the Purchasers to
any Canadian federal or Ontario taxing authority in connection
with (A) the creation, issuance, sale and delivery of the
Offered Securities to the Purchasers in the manner
contemplated in this Agreement, the Registration Rights
Agreement and the Indenture; or (B) the resale and delivery of
such Offered Securities by the Purchasers outside of Canada in
the manner contemplated in this Agreement, the Registration
Rights Agreement and the Indenture;
(xii) A court of competent jurisdiction in the
Province of Ontario (an "Ontario Court") would give effect to
the choice of the laws of the State of New York ("New York
Law") as the proper law governing this Agreement, the
Registration Rights Agreement, the Indenture and the Offered
Securities provided that such choice of law is bona fide (in
the sense that it was not make with a view to avoiding the
consequences of the laws of any other jurisdiction) and
provided that such choice of New York Law is not contrary to
public policy, as that term is applied by an Ontario Court;
(xiii) There are no reasons under the laws of the
Province of Ontario or the federal laws of Canada applicable
therein for avoiding on public policy grounds the choice of
New York Law to govern this Agreement, the Registration Rights
Agreement, the Indenture or the Offered Securities;
(xiv) If this Agreement, the Registration Rights
Agreement, the Indenture or the Offered Securities are sought
to be enforced in the Province of Ontario in accordance with
the laws applicable thereto as chosen by the parties, namely
New York Law, and an Ontario Court recognized the choice of
New York Law, an Ontario Court would, upon appropriate
evidence as to such law being adduced, apply such law in the
enforcement of this Agreement, the Registration Rights
Agreement, the Indenture or the Offered Securities, provided
that none of the provisions of this Agreement, the
Registration Rights Agreement, the Indenture or the Offered
Securities, as the case may be, or of applicable New York Law
is contrary to public policy as that term is applied by an
Ontario Court; provided, however, that, in matters of
procedure, the laws of the Province of Ontario will be
applied, and an Ontario Court will retain discretion to
decline to hear such action if it is contrary to public
20
policy, as that term is applied by an Ontario Court, for it to
do so; or if it is not the proper forum to hear such an
action, or if concurrent proceedings are being brought
elsewhere;
(xv) The laws of the Province of Ontario and the
federal laws of Canada applicable therein permit an action to
be brought before an Ontario Court on a final and conclusive
judgment in personam of a New York Court respecting the
enforcement of this Agreement, the Registration Rights
Agreement or the Indenture that is not impeachable as void or
voidable or otherwise ineffective under New York Law and for a
sum certain if: (a) the New York Court rendering such judgment
had jurisdiction over the Company, as recognized by an Ontario
Court; (b) such judgment was not obtained by fraud or in a
manner contrary to natural justice or other rule of law,
whether equitable, legal or statutory, and the enforcement
thereof would not be inconsistent with public policy as such
term is understood under the laws of the Province of Ontario
or contrary to any order made by the Attorney General of
Canada under the Foreign Extraterritorial Measures Act
(Canada) or by the Competition Tribunal under the Competition
Act (Canada); (c) the enforcement of such judgment does not
constitute, directly or indirectly, the enforcement of foreign
revenue, public or penal laws; and (d) the action to enforce
such judgment is commenced within the applicable limitation
period;
(xvi) To such counsel's knowledge, other than as set
out in the Offering Document, there is not pending or
threatened any action, suit, proceeding, inquiry, or
investigation, to which the Company is a party, or to which
the property of the Company is subject, before or brought by
any court or governmental agency or body in Canada which,
individually or in the aggregate, would result in a Material
Adverse Effect, or which would materially and adversely affect
the properties or assets of the Company or the consummation of
the transactions contemplated in this Agreement, the
Registration Rights Agreement and the Indenture or the
performance by the Company of its obligations thereunder;
(xvii) Each of this Agreement, the Registration
Rights Agreement and the Indenture has been duly authorized by
all necessary corporate action on the part of the Company and
each of the Canadian Subsidiaries to the extent that they are
governed by the federal law of Canada or the laws of Ontario
and to the extent that execution and delivery are matters
governed by Canadian federal or Ontario law, each of this
Agreement, the Registration Rights Agreement and the Indenture
have been executed and delivered by the Company and each
Canadian Subsidiary;
(xviii) The Offered Securities have been duly
authorized for issuance by all necessary corporate action on
the part of the Company, and assuming due authorization and
authentication of the Offered Securities by the trustee in
accordance with the Indenture and receipt in full of the
consideration for the issuance, the Offered Securities have
been duly issued and, to the extent that execution and
delivery are matters governed by Canadian federal or Ontario
law, the global certificate representing the Offered
Securities has been duly executed and delivered by the
Company;
(xix) The Guarantees have been duly authorized by all
necessary corporate action on the part of the Canadian
Subsidiaries and, to the extent that execution and delivery
are matters governed by Canadian federal or Ontario law, the
Guarantees have been duly executed and delivered by each of
the Canadian Subsidiaries;
(xx) No withholding tax imposed under the federal
laws of Canada or the laws of Ontario will be payable in
respect of the payment or crediting of the commissions
21
contemplated by this Agreement by the Company to a Purchaser
that is not, and is not deemed to be, a resident of Canada for
the purposes of the Income Tax Act (Canada), or of any
interest or deemed interest on the resale of Offered
Securities by a Purchaser to U.S. residents provided that the
Purchaser deals at arm's length with the Company (as such term
is understood for purposes of the Income Tax Act (Canada)),
and that such commissions are payable in respect of services
rendered by the Purchaser wholly outside of Canada that are
performed in the ordinary course of business carried on by the
Purchaser outside of Canada that includes the performance of
such services for a fee; and
(xxi) No goods and services tax imposed under the
federal laws of Canada or retail sales taxes imposed under the
laws of the Province of Ontario will be payable by the Company
or collectable by a Purchaser in respect of the payment of
commissions as contemplated by this Agreement to a Purchaser
that is a non-resident of Canada, provided that such
commissions are in respect of services performed by a
Purchaser wholly outside of Canada.
In addition, such counsel will state in a separate letter that
it has no reason to believe that the Offering Circular, or any
amendment or supplement thereto, as of the date hereof and as of the
Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary to make the statements
therein not misleading; it being understood that such counsel need
express no view as to the financial statements or other financial or
statistical data contained in or omitted from the Offering Circular and
that counsel's view will be based solely on Ontario law and its
involvement as Canadian counsel.
(e) The Purchasers shall have received an opinion, dated the
Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel to the Company, that:
(i) Each of Delaware Corporate Subsidiaries and each
of the Delaware LLC Subsidiaries (together with the Delaware
Corporate Subsidiaries, the "DELAWARE SUBSIDIARIES") and the
New York Subsidiary have been, to such counsel's knowledge,
duly incorporated or formed and is an existing corporation, or
other business organization, and is in good standing under the
laws of the jurisdiction of its incorporation or organization,
as the case may be, with all requisite power and authority
(corporate or otherwise) to own its properties and conduct its
business as described in the Offering Document; the Company
owns all of the issued and outstanding capital stock of each
of the Delaware Corporate Subsidiaries.
(ii) The execution, delivery and performance of this
Agreement, the Registration Rights Agreement, the Indenture
and the Guarantees to be endorsed on the by each of the
Delaware LLC Subsidiaries have been duly authorized by all
necessary corporate or other action on the part of each
Delaware LLC Subsidiary;
(iii) The execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the Indenture
and the issuance of the Guarantees, in each case, by each of
the Delaware Subsidiaries and the New York Subsidiary will not
result in a breach or violation, or constitute a default
under, (i) any statute, rule, or regulation, or order of any
governmental agency or body or any court, domestic or foreign,
having jurisdiction over any Delaware Subsidiary or the New
York Subsidiary or any of their respective properties, (ii)
any material agreement or instrument to which the Delaware
Subsidiary is a part or by which any such Delaware Subsidiary
or the New York Subsidiary is subject, or (iii) the charter or
by-laws or limited liability company agreement, as applicable,
of each of the Delaware Subsidiaries and the New York
Subsidiary, except in
22
the case of clauses (i) and (ii), where such breach, violation
or default would not individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and
each of the Delaware Subsidiaries and the New York Subsidiary
has the full power and authority to authorize, issue and
deliver the Guarantees as contemplated by this Agreement, the
Registration Rights Agreement and the Indenture;
(iv) Other than the Registration Rights Agreement, to
such counsel's knowledge after reasonable investigation, there
are no contracts, agreements or understandings between the
Company or any Guarantor and any person granting such person
the right to require the Company or any Guarantor to file a
registration statement under the Securities Act with respect
to any securities of the Company or any Guarantor or to
require the Company or any Guarantor to include such
securities with the Securities registered pursuant to any
Registration Statement;
(v) To such counsel's knowledge, except as disclosed
in the Offering Document, there are no pending, threatened or
contemplated actions, suits, proceedings, inquiries, or
investigations against or affecting any subsidiary or any of
their respective properties that, if determined adversely to
any subsidiary, would reasonably be expected to, individually
or in the aggregate, have a Material Adverse Effect, or would
materially and adversely affect the ability of the Company or
the Guarantors to perform their obligations under this
Agreement, the Registration Rights Agreement and the
Indenture;
(f) The Purchasers shall have received an opinion, dated the
Closing Date, of Sirote & Permutt, P.C., special Alabama counsel to
Sonics Associates, Inc., of Jaburg & ▇▇▇▇, P.C., special Arizona
counsel to IMAX Theatre Management (Scottsdale), Inc., of ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, P.C., special Indiana counsel to IMAX Indianapolis LLC,
of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special Nevada counsel to IMAX Forum Ride,
Inc. and of Cameron & ▇▇▇▇▇▇▇▇▇ LLP, special Rhode Island counsel to
IMAX Rhode Island Limited Partnership (each the "NON-DELAWARE
GUARANTOR"), that, as applicable:
(i) The Non-Delaware Guarantor has been duly
incorporated or formed and is an existing corporation or other business
organization, in good standing under the laws of the jurisdiction of
its incorporation or organization, as the case may be, with all
requisite power and authority (corporate or otherwise) to own its
properties and conduct its business as described in the Offering
Document;
(ii) The execution, delivery and performance of this
Agreement, the Registration Rights Agreement, the Indenture and the
Guarantee by the Non-Delaware Guarantor have been duly authorized by
all necessary corporate or other action on the part of the Non-Delaware
Guarantor; and
(iii) The execution, delivery and performance of this
Agreement, the Registration Rights Agreement and the Indenture, and the
issuance of the Guarantees, in each case, by the Non-Delaware Guarantor
will not result in a breach or violation, or constitute a default under
any U.S. federal or applicable state statute, rule, or regulation, or
the articles or formation documents or by-laws or organizational
documents of each of the Non-Delaware Guarantor.
(g) The Purchasers shall have received from Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Purchasers, such opinion or
opinions, dated the Closing Date, with respect to the validity of the
Offered Securities, the Offering Circular, the exemption from
registration for the offer and sale of the Offered Securities by the
Company to the several Purchasers and the resales by the several
Purchasers as contemplated hereby and other related matters as CSFB may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably
23
request for the purpose of enabling them to pass upon such matters. In
rendering such opinion, Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP may
rely as to the incorporation of the Company and all other matters
governed by Canadian law upon the opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
referred to above.
(h) The Purchasers shall have received from Osler, ▇▇▇▇▇▇ &
Harcourt LLP, Canadian counsel for the Purchasers, such opinion, dated
the Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities and such matters as CSFB may
reasonably require, and the Company shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass on such matters.
(i) The Purchasers shall have received a certificate, dated
the Closing Date, of one of the Co-Chief Executive Officers and the
Chief Financial Officer of the Company and each Guarantor in which such
officers, to the best of their knowledge, shall state that the
representations and warranties of the Company and the Guarantors in
this Agreement are true and correct as of such Closing Date, that the
Company and the Guarantors have complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to the Closing Date, and that, subsequent to the
date of this Agreement there has been no material adverse change, nor
any development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties or
results of operations of the Company and the subsidiaries taken as a
whole except as described in such certificate.
(j) The Purchasers shall have received a letter, dated the
Closing Date, of PricewaterhouseCoopers LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three business days prior to the Closing Date for the purposes of
this subsection.
(k) The Registration Rights Agreement shall have been signed
and delivered on the Closing Date by the Company and each of the
Guarantors.
Documents described as being "in the agreed form" are documents which
are in the forms which have been initialed for the purpose of identification by
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, copies of which are held by the
Company and CSFB, with such changes as CSFB may approve.
The Company will furnish the Purchasers with such conformed copies of
such opinions, certificates, letters and documents as the Purchasers reasonably
request. CSFB may in its sole discretion waive on behalf of the Purchasers
compliance with any conditions to the obligations of the Purchasers hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company and the Guarantors
will indemnify and hold harmless each Purchaser, its partners, directors and
officers and each person, if any, who controls such Purchaser within the meaning
of Section 15 of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such Purchaser may become subject, under
the Securities Act or the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Offering Document, or any amendment or supplement thereto,
or any related preliminary offering circular or arise out of or are based upon
the omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, including any losses, claims, damages or
liabilities arising out of or based upon the Company's or any Guarantor's
failure to perform its obligations under Section 5(a) of this Agreement, and
will reimburse each Purchaser for any legal or other expenses reasonably
incurred by such Purchaser in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses
24
are incurred; provided, however, that neither the Company nor any of the
Guarantors will be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Purchaser through CSFB specifically for use therein, it
being understood and agreed that the only such information consists of the
information described as such in subsection (b) below; provided, further,
however, that the foregoing indemnity agreement with respect to losses, claims,
damages or liabilities shall not inure to the benefit of any Purchaser (or any
person controlling any Purchaser) with respect to any losses, claims, damages
arising out of or based upon (x) any untrue statement or alleged untrue
statement of any material fact in the Offering Document or (y) the omission or
alleged omission to state in the Offering Document a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, if: (1) the Company furnished sufficient copies
of the Offering Document or an amended Offering Document on a timely basis to
permit delivery of the Offering Document or an amended Offering Document to all
persons purchasing notes from the Purchasers in the initial resale of such notes
(such person "Initial Resale Purchasers") at or prior to the written
confirmation of the sale of the Offered Securities to such person; (2) the
Initial Resale Purchaser asserting such losses, claims, damages or liabilities
purchased Offered Securities in the initial resale from the Purchasers and a
copy of the Offering Document or an amended Offering Document was not sent or
given by or on behalf of such Purchaser to such Initial Resale Purchaser; and
(3) the Offering Document or an amended Offering Document would have cured the
defect giving rise to such losses, claims, damages or liabilities.
(b) Each Purchaser will severally and not jointly indemnify
and hold harmless the Company, the Guarantors, their respective directors and
officers and each person, if any, who controls the Company or the Guarantors
within the meaning of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities to which the Company may become subject, under
the Securities Act or the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Offering Document, or any amendment or supplement thereto,
or any related preliminary offering circular, or arise out of or are based upon
the omission or the alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Purchaser through CSFB specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Purchaser consists of (i) the following information
in the Offering Document furnished on behalf of each Purchaser: under the
caption "Plan of Distribution" paragraphs three, seven, eleven and thirteen, the
third sentence of the tenth paragraph and the second sentence of the twelfth
paragraph; provided, however, that the Purchasers shall not be liable for any
losses, claims, damages or liabilities arising out of or based upon the
Company's failure to perform its obligations under Section 5(a) of this
Agreement.
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a) or (b) above
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party
25
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party (which consent
shall not be unreasonably withheld), effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes (i) an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to or an admission of
fault, culpability or failure to act by or on behalf of any indemnified party.
No indemnified party shall, without the prior written consent of the
indemnifying party, effect any settlement or compromise of, or consent to the
entry of any judgment with respect to any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnifying party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or failure to act by or on behalf of any
indemnifying party, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by this Section 7(c), the
indemnified party may effect a settlement or compromise of, or consent to the
entry of any judgment with respect to any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
without the consent of the indemnifying party and the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement; provided that an
indemnifying party shall not be liable for any such settlement effected without
its consent it such indemnifying party, prior to the date of such settlement,
(1) reimburses such indemnified party in accordance with such request for the
amount of such fees and expenses of counsel as the indemnifying party believes
in good faith to be reasonable, and (2) provides written notice to the
indemnified party that the indemnifying party disputes in good faith the
reasonableness of the unpaid balance of such fees and expenses.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Guarantors on the one hand and the Purchasers on the other
from the offering of the Offered Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Guarantors on the one
hand and the Purchasers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company and the Guarantors on the one hand and the Purchasers on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total discounts and commissions received by the Purchasers from the Company
under this Agreement. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantors or the Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in
26
the first sentence of this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Purchaser shall be required to contribute any amount in excess of the amount by
which the total discounts, fees and commissions received by such Purchaser
exceeds the amount of any damages which such Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. The Purchasers' obligations in this subsection (d) to
contribute are several in proportion to their respective purchase obligations
and not joint.
(e) The obligations of the Company and the Guarantors under
this Section shall be in addition to any liability which the Company and the
Guarantors may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Purchaser within the
meaning of the Securities Act or the Exchange Act; and the obligations of the
Purchasers under this Section shall be in addition to any liability which the
respective Purchasers may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act.
8. Default of Purchasers. If any Purchaser or Purchasers default in
their obligations to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting Purchaser or
Purchasers agreed but failed to purchase does not exceed 10% of the total
principal amount of Offered Securities, CSFB may make arrangements satisfactory
to the Company for the purchase of such Offered Securities by other persons,
including any of the Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Purchasers shall be obligated severally, in
proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Purchasers agreed but failed to purchase. If any
Purchaser or Purchasers so default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total principal amount of Offered Securities and arrangements satisfactory
to CSFB and the Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this Agreement will
terminate without liability on the part of any non-defaulting Purchaser or the
Company, except as provided in Section 9. As used in this Agreement, the term
"Purchaser" includes any person substituted for a Purchaser under this Section.
Nothing herein will relieve a defaulting Purchaser from liability for its
default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or the Guarantors or their respective officers and of the several
Purchasers set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Purchaser, the Company or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
this Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Offered Securities by the Purchasers is not consummated, the
Company and the Guarantors shall remain responsible for the reasonable expenses
to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Guarantors and the Purchasers pursuant to
Section 7 shall remain in effect. If the purchase of the Offered Securities by
the Purchasers is not consummated for any reason other than solely because of
the termination of this Agreement pursuant to Section 8 or the occurrence of any
event specified in clause (iii), (iv), (v), (vi) or (vii) of Section 6(b), the
Company and the Guarantors will reimburse the Purchasers for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
reasonably incurred by them in connection with the offering of the Offered
Securities .
10. Notices. All communications hereunder will be in writing and, if
sent to the Purchasers will be mailed, delivered or telecopied and confirmed to
the Purchasers, c/o Credit Suisse First Boston LLC, Eleven Madison Avenue, New
York, N.Y. 10010-3629, Attention: Transactions Advisory Group, or, if sent to
the Company or the Guarantors, will be mailed, delivered or telecopied and
confirmed to it at IMAX Corporation,
27
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Science and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇, ▇▇▇▇▇▇, Attention: General Counsel; provided, however, that any notice
to a Purchaser pursuant to Section 7 will be mailed, delivered or telecopied and
confirmed to such Purchaser.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
controlling persons referred to in Section 7, and no other person will have any
right or obligation hereunder, except that holders of Offered Securities shall
be entitled to enforce the agreements for their benefit contained in the second
and third sentences of Section 5(b) hereof against the Company as if such
holders were parties thereto.
12. Representation of Purchasers. You will act for the several
Purchasers in connection with this purchase, and any action under this Agreement
taken by you will be binding upon all the Purchasers and the Company shall be
authorized to act upon any such action by or on behalf of the Purchasers.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company and each of the Guarantors hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
The obligation of the Company or any of the Guarantors in respect of
any sum due to any Purchaser shall, notwithstanding any judgment in a currency
other than United States dollars, not be discharged until the first business
day, following receipt by such Purchaser of any sum adjudged to be so due in
such other currency, on which (and only to the extent that) such Purchaser may
in accordance with normal banking procedures purchase United States dollars with
such other currency; if the United States dollars so purchased are less than the
sum originally due to such Purchaser hereunder, the Company and each Guarantor
agree, as a separate obligation and notwithstanding any such judgment, to
indemnify such Purchaser against such loss. If the United States dollars so
purchased are greater than the sum originally due to such Purchaser hereunder,
such Purchaser agrees to pay to the Company an amount equal to the excess of the
dollars so purchased over the sum originally due to such Purchaser hereunder.
[signature pages follow]
28
If the foregoing is in accordance with the Purchasers' understanding of
our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company, the Guarantors
and the several Purchasers in accordance with its terms.
Very truly yours,
ISSUER:
IMAX Corporation
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Sr. Vice President, Legal Affairs
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President Finance, Special Projects
GUARANTORS:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Productions 70MM Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX II U.S.A. Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
29
IMAX Chicago Theatre LLC
By its Managing Member
IMAX Theatre Holding (California I) Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Forum Ride, Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Minnesota Holding Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Rhode Island Limited Partnership
By its General Partner
IMAX Providence General Partner Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
30
IMAX Sandde Animation Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Scribe Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Space Ltd.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Theatre Holding Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
31
IMAX Theatre Holdings (OEI) Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Theatre Management Company
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Theatre Services Ltd.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX U.S.A. Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
32
Miami Theatre LLC
By its Managing Member
IMAX Theatre Holding (California I) Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Mitey Cinema Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Mountainview Theatre Management Ltd.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Nyack Theatre LLC
By its Managing Member
IMAX Theatre Holding (Nyack I) Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
33
Ridefilm Corporation
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Sacramento Theatre LLC
By its Managing Member
IMAX Theatre Holding (California I) Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Sonics Associates, Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Starboard Theatres Ltd.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
34
Tantus Films Ltd.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Wire Frame Films Ltd.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
1329507 Ontario Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
924689 Ontario Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
35
IMAX (Titanica) Ltd.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX (Titanic) Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Music Ltd.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Theatre Holding (Brossard) Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
36
IMAX Film Holding Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Indianapolis LLC
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Pictures Corporation
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Immersive Entertainment Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
37
IMAX Providence General Partner Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Providence Limited Partner Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Theatre Holding (California I) Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Theatre Holding (California II) Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
38
IMAX Theatre Holding (Nyack I) Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Theatre Holding (Nyack II) Co.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
IMAX Theatre Management (Scottsdale), Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Panda Productions Inc.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
39
Strategic Sponsorship Corporation
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Tantus II Films Ltd.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
RPM Pictures Ltd.
By /s/ G. ▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: G. ▇▇▇▇ ▇▇▇▇
Title: Secretary
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
40
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON LLC
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
Acting on behalf of itself
and as the sole Representative
of the several Purchasers
41
SCHEDULE A
PRINCIPAL AMOUNT OF
MANAGER OFFERED SECURITIES
------- ------------------
Credit Suisse First Boston LLC........................................ $128,400,000
▇▇▇▇▇▇▇▇▇ & Company, Inc.............................................. 14,864,000
Wachovia Capital Markets, LLC......................................... 11,152,000
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc........................................ 5,584,000
------------
Total....................................... $160,000,000
============
A-1
SCHEDULE B
SUBSIDIARIES
COMPANY NAME
1329507 Ontario Inc.
924689 Ontario Inc.
Big Frame Theatre Limited Partnership
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Productions 70 MM Inc.
Imax (Netherlands) B.V.
Imax (Titanic) Inc.
Imax (Titanica) Ltd.
IMAX Chicago Theatre LLC
Imax Entertainment Pte Ltd.
Imax Film Holding Co.
Imax Forum Ride, Inc.
Imax II U.S.A. Inc.
Imax Indianapolis LLC
Imax Japan Inc.
Imax Minnesota Holding Co.
Imax Music Ltd.
Imax Pictures Corporation
Imax Providence General Partner Co.
Imax Providence Limited Partner Co.
Imax Rhode Island Limited Partnership
Imax Sandde Animation Inc.
Imax Scribe Inc.
Imax Space Ltd.
Imax Theatre Holding (Brossard) Inc.
Imax Theatre Holding (California I) Co.
Imax Theatre Holding (California II) Co.
Imax Theatre Holding (Nyack I) Co.
Imax Theatre Holding (Nyack II) Co.
Imax Theatre Holding (OEI), Inc.
Imax Theatre Holding Co.
Imax Theatre Management (Scottsdale), Inc.
Imax Theatre Management Company
Imax Theatre Services Ltd.
Imax U.S.A. Inc.
Immersive Entertainment Inc.
Miami Theatre LLC
Mitey Cinema Inc.
Mountainview Theatre Management Ltd.
Nyack Theatre LLC
Nyack Theatre LLC
Panda Productions Inc.
Ridefilm Corporation
RPM Pictures Ltd.
Sacramento Theatre LLC
Sonics Associates, Inc.
Starboard Theatres Ltd.
Strategic Sponsorship Corporation
Tantus Films Ltd.
Tantus II Films Ltd.
Wire Frame Films Ltd.
B-1