Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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IMAX CORPORATION
(Exact name of Registrant as specified in its charter)
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Canada
(State or other jurisdiction of
incorporation or organization)
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98-0140269
(I.R.S. Employer
Identification Number)
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2525 Speakman Drive
Mississauga, Ontario L5K 1B1
Canada
(905) 403-6500
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110 East 59th Street, Suite 2100
New York, New York, USA 10022
(212) 821-0100
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(Address and telephone number of Registrant’s principal executive offices)
IMAX CORPORATION AMENDED AND RESTATED LONG-TERM INCENTIVE PLAN
(Full title of the plans)
IMAX U.S.A. Inc.
110 E. 59th Street, Suite 2100
New York, New York 10022
(212) 821-0100
(Name, address and telephone number of agent for service)
Copies to:
Doreen E. Lilienfeld, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
(212) 848 7171
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer or a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer x Accelerated filer o Non-accelerated filer o Smaller reporting company o
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CALCULATION OF REGISTRATION FEE
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Title of Securities to Be Registered
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Amount to Be Registered
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Proposed Maximum
Offering Price Per Security
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Proposed Maximum
Aggregate Offering Price
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Amount of
Registration Fee
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Common Shares of IMAX Corporation (no par value) (1)
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6,000,000
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U.S. $32.91 (2)
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$197,460,000
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$19,884.23
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(1)
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Pursuant to Rule 416 under the U.S. Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 shall also cover any additional Common Shares that become deliverable by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that results in an increase in the number of outstanding Common Shares to be offered or sold pursuant to the plan.
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(2)
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Estimated solely for the purpose of calculating the registration fee. Such estimate is calculated pursuant to Rules 457(c) and 457(h) under the Securities Act, based on the average of the high and low prices ($33.47 and $32.35, respectively) of IMAX Corporation Common Shares quoted on the New York Stock Exchange on June 3, 2016.
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Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item 1.
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Plan Information.*
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Item 2.
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Registrant Information and Employee Plan Annual Information.*
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*
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Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the “Note” to Part I of Form S-8.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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The following documents, which have been filed with the Securities and Exchange Commission (the “Commission”) by the Registrant are incorporated herein by reference into this Registration Statement:
(a) the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2015, filed February 24, 2016;
(b) all other reports filed pursuant to Section 13(a) or 15(d) of the U.S. Securities Exchange Act of 1934, as amended, (the “Exchange Act”) since the end of the fiscal year covered by the Annual Report on Form 10-K referred to in clause (a) above, including the Registrant’s Quarterly Report on Form 10-Q for the period ending March 31, 2016, filed April 21, 2016; and
(c) the description of the Registrant’s Common Shares (the “Common Shares”), registered under Section 12 of the Exchange Act, contained in the Registrant’s Registration Statement on Form 20-F/A No. 2 filed with the Commission on June 7, 1994, including any amendment or report filed for the purposes of updating such description.
In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the effective date of this Registration Statement, but prior to the filing of a post-effective amendment to this Registration Statement, which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part thereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 4.
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Description of Securities.
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers.
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The Company’s General By-law contains an indemnification of its directors/officers, former directors/officers and persons who have acted at its request to be a director/officer of an entity in which the Company is a shareholder or creditor, to indemnify them, to the extent permitted by the Canada Business Corporations Act, against expenses (including legal fees), judgments, fines and any amount actually and reasonably incurred by them in connection with any action, suit or proceeding in which the directors and/or officers are sued as a result of their service, if they acted honestly and in good faith with a view to the best interests of the Company.
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The nature of the indemnification prevents the Company from making a reasonable estimate of the maximum potential amount it could be required to pay to counterparties. The Company has purchased directors’ and officers’ liability insurance. No amount has been accrued in the consolidated balance sheet as at December 31, 2015 with respect to this indemnity.
The Registrant maintains directors’ and officers’ liability insurance with an aggregate policy limit of U.S. $70 million subject to a deductible of U.S. $1,000,000 in respect of U.S. securities law claims, U.S. $500,000 in respect of U.S. employment law claims, and U.S. $250,000 in respect of all other claims.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
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Item 8.
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Exhibits.
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See Exhibit Index.
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Item 9.
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Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of securities registered hereby, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement;
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in the Registration Statement;
provided, however; that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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Part III
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, on June 7, 2016.
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IMAX CORPORATION
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By:
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/s/ Richard L. Gelfond | ||
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Name:
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Richard L. Gelfond
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Title:
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Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints Richard L. Gelfond and Robert D. Lister (except that Mr. Gelfond himself appoints solely Mr. Lister) his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacitates, to sign any and all amendments (including post-effective amendments) and supplements to this Registration Statement, and to file the same, with all exhibits thereto, and other document in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated, on June 7, 2016.
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Signature
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Title
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| /s/ Richard L. Gelfond | ||
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Richard L. Gelfond
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Chief Executive Officer and Director (Principal Executive Officer)
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| /s/ Joseph Sparacio | ||
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Joseph Sparacio
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Executive Vice President and Chief Financial Officer (Principal Financial Officer)
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| /s/ Jeffrey Vance | ||
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Jeffrey Vance
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Senior Vice President, Finance and Controller (Principal Accounting Officer)
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| /s/ Bradley J. Wechsler | ||
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Bradley J. Wechsler
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Chairman of the Board and Director
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| /s/ Neil S. Braun | ||
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Neil S. Braun
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Director
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| /s/ Eric A. Demirian | ||
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Eric A. Demirian
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Director
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David W. Leebron
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Director
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| /s/ Michael Lynne | ||
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Michael Lynne
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Director
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| /s/ Michael MacMillan | ||
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Michael MacMillan
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Director
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| /s/ I. Martin Pompadur | ||
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I. Martin Pompadur
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Director
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| /s/ Dana Settle | ||
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Dana Settle
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Director
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| /s/ Darren Throop | ||
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Darren Throop
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Director
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EXHIBIT INDEX
Certain of the following exhibits, as indicated parenthetically, were previously filed as exhibits to reports filed by IMAX Corporation under the Exchange Act and are hereby incorporated by reference to such reports.
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Exhibit No.
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Description of Document
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4.1
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Restated Articles of Incorporation of IMAX Corporation, dated July 30, 2013. Incorporated by reference to Exhibit 3.1 to IMAX Corporation’s Form 10-Q, for the quarter ended September 30, 2013 (File No. 001-35066).
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4.2
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By-Law No. 1 of IMAX Corporation, enacted on June 2, 2014. Incorporated by reference to Exhibit 3.2 to IMAX Corporation’s Form 8-K, dated June 3, 2014 (File No. 001-35066).
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4.3
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IMAX Corporation Amended and Restated Long-Term Incentive Plan. Incorporated by reference to Appendix A to IMAX Corporation’s Proxy Statement, filed April 21, 2016 (File No. 001-35066).
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*5.1
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Opinion of McCarthy Tétrault LLP, counsel to the Registrant, as to the validity and legality of the securities being registered.
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*23.1
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Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm.
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*23.2
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Consent of McCarthy Tétrault LLP.
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*24
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Powers of Attorney (included on signature page).
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____________________________
* Filed herewith.
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EXHIBIT 5.1
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McCarthy Tétrault LLP
PO Box 48, Suite 5300
Toronto-Dominion Bank Tower
Toronto ON M5K 1E6
Canada
Tel: 416-362-1812
Fax: 416-868-0673
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IMAX Corporation
2525 Speakman Drive
Mississauga, Ontario, Canada, L5K 1B1
We have acted as Canadian counsel to IMAX Corporation (the “Company”), a corporation incorporated under the laws of Canada, in connection with the Registration Statement on Form S-8 (the “Registration Statement”) of the Company to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, with respect to 6,000,000 additional common shares of the Company (the “Shares”), to be issued from time to time pursuant to the Company’s 2013 Long-Term Incentive Plan, as amended and restated on June 6, 2016 (the “Plan”).
In so acting, we have examined originals or copies of the Registration Statement and the Plan. We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such public and corporate records, certificates, instruments and other documents and have considered such questions of law as we have deemed relevant and necessary as a basis for the opinion hereinafter expressed.
We have assumed:
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(a)
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the genuineness of all signatures on all documents examined by us;
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(b)
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the authenticity of all documents submitted to us as originals; and
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(c)
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the conformity to original documents of all documents submitted to us as copies, whether facsimile, electronic, photostatic, certified or otherwise, and the authenticity of the originals of such copies.
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Based and relying upon the foregoing, and subject to the qualification expressed herein, we are of the opinion that the Shares to be issued pursuant to the terms of the Plan will, upon issuance in accordance with the terms of the Plan, be validly issued, fully paid and non-assessable.
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page 2
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This opinion is limited to the laws of the Province of Ontario and the laws of Canada applicable therein.
This opinion is rendered to you, IMAX Corporation, in connection with the above matter. This opinion may not be relied upon by you for any other purpose without our prior written consent.
/s/ McCarthy Tetrault LLP
IMAX CORPORATION
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 24, 2016 relating to the financial statements, financial statement schedule and the effectiveness of internal control over financial reporting, which appears in IMAX Corporation’s Annual Report on Form 10-K for the year ended December 31, 2015.
/s/ PricewaterhouseCoopers LLP
Chartered Professional Accountants, Licensed Public Accountants
Toronto, Ontario
June 7, 2016
Exhibit 23.2
CONSENT OF MCCARTHY TÉTRAULT LLP
Re: IMAX Corporation — Filing of Form S-8
The undersigned hereby consents to the filing of our opinion, addressed to, among others, IMAX Corporation, as an exhibit to the Registration Statement of IMAX Corporation on Form S-8.
Date: June 7, 2016
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McCarthy Tétrault LLP
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By:
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/s/ Robert Hansen | |
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Robert Hansen
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