As Filed with the Securities and Exchange Commission on October 29, 1998
Registration No.
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------
MITEL CORPORATION
(Exact name of registrant as specified in its charter)
Canada Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P.O. BOX 13089
350 Legget Drive
Kanata, Ontario
Canada K2K 1X3
(Address of principal (Zip Code)
executive offices)
---------------------------
MITEL CORPORATION 1991 STOCK OPTION PLAN FOR
KEY EMPLOYEES AND NON-EMPLOYEE DIRECTORS, AS AMENDED
(Full title of the plan)
---------------------------
Donald G. McIntyre, Secretary
Mitel Corporation
P.O. Box 13089
350 Legget Drive
Kanata, Ontario
Canada K2K 1X3
(Name and address of agent for service)
(613) 592-2122
(Telephone number, including area code, of agent for service)
---------------------------
Copy to:
Denise M. Tormey, Esq.
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
New York, New York 10112
(212) 698-7700
---------------------------
<TABLE>
<CAPTION>
Calculation of Registration Fee
Proposed
maximum Proposed maximum
Amount to be offering price aggregate Amount of
Title of securities to be registered registered (1) per share offering price registration fee
- --------------------------------------------- ------------------ -------------------------------------------- ------------------
<S> <C> <C> <C> <C>
Common Shares (no par value)................. 6,751,500(2) $9.25(3) $62,451,375(3) $17,361.48
Common Shares (no par value)................. 3,123,250(4) $17.78 $55,531,385 $15,437.73
Common Shares (no par value)................. 108,000(4) $19.96 $2,155,680 $599.28
Common Shares (no par value)................. 53,250(4) $21.09 $1,123,042.50 $312.21
Common Shares (no par value)................. 3,000(4) $19.86 $59,580 $16.56
Common Shares (no par value)................. 4,000(4) $19.96 $79,840 $22.20
Common Shares (no par value)................. 100,000(4) $20.44 $2,044,000 $568.23
</TABLE>
1
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Common Shares (no par value)................. 20,000(4) $30.00 $600,000 $166.80
Common Shares (no par value)................. 32,000(4) $21.15 $676,800 $188.15
Common Shares (no par value)................. 5,000(4) $18.13 $90,650 $25.20
TOTAL 10,200,000 $124,812,352.50 $34,697.84
================================================================ ===================================================================
</TABLE>
- ------------------
(1) Pursuant to Rule 416, this Registration Statement also covers such
indeterminable number of additional shares as may become issuable pursuant
to terms of the Registrant's 1991 Stock Option Plan for Key Employees and
Non-Employee Directors, as amended (the "Plan") that are designed to
prevent dilution resulting from stock splits, stock dividends or similar
events.
(2) Represents Common Shares reserved for issuance pursuant to options
available for grant, or granted but not exercised, under the Plan.
(3) This estimate is made pursuant to Rule 457(h) solely for the purpose of
calculating the amount of the registration fee. In accordance with Rule
457(h), the price shown is based upon the average of the high and low
price of the Registrant's Common Shares for shares traded on October 22,
1998 on the New York Stock Exchange.
(4) Represents shares of Common Stock reserved for issuance upon the exercise
of options previously granted under the Plan.
2
<PAGE>
PRIOR REGISTRATION STATEMENT
Pursuant to a Registration Statement on Form S-8 filed with the Securities
and Exchange Commission (the "Commission") on November 3, 1995 (Registration
Number 33-98946), the Registrant registered 3,000,000 Common Shares for issuance
under the Plan. This Registration Statement is filed for the purpose of
registering an additional 10,200,000 Common Shares to be issued under the Plan.
The contents of the Registration Statement on Form S-8 (Registration
Number 33-98946) are incorporated by reference herein except for Item 8 of Part
II which is amended to read as follows:
Item 8. Exhibits.
The following is a complete list of exhibits filed as a part of this
Registration Statement:
Exhibit No. Document
----------- --------
4.1 Mitel Corporation 1991 Stock Option Plan for Key
Employees and Non-Employee Directors, as amended to
date.
5.1 Opinion of McCarthy Tetrault regarding the validity
and offering of the Common Shares being registered.
23.1 Consent of McCarthy Tetrault (included in Exhibit
5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (included on the signature page
of this Registration Statement).
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all 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 Kanata, Ontario, Canada, on October 29, 1998.
MITEL CORPORATION
By: /s/ Kirk Mandy
-------------------------------------
Kirk Mandy
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints each of Jean-Jacques Carrier and Donald G.
McIntyre his true and lawful attorney-in-fact and agent, each acting alone, with
full powers of substitution and resubstitution, for him and his name, place and
stead, in any and all capacities, to sign any and all amendments to this
registration statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, and to make any and all state securities law or blue sky filings,
granting unto said attorney-in-fact and agents, each acting alone, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully for all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agents, each acting alone, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Henry Simon Chairman of the Board of Directors October 29, 1998
- ---------------------------------------
Henry Simon
/s/ Kirk Mandy President, Chief Executive Officer and Director October 29, 1998
- ---------------------------------------
Kirk Mandy
/s/ Hubert T. Lacroix Director October 29, 1998
- ---------------------------------------
Hubert T. Lacroix
/s/ Donald W. Patterson Director October 29, 1998
- ---------------------------------------
Donald W. Patterson
/s/ Peter van Cuylenburg Director October 29, 1998
- ---------------------------------------
Peter van Cuylenburg
/s/ Jonathan I. Wener Director October 29, 1998
- ---------------------------------------
Jonathan I. Wener
/s/ Andre Borrel Director October 29, 1998
- ---------------------------------------
Andre Borrel
/s/ Anthony L. Craig Director October 29, 1998
- ---------------------------------------
Anthony L. Craig
/s/ Donald G. McIntyre Director October 29, 1998
- ---------------------------------------
Donald G. McIntyre
</TABLE>
4
<PAGE>
<TABLE>
<S> <C> <C>
/s/ John B. Millard Director October 29, 1998
- -------------------
John B. Millard
/s/ Jean-Jacques Carrier Vice President of Finance and Chief Financial October 29, 1998
- ------------------------ Officer
Jean-Jacques Carrier
</TABLE>
5
<PAGE>
INDEX
Exhibit No. Document
----------- --------
4.1 Mitel Corporation 1991 Stock Option Plan for Key
Employees and Non-Employee Directors, as amended to
date.
5.1 Opinion of McCarthy Tetrault regarding the validity
and offering of the Common Shares being registered.
23.1 Consent of McCarthy Tetrault (included in Exhibit
5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (included on the signature page
of this Registration Statement).
6
Exhibit 4.1
MITEL CORPORATION
1991 STOCK OPTION PLAN FOR KEY EMPLOYEES
AND NON-EMPLOYEE DIRECTORS
1. Purpose. The Mitel Corporation 1991 Stock Option Plan for Key
Employees and Non-Employee Directors (the "Plan") is intended to attract and
retain highly qualified employees and non-employee directors who will be
motivated toward the success of Mitel Corporation (the "Company") and to
encourage share ownership in the Company by certain key employees and
non-employee directors of the Company and its subsidiaries.
2. Number of Common Shares to be Offered. The shares subject to the
options to be granted under this Plan shall be Common Shares of the Company
("Common Shares"). The maximum number of Common Shares that may be issued under
this Plan shall not exceed 16,000,000 Common Shares and no employee (as defined
below) shall hold options to purchase more than 5% of the total number of Common
Shares issued and outstanding from time to time. Upon the expiration, surrender
or termination, in whole or in part, of an unexercised option, the Common Shares
subject to such option shall be available for other options to be granted from
time to time under this Plan.
3. Terms and Conditions of Option.
(a) Employees Eligible to Receive Options. The individuals who shall be
eligible to receive options under this Plan shall be such key employees and
non-employee directors of the Company and its subsidiaries as the Committee
("Committee" described in Section 5 of this Plan) from time to time shall
determine. Any reference herein to "employee(s)" shall include "director(s)"
except to the extent that specific terms of the Plan apply to directors. More
than one option may be granted to the same employee.
(b) Option Price. The price at which Common Shares may be purchased
under the Plan shall be as determined by the Committee on the date of grant of
the option (the "Grant Date"), provided however, that such price may not be less
than the average of the market price of the Common Shares on The Toronto Stock
Exchange for the five trading day period immediately preceding the Grant Date.
For the purpose hereof, "market price" shall mean:
(i) the average of the high and low prices of the Common
Shares on The Toronto Stock Exchange on a trading day, or
(ii) if there was no trade for the Common Shares on the
Toronto Stock Exchange on any particular relevant trading day, then the market
price shall be the average of the bid and ask quotations for the Common Shares
on such relevant trading day on the exchange.
<PAGE>
(c) Option Period. Subject to Section 3(h) and 5, each option for
Common Shares granted under the Plan (the "Option Shares") may be exercised at
any time or from time to time as follows:
(i) up to 25% of the Option Shares during the one year period
following the date which is 12 months after the date of grant of such option,
(ii) up to 50% of the Option Shares during the one year period
following the date which is 24 months after the date of grant of such option,
(iii) up to 75% of the Option shares during the one year
period following the date which is 36 months after the date of grant of such
option, and
(iv) up to 100% of the Option shares following the date which
is 48 months after the date of grant of such option,
or at such other time or times as may be determined by the Committee at the time
of grant.
On the date determined by the Committee at the time of grant which occurs within
a maximum of ten years following the date of grant of an option, the option
shall expire and terminate and be of no further force or effect whatsoever.
(d) Methods of Payment. The employee from time to time during the
option period may elect to purchase all or part of the Option Shares which the
employee is entitled to purchase by lump sum payment by delivering to the
Company a completed stock option purchase form. Such form shall specify the
number of Option Shares the employee desires to purchase and shall be
accompanied by payment in full of the purchase price for such Option Shares.
Payment can be made by cash, certified cheque, bank draft or money order payable
to the Company.
(e) Withholding. No Option Shares shall be issued by the Company to an
employee until appropriate arrangements have been made for the payment of any
amounts which may be required under any law, regulation, rule or otherwise to be
withheld or paid by the Company with respect thereto, including, without
limitation, withholding the transfer of a portion of the shares of the Company's
stock otherwise issuable in order to satisfy all or a portion of the required
withholdings or payments.
(f) Termination of Employment of an Employee. Subject to Sections 3(g)
and 3(j), in the event that an employee's employment with the Company or any
subsidiary is terminated prior to the expiry date of the employee's option, the
employee's option may be exercised, at anytime during the period which is no
more than 30 days following the date the employee's employment is terminated
(but in no event after the expiry date of such option), as to such of the Option
Shares in respect of which such option has not previously been exercised, but
only to the extent that the employee was entitled at his termination of
employment to purchase such Option Shares then exercisable pursuant to Section
3(c) above; provided, however, that in the event the employment of an employee
who has received an option under the Plan is terminated as set forth above, the
Board of Directors of the Company may, in its own discretion, amend the terms of
any option to
- 2 -
<PAGE>
permit the employee to exercise such options as if such employee's employment
had not been terminated (provided that the exercise period shall terminate on
the earlier of (i) three years following the date the employee's employment is
terminated and (ii) the expiry date of such option). For purposes of this Plan,
the transfer of an employee's employment to the Company or to any subsidiary of
the Company shall not be considered a termination of employment.
(g) Termination of Employment of an Employee for Cause. Notwithstanding
any other term or condition of the Plan, in the event that an employee's
employment with the Company or any subsidiary is terminated for cause, the
employee's option may be exercised only during the next business day following
the date of personal delivery of a written notice confirming such termination
and the requirement to exercise options and not after, as to such of the Option
Shares in respect of which such option has not previously been exercised, but
only to the extent that the employee was entitled at his termination of
employment to purchase such Option Shares then exercisable pursuant to Section
3(c) above.
(h) Automatic Acceleration of Exercise Periods for Non-Employee
Directors Upon Change of Control. In the event of a change of control (whether
in fact or in law) of the Company which results in a non-employee director being
replaced, the periods set forth under Section 3(c) shall be waived with respect
to the options then held by such non-employee director in order to permit the
full exercise of all outstanding options then held by such person.
(i) Resignation of a Director. In the event that a non-employee
director ceases to act as a director of the Company, all options held by such
non-employee director, which are then exercisable pursuant to Section 3(c) or
3(h), as the case may be, may be exercised within 180 days following the
announcement of the quarterly results next following the date of resignation of
such person (but in no event after the expiry date of such option).
(j) Rights in the Event of an Employee's Death. In the event of the
death of an employee while in the employment of the Company or any subsidiary
and on or prior to the expiry date of the employee's option, the exercise date
of any portion of the employee's option which is not exercisable on the date of
such employee's death, shall be accelerated so that the employee's option may be
exercised by the employee's legal personal representative(s), at any time after
the date of the employee's death up to and including (but not after) a date
which is 180 days following the date of the employee's death (but in no event
after the expiry date of such option), as to any or all of the Option Shares in
respect of which such option has not previously been exercised.
(k) No Employment Right. Nothing in this Plan shall confer upon the
employee the right to continue in the employ of the Company or interfere in any
way with the right of the Company to terminate the employee's employment at any
time and for any reason.
(l) No Shareholder Rights. An employee shall have no rights as a
shareholder with respect to any Option Shares covered by the employee's option
until the date of the valid issuance of such shares to the employee and only
after such shares are fully paid for. No adjustment will be made for dividends
or other distributions or rights for which the record date is prior to the date
of such issuance.
- 3 -
<PAGE>
(m) Transfer and Assignment. The employee's rights with respect to
options granted under the Plan are not assignable or transferable by the
employee or subject to any other alienation, sale, pledge or encumbrance by such
employee other than by will or by the laws of descent and distribution or
pursuant to a qualified domestic relations order as defined by the U.S. Internal
Revenue Code. Therefore the options are exercisable during the employee's
lifetime only by the employee. The obligations of each employee shall be binding
on his heirs, executors and administrators.
(n) Compliance with United States Securities and Other Laws. Option
Shares may be purchased only if the Company determines to and obtains the
necessary approvals to sell its Common Shares to employees who are citizens of
or are employed in the United States under applicable United States securities
and other laws.
4. Adjustments. Upon the happening of any of the following events, an
employee's rights with respect to options granted under the Plan shall be
adjusted as hereinafter provided.
(a) In the event of any subdivision, redivision or change of the Common
Shares into a greater number of shares at any time, or in the case of the issue
of shares of the Company to the holders of its outstanding Common Shares by way
of stock dividend or stock dividends (other than an issue of shares to
shareholders pursuant to their exercise of options to receive dividends in the
form of shares of the Company in lieu of cash dividends declared payable in the
ordinary course by the Company on its Common Shares), the number of Common
Shares deliverable by the Company upon the exercise of an option shall be
appropriately increased proportionately, and appropriate adjustments shall be
made in the purchase price per share to reflect such subdivision, redivision or
change.
(b) In the event of any consolidation or change of the Common Shares
into a lesser number of shares at any time, the number of Common Shares
deliverable by the Company upon the exercise of an option shall be appropriately
decreased proportionately, and appropriate adjustments shall be made in the
purchase price per share to reflect such consolidation.
(c) In the event of any reclassification or reclassifications of the
Common Shares, at any time an employee shall accept, at the time of purchase of
Option Shares, in lieu of the number of Common Shares in respect of which the
option to purchase is being exercised, the number of shares of the Company of
the appropriate class or classes as the employee would have been entitled as a
result of such reclassification or reclassifications had the option been
exercised before such reclassification or reclassifications.
(d) If the Company is to be amalgamated with or acquired by another
entity in a merger, sale of all or substantially all of the Company's assets or
otherwise (an "Acquisition"), the Committee or the Board of Directors of any
entity assuming the obligations of the Company under the Plan (the "Successor
Board"), shall, as to outstanding options, either (i) make appropriate provision
for the continuation of such options by substituting on an equitable basis for
the shares then subject to such options the consideration payable with respect
to the outstanding Common Shares in conjunction with the Acquisition; or (ii)
upon written notice to the employees,
- 4 -
<PAGE>
provide that all options must be exercised, to the extent then exercisable,
within a specified number of days of the date of such notice, at the end of
which period the options shall terminate; or (iii) terminate all options in
exchange for a cash payment equal to the excess of the fair market value of the
shares subject to such options (to the extent then exercisable) over the
exercise price thereof.
(e) In the event of the proposed dissolution or liquidation of the
Company, each option will terminate immediately prior to the consummation of
such proposed action or at such other time and subject to such other conditions
as shall be determined by the Committee.
(f) Except as expressly provided herein, no issuance by the Company of
shares of any class, or securities convertible into shares of any class, shall
affect, and no adjustment by reason thereof shall be made with respect to, the
number or price of shares subject to options. No adjustments shall be made for
dividends paid in cash or in property other than securities of the Company.
(g) No fractional shares shall be issued under the Plan and the
employee shall receive from the Company cash in lieu of such fractional shares.
(h) Upon the happening of any of the foregoing events described in
subparagraphs (a), (b), (c) or (d) above, the class and aggregate number of
shares set forth in paragraph 2 that are subject to options which previously
have been or subsequently may be granted under the Plan shall also be
appropriately adjusted to reflect the events described in such subparagraphs.
The Committee or the Successor Board shall determine the specific adjustments to
be made under this paragraph 4 and, subject to paragraph 5, its determination
shall be conclusive.
5. Administration. This Plan shall be administered by the Compensation
and Human Resources Development Committee (the "Committee"). Members of the
Committee shall be appointed by the Board of Directors of the Company and shall
serve as such at the pleasure of the Board of Directors. The Committee shall
have full power and authority to designate those key employees of the Company
and its subsidiaries who are to be granted options under this Plan, the number
of options to be granted to each such key employee and otherwise to interpret
and construe the terms and conditions of the options granted under this Plan.
Without limiting the generality of the powers and discretions granted to the
Committee herein, the Committee may determine that any option granted under the
Plan shall include provisions which accelerate the date on which an option shall
become exercisable upon the happening of such events as the Committee may
determine and as may be prescribed in the applicable options agreement. Without
limiting the generality of the foregoing the Committee may determine that such
acceleration should occur in the event of an actual or anticipated change of
effective control of the Company, or in the event of other fundamental changes
to the Company or its business or affairs. Any determination by the Committee
shall be final and conclusive unless otherwise determined by the Board of
Directors of the Company, and in any such event such determination of the Board
of Directors shall be final and conclusive. The day-to-day administration of
this Plan may be delegated to such officers and employees of the Company or of
any subsidiary of the Company as the Committee in its sole discretion shall
determine.
- 5 -
<PAGE>
6. Variation of Grant, Amendment and Discontinuance. The Board of
Directors shall have the right to amend, modify or terminate this Plan or any
option granted under this Plan at any time without notice; provided, however,
that (a) any such amendment or modification of this Plan which increases the
total number of Common Shares which are to be offered under this Plan, as so
amended or modified, shall be approved by the shareholders of the Company, (b)
any such amendment or modification of this Plan may not modify the rights of
employees with respect to options granted under the Plan without their previous
consent and any required regulatory approvals, and (c) any amendment or
modification of this Plan will be subject to the prior approval of The Toronto
Stock Exchange, The Montreal Exchange and any regulatory body requiring similar
approval.
7. Termination of the Plan. The Plan shall remain effective until
terminated by the Board of Directors of the Company provided that the
termination of the Plan shall have no effect on outstanding options, which shall
remain in accordance with their terms and conditions and the terms and
conditions of the Plan.
8. No Corporate Action Restriction. Nothing contained in the Plan shall
be construed to prevent or preclude the Company from taking any corporate action
which is deemed by the Company to be appropriate or in its best interest,
whether or not such action would have an adverse effect on the Plan or any
option award made under the Plan. No employee, beneficiary or other person shall
have any claim against the Company as a result of such corporate action.
9. Governing Law. The Plan and the options granted under the Plan shall
be construed in accordance with and be governed by the laws of the Province of
Ontario and the laws of Canada applicable therein.
Dated this 17th day of April, 1998.
- 6 -
Exhibit 5.1
McCarthy Tetrault
AVOCATS o AGENTS DE BREVETS & MARQUES DE COMMERCE
BARRISTERS & SOLICITORS o PATENT & TRADEMARK AGENTS
"LE WINDSOR", 1170 PEEL, MONTREAL
QUEBEC, CANADA H2B 4S8
FAX (514) 875-6246 o TELEPHONE (514) 397-4100
October 20, 1998
MITEL CORPORATION
350 Legget Drive
Kanata, Ontario
Canada K2K 1X3
Re: Mitel Corporation
Dear Sirs/Madams:
We have acted as counsel to Mitel Corporation ("Mitel") in connection
with the amendment of its 1991 Stock Option Plan for Key Employees and
Non-Employee Directors (the "Plan") to increase the number of Common Shares, no
par value (the "Common Shares") available for issuance under the Plan from
5,800,000 to 16,000,000 (such 10,200,000 additional Common Shares hereinafter
referred to as the "Additional Shares"). The amendment to the Plan was approved
by the Board of Directors of Mitel on May 21, 1998 and by the shareholders of
Mitel on July 23, 1998.
For the purposes of this opinion, we have examined originals,
photocopies or certified copies of such corporate documents, instruments and
agreements and of such certificates of officers or representatives of Mitel and
such documents as we have deemed necessary of useful in expressing the opinion
hereinafter set forth.
In all such examinations, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to authentic original documents of all documents submitted to
us as certified, conformed or photostatic copies or facsimiles.
Based upon the foregoing, we are of the opinion that:
1. Mitel has been duly incorporated and organized and is validly existing
under the Canada Business Corporations Act; and
2. the Additional Shares of Mitel have been duly authorized and created
and, once issued and paid for in accordance with the Plan, will be
validly issued and outstanding as fully paid and non-assessable Common
Shares.
<PAGE>
McCarthy Tetrault
Page 2
We consent to the use and filing of this opinion as an exhibit to the
Registration Statement on Form S-8 to be filed by Mitel with the Securities and
Exchange Commission covering the Additional Shares, and further consent to the
use of our name wherever appearing in the Registration Statement, and any
amendments thereto or any Prospectus relating thereto.
Yours truly,
McCARTHY TETRAULT
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Mitel Corporation 1991 Stock Option Plan for Key
Employees and Non-Employee Directors, of our report dated May 7, 1998 with
respect to the consolidated financial statements of Mitel Corporation
incorporated by reference in its Annual Report (Form 10-K) for the year ended
March 27, 1998 and the related financial statement schedules included therein,
filed with the Securities and Exchange Commission.
Ernst & Young LLP
Chartered Accountants
Ottawa, Canada
October 23, 1998
