As filed with the Securities and Exchange Commission on August 20, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BLACKBERRY LIMITED
(Exact Name of Registrant as Specified in its Charter)
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Ontario (State or other jurisdiction of incorporation or organization) | Not Applicable (I.R.S. Employer Identification Number) |
2200 University Avenue East
Waterloo, Ontario, Canada
N2K 0A7
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
BlackBerry Limited Equity Incentive Plan
(Full title of the plan)
BlackBerry Corporation
6700 Koll Center Parkway, 2nd Floor
Suite 200
Pleasanton, California 94566
(925) 931-6060
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
David W. Pollak
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, New York 10178
(212) 309-6000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, 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):
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Large accelerated filer | Accelerated filer |
Non-accelerated filer (Do not check if a smaller reporting company) | Smaller reporting company |
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered (1) | Amount to be Registered (2) | Proposed maximum offering price per share (3) | Proposed maximum aggregate offering price | Amount of registration fee (4) |
Common Shares, no par value | 8,000,000 | $7.58 | $60,640,000 | $7,046.37 |
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(1) | The common shares, no par value (“Common Shares”) of BlackBerry Limited (the “Registrant”) being registered relate to stock option grants and restricted share unit grants to be undertaken in the future, with option exercise prices and restricted share unit vesting conditions, as applicable, to be determined in accordance with the provisions of the BlackBerry Limited Equity Incentive Plan (the “Plan”). |
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(2) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional Common Shares of the Registrant which, as a result of stock splits, stock dividends, recapitalizations or any other similar transactions effected without the receipt of consideration results in an increase in the number of the Registrant’s outstanding Common Shares in accordance with the provisions of the Plan. |
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(3) | Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee based on the average of the high and low prices of Common Shares on the Nasdaq Global Select Market on August 18, 2015. |
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(4) | Calculated pursuant to Section 6(b) of the Securities Act as follows: Proposed maximum aggregate offering price multiplied by .0001162. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item 1. | Plan Information.* |
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Item 2. | Registrant Information and Employee Plan Annual Information.* |
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* | The documents containing the information specified in Part I will be delivered in accordance with Rule 428(b)(1) under the Securities Act. Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3. | Incorporation of Documents by Reference. |
The following documents, or excerpts thereof as indicated, filed by the Registrant with the Commission are incorporated by reference into this Registration Statement:
(a) Annual report on Form 40-F of the Registrant for the fiscal year ended February 28, 2015, filed with the Commission on March 27, 2015;
(b) Report on Form 6-K of the Registrant, furnished to the Commission on May 8, 2015, with respect to the Registrant’s acquisition of WatchDox;
(c) Report on Form 6-K of the Registrant, furnished to the Commission on May 21, 2015, with respect to the Registrant's management information circular;
(d) Report on Form 6-K of the Registrant, furnished to the Commission on June 23, 2015, with respect to the Registrant’s unaudited consolidated financial statements for the three months ended May 30, 2015, and related Management’s Discussion and Analysis of Financial Condition and Results of Operations;
(e) Report on Form 6-K of the Registrant, furnished to the Commission on June 24, 2015, with respect to the Report of Voting Results Pursuant to Section 11.3 of Canadian National Instrument 51-102; and
(f) Report on Form 6-K of the Registrant, furnished to the Commission on June 25, 2015, with respect to the Registrant’s common share purchase program;
(g) Report on Form 6-K of the Registrant, furnished to the Commission on July 23, 2015, as amended on Form 6-K/A furnished to the Commission on July 24, 2015 with respect to the Registrant’s acquisition of AtHoc;
(h) The description of the Common Shares, included in the registration statement on Form 40-F, filed with the Commission on September 9, 1998.
All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities
offered hereby then remaining unsold, shall be deemed to be incorporated by reference herein and shall be deemed to be a part hereof from the date of the filing of such documents. In addition, any Report on Form 6-K of the Registrant hereafter furnished to the Commission pursuant to the Exchange Act shall be incorporated by reference into this Registration Statement if and to the extent provided in such document.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein 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 that also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any 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. | Description of Securities. |
Not applicable.
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Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
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Item 6. | Indemnification of Directors and Officers. |
Under the Business Corporations Act (Ontario) (the “OBCA”), the Registrant may indemnify a director or officer of the Registrant, a former director or officer of the Registrant or another individual who acts or acted at the Registrant’s request as a director or officer or an individual acting in a similar capacity, of another entity:
(a) against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of the association with the Registrant or other entity as described above; and
(b) with court approval, against all costs, charges and expenses reasonably incurred by the individual in connection with an action brought by or on behalf of the Registrant or another entity to obtain a judgment in its favor, to which the individual is made a party because of the individual’s association with the Registrant or other entity as described above;
provided, in all cases, such individual (i) acted honestly and in good faith with a view to the best interests of the Registrant or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the Registrant’s request, and (ii) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, such individual had reasonable grounds for believing that the individual’s conduct was lawful.
In addition, the Registrant may advance money to a director, officer or other individual for the costs, charges and expenses of a proceeding referred to in (a) above and, with court approval, (b) above but the individual is required to repay the money to the Registrant if the individual did not act honestly and in good faith with a view to the best interests of the Registrant or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the Registrant’s request.
Notwithstanding the foregoing, a director or officer of the Registrant, a former director or officer of the Registrant or another individual who acts or acted at the Registrant’s request as a director or officer, or an individual acting in a similar capacity, of another entity, is entitled to be indemnified by the Registrant against all costs, charges and expenses reasonably incurred by the individual in connection with the defence of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of the individual’s association with the Registrant or other entity as described above, if the individual seeking the indemnity, (i) was not judged by a court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done and such individual, (ii) acted honestly and in good faith with a view to the best interests of the Registrant or, as the case may be, to the best interests of the other entity for which the individual acted as a director or officer or in a similar capacity at the Registrant’s request, and (iii) in the case of a criminal or
administrative action or proceeding that is enforced by a monetary penalty, such individual had reasonable grounds for believing that the individual’s conduct was lawful.
Subject to the limitations contained in the OBCA, the By-laws of the Registrant provide that every director or officer of the Registrant, every former director or officer of the Registrant, or a person who acts or acted at the Registrant’s request as a director or officer of a body corporate of which the Registrant is or was a shareholder or creditor, and his or her heirs, executors, administrators and other legal personal representatives shall, from time to time, be indemnified and saved harmless by the Registrant from and against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him or her in respect of any civil, criminal or administrative action or proceeding to which he or she is made a party by reason of being or having been a director or officer of the Registrant or body corporate of which the Registrant is or was a shareholder or creditor, if (i) he or she acted honestly and in good faith with a view to the best interests of the Registrant, and (ii) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, such director or officer had reasonable grounds for believing that his or her conduct was lawful.
In addition, as is customary for many public corporations, the Registrant has entered into indemnity agreements (the “Indemnity Agreements”) with its directors and certain senior officers whereby the Company agreed, subject to applicable law, to indemnify those persons against all costs, charges and expenses which they may sustain or incur in third party actions if: such director or officer complied with his or her fiduciary duties; and in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he or she had reasonable grounds for believing that his or her conduct was lawful. The Indemnity Agreements further require the Registrant to pay interim costs and expenses of the director or officer subject to the proviso that the director or officer undertake to repay such costs and expenses if the outcome of any litigation or proceeding establishes that the director or officer was not entitled to indemnification.
The Registrant also maintains insurance for the benefit of its directors and officers against liability in their respective capacities as directors and officers of the Registrant. The directors and officers are not required to pay any premium in respect of the insurance. The policy contains standard industry exclusions.
Reference is made to Item 9 for the undertakings of the Registrant with respect to indemnification of liabilities arising under the Securities Act.
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Item 7. | Exemption from Registration Claimed. |
Not applicable.
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Exhibit No. | | Exhibit |
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4.1 | | Specimen Common Share certificate (1) |
4.2 | | Articles of Amalgamation of the Registrant (1)
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4.3.1 | | Amended and Restated By-law No. A3 of the Registrant (2) |
4.3.2 | | Amended and Restated By-law No. A4 of the Registrant (3) |
5.1 | | Opinion of Torys LLP |
23.1 | | Consent of Torys LLP (included in the opinion filed as Exhibit 5.1) |
23.2 | | Consent of Ernst & Young LLP |
24 | | Power of Attorney (included on the signature page of this Registration Statement) |
__________________
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(1) | Incorporated by reference to the Registrant's Registration Statement on Form S-8, filed with the Commission on December 20, 2013. |
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(2) | Incorporated by reference to the Registrant’s Report on Form 6-K, furnished with the Commission on May 15, 2014. |
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(3) | Incorporated by reference to the Registrant’s Report on Form 6-K, furnished with the Commission on June 13, 2014. |
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(a) | The Registrant hereby undertakes: |
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| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act; |
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| (ii) | To reflect in the prospectus any facts or events arising after the effective date of the 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; |
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| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in 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.
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| (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. |
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| (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. |
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(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 Securities Act and will be governed by the final adjudication of such issue. |
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 Waterloo, Province of Ontario, Canada on August 20, 2015.
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BLACKBERRY LIMITED |
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By | | /s/ John S. Chen |
| | John S. Chen Executive Chairman and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints John S. Chen and James Yersh, and each one of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place, and stead, in any and all capacities, to sign any and all amendments to the Registration Statement on Form S-8 of BlackBerry Limited (and any additional registration statement related thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933 (and all further amendments including post-effective amendments thereto)), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, 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 August 20, 2015.
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Signature | | Title |
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/s/ John S. Chen John S. Chen | | Executive Chairman and Chief Executive Officer (principal executive officer) |
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/s/ James Yersh James Yersh | | Chief Financial Officer (principal financial officer and principal accounting officer) |
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/s/ Prem Watsa Prem Watsa | | Lead Director |
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/s/ Laurie Smaldone Alsup Laurie Smaldone Alsup | | Director |
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Michael Daniels | | Director |
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/s/ Timothy Dattels Timothy Dattels | | Director |
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/s/ Richard Lynch Richard Lynch | | Director |
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Barbara Stymiest | | Director |
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities Act of 1933, the undersigned certifies that it is the duly authorized United States representative of BlackBerry Limited and has duly caused this Registration Statement to be signed on behalf of it by the undersigned, thereunto duly authorized, in the City of Waterloo, Ontario, Canada on August 20, 2015.
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| BLACKBERRY CORPORATION (Authorized U.S. Representative)
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| By: | /s/ James Yersh | |
| | Name: | James Yersh | |
| | Title: | Secretary | |
EXHIBIT INDEX
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Exhibit No. | | Exhibit |
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4.1 | | Specimen Common Share certificate (1) |
4.2 | | Articles of Amalgamation of the Registrant (1)
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4.3.1 | | Amended and Restated By-law No. A3 of the Registrant (2) |
4.3.2 | | Amended and Restated By-law No. A4 of the Registrant (3) |
5.1 | | Opinion of Torys LLP |
23.1 | | Consent of Torys LLP (included in the opinion filed as Exhibit 5.1) |
23.2 | | Consent of Ernst & Young LLP |
24 | | Power of Attorney (included on the signature page of this Registration Statement) |
__________________
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(1) | Incorporated by reference to the Registrant's Registration Statement on Form S-8, filed with the Commission on December 20, 2013. |
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(2) | Incorporated by reference to the Registrant’s Report on Form 6-K, furnished with the Commission on May 15, 2014. |
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(3) | Incorporated by reference to the Registrant’s Report on Form 6-K, furnished with the Commission on June 13, 2014. |
Exhibit 5.1
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| 79 Wellington St. W., 30th Floor Box 270, TD South Tower Toronto, Ontario M5K 1N2 Canada P. 416.865.0040F. 416.865.7380
www.torys.com |
August 20, 2015
BlackBerry Limited
2200 University Avenue East
Waterloo, Ontario
N2K 0A7
Dear Sirs/Mesdames:
We have acted as Canadian counsel for BlackBerry Limited, an Ontario corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), to register 8,000,000 common shares (the “Common Shares”) of the Company, which may be issued by the Company pursuant to the Company’s Equity Incentive Plan (the “Plan”).
We have made such investigations and have examined such corporate records of the Company and other documents as we considered necessary or relevant for our opinion, including:
(a) a certified copy of the articles of amalgamation and by-laws of the Company;
(b) a certified copy of the resolution of the Company’s board of directors approving the issuance of the Common Shares pursuant to the Plan;
(c) a certified copy of the resolution of the Company’s shareholders approving the issuance of the Common Shares pursuant to the Plan; and
(d) the Plan.
For the purposes of this opinion, we have assumed, with respect to all documents examined by us, (i) the genuineness of all signatures, 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, notarial or photostatic copies, (ii) the identity and capacity of all individuals acting or purporting to act as public officials, and (iii) that any party to any agreement or instrument referred to herein who is a natural person has the legal capacity to enter into, execute and deliver such agreement or instrument and has not entered into, executed or delivered the same under duress or as a result of undue influence.
We have assumed that all Common Shares issued under the Plan will be issued for consideration in property or past services that is not less in value than the fair equivalent of the money that the Company would have received if the Common Shares had been issued for money.
Our opinion is given as of the date hereof and we do not in any event undertake to advise you of any facts or circumstances occurring or coming to our attention subsequent to the date hereof.
We are qualified to practice law only in the Province of Ontario. We express no opinion as to the laws of any jurisdiction other than those of the Province of Ontario and the federal laws of Canada applicable therein in effect on the date hereof.
Based on and subject to the foregoing, we are of the opinion that the Common Shares to be issued pursuant to the Plan, if and when issued in accordance with the terms and conditions of the Plan, will be validly issued as fully paid and non-assessable shares of the Company.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to the references to our firm name therein. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission.
Yours truly,
/s/ Torys LLP
Torys LLP
Exhibit 23.2
CONSENT OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the Company’s registration of 8,000,000 common shares of the Company, which may be issued by the Company pursuant to the BlackBerry Limited Equity Incentive Plan, of our reports dated March 27, 2015, with respect to the consolidated financial statements of BlackBerry Limited and the effectiveness of internal control over financial reporting of BlackBerry Limited included in its Annual Report (Form 40-F) for the year ended February 28, 2015, filed with the Securities and Exchange Commission.
/s/Ernst & Young LLP
Kitchener, Canada, Chartered Accountants
August 20, 2015 Licensed Public Accountants
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