As filed with the Securities and Exchange Commission on November 3, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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CAE INC.
(Exact name of registrant as specified in its charter)
| | | | | | | | |
Canada (State or other jurisdiction of incorporation or organization) | | Not Applicable (I.R.S. Employer Identification No.) |
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8585 Côte-de-Liesse
Saint-Laurent, Québec, Canada H4T 1G6
(Address of Principal Executive Offices)
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CAE INC. OMNIBUS INCENTIVE PLAN,
effective as of May 31, 2023
(Full title of the Plan)
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CAE (US) Inc.
4908 Tampa West Boulevard
Tampa, FL 33634
(Name and address of agent for service)
Tel: (813) 885-7481
(Telephone number, including area code, of agent for service)
Copy to:
Mark Hounsell
General Counsel, Chief Compliance Officer & Corporate Secretary
CAE Inc.
8585 Côte-de-Liesse
Saint-Laurent, Québec, Canada H4T 1G6
Tel : (514) 341-6780
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer Non-Accelerated filer | | | | | | Accelerated filer Smaller reporting company Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
EXPLANATORY NOTE
This Registration Statement on Form S-8 (this "Registration Statement") is filed by CAE Inc. (the “Registrant”) relating to the issuance of up to 10,000,000 common shares, without par value, in the capital of the Registrant (the “Common Shares”), including associated Common Share purchase rights pursuant to the Registrant’s shareholder rights plan, which purchase rights will trade together with the Common Shares, available for future purchase under the CAE Inc. Omnibus Incentive Plan, as adopted on May 31, 2023 (the “Omnibus Incentive Plan”).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. General Plan Information.*
ITEM 2. Registrant Information and Employee Plan Annual Information.*
*The documents containing the information specified in this Part 1 of Form S-8 with respect to the Omnibus Incentive Plan will be delivered to plan participants pursuant to Rule 428(b)(1) of the Securities Act. 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 of 1933 and the “Note” to Part I of Form S-8. These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. The Registrant will provide a written statement to participants advising them of the availability without charge, upon written or oral request, of the documents incorporated by reference in Item 3 of Part II hereof. The written statement to all participants will indicate the availability without charge, upon written or oral request, of other documents required to be delivered pursuant to Rule 428(b) under the Securities Act, and will include the address and telephone number to which the request is to be directed.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with the Securities and Exchange Commission (the “Commission”) are incorporated by reference in this Registration Statement:
a)The Registrant’s Annual Report on Form 40-F filed with the Commission on June 22, 2023 (Commission File No. 1-31402); and
b)The description of the Common Shares, included in the registration statement on Form F-10, filed with the Commission on November 16, 2020, as amended and supplemented (Commission File No. 333-250113).
In addition, all reports and documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date hereof and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all of such securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such reports or documents. The Registrant may incorporate by reference its future reports on Form 6-K by stating in those reports that they are being incorporated by reference into this Registration Statement.
Any statement contained herein or in a report or 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 in any subsequently filed report or 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.
ITEM 4. Description of Securities.
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
Not applicable.
ITEM 6. Indemnification of Directors and Officers.
Under the Canada Business Corporations Act (the “CBCA”), a corporation may indemnify a director or officer of the corporation, a former director or officer of the corporation or another individual who acts or acted at the corporation’s request as a director or officer of another entity 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, administrative, investigative or other proceeding in which the individual is involved because of that association with the corporation or such other entity, if (a) he or she acted honestly and in good faith with a view to the best interests of the corporation or, as the case may be, to the best interests of such other entity, and (b) 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. Where that action is by or on behalf of the corporation or that other entity, the approval of the court is also required.
In accordance with the CBCA, the By-laws of the Registrant provide that the Registrant shall indemnify a director or officer of the Registrant, a 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 another entity, and the heirs and legal representatives of such a person to the extent permitted under the CBCA.
A policy of directors’ and officers’ liability insurance is maintained by the Registrant which insures directors and officers of the Registrant for losses as a result of claims based upon their acts or omissions as directors and officers, including liabilities under the Securities Act of 1933, and also reimburses the Registrant for payments made pursuant to the indemnity provisions under the CBCA.
ITEM 7. Exemption from Registration Claimed.
Not applicable.
ITEM 8. Exhibits.
Unless otherwise indicated below as being incorporated by reference to another filing of the Registrant with the Commission, each of the following exhibits is filed herewith:
| | | | | |
Exhibit No. | Exhibit Description |
| 4.1 | |
| 4.2 | |
| 4.3 | |
| 5.1 | |
| 23.1 | Consent of Norton Rose Fulbright Canada (contained in Exhibit 5.1) |
| 23.2 | |
| 24.1 | Power of Attorney (contained on signature page of this Registration Statement) |
| 107 | |
ITEM 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1)To file, during any period in which offers or sales are being made, 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 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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in this Registration Statement); and;
(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 this 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;
(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 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 this 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.
(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 Montreal, Province of Québec, Canada, on this 3rd day of November, 2023.
CAE INC.
By: /s/ Mark Hounsell
Name: Mark Hounsell
Title: General Counsel, Chief Compliance Officer and Corporate Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints each of Sonya Branco and Mark Hounsell as his or her true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form S-8 of CAE Inc. (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, 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 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, each acting alone, or his or her 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 or on behalf of the following persons in the capacities indicated on November 3rd, 2023:
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| Signature | Title |
|
| | |
/s/ Alan N. MacGibbon Alan N. MacGibbon | Chair of the Board | |
| | |
/s/ Marc Parent Marc Parent | President and Chief Executive Officer and Director (Principal Executive Officer) | |
| | |
/s/ Ayman Antoun Ayman Antoun | Director | |
|
| |
/s/ Margaret S. (Peg) Billson Margaret S. (Peg) Billson | Director | |
| | |
/s/ Sophie Brochu Sophie Brochu | Director | |
| | |
/s/ Elise Eberwein Elise Eberwein | Director | |
| | | | | | | | |
/s/ Marianne Harrison Marianne Harrison | Director | |
| |
|
/s/ Mary Lou Maher Mary Lou Maher | Director | |
| |
|
/s/ François Olivier François Olivier | Director | |
| | |
/s/ David Perkins David Perkins | Director | |
| | |
/s/ Michael E. Roach Michael E. Roach | Director | |
| |
|
/s/ Patrick M. Shanahan Patrick M. Shanahan | Director | |
| |
|
/s/ Andrew J. Stevens Andrew J. Stevens | Director | |
| | |
/s/ Sonya Branco Sonya Branco | Executive Vice President, Finance and Chief Financial Officer (Principal Financial Officer) | |
| | |
/s/ Constantino Malatesta Constantino Malatesta | Chief Accounting Officer and Vice President, Corporate Controller (Principal Accounting Officer) | |
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of CAE Inc., has signed this Registration Statement in the City of Tampa, State of Florida on November 3rd, 2023.
AUTHORIZED U.S. REPRESENTATIVE
By: /s/ Sarah M. Graves
Name: Sarah M. Graves
Title: Vice President & General Counsel
Defense & Security, CAE USA Inc. and Authorized Representative
Calculation of Filing Fee Tables
Form S-8
(Form Type)
CAE Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1 – Newly Registered Securities
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered(ii) | Proposed Maximum Offering Price Per Share (iv) | Maximum Aggregate Offering Price (iv) | Fee Rate | Amount of Registration Fee |
| Equity | Common Shares(i) | Rule 457(h) | 10,000,000 common shares(iii) | $20.60 | $206,000,000.00 | $0.00014760 | $30,405.60 |
| Total Offering Amounts | | $206,000,000.00 | | $30,405.60 |
| Total Fee Offsets | | | | $0.00 |
| Net Fee Due | | | | $30,405.60 |
| (i) | Includes associated Common Share purchase rights. The value, if any, attributable to the rights is reflected in the market price of the Common Shares. |
| (ii) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate number of additional common shares of the Registrant (“Common Shares”) that may result from subdivisions, consolidations, reclassifications or similar transactions with respect to the Common Shares, the payment of share dividends by the Registrant, or other relevant changes in the capital of the Registrant in accordance with the provisions of the CAE Inc. Omnibus Incentive Plan, as adopted on May 31, 2023 (the “Omnibus Incentive Plan”). |
| (iii) | Common Shares available for future issuance under the Omnibus Incentive Plan. |
| (iv) | Estimated in accordance with Rule 457(c) and 457(h) solely for purposes of calculating the registration fee. The maximum price per Security and the maximum aggregate offering price are based on the average of the $20.81 (high) and $20.39 (low) prices of the Registrant’s common shares as reported on the NYSE on October 27, 2023. |
Exhibit 5.1
November 3, 2023
CAE Inc.
8585 Côte-de-Liesse
Saint-Laurent, QC H4T 1G6
Canada
Ladies and Gentlemen:
Norton Rose Fulbright Canada LLP
1 Place Ville Marie, Suite 2500 Montréal, Quebec H3B 1R1 Canada
nortonrosefulbright.com
Direct line
+1 514.847.4747
Our reference
1001133624
CAE Inc. – Registration of Common Shares on Form S-8
1SCOPE AND BACKGROUND
Introduction
1.1We have acted as Canadian counsel for CAE Inc. (the Corporation) in connection with the filing by the Corporation with the Securities and Exchange Commission (the Commission) of a Registration Statement on Form S-8 (the Registration Statement) under the Securities Act of 1933, as amended (the Securities Act), to register an aggregate of 10,000,000 common shares in the capital of the Corporation (the Common Shares) issuable pursuant to the CAE Inc. Omnibus Incentive Plan, effective as of May 31, 2023 (the Plan).
Examination of Documents
1.2We have examined and are familiar with the Registration Statement. We have made such investigations and examined such corporate records of the Corporation as we have considered necessary or relevant for our opinion, including:
1.2.1a certified copy of the Plan;
1.2.2a certified copy of the resolution adopted by the Corporation’s shareholders at the annual meeting of shareholders held on August 9, 2023 to approve the Plan;
1.2.3certified copies of the resolution adopted by the board of directors of the Corporation dated May 31, 2023 to approve the Plan and related matters; and
1.2.4a certified copy of the certificate and articles of amalgamation of the Corporation dated April 1, 2014, and the by-laws of the Corporation dated February 6, 2015 and confirmed by the shareholders of the Corporation on August 12, 2015.
1.3In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents, certificates and instruments submitted to us as originals and the conformity with originals of all documents submitted to us as copies.
CAE Inc.
November 3, 2023
Jurisdiction
1.4The opinion expressed below is limited to the laws of the Province of Quebec and the federal laws of Canada applicable therein as the same are in force at the date hereof, and we do not express any opinion herein concerning the laws of any other jurisdiction.
1.5Our 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.
2OPINION
2.1Based 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 Corporation.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and the references to our firm name therein. In giving this consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
Very truly yours,
NORTON ROSE FULBRIGHT CANADA LLP
2
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in this registration statement on form S-8 of CAE Inc. of our report dated May 31, 2023 relating to the consolidated financial statements and effectiveness of internal control over financial reporting, which appears in Exhibit 99.2 of CAE Inc.’s Annual Report on form 40-F for the year ended March 31, 2023.
/s/PricewaterhouseCoopers LLP
Montréal, Quebec, Canada
November 3, 2023
PricewaterhouseCoopers LLP
1250 René-Lévesque Boulevard West, Suite 2500, Montréal, Quebec, Canada H3B 4Y1
T: +1 514 205 5000, F: +1 514 876 1502, ca_montreal_main_fax@pwc.com, www.pwc.com/ca
“PwC” refers to PricewaterhouseCoopers LLP, an Ontario limited liability partnership.
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