AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 21, 2005
REGISTRATION NO. 333 -
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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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DATAMIRROR CORPORATION
(Exact name of Registrant as specified in its charter)
ONTARIO NOT APPLICABLE
(Jurisdiction of Incorporation) (I.R.S. Employer Identification No.)
3100 STEELES AVENUE EAST, SUITE 700
MARKHAM, ONTARIO, CANADA
L3R 8T3
(905) 415-0310
(Address and telephone number of Registrant's principal executive offices)
DATAMIRROR CORPORATION EXECUTIVE STOCK COMPENSATION PLAN
(Full title of plan)
DATAMIRROR, INC.
1600 GOLF ROAD, SUITE 1200
ROLLING MEADOWS, IL 60008
(847) 981-5066
(Name, address and telephone number of agent for service)
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Copy to:
CHRISTOPHER W. MORGAN, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
SUITE 1750, P.O. BOX 258
222 BAY STREET
TORONTO, ONTARIO, CANADA M5K 1J5
(416) 777-4700
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Title of Amount to be Offering Price Aggregate Amount of
Securities to be Registered Registered (1) Per Share Offering Price Registration Fee
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COMMON SHARES 9,000 $ 17.53(2) $ 157,808 $ 18.57
50,000 13.88(2) 693,803 81.66
30,000 13.00(2) 390,093 45.91
9,000 4.96(2) 44,596 5.25
40,000 5.62(2) 224,811 26.46
93,000 9.59(2) 892,275 105.02
20,000 6.81(2) 136,183 16.03
15,000 9.92(2) 148,779 17.51
26,000 8.85(2) 230,215 27.10
100,000 13.21(2) 1,321,095 155.49
20,000 9.44(2) 188,728 22.21
20,000 6.73(2) 134,687 15.85
30,000 7.03(2) 210,760 24.81
330,500 $ 7.89(3) 2,607,645 306.92
TOTAL 792,500 $7,381,477 $ 868.80
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Notes
(1) The Common Shares being registered relate to (i) past unexercised option
grants, with option exercise prices as indicated, and (ii) option grants
to be undertaken in the future, with the option exercise price to be
determined.
(2) In accordance with Rule 457(h)(1) and 457(c), the maximum offering price
is the option exercise price (initially expressed in Canadian dollars),
converted into U.S. dollars using a factor of 0.8314, the inverse of the
noon buying rate in New York City for cable transfers payable in Canadian
dollars, as certified for customs purposes by the Federal Reserve Bank of
New York on March 17, 2005.
(3) In accordance with Rule 457(h)(1) and 457(c), the maximum offering price
is calculated by using the average of the bid and asked prices of the
Registrant's common shares on the Nasdaq National Market on March 17,
2005.
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EXPLANATORY NOTE
This Registration Statement is filed by the Company to register additional
securities issuable pursuant to the Executive Stock Compensation Plan and
consists of only those items required by General Instruction E to Form S-8. The
contents of the previously filed Registration Statement on Form S-8 with
respect to the same class of securities, dated April 5, 2002 (File No.
333-85942), are incorporated by reference herein.
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
ITEM 8. EXHIBITS
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The following exhibits are attached hereto:
Exhibit
Number Description
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4.1 Articles of Amalgamation of DataMirror Corporation, as
currently in effect.(1)
4.2 By-laws of DataMirror Corporation, as currently in
effect.(1)
4.3 Specimen DataMirror Corporation share certificate.(1)
4.4 DataMirror Shareholder Rights Plan, dated as of May 7,
2002.(1)
5.1 Opinion of Blake, Cassels & Graydon LLP as to the
legality of the securities being registered
23.1 Consent of Blake, Cassels & Graydon LLP (included in
Exhibit 5.1 to this Registration Statement)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on Signature pages of this
Registration Statement).
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(1) Incorporated by reference to the Company's Annual Report on Form 20-F,
filed on June 20, 2002.
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 Toronto, Province of Ontario, Canada, on March
21, 2005.
DATAMIRROR CORPORATION
By: /s/ Peter F. Cauley
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Peter F. Cauley
Vice President, Finance and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN AND WOMEN BY THESE PRESENTS, that each officer or
director of DataMirror Corporation whose signature appears below constitutes
and appoints Nigel W. Stokes and Peter F. Cauley, and each of them, with full
power to act without the other, his true and lawful attorneys-in-fact and
agents, with full and several power of substitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments,
including post-effective amendments, and supplements 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, granting
unto said 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 in and
about the premises, as fully to all intents and purposes as they or he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents 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 below by or on behalf of the following
persons in the capacities indicated, on March 21, 2005.
Signature Title
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/s/ Nigel W. Stokes
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Nigel W. Stokes Chairman, President and Chief Executive
Officer (Principal Executive Officer)
/s/ Peter F. Cauley
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Peter F. Cauley Vice President, Finance and Chief Financial
Officer (Principal Financial Officer and
Principal Accounting Officer)
/s/ P. Kirk Dixon
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P. Kirk Dixon Director
/s/ Donald L. Lenz
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Donald L. Lenz Director
/s/ Bryan E. Plug
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Bryan E. Plug Director
/s/ Keith Powell
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Keith Powell Director
/s/ E. Herman Wallenburg
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E. Herman Wallenburg Director
/s/ Donald Woodley
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Donald Woodley Director
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 DataMirror Corporation and has duly caused this Registration
Statement to be signed on behalf of it by the undersigned, thereunto duly
authorized, in the City of Toronto, Province of Ontario, Canada, on March 21,
2005.
DATAMIRROR, INC.
(Authorized U.S. Representative)
By: /s/ Peter F. Cauley
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Name: Peter F. Cauley
Title: Director
INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 Articles of Amalgamation of DataMirror Corporation, as
currently in effect.(1)
4.2 By-laws of DataMirror Corporation, as currently in
effect.(1)
4.3 Specimen DataMirror Corporation share certificate.(1)
4.4 DataMirror Shareholder Rights Plan, dated as of May 7,
2002.(1)
5.1 Opinion of Blake, Cassels & Graydon LLP as to the
legality of the securities being registered
23.1 Consent of Blake, Cassels & Graydon LLP (included in
Exhibit 5.1 to this Registration Statement)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on Signature pages of this
Registration Statement).
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(1) Incorporated by reference to the Company's Annual Report on Form 20-F,
filed on June 20, 2002.
EXHIBIT 5.1
BLAKE, CASSELS & GRAYDON LLP
Box 25, Commerce Court West
199 Bay Street
Toronto, Ontario, Canada
M5L 1A9
Deliveries: 28th Floor
Telephone: 416.863.2400
Facsimile: 416.863.2653
www.blakes.com
Reference: 51923/1
March 21, 2005
DataMirror Corporation
3100 Steeles Avenue East
Suite 1100
Markham, ON L3R 8T3
Dear Sir or Madam:
Re: Registration Statement on Form S-8 Relating to the Executive
Stock Option Plan (the "Plan")
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Reference is made to the above-captioned Registration Statement on Form S-8
(the "Registration Statement") filed by DataMirror Corporation (the "Company")
on the date hereof with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, relating to the registration of a total of
792,500 Common Shares of the Company issuable pursuant to options granted under
the Plan (the "Shares").
We have examined, and are familiar with, and have relied as to factual matters
solely upon, a copy of the Plan, the currently effective articles and by-laws
of the Company, resolutions of the Board of Directors and the shareholders of
the Company and originals or copies of such other documents, certificates and
proceedings as we have deemed necessary for the purpose of rendering this
opinion.
In our examinations, we have assumed the genuineness of all signatures, the
legal capacity of all individuals, the authenticity of all documents submitted
to us as originals and the conformity to the originals of all documents
submitted to us as certified, conformed, telecopies, facsimiles or photostatic
copies.
Based on the foregoing, we are of the opinion that the Shares have been duly
authorized and, when issued and paid for in accordance with the terms of the
Plan and the terms of any agreement relating to such issuance, will be validly
issued and fully paid and non-assessable.
We acknowledge that we are referred to in Item 8 of the Registration Statement
and we hereby consent to the use of this opinion and consent for filing with
the Registration Statement as Exhibits 5.1 and 23.1 thereto.
This opinion is rendered solely for the benefit of DataMirror Corporation and
may not be used or relied upon for any other purpose or used or relied upon by
any other person without our prior written consent.
Yours truly,
(signed) BLAKE, CASSELS & GRAYDON LLP
EXHIBIT 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-00000) pertaining to the Executive Stock Compensation Plan of
DataMirror Corporation of our report dated March 5, 2004 [except as to note 21,
which is as of May 14, 2004], with respect to the consolidated financial
statements of DataMirror Corporation included in its Annual Report (Form
20-F/A), for the year ended January 31, 2004, filed with the Securities and
Exchange Commission.
Our audits also included the financial statement schedule of DataMirror
Corporation included on page 99 of the Annual Report (Form 20-F/A) for the year
ended January 31, 2004. This schedule is the responsibility of the Company's
management. Our responsibility is to express an opinion based on our audits. In
our opinion, the financial statement schedule referred to above, when
considered in relation to the basic financial statements taken as a whole,
presents fairly in all material respects the information set forth therein.
Toronto, Canada /s/ ERNST & YOUNG LLP
March 21, 2005 Chartered Accountants