ON Track Innovations Ltd - Securities Registration: Employee Benefit Plan (S-8)
March 06 2008 - 4:02PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ON TRACK INNOVATIONS
LTD.
(Exact Name of
Registrant as Specified in its Charter)
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Israel
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N/A
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(State or Other Jurisdiction of
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(I.R.S. Employer Identification No.)
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Incorporation or Organization)
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Z.H.R. Industrial Zone
P.O. Box 32, Rosh
Pina, Israel 12000
(Address, Including
Zip Code, of Registrants Principal Executive Offices)
2008 EMPLOYEE STOCK
PURCHASE PLAN
(Full Title of the
Plan)
Ohad Bashan
Chief Executive Officer
OTI America, Inc.
2 Executive Drive, Suite 740
Fort Lee, New Jersey 07024
(201) 944-3233
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent for Service)
With copies to:
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Edwin L. Miller Jr., Esq.
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Shmuel Zysman, Adv.
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Zysman, Aharoni, Gayer & Co. & Sullivan &
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Zysman, Aharoni, Gayer & Ady Kaplan & Co.
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Worcester & Co. LLP
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Law Offices
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One Post Office Sq.
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41-45 Rothschild Bl., "Beit-Zion"
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Boston, Massachusetts 02109
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Tel Aviv 65748, Israel
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(617) 338-2800
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(011) 972-3-795-5555
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CALCULATION OF
REGISTRATION FEE
Title of Securities to be Registered
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Amount to Be
Registered
(1)
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Proposed
Maximum
Offering
Price Per
Share
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Proposed Maximum
Aggregate
Offering
Price
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Amount of
Registration
Fee
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Ordinary shares, par value NIS 0.1 per share
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1,500,000
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$
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2.99
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(2)
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$
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4,485,000
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(2)
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$
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176.26
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(1)
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Plus
such indeterminate number of ordinary shares as may be issued to prevent
dilution resulting from stock dividends, stock splits or similar transactions
in accordance with Rule 416 under the Securities Act of 1933, as amended.
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(2)
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Estimated
solely for the purpose of calculating the registration fee pursuant to Rule
457(h) and Rule 457(c) under the Securities Act of 1933, as amended, based upon
$2.99, the average of the high and low sales prices of the registrants
ordinary shares on the Nasdaq Global Market on March 4, 2008.
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PART I
INFORMATION REQUIRED
IN THE SECTION 10(A) PROSPECTUS
Item 1.
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Plan
Information *
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Item 2.
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Registrant
Information and Employee Plan Annual information *
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*
The documents containing the information in this item will be sent or given to employees
as specified by Rule 428(b)(1). In accordance with the rules and regulations of the
Securities and Exchange Commission (the Commission) and the instructions to
Form S-8, such documents are not being filed with the Commission either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, 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
Item 3.
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Incorporation
of Documents by Reference.
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The
following documents filed with or furnished to the Securities and Exchange Commission
(the SEC) by the Company are incorporated herein by reference and made a part
hereof:
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the
Companys Annual Report on Form 20-F for the fiscal year ended December 31, 2006,
filed with the SEC on June 25, 2007 (SEC File No. 0-49877);
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the
Companys Reports on Form 6-K furnished to the SEC on March 6, 2007, on March 29,
2007, on May 31, 2007, on August 28, 2007 and on November 27, 2007 (excluding all
financial information not prepared in accordance with US generally accepted accounting
principles (GAAP), identified as Non-GAAP financial information or measures); and
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the
description of the Companys ordinary shares contained in its Registration Statement
on Form 8-A filed with the SEC on June 19, 2002 (SEC File No. 0-49877).
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In
addition, unless otherwise stated herein, all documents subsequently filed with the SEC by
the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the Exchange Act), and to the extent, if at all, stated
therein, certain reports on Form 6-K furnished by the Company prior to the filing of a
post-effective amendment to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated or deemed to be incorporated by reference in this
Registration Statement will be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained in this Registration
Statement or in any other subsequently filed document which also is or is deemed to be
incorporated by reference in this Registration Statement modifies or supersedes such
statement. Any such statement so modified or superseded will not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 6.
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Indemnification
of Directors and Officers.
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Under
the Companies Law, an Israeli company may only exculpate an office holder in advance, in
whole or in part, for breach of duty of care and only if a provision authorizing such
exculpation is included in its articles of association. The Companys articles of
association include such a provision. An Israeli company may not exculpate an office
holder in advance from his or her liability towards the company which is caused by a
breach of duty of care in case of Distribution (as such term is defined in the Companies
Law). An Israeli company may not exculpate an office holder for breach of duty of loyalty.
However, the company may approve an act performed in breach of the duty of loyalty of an
office holder provided that the office holder acted in good faith, the act or its approval
does not harm the company, and the office holder discloses the nature of his or her
personal interest in the act and all material facts and documents a reasonable time before
discussion of the approval.
Under
the Companies Law, an Israeli company may indemnify an office holder in respect of certain
liabilities either in advance of an event or following an event provided a provision
authorizing such indemnification is inserted in its articles of association. Advance
indemnification of an office holder must be limited to the following:
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a
financial liability imposed on him in favor of another person pursuant to a judgment,
settlement or arbitrators award approved by court, provided that the
indemnification shall be limited to events which are determined by the board of
directors, are foreseeable in light of the companys activities at the time when the
obligation for indemnification is granted, and to amounts and standards which are
determined by the board of directors as reasonable in such event, and provided that the
obligation for indemnification will specify the said events and amounts or standards;
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reasonable
litigation expenses, including attorneys fees, incurred by the office holder or
imposed by a court in proceedings instituted against him by the company, on its behalf or
by a third party, in connection with criminal proceedings in which the office holder was
acquitted or as a result of conviction for a crime that does not require proof of
criminal intent; and
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reasonable
litigation expenses, including attorneys fees, incurred by the office holder due to
investigation or proceedings instituted against the office holder by an authority
authorized to conduct such investigation or proceedings and ended without filing an
indictment against him and without imposing monetary liability as an alternative to
criminal proceedings or ended without filing an indictment against him but in imposing
monetary liability as an alternative to criminal proceedings for a crime that does not
require proof of criminal intent.
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An
Israeli company may insure an office holder against the following liabilities incurred for
acts performed as an office holder if a provision authorizing such insurance is included
in its articles of association:
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a breach of duty of loyalty to the company, to the extent that the office holder acted in
good faith and had a reasonable basis to believe that the act would not prejudice the
company;
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a
breach of duty of care to the company or to a third party; and
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a
financial liability imposed on the office holder in favor of a third party.
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An
Israeli company may not indemnify, exculpate or insure an office holder against any of
the following:
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a
breach of duty of loyalty, except to the extent that the office holder acted in good
faith and had a reasonable basis to believe that the act would not prejudice the company;
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a
breach of duty of care committed intentionally or recklessly except if such recklessness
is made solely negligently;
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an
act or omission committed with intent to derive illegal personal benefit; or
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a
fine levied against the office holder.
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The
Companys articles of association provide that the Company may indemnify and insure
its office holders to the fullest extent permitted by the Companies Law. The
Companys office holders are currently covered by a directors and officers
liability insurance policy with an aggregate claim limit of $5 million.
See
the Exhibit Index attached hereto for a list of the exhibits being filed with this
Registration Statement.
(a)
The undersigned registrant hereby undertakes to file, during any period in which
offers or sales are being made, a post-effective amendment to this Registration
Statement 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.
(b)
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the
registrants annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(c)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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 this
Registration Statement 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 Rosh
Pina, State of Israel, on this __ day of March, 2008.
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ON TRACK INNOVATIONS LTD.
By: /s/ ODED BASHAN
Oded Bashan
Chairman of the Board of Directors
Chief Executive Officer
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POWER OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes
and appoints Oded Bashan, his true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for him and in his name, place and stead, in any and
all capacities, to (i) act on, sign and file with the Securities and Exchange Commission
any and all amendments (including post-effective amendments) to this Registration
Statement together with all schedules and exhibits thereto and any subsequent registration
statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
together with all schedules and exhibits thereto, (ii) act on, sign and file such
certificates, instruments, agreements and other documents as may be necessary or
appropriate in connection therewith, (iii) act on and file any supplement to any
prospectus included in this Registration Statement or any such amendment or any subsequent
registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933, as
amended, and (iv) take any and all actions which may be necessary or appropriate to be
done, as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming that all said attorneys-in-fact and agents or any of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act, this Registration Statement has been signed by
the following persons in the capacities and on the date indicated.
/S/ ODED BASHAN
Oded Bashan
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Chairman of the Board of Directors
and Chief Executive Officer
(Principal Executive Officer)
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March 6, 2008
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/S/ GUY SHAFRAN
Guy Shafran
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Chief Financial Officer (Principal
Financial and Accounting Officer)
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March 6, 2008
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/S/ RONNIE GILBOA
Ronnie Gilboa
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Vice President - Projects and
Director
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March 6, 2008
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/S/ SHLOMI TUSSIA-COHEN
Shlomi Tussia-Cohen
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Director
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March 6, 2008
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/S/ OHAD BASHAN
Ohad Bashan
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President
Director
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March 6, 2008
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/S/ ELIEZER MANOR
Eliezer Manor
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Director
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March 6, 2008
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/S/ ORA SETTER
Ora Setter
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Director
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March 6, 2008
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/S/ ELI AKAVIA
Eli Akavia
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Director
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March 6, 2008
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/S/ RA'ANAN ELLRAN
Ra'anan Ellran
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Director
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March 6, 2008
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Authorized Representative in the
United States:
OTI AMERICA, INC.
/S/ OHAD BASHAN
Ohad Bashan
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March 6, 2008
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EXHIBIT INDEX
Exhibit
Number
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Exhibit
Description
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4.1
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Specimen
share certificate*
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4.2
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Memorandum
of Association, dated as of February 14, 1990, and Certificate of Change of
Name, dated as of July 22, 1998*
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4.3
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Amended
Articles of Association dated as of June 14, 2002*
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5.1
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Opinion
of Zysman, Aharoni, Gayer & Ady Kaplan & Co., Law Offices, Israeli counsel to the
Registrant, as to the validity of the ordinary shares (including consent)
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23.1
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Consent
of Somekh, Chaikin, a member firm of KPMG International, Independent Registered
Public Accounting Firm
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23.2
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Consent
of Zysman, Aharoni, Gayer & Ady Kaplan & Co., Law Offices, Israeli counsel to the
Registrant (included in Exhibit 5.1)
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24.1
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Powers
of attorney (included on the signature page to the Registration Statement)
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99.1
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2008
Employee Stock Purchase Plan
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*
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Incorporated
herein by reference from the Registrants Registration Statement on Form F-1
(Registration No. 333-90496), filed with the SEC on June 14, 2002.
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