As filed with the Securities and Exchange Commission on September 29, 2003
Registration No. 333-______
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UNITED STATES
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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E-SIM LTD.
(Exact Name of Registrant as Specified in its Charter)
ISRAEL N/A
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
19 HARTUM STREET,
JERUSALEM 91450, ISRAEL
972-2-587-0770
(Address, Including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices )
1999 SHARE OPTION PLAN
(Full Title of the Plan)
E-SIM INC.
225 S. LAKE AVENUE, SUITE 300,
PASADENA, CA 91101
PHONE (626) 584-7810
(Name and Address, Including Zip Code,
and Telephone Number, Including Area Code, of Agent For Service)
COPIES TO:
DAVID P. STONE, ESQ. ZVI NIXON, ADV.
WEIL, GOTSHAL & MANGES LLP ELCHANAN LANDAU LAW OFFICES
767 FIFTH AVENUE 38 KEREN HAYESSOD STREET
NEW YORK, NEW YORK 10153 JERUSALEM 92149, ISRAEL
TELEPHONE: (212) 310-8000 TELEPHONE: 972-2-561-8845
FACSIMILE: (212) 310-8007 FACSIMILE: 972-2-561-8847
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT OFFERING AGGREGATE AMOUNT OF
SECURITIES TO TO BE PRICE PER OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) SHARE PRICE FEE
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Ordinary shares, par value NIS 0.1 per share 502,996 (2) $0.255 (3) $128,264 (3) $11
===================================================================================================================================
Ordinary shares, par value NIS 0.1 per share 1,297,004 (4) $0.155(4) $201,036 (4) $17
===================================================================================================================================
TOTAL 1,800,000 $329,300 $28
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(1) 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.
(2) Represents the registration of 502,996 ordinary shares of e-SIM LTD.
issuable upon exercise of options reserved for grant under the 1999 Share
Option Plan.
(3) 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
based upon the average of the bid and asked price of the ordinary shares of
e-SIM LTD. as quoted on the OTC Bulletin Board for September 25, 2003.
(4) Represents the registration of 1,297,004 ordinary shares of e-SIM LTD.
issuable upon exercise of options granted under the 1999 Share Option Plan
with a weighted average exercise price per share of $0.155.
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EXPLANATORY NOTE
e-SIM LTD. (the "Company") has prepared this Registration Statement
in accordance with the requirements of Form S-8 under the Securities Act of
1933, as amended (the "Securities Act") to register the ordinary shares issuable
upon the exercise of options to purchase ordinary shares pursuant to the
provisions of the Company's 1999 Share Option Plan (the "1999 Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The documents containing the information specified in Part I of this
Registration Statement will be sent or given to employees as specified by 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. 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.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Upon written or oral request, any of the documents incorporated by
reference in Item 3 of Part II of this Registration Statement (which documents
are incorporated by reference in the Section 10(a) Prospectus), along with other
documents required to be delivered to eligible employees pursuant to Rule 428(b)
or additional information about the 1999 Plan are available without charge by
contacting:
e-SIM LTD.
19 Hartum Street,
Jerusalem 91450, Israel
Attn: Yaron Eldad, Chief Financial Officer and Chief Operating Officer
972-3-587-0770
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with or furnished to the Commission by
the Company (File No. 1-14842) are incorporated herein by reference and made a
part hereof:
(a) The Company's Annual Report on Form 20-F for the fiscal year
ended January 31, 2003 filed with the Commission on July 31, 2003
(except for exhibits 12.2 and 12.3 thereto);
(b) Our reports on Form 6-K furnished to the Commission on July 10,
2003 and August 25, 2003;
(c) The description of our ordinary shares set forth in the
Prospectus, dated July 7, 1998, contained in the Company's
Registration Statement on Form F-1 (No. 333-8830) filed with the
Commission on July 7, 1998, including any other amendment or
report filed for the purpose of updating such description.
In addition, unless otherwise stated herein, all documents
subsequently filed with the Commission by the Company pursuant to Sections
13(a), 13(c) and 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (except for certifications pursuant 18 U.S.C. Section 1350 as
adopted pursuant to Section 906 of the Sarbanes Oxley Act) and to the extent, if
at all, designated therein, certain reports on Form 6-K furnished by us 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 document will be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this document or in any other subsequently filed
document which also is or is deemed to be incorporated by reference in this
document 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 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 Israeli Companies Law, 5759-1999, referred to as the
Companies Law, an Israeli company may not exempt an office holder from liability
with respect to a breach of his or her duty of loyalty, but may exempt in
advance an office holder from his or her liability to the company, in whole or
in part, with respect to a breach of his or her duty of care.
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Office Holder Insurance
Our articles of association provide that, subject to the provisions
of the Companies Law, we may enter into a contract for the insurance of the
liability of any of our office holders with respect to:
o a breach of his or her duty of care to us or to another person;
o a breach of his or her fiduciary duty to us, provided that the
office holder acted in good faith and had reasonable cause to
assume that his or her act would not prejudice our interests;
o a financial liability imposed upon him or her in favor of another
person concerning an act performed by him or her in his or her
capacity as an office holder; or
o any other incident for which it is or shall be permitted to
insure the liability of an office holder.
Indemnification of Office Holders
Our articles of association provide that we may indemnify an office
holder against:
o a monetary liability imposed on him or her in favor of another
person pursuant to a judgment, including a judgment given in a
settlement or an arbitrator's award approved by the court
concerning an act performed in his or her capacity as an office
holder;
o reasonable litigation expenses, including legal fees, incurred by
an office holder or which he or she is ordered to pay by a court,
in proceedings we institute against him or instituted on our
behalf or by another person, or in a criminal charge from which
he or she was acquitted, or a criminal charge in which he or she
was convicted for a criminal offense that does not require proof
of intent, in each case relating to an act performed in his or
her capacity as an office holder; and
o any other obligation or expense for which it is or shall be
permitted to indemnify a director or an officer.
The Companies Law provides that a company may exempt an office holder
prospectively from liability, in whole or in part, for damage resulting from a
breach of his or her duty of care towards the company, if its articles of
association so provide. On July 13, 2001, our shareholders approved new articles
of association enabling us to provide our office holders with prospective
indemnification in accordance with the Companies Law.
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Limitations on Insurance and Indemnification
The Companies Law provides that a company may not indemnify an office
holder nor enter into an insurance contract that would provide coverage for any
monetary liability incurred as a result of any of the following:
o a breach by the office holder of his or her duty of loyalty
unless the office holder acted in good faith and had a reasonable
basis to believe that the act would not prejudice the company;
o a breach by the office holder of his or her duty of care if the
breach was done intentionally or recklessly;
o any act or omission done with the intent to derive an illegal
personal benefit; or
o any fine levied against the office holder as a result of a
criminal offense.
Under the Companies Law, the shareholders of a company may include in
its articles of association either of the following provisions:
o a provision authorizing the company to grant in advance an
undertaking to indemnify an office holder, provided that the
undertaking is limited to specified classes of events which the
board of directors deem foreseeable at the time of grant and is
limited to an amount determined by the board of directors to be
reasonable under the circumstances; or
o a provision authorizing the company to retroactively indemnify an
office holder.
Each of the foregoing provisions is included in our articles of
association that have been approved by our shareholders.
In addition, under the Companies Law, indemnification of, and
procurement of insurance coverage for, our office holders must be approved by
our audit committee and board of directors and, in specified circumstances, by
our shareholders.
Our shareholders have approved an indemnification of our directors to
the maximum extent permitted by the Companies Law and exculpation of the
directors from all liability for damage resulting from any director's breach of
care towards us, pursuant to the provisions of the articles of association. We
have acquired directors' and officers' liability insurance covering our officers
and directors for certain claims.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
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4.1 - Memorandum of Association of the Company
(English translation accompanied by
Hebrew original) (previously filed as
Exhibit 3.1 to Amendment No. 1 of the
Company's Registration Statement on Form
F-1 (File No. 333-8830), filed with the
Commission on December 7, 1997, and
incorporated herein by reference).
4.2 - Articles of Association of the Company,
as amended (previously filed as Exhibit
1.2 to the Company's Annual Report on
Form 20-F for the year ended January 31,
2001).
4.3 - 1999 Share Option Plan of the Company
(previously filed as Exhibit 4.3 to the
Company's Annual Report on Form 20-F for
the year ended January 31, 2001).
5 - Opinion of Elchanan Landau Law Offices.
23.1 - Consent of independent auditors Kost,
Forer & Gabbay a member of Ernst & Young
global.
23.2 - Consent of Elchanan Landau Law Offices
(included in Exhibit 5).
24 - Power of Attorney (included as part of
this Registration Statement).
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 the effective Registration
Statement; and
II-4
(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 paragraph (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a
post-effective amendment by the foregoing paragraphs is
contained in periodic reports, filed with or furnished to
the Commission by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act, that are incorporated by
reference in the 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.
(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 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.
(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 Securities and Exchange 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.
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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 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 Jerusalem, State of
Israel, on this 29th day of September, 2003.
e-SIM LTD.
By: /s/ Yaron Eldad
-------------------------------------
Name: Yaron Eldad
Title: Chief Financial Officer
and Chief Operating Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Marc Belzberg and Yaron Eldad, and each
of them, his/her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him/her and in his/her 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, granting unto said attorney-in-fact and agent 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/she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent, or his/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, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Marc Belzberg
----------------- Chairman of the Board of Directors and
Marc Belzberg Chief Executive Officer September 29, 2003
/s/ Yaron Eldad
---------------
Yaron Eldad Chief Financial Officer and Chief Operating Officer September 29, 2003
/s/ Galit David
---------------
Galit David Controller September 29, 2003
/s/ Samuel Belzberg
-------------------
Samuel Belzberg Director September 29, 2003
/s/ Amir Galili
---------------
Amir Galili Director September 29, 2003
/s/ John McDonald
-----------------
John McDonald Vice Chairman of the Board of Directors September 29, 2003
/s/ Christine Snow
---------------------
Christine Snow Director September 29, 2003
Authorized Representative
in the United States September 29, 2003
e-SIM INC.
/s/ Christine Snow
---------------------
By: Christine Snow
Title: Controller
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------ ----------------------
4.1 - Memorandum of Association of the Company
(English translation accompanied by
Hebrew original) (previously filed as
Exhibit 3.1 to Amendment No. 1 of the
Company's Registration Statement on Form
F-1 (File No. 333-8830), filed with the
Commission on December 7, 1997, and
incorporated herein by reference).
4.2 - Articles of Association of the Company,
as amended (previously filed as Exhibit
1.2 to the Company's Annual Report on
Form 20-F for the year ended January 31,
2001).
4.3 - 1999 Share Option Plan of the Company
(previously filed as Exhibit 4.3 to the
Company's Annual Report on Form 20-F for
the year ended January 31, 2001).
5 - Opinion of Elchanan Landau Law Offices.
23.1 - Consent of independent auditors Kost,
Forer & Gabbay a member of Ernst & Young
global.
23.2 - Consent of Elchanan Landau Law Offices
(included in Exhibit 5).
24 - Power of Attorney (included as part of
this Registration Statement).
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