As filed with the Securities and Exchange Commission on September 6, 2002
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RADVIEW SOFTWARE LTD.
(Exact Name of Registrant as Specified in Its Charter)
ISRAEL NOT APPLICABLE
(State or Other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) Number)
7 NEW ENGLAND EXECUTIVE PARK
BURLINGTON, MASSACHUSETTS 01803
(Address, including zip code, of principal executive offices)
RADVIEW SOFTWARE LTD. EMPLOYEE SHARE PURCHASE PLAN
(Full Title of the Plan)
BRIAN E. LECLAIR
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
RADVIEW SOFTWARE LTD.
7 NEW ENGLAND EXECUTIVE PARK
BURLINGTON, MASSACHUSETTS 01803
(781) 238-1111
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies of all communications, including all communications sent to
the agent for service, should be sent to:
NEIL GOLD, ESQ. GALAI SHARIR, ADV.
FULBRIGHT & JAWORSKI L.L.P. SHARIR, SHIV, FRIEDMAN & CO. LAW OFFICES
666 FIFTH AVENUE 72 PINHAS ROSEN STREET0
NEW YORK, NEW YORK 10103 TEL AVIV, ISRAEL 69512
(212) 318-3000 (972-3) 644-0105
FACSIMILE: (212) 318-3400 FACSIMILE: (972-3) 644-0106
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities Amount to be offering price per aggregate offering Amount of
to be registered registered (1) share (2) price registration fee
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Ordinary Shares, NIS 0.01 1,500,000 Ordinary
Nominal Value Per Share Shares $0.3105 $465,750 $42.85
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(1) Plus such additional indeterminable number of shares as may be required
pursuant to the RadView Software Ltd. Employee Share Purchase Plan in
the event of a stock dividend, stock split, recapitalization or other
similar change in the ordinary shares.
(2) Computed in accordance with Rule 457(h) under the Securities Act of
1933, as amended, such computation is based on $0.3105 per share (the
average of the high and the low prices of the registrant's ordinary
shares as reported on the Nasdaq SmallCap Market on August 30, 2002).
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PART I
INFORMATION REQUIRED IN THE PROSPECTUS
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission"), the documents containing the information called
for in Part I of Form S-8 will be sent or given to individuals who participate
in the RadView Software Ltd. Employee Share Purchase Plan adopted by RadView
Software Ltd. (the "Company" or the "Registrant") and are not being filed with
or included in this Form S-8.
The Company has received from the Securities Authority of the State of
Israel an exemption from Israel's prospectus delivery requirements applicable to
this offering. Nothing in such exemption shall be construed as authenticating
the matters contained or incorporated by reference into this Registration
Statement or as an approval of their reliability or adequacy or as an expression
of opinion as to the quality of the securities offered hereby.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by RadView Software Ltd. (the "Company") with
the Securities and Exchange Commission are incorporated by reference in this
Registration Statement:
(i) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001, as amended on Form 10-K/A.
(ii) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2002.
(iii) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2002.
(iv) The description of the Company's Ordinary Shares contained in its
Registration Statement on Form 8-A (File No. 000-31151) filed
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") on July 25, 2000, including any
amendment or report filed for the purpose of updating such
description.
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment indicating that all of the
securities offered hereunder have been sold or deregistering all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated by reference in
this Registration Statement 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 subsequently filed document that is also 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.
INFORMATION REGARDING FINANCIAL STATEMENTS INCORPORATED BY REFERENCE INTO
THIS REGISTRATION STATEMENT
Our independent auditors, Luboshitz Kasierer ("Luboshitz"), were a foreign
affiliate of Arthur Andersen LLP ("Andersen"). After reasonable effort, we have
been unable to obtain the consent of Andersen for the incorporation by reference
of the report dated February 6, 2002, included in our Annual Report on Form
10-K, as amended, for the year ended December 31, 2001. Under these
circumstances, Rule 437a under the Securities Act of 1933 permits us to file
this Registration Statement without a written consent from Andersen. The absence
of such consent may limit recovery by investors on certain claims. In
particular, and without limitation, investors will not be able to recover
against Luboshitz or Andersen under Section 11 of the Securities Act for any
untrue statements of a material fact contained in the financial statements
audited by Andersen incorporated by reference herein or any omissions to state a
material fact required to be stated therein.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Association provide that, to the extent permitted
by the Israeli Companies Law 5759-1999 (the "Law") the Company may indemnify its
office holders for liability or expense incurred by an office holder as a result
of an act done by him in his capacity as an office holder, as follows:
(i) Financial liability imposed on him in favor of another person by a
court judgment, including a settlement judgment or an arbitrator's
award approved by a court; and
(ii) Reasonable litigation expenses, including attorney's fees, expended
by an office holder or charged to him by a court, in proceedings
filed against him by the Company or on its behalf or by another
person, or in a criminal charge from which he was acquitted, or in a
criminal charge of which he was convicted of a crime which does not
require a finding of criminal intent.
The Law and the Company's Articles of Association provide that, subject to
certain limitations, the Company may undertake in advance to indemnify its
office holders.
The Company's Articles of Association provide that, to the extent permitted
by the Law, the Company may enter into a contract for the insurance of the
liability of its office holders in respect of a liability imposed on an office
holder as a result of an act done by him in his capacity as an office holder,
including the following:
(i) a breach of his duty of care to the Company or to another person;
(ii) a breach of his duty of loyalty to the Company, provided that he
acted in good faith and had reasonable grounds to assume that his act
would not harm the Company; or
(iii) financial liability imposed upon him in favor of another person.
These provisions are specifically limited in their scope by the Law, which
provides that a company may not indemnify or procure insurance for the liability
of an office holder for:
(i) a breach of the duty of loyalty, unless the office holder acted in
good faith and had reasonable grounds to assume that the action would
not harm the company;
(ii) an intentional or reckless breach of the duty of care;
(iii) an act done with the intent to unlawfully realize personal gain; or
(iv) a criminal fine or penalty imposed on the office holder.
In addition, the Company's Articles of Association provide that, to the
extent permitted by the Law, the Company may release an office holder, in
advance, from liability, in whole or in part, for damages resulting from a
breach of his duty of care to the Company.
The Company has agreed to indemnify its office holders to the fullest
extent permitted under the Law. In June 2000, the Company procured liability
insurance in the amount of $5,000,000, insuring its directors and offices in
connection with their service to the Company.
In July 2000, the Company undertook to indemnify, subject to the provisions
of the Law, its office holders, for liability or expense incurred thereby in
connection with certain claims, specified in the arrangement, related to an
action or inaction on the part of the office holder while serving in such
capacity. The indemnity of any such claim will not exceed a specified maximum
amount. In addition, this arrangement includes an exemption and release of our
office holders from any liability related to any breach by an office holder of
said officer's duty of care to the Company, to the maximum extent permitted by
the Law.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
5.1 Opinion of Sharir, Shiv, Friedman and Co., Law Offices, as to the legality
of shares being registered.
23.1 Consent of Sharir, Shiv, Friedman and Co., Law Offices (included in
opinion of counsel filed as Exhibit 5.1).
24 Power of Attorney (included on the signature page 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 of 1933;
(ii) To reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in
the information 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;
(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) do
not apply if the registration statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the registrant pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
II-3
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's 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 Securities Act of 1933
and is, therefore, unenforceable. In the event 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 of the registrant 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 of 1933 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, 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 Burlington, Massachusetts on the 5th day of September, 2002.
RADVIEW SOFTWARE LTD.
By: /S/ BRIAN E. LECLAIR
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Brian E. LeClair
Vice President and Chief
Financial Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Ilan Kinreich and Brian E. LeClair or
either of them, 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 sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same with all
exhibits thereto, and all documents in connection therewith, with the Securities
and Exchange Commission, granting said attorney-in-fact and agent, 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 and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or either 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 of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
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/S/ ILAN KINREICH Chief Executive Officer (principal executive September 5, 2002
- ------------------------------------ officer)
Ilan Kinreich
/S/ BRIAN E. LECLAIR Chief Financial Officer September 5, 2002
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Brian E. LeClair
/S/ SHAI BEILIS Chairman of the Board of Directors September 5, 2002
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Shai Beilis
/S/ ROBERT STEINKRAUSS Director September 5, 2002
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Robert Steinkrauss
/S/ WILLIAM J. GEARY Director September 5, 2002
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William J. Geary
/S/ KATHLEEN A. COTE Director September 5, 2002
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Kathleen A. Cote
INDEX TO EXHIBITS
Exhibit
NO. DESCRIPTION
5.1 Opinion of Sharir, Shiv, Friedman and Co. Law Offices, as to the
legality of shares being registered.
23.1 Consent of Sharir, Shiv, Friedman and Co. Law Offices (included in
opinion of counsel filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page of this Registration
Statement).