As filed with the Securities and Exchange Commission on June 30, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ESC MEDICAL SYSTEMS LTD.
-------------------------
(Exact name of registrant as specified in its charter)
Israel Not Applicable
------------------------------ ----------------------------------
(State or other jurisdiction of (I.R.S. employer identification no.)
incorporation or organization)
Yokneam Industrial Park
Yokneam, Israel 20692 20692
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(Address of principal executive offices) (Zip code)
ESC MEDICAL SYSTEMS LTD.
1999 SHARE OPTION PLAN
---------------------------------
(Full title of the plans)
Mr. Louis Scafuri
ESC Medical Systems, Inc.
150 Morse Street
Norwood, MA 02062
(781) 278-7600
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(Name, address and telephone number, including area
code, (Zip code) of agent for service)
With Copies to:
David J. Friedman, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
(212) 735-2218
CALCULATION OF REGISTRATION FEE
===============================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Offering Registration
to be Registered Registered (1) Per Share(2) Price(2) Fee
===============================================================================================
Ordinary Shares,
par value
NIS 0.10 per share 5,000,000 shares $15.51 $77,550,000 $20,473
===============================================================================================
(1) This Registration Statement shall also cover any additional Ordinary
Shares which become issuable under the 1999 Share Option Plan pursuant to
this Registration Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Registrant's outstanding Ordinary Shares.
(2) Estimated solely for the purpose of calculating the registration fee.
ESC MEDICAL SYSTEMS LTD. HAS RECEIVED FROM THE SECURITIES AUTHORITY OF THE
STATE OF ISRAEL AN EXEMPTION FROM THE OBLIGATION TO PUBLISH A PROSPECTUS
PURSUANT TO ISRAELI LAW. NOTHING IN SUCH EXEMPTION SHALL BE CONSTRUED AS
AUTHENTICATION OR APPROVAL OF THE RELIABILITY OR ACCURACY OF THE
MATTERS CONTAINED IN THIS FORM S-8 OR AS AN EXPRESSION OF OPINION AS TO
THE QUALITY OF THE SECURITIES WHICH ARE THE SUBJECT OF THIS FORM S-8
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
The document(s) containing the information specified in Item 1 will
be sent or given to participants in the 1999 Share Option Plan as specified
by Rule 428(b)(1) and are not required to be filed as part of this
Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The document(s) containing the information specified in Item 2 will
be sent or given to participants in the 1999 Share Option Plan as specified
by Rule 428(b)(2) and are not required to be filed as part of this
Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the registrant, ESC Medical
Systems Ltd., an Israeli corporation (the "Registrant"), with the
Securities and Exchange Commission (the "Commission") pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
incorporated by reference, as of their respective dates, in this
Registration Statement:
(i) Registrant's Current Report on Form 8-K, as filed
with the Commission on February 14, 2000;
(ii) Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999, as filed with
the Commission on March 30, 2000;
(iii) Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 2000, as filed with the
Commission on May 15, 2000; and
(iv) The description of the Ordinary Shares, par value
NIS 0.10 per share, of Registrant (the "Ordinary
Shares") contained in Registrant's Registration
Statement on Form 8-A, dated January 15, 1996, filed
pursuant to Section 12 of the Exchange Act on
January 18, 1996, including any amendment or report
filed for the purpose of updating such information.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all Ordinary
Shares offered hereby have been sold or which deregisters all Ordinary
Shares then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of the filing of such
documents. Any statement contained in a 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 herein or in any other subsequently filed document
which also is or is deemed to be 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Consistent with the provisions of the Israeli Companies Law, 1999
(the "Companies Law"), the Amended and Restated Articles of Association of
the Registrant (the "Articles") include provisions permitting the
Registrant to procure insurance coverage for its "office holders", exempt
them from certain liabilities and indemnify them, to the maximum extent
permitted by law. An "office holder" is defined in the Companies Law and
the Articles as a director, managing director, chief business manager,
executive vice president, vice president, other manager reporting directly
to the managing director and any other person assuming the responsibilities
of any of the foregoing positions without regard to such person's title.
Insurance
Under the Companies Law, a company may obtain insurance for any of
its office holders for: (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 the office holder acted in good faith and had reasonable
cause to assume that his act would not prejudice the company's interests;
or (iii) a financial liability imposed upon him in favor of another person
concerning an act performed by him in his capacity as an officer holder.
The Registrant has obtained directors' and officers' liability
insurance with a $20,000,000 limit of liability. The current policy period
expires on July 1, 2000. The Registrant intends to renew such policy or
obtain comparable coverage after the expiration of such policy.
Indemnification
The Companies Law provides that a company may indemnify an officer
holder against: (i) a financial liability imposed on him in favor of
another person by any judgment concerning an act performed in his capacity
as an office holder; and (ii) reasonable litigation expenses, including
attorneys' fees, expended by the office holder or charged to him by a court
relating to an act performed in his capacity as an office holder, in
connection with: (a) proceedings the company institutes against him or
instituted on its behalf or by another person; (b) a criminal charge from
which he was acquitted; or (c) a criminal charge in which he was convicted
for a criminal offense that does not require proof of criminal thought. The
Articles authorize the Registrant to indemnify its office holders to the
fullest extent permitted under the Law. The Companies Law also authorizes a
company to undertake in advance to indemnify an office holder, provided
that the undertaking is: (a) limited to categories of events which the
board of directors determines that can be anticipated: and (b) limited in
amount determined by the board of directors to be reasonable for the
circumstances.
Pursuant to the Articles, the Registrant has entered into
Indemnification Agreements with certain of its office holders (the
"Indemnification Agreements"), and intends to enter into such agreement
with other office holders. Each Indemnification Agreement provides the
office holder (the "Indemnitee") with the maximum indemnification allowed
under applicable law. The Indemnification Agreements provide that the
Registrant shall indemnify an Indemnitee who, by reason of the fact that he
was a director, officer, key employee, fiduciary or agent of the Registrant
or any subsidiary of the Registrant, is or was a party or becomes a party
or is threatened to be made a party to any threatened, pending or completed
action or proceeding whether civil, criminal (unless convicted of
committing an offense which requires proof of criminal thought),
administrative or investigative, arising out of or relating to an
Indemnifiable Event. The Indemnification Agreement sets forth a list of
categories of Indemnifiable Events, among which are claims made under
securities laws, claims in connection with the business of the Registrant,
claims in connection with transactions of the Registrant not in the
ordinary course, claims by employees, intellectual property claims, claims
by lenders and creditors of the Registrant, tort claims and claims relating
to the products of the Registrant, tax matters, environmental matters and
regulatory matters. Under the Indemnification Agreement, the Registrant
undertakes to indemnify the Indemnitee against all expenses which are
defined under the Indemnification Agreements to include, among other
things, expenses, judgments and amounts paid in settlement (including taxes
imposed on the Indemnitee on account of receipt of such payouts) incurred
by the Indemnitee with respect to any specific Indemnifiable Event up to
the limit amount. The Indemnification Agreements set forth limit amounts
applicable to each Indemnifiable Event. The terms of the Indemnification
Agreements authorize the Registrant's Board of Directors and Audit
Committee to increase the limit amount if they determine that the
foreseeable expenses in connection with a specific Indemnifiable Event may
be more than the limit amount.
Exemption
Under the Companies Law, an Israeli company may not exempt an
office holder from liability for a breach of his duty of loyalty, but may
exempt in advance an office holder from his liability to the company, in
whole or in part, for a breach of his duty of care. The Articles authorize
the Registrant to exempt any office holder from liability to the Registrant
to the extent permitted by law. Under the Indemnification Agreements, the
Registrant exempts and releases the Indemnitee from any and all liability
to the Registrant related to any breach by the Indemnitee of his or her
duty of care to the Registrant.
Both the Companies Law and the Articles provide that the Registrant
may not exempt or indemnify an office holder nor enter into an insurance
contract which would provide coverage for any liability incurred as a
result of any of the following: (a) a breach by the office holder of his
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
Registrant; (b) a breach by the office holder of his duty of care if the
breach was done intentionally or recklessly; (c) any act or omission done
with the intent to derive an illegal personal benefit; or (d) any fine
levied against the office holder.
The foregoing descriptions are general summaries only, and are
qualified entirely by reference to the full text of the Registrant's
Amended and Restated Articles of Association, as adopted on May 30, 2000,
and the form of Indemnification Agreement, both filed as exhibits to the
Registrant's proxy statement in connection with its 2000 Annual General
Meeting of shareholders, which are incorporated herein by reference.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration
Statement or, where so indicated, have been previously filed and are
incorporated herein by reference.
Exhibit No. Description of Exhibit
4.1 ESC Medical Systems Ltd. 1999 Share Option Plan,
incorporated by reference from Annex B to the Registrant's
Definitive Proxy Statement, File No. 000-27572, dated
May 3, 2000.
4.2 Form of Specimen Certificate for Ordinary Shares,
incorporated by reference from Amendment No. 2 to the
Registrant's Registration Statement on Form F-1, File No.
33-80199, filed on January 19, 1996.
4.3 Memorandum of Association of the Registrant, as amended
and restated on May 30, 2000.
4.4 Articles of Association of the Registrant, as amended and
restated on May 30, 2000.
5.1 Opinion of Zellermayer & Pelossof, regarding the legality
of the securities being registered.
23.1 Consent of Brightman Algamor & Co..
23.2 Consent of Luboshitz Kasierer
23.3 Consent of Zellermayer & Pelossof (included in Exhibit 5.1).
ITEM 9. UNDERTAKINGS.
A. The 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 this 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 this
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
(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) do
not apply if 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 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 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 (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, 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 Yokneam, Israel, on the 30th day
of June, 2000.
ESC MEDICAL SYSTEMS LTD.
By /s/ YACHA SUTTON
---------------------------------
Yacha Sutton,
Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Yacha Sutton and Hadar
Solomon , and each of them, his/her true and lawful attorneys-in- fact and
agents, 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 (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he/she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his/her substitute
or substitutes, may all fully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons on
behalf of Registrant and in the capacities and on the dates indicated.
Signature Title Date
/s/ YACHA SUTTON Chief Executive Officer June 30, 2000
- -------------------------- (Principal-Executive-Officer)
Mr. Yacha Sutton
/s/ SAGI GENGER Chief Financial Officer June 30, 2000
- -------------------------- (Principal-Financial-Officer)
Mr. Sagi Genger
/s/ SHARON LEVITA Corporate Controller June 30, 2000
- -------------------------
Ms. Sharon Levita
/s/ JACOB A. FRENKEL Chairman of the June 30, 2000
- ------------------------- Board-of-Directors
Prof. Jacob A. Frenkel
/s/ PHILIP FREIDMAN Director June 30, 2000
- -------------------------
Mr. Philip Friedman
/s/ THOMAS G. HARDY Director June 30, 2000
- --------------------------
Mr. Thomas G. Hardy
/s/ S.A. SPENCER Director June 30, 2000
- ----------------------------
Mr. S.A. Spencer
/s/ ZEHEV TADMOR Director June 30, 2000
- -----------------------------
Prof. Zehev Tadmor
LIST OF EXHIBITS
Designation Description of Exhibit
4.1 ESC Medical Systems Ltd. 1999 Share Option Plan,
incorporated by reference from Annex B to the Registrant's
Definitive Proxy Statement, File No. 000-27572, dated May
3, 2000.
4.2 Form of Specimen Certificate for Ordinary Shares,
incorporated by reference from Amendment No. 2 to the
Registrant's Registration Statement on Form F-1, File No.
33-80199, filed on January 19, 1996.
4.3 Memorandum of Association of the Registrant, as amended and
restated on May 30, 2000.
4.4 Articles of Association of the Registrant, as amended and
restated on May 30, 2000.
5.1 Opinion of Zellermayer & Pelossof, regarding the legality
of the securities being registered.
23.1 Consent of Brightman Algamor & Co..
23.2 Consent of Luboshitz Kasierer
23.3 Consent of Zellermayer & Pelossof (included in Exhibit 5.1).