Registration No. 333-
As filed with the Securities and Exchange Commission on March 15, 2005
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
MER TELEMANAGEMENT SOLUTIONS LTD.
(Exact name of registrant as specified in its charter)
Israel Not Applicable
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
22 Zarhin Street, Ra'anana 43662, Israel
(Address of Principal Executive Offices) (Zip Code)
2003 ISRAELI SHARE OPTION PLAN
(Full title of the plan)
MTS IntegraTRAK
Attn.: Harry Chesman
12600 SE 38th Street
Suite 250
Bellevue, WA 98006
(Name, address of agent for service)
Tel: (425) 401-1711
(Telephone number, including area code, of agent for service)
Copy to:
Steven J. Glusband, Esq.
Carter Ledyard & Milburn LLP
2 Wall Street
New York, New York 10005
(212) 732-3200
CALCULATION OF REGISTRATION FEE
Proposed
maximum Proposed
Amount offering maximum Amount of
to be price per aggregate registration
Title of securities to be registered registered (1) share offering price Fee (6)
--------------------------------------------- -------------- --------- -------------- ------------
Ordinary shares, par value NIS 0.01 per share
............ 276,415 (2) $3.94 (4) $1,089,075 $128.18
Ordinary shares, par value NIS 0.01 per share
............ 250,000 (3) $1.844(5) $461,000 $54.26
Ordinary shares, par value NIS 0.01 per share
............ 52,500 (3) $2.9 (5) $29,000 $3.41
Ordinary shares, par value NIS 0.01 per share
............ 56,500 (3) $2.35 (5) $132,775 $15.63
Ordinary shares, par value NIS 0.01 per share
............ 86,500 (3) $2.20 (5) $190,300 $22.40
Ordinary shares, par value NIS 0.01 per share
............ 70,000 (3) $3.25 (5) $227,500 $26.78
Ordinary shares, par value NIS 0.01 per share
............ 56,000 (3) $3.27 (5) $183,120 $21.55
Ordinary shares, par value NIS 0.01 per share
............ 46,000 (3) $3.40 (5) $156,400 $18.40
Total ............ 893,915 N/A $2,469,170 $290.61
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as
amended, this Registration Statement also covers an indeterminate number
of shares of the Registrant's ordinary shares, par value NIS 0.01 per
share (the "Ordinary Shares") that may be offered or issued pursuant to
the 2003 Israeli Share Option Plan by reason of stock splits, stock
dividends or similar transactions.
(2) Issuable under options that may be granted in the future under the 2003
Israeli Share Option Plan.
(3) Issuable under options granted under the 2003 Israeli Share Option Plan.
(4) Pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as
amended, the proposed maximum offering price per share is calculated based
on the basis of the average of the daily high and low sale prices ($3.94
and $3.94 , respectively) of an Ordinary Share as quoted on the NASDAQ
National Market on March 11, 2005.
(5) Pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as
amended, in the case of Ordinary Shares purchasable upon exercise of
outstanding options, the proposed maximum offering price is the exercise
price provided for in the relevant option.
(6) Calculated pursuant to Section 6(b) of the Securities Act of 1933 as
follows: proposed maximum aggregate offering price multiplied by
0.0001177.
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This Registration Statement shall become effective immediately upon filing as
provided in Rule 462 under the Securities Act of 1933.
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EXPLANATORY NOTE
----------------
The purpose of this Registration Statement on Form S-8 is to register
893,915 Ordinary Shares for issuance under Mer Telemanagement Solutions Ltd.
2003 Israeli Share Option Plan:
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities
Exchange Commission (the "Commission") pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act") (Commission File No. 000-20892), are
incorporated herein by reference:
(a) The Registrant's Annual Report on Form 20-F for the fiscal year
ended December 31, 2003 filed with the Commission on June 25,
2004;
(b) The Registrant's Reports of Foreign Private Issuer on Form 6-K
submitted to the Commission on February 4, 2004, May 11, 2004,
June 21, 2004, August 4, 2004, September 14, 2004, October 5,
2004, November 2, 2004, November 10, 2004, November 18, 2004,
December 6, 2004, December 6, 2004, December 28, 2004, December
28, 2004 January 3, 2005 and February 9, 2005.
(c) The description of the Registrant's Ordinary Shares contained in
the Registrant's registration statement on Form F-1 filed with
the Commission on October 18, 1996.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, and all
Reports on Form 6-K submitted to the Commission subsequent to the date hereof,
to the extent that such Reports indicate that information therein is
incorporated by reference into the Registrant's Registration Statements on Form
S-8, prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities remaining
unsold, shall be deemed to be incorporated by reference into this Registration
Statement and to be a part of this Registration Statement from the date of
filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Exculpation of Office Holders
The Israeli Companies Law provides that an Israeli company cannot
exculpate an office holder from liability with respect to a breach of his duty
of loyalty, but may, if permitted by its articles of association, exculpate in
advance an office holder from his liability to the company, in whole or in part,
with respect to a breach of his duty of care. Our articles of association permit
us to exempt an officer for his liability, in whole or in part, for damage
caused due to the breach of the duty of care, subject to the provisions of the
Israeli Companies Law.
Insurance of Office Holders
The Israeli Companies Law provides that a company may, if permitted by
its articles of association, enter into a contract for the insurance of the
liability of any of its office holders with respect to an act performed by him
in his capacity as an office holder, for:
o breach of his duty of care to us or to another person;
o breach of his duty of loyalty to us, provided that the office
holder acted in good faith and had reasonable cause to assume
that his act would not prejudice our interests; or
o a financial liability imposed upon him in favor of another
person.
Our articles of association provide that we may enter into a contract
for the insurance of the liability, in whole in part, of any of our office
holders, to the maximum extent permitted by the Israeli Companies Law.
Indemnification of Office Holders
In accordance with the Israeli Companies Law, our articles of
association provide that we may, with respect to an act performed by an office
holder in such capacity, (i) undertake in advance to indemnify an office holder,
provided that the undertaking shall be restricted to foreseeable events and up
to a feasible amount, as determined by our board of directors; and (ii)
indemnify an office holder retroactively; against:
o a financial liability imposed on him in favor of another person
by any judgment, including a settlement or an arbitrator's award
approved by a court; and
o reasonable litigation expenses, including attorneys' fees,
expended by such office holder or charged to him by a court, in a
proceeding we instituted against him or instituted on our behalf
or by another person, or in a criminal charge from which he was
acquitted or in which he was convicted of an offense that does
not require proof of criminal intent.
Limitations on Exculpation, Insurance and Indemnification
The Israeli Companies Law provides that a company may not indemnify an
office holder, nor exculpate an office holder, nor enter into an insurance
contract which would provide coverage for any monetary liability incurred as a
result of certain improper actions.
Pursuant to the Israeli Companies Law, exculpation of, procurement of
insurance coverage for, and an undertaking to indemnify or indemnification of,
our office holders must be approved by our audit committee and our board of
directors and, if such office holder is a director, also by our shareholders.
We have undertaken to indemnify our office holders, pursuant to a
standard indemnification agreement that provides for indemnification of an
office holder in an amount up to $3 million. We currently maintain directors and
officers liability insurance with a per claim and aggregate coverage limit of $5
million including legal costs incurred in Israel.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS.
4.1 Memorandum of Association (1)
4.2 Articles of Association, as amended (1)
4.3 The 2003 Israeli Share Option Plan (2)
5 Opinion of Dora Mer Adv.
23.1 Consent of Dora Mer Adv. (contained in Exhibit 5)
23.2 Consent of Kost Forer Gabbay & Kasierer
24 Power of Attorney (see Page 9)
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(1) Filed as an exhibit to our registration statement on Form F-1,
registration number 333-05814, filed with the Securities and
Exchange Commission, and incorporated herein by reference.
(2) Filed as exhibit 10.3 to our Annual Report on Form 20-F for
the year ended December 31, 2003, and incorporated herein by
reference.
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, as amended
(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 hereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in this 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)(l)(i) and
(a)(l)(ii) above do not apply if the information required to
be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission 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.
(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 15(d) of the Securities
Exchange Act of 1934 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 of 1933, as amended,
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 Israel on this 14th day of March, 2005.
Mer Telemanagement Solutions Ltd.
By: /s/Eytan Bar
------------
Name: Eytan Bar
Title: Chief Executive Officer
POWERS OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officers and
directors of Mer Telemanagement Solutions Ltd, an Israeli company (the
"Company"), hereby constitute and appoint Eytan Bar and Ori Shachar, and each of
them, the true and lawful agents and attorneys-in-fact of the undersigned with
full power and authority in said agents and attorneys-in-fact, and in either or
both of them, to sign for the undersigned and in their respective names as
officers and as directors of the Company, a Registration Statement on Form S-8
(or other appropriate form) (the "Registration Statement") relating to the
proposed issuance of Ordinary Shares, par value NIS 0.01 per share, of the
Company pursuant to the exercise of stock options and other awards granted under
the 2003 Israeli Stock Option Plan (or any and all amendments, including
post-effective amendments, to the Registration Statement) and file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, and with full power of substitution, hereby
ratifying and confirming all that each of said attorneys-in-fact, or his
substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/Chaim Mer Chairman of the Board of Directors March 13, 2005
------------
Chaim Mer
/s/Eytan Bar President and Chief Executive Officer March 13, 2005
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Eytan Bar
/s/Ori Shachar Chief Operating Officer and Chief Financial March 13, 2005
-------------- Officer-Israel
Ori Shachar
/s/Alon Aginsky Director March 11, 2005
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Alon Aginsky
/s/Isaac Ben-Bassat Director March 12, 2005
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Isaac Ben-Bassat
/s/Yehoshua Gleitman Director March 13, 2005
--------------------
Dr. Yehoshua Gleitman
/s/Steven Glusband Director March 14, 2005
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Steven J. Glusband
/s/Yaacov Goldman Director March 13, 2005
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Yaacov Goldman
/s/ Orna Berry Director March 11, 2005
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Dr. Orna Berry
/s/Harry Chesman Authorized Representative in the United States March 11, 2005
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By: MTS IntegraTRAK
Name: Harry Chesman
Title: Chief Operating Officer