This Registration Statement shall become effective immediately upon filing
pursuant to Securities Act Rule 462
As filed with the Securities and Exchange Commission on May 16, 2005
Registration No. 333-
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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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AROTECH CORPORATION
(Exact name of Registrant as specified in its charter)
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Delaware 95-4302784
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Arotech Corporation Leland Nall
354 Industry Drive 354 Industry Drive
Auburn, Alabama 36832 Auburn, Alabama 36832
Tel: (334) 502-9001 Fax: (334) 502-3008 Tel: (334) 502-9001 Fax: (334) 502-3008
(Address, including ZIP code, and telephone number, (Address, including ZIP code, and telephone number,
including area code, of Registrant's including area code, of agent for service)
principal executive offices)
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AROTECH CORPORATION 2004 STOCK OPTION
AND RESTRICTED STOCK PURCHASE PLAN
(Full title of the plan)
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Copies of all communications, including communications sent to the agent for
service, to:
Steven M. Skolnick, Esq. Yaakov Har-Oz, Adv.
Lowenstein Sandler PC Arotech Corporation
65 Livingston Avenue Western Industrial Zone
Roseland, New Jersey 07068 AND Beit Shemesh 99000, Israel
Tel: (973) 597-2500 Fax: (973) 597-2400 --- Tel: +(972-2) 990-6623 Fax: +(972-2) 990-6688
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CALCULATION OF REGISTRATION FEE
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Amount to be Proposed maximum Proposed maximum Amount of
registered offering price aggregate registration
Title of securities to be registered (1) per share offering price fee (2)
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Common Stock, par value $0.01 per share 1,476,600(2) $1.420(3) $2,096,772(3) $ 246.79
Common Stock, par value $0.01 per share 6,023,400(4) $1.22(5) $7,348,548(5) $ 864.92
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Total: 7,500,000 $ 1,111.71
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(1) In addition, in accordance with Rule 416(a) under the Securities Act of
1933, as amended, this registration statement also covers such
indeterminate number of Shares as may become subject to options under the
Company's 2004 Stock Option and Restricted Stock Purchase Plan as a result
of the adjustment provisions thereof.
(2) Shares subject to options previously granted pursuant to the Plan.
(3) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, based upon the
weighted average of the exercise prices for the options granted under the
2004 Stock Option and Restricted Stock Purchase Plan.
(4) Shares subject to options not yet granted pursuant to the Arotech
Corporation 2004 Stock Option and Restricted Stock Purchase Plan (the
"Plan").
(5) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, using the average
of the high and low sales price reported by The Nasdaq National Market
System for our common stock on May 13, 2005, which was $1.22 per share.
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PART I
Information Required in the Section 10(a) Prospectus
Note: The document(s) containing the information required by Item 1 of this Form
S-8 and the statement of availability of information of Arotech Corporation (the
"Company"), and other information required by Item 2 of this Form will be sent
or given to employees as specified by Rule 428 under the Securities Act of 1933,
as amended (the "Securities Act"). In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being 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. The Company shall maintain a file of such documents in accordance with
the provisions of Rule 428. Upon request, the Company shall furnish to the
Commission or its staff a copy of any or all of the documents included in such
file.
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PART II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
The Company hereby incorporates by reference the following documents and
information heretofore filed with or provided to the Securities and Exchange
Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2004, as amended;
(b) The description of the common stock of the Company contained in
the Company's Registration Statement on Form 8-A filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") on
February 2, 1994, and any amendment or report filed for the purpose of
updating any such description; and
(c) All other reports filed by the Company with the Commission
pursuant to Section 13(a) or Section 15(d) of the Exchange Act of the
since the end of the fiscal year covered by the Registrant's Annual Report
referred to above.
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 to this Registration Statement that indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
Not required.
Item 5. Interests of Named Experts and Counsel
None.
Item 6. Indemnification of Directors and Officers
Arotech Corporation is a Delaware corporation. Section 102(b)(7) of the
Delaware General Corporation Law (the "DGCL") enables a corporation in its
original certificate of incorporation or an amendment thereto to eliminate or
limit the personal liability of a director to the corporation or its
stockholders for monetary damages for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit. The Company's Amended and Restated Certificate of Incorporation
("Certificate of Incorporation") and By-Laws contain provisions eliminating the
liability of directors to the extent permitted by the DGCL.
II-1
Section 145 of the DGCL provides that a corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal or investigative (other than an action by or in the right of the
corporation) by reason of the fact that he is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. Section 145 further provides that a corporation similarly
may indemnify any such person serving in any such capacity who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure judgment in its
favor, against expenses actually and reasonably incurred in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation and except that no indemnification shall be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the Delaware
Court of Chancery or such other court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Article 10 of the Company's Certificate of Incorporation provides that, to
the fullest extent permitted by the DGCL, the Company's directors shall not be
liable to the Company or its stockholders for monetary damages for any breach of
fiduciary duty as a director.
Article 11 of the Company's Certificate of Incorporation provides that the
Company shall, to the maximum extent permitted under the DGCL, indemnify any
person who was or is made a party or is threatened to be made a party to any
threatened, pending or completed action, suit, proceeding or claim, whether
civil, criminal, administrative or investigative, by reason of the fact that
such person is or was or has agreed to be a director or officer of the Company
or while a director or officer is or was serving at the request of the Company
as a director, officer, partner, trustee, employee, or agent of any corporation,
partnership, joint venture, trust or other enterprise, including service with
respect to employee benefit plans, against expenses (including attorney's fees),
judgments, fines, penalties and amounts paid in settlement incurred in
connection with the investigation, preparation to defend or defense of such
action, suit, proceeding or claim.
The Company also maintains directors' and officers' insurance.
For the undertaking with respect to indemnification, see Item 9 herein.
II-2
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit
Number Description
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* 4.1 Specimen Certificate for Common Stock
+ 5.1 Opinion of Lowenstein Sandler PC
+23.1 Consent of Kost, Forer, Gabbay & Kassierer, a member of Ernst &
Young Global
+23.2 Consent of Stark Winter Schenkein & Co., LLP
+23.3 Consent of Lowenstein Sandler PC (contained in Exhibit 5.1)
+24.1 Powers of Attorney (included in the signature page)
+99.1 2004 Stock Option and Restricted Stock Purchase Plan
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* Incorporated by reference to Exhibit 4.1 to the Registrant's Annual Report on
Form 10-K for the year ended December 31, 2004.
+ Filed herewith.
Item 9. Undertakings
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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933,
(b) 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,
(c) 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) above shall 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 the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed 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.
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(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.
(4) 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 (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 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.
(5) 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 provisions set forth in Item 15 above, 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, 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 the City of Auburn, State of Alabama, on this 16th day of May,
2005.
AROTECH CORPORATION
By: /s/ Robert S. Ehrlich
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Name: Robert S. Ehrlich
Title: Chairman, President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert Ehrlich and Yaakov Har-Oz, and each of
them, each with full power to act without the other, his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for such person and in his name, place and stead, in any and all
capacities, to sign any amendments to this Registration Statement, and to sign
any registration statement for the same offering covered by this Registration
Statement, including post-effective amendments, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming that each of
said such attorneys-in-fact and agents or his substitute or substitutes, may do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this
registration statement or amendment has been signed below by the following
persons on behalf of the registrant and in the capacities and on the dates
indicated.
Signature Title Date
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/s/ Robert S. Ehrlich Chairman, President, Chief Executive Officer and Director May 16, 2005
---------------------------------- (Principal Executive Officer)
Robert S. Ehrlich
/s/ Avihai Shen Vice President - Finance and Chief Financial Officer May 16, 2005
---------------------------------- (Principal Financial Officer)
Avihai Shen
/s/ Danny Waldner Controller May 16, 2005
---------------------------------- (Principal Accounting Officer)
Danny Waldner
/s/ Steven Esses Executive Vice President, Chief Operating Officer May 16, 2005
---------------------------------- and Director
Steven Esses
Jay M. Eastman Director May 16, 2005
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Dr. Jay M. Eastman
/s/ Lawrence M. Miller Director May 16, 2005
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Lawrence M. Miller
/s/ Jack E. Rosenfeld Director May 16, 2005
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Jack E. Rosenfeld
Director May __, 2005
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Bert W. Wasserman
/s/ Edward J. Borey Director May 16, 2005
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Edward J. Borey
II-5
EXHIBIT INDEX
Exhibit
Number Description
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5.1 Opinion of Lowenstein Sandler PC
23.1 Consent of Kost, Forer, Gabbay & Kassierer, a member of Ernst
& Young Global
23.2 Consent of Stark Winter Schenkein & Co., LLP
23.3 Consent of Lowenstein Sandler PC (contained in Exhibit 5.1)
24.1 Powers of Attorney (included in the signature page)
99.1 2004 Stock Option and Restricted Stock Purchase Plan