As
filed with the Securities and Exchange Commission on December 29,
2009
Registration
No. 333-163561
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
AMENDMENT
NO.1 TO
FORM
F-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
NOVA
MEASURING INSTRUMENTS LTD.
(Exact
name of Registrant as specified in its charter)
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Israel
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Not
Applicable
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(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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Weizmann
Science Park
Building
22, 2nd Floor
Ness-Ziona
76100, Israel
+972 (8) 938 7505
(Address
and telephone number of Registrant’s principal executive offices)
Nova
Measuring Instruments Inc.
4701
Patrick Henry Drive, Building 1701, Santa Clara, CA 95054
Tel:
408 200 4344
(Name,
address and telephone number of agent for service)
With a
copy to:
Dr.
Shachar Hadar, Adv.
Gross,
Kleinhendler, Hodak, Halevy, Greenberg & Co.
One
Azrieli Center
Tel
Aviv 67021, Israel
Approximate
date of commencement of proposed sale to the public: From time to time after the
effective date of this registration statement.
If the only securities being registered
on this form are being offered pursuant to dividend or interest reinvestment
plans, please check the following box: o
If any of the securities being
registered on this form are to be offered on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act of 1933, please check the
following box: x
If this form is filed to register
additional securities for an offering pursuant to Rule 462(b) under the
Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. o
If this form is a post-effective
amendment filed pursuant to Rule 462(c) under the Securities Act, check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. o
If this form is a registration
statement pursuant to General Instruction I.C. or a post effective amendment
thereto that shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following box. o
If this form is a post-effective
amendment to a registration statement filed pursuant to General Instruction I.C.
filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box.
o
The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
| The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted. |
SUBJECT TO COMPLETION, DATED DECEMBER 29,
2009
PROSPECTUS
$20,000,000
Ordinary
Shares
Debt
Securities
Warrants
Subscription
Rights
Units
From time
to time, we may offer and sell up to $20,000,000 of any combination of the
securities described in this prospectus, either individually or in units. We
will provide specific terms of these offerings and securities in one or more
supplements to this prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with these offerings. The
prospectus supplement and any related free writing prospectus may also add,
update or change information contained in this prospectus. You should read this
prospectus, the applicable prospectus supplement and any related free writing
prospectus carefully before buying any of the securities being
offered.
This
prospectus may not be used to consummate a sale of any securities unless
accompanied by a prospectus supplement.
Our
ordinary shares are listed on The NASDAQ Global Market and on the Tel Aviv Stock
Exchange in Israel under the symbol “NVMI.” On December 28, 2009, the last
reported sale price of our ordinary shares on The NASDAQ Global Market was $6.19
per share and on the Tel Aviv Stock Exchange was NIS 24.00 per share. We have
not yet determined whether any of the other securities that may be offered by
this prospectus will be listed on any exchange, inter-dealer quotation system or
over-the-counter market. If we decide to seek listing of any such securities, a
prospectus supplement relating to those securities will disclose the exchange,
quotation system or market on which the securities will be
listed.
Investing
in our securities involves a high degree of risk. You should review
carefully the risks and uncertainties described under the heading “Risk Factors”
contained on page 3 herein and in the applicable prospectus supplement and any
related free writing prospectus, and under similar headings in the other
documents that are incorporated by reference into this prospectus.
The
securities may be sold directly by us to investors, through agents designated
from time to time or to or through underwriters or dealers, on a continuous or
delayed basis. For additional information on the methods of sale, you should
refer to the section entitled “Plan of Distribution” in this prospectus. If any
agents or underwriters are involved in the sale of any securities with respect
to which this prospectus is being delivered, the names of such agents or
underwriters and any applicable fees, commissions, discounts and over-allotment
options will be set forth in a prospectus supplement. The price to the public of
such securities and the net proceeds that we expect to receive from such sale
will also be set forth in a prospectus supplement.
None of the U.S. Securities and
Exchange Commission, the Israeli Securities Authority or any state securities
commission have approved or disapproved of these securities or passed upon the
adequacy, completeness or accuracy of this prospectus. Any representation to the
contrary is a criminal offense under the laws of the United States and the laws
of the State of Israel.
The date
of this prospectus is _____________
Table
of Contents
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i
This
prospectus is part of a registration statement on Form F-3 that we filed with
the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration
process. Under this shelf registration process, we may from time to time offer
and sell ordinary shares, debt securities, warrants, subscription rights or
units, or any combination of these securities, in one or more offerings up to a
total dollar amount of $20,000,000. This prospectus provides you with a general
description of the securities we may offer. Each time we offer any securities
under this prospectus, we will provide a prospectus supplement that will contain
more specific information about the terms of those securities. We may also
authorize one or more free writing prospectuses to be provided to you that may
contain material information relating to these offerings. This prospectus,
together with applicable prospectus supplements and any related free writing
prospectuses, includes all material information relating to these offerings. We
may also add, update or change in the prospectus supplement (and in any related
free writing prospectus that we may authorize to be provided to you) any of the
information contained in this prospectus or in the documents that we have
incorporated by reference into this prospectus. We urge you to read carefully
this prospectus, any applicable prospectus supplement and any related free
writing prospectus, together with the information incorporated herein by
reference as described under the heading “Where You Can Find Additional
Information,” before buying any of the securities being offered.
This
prospectus may not be used to consummate a sale of securities unless it is
accompanied by a prospectus supplement.
You
should rely only on the information we have provided or incorporated by
reference in this prospectus, any applicable prospectus supplement and any
related free writing prospectus that we may authorize to be provided to you. We
have not authorized anyone to provide you with different information. No dealer,
salesperson or other person is authorized to give any information or to
represent anything not contained in this prospectus, any applicable prospectus
supplement or any related free writing prospectus that we may authorize to be
provided to you. You must not rely on any unauthorized information or
representation. This prospectus is an offer to sell only the securities offered
hereby, but only under circumstances and in jurisdictions where it is lawful to
do so. You should assume that the information in this prospectus, any applicable
prospectus supplement or any related free writing prospectus is accurate only as
of the date on the front of the document and that any information we have
incorporated by reference is accurate only as of the date of the document
incorporated by reference, regardless of the time of delivery of this
prospectus, any applicable prospectus supplement or any related free writing
prospectus, or any sale of a security.
This
prospectus contains summaries of certain provisions contained in some of the
documents described herein, but reference is made to the actual documents for
complete information. All of the summaries are qualified in their entirety by
the actual documents. Copies of some of the documents referred to herein have
been filed with or furnished to the SEC, will be filed with or furnished to the
SEC or will be incorporated by reference as exhibits to the registration
statement of which this prospectus is a part, and you may obtain copies of those
documents as described below under “Where You Can Find Additional
Information.”
In this
prospectus, references to the terms “Nova,” “the Company,” “we,” “us,” “our” and
similar terms, refer to Nova Measuring Instruments Ltd. and its wholly owned
subsidiaries on a consolidated basis, unless we state or the context implies
otherwise.
We are a
worldwide leading designer, developer and producer of integrated and stand-alone
process control metrology systems. Metrology systems measure various thin film
properties and critical circuit dimensions during various steps in the
semiconductor manufacturing process, allowing semiconductor manufacturers to
increase quality, productivity and yields, lower their manufacturing costs and
increase their profitability. We supply our metrology systems to major
semiconductor manufacturers worldwide, either directly or through process
equipment manufacturers. Of the 20 semiconductor manufacturers that had the
highest capital equipment expenditures in 2008, 17 use our systems. Our systems
were first installed in 1995 and, since that time, we have sold more than 1,900
metrology systems.
The
semiconductor manufacturing process starts with a silicon wafer that has been
highly polished on one side to a mirror finish, upon which circuits are
constructed. To construct the circuits, a series of layers of thin films that
act as conductors, semiconductors or insulators are applied to the polished side
of the wafer. During the manufacturing process, these film layers are subjected
to processes which remove portions of the film layers, create circuit patterns
and perform other functions. The semiconductor manufacturing process requires
exacting steps and strict control of equipment performance and process
sequences. Tight control can be achieved through monitoring silicon wafers and
measuring relevant parameters after each process step with metrology tools such
as those we produce.
1
Prior to
the introduction of our integrated metrology systems, process control was
achieved through stand-alone measurement equipment. Stand-alone measurement
equipment requires semiconductor manufacturers to interrupt the manufacturing
process sequence, remove sample silicon wafers from the process equipment and
place the silicon wafers on the stand-alone measuring or inspection tool. In
contrast, our integrated metrology approach is based upon patented measuring
methods that enable us to produce optical measuring systems that are small
enough to be integrated directly inside many types of semiconductor process
equipment. We believe that in several instances during the manufacturing
process, our integrated approach offers considerable advantages over the
conventional stand-alone approach to metrology control, enabling manufacturers
using our integrated equipment to reduce costs and to improve production
efficiency, yield and quality.
We have
always emphasized our integrated metrology solutions as this continues to be an
area where we have a leading position. In addition, in the past few years we
developed and started manufacturing stand-alone metrology systems as well. We
have leveraged our technology, methods, metrology expertise and market position
in the integrated metrology field to expand our offerings of stand-alone
metrology systems. Today, both stand alone and integrated metrology solutions
have reached a level of maturity allowing semiconductor manufactures to choose
how to use either technology and make decisions based on merit specific to the
process step in question, always balancing between the amount of data attained
and the use made of the data for capabilities such as automated process control.
Our long-term strategy is focused on advanced metrology and process control
solutions where our integrated process control products and stand alone products
are compatible or complementary and used in a customized way to meet specific
customer needs.
This
prospectus, including the information incorporated by reference into this
prospectus, contains, and any prospectus supplement may contain, statements that
are forward-looking statements within the meaning of the federal securities
laws. We caution you that any forward-looking statements presented in this
prospectus, or which management may make orally or in writing from time to time,
are based on management’s beliefs and assumptions made by, and information
currently available to, management. When we use the words “believe,” “expect,”
“anticipate,” “plan,” “intend,” “estimate,” “project,” “may,” “will,” “should,”
“continue,” “assume” and other similar expressions, they are generally
forward-looking statements. These statements include, among other things,
statements regarding our intent, belief or expectations with respect
to:
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our
strategic plans;
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our
business outlook;
and
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our
future business and financial
performance.
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These
statements are not guarantees of future performance and are subject to certain
risks, uncertainties, and other factors, some of which are beyond our control,
are difficult to predict, and could cause actual results to differ materially
from those expressed or forecasted in the forward-looking statements. The risks
and uncertainties to which these statements are subject include, but are not
limited to, those risks and uncertainties described in “Risk Factors” and
elsewhere in this prospectus, the accompanying prospectus supplement, and the
documents incorporated by reference herein and therein, and include the
following:
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unanticipated
consequences of the global economic
crisis;
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our
dependency on a single integrated process control product
line;
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the
highly cyclical nature of the markets we
target;
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our
inability to reduce spending during a slowdown in the semiconductor
industry;
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our
ability to respond effectively on a timely basis to rapid technological
changes;
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risks
associated with our dependence on a single manufacturing
facility;
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our
ability to expand our manufacturing capacity or marketing efforts to
support our future growth;
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our
dependency on a small number of large customers and small number of
suppliers;
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risks
related to our intellectual
property;
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changes
in customer demands for our
products;
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new
product offerings from our
competitors;
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changes
in or an inability to execute our business
strategy;
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unanticipated
manufacturing or supply problems;
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changes
in tax requirements;
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changes
in customer demand for our
products;
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risks
related to currency fluctuations;
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risks
related to our operations in Israel;
and
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various
other factors beyond our control.
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We
caution you to carefully consider these risks and not to place undue reliance on
our forward-looking statements. Except as required by law, we assume no
responsibility for updating any forward-looking statements.
Investing
in our securities involves significant risks. Please see the risk factors under
the heading “Risk Factors” in our most recent Annual Report on Form 20-F on
file with the SEC, as revised or supplemented by our reports filed with or
furnished to the SEC since the filing of our most recent Annual Report on
Form 20-F and incorporated by reference in this prospectus. Before making
an investment decision, you should carefully consider these risks as well as
other information we include or incorporate by reference in this prospectus and
any prospectus supplement. The risks and uncertainties we have described are not
the only ones facing our company. Additional risks and uncertainties not
presently known to us or that we currently deem immaterial may also affect our
business operations. The occurrence of any of these risks might cause you to
lose all or part of your investment in the offered securities. The discussion of
risks includes or refers to forward-looking statements; you should read the
explanation of the qualifications and limitations on such forward-looking
statements discussed elsewhere in this prospectus.
3
Our
ordinary shares are listed and traded on The NASDAQ Global Market and on the Tel
Aviv Stock Exchange under the symbol “NVMI”.
The
following table sets forth, for the periods indicated, the high and low reported
sales prices of the ordinary shares on The NASDAQ Global Market and Tel Aviv
Stock Exchange:
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NASDAQ
GLOBAL MARKET
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TEL
AVIV STOCK EXCHANGE
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PERIOD
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HIGH
($)
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LOW
($)
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HIGH
(NIS)
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LOW
(NIS)
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Last Six Months and
December 2009:
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June
2009
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1.21 | 0.68 | 8.69 | 2.80 | ||||||||||||
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July
2009
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1.40 | 0.89 | 4.95 | 3.60 | ||||||||||||
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August
2009
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1.74 | 1.15 | 5.99 | 4.54 | ||||||||||||
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September
2009
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2.75 | 1.55 | 10.00 | 5.70 | ||||||||||||
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October
2009
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3.25 | 2.60 | 12.22 | 9.71 | ||||||||||||
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November
2009
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3.97 | 2.69 | 14.86 | 10.54 | ||||||||||||
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December
2009 (Until December 28, 2009).
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6.25
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3.77
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24.75
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14.41
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Last Eleven
Quarters:
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First
Quarter 2007
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3.10 | 2.17 | 13.50 | 10.36 | ||||||||||||
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Second
Quarter 2007
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3.09 | 2.54 | 12.74 | 10.02 | ||||||||||||
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Third
Quarter 2007
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3.05 | 2.21 | 13.75 | 9.25 | ||||||||||||
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Fourth
Quarter 2007
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2.99 | 2.10 | 13.20 | 8.50 | ||||||||||||
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First
Quarter 2008
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2.55 | 1.70 | 9.79 | 6.67 | ||||||||||||
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Second
Quarter 2008
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2.17 | 1.25 | 8.50 | 4.80 | ||||||||||||
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Third
Quarter 2008
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1.60 | 1.11 | 5.36 | 4.28 | ||||||||||||
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Fourth
Quarter 2008
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1.27 | 0.41 | 4.50 | 1.85 | ||||||||||||
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First
Quarter 2009
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1.00 | 0.34 | 3.80 | 1.89 | ||||||||||||
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Second
Quarter 2009
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1.21 | 0.55 | 8.69 | 2.80 | ||||||||||||
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Third
Quarter 2009
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2.75 | 0.89 | 10.00 | 3.60 | ||||||||||||
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Last Five
Years:
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2004
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8.21 | 3.00 | * | * | ||||||||||||
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2005
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3.91 | 1.94 | 14.89 | 9.56 | ||||||||||||
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2006
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2.90 | 1.45 | 12.79 | 8.08 | ||||||||||||
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2007
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3.10 | 2.10 | 13.75 | 8.50 | ||||||||||||
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2008
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2.55 | 0.41 | 9.79 | 1.85 | ||||||||||||
On
December 28, 2009, the last reported sale price of the ordinary shares was $6.19
on The NASDAQ Global Market and NIS 24.00 on the Tel Aviv Stock
Exchange.
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*
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During
2004 there was no market activity on the Tel Aviv Stock
Exchange
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4
The
following table sets forth our consolidated unaudited capitalization as of
September 30, 2009, on an actual basis. The financial date in the following
table should be read in conjunction with our consolidated financial data and
notes thereto incorporated by reference herein.
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As
of September 30, 2009
(unaudited,
in thousands)
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Shareholders’
equity:
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Ordinary
shares, par value NIS 0.01 per share: 40,000,000 shares
authorized;
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19,456,503
shares issued and outstanding (1)
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$ | 55 | ||
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Additional
paid-in capital
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84,447 | |||
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Deferred
equity-based compensation
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- | |||
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Accumulated
other comprehensive income
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236 | |||
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Accumulated
deficit
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(61,555 | ) | ||
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Total
shareholders’ equity
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$ | 23,183 | ||
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(1)
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Does
not include 1,453,485 ordinary shares issuable upon the exercise of
warrants outstanding as of September 30, 2009, at an exercise price of
$3.05 per share and 2,658,476 ordinary shares issuable upon the exercise
of 2,350,946 options, at a weighted average exercise price of $1.81 per
share, and vesting of 307,530 restricted share units outstanding as of
September 30, 2009.
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We
currently intend to use the net proceeds from the sale of any securities under
this prospectus for general corporate purposes, which may include the
following:
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working
capital;
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capital
expenditures;
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the
acquisition of other companies or businesses;
and
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other
purposes as mentioned in any prospectus
supplement.
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We have
not yet determined the amount of net proceeds to be used specifically for any of
the foregoing purposes. Accordingly, our management will have significant
discretion and flexibility in applying the net proceeds from the sale of these
securities. Pending such uses, we may temporarily invest the net proceeds. The
precise amounts and timing of the application of proceeds will depend upon our
funding requirements and the availability of other funds.
Based upon our financial needs, we may engage in additional financings of a
character and amount that we determine as the need arises.
The
descriptions of the securities contained in this prospectus, together with the
applicable prospectus supplements, summarize the material terms and provisions
of the various types of securities that we may offer. We will describe in the
applicable prospectus supplement relating to any securities the particular terms
of the securities offered by that prospectus supplement. If we indicate in the
applicable prospectus supplement, the terms of the securities may differ from
the terms we have summarized below. We will also include in the prospectus
supplement information, where applicable, about material Israeli and U.S.
federal income tax considerations relating to the securities, and the securities
exchange, if any, on which the securities will be listed.
5
We may
sell from time to time, in one or more offerings:
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ordinary
shares;
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debt
securities;
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warrants;
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subscription
rights;
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units;
and
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any
combination of the foregoing
securities.
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In this
prospectus, we will refer to the ordinary shares, debt securities, warrants,
subscription rights and units collectively as “securities.” The total dollar
amount of all securities that we may issue under this prospectus will not exceed
$20,000,000.
This
prospectus may not be used to consummate a sale of securities unless it is
accompanied by a prospectus supplement.
Our
authorized share capital consists of 40,000,000 (forty million) ordinary shares,
par value NIS 0.01 per share. We may from time to time, by approval of a
majority of our shareholders, increase our authorized share capital. All
ordinary shares are registered shares, rather than bearer shares.
The
ownership or voting rights of our ordinary shares by non-residents of Israel is
not restricted in any way by our memorandum of association or amended and
restated articles of association. The State of Israel does not restrict in any
way the ownership or voting rights of ordinary shares of Israeli entities by
non-residents of the State of Israel, except with respect to subjects of
countries that are in a state of war with the State of Israel. Our ordinary
shares do not have cumulative voting rights for the election of directors. The
affirmative vote of the shareholders present in person or by proxy that
represent more than 50% of the voting power present in person or by proxy have
the power to elect all nominees up for election to our board of
directors.
In the
event of our liquidation, after satisfaction of liabilities to creditors, our
assets will be distributed to the holders of our ordinary shares in proportion
to the nominal value of their respective holdings. This liquidation right may be
affected by the grant of a preferential dividend or distribution right to the
holder of a class of shares with preferential rights that may be authorized in
the future. Dividends may be paid only out of profits, as defined in the Israeli
Companies Law, 1999, or Companies Law. Our board of directors is authorized to
declare dividends, although we anticipate that, for the foreseeable future, we
will retain any earnings to support operations and to finance the growth and
development of our business. Therefore, we do not expect to pay cash dividends
for at least the next several years.
Holders
of ordinary shares have one vote for each ordinary share held on all matters
submitted to a vote of shareholders. Subject to the provisions set forth in
Section 46B of the Israeli Securities Law, 1968, these voting rights may be
affected by the grant of any special voting rights to the holders of a class of
shares with preferential rights that may be authorized in the future. Our major
shareholders do not have different voting rights from each other or other
shareholders.
Resolutions
of shareholders (e.g. resolutions amending our articles of association, electing
or removing directors, appointing an independent registered public accounting
firm, authorizing changes in capitalization or the rights attached to our shares
or approving a wind-up or merger) require the affirmative vote (at a meeting
convened upon advance notice of no less than twenty one days) of shareholders
present in person or by proxy and holding shares conferring, in the aggregate,
at least a majority of the votes actually cast on such resolutions.
The
quorum required for a meeting of shareholders is at least two shareholders
present, in person or by proxy, within half an hour of the time fixed for the
meeting’s commencement that together hold shares conferring in the aggregate
more than 33% of the total voting power of our shares. A meeting adjourned for
lack of a quorum is adjourned to the following day at the same time and place.
At the reconvened meeting, in the event a quorum is not present within half an
hour of the time fixed for the meetings commencement, the persons present shall
constitute a quorum.
Our
registration number at the Israeli Registrar of Companies is
51-181246-3.
The
objectives stated in our amended and restated articles of association
are:
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to
invent, design, plan, develop, manufacture, market and trade in the field
of measuring instruments in electronics, micro-electronics, medicine,
chemistry, metallurgy, ceramics, and any other
field;
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to
initiate, participate, manage, execute, import and export any kind of
project within the boarders of the State of Israel and/or outside
Israel;
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to
register patents, trademarks, trade names, intellectual property rights
marketing rights and any other right of any kind whatsoever, both in
Israel and abroad; and
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to
engage in any legal activity, both in Israel and
abroad.
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Modification
or abrogation of the rights of any existing class of shares requires either the
written consent of all of the holders of the issued shares of such class or the
adoption of a resolution by an ordinary majority of a general meeting of holders
of such class.
We had
19,716,045 ordinary shares issued as of December 1, 2009. The above number of
issued ordinary shares includes 2,229 treasury shares held by us through a
trustee.
The
transfer agent and registrar for our ordinary shares is BNY Mellon Shareowner
Services, P.O. Box 358016, Pittsburgh, PA 15252-8016.
This
prospectus describes the general terms and provisions of the debt securities we
may offer and sell by this prospectus. When we offer to sell a particular series
of debt securities, we will describe the specific terms of the series in a
prospectus supplement. We will also indicate in the prospectus supplement
whether the general terms and provisions described in this prospectus apply to a
particular series of debt securities.
We may
offer under this prospectus up to $20,000,000 in aggregate principal amount of
debt securities, or if debt securities are issued at a discount, or in a foreign
currency or composite currency, such principal amount as may be sold for an
initial offering price of up to $20,000,000. We may offer debt securities in the
form of either senior debt securities or subordinated debt securities. The
senior debt securities and the subordinated debt securities are together
referred to in this prospectus as the “debt securities.” Unless otherwise
specified in a prospectus supplement, the senior debt securities will be our
direct, unsecured obligations and will rank equally with all of our other
unsecured and unsubordinated indebtedness. The subordinated debt securities
generally will be entitled to payment only after payment of our senior
debt.
The debt
securities will be issued under an indenture between us and a trustee, the form
of which is filed as an exhibit to the registration statement of which this
prospectus forms a part. We have summarized the general features of the debt
securities to be governed by the indenture. The summary is not complete. The
executed indenture will be incorporated by reference from a report on Form 6-K.
We encourage you to read the indenture, because the indenture, and not this
summary, will govern your rights as a holder of debt securities. Capitalized
terms used in this summary will have the meanings specified in the
indenture.
Additional
Information
The terms
of each series of debt securities will be established by or pursuant to a
resolution of our board of directors, and set forth or determined in the manner
provided in an officers’ certificate or by a supplemental indenture. The
particular terms of each series of debt securities will be described in a
prospectus supplement relating to such series, including any pricing
supplement.
We may
issue an unlimited amount of debt securities under the indenture, and the debt
securities may be in one or more series with the same or various maturities, at
par, at a premium or at a discount. Except as set forth in any prospectus
supplement, we will also have the right to “reopen” a previous series of debt
securities by issuing additional debt securities of such series without the
consent of the holders of debt securities of the series being reopened or any
other series. Any additional debt securities of the series being reopened will
have the same ranking, interest rate, maturity and other terms as the previously
issued debt securities of that series. These additional debt securities,
together with the previously issued debt securities of that series, will
constitute a single series of debt securities under the terms of the applicable
indenture.
We will
set forth in a prospectus supplement, including any pricing supplement, relating
to any series of debt securities being offered, the aggregate principal amount
and other terms of the debt securities, which will include some or all of the
following:
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the
title;
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any
limit on the amount that may be
issued;
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whether
or not we will issue the series of debt securities in global form, and, if
so, the terms and the name of the
depository;
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the
maturity date;
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7
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the
interest rate, which may be fixed or variable, or the method for
determining the rate and the date interest will begin to accrue, the dates
interest will be payable and the regular record dates for interest payment
dates or the method for determining such
dates;
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whether
or not the debt securities will be secured or unsecured, and the terms of
any securities;
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classification
as senior or subordinated debt
securities;
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in
the case of subordinated debt securities, the degree, if any, to which the
subordinated debt securities of the series will be senior to or be
subordinated to other indebtedness of our in right of payment, whether the
other indebtedness is outstanding or
not;
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the
terms on which any series of debt securities may be convertible into or
exchangeable for our ordinary shares or other of our securities, including
(a) provisions as to whether conversion or exchange is mandatory, at the
option of the holder or at our option and (b) provisions pursuant to which
the number of ordinary shares or other securities of ours that the holders
of the series of debt securities receive would be subject to
adjustment;
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the
place where payments will be
payable;
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our
right, if any, to defer payment of interest and the maximum length of any
such deferral period;
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the
date, if any, after which, and the price at which, we may, at our option,
redeem the series of debt securities pursuant to any optional redemption
provisions;
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the
date, if any, on which, and the price at which we are obligated, pursuant
to any mandatory sinking fund provisions or otherwise, to redeem, or at
the holder’s option to purchase, the series of debt
securities;
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whether
the indenture will restrict our ability to pay dividends, or will require
us to maintain any asset ratios or
reserves;
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whether
we will be restricted from incurring any additional
indebtedness;
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any
listing of a series of debt securities on a securities exchange or
market;
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the
denominations in which we will issue the series of debt securities, if
other than denominations of $1,000 and any integral multiple thereof;
and
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any
other specific terms, preferences, rights or limitations of, or
restrictions on, the debt
securities.
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We will
provide information on the applicable United States and Israeli income tax
considerations and other special considerations applicable to any of these debt
securities in the applicable prospectus supplement.
If we
denominate the purchase price of any of the debt securities in a foreign
currency or currencies or a foreign currency unit or units, or if the principal
of, and premium and interest on, any series of debt securities is payable in a
foreign currency or currencies or a foreign currency unit or units, we will
provide you with information on the restrictions, elections, general tax
considerations, specific terms and other information with respect to that issue
of debt securities and such foreign currency or currencies or foreign currency
unit or units in the applicable prospectus supplement.
Transfer
and Exchange
Each debt
security will be represented by either one or more global securities registered
in the name of The Depositary Trust Company, as Depositary, or a nominee (we
will refer to any debt security represented by a global debt security as a
“book-entry debt security”), or a certificate issued in definitive registered
form (we will refer to any debt security represented by a certificated security
as a “certificated debt security”) as set forth in the applicable prospectus
supplement.
You may
transfer or exchange certificated debt securities at any office we maintain for
this purpose in accordance with the terms of the indenture. No service charge
will be made for any transfer or exchange of certificated debt securities, but
we may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with a transfer or
exchange.
You may
effect the transfer of certificated debt securities and the right to receive the
principal of, and any premium and interest on, certificated debt securities only
by surrendering the certificate representing those certificated debt securities
and either reissuance by us or the trustee of the certificate to the new holder
or the issuance by us or the trustee of a new certificate to the new
holder.
No
Protection in the Event of a Change of Control
Unless we
state otherwise in the applicable prospectus supplement, the debt securities
will not contain any provisions which may afford holders of the debt securities
protection in the event we undergo a change in control or in the event of a
highly leveraged transaction (whether or not such transaction results in a
change in control) which could adversely affect holders of debt
securities.
8
Covenants
We will
set forth in the applicable prospectus supplement any restrictive covenants
applicable to any issue of debt securities.
Consolidation,
Merger and Sale of Assets
We may
not consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of our properties and assets to, any person, which we refer to
as a successor person, unless:
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we
are the surviving corporation or the successor person (if other than us)
expressly assumes our obligations on the debt securities and under the
indenture;
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immediately
after giving effect to the transaction, no event of default, and no event
which, after notice or lapse of time, or both, would become an event of
default, shall have occurred and be continuing under the indenture;
and
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certain
other conditions are met, including any additional conditions described in
the applicable prospectus
supplement.
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Events
of Default
Event of
default means, with respect to any series of debt securities, any of the
following:
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default
in the payment of any interest upon any debt security of that series when
it becomes due and payable, and continuance of that default for a period
of 30 days (unless the entire amount of the payment is deposited by us
with the trustee or with a paying agent prior to the expiration of the
30-day period);
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default
in the payment of principal of or premium on any debt security of that
series when due and payable;
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default
in the performance or breach of any other covenant or warranty by us in
the indenture (other than a covenant or warranty that has been included in
the indenture solely for the benefit of a series of debt securities other
than that series), which default continues uncured for a period of 90 days
after we receive written notice from the trustee or we and the trustee
receive written notice from the holders of not less than a majority in
principal amount of the outstanding debt securities of that series as
provided in the indenture;
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certain
events of bankruptcy, insolvency or reorganization of our company;
and
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any
other event of default provided with respect to debt securities of that
series that is described in the applicable prospectus
supplement.
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No event
of default with respect to a particular series of debt securities (except as to
certain events of bankruptcy, insolvency or reorganization) necessarily
constitutes an event of default with respect to any other series of debt
securities. The occurrence of an event of default may constitute an event of
default under our bank credit agreements as may be in existence from time to
time. In addition, the occurrence of certain events of default or an
acceleration under the indenture may constitute an event of default under
certain of our other indebtedness outstanding from time to time.
If an
event of default with respect to debt securities of any series at the time
outstanding occurs and is continuing, then the trustee or the holders of not
less than a majority in principal amount of the outstanding debt securities of
that series may, by a notice in writing to us (and to the trustee if given by
the holders), declare to be due and payable immediately the principal (or, if
the debt securities of that series are discount securities, that portion of the
principal amount as may be specified in the terms of that series) of, and
accrued and unpaid interest, if any, on all debt securities of that series. In
the case of an event of default resulting from certain events of bankruptcy,
insolvency or reorganization, the principal (or such specified amount) of and
accrued and unpaid interest, if any, on all outstanding debt securities will
become and be immediately due and payable without any declaration or other act
on the part of the trustee or any holder of outstanding debt securities. At any
time after a declaration of acceleration with respect to debt securities of any
series has been made, but before a judgment or decree for payment of the money
due has been obtained by the trustee, the holders of a majority in principal
amount of the outstanding debt securities of that series may rescind and annul
the acceleration if all events of default, other than the non-payment of
accelerated principal and interest, if any, with respect to debt securities of
that series, have been cured or waived as provided in the indenture. We refer
you to the prospectus supplement relating to any series of debt securities that
are discount securities for the particular provisions relating to acceleration
of a portion of the principal amount of such discount securities upon the
occurrence of an event of default.
9
The
indenture provides that the trustee will be under no obligation to exercise any
of its rights or powers under the indenture at the request of any holder of
outstanding debt securities, unless the trustee receives indemnity satisfactory
to it against any loss, liability or expense. Subject to certain rights of the
trustee, the holders of a majority in principal amount of the outstanding debt
securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the trustee or
exercising any trust or power conferred on the trustee with respect to the debt
securities of that series.
No holder
of any debt security of any series will have any right to institute any
proceeding, judicial or otherwise, with respect to the indenture or for the
appointment of a receiver or trustee, or for any remedy under the indenture,
unless:
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that
holder has previously given to the trustee written notice of a continuing
event of default with respect to debt securities of that series;
and
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the
holders of at least a majority in principal amount of the outstanding debt
securities of that series have made written request, and offered
reasonable indemnity, to the trustee to institute the proceeding as
trustee, and the trustee has not received from the holders of a majority
in principal amount of the outstanding debt securities of that series a
direction inconsistent with that request and has failed to institute the
proceeding within 60 days.
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Notwithstanding
the foregoing, the holder of any debt security will have an absolute and
unconditional right to receive payment of the principal of, and any premium and
interest on, that debt security on or after the due dates expressed in that debt
security and to institute suit for the enforcement of payment.
If any
securities are outstanding under the indenture, the indenture requires us,
within 120 days after the end of our fiscal year, to furnish to the trustee
a statement as to compliance with the indenture. The indenture provides that the
trustee may withhold notice to the holders of debt securities of any series of
any default or event of default (except in payment on any debt securities of
that series) with respect to debt securities of that series if it in good faith
determines that withholding notice is in the interest of the holders of those
debt securities.
Modification
and Waiver
We may
modify and amend the indenture with the consent of the holders of at least a
majority in principal amount of the outstanding debt securities of each series
affected by the modifications or amendments. We may not make any modification or
amendment without the consent of the holders of each affected debt security then
outstanding if that amendment will:
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reduce
the amount of debt securities whose holders must consent to an amendment
or waiver;
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reduce
the rate of or extend the time for payment of interest (including default
interest) on any debt security;
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reduce
the principal of, or premium on, or change the fixed maturity of, any debt
security or reduce the amount of, or postpone the date fixed for, the
payment of any sinking fund or analogous obligation with respect to any
series of debt securities;
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reduce
the principal amount of discount securities payable upon acceleration of
maturity;
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waive
a default in the payment of the principal of, or premium or interest on,
any debt security (except a rescission of acceleration of the debt
securities of any series by the holders of at least a majority in
aggregate principal amount of the then outstanding debt securities of that
series and a waiver of the payment default that resulted from such
acceleration);
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make
the principal of, or premium or interest on, any debt security payable in
currency other than that stated in the debt
security;
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make
any change to certain provisions of the indenture relating to, among other
things, the right of holders of debt securities to receive payment of the
principal of, and premium and interest on, those debt securities and to
institute suit for the enforcement of any such payment and to waivers or
amendments; or
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waive
a redemption payment with respect to any debt
security.
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Except
for certain specified provisions, the holders of at least a majority in
principal amount of the outstanding debt securities of any series may on behalf
of the holders of all debt securities of that series waive our compliance with
provisions of the indenture. The holders of a majority in principal amount of
the outstanding debt securities of any series may on behalf of the holders of
all the debt securities of such series waive any past default under the
indenture with respect to that series and its consequences, except a default in
the payment of the principal of, or any premium or interest on, any debt
security of that series or in respect of a covenant or provision, which cannot
be modified or amended without the consent of the holder of each outstanding
debt security of the series affected; provided, however, that the
holders of a majority in principal amount of the outstanding debt securities of
any series may rescind an acceleration of the debt securities of such series and
its consequences, including any related payment default that resulted from the
acceleration.
10
Discharging
Our Obligations
We may
choose to either discharge our obligations on the debt securities of any series
in a legal defeasance, or to release ourselves from our covenant restrictions on
the debt securities of any series in a covenant defeasance. We may do so at any
time after we deposit with the trustee sufficient cash or government securities
to pay the principal, interest, any premium and any other sums due to the stated
maturity date or a redemption date of the debt securities of the series. If we
choose the legal defeasance option, the holders of the debt securities of the
series will not be entitled to the benefits of the indenture except for
registration of transfer and exchange of debt securities, replacement of lost,
stolen, destroyed or mutilated debt securities, conversion or exchange of debt
securities, sinking fund payments and receipt of principal and interest on the
original stated due dates or specified redemption dates.
We may
discharge our obligations under the indenture or release ourselves from covenant
restrictions only if, in addition to making the deposit with the trustee, we
meet some specific requirements. Among other things:
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we
must deliver an opinion of our legal counsel that the discharge will not
result in holders having to recognize taxable income or loss or subject
them to different tax treatment. In the case of legal defeasance, this
opinion must be based on either an IRS letter ruling or change in federal
tax law;
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we
may not have a default on the debt securities discharged on the date of
deposit;
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the
discharge may not violate any of our agreements;
and
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the
discharge may not result in our becoming an investment company in
violation of the Investment Company Act of
1940.
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Governing
Law
The
indenture and the debt securities will be governed by, and construed in
accordance with, the internal laws of the State of New York, without regard to
conflict of law principles that would result in the application of any law other
than the laws of the State of New York.
We may
issue warrants to purchase ordinary shares and/or debt securities in one or more
series together with other securities or separately, as described in the
applicable prospectus supplement. Below is a description of certain general
terms and provisions of the warrants that we may offer. Particular terms of the
warrants will be described in the warrant agreements and the prospectus
supplement to the warrants.
The
prospectus supplement relating to any warrants we offer, if any, will, to the
extent applicable, include specific terms relating to the offering, including
some or all of the following:
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the
specific designation and aggregate number of, and the price at which we
will issue, the warrants;
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the
currency or currency units in which the offering price, if any, and the
exercise price are payable;
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the
designation, amount and terms of the securities purchasable upon exercise
of the warrants;
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if
applicable, the exercise price for our ordinary shares and the number of
ordinary shares to be received upon exercise of the
warrants;
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if
applicable, the exercise price for our debt securities, the amount of debt
securities to be received upon exercise, and a description of that series
of debt securities;
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the
date on which the right to exercise the warrants will begin and the date
on which that right will expire or, if you may not continuously exercise
the warrants throughout that period, the specific date or dates on which
you may exercise the warrants;
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if
applicable, provisions for changes to or adjustments in the exercise price
of the warrants;
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whether
the warrants will be issued in fully registered form or bearer form, in
definitive or global form or in any combination of these forms, although,
in any case, the form of a warrant included in a unit will correspond to
the form of the unit and of any security included in that
unit;
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the
identity of the warrant agent for the warrants and of any other
depositaries, execution or paying agents, transfer agents, registrars or
other agents;
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the
proposed listing, if any, of the warrants or any securities purchasable
upon exercise of the warrants on any securities
exchange;
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if
applicable, the date from and after which the warrants and the ordinary
shares and/or debt securities will be separately
transferable;
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if
applicable, the minimum or maximum amount of the warrants that may be
exercised at any one time;
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information
with respect to book-entry procedures, if
any;
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the
anti-dilution provisions of the warrants, if
any;
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any
redemption or call provisions;
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whether
the warrants are to be sold separately or with other securities as parts
of units; and
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any
additional material terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the
warrants.
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The
description in the applicable prospectus supplement of any warrants we offer
will not necessarily be complete and will be qualified in its entirety by
reference to the applicable warrant agreement, which will be filed with the SEC
if we offer warrants. For more information on how you can obtain copies of the
applicable warrant agreement if we offer warrants, see “Where You Can Find More
Information; Incorporation of Information by Reference” beginning on
page 16. We urge you to read the applicable warrant agreement and any
applicable prospectus supplement in their entirety.
We may
issue subscription rights to purchase our ordinary shares. These subscription
rights may be issued independently or together with any other security offered
hereby and may or may not be transferable by the shareholder receiving the
subscription rights in such offering. In connection with any offering of
subscription rights, we may enter into a standby arrangement with one or more
underwriters or other purchasers pursuant to which the underwriters or other
purchasers may be required to purchase any securities remaining unsubscribed for
after such offering.
The
prospectus supplement relating to any subscription rights we offer, if any,
will, to the extent applicable, include specific terms relating to the offering,
including some or all of the following:
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the
price, if any, for the subscription
rights;
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the
exercise price payable for each ordinary share upon the exercise of the
subscription rights;
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the
number of subscription rights to be issued to each
shareholder;
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the
number and terms of the shares ordinary shares which may be purchased per
each subscription right;
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the
extent to which the subscription rights are
transferable;
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any
other terms of the subscription rights, including the terms, procedures
and limitations relating to the exchange and exercise of the subscription
rights;
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the
date on which the right to exercise the subscription rights shall
commence, and the date on which the subscription rights shall
expire;
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the
extent to which the subscription rights may include an over-subscription
privilege with respect to unsubscribed
securities; and
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if
applicable, the material terms of any standby underwriting or purchase
arrangement which may be entered into by us in connection with the
offering of subscription rights.
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The
description in the applicable prospectus supplement of any subscription rights
we offer will not necessarily be complete and will be qualified in its entirety
by reference to the applicable subscription right agreement, which will be filed
with the SEC if we offer subscription rights. For more information on how you
can obtain copies of the applicable subscription right agreement if we offer
subscription rights, see “Where You Can Find More Information; Incorporation of
Information by Reference” beginning on page 16. We urge you to read the
applicable subscription right agreement and any applicable prospectus supplement
in their entirety.
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We may
issue units comprised of one or more of the other securities that may be offered
under this prospectus, in any combination. Each unit will be issued so that the
holder of the unit is also the holder of each security included in the unit.
Thus, the holder of a unit will have the rights and obligations of a holder of
each included security. The unit agreement under which a unit is issued may
provide that the securities included in the unit may not be held or transferred
separately at any time, or at any time before a specified date.
The
prospectus supplement relating to any units we offer, if any, will, to the
extent applicable, include specific terms relating to the offering, including
some or all of the following:
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the
material terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may be
held or transferred separately;
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any
material provisions relating to the issuance, payment, settlement,
transfer or exchange of the units or of the securities comprising the
units; and
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any
material provisions of the governing unit agreement that differ from those
described above.
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The
description in the applicable prospectus supplement of any units we offer will
not necessarily be complete and will be qualified in its entirety by reference
to the applicable unit agreement, which will be filed with the SEC if we offer
units. For more information on how you can obtain copies of the applicable unit
agreement if we offer units, see “Where You Can Find More Information;
Incorporation of Information by Reference” beginning on page 16. We urge
you to read the applicable unit agreement and any applicable prospectus
supplement in their entirety.
13
We may
sell the securities being offered hereby in one or more of the following methods
from time to time:
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a
block trade (which may involve crosses) in which the broker or dealer so
engaged will attempt to sell the securities as agent but may position and
resell a portion of the block as principal to facilitate the
transaction;
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purchases
by a broker or dealer as principal and resale by such broker or dealer for
its own account pursuant to this
prospectus;
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exchange
distributions and/or secondary
distributions;
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ordinary
brokerage transactions and transactions in which the broker solicits
purchasers;
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to
one or more underwriters for resale to the public or to
investors;
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in
“at the market offerings,” within the meaning of Rule 415(a)(4) of the
Securities Act of 1933, as amended (the “Securities Act”), to or through a
market maker or into an existing trading market, on an exchange or
otherwise;
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transactions
not involving market makers or established trading markets, including
direct sales or privately negotiated
transactions;
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transactions
in options, swaps or other derivatives that may or may not be listed on an
exchange; or
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through
a combination of these methods of
sale.
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The securities that we distribute by any of these methods may be sold, in one or
more transactions, at:
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|
·
|
a
fixed price or prices, which may be
changed;
|
|
|
·
|
market
prices prevailing at the time of
sale;
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|
|
·
|
prices
related to prevailing market prices;
or
|
|
|
·
|
negotiated
prices.
|
We will set forth in a prospectus supplement the terms of the
offering of securities, including:
|
|
·
|
the
name or names of any agents or
underwriters;
|
|
|
·
|
the
purchase price of the securities being offered and the proceeds we will
receive from the sale;
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|
|
·
|
any
over-allotment options under which underwriters may purchase additional
securities from us;
|
|
|
·
|
any
agency fees or underwriting discounts and other items constituting agents’
or underwriters’ compensation;
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|
·
|
the
public offering price;
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|
|
·
|
any
discounts or concessions allowed or reallowed or paid to dealers;
and
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|
·
|
any
securities exchanges or markets on which such securities may be
listed.
|
If
underwriters are used in the sale, they will acquire the securities for their
own account and may resell the securities from time to time in one or more
transactions at a fixed public offering price or at varying prices determined at
the time of sale. The obligations of the underwriters to purchase the securities
will be subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through underwriting
syndicates represented by managing underwriters or by underwriters without a
syndicate. Subject to certain conditions, the underwriters will be obligated to
purchase all of the securities offered by the prospectus supplement, other than
securities covered by any over-allotment option. Any public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may change
from time to time. We may use underwriters with whom we have a material
relationship. We will describe in the prospectus supplement, naming the
underwriter, the nature of any such relationship.
We may
sell securities directly or through agents we designate from time to time. We
will name any agent involved in the offering and sale of securities and we will
describe any commissions we will pay the agent in the prospectus supplement.
Unless the prospectus supplement states otherwise, our agent will act on a
best-efforts basis for the period of its appointment.
We may
also sell securities directly to one or more purchasers without using
underwriters or agents.
Underwriters,
dealers and agents that participate in the distribution of the securities may be
underwriters as defined in the Securities Act and any discounts or commissions
they receive from us and any profit on their resale of the securities may be
treated as underwriting discounts and commissions under the Securities Act. We
will identify in the applicable prospectus supplement any underwriters, dealers
or agents and will describe their compensation. We may have agreements with the
underwriters, dealers and agents to indemnify them against specified civil
liabilities, including liabilities under the Securities Act. Underwriters,
dealers and agents may engage in transactions with or perform services for us in
the ordinary course of their businesses.
14
The debt
securities, warrants and the units that we may offer will be new issues of
securities with no established trading market. Any underwriters may make a
market in these securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. We cannot guarantee
the liquidity of the trading markets for any securities.
Unless
otherwise specified in the applicable prospectus supplement, each class or
series of securities will be a new issue with no established trading market,
other than our ordinary shares, which are listed on The NASDAQ Global Market. We
may elect to list any other class or series of securities on any exchange, but
we are not obligated to do so. It is possible that one or more underwriters may
make a market in a class or series of securities, but the underwriters will not
be obligated to do so and may discontinue any market making at any time without
notice. We cannot give any assurance as to the liquidity of the trading market
for any of the securities.
In
connection with an offering, an underwriter may purchase and sell securities in
the open market. These transactions may include short sales, stabilizing
transactions and purchases to cover positions created by short sales. Short
sales involve the sale by the underwriters of a greater number of securities
than they are required to purchase in the offering. “Covered” short sales are
sales made in an amount not greater than the underwriters’ option to purchase
additional securities, if any, from us in the offering. If the underwriters have
an over-allotment option to purchase additional securities from us, the
underwriters may close out any covered short position by either exercising their
over-allotment option or purchasing securities in the open market. In
determining the source of securities to close out the covered short position,
the underwriters may consider, among other things, the price of securities
available for purchase in the open market as compared to the price at which they
may purchase securities through the over-allotment option. “Naked” short sales
are any sales in excess of such option or where the underwriters do not have an
over-allotment option. The underwriters must close out any naked short position
by purchasing securities in the open market. A naked short position is more
likely to be created if the underwriters are concerned that there may be
downward pressure on the price of the securities in the open market after
pricing that could adversely affect investors who purchase in the
offering.
Accordingly,
to cover these short sales positions or to otherwise stabilize or maintain the
price of the securities, the underwriters may bid for or purchase securities in
the open market and may impose penalty bids. If penalty bids are imposed,
selling concessions allowed to syndicate members or other broker-dealers
participating in the offering are reclaimed if securities previously distributed
in the offering are repurchased, whether in connection with stabilization
transactions or otherwise. The effect of these transactions may be to stabilize
or maintain the market price of the securities at a level above that which might
otherwise prevail in the open market. The impositions of a penalty bid may also
affect the price of the securities to the extent that it discourages resale of
the securities. The magnitude or effect of any stabilization or other
transactions is uncertain. These transactions may be effected on The NASDAQ
Global Market or otherwise and, if commenced, may be discontinued at any
time.
In
compliance with guidelines of the Financial Industry Regulatory Authority, or
FINRA, the maximum consideration or discount to be received by any FINRA member
may not exceed 8% of the aggregate proceeds of the securities offered pursuant
to this prospectus and any applicable prospectus supplement.
The
financial statements as of December 31, 2008 and 2007, and for each of the three
years in the period ended December 31, 2008, incorporated by reference in this
prospectus have been audited by Brightman Almagor Zohar & Co. a member of
Deloitte Touche Tohmatsu, an independent registered public accounting firm, as
stated in their reports, which are incorporated by reference herein, and have
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
The
validity of the securities offered in this prospectus will be passed upon for us
by Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co., Tel Aviv, Israel.
Any underwriters will be advised with respect to other issues relating to any
offering by their own legal counsel.
15
We have
filed a registration statement on Form F-3 with the SEC in connection with this
offering. In addition, we file reports with, and furnish information to, the
SEC. You may read and copy the registration statement and any other documents we
have filed at the SEC, including any exhibits and schedules, at the SEC’s public
reference room at 100 F Street N.E., Washington, D.C. 20549. You may call the
SEC at 1-800-SEC-0330 for further information on this public reference room. In
addition, the SEC maintains a web site that contains reports and other
information regarding issuers that file electronically with the SEC. You may
access the SEC's website at http://www.sec.gov. These SEC filings
are also available to the public on the Israel Securities Authority’s Magna
website at www.magna.isa.gov.il
and from commercial document retrieval services.
This
prospectus is part of the registration statement and does not contain all of the
information included in the registration statement. Whenever a reference is made
in this prospectus to any of our contracts or other documents, the reference may
not be complete and, for a copy of the contract or document, you should refer to
the exhibits that are a part of the registration statement.
The SEC
allows us to “incorporate by reference” into this prospectus the information we
file with it, which means that we can disclose important information to you by
referring you to those documents. Information incorporated by reference is part
of this prospectus. The following documents filed with or furnished to the SEC
by our company are incorporated by reference in this registration
statement:
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|
·
|
our
Annual Report on Form 20-F for the year ended December 31, 2008, as filed
with the SEC on March 30, 2009, to the extent the information in that
report has not been updated or superseded by this
prospectus;
|
|
|
·
|
our
Report on Form 6-K, furnished to the SEC on May 6,
2009;
|
|
|
·
|
our
Report on Form 6-K, furnished to the SEC on May 7,
2009;
|
|
|
·
|
our
Report on Form 6-K, furnished to the SEC on August 4,
2009;
|
|
|
·
|
our
Report on Form 6-K, furnished to the SEC on August 5,
2009;
|
|
|
·
|
our
Report on Form 6-K, furnished to the SEC on December 8, 2009;
and
|
|
|
·
|
the
description of our ordinary shares which is contained in our registration
statement on Form 8-A filed with the SEC on March 22,
2000.
|
All
subsequent annual reports filed by our company pursuant to the Securities
Exchange Act of 1934, as amended (the “Exchange
Act”) on Form 20-F prior to the termination of the offering shall be
deemed to be incorporated by reference in this prospectus and to be a part
hereof from the date of filing of such documents. We may also incorporate any
Form 6-K subsequently submitted by us to the SEC prior to the termination of the
offering by identifying in such Forms 6-K that they are being incorporated by
reference herein, and any Forms 6-K so identified shall be deemed to be
incorporated by reference in this prospectus and to be a part hereof from the
date of submission 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 prospectus to the extent that a
statement contained herein or in any other subsequently filed document which
also is incorporated or deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
prospectus.
We will
provide to each person, including any beneficial owner, to whom this prospectus
is delivered, a copy of these filings, at no cost, upon written or oral request
to us at: Weizmann Science Park, Einstein St., Building 22, 2nd Floor,
Ness-Ziona, Israel, Attn: Corporate Secretary, telephone number:
972-8-9387505.
A copy of
this prospectus, our amended and restated articles of association,
are available for inspection at our offices at Weizmann Science Park, Einstein
St., Building 22, 2nd Floor, Ness-Ziona, Israel, and on the Israel Securities
Authority’s Magna website, www.magna.isa.gov.il.
As a
foreign private issuer, we are exempt from the rules under Section 14 of the
Exchange Act prescribing the furnishing and content of proxy statements and our
officers, directors and principal shareholders are exempt from the reporting and
other provisions in Section 16 of the Exchange Act.
16
We
are incorporated in Israel, most of our executive officers and directors and the
Israeli experts named herein are nonresidents of the United States, and a
substantial portion of our assets and of such persons’ assets are located
outside the United States. For further information regarding enforceability of
civil liabilities against us and other persons, see the risk factor “Any
shareholder with a cause of action against us as a result of buying, selling or
holding our ordinary shares may have difficulty asserting a claim under U.S.
securities laws or enforcing a U.S. judgment against us or our officers,
directors or Israeli auditors.” under the heading “Risk Factors” in our Annual
Report on Form 20-F for the year ended December 31, 2008, which is
incorporated by reference herein.
The
following is a statement of expenses in connection with the distribution of the
securities registered. All amounts shown are estimates except the SEC
registration fee. The estimates do not include expenses related to offerings of
particular securities. Each prospectus supplement describing an offering of
securities will reflect the estimated expenses related to the offering of
securities under that prospectus supplement.
|
SEC
registration fees
|
$ | 1,116 | ||
|
Legal
fees and expenses
|
$ | 15,000 | ||
|
Accountants
fees and expenses
|
$ | 5,000 | ||
|
Miscellaneous
|
$ | 2,000 | ||
|
|
||||
|
TOTAL
|
$ | 23,116 |
17
Part
II. Information Not Required In Prospectus
Item 8. Indemnification of Directors
and Officers.
Exemption of Office Holders under
the Israeli Companies Law
The
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
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 (except in
connection with distributions), provided the articles of association of the
company allow it to do so. Our amended and restated articles of association
allow us to do so.
The
Companies Law was recently amended to permit indemnification of reasonable
litigation expenses as well, including attorneys’ fees, expended by the office
holder as a result of an investigation or proceeding instituted against him by a
competent authority, provided that such investigation or proceeding concluded
without the filing of an indictment against him and either: (i) concluded
without the imposition of any financial liability in lieu of criminal
proceedings; or (ii) concluded with the imposition of a financial liability in
lieu of criminal proceedings but relates to a criminal offense that does not
require proof of malice aforethought.
The
recent amendment to the Companies Law also provides that an undertaking by a
company to indemnify an office holder must be limited to events which its board
of directors deems to be foreseeable in light of the company’s actual operations
at the time of the undertaking and limited to a sum or criterion that the board
of directors determines to be reasonable under the circumstances, and the
undertaking must delineate those events and such sum or criterion which the
board determined to be reasonable. This amendment to the Companies Law imposes
these conditions only on undertakings to indemnify an office holder for
financial liabilities imposed by judgments but not for litigation
expenses.
The
Companies Law provides that a company may not indemnify an office holder for,
nor enter into an insurance contract that would provide coverage for any
monetary liability incurred as a result of any of the following:
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·
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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
company;
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·
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a
breach by the office holder of his duty of care if such breach was done
intentionally or recklessly, excluding mere
negligence;
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·
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any
act or omission done with the intent to derive an illegal personal
benefit; or
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·
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any
fine levied against the office holder as a result of a criminal
offense.
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Required
Approvals
In
addition, pursuant to 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, for indemnification and insurance for
directors, also by our shareholders.
Insurance and Indemnification of
Directors and Officers under the Company’s Amended and Restated Articles of
Association
Subject
to the provisions of the Companies Law, under the Company’s amended Articles of
Association, the Company is permitted to exempt in advance any director or
officer from any liability to the Company attributed to damage caused by breach
of the director’s or officer’s duty of care owed to the Company, except for such
breach of duty of care in distribution (as defined by the Companies Law).
Subject to the provisions of the Companies Law, the Company may procure
directors’ and officer’s liability insurance for the following:
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·
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breach
of duty of care by any director or officer owed to the Company or any
other person;
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·
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breach
of fiduciary duty by any director or officer owed to the Company, provided
that such director or officer acted in good faith and had a reasonable
basis to assume that the action would not harm the best interests of the
Company; or
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·
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a
monetary liability imposed on the director or officer in favor of a third
party due to activities carried out in his capacity as a director or
officer of the Company.
|
II-1
Subject
to the provisions of the Companies Law, the Company may undertake retroactively
to indemnify a director or company officer in respect of a liability or expense
imposed on him or incurred by him as a result of an act carried out in his
capacity as a director or officer of the Company. Such indemnity may be issued
in respect of a liability or expense as follows:
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·
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a
monetary liability imposed on the director or officer in favor of a third
party under a judgment, including a judgment by way of compromise or a
judgment of an arbitrator approved by a
court;
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·
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reasonable
litigation expenses, including attorneys’ fees, incurred by the director
or officer due to an inquiry he was under or a proceeding filed against
him by an authority, that ended without filing a charge sheet and without
having incurred any monetary liability as an alternative to the criminal
proceedings, or that ended without filing a charge sheet but with an
imposition of a monetary liability as an alternative to the criminal
proceedings in an offense not requiring proof of mens rea;
or
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|
|
·
|
reasonable
litigation expenses, including attorneys’ fees, incurred by the director
or officer charged to him by the court, in a proceeding filed against him
by or on behalf of the Company or by any other person, or for a criminal
charge from which he was acquitted or for a criminal charge in which he
was found guilty of an offense not requiring proof of mens
rea.
|
Subject
to the provisions of the Companies Law, the Company may undertake in advance to
indemnify a director or officer in respect of a liability or expense imposed on
him as a result of an act carried out in his capacity as a director or officer,
provided that the undertaking will be limited as follows:
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|
·
|
a
monetary liability imposed on the director or officer in favor of a third
party under a judgment, including a judgment by way of compromise or a
judgment of an arbitrator approved by a court. However, such undertaking
will be limited to the kinds of events that in the board of director’s
opinion are foreseeable at the time of the issue of the undertaking and
will be limited to the amount determined by the board of directors as
reasonable under the circumstances, and that the kinds of events and the
amounts will be mentioned in such undertaking in
writing;
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|
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·
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reasonable
litigation expenses, including attorney’s fees incurred by the director or
officer due to an inquiry he was under or a proceeding filed against him
by an authority, that ended without filing a charge sheet and without
having incurred any monetary liability as an alternative to the criminal
proceedings, or that ended without filing a charge sheet but with an
imposition of a monetary liability as an alternative to the criminal
proceedings, in an offense not requiring proof of mens rea;
and
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·
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reasonable
litigation expenses, including attorney’s fees, incurred by the director
or officer or charged to him by the court, in a proceeding filed against
him by or on behalf of the Company or by any other person, or for a
criminal charge from which he was acquitted or for a criminal charge in
which he was found guilty of an offense not requiring proof of mens
rea.
|
Item
9. Exhibits.
See the
Exhibit Index on the page immediately preceding the exhibits for a list of
exhibits filed as part of this registration statement on Form F-3, which
Exhibit Index is incorporated herein by reference.
Item
10. Undertakings.
The
undersigned Registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
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|
(i)
|
to
include any prospectus required by Section 10(a)(3) of the
Securities Act;
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(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 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in
the effective registration statement;
and
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|
(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.
|
II-2
provided, however, that
paragraphs (1)(i), (1)(ii) and (1)(iii) of this section 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
Securities and Exchange Commission by the registrant pursuant to Section 13
or 15(d) of the Exchange Act that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant
to Rule 424(b), that is part of the registration statement.
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|
(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.
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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.
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(4)
|
To
file a post-effective amendment to the registration statement to include
any financial statements required by Item 8.A of Form 20-F at the start of
any delayed offering or throughout a continuous offering. A post-effective
amendment need not be filed to include financial statements and
information required by Section 10(a)(3) of the Securities Act or Rule
3-19 of this chapter if such financial statements and information are
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 the Form
F-3.
|
|
|
(5)
|
That,
for the purpose of determining liability under the Securities Act to any
purchaser:
|
|
|
(i)
|
each
prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of and
included in the registration statement;
and
|
|
|
(ii)
|
each
prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5) or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing
the information required by section 10(a) of the Securities Act shall
be deemed to be part of and included in the registration statement as of
the earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in
the offering described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of
the registration statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof. Provided, however , that no statement made in a
registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is part of
the registration statement will, as to a purchaser with a time of contract
of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of
the registration statement or made in any such document immediately prior
to such effective date.
|
|
|
(6)
|
That,
for the purpose of determining liability of the registrant under the
Securities Act to any purchaser in the initial distribution of the
securities, the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to
such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be
considered to offer or sell such securities to such
purchaser:
|
|
|
(i)
|
any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to
Rule 424;
|
|
|
(ii)
|
any
free writing prospectus relating to the offering prepared by or on behalf
of the undersigned registrant or used or referred to by the undersigned
registrant;
|
|
|
(iii)
|
the
portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
|
|
|
(iv)
|
any
other communication that is an offer in the offering made by the
undersigned registrant to the
purchaser.
|
II-3
|
|
(7)
|
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.
|
|
|
(8)
|
That,
for purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of
this registration statement as of the time it was declared
effective.
|
|
|
(9)
|
That,
for the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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.
|
|
|
(10)
|
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 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 Act and will be governed by the final
adjudication of such
issue.
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(11)
|
To
file an application for the purpose of determining the eligibility of the
trustee to act under subsection (a) of section 310 of the Trust Indenture
Act in accordance with the rules and regulations prescribed by the SEC
under section 305(b)2 of the Trust Indenture
Act.
|
II-4
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 F-3 and has duly caused this Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Ness-Ziona, Israel, on December 29,
2009.
|
NOVA
MEASURING INSTRUMENTS LTD.
By:
/s/ Gabi
Seligsohn
——————————————
Gabi
Seligsohn
President
and Chief Executive Officer
|
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Amendment
No.1 to the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated:
|
SIGNATURE
|
TITLE
|
DATE
|
|
/s/ Gabi
Seligsohn
Gabi
Seligsohn
|
President
& Chief Executive Officer
(principal
executive officer)
|
December
29, 2009
|
|
/s/ Dror
David
Dror
David
|
Chief
Financial Officer (principal financial officer and principal accounting
officer)
|
December
29, 2009
|
|
*
Micha
Brunstein
|
Chairman
of the Board of Directors
|
December
29, 2009
|
|
*
Giora
Dishon
|
Director
|
December
29, 2009
|
|
*
Avi
Kerbs
|
Director
|
December
29, 2009
|
|
*
Alon
Dumanis
|
Director
|
December
29, 2009
|
|
*
Dan
Falk
|
Director
|
December
29, 2009
|
|
*
Naama
Zeldis
|
Director
|
December
29, 2009
|
|
*
Avi
Cohen
|
Director
|
December
29, 2009
|
*/s/ Dror
David
Dror
David
(Attorney-in-fact)
Pursuant
to the requirements of the Securities Act of 1933, as amended, the undersigned,
the duly authorized representative in the United States of Nova Measuring
Instruments Ltd. has signed this Amendment No.1 to the Registration Statement on
December 29, 2009.
|
NOVA
MEASURING INSTRUMENTS INC.
By:
/s/ Michael
Sendler
——————————————
Michael
Sendler
President
|
||
|
By:
/s/ Gabi
Seligsohn
——————————————
Gabi
Seligsohn
President
and Chief Executive Officer of Nova Measuring Instruments
Ltd.
|
EXHIBIT
INDEX
|
No.
|
Description
|
|
|
1.1
|
Form
of Underwriting Agreement.*
|
|
|
3.1
|
Amended
and Restated Articles of Association (incorporated by reference to Exhibit
1.1 to the Company’s Annual Report for 20-F for the year ending December
31, 2008, filed March 30, 2009).
|
|
|
4.1
|
Specimen Certificate for Ordinary Shares
(incorporated by reference to Exhibit 4.1 to the Company’s Registration
Statement on Form F-3 (registration number 333-142834), filed May 11,
2007).
|
|
|
4.2
|
Form
of Debt Securities Indenture.**
|
|
|
4.3
|
Form
of Debt Securities.*
|
|
|
4.4
|
Form
of Warrant Agreement (including form of Warrant
Certificate).*
|
|
|
4.5
|
Form
of Unit Agreement (including form of Unit Certificate).*
|
|
|
4.6
|
Form
of Subscription Right Agreement (including form of Right
Certificate).*
|
|
|
5.1
|
Opinion
of Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co. **
|
|
|
23.1
|
Consent
of Gross, Kleinhendler, Hodak, Halevy, Greenberg & Co., included in
Exhibit 5.1. **
|
|
|
23.2
|
Consent
of Brightman Almagor & Co., a member of Deloitte Touche Tohmatsu,
independent registered public accounting firm.
|
|
|
24.1
|
Power
of attorney. **
|
|
|
25.1
|
Statement
of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of the
Trustee under the Debt Securities
Indenture.***
|
* To be
filed, if applicable, by amendment, or as an exhibit to a report on Form 6-K and
incorporated herein by reference.
**
Previously filed.
*** To be
incorporated, if applicable, by reference from a subsequent filing in accordance
with Section 305(b)(2) of the Trust Indenture Act of 1939.