Securities Registration: Employee Benefit Plan (s-8)
November 25 2020 - 4:06PM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on November 25, 2020
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
MICROBOT
MEDICAL INC.
(exact
name of Registrant as specified in its charter)
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Delaware
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94-3078125
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(State or other jurisdiction
of
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(I.R.S. Employer
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Incorporation or
Organization)
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Identification Number)
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25
Recreation Park Drive, Unit 108
Hingham,
Massachusetts 02043
(Address
of Principal Executive Offices including Zip Code)
Microbot
Medical Inc. 2020 Omnibus Performance Award Plan
(Full
title of the plan)
Harel
Gadot, CEO
Microbot
Medical Inc.
25
Recreation Park Drive, Unit 108
Hingham,
Massachusetts 02043
(781)
875-3605
(Name
and address, including zip code, and telephone
number,
including area code, of agent for service)
Copy
to:
Stephen
E. Fox, Esq.
Ruskin
Moscou Faltischek, P.C.
1425
RXR Plaza, East Tower, 15th Floor
Uniondale,
New York 11556
(516)
663-6580
(516)
663-6780 (facsimile)
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”,
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large
accelerated filer [ ]
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Accelerated
filer [ ]
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Non-accelerated
filer [ ] (Do not check if a smaller reporting company)
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Smaller
reporting company [X]
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Emerging
growth company [ ]
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.[ ]
CALCULATION
OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount to be Registered (1)
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Proposed Maximum
Offering Price
Per Share
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Proposed Maximum Aggregate Offering Price
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Amount of Registration Fee
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Common Stock, par value $0.01 per share, issuable under the Microbot Medical Inc. 2020 Omnibus Performance Award Plan
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1,420,652 shares
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$
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7.31
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(2)
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$
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10,384,966.12
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$
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1,133.00
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended
(the “Securities Act”), this Registration Statement also covers any shares of Microbot Medical Inc. (the “Registrant”)
common stock that become issuable under the Microbot Medical Inc. 2020 Omnibus Performance Award Plan by reason of any stock split,
recapitalization, stock dividend or other similar transaction or capital adjustment.
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(2)
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Estimated
solely for the purposes of calculating the registration fee pursuant to Rule 457(c) and
Rule 457(h)(l) under the Securities Act, on the basis of the average of the
high ($7.47) and low ($7.15) reported prices of the shares of Common Stock
of the Registrant as reported by the Nasdaq Capital Market on November 24, 2020,
a date within five business days prior to the filing of this Registration Statement.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in this Part I will be sent or given to employees participating in the Microbot
Medical Inc. 2020 Omnibus Performance Award Plan, as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
“Securities Act”). In accordance with the instructions to Part I of Form S-8, such documents will not be filed with
the Securities and Exchange Commission (the “Commission”). These documents and the documents incorporated by reference
pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements
of Section 10(a) of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents By Reference
The
following documents previously filed with the Commission by Microbot Medical Inc. (“we,” “us,” “our”,
the “Company”, or “Microbot”) are hereby incorporated by reference in this Registration Statement:
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(a)
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The
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the Commission on April
14, 2020;
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(b)
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The
Company’s Annual Report on Form 10-K/A (Amendment No. 1) for the fiscal year ended December 31, 2019, filed with the
Commission on April 29, 2020;
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(c)
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The
Company’s Quarterly Reports on Form 10-Q for its fiscal quarters ended March 31, 2020, June 30, 2020 and September 30,
2020, filed with the Commission on May 15, 2020, August 14, 2020 and November 16, 2020, respectively;
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(d)
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The
Company’s Current Reports on Form 8-K, including any amendments thereto, filed with the Commission on February 25, 2020,
February 28, 2020, March 3, 2020, April 1, 2020, May 7, 2020, June 19, 2020, August 3, 2020 and September 4, 2020; and
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(e)
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The
description of the Company’s Common Stock contained in its Registration Statement on Form 8-A, filed with the
Commission on August 3, 1998, including any amendment or report filed for the purpose of updating such
description.
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All
documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or subsequent to the
effective date hereof and prior to the filing of a post-effective amendment hereto that indicates that all securities offered
hereby have been sold or that deregisters all such securities then remaining unsold, shall be deemed to be incorporated herein
by reference and to be a part hereof from the date of filing of such documents; provided, however, that documents or information
deemed to have been furnished and not filed in accordance with the rules of the Commission shall not be incorporated by reference
into this Registration Statement. Any statement contained herein or in any document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that
a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a
part of this Registration Statement, except as so modified or superseded.
You
may contact the Company in writing or orally to request copies of the above-referenced filings, without charge (excluding exhibits
to such documents unless such exhibits are specifically incorporated by reference into the information incorporated by reference
into this Registration Statement). Requests for such information should be directed to:
Microbot
Medical Inc.
25
Recreation Park Drive, Unit 108
Hingham,
Massachusetts 02043
Attn:
Corporate Secretary
Phone:
(781) 875-3605
Item
4. Description of Securities
Not
Applicable.
Item
5. Interests of Named Experts and Counsel
Not
Applicable.
Item
6. Indemnification of Directors and Officers
Section 145 of the DGCL provides that a
corporation has the power to indemnify a director, officer, employee, or agent of the corporation, or a person serving at the
request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in related capacities
against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party
to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal
action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought
by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which
such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery
or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other
court shall deem proper.
Section 102 of the DGCL, permits a corporation
to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages
for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith,
engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase
in violation of Delaware corporate law or obtained an improper personal benefit.
The foregoing discussion of indemnification
merely summarizes certain aspects of indemnification provisions of, and is limited by reference to, the above discussed sections
of the DGCL.
The Company’s restated certificate
of incorporation provides that the Company’s Directors shall not be liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director except to the extent that exculpation from liabilities is not permitted under
the DGCL as in effect at the time such liability is determined. The Company’s restated certificate of incorporation further
provides that the Company shall indemnify its directors and officers to the fullest extent permitted by the DGCL.
We maintain a directors’ and officers’
insurance policy pursuant to which our directors and officers are insured against liability for actions taken in their capacities
as directors and officers. We believe that these indemnification provisions and insurance are necessary to attract and retain
qualified directors and officers.
Indemnification Agreements
We have entered into indemnification agreements with each of
our directors and officers. These indemnification agreements may require us, among other things, to indemnify our directors and
officers for some expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by a director or
officer in any action or proceeding arising out of his or her service as one of our directors or officers, or any of our subsidiaries
or any other company or enterprise to which the person provides services at our request.
Item
7. Exemption from Registration Claimed
Not
Applicable.
Item
8. Exhibits
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(1)
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Incorporated
by reference to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2006 and filed on March
15, 2007.
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(2)
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Incorporated
by reference to the Company’s Current Report on Form 8-K filed on November 29, 2016.
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(3)
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Incorporated
by reference to the Company’s Current Report on Form 8-K filed on September 4, 2018.
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(4)
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Incorporated
by reference to the Company’s Current Report on Form 8-K filed on September 11, 2019.
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(5)
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Incorporated
by reference to the Company’s Current Report on Form 8-K filed on May 3, 2016.
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(6)
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Incorporated
by reference from the Registrant’s definitive proxy statement on Schedule 14A filed with the Commission on July 31,
2020.
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Item
9. Undertakings
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(a)
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The
undersigned Registrant hereby undertakes:
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(1)
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)
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To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the “Securities Act”);
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(ii)
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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)
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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;
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Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) that are incorporated by reference
in the registration statement;
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b)
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each
filing of the Registrant’s annual report pursuant to Section 13(a) or 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.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification is against such liabilities
(other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in Hingham, Massachusetts on the 25th day of November, 2020.
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MICROBOT
MEDICAL INC.
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By:
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/s/
Harel Gadot
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Harel
Gadot
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Chairman,
President and Chief Executive Officer
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KNOW
ALL PERSONS BY THESE PRESENTS, that the persons whose signatures appear below, severally constitute and appoint Harel Gadot and
David Ben Naim, and each of them singly, as their true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for them and in their names, places, steads, in any and all capacities, to sign this Registration Statement
to be filed with the Securities and Exchange Commission and any and all amendments (including post-effective amendments) to this
Registration Statement, and any subsequent registration statement filed pursuant to Rule 462(b) under the Securities Act of 1933,
as amended, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, granting unto said attorney-in-fact and agent, and each of them singly, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and
purposes as they might or could do in person, thereby ratifying and confirming all that said attorney-in-fact and agent or his
or her substitute or substitutes, or any of them, may lawfully do or cause to be done by virtue thereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities and on the date indicated.
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Signature
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Title
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Date
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/s/
Harel Gadot
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Chairman,
President and Chief Executive Officer (principal executive officer)
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November
25, 2020
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Harel
Gadot
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/s/
David Ben Naim
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Chief
Financial Officer (principal financial and accounting officer)
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November
25, 2020
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David
Ben Naim
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/s/
Yoseph Bornstein
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Director
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November
25, 2020
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Yoseph
Bornstein
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/s/
Scott Burell
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Director
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November
25, 2020
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Scott
Burell
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/s/
Martin Madden
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Director
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November
25, 2020
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Martin
Madden
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/s/
Prattipati Laxminarain
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Director
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November
25, 2020
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Prattipati
Laxminarain
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/s/
Aileen Stockburger
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Director
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November
25, 2020
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Aileen
Stockburger
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/s/
Tal Wenderow
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Director
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November
25, 2020
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Tal
Wenderow
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