As filed with the Securities and Exchange Commission on November
19, 2018
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Ability Inc.
(Exact name of registrant as specified in
its charter)
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Cayman Islands
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Not Applicable
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(state or other jurisdiction of
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(IRS employer
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incorporation or organization)
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Identification No.)
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Ability Inc.
Yad Harutzim
14
Tel Aviv, Israel,
6770007
(Address of Principal Executive Offices)
(Zip Code)
2015 Long-Term Equity Incentive Plan
(including Israeli Sub-Plan)
(Full title of the plan)
Puglisi & Associates
850 Library
Avenue, Suite 204
Newark, DE 19715
(302) 738-6680
(Name and address of agent for service)
Copies to:
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Mark Selinger, Esq.
Gary Emmanuel, Esq.
McDermott Will & Emery LLP
340 Madison Ave.
New York, NY 10173
Telephone: (212 547-5400
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Zvi Gabbay
Barnea & Co.
Electra City Tower
58 HaRakevet St.
Tel Aviv 6777016, Israel
Tel: +972-3-640-0600
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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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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☐
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Emerging growth company
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☒
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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 Exchange 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 Security
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Proposed Maximum Aggregate Offering Price
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Amount of Registration Fee
(2)
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Ordinary shares, par value $0.001 per share
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206,113
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$
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2.93
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(2)
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$
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603,911.09
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$
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73.19
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Total
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206,113
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N/A
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$
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603,911.09
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$
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73.19
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”),
this Registration Statement also covers an indeterminate number of additional securities which may be offered and issued to prevent
dilution resulting from stock splits, stock dividends, recapitalizations or similar transactions.
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(2)
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Estimated solely for purposes of calculating the filing fee pursuant to Rule 457 (c) and (h), the
aggregate offering price and the fee have been computed upon the basis of the average of the high and low prices per share of the
registrant’s ordinary shares as reported on the NASDAQ Capital Market on November 16, 2018.
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PART I
The documents containing
the information required in Part I of this Registration Statement have been or will be sent or given to participating employees
as specified in Rule 428(b)(1) under the Securities Act, in accordance with the rules and regulations of the United States Securities
and Exchange Commission (the “SEC”). Such documents are not being filed with the SEC either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference into this Registration Statement 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,
which have been filed with or furnished to the SEC by the registrant, are incorporated herein by reference into this Registration
Statement:
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(a)
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The Registrant’s Annual Report on Form 20-F for the year ended December 31, 2017, filed with
the SEC on April 30, 2018;
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(b)
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the description of the Registrant’s ordinary shares contained in the Registrant’s Registration
Statement on Form F-3 (File No. 333-226288) under the heading “Description of Ordinary Shares”, filed with the SEC
on July 23, 2018, including any amendment or report filed for the purpose of updating such description; and
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(c)
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The Registrant’s reports of foreign private issuer on Form 6-K furnished with the SEC on January 17, 2018, February 27, 2018, March 21, 2018, April 30, 2018, July 6, 2018, July 11, 2018, July 13, 2018, August 7, 2018, August 14, 2018, August 16, 2018, August 16, 2018, September 18, 2018, September 25, 2018 and November 19, 2018.
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In addition, all reports
and other documents filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date
of this Registration Statement, but prior to the filing of a post-effective amendment to this Registration Statement that indicates
that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated
by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document that
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, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Cayman Islands law
does not limit the extent to which a company’s articles of association may provide for indemnification of officers and directors,
except to the extent that a provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide
indemnification against civil fraud or the consequences of committing a crime. The Registrant’s amended and restated memorandum
and articles of association provide for indemnification of officers and directors for any liability, action, proceeding, claim,
demand, costs, damages or expenses, including legal expenses, whatsoever which they or any of them may incur as a result of any
act or failure to act in carrying out their functions other than such liability (if any) that they may incur by reason of their
own actual fraud or willful default. No indemnified person is liable to the Registrant for any loss or damage incurred by us as
a result (whether direct or indirect) of the carrying out of their functions unless that liability arises through the actual fraud
or willful default of such indemnified person. No person is found to have committed actual fraud or willful default unless or until
a court of competent jurisdiction has made a finding to that effect. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to the Registrant’s directors, officers or persons controlling it pursuant to these provisions,
the Registrant has been been informed that, in the opinion of the SEC, this indemnification is against public policy as expressed
in the Securities Act and therefore is unenforceable.
Under the Registrant’s
amended and restated memorandum and articles of association, its directors, on behalf of the Registrant, may purchase and maintain
insurance for the benefit of any director or other officer against any liability which, by virtue of any rule of law, would otherwise
attach to such person in respect of any negligence, default, breach of duty or breach of trust of which such person may be guilty
in relation to us.
The Registrant has
procured a directors’ and officers’ liability & company reimbursement insurance policy for its officers and directors
and our subsidiaries, with an aggregate limit of liability for all losses of $20.0 million.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits to this
Registration Statement are listed in the Exhibit Index attached hereto and incorporated herein by reference.
Item 9. Undertakings
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(a)
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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)
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To include any prospectus required by Section 10(a)(3) of 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 this 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 this registration statement or any material change to such information in this registration statement;
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provided, however,
that subparagraphs (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 the periodic 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 that are incorporated by reference in this registration statement.
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(2)
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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)
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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)
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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. Financial statements
and information otherwise required by Section 10(a)(3) of the Act need not be furnished, provided that the registrant includes
in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and
other information necessary to ensure that all other information in the prospectus is at least as current as the date of those
financial statements.
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(b)
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The undersigned Registrant hereby further undertakes that, for the purposes of determining any
liability under the Securities Act, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering thereof.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements
of the Securities Act, 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 Tel Aviv, Israel on the 19
th
day of November, 2018.
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Ability Inc.
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By:
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/s/ Anatoly Hurgin
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Name:
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Anatoly Hurgin
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Title:
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Chief Executive Officer and
Chairman of the Board of Directors
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POWER OF ATTORNEY
We,
the undersigned officers and directors of Ability Inc., hereby severally constitute and appoint Anatoly Hurgin and Avi Levin and
each of them, as our true and lawful attorney to sign for us and in our names in the capacities indicated below any and all amendments
or supplements, including any post-effective amendments, to this registration statement on Form S-8 and to file the same, with
exhibits thereto and other documents in connection therewith, with the SEC, granting unto said attorney full power and authority
to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming our signatures to said amendments to this registration
statement signed by our said attorney and all else that said attorney may lawfully do and cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act, this registration statement on Form S-8 has been signed below by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Anatoly Hurgin
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Chief Executive Officer and Chairman of the Board of Directors
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November 19, 2018
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Anatoly Hurgin
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(Principal Executive Officer)
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/s/ Avi Levin
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Chief Financial Officer
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November 19, 2018
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Avi Levin
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(Principal Financial Officer & Principal Accounting
Officer)
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/s/ Alexander Aurovsky
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Chief Technology Officer and Director
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November 19, 2018
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Alexander Aurovsky
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/s/ Avraham Dan
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Director
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November 19, 2018
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Avraham Dan
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/s/ Naftali Granot
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Director
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November 19, 2018
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Naftali Granot
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/s/ Limor Beladev
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Director
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November 19, 2018
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Limor Beladev
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/s/ Yair Cohen
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Director
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November 19, 2018
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Yair Cohen
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/s/ Joseph Tenne
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Director
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November 19, 2018
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Joseph Tenne
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SIGNATURE OF AUTHORIZED REPRESENTATIVE
OF THE REGISTRANT
Pursuant to the requirements
of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Ability
Inc. has signed this Registration Statement on this 19
th
day of November 2018.
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PUGLISI & ASSOCIATES
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By:
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/s/ Donald J. Puglisi
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Donald J. Puglisi
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Authorized Representative
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EXHIBIT INDEX
* Filed herewith.
5
Exhibit 5.1
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Our ref
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MUL/707834-000001/54709762v2
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Ability
Inc.
PO
Box 309, Ugland House
Grand
Cayman
KY1-1104
Cayman
Islands
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19
November 2018
Dear
Sirs
Ability
Inc.
We
have acted as Cayman Islands counsel to Ability Inc. (the “
Company
”) to provide this legal opinion in connection
with the Company’s registration statement on Form S-8, including all amendments or supplements thereto (the “
Registration
Statement
”) filed with the United States Securities and Exchange Commission (the “
Commission
”) under
the United States Securities Act of 1933, as amended (the “
Act
”) relating to the reservation for issuance of
206,113 ordinary shares of a par value of US$0.001 each (the “
Shares
”) upon the granting of certain awards under
the 2015 Long-Term Equity Incentive Plan (the “
Plan
”).
We
have reviewed originals, copies, drafts or conformed copies of the following documents, and such other documents as we deem necessary:
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1.1
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The
certificate of incorporation dated 1 September 2015, the certificate of incorporation
on change of name dated 23 December 2015 and the amended and restated memorandum and
articles of association of the Company as registered or adopted on 23 December 2015 (the
“
Memorandum and Articles
”).
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1.2
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The
minutes (the “
Minutes
”) of the meeting of the board of directors of
the Company held on 25 April 2016 (the “
Meeting
”) and the corporate
records of the Company maintained at its registered office in the Cayman Islands.
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1.3
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A
certificate of good standing with respect to the Company issued by the Registrar of Companies
(the “
Certificate of Good Standing
”).
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1.4
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A
certificate from a director of the Company a copy of which is attached to this opinion
letter (the “
Director’s Certificate
”).
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1.6
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The
Registration Statement.
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The
following opinions are given only as to, and based on, circumstances and matters of fact existing and known to us on the date
of this opinion letter. These opinions only relate to the laws of the Cayman Islands which are in force on the date of this opinion
letter. In giving the following opinions, we have relied (without further verification) upon the completeness and accuracy of
the Director’s Certificate and the Certificate of Good Standing. We have also relied upon the following assumptions, which we
have not independently verified:
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2.1
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The
Plan has been or will be authorised and duly executed and unconditionally delivered by
or on behalf of all relevant parties in accordance with all relevant laws (other than,
with respect to the Company, the laws of the Cayman Islands).
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2.2
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The
Plan is, or will be, legal, valid, binding and enforceable against all relevant parties
in accordance with its terms under the laws of the State of Delaware (the “
Relevant
Law
”) and all other relevant laws (other than, with respect to the Company,
the laws of the Cayman Islands).
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2.3
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The
choice of the Relevant Law as the governing law of the Plan has been made in good faith
and would be regarded as a valid and binding selection which will be upheld by the courts
of the State of California and any other relevant jurisdiction (other than the Cayman
Islands) as a matter of the Relevant Law and all other relevant laws (other than the
laws of the Cayman Islands).
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2.4
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Copies
of documents, conformed copies or drafts of documents provided to us are true and complete
copies of, or in the final forms of, the originals.
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2.5
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All
signatures, initials and seals are genuine.
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2.6
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The
capacity, power, authority and legal right of all parties under all relevant laws and
regulations (other than, with respect to the Company, the laws and regulations of the
Cayman Islands) to enter into, execute, unconditionally deliver and perform their respective
obligations under the Plan.
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2.7
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There
is nothing under any law (other than the laws of the Cayman Islands) which would or might
affect the opinions set out below. Specifically, we have made no independent investigation
of the Relevant Law.
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2.8
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The
Company has received, or will receive, money or money’s worth (the “
Consideration
”)
in consideration for the issue of the Shares, and none of the Shares have, or will be,
issued for less than par value.
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Save
as aforesaid we have not been instructed to undertake and have not undertaken any further enquiry or due diligence in relation
to the transaction the subject of this opinion.
Based
upon, and subject to, the foregoing assumptions and the qualification set out below, and having regard to such legal considerations
as we deem relevant, we are of the opinion that the Shares to be offered and issued by the Company pursuant to the provisions
of the Plan, have been duly authorised for issue, and when issued by the Company pursuant to the provisions of the Plan for the
consideration fixed thereto and duly registered in the Company’s register of members (shareholders), will be validly issued and
(assuming that all of the Consideration is received by the Company) will be fully paid and non-assessable.
The
opinions expressed above are subject to the following qualifications:
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4.1
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Under
the Companies Law (2018 Revision) of the Cayman Islands, the register of members of a
Cayman Islands company is by statute regarded as prima facie evidence of any matters
which the Companies Law (2018 Revision) of the Cayman Islands directs or authorises to
be inserted therein. A third party interest in the shares in question would not appear.
An entry in the register of members may yield to a court order for rectification (for
example, in the event of fraud or manifest error).
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4.2
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In
this opinion letter, the phrase “non-assessable” means, with respect to the
issuance of shares, that a shareholder shall not, in respect of the relevant shares and
in the absence of a contractual arrangement, or an obligation pursuant to the memorandum
and articles of association, to the contrary, have any obligation to make further contributions
to the Company’s assets (except in exceptional circumstances, such as involving fraud,
the establishment of an agency relationship or an illegal or improper purpose or other
circumstances in which a court may be prepared to pierce or lift the corporate veil).
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We
hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In providing our consent, we do not
thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the Rules and Regulations
of the Commission thereunder.
This
opinion is addressed to you and may be relied upon by you and your counsel. This opinion is limited to the matters detailed herein
and is not to be read as an opinion with respect to any other matter.
Yours
faithfully
/s/
Maples
and Calder
Maples
and Calder
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