Magic Software Enterprises Ltd. — Registration Form 2008

Mar 5, 2008

S-8 1 zk84929.htm Created by EDGAR Ease Plus (EDGAR Ease+) Project: F:\EDGAR Filing\Magic Software Enterprises Ltd\84929\a84929.eep Control Number: 84929 Rev Number: 1 Client Name: Magic Software Enterprises Ltd Project Name: S-8 Firm Name: Zadok-Keinan Ltd S-8 MARKER FORMAT-SHEET="Scotch Rule Top-TNR" FSL="Workstation" MARKER FORMAT-SHEET="Head Sub 3 Left-TNR" FSL="Workstation"

As filed with the Securities and Exchange Commission on March 5, 2008

MARKER FORMAT-SHEET="Head Major Center Bold 1-TNR"

Registration No. 333-[__]

MARKER FORMAT-SHEET="Footnote Rule-TNR" FSL="Workstation" MARKER FORMAT-SHEET="Head Major Center Bold-TNR" FSL="Workstation"

SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549

MARKER FORMAT-SHEET="Footnote Rule-TNR" FSL="Workstation" MARKER FORMAT-SHEET="Head Major Center Bold-TNR" FSL="Workstation"

FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

MARKER FORMAT-SHEET="Footnote Rule-TNR" FSL="Workstation" MARKER FORMAT-SHEET="Head Major Center Bold-TNR" FSL="Workstation"

MAGIC SOFTWARE ENTERPRISES LTD. (Exact name of registrant as specified in its charter)

State of Israel	None
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

5 Haplada Street, Or Yehuda 60218, Israel (Address of Principal Executive Offices) (Zip Code) MAGIC SOFTWARE ENTERPRISES LTD. 2007 INCENTIVE COMPENSATION PLAN (Full title of the plan)

MARKER FORMAT-SHEET="Footnote Rule-TNR" FSL="Workstation"

Magic Software Enterprises Inc. Attn: Regev Yativ, President 1642 Kaiser Avenue Irvine, California 92714 (Name and address of agent for service) (949) 250-1718 (Telephone number, including area code, of agent for service)

MARKER FORMAT-SHEET="Head Major Center Bold 1-TNR" FSL="Default"

Copies to:

Steven J. Glusband, Esq.	Amit Birk Adv.
Carter Ledyard & Milburn LLP	Magic Software Enterprises Ltd.
2 Wall Street	5 Haplada Street
New York, New York 10005	Or-Yehuda, 60218, Israel
(212) 732-3200	972-3-538-9322

MARKER FORMAT-SHEET="Head Major Center Bold-TNR" FSL="Default"

CALCULATION OF REGISTRATION FEE

Title of securities to be registered			Proposed maximum offering price per share (2)	Proposed maximum aggregate offering price	Amount of registration fee (3)
Ordinary Shares, par value
NIS 0.1 per share	1,500,000	(4)	$ 1.79	$ 2,685,000	$ 105.52

MARKER FORMAT-SHEET="Para Hang Lv 0-TNR" FSL="Workstation"

(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, this Registration Statement also covers an indeterminate number of shares of the Registrant’s ordinary shares, par value NIS 0.1 per share (the “Ordinary Shares”) that may be offered or issued pursuant to the Registrant’s 2007 Incentive Compensation Plan by reason of stock splits, stock dividends or similar transactions.

MARKER FORMAT-SHEET="Para Hang Lv 0-TNR" FSL="Workstation"

(2) Calculated pursuant to Rule 457 (c) and (h)on the basis of the average of the low and high prices ($1.78 and $1.80) of an ordinary share as reported by the NASDAQ Global market on March 3, 2008.

MARKER FORMAT-SHEET="Para Hang Lv 0-TNR" FSL="Workstation"

(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as amended, as follows: proposed maximum aggregate offering price multiplied by .0000393.

MARKER FORMAT-SHEET="Para Hang Lv 0-TNR" FSL="Workstation"

(4) Reserved for issuance under the Registrant’s 2007 Incentive Compensation Plan.

MARKER FORMAT-SHEET="Footnote Rule-TNR" FSL="Workstation" MARKER FORMAT-SHEET="Para Flush Lv 0-TNR" FSL="Workstation"

This Registration Statement shall become effective immediately upon filing as provided in Rule 462 under the Securities Act of 1933.

MARKER FORMAT-SHEET="Head Minor Center-TNR" FSL="Workstation"

PART II

MARKER FORMAT-SHEET="Head Major Center Bold-TNR" FSL="Workstation"

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

MARKER FORMAT-SHEET="Head Major Left Bold-TNR" FSL="Workstation"

Item 3. Incorporation of Documents by Reference.

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

The Registrant hereby incorporates by reference into this Registration Statement the following documents filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities and Exchange Act, as amended (the “Exchange Act”) (Commission File No. 001-19415):

MARKER FORMAT-SHEET="Para Hang Lv 2-TNR" FSL="Workstation"

(a) the Registrant’s Annual Report on Form 20-F for the fiscal year ended December 31, 2006 filed with the Commission on June 26, 2007; and the Registrant’s Amendment No. 1 to Annual Report on its Form 20-F/A for the fiscal year ended December 31, 2006 filed with the Commission on September 26, 2007;

MARKER FORMAT-SHEET="Para Hang Lv 2-TNR" FSL="Workstation"

(b) The Registrant’s Reports of Foreign Private Issuer on Form 6-K submitted to the Commission on January 24, 2007; January 30, 2007; February 14, 2007; February 20, 2007; February 26, 2007; March 20, 2007; April 17, 2007; May 14, 2007; May 17, 2007; June 20, 2007; June 26, 2007; June 26, 2007; July 26, 2007; August 9, 2007; August 9, 2007; August 28, 2007; October 15, 2007; November 8, 2007; November 8, 2007; November 19, 2007; December 31, 2007; February 5, 2008; February 19, 2008; February 20, 2008 and February 28, 2008.

MARKER FORMAT-SHEET="Para Hang Lv 2-TNR" FSL="Workstation"

(c) The description of the Registrant’s Ordinary Shares contained in any registration statement or report of the Registrant filed under the Securities Exchange Act of 1934 (the “Exchange Act”), including any amendments or reports filed for the purpose of updating such description.

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

In addition, all documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, and all Reports on Form 6-K submitted to the Commission subsequent to the date hereof, to the extent that such Reports indicate that information therein is incorporated by reference into the Registrant’s Registration Statements on Form S-8, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part of this Registration Statement from the date of filing of such documents.

MARKER FORMAT-SHEET="Head Major Left Bold-TNR" FSL="Workstation"

Item 4. Description of Securities.

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

Not applicable.

MARKER FORMAT-SHEET="Head Major Left Bold-TNR" FSL="Workstation"

Item 5. Interests of Named Experts and Counsel.

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

Not applicable.

MARKER FORMAT-SHEET="Head Major Left Bold-TNR" FSL="Workstation"

Item 6. Indemnification of Directors and Officers.

MARKER FORMAT-SHEET="Head Left-TNR" FSL="Workstation"

Insurance for Office Holders

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Default"

The Israeli Companies Law provides that a company may, if permitted by its articles of association, enter into a contract for the insurance of the liability of any of its office holders arising from their acts or omissions in such capacity which constitute any of the following:

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

— a breach of the office holder's duty of care to the company or to another person;

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

— a breach of the office holder’s duty of loyalty to the company, provided that the office holder acted in good faith and had reasonable grounds to assume that his act would not prejudice the company’s interests; and

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

— a monetary liability imposed upon the office holder in favor of another person.

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

Our articles of association permit us to purchase insurance covering the liability of our office holders in accordance with the Israeli Companies Law as currently in effect. We currently maintain a directors’ and officers’ liability insurance policy that provides coverage of not more than $20 million per claim and in the aggregate per year.

MARKER FORMAT-SHEET="Head Left-TNR" FSL="Workstation"

Exemption of Office Holders

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

The Israeli Companies Law provides that a company cannot exempt an office holder from liability with respect to a breach of his or her duty of loyalty to the company. If permitted by its articles of association, a company may, in advance, grant an exemption to an office holder from his or her liability to the company with respect to a breach of the officer holder’s duty of care. However, a company may not grant an exemption in advance to a director from his or her liability to the company with respect to a breach of his or her duty of care in the event of a distribution.

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

Our articles of association permit us to exempt our office holders in accordance with the Israeli Companies Law as currently in effect. We have provided each of our directors and officers a letter of exemption from liability.

MARKER FORMAT-SHEET="Head Left-TNR" FSL="Workstation"

Indemnification of Office Holders

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Default"

The Israeli Companies Law provides that a company may, if permitted by its articles of association, indemnify an office holder for liabilities or expenses imposed on him or her, or incurred by him or her concerning acts or omissions performed by the office holder in such capacity for:

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

— a monetary liability imposed on the office holder in favor of another person by any judgment, including a settlement or an arbitrator's award approved by a court;

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

— reasonable litigation expenses, including attorney’s fees, incurred by the office holder as a result of an investigation or proceeding instituted against him or her by a competent authority, provided that such investigation or proceeding concluded without any indictment filed against the office holder and without any monetary liability imposed on the office holder in lieu of criminal proceedings, or concluded without an indictment against the office holder but with the imposition of a monetary liability on the office holder in lieu of criminal proceedings with respect to a criminal offense that does not require proof of criminal intent; and

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

— reasonable litigation expenses, including attorneys’ fees, incurred by the office holder or which were imposed on him or her by a court, in an action instituted by the company or on the company’s behalf, or by another person, against the office holder, or in a criminal charge from which the office holder was acquitted, or in a criminal proceeding in which the office holder was convicted of a criminal offense which does not require proof of criminal intent.

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

The indemnification provisions in a company’s articles of association may include:

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

— a provision allowing the company to undertake in advance to indemnify an office holder, except that with respect to a monetary liability imposed on the office holder by any judgment, settlement or court-approved arbitration award, the undertaking must be limited to types of events which the company’s board of directors deems foreseeable considering the company’s actual operations at the time of the undertaking, and to an amount or standard that the board of directors has determined as reasonable under the circumstances; and

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

— a provision allowing the company to retroactively indemnify an office holder.

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

Our articles of association permit us to indemnify our office holders in accordance with the Israeli Companies Law as currently in effect. Our articles of association provide that an indemnification undertaking may be given in advance or retroactively, provided that an undertaking given in advance will be restricted to types of events that our board of directors deems foreseeable considering our company’s operations at the time of the undertaking, and in an amount or standard that our board of directors deems reasonable under the circumstances.

MARKER FORMAT-SHEET="Head Left-TNR" FSL="Workstation"

Limitations on Insurance, Exemption and Indemnification

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

The Israeli Companies Law provides that neither a provision of the articles of association permitting the company to enter into a contract to insure the liability of an office holder, nor a provision in the articles of association or a resolution of the board of directors permitting the indemnification of an office holder, nor a provision in the articles of association exempting an office holder from duty to the company shall be valid, where such insurance, indemnification or exemption relates to any of the following:

MARKER FORMAT-SHEET="Para Large Hang Lv 1-TNR" FSL="Workstation"

— a breach by the office holder of his duty of loyalty, except with respect to insurance coverage or indemnification if the office holder acted in good faith and had reasonable grounds to assume that the act would not prejudice the company;

MARKER FORMAT-SHEET="Para Large Hang Lv 1-TNR" FSL="Default"

— a breach by the office holder of his duty of care if such breach was committed intentionally or recklessly, unless the breach was committed only negligently;

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

— any act or omission committed with intent to derive an unlawful personal gain; and

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

— any fine or forfeiture imposed on the office holder.

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

In addition, pursuant to the Israeli Companies Law, exemption of, procurement of insurance coverage for, an undertaking to indemnify or indemnification of an office holder must be approved by the audit committee and the board of directors and, if such office holder is a director or a controlling shareholder or a relative of the controlling shareholder, also by the shareholders general meeting. A special majority at the general meeting is required if a controlling shareholder is interested in such transaction as an office holder or as a relative of an office holder.

MARKER FORMAT-SHEET="Head Major Left Bold-TNR" FSL="Workstation"

Item 7. Exemption from Registration Claimed.

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

Not applicable.

MARKER FORMAT-SHEET="Head Major Left Bold-TNR" FSL="Workstation"

Item 8. Exhibits.

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

4.1 Memorandum of Association of the Registrant (1)

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

4.2 English Translation of Articles of Association of the Registrant (2)

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

4.3 Magic Software Enterprises Ltd. 2007 Incentive Compensation Plan

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

5 Opinion of Opinion of Amit Birk, Adv., regarding legality of the securities being registered

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

23.1 Consent of Amit Birk, Adv (contained in Exhibit 5)

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

23.2 Consent of Kost Forer Gabbay & Kasierer a Member of Ernst & Young Global

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

23.3 Consent of LEVY COHEN & CO.

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

23.4 Consent of LEVY COHEN & CO.

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

23.5 Consent of Grant Thornton Taiyo ASG

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

23.6 Consent of KDA Audit Corporation

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

23.7 Consent of Verstegen accountants en adviseurs,

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

23.8 Consent of Maria Negyeffy Registered Auditors

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

23.9 Consent of Federico Pozzi Revisore Ufficiale dei Conti

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

24 Power of Attorney (included as part of this Registration Statement)

MARKER FORMAT-SHEET="Footnote Rule-TNR" FSL="Workstation" MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

(1) Filed as Exhibit 3.2 to the Registrant’s registration statement on Form F-1, registration number 33-41486, and incorporated herein by reference.

MARKER FORMAT-SHEET="Para Hang Lv 1-TNR" FSL="Workstation"

(2) Filed as Exhibit 3.1 to the Registrant’s registration statement on Form F-1, registration number 33-41486, and incorporated herein by reference.

MARKER FORMAT-SHEET="Head Major Left Bold-TNR" FSL="Workstation"

Item 9. Undertakings.

MARKER FORMAT-SHEET="Para (List) Indent Lv 0- TNR" FSL="Workstation"

(a) The undersigned Registrant hereby undertakes:

MARKER FORMAT-SHEET="Para (List) Flush Lv 1- TNR" FSL="Workstation"

(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

MARKER FORMAT-SHEET="Para Flush Lv 2-TNR" FSL="Workstation"

(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);

MARKER FORMAT-SHEET="Para Flush Lv 2-TNR" FSL="Workstation"

(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement;

MARKER FORMAT-SHEET="Para Flush Lv 2-TNR" FSL="Workstation"

(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;

MARKER FORMAT-SHEET="Para Indent Lv 2-TNR" FSL="Workstation"

provided , however , that paragraphs (a)(1)(i) and (a)(1)(ii) above 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 Exchange Act that are incorporated by reference in this Registration Statement.

MARKER FORMAT-SHEET="Para (List) Flush Lv 1- TNR" FSL="Workstation"

(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.

MARKER FORMAT-SHEET="Para (List) Flush Lv 1- TNR" FSL="Workstation"

(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.

MARKER FORMAT-SHEET="Para (List) Indent Lv 0- TNR" FSL="Workstation"

(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act 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.

MARKER FORMAT-SHEET="Para (List) Indent Lv 0- TNR" FSL="Workstation"

(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

MARKER FORMAT-SHEET="Head Major Center Bold-TNR" FSL="Workstation"

SIGNATURES

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Default"

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets 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 Or Yehuda, Israel on March 4, 2008.

MARKER FORMAT-SHEET="Signature (Single)" FSL="Workstation"

Magic Software Enterprises Ltd. By: /s/ Eitan Naor —————————————— Name: Eitan Naor Title: President and Chief Executive Officer

MARKER FORMAT-SHEET="Head Major Center Bold-TNR" FSL="Workstation"

POWER OF ATTORNEY

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Workstation"

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Eitan Naor and Amit Birk and each of them severally, his true and lawful attorney-in-fact, and agent each with power to act with or without the other, and with full power of substitution and resubstitution, to execute in the name of such person, in his capacity as a director or officer of Magic Software Enterprises Ltd., any and all amendments to this Registration Statement on Form S-8 and all instruments necessary or incidental in connection therewith, and to file the same with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or their substitutes, may do or cause to be done by virtue hereof.

MARKER FORMAT-SHEET="Para Indent Lv 0-TNR" FSL="Default"

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on March 4, 2008, by the following persons in the capacities indicated.

Name	Title
/s/ Guy Bernsten	Chairman of the Board of Directors
Guy Bernstein
/s/ Eitan Naor	President, Chief Executive Officer and Director
Eitan Naor
/s/ David Zigdon	Chief Financial Officer and Principal Accounting
David Zigdon	Officer
/s/ Hadas Gazit Kaiser	Director
Hadas Gazit Kaiser
/s/ Gad Goldstein	Director
Gad Goldstein
/s/ Eli Reifman	Director
Eli Reifman
/s/ Naamit Salomon	Director
Naamit Salomon
/s/ Yehezkel Zeira	Director
Yehezkel Zeira
/s/ Itiel Efrat	Director
Itiel Efrat
/s/ Elan Penn	Director
Elan Penn

MARKER FORMAT-SHEET="Signature (Single)" FSL="Workstation"

Magic Software Enterprises Inc. By: /s/ Regev Yativ —————————————— Name: Regev Yativ Title: President Authorized Representative in the United States