SODA Sodastream International Ltd. - Ordinary Shares (delisted)

 

As filed with the Securities and Exchange Commission on December 31, 2015

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

_________________________

 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

SODASTREAM INTERNATIONAL LTD.

(Exact Name of Registrant as Specified in its Charter)

 

Israel	N/A
(State or Other Jurisdiction of	(I.R.S. Employer
Incorporation or Organization)	Identification Number)

 

Daniel Birnbaum

Chief Executive Officer

SodaStream International Ltd.

Gilboa Street, Airport City,

Ben Gurion Airport, Israel 7010000

+972 (3) 976-2301

(Address of Principal Executive Offices) (Zip Code)

 

2010 EMPLOYEE SHARE OPTION PLAN

(Full Title of the Plans)

 

SodaStream USA, Inc.

200 East Park Drive, Suite 600

Mount Laurel, NJ 08054

1-800-763-2258

(Name, Address and Telephone Number, Including Area Code, of Agent for Service)

 

Copies to:

Dotan Bar-Natan Head of Legal Department SodaStream International Ltd. Gilboa Street Airport City 7010000, Israel Tel: +972 (3) 976-2309 Fax: +972 (3) 973-6667

Colin J. Diamond White & Case LLP 1155 Avenue of the Americas New York, New York Tel: (212) 819-8200 Fax: (212) 354-8113

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   ¨	Accelerated filer x
Non-accelerated filer     ¨ (Do not check if smaller reporting company )	Smaller reporting company   ¨

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered		Amount To Be Registered(1)				Proposed Maximum Offering Price Per Share(2)				Proposed Maximum Aggregate Offering Price(2)				Amount of Registration Fee
Ordinary Shares, par value NIS 0.645			505,000			$	17.42			$	8,797,100			$	885.87
Total			505,000											$	885.87

 

(1)

This Registration Statement shall also cover any additional Ordinary Shares which become issuable under the 2010 Employee Share Option Plan (the “2010 Plan”) of SodaStream International Ltd. (the “Registrant”) by reason of any share dividend, share split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the Registrant’s outstanding Ordinary Shares.

 

(2)

The Proposed Maximum Offering Price Per Share is calculated in accordance with Rules 457(c) and 457(h) under the Securities Act of 1933, as amended (the “Securities Act”), solely for purposes of calculating the registration fee on the basis of $17.42 per share, the average of the high and low price of the Registrant’s Ordinary Shares as reported on the Nasdaq Global Select Market on December 28, 2015.

 

EXPLANATORY NOTE

 

The purpose of this Registration Statement on Form S-8 (this “Registration Statement”) is for SodaStream International Ltd. (the “Registrant”) to register an additional 505,000 Ordinary Shares, par value NIS 0.645, for issuance under the Registrant’s 2010 Employee Share Option Plan (the “2010 Plan”).

 

In accordance with General Instruction E of Form S-8, the contents of the Registrant’s Registration Statements on Form S-8 (File No. 333-170299, File No. 333-190655 and File No. 333-195578), filed with the Securities and Exchange Commission (the “Commission”) on November 3, 2011, August 16, 2013 and April 30, 2014, respectively, are incorporated herein by reference and the information required by Part II is omitted, except as supplemented by the information set forth below.

 

PART I

 

Item 1. Plan Information.*

 

Item 2. Registrant Information and Employee Plan Annual Information.*

 

* The documents containing the information specified in this Part I of Form S-8 (plan information and registration information and employee plan annual information) will be sent or given to employees as specified by the Commission pursuant to Rule 428(b)(1) of the Securities Act. Such documents are not required to be and are not filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. The Registrant will provide a written statement to participants advising them of the availability without charge, upon written or oral request, of the documents incorporated by reference in Item 3 of Part II hereof and including the statement in the preceding sentence. The written statement to all participants will indicate the availability without charge, upon written or oral request, of other documents required to be delivered pursuant to Rule 428(b), and will include the address and telephone number to which the request is to be directed.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

 

The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed with the Commission:

 

(a) The Registrant’s Annual Report on Form 20-F (File No. 001-34929) for the fiscal year ended December 31, 2014, filed with the Commission on April 20, 2015;

 

(b) The Registrant’s Report of Foreign Private Issuer on Form 6-K furnished to the Commission on December 22, 2015;

 

(c) The Registrant’s Report of Foreign Private Issuer on Form 6-K/A furnished to the Commission on November 30, 2015;

 

(d) The condensed consolidated balance sheets, the International Financial Reporting Standards information contained in the condensed consolidated statements of operations and the condensed consolidated statements of cash flows contained in the press releases attached as Exhibit 99.1 to the Reports of Foreign Private Issuer on Form 6-K furnished by the Registrant to the Commission on May 6, 2015, August 5, 2015 and November 4, 2015; and

 

(e) The description of the Registrant’s Ordinary Shares contained in the Registrant’s Registration Statement on Form 8-A12B (File No. 001-34929) filed with the Commission on October 25, 2010, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.

 

In addition to the foregoing, all documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, and, to the extent specifically designated therein, Reports of Foreign Private Issuer on Form 6-K furnished by the Registrant to the Commission, in each case prior to the filing of a post-effective amendment indicating that all securities offered hereby have been sold or deregistering 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, except as to specific sections of such statements as set forth therein. Any statement contained herein or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 8.

Exhibits.

 

The Exhibits to this Registration Statement are listed in the Exhibit Index hereto and are incorporated herein by reference.

 

 

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 Airport City, Israel, on the 31st day of December, 2015.

 

	SODASTREAM INTERNATIONAL LTD.
	By:	/s/ Dotan Bar-Natan
		Name: Dotan Bar-Natan Title: Head of Legal Department

 

 

 

POWER OF ATTORNEY

 

KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Daniel Birnbaum, Daniel Erdreich, Eyal Shohat and Dotan Bar-Natan, and each of them severally, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, 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 all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done virtue hereof.

 

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 dates indicated.

 

Signatures	Title	Date
/s/ Daniel Birnbaum	Chief Executive Officer and Director	December 31, 2015
Daniel Birnbaum	(Principal Executive Officer)
/s/ Daniel Erdreich	Chief Financial Officer	December 31, 2015
Daniel Erdreich	(Principal Financial Officer and Principal Accounting Officer)
/s/ Stanley Stern	Chairman of the Board	December 31, 2015
Stanley Stern
/s/ Eytan Glazer	Director	December 31, 2015
Eytan Glazer
/s/ Lauri Hanover	Director	December 31, 2015
Lauri Hanover
/s/ David Morris	Director	December 31, 2015
David Morris
/s/ Jonathan Kolodny	Director	December 31, 2015
Jonathan Kolodny
/s/ Richard Hunter	Director	December 31, 2015
Richard Hunter
SODASTREAM USA INC.
By: /s/ Daniel Birnbaum	Authorized Representative in the United States	December 31, 2015
Name: Daniel Birnbaum Title: Director

 

 

EXHIBIT INDEX

 

Exhibit No.		Description
4.1		Amended and Restated Articles of Association of the Registrant (incorporated herein by reference to Exhibit 3.2 to the Registrant’s Registration Statement on Form F-1, as amended (File No. 333-170007), as filed with the Commission on October 19, 2010)
5.1		Opinion of Gornitzky & Co., Israeli counsel to the Registrant, as to the validity of the Ordinary Shares (including consent)
23.1		Consent of Somekh Chaikin, a member firm of KPMG International, Independent Registered Public Accounting Firm
23.2		Consent of Gornitzky & Co. (included in Exhibit 5.1 to this Registration Statement)
24.1		Power of Attorney (included on the signature page to this Registration Statement)
99.1		SodaStream International Ltd. 2010 Employee Share Option Plan (the “2010 Plan”) (incorporated herein by reference to Exhibit 10.2(b) to the Registrant’s Registration Statement on Form F-1, as amended (File No. 333-170007), as filed with the Commission on October 26, 2010)
99.2		Amendment No. 1 to the 2010 Plan (incorporated herein by reference to Exhibit 4.2(c) to the Registrant’s annual report on Form 20-F filed with the SEC on April 30, 2014)
99.3		Amendment No. 2 to the 2010 Plan

  

 

 

EXHIBIT 5.1

 

 

 

 

To:	December 31, 2015
SodaStream International Ltd.
Gilboa Street, Airport City
Ben Gurion Airport
Israel, 7010000
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We refer to the registration statement on Form S-8 (the “Registration Statement”) filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Act”), on behalf of SodaStream International Ltd. (the “Company”) on or about the date hereof, relating to the registration of an additional 505,000 ordinary shares, par value NIS 0.645 per share of the Company, issuable pursuant to the Company’s 2010 Employee Share Option Plan (the “Plan).   This opinion letter is rendered pursuant to Item 8(a) of Form S-8 prescribed under the United States Securities Act of 1933, as amended (the “Act”).   In connection herewith, we have examined the originals, or photostatic or copies, certified or otherwise identified to our satisfaction, of: (i) the form of the Registration Statement; (ii) copies of the articles of association of the Company, as currently in effect; (iii) the Plan; (iv) resolutions of the board of directors of the Company and of the shareholders of the Company increasing the number of shares to be reserved for the Plan and which relate to the Registration Statement (the “Resolutions”); and (v) such other corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company and have made inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinions hereafter set forth.   In such examination, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as photostatic or certified copies, and the authenticity of the originals of such latter documents. As to all questions of fact material to the opinions set forth herein, we did not independently establish or verify such facts and we have relied upon certificates or comparable documents of officers or representatives of the Company. We have also assumed that the copies of the Resolutions submitted to us for examination are true, complete and up-to-date copies, have not been amended or rescinded and are in full force and effect and no other action has been taken which may affect any of the matters passed upon in the Resolutions and that each individual grant under the Plan that has been made prior to the date hereof and will be made after the date hereof was and will be duly authorized by all necessary corporate action.   Based upon the foregoing and subject to the qualifications, limitations and assumptions stated herein, we are of the opinion that the shares being registered pursuant to the Registration Statement have been duly authorized for issuance, and, when issued and paid for in accordance with the Plan and the awards made thereunder, will be validly issued, fully paid and non-assessable.   We are members of the Bar of the State of Israel and we do not express any opinion as to the laws of any other jurisdiction other than those of the State of Israel. This opinion letter is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated herein to be our opinion. This opinion letter is effective only as of its date, and we disclaim any obligation to advise you of any change of law that occurs, or of any facts, circumstances, events or developments of which we become aware, after the date of this opinion letter, even if they would alter, affect or modify the opinions expressed herein.   We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the United States Securities and Exchange Commission.       Very truly yours,   /s/Gornitzky & Co.

Tel-Aviv: 45 Rothschild Blvd., Herzliya: 1 Abba Eban Blvd Phone: +972-3-7109191 Fax: +972-3-5606555 E-mail address: office@gornitzky.com P.O.B 29141 Tel-Aviv 6578403 Israel   Advocates&Notaries www.gornitzky.com ESTABLISHED - 1938

Eric J. Gornitzky (1921 – 1997) Boaz Nahir (1930 – 2006) Ariel Zelichov (1955 – 2009) Dalia Ronen (1956 – 2000) Hagar Alon-Windman (1978 – 2013) Daphna Talgam (1954 – 2015)

Member of the New York State Bar ** Member of the New York State Bar and Massachusetts Bar *** Solicitor in England & Wales **** Member of the State Bar of California ***** Solicitor in the State of Victoria, Australia

 

 

 

 

 

EXHIBIT 23.1

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

 

 

The Board of Directors
SodaStream International Ltd.:

 

We consent to the use of our report dated April 19, 2015, with respect to the consolidated financial statements and the effectiveness of internal control over financial reporting incorporated by reference herein.

 

 

/s/ Somekh Chaikin

Somekh Chaikin
Certified Public Accountants (Isr.)
A Member Firm of KPMG International

Tel Aviv, Israel
December 31, 2015  

 

 

EXHIBIT 99.3

 

Amendment No. 2 to SodaStream International Ltd.’s 2010 Employee Share Option Plan (the “2010 Plan”)

 

As approved at the Annual General Meeting of shareholders held on December 22, 2015:

 

·

Section 7.1 of the 2010 Plan was revised to read as follows:

 

“2,745,000 authorized but unissued Shares (and/or previously issued Shares (such issued Shares, if any, being held in trust for such purpose or held as dormant Shares by the Company or its Affiliates)), shall be reserved for the purposes of the ESOP, subject to adjustment as set forth in Section 10 below.”

 

·

Section 7 of Addendum A to the 2010 Plan (known as the “U.S. Sub-Plan”), other than the heading thereof, was revised to read as follows:

 

“For purposes of this U.S. Sub-Plan, Section 7.1 shall be amended to insert the following sentence as the second sentence thereof: Subject to the provisions of Section 10 of the ESOP, the maximum aggregate number of Shares that may be issued under the ESOP pursuant to Incentive Share Options shall not exceed 2,745,000 Shares, unless such number is increased by such corporate approval as required under law.”