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As filed with the Securities and Exchange Commission on January 19, 2000
SEC File No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
COMMTOUCH SOFTWARE LTD.
(Exact Name of Registrant as Specified in Its Charter)
Israel Not Applicable
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
6 Hazoran Street, Poleg Industrial Park, Netanya, Israel 42504
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(Address of Principal Executive Offices) (Zip Code)
1996 CSI STOCK OPTION PLAN
1999 SECTION 3(i) SHARE OPTION PLAN
1999 EMPLOYEE STOCK PURCHASE PLAN
1999 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN
(Full title of the Plan)
Gideon Mantel
Chief Executive Officer
CommTouch Software Ltd.
3945 Freedom Circle, Suite 730
Santa Clara, California 95054
(Name and Address of Agent For Service)
(408) 653-4330
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
Lior O. Nuchi
McCutchen, Doyle, Brown & Enersen, LLP
3150 Porter Drive
Palo Alto, California 94304-1212
Tel: (650) 849-4400
Fax: (650) 849-4800
CALCULATION OF REGISTRATION FEE
Title of Each Proposed Proposed
Class of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered (1) Per Unit (2) Price (2) Fee
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1996 CSI Stock 5,000,000 $41.81 $209,050,000 $55,189.20
Option Plan and 1999
Section 3(i) Share
Option Plan, NIS
0.05 Nominal Value
1999 Employee Stock
Purchase Plan, NIS 150,000 $41.81 $6,271,500 $1,655.68
0.05 Nominal Value
1999 Nonemployee
Directors Stock 250,000 $41.81 $10,452,500 $2,759.46
Option Plan, NIS
0.05 Nominal Value
(1) This Registration Statement shall also cover any additional ordinary
shares which become issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without
the receipt of consideration which results in an increase in the number
of the outstanding ordinary shares.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee on the basis of the average of the high and low prices
as reported for an ordinary share on the Nasdaq National Market on
January 18, 2000, pursuant to Rule 457(h)(1) and 457(c).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* The documents containing the information specified in Part I of Form S-8 (plan
information and registrant information and employee plan annual information)
will be sent or given to employees as specified by Securities and Exchange
Commission (the "Commission") Rule 428(b)(1). Such documents need not be 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 to Item 3 of Form S-8 (Part II hereof), taken together, constitute a
prospectus that meets the requirements of Section 10(a) of the Securities Act of
1933, as amended (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 of this registration statement and including the statement in the
preceding sentence. The written statement to participants will indicate the
availability without charge, upon written or oral request, of other documents
required to be delivered to employees pursuant to Rule 428(b), and will include
the address and telephone number to which the request is to be directed.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed or to be filed with the Commission by
the Registrant are incorporated by reference in this registration statement:
(a) Registrant's prospectus, dated July 13, 1999, filed pursuant to
Rule 424(b) of the Securities Act.
(b) Report of Foreign Private Issuer on Form 6-K for the quarter
ended June 30, 1999, filed on August 27, 1999; Report of Foreign Private Issuer
on Form 6-K for the period dated October 27, 1999, filed on November 4, 1999;
and Report of Foreign Private Issuer on Form 6-K for the quarter ended September
30, 1999, filed on December 3, 1999.
(c) Registrant's Registration Statement on Form F-1 filed on October
27, 1999, as amended (Registration No. 333-89773) (the "Registration Statement")
(see Exhibit 99.1).
(d) The description of the Registrant's capital stock contained in
the registration statement on Form 8-A dated June 25, 1999 and contained in the
Registration Statement under "Description of Capital Stock."
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after
the date of this registration statement and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, are deemed to be
incorporated by reference into this registration statement and to be part hereof
from the respective dates of filing of such documents. Any statement contained
in this registration statement or in a document incorporated by reference shall
be deemed modified or superseded to the extent that a statement contained in any
subsequently filed document which also is or is deemed to be incorporated by
reference herein or therein modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed to constitute a part hereof,
except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The partners of McCutchen, Doyle, Brown & Enersen, LLP, beneficially
own an aggregate of 13,840 Ordinary Shares. The partners of Naschitz, Brandes &
Co. beneficially own an aggregate of 15,000 Ordinary Shares.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Israeli law permits a company to insure an Office Holder (generally,
a director or executive officer) in respect of liabilities incurred by him as a
result of the breach of his duty of care to the company or to another person, or
as a result of the breach of his fiduciary duty to the company, to the extent
that he acted in good faith and had reasonable cause to believe that the act
would not prejudice the company. A company can also insure an Office Holder for
monetary liabilities as a result of an act or omission that he committed in
connection with his serving as an Office Holder. Moreover, a company can
indemnify an Office Holder for monetary liability in connection with his
activities as an Office Holder. The Articles of Association of the Registrant
allow the Registrant to insure and indemnify Office Holders to the fullest
extent permitted by law. Pursuant to these provisions, the Registrant has in
effect as of January 7, 2000 insurance policies in the amount of US$25 million
covering its directors and officers.
Reference is made to Section 6 of the Underwriting Agreement, a copy
of which is filed as Exhibit 1.1 to the Registrant's prospectus, which provides
for indemnification of the directors and officers of the Registrant who sign the
Registration Statement by the Underwriters against certain liabilities,
including those arising under the Securities Act, in certain circumstances.
Certain members of the Registrant's management team are officers of
the Registrant's subsidiary, CommTouch Software, Inc., a California corporation,
or reside in California. The Articles of Incorporation of CommTouch Software,
Inc. provide that the liability of the directors of the corporation for monetary
damages shall be eliminated to the fullest extent permissible under California
law and that the corporation is authorized to provide for the indemnification of
agents of the corporation, as defined in Section 317 of the California General
Corporation Law, in excess of that expressly permitted by Section 317 for breach
of duty to the corporation and its shareholders to the fullest extent
permissible under California law.
With respect to all proceedings other than shareholder derivative
actions, Section 317 permits a California corporation to indemnify any of its
directors, officers or other agents only if such person acted in good faith and
in a manner such person reasonably believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of such person was unlawful. In the case of derivative
actions, a California corporation may indemnify any of its directors, officers
or agents only if such person acted in good faith and in a manner such person
believed to be in the best interests of the corporation and its shareholders.
Furthermore, in derivative actions, no indemnification is permitted (i) with
respect to any matter with respect to which the person to be indemnified has
been held liable to the corporation, unless such indemnification is approved by
the court; (ii) of amounts paid in settling or otherwise disposing of a pending
action without court approval; or (iii) of expenses incurred in defending a
pending action which is settled or otherwise disposed of without court approval.
To the extent that a director, officer or agent of a corporation has been
successful on the merits in defense of any proceeding for which indemnification
is permitted by Section 317, a corporation is obligated by Section 317 to
indemnify such person against expenses actually and reasonably incurred by him
in connection with the proceeding.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this registration
statement;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high and 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;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of 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.
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(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(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 (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 Registrant pursuant to the provisions described in Item 6, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 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 the City of Santa Clara, State of California, on January 19,
2000.
COMMTOUCH SOFTWARE LTD.
By: /s/ JAMES COLLINS
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James Collins
Chief Financial Officer and
Secretary
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James Collins true and lawful
attorney-in-fact and agent for such person on his behalf and in such person's
name, place and stead, and in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this registration statement
on Form S-8 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 full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises in order to effectuate the same as fully, to all intents and purposes,
as he himself might or could do if personally present, hereby ratifying and
confirming all that said attorney-in-fact and agent may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-8 has been signed below by the following
persons in the capacities and on the dates indicated.
NAME TITLE DATE
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Chief Executive Officer
(Principal Executive Officer)
/s/ Gideon Mantel and Director January 19, 2000
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Gideon Mantel
Chief Financial Officer and
Secretary
/s/ James Collins (Principal Financial Officer) January 19, 2000
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James Collins
Controller
/s/ Devyani Patel (Principal Accounting Officer) January 19, 2000
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Devyani Patel
Chairman of the Board of
/s/ Allan Barkat Directors January 19, 2000
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Allan Barkat
/s/ Amir Lev Director January 19, 2000
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Amir Lev
/s/ Yiftah Atir Director January 19, 2000
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Yiftah Atir
/s/ Yoseph Sela Director January 19, 2000
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Yoseph Sela
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/s/ Yair Safrai Director January 19, 2000
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Yair Safrai
/s/ Richard Sorkin Director January 19, 2000
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Richard Sorkin
/s/ Thomas Camp Director January 19, 2000
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Thomas Camp
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INDEX TO EXHIBITS
Exhibit
Number Exhibit
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5.1 Opinion regarding legality of securities to be offered
10.1 CommTouch Software Ltd. 1996 CSI Stock Option Plan
10.2 CommTouch Software Ltd. 1999 Section 3(i) Share Option Plan
10.3 CommTouch Software Ltd. 1999 Employee Stock Purchase Plan
10.4 CommTouch Software Ltd. 1999 Nonemployee Directors Stock
Option Plan
23.1 Consent of Independent Auditors
23.2 Consent of Naschitz, Brandes & Co. (See Exhibit 5.1)
24.1 Power of Attorney (See page 7)
99.1 Registration Statement on Form F-1 (incorporated by reference)
(file #333-89773), as amended.
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