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.)
1A Hazoran Street, Poleg Industrial Park,
Netanya, 42504, Israel N/A
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(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED 1996 CSI STOCK OPTION PLAN
AMENDED AND RESTATED 1999 ISRAELI SHARE OPTION PLAN
[FKA 1999 SECTION 3(i) SHARE OPTION PLAN]
AMENDED AND RESTATED COMMTOUCH SOFTWARE LTD.
1999 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN
]
(Full title of the Plan)
Devyani Patel
Vice President Finance
Commtouch Software Ltd.
c/o Commtouch Inc.
1300 Crittenden Lane, Suite 103
Mountain View, California 94043
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(Name and Address of Agent For Service)
(650) 864-2000
(Telephone Number, Including Area Code, of Agent For Service)
Copies to:
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Gary Davis Aaron M. Lampert
General Counsel and Secretary Naschitz, Brandes & Co.
Commtouch Inc. 5 Tuval Street
1300 Crittenden Lane, Suite 103 Tel Aviv 67897 Israel
Mountain View, CA 94043 Tel: 972-3-623-5000
Tel: 650-864-2000 Fax: 972-3-623-5005
Fax: 650-864-2006
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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 Share (2) Price (2) Fee (3)
=========================== ===================== ====================== =============== =================
Ordinary Shares Issuable 6,460,000 $0.39 $2,519,400 $319.21
Under Amended and
Restated 1996 CSI Stock
Option Plan and Amended
and Restated 1999 Israeli
Share Option Plan
=========================== ===================== ====================== =============== =================
Ordinary Shares Issuable 202,500 $0.46* $93,150 $11.80
Under Commtouch Software
Ltd. 1999 Nonemployee
Directors Stock Option
Plan, NIS 0.05 Nominal
Value
--------------------------- --------------------- ---------------------- --------------- -----------------
600,000 $0.28* $168,000 $21.29
--------------------------- --------------------- ---------------------- --------------- -----------------
100,000 $0.12* $12,000 $1.52
--------------------------- --------------------- ---------------------- --------------- -----------------
325,000 $0.82* $266,500 $33.76
--------------------------- --------------------- ---------------------- --------------- -----------------
562,500 $0.39 $219,375 $27.79
=========================== ===================== ====================== =============== =================
Totals 8,250,000 -- $3,278,425 $415.37
=========================== ===================== ====================== =============== =================
(1) Pursuant to Rule 416(a) and (b) under the Securities Act of 1933, as amended, 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 which results in an increase in
the number of the outstanding ordinary shares. Pursuant to General Instruction E of Form S-8, the
contents of Registration Statement No. 333-94995 (filed January 20, 2000) and Registration No.
333-65532 (filed July 20, 2001) are incorporated by reference.
(2) Except for grants made prior to this filing at prices denoted with an *, the prices are 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 July 21,
2004, pursuant to Rule 457(h)(1) and 457(c). Pursuant to Rule 457(o), the registration fee has been
calculated on the basis of the maximum aggregate offering price of all the securities listed in the
above Table.
(3) The Registrant initially filed a Registration Statement on Form F-1 (Registration No. 333-31836) on
March 6, 2000 (the "Form F-1"), to register certain offers and sales of its ordinary shares as set
forth in that Registration Statement. Subsequently, the Registrant withdrew the Form F-1 on April 12,
2000. The Registrant is filing this Registration Statement on Form S-8 to register the offering and
sale of the securities indicated on this cover page. A registration fee of $49,468.00 was paid in
connection with the filing of the Form F-1. Pursuant to Rule 457(p), the aggregate total dollar amount
of the filing fee associated with the unsold ordinary shares under the F-1 has previously been offset
by the filing fees in the amounts of (a) $119.80 for Registration Statement on Form S-8 No. 333-65532
filed on July 20, 2001; (b) $158.24 for Registration Statement on Form F-3 No. 333-68248 filed on
August 24, 2001; (c) $104.45 for Registration Statement on Form F-3 No. 333-88248 filed on May 15,
2002; (d) $687.66 for Registration Statement on Form F-3 No. 333-109837 filed on October 20, 2003; (e)
$824.58 for Registration Statement on Form F-3 No. 333-111731 filed on January 6, 2004; (f) $302.53
for Registration Statement on Form F-3 No. 333-111734 filed on January 6, 2004; and (g) and $1,268.19
for Registration Statement on Form F-3 No. 333-117085 filed on July 1, 2004. The remaining balance of
$46,002.55 is being further offset by the filing fee due for this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.
Note: The document(s) containing the information specified by Part I of
Form S-8 will be sent or given to employees as specified by Rule 428(b)(1).
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) Our Annual Report on Form 20-F for the fiscal year ended December
31, 2003;
(b) Our report on Form 6-K filed on June 29, 2004, containing the
Registrant's press release of May 17, 2004 covering financial
results of the Registrant for first quarter 2004;
(c) Our report on Form 6-K filed on July 12, 2004, reporting the
conditions the Registrant must meet in order to maintain the
listing of its ordinary shares on The Nasdaq SmallCap Market;
(d) The description of our ordinary shares contained in the
registration statement under the Exchange Act on Form 8-A as filed
with the Commission on June 25, 1999, and any subsequent amendment
or report filed for the purpose of updating this description.
In addition, all subsequent annual reports filed on Form 20-F prior to the
termination of this offering are incorporated by reference into this prospectus.
Also, we may incorporate by reference our future reports on Form 6-K by stating
in those Forms that they are being incorporated by reference into this
prospectus.
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 validity of the ordinary shares offered hereby is being passed upon
for Commtouch by Naschitz, Brandes & Co., Tel-Aviv, Israel. The partners of
Naschitz, Brandes & Co. and the firm itself, beneficially owns, in the
aggregate, 15,000 outstanding shares of the Company, including upon exercise of
options, warrants or other derivative securities.
Item 6. Indemnification of Directors and Officers
Israeli law permits a company to insure an Office Holder in respect of
liabilities incurred by him or her as a result of the breach of his or her duty
of care to the company or to another person, or as a result of the breach of his
or her fiduciary duty to the company, to the extent that he or she 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 or she committed in connection with his
or her serving as an Office Holder. Moreover, a company can indemnify an Office
Holder for any of the following obligations or expenses incurred as a result of
an act or omission of such persons in their capacity as Office Holders: (a)
monetary liability imposed upon him or her in favor of other persons pursuant to
a court judgment, including a settlement or an arbitrator's decision confirmed
by a court and (b) reasonable litigation expenses, including attorneys' fees,
actually incurred by him or her or imposed upon him or her by a court, in an
action, suit or proceeding brought against him or her by or on behalf of the
company or other persons, in connection with a criminal action in which he or
she was acquitted or in connection with a criminal action which does not require
criminal intent in which he or she was convicted.
Our Articles of Association allow us to insure and indemnify Office Holders to
the fullest extent permitted by law provided such insurance or indemnification
is approved in accordance with Israel's Companies Law. The Company has acquired
directors' and officers' liability insurance covering the officers and directors
of the Company and its subsidiaries for certain claims. In addition, the Company
has entered into an undertaking to indemnify the directors of the Company
subject to certain limitations, as well as Indemnification and Exculpation
Agreements, and these undertakings and agreements have been ratified by our
shareholders.
Certain members of our management team are officers of our subsidiary, Commtouch
Inc., a California Corporation, or reside in California. The Articles of
Incorporation of Commtouch 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 in connection with the
proceeding.
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 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;
(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.
(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.
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 Mountain View, State of California, on July 27,
2004.
COMMTOUCH SOFTWARE LTD.
By: /s/ Devyani Patel
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Devyani Patel
Vice President, Finance
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.
Name Title Date
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/s/ GIDEON MANTEL* Chief Executive Officer and Director June 24, 2004
------------------------ (Principal Executive Officer)
Gideon Mantel
/s/ DEVYANI PATEL* Vice President Finance June 24, 2004
------------------------ (Principal Financial and Accounting Officer)
Devyani Patel
/s/ CAROLYN CHIN* Director, Chairman of Board June 24, 2004
------------------------
Carolyn Chin
/s/ AMIR LEV * Director June 24, 2004
------------------------
Amir Lev
/s/ UDI NETZER* Director June 24, 2004
------------------------
Udi Netzer
/s/ OFER SEGEV* Director June 24, 2004
------------------------
Ofer Segev
/s/ RICHARD SORKIN * Director June 24, 2004
------------------------
Richard Sorkin
/s/ NAHUM SHARFMAN * Director June 24, 2004
------------------------
Nahum Sharfman
/s/ LLOYD E. SHEFSKY * Director June 24, 2004
------------------------
Lloyd E. Shefsky
/s/ DEVYANI PATEL *Individually and as Attorney-in-fact June 24, 2004
------------------------ and Authorized U.S. Representative
Devyani Patel
INDEX TO EXHIBITS
Exhibit
Number Exhibit
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5.1 Opinion regarding legality of securities to be offered
10.3 Amended and Restated Commtouch Software Ltd. 1999 Nonemployee
Directors Stock Option Plan
10.4 Amended and Restated 1996 CSI Stock Option Plan
10.5 Amended and Restated 1999 Israeli Share Option Plan
23.1 Consent of Independent Auditors
23.2 Consent of Naschitz, Brandes & Co. (See Exhibit 5.1)
24.1 Power of Attorney