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
------------------------------- ----------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
6 Hazoran Street, Poleg Industrial Park,
Netanya, 42504, Israel N/A
(Address of Principal Executive Offices) (Zip Code)
|
COMMTOUCH SOFTWARE LTD. 1999 EMPLOYEE STOCK PURCHASE PLAN
COMMTOUCH SOFTWARE LTD. 1999 NONEMPLOYEE DIRECTORS STOCK OPTION PLAN
WINGRA TECHNOLOGIES, LLC 1998 UNIT OPTION PLAN
(Full title of the Plan)
Sunil Bhardwaj
Chief Financial Officer c/o Commtouch Inc. 2029 Stierlin Court Mountain View, California 94043-4655
(Name and Address of Agent For Service)
(650) 864-2000
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Lior O. Nuchi
McCutchen, Doyle, Brown & Enersen, LLP Three Embarcadero Center San Francisco, CA 94111 (415) 393-2310 Fax (415) 393-2286
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, 2000, as amended;
(b) Our two reports on Form 6-K for the months of May 2001 filed May 29, 2001 (containing quarterly information for the quarter ended March 31, 2001) and June 1, 2001 (reporting our transaction with Rideau Ltd. and other matters) and our report on Form 6-K for the month of June 2001 filed June 12, 2001 (reporting our transaction with Hughes Holdings LLC.) and
(c) 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
Certain legal matters with respect to United States law are being passed upon for Commtouch by McCutchen, Doyle, Brown & Enersen, LLP, San Francisco, California. 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 McCutchen, Doyle, Brown & Enersen, LLP beneficially own, in the aggregate, less than 1% of the outstanding shares of the Company.
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 (a) monetary liability imposed upon him or her in favor of other persons pursuant to a court judgment, including a compromise judgment or an arbitrator's decision approved 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, or in connection with a criminal action which does not require criminal intent in which he or she was convicted, in each case in connection with his or her activities as an Office Holder.
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 by our Audit Committee. Pursuant to these provisions, we have in effect insurance policies covering our directors and officers.
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 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.
(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 19, 2001.
COMMTOUCH SOFTWARE LTD.
By: /s/ SUNIL BHARDWAJ*
--------------------
Sunil Bhardwaj
Chief Financial Officer
|
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
---- ----- ----
/S/ GIDEON MANTEL Chief Executive Officer and Director July 18, 2001
-----------------
Gideon Mantel (Principal Executive Officer)
/S/ SUNIL BHARDWAJ* Chief Financial Officer July 18, 2001
-------------------
Sunil Bhardwaj (Principal Financial Officer)
/S/ DEVYANI PATEL* Controller July 18, 2001
------------------
Devyani Patel (Principal Accounting Officer)
/S/ ALLAN C. BARKAT* Director July 18, 2001
--------------------
Allan C. Barkat
/S/ THOMAS C. CAMP* Director July 18, 2001
-------------------
Thomas C. Camp
/S/ CAROLYN CHIN* Director July 18, 2001
-----------------
Carolyn Chin
/S/ ELTON KING* Director July 18, 2001
---------------
Elton King
/S/ AMIR LEV* Director July 18, 2001
-------------
Amir Lev
/S/ YAIR SAFRAI* Director July 18, 2001
----------------
Yair Safrai
/S/ NAHUM SHARFMAN* Director July 18, 2001
-------------------
Nahum Sharfman
*/S/ SUNIL BHARDWAJ *Individually and as Attorney-in-fact and July 19, 2001
-------------------
Sunil Bhardwaj Authorized U.S. Representative
|
INDEX TO EXHIBITS
Exhibit
Number Exhibit
------ -------
2.0 Amended and Restated Merger and Exchange Agreement dated November
24, 2000 among Commtouch Software Ltd., Commtouch Inc., CW
Acquisition Corporation, Wingra, Incorporated, the holder of
certain of the outstanding capital stock of Wingra, Incorporated,
and the holders of all the outstanding membership interests in
Wingra Technologies, LLC other than that owned by Wingra,
Incorporated (incorporated by reference to Exhibit 3 to Report of
the Registrant on Form 6-K for the month of January 2001 [File No.
000-26495])
5.1 Opinion regarding legality of securities to be offered
10.3 Commtouch Software Ltd. 1999 Employee Stock Purchase Plan and form
thereunder*
10.4 Commtouch Software Ltd. 1999 Nonemployee Directors Stock Option
Plan*
10.4.1 Amendment to Commtouch Software Ltd. 1999 Nonemployee Directors
Stock Option Plan (Incorporated by reference to Exhibit 3 to
Registrant's Report on Form 6-K for the month of August 2000, File
No. 000-26495)
10.5 Wingra Technologies, LLC 1998 Unit Option Plan (incorporated by
reference to Exhibit 3 to Registrant's Report on Form 6-K for the
month of May 2001 filed June 1, 2001, File No. 000-26495)
23.1 Consent of Independent Auditors
23.2 Consent of McCutchen, Doyle, Brown & Enersen, LLP
23.3 Consent of Naschitz, Brandes & Co. (See Exhibit 5.1)
24.1 Power of Attorney
|
Exhibit 5.1
NASCHITZ, BRANDES & CO.
Advocates and Notaries
5 Tuval Street 67897 Tel-Aviv, Israel Tel (972-3) 635-5000
Tel Aviv, June 29, 2001
Commtouch Software Ltd.
6 Hazoran Street, Poleg Industrial Park,
Netanya, 42504
Israel
Ladies and Gentlemen:
We refer to the registration statement on Form S-8 (the "Registration Statement") filed by Commtouch Software Ltd. (the "Company") under the Securities Act of 1933, as amended, with respect to the 491,413 Ordinary Shares of the Company available for issuance under the Company's 1999 Employee Stock Purchase Plan, the Company's 1999 Nonemployee Directors Stock Option Plan, and the Wingra Technologies, LLC 1998 Unit Option Plan (Wingra Technologies, LLC has acquired by the Company in 2000) (collectively, the "Plans").
As general counsel to the Company, we have examined such corporate records and documents and such questions of law as we have considered necessary or appropriate for the purpose of this opinion. Upon the basis of such examination, we are of the opinion that, when such Ordinary Shares have been issued and sold pursuant to the applicable provisions of such Plans and in accordance with the Registration Statement, such Ordinary Shares will be legally and validly issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/s/Naschitz, Brandes & Co. Naschitz, Brandes & Co. |
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the1999 Employee Stock Purchase Plan and the 1999 Nonemployee Directors Stock Option Plan of Commtouch Software, Ltd. and 1998 Unit Option Plan of Wingra Technologies LLC of our report dated February 14, 2001 with respect to the consolidated financial statements and schedule of Commtouch Software, Ltd. included in its Annual Report (Form 20-F) for the year ended December 31, 2000, filed with the Securities and Exchange Commission.
Tel-Aviv, Israel KOST, FORER & GABBAY July 18, 2001 A member of Ernst & Young International
EXHIBIT 23.2
CONSENT OF MCCUTCHEN, DOYLE, BROWN & ENERSEN, LLP
We consent to the references to the name of our firm under the caption "Legal Matters" in the Registration Statement (Form S-8) of Commtouch Software Ltd. for the registration of Ordinary Shares issuable under the registrant's 1999 Employee Stock Purchase Plan, the registrant's 1999 Nonmployee Directors Stock Option Plan, and the registrant's Wingra Technologies, LLC 1998 Unit Option Plan.
MCCUTCHEN, DOYLE, BROWN & ENERSEN, LLP
San Francisco, California
July 19, 2001
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Gideon Mantel and Sunil Bhardwaj, or either of them, with full power to each of them to act alone, with full power of substitution and resubstitution, as his or her true and lawful attorney-in-fact and agent for him or her and on his or her behalf and in his or her name, place and stead as a director or officer or both of Commtouch Software Ltd. (the "Registrant") to sign the registration statement relating to the Company's offer and sale of ordinary shares and any and all plan interests under the Commtouch Software Ltd. 1999 Employee Stock Purchase Plan, the Commtouch Software Ltd. 1999 Nonemployee Directors Stock Option Plan and the Wingra Technologies, LLC 1998 Unit Option Plan, and any and all amendments (including post-effective amendments) to the registration statement under the Securities Act of 1933 (and any amendments thereto), and to file the same, with exhibits and any and all other documents filed with respect thereto, with the Securities and Exchange Commission (or any other governmental or regulatory authority), granting unto said attorney full power and authority to do and to 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 or she himself or herself might or could do if personally present, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Name Title Date
---- ----- ----
/s/GIDEON MANTEL Chief Executive Officer and Director July 18, 2001
----------------
Gideon Mantel (Principal Executive Officer)
/s/SUNIL BHARDWAJ Chief Financial Officer July 18, 2001
-----------------
Sunil Bhardwaj (Principal Financial Officer)
/s/DEVYANI PATEL Controller July 18, 2001
----------------
Devyani Patel (Principal Accounting Officer)
/s/ALLAN C. BARKAT Director July 18, 2001
------------------
Allan C. Barkat
/s/THOMAS CAMP Director July 18, 2001
--------------
Thomas Camp
/s/CAROLYN CHIN Director July 18, 2001
---------------
Carolyn Chin
/s/ELTON KING Director July 18, 2001
-------------
Elton King
/s/AMIR LEV Director July 18, 2001
-----------
Amir Lev
/s/YAIR SAFRAI Director July 18, 2001
--------------
Yair Safrai
|
Name Title Date
---- ----- ----
/s/NAHUM SHARFMAN Director July 18, 2001
-----------------
Nahum Sharfman
/s/RICHARD SORKIN Director July 18, 2001
-----------------
Richard Sorkin
|