SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER THE
SECURITIES ACT OF 1933
Cyren
Ltd.
(Exact name of registrant as specified in charter)
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State
of Israel
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Not
Applicable
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(State
or other jurisdiction of
incorporation
or organization)
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(I.R.S.
Employer
Identification
No.)
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1
Sapir Road 5
th
Floor, Beit Ampa
Herzliya, Israel
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46140
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(Address
of principal executive offices)
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(Zip
Code)
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Cyren
Ltd. 2016 Non-Employee Director Equity Incentive Plan
Cyren
Ltd. 2016 Equity Incentive Plan
(Full
Title of the Plans)
J.
Michael Myshrall
Cyren
Inc.
1430
Spring Hill Road, Suite 330,
McLean,
Virginia 22102
(703)
760-3320
(Name,
Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
Copies
of communications to:
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Joey
T. Shabot, Esq.
Ephraim
Schmeidler, Esq.
Greenberg
Traurig, LLP
1
Azrieli Center
132
Menachem Begin Road
Tel
Aviv, Israel
+972-3-636-6005
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Eric
Spindel
General
Counsel and Corporate Secretary
Cyren
Ltd.
1
Sapir Road
5
th
Floor, Beit Ampa
P.O.
Box 4014
Herzliya
46140, Israel
+972-9-863-6899
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Adv.
David Schapiro
Yigal
Arnon & Co.
1
Azrieli Center
132
Menachem Begin Road
Tel
Aviv, Israel
+972-3-608-7856
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Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non- accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated
filer
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☒ (Do
not check if a smaller reporting company)
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Smaller reporting company
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☐
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Emerging
growth company
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☐
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
☐
CALCULATION
OF REGISTRATION FEE
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Title of securities to be registered
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Amount to be registered
(1)
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Proposed maximum
offering price per share (2)
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Proposed maximum
aggregate offering price (2)
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Amount of registration
fee
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Ordinary Shares,
par value NIS 0.15 (reserved for issuance under the Cyren Ltd. 2016 Non-Employee Director Equity Incentive Plan (the “Director
Plan”) and the Cyren Ltd. 2016 Equity Incentive Plan (the “2016 Plan”))
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4,600,000 shares
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$
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2.08
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(2)
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$
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9,568,000
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(2)
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$
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1,192
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement
shall also cover any additional Ordinary Shares, NIS 0.15 par value per share (“Ordinary Shares”), of Cyren Ltd.,
an Israeli corporation (the “Registrant”), that become issuable under the terms of the Director Plan and the 2016
Plan by reason of any share split, share dividend, recapitalization or other similar transaction effected without the Registrant’s
receipt of consideration which results in an increase in the number of the outstanding Ordinary Shares of the Registrant.
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(2)
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Calculated
solely for the purpose of determining the registration fee pursuant to Rule 457(h) under the Securities Act on the
basis of the average of the high and low prices of the Registrant’s Ordinary Shares as quoted on the Nasdaq Capital
Market on February 12, 2018.
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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*
*
Information required by Part I to be contained in the Section 10(a) prospectus is omitted
from this Registration Statement in accordance with Rule 428 under the Securities Act, and the “Note” to Part I
of Form S-8.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference
The
following documents filed with or furnished to the Securities and Exchange Commission (the “Commission”) by the Registrant
are hereby incorporated by reference in this Registration Statement:
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(a)
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the
Registrant’s Annual Report on Form 20-F for the fiscal year ended December 31,
2016, filed with the Commission on April 27, 2017;
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(b)
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the
Registrant’s report on Form 6-K (pages 5, 7 and 8 of Exhibit 1) furnished to the
Commission on May 16, 2017, containing the Registrant’s press release of May 16,
2017 covering financial results of the Registrant for the first quarter of 2017;
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(c)
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the
Registrant’s report on Form 6-K (pages 5, 7 and 8 of Exhibit 1) furnished to the
Commission on August 16, 2017, containing the Registrant’s press release of August
16, 2017 covering financial results of the Registrant for the second quarter of 2017;
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(d)
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the
Registrant’s report on Form 6-K (pages 5, 7 and 8 of Exhibit 1) furnished to the
Commission on November 13, 2017, containing the Registrant’s press release of November
13, 2017 covering financial results of the Registrant for the third quarter of 2017;
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(e)
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the
Registrant’s report on Form 6-K (pages 5, 7 and 8 of Exhibit 1) furnished to the
Commission on February 14, 2018, containing the Registrant’s press release of February
14, 2018 covering financial results of the Registrant for the fourth quarter of 2017;
and
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(f)
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the
description of the Registrant’s Ordinary Shares contained in the registration statement
on Form 8-A under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) as filed with the Commission on June 25, 1999, and any subsequent amendment
or report filed for the purpose of updating this description.
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In
addition, all subsequent annual reports filed on Form 20-F prior to the termination of this offering are incorporated by reference
into this registration statement. 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 registration statement.
All
documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act 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
Not
applicable.
Item
6. Indemnification of Directors and Officers
Under
the Israeli Companies Law, a company may not exculpate an office holder from liability for a breach of the duty of loyalty. An
Israeli company may exculpate an office holder in advance from liability to the company, in whole or in part, for damages caused
to the company as a result of a breach of duty of care but only if a provision authorizing such exculpation is included in its
articles of association. Our amended and restated articles of association include such a provision. The company may not exculpate
in advance a director from liability arising out of a prohibited dividend or distribution to shareholders.
Under
the Israeli Companies Law, a company may indemnify an office holder in respect of the following liabilities and expenses incurred
for acts performed by him or her as an office holder, either pursuant to an undertaking made in advance of an event or following
an event, provided its articles of association include a provision authorizing such indemnification:
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financial
liability imposed on him or her in favor of another person pursuant to a judgment, including a settlement or arbitrator’s
award approved by a court. However, if an undertaking to indemnify an office holder with respect to such liability is provided
in advance, then such an undertaking must be limited to events which, in the opinion of the board of directors, can be foreseen
based on the company’s activities when the undertaking to indemnify is given, and to an amount or according to criteria
determined by the board of directors as reasonable under the circumstances, and such undertaking shall detail the abovementioned
foreseen events and amount or criteria;
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reasonable
litigation expenses, including attorneys’ fees, incurred by the office holder as a result of an investigation or proceeding
instituted against him or her by an authority authorized to conduct such investigation or proceeding, (1) provided that (i)
no indictment was filed against such office holder as a result of such investigation or proceeding; and (ii) no financial
liability was imposed upon him or her as a substitute for the criminal proceeding as a result of such investigation or proceeding;
or (2) provided that (i) no indictment was filed against such office holder as a result of such investigation or proceeding;
and (ii) a financial liability was imposed, but it was imposed with respect to an offense that does not require proof of criminal
intent or in connection with a monetary sanction; and
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reasonable
litigation expenses, including attorneys’ fees, incurred by the office holder or imposed by a court in proceedings instituted
against him or her by the company, on its behalf, or by a third party, or in connection with criminal proceedings in which
the office holder was acquitted, or as a result of a conviction for an offense that does not require proof of criminal intent.
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Under
the Israeli Companies Law, a company may insure an office holder against the following liabilities incurred for acts performed
by him or her as an office holder if and to the extent provided in the company’s articles of association:
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a
breach of the duty of loyalty to the company, provided that the office holder acted in good faith and had a reasonable basis
to believe that the act would not harm the company;
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a
breach of duty of care to the company or to a third party, to the extent such a breach arises out of the negligent conduct
of the office holder; and
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a
financial liability imposed on the office holder in favor of a third party.
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Under
the Israeli Companies Law, a company may not indemnify, exculpate or insure an office holder against any of the following:
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a
breach of the duty of loyalty, except for indemnification and insurance for a breach of the duty of loyalty to the company
to the extent that the office holder acted in good faith and had a reasonable basis to believe that the act would not harm
the company;
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●
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a
breach of duty of care committed intentionally or recklessly, excluding a breach arising out of the negligent conduct of the
office holder;
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an
act or omission committed with intent to derive illegal personal benefit; or
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a
fine or forfeit levied against the office holder.
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Under
the Israeli Companies Law, exculpation, indemnification and insurance of office holders in a public company must be approved by
the compensation committee and the board of directors and, with respect to certain office holders or under certain circumstances,
also by the shareholders.
The
Company’s amended and restated articles of association permit it to exculpate, indemnify and insure its office holders to
the fullest extent permitted or to be permitted by the Israeli Companies Law.
The
Company has obtained directors’ and officers’ liability insurance for the benefit of its office holders and intends
to continue to maintain such coverage and pay all premiums thereunder to the fullest extent permitted by the Israeli Companies
Law.
Item
7. Exemption from Registration Claimed
Not
applicable.
Item
8. Exhibits
The
exhibits listed on the exhibit index at the end of this Registration Statement are included in this Registration Statement.
Item
9. Undertakings
The
Registrant hereby undertakes:
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(1)
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to
file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(a)
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to
include any prospectus required by Section 10(a)(3) of the Securities Act;
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(b)
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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 thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in this Registration Statement; and
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(c)
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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.
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Provided
,
however
, that paragraphs (a) and (b) 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.
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(2)
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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; and
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(3)
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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; and
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The
Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s
annual report pursuant to Sections 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.
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.
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 Herzliya, State of Israel on February 15, 2018.
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CYREN LTD.
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By:
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/s/
Lior Samuelson
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Name:
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Lior
Samuelson
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Title:
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Chairman
of the Board and
Chief
Executive Officer
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POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS that each person whose signature appears below hereby constitutes and appoints Lior Samuelson and J.
Michael Myshrall, and each of them severally, acting alone and without the other, his or her true and lawful attorneys-in-fact
and agents, with full power to act separately and full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to
this registration statement and all additional registration statements pursuant to Rule 462(b) of the Securities Act of 1933,
as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities
and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and
every act in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or his or her
or their substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons
in the capacities and on the dates indicated:
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Signatures
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Title
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Date
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/s/
Lior
Samuelson
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Chairman
of the Board of Directors and
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February
15, 2018
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Lior
Samuelson
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Chief Executive Officer
(Principal
Executive Officer)
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/s/
J.
Michael Myshrall
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Chief
Financial Officer
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February
15, 2018
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J.
Michael Myshrall
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(Principal
Financial Officer and Principal Accounting Officer)
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/s/
Hila Karah
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Director
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February
15, 2018
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Hila
Karah
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/s/
Aviv Raiz
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Director
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February
15, 2018
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Aviv
Raiz
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/s/
Todd Thomson
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Director
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February
15, 2018
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Todd
Thomson
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/s/
James Hamilton
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Director
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February
15, 2018
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James
Hamilton
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/s/
Cary Davis
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Director
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February
15, 2018
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Cary
Davis
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/s/
Brian Chang
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Director
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February
15, 2018
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Brian
Chang
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/s/
John Becker
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Director
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February
15, 2018
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John
Becker
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/s/
David Earhart
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Director
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February
15, 2018
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David
Earhart
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CYREN
INC.
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Authorized
Representative in the United States
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February
15, 2018
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By:
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/s/
J. Michael Myshrall
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Name:
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J.
Michael Myshrall
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Title:
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Chief
Financial Officer
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EXHIBITS
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Exhibit
No.
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Description
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4.1
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Amended and Restated Articles of Association of the Registrant (incorporated by reference to Exhibit 1.2 of the Registrant’s Annual Report on Form 20-F filed with the Commission on April 27, 2017)
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5.1
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Opinion of Yigal Arnon & Co., Israeli counsel to the Registrant, as to the validity of the Ordinary Shares (including consent)
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23.1
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Consent of Kost, Forer, Gabbay and Kasierer, a member of Ernst & Young Global
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23.2
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Consent of Yigal Arnon & Co. (included in Exhibit 5.1)
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24.1
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Power of Attorney (included in signature page to this Registration Statement)
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99.1
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Cyren Ltd., 2016 Non-Employee Director Equity Incentive Plan together with the Israeli Appendix thereto (incorporated by reference to Exhibit A of Exhibit 99.1 of the Registrant’s report on Form 6-K furnished to the Commission on November 17, 2016)
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99.2
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Cyren Ltd., 2016 Equity Incentive Plan together with the Israeli Appendix thereto (incorporated by reference to Exhibit B of Exhibit 99.1 of the Registrant’s report on Form 6-K furnished to the Commission on November 17, 2016)
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6
Exhibit 5.1
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Yigal
Arnon (1929-2014)
Dror Vigdor
Amalia Meshi
Amnon Lorch
Hagai Shmueli
Barry Levenfeld
David H. Schapiro
Hagit Bavly
Orna Sasson
Barak Tal
Shiri Shaham
Doron Tamir
Daniel Abarbanel
David Osborne
Gil Oren
Ronit Amir
Orly Tsioni
Mordehai Baicz
Barak Platt
Benjamin Horef
Yoran Gill
Asaf Eylon
Daniel Marcovici
Adrian Daniels
Yuval Shalheveth
Jacob Ben Chitrit
Peter Sugarman
Ben Sandler
Boaz Fiel
Joeri Kreisberg
Simon Weintraub
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Ruth
Loven
Yarom Romem
Adam Spruch
Yuval Bargil
Eliran Furman
Eran Lempert
Ofir Levy
Daniel Green
Hanital Belinson
Yoheved Novogroder
Oren Roth
Dror Varsano
Odelia Sidi
Shira Lahat
Ido Chitman
Noa Afik
Aner Hefetz
David Akrish
Nir Rosner
Assaf Mesica
Liron Hacohen
Guy Fuhrer
Ezra Gross
David Roness
Eli Greenbaum
Lee Maor
Nimrod Vromen
Guy Sagiv
Micha Tollman
Shani Rapoport
Lior Gelbard
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Michal
Sagmon
Hila Roth
Keren Tal
Neta Goshen
Roy Masuri
Eyal Yacoby
Daphna Livneh
Tamar Gilboa
Yael Hoefler
Sagi Schiff
Lilach Grimberg
Adi Samuel
Netanella Treistman
Daniel Damboritz
Shlomi Schneider
Alona Toledano
Elad Offek
Yuval Shamir
Dana Heller
Adi Tal
Yulia Lazbin
Joshua Lieberman
Liat Pillersdorf
Orly Rottenberg
Avi Anouchi
Shay Fahima
Sivan Gilron Dotan
Naftali Nir
Tomer Bar-Nathan
Evan Schendler
Lihi Katzenelson
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Eyal
Aichel
Shahar Uziely
Edan Regev
Yehudit Biton
Ohad Shalem
Gitit Ramot-Adler
Omri Schnaider
Rinat Michael
Adi Attar
Ivor Krumholtz
Daniella Milner
Harel Sinai
Amos Oseasohn
Guy Kortany
Goor Koren
Adi Daniel
Dafna Shaham
Miriam Friedmann
Itamar Lippner
Ricki Newman
Roni Osborne
Ortal Zanzuri
Reut Sasson
Josh Hersch
Roey Sasson
Shir Eshkol
Nir Rodnizky
Noa Slavin
Guy Fatal
Shani Lorch
Ira Burshtein
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Elichai
Bitter
Amir Weiser
Itamar Cohen
Shai Margalit
Yossi Paloch
Ofir Schwartz
Meital Singer
Yonatan Whitefield
Moshe Lankry
Shira Teger
Rachel Lerman
Ravid Saar
Debbie Shalit
Sophie Blackston
Eti Elbaz
Hagar Mizrachi
Elad Morgenstern
Ron Ashkenazi
Dafna Raz
Sara Haber
Erez Leibovich
Ilan Akouka
Shlomit Bukaya
Yehonatan Cohen
David Shmulevitz
Tair Cherbakovsky
Ophir Dagan
Yael Meretyk Hanan
Dov
Ehrman
Nataly Damary
Noam Pratzer
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Nava
Rozolyo
Shiran
Glitman
Dor
Daniel
Michael Rosenblit
Heni Rothstein-Cohen
Dani Weissberg
Lareine Khoury
Nohar Hadar
Shirley Youseri
Nitzan Kahana
Yahel Kaplan
Liad Kalderon
Daniel Szriber
Shachar Hindi
Natalie Korenfeld
Moshe Pasker
Mazi Ohayon
Nitzan Fisher-Conforti
Victoria Savu
Derora Tropp
Rotem Bar Ner
Rebecca Hazan Of Counsel
Roy Keidar Of Counsel
Paul H. Baris (1934-2010)
Rami Kook
Nira Kuritzky
Eran Ilan
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Tel-Aviv,
February 15, 2018
Cyren
Ltd.
Ladies
and Gentlemen:
We
refer to the Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), on behalf of Cyren Ltd.,
a company organized under the laws of the State of Israel (the “Company”), for the purpose of registering under the
Securities Act 4,600,000 of the Company’s Ordinary Shares, nominal value NIS 0.15 per share (the “Shares”),
available for issuance under the Cyren Ltd. 2016 Non-Employee Director Equity Incentive Plan and the Cyren Ltd. 2016 Equity Incentive
Plan (together, the “Plans”).
In
rendering an opinion on the matters hereinafter set forth, we have assumed the authenticity of all original documents submitted
to us as certified, conformed or photographic copies thereof, the genuineness of all signatures and the due authenticity of all
persons executing such documents. We have assumed the same to have been properly given and to be accurate, we have assumed the
truth of all facts communicated to us by the Company, we have assumed that all consents, minutes and protocols of meetings of
the Company's board of directors and shareholders meetings of the Company which have been provided to us are true, accurate and
have been properly prepared in accordance with the Company's incorporation documents and all applicable laws, and we have also
assumed the compliance of any grant of Shares with the Company's compensation policy, as in effect from time to time.
As
outside Israeli counsel to the Company, we have performed such investigations, and have examined such corporate records, certificates
and other documents, and such questions of law, as we have considered necessary or appropriate for the purpose of our opinion.
Upon the basis of such examination, we are of the opinion that, the Shares have been duly and validly authorized for issuance
and, when issued in accordance with the applicable grant or option agreement, pursuant to the terms of the Plans and in accordance
with the Registration Statement, the Shares will be legally and validly issued, fully paid and non-assessable.
|
1
Azrieli Center, Tel Aviv, 6702101 | Phone: +972-3-6087777 | Fax:
+972-3-6087724
|
|
31
Hillel Street, Jerusalem, 9458131 | Phone: +972-2-6239239 | Fax:
+972-2-6239233
|
|
www.arnon.co.il | info@arnon.co.il
|
The
above opinion is based on facts existing on the date hereof and of which we are aware. We express no opinion as to any laws other
than the laws of the State of Israel as the same are in force on the date hereof and we have not, for purpose of giving this opinion,
made any investigation of the laws of any other jurisdiction. This opinion is limited to the matters stated herein and no opinion
is implied or may be inferred beyond the matters expressly stated.
We
consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit
that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations
of the Commission thereunder.
Very
truly yours,
Yigal
Arnon & Co.
|
1
Azrieli Center, Tel Aviv, 6702101 | Phone: +972-3-6087777 | Fax: +972-3-6087724
|
|
31
Hillel Street, Jerusalem, 9458131 | Phone: +972-2-6239239 | Fax: +972-2-6239233
|
|
www.arnon.co.il | info@arnon.co.il
|
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