S-8 1 zk2431601.htm S-8
As filed with the Securities and Exchange Commission on June 20, 2024
Registration No. 333- _____________           


UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 

FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

 
CYBERARK SOFTWARE LTD.
(Exact name of registrant as specified in its charter)
 
 
 
 
Israel
 
Not Applicable
(State or Other Jurisdiction of
Incorporation or Organization)
 
(I.R.S. Employer
Identification No.)
 
CyberArk Software Ltd.
9 Hapsagot St.
Park Ofer 2, P.O. Box 3143
Petach Tikva 4951041, Israel
Tel: +972 (3) 918-0000
(Address of Principal Executive Offices) (Zip Code)

CyberArk Software Ltd. 2024 Share Incentive Plan
(Full Title of the Plan)
 
CyberArk Software, Inc.
60 Wells Avenue
Newton, Massachusetts 02459
(Name and address of agent for service)
 
Tel: (617) 965-1544
(Telephone number, including area code, of agent for service)
 
Copies to:

Josh Kiernan, Esq.
Julia A. Thompson, Esq.
Latham & Watkins LLP
99 Bishopsgate
London EC2M 3XF
United Kingdom
Tel: +44-20-7710-1000
Fax: +44-20-7374-4460
Donna Rahav
Chief Legal Officer
CyberArk Software Ltd.
9 Hapsagot St.
Park Ofer 2, P.O. Box 3143
Petach Tikva 4951041, Israel
Tel: +972-3-918-0000
Fax: +972-3-924-0111
Dan Shamgar, Adv.
Dr. Shachar Hadar, Adv.
Matthew Rudolph, Adv.
Meitar | Law Offices
16 Abba Hillel Silver Rd.
Ramat Gan 5250608, Israel
Tel: +972-3-610-3100
Fax: +972-3-610-3111
 
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.
 
             
Large accelerated filer
 ☒

Accelerated filer
 ☐







Non-accelerated filer
 ☐

Smaller reporting company
 ☐







Emerging growth company ☐




 
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. ☐
 
EXPLANATORY NOTE
 
This Registration Statement is being filed to register 1,786,992 ordinary shares, par value NIS 0.01 per share (“Ordinary Shares”), of CyberArk Software Ltd. (the “Registrant,” “we,” “our” or “us”) issuable pursuant to the CyberArk Software Ltd. 2024 Share Incentive Plan, as amended (the “2024 Plan”).
 
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 this Part I of Form S-8 (plan information and registration information and employee plan annual information) will be sent or given to employees as specified by the Securities and Exchange Commission (the “Commission”) pursuant to Rule 428(b)(1) under the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not required to be and are not filed with the Commission either as part of this registration statement (this “Registration Statement”) or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. The Registrant will provide a written statement to participants advising them of the availability without charge, upon written or oral request, of the documents incorporated by reference in Item 3 of Part II hereof and including the statement in the preceding sentence. The written statement to all participants will indicate the availability without charge, upon written or oral request, of other documents required to be delivered pursuant to Rule 428(b), and will include the address and telephone number to which the request is to be directed.
 
PART II
 
Information Required in the Registration Statement
 
Item 3.
 Incorporation of Documents by Reference.
 
We hereby incorporate by reference the following documents (or portions thereof) that we have filed with or furnished to the Commission:

 
(a)
Our Annual Report on Form 20-F for the year ended December 31, 2023, filed with the Commission on March 13, 2024; and

 
(b)
The description of our Ordinary Shares under “Item 1. Description of Registrant’s Securities to be Registered” in our Registration Statement on Form 8-A, filed with the Commission on September 16, 2014.
 
All other documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, and, to the extent designated therein, Reports of Foreign Private Issuer on Form 6-K furnished by us to the Commission that are identified in such forms as being incorporated into this Registration Statement, in each case, subsequent to the effective date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered under the Registration Statement have been sold, or deregistering all securities then remaining unsold, are also incorporated herein by reference and shall be a part hereof from the date of the filing or furnishing of such documents.
 
Any statement contained herein or in a document all or a portion of which is incorporated or deemed incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
 
Item 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, 5759-1999 (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 articles of association include such a provision. The company may not exculpate 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 as an office holder, either in advance of an event or following an event, provided a provision authorizing such indemnification is contained in its articles of association:
  
 
•
a 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 events and amount or criteria;
 
 
•
reasonable litigation expenses, including attorneys’ fees, incurred by the office holder (1) as a result of an investigation or proceeding instituted against him or her by an authority authorized to conduct such investigation or proceeding, provided that (i) no indictment was filed against such office holder as a result of such investigation or proceeding; and (ii) no financial liability, such as a criminal penalty, was imposed upon him or her as a substitute for the criminal proceeding as a result of such investigation or proceeding or, if such financial liability was imposed, it was imposed with respect to an offense that does not require proof of criminal intent; and (2) in connection with a monetary sanction;
 
 
•
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; and
 
 
•
expenses, including reasonable litigation expenses and legal fees, incurred by an office holder in relation to an administrative proceeding instituted against such office holder, or certain compensation payments made to an injured party imposed on an office holder by an administrative proceeding, pursuant to certain provisions of the Israeli Securities Law, 1968 (the “Israeli Securities Law”).

An Israeli company may insure an office holder against the following liabilities incurred for acts performed as an office holder if and to the extent provided in the company’s articles of association:
 
 
•
a breach of the duty of loyalty to the company, to the extent the office holder acted in good faith and had a reasonable basis to believe that the act would not prejudice the company;
 
 
•
a breach of the duty of care to the company or to a third party, including a breach arising out of the negligent conduct of the office holder;
 
 
•
a financial liability imposed on the office holder in favor of a third party;
 
 
•
a financial liability imposed on the office holder in favor of a third party harmed by a breach in an administrative proceeding; and

 
•
expenses, including reasonable litigation expenses and legal fees, incurred by the office holder as a result of an administrative proceeding instituted against him or her, pursuant to certain provisions of the Israeli Securities Law.

An Israeli company may not indemnify or insure an office holder against any of the following:
 
 
•
a breach of the duty of loyalty, except 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 prejudice the company;
 
 
•
a breach of the duty of care committed intentionally or recklessly, excluding a breach arising out of the negligent conduct of the office holder;
 
 
•
an act or omission committed with intent to derive illegal personal benefit; or
 
 
•
a fine, monetary sanction or forfeit levied against the office holder.

Under the Israeli Companies Law, exculpation, indemnification and insurance of office holders must be approved by the compensation committee and the board of directors (and, with respect to directors and the chief executive officer, by the shareholders). However, under regulations promulgated under the Israeli Companies Law, the insurance of office holders does not require shareholder approval and may be approved by only the compensation committee, if the engagement terms are determined in accordance with the company’s compensation policy, which was approved by the shareholders by the same special majority required to approve a compensation policy, provided that the insurance policy is on market terms and the insurance policy is not likely to materially impact the company’s profitability, assets or obligations.

Our amended and restated articles of association allow us to exculpate, indemnify and insure our office holders for any liability imposed on them as a consequence of an act (including any omission), which was performed by virtue of being an office holder. Our office holders are currently covered by a directors and officers’ liability insurance policy.

We have entered into agreements with each of our directors and office holders exculpating them in advance, to the fullest extent permitted by law, from liability to us for damages caused to us as a result of a breach of duty of care, and undertaking to indemnify them to the fullest extent permitted by law. This indemnification is limited to events determined as foreseeable by the board of directors based on the Company’s activities and to an amount or according to criteria determined by the board of directors as reasonable under the circumstances.

The maximum indemnification amount set forth in such agreements is, at present, limited to an amount equal to the higher of (i) 25% of our total shareholders’ equity as reflected in our most recent consolidated financial statements prior to the date on which the indemnity payment is made, (ii) US$30 million and (iii) in connection with or arising out of a public offering of our securities, the aggregate amount of proceeds from the sale by the Company and/or any shareholder of Company’s securities in such offering. The maximum amount set forth in such agreements is in addition to any amount paid under insurance and/or by a third party pursuant to an indemnification arrangement.

In the opinion of the SEC, indemnification of directors and office holders for liabilities arising under the Securities Act, however, is against public policy and therefore unenforceable.

Item 7.
Exemption from Registration Claimed
  
Not applicable.

Item 8.
Exhibits.



Exhibit
Number
Exhibit
 

 

 

 

 

 

 






(1)
Incorporated by reference to Exhibit 1.1 to the Registrant’s Annual Report on Form 20-F for the year ended December 31, 2023, filed with the Commission on March 13, 2024.
(2)
Incorporated by reference to Exhibit 4.1 to Amendment No. 2 to the Registration Statement on Form F-1, filed with the Commission on August 26, 2014.
   
*
Filed herewith.
  

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 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 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% change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee Table” table in the effective Registration Statement;
(iii) 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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 15(d) of the Exchange Act that are incorporated by reference in this 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 this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, 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 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 Boston, Massachusetts, on this 20 day of June, 2024.
 
CyberArk Software Ltd.
   
By:
/s/ Matthew Cohen
Name:
Matthew Cohen
Title:
Chief Executive Officer

POWER OF ATTORNEY
 
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned officers and directors of CyberArk Software Ltd., an Israeli corporation, do hereby constitute and appoint Matthew Cohen, Chief Executive Officer, and Joshua Siegel, Chief Financial Officer, and each of them, their lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any one of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, including post-effective amendments, and supplements to this Registration Statement and to any and all instruments or documents filed as part of or in conjunction with such registration statements or amendments or supplements thereof and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and each of the undersigned hereby ratifies and confirms that all said attorneys and agents, or any one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
 
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.
 
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
 
[Signature Page to Follow]
 
Signature
  
Title
 
Date
 
 
 
 
 
/s/ Ehud Mokady
  
Executive Chairman of the Board
 
June 20, 2024
  
Ehud Mokady
  
 
 
 
  
           
/s/ Matthew Cohen
  
Chief Executive Officer
  
June 20, 2024
  
Matthew Cohen
          
           
/s/ Joshua Siegel
  
Chief Financial Officer (Principal Financial and Accounting Officer)
  
June 20, 2024
  
Joshua Siegel
      
           
/s/ Gadi Tirosh
  
Lead Independent Director
 
June 20, 2024
 
Gadi Tirosh
  
 
 
 
 
           
/s/ Ron Gutler
  
Director
 
June 20, 2024
 
Ron Gutler
  
 
 
 
 
           
/s/ Kim Perdikou
  
Director
 
June 20, 2024
 
Kim Perdikou
  
 
 
 
 
           
/s/ Amnon Shoshani
  
Director
 
June 20, 2024
 
Amnon Shoshani
  
 
 
 
 
           
/s/ François Auque
  
Director
  
June 20, 2024
  
François Auque
          
           
/s/ Avril England
  
Director
  
June 20, 2024
  
Avril England
          
           
/s/ Mary Yang
  
Director
  
June 20, 2024
  
Mary Yang
          
 
AUTHORIZED REPRESENTATIVE IN
THE UNITED STATES:

CyberArk Software, Inc.
By:
/s/ Matthew Cohen
Name:
Matthew Cohen
Title:
Chief Executive Officer



Date:
June 20, 2024
 
 [Signatures to Power of Attorney to CyberArk Form S-8 Registration Statement]