Israel
|
Not Applicable
|
|
(State or Other Jurisdiction of
|
|
(I.R.S. Employer
|
Incorporation or Organization)
|
|
Identification No.)
|
Aaron M. Lampert, Adv.
Goldfarb Seligman & Co.
98 Yigal Alon Street
Tel-Aviv 6789141, Israel
Tel: +972-3-608-9999
Fax: +972-3-608-9808
|
Title of Each Class of Securities To Be Registered
|
Amount
To Be
Registered (1)
|
Proposed
Maximum
Aggregate Price
Per Share
|
Proposed
Maximum
Aggregate
Offering Price
|
Amount of
Registration
Fee
|
||||||||||||
Ordinary shares, par value NIS 0.20 per share
|
1,239,639 | (2) | $ | 3.04 | (4) | $ | 3,768,503 | $ | 514.02 | (6) | ||||||
Ordinary shares, par value NIS 0.20 per share, issuable upon exercise of warrants
|
413,213 | (3) | $ | 3.49 | (5) | $ | 1,442,113 | $ | 196.70 | (6) | ||||||
Total
|
1,652,852 | N/A | $ | 5,210,616 | $ | 710.72 | (7) |
(1)
|
Pursuant to Rule 416 under the Securities Act of 1933, as amended, or the Securities Act, all amounts of ordinary shares include an indeterminable number of additional ordinary shares that may be issued to prevent dilution resulting from stock splits, stock dividends or similar transactions affecting the ordinary shares to be offered by the selling shareholders.
|
|
|
(2)
|
Represents ordinary shares being registered for resale by certain selling shareholders.
|
(3)
|
Represents ordinary shares being registered for resale by certain selling shareholders issuable upon exercise of warrants pursuant to an agreement between the registrant and those selling shareholders.
|
(4)
|
Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) of the Securities Act, based on the average of the reported high and low prices of the ordinary shares as reported by the NASDAQ Capital Market on May 31, 2013. The ordinary shares being registered are to be sold by the selling shareholders.
|
(5)
|
Calculated in accordance with Rule 457(g)(1) under the Securities Act based on the warrant exercise price of $3.49 per share.
|
(6)
|
Determined in accordance with Section 6(b) of the Securities Act and equal to 0.00013640 multiplied by the proposed maximum aggregate offering price of each class of securities.
|
(7)
|
Previously paid.
|
·
|
Up to 1,239,639 ordinary shares held by the selling shareholders; and
|
|
·
|
Up to 413,213 ordinary shares issuable upon exercise of warrants held by the selling shareholders.
|
2
|
|
3
|
|
5
|
|
5
|
|
6
|
|
7
|
|
8
|
|
9
|
|
10
|
|
13
|
|
14
|
|
14
|
|
14
|
|
14
|
|
15
|
|
15
|
|
22
|
|
·
|
our ability to successfully penetrate into new markets in which have limited history and gain market acceptance for our new tools and services;
|
|
·
|
our ability to accurately predict and respond to market developments or demands;
|
|
·
|
the impact of failures to accurately estimate the costs of fixed-price projects, which may result in lower margins or losses;
|
|
·
|
fluctuations in inflation and currency rates;
|
|
·
|
changes in general economic and business conditions;
|
|
·
|
decline in the demand for the Company’s products;
|
|
·
|
inability to timely develop and introduce new technologies, products and applications;
|
|
·
|
loss of market share;
|
|
·
|
pressure on prices resulting from competition; and
|
|
·
|
the risks discussed in the Risk Factor section of this prospectus and in “Item 3.D—Key Information — Risk Factors” and “Item 5. Operating and Financial Review and Prospects” of our Form 20-F, which are incorporated herein by reference.
|
Aggregate number of ordinary shares offered by the selling shareholders
|
|
1,239,639 ordinary shares
|
|
|
|
Aggregate number of ordinary shares offered by the selling shareholders, which are issuable upon exercise of the Warrants
|
|
413,213 ordinary shares
|
|
|
|
Ordinary shares outstanding as of June 3, 2013
|
|
7,717,964 ordinary shares (subject to certain exclusions listed below)**
|
Use of proceeds
|
|
We will not receive any proceeds from the sale of ordinary shares by the selling shareholders, but we will receive proceeds from the exercise of the Warrants. If the Warrants are exercised in full for cash, we would realize proceeds before expenses, in the amount of $1,441,080.
|
NASDAQ Capital Market symbol
|
|
RDCM
|
High
|
Low
|
|||||||
Annual
|
||||||||
2012
|
$
|
5.69
|
$
|
2.08
|
||||
2011
|
$
|
13.98
|
$
|
3.45
|
||||
2010
|
$
|
12.50
|
$
|
1.60
|
||||
2009
|
$
|
2.80
|
$
|
0.40
|
||||
2008
|
$
|
3.40
|
$
|
0.40
|
||||
Quarterly 2013
|
||||||||
Second Quarter (through June 26)
|
$
|
4.80
|
$
|
2.56
|
||||
First Quarter
|
$
|
4.19
|
|
$
|
2.21
|
|||
Quarterly 2012
|
||||||||
Fourth Quarter
|
$
|
3.25
|
$
|
2.08
|
||||
Third Quarter
|
$
|
4.80
|
$
|
2.66
|
||||
Second Quarter
|
$
|
5.42
|
$
|
3.50
|
||||
First Quarter
|
$
|
5.72
|
$
|
3.94
|
||||
Quarterly 2011
|
||||||||
Fourth Quarter
|
$
|
4.75
|
$
|
3.45
|
||||
Third Quarter
|
$
|
5.56
|
$
|
3.55
|
||||
Second Quarter
|
$
|
9.83
|
$
|
4.48
|
||||
First Quarter
|
$
|
13.98
|
$
|
9.28
|
||||
Most recent six months
|
||||||||
June 2013 (through June 26)
|
$
|
3.66
|
$
|
2.77
|
||||
May 2013
|
$
|
4.80
|
$
|
2.56
|
||||
April 2013
|
$
|
3.40
|
$
|
3.00
|
||||
March 2013
|
$
|
3.95
|
$
|
2.81
|
||||
February 2013
|
$
|
4.10
|
$
|
2.21
|
||||
January 2013
|
$
|
4.19
|
$
|
2.32
|
||||
December 2012
|
$
|
2.78
|
$
|
2.16
|
Actual
|
As Adjusted | |||||||
(in thousands)
|
||||||||
|
||||||||
Shareholders’ equity
|
||||||||
Share capital – ordinary shares of NIS 0.20 par value 9,997,670 shares authorized; 6,495,562 actual shares issued and 8,148,414 as adjusted shares issued)
|
252 | 343 | ||||||
Additional paid-in capital
|
61,244 | 66,053 | ||||||
Accumulated deficit
|
(56,996 | ) | (56,996 | ) | ||||
Total shareholders’ equity
|
4,500 | 9,400 | ||||||
Total capitalization
|
4,500 | 9,400 |
|
·
|
1,239,639 ordinary shares were purchased by the selling shareholders under the Purchase Agreement between us and the selling shareholders; and
|
|
·
|
413,213 ordinary shares are issuable upon exercise of the Warrants granted to the selling shareholders under the Purchase Agreement.
|
Ordinary Shares Beneficially
|
Ordinary Shares
|
Ordinary Shares
|
||||||||||||||||||
Owned
|
Being
|
Beneficially Owned
|
||||||||||||||||||
Prior to Offering (4)
|
Offered (4)
|
After Offering (4)
|
||||||||||||||||||
|
Number
|
Percent
|
Number
|
Percent
|
||||||||||||||||
Name of Beneficial Owner
|
|
|
|
|||||||||||||||||
Zohar Zisapel (1)
|
2,813,030 | (2) | 35.09 | % | 542,147 | (3) | 2,270,883 | 34.19 | % | |||||||||||
24 Raoul Wallenberg Street
|
||||||||||||||||||||
Tel-Aviv 69719, Israel
|
||||||||||||||||||||
Yelin Lapidot Provident Fund Management Ltd (5)
|
477,897 | (6) | 6.10 | % | 477,897 | - | 0.00 | % | ||||||||||||
50 Dizengoff St Top Tower
|
||||||||||||||||||||
Tel Aviv 69411, Israel
|
||||||||||||||||||||
Abraham Neuman
|
252,968 | 3.26 | % | 133,333 | 119,635 | 1.84 | % | |||||||||||||
10 Agmon Street
|
||||||||||||||||||||
Ramat Efal 52960, Israel
|
||||||||||||||||||||
Straiton Investments Limited (7)
|
325,603 | 4.18 | % | 293,333 | 32,270 | 0.50 | % | |||||||||||||
50 Town Range, Suites 7b &8b
|
||||||||||||||||||||
Gibraltar
|
||||||||||||||||||||
David Ripstein (8)
|
211,645 | (9) | 2.68 | % | 23,895 | 187,750 | 2.82 | % | ||||||||||||
3 Aharon Becker
|
||||||||||||||||||||
Tel Aviv, Israel
|
||||||||||||||||||||
Meir Moshe
|
156,212 | 2.02 | % | 66,667 | 89,545 | 1.38 | % | |||||||||||||
14 Yacov Meridor.
|
||||||||||||||||||||
Tel Aviv, Israel
|
||||||||||||||||||||
Benny Bergman
|
149,073 | 1.93 | % | 23,895 | 125,178 | 1.93 | % | |||||||||||||
3 Daniel Frisch St.
|
||||||||||||||||||||
Tel Aviv 64731, Israel
|
||||||||||||||||||||
Zohar Gilon
|
121,685 | 1.57 | % | 71,685 | 50,000 | 0.77 | % | |||||||||||||
28 Shalva St
|
||||||||||||||||||||
Herzliya Pituach 46705, Israel
|
||||||||||||||||||||
Ouri Levy
|
21,958 | 0.28 | % | 20,000 | 1,958 | 0.03 | % | |||||||||||||
20/7 Refidim St
|
||||||||||||||||||||
Tel Aviv, Israel
|
(1)
|
Mr. Zisapel is the current Chairman of the Company’s Board of Directors. Mr. Zisapel entered into the Purchase Agreement through Klil & Michael Holdings (93) Ltd., or Klil, and Lomsha Ltd., or Lomsha, two Israeli companies wholly owned by Mr. Zisapel, who is also a director of each and as such, Mr. Zisapel may be deemed to have voting and investment power over any ordinary shares and warrants held by Klil and Lomsha.
|
(2)
|
Assumes the receipt of Shareholder Approval. Includes 44,460 ordinary shares owned of record by RAD Data Communications Ltd (“RDC”), an Israeli company, 13,625 ordinary shares owned of record by Klil, 56,139 ordinary shares owned of record by Lomsha, 125,000 ordinary shares issuable upon exercise of options exercisable within 60 days of June 3, 2013, 38,986 ordinary shares issuable upon exercise of Warrants exercisable within 60 days of June 3, 2013 and the Shares and ordinary shares mentioned in Footnote (3) below. Mr. Zohar Zisapel is a principal shareholder of RDC. Mr. Zohar Zisapel and his brother, Mr. Yehuda Zisapel, have shared voting and investment power with respect to the shares held by RDC, and as such, Mr. Zohar Zisapel may be deemed to have voting and investment power over the ordinary shares held by RDC. Mr. Zohar Zisapel disclaims beneficial ownership of these ordinary shares except to the extent of his pecuniary interest therein. |
|
|
(3)
|
Assumes the receipt of Shareholder Approval. Includes (i) 224,562 Shares, and 74,854 ordinary shares issuable upon exercise of warrants exercisable within 60 days of June 3, 2013, all owned of record by Klil, and (ii) 182,048 Shares and 60,683 ordinary shares issuable upon exercise of warrants exercisable within 60 days of June 3, 2013, all owned of record by Lomsha.
|
(4)
|
Includes Shares and ordinary shares underlying Warrants.
|
(5)
|
Yelin Lapidot Provident Fund Management Ltd. (“Yelin”) has voting control and investment discretion over the securities held by the funds mentioned in Footnote 6 below and as a result, may be deemed to have beneficial ownership (as determined under Section 13(d) of the Exchange Act) of the shares held in such account. Mr. Sany Zelka, Joint CEO of Yelin, has voting and investment power over the securities held by the funds mentioned in Footnote 6 below, and as a result, may be deemed to have beneficial ownership (as determined under Section 13(d) of the Exchange Act) of the shares held in such account.
|
(6)
|
Includes: (i) 84,272 Shares and 28,091 ordinary shares issuable upon exercise of warrants exercisable within 60 days of June 3, 2013, all owned of record by Yelin Lapidot Kupat Gemel, (ii) 22,561 Shares and 7,520 ordinary shares issuable upon exercise of warrants exercisable within 60 days of June 3, 2013, all owned of record by Yelin Lapidot Kupat Gemel Menayatit, (iii) 117,435 Shares and 39,145 ordinary shares issuable upon exercise of warrants exercisable within 60 days of June 3, 2013, all owned of record by Yelin Lapidot Keren Hishtalmut, (iv) 50,761 Shares and 16,920 ordinary shares issuable upon exercise of warrants exercisable within 60 days of June 3, 2013, all owned of record by Yelin Lapidot Gemel (B), and (v) 83,394 Shares and 27,798 ordinary shares issuable upon exercise of warrants exercisable within 60 days of June 3, 2013, all owned of record by Yelin Lapidot Hishtalmut (B). |
(7)
|
Finsbury Corporate Services Limited (“Finsbury”) has sole voting and investment control of the securities held by Straiton Investments Limited (“Straiton”). Mr. David Dennis Cuby and Mr. James David Hassan are directors at Finsbury, and have joint voting and investment power over the securities held by Straiton, and as a result, may be deemed to have beneficial ownership (as determined under Section 13(d) of the Exchange Act) of the shares held in such account.
|
(8)
|
David Ripstein is the CEO of the Company.
|
(9)
|
Includes (i) 17,921 ordinary shares, (ii) 5,974 ordinary shares issuable upon exercise of Warrants exercisable within 60 days of June 3, 2013 and (iii) 187,750 ordinary shares issuable upon exercise of options exercisable within 60 days of June 3, 2013.
|
|
·
|
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
|
·
|
block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
|
|
·
|
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
·
|
an exchange distribution in accordance with the rules of the applicable exchange;
|
|
·
|
privately negotiated transactions;
|
|
·
|
short sales;
|
|
·
|
broker-dealers may agree with the selling shareholders to sell a specified number of such shares at a stipulated price per share;
|
|
·
|
a combination of any such methods of sale; and
|
|
·
|
any other method permitted pursuant to applicable law.
|
SEC registration fee
|
|
$
|
710.72
|
Legal fees and expenses
|
|
$
|
15,000
|
Accounting fees and expenses
|
|
$
|
6,500
|
Miscellaneous expenses
|
|
$
|
789.28
|
|
|
|
|
Total
|
|
$
|
23,000
|
o
|
subject to limited exceptions, the judgment is final and non-appealable;
|
o
|
the judgment was given by a court competent under the laws of the state of the court and is otherwise enforceable in such state;
|
|
o
|
adequate service of process has been effected and the defendant has had a reasonable opportunity to present his arguments and evidence;
|
o
|
the judgment and its enforcement are not contrary to the law, public policy, security or sovereignty of the State of Israel;
|
|
o
|
the judgment was not obtained by fraud and does not conflict with any other valid judgment in the same matter between the same parties; and
|
|
o
|
an action between the same parties in the same matter was not pending in any Israeli court at the time the lawsuit was instituted in the U.S. court.
|
·
|
a breach of an office holder’s duty of care to us or to another person;
|
|
·
|
a breach of an office holder’s duty of loyalty to us, provided that the office holder acted in good faith and had reasonable cause to assume that his or her act would not prejudice our interests;
|
|
·
|
financial obligation imposed on him+ in favor of another person; or
|
|
·
|
reasonable litigation expenses, including attorney fees, incurred by the office holder as a result of an administrative enforcement proceeding instituted against him. Without derogating from the generality of the foregoing, such expenses will include a payment imposed on the office holder in favor of an injured party as set forth in Section 52(54)(a)(1)(a) of the Israeli Securities Law, 5728-1968, as amended (the “Israeli Securities Law”) and expenses that the office holder incurred in connection with a proceeding under Chapters H'3, H'4 or I'1 of the Israeli Securities Law, including reasonable legal expenses, which term includes attorney fees.
|
·
|
a financial obligation imposed on him in favor of another person by a court judgment, including a compromise judgment or an arbitrator's award approved by court;
|
|
·
|
reasonable litigation expenses, including attorneys' fees, expended by the office holder as a result of an investigation or proceeding instituted against him by a competent authority, provided that such investigation or proceeding was concluded without the filing of an indictment against him and either (A) concluded without the imposition of any financial liability in lieu of criminal proceedings or (B) concluded with the imposition of a financial liability in lieu of criminal proceedings but relates to a criminal offense that does not require proof of criminal intent; or in connection with an administrative enforcement proceeding or a financial sanction. Without derogating from the generality of the foregoing, such expenses will include a payment imposed on the office holder in favor of an injured party as set forth in Section 52(54)(a)(1)(a) of the Israeli Securities Law, and expenses that the office holder incurred in connection with a proceeding under Chapters H'3, H'4 or I'1 of the Israeli Securities Law, including reasonable legal expenses, which term includes attorney fees; and |
|
·
|
reasonable litigation expenses, including attorneys’ fees, expended by an office holder or charged to the office holder by a court, in a proceeding instituted against the office holder by the Company or on its behalf or by another person, or in a criminal charge from which the office holder was acquitted, or in a criminal proceeding in which the office holder was convicted of an offense that does not require proof of criminal intent.
|
·
|
in advance, provided that in respect of bullet number 1 above, the undertaking is restricted to events which our Board of Directors deems to be foreseeable in light of our actual operations at the time of the undertaking and limited to an amount or criteria determined by our Board of Directors to be reasonable under the circumstances, and further provided that such events and amounts or criteria are set forth in the undertaking to indemnify; and
|
·
|
retroactively.
|
·
|
a breach by the office holder of his duty of loyalty unless, with respect to insurance coverage or indemnification, the office holder acted in good faith and had a reasonable basis to believe that the act would not prejudice the company;
|
|
·
|
a breach by the office holder of his duty of care if the breach was done intentionally or recklessly (other than if solely done in negligence);
|
|
·
|
any act or omission done with the intent to derive an illegal personal benefit
|
|
·
|
a fine, civil fine or ransom levied on an office holder, or a financial sanction imposed upon an office holder under Israeli Law.
|
Exhibit Number
|
|
Description
|
2.1
|
|
Share and Warrant Purchase Agreement, dated as of April 23, 2013, by and between RADCOM Ltd. and the purchasers listed therein.
|
|
|
|
2.2
|
|
Form of Warrant – Warrant to Purchase Ordinary Shares, dated April 24, 2013.
|
|
|
|
*5.1
|
|
Opinion of Goldfarb Seligman & Co., Israeli counsel for RADCOM Ltd., as to the validity of the ordinary shares.
|
|
|
|
*23.1
|
|
Consent of Goldfarb Seligman& Co. (included in Exhibit 5.1).
|
*23.2
|
Consent of Kost Forer Gabbay & Kasierer, a member firm of Ernst & Young Global, independent public accounting firm.
|
|
|
|
|
*24.1
|
|
Powers of Attorney.
|
|
RADCOM LTD.
|
|
|
|
|
|
By:
|
/s/ Gilad Yehudai
|
|
Name:
|
Gilad Yehudai
|
|
Title:
|
Chief Financial Officer
|
Name
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ David Ripstein
|
|
President and
|
|
June 27, 2013
|
David Ripstein
|
|
Chief Executive Officer
(Principal Executive Officer):
|
|
|
|
|
|
|
|
*
|
|
Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
|
|
June 27, 2013
|
Gilad Yehudai
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
June 27, 2013
|
Zohar Zisapel
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
June 27, 2013
|
Uri Har
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
June 27, 2013
|
Heli Bennun
|
|
|
|
|
|
|
|
|
|
*
|
|
Director
|
|
June 27, 2013
|
Irit Hillel
|
|
|
|
|
*
|
|
Director
|
|
June 27, 2013
|
Matty Karp
|
|
|
|
|
|
|
|
|
|
Authorized Representative in the United States:
|
|
|
|
|
RADCOM Equipment, Inc.
|
|
|
|
|
/s/ David Ripstein
|
|
President and
|
|
June 27, 2013
|
David Ripstein
|
|
Chief Executive Officer
|
|
|
* By: /s/ David Ripstein
|
|
|
June 27, 2013
|
|
Name: David Ripstein
Attorney-in-fact
|
|
|
|
Exhibit Number
|
|
Description
|
2.1
|
|
Share and Warrant Purchase Agreement, dated as of April 23, 2013, by and between RADCOM Ltd. and the purchasers listed therein.
|
|
|
|
2.2
|
|
Form of Warrant – Warrant to Purchase Ordinary Shares, dated April 24, 2013.
|
|
|
|
*5.1
|
|
Opinion of Goldfarb Seligman & Co., Israeli counsel for RADCOM Ltd., as to the validity of the ordinary shares.
|
|
|
|
*23.1
|
|
Consent of Goldfarb Seligman& Co. (included in Exhibit 5.1).
|
*23.2
|
Consent of Kost Forer Gabbay & Kasierer, a member firm of Ernst & Young Global, independent public accounting firm.
|
|
|
|
|
*24.1
|
|
Powers of Attorney.
|
THE PURCHASERS:
|
SUBSRIPTION AMOUNT:
|
Benny Bergman
|
|
[SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT]
|
Purchaser Name
|
Purchaser Address and Email
|
Number of Shares
|
Aggregate Purchase Price $
|
Number of
Warrants
|
Investor Status*
|
||||||||||
Benny Bergman
|
17,921 | 50,000 | 5,974 |
accredited investor / Israeli non-institutional
|
|||||||||||
Zohar Gilon
|
53,764 | 150,002 | 17,921 |
accredited investor / Israeli non-institutional
|
|||||||||||
Meir Moshe
|
50,000 | 139,500 | 16,667 |
accredited investor / Israeli non-institutional
|
|||||||||||
Abraham Neyman
|
100,000 | 279,000 | 33,333 |
accredited investor / Israeli non-institutional
|
|||||||||||
Straiton Investments
|
220,000 | 613,800 | 73,333 |
accredited investor
|
|||||||||||
Ouri Levy
|
15,000 | 41,850 | 5,000 |
accredited investor / Israeli non-institutional
|
|||||||||||
Yelin Lapidot Kupat Gemel
|
84,272 | 235,119 | 28,091 |
Israeli institutional , as set in Section 15a(b)(1)(2) of the Addendum
|
|||||||||||
Yelin Lapidot Kupat Gemel Menayatit
|
22,561 | 62,945 | 7,520 |
Israeli institutional, as set in Section 15a(b)(1)(2) of the Addendum
|
|||||||||||
Yelin Lapidot Keren Hishtalmut
|
117,435 | 327,644 | 39,145 |
Israeli institutional, as set in Section 15a(b)(1)(2) of the Addendum
|
|||||||||||
Yelin Lapidot Gemel (B)
|
50,761 | 141,623 | 16,920 |
Israeli institutional, as set in Section 15a(b)(1)(2) of the Addendum
|
|||||||||||
Yelin Lapidot Hishtalmut (B)
|
83,394 | 232,669 | 27,798 |
Israeli institutional, as set in Section 15a(b)(1)(2) of the Addendum
|
|||||||||||
David Ripstein
|
17,921 | 50,000 | 5,974 |
accredited investor / Israeli non-institutional
|
|||||||||||
Klil & Michael Holdings (93) Ltd.
|
224,562 | 626,528 | 74,854 |
accredited investor / Israeli non-institutional
|
|||||||||||
Lomsha Ltd.
|
182,048 | 507,914 | 60,683 |
accredited investor / Israeli non-institutional
|
|||||||||||
Total
|
1,239,639 |
US$ 3,458,594
|
413,213 |
|
·
|
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
|
|
·
|
block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
|
|
·
|
purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
|
|
·
|
an exchange distribution in accordance with the rules of the applicable exchange;
|
|
·
|
privately negotiated transactions;
|
|
·
|
short sales;
|
|
·
|
broker-dealers may agree with the selling shareholders to sell a specified number of such shares at a stipulated price per share;
|
|
·
|
a combination of any such methods of sale; and
|
|
·
|
any other method permitted pursuant to applicable law.
|
|
This Warrant may be exercised to purchase [insert number of warrant shares] of the Company's Ordinary Shares having an aggregate exercise price in the amount of US$ [insert number equal to total warrant shares issuable pursuant to this warrant multiplied by $3.49] (“Exercise Amount”), at an exercise price per each Ordinary Share as provided in Section 2 below, subject to adjustments under Section 8 of this Warrant (the “Warrant Shares”);
|
2.
|
Exercise Price
|
|
The exercise price for each Warrant Share purchasable hereunder shall be $3.49 subject to adjustments under Section 8 of this Warrant (the “Warrant Price”):
|
3.
|
Term
|
|
This Warrant may be exercised, in whole or in part, during the period beginning on the Effective Date and ending on the date which is 3 years following the Effective Date (the “Warrant Term”).
|
4.
|
Exercise of Warrant for Cash Only
|
|
This Warrant may be exercised in whole or in part on one or more occasions during the Warrant Term. The Warrant may be exercised by the surrender of the Warrant to the Company at its principal office together with the Notice of Exercise annexed hereto duly completed and executed on behalf of the Holder or by email or fax followed by the original within four business days. The Notice of Exercise must be accompanied by payment in full of the amount of the aggregate Exercise Amount of the Warrant Shares being purchased upon such exercise in immediately available funds.
|
5.
|
Issuance of Shares on Exercise
|
|
The Company agrees that the Warrant Shares so purchased shall be issued against receipt of the Notice of Exercise and payment (as provided in Section 4 herein) and the Holder shall be deemed the record owner of such Warrant Shares as of and from the close of business on the date on which this Warrant shall be surrendered, together with payment in full as required above. In the event of a partial exercise, the Company shall concurrently issue to the Holder a replacement Warrant on the same terms and conditions as this Warrant, but representing the number of Warrant Shares remaining after such partial exercise.
|
6.
|
Warrant Confers No Rights of Shareholder
|
|
Except as otherwise set forth in this Warrant, the Holder shall not have any rights as a shareholder of the Company with regard to the Warrant Shares prior to actual exercise resulting in the purchase of any Warrant Shares.
|
7.
|
Investment Representation
|
|
Neither this Warrant nor the Warrant Shares issuable upon the exercise of this Warrant have been registered under the Securities Act, or any other securities laws. The Holder acknowledges by acceptance of the Warrant that (a) it has acquired this Warrant for investment and not with a view to distribution; (b) it has either a pre-existing personal or business relationship with the Company, or its executive officers, or by reason of its business or financial experience, it has the capacity to protect its own interests in connection with the transaction; and (c) it is an “accredited investor” as that term is defined in Regulation D promulgated under the Securities Act, or he or she has the knowledge and experience in business and financial matters to evaluate the risks and merits of his or her investment, or it is not a “U.S. Person” within the meaning of Regulation S promulgated under the Securities Act and is not acquiring the Warrants for the account of a U.S. Person. The Holder agrees that any Warrant Shares issuable upon exercise of this Warrant will be acquired for investment and not with a view to distribution, and that such Warrant Shares may have to be held indefinitely unless they are subsequently registered or qualified under the Securities Act and applicable state securities laws, or based on an opinion of counsel reasonably satisfactory to the Company, an exemption from such registration and qualification is available. The Holder, by acceptance hereof, consents to the placement of legend(s) on all securities hereunder as to the applicable restrictions on transferability in order to ensure compliance with the Securities Act, unless in the opinion of counsel for the Company such legend is not required in order to ensure compliance with the Securities Act. The Company may issue stop transfer instructions to its transfer agent in connection with such restrictions. |
8.
|
Adjustment of Warrant Price and Number of Shares
|
|
The number and kind of securities purchasable initially upon the exercise of this Warrant and the Warrant Price shall be subject to adjustment from time to time upon the occurrence of certain events, as follows:
|
|
a.
|
Adjustment for Shares Splits and Combinations. If the Company at any time or from time to time effects a subdivision of the outstanding Ordinary Shares, the number of Ordinary Shares issuable upon exercise of this Warrant immediately before the subdivision shall be proportionately increased, and conversely, if the Company at any time or from time to time combines the outstanding Ordinary Shares, the number of Ordinary Shares issuable upon exercise of this Warrant immediately before the combination shall be proportionately decreased. Any adjustment under this Section 8(a) shall become effective at the close of business on the date the subdivision or combination becomes effective.
|
|
b.
|
Adjustment for Certain Dividends and Distributions. In the event the Company at any time, or from time to time makes, or fixes a record date for the determination of holders of Ordinary Shares entitled to receive a dividend or other distribution payable in additional shares of Ordinary Shares, then and in each such event the number of Ordinary Shares issuable upon exercise of this Warrant shall be increased as of the time of such issuance or, in the event such a record date is fixed, as of the close of business on such record date, by multiplying the number of Ordinary Shares issuable upon exercise of this Warrant by a fraction: (i) the numerator of which shall be the total number of Ordinary Shares issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of Ordinary Shares issuable in payment of such dividend or distribution, and (ii) the denominator of which is the total number of shares of Ordinary Shares issued and outstanding immediately prior to the time of such issuance or the close of business on such record date; provided, however, that if such record date is fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed thereof, the number of Ordinary Shares issuable upon exercise of this Warrant shall be recomputed accordingly as of the close of business on such record date and thereafter the number of shares of Ordinary Shares issuable upon exercise of this Warrant shall be adjusted pursuant to this Section 8(b) as of the time of actual payment of such dividends or distributions. |
|
c.
|
Adjustments for Other Dividends and Distributions. In the event the Company at any time or from time to time makes, or fixes a record date for the determination of holders of Ordinary Shares entitled to receive a dividend or other distribution payable in securities of the Company other than Ordinary Shares, then in each such event provision shall be made so that the Holder shall receive upon exercise of this Warrant, in addition to the number of Ordinary Shares receivable thereupon, the amount of securities of the Company that the Holder would have received had this Warrant been exercised for Ordinary Shares immediately prior to such event (or the record date for such event) and had the Holder thereafter, during the period from the date of such event to and including the date of exercise, retained such securities receivable by it as aforesaid during such period, subject to all other adjustments called for during such period under this Section and the Company’s Articles of Association with respect to the rights of the Holder. |
|
d.
|
Adjustment for Reclassification, Exchange and Substitution. If the Ordinary Shares issuable upon the exercise of this Warrant are changed into the same or a different number of shares of any class or classes of shares, whether by recapitalization, reclassification or otherwise (other than a subdivision or combination of shares or shares dividend or a reorganization, merger, consolidation or sale of assets, provided for elsewhere in this Section), then and in any such event the Holder shall have the right thereafter to exercise this Warrant into the kind and amount of shares and other securities receivable upon such recapitalization, reclassification or other change, by holders of the number of shares of Ordinary Shares for which this Warrant might have been exercised immediately prior to such recapitalization, reclassification or change, all subject to further adjustment as provided herein and under the Company’s Articles of Association. |
|
e.
|
Reorganization, Mergers, Consolidations or Sales of Assets. If at any time from time to time there is a capital reorganization of the Ordinary Shares (other than a recapitalization, subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Subsection) or a merger or consolidation of the Company with or into another corporation, or the sale of all or substantially all of the Company’s properties and assets to any other person, then, as a part of such reorganization, merger, consolidation or sale, provision shall be made so that the Holder shall thereafter be entitled to receive upon exercise of this Warrant, the number of shares or other securities or property of the Company, or of the successor corporation resulting from such merger or consolidation or sale, to which a holder of Ordinary Shares deliverable upon conversion would have been entitled on such capital reorganization, merger, consolidation or sale. In any such case (except to the extent any cash or property is received in such transaction), appropriate adjustment shall be made in the application of the provisions of this Subsection and the Company’s Articles of Association with respect to the rights of the Holder after the reorganization, merger, consolidation or sale to the end that the provisions of this Subsection and the Company’s Articles of Association (including adjustment of the number of shares of Ordinary Shares issuable upon exercise of this Warrant) shall be applicable after that event and be as nearly equivalent to the provisions hereof as may be practicable. |
|
f.
|
Adjustment of Warrant Price. Upon each adjustment in the number of Ordinary Shares purchasable hereunder, the Warrant Price shall be proportionately increased or decreased, as the case may be, in a manner that is the inverse of the manner in which the number of Ordinary Shares purchasable hereunder shall be adjusted.
|
|
g.
|
Notice of Adjustments. Whenever the Warrant Price or the number of Ordinary Shares purchasable hereunder shall be adjusted pursuant to Section 8 hereof, the Company shall prepare a certificate signed by the chief financial officer of the Company setting forth, in reasonable detail, the event requiring the adjustment, the amount of the adjustment, the method by which such adjustment was calculated, and the Warrant Price and the number of Ordinary Shares purchasable hereunder after giving effect to such adjustment, and shall cause copies of such certificate to be mailed (by first class mail, postage prepaid) to the Holder.
|
9.
|
Transfer of This Warrant or Securities Issuable on Exercise Hereof
|
|
With respect to any offer, sale or other disposition of this Warrant or securities into which such Warrant may be exercised, the Holder will give written notice to the Company prior thereto, describing briefly the manner thereof, together with, if requested by the Company, a written opinion of such Holder's counsel, to the effect that such offer, sale or other distribution may be effected without registration or qualification (under any federal or state law then in effect). Such opinion letter and all such transferees must warrant and represent that they are an "accredited" investor as that term is defined under Regulation D of the Securities Act. Upon receiving such written notice and opinion and warranties and representations, if so requested, the Company, as promptly as practicable, shall deliver to the Holder one or more replacement Warrant certificates on the same terms and conditions as this Warrant for delivery to the transferees. Each Warrant thus transferred and each certificate representing the securities thus transferred shall bear legend(s) as to the applicable restrictions on transferability in order to ensure compliance with the Securities Act, unless in the opinion of counsel for the Company such legend is not required in order to ensure compliance with the Securities Act. |
10.
|
Representations and Warranties.
|
|
The Company represents and warrants to the Holder as follows:
|
|
a.
|
This Warrant has been duly authorized and executed by the Company and is a valid and binding obligation of the Company enforceable in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors, and to general equity principles.
|
|
b.
|
The Warrant Shares are duly authorized and reserved for issuance by the Company and, when issued in accordance with the terms hereof, will be validly issued, fully paid and nonassessable and not subject to any preemptive rights.
|
|
c.
|
The execution and delivery of this Warrant are not, and the issuance of the Warrant Shares upon exercise of this Warrant in accordance with the terms hereof will not be, inconsistent with the Company’s Articles of Association, do not and will not contravene any law, governmental rule or regulation, judgment or order applicable to the Company, and, except for consents that have already been obtained by the Company, do not and will not conflict with or contravene any provision of, or constitute a default under, any indenture, mortgage, contract or other instrument of which the Company is a party or by which it is bound or require the consent or approval of, the giving of notice to, the registration with or the taking of any action in respect of or by, any Federal, state or local government authority or agency or other person.
|
|
Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of any Warrant or Shares certificate, and in case of loss, theft or destruction, of indemnity, or security reasonably satisfactory to it, and upon reimbursement to the Company of all reasonable expenses incidental thereto, and upon surrender and cancellation of such Warrant or Shares certificate, if mutilated, the Company will make and deliver a new Warrant or Shares certificate of like tenor and dated as of such cancellation, in lieu of such Warrant or Shares certificate.
|
12.
|
Notices
|
|
Any notice or other communication hereunder shall be in writing and shall be deemed to have been given upon delivery, if personally delivered or three business days after deposit if deposited in the mail for mailing by certified mail, postage prepaid, and addressed as follows:
|
If to Holder:
|
[insert address and fax number of investor]
|
If to Company:
|
Radcom Ltd.
24 Raoul Wallenberg Street
Tel Aviv 69719, Israel
Fax: +972-3-6474681
Attention: Chief Financial Officer
|
|
Each of the above addressees may change its address for purposes of this paragraph by giving to the other addressees notice of such new address in conformance with thisparagraph.
|
|
This Warrant constitutes the entire agreement between the parties hereto with regard to the subject matters hereof, and supercedes any prior communications, agreements and/or understandings between the parties hereto with regard to the subject matters hereof.
|
By:
|
______________________________________ |
Name:
|
Gilad Yehudai
|
Title:
|
Chief Financial Officer
|
1.
|
The undersigned hereby elects to purchase _________ shares of Ordinary Shares of ____________, pursuant to the terms of the attached Warrant, and tenders herewith payment of the purchase price for such shares in full.
|
2.
|
In exercising this Warrant, the undersigned hereby confirms and acknowledges that the shares of Ordinary Shares are being acquired solely for the account of the undersigned and not as a nominee for any other party, or for investment, and that the undersigned will not offer, sell or otherwise dispose of any such shares of Ordinary Shares except under circumstances that will not result in a violation of the Securities Act of 1933, as amended, or any state securities laws.
|
3.
|
Please issue a certificate representing said shares of Ordinary Shares in the name of the undersigned.
|
4.
|
Please issue a new Warrant for the unexercised portion of the attached Warrant in the name of the undersigned.
|
______________________
|
_________________________
|
(Date)
|
(Print Name)
_________________________
(Signature)
|
_EQ_P"%?HU_P@^F?\\Z/^$'TS_GG5_V=AOY2Y<8 MYW)6>(E8_.#_`(9&D9LMJVK?]^H_\*RZB213U##-<[=_#;1;N0NUN%).3@5U5%`&)IG@_2] M)(-I:IN'0D5M*H484`#T%+10!7O+&"^B*7<22KZ,*YRX^&VBW$A9K8+DYXKJ MZ*35QIM&/I/A73M'&+*U1?\`:(R:UMN!QVZ`4ZBA*P-W,G4/#=GJDHDNX@7! MZU?M;2.T@$,2X0#@5/13$5X[*&!]T2`'-5M2T&TU;'VZ,2#T-:-%`%/3]+@T -R+R[5=J^E%7**`/_V3\_ ` end
Re:
|
Radcom Ltd
|
|
Registration Statement on Form F-3
|
|
Filed June 5, 2013
|
|
Response:
|
|
Response:
|
|
Response:
|
|
·
|
should the Commission or the Staff, acting pursuant to delegated authority, declare the filing effective, it does not foreclose the Commission from taking any action with respect to the filing;
|
|
·
|
the action of the Commission or the Staff, acting pursuant to delegated authority, in declaring the filing effective, does not relieve the Company from its full responsibility for the adequacy and accuracy of the disclosure in the filing; and
|
|
·
|
the Company may not assert Staff comments and the declaration of effectiveness as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States.
|
Respectfully,
RADCOM LTD
|
|||
|
By:
|
/s/ Gilad Yehudai | |
Gilad Yehudai
|
|||
Chief Financial Officer
|
|||
cc:
|
Omer Mor, Adv.
|