Unassociated Document
As
filed with the Securities and Exchange Commission on December 14,
2010
Registration
No. 333-170512
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C.
20549
PRE-EFFECTIVE
AMENDMENT
NO. 1
TO
FORM
F-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
RADCOM
Ltd.
(Exact
Name of Registrant as Specified in Its Charter)
Israel
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Not
Applicable
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(State
or Other Jurisdiction of
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(I.R.S.
Employer
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Incorporation
or Organization)
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Identification
No.)
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24
Raoul Wallenberg Street
Tel-Aviv
69719, Israel
(972)
3-645-5055
(Address
and Telephone Number of Registrant’s Principal Executive Offices)
RADCOM
Equipment Inc.
6
Forest Avenue, Paramus, NJ 07652
(201)
518-0033
(Name,
Address and Telephone Number of Agent for Service)
Copies
to:
Ernest
S. Wechsler , Esq.
Kramer
Levin Naftalis & Frankel LLP
1177
Avenue of the Americas
New
York, New York 10036
Tel:
(212) 715-9100
Fax:
(212) 715-8000
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Noam
Nativ, Adv.
Goldfarb,
Levy, Eran, Meiri,
Tzafrir
& Co.
2
Weizman Street
Tel-Aviv
64239, Israel
Tel:
(972) 3-608-9999
Fax:
(972) 3-608-9808
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Approximate
date of commencement of proposed sale to the public: From time to time after the
Registration Statement becomes effective.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. o
If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act, please check the
following box. x
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. o
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
Form is a registration statement pursuant to General Instruction I.C. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.C. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of Securities To Be Registered
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Amount
To
Be
Registered
(1)
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Proposed
Maximum
Aggregate
Price
Per
Share
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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Ordinary
shares, par value NIS 0.20 per share
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643,277
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(2)
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$
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10.76
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(4)
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$
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6,921,661
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$
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493.51
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(6)
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Ordinary
shares, par value NIS 0.20 per share, issuable upon exercise of
warrants
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214,426
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(3)
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$
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10.69
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(5)
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$
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2,292,214
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$
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163.43
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(6)
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Total
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857,703
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N/A
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$
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9,213,875
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$
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656.94
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*
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*Previously
paid.
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended (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.
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(2)
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Represents
ordinary shares being registered for resale by certain selling
shareholders.
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(3)
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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.
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(4)
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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 November 8, 2010. The ordinary shares being registered
are to be sold by the selling
shareholders.
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(5)
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Calculated
in accordance with Rule 457(g)(1) under the Securities Act based on the
warrant exercise price of $10.69 per
share.
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(6)
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Determined
in accordance with Section 6(b) of the Securities Act and equal to
0.00007130 multiplied by the proposed maximum aggregate offering price of
each class of securities.
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The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment that specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act, or until the Registration Statement shall become effective on
such date as the Securities and Exchange Commission, acting pursuant to said
Section 8(a), may determine.
Explanatory
Note
This
amendment is being filed solely to file Exhibit 2.1 and Exhibit
2.2.
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
8. Indemnification of Directors and Officers.
Under the
Companies Law, an Israeli company may not exempt an office holder from liability
with respect to a breach of his duty of loyalty, but may exempt in advance an
office holder from his liability to the company, in whole or in part, with
respect to a breach of his duty of care, provided that the articles of
association of the company permit it to do so. Our articles of association allow
us to exempt our office holders to the fullest extent permitted by
law.
Our
articles of association further provide that, subject to the provisions of the
Companies Law, we may enter into a contract for the insurance of the liability
of any of our office holders with respect to an act performed by such individual
in his or her capacity as an office holder, for:
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a
breach of an office holder’s duty of care to us or to another
person;
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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;
or
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a
financial liability imposed upon an office holder in favor of anther
person concerning an act performed by an office holder in his or her
capacity as an office holder.
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Our
articles of association also provide that we may indemnify an office holder in
respect of an obligation or expense imposed on the office holder in respect of
an act performed in his or her capacity as an office holder, as
follows:
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a
monetary obligation imposed on an office holder in favor of another person
in accordance with a judgment, including a settlement or an arbitration
award approved by a court;
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·
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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 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;
and
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·
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reasonable
litigation expenses, including attorneys’ fees, incurred by the office
holder or which the office holder was ordered to pay by a court, in a
proceeding we instituted against him or her or which was instituted on our
behalf or by another person, or in a criminal charge from which he or she
was acquitted, or a criminal charge in which he or she was convicted for a
criminal offense that does not require proof of criminal
intent.
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Our
articles of association also include provisions:
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authorizing
us to undertake in advance to indemnify an office holder, provided that
the undertaking is restricted to events which our Board of Directors deems
to be anticipated 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
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·
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authorizing
us to retroactively indemnify an office
holder.
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The
Companies Law provides that a company may not enter into a contract for the
insurance of its office holders nor indemnify an office holder nor exempt an
officer from responsibility toward the company, for any of the
following:
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·
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a
breach by the office holder of his or her duty of loyalty, unless, with
respect to insurance coverage, the office holder acted in good faith and
had a reasonable basis to believe that such act would not prejudice the
company’s interests;
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a
breach by the office holder of his or her duty of care if the breach was
committed intentionally or
recklessly;
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any
act or omission committed with the intent to unlawfully derive a personal
profit; or
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any
fine or penalty imposed on the office
holder.
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We
indemnified and exculpated our office holders by providing them with
indemnification agreements and by approving the purchase of a directors and
officers liability insurance policy.
Item
9. Exhibits.
(a) Exhibits:
Exhibit
Number
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Description
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2.1
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Share
and Warrant Purchase Agreement, dated as of October 11, 2010, by and
between RADCOM Ltd. and the purchasers listed therein.
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2.2
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Form
of Warrant - Share and Warrant Purchase Agreement dated October 11,
2010.
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5.1
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Opinion
of Goldfarb, Levy, Eran, Meiri, Tzafrir & Co., Israeli counsel for
RADCOM Ltd., as to the validity of the ordinary shares (Previously
filed).
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23.1
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Consent
of Goldfarb, Levy, Eran, Meiri, Tzafrir & Co. (included in Exhibit
5.01 to this Registration Statement on Form F-3).
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23.2
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Consent
of Somekh Chaikin, a member of KPMG International, independent public
accounting firm (Previously filed).
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23.3
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Consent
of Kost Forer Gabbay & Kasierer, a member firm of Ernst & Young
Global, independent public accounting firm (Previously
filed).
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24.1
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Powers
of Attorney (Previously filed).
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Item
10. Undertakings.
(a) The
undersigned Registrant hereby undertakes:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) to
reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the SEC
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price set
forth in the “Calculation of Registration Fee” table in the effective
Registration Statement;
(iii) to
include any material information with respect to the Plan of Distribution not
previously disclosed in the Registration Statement or any other material change
to such information in the Registration Statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this Item 10
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 SEC by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of the Registration Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) To
file a post-effective amendment to the Registration Statement to include any
financial statements required by Item 8.A of Form 20-F at the start of any
delayed offering or throughout a continuous offering. Financial statements and
information otherwise required by Section 10(a)(3) of the Securities Act need
not be furnished, provided that the Registrant includes in the prospectus, by
means of a post-effective amendment, financial statements required pursuant to
this paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, with respect to
Registration Statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required by Section
10(a)(3) of the Securities Act or Item 8.A of Form 20-F if such financial
statements and information are contained in periodic reports filed with or
furnished to the SEC by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the Form
F-3.
(5) That,
for the purpose of determining liability under the Securities Act to any
purchaser:
(i)
If the registrant is relying on Rule 430B:
A. Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
B. Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii), or (x), for the purpose of
providing the information required by section 10(a) of the Securities Act shall
be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or
the date of the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes of the
issuer and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating to the
securities in the registration statement to which that prospectus relates, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however, that no statement made in a
registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date; or
(ii) If
the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule
424(b) as part of a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than prospectuses filed in
reliance on Rule 430A, shall be deemed to be part of and included in the
registration statement as of the date it is first used after effectiveness.
Provided, however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will, as to a purchaser
with a time of contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any such document immediately
prior to such date of first use.
(6) That,
for the purpose of determining liability of the registrant under the Securities
Act to any purchaser in the initial distribution of the securities: The
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(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 section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the SEC 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
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 F-3 and has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Tel-Aviv, Israel, on this 14th day of
December 2010.
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RADCOM
LTD.
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By:
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/s/
Jonathan Burgin
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Name:
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Jonathan
Burgin
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Title:
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Chief
Financial Officer
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Pursuant
to the requirements of the Securities Act, this Registration Statement has been
signed by the following persons in the capacities and on the date
indicated.
Name
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Title
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Date
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Principal
Executive Officer:
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/s/
David Ripstein
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President
and
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December
14, 2010
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David
Ripstein
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Chief
Executive Officer
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Principal
Financial Officer and Principal
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Accounting
Officer:
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/s/
Jonathan Burgin
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Chief
Financial Officer
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Jonathan
Burgin
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Directors:
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*
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Director
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Zohar
Zisapel
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*
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Director
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Uri
Har
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*
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Director
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Shlomo
Kalish
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*
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Director
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Irit
Hillel
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Director
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Matty
Karp
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*By:
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Name:
Jonathan Burgin
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Authorized
Representative in the United States:
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RADCOM
Equipment, Inc.
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/s/
David Ripstein
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President
and
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David
Ripstein
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Chief
Executive Officer
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