As filed with the Securities and Exchange Commission on February 15, 2006
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VOCALTEC COMMUNICATIONS LTD.
(Exact name of registrant as specified in its charter)
Israel Not Applicable
State or other jurisdiction of incorporation (I.R.S. Employer Identification
or organization) No.)
60 Medinat Ha Yehudim Street
Herzliya Pituach, Israel 46140
(Address of Principal Executive Offices) (Zip Code)
VOCALTEC COMMUNICATIONS LTD. AMENDED 2003 MASTER STOCK OPTION PLAN
(Full title of the plan)
VocalTec Communications Inc.
1732 Southampton Drive
Carrollton, TX 75007
(Name and address of agent for
service)
(214) 476-5107
(Telephone number, including area code, of agent for service)
Copy to:
Dan Shamgar
Meitar Geva Liquornik & Leshem Brandwein
16 Aba Hillel Silver Road
Ramat Gan 52506, Israel
Telephone No.: (972-3) 610-3100
Telecopier No.: (972-3) 610-3111
Approximate date of commencement of proposed sale to public: From time to time
after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to Offering Price Aggregate Offering Amount of
Securities to be Registered be Registered(1) per Share Price Registration Fee
--------------------------- ---------------- --------- ----- ----------------
Ordinary Shares, par value
NIS 0.13 per share 754,204 $7.66 (2) $5,777,203 $ 618.2
Ordinary Shares, par value
NIS 0.13 per share 130,412 $8.025 (2)(3) $1,046,556 $ 112
Total 884,616 $7.714 $6,823,759 $ 730.2
(1) This registration statement shall also cover such indeterminate number of
Ordinary Shares as may be issued to prevent dilution resulting from stock
dividends, stock splits or similar transactions effected without the
registrant's receipt of consideration, which transactions result in an
increase in the number of outstanding Ordinary Shares of the registrant, in
accordance with Rule 416 under the Securities Act of 1933.
(2) Represents a weighted average exercise price of $7.66 per each Ordinary
Share underlying outstanding stock options. Includes 84,617 Ordinary Shares
underlying options with an exercise price that has been approved by the
board of directors of the registrant but is subject to the approval of the
registrant's shareholders in accordance with Israeli law. For purposes of
determining the filing fee under this registration statement, the
registrant has treated such Ordinary Shares as subject to future grants
under the plan underlying this registration statement.
(3) Estimated solely for the purpose of calculating the registration fee on the
basis of, pursuant to Rule 457(c) and (h) promulgated under the Securities
Act of 1933, the average of the high and low sale prices of the Ordinary
Shares on the Nasdaq Capital Market on February 13, 2006 with respect to
130,412 Ordinary Shares subject to future grants under the plan underlying
this registration statement (including the 84,617 Ordinary Shares referred
to in footnote (2) above.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INCORPORATION BY REFERENCE
The contents of the registrant's Registration Statement on Form S-8, File
No. 333-106400, filed with the Securities and Exchange Commission on June 24,
2003 (the "Original Registration Statement"), are hereby incorporated by
reference with the exception of Item 6 and Exhibits 5.1, 23.1, 23.2, 24.1 and
99.1 through 99.11, which are provided herewith.
ADDITIONAL INFORMATION
On June 24, 2003, VocalTec Communications Ltd. (the "Company") filed with
the Securities and Exchange Commission the Original Registration Statement for
the registration of 1,000,000 ordinary shares of the Company, par value New
Israeli Shekel ("NIS") 0.01 per share ("Ordinary Shares"), available for grants
under the Company's Amended 2003 Master Stock Option Plan (the "2003 Plan").
During August 2005, the Company's board of directors and the compensation
committee of the board of directors approved the transfer to the 2003 Plan of an
aggregate of 2,146,714 Ordinary Shares that were available for grants of options
under other stock option plans of the Company. Of such 2,146,714 Ordinary
Shares, 296,499 Ordinary Shares were transferred from the Company's 2000 Master
Stock Option Plan (the "2000 Plan"), with respect to which the Company filed
with the Securities and Exchange Commission on June 9, 2001 a Registration
Statement on Form S-8 (such Registration Statement covered 1,000,000 Ordinary
Shares, which are not being registered under this Registration Statement).
On October 27, 2005, the Company entered into a share sale and purchase
agreement (the "SPA") with Tdsoft Ltd. ("Tdsoft") and shareholders of Tdsoft,
pursuant to which, among other things, the parties agreed that at the closing
under the SPA (i) the Company would adopt each option plan of Tdsoft pursuant to
which there would be, as of the closing, unexpired and outstanding options to
purchase ordinary shares of Tdsoft, (ii) each option to purchase Tdsoft ordinary
shares, provided that it is unexpired and outstanding immediately prior to the
closing, will be converted into an option to purchase Ordinary Shares, and
thereafter there shall be no options outstanding to purchase ordinary shares of
Tdsoft, (iii) each such assumed option will be subject to the same vesting
arrangements and schedule that were applicable to it immediately prior to the
closing under the SPA and (iv) except as set forth below, each such assumed
option will, upon conversion into an option to purchase Ordinary Shares, remain
subject to the terms set forth in the respective Tdsoft option plan pursuant to
which it was granted. Copies of the Tdsoft plans (except for the Tdsoft Ltd. Gil
Eyal Share Option Plan, with respect to which a summary is attached) are filed
as Exhibits 99.5 through 99.11 to this Registration Statement.
The SPA also provided that the number of Ordinary Shares with respect to
which the assumed options will be exercisable and the exercise price of each
such Ordinary Share will be adjusted as set forth in the SPA.
The following table provides the number of Ordinary Shares underlying
currently outstanding options that replaced options previously granted under
each option plan of Tdsoft that was assumed by the Company as described above:
NUMBER OF COMPANY ORDINARY SHARES
UNDERLYING OUTSTANDING OPTIONS
NAME OF TDSOFT OPTION PLAN ASSUMED BY THE COMPANY GRANTED UNDER TDSOFT OPTION PLANS
------------------------------------------------- ---------------------------------
Tdsoft Ltd.'s Gil Eyal Share Option Plan 5,879
Tdsoft Ltd.'s Employee Share Option Plan (1997) 4,857
Tdsoft Ltd.'s Employee Share Option Plan (1998) 9,486
Tdsoft Ltd.'s Director Share Option Plan (1999) 5,045
Tdsoft Ltd.'s Employee Share Option Plan (2000) 17,702
Tdsoft Ltd.'s US Employee Share Option Plan (2000) 1,222
Tdsoft Ltd.'s Foreign Employee Share Option Plan (2002) 1,174
Tdsoft Ltd.'s Employee Share Option Plan (2003) 55,735
Total 101,100
On November 24, 2005, (i) the SPA was consummated and (ii) the Company's
shareholders approved an increase to the number of Ordinary Shares underlying
the 2003 Plan by 7,500,000 Ordinary Shares. On the same day, the Company's
shareholders approved a reverse split of the Company's outstanding Ordinary
Shares, and on November 25, 2005, the Company effected a 1-for-13 reverse split
of the Company's outstanding Ordinary Shares, resulting in the par value of the
Ordinary Shares being NIS 0.13 per share. Under the terms of the 2003 Plan, the
foregoing reverse split resulted in the number of Ordinary Shares underlying the
2003 Plan, the number of Ordinary Shares underlying options outstanding at the
time of such reverse split and the exercise price per each Ordinary Share
underlying options outstanding at the time of such reverse split being
proportionately adjusted to reflect the changes in the issued and outstanding
Ordinary Shares and the par value thereof, with any fractional shares resulting
from such adjustment to be eliminated in the manner provided by the compensation
committee of the Company's board of directors.
On December 13, 2005, the board of directors of the Company (i) resolved
that all Ordinary Shares underlying options granted under the Company's option
plans other than the 2003 Plan shall be transferred to the 2003 Plan upon
termination or cancellation of the options covering such Ordinary Shares and
(ii) adopted certain amendments and appendices to the 2003 Plan.
As a result of the foregoing, the 2003 Plan would cover, before reflecting
the reverse stock split described above, an aggregate of 13,500,000 Ordinary
Shares, par value NIS 0.01 per share (including 1,000,000 Ordinary Shares that
have been registered pursuant to the June 9, 2001 S-8 Registration Statement
described above and 1,000,000 Ordinary Shares that have been registered pursuant
to the Original Registration Statement). After giving effect to the reverse
stock split described above, the 2003 Plan covers an aggregate of 1,038,462
Ordinary Shares, par value NIS 0.13 per share (including 76,923 Ordinary Shares
that have been registered pursuant to each of the June 9, 2001 S-8 Registration
Statement and the Original Registration Statement).
In accordance with Rule 416(b) under the Securities Act of 1933, the
Company is registering under this Registration Statement a total of 884,616
Ordinary Shares, par value NIS 0.13 per share, consisting of (i) 307,693
Ordinary Shares subject to the Company's various stock option plans and (ii)
576,923 Ordinary Shares reflecting the post reverse stock split number of the
additional 7,500,000 Ordinary Shares referred to above.
The Original Registration Statement is hereby amended as follows:
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under the Israeli Companies Law, 5759-1999, or the Companies Law, an
Israeli company may not exempt an officer or director (a "Office Holder") from
liability with respect to a breach of his or her duty of loyalty, but may exempt
in advance an Office Holder from his or her liability to the company, in whole
or in part, with respect to a breach of his or her duty of care.
OFFICE HOLDER EXEMPTION: The Israeli Companies Law, 5759-1999, or the Companies
Law, provides that a company may exempt any of its officers and directors (each,
an "Office Holder") prospectively from liability, in whole or in part, for
damage resulting from a breach of his or her duty of care towards the company,
if its articles of association so provide. On November 24, 2005, the Company's
shareholders approved the Company's Amended and Restated Articles of
Association, enabling the Company to release, in advance, any Office Holder from
any liability for damages arising out of a breach of a duty of care towards the
Company, other than breach of such duty of care towards the Company in a
distribution (as such term is defined in the Companies Law). Under the Companies
Law, an Israeli company may not exempt an Office Holder from liability with
respect to a breach of his or her duty of loyalty.
OFFICE HOLDER INSURANCE: The Company's Amended and Restated Articles of
Association provide that the Company may enter into a contract for the insurance
of the liability, in whole or in part, of any of its Office Holders with respect
to an obligation imposed on such Office Holder due to an act performed by the
Office Holder in the Office Holder's capacity as an Office Holder of the Company
and arising from any of the following:
1. a breach of the duty of care to the Company or to any other person;
2. a breach of the duty of loyalty to the Company, provided that the Office
Holder acted in good faith and had reasonable grounds to assume that the act
that resulted in such breach would not harm the interests of the Company; and
3. a financial liability imposed on such Office Holder in favor of any
other person.
The Company has acquired directors' and officers' liability insurance
covering the Company's Office Holders for certain claims.
OFFICE HOLDER INDEMNIFICATION: In accordance with Section 260 of the Companies
Law, the Company's Amended and Restated Articles of Association provide as
follows:
1. Subject to the provisions of the Companies Law, including the receipt of
all approvals as required therein or under any applicable law, the Company may
resolve retroactively to indemnify an Office Holder of the Company with respect
to the following liabilities and expenses, provided that such liabilities or
expenses were incurred by such Office Holder in such Office Holder's capacity as
an Office Holder of the Company:
(i) a financial liability imposed on an Office Holder in favor of another
person by any judgment, including a judgment given as a result of a settlement
or an arbitrator's award which has been confirmed by a court in respect of an
act performed by the Office Holder;
(ii) reasonable litigation expenses, including attorneys' fees, expended 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, provided that (A) no indictment was filed against such Office Holder
as a result of such investigation or proceeding and (B) no financial liability
as a substitute for the criminal proceeding was imposed upon him or her as a
result of such investigation or proceeding, or, if such financial liability was
imposed, it was imposed with respect to an offence that does not require proof
of criminal intent; and
(iii) reasonable litigation costs, including attorney's fees, expended by
an Office Holder or which were imposed on an Office Holder by a court in
proceedings filed against the Office Holder by the Company or in its name or by
any other person or in a criminal charge in respect of which the Office Holder
was acquitted or in a criminal charge in respect of which the Office Holder was
convicted for an offence which did not require proof of criminal intent.
2. Subject to the provisions of the Companies Law, including the receipt of
all approvals as required therein or under any applicable law, the Company may
undertake in advance to indemnify an Office Holder of the Company with respect
to the following liabilities and expenses:
(i) Clauses (ii) and (iii) of Section 1 above; and
(ii) Clause (i) of Section 1 above, provided that the undertaking to
indemnify:
(A) is limited to such events which the Company's directors shall deem
to be likely to occur in light of the operations of the Company at the time
that the undertaking to indemnify is made and for such amounts or criteria
which the Company's directors may, at the time of the giving of such
undertaking to indemnify, deem to be reasonable under the circumstances;
and
(B) the undertaking to provide such indemnification shall set forth
such events which the Company's directors shall deem to be likely to occur
in light of the operations of the Company at the time that the undertaking
to indemnify is made, and the amounts and/or criteria which the Company's
directors may, at the time of the giving of such undertaking to indemnify,
deem to be reasonable under the circumstances.
On November 24, 2005, the Company's shareholders approved the entering by
the Company into indemnification agreements with its directors.
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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Herzliya, State of Israel on this 15th day of
February, 2006.
VOCALTEC COMMUNICATIONS LTD.
By: /s/ Joseph Albagli
----------------------
Joseph Albagli
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints each of
Joseph Albagli and Ilan Rosen, and each of them with power of substitution, as
his attorney-in-fact, in all capacities, to sign any amendments to this
Registration Statement (including post-effective amendments) and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-facts or their substitutes may do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Joseph Albagli Chief Executive Officer (Director February 15, 2006
-------------------- and principal executive officer)
Joseph Albagli
/s/ Rafael Weisler Chief Financial Officer (principal February 15, 2006
-------------------- financial and accounting officer)
Rafael Weisler
/s/ Ilan Rosen Chairman of the Board of Directors February 15, 2006
--------------------
Ilan Rosen
/s/ Elon Ganor Director February 15, 2006
--------------------
Elon Ganor
/s/ Michal Even-Chen Director February 15, 2006
--------------------
Michal Even-Chen
/s/ Yoav Chelouche Director February 15, 2006
--------------------
Yoav Chelouche
/s/ Joseph Atsmon Director February 15, 2006
--------------------
Joseph Atsmon
/s/ Robert Wadsworth Director February 15, 2006
--------------------
Robert Wadsworth
AUTHORIZED REPRESENTATIVE IN THE U.S.:
VOCALTEC COMMUNICATIONS INC.
----------------------------
By: /s/ Joseph Albagli
----------------------
Joseph Albagli
President
DATE: February 15, 2006
EXHIBIT INDEX
DESCRIPTION
5.1 Opinion of Meitar Liquornik Geva & Leshem Brandwein, counsel to the
registrant, as to the legality of the securities being offered under this
Registration Statement.
23.1 Consent of Kost Forer Gabbay & Kasierer, Member of Ernst & Young Global.
23.2 Consent of Meitar Liquornik Geva & Leshem Brandwein (included in Exhibit
5.1).
24.1 Power of Attorney (see Page 7 of this Registration Statement).
99.1 VocalTec Communications Ltd. Amended 2003 Master Stock Option Plan.
99.2 Appendix to VocalTec Communications Ltd. Amended 2003 Master Stock Option
Plan - U.S.A. employees.
99.3 Appendix to VocalTec Communications Ltd. Amended 2003 Master Stock Option
Plan - Non-Israeli and Non-U.S. employees and consultants.
99.4 Summary of Tdsoft Ltd.'s Gil Eyal Share Option Plan.
99.5 Tdsoft Ltd.'s Employee Share Option Plan (1997).
99.6 Tdsoft Ltd.'s Employee Share Option Plan (1998).
99.7 Tdsoft Ltd.'s Director Share Option Plan (1999).
99.8 Tdsoft Ltd.'s Employee Share Option Plan (2000).
99.9 Tdsoft Ltd.'s US Employee Share Option Plan (2000).
99.10 Tdsoft Ltd.'s Foreign Employee Share Option Plan (2002).
99.11 Tdsoft Ltd.'s Employee Share Option Plan (2003).