As filed with the Securities and Exchange Commission on December 31, 2009
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ORCKIT COMMUNICATIONS 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 Number)
126 Yigal Allon Street
Tel Aviv 67443,
Israel
(Address of Principal Executive Offices) (Zip Code)
ORCKIT ISRAELI SHARE INCENTIVE PLAN
(Full title of the plan)
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Puglisi & Associates
850 Library Avenue, Suite 204
Newark, Delaware 19711
(Name and address of agent for service)
Tel: 302-738-6680
(Telephone Number, including area code, of agent for service)
Copies of all communications, including all communications sent to
the agent for service, should be sent to:
Neil Gold, Esq. Adam M. Klein, Adv.
Fulbright & Jaworski L.L.P. Goldfarb, Levy, Eran, Meiri, Tzafrir & Co.
666 Fifth Avenue 2 Weizmann Street
New York, New York 10103 Tel Aviv 64239, Israel
Tel: (212) 318-3000 Tel: +972-3-608-9999
Fax: (212) 318-3400 Fax: +972-3-608-9855
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of "large accelerated filer," "accelerated filer"
and "smaller reporting company" in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer: [ ] Accelerated filer: [ ]
Non-accelerated filer: [x] Smaller reporting company: [ ]
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
- -------------------------------------- ------------------ --------------------------- --------------------------- --------------
Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
to be Registered Registered (1) Price Per Share(2) Offering Price Registration Fee
- -------------------------------------- ------------------ -------------------------- --------------------------- ----------------
Ordinary Shares, no 3,220,519 $5.50 $17,712,854 $1,262.93
par value per share
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(1) Represents additional ordinary shares, no par value per share ("Ordinary
Shares"), of Orckit Communications Ltd. (the "Registrant") authorized and
reserved for future grant under the Orckit Israeli Share Incentive Plan, as
amended (the "Plan"). Pursuant to Rule 416(a) promulgated under the Securities
Act of 1933, as amended (the "Securities Act"), this Registration Statement on
Form S-8 shall also cover an additional indeterminate number of Ordinary Shares
which become issuable under the Plan by reason of any future share split, share
dividend, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
outstanding Ordinary Shares.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) under the Securities Act, based upon the average
exercise price of the options.
EXPLANATORY NOTE
This Registration Statement on Form S-8 is filed by the Registrant to register
an additional 3,220,519 Ordinary Shares, issuable to participants in the Plan.
In accordance with General Instruction E of Form S-8, the contents of the
Registrant's Registration Statement on Form S-8 (File No. 333-05670) filed with
the Securities and Exchange Commission (the "Commission") on September 26, 1996,
the Registrant's Registration Statement on Form S-8 (File No. 333-08824) filed
with the Commission on May 26, 1998, the Registrant's Registration Statement on
Form S-8 (File No. 333-12178) filed with the Commission on June 23, 2000 and the
Registrant's Registration Statement on Form S-8 (File No. 333-131991) filed with
the Commission on February 23, 2006, including the exhibits to such registration
statements, are incorporated herein by reference.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents and information filed with the
Commission by the Registrant are incorporated herein by reference:
(a) the Registrant's Annual Report on Form 20-F for the fiscal year
ended December 31, 2008, filed with the Commission on June 23, 2009;
(b) all other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the
document referred to in clause (a) above; and
(c) the description of the Ordinary Shares contained in the
Registrant's Registration Statement on Form 8-A filed with the
Commission on August 27, 1996 and the amendment thereto on
Form 8-A/A filed with the Commission pursuant to Section 12(b)
of the Securities Exchange Act of 1934, as amended, on July 6,
2009, which incorporates by reference the description of the
Ordinary Shares set forth under Item 10.B "Memorandum and Articles
of Association" under the headings "Transfer of Shares
and Notices," "Dividend and Liquidation Rights," "Voting,
Shareholders' Meetings and Resolutions" and "Modification
of Class Rights" in the Registrant's Annual Report on Form 20-F
for the fiscal year ended December 31, 2008, filed with the
Commission on June 23, 2009, including any subsequent amendment or
report filed for the purposes of amending such description.
All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment indicating that all of the
securities offered hereunder have been sold or deregistering all securities then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof (in the case of any Report on Form 6-K, if and to the extent the
Registrant identifies in the Report that it is being incorporated by reference
herein) from the date of filing of such documents. Any statement contained in a
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained herein
or in any subsequently filed document that is also 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 8. EXHIBITS
The following exhibits are filed with or incorporated by reference into
this Registration Statement (numbering corresponds to Exhibit Table in Item 601
of Regulation S-K):
Exhibit
No. Description
4.1 Memorandum of Association, as amended (incorporated by
reference to Orckit Communications Ltd.'s Annual Report on Form
20-F for the fiscal year ended December 31, 2005).
4.2 Sixth Amended and Restated Articles of Association (incorporated
by reference to Orckit Communication Ltd.'s Registration Statement
on Form S-8 (File No. 333-131991)).
4.3 Orckit Israeli Share Incentive Plan, as amended (incorporated
by reference to Orckit Communication Ltd.'s Registration Statement
on Form S-8 (File No. 333-131991)).
5.1* Opinion of Goldfarb, Levy, Eran, Meiri, Tzafrir & Co.
23.1* Consent of Kesselman & Kesselman.
23.2 Consent of Goldfarb, Levy, Eran, Meiri, Tzafrir & Co.
(included in Exhibit 5.1).
24.1 Power of Attorney (included in signature page of this
Registration Statement).
* Filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities Act, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Tel Aviv, Israel on the 30th day of December, 2009.
ORCKIT COMMUNICATIONS LTD.
By:/s/ Izhak Tamir
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Name: Izhak Tamir
Title: Chairman of the Board and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that each person whose
signature appears below constitutes and appoints Izhak Tamir and Eric Paneth, or
either of them, as his or her true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and any
registration statement relating to the offering hereunder pursuant to Rule 462
under the Securities Act and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or either of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/ Eric Paneth Chief Executive Officer and Director December 30, 2009
- ------------------ (principal executive officer)
Eric Paneth
/s/ Izhak Tamir Chairman of the Board and President December 29, 2009
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Izhak Tamir
/s/ Uri Shalom Chief Financial Officer December 30, 2009
- ------------------ (principal financial and
Uri Shalom accounting officer)
/s/ Jed M. Arkin Director December 22, 2009
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Jed M. Arkin
/s/ Yair Shamir Director December 23, 2009
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Yair Shamir
/s/ Moti Motil Director December 29, 2009
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Moti Motil
Director
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Amiram Levinberg
/s/ Moshe Nir Director December 30, 2009
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Moshe Nir
AUTHORIZED REPRESENTATIVE IN THE UNITED STATES:
PUGLISI & ASSOCIATES
By: /s/ Donald J. Puglisi
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Name: Donald J. Puglisi
Title: Managing Director December 22, 2009
INDEX TO EXHIBITS
Exhibit
No. Description
4.1 Memorandum of Association, as amended (incorporated
by reference to Orckit Communications Ltd.'s Annual Report
on Form 20-F for the fiscal year ended December 31, 2005).
4.2 Sixth Amended and Restated Articles of Association
(incorporated by reference to Orckit Communication Ltd.'s
Registration Statement on Form S-8 (File No. 333-131991)).
4.3 Orckit Israeli Share Incentive Plan, as amended
(incorporated by reference to Orckit Communication Ltd.'s
Registration Statement on Form S-8 (File No. 333-131991)).
5.1* Opinion of Goldfarb, Levy, Eran, Meiri, Tzafrir & Co.
23.1* Consent of Kesselman & Kesselman.
23.2 Consent of Goldfarb, Levy, Eran, Meiri, Tzafrir & Co.
(included in Exhibit 5.1).
24.1 Power of Attorney (included in signature page of this
Registration Statement).
* Filed herewith.
Exhibit 5.1
Goldfarb, Levy, Eran, Meiri, Tzafrir & Co.
2 Weizmann Street 64239
Tel Aviv, Israel
December 30, 2009
Orckit Communications Ltd.
126 Yigal Allon Street
Tel Aviv 67443
Israel
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Act"), on behalf
of Orckit Communications Ltd. (the "Company"), relating to an additional
3,220,519 of the Company's ordinary shares, no par value per share (the
"Shares"), issuable under the Orckit Israeli Share Incentive Plan, as amended
(the "Plan").
We are members of the Israel Bar and we express no opinion as
to any matter relating to the laws of any jurisdiction other than the laws of
Israel.
In connection with this opinion, we have examined such
corporate records, other documents, and such questions of Israeli law as we have
considered necessary or appropriate for the purposes of this opinion. In such
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to original
documents of documents submitted to us as certified or photostatic copies, the
authenticity of the originals of such copies and the due constitution of the
Board of Directors of the Company.
Based on the foregoing and subject to the qualifications
stated herein, we advise you that in our opinion, the shares being registered
pursuant to the Registration Statement, when issued in conformance with the
terms and conditions of the Plan, will be duly authorized, validly issued, fully
paid and non-assessable.
We hereby consent to the filing of this opinion as part of the
Registration Statement. This consent is not to be construed as an admission that
we are a person whose consent is required to be filed with the Registration
Statement under the provisions of the Act.
Very truly yours,
/s/ Goldfarb, Levy, Eran, Meiri, Tzafrir & Co.
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Goldfarb, Levy, Eran, Meiri, Tzafrir & Co.
Exhibit 23.1
[GRAPHIC OMITTED]
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Kesselman & Kesselman
Certified Public Accountants
Trade Tower, 25 Hamered Street
Tel Aviv 68125 Israel
P.O Box 452 Tel Aviv 61003
Telephone +972-3-7954555
Facsimile +972-3-7954556
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of Orckit Communications Ltd. of our report
dated June 22, 2009 relating to the consolidated financial statements
and the effectiveness of internal control over financial reporting,
which appears in Orckit Communications Ltd.'s Annual Report on Form 20-F for
the year ended December 31, 2008.
/s/ Kesselman & Kesselman
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Kesselman & Kesselman
Certified Public Accountants (Isr.)
A member of Pricewaterhouse Coopers
International Limited
Tel-Aviv,
December 29, 2009