S-8 1 d27830_s-8.txt FORM S-8 As filed with the Securities and Exchange Commission on February ___, 2002 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------- DATA SYSTEMS & SOFTWARE INC. (Exact name of registrant as specified in its charter) DELAWARE 22-2786081 (State of (I.R.S. Employer incorporation) Identification No.) 200 ROUTE 17 MAHWAH, NJ 07430 (201) 529-2026 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) ------------- Data Systems & Software Inc. 1994 Stock Incentive Plan (Full title of the plan) ------------- GEORGE MORGENSTERN DATA SYSTEMS & SOFTWARE INC. 200 ROUTE 17 MAHWAH, NEW JERSEY 07430 (Name, address, including zip code, and telephone number, including area code, of agent for service) COPIES TO: SHELDON KRAUSE, ESQ. EHRENREICH EILENBERG & KRAUSE LLP 11 EAST 44TH STREET NEW YORK, NEW YORK 10017 (212) 986-9700 ------------- CALCULATION OF REGISTRATION FEE
=================================================================================================================== Proposed Maximum Proposed Maximum Amount of Title of Amount to be Offering Price Aggregate Registration Securities to be Registered Registered Per Share Offering Price Fee =================================================================================================================== Common Stock, par value $.01 per share 250,000(1), (2) $5.45(3) $1,362,500 $325.64 ------------------------------------------------------------------------------------------------------------------- Total: 250,000 -- $1,362,500 $325.64 ===================================================================================================================
(1) Pursuant to Instruction E of Form S-8, we are filing this Registration Statement to register additional shares of our common stock issuable in the future pursuant to options and other awards that may be hereafter granted under our 1994 Stock Incentive Plan, for which we previously filed a Registration Statement with the Securities and Exchange Commission on October 16, 1998 (Registration No. 333-65799). (2) Represents shares that may be issued pursuant to restricted stock awards or upon the exercise of options that may hereafter be granted pursuant to our 1994 Stock Incentive Plan. Pursuant to Rule 416 of the Securities Act of 1933, this Registration Statement also registers an indeterminate number of additional shares of our common stock that may become issuable pursuant to provisions of our 1994 Stock Incentive Plan relating to adjustments for recapitalization, stock dividends, etc. (3) Calculated solely for the purpose of determining the registration fee pursuant to Rules 457(c) and 457(h)(1) based upon the average of the high and low sales price of our common stock, as quoted through NASDAQ National Market, on February 5, 2002. EXPLANATORY NOTE We are filing this registration statement in accordance with Instruction E to Form S-8 to register additional shares of our common stock that may be issuable pursuant to future grants of options and other awards under our 1994 Stock Incentive Plan, for which we previously filed a registration statement with the Securities and Exchange Commission on October 16, 1998 (Registration No. 333-65799). The contents of our 1998 registration statement, Registration No. 333-65799, are incorporated by reference into this registration statement. This Registration Statement contains the following: o Required opinions and consents; o Any information required by Form S-8 that was not required in our October 1998 registration statement; and o A revised reoffer prospectus (filed as an exhibit). As permitted by the rules of the Securities and Exchange Commission, this Registration Statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the plan as required by Rule 428(b) promulgated under the Securities Act of 1933, as amended. Such documents are not being filed with the Securities and Exchange Commission as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of such Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed with the Securities and Exchange Commission (the "Commission") by the Registrant, Data Systems & Software Inc., a Delaware corporation (the "Company"), pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by reference in this registration statement: (1) Our Annual Report on Form 10-K for the fiscal year ended December 31, 2000 filed on April 2, 2001, as amended by Amendment No. 1 on Form 10-K/A filed on April 30, 2001 and amended by Amendment No. 2 on Form 10-K/A filed on May 15, 2001. (2) Our Quarterly Report on Form 10-Q for the three months ended March 31, 2001, filed on May 15, 2001. (3) Our Quarterly Report on Form 10-Q for the three and six months ended June 30, 2001, filed on August 7, 2001. (4) Our Quarterly Report on Form 10-Q for the three and nine months ended September 30, 2001, filed on November 14, 2001; (5) Our Current Report on Form 8-K dated October 31, 2001, filed on November 2, 2001; (6) Our Current Report on Form 8-K dated December 13, 2001, filed on December 28, 2001; (7) The description of the Company's common stock contained in our Registration Statement on Form 8-A, declared effective by the SEC on February 11, 1992, which was filed pursuant to Section 12 of the Exchange Act, and any amendment or report filed for the purpose of updating such description; and (8) The description of our Common Stock Purchase Rights contained in our Registration Statement on Form 8-A, dated March 22, 1996, which was filed pursuant to Section 12 of the Exchange Act, and any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all shares offered hereby have been sold or which deregisters all then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. II-1 Item 8. Exhibits. Exhibit No. Description of Exhibit ----------- ---------------------- 5.1 Opinion of Ehrenreich Eilenberg & Krause LLP. 23.1 Consent of KPMG LLP. 23.2 Consent of Deloitte & Touche LLP. 23.3 Consent of Ehrenreich Eilenberg & Krause LLP (included in Exhibit 5.1 hereto). 24.1 Powers of Attorney (included on the signature page of this Registration Statement). 99.1 Reoffer Prospectus on Part I of Form S-3. II-2 SIGNATURE Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Mahwah, State of New Jersey, on January 31, 2002. DATA SYSTEMS & SOFTWARE INC. By: s/George Morgenstern ------------------------------- George Morgenstern Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below hereby constitutes and appoints George Morgenstern and Sheldon Krause, and each of them, his true and lawful attorneys-in-fact and agents, with power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying all that said attorneys-in-fact and agents or his substitute or substitutes, or any of them, may lawfully 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 on behalf of the Registrant, in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- s/George Morgenstern Chairman of the Board; President; --------------------------------- George Morgenstern Chief Executive Officer; Director January 31, 2002 s/Yacov Kaufman Vice President; Chief Financial January 31, 2002 --------------------------------- Yacov Kaufman Officer; Principal Financial Officer; Principal Accounting Officer s/Robert L. Kuhn Director January 31, 2002 --------------------------------- Robert L. Kuhn
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Signature Title Date --------- ----- ---- s/Allen I. Schiff Director January 31, 2002 --------------------------------- Allen I. Schiff Director January 31, 2002 --------------------------------- Maxwell M. Rabb s/Shlomie Morgenstern Director January 31, 2002 --------------------------------- Shlomie Morgenstern s/Sheldon Krause Director January 31, 2002 --------------------------------- Sheldon Krause s/Howard Gutzmer Director January 31, 2002 --------------------------------- Howard Gutzmer s/Susan Malley Director January 31, 2002 --------------------------------- Susan Malley
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