SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ALYDAAR SOFTWARE CORPORATION
(Exact name of registrant as specified in its charter)
North Carolina 87-0399301
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
2101 Rexford Road, Suite 250 West, Charlotte, North Carolina 28211
(Address of Principal Offices) (Zip Code)
THE 1997 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Richard Blumberg, Esq., McLaughlin & Stern, LLP
260 Madison Avenue, New York, NY 10016
212-448-1100
(Address and telephone number of agent for service)
This Registration Statement shall become effective immediately upon filing with
the Securities and Exchange Commission, and sales of the securities herein begun
as soon as practicable after such effective date.
<TABLE>
Calculation of Registration Fee
<CAPTION>
Proposed Proposed
Title of maximum maximum Amount of
securities to be Amount to be offering price aggregate offering registration
registered registered per unit price fee
<S> <C> <C> <C> <C> <C>
Common Stock 200,000 shares 1 $14.06 $2,812,500 $830.00 2
par value
$.001 per share
<FN>
1 This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1997 Employee Stock Purchase Plan
by reason of any stock dividend, stock split, recapitalization or any other
similar transaction without receipt of consideration which results in an
increase in the number of outstanding shares of Common Stock of Alydaar Software
Corporation.
2 Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as Amended, on the basis of 100% of the average of
the high and low prices reported on the NASDAQ National Market System on June
10, 1998.
</FN>
</TABLE>
<PAGE>
PART II
Information Required in the Registration Statement
Item 3 - Incorporation of Certain Documents by Reference
(1) Alydaar Software Corporation (the "Registrant") hereby incorporates
by reference into this Registration Statement, pursuant to General Instruction
"E" to Form S-8 the contents of the Registration Statement filed with the
Securities and Exchange Commission (the "Commission") on Form 10 (File No.
0-22325) pursuant to Section 12(b) or (g) of the Securities Exchange Act of 1934
(the "Exchange Act") , which contains a description of the Registrant's Common
Stock.
(2) The Registrant's Annual Report on From 10-K for the year ended December
31, 1997.
(3) The Registrant's Quarterly Reports on Form 10-Q for the quarter
ended March 31, 1998, as filed with the Commission on May 15, 1998.
(4) The Registrant's Report on Form 8-K as filed with the Commission on
May 28, 1998.
(5) All documents filed by the Registrant 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 securities offered have been sold or which
deregisters all securities 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.
Item 4 - Description of Securities
Not Applicable
Item 5 - Interests of Financial Experts and Counsel
Not Applicable
Item 6 - Indemnification of Directors and Officers
Reference is made to the North Carolina Business Corporation Act, G.S.
55-8-52 and 55-8-56, which provides that a North Carolina corporation must
indemnify a director or officer, who has been wholly successful on the merits or
otherwise, in the defense of any actual or threatened proceeding to which he was
or was threatened to be made a party because he is or was a director or officer
of the Corporation. This statutory right of indemnification covers all
reasonable expenses incurred by the officer or director in connection with the
provision, including counsel fees.
1
<PAGE>
A North Carolina corporation can eliminate an individual's statutory
right to indemnification. However, the Company's By-Laws provide that directors
and officers shall have the right to be indemnified "to the fullest extent
permitted by law" and further provide that expenses incurred by an officer or
director may be paid in advance of the final disposition of any investigation,
action, suit or proceeding, but in the case of a current director or officer,
only upon receipt of an undertaking by or on behalf of that director or officer
to repay such amount, unless it shall ultimately be determined that he is
entitled to be indemnified by the Company under the laws of the State of North
Carolina.
In addition, a North Carolina corporation may, but is not required to,
indemnify a director or officer against liability who has been named or
threatened to be named a party to a proceeding because he is or was acting in
that capacity if the officer or director (i) conducted himself in good faith,
(ii) had the reasonable belief that it was in the corporation's best interest if
he was acting in his official capacity, or if not acting in an official
capacity, a reasonable belief that his conduct was not opposed to the
corporation's best interest and (iii) had no reasonable cause to believe his
conduct was unlawful, in the case of criminal proceedings. With respect to
management and administration of The 1997 Employee Stock Purchase Plan (the
"Plan"), the director or officer would satisfy the "reasonable belief"
requirement, set forth in (ii) above, if he reasonably believed he was acting in
the best interests of the participants and beneficiaries of the Plan. A North
Carolina corporation may also purchase and maintain insurance on behalf of the
officer or director against liability incurred by him in that capacity whether
or not the corporation would have the power to indemnify him under the statutory
provisions of North Carolina.
Item 7 - Exemption From Registration Claimed
Not Applicable
Item 8 - Exhibits
3.1(a) Articles of Incorporation of Daar Inc.*
3.1(b) Articles of Merger of Alydaar Software Corporation into Daar, Inc.*
3.1(c) Plan of Merger*
3.2 Amended and Restated By-Laws of Alydaar Software Corporation*
5.1 Opinion of McLaughlin & Stern, LLP (1)
10.6 Amended 1997 Employee Stock Purchase Plan*
10.7 Amendment to The 1997 Employee Stock Purchase Plan (1)
23.1 Consent of Holtz, Rubenstein & Co., LLP (1)
23.2 Consent of McLaughlin & Stern (included in, and incorporated by
Exhibit 5.1 hereto) (1)
* Previously filed with Form 10.
(1) Filed herewith.
Item 9 - Undertakings
The Registrant hereby undertakes:
2
<PAGE>
(1) To file, during any period which offers or sales are being made, a
post-effective amendment to this Registration Statement to include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended, 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 hereby which remain unsold at the
termination of the offering.
(4) 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 provision, or otherwise, the
Registrant has been advised that in the opinion of the Commission, 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 the 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.
3
<PAGE>
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
the requirements for filing on Form S-8 and has duly cause this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, State of North Carolina, on the 12th day
of June, 1998.
ALYDAAR SOFTWARE CORPORATION
By:/s/ Robert F. Gruder
Robert F. Gruder, Chief Executive Officer,
President and Chairman of the Board
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Robert F. Gruder and V. Hollis Scott his or her true and lawful attorney-in-fact
and agent, 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 to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might, or could, do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, 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 in the
capacities and on the date indicated:
Signature Title Date
- --------- ----- ----
/s/ Robert F. Gruder Chief Executive Officer, President June 12, 1998
Robert F. Gruder and Chairman of the Board
/s/ V. Hollis Scott Chief Financial Officer, Secretary June 12, 1998
V. Hollis Scott and Director
/s/ Thomas J. Dudchik Senior Vice President and Director June 12, 1998
Thomas J. Dudchik
/s/ J. Alex McMillan Director June 12, 1998
J. Alex McMillan
/s/ John McCarthy Director June 12, 1998
John McCarthy
<PAGE>
Index to Exhibits Filed Herewith
5.1 Opinion of McLaughlin & Stern, LLP
23.1 Consent of Holtz, Rubenstein & Co., LLP
23.2 Consent of McLaughlin & Stern (included in, and incorporated by Exhibit
5.1 hereto)
Exhibit 5.1
MCLAUGHLIN & STERN, LLP
260 MADISON AVENUE
18TH FLOOR
NEW YORK, NEW YORK 10016
(212) 448-1100
FAX (212) 448-0066
Richard J. Blumberg
Direct Phone: (212) 448-6205
New Jersey Office Millbrook Office
411 Hackensack Avenue Franklin Avenue
Hackensack, New Jersey 07601 P.O. Box 1369
(201) 488-1105 Millbrook, New York 12545
Fax (201) 488-3679 (914) 677-5700
Fax (914) 677-0097
June 12, 1998
United States Securities & Exchange Commission
450 Fifth Street NW
Washington, DC 20549
Re: Alydaar Software Corporation
Gentlepersons:
Reference is made to the Registration Statement on Form S-8
(the "Registration Statement"), filed with the Securities and Exchange
Commission by Alydaar Software Corporation (the "Company") covering the
registration of 200,000 shares of the Company's Common Stock to be issued
pursuant to The 1997 Employee Stock Purchase Plan (the "Plan").
We hereby advise you that we have examined originals or copies
certified to our satisfaction of the Certificate of Incorporation and amendments
thereto and the By-Laws of the Company, minutes of meetings of the Board of
Directors and Shareholders and such other documents and instruments, and we have
made such examination of law as we deemed appropriate as to the basis for the
opinions hereinafter expressed. We express no opinion with respect to any
matters as they may impinge upon laws of the State of North Carolina, the
Company's state of incorporation.
Based on the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of North Carolina.
2. The 200,000 shares of Common Stock (the subject of this
Registration Statement) to be issued pursuant to the Plan will, upon issuance to
the persons entitled to participate in the Plan and the payment of the
consideration required under the terms of the Plan, be validly issued, fully
paid and non-assessable.
In addition, we hereby consent to the reference to this Firm
into this Registration Statement and to the filing of this opinion as an Exhibit
to this Registration Statement.
Very truly yours,
/s/ McLaughlin & Stern, LLP
MCLAUGHLIN & STERN, LLP
RJB:ww
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference into the Registration
Statement on Form S-8 our report dated March 6, 1998 with respect to the
consolidated financial statements of Alydaar Software Corporation and Subsidiary
included in the Annual Report (Form 10-K) for the year ended December 31, 1997.
/s/ Holtz Rubenstein & Co., LLP
HOLTZ RUBENSTEIN & CO., LLP
Melville, New York
June 15, 1998
Exhibit 23.2
Included in, and incorporated by Exhibit 5.1 hereto
