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As Filed With the Securities and Exchange Commission on February 13, 1998
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
DATUM INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 95-2512237
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
9975 TOLEDO WAY, IRVINE, CALIFORNIA 92718
(Address of Principal Executive Offices) (Zip Code)
1994 STOCK INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plans)
Louis B. Horwitz, President
9975 Toledo Way, Irvine, California 92718
(Name and address of agent for service)
(714) 598-7500
(Telephone number, including area code, of agent for service)
Copy to:
Lawrence C. Cohn, Esq.
Stradling, Yocca, Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum
Title of Securities Amount To Be Offering Aggregate Amount of
To Be Registered Registered (1) Price Per Share Offering Price Registration
(2) Fee
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<S> <C> <C> <C> <C>
Common Stock, $.25
par value 650,000 shares $14.59375 $9,485,937.50 $2,798.35
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</TABLE>
(1) Includes additional shares of Common Stock that may become issuable at
the end of each calendar year and that may become issuable pursuant to
the antidilution adjustment provisions of the 1994 Stock Incentive Plan
(the "1994 Plan") and the Employee Stock Purchase Plan (the "Purchase
Plan"). An aggregate of 750,000 shares of Common Stock issuable under
the 1994 Plan and the Purchase Plan were previously registered on Form
S-8 (Registration No. 33-79772).
(2) The aggregate offering price for the 650,000 shares of Common Stock
registered hereby, which are to be offered to the Registrant's employees
pursuant to the 1994 Plan and the Purchase Plan, is estimated solely for
the purpose of calculating the registration fee, in accordance with Rule
457(h)(1), on the basis of the price of securities of the same class as
determined in accordance with Rule 457(c), using the average of the high
and low prices of the Common Stock of the Registrant on the Nasdaq
National Market System on February 6, 1998, which was $14.59375 per
share.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents are incorporated herein by reference:
(a) The Registrant's Annual Report to Stockholders for the calendar year
ending December 31, 1996.
(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 calendar year covered by the Annual Report referred
to in (a) above.
(c) The description of the Registrant's Common Stock that is contained
in the Registrant's registration statement on Form 8-A filed under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating that description.
All documents subsequently 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 of such securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents, except as to any portion of any future annual
or quarterly report to stockholders or document that is not deemed filed under
such provisions. For the purposes of this registration statement, any statement
in a document incorporated by reference shall be deemed to be modified or
superseded to the extent that a statement contained in this registration
statement modifies or supersedes a statement in such document. 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 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law makes provision for
the indemnification of officers and directors in terms sufficiently broad as to
include indemnification under certain circumstances for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). Article V of the Registrant's Bylaws provides
for indemnification of its officers and directors. In addition, the Company has
entered into separate Indemnification Agreements with certain of its directors
and officers.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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The following are filed as part of this registration statement:
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Number Description
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4.1 1994 Stock Incentive Plan, (incorporated by reference to
Registrant's registration statement on Form S-8
Registration #33-79772).
4.1.1 Amendment to 1994 Stock Incentive Plan, effective March
17, 1995 (incorporated by reference to Form 10-K for the
year ended December 31, 1994).
4.1.2 Second Amendment to 1994 Stock Incentive Plan, effective
June 5, 1997 (incorporated by reference to Registrant's
registration statement on Form S-8 Registration
#33-79772).
4.2 Employee Stock Purchase Plan (incorporated by reference to
Registrant's Proxy Statement for its Annual Meeting of
Stockholders of June 5, 1997, filed with the Commission on
May 1, 1997).
5 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, counsel to the Registrant.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5).
23.2 Consent of Price Waterhouse, independent accountants.
24 Power of Attorney (included on signature page to this
registration statement at page S-1).
Item 9. Undertakings.
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(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 material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such information
in this registration statement.
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such information
in the registration statement.
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by these paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in 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.
II-2
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(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.
(h) 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 Securities and Exchange
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.
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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 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Irvine, State of California, on the 9th day of
February, 1998.
DATUM INC.
By: /s/Louis B. Horwitz
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Louis B. Horwitz, President
POWER OF ATTORNEY
We, the undersigned officers and directors of Datum Inc., do hereby
constitute and appoint Louis B. Horwitz and David A. Young, or either of them,
with full power of substitution, our true and lawful attorneys and agents, to do
any and all acts and things in our name and behalf in our capacities as
directors and officers and to execute any and all instruments for us and in our
names in the capacities indicated below, which said attorneys and agents, or any
of them, may deem necessary or advisable in order to enable said corporation to
comply with the Securities Act of 1933, as amended, and all rules, regulations
and requirements of the Securities and Exchange Commission, in connection with
this registration statement, including specifically, but without limitation,
power and authority to sign for us or any of us in our names and in the
capacities indicated below, any and all amendments (including post-effective
amendments) hereto; and we hereby ratify and confirm all that said attorneys and
agents, or any of them, 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.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Louis B. Horwitz President, Chief Executive February 9, 1998
- -------------------------------- Officer and Director
Louis B. Horwitz (Principal Executive Officer)
/s/ David A. Young Vice President and Chief February 9, 1998
- -------------------------------- Financial Officer
David A. Young (Principal Financial Officer)
/s/ James A. Madsen Controller February 9, 1998
- -------------------------------- (Principal Accounting Officer)
James A. Madsen
/s/ G. Tilton Gardner Director February 9, 1998
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G. Tilton Gardner
/s/ Dan L. McGurk Director February 9, 1998
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Dan L. McGurk
/s/ Edward A. Money Director February 9, 1998
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Edward A. Money
</TABLE>
S-1
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<TABLE>
<S> <C> <C>
/s/ Michael M. Mann Director February 9, 1998
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Michael M. Mann
/s/ R. David Hoover Director February 9, 1998
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R. David Hoover
</TABLE>
S-2
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Sequential
Number Description Page Number
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<S> <C> <C>
4.1 1994 Stock Incentive Plan (incorporated by reference to
Registrant's registration statement on Form S-8 Registration
#33-79772).
4.1.1 Amendment to 1994 Stock Incentive Plan, effective March 17, 1995
(incorporated by reference to Form 10-K for the year ended
December 31, 1994).
4.1.2 Second Amendment to 1994 Stock Incentive Plan, effective June 5,
1997 (incorporated by reference to Registrant's registration
statement on Form S-8 Registration #33-79772).
4.2 Employee Stock Purchase Plan (incorporated by reference to
Registrant's Proxy Statement for its Annual Meeting of
Stockholders of June 5, 1997, filed with the Commission on May 1,
1997).
5 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation, counsel to the Registrant.
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5).
23.2 Consent of Price Waterhouse, independent accountants.
24 Power of Attorney (included on signature page to this
registration statement at page S-1).
</TABLE>
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EXHIBIT 5
STRADLING YOCCA CARLSON & RAUTH
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
660 NEWPORT CENTER DRIVE, SUITE 1600
NEWPORT BEACH, CALIFORNIA 92660-6441
TELEPHONE (714) 725-4000
FACSIMILE (714) 725-4100
SAN FRANCISCO OFFICE
44 MONTGOMERY STREET,
SUITE 2950
SAN FRANCISCO,
CALIFORNIA 94104
TELEPHONE
(415) 765-9180
FACSIMILE
(415) 765-9187
February 13, 1998
Datum Inc.
9975 Toledo Way
Irvine, California 92718
RE: Registration Statement on Form S-8 (Employee Stock Purchase Plan
and 1994 Stock Incentive Plan)
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8 (the "Registration Statement") being filed by Datum Inc., a Delaware
corporation (the "Company"), with the Securities and Exchange Commission in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 650,000 shares of the Company's common stock, $.25 par value
("Common Stock"), issuable under the Company's Employee Stock Purchase Plan and
the 1994 Stock Incentive Plan (the "Plans").
We have examined the proceedings heretofore taken and are familiar with
the additional proceedings proposed to be taken by the Company in connection
with the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that:
1. stock options, when issued in accordance with the Plans, will be
legally issued and binding obligations of the Company; and
2. 650,000 shares of Common Stock, when issued under the Plans and
against full payment therefor in accordance with the respective terms and
conditions of the Plans, will be legally and validly issued, fully paid and
nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
STRADLING YOCCA CARLSON & RAUTH
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
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We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 17, 1997 appearing on page
F-1 of Datum Inc.'s Annual Report on Form 10-K for the year ended December 31,
1996.
PRICE WATERHOUSE LLP
Costa Mesa, California
February 6, 1998
