<PAGE>
As filed with the Securities and Exchange Commission on October 16, 1998
Registration No. 33-
================================================================================
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
- --------------------------------------------------------------------------------
(State or Other Jurisdiction of Incorporation or Organization)
7371
- --------------------------------------------------------------------------------
(Primary Standard Industrial Classification Number)
22-2786081
- --------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
200 ROUTE 17, MAHWAH, NEW JERSEY 07430
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
DATA SYSTEMS & SOFTWARE INC.
1994 STOCK INCENTIVE PLAN
- --------------------------------------------------------------------------------
(Full Title of The Plan)
GEORGE MORGENSTERN
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
200 ROUTE 17, MAHWAH, NEW JERSEY, 07430
- --------------------------------------------------------------------------------
(Name and Address of Agent For Service)
201-529-2026
- --------------------------------------------------------------------------------
(Telephone Number, Including Area Code, of Agent For Service)
A copy of all communications, including communications sent to the
agent for service, should be sent to:
SHELDON KRAUSE, ESQ.
EHRENREICH EILENBERG KRAUSE & ZIVIAN LLP
11 EAST 44TH STREET
NEW YORK, N.Y. 10017
(212) 302-8050
--------------------
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF OFFERING PRICE AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED AMOUNT TO BE REGISTERED PER SHARE OFFERING PRICE FEE
- --------------------------------------- ------------------------ ----------------- -------------------- ---------------
<S> <C> <C> <C> <C>
COMMON STOCK, PAR VALUE $.01 PER SHARE 1,230,000(1) $6.13(2) $7,543,750 ---
- --------------------------------------- ------------------------ ----------------- -------------------- ---------------
COMMON STOCK, PAR VALUE $.01 PER SHARE 120,000 SHARES(3) $1.79(4) $214,800 ---
- --------------------------------------- ------------------------ ----------------- -------------------- ---------------
COMMON STOCK, PAR VALUE $.01 PER SHARE 50,000 SHARES(5) $2.75 $137,500 ---
- --------------------------------------- ------------------------ ----------------- -------------------- ---------------
TOTAL: 1,400,000 --- $7,896,050 $2,289.85
======================================= ======================== ================= ==================== ===============
</TABLE>
(1) Represents shares that have been issued pursuant to a restricted stock
awards or may hereafter be issued upon exercise of options that have
heretofore been granted pursuant to the 1994 Stock Incentive Plan of the
Registrant (the "Plan").This Registration Statement also registers an
indeterminate number of shares of Common Stock which may become issuable
pursuant to provisions of the Plan relating to adjustments for
recapitalization, stock dividends, etc.
(2) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(h)(1) based upon the weighted average exercise price
of the outstanding options.
(3) Represents shares that may hereafter be issued pursuant to awards under the
Plan.
(4) 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 the Company's Common Stock, as quoted through NASDAQ
National Market, on October 13, 1998.
(5) Represents shares issued pursuant to a written agreement between Sanford L.
Kane, a former executive officer of the Company, and the Company relating
to amounts payable to Mr. Kane in connection with his employment with the
Company.
2
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
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.
The prospectus that is being filed with this Registration Statement has
been prepared in accordance with the requirements of General Instruction C to
Form S-8 and Part I of Form S-3, and may be used for reofferings of Common
Stock now owned or to be acquired by persons named therein pursuant to the
Registrant's 1994 Stock Incentive Plan.
<PAGE>
PROSPECTUS
1,350,000 Shares
DATA SYSTEMS & SOFTWARE, INC.
COMMON STOCK
This prospectus relates to up to 1,350,000 shares of Common Stock of Data
Systems & Software Inc. that may from time to time be sold by one or more of the
selling stockholders identified in this prospectus or in a supplement to this
prospectus. All of these shares are either (1) issued and outstanding shares
which have been issued pursuant to restricted stock awards pursuant to the
Company's 1994 Stock Incentive Plan or (2) authorized and unissued shares of
Common Stock that may be acquired by selling stockholders pursuant to the plan.
The Company will not receive any of the proceeds from the sales of these shares
by the selling stockholders. However, the Company will receive the proceeds
from any exercise of stock options granted or to be granted pursuant to the
plan.
From time to time, for their own accounts, selling stockholders may sell
shares directly to purchasers or through agents, brokers, dealers or
underwriters. Such agents, brokers, dealers or underwriters may receive
concessions or commissions that exceed customary commissions from the selling
stockholders or purchasers of the shares. Sales of the shares may be made in
one or more transactions through the Nasdaq Stock Market, in the
over-the-counter market, in privately negotiated transactions or otherwise.
Sales may be made at the market price at the time of sale, a price related to
the market price or a negotiated price.
Any brokers, dealers or agents that participate in the distribution of the
shares may be deemed to be underwriters and any commissions received by them and
any profit on the resale of such shares positioned by them might be deemed to be
underwriting discounts and commissions under the Securities Act of 1933.
The Company will pay all costs and expenses incurred by it in connection
with the registration of the shares under the Securities Act of 1933. The
Selling Stockholders will pay the costs associated with any sale of shares,
including any discounts, commissions and applicable transfer taxes.
----------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
----------------------------
October 16, 1998.
<PAGE>
Data Systems & Software Inc. was incorporated in the State of Delaware in
1986. Its executive offices are located at 200 Route 17, Mahwah, New Jersey
07430, and its telephone number is (201) 529-2026.
You should rely only on the information contained in this document or
documents incorporated by reference. The Company has not authorized anyone to
provide you with information that is different. This prospectus relates only to
the registered shares described in this prospectus. This document does not
constitute an offer to sell or a solicitation of an offer to buy any other
securities nor an offer of any securities in any jurisdiction to any person
where such an offer would be unlawful. Any information about the affairs of the
Company is current as of the date of this prospectus and could change in the
future.
AVAILABLE INFORMATION
The Company files reports, proxy statements and other information with
the Securities and Exchange Commission as required by the Securities Exchange
Act of 1934. You can obtain copies of these documents at the public reference
facilities maintained by the commission at 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the regional offices of the commission at Seven World Trade
Center, 13th Floor, New York, New York 10048 and 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. This material is also available
electronically through the Web site maintained by the Commission at
http//www.sec.gov.
The Company has registered the shares offered by this prospectus under the
Securities Act of 1933, as amended, by filing a Registration Statement on Form
S-8 with the Securities and Exchange Commission. This prospectus does not
contain all the information set forth in the Registration Statement and its
exhibits. Additional information about the Company and the shares is contained
in the Registration Statement and its exhibits. These documents are also
available through the sources described above.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission are incorporated into
this prospectus by reference:
(1) The Company's Annual Report on Form 10-K for the year ended December
31, 1997, as amended to date.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998, as amended to date.
(3) The Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1998.
(4) The Company's Report on Form 8-K dated February 9, 1998.
(5) The Company's Report on Form 8-K dated February 17, 1998.
(6) The Company's Report on Form 8-K dated April 10, 1998, as amended.
(7) The Company's Current Report on Form 8-K dated October 2, 1998.
(8) The description of the Common Stock set forth in the Company's
Registration Statement on Form 8-A, declared effective by the
Commission on February 11, 1992, and any amendment or report filed for
the purpose of updating such description.
(9) The description of the Company's Stock Purchase Rights as set forth in
the Company's Registration Statement on Form 8-A, dated March 22,
1996, and any amendment or report filed for the purpose of updating
such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this prospectus and before the
termination of the offering made by this prospectus shall be deemed to be
incorporated by reference in this prospectus and to be a part of it from the
date of the filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this prospectus shall
be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained in this prospectus or in any
other later filed document which also is incorporated or deemed to be
incorporated by reference in this prospectus 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.
You may request a copy of any of the documents incorporated by reference
(excluding exhibits, unless such exhibits are specifically incorporated by
reference into the documents that this prospectus incorporates). Written or
oral requests for copies of such documents should be directed to the Company,
200 Route 17, Mahwah, New Jersey 07430, Attention: Secretary, telephone (201)
529-2026.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the shares by
the selling stockholders. The Company may, in the future, receive proceeds
from the exercise of the options described in this prospectus, but only in an
amount equal to the exercise price thereof multiplied by the number of options
exercised.
3
<PAGE>
SELLING STOCKHOLDERS
The persons that may offer Shares pursuant to this prospectus (the "Selling
Stockholders") are persons who have been granted, or may be granted, options
under the Company's 1994 Stock Incentive Plan (the "Plan") or shares of
restricted stock. All of the 1,350,000 shares of Common Stock of the Company
offered by this prospectus are being offered for the account of the Selling
Stockholders. All of these shares have been or may be acquired by Selling
Stockholders pursuant to the Plan as restricted stock or upon the exercise of
options that have been granted or may be granted.
Based upon information currently available to the Company, the following
table sets forth for each person named below, as of September 30, 1998 (i) such
person's current position with the Company, (ii) the aggregate number of shares
of Common Stock issued to such person pursuant to restricted stock awards under
the Plan (such shares being referred to as "Restricted Shares"), (iii) the
aggregate number of shares of Common Stock underlying unexercised options
granted to such person (such shares being referred to as "Underlying Shares")
and (iv) the aggregate number of issued and outstanding shares of Common Stock
owned by such person, including Restricted Shares (such shares being referred to
as "Shares Owned"). The Company may, from time to time, amend this table (by
means of a supplement to this prospectus) in order to (a) name additional
officers and directors as Selling Stockholders and/or (b) reflect changes in the
aggregate number of shares of Common Stock underlying unexercised options
granted to named persons as a result of the granting of additional options under
the Plan.
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF SHARES
RESTRICTED SHARES UNDERLYING NUMBER OF
NAME ISSUED PURSUANT TO PLAN PLAN OPTIONS SHARES OWNED*
- ---- ----------------------- ---------------- -------------
<S> <C> <C> <C>
Samuel Fogel, -- 200,000 297,403
DIRECTOR AND EXECUTIVE
VICE PRESIDENT
Yacov Kaufman, -- 45,000 41,667
VICE PRESIDENT AND
CHIEF FINANCIAL OFFICER
Robert L. Kuhn, -- 290,000 442,849
DIRECTOR AND VICE
CHAIRMAN OF THE BOARD
George Morgenstern, 255,000 440,000 711,489
DIRECTOR, CHAIRMAN OF
THE BOARD, PRESIDENT
AND CHIEF EXECUTIVE
OFFICER
</TABLE>
* For purposes of this table, a person is deemed to have beneficial
ownership of any shares as of a given date which such person has the right to
acquire within 60 days after such date.
This prospectus covers the sale by the Selling Stockholders identified in
the table above, as it may be amended from time to time by a prospectus
supplement, of any or all (i) Restricted Shares
4
<PAGE>
which are currently held or may be issued under the Plan or (ii)Underlying
Shares that may be acquired upon the exercise of options which are currently
held or may be granted under the Plan.
PLAN OF DISTRIBUTION
The Selling Stockholders are offering the Shares for their own account, and
not for the account of the Company. The Company will not receive any proceeds
from the sale of the Shares by the Selling Stockholders. See "Use of Proceeds."
From time to time, selling stockholders may sell shares directly to
purchasers or through agents, brokers, dealers or underwriters, who may be
compensated by concessions or commissions from the selling stockholders or
purchasers of the shares. This compensation may exceed customary commissions.
Sales of the shares may be made in one or more transactions through the Nasdaq
Stock Market, otherwise in the over-the-counter market, in privately negotiated
transactions or otherwise. Sales may be made at the market price at the time of
sale, a price related to the market price or a negotiated price.
Under the Exchange Act and the regulations thereunder, any person engaged
in a distribution of the shares of Common Stock of the Company offered by this
prospectus may not simultaneously engage in market making activities with
respect to the Common Stock of the Company during the applicable "cooling off"
periods prior to the commencement of such distribution. In addition, and
without limiting the foregoing, each Selling Stockholder will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder including, without limitation, Rules 10b-6 and 10b-7, which
provisions may limit the timing of purchases and sales of Common Stock by the
Selling Stockholder.
To the extent required, the Company will use its best efforts to file,
during any period in which offers or sales are being made, one or more
supplements to this prospectus to describe any material information with respect
to the plan of distribution not previously disclosed in this prospectus or any
material change to such information in this prospectus.
VALIDITY OF COMMON STOCK
The validity of the shares of Common Stock that may be offered by this
prospectus has been passed upon for the Company by Ehrenreich Eilenberg Krause &
Zivian LLP, 11 East 44th Street, New York, New York 10017. Sheldon Krause, a
partner in Ehrenreich Eilenberg Krause & Zivian LLP, is a member of the Board of
Directors of the Company and a member of its Audit and Stock Option and
Compensation Committees. Mr. Krause is also the son-in-law of George
Morgenstern, a selling stockholder and Chairman of the Board, President and
Chief Executive Officer of the Company.
5
<PAGE>
EXPERTS
The financial statements of the Company incorporated in this prospectus
by reference to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, as amended, have been examined by Deloitte & Touche
LLP and Igal Brightman & Co. (a member of Deloitte Touche Tohmatsu),
independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said firms
as experts in accounting and auditing in giving said report.
6
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN 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) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997, as amended by Amendment No. 1 thereto on Form
10-K/A.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998, as amended to date.
(3) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998.
(4) The Company's Report on Form 8-K dated February 9, 1998.
(5) The Company's Report on Form 8-K dated February 17, 1998.
(6) The Company's Report on Form 8-K dated April 10, 1998, as
amended.
(7) The Company's Current Report on Form 8-K dated October 2, 1998.
(8) The description of the Common Stock set forth in the Company's
Registration Statement on Form 8-A, declared effective by the
Commission on February 11, 1992, and any amendment or report
filed for the purpose of updating such description.
(9) The description of the Company's Common Stock Purchase Rights as
set forth in the Company's Registration Statement on Form 8-A
dated March 22, 1996, 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 of Common Stock offered
hereby have been sold or which deregisters all shares 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
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock registered by this
registration statement has been passed upon for the Company by Ehrenreich
Eilenberg Krause & Zivian LLP, 11 East 44th Street, New York, New York 10017.
Sheldon Krause, a partner in Ehrenreich Eilenberg Krause & Zivian LLP, is a
member of the Board of Directors of the Company, a member of its Audit and Stock
Option and Compensation Committees. Mr. Krause is also the son-in-law of George
Morgenstern, a selling stockholder and Chairman of the Board, President and
Chief Executive Officer of the Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Certificate of Incorporation and the By-Laws of the Company
provide that the Company shall indemnify its officers, directors and certain
others to the fullest extent permitted by the Delaware General Corporation Law
("DGCL"). Section 145 of the DGCL provides that the Company, as a Delaware
corporation, is empowered by Section 145 of the DGCL, subject to the procedures
and limitations stated therein, to indemnify any person against expenses
(including attorney's fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with any threatened,
pending or completed action, suit or proceeding (including a derivative action)
in which such person is made a party by reason of his being or having been a
director, officer, employee or agent of the Company (each, an "Indemnitee");
provided that the right of an Indemnitee to receive indemnification is subject
to the following limitations: (i) an Indemnitee is not entitled to
indemnification unless he acted in good faith and in a manner that he reasonably
believed to be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
such conduct was unlawful and (ii) in the case of a derivative action, an
Indemnitee is not entitled to indemnification in the event that he is judged to
be liable to the Company (unless and only to the extent that the court
determines that the Indemnitee is fairly and reasonably entitled to
indemnification for such expenses as the court deems proper). The statute
provides that indemnification pursuant to its provisions is not exclusive of
other rights of indemnification to which a person may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors, or
otherwise.
Pursuant to Section 145 of the DGCL, the Company has purchased
insurance on behalf of its present and former directors and officers against any
liability asserted against or incurred by them in such capacity or arising out
of their status as such.
In accordance with Section 102(b)(7) of the DGCL, the Certificate of
Incorporation of the Company eliminates the personal liability of the Company's
directors to the Company or its stockholders for monetary damages for breach of
their fiduciary duties as a director, with certain limited exceptions set forth
in said Section 102(b)(7).
II-2
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT NO. DESCRIPTION OF EXHIBIT
- ----------- ----------------------
4.1 Certificate of Incorporation of the Registrant, with amendments
thereto (incorporated herein by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1 (File No.
33-70482), as amended).
4.2 By-Laws of the Registrant (incorporated herein by reference to
Exhibit 3.2 to the Registrant's Registration Statement on Form
S-1 (File No. 33-44027), as amended).
4.3 Amendments to the By-laws of the Registrant adopted December 27,
1994 (incorporated by reference to Exhibit 3.3 of the
Registrant's Current Report on Form 8-K dated January 10, 1995).
5.1 Opinion of Ehrenreich Eilenberg Krause & Zivian LLP.
24.1 Consent of Ehrenreich Eilenberg Krause & Zivian LLP (included in
Exhibit 5.1 hereto).
24.2 Consent of Deloitte & Touche LLP.
24.3 Consent of Igal Brightman & Co.
25.1 Powers of Attorney (included on the signature page of this
Registration Statement).
ITEM 9. REQUIRED UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a)(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 prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the 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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed
II-3
<PAGE>
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(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) of this section do
not apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the foregoing provision, 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 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 Act and will
be governed by the final adjudication of such issue.
II-4
<PAGE>
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 October 15, 1998.
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, Robert L. Kuhn 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; October 15, 1998
George Morgenstern Director; Chief Executive Officer
/s/ Yacov Kaufman
- --------------------------- Vice President; Chief Financial October 15, 1998
Yacov Kaufman Officer; Principal Financial
Officer; Principal Accounting
Officer
/s/ Robert L. Kuhn
- --------------------------- Director October 15, 1998
Robert L. Kuhn
/s/ Allen I. Schiff
- --------------------------- Director October 15, 1998
Allen I. Schiff
II-5
<PAGE>
/s/ Maxwell M. Rabb
- --------------------------- Director October 15, 1998
Maxwell M. Rabb
/s/ Samuel Fogel
- --------------------------- Director October 15, 1998
Samuel Fogel
/s/ Sheldon Krause
- --------------------------- Director October 15, 1998
Sheldon Krause
/s/ Harvey Eisenberger
- --------------------------- Director October 15, 1998
Harvey Eisenberger
/s/ Susan Malley
- --------------------------- Director October 15, 1998
Susan Malley
II-6
<PAGE>
Exhibit 5.1
October 15, 1998
Data Systems & Software Inc.
200 Route 17
Mahwah, NJ 07430
Re: Data Systems & Software Inc.
----------------------------
Dear Sirs:
We have acted as counsel for Data Systems & Software Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") being filed by the Company under the
Securities Act of 1933 for the purpose of registering 1,350,000 shares of its
Common Stock, par value $.01 per share (the "1994 Plan Shares"), that have been
issued or may be issued pursuant to the Company's 1994 Stock Option Plan
referred to in the Registration Statement (the "Plan") and 50,000 of its Common
Stock (the "Kane Shares") issuable pursuant to a written agreement (the "Kane
Agreement") with Sanford L. Kane, a former executive officer of the Company, and
the Company relating to amounts payable to Mr. Kane in connection with his
employment with the Company.
On the basis of such investigation as we have deemed necessary, we are
of the opinion that:
1. The 1994 Plan Shares that have been issued pursuant to restricted
stock awards have been duly authorized and are validly issued, fully paid and
nonassessable. Such restricted shares may be subject to forfeit in accordance
with the terms of the related restricted stock agreements.
2. The 1994 Plan Shares issuable hereafter pursuant to the Plan have
been duly and validly authorized for issuance, and that such shares, when issued
pursuant to awards granted or hereafter granted under the Plan in accordance
with the provisions of the Plan and any related agreements (including, in the
case of stock options awarded or to be awarded under the Plan, payment of the
option exercise price provided for therein), will be validly issued, fully paid
and nonassessable.
<PAGE>
Data Systems & Software Inc.
October 15, 1998
Page 2
3. The Kane Shares, when issued in accordance with the terms of the
Kane Agreement, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement. In giving this consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Sheldon Krause, a member of our firm, is a director and Secretary of
the Company.
Very truly yours,
EHRENREICH EILENBERG KRAUSE
& ZIVIAN LLP
By /s/ Sheldon Krause
----------------------------
Sheldon Krause, Partner
<PAGE>
Exhibit 24.2
INDEPENDENT AUDITORS CONSENT
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Data Systems & Software Inc. of our report dated March 30, 1998
(July 30, 1998 as to Note 22) (which expresses an unqualified opinion and
includes an explanatory paragraph relating to the restatement described in Note
22), appearing in the Annual Report on Form 10-K of Data Systems & Software
Inc. for the year ended December 31, 1997, as amended.
DELOITTE & TOUCHE LLP
New York, New York
October 15, 1998
<PAGE>
Exhibit 24.3
INDEPENDENT AUDITORS CONSENT
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Data Systems & Software Inc. of our report dated March 31, 1997
(July 30, 1998 as to Note 22) (which expresses an unqualified opinion and
includes an explanatory paragraph relating to the restatement described in Note
22), appearing in the Annual Report on Form 10-K of Data Systems & Software
Inc. for the year ended December 31, 1997, as amended.
IGAL BRIGHTMAN & CO.
Certified Public Accountants
Tel Aviv, Israel
October 15, 1998
