-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DlVQjkGYSsHbHxfcdfl5n6tAuoAJTI75A3cbadSoscdABuO5/YM7E06MWJTQIbCB CNMW08ViyC0Jrs03KuLWzw== 0000892569-98-000375.txt : 19980218 0000892569-98-000375.hdr.sgml : 19980218 ACCESSION NUMBER: 0000892569-98-000375 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980213 EFFECTIVENESS DATE: 19980213 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: DATUM INC CENTRAL INDEX KEY: 0000027119 STANDARD INDUSTRIAL CLASSIFICATION: INSTRUMENTS FOR MEAS & TESTING OF ELECTRICITY & ELEC SIGNALS [3825] IRS NUMBER: 952512237 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-46365 FILM NUMBER: 98540316 BUSINESS ADDRESS: STREET 1: 1363 SO STATE COLLEGE BLVD CITY: ANAHEIM STATE: CA ZIP: 92806 BUSINESS PHONE: 7143808880 MAIL ADDRESS: STREET 1: 9975 TOLEDO WAY CITY: IRVINE STATE: CA ZIP: 92618 S-8 1 FORM S-8 1994 STOCK INCENTIVE PLAN 1 As Filed With the Securities and Exchange Commission on February 13, 1998 Registration No. 333- - ------------------------------------------------------------------------------- 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
- -------------------------------------------------------------------------------------------- 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 - -------------------------------------------------------------------------------------------- Common Stock, $.25 par value 650,000 shares $14.59375 $9,485,937.50 $2,798.35 - --------------------------------------------------------------------------------------------
(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. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. - ------------------------------------------------ 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. - ---------------------------------- Not applicable. Item 5. Interests of Named Experts and Counsel. - ----------------------------------------------- Not applicable. Item 6. Indemnification of Directors and Officers. - -------------------------------------------------- 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. - -------------------------------------------- Not applicable. Item 8. Exhibits. - ----------------- The following are filed as part of this registration statement: II-1 3 Number Description ------ ----------- 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. - ---------------------- (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 4 (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. II-3 5 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 ------------------------------ 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.
Signature Title Date --------- ----- ---- /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 - -------------------------------- G. Tilton Gardner /s/ Dan L. McGurk Director February 9, 1998 - -------------------------------- Dan L. McGurk /s/ Edward A. Money Director February 9, 1998 - -------------------------------- Edward A. Money
S-1 6 /s/ Michael M. Mann Director February 9, 1998 - -------------------------------- Michael M. Mann /s/ R. David Hoover Director February 9, 1998 - -------------------------------- R. David Hoover
S-2 7 EXHIBIT INDEX
Exhibit Sequential Number Description Page Number ------- ----------- ----------- 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).
EX-5 2 OPINION OF STRADLING YOCCA CARLSON & RAUTH 1 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 EX-23.2 3 CONSENT OF PRICE WATERHOUSE 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS ---------------------------------- 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 -----END PRIVACY-ENHANCED MESSAGE-----