ÿALYDAAR SOFTWARE CORP /NC/ S-8
Filing Date: 4/23/98
ÿTYPE:ÿÿS-8
ÿSEQUENCE:ÿÿ1
ÿDESCRIPTION:ÿÿS-8
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)
ALYDAAR SOFTWARE CORPORATION OMNIBUS STOCK 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)
Calculation of Registration Fee
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
Common Stock 2,000,000 shares 1 $17.00 $34,000,000 $10,303.03 2
par value
$.001 per share
ÿFN:ÿÿ
------------
1 This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the Alydaar Software Corporation Omnibus Stock 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 April 23, 1998.
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 Commission on Form 10 (File No. 0-22325) pursuant to Section 12(b) or (q) of the Securities Exchange Act of 1934 (the "Exchange Act"), which contains a description of the 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 quarters ended June 30, 1997 and September 30, 1997 as filed with the Commission on June 30, 1997 and September 30, 1997, respectively.
(4) 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.
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 Alydaar Software Corporation Omnibus Stock 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)
10.2 Alydaar Software Corporation Omnibus Stock Plan*
23.1 Consent of Holtz, Rubenstein & Co., LLP (1)
23.2 Consent of McLaughlin & Stern, LLP (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:
(1) To file, during any period which offers or sales are bing 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.
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 23rd day of April, 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 April 23, 1998
Robert F. Gruder and Chairman of the Board
/s/ V. Hollis Scott Chief Financial Officer, Secretary April 23, 1998
V. Hollis Scott and Director
/s/ Thomas J. Dudchik Senior Vice President and Director April 23, 1998
Thomas J. Dudchik
/s/ J. Alex McMillan Director April 23, 1998
J. Alex McMillan
/s/ John McCarthy Director April 23, 1998
John McCarthy
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, LLP (included in, and incorporated by
Exhibit 5.1 hereto)
ÿTYPE:ÿÿEX-5
ÿSEQUENCE:ÿÿ2
ÿDESCRIPTION:ÿÿ5.1 OPINION OF MCLAUGHLIN & STERN, LLP
Exhibit 5.1
McLaughlin & Stern, LLP
260 Madison Avenue
New York, New York 10016
(212)448-1100
FAX (212)448-0066
April 23, 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").
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 the 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 2,000,000 shares of Common Stock (the subject of this Registration Statement) subject to the exercise of options pursuant to the Alydaar Software Corporation Omnibus Stock Plan will, upon issuance and the payment of the consideration provided by such options, 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
ÿTYPE:ÿÿEX-23
ÿSEQUENCE:ÿÿ3
ÿDESCRIPTION:ÿÿ23.1 CONSENT OF HOLTZ, RUBENSTEIN & CO., LLP
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
April 21, 1998
ÿTYPE:ÿÿEX-23
ÿ:ÿÿSEQUENCE>4
ÿDESCRIPTION:ÿÿCONSENT OF MCLAUGHLIN & STERN, LLP
Exhibit 23.2
Included in, and incorporated by Exhibit 5.1 hereto |
