SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT No. 1 on FORM 10-Q/A
To FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED SEPTEMBER 30, 2004
COMMISSION FILE NUMBER 0-19771
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DATA SYSTEMS & SOFTWARE INC.
(Exact name of registrant as specified in charter)
DELAWARE 22-2786081
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
200 ROUTE 17, MAHWAH, NEW JERSEY 07430
(Address of principal executive offices) (Zip code)
(201) 529-2026
Registrant's telephone number, including area code
-----------------------------------------------------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
|X| Yes |_| No
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Act).
| | Yes |X| No
Number of shares outstanding of the registrant's common
stock, as of November 12, 2004: 8,116,691
Explanatory Note
This Amendment No. 1 to the registrant's Quarterly Report on Form 10-Q for
the quarterly period ended September 30, 2004 is being filed to (i) correct the
number of outstanding shares of the registrant's common stock reflected on the
cover page of the report and (ii) correct a typographical error in the column
headings on the consolidated balance sheets included in Item 1. Unaudited
Consolidated Financial Statements of Part I. Financial Information.
PART I - Financial Information
Item 1. Unaudited Consolidated Financial Statements
DATA SYSTEMS & SOFTWARE INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per share data)
As of As of
December 31, September 30,
ASSETS 2003 2004
-------- --------
Current assets: (unaudited)
Cash and cash equivalents $ 1,213 $ 896
Restricted cash 241 241
Accounts receivable, net 7,053 6,361
Inventory 88 87
Other current assets 661 768
-------- --------
Total current assets 9,256 8,353
-------- --------
Investment in Comverge, net 68 --
Property and equipment, net 814 677
Other assets 613 540
Funds in respect of employee termination benefits 2,379 2,636
Goodwill 4,430 4,236
Other intangible assets, net 114 85
-------- --------
Total assets $ 17,674 $ 16,527
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Short-term bank credit and current
maturities of long-term debt $ 1,517 $ 1,394
Trade accounts payable 2,586 2,315
Accrued payroll, payroll taxes and social benefits 1,451 1,431
Other current liabilities 2,973 2,064
-------- --------
Total current liabilities 8,527 7,204
-------- --------
Investment in Comverge, net -- 1,268
-------- --------
Long-term liabilities:
Long-term debt 632 241
Other liabilities 227 84
Liability for employee termination benefits 3,721 4,088
-------- --------
Total long-term liabilities 4,580 4,413
-------- --------
Minority interests 1,367 1,351
-------- --------
Shareholders' equity:
Common stock - $0.01 par value per share:
Authorized - 20,000,000 shares;
Issued - 8,740,729 and 8,842,395 shares as of
December 31, 2003 and September 30, 2004, respectively 87 88
Additional paid-in capital 39,595 39,685
Warrants 461 461
Stock-based deferred compensation -- (64)
Accumulated deficit (33,069) (33,929)
Treasury stock, at cost - 838,704 and 820,704
shares at December 31, 2003 and
September 30, 2004, respectively (3,874) (3,791)
Accumulated other comprehensive loss -- (159)
-------- --------
Total shareholders' equity 3,200 2,291
-------- --------
Total liabilities and shareholders' equity $ 17,674 $ 16,527
======== ========
The accompanying notes are an integral part of these
condensed consolidated financial statements.
- 1 -
DATA SYSTEMS & SOFTWARE INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS AND COMPREHENSIVE LOSS (UNAUDITED)
(in thousands, except net loss per share data)
Nine months ended Three months ended
September 30, September 30,
---------------------- ----------------------
2003 2004 2003 2004
-------- -------- -------- --------
Sales:
Products .......................................... $ 16,900 $ 13,157 $ 3,779 $ 4,764
Services .......................................... 7,306 6,831 2,327 2,141
Projects .......................................... 2,459 2,049 564 577
-------- -------- -------- --------
Total sales ................................. 26,665 22,037 6,670 7,482
-------- -------- -------- --------
Cost of sales:
Products .......................................... 13,951 10,801 3,202 3,887
Services .......................................... 5,082 5,049 1,665 1,670
Projects .......................................... 2,087 1,655 601 469
-------- -------- -------- --------
Total cost of sales ......................... 21,120 17,505 5,468 6,026
-------- -------- -------- --------
Gross profit ...................................... 5,545 4,532 1,202 1,456
Operating expenses:
Research and development ............................ 153 -- -- --
Selling, marketing, general and administrative ...... 8,345 5,496 1,982 2,168
-------- -------- -------- --------
Total operating expenses .................... 8,498 5,496 1,982 2,168
-------- -------- -------- --------
Operating loss ......................................... (2,953) (964) (780) (712)
Interest income ........................................ 42 79 15 2
Interest expense ....................................... (714) (125) (68) (39)
Other income (expense), net ............................ (408) 239 (243) 2
-------- -------- -------- --------
Loss before taxes on income ....................... (4,033) (771) (1,076) (747)
Taxes on income ........................................ 7 17 (27) 37
-------- -------- -------- --------
Loss from operations of the Company and its consolidated
subsidiaries ........................................ (4,040) (788) (1,049) (784)
Share of losses in Comverge ............................ (1,161) (1,066) (611) (382)
Gain on sale of shares in Comverge ..................... -- 705 -- 705
Minority interests ..................................... 139 (59) 35 (11)
-------- -------- -------- --------
Net loss from continuing operations ............. (5,062) (1,208) (1,625) (472)
Net income (loss) from discontinued operations,
net of tax .......................................... (38) 348 (4) --
-------- -------- -------- --------
Net loss ........................................ (5,100) (860) (1,629) (472)
-------- -------- -------- --------
Differences from translation of financial statements of
subsidiaries ........................................ -- (159) -- 11
-------- -------- -------- --------
Comprehensive loss .............................. $ (5,100) $ (1,019) $ (1,629) $ (461)
======== ======== ======== ========
Basic and diluted net income (loss) per share:
Loss per share from continuing operations ............ $ (0.66) $ (0.15) $ (0.21) $ (0.06)
Discontinued operations .............................. (0.00) 0.04 (0.00) (0.00)
-------- -------- -------- --------
Basic and diluted net loss per share ................. $ (0.66) $ (0.11) $ (0.21) $ (0.06)
======== ======== ======== ========
Weighted average number of shares outstanding:
Basic and diluted .............................. 7,680 7,927 7,894 7,936
======== ======== ======== ========
The accompanying notes are an integral part of these
condensed consolidated financial statements.
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DATA SYSTEMS & SOFTWARE INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY (UNAUDITED)
NINE MONTHS ENDED SEPTEMBER 30, 2004
(in thousands)
Accumulated
Additional Stock-Based Other
Number Common Paid-In Deferred Accumulated Treasury Comprehensive
of Shares Stock Capital Warrants Compensation Deficit Stock Loss Total
-------- -------- -------- -------- -------- -------- -------- -------- --------
Balances as of
December 31, 2003 8,741 $ 87 $ 39,595 $ 461 $ -- $(33,069) $ (3,874) $ -- $ 3,200
Exercise of
options ........... 1 * (48) -- -- -- 83 -- 35
Shares issued as
compensation ...... 100 1 70 -- -- -- -- -- 71
Changes related
to stock-based
deferred
compensation ...... -- -- 68 -- (68) -- -- -- --
Amortization of
stock-based
deferred
compensation ...... -- -- -- -- 4 -- -- -- 4
Net loss ............ -- -- -- -- -- (860) -- -- (860)
Differences from
translation of
subsidiaries'
financial
statements ........ -- -- -- -- -- -- -- (159) (159)
-------- -------- -------- -------- -------- -------- -------- -------- --------
Balances as of
September 30, 2004 8,842 $ 88 $ 39,685 $ 461 $ (64) $(33,929) $ (3,791) $ (159) $ 2,291
======== ======== ======== ======== ======== ======== ======== ======== ========
* Less than $1
The accompanying notes are an integral part of these
condensed consolidated financial statements.
- 3 -
DATA SYSTEMS & SOFTWARE INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(dollars in thousands)
Nine months ended September 30,
------------------------------
2003 2004
------- -------
Cash flows used in operating activities:
Net loss ......................................................................... $(5,100) $ (860)
Adjustments to reconcile net loss to net cash provided by operating activities -
Schedule A: ..................................................................... 4,913 318
------- -------
Net cash used in operating activities ........................................ (187) (542)
------- -------
Cash flows provided by (used in) investing activities:
Restricted cash .................................................................. 4,200 --
Proceeds from sale of property and equipment ..................................... 11 52
Proceeds from sale of Comverge shares ............................................ -- 975
Acquisitions of property and equipment ........................................... (193) (99)
Funding of termination benefits .................................................. (243) (257)
Business disposition - see Schedule B ............................................ (3,527) --
------- -------
Net cash provided by investing activities .................................... 248 671
------- -------
Cash flows provided by (used in) financing activities:
Short-term debt, net ............................................................. (503) --
Borrowings of long-term debt ..................................................... 441 --
Repayments of long-term debt ..................................................... (479) (481)
Investment in subsidiary by minority interest .................................... 22 --
Exercise of options .............................................................. 17 35
Purchase of treasury stock ....................................................... (2) --
------- -------
Net cash used in financing activities ........................................ (504) (446)
------- -------
Net decrease in cash and cash equivalents ............................................. (443) (317)
Cash and cash equivalents at beginning of period ...................................... 1,150 1,213
------- -------
Cash and cash equivalents at end of period ............................................ $ 707 $ 896
======= =======
Supplemental cash flow information:
Cash paid during period for interest ............................................. $ 308 $ 113
======= =======
Cash paid during period for income taxes ......................................... $ 106 $ 35
======= =======
Non-cash investing and financing activities:
Issuance of common stock in lieu of debt repayment .............................. $ 803
Increase in investment in Comverge from issuance of common stock credited to
additional paid in capital ..................................................... $ 1,085
The accompanying notes are an integral part of these condensed
consolidated financial statements.
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DATA SYSTEMS & SOFTWARE INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
(dollars in thousands)
Nine months ended September 30,
------------------------------
2003 2004
----------- ----------
Schedule A:
Adjustments to reconcile net loss to net cash (used in) provided by operating
activities:
Depreciation and amortization..................................................... $447 $177
Stock and stock-based compensation................................................ 55 75
Accretion of discount on convertible note and amortization of
related costs and warrants............................................. 493 -
Minority interests................................................................ (139) 59
Share of losses in Comverge....................................................... 1,161 1,066
Loss on write-off of stockholder's note........................................... 298 -
Increase in liability for employee termination benefits........................... 283 367
Exchange adjustment on long-term debt............................................. 49 (33)
Loss (gain) on disposition of property and equipment.............................. 3 (4)
Gain on sale of Comverge shares................................................... - (705)
Change in deferred taxes.......................................................... (166) (9)
Change in operating assets and liabilities:
Decrease in accounts receivable and other assets.............................. 4,332 658
Increase in inventory......................................................... 326 1
Decrease in accounts payable and other liabilities............................ (2,229) (1,334)
----------- -----------
Total......................................................................... $4,913 $ 318
=========== ===========
Schedule B:
Assets and liabilities disposed of in disposition of Comverge:
Current assets................................................................... $4,634
Property, equipment and other assets............................................. 1,190
Goodwill ........................................................................ 499
Intangibles...................................................................... 214
Short-term debt.................................................................. (3,880)
Current liabilities.............................................................. (2,340)
Other liabilities................................................................ (517)
Cash investment in Comverge...................................................... (3,327)
-----------
$(3,527)
===========
The accompanying notes are an integral part of these condensed
consolidated financial statements.
- 5 -
DATA SYSTEMS & SOFTWARE INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(dollars in thousands)
NOTE 1: BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements of Data
Systems & Software Inc. ("DSSI") and subsidiaries (the "Company") have been
prepared in accordance with accounting principles generally accepted in the
United States of America for interim financial information and with the
instructions to Article 10 of Regulation S-X. Accordingly, they do not include
all of the information and footnotes required by accounting principles generally
accepted in the United States of America for complete consolidated financial
statements. In the opinion of management, all adjustments considered necessary
for a fair presentation have been included. Operating results for the nine-month
period ended September 30, 2004 are not necessarily indicative of the results
that may be expected for the year ending December 31, 2004. These unaudited
consolidated financial statements should be read in conjunction with the
consolidated financial statements and footnotes thereto included in the
Company's Annual Report on Form 10-K for the year ended December 31, 2003.
Certain reclassifications have been made to the Company's prior period's
consolidated financial statements to conform to the current period's
consolidated financial statement presentation.
NOTE 2: FINANCING OF OPERATIONS
As of September 30, 2004, the Company had working capital of $1,149,
including $896 in non-restricted cash and cash equivalents. Net cash used in the
nine months of 2004 was $317. Net cash of $542 was used in operating activities
during the first three quarters of 2004. The net loss for the nine-month period
ended September 30, 2004 of $860, was due primarily to the net loss from the
Company's investment in Comverge of $361 and expenses incurred in the
unsuccessful transaction with Kardan Communications Ltd. of $342. The Company's
use of cash in operating activities during the first nine months of 2004 was
primarily for payment of accounts payable and other liabilities in excess of
collections of trade accounts receivables of $676, net. Net cash of $671
provided by investing activities, was primarily from the net proceeds of $975
from the sale by the Company of preferred shares of its Comverge equity
investment, less amounts used to fund employee termination benefits in the
Company's majority-owned dsIT subsidiary of $257. Net cash of $446 used in
financing activities was primarily for payment of debt of $481.
Approximately $287 of the total working capital at September 30, 2004, was
in dsIT. Due to Israeli tax and company law constraints, as well as the
significant minority interest in dsIT, such working capital and cash flows from
dsIT's operations are not readily available to finance U.S. activities.
dsIT was utilizing approximately $859 of its $1,100 lines of credit as of
September 30, 2004. dsIT's lines of credit are denominated in NIS and bear an
average interest rate of the Israeli prime rate plus 1.4% per annum. The Israeli
prime rate fluctuates and as of September 30, 2004 was 5.6%.
The Company intends to fund its US activities with the cash available and
anticipated profits from its US operations. The Company is seeking and
considering various restructuring, merger or acquisition and/or financing
transactions. Should the Company need additional liquidity to finance its US
activities and should it be unsuccessful in completing a timely transaction
providing the necessary liquidity, it may not have sufficient funds to finance
its US activities. In such event, the Company might need to sell additional
Comverge shares.
- 6 -
DATA SYSTEMS & SOFTWARE INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(in thousands, except per share data)
Note 3: Investment in Comverge
Comverge's summary results of operations for the three and nine month
periods ended September 30, 2004 are as follows:
Nine months Three months
ended ended
September 30, September 30,
Results of Operations 2004 2004
------------- -------------
Sales $12,375 $ 3,774
Gross profit $ 5,057 $ 1,534
Net loss $(6,947) $(2,707)
The change in the Company's Comverge investment, during the nine months
ended September 30, 2004 is as follows:
Comverge Comverge Net investment
common stock preferred stock in Comverge
------------ --------------- -----------
Balances as of December 31, 2003 $(1,824) $ 1,892 $ 68
Shares sold -- (270) (270)
Equity loss in Comverge -- (1,066) (1,066)
------- ------- -------
Balances as of September 30, 2004 $(1,824) $ 556 $(1,268)
======= ======= =======
In September 2004, the Company signed an agreement with certain other
shareholders of Comverge's Series A Preferred Stock for the sale by the Company
to other shareholders of shares of Comverge Series A Preferred Stock for
approximately $1,000, resulting in a gain of $705. After giving effect to this
transaction, the Company held approximately 11% of Comverge's preferred equity
and approximately 34% of its total equity.
In October 2004 Comverge completed the sale of preferred stock to
investors. For more detail see Note 9 - Subsequent Event.
Note 4: Goodwill
The entire balance of goodwill was in the software consulting and
development segment. There were no acquisitions or impairments of goodwill
recorded during the nine-month period ended September 30, 2004.
The Company's amortizable intangible assets consisted of software
licenses, with a gross carrying amount of $253, accumulated amortization of $163
and $139 and net balances of $90 and $114, as of September 30, 2004 and December
31, 2003, respectively. All intangibles assets are being amortized over their
estimated useful lives, which averaged 5 years and the amortization expense for
the nine months ended September 30, 2003 and 2004 amounted to $59 and $24,
respectively.
Note 5: Warranty Provision
The Company grants its customers one-year product warranty. No provision
was made in respect of warranties based on the Company's previous history.
-7-
DATA SYSTEMS & SOFTWARE INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(in thousands, except per share data)
Note 6: Stock-Based Compensation
The Company applies Accounting Principles Board Opinion ("APB") No. 25,
"Accounting for Stock Issued to Employees" and the related interpretations in
accounting for its stock option grants to employees and directors, with the
disclosure provisions of SFAS No. 123, "Accounting for Stock-Based
Compensation". Under APB No. 25, compensation expense is computed under the
intrinsic value method of accounting to the extent that the fair value of the
underlying shares on the date of the grant exceed the exercise price of the
share option, and thereafter amortized on a straight-line basis against income
over the expected service period.
Had compensation cost for the Company's option plans been determined based
on the fair value at the grant dates of awards, consistent with the method
prescribed in SFAS No. 123, the Company's net loss and loss per share would have
been changed to the pro forma amounts indicated below:
Nine months ended Three months ended
September 30, September 30,
------------- -------------
2003 2004 2003 2004
------- ------- ------- -------
Net loss as reported ........................ $(5,100) $ (860) $(1,629) $ (472)
Plus: Stock-based employee and director
compensation expense included in
reported net loss .................... 55 75 2 75
Less: Total stock-based employee compensation
expense determined under fair value
based method for all awards .......... 186 136 2 75
------- ------- ------- -------
Pro forma net loss .......................... $(5,231) $ (921) $(1,629) $ (472)
======= ======= ======= =======
Net loss per share:
Basic and diluted - as reported ....... $ (0.66) $ (0.11) $ (0.21) $ (0.06)
======= ======= ======= =======
Basic and diluted - pro forma ......... $ (0.68) $ (0.12) $ (0.21) $ (0.06)
======= ======= ======= =======
The pro forma information in the above table also gives effect to the
application of SFAS No. 123 on the share option plans of the Company's
subsidiaries.
The Company accounts for stock-based compensation issued to non-employees
on a fair value basis in accordance with SFAS No. 123 and EITF Issue No. 96-18,
"Accounting for Equity Instruments That Are Issued to Other Than Employees for
Acquiring, or in Conjunction with Selling, Goods or Services" and related
interpretations.
-8-
DATA SYSTEMS & SOFTWARE INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(in thousands except per share data)
Note 7: Segment Information
Software Energy
consulting and intelligence
development solutions Computer
(*) (**) hardware Other (***) Total
-------- -------- -------- -------- --------
Nine months ended September 30, 2004:
Revenues from external customers $ 8,676 $ -- $ 13,335 $ 26 $ 22,037
Intersegment revenues -- -- -- -- --
Segment gross profit 2,056 -- 2,450 26 4,532
Segment income (loss) 208 (361) 231 6 84
Nine months ended September 30, 2003:
Revenues from external customers $ 8,966 $ 4,700 $ 12,974 $ 25 $ 26,665
Intersegment revenues -- 284 20 -- 304
Segment gross profit 1,931 1,313 2,276 25 5,545
Segment loss (455) (2,772) (247) (17) (3,491)
Three months ended September 30, 2004:
Revenues from external customers $ 2,675 $ -- $ 4,806 $ 1 $ 7,482
Intersegment revenues -- -- -- -- --
Segment gross profit 562 -- 893 1 1,456
Segment income (loss) 23 323 (60) (1) 285
Three months ended September 30, 2003:
Revenues from external customers $ 2,813 $ -- $ 3,856 $ 1 $ 6,670
Intersegment revenues -- -- -- -- --
Segment gross profit 548 -- 653 1 1,202
Segment loss (24) (909) (156) (11) (1,100)
-----------
(*) Excludes the discontinued results of the US-based consulting activities -
see Note 8.
(**) Operating results of Comverge (in the energy intelligence solutions
segment) are no longer consolidated beginning the second quarter of 2003.
(***) Represents the operations of a VAR software operation in Israel that did
not meet the quantitative thresholds of SFAS No. 131.
Reconciliation of Segment Loss to Consolidated Net Loss
Nine months ended Three months ended
September 30, September 30,
----------------------- -----------------------
2003 2004 2003 2004
------- ------- ------- -------
Total income (loss) for reportable segments $(3,474) $ 78 $(1,089) $ 286
Other operational segment income (loss) (17) 6 (11) (1)
------- ------- ------- -------
Total operating income (loss) (3,491) 84 (1,100) 285
Net loss of corporate headquarters (1,571) (1,292) (525) (757)
Discontinued operations income (loss) (38) 348 (4) --
------- ------- ------- -------
Total consolidated net loss $(5,100) $ (860) $(1,629) $ (472)
======= ======= ======= =======
-9-
DATA SYSTEMS & SOFTWARE INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
(in thousands except per share data)
Note 8: Discontinued Operations
Since the latter part of 2003, the Company has not recorded revenues from
its US-based consulting business. During the second quarter of 2004, the Company
decided to discontinue its efforts to reestablish this business as it was
previously conducted. As a result, the Company recorded a gain from discontinued
operations of $348, net of tax.
Assets and liabilities of the discontinued operation were as follows:
December 31, 2003 September 30, 2004
----------------- ------------------
Current assets ............................. $ 2 $ --
==== ====
Fixed assets ............................... $ 2 $ --
==== ====
Current liabilities ........................ $729 $ --
==== ====
Profit and loss of the discontinued operations within consulting segment
were as follows:
Nine months ended Three months ended
September 30, September 30,
------------- -------------
2003 2004 2003 2004
---- ---- ---- ----
Restated Restated
-------- --------
Sales ............................... $ 172 $ -- $ 14 $--
Cost of sales ....................... 154 -- 13 --
----- ----- ----- ---
Gross profit ........................ 18 -- 1 --
----- ----- ----- ---
Loss from operations ................ (31) (2) (1) --
Interest expense .................... 7 4 3 --
----- ----- ----- ---
Net income (loss) from discontinued
operations ...................... $ (38) $ 348 $ (4) $--
===== ===== ===== ===
Note 9: Subsequent Event
In October 2004, Comverge closed on the sale of additional preferred
equity financing in the amount of $13,600. The preferred equity is senior to the
preferred stock of Comverge owned by the Company. This round of financing
diluted the Company's holdings to approximately 7% of Comverge's preferred
equity and approximately 25% of its total equity.
- 10 -
PART II - Other information
Item 6: Exhibits and Reports on Form 8-K
(a) Exhibits
10.1 Employment Agreement executed on August 19, 2004 and effective
as of January 1, 2004 between Databit Inc., Shlomie
Morgenstern and the Registrant.*
10.2 Restricted Stock Award Agreement, dated as of August 19, 2004,
between the Registrant and Shlomie Morgenstern.*
10.3 Stock Option Agreement dated as of August 19, 2004, between
the Registrant and Shlomie Morgenstern.*
10.4 Second Amended and Restated Co-Sale And First Refusal
Agreement dated as of October 26, 2004, by and among Comverge,
Inc., the Registrant, and other persons party thereto.*
31(a) Rule 13a-14(a) Certification by Chief Executive Officer
31(b) Rule 13a-14(a) Certification by Chief Financial Officer
32(a) Section 1350 Certification by Chief Executive Officer **
32(b) Section 1350 Certification by Chief Financial Officer **
-----------------
* Previously filed.
** A signed original of this written statement required by Section 906 has been
provided to the Company and will be retained by the Company and furnished to the
Securities and Exchange Commission or its staff upon request.
(b) Reports on Form 8-K
(i) Report on Form 8-K, filed on July 28, 2004 (earliest event reported
July 26, 2004): Item 5 was reported.
(ii) Report on Form 8-K, filed on August 13, 2004 (earliest event reported
August 13, 2004): Item 2 was reported.
(iii) Report on Form 8-K, filed on August 17, 2004 (earliest event
reported August 13, 2004): Item 7 was reported.
(iv) Report on Form 8-K, filed on August 19, 2004 (earliest event reported
August 18, 2004): Item 5 was reported.
(v) Report on Form 8-K, filed on September 10, 2004 (earliest event
reported September 9, 2004): Item 1.01 was reported.
- 11 -
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this amendment to its report to be signed on its
behalf by its Principal Financial Officer thereunto duly authorized.
DATA SYSTEMS & SOFTWARE INC.
Dated: November 16, 2004
By: /s/ YACOV KAUFMAN
---------------------------------
Yacov Kaufman
Vice President and Chief Financial Officer
- 12 -