SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) November 11, 2004
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DATA SYSTEMS & SOFTWARE INC.
(Exact name of Registrant as Specified in its Charter)
Delaware 0-19771 22-2786081
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(States or Other Jurisdiction (Commission file Numbers) (IRS Employer
of Incorporation) Identification No.)
200 Route 17, Mahwah, New Jersey 07430
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (201) 529-2026
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Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
|_| Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
|_| Soliciting material pursuant to Rule 14a-2 under the Exchange Act (17 CFR
240.14a-2)
|_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange
Act (17 CFR 240.14d-2(b))
|_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange
Act (17 CFR 240.13e-4(c))
Section 2 - Financial Information
Item 2.02 Results of Operations and Financial Condition.
On November 12, 2004, the Registrant issued a press release reporting
financial results for the third quarter of 2004. The press release is attached
as Exhibit 99.1 and incorporated by reference herein.
Section 3 - Securities and Trading Markets
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard.
On November 11, 2004, Nasdaq notified the Registrant that the
Registrant is no longer in compliance with the audit committee composition and
certification of audit committee requirements, as set forth in Nasdaq
Marketplace Rule 4350(d)(2), due to the fact that there was a vacancy on the
Audit Committee as of October 31, 2004, the date on which the Registrant was
required to certify such compliance. The Registrant certified such compliance in
reliance on the cure period provided by Nasdaq Marketplace Rule 4350(d)(4). It
is the position of the Nasdaq Staff that the cure period is not available to
issuers who have not yet held their 2004 annual meeting. The Registrant
disagrees with Nasdaq's interpretation and, at Nasdaq's invitation, intends to
submit a written response to the Nasdaq Listing Qualifications Panel no later
than November 18, 2004.
In light of the election of Samuel M. Zentman to the Board of
Directors and his appointment to the Audit Committee as described in Item 5.02
below, the Registrant believes that it is now in full compliance with Nasdaq
Marketplace Rule 4350(d)(2).
On November 12, 2004, the Registrant informed Nasdaq that its
shareholders' equity as of September 30, 2004 had fallen below the minimum level
required for continued listing on The Nasdaq Small Cap Market. On November 16,
2004, Nasdaq notified the Registrant that the Registrant is no longer in
compliance with the shareholders' equity/market value of listed securities/net
income requirement, as set forth in Nasdaq Marketplace Rule 4310(c)(2)(B). The
Registrant intends to submit a written response to the Nasdaq Listing
Qualifications Panel no later than November 23, 2004 describing its plan for
regaining and maintaining compliance with this rule.
Section 5 - Corporate Governance Management
Item 5.02 Departure of Directors or Principal Officers; Election of Directors;
Appointment of Principal Officers.
On November 16, 2004 the Registrant's Board of Directors elected Samuel
M. Zentman to serve as a member of the Board of Directors. Dr. Zentman was also
appointed to serve as an additional independent director on the Audit Committee
of the Board of Directors.
Section 9 - Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits.
Exhibits
99.1 Press release of Registrant dated November 12, 2004
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized on this 17th day of November, 2004.
DATA SYSTEMS & SOFTWARE, INC.
By: /s/ GEORGE MORGENSTERN
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Name: George Morgenstern
Title: President and Chief Executive Officer
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