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As filed with the Securities and Exchange Commission on July 15, 1999
Registration No. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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USDATA CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 75-2405152
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2435 NORTH CENTRAL EXPRESSWAY
RICHARDSON, TEXAS 75080
(Address of principal executive offices) (Zip Code)
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USDATA CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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ROBERT A. MERRY
CHIEF EXECUTIVE OFFICER
USDATA CORPORATION
2435 NORTH CENTRAL EXPRESSWAY
RICHARDSON, TEXAS 75080-2722
(Name and address of agent for service)
(972) 680-9700
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED (1)(2) PER SHARE (3)(4) PRICE (3)(4) FEE (4)
- ------------------------------------------------------------------------------------------------------------------------
Common Stock, $ 0.01
par value per share 200,000 SHARES $ 3.14 $ 628,000.00 $ 175.00
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(1) The securities to be registered include an aggregate of 200,000 shares
reserved for issuance under the USDATA Corporation Employee Stock
Purchase Plan (the "Plan").
(2) Pursuant to Rule 416, this registration statement also covers such
additional shares as may hereinafter be offered or issued to prevent
dilution resulting from stock splits, stock dividends,
recapitalizations or certain other capital adjustments.
(3) Estimated solely for purpose of calculating the registration fee.
(4) Calculated pursuant to Rule 457(c) and 457(h). Accordingly, the price
per share of common stock offered hereunder pursuant to the Plan is
calculated to be $3.14, which is 85% of the average of the highest and
lowest price per share of common stock on the NASDAQ National Market
System on July 14, 1999.
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PART I
Information specified in Part I of Form S-8 (Items 1 and 2) will be
sent or given to Plan participants as specified by Rule 428(b)(1) under the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
USDATA Corporation (the "Company") hereby incorporates by reference in
this registration statement the following documents previously filed by the
Company with the Securities and Exchange Commission (the "Commission"):
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 filed with the Commission on March 31, 1999.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999 filed with the Commission on May 14, 1999.
(3) The description of the common stock of the Company contained in
the Company's Registration Statement on Form S-1 filed with the Commission on
April 12, 1995, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that no director
of the Company shall be personally liable to the Company or any of its
stockholders for monetary damages for breach of fiduciary duty as a director
involving any act or omission of any such director; provided, however, that the
foregoing provision shall not eliminate or limit the liability of a director
(a) for any breach of the director's duty of loyalty to the Company or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under Section 174 of
the General Corporation Law of the State of Delaware, as the same exists or
hereafter may be amended, or (d) for any transaction from which the director
derived an improper personal benefit. If the General Corporation Law of the
State of Delaware is amended after the date of filing of the Certificate of
Incorporation to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Company, in addition to the limitation on personal liability provided therein,
shall be limited to the fullest extent permitted by the amended General
Corporation Law of the State of Delaware. Any repeal or modification of Article
VI of the Certificate of Incorporation by the stockholders of the Company shall
be prospective only, and shall not adversely affect any limitation on the
personal liability of a director of the Company existing at the time of such
repeal or modification.
The Company's Bylaws require the Company to indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Company) by reason of the fact that such
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person is or was director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person 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.
The Company shall also indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in right of the Company to procure a judgment in its favor by reason
of the fact that he is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Company and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of Chancery
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper. Such indemnification is mandatory under the Company's Bylaws
as to expenses actually and reasonably incurred to the extent that a director,
officer, employee or agent of the Company has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein. The determination of whether an
individual is entitled to indemnification shall be made by the Company only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in paragraph (a) or (b)
of Section 5.1 of the Bylaws of the Company. Such determination shall be made
(i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable and a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders. Expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Company as authorized in the Bylaws of the
Company. Such expenses (including attorneys' fees) incurred by other employees
and agents may be so paid upon such terms and conditions, if any, as the Board
of Directors deems appropriate. Insofar as indemnification for liabilities
arising under the Act may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in that Act and is therefore unenforceable.
The Company has the power to purchase and maintain, and has purchased and
maintains, a directors and officers liability insurance policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None.
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
4.1 USDATA Corporation Employee Stock Purchase Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional
Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional
Corporation (included in opinion filed as Exhibit 5.1
hereto)
23.2 Consent of PricewaterhouseCoopers LLP
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24 Power of Attorney (included with signature page of this
Registration Statement)
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 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;
(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)
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the 1934 Act 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
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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.
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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 caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Richardson, State of Texas, on June 18, 1999.
USDATA CORPORATION
By: /s/ ROBERT A. MERRY
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Robert A. Merry
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Robert A. Merry and Robert L.
Drury, and each of them, each with full power to act without the other, his
true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution for him and in his name, place and stead, in
any and all capacities, to sign any or all 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 each of said
attorneys-in-fact and agents full power and authority to do and perform each
and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he might or could do in
person hereby ratifying and confirming that each of said attorney-in-fact and
agents or his 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 dates included:
SIGNATURE CAPACITY DATE
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/s/ ROBERT A. MERRY Chief Executive Officer and President June 18,1999
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Robert A. Merry (Principal Executive Officer)
/s/ ROBERT L. DRURY Chief Financial Officer, Vice President June 18, 1999
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Robert L. Drury Finance, Treasurer and Secretary
(Principal Financial and Accounting
Officer)
/s/ MAX D. HOPPER Chairman of the Board and Director June 18, 1999
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Max D. Hopper
- ---------------------------------------- Director June ___, 1999
Gary J. Anderson
- ---------------------------------------- Director June ___, 1999
Stephen J. Andriole
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/s/ JAMES W. DIXON Director June 18, 1999
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James W. Dixon
/s/ JACK L. MESSMAN Director June 18, 1999
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Jack L. Messman
/s/ ARTHUR R. SPECTOR Director June 18, 1999
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Arthur R. Spector
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INDEX TO EXHIBITS
Exhibit
Number Description of Exhibit
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4.1 USDATA Corporation Employee Stock Purchase Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional
Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional
Corporation (included in opinion filed as Exhibit
5.1 hereto)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included with signature page of
this Registration Statement)