As filed with the Securities and Exchange Commission on October 24, 2001
Registration No. 33-56282
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
POST EFFECTIVE AMENDMENT NO. 2
TO
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DATARAM CORPORATION
(Exact name of issuer as specified in its charter)
NEW JERSEY 22-1831409
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
Route 571, P.O. Box 7528, Princeton, NJ 08543-7528
(Address of principal executive offices) (Zip Code)
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2001 DATARAM CORPORATION STOCK OPTION PLAN
AND
1992 DATARAM CORPORATION INCENTIVE AND
NON-STATUTORY STOCK OPTION PLAN
AND
DIRECTORS' AND OFFICERS' STOCK OPTIONS
(Full title of the plans)
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THOMAS J. BITAR, ESQ.
DILLON, BITAR & LUTHER
53 MAPLE AVENUE
MORRISTOWN, NEW JERSEY 07963-0398
(Name and address of agent for service)
(973) 539-3100
(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 Additional Maximum Maximum
Security Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
- --------------------------- ------------- ------------ ------------ ------------
Common Stock, $1.00 Par Value 1,950,000 6.30 12,285,000 3,071.25
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
the Registrant's outstanding shares of Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the weighted average
exercise price of the outstanding options and the market price as of
September 28, 2001 for securities not subject to outstanding options.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
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Dataram Corporation (the "Registrant") hereby incorporates by reference
into this Registration Statement the following documents previously filed
with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended July 31, 2001, as filed with the Commission, and any
amendments thereto.
(b) The Registrant's Definitive Proxy Statement for an Annual Meeting of
Shareholders held on September 12, 2001 and all exhibits filed
therewith.
(c) The Registrant's Annual Report on Form 10-K for the fiscal year
ended April 30, 2001, filed with the Commission on July 25, 2001,
and any amendments thereto.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in
any subsequently filed document which also is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such 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
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Not Applicable.
Item 5. Interests of Named Experts and Counsel
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Not Applicable.
Item 6. Indemnification of Directors and Officers
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The Registrant's Certificate of Incorporation provides that the
Registrant shall indemnify its directors and officers to the full extent
permitted by New Jersey law, including in circumstances in which
indemnification is otherwise discretionary under New Jersey law.
Section 14A:2-7 of the New Jersey Business Corporation Act provides that
a New Jersey corporation's:
"certificate of incorporation may provide that a director or officer
shall not be personally liable, or shall be liable only to the extent therein
provided, to the corporation or its shareholders for damages for breach of
any duty owed to the corporation or its shareholders, except that such
provision shall not relieve a director or officer from liability for any
breach of duty based upon an act or omission (a) in breach of such person's
duty of loyalty to the corporation or its shareholders, (b) not in good faith
or involving a knowing violation of law or (c) resulting in receipt by such
person of an improper personal benefit. As used in this subsection, an act
or omission in breach of a person's duty of loyalty means an act or omission
which that person knows or believes to be contrary to the best interests of
the corporation or its shareholders in connection with a matter in which he
has a material conflict of interest."
In addition, Section 14A:3-5 of the New Jersey Business Corporation Act
provides as follows:
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
(1) As used in this section,
(a) "corporate agent" means any person who is or was a director, officer,
employee or agent of the indemnifying corporation or of any constituent
corporation absorbed by the indemnifying corporation in a consolidation or
merger and any person who is or was a director, officer, trustee, employee or
agent of any other enterprise, serving as such at the request of the
indemnifying corporation, or of any such constituent corporation, or the
legal representative of any such director, officer, trustee, employee or
agent;
(b) "other enterprise" means any domestic or foreign corporation, other
than the indemnifying corporation, and any partnership, joint venture, sole
proprietorship, trust or other enterprise, whether or not for profit, served
by a corporate agent;
(c) "expenses" means reasonable costs, disbursements and counsel fees;
(d) "liabilities" means amounts paid or incurred in satisfaction of
settlements, judgments, fines and penalties;
(e) "proceeding" means any pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit or proceeding, and any
appeal therein and any inquiry or investigation which could lead to such
action, suit or proceeding; and
(f) References to "other enterprises" include employee benefit plans;
references to "fines" include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the
request of the indemnifying corporation" include any service as a corporate
agent which imposes duties on, or involves services by, the corporate agent
with respect to an employee benefit plan, its participants, or beneficiaries;
and a person who acted in good faith and in a manner the person reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a manner "not opposed
to the best interests of the corporation" as referred to in this section.
(2) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate agent
against his expenses and liabilities in connection with any proceeding
involving the corporate agent by reason of his being or having been such a
corporate agent, other than a proceeding by or in the right of the
corporation, if:
(a) such corporate agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation; and
(b) with respect to any criminal proceeding, such corporate agent had no
reasonable cause to believe his conduct was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent, shall not of itself create a presumption that
such corporate agent did not meet the applicable standards of conduct set
forth in paragraphs 14A:3-5(2)(a) and 14A:3-5(2)(b).
(3) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate agent
against his expenses in connection with any proceeding by or in the right of
the corporation to procure a judgment in its favor which involves the
corporate agent by reason of his being or having been such corporate agent,
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 corporation. However, in such
proceeding no indemnification shall be provided in respect of any claim,
issue or matter as to which such corporate agent shall have been adjudged to
be liable to the corporation, unless and only to the extent that the Superior
Court or the court in which such proceeding was brought shall determine upon
application that despite the adjudication of liability, but in view of all
circumstances of the case, such corporate agent is fairly and reasonably
entitled to indemnity for such expenses as the Superior Court or such other
court shall deem proper.
(4) Any corporation organized for any purpose under any general or
special law of this State shall indemnify a corporate agent against expenses
to the extent that such corporate agent has been successful on the merits or
otherwise in any proceeding referred to in subsections 14A:3-5(2) and 14A:3-
5(3) or in defense of any claim, issue or matter therein.
(5) Any indemnification under subsection 14A:3-5(2) and, unless ordered
by a court, under subsection 14A:3-5(3) may be made by the corporation only
as authorized in a specific case upon a determination that indemnification is
proper in the circumstances because the corporate agent met the applicable
standard of conduct set forth in subsection 14A:3-5(2) or subsection 14A:3-
5(3). Unless otherwise provided in the certificate of incorporation or
bylaws, such determination shall be made
(a) by the board of directors or a committee thereof, acting by a
majority vote of a quorum consisting of directors who were not parties to or
otherwise involved in the proceeding; or
(b) if such a quorum is not obtainable, or, even if obtainable and such
quorum of the board of directors or committee by a majority vote of the
disinterested directors so directs, by independent legal counsel, in a
written opinion, such counsel to be designated by the board of directors; or
(c) by the shareholders if the certificate of incorporation or bylaws or
a resolution of the board of directors or of the shareholders so directs.
(6) Expenses incurred by a corporate agent in connection with a
proceeding may be paid by the corporation in advance of the final disposition
of the proceeding as authorized by the board of directors upon receipt of an
undertaking by or on behalf of the corporate agent to repay such amount if it
shall ultimately be determined that he is not entitled to be indemnified as
provided in this section.
(7) (a) If a corporation upon application of a corporate agent has
failed or refused to provide indemnification as required under subsection
14A:3-5(4) or permitted under subsections 14A:3-5(2), 14A:3-5(3) and 14A:3-
5(6), a corporate agent may apply to a court for an award of indemnification
by the corporation, and such court
(i) may award indemnification to the extent authorized under subsections
14A:3-5(2) and 14A:3-5(3) and shall award indemnification to the extent
required under subsection 14A:3-5(4), notwithstanding any contrary
determination which may have been made under subsection 14A:3-5(5); and
(ii) may allow reasonable expenses to the extent authorized by, and
subject to the provisions of, subsection 14A:3-5(6), if the court shall find
that the corporate agent has by his pleadings or during the course of the
proceeding raised genuine issues of fact or law.
(b) Application for such indemnification may be made:
(i) in the civil action in which the expenses were or are to be
incurred or other amounts were or are to be paid; or
(ii) to the Superior Court in a separate proceeding. If the application
is for indemnification arising out of a civil action, it shall set forth
reasonable cause for the failure to make application for such relief in the
action or proceeding in which the expenses were or are to be incurred or
other amounts were or are to be paid.
The application shall set forth the disposition of any previous
application for indemnification and shall be made in such manner and form as
may be required by the applicable rules of court or, in the absence thereof,
by direction of the court to which it is made. Such application shall be
upon notice to the corporation. The court may also direct that notice shall
be given at the expense of the corporation to the shareholders and such other
person as it may designate in such manner as it may require.
(8) The indemnification and advancement of expenses provided by or
granted pursuant to the other subsections of this section shall not exclude
any other rights, including the right to be indemnified against liabilities
and expenses incurred in proceedings by or in the right of the corporation,
to which a corporate agent may be entitled under a certificate of
incorporation, bylaw, agreement, vote of shareholders, or otherwise; provided
that no indemnification shall be made to or on behalf of a corporate agent if
a judgment or other final adjudication adverse to the corporate agent
establishes that his acts or omissions (a) were in breach of his duty of
loyalty to the corporation or its shareholders, as defined in subsection (3)
of N.J.S.14A:2-7, (b) were not in good faith or involved a knowing violation
of law or (c) resulted in receipt by the corporate agent of an improper
personal benefit.
(9) Any corporation organized for any purpose under any general or
special law of this State shall have the power to purchase and maintain
insurance on behalf of any corporate agent against any expenses incurred in
any proceeding and any liabilities asserted against him by reason of his
being or having been a corporate agent, whether or not the corporation would
have the power to indemnify him against such expenses and liabilities under
the provisions of this section. The corporation may purchase such insurance
from, or such insurance may be reinsured in whole or in part by, an insurer
owned by or otherwise affiliated with the corporation, whether or not such
insurer does business with other insureds.
(10) The powers granted by this section may be exercised by the
corporation, notwithstanding the absence of any provision in its certificate
of incorporation or bylaws authorizing the exercise of such powers.
(11) Except as required by subsection 14A:3-5(4), no indemnification
shall be made or expenses advanced by a corporation under this section, and
none shall be ordered by a court, if such action would be inconsistent with a
provision of the certificate of incorporation, a bylaw, a resolution of the
board of directors or of the shareholders, an agreement or other proper
corporate action, in effect at the time of the accrual of the alleged cause
of action asserted in the proceeding, which prohibits, limits or otherwise
conditions the exercise of indemnification powers by the corporation or the
rights of indemnification to which a corporate agent may be entitled.
(12) This section does not limit a corporation's power to pay or
reimburse expenses incurred by a corporate agent in connection with the
corporate agent's appearance as a witness in a proceeding at a time when the
corporate agent has not been made a party to the proceeding.
Item 7. Exemption from Registration Claimed
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Not Applicable.
Item 8. Exhibits
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Exhibit Number Exhibit
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5.1 Opinion of Dillon, Bitar & Luther, L.L.C.
23.1 Consent of Independent Auditors- KPMG LLP.
23.2 Consent of Dillon, Bitar & Luther, L.L.C. is contained in
Exhibit 5.1
24.1 Power of Attorney. Reference is made to a signature page
of this filing 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 1933 Act, (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, and (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 clauses (1)(i) and (1)(ii) shall not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant
to Section 13 or Section 15(d) of the 1934 Act that are incorporated by
reference into the Registration Statement;
(2) That for the purpose of determining any liability under
the 1933 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; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold.
B. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into 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 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnity provisions summarized in Item 6 or
otherwise, the Registrant has been informed that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 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 1933
Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, on this 23rd day of
October, 2001.
DATARAM CORPORATION
By MARK MADDOCKS
_______________________________________
Mark Maddocks
Vice President, Finance and
Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Mark Maddocks and Thomas J. Bitar and each of
them acting individually, as such person's true and lawful attorneys-in-fact
and agents, each with full power of substitution, for such person, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, 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 such person might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his or her substitutes, may do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated:
Signatures Title Date
----------- ----- ----
ROBERT V. TARANTINO Chairman of the Board of Directors October 1, 2001
____________________ President, Chief Executive
Robert V. Tarantino Officer and Director
MARK MADDOCKS Vice President, Chief Financial October 1, 2001
____________________ Officer
Mark Maddocks
ROGER C. CADY Director October 1, 2001
____________________
Roger C. Cady
RICHARD HOLZMAN Director October 1, 2001
____________________
Richard Holzman
THOMAS A. MAJEWSKI Director October 1, 2001
____________________
Thomas A. Majewski
BERNARD L. RILEY Director October 1, 2001
____________________
Bernard L. Riley
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
DATARAM CORPORATION
EXHIBIT INDEX
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Exhibit Number Exhibit
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5.1 Opinion of Dillon, Bitar & Luther, L.L.C.
23.1 Consent of Independent Auditors - KPMG LLP.
23.2 Consent of Dillon, Bitar & Luther, L.L.C. is contained
in Exhibit 5.1
24.1 Power of Attorney. Reference is made to a signature page
of this filing Registration Statement.