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As filed with the Securities and Exchange Commission on December 30, 1996.
Registration No. 333-_____________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________________
FORM S-8
Registration Statement
Under The
Securities Act of 1933
____________________________
ONTRACK DATA INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-1521650
(State or other jurisdic- (I.R.S. Employer
tion of incorporation Identification No.)
or organization)
6321 BURY DRIVE
EDEN PRAIRIE, MINNESOTA 55346
(Address of Principal Executive Offices and zip code)
____________________________
ONTRACK DATA INTERNATIONAL, INC.
1996 STOCK INCENTIVE PLAN,
NON-QUALIFIED STOCK OPTION PLAN
AND
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
____________________________
John M. Bujan
ONTRACK Data International, Inc.
6321 Bury Drive
Eden Prairie, Minnesota 55346
(612) 937-1107
Copy to:
Martin R. Rosenbaum
Lindquist & Vennum P.L.L.P.
4200 IDS Center
Minneapolis, MN 55402
(612) 371-3211
____________________________
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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 Per Share Price Fee
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Common Stock, 1,544,076 shares(1) $13.875(2) $21,424,054(2) $6,492.14
$.01 par value
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(1) Consists of (i) 1,000,000 shares to be issued under the 1996 Stock
Incentive Plan, (ii) 294,076 shares to be issued under the Non-Qualified
Stock Option Plan and (iii) 250,000 shares to be issued under the Employee
Stock Purchase Plan.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(c) and (h) and based upon the average of the high and
low prices of the Company's Common Stock on the Nasdaq National Market on
December 20, 1996.
PART I
Pursuant to Part I of Form S-8, the information required by Items 1 and 2
of Form S-8 is not filed as a part of this Registration Statement.
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PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
are hereby incorporated by reference:
(a) The Prospectus of the Company dated October 21, 1996 filed pursuant to
Rule 424(b) on October 23, 1996.
(b) The Quarterly Report of the Company on Form 10-Q for the quarter ended
September 30, 1996.
(c) The description of the Company's Common Stock as set forth under Item
1 to the Company's Form 8-A Registration Statement filed on September
17, 1996, which incorporated the material set forth under DESCRIPTION
OF CAPITAL STOCK in the Company's Registration Statement on Form SB-2
filed with the Commission on August 21, 1996 (Registration No. 333-
05470C), including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 prior to the
completion or termination of this offering of shares of Common Stock 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 NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 5.1 of the Company's Bylaws provides as follows:
No director shall be personally liable to the corporation or to its
shareholders for monetary damages for any breach of fiduciary duty as a
director, except to the extent such exemption from liability or limitation
thereof is not permitted under the laws of the State of Minnesota as the
same may exist or may hereafter be amended. Any repeal or modification of
the provisions of this Article shall not adversely affect any right or
protection of a director of the corporation existing at the time of such
repeal or modification.
Any person who at any time shall serve or shall have served as a director,
officer, or employee of the corporation, or of any other enterprise at the
request of the corporation, and the heirs, executors and administrators of
such person shall be indemnified by the corporation in accordance with, and
to the fullest extent permitted by, the provisions of the Minnesota
Business Corporation Act, as it may be amended from time to time.
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Section 302A.521 of the Minnesota Business Corporation Act provides that a
corporation shall indemnify any person made or threatened to be made a party to
a proceeding by reason of acts or omissions performed in their official capacity
as an officer, director, employee or agent of the corporation against judgments,
penalties, fines, including without limitation, excise taxes assessed against
such person with respect to an employee benefit plan, settlements, and
reasonable expenses, including attorneys' fees and disbursements, incurred by
such person in connection with the proceeding if, with respect to the acts or
omissions of such person complained of in the proceeding, such person (i) has
not been indemnified by another organization or employee benefit plan for the
same expenses with respect to the same acts or omissions; (ii) acted in good
faith; (iii) received no improper personal benefit and Minnesota Statutes,
Section 302A.255 (regarding conflicts of interest), if applicable, has been
satisfied; (iv) in the case of a criminal proceeding, has no reasonable cause to
believe the conduct was unlawful; and (v) in the case of acts or omissions by
persons in their official capacity for the corporation, reasonably believed that
the conduct was in the best interests of the corporation, or in the case of acts
or omissions by persons in their capacity for other organization, reasonably
believed that the conduct was not opposed to the best interests of the
corporation. In addition, Section 302A.521, subd. 3, of the Minnesota Statutes
requires payment or reimbursement by the corporation, upon written request, of
reasonable expenses (including attorneys' fees) incurred by a person in advance
of the final disposition of a proceeding in certain instances if a decision as
to required indemnification is made by a disinterested majority of the Board of
Directors present at a meeting at which a disinterested quorum is present, or by
a designated committee of the Board, by special legal counsel, by the
shareholders or by a court.
In addition, the Company has entered into indemnification agreements with
each of its directors and officers, which agreements provide for indemnification
to the full extent permitted by Minnesota law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
The options that have been granted under the Plans were all granted to
employees, directors and consultants of the Company and were exempt from
registration pursuant to Section 4(2) of the Securities Act of 1933.
ITEM 8. EXHIBITS.
EXHIBIT
4.1 1996 Stock Incentive Plan (incorporated by reference to Exhibit 10.1
of the Company's Registration Statement on Form S-B2 as it became
effective on October 21, 1996 Registration No. 333-05470C (the "Form
SB-2")).
4.2 Employee Stock Purchase Plan (incorporated by reference to Exhibit
10.2 of the Form SB-2).
4.3 Non-Qualified Stock Option Plan (incorporated by reference to Exhibit
10.3 of the Form SB-2)
5.1 Opinion of Lindquist & Vennum P.L.L.P
23.1 Consent of Lindquist & Vennum P.L.L.P. (included in Exhibit 5.1)
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23.2 Consent of Price Waterhouse LLP
24.1 Power of Attorney (included on signature page)
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 aggregate,
represents a fundamental change in information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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 registration statement is on Form S-3, Form S-8 or Form F-3 and 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 Securities Exchange Act of 1934 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
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
(h) 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
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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 connected 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 of 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 Eden Prairie, State of Minnesota, on December 30,
1996.
ONTRACK DATA INTERNATIONAL, INC.
By /s/ Michael W. Rogers
----------------------------------------------
Michael W. Rogers
Chairman and Chief Executive Officer
POWER OF ATTORNEY
The undersigned officers and directors of ONTRACK Data International, Inc.
hereby constitute and appoint Michael W. Rogers and Thomas P. Skiba, or either
of them, with power to act one without the other, our true and lawful attorney-
in-fact and agent, with full power of substitution and resubstitution, for us
and in our stead, in any and all capacities to sign any and all amendments
(including post-effective amendments) to this Registration Statement and all
documents relating thereto, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing necessary or advisable
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 or her substitutes, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons on
December 30, 1996 in the capacities indicated.
SIGNATURE
/s/ Michael W. Rogers
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Michael W. Rogers, Chairman and
Chief Executive Officer (Principal
Executive Officer) and Director
/s/ Thomas P. Skiba
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Thomas P. Skiba,
Vice President and Chief
Financial Officer (Principal Financial
and Accounting Officer)
/s/ John E. Pence
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John E. Pence, President and Director
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/s/ Gary S. Stevens
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Gary S. Stevens, Director
/s/ Roger D. Shober
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Roger D. Shober, Director
/s/ Robert M. White
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Robert M. White, Ph.D., Director
/s/ Jacqueline C. Morby
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Jacqueline C. Morby, Director
/s/ Richard J. Runbeck
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Richard J. Runbeck, Director
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EXHIBIT 5.1
December 30, 1996
ONTRACK Data International, Inc.
6321 Bury Drive
Eden Prairie, MN 55346
RE: OPINION OF COUNSEL AS TO LEGALITY OF 1,544,076 SHARES OF
COMMON STOCK TO BE REGISTERED UNDER THE SECURITIES ACT OF 1933
Ladies and Gentlemen:
This opinion is furnished in connection with the registration under the
Securities Act of 1933 on Form S-8 of 1,544,076 shares of Common Stock, $.01 par
value per share, of ONTRACK Data International, Inc. (the "Company") offered to
key employees, directors and consultants pursuant to the ONTRACK Data
International, Inc. 1996 Stock Incentive Plan, Nonqualified Stock Option Plan
and Employee Stock Purchase Plan (the "Plans").
As general counsel for the Company, we advise you that it is our opinion,
based on our familiarity with the affairs of the Company and upon our
examination of pertinent documents, that the 1,544,076 shares of Common Stock to
be offered to employees, directors and consultants by the Company under the
Plans will, when paid for and issued, be validly issued and lawfully
outstanding, fully paid and nonassessable shares of Common Stock of the Company.
The undersigned hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an Exhibit to the Registration Statement
with respect to said shares of Common Stock under the Securities Act of 1933.
Very truly yours,
LINDQUIST & VENNUM P.L.L.P.
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 for the ONTRACK Data International, Inc. 1996 Stock
Incentive Plan, Non-Qualified Stock Option Plan and Employee Stock Purchase Plan
of our report dated March 8, 1996, except as to Note 13, which is as of
October 1, 1996, which appears on page F-2 of the Prospectus dated October 21,
1996 which was filed as part of the Registration Statement (No. 333-05470C) on
Form SB-2, for the two years ended December 31, 1995.
Price Waterhouse LLP
Minneapolis, Minnesota
December 27, 1996
