<PAGE>
As filed with the Securities and Exchange Commission on December 27, 1999
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DATA RETURN CORPORATION
(Exact name of registrant as specified in its charter)
Texas 75-2725988
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
222 West Las Colinas Boulevard, Suite 450
Irving, Texas 75039
(Address of principal executive offices, including zip code)
1999 LONG-TERM INCENTIVE PLAN
1998 STOCK OPTION PLAN
EMPLOYMENT AGREEMENT
(Full titles of the Plans)
Sunny C. Vanderbeck
Chief Executive Officer
and Chairman of the Board
Data Return Corporation
222 West Las Colinas Boulevard, Suite 450
Irving, Texas 75039
(972) 869-0770
(Name, address and telephone number of agent for service)
Copy to:
Mark Gunnin
Vice President - General Counsel
Data Return Corporation
222 West Las Colinas Boulevard, Suite 450
Irving, Texas 75039
CALCULATION OF REGISTRATION FEE
<TABLE>
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<S> <C> <C> <C>
Title of securities to be Amount to be Proposed maximum offering Proposed maximum
registered registered(1)(2)(3)(4) price per share(2)(3) aggregate offering price(2)(3)
- ------------------------------------------------------------------------------------------------------------------------------------
Common Stock, par value $.001 per share 9,717,362 shares $9.63 $93,536,858.13
====================================================================================================================================
</TABLE>
================================
Amount of
registration fee (5)
- --------------------------------
$24,693.73
================================
(1) If, as a result of stock splits, stock dividends or similar transactions,
the number of securities purported to be registered on this Registration
Statement changes, the provisions of Rule 416 shall apply to this
Registration Statement, and this Registration Statement shall be deemed to
cover the additional securities resulting from the split of, or the
dividend on, the securities covered by this Registration Statement.
(2) Includes associated rights to purchase one one-hundredth of a share of
Series A Junior Participating Preferred Stock, par value $.001 per share.
Rights initially are attached to and trade with the common stock of the
Registrant. The value attributable to the rights, if any, is reflected in
the price of the common stock.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933 (the "Securities
Act") and calculated as the estimated weighted average maximum offering
price per share based upon outstanding stock options to purchase 7,050,185
shares at an average price of $1.29 per share and an estimated offering
price for the remaining 2,667,177 shares being registered based on the
average of the high and low prices of the common stock reported on The
Nasdaq National Market on December 20, 1999.
(4) Pursuant to Rule 416(c) under the Securities Act, this Registration
Statement also covers an indeterminate amount of plan interests in the
Registrant's 1997 Incentive Plan.
(5) Pursuant to Rule 457(h)(2) under the Securities Act, no separate fee is
required to register plan interests.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
-----------------------------------------------------------
_____________
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act of 1933 and the Note to Part I of
Form S-8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents have been filed by the Registrant with the Securities
and Exchange Commission and are incorporated by reference in this Registration
Statement:
(1) Prospectus dated October 27, 1999, part of the Registration
Statement on Form S-1 (File No. 333-84011).
(2) Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1999.
(3) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A of the Registrant heretofore
filed with the Commission, including any amendments or reports filed
for the purpose of updating such description.
In addition, all documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to
the date of this Registration Statement and prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which deregisters all securities then remaining unsold 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. 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 other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement. Upon the written or oral request of any person
to whom a copy of this Registration Statement has been delivered, the Registrant
will provide without charge to such person a copy of any and all documents
(excluding exhibits thereto unless such exhibits are specifically incorporated
by reference into such documents) that have been incorporated by reference into
this Registration Statement but not delivered herewith. Requests for such
documents should be addressed to Data Return Corporation, 222 West Las Colinas
Boulevard, Suite 450, Irving, Texas 75039, Attention: Chief Financial Officer.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Registrant has authority under Article 2.02A.(16) and 2.02-1 of the
Texas Business Corporation Act (the "TBCA") to indemnify its directors and
officers to the extent provided for in the TBCA. The Registrant's Restated
Articles of Incorporation permit indemnification of directors and officers to
the fullest extent permitted by law.
The TBCA provides in part that a corporation may indemnify a director or
officer or other person who was, is, or is threatened to be made a named
defendant or respondent in a proceeding because the person is or was a director,
officer, employee or agent of the corporation, if it is determined that such
person (i) conducted himself in good faith; (ii) reasonably believed, in the
case of conduct in his official capacity as a director or officer of the
corporation, that his conduct was in the corporation's best interests, and, in
all other cases, that his conduct was at least not opposed to the corporation's
best interests; and (iii) in the case of any criminal proceeding, had no
reasonable cause to believe that this conduct was unlawful. A corporation may
indemnify a person under the TBCA against judgments, penalties, (including
excise and similar taxes), fines, settlement, and reasonable expenses actually
incurred by the person in connection with the proceeding. If the person is found
liable to the corporation or is found liable on the basis that personal benefit
was improperly received by the person, the indemnification is limited to
reasonable expenses actually incurred by the person in connection with the
proceeding, and shall not be made in respect of any proceeding in which the
person shall have been found liable for willful or intentional misconduct in the
performance of his duty to the corporation.
A corporation may also pay or reimburse expenses incurred by a person in
connection with his appearance as a
<PAGE>
witness or other participation in a proceeding at a time when he is not a named
defendant or respondent in the proceeding. Article Eight of the Registrant's
Restated Articles of Incorporation provides that, to the fullest extent
permitted by the TBCA as it exists or as it may be amended, no director shall be
personally liable to the Registrant or its shareholders for monetary damages for
breach of fiduciary duty as a director.
The Registrant intends to obtain directors and officers liability
insurance.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
The following documents are filed as exhibits to this Registration Statement:
4.1 1999 Long-Term Incentive Plan (filed as Exhibit 10.9 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-84011) and incorporated herein by reference).
4.2 1998 Stock Option Plan (filed as Exhibit 10.10 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-84011) and
incorporated by reference).
4.3 Employment Agreement effective as of January 15, 1998, between Data
Return Corporation and Michael S. Shiff (filed as Exhibit 10.13 to the
Registrant's Registration Statement on Form S-1 (Registration No.
333-84011) and incorporated by reference).
5.1 Opinion of Mark Gunnin, Vice President - General Counsel.
23.1 Consent of Mark Gunnin (included in the opinion filed as Exhibit 5.1
of this Registration Statement).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on signature page of this Registration
Statement).
Item 9. Undertakings.
------------
The 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 this 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 this 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 a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
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(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(i) and (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 by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
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.
(4) 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 that is incorporated by reference in this 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.
(5) 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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<PAGE>
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 Irving and State of Texas on the 23rd day of
December, 1999.
DATA RETURN CORPORATION
By: /s/ Sunny C. Vanderbeck
--------------------------------------------
Sunny C. Vanderbeck,
Chief Executive Officer and Chairman of the
Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned directors and officers
of Data Return Corporation, a Texas corporation, which is filing a Registration
Statement on Form S-8 with the Securities and Exchange Commission under the
provisions of the Securities Act of 1933, as amended, hereby constitute and
appoint Sunny C. Vanderbeck and Stuart A. Walker, and each of them, his true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign such Registration Statement and any or all amendments to the
Registration Statement, and all other documents in connection therewith to be
filed 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 and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact as
agents or any of them, or their substitute or 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 indicated.
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<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
Chief Executive Officer
/s/ Sunny C. Vanderbeck and Chairman of the December 23, 1999
- ------------------------------------------
Sunny C. Vanderbeck Board (principal
executive officer)
President, Chief
/s/ Michelle R. Chambers Operating Officer and December 23, 1999
- ----------------------------------------- Director
Michelle R. Chambers
Vice President -- Chief
Technical Officer December 23, 1999
/s/ Jason A. Lochhead
- -----------------------------------------
Jason A. Lochhead
</TABLE>
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<S> <C> <C>
/s/ Stuart A. Walker Vice President - Chief
- ----------------------------------------- Financial Office and December 23, 1999
Stuart A. Walker Treasurer
/s/ Nathan Landow Director December 23, 1999
- ----------------------------------------
Nathan Landow
/s/ T. Geir Ramleth Director December 23, 1999
- ----------------------------------------
T. Geir Ramleth
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
Exhibit Number Exhibit
- -------------- -------
4.1 1999 Long-Term Incentive Plan (filed as Exhibit 10.9 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-84011) and
incorporated herein by reference).
4.2 1998 Stock Option Plan (filed as Exhibit 10.10 to the Registrant's
Registration Statement on Form S-1 (Registration No. 333-84011) and
incorporated by reference).
4.3 Employment Agreement effective as of January 15, 1998, between Data Return
Corporation and Michael S. Shiff (filed as Exhibit 10.13 to the
Registrant's Registration Statement on Form S-1 (Registration No. 333-
84011) and incorporated by reference).
5.1 Opinion of Mark Gunnin, Vice President - General Counsel.
23.1 Consent of Mark Gunnin (included in the opinion filed as Exhibit 5.1 of
this Registration Statement)
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on signature page of this Registration
Statement)
II-6
<PAGE>
Exhibit 5.1
December 23, 1999
Securities and Exchange Commission
450 Fifth Street, N. W.
Washington, D. C. 20549
Re: Registration Statement on Form S-8
Dear Ladies and Gentlemen:
As Vice President - General Counsel and Secretary of Data Return
Corporation, a Texas corporation (the "Company"), I am familiar with its
Restated Articles of Incorporation and Bylaws, as amended to date.
I have examined its corporate proceedings in connection with the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of an aggregate of 9,733,496 shares of the Company's Common Stock, $.001
par value per share (the "Shares"), for issuance under its 1999 Long-Term
Incentive Plan, 1998 Stock Option Plan and Employment Agreement (the "Plans").
I have participated in the preparation of the Company's Registration
Statement on Form S-8 (the "Registration Statement"), filed with the Securities
and Exchange Commission, relating to the registration of the Shares under the
Securities Act.
In connection with the foregoing, I have examined the originals or copies,
certified or otherwise authenticated to my satisfaction, of the resolutions of
the Company's Board of Directors establishing the Plans, the Registration
Statement and such corporate records of the Company, certificates of officers of
the Company, and other instruments and documents as I have deemed necessary to
require as a basis for the opinion hereinafter expressed. As to various
questions of fact material to such opinion, I have, where relevant facts were
not independently established, relied upon statements of officers of the Company
whom I believe to be responsible.
Based upon the foregoing and in reliance thereon, I advise you that in my
opinion the Shares, when issued and delivered in accordance with the provisions
of the Plan, will be legally issued, fully paid and nonassessable.
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Respectfully submitted,
/s/ Mark Gunnin
Mark Gunnin, Vice President - General
Counsel and Secretary
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 pertaining to the 1999 Long-Term Incentive Plan, 1998
Stock Option Plan and the Employment Agreement, of our report dated May 18,
1999, except for Note 9, as to which the date is September 27, 1999, with
respect to the financial statements of Data Return Corporation included in
the Registration Statement on Form S-1 of Data Return Corporation (File No.
333-84011) filed with the Securities and Exchange Commission in the form in
which it became effective.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Dallas, Texas
December 23, 1999
