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As filed with the Securities and Exchange Commission on April 21, 2000
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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OTG SOFTWARE, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 52-1769077
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
</TABLE>
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6701 DEMOCRACY BOULEVARD, SUITE 800
BETHESDA, MARYLAND 20817
(301) 897-1400
(Address, Including Zip Code, and Telephone Number, Including Area Code of
Registrant's Principal Executive Offices)
1998 STOCK INCENTIVE PLAN,
2000 STOCK INCENTIVE PLAN AND
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plans)
RICHARD A. KAY
PRESIDENT, CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD
OTG SOFTWARE, INC.
6701 DEMOCRACY BOULEVARD, SUITE 800
BETHESDA, MARYLAND 20817
(301) 897-1400
(Name and address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Number of Proposed maximum Proposed maximum Amount of
Title of securities Shares to offering price aggregate offering registration
to be registered be Registered (1) per share price fee
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<S> <C> <C> <C> <C>
Common Stock $.01 par value 6,129,412 $15.66(2) $95,986,592 $25,341
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(1) Consists of shares issuable under the 1998 Stock Incentive Plan, the 2000
Stock Incentive Plan and the 2000 Employee Stock Purchase Plan of OTG
Software, Inc.
(2) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low sale prices of the Registrant's
Common Stock on the Nasdaq National Market on April 14, 2000 in accordance
with Rules 457(c) and 457(h) of the Securities Act of 1933, as amended.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the 1998 Stock Incentive Plan, the 2000 Stock Incentive
Plan and the 2000 Employee Stock Purchase Plan of OTG Software, Inc., pursuant
to Rule 428(b)(1) under the Securities Act of 1933, as amended (the "Securities
Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
OTG Software, Inc. (the "Registrant") is subject to the
informational and reporting requirements of Sections 13(a), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission. The following documents, which are on
file with the Securities and Exchange Commission, are incorporated in this
Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act, that contains audited
financial statements for the Registrant's latest fiscal year for which such
statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the document
referred to in (a) above.
(c) The description of the common stock of the Registrant, $.01
par value per share (the "Common Stock"), which is contained in a registration
statement filed under the Exchange Act, including any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares offered hereby have
been sold or which deregisters all shares then remaining unsold, shall be deemed
to be incorporated in this Registration Statement by reference 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 the purposes of this Registration
Statement to the extent 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.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
provides that a corporation has the power to indemnify a director, officer,
employee or agent of the corporation and certain other persons serving at the
request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he is or
is threatened to be made a party by reason of such position, if such person
shall have 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, in any criminal
proceeding, if such person had no reasonable cause to believe his conduct was
unlawful; provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter as
to which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
The Registrant's Amended and Restated Certificate of Incorporation
(the "Certificate of Incorporation") provides that no director of the Registrant
shall be personally liable to the Registrant or its stockholders for monetary
damages for any breach of fiduciary duty as a director, except to the extent
that the Delaware General Corporation Law prohibits the elimination or
limitation of liability of directors for breaches of fiduciary duty.
The Certificate of Incorporation provides that a director or officer
of the Registrant (a) shall be indemnified by the Registrant against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement incurred in connection with any litigation or other legal proceeding
(other than an action by or in the right of the Registrant) brought, or
threatened to be brought, against him by virtue of his position as, or agreement
to become, a director or officer of the Registrant or by virtue of his serving,
or agreeing to serve, at the request of the Registrant, as a director, officer,
or trustee of, or in a similar capacity with, a corporation, trust or other
enterprise, 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 Registrant, and, with
respect to any criminal action or proceeding, had no reasonable cause to believe
his conduct was unlawful and (b) shall be indemnified by the Registrant against
all expenses (including attorneys' fees) and amounts paid in settlement incurred
in connection with any action by or in the right of the Registrant brought, or
threatened to be brought, against him by virtue of his position as, or agreement
to become, a director or officer of the Registrant or by virtue of his serving,
or agreeing to serve, at the request of the Registrant, as a director, officer,
or trustee of, or in a similar capacity with, a corporation, trust or other
enterprise, 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 Registrant, except that no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the Registrant, unless a court
determines that, despite such adjudication but in view of all of the
circumstances, he is entitled to indemnification of such expenses.
Notwithstanding the foregoing, to the extent that a director or officer has been
successful, on the merits or otherwise, including, without limitation, the
dismissal of an action without prejudice, he is required to be indemnified by
the Registrant against all expenses (including attorneys' fees)
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incurred in connection therewith. Expenses shall be advanced to a director or
officer at his request, provided that he undertakes to repay the amount advanced
if it is ultimately determined that he is not entitled to indemnification for
such expenses.
The Registrant is required to provide the indemnification described
herein unless the officer or director has not met the applicable standard of
conduct required for indemnification. Whether the applicable standard of conduct
has been met shall be determined in each instance by (a) a majority vote of the
directors of the Registrant consisting of persons who are not at that time
parties to the action, suit or proceeding in question ("disinterested
directors"), whether or not a quorum, (b) a majority vote of a committee of
disinterested directors designated by majority vote of disinterested directors,
whether or not a quorum, (c) a majority vote of a quorum of the outstanding
shares of stock of all classes entitled to vote for directors, voting as a
single class, which quorum shall consist of stockholders who are not at that
time parties to the action, suit or proceeding in question, (d) independent
legal counsel (who may, to the extent permitted by law, be regular legal counsel
to the Registrant), or (e) a court of competent jurisdiction. In the event of a
determination that the director or officer did not meet the applicable standard
of conduct required for indemnification, or if the Registrant fails to make a
disposition within 60 days after written request for indemnification or
advancement of expenses to the Registrant is made by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant has the
right to participate in such action or assume the defense thereof.
The Certificate of Incorporation further provides that the
indemnification provided therein is not exclusive, and provides that in the
event that the Delaware General Corporation Law is amended to expand the
indemnification permitted to directors or officers, the Registrant must
indemnify those persons to the fullest extent permitted by such law as so
amended.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is attached hereto and
incorporated herein by reference.
Item 9. Undertakings.
1. The Registrant hereby undertakes:
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(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement 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.
(b) That, for the purpose of determining any liability under the
Securities 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.
(c) 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.
2. The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act 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
Securities 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, 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 Bethesda, Maryland on the 21st day of April, 2000.
OTG SOFTWARE, INC.
By: /s/ RONALD W. KAISER
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Ronald W. Kaiser
Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of OTG Software, Inc.,
hereby severally constitute Richard A. Kay and Ronald W. Kaiser, and each of
them singly, our true and lawful attorneys with full power to them, and each of
them singly, to sign for us and in our names in the capacities indicated below,
the Registration Statement on Form S-8 filed herewith and any and all subsequent
amendments to said Registration Statement, and generally to do all such things
in our names and behalf in our capacities as officers and directors to enable
OTG Software, Inc. to comply with all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by said attorneys, or any of them, to said Registration Statement and
any and all amendments thereto.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ RICHARD A. KAY Chief Executive Officer, April 21, 2000
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Richard A. Kay President and Chairman
(Principal Executive Officer)
/s/ RONALD W. KAISER Chief Financial Officer, and Treasurer April 21, 2000
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Ronald W. Kaiser (Principal Financial and Accounting Officer)
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<S> <C> <C>
/s/ F. WILLIAM CAPLE Executive Vice President, Secretary April 21, 2000
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F. William Caple and Director
/s/ GABRIEL A. BATTISTA Director April 21, 2000
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Gabriel A. Battista
/s/ JOHN BURTON Director April 21, 2000
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John Burton
/s/ JOSEPH R. CHINNICI Director April 21, 2000
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Joseph R. Chinnici
/s/ GEATON A. DECESARIS, JR. Director April 21, 2000
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Geaton A. DeCesaris, Jr.
/s/ DONALD B. HEBB, JR. Director April 21, 2000
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Donald B. Hebb, Jr.
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EXHIBIT INDEX
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Exhibit
Number Description
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<S> <C>
4.1* Amended and Restated Certificate of Incorporation of the Registrant.
4.2* Amended and Restated By-Laws of the Registrant.
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
23.2 Consent of KPMG LLP.
24.1 Power of Attorney (included on the signature page of this Registration Statement).
</TABLE>
* Incorporated by reference herein from Exhibits to the Registrant's
Registration Statement on Form S-1 (File No. 333-93581) as declared
effective by the Commission on March 9, 2000.
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Exhibit 5.1
Hale and Dorr LLP
1455 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
(202) 942-8400/Fax (202) 942-8484
April 21, 2000
OTG Software, Inc.
6701 Democracy Boulevard, Suite 800
Bethesda, Maryland 20817
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
This opinion is furnished to you in connection with a Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), for the registration of 6,129,412
shares of Common Stock, $.01 par value per share (the "Shares"), of OTG
Software, Inc., a Delaware corporation (the "Company"), issuable pursuant to the
Company's, Inc. 1998 Stock Incentive Plan, 2000 Stock Incentive Plan and 2000
Employee Stock Purchase Plan (the "Plans").
We have examined the Amended and Restated Certificate of
Incorporation and Amended and Restated By-Laws of the Company, each as amended
and restated to date, and originals, or copies certified to our satisfaction, of
all pertinent records of the meetings of the directors and stockholders of the
Company, the Registration Statement and such other documents relating to the
Company as we have deemed material for the purposes of this opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We express no opinion herein as to the laws of any state or
jurisdiction other than the Delaware General Corporation Law statute and the
federal laws of the United States of America.
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Based upon and subject to the foregoing, we are of the opinion that
the Shares have been duly authorized for issuance and the Shares, when issued
and paid for in accordance with the terms of the Plans, will be validly issued,
fully paid and nonassessable.
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission
as an exhibit to the Registration Statement in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
HALE AND DORR LLP
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Exhibit 23.2
The Board of Directors
OTG Software, Inc.:
We consent to incorporation by reference in the registration statement (No.
333-__) on Form S-8 of OTG Software, Inc. of our report dated February 4, 2000,
relating to the consolidated balance sheets of OTG Software, Inc. and subsidiary
as of December 31, 1999, and 1998, and the related consolidated statements of
operations, stockholders' deficit, and cash flows for each of the years in the
three-year period ended December 31, 1999, and all related schedules, which
report appears in the Form S-1 of OTG Software, Inc. filed on March 9, 2000.
KPMG LLP
McLean, Va
April 21, 2000
