<PAGE>
As filed with the Securities and Exchange Commission on July 19, 2000
Registration No. [[______________]].
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OVERLAND DATA, INC.
(Exact Name of Registrant as Specified in its Charter)
CALIFORNIA 95-3535285
(State or Other Jurisdiction (I.R.S. Employer Identification No.)
of Incorporation or Organization)
8975 BALBOA AVENUE, SAN DIEGO, CA 92123-1599
(Address of Principal Executive Offices) (Zip Code)
OVERLAND DATA, INC.
FIRST AMENDMENT TO 1997 EXECUTIVE STOCK OPTION PLAN
SECOND AMENDMENT TO 1995 STOCK OPTION PLAN
FIRST AMENDMENT TO 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
SCOTT MCCLENDON
CHIEF EXECUTIVE OFFICER
OVERLAND DATA, INC.
8975 BALBOA AVENUE
SAN DIEGO, CA 92123-1599
(Name and Address of Agent For Service)
858/571-5555
(Telephone Number, Including Area Code,
of Agent For Service)
With a copy to:
Carlos D. Heredia, Esq.
Morrison & Foerster LLP
12636 High Bluff Drive
Suite 300
San Diego, CA 92130-2071
--------------------------------------------------------------------------------
Calculation of Registration Fee
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------
Title of Securities Number of Proposed Proposed Amount of
to be Registered shares to be Maximum Maximum Registration
Registered Offering Price Aggregate Fee*
Per Share* Offering Price*
--------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
First Amendment to
1997 Executive Stock
Option Plan
Common Stock 800,000 $11.875 $9,500,000 $2,508.00
--------------------------------------------------------------------------------------------------
Second Amendment to
1995 Stock Option
Plan
Common Stock 863,370 $11.875 $10,252,518 $2,706.66
--------------------------------------------------------------------------------------------------
First Amendment to
1996 Employee Stock
Purchase Plan
Common Stock 271,000 $11.875 $3,218,125 $849.59
--------------------------------------------------------------------------------------------------
</TABLE>
* Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933 on the basis of the average high and low price per
share of the Common Stock of Overland Data, Inc. on the Nasdaq National Market
on July 12, 2000.
In addition, pursuant to Rule 416(c) under the Securities Act, this
Registration Statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
<PAGE>
Part I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form
S8 (plan information and registrant information and employee plan annual
information) will be sent or given to employees as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "SECURITIES ACT"). Such documents
need not be filed with the Securities and Exchange Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act. These documents and the documents
incorporated by reference in this Registration Statement pursuant to Item 3 of
Form S8 (Part II hereof), taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
I-1
<PAGE>
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Overland Data, Inc. (the "REGISTRANT") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC").
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1999 filed with the SEC on September 27, 1999,
pursuant to Section 13(a) of the Securities Exchange Act of
1934, as amended (the "EXCHANGE ACT"), which includes audited
financial statements for the Registrant's latest fiscal year.
(b) The Registrant's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 2000, December 31, 1999 and September 30, 1999,
filed with the SEC pursuant to Section 13(a) of the Exchange
Act.
(c) The Registrant's Current Reports on Form 8-K filed with the SEC
on January 21, 2000, and March 8, 2000, and the Registrant's
Current Report on Form 8-K/A filed with the SEC on May 5, 2000.
(e) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed with
the SEC on January 29, 1997, including any amendment or report
filed for the purpose of updating such description.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange 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
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
II-1
<PAGE>
ITEM 6. INDEMNIFICATION OF DIRECTOR AND OFFICERS
Sections 204(a)(10), 204(a)(11), 204.5 and 317 of the California
Corporations Code permit a corporation to indemnify its directors, officers,
employees and other agents in terms sufficiently broad to permit indemnification
(including reimbursement for expenses) under certain circumstances for
liabilities arising under the Securities Act.
The Registrant's Articles of Incorporation (the "ARTICLES") and
Bylaws (the "BYLAWS") provide for the indemnification of directors and officers
to the maximum extent permitted by the California Corporations Code and
authorize the indemnification by the Registrant of other officers, employees and
other agents as set forth in the California Corporations Code. The Registrant
has entered into indemnification agreements with its directors and executive
officers, in addition to the indemnification provided for in the Articles and
the Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
5.1 Opinion of Morrison & Foerster LLP as to the legality of the securities
being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Morrison & Foerster LLP (contained in the
opinion of counsel filed as Exhibit 5.1 to this
Registration Statement).
24.1 Power of Attorney (set forth on the signature page of this Registration
Statement).
99.1 First Amendment to 1997 Executive Stock Option Plan of Overland Data, Inc.
99.2 Second Amendment to 1995 Stock Option Plan of Overland Data, Inc.
99.3 First Amendment to 1996 Employee Stock Purchase Plan of Overland Data, Inc.
</TABLE>
ITEM 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
II-2
<PAGE>
(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; (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; and (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 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 Exchange
Act that are incorporated by reference into this Registration Statement;
(2) 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; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold upon the
termination of the offering.
B. 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 that is incorporated by reference into 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the indemnity provisions summarized in Item 6 above
or otherwise, the Registrant has been informed that in the opinion of the SEC
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 Securities Act and will be governed by the final
adjudication of such issue.
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
II-3
<PAGE>
and has duly caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of San Diego, State of
California, on July 19, 2000.
OVERLAND DATA, INC.
By: /S/ SCOTT MCCLENDON
Scott McClendon
Chief Executive Officer
II-4
<PAGE>
POWER OF ATTORNEY AND ADDITIONAL SIGNATURES
Each person whose signature appears below constitutes and appoints
Scott McClendon, Martin D. Gray and Vernon A. LoForti, 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 any or all amendments to this Registration Statement,
including post-effective amendments, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorneys-in-fact and agents full power
and authority to do so 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 all
that said attorneys-in-fact and agents or their substitutes, may lawfully do or
cause to be done by virtue thereof.
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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
-------------------------------- ------------------------------------- --------------------
<S> <C> <C>
/s/ Scott McClendon
--------------------------------
Scott McClendon Chairman of the Board and July 19, 2000
Chief Executive Officer
/s/ Martin D. Gray
--------------------------------
Martin D. Gray Vice President, Chief Technical July 19, 2000
Officer, Assistant Secretary and
Director
/s/ Vernon A. LoForti
--------------------------------
Vernon A. LoForti Vice President, Chief Financial July 19, 2000
Officer and Secretary
/s/ Peter Preuss
--------------------------------
Peter Preuss Director July 19, 2000
/s/ John A. Shane
--------------------------------
John A. Shane Director July 19, 2000
/s/ Robert A. Degan
--------------------------------
Robert A. Degan Director July 19, 2000
</TABLE>
II-5
<PAGE>
EXHIBIT TABLE
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
<S> <C>
5.1 Opinion of Morrison & Foerster LLP as to the legality of the securities
being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Morrison & Foerster LLP (contained in the
opinion of counsel filed as Exhibit 5.1 to this
Registration Statement).
24.1 Power of Attorney (set forth on the signature page of this Registration
Statement).
99.1 First Amendment to 1997 Executive Stock Option Plan of Overland Data, Inc.
99.2 Second Amendment to 1995 Stock Option Plan of Overland Data, Inc.
99.3 First Amendment to 1996 Employee Stock Purchase Plan of Overland Data, Inc.
</TABLE>
