<PAGE>
As filed with the Securities and Exchange Commission on January 8, 2001
Registration No. [[______________]].
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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.
2000 STOCK OPTION 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
3811 Valley Centre Drive, Suite 500
San Diego, CA 92130-2332
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<PAGE>
Calculation of Registration Fee
<TABLE>
<CAPTION>
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Proposed Proposed
Title of Number of Maximum Maximum Amount of
Securities to be shares to be Offering Price Aggregate Registration
Registered Registered Per Share* Offering Price* Fee*
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
2000 Stock
Option Plan
Common Stock 1,000,000 8.28125 8,281,250 2,070.31
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
</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 January 4, 2001.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, 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
S-8 (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. These 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 of 1933. These documents and the documents incorporated by
reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part II
hereof), taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act of 1933.
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, 2000, filed with the SEC on September 28,
2000, 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 Report on Form 10-Q for the
quarter ended September 30, 2000, filed with the SEC on
November 14, 2000, pursuant to Section 13(a) of the Exchange
Act.
(c) The Registrant's Current Report on Form 8-K filed with the
SEC on July 25, 2000.
(d) 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 of 1933.
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, Independent
Accountants.
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 2000 Stock Option Plan.
</TABLE>
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 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
II-2
<PAGE>
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(a) 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 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; 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 of 1933, 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 of 1933 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 of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
II-3
<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 San Diego, State of California, on January 8, 2001.
OVERLAND
By: /s/ SCOTT MCCLENDON
-------------------------------------
Scott McClendon
President and 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 President, Chief Executive January 8, 2001
Officer and Director
/s/ MARTIN D. GRAY
-------------------------
Martin D. Gray Vice President, Chief Technical Officer, January 8, 2001
Assistant Secretary and Director
/s/ VERNON A. LO FORTI
-------------------------
Vernon A. LoForti Vice President, Chief Financial Officer January 8, 2001
and Secretary
/s/ PETER PREUSS
-------------------------
Peter Preuss Director January 8, 2001
/s/ JOHN A. SHANE
-------------------------
John A. Shane Director January 8, 2001
/s/ ROBERT A. DEGAN
-------------------------
Robert A. Degan Director January 8, 2001
</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, Independent Accountants.
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 2000 Stock Option Plan.
</TABLE>
