<PAGE>
As filed with the Securities and Exchange Commission on October 9, 1998
Registration Statement No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
USDATA CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 75-2405152
(State of Incorporation) (I.R.S. Employer Identification No.)
2435 North Central Expressway, Richardson, TX 75080-2722
(Address of principal executive offices, including zip code)
AMENDED AND RESTATED 1994 EQUITY COMPENSATION PLAN
(Full title of the plan)
James A. Ounsworth, Esq.
800 The Safeguard Building
435 Devon Park Drive
Wayne, PA 19087-1945
(Name and Address of Agent for Service)
(610) 293-0600
(Telephone Number of Agent for Service)
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered(1) share price(2) fee(2)
- ------------------- ------------- ----------------- --------------- ---------------
<S> <C> <C> <C> <C>
Common Stock, 773,910 $ (2) $2,181,980 $ 643.68
$.01 par value
</TABLE>
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this
Registration Statement also registers such additional shares as may
hereinafter be offered or issued to prevent dilution resulting from
stock splits, stock dividends, recapitalizations or certain other
capital adjustments.
(2) Calculated pursuant to Rule 457(c) and 457(h). As to 242,316 shares
subject to outstanding but unexercised options, the fee is computed
based upon the prices at which the options may be exercised as
follows: 164,571 at $4.50 and 77,745 at $4.4375. As to the 531,594
remaining shares that are reserved for future issuance, the fee is
computed based upon the average of the highest and lowest prices for
a share of Common Stock of the Registrant on October 5, 1998 as
reported on the Nasdaq National Market.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant has previously filed a Registration Statement on Form S-8 (No.
333-964) (the "Previous Registration Statement") with respect to an aggregate of
1,301,322 shares of Common Stock, of which 1,226,090 shares of Common Stock are
issuable under the Amended and Restated 1994 Equity Compensation Plan (the "1994
Plan"). The Registrant is filing this Registration Statement to register an
additional 773,910 shares of Common Stock for issuance under the 1994 Plan, so
that an aggregate of 2,000,000 shares of Common Stock under the 1994 Plan shall
be registered under the Securities Act of 1933. The contents of the Previous
Registration Statements are incorporated herein by reference including periodic
reports that the Registrant filed after the Previous Registration Statements to
maintain current information about the Registrant.
EXPERTS
The balance sheets of USDATA Corporation as of December 31, 1997 and 1996, and
the related statements of operations, stockholders' equity and cash flows for
each of the years in the three-year period ended December 31, 1997, incorporated
by reference have been incorporated by reference herein in reliance upon the
reports of PricewaterhouseCoopers LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
LEGAL OPINION AND INTERESTS OF COUNSEL
The validity of the issuance of the shares of Common Stock offered hereby has
been passed upon for the Company by James A. Ounsworth, Esquire, 800 The
Safeguard Building, 435 Devon Park Drive, Wayne, PA 19087-1945. Mr. Ounsworth is
Senior Vice President, General Counsel and Secretary of Safeguard Scientifics,
Inc. Safeguard Scientifics (Delaware), Inc., a wholly owned subsidiary of
Safeguard Scientifics, Inc., beneficially owns 2,701,843 shares of Common Stock
of the Registrant and currently exercisable warrants to purchase an additional
698,238 shares of Common Stock of the Registrant, and Safeguard Delaware, Inc.,
a wholly owned subsidiary of Safeguard Scientifics, Inc., beneficially owns
221,605 shares of Common Stock of the Registrant, representing in the aggregate
approximately 30.3% of the Company's outstanding shares of Common Stock.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement.
4.1 Amended and Restated 1994 Equity Compensation Plan
5.1 Opinion of James A. Ounsworth, Esquire
2
<PAGE>
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Counsel -- included in opinion filed as Exhibit 5 hereto
24.1 Power of Attorney -- included with signature page of this Registration
Statement
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 Richardson, Texas on October 8, 1998.
USDATA CORPORATION
By: /s/ Robert A. Merry
-------------------------------
Robert A. Merry
President and Chief
Executive Officer
4
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. EACH PERSON IN SO SIGNING, ALSO MAKES,
CONSTITUTES AND APPOINTS ROBERT A. MERRY AND ROBERT L. DRURY, AND EACH OF THEM,
HIS TRUE AND LAWFUL ATTORNEYS-IN-FACT, IN HIS NAME, PLACE, AND STEAD TO EXECUTE
AND CAUSE TO BE FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ANY AND ALL
AMENDMENTS TO THIS REGISTRATION STATEMENT.
<TABLE>
<CAPTION>
<S> <C> <C>
Dated: October 8, 1998 /s/ Robert A. Merry
--------------------------------------------
Robert A. Merry, President, Chief
Executive Officer and Director
(Principal Executive Officer)
Dated: October 8, 1998 /s/ Robert L. Drury
--------------------------------------------
Robert L. Drury, Vice President of Finance
and Chief Financial Officer, Treasurer and
Secretary
(Principal Financial and Accounting Officer)
Dated: October 5, 1998 /s/ Max D. Hopper
--------------------------------------------
Max D. Hopper, Chairman of the Board
Dated: October 6, 1998 /s/ Gary J. Anderson
--------------------------------------------
Gary J. Anderson, Director
Dated: October 5, 1998 /s/ James W. Dixon
--------------------------------------------
James W. Dixon, Director
Dated: October 5, 1998 /s/ Jack L. Messman
--------------------------------------------
Jack L. Messman, Director
Dated: October 6, 1998 /s/ Arthur R. Spector
--------------------------------------------
Arthur R. Spector, Director
</TABLE>
5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
- ------- -----------------------
<S> <C>
4.1 Amended and Restated 1994 Equity Compensation Plan
5.1 Opinion of James A. Ounsworth, Esquire
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Counsel -- included in opinion filed as Exhibit 5
hereto
24.1 Power of Attorney -- included with signature page of this
Registration Statement
</TABLE>
6
<PAGE>
EXHIBIT 4.1
USDATA CORPORATION
AMENDED AND RESTATED 1994 EQUITY COMPENSATION PLAN
SECTION 1. Purpose; Definitions
The purpose of the USDATA Corporation 1994 Equity Compensation Plan
(the "Plan") is to provide employees (including employees who are also officers
or directors), non-employee directors, and Eligible Independent Contractors (as
hereinafter defined) of USDATA Corporation (the "Company") with the opportunity
to receive grants of incentive stock options, nonqualified stock options, stock
appreciation rights and restricted stock awards. The Company believes that the
Plan will enable the Company to attract, retain and motivate its employees,
non-employee directors and Eligible Independent Contractors, will encourage Plan
participants to contribute materially to the growth of the Company for the
benefit of the Company's stockholders, and will align the economic interests of
the Plan participants with those of the stockholders.
For the purposes of the Plan, the following terms shall be defined as
set forth below:
a. "Board" means the Board of Directors of the Company.
b. "Code" means the Internal Revenue Code of 1986, as amended
from time to time, and any successor thereto.
c. "Committee" means the Committee designated by the Board to
administer the Plan.
d. "Company" means USDATA Corporation, its subsidiaries or any
successor organization.
e. "Disability" means permanent and total disability within the
meaning of Section 22(e)(3) of the Code.
f. "Eligible Independent Contractor" means an independent
consultant or advisor hired by the Company to provide bona fide services for the
Company that are not in connection with the offer or sale of securities in a
capital-raising transaction.
g. "Employed by the Company" shall mean employment as an employee
or Eligible Independent Contractor or member of the Board, so that for purposes
of exercising Stock Options and Stock Appreciation Rights and satisfying
conditions with respect to Restricted Stock Grants, a Participant shall not be
considered to have terminated employment until the Participant ceases to be an
employee, Eligible Independent Contractor or member of the Board, provided,
however, that the Committee may determine otherwise as may be specified in an
individual Participant's Grant Letter.
<PAGE>
h. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
i. "Fair Market Value" means the fair market value of the Stock
as determined by the Committee in good faith based on the best available facts
and circumstances at the time; provided, however, that where there is a public
market for the Stock and the Stock is registered under the Exchange Act, Fair
Market Value shall mean the per share or aggregate value of the Stock as of any
given date, determined as follows: (i) if the principal trading market for the
Stock is a national securities exchange or the Nasdaq National Market, the last
reported sale price thereof on the relevant date or, if there were no trades on
that date, the latest preceding date upon which a sale was reported, or (ii) if
the Stock is not principally traded on such exchange or market, the mean between
the last reported "bid" and "asked" prices of Stock on the relevant date, as
reported on Nasdaq or, if not so reported, as reported by the National Daily
Quotation Bureau, Inc. or as reported in a customary financial reporting
services, as applicable and as the Committee determines.
j. "Grant" means any Stock Option, Stock Appreciation Right or
Restricted Stock award granted pursuant to the Plan.
k. "Incentive Stock Option" means any Stock Option intended to be
and designated as an "Incentive Stock Option" within the meaning of Section 422
of the Code.
l. "Insider" means a Participant who is subject to Section 16 of
the Exchange Act.
m. "Non-Qualified Stock Option" means any Stock Option that is
not an Incentive Stock Option.
n. "Participant" means an employee, non-employee director or
Eligible Independent Contractor to whom an award is granted pursuant to the
Plan.
o. "Plan" means the USDATA Corporation 1994 Equity Compensation
Plan, as hereinafter amended from time to time.
p. "Restricted Stock" means an award of shares of Stock that is
subject to restrictions pursuant to Section 7 below.
q. "Securities Act" shall mean the Securities Act of 1933, as
amended.
r. "Securities Broker" means the registered securities broker
acceptable to the Company who agrees to effect the cashless exercise of an
Option pursuant to Section 5(d) hereof.
s. "Stock" means the Common Stock of the Company, par value $.01
per share.
t. "Stock Appreciation Right" means the right, pursuant to an
award granted under Section 6 below, to surrender to the Company all (or a
portion) of a
<PAGE>
Stock Option in exchange for an amount in cash and/or shares of Stock equal in
value to the excess of (i) the Fair Market Value, as of the date such right is
exercised and the related Stock Option (or such portion thereof) is surrendered,
of the shares of Stock covered by such Stock Option (or such portion thereof),
over (ii) the aggregate exercise price of such Stock Appreciation Right (or such
portion thereof).
u. "Stock Option" or "Option" means any option to purchase shares
of Stock (including Restricted Stock, if the Committee so determines) granted
pursuant to Section 5 below.
v. "Termination for Cause" shall mean, except to the extent
specified otherwise by the Committee, a finding by the Committee that the
Participant has breached his or her employment or service contract,
non-competition agreement or other obligation with the Company, or has been
engaged in disloyalty to the Company, including, without limitation, fraud,
embezzlement, theft, commission of a felony or proven dishonesty in the course
of his or her employment or service, or has disclosed trade secrets or
confidential information of the Company to persons not entitled to receive such
information.
SECTION 2. Administration
The Plan shall be administered by a Committee which shall consist of
two or more non-employee directors appointed by the Board. In the absence of the
designation of a Committee to administer the Plan, the Plan shall be
administered by the full Board.
The Committee shall have the authority to:
(a) select the Participants to whom Grants may from time to time
be made hereunder;
(b) determine the type, size and terms of the Grants to be made to
each such Participant;
(c) determine the time when the Grants will be made and the
duration of any applicable exercise or restriction period, including the
criteria for exercisability and the acceleration of exercisability;
(d) amend the terms of any outstanding award (with the consent of
the Participant) to reflect terms not otherwise inconsistent with the Plan,
including, but not limited to, amendments concerning vesting acceleration or
forfeiture waiver regarding any award or the extension of a Participant's right
with respect to Grants under the Plan as a result of termination of employment
or service or otherwise, based on such factors as the Committee shall determine,
in its sole discretion, or substitution of new Stock Options for previously
granted Stock Options, including previously granted Stock Options having high
option prices;
(e) establish from time to time any policy or program to encourage
or require Participants to achieve or maintain equity ownership in the Company
through the use of the Plan upon such terms and conditions as the Committee may
determine
<PAGE>
in its sole discretion, and thereafter to amend, modify or terminate such policy
or program as the Committee may from time to time deem appropriate; and
(f) deal with any other matters arising under the Plan.
The Committee shall have full power and authority to administer and
interpret the Plan and any Grant made under the Plan, to make factual
determinations and to adopt, alter and repeal such administrative rules,
guidelines, practices, agreements and instruments for implementing the Plan and
for the conduct of its business as it deems necessary or advisable, in its sole
discretion. All decisions made by the Committee pursuant to the provisions of
the Plan shall be final and binding on all persons having any interest in the
Plan or in any Grants made hereunder. All power of the Committee shall be
executed in its sole discretion, in the best interest of the Company, not as a
fiduciary, and in keeping with the objectives of the Plan.
No member of the Board or the Committee shall be liable for any action
or determination made in good faith with respect to the Plan or any Grant made
under it. Nothing herein shall be deemed to expand the personal liability of a
member of the Board or Committee beyond that which may arise under any
applicable standards set forth in the Company's Certificate of Incorporation,
by-laws and Delaware law, nor shall anything herein limit any rights to
indemnification or advancement of expenses to which any member of the Board or
the Committee may be entitled under any applicable law, the Company's
Certificate of Incorporation or by-laws, agreement, vote of the stockholders or
directors, or otherwise.
SECTION 3. Stock Subject to the Plan
(a) The aggregate number of shares of Stock that may be issued or
transferred under the Plan is 2,000,000, subject to adjustment pursuant to
Section 3(b) below. Such shares may be authorized but unissued shares or
reacquired shares of Stock, including shares purchased by the Company on the
open market for purposes of the Plan. In the event the number of shares of Stock
issued under the Plan and the number of shares of Stock subject to outstanding
awards equals the maximum number of shares of Stock authorized under the Plan,
no further awards shall be made unless the Plan is amended to increase the
number of shares of Stock issuable and transferable hereunder or additional
shares of Stock become available for further awards under the Plan. If and to
the extent that Options or Stock Appreciation Rights granted under the Plan
terminate, expire or are canceled, forfeited, exchanged or surrendered without
having been exercised, or if any shares of Restricted Stock are forfeited, the
shares subject to such Grants shall again be available for subsequent awards
under the Plan.
(b) If there is any change in the number or kind of shares of
Company Stock outstanding (i) by reason of a stock dividend, spin off,
recapitalization, stock split, or combination or exchange of shares, (ii) by
reason of a merger, reorganization or consolidation in which the Company is the
surviving corporation, (iii) by reason of a reclassification or change in par
value, or (iv) by reason of any other extraordinary or unusual event affecting
the outstanding Company Stock as a class without the Company's receipt of
consideration, or if the value of outstanding shares of Company Stock is
substantially reduced as a result of a spin off or the Company's payment of
<PAGE>
an extraordinary dividend or distribution, then unless such event or change
results in the termination of all outstanding awards under the Plan, the
Committee shall preserve the value of the outstanding awards by adjusting the
maximum number and class of shares issuable under the Plan to reflect the effect
of such event or change in the Company's capital structure, and by making
appropriate adjustments to the number and class of shares subject to an
outstanding award and/or the option price of each outstanding Option and Stock
Appreciation Right, except that any fractional shares resulting from such
adjustments shall be eliminated by rounding any portion of a share equal to .5
or greater up, and any portion of a share equal to less than .5 down, in each
case to the nearest whole number.
SECTION 4. Eligibility; Participant Limitations Concerning Issuances
All employees, non-employee directors and Eligible Independent
Contractors are eligible to participate in the Plan. The maximum aggregate
number of shares of Stock that shall be subject to Grants made under the Plan to
any Participant shall not exceed 500,000. The terms and provisions of Grants
made under the Plan may vary between Participants or as to the same Participant
to whom more than one Grant may be awarded.
SECTION 5. Stock Options
Stock Options may be granted alone, in addition to, or in tandem with
other awards granted under the Plan. Any Stock Option granted under the Plan
shall be in such form as the Committee may from time to time approve. Stock
Options granted under the Plan may be of two types: (i) Incentive Stock Options
and (ii) Non-Qualified Stock Options.
The Committee shall have the authority to grant Incentive Stock
Options, Non-Qualified Stock Options or both types of Stock Options (in each
case with or without Stock Appreciation Rights). To the extent that any Stock
Option does not qualify as an Incentive Stock Option, it shall constitute a
Non-Qualified Stock Option.
Anything in the Plan to the contrary notwithstanding, no term of this
Plan relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be so
exercised, so as to disqualify the Plan under Section 422 of the Code, or,
without the consent of the Participant affected, to disqualify any Incentive
Stock Option under Section 422.
Options granted under the Plan shall be subject to the following terms
and conditions and shall contain such additional terms and conditions, not
inconsistent with the terms of the Plan, as the Committee shall deem
appropriate:
(a) Option Price. The option price per share of Stock purchasable
under a Stock Option shall be determined by the Committee at the time of grant,
provided, however, that the option price per share for any Incentive Stock
Option shall be not less than 100% of the Fair Market Value of the Stock at the
time of grant.
Any Incentive Stock Option granted to any Participant who, at
the time the Option is granted, owns more than 10% of the voting power of all
classes of stock
<PAGE>
of the Company or of a Parent or Subsidiary corporation (within the meaning of
Section 424 of the Code), shall have an exercise price no less than 110% of the
Fair Market Value per share on the date of the grant.
(b) Option Term. The term of each Stock Option shall be fixed by
the Committee, but no Stock Option shall be exercisable more than ten years
after the date the Stock Option is granted. However, any Incentive Stock Option
granted to any Participant who, at the time the Option is granted, owns more
than 10% of the voting power of all classes of stock of the Company or of a
Parent or Subsidiary corporation may not have a term of more than five years. No
Stock Option may be exercised by any person after expiration of the term of the
Stock Option.
(c) Exercisability. Stock Options shall be exercisable at such
time or times and subject to such terms and conditions as shall be determined by
the Committee at or after grant. If the Committee provides, in its discretion,
that any Stock Option is exercisable only in installments, the Committee may
waive such installment exercise provisions at any time at or after grant in
whole or in part, based on such factors as the Committee shall determine, in its
sole discretion.
(d) Method of Exercise. Subject to whatever installment exercise
provisions apply under Section 5(c), Stock Options may be exercised, in whole or
in part at any time and from time to time during the Option period, by giving
written notice of exercise to the Company specifying the number of shares to be
purchased. Such notice shall be accompanied by payment in full of the purchase
price, either by cash, check, or such other instrument as the Committee may
accept. As determined by the Committee, in its sole discretion, at or after
grant, payment in full or in part may also be made in the form of unrestricted
Stock already owned by the Participant (including Company Stock acquired in
connection with the exercise of an Option, subject to such restrictions as the
Committee deems appropriate); provided, however, that (i) in the case of an
Incentive Stock Option, the right to make a payment in the form of unrestricted
Stock already owned by the Participant may be authorized only at the time the
Option is granted and (ii) the Company may require that the Stock has been owned
by the Participant for the requisite period of time necessary to avoid a charge
to the Company's earnings for financial reporting purposes and adverse
accounting consequences to the Company with respect to the Option.
If specified by the Committee in the agreement governing a
Stock Option at the time of grant, the Committee may, in its sole discretion,
upon receipt of such Participant's written notice to exercise, elect to cash out
all or part of the portion of the Stock Option to be exercised by paying the
Participant an amount, in cash or Stock, equal to the excess of the Fair Market
Value of the Stock over the option price on the effective date of such cash-out.
To the extent permitted under the applicable laws and
regulations, at the request of the Participant and if authorized by the
Committee, in its sole discretion, at or after grant, the Company agrees to
cooperate in a "cashless exercise" of a Stock Option. The cashless exercise
shall be effected by the Participant delivering to the Securities Broker
instructions to sell a sufficient number of shares of Stock to cover the cost
and expenses associated therewith.
<PAGE>
No shares of Stock shall be issued until full payment therefor
has been made. A Participant shall not have any right to dividends or other
rights of a stockholder with respect to shares subject to the Option until such
time as Stock is issued in the name of the Participant following exercise of the
Option in accordance with the Plan.
(e) Stock Option Agreement. Each Option granted under this Plan
shall be evidenced by an appropriate Stock Option agreement, which agreement
shall expressly specify whether such Option is an Incentive Stock Option or a
Non-Qualified Stock Option and shall be executed by the Company and the
Participant. The agreement shall contain such terms and provisions, not
inconsistent with the Plan, as shall be determined by the Committee.
(f) Replacement Options. If an Option granted pursuant to the Plan
may be exercised by an optionee by means of a stock-for-stock swap method of
exercise as provided in 5(d) above, then the Committee may, in its sole
discretion and at the time of the original option grant, authorize the
Participant to automatically receive a replacement Option pursuant to this part
of the Plan. This replacement option shall cover a number of shares determined
by the Committee, but in no event more than the number of shares equal to the
difference between the number of shares of the original option exercised and the
net shares received by the Participant from such exercise. The per share
exercise price of the replacement option shall equal the then current Fair
Market Value of a share of Stock, and shall have a term extending to the
expiration date of the original Option.
The Committee shall have the right, in its sole discretion and
at any time, to discontinue the automatic grant of replacement options if it
determines the continuance of such grants to no longer be in the best interest
of the Company.
(g) Non-transferability of Options. Except as provided below, no
Stock Option shall be transferable by the Participant other than by will or by
the laws of descent and distribution, and all Stock Options shall be
exercisable, during the Participant's lifetime, only by the Participant. When a
Participant dies, the representative or other person entitled to succeed to the
rights of the Grantee may exercise such rights, subject to the Company receiving
satisfactory proof of his or her right to receive the Grant under the
Participant's will or under the applicable laws of descent and distribution.
Notwithstanding the foregoing, the Committee may provide, at or after Grant,
that a Participant may transfer Nonqualified Stock Options pursuant to a
domestic relations order or to family members or other persons or entities
according to such terms as the Committee may determine.
(h) Termination of Employment; Disability; Death
(i) Unless otherwise determined by the Committee at or after
grant, in the event of a Participant's termination of employment
(voluntary or involuntary) for any reason other than as provided below,
any Stock Option held by such Participant may thereafter be exercised
by the Participant, to the extent it was exercisable at the time of
such termination or on such accelerated basis as the Committee may
determine at or after grant, for a period of three months (or such
shorter period as the Committee may specify at grant) from
<PAGE>
the date of such termination of employment or until the expiration of
the stated term of such Stock Option, whichever period is shorter.
(ii) Unless otherwise determined by the Committee at or after
grant, if any Participant ceases to be employed by the Company on
account of a Termination for Cause by the Company, any Stock Option
held by such Participant shall terminate as of the date the Participant
ceases to be employed by the Company, and the Participant shall
automatically forfeit all Stock underlying any exercised portion of an
Option for which the Company has not yet delivered the share
certificates, upon refund by the Company of the Exercise Price paid by
the Participant for such Stock.
(iii) Unless otherwise determined by the Committee at or after
grant, if a Participant's employment by the Company terminates by
reason of Disability, any Stock Option held by such Participant may
thereafter be exercised by the Participant, to the extent it was
exercisable at the time of termination, or on such accelerated basis as
the Committee may determine at or after grant, for a period of one year
(or such shorter period as the Committee may specify at grant) from the
date of such termination of employment or until the expiration of the
stated term of such Stock Option, whichever period is shorter.
(iv) Unless otherwise determined by the Committee at or after
grant, if any Participant dies while employed by the Company or within
three months after the date on which the Participant ceases to be
employed by the Company on account of termination of employment
specified in Section 5(h)(i) above (or within such other period of time
as may be specified by the Committee), any Stock Option held by such
Participant may thereafter be exercised, to the extent then exercisable
or on such accelerated basis as the Committee may determine at or after
grant, by the legal representative of the estate or by the legatee of
the Participant under the will of the Participant, for a period of one
year (or such shorter period as the Committee may specify at grant)
from the date of such termination of employment or until the expiration
of the stated term of such Stock Option, whichever period is shorter.
(i) Incentive Stock Option Limitation. The aggregate Fair Market
Value (determined as of the time of grant) of the Stock with respect to which
Incentive Stock Options are exercisable for the first time by the Participant
during any calendar year under the Plan and/or any other stock option plan of
the Company shall not exceed $100,000. An Incentive Stock Option shall not be
granted to any person who is not an employee of the Company or a parent or
subsidiary (within the meaning of section 424(f) of the Code).
(j) Issuance of Shares . Within a reasonable time after exercise
of an Option, the Company shall cause to be delivered to the Participant a
certificate for the Stock purchased pursuant to the exercise of the Option.
SECTION 6. Stock Appreciation Rights
(a) Grant and Exercise. Stock Appreciation Rights may be granted
either separately or in tandem with all or part of any Stock Option granted
under the Plan.
<PAGE>
The provisions of Stock Appreciation Rights awarded under the Plan need not be
the same with respect to each Participant. In the case of a Non-Qualified Stock
Option, such rights may be granted either at the grant of such Stock Option or
at any time thereafter while the Option remains outstanding. In the case of an
Incentive Stock Option, such rights may be granted only at the time of the grant
of such Stock Option. The Committee shall establish the base amount of the Stock
Appreciation Rights at the time the Stock Appreciation Right is granted. Unless
the Committee determines otherwise, the base amount of each Stock Appreciation
Right shall be equal to the per share option price of the related Stock Option
or, if there is no related Stock Option, the Fair Market Value of a share of
Stock as of the date of grant of such Stock Appreciation Right.
A Stock Appreciation Right or applicable portion thereof
granted with respect to a given Stock Option shall terminate and no longer be
exercisable upon the termination or exercise of the related Stock Option, except
that, unless otherwise determined by the Committee, in its sole discretion, at
the time of grant, a Stock Appreciation Right granted with respect to less than
the full number of shares covered by a related Stock Option shall not be reduced
until the number of shares covered by an exercise or termination of the related
Stock Option exceeds the number of shares not covered by the Stock Appreciation
Right.
A Stock Appreciation Right may be exercised by a Participant,
in accordance with Section 6(b), by surrendering the applicable portion of the
related Stock Option. Upon such exercise and surrender, the Participant shall be
entitled to receive an amount determined in the manner prescribed in Section
6(b). Stock Options which have been so surrendered, in whole or in part, shall
no longer be exercisable to the extent the related Stock Appreciation Rights
have been exercised.
(b) Terms and Conditions. Stock Appreciation Rights shall be
subject to such terms and conditions, not inconsistent with the provisions of
the Plan, as shall be determined from time to time by the Committee, including
the following:
(i) Stock Appreciation Rights shall be exercisable only at
such time or times and to the extent that the Stock Options to which
they relate, if any, shall be exercisable in accordance with the
provisions of Section 5 and this Section 6 of the Plan.
(ii) Upon the exercise of a Stock Appreciation Right, a
Participant shall be entitled to receive up to, but not more than, an
amount in cash and/or shares of Stock equal in value to the excess of
the Fair Market Value of one share of Stock (as of the date the Stock
Appreciation Right is exercised and the related Stock Option is
surrendered) over the exercise price of the Stock Appreciation Right,
multiplied by the number of shares of Stock in respect of which the
Stock Appreciation Right shall have been exercised, with the Committee
having the right to determine the form of payment.
(iii) Stock Appreciation Rights shall be transferable only
when and to the extent that the underlying Stock Option would be
transferable under Section 5(g) of the Plan.
<PAGE>
(iv) A Stock Appreciation Right granted in connection with an
Incentive Stock Option may be exercised only if and when the market
price of the Stock subject to the Incentive Stock Option exceeds the
exercise price of such Stock Option.
SECTION 7. Restricted Stock
(a) Administration. Shares of Restricted Stock may be issued
either alone or in addition to other awards granted under the Plan. The
Committee shall determine the employees, non-employee directors or Eligible
Independent Contractors to whom, and the time or times at which, grants of
Restricted Stock will be made, the number of shares to be awarded, the price (if
any) to be paid by the recipient of Restricted Stock (subject to Section 7(b)),
the time or times within which such awards may be subject to forfeiture, and all
other conditions of the awards. The Committee may condition the grant of
Restricted Stock upon the attainment of specified performance goals or such
other factors as the Committee may determine, in its sole discretion. The
provisions of Restricted Stock awards need not be the same with respect to each
Participant.
(b) Awards and Certificates. The prospective recipient of a
Restricted Stock award shall not have any rights with respect to such award
unless and until such recipient has executed an agreement evidencing the award
and has delivered a fully executed copy thereof to the Company, and has
otherwise complied with the applicable terms and conditions of such award.
(i) The purchase price for shares of Restricted Stock shall be
established by the Committee and may be zero.
(ii) Awards of Restricted Stock may be accepted within a
period of 60 days (or such shorter period as the Committee may specify
at grant) after the grant date, by executing a Restricted Stock award
agreement and paying whatever price (if any) is required under Section
7(b)(i).
(iii) Each Participant receiving a Restricted Stock award
shall be issued a certificate in respect of such shares of Restricted
Stock. Such certificate shall be registered in the name of such
Participant, and shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such award,
substantially in the following form:
"The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions (including forfeiture) of the USDATA Corporation
1994 Equity Compensation Plan and an Agreement entered into
between the registered owner and USDATA Corporation. Copies of
such Plan and Agreement are on file at the offices of USDATA
Corporation."
(iv) The Committee shall require that the certificates
evidencing such Restricted Stock be held in custody by the Company
until the restrictions thereon shall have lapsed, and that, as a
condition of any Restricted Stock
<PAGE>
award, the Participant shall have delivered a stock power, endorsed in
blank, relating to the Stock covered by such award.
(c) Restrictions and Conditions. The shares of Restricted Stock
awarded pursuant to this Section 7 shall be subject to the following
restrictions and conditions:
(i) Subject to the provisions of this Plan and the Restricted
Stock award agreement, during a period set by the Committee commencing
with the date of such award (the "Restriction Period"), the Participant
shall not be permitted to sell, transfer, pledge, assign or otherwise
encumber shares of Restricted Stock awarded under the Plan. Within
these limits, the Committee, at its sole discretion, may provide for
the lapse of such restrictions in installments and may accelerate or
waive such restrictions in whole or in part, based on service,
performance and/or such other factors or criteria as the Committee may
determine, in its sole discretion.
(ii) Except as provided in this paragraph (ii) and Section
7(c)(i), the Participant shall have, with respect to the shares of
Restricted Stock, all of the rights of a stockholder of the Company,
including the right to vote the shares and the right to receive any
cash dividends. The Committee, in its sole discretion, as determined at
the time of award, may permit or require the payment of cash dividends
to be deferred and, if the Committee so determines, reinvested in
additional Restricted Stock to the extent shares are available under
Section 3.
(iii) Subject to the applicable provisions of the Restricted
Stock award agreement and this Section 7, upon termination of a
Participant's employment with the Company for any reason during the
Restriction Period, all shares still subject to restriction shall be
forfeited by the Participant, subject to any payments for such shares
as may be provided in the Restricted Stock award agreement.
(iv) The Committee may, in its sole discretion, waive in whole
or in part any or all remaining restrictions with respect to such
Participant's shares of Restricted Stock, based on such factors as the
Committee may deem appropriate.
(v) If and when the Restriction Period expires without a prior
forfeiture of the Restricted Stock subject to such Restriction Period,
the certificates for such shares shall be delivered to the Participant
promptly.
SECTION 8. Withholding and Use of Shares to Satisfy Tax Obligations
(a) Required Withholding. All Grants under the Plan shall be
subject to applicable federal (including FICA), state and local withholding
requirements. The Company shall have the right to deduct from all Grants paid in
cash, or from other wages paid to the Participant, any federal, state or local
taxes required by law to be withheld with respect to such Grants. In the case of
Grants paid in Company Stock, the Company may require the Participant or other
person receiving such Stock to pay
<PAGE>
to the Company the amount of any such taxes that the Company is required to
withhold with respect to such Grants, or the Company may deduct from other wages
paid by the Company the amount of any withholding taxes due with respect to such
Grants.
(b) Election to Withhold Shares. If the Committee so permits, a
Participant may elect to satisfy the Company's income tax withholding obligation
with respect to a Grant paid in Company Stock by having shares withheld up to an
amount that does not exceed the Participant's maximum marginal tax rate for
federal (including FICA), state and local tax liabilities. The election must be
in a form and manner prescribed by the Committee and shall be subject to the
prior approval of the Committee.
SECTION 9. Amendments and Termination
The Board may amend or terminate the Plan at any time and from time to
time, but no amendment or termination shall be made which would impair the
rights of a Participant under a Grant theretofore awarded without the
Participant's consent; and provided, further, that the Board shall not amend the
Plan without stockholder approval if such approval is required pursuant to the
Code or the rules of any national securities exchange or over-the-counter market
on which the Company's Stock is then listed or included. Subject to the above
provisions, the Board shall have broad authority to amend the Plan to take into
account changes in applicable tax laws, securities laws and accounting rules, as
well as other developments.
SECTION 10. Unfunded Status of Plan
The Plan is intended to constitute an "unfunded" plan. The Company
shall not be required to establish any special or separate fund or to make any
other segregation of assets to assure the payment of any Grants under this Plan.
In no event shall interest be paid or accrued on any Grant, including unpaid
installments of Grants.
SECTION 11. General Provisions
(a) The Committee may require each person purchasing shares
pursuant to a Stock Option or receiving Stock upon the expiration of any
Restriction Period under the Plan to represent to and agree with the Company in
writing that the Participant is acquiring the shares for investment and not with
a view to distribution thereof and that such Participant will not dispose of
such Stock in any manner that would involve a violation of applicable securities
laws. In such event no Stock shall be issued to such Participant unless and
until the Company is satisfied with such representation. The certificates for
such shares may include any legend which the Committee deems appropriate to
reflect any restrictions on transfer under the Securities Act or any state
securities law.
All certificates for shares of Stock or other securities
delivered under the Plan shall be subject to such stop-transfer orders and other
restrictions as the Committee may deem advisable under the rules, regulations
and other requirements of the Securities Act, the Exchange Act, any stock
exchange or over-the-counter market upon which the Stock is then listed or
included, and any applicable federal or
<PAGE>
state securities law, and the Committee may cause a legend or legends to be put
on any such certificates to make appropriate reference to such restrictions.
(b) Nothing contained in this Plan shall prevent the Board from
adopting other or additional compensation arrangements, subject to stockholder
approval if such approval is required, and such arrangements may be either
generally applicable or applicable only in specific cases.
(c) The adoption of the Plan shall not confer upon any Participant
any right to continued employment with the Company nor shall it interfere in any
way with the right of the Company to terminate its relationship with any of its
employees, directors or independent contractors at any time.
(d) At the time of grant, the Committee may provide in connection
with any grant made under this Plan that (i) the shares of Stock received as a
result of such grant shall be subject to a right of first refusal, pursuant to
which the Participant shall be required to offer to the Company any shares that
the Participant wishes to sell, with the price being the then Fair Market Value
of the Stock, subject to such other terms and conditions as the Committee may
specify at the time of grant; and (ii) the shares of Stock received or to be
received as a result of such grant shall be subject to repurchase by the Company
upon termination of employment, subject to a repurchase price and such other
terms and conditions as the Committee may specify at the time of grant.
(e) The reinvestment of dividends in additional Restricted Stock
at the time of any dividend payment shall only be permissible if sufficient
shares of Stock are available under Section 3 for such reinvestment.
(d) The Committee shall establish such procedures as it deems
appropriate for a Participant to designate a beneficiary to whom any amounts
payable in the event of the Participant's death are to be paid.
(e) The Plan shall be governed by and subject to all applicable
laws and to the approvals by any governmental or regulatory agency as may be
required.
SECTION 12. Effective Date and Term of Plan
The Plan shall be effective as of November 8, 1994, subject to the
consent or approval of the Company's stockholders. No Stock Option, Stock
Appreciation Right or Restricted Stock award shall be granted pursuant to the
Plan on or after November 8, 2004, but awards granted prior to such tenth
anniversary may extend beyond that date; provided, however, that if the Plan is
not approved by the unanimous consent of all stockholders or by a majority of
the votes cast at a duly held meeting at which a quorum representing a majority
of all outstanding voting stock of the Company is, either in person or by proxy,
present and voting on the Plan, within 12 months after said date, the Plan and
all Grants awarded hereunder shall be null and void and no additional Grants
shall be awarded hereunder.
<PAGE>
SECTION 13. Interpretation
A determination of the Committee as to any question which may arise
with respect to the interpretation of the provisions of this Plan or any Grants
awarded thereunder shall be final and conclusive, and nothing in this Plan, or
in any regulation hereunder, shall be deemed to give any Participant, his legal
representatives, assigns or any other person any right to participate herein
except to such extent, if any, as the Committee may have determined or approved
pursuant to this Plan. The Committee may consult with legal counsel who may be
counsel to the Company and shall not incur any liability for any action taken in
good faith in reliance upon the advice of such counsel.
SECTION 14. Governing Law.
With respect to any Incentive Stock Options granted pursuant to the
Plan and the agreements thereunder, the Plan, such agreements and any Incentive
Stock Options granted pursuant thereto shall be governed by the applicable Code
provisions to the maximum extent possible. Otherwise, the laws of the State of
Delaware shall govern the operation of, and the rights of Participants under,
the Plan, the agreements and any Grants awarded thereunder.
SECTION 15. Compliance With Section 16b of the Exchange Act.
Unless an Insider could otherwise transfer shares of Stock issued
hereunder without incurring liability under Section 16b of the Exchange Act, at
least six months must elapse from the date of grant of an Option, Stock
Appreciation Right or Restricted Stock award to the date of disposition of the
Stock issued upon exercise of such Option or Stock Appreciation Right or grant
of such Restricted Stock award.
<PAGE>
EXHIBIT 5.1
October 8, 1998
USDATA Corporation
2435 North Central Expressway
Richardson, TX 75080-2722
Gentlemen:
I have acted as counsel to USDATA Corporation (the "Company"), and I am
delivering this opinion in connection with the preparation of the Company's
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act") relating to an aggregate of 773,910 shares of Common Stock
of the Company, $.01 par value per share (the "Shares"), issuable upon the
exercise of outstanding options or other awards that may be granted in the
future under the Company's Amended and Restated 1994 Equity Compensation Plan
(the "Plan").
In this connection, I have reviewed the Company's Certificate of
Incorporation, its Bylaws, resolutions of its Board of Directors and
stockholders, and such other documents and corporate records as I have deemed
appropriate in the circumstances. My opinion is limited solely to matters
governed by the laws of the State of Delaware and the federal laws of the United
States of America.
Based upon the foregoing and consideration of such questions of law as
I have deemed relevant, I am of the opinion that the Shares, when issued in
accordance with the terms of the Plan, will be validly issued, fully paid and
nonassessable.
I consent to the use of this opinion as an exhibit to the Registration
Statement. In giving such opinion, I do not thereby admit that I am acting
within the category of persons whose consent is required under Section 7 of the
Act or the rules or regulations of the Securities and Exchange Commission.
This opinion is rendered to you in connection with the above-referenced
Registration Statement and may be relied on by you only in connection therewith.
No other person may rely on this opinion. This opinion may not be quoted by you
or any other person without my prior written consent.
My rendering of this opinion to you does not obligate me to render any
further opinion to you or to update this opinion at any time in the future.
Very truly yours,
/s/ James A. Ounsworth
James A. Ounsworth
Corporate Counsel
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated February 11, 1998, which appears on
page F-1 of USDATA Corporation's Annual Report on Form 10-K for the year ended
December 31, 1997.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Dallas, Texas
October 7, 1998
