<PAGE> 1
As filed with the Securities and Exchange Commission on July 15, 1999
Registration 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 or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2435 NORTH CENTRAL EXPRESSWAY
RICHARDSON, TEXAS 75080
(Address of principal executive offices) (Zip Code)
-----------------------
USDATA CORPORATION EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
-----------------------
ROBERT A. MERRY
CHIEF EXECUTIVE OFFICER
USDATA CORPORATION
2435 NORTH CENTRAL EXPRESSWAY
RICHARDSON, TEXAS 75080-2722
(Name and address of agent for service)
(972) 680-9700
(Telephone number, including area code, of agent for service)
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED (1)(2) PER SHARE (3)(4) PRICE (3)(4) FEE (4)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $ 0.01
par value per share 200,000 SHARES $ 3.14 $ 628,000.00 $ 175.00
========================================================================================================================
</TABLE>
(1) The securities to be registered include an aggregate of 200,000 shares
reserved for issuance under the USDATA Corporation Employee Stock
Purchase Plan (the "Plan").
(2) Pursuant to Rule 416, this registration statement also covers 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.
(3) Estimated solely for purpose of calculating the registration fee.
(4) Calculated pursuant to Rule 457(c) and 457(h). Accordingly, the price
per share of common stock offered hereunder pursuant to the Plan is
calculated to be $3.14, which is 85% of the average of the highest and
lowest price per share of common stock on the NASDAQ National Market
System on July 14, 1999.
<PAGE> 2
PART I
Information specified in Part I of Form S-8 (Items 1 and 2) will be
sent or given to Plan participants as specified by Rule 428(b)(1) under the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
USDATA Corporation (the "Company") hereby incorporates by reference in
this registration statement the following documents previously filed by the
Company with the Securities and Exchange Commission (the "Commission"):
(1) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 filed with the Commission on March 31, 1999.
(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999 filed with the Commission on May 14, 1999.
(3) The description of the common stock of the Company contained in
the Company's Registration Statement on Form S-1 filed with the Commission on
April 12, 1995, including any amendment or report filed for the purpose of
updating such description.
All documents filed by the registrant with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of the filing of such documents until such time as
there shall have been filed a post-effective amendment that indicates that all
securities offered hereby have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation provides that no director
of the Company shall be personally liable to the Company or any of its
stockholders for monetary damages for breach of fiduciary duty as a director
involving any act or omission of any such director; provided, however, that the
foregoing provision shall not eliminate or limit the liability of a director
(a) for any breach of the director's duty of loyalty to the Company or its
stockholders, (b) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (c) under Section 174 of
the General Corporation Law of the State of Delaware, as the same exists or
hereafter may be amended, or (d) for any transaction from which the director
derived an improper personal benefit. If the General Corporation Law of the
State of Delaware is amended after the date of filing of the Certificate of
Incorporation to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Company, in addition to the limitation on personal liability provided therein,
shall be limited to the fullest extent permitted by the amended General
Corporation Law of the State of Delaware. Any repeal or modification of Article
VI of the Certificate of Incorporation by the stockholders of the Company shall
be prospective only, and shall not adversely affect any limitation on the
personal liability of a director of the Company existing at the time of such
repeal or modification.
The Company's Bylaws require the Company to indemnify any person who
was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
Company) by reason of the fact that such
II-1
<PAGE> 3
person is or was director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if such person acted in good
faith and in a manner such person reasonably believed to be in or not opposed
to the best interests of the Company, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe such conduct was unlawful.
The Company shall also indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in right of the Company to procure a judgment in its favor by reason
of the fact that he is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees) actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit 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
Company and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Company unless and only to the extent that the Court of Chancery
or the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper. Such indemnification is mandatory under the Company's Bylaws
as to expenses actually and reasonably incurred to the extent that a director,
officer, employee or agent of the Company has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to above, or in
defense of any claim, issue or matter therein. The determination of whether an
individual is entitled to indemnification shall be made by the Company only as
authorized in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the circumstances because
he has met the applicable standard of conduct set forth in paragraph (a) or (b)
of Section 5.1 of the Bylaws of the Company. Such determination shall be made
(i) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (ii) if
such a quorum is not obtainable, or, even if obtainable and a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (iii) by the stockholders. Expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that such person is not
entitled to be indemnified by the Company as authorized in the Bylaws of the
Company. Such expenses (including attorneys' fees) incurred by other employees
and agents may be so paid upon such terms and conditions, if any, as the Board
of Directors deems appropriate. Insofar as indemnification for liabilities
arising under the Act may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in that Act and is therefore unenforceable.
The Company has the power to purchase and maintain, and has purchased and
maintains, a directors and officers liability insurance policy.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
None.
ITEM 8. EXHIBITS.
(a) Exhibits.
The following documents are filed as a part of this
registration statement.
Exhibit Description of Exhibit
4.1 USDATA Corporation Employee Stock Purchase Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional
Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional
Corporation (included in opinion filed as Exhibit 5.1
hereto)
23.2 Consent of PricewaterhouseCoopers LLP
II-2
<PAGE> 4
24 Power of Attorney (included with signature page of this
Registration Statement)
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 the
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 the Registration Statement;
(iii) 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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the 1934 Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(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
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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<PAGE> 5
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 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 Richardson, State of Texas, on June 18, 1999.
USDATA CORPORATION
By: /s/ ROBERT A. MERRY
-------------------------------------
Robert A. Merry
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below hereby constitutes and appoints Robert A. Merry and Robert L.
Drury, and each of them, each with full power to act without the other, his
true and lawful attorneys-in-fact and agents, each 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, and to file the same with all exhibits thereto and other documents
in connection therewith, with the Commission, granting unto each of said
attorneys-in-fact and agents full power and authority to do 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 that each of said attorney-in-fact and
agents or his substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates included:
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- --------- -------- ----
<S> <C> <C>
/s/ ROBERT A. MERRY Chief Executive Officer and President June 18,1999
- ----------------------------------------
Robert A. Merry (Principal Executive Officer)
/s/ ROBERT L. DRURY Chief Financial Officer, Vice President June 18, 1999
- ----------------------------------------
Robert L. Drury Finance, Treasurer and Secretary
(Principal Financial and Accounting
Officer)
/s/ MAX D. HOPPER Chairman of the Board and Director June 18, 1999
- ----------------------------------------
Max D. Hopper
- ---------------------------------------- Director June ___, 1999
Gary J. Anderson
- ---------------------------------------- Director June ___, 1999
Stephen J. Andriole
</TABLE>
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<PAGE> 6
<TABLE>
<S> <C> <C>
/s/ JAMES W. DIXON Director June 18, 1999
- ----------------------------------------
James W. Dixon
/s/ JACK L. MESSMAN Director June 18, 1999
- ----------------------------------------
Jack L. Messman
/s/ ARTHUR R. SPECTOR Director June 18, 1999
- ----------------------------------------
Arthur R. Spector
</TABLE>
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<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Exhibit
------- ----------------------
<S> <C>
4.1 USDATA Corporation Employee Stock Purchase Plan
5.1 Opinion of Jenkens & Gilchrist, a Professional
Corporation
23.1 Consent of Jenkens & Gilchrist, a Professional
Corporation (included in opinion filed as Exhibit
5.1 hereto)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included with signature page of
this Registration Statement)
</TABLE>
<PAGE> 1
Exhibit 4.1
USDATA CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
The following constitute the provisions of the Employee Stock Purchase
Plan of USDATA Corporation
1. PURPOSE. The purpose of the Plan is to provide Employees of
the Company and its Subsidiaries with an opportunity to purchase Common Stock
of the Company through accumulated payroll deductions. It is the intention of
the Company to have the Plan qualify as an "Employee Stock Purchase Plan" under
section 423 of the Code (as defined below). The provisions of the Plan shall be
construed accordingly, so as to extend and limit participation in a manner
consistent with the requirements of that section of the Code.
2. DEFINITIONS.
(a) "Act" shall mean the Securities Exchange Act of 1934, as
amended.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "Common Stock" shall mean the common stock, $.01 par
value per share, of the Company.
(e) "Committee" shall mean the committee appointed pursuant
to PARAGRAPH 11.
(f) "Company" shall mean USDATA Corporation, a Delaware
corporation, or any successor which adopts this Plan.
(g) "Compensation" shall mean all base straight-time gross
earnings and sales commissions, overtime pay and cash bonuses.
(h) "Continuous Status as an Employee" shall mean the absence
of any interruption or termination of service as an Employee.
Continuous Status as an Employee shall not be considered interrupted
in the case of a leave of absence that meets the requirements of
PARAGRAPH 9(b).
(i) "Designated Subsidiary" shall mean any Subsidiary that
has adopted the Plan in accordance with PARAGRAPH 29.
(j) "Eligible Employee" shall have the meaning defined in
PARAGRAPH 3(a).
(k) "Employee" shall mean any person, including an officer,
who is customarily employed for at least 20 hours per week and for
more than five months in the calendar year by an Employer, provided,
however, that no individual shall be considered an Employee for
purposes of this Plan if a country's law prohibits the granting of
options under this Plan to individuals who are citizens of that
country. The determination of whether an individual is an Employee for
purposes of this Plan shall be made in accordance with the rules under
Section 3401(c) of the Code and the Treasury Regulations thereunder.
<PAGE> 2
(l) "Employer" shall mean the Company and each of its
Designated Subsidiaries.
(m) "Enrollment Date" shall mean the first day of each
Offering Period.
(n) "Exercise Date" shall mean the last day of each Offering
Period.
(o) "Exercise Price" shall have the meaning as defined in
PARAGRAPH 6(b).
(p) "Offering Period" shall mean that period to be determined
by the Committee beginning on the date Eligible Employees are offered
the opportunity to purchase Shares hereunder. The first Offering
Period shall begin on July 1, 1999 and shall end on December 31, 1999.
Until changed by the Committee, in its sole and absolute discretion, a
new Offering Period shall begin on the first day of each six calendar
month period beginning on each January 1 and July 1 of a calendar
year, and shall end on the end of such six month period.
(q) "Participant" shall mean an Eligible Employee who has
elected to participate herein by authorizing payroll deductions
pursuant to PARAGRAPH 4.
(r) "Payroll Deduction Account" shall mean the separate
account maintained hereunder to record the amount of a Participant's
Compensation that has been withheld pursuant to PARAGRAPH 5.
(s) "Plan" shall mean the USDATA Corporation Employee Stock
Purchase Plan.
(t) "Share" shall mean a share of Common Stock.
(u) "Subscription Agreement" shall have the meaning as
defined in PARAGRAPH 4(a).
(v) "Subsidiary" shall mean a corporation, domestic or
foreign, of which at the time of the granting of the option pursuant
to PARAGRAPH 6, not less than 50% of the total combined voting power
of all classes of stock are held by the Company or a Subsidiary,
whether or not such corporation now exists or is hereafter organized
or acquired by the Company or a Subsidiary.
3. ELIGIBILITY.
(a) General Rule. Any Employee on an Enrollment Date shall be
eligible to participate as an "Eligible Employee" during the Offering
Period beginning on such Enrollment Date, subject to the requirements
of PARAGRAPH 4(a) and the limitations imposed by section 423(b) of
the Code.
(b) Exceptions. Any provisions of the Plan to the contrary
notwithstanding, no Employee shall be an Eligible Employee if:
(i) Immediately after the grant, such Employee (or
any other person whose stock would be attributed to such
Employee pursuant to section 424(d) of the Code) would own
stock (including for purposes of this PARAGRAPH 3(b) any
stock he may acquire upon exercise of outstanding options)
possessing 5% or more of the total combined voting power or
value of all classes of stock of the Company or of any
Subsidiary computed in accordance with section 423(b)(3) of
<PAGE> 3
the Code; or
(ii) Such option would permit such Employee's right
to purchase stock under all employee stock purchase plans
(described in section 423 of the Code) of the Company and its
Subsidiaries to accrue at a rate which exceeds $25,000 of the
fair market value of such stock (determined at the time such
option is granted) for each calendar year in which such
option is outstanding at any time, in accordance with the
provisions of section 423(b)(8) of the Code.
4. PARTICIPATION.
(a) An Eligible Employee may become a Participant in the Plan
by completing a Subscription Agreement authorizing payroll deductions,
in a form substantially similar to EXHIBIT A attached to this Plan
("Subscription Agreement"), and filing it with the Company's Human
Resources Department prior to the applicable Enrollment Date, unless a
later time for filing the Subscription Agreement is set by the
Committee for all Eligible Employees with respect to a given Offering
Period.
(b) Payroll deductions for a Participant shall commence with
the first payroll following the Enrollment Date and shall end on the
last payroll in the Offering Period to which such authorization is
applicable, unless sooner terminated by the Participant as provided in
PARAGRAPH 9.
(c) An Eligible Employee may waive his right to participate
for any Offering Period by declining to authorize a payroll deduction.
Such declination must be filed in writing in the time and manner
specified thereby. The filing of a written declination shall result in
the Employee's waiver of participation for only the Offering Period to
which it relates and shall be irrevocable with respect to such
Offering Period. Except as otherwise provided in this Paragraph, an
Employee's waiver of participation for a specified Offering Period
shall not, in and of itself, adversely impact the right of such
Employee to participate in the Plan during any subsequent Offering
Periods except those Offering Periods with respect to which he files
additional written declinations in accordance with the provisions of
this Paragraph.
5. PAYROLL DEDUCTIONS.
(a) At the time a Participant files his or her Subscription
Agreement, such Participant shall elect to have payroll deductions (in
whole percentage increments) made on each pay date during the Offering
Period in an amount of not less than 1% nor more than 15% of the
Compensation which he or she receives on each pay date during the
Offering Period.
(b) All payroll deductions made by a Participant shall be
credited to his or her Payroll Deduction Account under the Plan. No
interest shall accrue on the payroll deductions in a Participant's
Payroll Deduction Account in the Plan.
(c) No changes in the rate of payroll deductions other than a
withdrawal pursuant to PARAGRAPH 9 are permitted.
6. GRANT OF OPTION.
(a) On the Enrollment Date of each Offering Period during the
term of the Plan each Participant in such Offering Period shall be
granted an option to purchase up to a number of whole Shares
determined by dividing 15% of the Participant's Compensation by the
Exercise Price; provided, however, that the number of shares
<PAGE> 4
subject to such option shall be reduced, if necessary, to a number of
shares which would not exceed the limitations described in PARAGRAPH
3(b) or PARAGRAPH 10(a) hereof. The fair market value of a Share shall
be determined as provided in PARAGRAPH 6(b).
(b) The "Exercise Price" per Share offered in a given
Offering Period shall be determined by the Committee but shall not be
less than the lower of: (i) 85% of the fair market value of a Share on
the Enrollment Date, or (ii) 85% of the fair market value of a Share
on the Exercise Date. The fair market value of a Share on a given date
shall be the closing price of such Share as reported by the Nasdaq
National Market or reported on such other national exchange as it may,
from time to time, be reported on, on such date (or if there shall be
no trading on such date, then on the first previous date on which
there is such trading), unless the Shares cease to be traded on a
national exchange. If the Shares cease to be traded on a national
exchange, fair market value shall be determined by the Committee in
its discretion consistent with section 423 of the Code or the
regulations thereunder.
(c) All grants made hereunder shall be deemed to have been
made on the applicable Enrollment Date.
7. EXERCISE OF OPTION. The Participant's option for the
purchase of Shares will be exercised automatically on the Exercise Date of each
Offering Period, and the maximum number of full shares subject to such option
will be purchased for such Participant at the applicable Exercise Price with
the payroll deductions accumulated in his or her Payroll Deduction Account,
unless prior to such Exercise Date the Participant has withdrawn from the
Offering Period as provided in PARAGRAPH 9. During a Participant's lifetime a
Participant's option to purchase shares hereunder is exercisable only by such
Participant. Any amount remaining in the Participant's Payroll Deduction
Account after the Offering Period shall be held in the Payroll Deduction
Account until the next Offering Period, unless the Offering Period has been
oversubscribed or has terminated, in which case such amount shall be refunded
to the Participant.
8. DELIVERY. As soon as practicable after the Exercise Date, the
Committee shall arrange the delivery to each Participant, or to his account at
a brokerage firm, of a certificate representing the shares purchased upon
exercise of his or her option.
9. WITHDRAWAL; TERMINATION OF EMPLOYMENT.
(a) A Participant may withdraw all, but not less than all, of
the payroll deductions credited to his or her Payroll Deduction
Account and not yet used toward the exercise of his or her option
under the Plan at any time by giving written notice to the Committee
on a form substantially similar to EXHIBIT B attached to this Plan.
All of the Participant's payroll deductions credited to his or her
Payroll Deduction Account that have not yet been used to purchase
Shares will be paid to such Participant as soon as practicable after
receipt of his or her notice of withdrawal. A withdrawal of a
Participant's Payroll Deduction Account shall terminate the
Participant's participation for the Offering Period in which the
withdrawal occurs. No further payroll deductions for the purchase of
shares will be made during the Offering Period.
(b) Upon termination of the Participant's Continuous Status
as an Employee of the Company for any reason, he or she will be deemed
to have elected to withdraw from the Plan and the payroll deductions
credited to his or her Payroll Deduction Account will be returned to
such Participant and his or her option will be canceled; provided,
however, a Participant who goes on a leave of absence shall be
permitted to remain in the Plan with respect to an Offering Period
which commenced prior to the
<PAGE> 5
beginning of such leave of absence. If such Participant is not
guaranteed reemployment by contract or statute and the leave of
absence exceeds 90 days, such Participant shall be deemed to have
terminated employment on the 91st day of such leave of absence.
Payroll deductions for a Participant who has been on a leave of
absence will resume upon return to work at the same rate as in effect
prior to such leave unless the leave of absence begins in one Offering
Period and ends in a subsequent Offering Period, in which case the
Participant shall not be permitted to re-enter the Plan until a new
Subscription Agreement is filed with respect to an Offering Period
which commences after such Participant has returned to work from the
leave of absence.
(c) A Participant's withdrawal from one Offering Period will
not have any effect upon his or her eligibility to participate in a
different Offering Period or in any similar plan which may hereafter
be adopted by the Company.
10. SHARES.
(a) The maximum number of Shares which shall be made
available for sale under the Plan shall be 200,000 Shares, subject to
adjustment upon changes in capitalization of the Company as provided
in PARAGRAPH 16. Either authorized and unissued Shares or issued
Shares heretofore or hereafter reacquired by the Employer may be made
subject to purchase under the Plan, in the sole and absolute
discretion of the Committee. Further, if for any reason any purchase
of any Shares under the Plan is not consummated, Shares subject to
such purchase agreement may be subjected to a new Subscription
Agreement under the Plan. If, on the Exercise Date, the number of
Shares with respect to which options are to be exercised exceeds the
number of Shares then available under the Plan, the Company shall make
a pro rata allocation of the shares remaining available for purchase
in as uniform a manner as shall be practicable and as it shall
determine to be equitable. In such event, the Company shall give
written notice of such reduction of the Shares which each Employee
shall be allowed to purchase. Notwithstanding anything to the contrary
herein, the Company shall not be obligated to issue Shares hereunder
if, in the opinion of counsel for the Company, such issuance would
constitute a violation of federal or state securities laws.
(b) The Participant will have no interest or voting right in
Shares covered by his or her option until such option has been
exercised and the Shares have been issued or transferred to the
Participant.
(c) Shares to be delivered to a Participant under the Plan
will be registered in the name of the Participant or, at the prior
written request of the Participant, in the names of the Participant
and his or her spouse.
11. ADMINISTRATION. The Plan shall be administered by a Committee
appointed by the Board. Such Committee shall have all powers with respect to
the Plan, except for amending or terminating the Plan as set forth in PARAGRAPH
17 hereof.
(a) Each member of the Committee shall serve until his
successor is appointed. Any member of the Committee may be removed at
any time by the Board, with or without cause, which shall have the
power to fill any vacancy which may occur. A Committee member may
resign by giving 30 days written notice to the Company.
(b) The members of the Committee shall serve without
compensation for services as such, but the Company shall pay all
expenses of the Committee.
(c) The Committee shall have the following powers and duties:
<PAGE> 6
(1) To direct the administration of the Plan in
accordance with the provisions herein set forth;
(2) To adopt rules of procedure and regulations
necessary for the administration of the Plan provided the
rules are not inconsistent with the terms of the Plan;
(3) To determine all questions with regard to rights
of Employees and Participants under the Plan, including, but
not limited to, the eligibility of an Employee to participate
in the Plan;
(4) To enforce the terms of the Plan and the rules
and regulations it adopts;
(5) To direct the distribution of the Shares
purchased hereunder;
(6) To furnish the Employer with information which
the Employer may require for tax or other purposes;
(7) To engage the service of counsel (who may, if
appropriate, be counsel for an Employer) and agents whom it
may deem advisable to assist it with the performance of its
duties;
(8) To prescribe procedures to be followed by
Participants in electing to participate herein;
(9) To receive from each Employer and from Employees
such information as shall be necessary for the proper
administration of the Plan;
(10) To maintain, or cause to be maintained,
separate accounts in the name of each Participant to reflect
the Participant's Payroll Deduction Account under the Plan;
and
(11) To interpret and construe the Plan.
12. DESIGNATION OF BENEFICIARY.
(a) A Participant may file a written designation of a
beneficiary (as indicated in the Subscription Agreement or otherwise)
who is to receive any Shares under the Plan in the event of such
Participant's death subsequent to the Exercise Date on which an option
is exercised but prior to the issuance of such shares. In addition, a
Participant may file a written designation of a beneficiary who is to
receive any cash from the Participant's Payroll Deduction Account
under the Plan in the event of such Participant's death prior to the
Exercise Date of the option.
(b) Such designation of beneficiary may be changed by the
Participant at any time by written notice. In the event of the death
of a Participant and in the absence of a beneficiary validly
designated under the Plan, the Committee shall deliver such shares
and/or cash to the executor or administrator of the estate of the
Participant, or if no such executor or administrator has been
appointed (to the knowledge of the Company or Committee), the
Committee, in its discretion, may deliver such shares and/or cash to
the spouse or to any one or more dependents or relatives of the
Participant, or if no spouse, dependent or relative is known to the
Committee, then to such other person as the Committee may designate.
<PAGE> 7
13. TRANSFERABILITY. Neither payroll deductions credited to
Participant's Payroll Deduction Account nor any rights with regard to the
exercise of an option to receive Shares under the Plan may be assigned,
transferred, pledged or otherwise disposed of in any way (other than by will,
the laws of descent and distribution or as provided in PARAGRAPH 12 hereof) by
the Participant. Any such attempt at assignment, transfer, pledge or other
disposition shall be without effect, except that the Committee may treat such
act as an election to withdraw funds in accordance with PARAGRAPH 9.
14. USE OF FUNDS. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate purpose,
and the Company shall not be obligated to segregate such payroll deductions.
15. REPORTS. Individual Payroll Deduction Accounts will be
maintained for each Participant in the Plan. Statements of Payroll Deduction
Account will be given to Participants as soon as practicable following an
Exercise Date, such statements will set forth the amounts of payroll
deductions, the per share purchase price, the number of shares purchased and
the remaining cash balance, if any.
16. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION. If an option under
this Plan is exercised subsequent to any stock split, spinoff,
recapitalization, reorganization, reclassification, merger, consolidation,
exchange of shares, or the like occurring after such option was granted, as a
result of which shares of any class of stock shall be issued in respect of the
outstanding shares, or shares shall be changed into a different number of the
same or another class or classes, the number of Shares to which such option
shall be applicable and the option price for such Shares shall be appropriately
adjusted by the Company. Any such adjustment, however, in the Shares shall be
made without change in the total price applicable to the portion of the Shares
purchased hereunder which has not been fully paid for, but with a corresponding
adjustment, if appropriate, in the price for the Shares.
In the event of the proposed dissolution or liquidation of the Company
or upon a proposed reorganization, merger, or consolidation of the Company with
one or more corporations as a result of which the Company is not the surviving
corporation, or upon a proposed sale of substantially all of the property or
stock of the Company to another corporation, the Offering Period will terminate
immediately prior to the consummation of such proposed action, unless otherwise
provided by the Board, and the holder of each option then outstanding under the
Plan will thereafter be entitled to receive, upon the exercise of such option,
as nearly as reasonably may be determined, the cash, securities, and/or
property which a holder of one Share was entitled to receive upon and at the
time of such transaction for each Share to which such option shall be
exercised. The Board shall take such steps in connection with such transactions
as the Board shall deem necessary to assure that the provisions of this
Paragraph shall thereafter be applicable, as nearly as reasonably may be
determined, in relation to the said cash, securities, and/or property as to
which such holder of such option might thereafter be entitled to receive.
17. AMENDMENT OR TERMINATION. The Board may at any time and for
any reason terminate or amend the Plan. Except as specifically provided in the
Plan, no such termination can affect options previously granted, provided that
an Offering Period may be terminated by the Board on any Exercise Date if the
Board determines that the termination of the Plan is in the best interest of
the Company and its stockholders. Except as specifically provided in the Plan
or as required to obtain a favorable ruling from the Internal Revenue Service
or to comply with tax or securities law, no amendment may make any change in
any option theretofore granted which adversely affects the rights of any
Participant. To the extent necessary to comply with Rule 16b-3 under the Act or
section 423 of the Code (or any successor rule or provision or any other
applicable law or regulation), the Company shall obtain stockholder approval in
such manner and to such a degree as required.
<PAGE> 8
18. NOTICES. All notices or other communications by a
Participant to the Company or Committee under or in connection with the Plan
shall be deemed to have been duly given when received in the form specified by
the Committee at the location, or by the person, designated by the Committee
for the receipt thereof.
19. STOCKHOLDER APPROVAL. Commencement of the Plan shall be
subject to approval by the stockholders of the Company within 12 months before
or after the date the Plan is adopted. Notwithstanding any provision to the
contrary, failure to obtain such stockholder approval shall void the Plan, any
options granted under the Plan, any Share purchases pursuant to the Plan, and
all rights of all Participants.
20. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued
with respect to an option unless the exercise of such option and the issuance
and delivery of such Shares pursuant thereto shall comply with all applicable
provisions of law, domestic or foreign, including, without limitation, the
Securities Act of 1933, as amended, the Act, the rules and regulations
promulgated thereunder, and the requirements of any stock exchange upon which
the Shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance.
As a condition to the exercise of an option, the Company may
require the person exercising such option to represent and warrant at the time
of any such exercise that the Shares are being purchased only for investment
and without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by any of
the aforementioned applicable provisions of law.
21. TERM OF PLAN. The Plan shall become effective upon the
earlier to occur of its adoption by the Board or its approval by the
stockholders of the Company as described in PARAGRAPH 19. It shall continue in
effect for a term of ten years unless sooner terminated under PARAGRAPH 17.
22. NO RIGHTS IMPLIED. Nothing contained in this Plan or any
modification or amendment to the Plan or in the creation of any Payroll
Deduction Account, or the execution of any participation election form, or the
issuance of any Shares, shall give any Employee or Participant any right to
continue employment, any legal or equitable right against the Employer or
Company or any officer, director, or Employee of an Employer or Company, except
as expressly provided by the Plan.
23. SEVERABILITY. In the event any provision of the Plan shall
be held to be illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining provisions of the Plan, but shall be fully
severable and the Plan shall be construed and enforced as if the illegal or
invalid provision had never been included herein.
24. WAIVER OF NOTICE. Any person entitled to notice under the
Plan may waive the notice.
25. SUCCESSORS AND ASSIGNS. The Plan shall be binding upon all
persons entitled to purchase Shares under the Plan, their respective heirs,
legatees, and legal representatives and upon the Employer, its successors and
assigns.
26. HEADINGS. The titles and headings of the Paragraphs are
included for convenience of reference only and are not to be considered in
construction of the provisions hereof.
<PAGE> 9
27. GOVERNING LAW. All questions arising with respect to the
provisions of this Plan shall be determined by application of the laws of the
State of Delaware except to the extent Delaware law is preempted by federal
statute. The obligation of the Employer to sell and deliver Shares under the
Plan is subject to applicable laws and to the approval of any governmental
authority required in connection with the authorization, issuance, sale or
delivery of such Shares.
28. NO LIABILITY FOR GOOD FAITH DETERMINATIONS. Neither the
members of the Board nor any member of the Committee (nor their delegates)
shall be liable for any act, omission, or determination taken or made in good
faith with respect to the Plan or any right to purchase Shares granted under
it, and members of the Board and the Committee (and their delegates) shall be
entitled to indemnification and reimbursement by the Company in respect of any
claim, loss, damage, or expense (including attorneys' fees, the costs of
settling any suit, provided such settlement is approved by independent legal
counsel selected by the Company, and amounts paid in satisfaction of a
judgment, except a judgment based on a finding of bad faith) arising therefrom
to the full extent permitted by law and under any directors and officers
liability or similar insurance coverage that may from time to time be in
effect.
29. PARTICIPATING EMPLOYERS. This Plan shall constitute the
employee stock purchase plan of the Company and each Designated Subsidiary. A
Designated Subsidiary may adopt and participate in this Plan beginning as of
the next Enrollment Date, provided the Board has consented to such Designated
Subsidiary's participation. A Designated Subsidiary may withdraw from the Plan
as of any Enrollment Date by giving written notice to the Board, and such
notice must be received by the Board at least 30 days prior to such Enrollment
Date.
30. NO GUARANTEE OF INTERESTS OR TAX TREATMENT. Neither the
Committee nor the Company guarantees the Common Stock from loss or
depreciation. Neither the Committee nor the Company guarantees favorable tax
treatment for the purchase of Shares hereunder.
31. PAYMENT OF EXPENSES. All expenses incident to the
administration, termination, or protection of the Plan, including, but not
limited to, legal and accounting fees, shall be paid by the Company.
IN WITNESS WHEREOF, this Employee Stock Purchase Plan has been
executed effective this _____ day of ____________________, 1999.
USDATA CORPORATION
ATTEST: By:
---------------------------------
- ----------------------------------- Its
Secretary ---------------------------------
<PAGE> 10
EXHIBIT A
USDATA CORPORATION
EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
I,_______________, have read the attached prospectus explanation of the
USDATA Corporation Employee Stock Purchase Plan (the "Plan"). I have decided
(check one):
NOT to participate.
-----
TO PARTICIPATE. I wish to purchase that number of
----- shares of USDATA Corporation Common Stock, $.01 par
value (the "Shares"), that can be purchased with
______% of my Compensation(1) (select the percentage
of your compensation from 1 to 15, in increments of
1, that you elect to contribute).
In order to pay for the Shares that I have elected to purchase, I
hereby authorize my Employer to deduct the percentage of my Compensation that I
specified above from my pay each pay period while this election is in effect.
I understand that said payroll deductions shall be accumulated for the
purchase of the Shares at the applicable purchase price determined in
accordance with the Plan. I further understand that, except as otherwise set
forth in the Plan, Shares will be purchased for me automatically on the
Exercise Date of the Offering Period unless I otherwise withdraw from the
Offering Period or the Plan.
I have received a copy of USDATA Corporation's most recent prospectus
that describes the Plan and a copy of the complete Plan. I understand that my
participation in the Plan is in all respects subject to the terms of the Plan.
I hereby agree to be bound by the terms of the Plan. The effectiveness
of this Subscription Agreement is dependent upon my eligibility to participate
in the Plan.
Beneficiary Designation. In the event of my death, I hereby designate
the following as my beneficiary to receive all payments and Shares due me and
not yet paid or issued under the Plan, pursuant to Paragraph 12 of the Plan:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Name and Address of Participant:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Signature:
-------------------------------------------------
Date:
-------------------------------------------------
- ---------------
(1) Please refer to the Plan document for definitions of capitalized
words that are not defined in this Subscription Agreement.
<PAGE> 1
EXHIBIT 5.1
[JENKENS & GILCHRIST LETTERHEAD]
July 6, 1999
USDATA Corporation
2435 North Central Expressway
Richardson, Texas 75080-2722
Re: USDATA Corporation - Registration Statement on Form S-8
Gentlemen:
We are counsel to USDATA Corporation, a Delaware corporation (the
"Company"), and have acted as such in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on or about July 15, 1999, under the
Securities Act of 1933, as amended (the "Securities Act"), relating to 200,000
shares (the "Shares") of the $0.01 par value common stock (the "Common Stock")
of the Company that have been or may be issued by the Company pursuant to the
USDATA Corporation Employee Stock Purchase Plan between the Company and the
signatories thereto (the "Plan").
You have requested an opinion with respect to certain legal aspects of
the proposed offering. In connection therewith, we have examined and relied
upon the original, or copies identified to our satisfaction, of (1) the
Certificate of Incorporation of the Company, as amended, and the Bylaws of the
Company, as amended; (2) minutes and records of the corporate proceedings of
the Company with respect to the establishment of the Plan, the reservation of
200,000 Shares to be issued pursuant to the Plan and to which the Registration
Statement relates, the issuance of the shares of Common Stock pursuant to the
Plan and related matters; (3) the Registration Statement and exhibits thereto,
including the Plan; and (4) such other documents and instruments as we have
deemed necessary for the expression of opinions herein contained. In making the
foregoing examinations, we have assumed the genuineness of all signatures and
the authenticity of all documents submitted to us as originals, and the
conformity to original documents of all documents submitted to us as certified
or photostatic copies. As to various questions of fact material to this
opinion, and as to the content and form of the Certificate of Incorporation, as
amended, the Bylaws, as amended, minutes, records, resolutions and other
documents or writings of the Company, we have relied, to the extent deemed
reasonably appropriate, upon representations or certificates of officers or
directors of the Company and upon
<PAGE> 2
documents, records and instruments furnished to us by the Company, without
independent check or verification of their accuracy.
Based upon our examination, consideration of, and reliance on the
documents and other matters described above, and assuming that:
(1) the Shares to be sold and issued in the future will be duly issued
and sold in accordance with the terms of the Plan;
(2) the Company maintains an adequate number of authorized but
unissued shares and/or treasury shares available for issuance to those persons
who purchase Shares pursuant to the Plan; and
(3) the consideration for the Shares issued pursuant to the Plan is
actually received by the Company as provided in the Plan and exceeds the par
value of such shares;
then, we are of the opinion that, the Shares issued or sold in accordance with
the terms of the Plan will be duly and validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to references to us included in or made a part of
the Registration Statement. In giving this consent, we do not admit that we
come within the category of persons whose consent is required under Section 7
of the Securities Act or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
Jenkens & Gilchrist,
A Professional Corporation
By: /s/ RONALD J. FRAPPIER
------------------------------
Ronald J. Frappier,
Authorized Signatory
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 12, 1999, which appears on
page F-1 of USDATA Corporation's Annual Report on Form 10-K for the year ended
December 31, 1998.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Dallas, Texas
July 12, 1999
