SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SPANLINK COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-1618845
(State of incorporation) (I.R.S. Employer Identification No.)
ONE MAIN STREET S.E.
MINNEAPOLIS, MINNESOTA 55414
(Address of Principal Executive Offices and Zip Code)
SPANLINK COMMUNICATIONS, INC.
1996 OMNIBUS STOCK PLAN
(Full title of the plan)
Brian P. King
Chief Financial Officer
One Main Street S.E.
Minneapolis, Minnesota 55414
Telephone (612) 362-8000
(Name, address, and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
Calculation of Registration Fee
======================================================================================================
Proposed Proposed
maximum maximum Amount of
Title of securities Amount to be offering price aggregate registration
to be registered registered(1) per share(2) offering price(2) fee
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 750,000 shares $3.44 $2,580,000 $889.66
(no par value)
- ------------------------------------------------------------------------------------------------------
</TABLE>
(1) Consists of 750,000 shares reserved for awards and for issuance upon
exercise of options that have been or may be granted under the Spanlink
Communications, Inc. 1996 Omnibus Stock Plan (the "Plan"). Pursuant to
Rule 416(c) under the Securities Act of 1933, this registration
statement also covers an indeterminate number of shares which may be
offered or sold pursuant to the Plan as a result of the operation of
the provisions of the Plan intended to prevent dilution in the event of
stock splits, consolidations or similar changes in capital stock.
(2) Estimated solely for purposes of computing the registration fee. In
accordance with Rule 457(c) and (h)(1), the price used is the average
of the bid and asked price of the Common Stock as traded on the Nasdaq
SmallCap Market on October 25, 1996.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to Rule 428(b)(1) under the Securities Act of 1933, as
amended, the document containing the information specified in Part I of Form S-8
will be distributed to persons who receive grants or awards under the 1996
Omnibus Stock Plan (the "Plan"). That disclosure document constitutes a Section
10(a) prospectus and is incorporated by reference in this Registration
Statement, but it is not being filed with the Commission either as part of this
Registration Statement or as a prospectus or prospectus supplement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Spanlink
Communications, Inc. (the "Company") are incorporated herein by reference:
(a) The Company's latest prospectus dated April 29, 1996 filed
pursuant to Rule 424 of the Securities Act.
(b) All other reports and documents filed by the Company under
Sections 13, 14, or 15(d) of the Securities Exchange Act of 1934 since
the filing of the latest prospectus dated April 29, 1996, filed
pursuant to Rule 424 of the Securities Act.
(c) A description of the Company's Common Stock and
Undesignated Preferred Stock is set forth under the caption
"Description of Securities" of the Registrant's registration statement
on Form SB-2 (Registration Number 333-02022-C).
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
There are no interests of any experts to be disclosed herein.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 302A.521, Minnesota Statutes, the Company is required to
indemnify its directors, officers, employees and agents against liability under
certain circumstances, including liability under the Securities Act of 1933, as
amended (the "Act"). Section 5.5 of the Company's Articles of Incorporation
provide that a director of the Company shall not be liable for monetary damages
for a breach of such director's fiduciary duty, except for a breach of the duty
of loyalty, acts not in good faith or in knowing violation of law, violations of
state securities laws, or for actions from which the director derived an
improper personal benefit. The general effect of such provisions is to relieve
the directors and officers of the Company from personal liability which may be
imposed for certain acts performed in their capacity as directors or officers of
the Company, except where such persons have not acted in good faith.
As permitted under Minnesota Statutes, the Articles of Incorporation of
the Company provide that directors shall have no personal liability to the
Company or to its shareholders for monetary damages arising from breach of the
director's duty of care in the affairs of the Company. Minnesota Statutes do not
permit elimination of liability for breach of a director's duty of loyalty to
the Company or with respect to certain enumerated matters, including payment of
illegal dividends, acts not in good faith, and acts resulting in an improper
personal benefit to the director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Incentive stock options were granted to purchase 362,713 shares of the
Company's common stock in reliance upon Section 4(2) of the Securities Act of
1933, as amended.
Nonqualified stock options were granted to purchase 336,500 shares of
the Company's common stock in reliance upon Section 4(2) of the Securities Act
of 1933, as amended.
ITEM 8. EXHIBITS
Exhibit No. Description
----------- -----------
4.1 Spanlink Communications, Inc. 1996 Omnibus Stock Plan
5.1 Opinion and consent of Counsel
23.1 Consent of Price Waterhouse LLP
23.3 Consent of Counsel (contained in Exhibit 5.1)
24 Power of Attorney (included in the signature page to
this Registration Statement)
ITEM 9. UNDERTAKINGS
(a) Rule 415 Offering.
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 the post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
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) Filings Incorporating Subsequent Exchange Act Documents by
Reference.
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
Securities Exchange Act of 1934 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.
(h) Request for Acceleration of Effective Date or Filing of
Registration Statement on Form S-8.
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.
SIGNATURES
In accordance with the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Minneapolis, State of Minnesota, on October 28, 1996.
SPANLINK COMMUNICATIONS, INC.
REGISTRANT
By /s/ Brett A. Shockley
----------------------------------------
Name: Brett A. Shockley
Title: Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Brett A. Shockley and Patrick P. Irestone,
each or either of them, his or her true and lawful attorney-in-fact and agents,
with full power of substitution and resubstitution for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and to file the same with all exhibits thereto, and other documents in
connection therewith with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he or she might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or their or his substitutes, may
lawfully do or cause to be done by virtue thereof.
In accordance with the requirements of the Securities Act of 1933, this
Registration Statement has been signed below on October 28, 1996, by the
following persons in the capacities indicated:
Name Title
---- -----
/s/ Brett A. Shockley Chairman of the Board, Chief
- ------------------------------- Executive Officer, Director
Brett A. Shockley (PRINCIPAL EXECUTIVE OFFICER)
/s/ Patrick P. Irestone President and Chief Operating
- ------------------------------- Officer, Director
Patrick P. Irestone (PRINCIPAL EXECUTIVE OFFICER)
/s/ Brian P. King Chief Financial Officer
- ------------------------------- (PRINCIPAL FINANCIAL OFFICER)
Brian King
/s/ Thomas F. Madison Director
- -------------------------------
Thomas F. Madison
/s/ Joseph D. Mooney Director
- -------------------------------
Joseph D. Mooney
/s/ Bruce E. Humphrey Director
- -------------------------------
Bruce E. Humphrey
/s/ Loren A. Singer, Jr. Director
- -------------------------------
Loren A. Senger, Jr.
EXHIBIT 4.1
SPANLINK COMMUNICATIONS, INC.
1996 OMNIBUS STOCK PLAN
1. PURPOSE.
The purpose of the 1996 Omnibus Stock Plan (the "Plan") is to advance the
interests of Spanlink Communications, Inc. (the "Company") and its stockholders
by providing an incentive to certain employees of the Company and its
subsidiaries and to certain other key individuals who perform services for the
Company and its subsidiaries, to contribute significantly to the strategic and
long-term performance objectives and growth of the Company and its subsidiaries.
This purpose is expected to be achieved by affording employees and other key
individuals who perform services for the Company an opportunity to acquire a
proprietary interest in the Company through the grant of Incentive Stock
Options, Nonqualified Stock Options, Restricted Stock, Stock Appreciation Rights
and Reload Options (individually an "Award" and collectively "Awards") as
provided herein. Subject to such limits as may be imposed by the Plan, a single
Award or any combination of Awards may be granted to an eligible individual.
2. EFFECTIVE DATE.
The effective date of the Plan shall be January 31, 1996, subject to approval
of the Plan by the stockholders of the Company within twelve months thereof.
3. ADMINISTRATION OF THE PLAN.
The Plan shall be administered by a Committee (the "Committee") of the Board
of Directors of the Company (the "Board"), provided that members of the
Committee shall qualify to administer the Plan as contemplated by Rule 16b-3
promulgated under Section 16 of the Securities Exchange Act of 1934 (the
"Exchange Act") or any successor rule and by Section 162(m) of the Internal
Revenue Code of 1986, as amended (the "Code") and regulations and
interpretations thereunder ("Section 162(m)"). A majority of the members of the
Committee shall constitute a quorum for any meeting of the Committee and the
acts of a majority of the members present at any meeting at which a quorum is
present or the acts unanimously approved in writing by all members of the
Committee shall be the acts of the Committee. The decision of the Committee on
any matter relating to the Plan shall be deemed final and binding upon all
persons. No member of the Board or of the Committee shall be liable for any
action or determination taken or made in good faith with respect to the Plan or
any option granted hereunder. Committee members may be reimbursed for
out-of-pocket expenses reasonably incurred in the administration of the Plan.
Subject to the express provisions of the Plan, the Committee shall have
plenary authority, in its discretion, (i) to designate the individuals eligible
to participate in the Plan; (ii) to grant Awards provided in the Plan in such
form and amount as the Committee shall determine, (iii) to impose such
limitations, restrictions and conditions upon any such award as the Committee
shall deem appropriate, and (iv) to interpret the Plan, adopt, amend and rescind
rules and regulations relating to the Plan, and make all other determinations
and take all other action necessary or advisable for the implementation and
administration of the Plan.
Notwithstanding any contrary provisions of the Plan, the granting, terms,
conditions and eligibility requirements of Awards granted to Outside Directors
under Section 8.C of the Plan are governed solely by the provisions of the Plan
pertaining thereto, and the Committee shall have no discretion with respect to
the granting of such Awards or to alter or amend any terms, conditions or
eligibility requirements of such Awards to Outside Directors.
4. STOCK SUBJECT TO THE PLAN.
Subject to adjustment as provided in this Plan, the total number of shares of
common stock of the Company ("Common Stock") to be issued shall not exceed
750,000 shares. If any Award granted hereunder terminates, expires unexercised,
does not vest, is exchanged for options without the issuance of shares of Common
Stock, or is cancelled, the shares of Common Stock reserved for issuance shall
again be available for issuance under the Plan, to the extent of any such
termination or nonuse. Any shares issued by the Company in connection with the
assumption or substitution of outstanding grants from any acquired corporation
shall not reduce the shares available for issuance under the Plan. Shares of
Common Stock that may be issued hereunder may be authorized and unissued stock,
or may be treasury stock purchased for or held by the Company as such, or a
combination thereof. Appropriate adjustments in the number of shares of Common
Stock that may be available for issuance under the Plan and adjustments in the
number of shares of Common Stock subject to outstanding Awards, or an adjustment
in the exercise price of any Award may be made by the Committee in its
discretion to give effect to adjustments made in the number of shares of Common
Stock of the Company through any merger, consolidation, recapitalization,
reclassification, combination, stock dividend, stock split or other similar
change in the corporate structure of the Company affecting its capitalization,
or a sale by the Company of all or part of its assets or any distribution to
stockholders other than a normal cash dividend.
5. ELIGIBILITY.
Except as provided in Section 8.C, the granting of Awards to employees and
other key individuals who perform services for the Company, or any subsidiary,
is solely at the discretion of the Committee. In making this selection, the
Committee shall consider any factors deemed relevant.
6. DURATION OF THE PLAN.
The Plan shall remain in effect until all shares reserved for issuance
pursuant to the Plan shall have been purchased pursuant to options granted under
the Plan, provided that Awards under the Plan must be granted not later than ten
years after the effective date of the Plan.
7. GENERAL TERMS OF AWARDS.
A. DATE OF GRANT AND TERM. An Award agreement shall specify the date of
grant, which shall be the date on which the Committee grants an Award or any
later date which the Committee specifically designates and the term of each
Award as determined by the Committee.
B. NUMBER OF SHARES OF COMMON STOCK. An Award agreement shall specify the
number of shares of Common Stock to which it pertains.
C. TRANSFERABILITY AND EXERCISABILITY.
(i) The Committee shall have the authority to determine whether an Award
shall specify periods after the date of grant during which the Award or
any portion thereof may not yet be exercisable, including provisions
applicable to persons subject to Section 16 of the Exchange Act.
(ii) Except as otherwise specifically provided in this Plan or an Award
agreement, Awards granted to an individual ("Holder") may be exercised
only by the Holder and only while an employee of the Company or a
subsidiary of the Company or otherwise performing services for the Company
or a subsidiary and only if the Holder has been continuously so employed
or engaged since the date such Awards were granted; provided, however,
that in the event of disability of a Holder, Awards may be exercised by
the Holder not later than the earlier of the date the Award expires or one
year after the date such employment or performance of services ceases by
reason of disability, but only with respect to an Award exercisable at the
time such employment or performance of services ceases.
(iii) Absence from the Company due to leave or any other interruption in
the performance of services by a Holder shall, if approved by the
Committee, not be deemed a cessation or interruption of employment or
services for the purposes of the Plan.
(iv) Except as otherwise specifically provided in an Award agreement, no
Award shall be assignable or transferable by a Holder to whom it is
granted except that it may be transferable by will or the laws of descent
and distribution. An option so transferred may be exercised after the
death of the Holder to whom it is granted only by such Holder's legal
representatives, heirs or legatees, not later than the earlier of the date
the option expires or one year after the date of death of such Holder and
only with respect to an Award exercisable at the time of death.
(v) In no event shall any Award be exercisable at any time after its
expiration date unless extended by the Committee. When an Award is no
longer exercisable, it shall be deemed to have lapsed or terminated.
(vi) Except as otherwise specifically provided in an Award agreement,
notwithstanding any provision of Section 7.C, if within one year after the
termination of employment with or performance of services for the Company,
a Holder is employed or retained by a firm that competes with the business
of the Company or such Holder violates any confidentiality agreement with
the Company, the Company may cancel and rescind all Awards held by such
Holder and demand return of the economic value of any Award which was
realized or obtained (measured at the date of exercise) by such Holder at
any time during the period beginning on the date which is twelve months
prior to the date of termination.
D. METHODS OF EXERCISE. Subject to the terms and conditions of the Plan and
the terms and conditions of an Award agreement, an Award may be exercised in
whole or in part from time to time, by delivery to the Company at its
principal office a written notice of exercise specifying the number of shares
with respect to which the Award is being exercised, accompanied by payment in
full of the exercise price for shares to be purchased at that time. Payment
may be made (i) in cash, (ii) in shares of Common Stock valued at the Fair
Market Value of the Common Stock on the date of exercise or (iii) in a
combination of cash and Common Stock. The Committee may also, in its sole
discretion, permit Holders to deliver a notice of exercise of options and
simultaneously to sell the shares of Common Stock thereby acquired pursuant
to a brokerage or similar arrangement approved in advance by proper officers
of the Company, which approval will not be unreasonably withheld, using the
proceeds from such sale as payment of the exercise price. No shares of Common
Stock shall be issued until full payment therefor has been made.
E. RIGHTS AS A STOCKHOLDER. A Holder shall have no rights as a stockholder
with respect to any Common Stock covered by an Award until exercise of such
Award and issuance of shares of Common Stock. Except as otherwise expressly
provided in the Plan, no adjustments shall be made for dividends or other
rights for which the record date is prior to issuance of the Common Stock.
F. GENERAL RESTRICTION. Each Award shall be subject to the requirement that,
if at any time the Board shall determine in its discretion that the listing,
registration or qualification of the Common Stock subject to such Award on
any securities exchange or under any state or federal law, or the consent or
approval of any government regulatory body, is necessary or desirable as a
condition of, or in connection with, the granting of such Award or the issue
or purchase of Common Stock thereunder, such Award may not be exercised in
whole or in part unless such listing, registration, qualification, consent or
approval shall have been effected or obtained free of any conditions
unacceptable to the Board.
8. STOCK OPTIONS.
A. GENERAL. It is intended that certain options granted under the Plan shall
be incentive stock options ("Incentive Stock Options") and shall meet the
applicable requirements of and contain or be deemed to contain all provisions
required under Section 422 of the Code or corresponding provisions of
subsequent revenue laws and regulations in effect at the time such options
are granted; that other options shall not meet such requirements and shall be
nonqualified stock options ("Nonqualified Options"); and that any ambiguities
in construction shall be interpreted in order to effectuate such intent. Such
options shall be subject to the terms and conditions set forth elsewhere in
the Plan. The exercise price of each option shall be determined by the
Committee at the time the option is granted, provided that in no event can
the exercise price be less than 85% of the Fair Market Value of such shares
of Common Stock on the date of grant of such option; and provided, further,
the determination shall take into account any requirements under the Code
and, with respect to individuals to whom Section 162(m) is applicable, the
amount of the exercise price shall be not less than 100% of the Fair Market
Value of such shares of the Common Stock on the date of grant of such option.
B. INCENTIVE STOCK OPTIONS.
(i) The term of any Incentive Stock Option shall meet the requirements of
Section 422 of the Code. Any Incentive Stock Option shall be treated as
"outstanding" until it is exercised in full or expires by reason of lapse
of time. In no event shall the exercise price of an Incentive Stock Option
be less than 100% of the Fair Market Value of such shares of the Common
Stock on the date of grant of such option or such other amount required by
the Code.
(ii) If an option is granted to an individual who owns, directly or
indirectly, Common Stock or other capital stock of the Company possessing
more than 10% of the total combined voting power of all classes of stock
of the Company or a subsidiary immediately after such option is granted,
the amount of the exercise price shall be equal to 110% of the Fair Market
Value of such shares of Common Stock on the date of grant and such option
shall expire five years from the date of grant.
(iii) To the extent that the aggregate Fair Market Value of Common Stock
(determined at the time of grant of the Incentive Stock Option) with
respect to which Incentive Stock Options are exercisable for the first
time by a Holder during any calendar year (under all such plans of the
Company and its parent and subsidiary corporations) exceeds $100,000 or
such other limit as may be imposed by the Code, such options shall be
treated as options which are not Incentive Stock Options. In applying the
foregoing limitation, options shall be taken into account in the order in
which they were granted.
(iv) In the event of termination of the employment of a Holder of an
Incentive Stock Option, such Holder shall have up to three (3) months
after the date of termination (but in no event later than the expiration
date of the term of an Incentive Stock Option) to exercise any Incentive
Stock Options to the extent that the Holder was entitled to exercise the
Incentive Stock Option at the date of termination of employment. To the
extent that the Holder was not entitled to exercise the Incentive Stock
Option at the date of termination of employment, or if the Holder fails to
exercise an Incentive Stock Option within the time specified herein, the
Incentive Stock Option shall terminate.
C. OUTSIDE DIRECTOR OPTIONS.
(i) At the 1996 Annual Meeting of Shareholders each person who is serving
as a director of the Company, but who is not an employee of the Company
(an "Outside Director") shall be granted, by virtue of serving as an
Outside Director of the Company, a Nonqualified Option for 6,000 shares.
In addition, at each subsequent Annual Meeting of Shareholders each
Outside Director shall be granted by virtue of serving as an Outside
Director of the Company, a Nonqualified Option for 4,000 shares.
(ii) Each option granted to an Outside Director (a "Director Option")
shall vest and become immediately exercisable. Director Options shall
expire at the 10-year anniversary of the date of grant.
(iii) The purchase price of each share subject to a Director Option shall
be 100% of the Fair Market Value of a share as of the date of grant.
Notwithstanding anything to the contrary stated in this Plan, each
Director Option shall be deemed conclusively to have been granted prior to
close of the applicable securities exchange or system on the date of
grant. An Outside Director may exercise a Director Option using as payment
any form of consideration provided for in the Plan, which form of payment
shall be within the sole discretion of the Outside Director.
(iv) Director Options shall be evidenced by an agreement signed on behalf
of the Company by an officer thereof which only incorporates by reference
the terms of this Plan.
(v) Unless the Director Option shall have expired, in the event of an
Outside Director's death, the Director Option granted to such Outside
Director shall be transferable to the beneficiary, if any, designated by
the Outside Director in writing to the Company prior to the Outside
Director's death and such beneficiary shall succeed to the rights of the
Outside Director to the extent permitted by law. If no such designation of
a beneficiary has been made, the Outside Director's legal representative
shall succeed to the Director Option, which shall be transferable by will
or pursuant to the laws of descent and distribution.
9. RELOAD OPTIONS.
A. AUTHORIZATION OF RELOAD OPTIONS. Concurrently with the award of
Nonqualified Options or the award of Incentive Stock Options to any
participant in the Plan, the Committee may authorize reload options ("Reload
Options") to purchase for cash or shares a number of shares of Common Stock.
The number of Reload Options shall equal:
(i) the number of shares of Common Stock used to exercise the underlying
Nonqualified Options or Incentive Stock Options and
(ii) to the extent authorized by the Committee, the number of shares of
Common Stock used to satisfy any tax withholding requirement incident to
the exercise of the underlying Nonqualified Options or Incentive Stock
Options. The grant of a Reload Option will become effective upon the
exercise of underlying Nonqualified Options, Incentive Stock Options or
Reload Options through the use of shares of Common Stock held by the
optionee for at least 12 months. Notwithstanding the fact that the
underlying option may be an Incentive Stock Option, a Reload Option is not
intended to qualify as an "incentive stock option" under Section 422 of
the Internal Revenue Code of 1986.
B. RELOAD OPTION AMENDMENT. Each Nonqualified Option Agreement and Incentive
Stock Option Agreement shall state whether the Committee has authorized
Reload Options with respect to the underlying Nonqualified Options or
Incentive Stock Options. Upon the exercise of an underlying Nonqualified
Option, Incentive Stock Option or other Reload Option, the Reload Option will
be evidenced by an amendment to the underlying Stock Option Agreement or
Incentive Stock Option Agreement.
C. RELOAD OPTION PRICE. The option price per share of Common Stock
deliverable upon the exercise of a Reload Option shall be the Fair Market
Value of a share of Common Stock on the date the grant of the Reload Option
becomes effective.
D. TERM. The term of each Reload Option shall be equal to the remaining
option term of the underlying Nonqualified Option or Incentive Stock Option.
E. TERMINATION OF EMPLOYMENT. No additional Reload Options shall be granted
to optionees when Nonqualified Options, Incentive Stock Options or Reload
Options are exercised pursuant to the terms of this Plan following
termination of the optionee's employment.
10. STOCK APPRECIATION RIGHTS.
A. AWARD OF STOCK APPRECIATION RIGHTS. The Committee may, subject to the
provisions of the Plan and such other terms and conditions as the Committee
may prescribe, award to the optionee with respect to each share of Common
Stock, a related stock appreciation right ("SAR"), permitting the optionee to
be paid the appreciation on the option in lieu of exercising the option. SARs
shall be evidenced by written agreements in such form as the Committee may
from time to time determine.
B. EXERCISE. An optionee who has been granted SARs may, from time to time, in
lieu of the exercise of an equal number of options, elect to exercise one or
more SARs and thereby become entitled to receive from the Company payment in
Common Stock the number of shares determined pursuant to Sections 10(D) and
10(E). SARs shall be exercisable only to the same extent and subject to the
same conditions as the options related thereto are exercisable, as provided
in this Plan. The Committee may, in its discretion, prescribe additional
conditions to the exercise of any SARs.
C. AMOUNT OF PAYMENT. The amount of payment to which an optionee shall be
entitled upon the exercise of each SAR shall be equal to 100% of the amount,
if any, by which the Fair Market Value of a share of Common Stock on the
exercise date exceeds the fair market value of a share of Common Stock on the
date the option related to said SAR was granted or became effective, as the
case may be.
D. FORM OF PAYMENT. The number of shares to be paid shall be determined by
dividing the amount of payment determined pursuant to Section 10(C) by the
Fair Market Value of a share of Common Stock on the exercise date of such
SARs. As soon as practicable after exercise, the Company shall deliver to the
optionee a certificate or certificates for such shares of Common Stock.
E. EFFECT OF EXERCISE. The exercise of any SARs shall cancel an equal number
of Nonqualified Options, Incentive Stock Options, and Reload Options, related
to said SARs.
11. RESTRICTED STOCK AWARDS. Awards of Common Stock subject to forfeiture and
transfer restrictions ("Restricted Stock") shall be evidenced by agreements in
such form as the Committee shall from time to time approve, which agreements
shall be subject to the terms and conditions contained in the Plan and any
additional terms and conditions established by the Committee that are consistent
with the Plan.
A. GRANT OF RESTRICTED STOCK. Each grant of Restricted Stock made under the
Plan shall be for such number of shares of Common Stock as shall be
determined by the Committee and set forth in the agreement containing the
terms of such grant of Restricted Stock. Such agreement shall set forth a
period of time during which the grantee must remain in the continuous
employment of the Company in order for the forfeiture and transfer
restrictions to lapse. If the Committee so determines, the restrictions may
lapse during such restricted period in installments with respect to specified
portions of the shares covered by the Restricted Stock grant. The agreement
may also, in the discretion of the Committee, set forth performance or other
conditions that will subject the shares to forfeiture and transfer
restrictions. The Committee may, at its discretion, waive all or any part of
the restrictions applicable to any or all outstanding restricted stock
grants.
B. DELIVERY OF COMMON STOCK AND RESTRICTIONS. At the time of a Restricted
Stock grant, a certificate representing the number of shares of Common Stock
awarded thereunder shall be registered in the name of the grantee. Such
certificate shall be held by the Company or any custodian appointed by the
Company for the account of the grantee subject to the terms and conditions of
the Plan, and shall bear such a legend setting forth the restrictions imposed
thereon as the Committee, in its discretion, may determine. The grantee shall
have all rights of a shareholder with respect to the shares, including the
right to receive dividends and the right to vote such shares, subject to the
following restrictions: (i) the grantee shall not be entitled to delivery of
the stock certificate until the expiration of the restricted period and the
fulfillment of any other restrictive conditions set forth in the restricted
stock agreement with respect to such shares; (ii) none of the shares may be
sold, assigned, transferred, pledged, hypothecated or otherwise encumbered or
disposed of during such restricted period or until after the fulfillment of
any such other restrictive conditions; and (iii) except as otherwise
determined by the Committee, all of the shares shall be forfeited and all
rights of the grantee to such shares shall terminate, without further
obligation on the part of the Company, unless the grantee remains in the
continuous employment of the Company for the entire restricted period in
relation to which such Common Stock was granted and unless any other
restrictive conditions relating to the restricted stock award are met. Any
Common Stock, any other securities of the Company and any other property
(except for cash dividends) distributed with respect to the shares of Common
Stock subject to restricted stock awards shall be subject to the same
restrictions, terms and conditions as such restricted shares of Common Stock.
C. TERMINATION OF RESTRICTIONS. At the end of the restricted period and
provided that any other restrictive conditions of the grant of Restricted
Stock are met, or at such earlier time as otherwise determined by the
Committee, all restrictions set forth in the agreement relating to the grant
of Restricted Stock or in the Plan shall lapse as to the Restricted Stock
subject thereto, and a stock certificate for the appropriate number of shares
of Common Stock, free of the restrictions and the restricted stock legend,
shall be delivered to the grantee or his or her beneficiary or estate, as the
case may be.
12. CHANGE OF CONTROL. In the event of a threatened or actual Change of Control
of the Company as hereinafter defined, whether or not approved by the Board of
Directors, all Awards shall fully vest, unless otherwise limited by the
Committee in the Award agreement, and be exercisable in their entirety
immediately, and notwithstanding any other provisions of the Plans, shall
continue to be exercisable for three years following the later of the threatened
or actual Change of Control, but not later than ten years after the date of
grant. A Change of Control means the earliest to occur of (i) a public
announcement that a party shall have acquired or obtained the right to acquire
beneficial ownership of 20% or more of the outstanding shares of Common Stock of
the Company, (ii) the commencement or announcement of an intention to make a
tender offer or exchange offer, the consummation of which would result in the
beneficial ownership by a party of 30% or more of the outstanding shares of
Common Stock of the Company or (iii) the occurrence of a tender offer, exchange
offer, merger, consolidation, sale of assets or contested election or any
combination thereof, that causes (or would cause) the persons who were directors
of the Company immediately before such Change of Control to cease to constitute
a majority of the Board of Directors of the Company or any parent of or
successor to the Company; provided, however, a Change of Control shall not
include any private or public offering of securities by the Company, the primary
purpose of which is to raise capital for use by the Company in its operations.
13. WITHHOLDING TAXES. The Company shall have the right to deduct from any
settlement made under the Plan, including the exercise of an option or the sale
of shares of Common Stock, any federal, state or local taxes of any kind,
including FICA taxes, required by law to be withheld with respect to such
payments or to take such other action as may be necessary in the opinion of the
Company to satisfy all obligations for the payment of such taxes. If stock is
withheld or surrendered to satisfy tax withholding, such stock shall be valued
at its Fair Market Value on the date the amount of the tax withholding is
determined.
14. AMENDMENT OF THE PLAN. The Plan may be amended, suspended or discontinued in
whole or in part at any time and from time to time by the Board, including an
amendment to increase the number of shares of Common Stock with respect to which
options may be granted, provided however that no amendment shall be effective
unless and until the same is approved by stockholders of the Company where the
failure to obtain such approval would adversely affect the compliance of the
Plan with Rule 16b-3 under the Exchange Act or successor rule and with other
applicable law, including the Code. No amendment or discontinuance of this Plan
shall, without the written consent of the Holder with respect to such Award,
adversely affect any Award theretofore granted to the Holder. Subject to the
foregoing and the requirements of Section 162(m), the Board may, in accordance
with the recommendation of the Committee and without further action on the part
of the stockholders of the Company or the consent of participants, amend the
Plan, to preserve the employer deduction under Section 162(m).
15. MISCELLANEOUS.
A. USE OF PROCEEDS. The proceeds derived from the sale of shares of Common
Stock pursuant to the exercise of options granted under the Plan shall
constitute general funds of the Company.
B. SUBSIDIARY. As used herein with respect to Incentive Stock Options, the
term "subsidiary" shall mean "subsidiary corporation," as defined in Section
424 of the Code.
C. COMPLIANCE WITH RULE 16B-3 AND SECTION 162(M). With respect to employees
subject to Section 16 of the Exchange Act or Section 162(m), transactions
under the Plan are intended to comply with all applicable conditions of Rule
16b-3 and avoid loss of the deduction referred to in paragraph (1) of Section
162(m). Anything in the Plan or elsewhere to the contrary notwithstanding, to
the extent any provision of the Plan or action by the Committee fails to so
comply or avoid the loss of such deduction, it shall be deemed null and void,
to the extent permitted by law and deemed advisable by the Committee.
D. FAIR MARKET VALUE. If the Company's Common Stock is traded in the
over-the- counter market or on the NASDAQ Stock Market or similar market,
"Fair Market Value" shall mean the mean average of the bid and asked prices
of the Common Stock as reported in The Wall Street Journal or as quoted by a
market maker; if the Common Stock is listed on an exchange, Fair Market Value
shall mean the mean average of the high and low prices of the Common Stock as
reported in The Wall Street Journal; and if the Common Stock is not so traded
or listed or the Common Stock does not trade on the relevant date, Fair
Market Value shall mean the value determined in good faith by the Board of
Directors.
EXHIBIT 5.1
(612) 343-5641
October 28, 1996
106662.7
Spanlink Communications, Inc.
One Main Street S.E.
Minneapolis, Minnesota 55414
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted on behalf of Spanlink Communications, Inc. (the "Company") in
connection with a Registration Statement on Form S-8 (the "Registration
Statement") filed by the Company with the Securities and Exchange Commission
relating to the registration of shares of the Company's no par value Common
Stock (the "Common Stock") with respect to Selling Shareholders in the aggregate
amount of 750,000 shares of Common Stock. Upon examination of such corporate
documents and records as we have deemed necessary or advisable for the purposes
hereof and including and in reliance upon certain certificates by the Company,
it is our opinion that:
1. The Company is a validly existing corporation in good standing under the
laws of the State of Minnesota.
2. The 750,000 shares of Common Stock registered in the Registration
Statement, when sold as contemplated in the Registration Statement, will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
DOHERTY, RUMBLE & BUTLER
PROFESSIONAL ASSOCIATION
By /s/ Girard P. Miller
Girard P. Miller
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 for the Spanlink Communications, Inc. 1996 Omnibus Stock
Plan of our report dated February 29, 1996, which appears on page F-2 of the
Registration Statement (No. 333-02022C) on Form SB-2, for the two years ended
December 31, 1995.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Minneapolis, Minnesota
October 24, 1996
