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.)
7125 NORTHLAND TERRACE
BROOKLYN PARK, MINNESOTA 55428
(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
7125 Northland Terrace
Brooklyn Park, Minnesota 55428
Telephone (612) 971-2000
(Name, address, and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
Calculation of Registration Fee
Proposed Proposed
maximum maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered(1) per share(2) offering price(2) registration fee
---------------- ------------- ------------ ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock 250,000 shares $2.688 $672,000 $203.64
(no par value)
(1) These additional 250,000 shares shall be 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, as
amended (the "Plan"), giving Spanlink Communications, Inc. a total of
1,000,000 shares reserved for awards and for issuance upon exercise of
options under 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 high and low prices of the Common Stock as traded on the Nasdaq
SmallCap Market on July 3, 1997.
</TABLE>
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"), as amended. That disclosure document
constitutes a Section 10(a) prospectus and is incorporated by reference in this
Registration Statement for Additional Securities, but is not being filed with
the Commission either as part of this Registration Statement or as a prospectus
or prospectus supplement.
INCORPORATION BY REFERENCE
Spanlink Communication, Inc. (the "Company") has previously filed with
the Securities and Exchange Commission a Registration Statement on Form S-8, SEC
File No. 333-14949 (together with any amendments or supplements thereto, the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act") with respect to 750,000 shares of the Company's common stock. Pursuant to
Form S-8, General Instruction E, "Registration of Additional Securities," the
contents of that Registration Statement is herein incorporated by reference. In
addition, the Company's Annual Report on Form 10-KSB (File No. 000-28138) for
the year ended December 31, 1996, and its Quarterly Report on Form 10-QSB (File
No. 000-28138) for the three month period ending March 31, 1997 are also
incorporated by reference.
REQUIRED EXHIBITS
Exhibit No. Description
4.1 Spanlink Communications, Inc. 1996 Omnibus Stock Plan and
Amendment No. 1.
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)
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 July 8, 1997.
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, 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 July 8, 1997, by the following
persons in the capacities indicated:
Name Title
---- -----
/s/ Brett A. Shockley Chairman of the Board, Chief
Brett A. Shockley Executive Officer, President
and Director
(PRINCIPAL EXECUTIVE OFFICER)
/s/ Brian P. King Chief Financial Officer
Brian King (PRINCIPAL FINANCIAL OFFICER)
/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.
AMENDMENT NO. 1
TO
SPANLINK COMMUNICATIONS, INC.
1996 OMNIBUS STOCK PLAN
The following amendment was adopted by the Board of Directors of
Spanlink Communications, Inc. (the "Company") on March 13, 1997, and by the
shareholders of the Company at the Annual Meeting of the Shareholders on May 13,
1997:
1. The first paragraph of Section 3 of the Company's 1996 Omnibus Stock
Plan (the "Plan") is hereby amended in its entirety, as follows:
The Plan shall be administered by a committee (the
"Committee"), whose members will be appointed by and serve at the
pleasure of the Board of Directors of the Company (the "Board"). All
option grants and awards under the Plan to officers, directors and
others who are subject to Section 16 under the Securities Exchange Act
of 1934, as amended, and the rules of the Securities and Exchange
Commission promulgated thereunder, shall be made exclusively by the
Committee. The Committee shall be composed solely of three or more
members of the Board of Directors who (i) are not an officer or other
employee of the Company (or its parent or subsidiary); (ii) do not
receive compensation from the Company (or its parent or subsidiary)
other than as a director, except for an amount that would not exceed
the dollar amount requiring disclosure under Reg. S-K, Item 404(a)
under the Securities Exchange Act of 1934; and (iii) do not have any
interest or relationship requiring disclosure under Reg. S-K, 404(a) or
404(b) of the Securities Exchange Act of 1934.
A majority of the members of the Committee shall constitute a
quorum for 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.
2. The last paragraph of Section 3 of the Plan is hereby deleted in its
entirety.
3. The first sentence of Section 4 to the Plan is amended to insert
"1,000,000 shares" in lieu of "750,000 shares."
IN WITNESS WHEREOF, Spanlink Communications, Inc. has caused this
Amendment No. 1 to the 1996 Omnibus Stock Plan to be signed by its duly
authorized officer this __ day of May, 1997.
SPANLINK COMMUNICATIONS, INC.
By /s/
EXHIBIT 5.1
(612) 343-5641
July 7, 1997
Spanlink Communications, Inc.
7125 Northland Terrace
Brooklyn Park, MN 55428
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 additional shares of the Company's no
par value Common Stock (the "COMMON STOCK") with respect to Selling Shareholders
in the amount of 250,000 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 additional 250,000 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 13, 1997, which appears in the Annual Report
on Form 10-KSB for the year ended December 31, 1996.
Price Waterhouse LLP
Minneapolis, Minnesota
June 30, 1997
