<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 7, 1998.
REGISTRATION NO. 333-49291
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
U. S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 4 TO
FORM SB-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
FIRSTLINK COMMUNICATIONS, INC.
(Name of small business issuer in its Charter)
<TABLE>
<S> <C> <C>
OREGON 7385 93-1197477
(State or jurisdiction of (Primary Standard Industrial IRS Employer
organization) Classification Identification
Code Number) Number
</TABLE>
190 SW HARRISON
PORTLAND, OREGON 97201
(503) 306-4444
(Address and telephone number of Registrant's principal executive offices)
A. ROGER PEASE
190 SW HARRISON
PORTLAND, OREGON 97201
(503) 306-4444
(Name, address and telephone number of agent for service of process)
--------------------------
COPIES TO:
DAVID H. DRENNEN, ESQ. GREGORY SICHENZIA, ESQ.
Neuman Drennen & Stone, LLC Sichenzia, Ross & Friedman, LLP
5350 South Roslyn Street, Suite 380 135 West 50th Street
Englewood, Colorado 80111 New York, New York 10020
(303) 221-4700 (303) 694-6287 (Fax) (212) 261-2007 (212) 664-7329 (Fax)
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC:
AS SOON AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THE REGISTRATION STATEMENT.
--------------------------
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
SEE NEXT PAGE
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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<PAGE>
FIRSTLINK COMMUNICATIONS, INC.
CROSS-REFERENCE INDEX
<TABLE>
<CAPTION>
ITEM NO. AND HEADING
IN FORM SB-2
REGISTRATION STATEMENT LOCATION IN PROSPECTUS
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<C> <S> <C>
1. Forepart of the Registration Statement and outside
front cover page of Prospectus..................... Forepart of Registration Statement and outside front
cover page of Prospectus
2. Inside front and outside back cover pages of
Prospectus......................................... Inside front and outside back cover pages of
Prospectus
3. Summary Information, Risk Factors and Ratio of
Earnings to Fixed Charges.......................... Prospectus Summary; Risk Factors
4. Use of Proceeds...................................... Use of Proceeds
5. Determination of Offering Price...................... Front Cover Page; Underwriting
6. Dilution............................................. Dilution
7. Plan of Distribution................................. Underwriting
8. Legal Proceedings.................................... Business--Legal Matters
9. Directors, Executive Officers, Promoters and
Controlled Persons................................. Management
10. Security Ownership of Certain Beneficial Owners...... Securities Ownership of Management and Principal
Shareholders
11. Description of Securities to be Registered........... Description of Securities
12. Interest of Named Experts and Counsel................ Legal Matters
13. Disclosure of SEC Position on Indemnification for
Securities Act Liabilities......................... Management--Limitation on Directors' Liability;
Indemnification
14. Organization Within Last Three Years................. Certain Transactions
15. Description of Business.............................. Prospectus Summary; Risk Factors; Business
16. Management's Discussion and Analysis or Plan of
Operation.......................................... Management's Discussion and Analysis of Financial
Condition and Results of Operations
17. Description of Property.............................. Business
18. Certain Relationships and Related
Transactions....................................... Certain Transactions
19. Market for Common Equity and Related Stockholder
Matters............................................ *
20. Executive Compensation............................... Management--Executive Compensation
21. Financial Statements................................. Financial Statements
22. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure................ *
</TABLE>
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* Omitted from Prospectus because Item is inapplicable or answer is in the
negative.
2
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 24. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The only statute, charter provision, bylaw, contract, or other arrangement
under which any controlling person, director or officers of the Registrant is
insured or indemnified in any manner against any liability which he may incur in
his capacity as such, is as follows:
The Company's Articles of Incorporation permit and its Bylaws require the
Company to indemnify officers and directors to the fullest extent permitted by
the Oregon Business Corporation Law (OBCA). The Company has also entered into
agreements to indemnify its directors and executive officers to provide the
maximum indemnification permitted by Oregon law. These agreements, among other
provisions, provide indemnification for certain expenses (including attorney
fees), judgments, fines and settlement amounts incurred in any action or
proceeding, including any action by or in the right of the Company.
Article VI of the Company's Bylaws permits the Company to indemnify its
directors, officers, employees and agent to the maximum extent permitted by the
OBCA. Section 317 of the OBCA provides that a corporation has the power to
indemnify and hold harmless a director, officer, employer, or agent of the
corporation who is or is made a party or is threatened to be made a party to any
threatened action, suit or proceeding, whether civil, criminal, administrative
or investigative, against all expense, liability and loss actually and
reasonably incurred by such person in connection with such a proceeding if he or
she acted in good faith and in a manner he or she reasonably believed to be in
the best interest of the corporation, and, with respect to any criminal
proceeding, had no reasonable cause to believe that the conduct was unlawful. If
it is determined that the conduct of such person meets these standards, such
person may be indemnified for expenses incurred and amounts paid in such
proceeding if actually and reasonably incurred in connection therewith.
If such a proceeding is brought by or on behalf of the corporation (i.e., a
derivative suit), such person may be indemnified against expenses actually and
reasonably incurred if such person acted in good faith and in a manner
reasonably believed to be in the best interest of the corporation and its
shareholders. There can be no indemnification with respect to any matter as to
which such person is adjudged to be liable to the corporation unless and only to
the extent that the court in which such action or suit was brought shall
determine upon application that, despite such adjudication but in view of all of
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court shall deem proper.
Where any such person is successful in any such proceeding, such person is
entitled to be indemnified against expenses actually and reasonably incurred by
him or her. In all other cases (unless order by a court), indemnification is
made by the corporation upon determination by it that indemnification of such
person is proper in the circumstances because such person has met the applicable
standard of conduct.
A corporation may advance expenses incurred in defending any such proceeding
upon receipt of an undertaking to repay any amount so advanced if it is
ultimately determined that the person is not eligible for indemnification.
The indemnification rights provided in Section 317 of the OBCA are not
exclusive of additional rights to indemnification for breach of duty to the
corporation and its shareholders to the extent additional rights are authorized
in the corporation's articles of incorporation and are not exclusive of any
other rights to indemnification under any bylaw, agreement, vote of shareholders
or disinterested directors or otherwise, with as to action in his or her office
and as to action in another capacity while holding such office.
II-1
<PAGE>
ITEM 25. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses of the offering are to be borne by the Company, are
as follows:
<TABLE>
<S> <C>
SEC Filing Fee.................................................... $ 5,900
NASD Filing Fee................................................... 2,300
Nasdaq Listing Fee................................................ 10,000
Boston Stock Exchange Listing Fee................................. 10,000
Printing Expenses*................................................ 40,000
Accounting Fees and Expenses*..................................... 25,000
Legal Fees and Expenses*.......................................... 45,000
Blue Sky Fees and Expenses*....................................... 15,000
Registrar, Transfer Agent, and Warrant Agent Fee*................. 5,000
Miscellaneous*.................................................... 1,800
---------
Total........................................................... $ 160,000
</TABLE>
- ------------------------
* Estimated
ITEM 26. RECENT SALES OF UNREGISTERED SECURITIES.
The following discussion gives retroactive effect to the 1-for-1.5 stock
split of the Company's Common Stock which will be effected on the effective date
of this Registration Statement. With the exception of the securities described
in paragraph h. below, all of the shares are subject to the terms of a one-year
lock-up agreement with the representative of the Underwriter in the offering
register by this Registration Statement. The Registrant has sold and issued the
following securities during the past three years.
a. On January 1, 1996, the Company acquired all of the operating assets of
FirstLink Tenant Services, LLC, pursuant to an asset purchase agreement, in
exchange for 133,333 shares of Common Stock. The assets acquired were valued at
$82,790 which was the carry-over basis in such assets and liabilities. The
shares were issued to two individuals who owned the equity of FirstLink Tenant
Services, LLC. The sale of the shares was made pursuant to Section 4(2) of the
Securities Act; both investors were sophisticated and had access to all
pertinent information about the Company.
b. In January 1996, the Company issued 200,000 shares of Common Stock to
eight persons, including management and employers of the Company and persons
associated with Bathgate McColley Capital Group, LLC (BMCG). Those investors
paid a total of $9,000 for the shares, or $.05 per share. The sale of the shares
was made pursuant to Section 4(2) of the Securities Act; each investor was
sophisticated and had access to all pertinent information about the Company.
c. In February-April 1996, the company issued 354,667 shares to 20
investors in a private placement pursuant to Section 4(2) of the Securities Act.
The shares were sold to the investors for $.33 per share, or an aggregate of
$117,040. Each investor was sophisticated and had access to all pertinent
information about the Company.
d. From September 1996 through April 1997 the Company borrowed $250,000
from eleven accredited investors pursuant to Section 4(2) of the Securities Act.
The Company issued 110,000 shares as additional consideration for the loans; and
3,879 in lieu of interest on the Notes. Each investor was sophisticated and had
access to all pertinent information about the Company. $245,000 of the Notes
were converted into units (Item 26e, below). 3,879 shares were issued in payment
of interest on those notes.
e. In April 1997, the Company issued 386,666 shares of Common Stock and
warrants to purchase 193,333 shares of Common Stock to 23 persons in a private
placement pursuant to Section 4(2) and Rule 506 of Regulation D of the
Securities Act. Bathgate McColley Capital Group, LLC, (BMCG) whose principals
(Steven M. Bathgate, Eugene C. McColley, and Vicki D. E. Barone) are
securityholders of the
II-2
<PAGE>
Company, acted as placement agent for the offering which was placed with
accredited investors. Each investor executed a subscription agreement and
investor questionnaire in connection with the offering. The offering was sold in
units, each unit consisting of two shares of Common Stock and one Common Stock
Purchase Warrant. The units were priced at $1.50 each for an aggregate price of
$435,000. $245,000 of the units were purchased for cancellation of Notes (Item
26d); the remainder were purchased for cash. The Company paid BMCG commissions
and a non-accountable expense allowance, totaling $61,250. BMCG also received,
for nominal consideration, warrants to purchase 87,000 shares of Common Stock,
exercisable at $1.13 per share until they expire on April 30, 2002.
f. In August through November 1997, the Company issued 560,000 shares of
Common Stock and $420,000 of Convertible Notes ("Notes") in a private placement
pursuant to Section 4(2) and Rule 506 of Regulation D. BMCG acted as placement
agent for this offering which was placed with accredited investors. Each
investor executed a subscription agreement and investor questionnaire in
connection with the Offering. The Offering was sold in 12 units, each unit
consisting of 46,667 shares of Common Stock and one $35,000 Convertible Note.
The units were priced at $70,000 per unit. The Company paid BMCG commissions and
a non-accountable expense allowance totaling $74,602 and issued BMCG warrants to
purchase 56,000 shares of Common Stock at $.75 per share; and warrants to
purchase 14,000 shares of Common Stock at $3.00 per share. Those warrants are
exercisable at any time and expire on November 30, 2002. The Notes were
converted into a total of 186,667 shares of Common Stock in February and March
1998, in reliance on Section 3(a)(9) of the Securities Act.
g. Throughout 1996 and 1997 the Company issued shares of Common Stock to
four individuals, including two individuals who are directors of the Company,
who guaranteed $125,000 of Company leases. The Company will continue to issue
shares to each individual at the rate of 200 shares per month for as long as
those leases are guaranteed by such individuals. The Company issued a total of
40,561 shares pursuant to these guarantees as of April 30, 1998. The issuances
were made pursuant to Section 4(2) of the Securities Act; each investor was a
sophisticated accredited investor.
h. In February and March 1998 the Company issued units consisting of
188,889 shares of Common Stock and 188,889 Common Stock Purchase Warrants
("Private Warrants") to individuals in a private placement pursuant to Section
4(2) and Rule 506 of Regulation D. On the effectiveness of this Registration
Statement the Private Warrants will automatically convert into warrants that are
identical to the Warrants issued as part of the Units registered in this
Registration Statement as described on page 38 of the Prospectus which is a part
of this Registration Statement. The conversion will be made in reliance on
Section 3(a)(9) of the Securities Act. BMCG acted as placement agent in the
Offering, which was placed to accredited investors. Each investor executed a
subscription agreement and investor questionnaire in connection with the
Offering. The units were priced at $2.25 per unit. The Company paid BMCG
commissions of $38,000.
II-3
<PAGE>
ITEM 27. EXHIBITS.
a. The following Exhibits are filed as part of this Registration Statement
pursuant to Item 601 of Regulation S-B:
<TABLE>
<CAPTION>
EXHIBIT NO. TITLE
- ----------- ---------------------------------------------------------------------------------------------------
<C> <S>
1.1 Form of Underwriting Agreement. (1)
1.1.1 Form of Underwriting Agreement (Revised) (1)
1.2 Form of Representative's Share Option Agreement. (1)
1.2.1 Form of Representatives' Option Agreement (1)
1.3 Form of Representative's Warrant Option Agreement. (1)
3.1 Articles of Incorporation. (1)
3.2 Bylaws. (1)
4.1 Specimen Certificate for Common Stock. (1)
4.2 Warrant Agreement. (1)
4.2.1 Form of Warrant Agreement (Revised) (with Form of Warrant Certificate) (1)
4.3 Form of Lock Up Agreement with certain Securityholders. (1)
4.5 Registration Rights Agreement (1)
4.6 Form of Lock Up Agreement with certain Securityholders (1)
5.1.2 Opinion of Neuman Drennen & Stone, LLC.
10.1 1996 Stock Option Plan. (1)
10.2 Office Lease (190 SW Harrison, Portland, OR) (1)
10.2.1 Office Lease (The Mikado Building) (1)
10.3 Telecommunications Services Agreement between Registrant and Oregon Portland Associates (Portland
Center Apartments) (1)(2)
10.3.1 Telecommunications Services Agreement between Registrant and Oregon Portland Associates (Portland
Center Apartments) (Revised) (2)
10.4 Telecommunications Services Agreement between Registrant and Riverplace II Joint Venture
(Riverplace Development) (1)(2)
10.4.1 Telecommunications Services Agreement between Registrant and Riverplace II Joint Venture
(Riverplace Development) (Revised) (2)
10.5 Telecommunications Services Agreement between Registrant and Elsie D. McIver U/A Trust Dated 1/4/72
(Vista St. Clair) (1)(2)
10.5.1 Telecommunications Services Agreement between Registrant and Elsie D. McIver U/A Trust Dated 1/4/72
(Vista St. Clair) (Revised) (2)
10.6 Telecommunications Services Agreement between Registrant and Lloyd Place Apartments Limited
Partnership (Lloyd Place) (1)(2)
10.6.1 Telecommunications Services Agreement between Registrant and Lloyd Place Apartments Limited
Partnership (Lloyd Place) (Revised) (2)
10.7 Telecommunications Services Agreement between Registrant and Harsch Investment Corp. (King Tower
Apartments) (1)(2)
10.7.1 Telecommunications Services Agreement between Registrant and Harsch Investment Corp. (King Tower
Apartments) (Revised) (2)
10.8 Telecommunications Services Agreement between Registrant and Harsch Investment Corp. (Park Plaza
Apartments) (1)(2)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. TITLE
- ----------- ---------------------------------------------------------------------------------------------------
<C> <S>
10.8.1 Telecommunications Services Agreement between Registrant and Harsch Investment Corp. (Park Plaza
Apartments) (Revised) (2)
10.9 Telecommunications Services Agreement between Registrant and Security Investments; LP (Ione Plaza
Apartments) (1)(2)
10.9.1 Telecommunications Services Agreement between Registrant and Security Investments; LP (Ione Plaza
Apartments) (2)
10.10 Telecommunications Services Agreement between Registrant and Housing Authority of Portland (Pearl
Court Apartments) (1)(2)
10.10.1 Telecommunications Services Agreement between Registrant and Housing Authority of Portland (Pearl
Court Apartments) (Revised) (2)
10.11 Telecommunications Services Agreement between Registrant and Harsch Investment Corp. (The Clay
Towers Apartments) (1)(2)
10.11.1 Telecommunications Services Agreement between Registrant and Harsch Investment Corp. (The Clay
Towers Apartments) (Revised) (2)
10.12 Telecommunications Services Agreement between Registrant and Crossing Development Corporation
(Legends) (1)(2)
10.12.1 Telecommunications Services Agreement between Registrant and Crossing Development Corporation
(Legends) (Revised) (2)
10.13 Telecommunications Services Agreement between Registrant and Parkside Place (Parkside Plaza) (1)(2)
10.13.1 Telecommunications Services Agreement between Registrant and Parkside Place (Parkside Plaza) (1)
10.14 Telecommunications Services Agreement between Registrant and Housing Authority of the City of
Vancouver, Washington (Cougar Creek Apartments) (1)(2)
10.14.1 Telecommunications Services Agreement between Registrant and Housing Authority of the City of
Vancouver, Washington (Cougar Creek Apartments) (2)
10.15 Telecommunications Services Agreement between Registrant and Housing Authority of the City of
Vancouver, Washington (ParkLane Apartments) (1)(2)
10.15.1 Telecommunications Services Agreement between Registrant and Housing Authority of the City of
Vancouver, Washington (ParkLane Apartments) (2)
10.16 Telecommunications Services Agreement between Registrant and Housing Authority of the City of
Vancouver, Washington (Willow Creek Apartments) (1)(2)
10.16.1 Telecommunications Services Agreement between Registrant and Housing Authority of the City of
Vancouver, Washington (Willow Creek Apartments) (2)
10.17 Telecommunications Services Agreement between Registrant and Harsch Development Corp. (Sherman
Tower) (1)(2)
10.17.1 Telecommunications Services Agreement between Registrant and Harsch Development Corp. (Sherman
Tower) (2)
10.18 Telecommunications Services Agreement between Registrant and Harsch Development Corp. (The
Nettleton) (1)(2)
10.18.1 Telecommunications Services Agreement between Registrant and Harsch Development Corp. (The
Nettleton) (2)
10.19 Telecommunications Services Agreement between Registrant and Harsch Development Corp. (Regency
Tower Apartments) (1)(2)
10.19.1 Telecommunications Services Agreement between Registrant and Harsch Development Corp. (Regency
Tower Apartments) (2)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. TITLE
- ----------- ---------------------------------------------------------------------------------------------------
<C> <S>
10.20 Telecommunications Services Agreement between Registrant and Harsch Development Corp. (Syl-Mar
Estates) (1)(2)
10.20.1 Telecommunications Services Agreement between Registrant and Harsch Development Corp. (Syl-Mar
Estates) (2)
10.21 Letter of Intent with WEB Services, Inc. (1)
10.22 Registration Rights Agreement (1)
10.23 Cable Signal Delivery Agreement with TCI Cablevision of Oregon, Inc. (1)
23.1 Consent of Neuman Drennen & Stone, LLC. (included in Exhibit 5.1)
23.3 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (included on page II-6).
</TABLE>
- ------------------------
(1) Previously filed.
(2) Certain information has been omitted pursuant to Rule 406 of the Securities
Act. Omitted information is designated by "-".
ITEM 28. UNDERTAKINGS.
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; and
(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.
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.
4. To provide, upon Closing of the Offering as specified in the
Underwriting Agreement, certificates in such denominations and registered in
such names as are required to permit prompt delivery to each purchaser.
5. Insofar as indemnification for liabilities arising under the Securities
Act 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 Securities 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 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,
II-6
<PAGE>
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
6. For determining any liability under the Securities Act:
(i) To treat the information omitted from the form of prospectus filed
as part of this Registration Statement in reliance upon Rule 430A
and contained in a form of prospectus filed by the Registrant
pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities
Act as part of this Registration Statement as of the time it was
declared effective; and
(ii) To treat each post-effective amendment that contains a form of
prospectus as a new registration statement for the securities
offered in the registration statement, and the offering of such
securities at that time as the initial bona fide offering of those
securities.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form SB-2 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in Portland, State of Oregon on July 6, 1998.
<TABLE>
<S> <C> <C>
FIRSTLINK COMMUNICATIONS, INC.
By: /s/ A. ROGER PEASE
-----------------------------------------
A. Roger Pease,
PRESIDENT
</TABLE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints A. Roger Pease and Jeffrey S. Sperber, and each
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and re-substitution, for him and in his 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 attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, 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 substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirement of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
/s/ A. ROGER PEASE
- ------------------------------ President, Chief Executive July 6, 1998
A. Roger Pease Officer and Director
/s/ JEFFREY S. SPERBER
- ------------------------------ Chief Financial Officer July 6, 1998
Jeffrey S. Sperber
/s/ ALLAN A. FULSHER*
- ------------------------------ Secretary July 6, 1998
Allan A. Fulsher
/s/ THOMAS E. MCCHESNEY*
- ------------------------------ Director July 6, 1998
Thomas E. McChesney
/s/ ROBERT F. OLSEN*
- ------------------------------ Director July 6, 1998
Robert F. Olsen
/s/ JAMES F. TWADDELL*
- ------------------------------ Director July 6, 1998
James F. Twaddell
*By /s/ A. ROGER PEASE
-------------------------
ATTORNEY-IN-FACT
II-8
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. TITLE PAGE
- ----------- ------------------------------------------------------------------------------------------ ---------
<C> <S> <C>
1.1 Form of Underwriting Agreement. (1)
1.1.1 Form of Underwriting Agreement (Revised) (1)
1.2 Form of Representative's Share Option Agreement. (1)
1.2.1 Form of Representatives' Option Agreement (1)
1.3 Form of Representative's Warrant Option Agreement. (1)
3.1 Articles of Incorporation. (1)
3.2 Bylaws. (1)
4.1 Specimen Certificate for Common Stock. (1)
4.2 Warrant Agreement. (1)
4.2.1 Form of Warrant Agreement (Revised) (with Form of Warrant Certificate) (1)
4.3 Form of Lock Up Agreement with certain Securityholders. (1)
4.5 Registration Rights Agreement (1)
4.6 Form of Lock Up Agreement with certain Securityholders (1)
5.1.2 Opinion of Neuman Drennen & Stone, LLC.
10.1 1996 Stock Option Plan. (1)
10.2 Office Lease (190 SW Harrison, Portland, OR) (1)
10.2.1 Office Lease (The Mikado Building) (1)
10.3 Telecommunications Services Agreement between Registrant and Oregon Portland Associates
(Portland Center Apartments) (1)(2)
10.3.1 Telecommunications Services Agreement between Registrant and Oregon Portland Associates
(Portland Center Apartments)(Revised) (2)
10.4 Telecommunications Services Agreement between Registrant and Riverplace II Joint Venture
(Riverplace Development) (1)(2)
10.4.1 Telecommunications Services Agreement between Registrant and Riverplace II Joint Venture
(Riverplace Development)(Revised) (2)
10.5 Telecommunications Services Agreement between Registrant and Elsie D. Melver U/A Trust
Dated 1/4/72 (Vista St. Clair) (1)(2)
10.5.1 Telecommunications Services Agreement between Registrant and Elsie D. Melver U/A Trust
Dated 1/4/72 (Vista St. Clair)(Revised) (2)
10.6 Telecommunications Services Agreement between Registrar and Lloyd Place Apartments Limited
Partnership (Lloyd Place) (1)(2)
10.6.1 Telecommunications Services Agreement between Registrar and Lloyd Place Apartments Limited
Partnership (Lloyd Place)(Revised) (2)
10.7 Telecommunications Services Agreement between Registrant and Harsch Investment Corp. (King
Tower Apartments) (1)(2)
10.7.1 Telecommunications Services Agreement between Registrant and Harsch Investment Corp. (King
Tower Apartments)(Revised) (2)
10.8 Telecommunications Services Agreement between Registrant and Harsch Investment Corp. (Park
Plaza Apartments) (1)(2)
10.8.1 Telecommunications Services Agreement between Registrant and Harsch Investment Corp. (Park
Plaza Apartments)(Revised) (2)
10.9 Telecommunications Services Agreement between Registrant and Security Investments; LP
(Ione Plaza Apartments) (1)(2)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. TITLE PAGE
- ----------- ------------------------------------------------------------------------------------------ ---------
10.9.1 Telecommunications Services Agreement between Registrant and Security Investments; LP
(Ione Plaza Apartments)(Revised) (2)
<C> <S> <C>
10.10 Telecommunications Services Agreement between Registrant and Housing Authority of Portland
(Pearl Court Apartments) (1)(2)
10.10.1 Telecommunications Services Agreement between Registrant and Housing Authority of Portland
(Pearl Court Apartments)(Revised) (2)
10.11 Telecommunications Services Agreement between Registrant and Harsch Investment Corp. (The
Clay Towers Apartments) (1)(2)
10.11.1 Telecommunications Services Agreement between Registrant and Harsch Investment Corp. (The
Clay Towers Apartments)(Revised) (2)
10.12 Telecommunications Services Agreement between Registrant and Crossing Development
Corporation (Legends) (1)(2)
10.12.1 Telecommunications Services Agreement between Registrant and Crossing Development
Corporation (Legends)(Revised) (2)
10.13 Telecommunications Services Agreement between Registrant and Parkside Place (Parkside
Plaza) (1)(2)
10.13.1 Telecommunications Services Agreement between Registrant and Parkside Place (Parkside
Plaza)(Revised) (2)
10.14 Telecommunications Services Agreement between Registrant and Housing Authority of the City
of Vancouver, Washington (Cougar Creek Apartments) (1)(2)
10.14.1 Telecommunications Services Agreement between Registrant and Housing Authority of the City
of Vancouver, Washington (Cougar Creek Apartments)(Revised) (2)
10.15 Telecommunications Services Agreement between Registrant and Housing Authority of the City
of Vancouver, Washington (ParkLane Apartments) (1)(2)
10.15.1 Telecommunications Services Agreement between Registrant and Housing Authority of the City
of Vancouver, Washington (ParkLane Apartments)(Revised) (2)
10.16 Telecommunications Services Agreement between Registrant and Housing Authority of the City
of Vancouver, Washington (Willow Creek Apartments) (1)(2)
10.16.1 Telecommunications Services Agreement between Registrant and Housing Authority of the City
of Vancouver, Washington (Willow Creek Apartments)(Revised) (2)
10.17 Telecommunications Services Agreement between Registrant and Harsch Development Corp.
(Sherman Tower) (1)(2)
10.17.1 Telecommunications Services Agreement between Registrant and Harsch Development Corp.
(Sherman Tower)(Revised) (2)
10.18 Telecommunications Services Agreement between Registrant and Harsch Development Corp. (The
Nettleton) (1)(2)
10.18.1 Telecommunications Services Agreement between Registrant and Harsch Development Corp. (The
Nettleton)(Revised) (2)
10.19 Telecommunications Services Agreement between Registrant and Harsch Development Corp.
(Regency Tower Apartments) (1)(2)
10.19.1 Telecommunications Services Agreement between Registrant and Harsch Development Corp.
(Regency Tower Apartments)(Revised) (2)
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. TITLE PAGE
- ----------- ------------------------------------------------------------------------------------------ ---------
10.20 Telecommunications Services Agreement between Registrant and Harsch Development Corp.
(Syl-Mar Estates) (1)(2)
<C> <S> <C>
10.20.1 Telecommunications Services Agreement between Registrant and Harsch Development Corp.
(Syl-Mar Estates)(Revised) (2)
10.21 Letter of Intent with WEB Services, Inc. (1)
10.22 Registration Rights Agreement (1)
10.23 Cable Service Delivery Agreement with TCI Cablevision of Oregon, Inc. (1)
23.1 Consent of Neuman Drennen & Stone, LLC. (included in Exhibit 5.1)
23.3 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (included on page II-6).
</TABLE>
- ------------------------
(1) Previously filed.
(2) Certain information has been omitted pursuant to Rule 406 of the Securities
Act. Omitted information is designated by "-".
<PAGE>
Exhibit No. 5.1.2 Opinion of Neuman Drennen & Stone, LLC.
<PAGE>
[NEUMAN DRENNEN & STONE, LLC LETTERHEAD]
July 6, 1998
FirstLink Communications, Inc.
190 SW Harrison
Portland, Oregon 97201
Ladies and Gentlemen:
We have acted as legal counsel for FirstLink Communications, Inc. (the
"Company") in connection with the Company's Registration Statement on Form
SB-2 (the "Registration Statement") filed by the Company with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, and the
Prospectus included as a part of the Registration Statement (the "Prospectus"),
relating to 1,400,000 Units (the "Units"), each unit containing one share of
Common Stock, no par value per share (the "Common Stock") and one Common
Stock Purchase Warrant (the "Warrants") to be offered and sold by the Company
in the manner set forth in the Registration Statement and Prospectus.
In connection therewith, we have examined: (a) the Registration Statement and
the Prospectus included therein, as amended; (b) the Articles of Incorporation
and Bylaws of the Company; and (c) the relevant corporate proceedings of the
Company. In addition to such examination we have reviewed such other
proceedings, documents, and records and have ascertained or verified such
additional facts as we deem necessary or appropriate for purposes of this
opinion.
Based upon the foregoing, we are of the opinion that:
1. The Company has been legally incorporated and is validly existing under the
laws of the State of Oregon.
2. The Units, the Shares and the Warrants, and shares of Common Stock into
which the Warrants are exercisable, upon issuance and payment therefor, as
contemplated by the Registration Statement and Prospectus, will be validly
issued, fully paid, and nonassessable.
3. We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Prospectus. 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 of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
/s/ David H. Drennen
NEUMAN DRENNEN & STONE, LLC
<PAGE>
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
FirstLink Communications, Inc.
We consent to the use of our report included herein and to the reference to
our firm under the heading "Experts" in the Prospectus.
Our report dated January 21, 1998, except as to note 9 which is as of April
8, 1998 and note 2(e) which is as of July 27, 1998, contains an explanatory
paragraph that states that the Company has suffered recurring losses from
operations, which raise substantial doubt about its ability to continue as a
going concern. The financial statements do not include any adjustments that
might result from the outcome of that uncertainty.
/s/ KPMG Peat Marwick LLP
Portland, Oregon
July 27, 1998
