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As Filed with the Securities and Exchange Commission on August 5, 1999
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
FUTURELINK DISTRIBUTION CORP.
----------------------------------------------------
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
95-3895211
Colorado 300, 250 - 6th Avenue S.W. --------------
- ---------------------------- Calgary, Alberta CANADA T2P 3H7 (IRS Employer
(State or Other Jurisdiction -------------------------------------------------- Identification
of Incorporation) (Address of Principal Executive Offices; Zip Code) Number)
</TABLE>
FUTURELINK DISTRIBUTION CORP. STOCK OPTION PLAN
(Full Title of the Plan)
Kyle B.A. Scott
General Counsel & Corporate Secretary
FutureLink Distribution Corp.
300-250-6 Avenue SW
Calgary, Alberta T2P 3H7
(Name and address of agent for service)
(403) 216-6000
(Telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE(1) PRICE(1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock
($0.0001 par value
per share) 4,000,000 shares $7.93 $31,720,000.00 $8,818.16
---------------- -------------------- -------------------- --------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933 (the
"Securities Act"), on the basis of the average of the high and low prices of
shares of Common Stock on July 16, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I will be
sent or given to participants in the Stock Option Plan as specified by Rule
428(b)(1). Pursuant to the instructions for Form S-8, such documents need not
be filed with the Commission either as part of the Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents
and the documents incorporated by reference in this Registration Statement
pursuant to Item 3 of Part II of this Registration Statement, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended. See Rule 428(a)(1).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed by the Registrant, FutureLink
Distribution Corp. ("FutureLink"), with the Securities and Exchange Commission
(the "Commission") pursuant to the Securities Exchange Act of 1934 and are
incorporated herein by reference:
1. FutureLink's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1998;
2. FutureLink's Quarterly Report on Form 10-QSB for the quarterly period
ended March 31, 1999;
3. Current Reports on Form 8-K dated August 3, 1999, July 28, 1999, July
22, 1999, June 16, 1999, May 18, 1999, May 17, 1999, May 14, 1999 and
May 7, 1999;
and
4. The description of FutureLink's Common Stock included in Registration
Statements on Form SB-2 dated August 24, 1998 (as amended on October
21, 1998, December 14, 1998 and December 21, 1998).
All documents subsequently filed by FutureLink pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing
of a post-effective amendment to this Registration Statement which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
by the Registrant and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein by the Registrant shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is incorporated or deemed to be incorporated by reference
herein modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
FutureLink's Articles of Incorporation state that it may, in its sole
discretion, indemnify and advance expenses to any person who incurs liability
or expense by reason of such person acting as a director, officer, employee or
agent of FutureLink, to the fullest extent allowed by the Colorado Business
Corporation Act.
Sections 7-109-102 and 7-109-107 of the Colorado Business Corporation Act
provide that a corporation may indemnify its current and former officers,
directors, employees and agents against reasonable expenses (including
attorneys' fees), judgments, penalties, fines and amounts paid in settlement
which, in each case, were incurred in connection with actions, suits, or
proceedings in which such persons are parties by reason of the fact that they
are or were an officer, director, employee or agent of the corporation, if: (i)
they acted in good faith; (ii) in the case of conduct in an official capacity
with the corporation, the conduct was in the corporation's best interests;
(iii) in all other cases, the conduct was at least not opposed to the
corporation's best interests; and (iv) in the case of a criminal proceeding,
they had no reasonable cause to believe the conduct was unlawful. The
corporation may not indemnify an officer, director, employee or agent of the
corporation: (i) in connection with a proceeding by the corporation or
enforcing rights of the corporation in which such person is adjudged liable to
the corporation or (ii) in connection with any proceeding charging improper
personal benefit, whether or not acting in
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an official capacity, in which such person is adjudged liable on the basis that
personal benefit was improperly received. Unless limited by its Articles of
Incorporation, a corporation shall be required to indemnify an officer,
director, employee or agent who was wholly successful in defense of a
proceeding, against reasonable attorneys' fees.
The Articles of Incorporation of FutureLink provide that FutureLink will
exercise, to the extent permitted by law, its power of indemnification, and
that the foregoing right of indemnification shall not be exclusive of other
rights to which a person shall be entitled as a matter of law.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
FutureLink pursuant to the foregoing provisions, or otherwise, FutureLink 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.
Effective July 1, 1998, FutureLink purchased Directors and Officers
Liability insurance with coverage of $2,000,000 from AON Financial Management
out of Denver, Colorado.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable
ITEM 8. CONSULTANTS AND ADVISORS
Not applicable
ITEM 9. EXHIBITS
NO. DESCRIPTION
- ------------------------
3(1) Certification of Incorporation of FutureLink*
3(2) By-Laws of FutureLink*
5 Opinion of counsel as to legality of securities being registered
23(a) Consent of Ernst & Young LLP
23(b) Consent of Jeffer, Mangels, Butler & Marmaro LLP
* incorporated by reference in FutureLink's Registration Statement on Form
SB-2
ITEM 10. UNDERTAKINGS
1. The undersigned Registrant hereby undertakes:
(a) 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 this 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 this Registration
Statement. Notwithstanding the foregoing, any increase or
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decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply
if the Registration Statement is on Form S-3, Form S-8 or Form F-3 and
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Securities and Exchange Commission by the Registrant pursuant to
Section 13 or Section 13(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this Registration Statement.
(b) 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.
(c) 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.
2. 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 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
3. Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Calgary, Province of Alberta, on July 30, 1999.
FUTURELINK DISTRIBUTION CORP.
By: /s/ CAMERON B. CHELL
------------------------
Cameron B. Chell
Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant in the capacities and on the dates indicated.
Each person whose signature appears below constitutes and appoints Cameron
B. Chell and Raghu Kilambi, and each of them, his true and lawful
attorney-in-fact and agent, acting alone, with full powers of substitution and
resubstitution, 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, any amendments thereto, 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 agent, each acting alone, full powers and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all said attorney-in-fact
and agent, acting alone, or his substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
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<CAPTION>
SIGNATURE CAPACITY DATE
<S> <C> <C>
/s/ CAMERON B. CHELL
- --------------------------------
Cameron B. Chell Chief Executive Officer July 30, 1999
/s/ RAGHU KILAMBI
- --------------------------------
Raghu Kilambi Chief Financial Officer and Director July 30, 1999
/s/ PHILIP R. LADOUCEUR
- --------------------------------
Philip R. Ladouceur Executive Chairman of the Board July 30, 1999
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ ROBERT KUBBERNUS
- --------------------------------
Robert Kubbernus Director July 30, 1999
/s/ F. BRYSON FARRILL
- --------------------------------
F. Bryson Farrill Director July 30, 1999
/s/ TIMOTHY FLYNN
- --------------------------------
Timothy Flynn Director July 30, 1999
/s/ MICHAEL FALK
- --------------------------------
Michael Falk Director July 30, 1999
/s/ WILLIAM V. (BILL) ARNETT
- --------------------------------
William V. (Bill) Arnett Chief Operating Officer July 30, 1999
/s/ KYLE B.A. SCOTT
- --------------------------------
Kyle B.A. Scott Corporate Secretary July 30, 1999
</TABLE>
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INDEX TO EXHIBITS
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<CAPTION>
NO. DESCRIPTION
----- ----------------------------------------------------------------
<S> <C>
3(1) Certification of Incorporation of FutureLink*
3(2) By-Laws of FutureLink*
5 Opinion of counsel as to legality of securities being registered
23(a) Consent of Ernst & Young LLP
23(b) Consent of Jeffer, Mangels, Butler & Marmaro LLP
</TABLE>
* incorporated by reference in FutureLink's Registration Statement on Form SB-2
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EXHIBIT 5
JEFFER, MANGELS, BUTLER & MARMARO LLP
August 4, 1999 59720-0001
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the registration under the Securities Act of
1933, as amended, of 4,000,000 shares of common stock (the "Common Stock"),
$0.0001 par value, of FutureLink Distribution Corp., a Colorado Corporation (the
"Company"), authorized for issuance pursuant to the FutureLink Distribution
Corp. Stock Option Plan (the "Plan"), we have examined such corporate records
and other documents including the Registration Statement on Form S-8 to be filed
with the Securities and Exchange Commission relating to such shares (the
"Registration Statement"), and have reviewed such matters of law as we deem
necessary for this opinion. Based on such examination we advise you that in our
opinion:
The 4,000,000 shares of Common Stock referenced in the
Registration Statement have been duly authorized. Upon the issuance of the
Common Stock in accordance with the Plan, as contemplated in the Registration
Statement and related documents, such Common Stock will be legally issued, fully
paid and non-assessable.
This opinion addresses federal securities law aspects only and
does not cover State Blue Sky aspects or Canadian aspects of securities
qualifications.
<PAGE> 2
FutureLink Distribution Corp.
August 4, 1999
Page 2
We consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Signed: Jeff Sultan
-------------------------------------
JEFFER, MANGELS, BUTLER & MARMARO LLP
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Exhibit 23(a)
[ERNST & YOUNG LETTERHEAD]
CONSENT OF INDEPENDENT CHARTERED ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Stock Option Plan of FutureLink Distribution Corp. of our
report dated March 18, 1999, with respect to the financial statements of
FutureLink Distribution Corp. included in its Annual Report (Form 10-KSB) for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
Calgary, Canada Signed: Ernst & Young LLP
August 3, 1998 Chartered Accountants
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF JEFFER, MANGELS, BUTLER & MARMARO, LLP
We consent to the reference to our firm and to the inclusion of
our opinion as an exhibit to the Form S-8 Registration Statement of FutureLink
Distribution Corp., as filed with the Securities and Exchange Commission on
August 5, 1999.
Signed: Jeff Sultan
--------------------------------------
JEFFER, MANGELS, BUTLER & MARMARO, LLP
