SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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MULTI-LINK TELECOMMUNICATIONS, INC.
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(Exact name of Registrant as specified in its charter)
Colorado 84-1334687
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
4704 Harlan Street, Suite 420
Denver, Colorado 80212
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(Address of Principal Executive Offices) (Zip Code)
OPTIONS TO PURCHASE COMMON STOCK
AND
AMENDED STOCK OPTION PLAN
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(Full title of the plan)
Nigel V. Alexander
4704 Harlan Street, Suite 420
Denver, Colorado 80212
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(Name and address of agent for service)
720.855.0440
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(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to offering price per aggregate offering Amount of
To be registered be registered share price registration fee
- ------------------- ------------- ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock 263,030 shares $6.75(1) $1,184,591.25 $ 329.30
Common Stock 138,525 shares $3.03(2) $ 419,752.00 $ 116.69
Common Stock 124,505 shares $3.95(2) $ 491,464.00 $ 136.63
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TOTAL XXX XXX XXX $ 582.62
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
based on the average of the high and low prices reported on the Nasdaq
SmallCap Market on September 16, 1999 pursuant to Rule 457(c).
(2) Estimated solely for the purpose of calculating the registration fee
based on the exercise prices of the outstanding options pursuant to
Rule 457(h)(1).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The required plan information is included in documents being maintained and
that will be delivered by Multi-Link Telecommunications, Inc. ("Multi-Link"), as
required by Rule 428(b)(1) of the Securities Act of 1933, as amended
("Securities Act").
Item 2. Registrant Information and Employee Plan Annual Information.
Multi-Link shall provide a written statement to participants advising them
of the availability, without charge, upon written or oral request, of the
documents incorporated by reference in Item 3 of Part II of this registration
statement, which are incorporated by reference into the Section 10(a)
prospectus, and of other documents required to be delivered to employees
pursuant to Rule 428(b) under the Securities Act. The statement will include the
address, listing the title or department, and telephone number to which the
request is to be directed.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents of Multi-Link are incorporated into this
registration statement by reference:
o prospectus dated May 14, 1999, filed pursuant to Rule 424(b);
o Item 1 of registration statement on Form 8-A dated May 10, 1999, that
relates to the description of Multi-Link's securities;
o quarterly report on Form 10-QSB for the quarter ended March 31, 1999;
and
o quarterly report on Form 10-QSB for the quarter ended June 30, 1999.
All documents filed by Multi-Link pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended ("Exchange Act") after
the effective date of this registration statement and prior to the filing of a
post-effective amendment which indicates that all securities offered in this
registration statement have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part of this registration statement from the
date of filing such documents.
Item 4. Description of Securities.
No description of the class of securities to be offered is required under
this item because the class of securities to be offered is registered under
Section 12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
The statutes, charter provisions, bylaws, contracts, or other arrangements
under which any controlling person, director, or officer of Multi-Link is
insured or indemnified in any manner against liability which he may incur in his
capacity as such are as follows:
o Sections 7-109-102 to 7-109-110, inclusive, of the Colorado Business
Corporation Act give Colorado corporations powers to indemnify their directors,
officers, employees, fiduciaries and agents against liability incurred in any
proceeding to which they are made parties by reason of being or having served in
such capacities, subject to specified conditions and exclusions; to authorize
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the payment for or reimbursement of reasonable expenses incurred by such persons
in such proceedings; to mandate indemnification of directors and officers who
are successful on the merits; and to permit corporations to obtain directors'
and officers' liability insurance.
o Article V.A. of Multi-Link's Restated Articles of Incorporation
provides that Multi-Link shall indemnify, to the maximum extent permitted by
law, any person who is or was a director or officer of Multi-Link, and may
indemnify any other person against any claim, liability or expense arising
against or incurred by such person made party to a proceeding because he is or
was a director, officer, agent, fiduciary or employee of Multi-Link or because
he is or was serving another entity as a director, officer, partner, trustee,
employee, fiduciary or agent at Multi-Link's request. The Restated Articles of
Incorporation go on to state that Multi-Link shall further have the authority,
to the maximum extent permitted by law, to purchase and maintain insurance
providing such indemnification, advance expenses to persons indemnified by
Multi-Link, and provide indemnification to any person by general or specific
action of the board of directors, the bylaws of Multi-Link, contract or
otherwise.
o Article V.B. of Multi-Link's Restated Articles of Incorporation states
the following:
No director of Multi-Link shall have any personal liability to
Multi-Link or its shareholders for monetary damages for breach of his fiduciary
duty as a director, except that this provision shall not eliminate or limit the
personal liability of a director to Multi-Link or its shareholders for monetary
damages for: (i) any breach of the director's duty of loyalty to Multi-Link or
to its shareholders; (ii) acts or omissions not in good faith or which involve
intention misconduct or a knowing violation of law; (iii) voting or assenting to
a distribution which, after giving effect to the distribution, would result in
(a) Multi-Link not being able to pay its debts as they become due, or (b)
Multi-Link's total assets being less than the sum of its total liabilities plus
amounts needed to satisfy preferential rights upon dissolution of Multi-Link,
but only if it is established that the director did not perform his duties in
good faith, with the care of an ordinary prudent person in a like position under
similar circumstances, and in a manner he believed to be in the best interests
of Multi-Link, provided that the personal liability of a director in this
circumstance shall be limited to the amount of the distribution which exceeds
what could have been distributed without violation of this paragraph; or (iv)
any transaction from which the director directly or indirectly derives an
improper personal benefit. If the [Colorado Business Corporation] Act is
hereafter amended or suspended and such amendment or suspending statute
eliminates or limits further, or allows Multi-Link to eliminate or limit
further, the liability of a director, then addition to the elimination and
limitation of liability provided by the preceding, the liability of each
director shall be eliminated or limited to the fullest extent permitted by the
[Colorado Business Corporation] Act, as so amended, or such superseding statute.
Nothing contained herein will be construed to deprive any director of his right
to all defenses ordinarily available to a director nor will anything herein be
construed to deprive any director of any rights he may have for contribution
from any other director or other person.
o Article VI of the Restated Bylaws of Multi-Link includes provisions
requiring Multi-Link to indemnify, with certain exceptions, any person who was
or is a party or is threatened to be made a party to any threatened, pending, or
completed action, suit or proceeding by reason of the fact that he is or was a
director, officer, employee, fiduciary or agent of Multi-Link against reasonably
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incurred expenses (including attorneys' fees), judgments, penalties, fines
(including any excise tax assessed with respect to an employee benefit plan) and
amounts paid in settlement reasonably incurred by him in connection with such
action, suit or proceeding if it is determined by disinterested directors that
such person conducted himself in good faith and that he reasonably believed (i)
in the case of conduct in his official capacity with Multi-Link, that his
conduct was in Multi-Link's best interest, or (ii) in all other cases (except
criminal cases) that his conduct was at least not opposed to Multi-Link's best
interest, or (iii) in the case of any criminal proceeding, that he had no
reasonable cause to believe his conduct was unlawful.
Item 7. Exemption from Registration Claimed.
No response is required to Item 7 because restricted securities are not to
be reoffered or resold pursuant to this registration statement.
Item 8. Exhibits.
The following is a list of all exhibits filed as part of this registration
statement or, as noted, incorporated by reference into this registration
statement:
Exhibit No. Description and Method of Filing
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Exhibit 5.1 Opinion of Smith McCullough, P.C. on legality of stock offered.
Exhibit 23.1 Consent of Hein + Associates LLP.
Exhibit 23.2 Consent of Smith McCullough, P.C. (See Exhibit 5.1).
Item 9. Undertakings.
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 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;
(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;
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(d) that for purposes of determining any liability under the Securities Act
of 1933, each filing of Multi-Link's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(e) that insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of Multi-Link pursuant to the foregoing provisions, or otherwise, Multi-Link 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 Multi-Link of expenses incurred or
paid by a director, officer or controlling person of Multi-Link 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, Multi-Link 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 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 Denver, State of Colorado, on September 22, 1999.
MULTI-LINK TELECOMMUNICATIONS, INC.
By: /s/ Nigel V. Alexander
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Nigel V. Alexander, Chief Executive Officer
By: /s/ David J. Cutler
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David J. Cutler, Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Nigel V. Alexander Director September 8, 1999
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Nigel V. Alexander
/s/ Shawn B. Stickle Director September 8, 1999
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Shawn B. Stickle
/s/ Keith R. Holden Director September 8, 1999
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Keith R. Holden
/s/ R. Brad Stillahn Director September 8, 1999
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R. Brad Stillahn
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September 22, 1999
Board of Directors
Multi-Link Telecommunications, Inc.
4704 Harlan Street, Suite 420
Denver, Colorado 80212
Re: Form S-8 Registration Statement
Opinion of Counsel
Gentlemen:
You have requested our opinion as to certain matters that relate to 392,885
shares of the $0.01 par value common stock ("Common Stock") of Multi-Link
Telecommunications, Inc. ("Company") that may be issued upon the exercise of
options that have been granted, and that may in the future be granted pursuant
to the Company's Amended Stock Option Plan ("Plan"), that may be issued pursuant
to grants under the Plan and that have been granted to Steve Inman, Doug Cohen,
Mary Hugo, Tanya Riddle, Don Klick, Keith R. Holder, R. Brad Stillahn Samuel
Soudani, Janice Wilkins and Mari Christie.
We have reviewed the Restated Articles of Incorporation of the Company, the
Plan, the option certificates for the options granted under the Plan and such
other documents that we considered necessary in order to render this opinion. As
a result of our review, we are of the opinion that, assuming the shares of
Common Stock are paid for as described in the Plan and the option certificates,
when issued, the shares of Common Stock will be validly issued, fully paid and
nonassessable.
This opinion is limited to applicability of the Colorado Business
Corporation Act and the Colorado common law to the issuance of the shares of
Common Stock. This opinion does not cover or is in any way related to the
applicability of, or compliance by the Company with, any other law, including
any federal or state securities laws, any other state common law or any other
federal law.
We consent to you describing this firm as having issued the opinion in the
prospectus that is a part of the registration statement referenced above.
Very truly yours,
/s/ SMITH MCCULLOUGH, P.C.
SMITH MCCULLOUGH, P.C.
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference of our report dated January 21,
1999, except for Note 4 for which the date is February 10, 1999 accompanying the
financial statements of Multi-Link Telecommunications, Inc. to the Form S-8
Registration Statement of Multi-Link Telecommunications, Inc. and to the use of
our name as appearing under the heading "Exhibits" in the Registration
Statement.
/s/ Hein + Associates LLP
HEIN + ASSOCIATES LLP
Denver, Colorado
September 15, 1999
