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As filed with the Securities and Exchange Commission on November 1, 1996
Registration No. 333-_______
U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
DATALINK SYSTEMS CORPORATION
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Exact name of Registrant as specified in its charter
Nevada 35-3574355
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(State or other Jurisdiction of (I.R.S. Employer Identifi-
Incorporation or Organization) cation Number)
2105 Hamilton Avenue, Suite 240, San Jose, California 95125
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(Address of principal executive offices, including Zip Code)
1996 Stock Option Plan
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(Full title of the plan)
Anthony N. LaPine, President
2105 Hamilton Avenue, Suite 240
San Jose, California 95125
(408) 558-0800
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(Name, address and telephone number,including area code, of agent for service)
Copy to:
Jon D. Sawyer, Esq.
Jon D. Sawyer, P.C.
1401 Seventeenth Street, Suite 460
Denver, Colorado 80202
(303) 295-2355
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Amount Proposed Maxi- Proposed Maxi- Amount
Title of Securities to be mum Offering mum Aggregate of Regis-
to be Registered Registered Price Per Share Offering Price tration
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<S> <C> <C> <C> <C>
Common Stock, 3,000,000 $3.033<FN1> $9,099,000 $2,757.27
$.001 Par Value
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<FN>
<FN1>
Based on the exercise price of the options outstanding under the 1996 Stock
Option Plan as to 500,000 shares and the average of the closing bid and ask
prices of the Registrant's Common Stock on October 30, 1996, as reported on
the OTC Bulletin Board as to the remaining 2,500,000 shares.
</FN>
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed by Datalink Systems
Corporation (the "Company") with the Securities and Exchange Commission under
the Securities Exchange Act of 1934 (the "Exchange Act") are hereby
incorporated herein by reference:
(1) The Company's Annual Report on Form 10-KSB for the year ended
March 31, 1996.
(2) The Company's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 1996.
(3) The Company's Current Report on Form 8-K dated June 27, 1996, as
amended.
(4) The Company's Current Report on Form 8-K dated July 22, 1996.
(5) The Company's Current Report on Form 8-K dated August 26, 1996.
(6) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed pursuant to Section 12 of
the Exchange Act (SEC File No. 0-21069), declared effective on September 20,
1996.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof
and prior to the filing of a post-effective amendment 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 in this
registration statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The only statute, charter provision, bylaw, contract, or other
arrangement under which any controlling person, Director or Officer of the
Company is insured or indemnified in any manner against any liability which he
may incur in his capacity as such, is as follows:
(a) Subsection (1) of Section 78.751 of the Nevada Corporation Law
empowers a corporation to "indemnify any person who is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
except an action by or in the right of the corporation, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation,
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or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses, including attorneys' fees, judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with the action, suit or proceeding if he acted in good faith
and in a manner which he reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent, does not, of
itself, create a presumption that the person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and that, with respect to any criminal action or
proceeding, he had reasonable cause to believe that his conduct was unlawful."
Subsection (2) of Section 78.751 empowers a corporation to "indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses, including amounts paid in settlement and
attorneys' fees actually and reasonably incurred by him in connection with the
defense or settlement of the action or suit if he acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation. Indemnification may not be made for any claim,
issue or matter as to which such a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom, to be
liable to the corporation or for amounts paid in settlement to the
corporation, unless and only to the extent that the court in which the action
or suit was brought or other court of competent jurisdiction determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnify for such expenses as the court
deems proper."
Subsection 78.751(3) further provides that "to the extent that a
director, officer, employee or agent of a corporation has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred
to in subsections 1 and 2, or in defense of any claim, issue or matter herein,
he must be indemnified by the corporation against expenses, including
attorneys' fees, actually and reasonably incurred by him in connection with
the defense."
(b) Article VII of the Registrant's Articles of Incorporation
provides that the Corporation is authorized to indemnify directors, officers,
employees and agents to the full extent allowed for under the Nevada Business
Corporation Act.
(c) Article XI of the Articles of Incorporation of the Registrant
provides that no director, officer or stockholder of the Company shall be
personally liable for damages for breach of fiduciary duty as a director or
officer; provided, that this provision shall not eliminate liability of a
director or officer for acts or omissions involving intentional misconduct,
fraud or a knowing violation of law or payments or distributions in violation
of Nevada law.
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ITEM 7. EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8. EXHIBITS.
The following documents are filed as exhibits to this Registration
Statement:
EXHIBIT
NUMBER TITLE
4.1 Articles of Incorporation (Incorporated by reference
to Exhibit 2 to Registrant's Form 8-A Registration
Statement (No. 0-21069)
4.2 Bylaws (Incorporated by reference to Exhibit No. 3
to Registrant's Form 8-A Registration Statement
(No. 0-21069)
5 Opinion of Jon D. Sawyer, P.C. as to the legality of
the securities being registered
23.1 Consent of Jon D. Sawyer, P.C. (contained in its
opinion filed as Exhibit 5)
23.2 Consent of Davis & Co., CPAs, P.C., Certified Public
Accountants
23.3 Consent of Doran Peck, C.P.A., P.C., Certified Public
Accountants
23.4 Consent of Coopers & Lybrand L.L.P., Certified Public
Accountants
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration
statement or any material change to such information in the registration
statement;
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provided, however, that subparagraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) 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 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.
(c) 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 Item 6, 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 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 Los Gatos, State of California, on the 1st
day of November, 1996.
DATALINK SYSTEMS CORPORATION
By/s/ Anthony LaPine
Anthony LaPine, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the capaci-
ties and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Anthony LaPine President, Chief Execu- November 1, 1996
Anthony LaPine tive Officer (Principal
Financial Officer) and
Director
/s/ Nicholas Miller Chairman of the Board, November 1, 1996
Nicholas Miller Secretary, Treasurer and
Director
JON D. SAWYER, P.C.
JON D. SAWYER Attorneys at Law (303) 295-2355
JAMES P. BECK 1401 17th Street, Suite 460 FAX (303) 295-2370
Denver, Colorado 80202
November 1, 1996
Datalink Systems Corporation
2105 Hamilton Avenue, Suite 240
San Jose, California 95125
Re: SEC Registration Statement on Form S-8
Gentlemen:
We are counsel for Datalink Systems Corporation, a Colorado corporation
(the "Company") in connection with its registration under the Securities Act
of 1933, as amended (the "Act"), of 3,000,000 shares of common stock which may
be issued upon the exercise of options granted under the Company's 1996 Stock
Option Plan through a Registration Statement on Form S-8 as to which this
opinion is a part, to be filed with the Securities and Exchange Commission
(the "Commission").
In connection with rendering our opinion as set forth below, we have
reviewed and examined originals or copies identified to our satisfaction of
the following:
(1) Articles of Incorporation of the Company as filed with the
Secretary of State of the State of Colorado, as amended.
(2) Minute book containing the written deliberations and resolutions of
the Board of Directors and Shareholders of the Company.
(3) The Registration Statement.
(4) The exhibits to the Registration Statement to be filed with the
Commission.
We have examined such other documents and records, instruments and
certificates of public officials, officers and representatives of the Company,
and have made such other investigations as we have deemed necessary or
appropriate under the circumstances.
Based upon the foregoing and in reliance thereon, it is our opinion that
the 3,000,000 shares of the Company's no par value common stock which may be
issued upon the exercise of options under the 1996 Stock Option Plan will,
upon the purchase, receipt of full payment, issuance and delivery in
accordance with the terms of such options, be duly and validly authorized,
legally
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
referenced Registration Statement on Form S-8.
Very truly yours,
JON D. SAWYER, P.C.
By /s/ Jon D. Sawyer
Jon D. Sawyer
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of Datalink Systems Corporation (the "Company") on Form S-8 of our
report dated May 29, 1996, except for Note 6 which is dated May 31, 1996,
appearing in the Annual Report on Form 10-KSB of the Company for the fiscal
year ended March 31, 1996.
/s/ Davis & Co., CPAs, P.C.
DAVIS & CO., CPAs, P.C.
Englewood, Colorado
October 22, 1996
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of Datalink Systems Corporation (the "Company") on Form S-8 of our
report dated May 12, 1995, appearing in the Annual Report on Form 10-KSB of
the Company for the year ended March 31, 1996.
/s/ Doran Peck, C.P.A., P.C.
DORAN PECK, C.P.A., P.C.
Denver, Colorado
October 28, 1996
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement of Datalink Systems Corporation (the "Company") on Form S-8 of our
audits of the financial statements of DSC Datalink Systems Corporation, as of
December 31, 1995 and 1994, and for the years then ended and the cumulative
period June 15, 1993 (date of inception) to December 31, 1995 which report is
incorporated by reference, the current report on Form S-8 of the Company
dated October 31, 1996.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
San Jose, California
October 31, 1996
