<PAGE>
As filed with the Securities and Exchange Commission on September 7, 1999
SEC Registration No. 333-71969
U.S. SECURITIES AND EXCHANGE COMMISSION
AMENDMENT NO. 2 TO
FORM S-3 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
DATALINK.NET, INC.
(Formerly Named Datalink Systems Corporation)
-----------------------------------------------------
(Exact Name of Registrant as Specified in its Charter)
Nevada 36-3574355
- ---------------------------- -----------------------------------
(State or Other Jurisdiction (IRS Employer Identification Number)
of Incorporation)
1735 Technology Drive, Suite 790, San Jose, California 95110
(408) 367-1700
--------------------------------------------------------------
(Address, Including Zip Code, and Telephone Number, Including
Area Code, of Registrant's Principal Executive Offices)
Anthony N. LaPine, President
1735 Technology Drive, Suite 790, San Jose, California 95110
(408) 367-1700
-------------------------------------------------------------
(Name, Address and Telephone Number of Agent for Service)
Copy to:
Jon D. Sawyer, Esq.
Krys Boyle Freedman & Sawyer, P.C.
600 17th Street, Suite 2700 South Tower
Denver, Colorado 80202
(303) 893-2300
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box: ___
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: _X_
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 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: ___
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Title of Each Class Offering Aggregate Amount of
of Securities to be Amount to be Price Per Offering Registration
Registered Registered Unit Price Fee
- -----------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 3,935,134<FN1> $2.8125<FN2> $11,067,564 $3,076.78
Par Value <FN2> <FN3>
Common Stock 2,243,964 $ -- $ -- $ -<FN4>
Purchase Warrants
- ------------------------------------------------------------------------------
<FN>
<FN1>
In accordance with Rule 416 under the Securities Act of 1933, this
registration statement also covers an indeterminable number of shares of
common stock, $.01 par value, as may become issuable upon conversion of the
series A convertible preferred stock and the exercise of the common stock
purchase warrants to prevent dilution resulting from stock splits, stock
dividends, and similar transactions in accordance with the terms of the series
A convertible preferred stock and the common stock purchase warrants.
<FN2>
Estimated solely for the purpose of calculating the registration fee pursuant
to Rule 457(c) based on the average of the closing bid and ask prices of the
common stock as reported on the OTC Bulletin Board on September 3, 1999.
<FN3>
Because a total of $5,352.36 was paid with the initial filing and Amendment
No. 1 to this registration statement, no additional fee is being paid in
connection with this filing.
<FN4>
Pursuant to Rule 457(g), no registration fee is required for the common stock
purchase warrants since the shares of common stock underlying such warrants
are being registered hereby.
</FN>
</TABLE>
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.
<PAGE>
PROSPECTUS SUBJECT TO COMPLETION DATED SEPTEMBER 7, 1999
- ------------------------------------------------------------------------------
The information in this prospectus is not complete and may be changed. The
securities may not be sold until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
DATALINK.NET, INC.
3,935,134 Shares of Common Stock
2,243,964 Warrants
The shares of common stock and the warrants are being offered by certain
selling securityholders.
The common stock is traded in the over-the-counter market and is quoted
on the OTC Bulletin Board (Symbol: NETD). On September 3, 1999, the closing
bid and ask prices of the common stock were $2.75 and $2.875, respectively.
There is no public market for the warrants.
This investment involves a high degree of risk. You should purchase
shares only if you can afford a complete loss. See "Risk Factors" beginning
on page 4.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary
is a criminal offense.
_________, 1999
<PAGE>
1
TABLE OF CONTENTS
PAGE
COMPANY SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . 3
RISK FACTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
RECENT EVENTS . . . . . . . . . . . . . . . . . . . . . . . . . . 8
USE OF PROCEEDS . . . . . . . . . . . . . . . . . . . . . . . . . 8
SELLING SECURITYHOLDERS . . . . . . . . . . . . . . . . . . . . . 9
PLAN OF DISTRIBUTION. . . . . . . . . . . . . . . . . . . . . . . 14
DESCRIPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . 16
LEGAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . 18
EXPERTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE . . . . . . . . 18
2
<PAGE>
COMPANY SUMMARY
Datalink.net is an internet-based company that provides personalized
financial and lifestyle information to customers' wireless communication
devices. We also offer wireless business solutions to companies. We have
developed technology that combines real-time data, the world wide web,
customized information from corporations and wireless communications to
provide individually tailored information services to customers' pagers and
digital cellular phones. Our web site and customer support team provide
account maintenance services that allow subscribers to customize the types of
information alerts they receive. All consumer services are marketed from our
web site as well as through direct and re-seller distribution channels. Our
re-sellers currently include broker-dealers, information service providers,
wireless network carriers, and other internet companies. In addition, our
business solutions use our wireless technology to give businesses a way to
provide personalized information to their customers.
The first of our financial information services is QuoteXpress, an
investment monitoring tool that alerts subscribers with stock quote
information they pre-specify, such as price changes and volume. Other
financial services include SplitXpress, a service that notifies subscribers of
stock splits, buy-backs, takeovers, mergers and surprise earnings
announcements. CommmodityXpress tracks futures contract prices for
commodities trading on all the major US commodities markets. CompanyNews
provides the latest news stories and press releases for specific companies
selected by the subscriber. The headlines are delivered to the wireless
device and the complete story may be delivered to their email address, and is
also available on our web site.
During 1998, we introduced two new lifestyle services. Sports2Go
provides personalized real-time sports coverage with up-to-the-minute scores
and breaking game events. InfoXtra allows subscribers to receive personalized
information from a wide range of categories that include: local weather
forecasts, horoscopes, winning lottery numbers, ski conditions, beach
forecasts, top ten video rentals, and news headlines.
We currently market two message services that link the internet with
wireless communications. MailXpress alerts subscribers when important email
arrives in their mailbox. MessageX allows anyone with internet access to send
a message to the subscriber's pager or cell phone using the subscriber's email
address.
Our corporate offices are located at 1735 Technology Drive, Suite 790,
San Jose California 95110. Our telephone number is (408) 367-1700 and our
world wide web site is www.datalink.net.
3
<PAGE>
RISK FACTORS
Investing in the shares or warrants is very risky. You should be able to
bear a complete loss of your investment. In deciding whether to purchase the
shares or warrants, you should carefully consider the following factors, among
others, as well as information contained in this prospectus, our most recent
annual report on Form 10-KSB, and the other documents incorporated by
reference into this prospectus:
We have a history of losses We have recorded a net loss for each year since
and we may not be able to our current business started in 1996 through
achieve profitability. our fiscal year ended March 31, 1999. As of
June 30, 1999, we had an accumulated deficit of
$26,717,306. Our ability to operate
profitably depends on increasing our sales
through increased market acceptance of our
products and services and successfully competing
with other companies. We are also subject to
other risks associated with new business
enterprises. Therefore, we cannot assure you
that Datalink.net will achieve profitability.
Our revenue may not grow We plan to use any cash flow we generate to
enough to pay for our research and develop improvements and upgrades
research and development to our current products and services and adapt
costs. them to new technologies. Our industry is
subject to rapid technological changes. We
cannot assure you that our revenues will grow
enough to pay for the research and development
needed to improve our products and services so
that they compete in this rapidly changing
marketplace. If we are unable to adequately
research and develop our products and services,
they could become obsolete and we will not
achieve profitability.
We have several competi- Our market is very competitive. There are a
tors, some of them are number of competitors who are larger and have
larger and have greater much greater resources than we do. Our
resources than we do. competitors have more experienced people and
larger facilities and budgets than we do. These
competitors could use their resources to conduct
greater amounts of research and development and
to offer services at lower prices than we can.
These factors may adversely affect our ability
to compete by decreasing the demand for our
products and services.
We may need to raise We have met capital needs with private sales of
additional funds. These securities. However, we cannot assure you that
funds may not be avail- we will not need additional funds, that any
able to us. Alternative- needed funds will be available to us at all, or
ly, raising additional that any available funds will be given on ac-
funds may dilute your ceptable terms. If we need additional funds,
share ownership. and are unable to raise them, we will not be
able to continue our business operations. If
we raise funds by selling equity securities,
those sales may dilute your share ownership.
If we raise funds by forming joint ventures
with other companies, we may have to give up
some of our rights to certain technologies,
products or marketing territories.
4
<PAGE>
We depend on quality Our business is largely dependent on our
managers. However, we ability to hire and retain quality managers.
only have a written Currently, we have a written employment agree-
employment agreement ment and key-man life insurance in the face
with and insurance on amount of $3 million with Anthony N. LaPine,
one key officer. the Company's chairman, CEO and president. We
do not have employment agreements or key-man
life insurance with any other officer. The loss
of Mr. LaPine or any other officer may have an
adverse effect on our business and prospects by
depriving us of the management services
necessary to operate Datalink.net and achieve
profitability.
Our patents may not pro- We currently own a number of patents related to
tect us from competitors. our products, and have applied for additional
Costs of prosecuting and patents. We are not certain whether any new
defending patent infringe- patents will be granted in the future. Even if
ment claims could hurt our we receive additional patents, they may not
business. provide us with protection from competitors.
Our failure to obtain patent protection, or
illegal use by others of any patents we have
or may obtain could adversely effect our
business, financial condition and operating
results. In addition, the laws of certain
foreign countries do not protect proprietary
rights to the same extent as the laws of the
United States.
Claims for damages resulting from any such
infringement may be asserted or prosecuted
against us. The validity of any patents we have
or obtain could also be challenged. Any such
claims could be time consuming and costly to
defend, diverting management's attention and our
resources.
The limited market may Our shares are not listed on Nasdaq or any
make it difficult for you exchange. Trading is conducted in the over-
to resell our shares. the-counter market on the OTC Bulletin Board,
which was established for securities that do
not meet the Nasdaq or exchange listing
requirements. Consequently, selling Datalink.
net shares is more difficult because smaller
quantities of shares are bought and sold and
security analysts' and news media's coverage
of Datalink.net is limited. These factors
could result in lower prices and larger spreads
in the bid and ask prices for our shares.
Because our shares are not currently listed on
Nasdaq or an exchange, they are subject to Rule
15g-9 under the Exchange Act. That rule imposes
additional sales practice requirements on
broker-dealers that sell low-priced securities
to persons other than established customers and
institutional accredited investors. For
transactions covered by this rule, a broker-
dealer must make a special suitability
determination for the purchaser and have
received the purchaser's written consent to
the transaction prior to sale. Consequently,
5
<PAGE>
the rule affects the ability of broker-dealers
to sell our shares and may affect the ability
of holders to sell Datalink.net shares in the
market.
There is no market for There is presently no market for the warrants
the warrants and investors and no market is expected to develop. Conse-
may be unable to resell quently, it will be difficult for anyone who
them. buys warrants from a selling securityholder
to resell the warrants. In addition, we have
only registered shares that would be issued on
the exercise of the warrants for resale using
this prospectus. As a result, investors who
buy warrants and then exercise them would have
to use this prospectus, as amended or
supplemented to show their ownership, to resell
the shares.
We do not plan to pay We intend to retain any future earnings to fund
any dividends. Our shares the operation and expansion of our business.
should not be purchased We do not anticipate paying cash dividends on
by investors who need our shares in the future. As a result, our
income from their holdings. common stock is not a good investment for
people who need income from their holdings.
Resales of outstanding Of the 3,373,376 shares issued and outstanding
restricted shares could as of August 31, 1999, 598,090 shares are
have a depressive effect "restricted securities," as defined under
on the market price of Rule 144, all of which are currently eligible
our shares. for sale under Rule 144. In addition, 3,935,134
shares which may be issued on the conversion of
the preferred stock and exercise of warrants
are being registered for resale by this
prospectus. We are unable to predict the effect
that sales made in this offering or under Rule
144 may have on the then prevailing market price
of our shares. It is likely that market sales
of large amounts of Datalink.net shares (or the
potential for those sales even if they do not
actually occur) will have the effect of
depressing the market price of our shares.
Securities held by our As part of our private offering which was
CEO and Chairman for which completed in November 1997, Anthony N. LaPine,
he gave a promissory note our CEO and chairman, bought 280,000 shares of
are being registered for preferred stock and 140,000 warrants which he
resale, which is a benefit paid for with a collateralized non-recourse
to him and may make it promissory note for $1,050,000 due on November
harder for us to obtain 5, 2003. The common stock underlying these
payment of his promissory securities and the warrants are being registered
note. for resale by Mr. LaPine. Since Mr. LaPine
paid for these securities with a collateralized
non-recourse promissory note these securities
would not be eligible for resale under Rule 144
until one year after the promissory note was
paid. As a result, this prospectus will allow
Mr. LaPine the opportunity to resell his
securities prior to paying off the related
promissory note, and realize a profit prior to
the time he would if these securities were not
registered for resale. It also could potentially
make it more difficult for Datalink.net to
obtain payment of the promissory note.
6
<PAGE>
Year 2000 issues could Although we anticipate that there will be little
have an adverse impact or no Year 2000 issues and therefore little or
on our business. no cost will be incurred therefrom, our business
may still be impacted. Our internal systems
meet Year 2000 compliance standards. However,
although compliance confirmation has been
provided by seventy-five percent of our vendors,
and the remaining twenty-five percent have
indicated that they are currently Year 2000
compliant, there can be no assurance that these
vendors will not experience some level of Year
2000 issues that may have an adverse effect on
our systems. We have assessed our risk related
to this occurrence as very low. Our contingency
plan in the event that an unforeseen Year 2000
issue should occur will be to change to another
vendor that is Year 2000 compliant. For this
reason, we are developing an inventory of back-
up vendors that may be called upon to provide
services in accordance with Year 2000 compliance
standards.
7
<PAGE>
RECENT EVENTS
On June 22, 1999, Datalink.net's shareholders approved amendments to our
Articles of Incorporation to increase the number of authorized shares of
common stock from 8,000,000 to 50,000,000 and to change our name to
Datalink.net, Inc. The name change became effective on August 3, 1999.
On June 23, 1999, Robert L. Priddy resigned as a director of
Datalink.net. The board of directors has not yet located anyone to replace
Mr. Priddy.
As a result of her acceptance of other employment, effective July 9,
1999, Sara A. Fiscus resigned as secretary and general counsel of
Datalink.net. Datalink.net has not employed any person to serve as general
counsel. William A. Mahan, who is chief financial officer, now serves as
secretary of Datalink.net.
On July 15, 1999, David Ladd resigned as a Director of Datalink.net. The
Board of Directors has not yet located anyone to replace Mr. Ladd.
USE OF PROCEEDS
Datalink.net will not receive any proceeds from the sale of the common
stock or warrants by the selling securityholders.
To the extent that any of the warrants are exercised, up to $11,544,558
may be received by Datalink.net. Any net proceeds received from the exercise
of the warrants will be used for general corporate purposes.
8
<PAGE>
SELLING SECURITYHOLDERS
Included in the securities being offered hereby are 3,935,134 shares
being offered for resale by certain securityholders. Up to 1,489,170 of those
shares have been issued or are issuable upon conversion by the holders of
preferred stock. Up to 2,445,964 shares have been issued or are issuable upon
exercise of warrants held by the investors. This prospectus also relates to
the resale of the warrants by the holders thereof. The shares and warrants
are being offered for the account of the securityholders in the table below
and their donees or pledgees.
The following table sets forth information concerning the selling
securityholders, including:
* the maximum number of shares issued or issuable upon conversion of
preferred stock;
* the number of shares issued or issuable upon exercise of warrants;
* the number of shares and warrants offered by each selling
securityholder.
Datalink.net has no knowledge of the intentions of any selling securityholder
to actually sell any of the securities listed under the columns "Shares
Offered" or "Warrants Offered." There are no material relationships between
any of the selling securityholders and Datalink.net other than as disclosed
below.
Beneficial Ownership Before Offering
-----------------------------------------
Number of
Shares
Issued or Shares
Issuable Issued or
on Conver- Issuable
sion of on Exer-
Preferred cise of Shares Warrants
Selling Securityholder Stock Warrants Offered Offered
- ---------------------- --------- --------- ---------- ---------
Richard N. Abrams -0- 10,664 10,664 10,664
Shannon P. Acks 6,660 3,330 9,990 3,300
James Adametz 5,000 2,500 7,500 2,500
Anasazi Partners, L.P. -0- 3,330 3,330 3,330
Baker Family Revocable Trust
(Bruce and Rhoda Baker) -0- 5,000 5,000 5,000
John P. Becker 9,000 4,500 13,350 4,500
William D. Bennett, Jr. -0- 3,330 3,330 3,330
Dr. Donald Berglund 6,660 3,330 9,990 3,330
Sandra and Howard
Bernstein -0- 21,320 21,320 21,320
Robert Bettinger 10,000 5,000 15,000 5,000
Dennis Brubaker 2,660 1,330 3,990 1,330
Felix Campos 19,320 12,660 31,980 12,660
John A. Catsimatidis -0- 10,000 10,000 10,000
Willard E. Childress 8,000 4,000 12,000 4,000
Clariden Bank -0- 20,666 20,666 20,666
David Cohen 26,640 13,320 39,960 13,320
9
<PAGE>
Jonathan R. Cohen and
Nancy D. Shapiro -0- 2,660 2,660 2,660
Julia R. Cole 10,000 5,000 15,000 5,000
Robert H. Cole -0- 5,000 5,000 5,000
Robert H. Cole, IRA 5,000 2,500 7,500 2,500
Robert S. Cole 2,500 1,250 3,750 1,250
Riley B. and Marilyn E.
Collins -0- 3,330 3,330 3,330
Conzett Europa Invest 80,000 40,000 120,000 40,000
Bruce Corbin -0- 2,600 2,600 2,600
Jeffrey S. Corbin -0- 666 666 666
Richard Corbin -0- 6,660 6,660 6,660
Gerald B. Cramer -0- 20,000 20,000 20,000
Bruce Cunningham -0- 3,330 3,330 3,330
Richard G. and Priscilla
A. Dahlen -0- 5,500 5,500 5,500
Thomas and Marie D'Avanzo -0- 2,000 4,000 2,000
David DeAtkine, Jr. -0- 2,500 2,500 2,500
Mario and Ruth Deliberty -0- 4,000 4,000 4,000
David and Suellen Dercher 13,320 6,660 19,980 6,660
Hare & Co., c/o The Bank of
New York 18,000 10,000 28,000 10,000
Fiducie Desjardins A/C
900595-0-59 Retirement Plan 20,000 10,000 30,000 10,000
Sidney and Sonia Deutsch 17,350 17,350 17,350
Paul R. Doering -0- 3,330 3,330 3,330
Steven C. Dorfman -0- 4,000 4,000 4,000
Hugh W. Downs IRA 6,660 3,330 9,990 3,330
John P. and Agnes P. Duffy -0- 3,330 3,330 3,330
DW Trustees (B.V.I.) Limited 6,660 3,330 9,990 3,330
Elite Sales, Inc. 5,328 2,664 7,992 2,664
Michael S. Falk -0- 200,767 200,767 200,767
S. Marcus Finkle -0- 13,320 13,320 13,320
Baruch B. and Andrea
Fischhoff 5,000 2,500 7,500 2,500
Timothy P. Flynn 40,000 20,000 60,000 20,000
Gallagher Corporation 40,000 20,000 60,000 20,000
Edith D. Gampel Revocable
Trust -0- 10,000 10,000 10,000
Gregg M. Gaylord 10,000 5,000 15,000 5,000
Marshall S. Geller -0- 8,880 8,880 8,880
Paul Goldenheim -0- 3,330 3,330 3,330
Grayson Financial Management
Corp. 10,000 5,000 15,000 5,000
Alan Hammerman 6,660 3,330 9,990 3,330
M. Ponder Harrison 4,000 2,000 6,000 2,000
Hathaway Partners Invest-
ment Limited Partnership 40,000 20,000 60,000 20,000
Heinecken & Associates
Profit Sharing Plan -0- 3,330 3,330 3,330
Harold B. and Jane H. Hess 1,332 666 1,998 666
Neal Holtvogt -0- 2,000 2,000 2,000
Chatri and Lourdes
Jhunjhnuwala -0- 13,332 13,332 13,332
Ramesh Jhunjhnuwala -0- 2,664 2,664 2,664
Peggy Jordan 64,925 50,000 114,925 50,000
Kabuki Partners ADP GP -0- 10,000 10,000 10,000
Mitchell A. Kaufman 5,320 2,660 7,980 2,660
Neeklanund Kaulpatrra -0- 3,330 3,330 3,330
Thomas Keeney 5,000 2,500 7,500 2,500
10
<PAGE>
Monsour Khayyam -0- 20,000 20,000 20,000
Hamilton S. Kingsley -0- 3,330 3,330 3,330
Bernard Kirsner Trust -0- 3,330 3,330 3,330
Garth A. Koniver 5,320 2,660 7,980 2,660
Robert A. and Barbara
Koplow 10,693 5,347 16,040 5,347
Anthony N. LaPine 280,000 340,000 620,000 140,000
LAD Partners, LP -0- 20,000 20,000 20,000
Lagunitas Partners, LP -0- 20,000 20,000 20,000
James R. Landers, Trustee
for Deer Park School
District 6,660 6,660 13,320 6,660
David S. Lawi 6,660 3,330 9,990 3,330
Lawrence Lieberman -0- 2,664 2,664 2,664
John V. Luck 6,660 3,330 9,990 3,330
Maerki, Baumann & Co. AG -0- 33,332 33,333 33,332
Jed Manocherian -0- 3,330 3,330 3,330
Anthony P. and Susan Q.
Mazzarella -0- 4,440 4,440 4,440
Alan Mirken -0- 3,330 3,330 3,330
William T. McCaffrey 40,000 20,000 60,000 20,000
F. Andrew and Gail
Morfesis 10,000 5,000 15,000 5,000
David Morley -0- 2,000 2,000 2,000
Ryan Cassidy Morrow -0- 3,330 3,330 3,330
Ronald Moschetta -0- 13,998 13,998 13,998
Mulkey II Limited Partnership -0- 20,000 20,000 20,000
Mercury L.P. 6,660 3,330 9,990 3,330
David R. and Donna L. Nelson -0- 3,996 3,996 3,996
Orbis Pension Trustees
Limited 266,640 133,320 399,960 133,320
Allen Ozdemir -0- 6,660 6,660 6,660
Richard and Lynne M. Palmer -0- 2,340 2,340 2,340
Garo A. Partoyan -0- 3,330 3,330 3,330
James Peloquen 1,332 666 1,998 666
John Piccolo -0- 5,000 5,000 5,000
Anna M. Pocisk -0- 6,660 6,660 6,660
Michael A. and Angela G.
Poujol -0- 10,000 10,000 10,000
Robert Priddy 100,000 50,000 150,000 50,000
Kurt V. and Laura M.
Reichelt 12,000 6,000 18,000 6,000
James H. and Jean A. Rion -0- 2,000 2,000 2,000
Ben Rosenbloom 10,000 5,330 15,330 5,330
Adam and Lisa Ross 10,000 5,330 15,330 5,330
Hare & Co., c/o David
Morley Investment Group -0- 12,770 12,770 12,770
Roybec & Co. 2,000 -0- 2,000 -0-
Bernard Sadow 13,320 6,660 19,980 6,660
Monroe H. and Barbara P.
Schenker 20,000 10,000 30,000 10,000
William R. Schoen IRA/SEP 6,660 3,330 9,990 3,330
Rodney N. and Vikki K.
Schorlemmer 13,320 6,660 19,980 6,660
Douglas Schwarzwaelder -0- 2,500 2,500 2,500
J.F. Shea Co., Inc. as
Nominee 1997-60 -0- 140,088 140,088 140,088
Charles M. Sheaff, IRA 13,320 6,660 19,980 6,660
Michael A. Singer 26,640 13,320 39,960 13,320
11
<PAGE>
<PAGE>
SJG Management, Inc. Profit
Sharing Plan (Sidney J.
Goldstein) 6,660 3,330 9,990 3,330
Stephen Skoly -0- 2,000 2,000 2,000
David Stellway 10,000 5,000 15,000 5,000
David and Susan Stollwerk 6,660 3,330 9,990 3,330
Rick Glenn Tachibana -0- 2,500 2,500 2,500
Matthew T. Tarantelli -0- 2,000 2,000 2,000
Walter F. Toombs 40,000 20,000 60,000 20,000
James M. Totaro 20,000 10,000 30,000 10,000
Salvatore Trupiano -0- 4,650 4,650 4,650
Barry L. and Patricia L.
Veazey -0- 1,250 1,250 1,250
Harold M. Wasserman 6,660 3,330 9,990 3,330
Elizabeth Weber 10,000 5,000 15,000 5,000
Arlene Weiner -0- 3,330 3,330 3,330
Warren J. Weinstein 2,660 1,330 3,990 1,330
Walter E. Williams -0- 3,330 3,330 3,330
Charles L. Wisseman III 5,000 2,500 7,500 2,500
The Yorkin Trust 20,000 10,000 30,000 10,000
Peter Allard -0- 100,000 100,000 100,000
Keith Rosenbloom -0- 47,235 47,235 47,235
Robert O'Sullivan -0- 23,617 23,617 23,617
Seth Elliott -0- 17,458 17,458 17,458
Cornelia Eldridge -0- 799 799 -0-
Robert Beuret -0- 9,967 9,967 9,967
Eric Rubenstein -0- 9,792 9,792 7,792
David Stein -0- 7,135 7,135 7,135
Lisa Letteri -0- 7,046 7,046 7,046
Michael Rolnick -0- 5,000 5,000 5,000
Michael R. Lyall -0- 3,987 3,987 3,987
Ed Downs -0- 2,760 2,760 2,760
Michael Appelbaum -0- 958 958 958
Peter Fulton -0- 2,475 2,475 2,475
Eric Rand -0- 1,993 1,993 1,993
Richard White -0- 1,800 1,800 1,800
George Tsamutalis -0- 1,364 1,364 1,364
Eric Handler -0- 971 971 971
Sandesh Seth -0- 971 971 971
Craig Leppla -0- 997 997 997
Robert Nass -0- 997 997 997
Stephen Labarbara -0- 997 997 997
Michael Volpe -0- 997 997 997
Juan Lopera -0- 900 900 900
James Walker -0- 485 485 485
Susan Hoffman -0- 500 500 500
Richard Perreira -0- 500 500 500
Peter Dellaquilla -0- 479 479 479
Brad Van Siclen -0- 400 400 400
Travis Brock -0- 400 400 400
Darren Saltzberg -0- 338 338 338
Basil Ascuitto -0- 7,973 7,973 7,973
Steven Stein -0- 1,000 1,000 1,000
Commonwealth Associates -0- 418,553 418,553 418,553
--------- --------- --------- ---------
Total 1,489,170 2,445,964 3,935,134 2,243,964
No information is given with respect to beneficial ownership after the
offering because the number of shares and warrants held would be zero, except
as follows:
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a. Marshall S. Geller would beneficially own 10,000 shares of common
stock, consisting of shares underlying options, which would represent less
than one percent of the outstanding shares.
b. Anthony N. LaPine would beneficially own 295,000 shares of common
stock, consisting of 200,000 shares owned directly and 95,000 shares
underlying options held by Mr. LaPine and his wife, which would represent 7.2%
of the outstanding shares if no other preferred stock or warrants are
exercised.
c. Robert L. Priddy would beneficially own 241,000 shares of common
stock, consisting of 231,000 shares of common stock held directly and 10,000
shares underlying options, which would represent approximately 6.8% of the
outstanding shares if no other preferred stock is converted or warrants are
exercised.
d. Commonwealth Associates would beneficially own 100,000 shares of
common stock held directly, which would represent approximately 3.0% of the
outstanding shares if no preferred stock or other warrants are exercised.
Anthony N. LaPine, one of the selling securityholders, has served as CEO
and chairman of the board of Datalink.net since September 1997.
Robert L. Priddy, one of the selling securityholders, served as a
director of Datalink.net from October 1998 to June 1999.
The information concerning the selling securityholders may change from
time to time and will be set forth in supplements to this prospectus.
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PLAN OF DISTRIBUTION
The purpose of this prospectus is to permit the selling securityholders
to offer and sell up to 3,935,134 shares and 2,243,964 warrants at such times
and at such places as they choose. The decision to convert preferred stock
into shares, to exercise warrants, or to sell any shares or warrants, is
within the sole discretion of the holders thereof.
The distribution of the securities by selling securityholders may be
effected from time to time in one or more transactions. Any of the securities
may be offered for sale, from time to time, by the selling securityholders, or
by permitted transferees or successors of the selling securityholders, in the
over-the-counter market, or otherwise, at prices and on terms then obtainable,
at fixed prices, at prices then prevailing at the time of sale, at prices
related to such prevailing prices, or in negotiated transactions at negotiated
prices or otherwise. The securities may be sold by one or more of the
following:
* Through underwriters, or through underwriting syndicates.
* Through one or more dealers or agents (which may include one or more
underwriters), including, but not limited to:
a. Block trades in which the broker or dealer act as principal
to facilitate the transactions.
b. Purchases by a broker or dealer as principal and resale by
such broker or dealer for its account pursuant to this
prospectus.
c. Ordinary brokerage transactions.
d. Transactions in which the broker solicits purchasers.
* Directly to one or more purchasers
* A combination of these methods.
The names of any underwriters or agents involved in the sale of the
securities will be set forth in a prospectus supplement.
In connection with the distribution of the securities or otherwise, the
selling securityholders may enter into hedging transactions with
broker-dealers or other financial institutions. In connection with such
transactions, broker-dealers or other financial institutions may engage in
short sales of shares in the course of hedging the positions they assume with
the selling securityholders. The selling securityholders may also sell shares
short and redeliver the shares to close out such short positions. The selling
securityholders may also enter into options or other transactions with
broker-dealers or other financial institutions which require the delivery to
such broker-dealers or other financial institutions of the securities, which
shares such broker-dealers or financial institutions may resell pursuant to
this prospectus, as supplemented or amended to reflect this transaction. The
selling securityholders may also pledge the securities registered hereunder to
a broker-dealer or other financial institution and, upon a default, such
broker-dealer or other financial institution may effect sales of the pledged
shares pursuant to this prospectus, as supplemented or amended to reflect such
transaction. In addition, any securities covered by this prospectus that
qualify for sale pursuant to Rule 144 under the Securities Act may be sold
under Rule 144 rather than pursuant to this prospectus.
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<PAGE>
The selling securityholders or their underwriters, dealers or agents may
sell the securities to or through underwriters, dealers or agents, and such
underwriters, dealers or agents may receive compensation in the form of
discounts or concessions allowed or reallowed. Underwriters, dealers, brokers
or other agents engaged by the selling securityholders may arrange for other
such persons to participate. Any fixed public offering price and any
discounts and concessions may be changed from time to time. Underwriters,
dealers and agents who participate in the distribution of the securities may
be deemed to be underwriters within the meaning of the Securities Act, and any
discounts or commissions received by them or any profit on the resale of
shares by them may be deemed to be underwriting discounts and commissions
thereunder. The proposed amounts of securities, if any, to be purchased by
underwriters and the compensation, if any, of underwriters, dealers or agents
will be set forth in a prospectus supplement.
Unless granted an exemption by the Commission from Rule 10b-6 under the
Exchange Act, or unless otherwise permitted under Rule 10b-6A, the selling
securityholders will not engage in any stabilization activity in connection
with the Company's securities, will furnish each broker or dealer engaged by
the selling securityholders and each other participating broker or dealer the
number of copies of this prospectus required by such broker or dealer, and
will not bid for or purchase any securities of the Company or attempt to
induce any person to purchase any of the securities other than as permitted
under the Exchange Act.
Datalink.net will not receive any proceeds from any sales of the
securities, but will receive the proceeds from any exercise of the warrants
held by the selling securityholders. Such proceeds, if any, will be used for
general corporate purposes.
Datalink.net shall use its best efforts to prepare and file with the
Commission such amendments and supplements to the registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the provisions of the
Securities Act with respect to the disposition of the securities covered by
the registration statement for the period required to effect the distribution
of such securities.
Datalink.net is paying certain expenses (other than commissions and
discounts of underwriters, dealers or agents) incident to the offering and
sale of the securities to the public, which are estimated to be approximately
$25,000. If Datalink.net is required to update this prospectus during such
period, it may incur additional expenses in excess of the amount estimated
above.
In order to comply with certain states' securities laws, if applicable,
the securities will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In certain states the securities may not be sold
unless they have been registered or qualify for sale in such state or an
exemption from registration or qualification is available and is complied
with.
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DESCRIPTION OF SECURITIES
Datalink.net has 55,000,000 authorized shares of stock, consisting of
50,000,000 shares of common stock, having a par value of $.01 per share, and
5,000,000 shares of preferred stock, having a par value of $.001 per share.
COMMON STOCK
As of August 31, 1999, there were 3,373,376 shares of common stock
outstanding. All such outstanding shares of common stock are fully paid and
nonassessable. Each share of common stock has an equal and ratable right to
receive dividends when declared by the Board of Directors of Datalink.net out
of assets legally available for that purpose and subject to the dividend
obligations of Datalink.net to holders of any preferred stock then
outstanding.
In the event of a liquidation, dissolution or winding up of Datalink.net,
the holders of common stock are entitled to share equally and ratably in the
assets available for distribution after payment of all liabilities, and
subject to any prior rights of any holders of preferred stock outstanding at
that time.
The holders of common stock have no preemptive, subscription, conversion
or redemption rights, and are not subject to further calls or assessments of
Datalink.net. Each share of common stock is entitled to one vote in the
election of directors and on all other matters, submitted to a vote of
stockholders.
Datalink.net's Articles of Incorporation provide that a holder of any
class or series of stock entitled to vote in the election of directors shall
be entitled to cumulate his votes, and may cast votes equal to the number of
votes which (except for cumulative voting) he would be entitled to cast for
the election of directors with respect to his shares of stock multiplied by
the number of directors to be elected. Such shareholders may cast all such
votes for a single director or allocate such votes to two or more directors as
such shareholder sees fit. Under Nevada law, to exercise the right to
cumulative voting, a shareholder must give Datalink.net written notice of his
intent to do so at least 48 hours before the time fixed for the annual
meeting. Such written notice must be given to the president or secretary of
Datalink.net.
PREFERRED STOCK
Preferred stock may be issued from time to time in one or more series,
and the board of directors, without further approval of the stockholders, is
authorized to fix the dividend rates and terms, conversion rights, voting
rights, redemption rights and terms, liquidation preferences and any other
rights, preferences, privileges and restrictions applicable to each series of
preferred stock. The purpose of authorizing the board of directors to
determine such rights, preferences, privileges and restrictions is to
eliminate delays associated with a stockholder vote on specific issuances.
The issuance of preferred stock, while providing flexibility in connection
with possible acquisitions and other corporate purposes, could, among other
things, adversely affect the voting power of the holders of common stock and,
under some circumstances, make it more difficult for a third party to gain
control of Datalink.net.
As of August 31, 1999, Datalink.net had 1,425,425 shares of preferred
stock outstanding, which shares have been designated series A convertible
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<PAGE>
preferred stock. The preferred stock is convertible into common stock on a 1
for 1 basis. Holders of preferred stock are entitled to receive dividends
equal to any dividends paid on the common stock. In the event of a
liquidation of Datalink.net, holders of preferred stock are entitled to
receive $3.75 per share prior to any distributions to be made to holders of
common stock. The preferred stock is not redeemable. Holders of preferred
stock are entitled to vote together with the holders of common stock on an
"as-converted" basis.
The preferred stock will be automatically converted into an equal number
of shares of common stock in the event that the closing market price of the
common stock equals or exceeds $10.00 per share for 30 consecutive trading
days and a registration statement covering the resale of the common stock is
then effective.
No other series of preferred stock has been designated by Datalink.net.
WARRANTS BEING REGISTERED
Datalink.net is registering certain warrants and the common stock
issuable upon the exercise of such warrants pursuant to the registration
statement of which this prospectus is a part.
PRIVATE PLACEMENT WARRANTS
As part of a private placement that was completed in November 1997,
Datalink.net issued 1,369,927 warrants. Each warrant gives the holder the
right to purchase one share of common stock at $5.00 per share. These
warrants are exercisable at any time until November 5, 2002. Datalink.net may
redeem these warrants on at least thirty days' notice in the event that the
average closing bid price for the common stock exceeds $12.50 over 30
consecutive trading days ending with the date of notice of redemption. The
redemption price would be $.50 per warrant.
PLACEMENT AGENT AND INVESTOR WARRANTS
In connection with the private placement, Datalink.net issued to
Commonwealth Associates, the placement agent, and its designees warrants to
purchase 824,383 shares of common stock. At that time, Datalink.net also
issued warrants to purchase 100,000 shares of common stock to Peter Allard, an
investor who had provided Datalink.net with $2 million in debt financing.
These warrants are exercisable at $3.75 per share and are exercisable at any
time until November 5, 2002. At the election of a holder of these warrants,
the holder may exchange all or a portion of the warrants held for shares of
common stock in a "cashless exercise" transaction. The number of shares
issued in exchange for the warrants is determined by determining the value of
the warrants by subtracting the $3.75 exercise price from the current market
price and multiplying this by the number of shares that the holder could
purchase with the surrendered warrants. This total value is then divided by
the current market price to determine the number of shares to be received.
For example, if a holder surrenders warrants to purchase 1,000 shares and the
current market price is $5.00 per share, the holder would receive 250 shares
of common stock in exchange for the warrants. These warrants are not
redeemable.
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LEGAL MATTERS
The legality of the shares and warrants offered hereby is being passed
upon for Datalink.net by Krys Boyle Freedman & Sawyer, P.C., 600 17th Street,
Suite 2700 South, Denver, Colorado 80202.
EXPERTS
The financial statements incorporated by reference in this prospectus
have been audited by BDO Seidman LLP, independent certified public
accountants, to the extent and for the periods set forth in their report,
incorporated by reference herein, and are incorporated herein in reliance upon
such report given upon the authority of that firm as experts in accounting and
auditing.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by Datalink.net with the Commission are
incorporated herein by reference:
(a) Datalink.net's annual report on Form 10-KSB for the fiscal year
ended March 31, 1999 (SEC File No. 0-21069.)
(b) Datalink.net's quarterly report on Form 10-QSB for the quarter ended
June 30, 1999 (SEC File No. 0-21069).
(c) The description of Datalink.net's shares contained in the
registration statement on Form 8-A (SEC File No. 0-21069) declared effective
on September 20, 1996.
All reports and other documents subsequently filed by Datalink.net with
the SEC pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Exchange
Act, prior to the filing of a post-effective amendment which indicates that
all securities covered by this prospectus have been sold or which deregisters
all such securities then remaining unsold, shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of the filing of
such reports and documents.
AVAILABLE INFORMATION
Datalink.net is subject to certain informational reporting requirements
of the Exchange Act and in accordance therewith files reports and other
information with the Securities and Exchange Commission. These reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the SEC at Room 1024 of the SEC's office at
450 Fifth Street, N.W., Judiciary Plaza, Washington, DC 20549, and at its
regional offices located at 7 World Trade Center, Suite 1300, New York, NY
10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, IL
60661. Copies of such reports, proxy statements and other information can be
obtained from the Public Reference Section of the SEC at 450 Fifth Street,
N.W., Judiciary Plaza, Washington, DC 20549 at prescribed rates. The SEC
maintains a Web site (http://www.sec.gov) that contains reports, proxy and
information statements and other information regarding registrants that file
electronically. Additional updating information with respect to the
securities covered herein may be provided in the future to purchasers by means
of appendices to this prospectus.
Datalink.net has filed with the SEC in Washington, DC a registration
statement under the 1933 Act with respect to the securities offered or to be
offered hereby. This prospectus does not contain all of the information
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<PAGE>
included in the registration statement, certain items of which are omitted in
accordance with the rules and regulations of the SEC. For further information
about Datalink.net and the securities offered hereby, reference is made to the
registration statement and the exhibits thereto. The registration statement
has been filed electronically through the SEC's Electronic Data Gathering,
Analysis and Retrieval System and may be obtained through the SEC's Web site
(http://www.sec.gov.).
Datalink.net will provide without charge to each person to whom this
prospectus is delivered, on the written or oral request of such person, a copy
of any document incorporated herein by reference, excluding exhibits.
Requests should be made to Datalink.net , 1735 Technology Drive, Suite 790,
San Jose, California 95110, telephone (408) 367-1700, and directed to the
attention of William A. Mahan, Chief Financial Officer.
19
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following expenses incurred in connection with the sale of the
securities being registered will be borne by the Registrant. Other than the
registration fee, the amounts stated are estimates.
Registration Fees . . . . . . . . . . . . . . $ 5,352.36
Legal Fees and Expenses . . . . . . . . . . . 10,000.00
Accounting Fees and Expenses. . . . . . . . . 6,000.00
Miscellaneous . . . . . . . . . . . . . . . . 3,647.64
----------
TOTAL . . . . . . . . . . . . . . . . . . $25,000.00
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The only statute, charter provision, bylaw, contract, or other arrange
ment under which any controlling person, director or officer of Datalink.net
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,
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
II-1
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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 Datalink.net's Articles of Incorporation provides
that Datalink.net 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 Datalink.net provides
that no director, officer or stockholder of Datalink.net 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.
ITEM 16. EXHIBITS.
Exhibit
Number Description Location
- ------- ----------- ---------
4.1 Certificate of the Designations, Incorporated by reference
Powers, Preferences and Rights to Exhibit 3.1 to the
of the Series A Convertible Registrant's Annual Report
Preferred Stock on Form 10-KSB/A for the
fiscal year ended
March 31, 1998
4.2 Warrant Agreement (including Previously filed
form of Warrant Certificate)
5 Opinion of Krys Boyle Freedman & Filed herewith
Sawyer, P.C., with respect to electronically
the legality of the securities
being registered
23.1 Consent of BDO Seidman, LLP, Filed herewith
Independent Certified Public electronically
Accountants
23.2 Consent of Krys Boyle Freedman & Filed herewith
Sawyer, P.C. (contained in electronically
Exhibit 5)
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ITEM 17. 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:
(a) To include any prospectus required by Section 10(a)(3) of the
1933 Act;
(b) 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. Notwithstanding the foregoing, any increase or
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) ([Section] 230.424(b) of this chapter) 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.
(c) 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;
Provided, however, that paragraphs (l)(i) and (l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by Datalink.net pursuant to Section 13 or
Section 15(d) of the 1934 Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the 1933
Act, 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of Datalink.net's
annual report pursuant to section 13(a) or section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the 1934 Act) 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.
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Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of Datalink.net
pursuant to the foregoing provisions, or otherwise, Datalink.net has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by Datalink.net of expenses incurred or paid by a director,
officer or controlling person of Datalink.net 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,
Datalink.net 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 1933 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, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 2 to the Registration Statement on Form S-3 to be signed on its
behalf by the undersigned, hereunto duly authorized, in San Jose, California,
on September 7, 1999.
DATALINK.NET, INC.
By:/s/ Anthony N. LaPine
Anthony N. LaPine, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Amendment No. 2 to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated:
SIGNATURES TITLE DATE
/s/ Anthony N. LaPine Chief Executive Officer, September 7, 1999
Anthony N. LaPine President and Chairman
of the Board
/s/ William A. Mahan Chief Financial Officer September 7, 1999
William A. Mahan
/s/ Frederick M. Hoar Director September 7, 1999
Frederick M. Hoar
/s/ Charles K. Dargan Director September 7, 1999
Charles K. Dargan, II
KRYS BOYLE FREEDMAN & SAWYER, P.C.
ATTORNEYS AT LAW
Telephone 600 17th Street, Suite 2700 S Facsimile
(303) 893-2300 Denver, Colorado 80202 (303) 893-2882
September 7, 1999
Datalink.net, Inc.
1735 Technology Way, Suite 790
San Jose, California 95110
Gentlemen:
We have acted as counsel to Datalink.net, Inc., a Nevada corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission of a Registration Statement on Form S-3 (the
"Registration Statement"), as amended, pursuant to which the Company is
registering under the Securities Act of 1933, as amended, 3,935,134 shares
(the "Shares") of its common stock, $.01 par value (the "Common Stock"), and
2,243,964 common stock purchase warrants (the "Warrants") which may be sold by
Selling Securityholders. Of the Shares of Common Stock which may be sold,
1,489,170 Shares have been issued or are issuable upon the conversion of
Series A Convertible Preferred Stock and 2,445,964 Shares have been issued or
are issuable upon the exercise of the Warrants. This opinion is being
rendered in connection with the filing of the Registration Statement. All
capitalized terms used herein and not otherwise defined shall have the
respective meanings given to them in the Registration Statement.
In connection with this opinion, we have examined the Company's Articles
of Incorporation and Bylaws, both as currently in effect; such other records
of the corporate proceedings of the Company and certificates of the Company's
officers as we have deemed relevant; and the Registration Statement and the
exhibits thereto.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon the foregoing, and subject to the limitations set forth below,
we are of the opinion that the 2,243,964 Warrants being offered for resale
have been duly and validly authorized by the Company and have been duly and
validly issued and are fully paid and non-assessable.
Based upon the foregoing and in reliance thereon, and subject to the
limitations set forth below, we are of the opinion that the 1,489,170 shares
of Common Stock issued or issuable upon the conversion of the Series A
Convertible Preferred Stock and the 2,445,964 shares of Common Stock issued or
issuable upon exercise of the outstanding Warrants are, or will be when issued
in accordance with their respective terms, duly and validly authorized,
legally issued, fully paid and non-assessable.
<PAGE>
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We hereby further consent to the reference to us
under the caption "Legal Matters" in the prospectus included in the
Registration Statement.
Very truly yours,
KRYS BOYLE FREEDMAN & SAWYER, P.C.
By:/s/ Jon D. Sawyer
Jon D. Sawyer
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in Amendment No. 2 to
the Registration Statement on Form S-3 (SEC File No. 333-71969) of our report
dated May 20, 1999, relating to the consolidated financial statements of
Datalink Systems Corporation appearing in the Company's Annual Report on Form
10-KSB for the year ended March 31, 1999.
/s/ BDO Seidman, LLP
BDO Seidman, LLP
San Jose California
September 7, 1999
