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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
DATALINK.NET, INC.
(Formerly Named Datalink Systems Corporation)
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(Exact Name of Registrant as Specified in its Charter)
Nevada 36-3574355
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1735 Technology Drive, Suite 790, San Jose, California 95110
(408) 367-1700
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(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
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(Name, Address and Telephone Number of Agent for Service)
Copy to:
Taliesin Durant, Esq.
Datalink.net, Inc.
1735 Technology Drive, Suite 790
San Jose, CA 95110
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: [_]
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If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box: [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Aggregate Offering Amount of
Securities to be Registered Registered Per Share Price Registration Fee
<S> <C> <C> <C> <C>
Common Stock, $.01 3,000,000 (1) $1.875 (2) $ 5,625,000 $ 1406.25
Par Value
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</TABLE>
1. In accordance with Rule 416 under the Securities Act of 1933, this
registration statement covers an aggregate of up to 3,000,000 shares of common
stock, $.01 par value, to be offered from time to time. A prospectus supplement
will be delivered along with the Prospectus when such securities become
issuable.
2. Based upon the average of the high and low sale price of the common
stock as reported by the American Stock Exchange on January 2, 2001, estimated
solely for the purpose of calculating the registration fee in accordance with
Rule 457(c) under the Securities Act of 1933.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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PROSPECTUS SUBJECT TO COMPLETION DATED ________ ___, 2001
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.
[LOGO]
3,000,000 SHARES OF COMMON STOCK
_____________________________
This prospectus will allow us to issue securities over time. This means:
- we will provide a prospectus supplement each time we issue securities;
- the prospectus supplement will inform you about the specific terms of that
offering and also may add, update or change information contained in this
document; and
- you should read this document and any prospectus supplement carefully
before you invest.
Our shares of common stock are traded on the American Stock Exchange under
the symbol "DLK." On January 2, 2001, the closing sale price for our common
stock was $1.875 per share. As of January 2, 2001, the year's high and low
closing prices for our common stock were $42 and $1.875 respectively.
THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD PURCHASE SHARES
ONLY IF YOU CAN AFFORD A LOSS OF YOUR ENTIRE INVESTMENT. SEE "RISK FACTORS"
BEGINNING ON PAGE 7 OF THIS PROSPECTUS.
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.
The date of this Prospectus is ______________, 2001.
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TABLE OF CONTENTS
<TABLE>
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Page
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<S> <C>
COMPANY SUMMARY........................................................... 5
THE OFFERING.............................................................. 5
RISK FACTORS.............................................................. 6
FORWARD-LOOKING STATEMENTS................................................ 10
USE OF PROCEEDS........................................................... 10
PLAN OF DISTRIBUTION...................................................... 11
LEGAL MATTERS............................................................. 12
EXPERTS .................................................................. 12
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE......................... 12
</TABLE>
You should rely only on the information contained in this document or to
which we have referred you. We have not authorized anyone to provide you with
information that is different. This document may only be used where it is legal
to sell these securities. The information contained in this document may only be
accurate on the date of this document. This prospectus does not constitute an
offer to sell, or a solicitation of an offer to buy, in any state where the
offer or sale is prohibited. Neither the delivery of this prospectus, nor any
sale make under this prospectus shall, under any circumstances, imply that the
information in this prospectus is correct as of any date after the date of this
prospectus.
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COMPANY SUMMARY
Datalink.net is a wireless application service provider (w-ASP) that
delivers end-to-end wireless data solutions to enterprises and custom data
applications to their customers. Datalink.net enables wireless devices that
allow enterprises and consumers to customize, respond, and interact with
critical data. The Company's XpressLink(TM) technology processes high-speed data
content feeds or corporate databases for wireless applications that are
compatible with the entire range of wireless devices, networks and protocols.
Datalink.net markets a suite of products and services for both the B2B
(business to business) and B2C (business to consumer) markets. Datalink.net
embraces the strategy of addressing both the enterprise and the consumer needs
through its two distinct business models: the Business-to-Business (B2B) group
and the Business-to-Consumer (B2C) group. The B2B group focuses on three areas
that project the greatest amount of growth potential and the greatest need for
wireless solutions. Those segments are: field services, financial services and
the healthcare industry.
Datalink.net offers specialized wireless solutions designed to expand
the market reach for all enterprises. The company has developed a suite of
wireless enablement products and services that give Internet marketers and
corporate enterprises a wireless outreach. Currently, the company's enterprise
business solutions suite includes: Wireless Bookmark(TM); Auction Engine(TM);
Content Engine(TM); Transaction Engine(TM); Intranet Productivity Tool(TM);
Custom Wireless Application(TM); and Global Market Pro(TM).
Datalink.net is continually developing new wireless information
services to reflect multiple personal and enterprise information requirements.
The company takes wireless information services to the next level by customizing
and delivering actionable and time sensitive information wherever that
information is most valuable to the customer. The services and applications are
device agnostic and protocol independent, integrating seamlessly into every
enterprise infrastructure and working with every wireless carrier and all text
messaging devices.
Datalink.net's consumer product line focuses on the device owner as the
customer. From critical financial data to information supporting the
individual's lifestyle, these products allow customers to receive customized
information from real-time data feeds, receive and send messages and other
information, as well as set their own parameters for data they wish to receive.
Real-time stock quotes, news and sports are but a few examples of the
information that customers can receive at scheduled times, intervals or as event
driven alerts. Datalink.net's current line of consumer products includes:
QuoteXpress(R), SplitXpress(TM), CompanyNews, MailXpress(TM), MessageX(TM),
RumorXpress(TM), InfoXtraII(TM), Net2Go(TM) and RelayXpress(TM).
Datalink.net, Inc. was formed under the laws of the State of Nevada on
June 18, 1996. On June 27, 1996, the Company went public through an acquisition
of a public corporation, Datalink Communications Corporation ("DCC"), which was
previously Lord Abbott, Inc., a Colorado corporation formed in 1986. Beginning
in January of 2001, the Company intends to begin doing business under the
"Semotus Solutions, Inc." name. The Board of Directors has approved an amendment
to the Articles of Incorporation to change the name of the Company to "Semotus
Solutions, Inc.". The Company is holding a Special Shareholders Meeting on
January 11, 2001 to get shareholder approval of this amendment. The new name is
being proposed to better reflect the Company's enterprise strategy, to emphasize
its end-to-end solutions being offered to a broad range of businesses, and to
generate a stronger company identity and branding power. Datalink.net's
corporate headquarters 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.
THE OFFERING
Securities offered in this prospectus 3,000,000 shares of common stock
Common stock outstanding:
Prior to the offering 15,732,344 shares
After the offering 18,732,344 shares (1)
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Use of proceeds For operating costs, capital
expenditures and working capital needs;
for the development of administrative
and other support services necessary to
support these activities; for
acquisitions; and other general
corporate purposes. However, the Company
does not have any specific targets for
the use of proceeds at this time.
AMEX trading symbol for common stock DLK
Risk factors This offering involves a high degree of
risk. See "Risk Factors".
(1) The number of shares of common stock to be outstanding after this offering
is based on the number of shares outstanding as of December 31, 2000, and
excludes:
- 3,068,683 shares issuable upon the exercise of common stock purchase
warrants outstanding as of December 31, 2000;
- 938,462 shares issuable upon the conversion of Series B convertible
preferred stock into common stock as of December 31, 2000;
- 2,402,020 shares subject to outstanding options as of December 31, 2000;
and
- 97,980 shares issuable upon exercise of future options available for grant
under our stock option plan as of December 31, 2000.
RISK FACTORS
Investing in the shares is very risky. You should be able to bear a complete
loss of your investment. In deciding whether to purchase the shares, 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 HISTORICALLY INCURRED LOSSES AND THESE LOSSES MAY INCREASE IN THE
FUTURE.
We have recorded a net loss for each period since our current business
started in 1996. We had a reported loss of approximately $4,162,910 for the six
months ended September 30, 2000, and our accumulated deficit at that date was
$34,500,819. Because we expect to continue to incur significant sales and
marketing, systems development and administrative expenses, we will need to
generate significant revenue to become profitable and sustain profitability on a
quarterly or annual basis. We may not achieve or sustain our revenue or profit
goals and our losses may continue or grow in the future. As a result, we may not
be able to increase revenue or achieve profitability on a quarterly or annual
basis.
THERE IS NO ESTABLISHED MARKET FOR WIRELESS DATA SERVICES AND WE MAY NOT BE ABLE
TO SELL ENOUGH OF OUR SERVICES TO BECOME PROFITABLE.
The markets for wireless data services are still emerging and continued
growth in demand for and acceptance of these services remains uncertain. Current
barriers to market acceptance of these services include cost, reliability,
functionality and ease of use. We cannot be certain that these barriers will be
overcome. Our competitors may develop alternative wireless data communications
systems that gain broader market acceptance than our systems. If the market for
our services does not grow or grows more slowly than we currently anticipate, we
may not be able to attract customers for our services and our revenues would be
adversely affected.
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WE MAY NOT ACHIEVE PROFITABILITY IF WE ARE UNABLE TO MAINTAIN, IMPROVE AND
DEVELOP THE WIRELESS DATA SERVICES WE OFFER.
We believe that our future business prospects depend in part on our
ability to maintain and improve our current services and to develop new ones on
a timely basis. Our services will have to achieve market acceptance, maintain
technological competitiveness and meet an expanding range of customer
requirements. As a result of the complexities inherent in our service offerings,
major new wireless data services and service enhancements require long
development and testing periods. We may experience difficulties that could delay
or prevent the successful development, introduction or marketing of new services
and service enhancements. Additionally, our new services and service
enhancements may not achieve market acceptance. If we cannot effectively
maintain, improve and develop services we may not be able to recover our fixed
costs or otherwise become profitable.
IF WE DO NOT RESPOND EFFECTIVELY AND ON A TIMELY BASIS TO RAPID TECHNOLOGICAL
CHANGE, OUR SERVICES MAY BECOME OBSOLETE AND WE MAY LOSE SALES.
The wireless and data communications industries are characterized by
rapidly changing technologies, industry standards, customer needs and
competition, as well as by frequent new product and service introductions. Our
services are integrated with wireless handheld devices and the computer systems
of our customers. Our services must also be compatible with the data networks of
wireless carriers. We must respond to technological changes affecting both our
customers and suppliers. We may not be successful in developing and marketing,
on a timely and cost-effective basis, new services that respond to technological
changes, evolving industry standards or changing customer requirements. Our
ability to grow and achieve profitability will depend, in part, on our ability
to accomplish all of the following in a timely and cost-effective manner:
- effectively use and integrate new wireless and data technologies;
- continue to develop our technical expertise;
- enhance our wireless data, engineering and system design services;
- develop applications for new wireless networks; and
- influence and respond to emerging industry standards and other
changes.
WE DEPEND UPON WIRELESS NETWORKS OWNED AND CONTROLLED BY OTHERS. IF WE DO NOT
HAVE CONTINUED ACCESS TO SUFFICIENT CAPACITY ON RELIABLE NETWORKS, WE MAY BE
UNABLE TO DELIVER SERVICES AND OUR SALES COULD DECREASE.
Our ability to grow and achieve profitability partly depends on our
ability to buy sufficient capacity on the networks of wireless carriers and on
the reliability and security of their systems. We depend on these companies to
provide uninterrupted and "bug free" service and would not be able to satisfy
our customers' needs if they failed to provide the required capacity or needed
level of service. In addition, our expenses would increase and our profitability
could be materially adversely affected if wireless carriers were to increase the
prices of their services.
WE MAY FAIL TO SUPPORT OUR ANTICIPATED GROWTH IN OPERATIONS WHICH COULD REDUCE
DEMAND FOR OUR SERVICES AND MATERIALLY ADVERSELY AFFECT OUR REVENUE.
Our business strategy is based on the assumption that the number of
subscribers to our services, the amount of information they want to receive and
the number of services we offer will all increase. We must continue to develop
and expand our systems and operations to accommodate this growth. The expansion
and adaptation of our customer service and network operations center requires
substantial financial, operational and management resources. We may be unable to
expand our operations for one or more of the following reasons:
- we may not be able to locate or hire at reasonable compensation
rates qualified engineers and other employees necessary to expand
our capacity;
- we may not be able to obtain the hardware necessary to expand our
capacity;
- we may not be able to expand our customer service, billing and
other related support systems; and
- we may not be able to obtain sufficient additional capacity from
wireless carriers.
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Due to the limited deployment of our services to date, the ability of
our systems and operations to connect and manage a substantially larger number
of customers while maintaining superior performance is unknown. Any failure on
our part to develop and maintain our wireless data services as we experience
rapid growth could significantly reduce demand for our services and materially
adversely affect our revenue.
WE DEPEND ON RECRUITING AND RETAINING KEY MANAGEMENT AND TECHNICAL PERSONNEL
WITH WIRELESS DATA AND SOFTWARE EXPERIENCE AND WE MAY NOT BE ABLE TO DEVELOP NEW
PRODUCTS OR SUPPORT EXISTING PRODUCTS IF WE CANNOT HIRE OR RETAIN QUALIFIED
EMPLOYEES.
Because of the technical nature of our products and the dynamic market
in which we compete, our performance depends on attracting and retaining key
employees. Competition for qualified personnel in the wireless data and software
industries is intense and finding qualified personnel with experience in both
industries is even more difficult. We believe there are only a limited number of
individuals with the requisite skills in the field of wireless data
communication, and it is becoming increasingly difficult to hire and retain
these persons. We have a written employment agreement and key-man life insurance
in the face amount of $3 million with Anthony N. LaPine, 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.
THERE IS NO ASSURANCE THAT WE WILL BE ABLE TO EFFECTIVELY COMPETE AGAINST
CURRENT AND FUTURE COMPETITORS. OUR MARKET IS VERY COMPETITIVE.
There are a number of competitors who are larger and have much greater
resources than we do. Our 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 ADDITIONAL FUNDS.
These funds may not be available to us. Alternatively, raising
additional funds may dilute your share ownership. We have met capital needs with
private sales of securities. However, we cannot assure you that we will not need
additional funds, that any needed funds will be available to us at all, or that
any available funds will be given on acceptable terms. If we need additional
funds, 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.
OUR PATENTS MAY NOT PROTECT US FROM COMPETITORS.
Costs of prosecuting and defending patent infringement claims could
hurt our business. We currently own a number of patents related to our products,
and have applied for additional patents. We are not certain whether any new
patents will be granted in the future. Even if we receive additional patents,
they may not 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 affect 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.
WE MAY BE SUBJECT TO LIABILITY FOR TRANSMITTING INFORMATION, AND OUR INSURANCE
COVERAGE MAY BE INADEQUATE TO PROTECT US FROM THIS LIABILITY.
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We may be subject to claims relating to information transmitted over
systems we develop or operate. These claims could take the form of lawsuits for
defamation, negligence, copyright or trademark infringement or other actions
based on the nature and content of the materials. Although we carry general
liability insurance, our insurance may not cover potential claims of this type
or may not be adequate to cover all costs incurred in defense of potential
claims or to indemnify us for all liability that may be imposed.
DISRUPTION OF OUR SERVICES DUE TO ACCIDENTAL OR INTENTIONAL SECURITY BREACHES
MAY HARM OUR REPUTATION CAUSING A LOSS OF SALES AND COULD INCREASE OUR EXPENSES.
A significant barrier to the growth of wireless data services or
transactions on the Internet or by other electronic means has been the need for
secure transmission of confidential information. Our systems could be disrupted
by unauthorized access, computer viruses and other accidental or intentional
actions. We may incur significant costs to protect against the threat of
security breaches or to alleviate problems caused by such breaches. If a
third-party were able to misappropriate our users' personal or proprietary
information or credit card information, we could be subject to claims,
litigation or other potential liabilities that could materially adversely impact
our revenue and may result in the loss of customers.
ANY TYPE OF SYSTEMS FAILURE COULD REDUCE SALES, OR INCREASE COSTS OR RESULT IN
CLAIMS OF LIABILITY.
Our existing wireless data services are dependent on real-time,
continuous feeds. The ability of our subscribers to obtain data or make
securities trades through our service requires timely and uninterrupted
connections with our wireless network carriers. Any disruption could result in
delays in our subscribers' ability to receive information or execute trades.
There can be no assurance that our systems will operate appropriately if we
experience a hardware or software failure or if there is an earthquake, fire or
other natural disaster, a power or telecommunications failure, an act of God or
an act of war. A failure in our systems could cause delays in transmitting data,
and as a result we may lose customers or face litigation that could involve
material costs and distract management from operating our business.
AN INTERRUPTION IN THE SUPPLY OF PRODUCTS AND SERVICES THAT WE OBTAIN FROM THIRD
PARTIES COULD CAUSE A DECLINE IN SALES OF OUR SERVICES.
In designing, developing and supporting our wireless data services, we
rely on wireless carriers, wireless handheld device manufacturers, content
providers and software providers. These suppliers may experience difficulty in
supplying us products or services sufficient to meet our needs or they may
terminate or fail to renew contracts for supplying us these products or services
on terms we find acceptable. Any significant interruption in the supply of any
of these products or services could cause a decline in sales of our services
unless and until we are able to replace the functionality provided by these
products and services. We also depend on third parties to deliver and support
reliable products, enhance their current products, develop new products on a
timely and cost-effective basis and respond to emerging industry standards and
other technological changes. In addition, we rely on the ability of our content
providers to continue to provide us with uninterrupted access to the news and
financial information we provide to our customers. The failure of third parties
to meet these criteria, or their refusal or failure to deliver the information
for whatever reason, could materially harm our business.
NEW LAWS AND REGULATIONS THAT IMPACT OUR INDUSTRY COULD INCREASE OUR COSTS OR
REDUCE OUR OPPORTUNITIES TO EARN REVENUE.
We are not currently subject to direct regulation by the Federal
Communications Commission or any other governmental agency, other than
regulations applicable to businesses in general. However, in the future, we may
become subject to regulation by the FCC or another regulatory agency. In
addition, the wireless carriers who supply us airtime are subject to regulation
by the FCC and regulations that affect them could increase our costs or reduce
our ability to continue selling and supporting our services.
OUR STOCK PRICE, LIKE THAT OF MANY TECHNOLOGY COMPANIES, MAY BE VOLATILE.
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We expect that the market price of our common stock will be volatile.
We are involved in a highly visible, rapidly changing industry and stock prices
in our and similar industries have risen and fallen in response to a variety of
factors, including:
- announcements of new wireless data communications technologies and
new providers of wireless data communications;
- acquisitions of or strategic alliances among providers of wireless
data communications;
- changes in recommendations by securities analysts regarding the
results or prospects of providers of wireless data communications;
and
- changes in investor perceptions of the acceptance or profitability
of wireless data communications.
WE DO NOT PLAN TO PAY ANY DIVIDENDS.
Our shares should not be purchased by investors who need income from
their holdings. We intend to retain any future earnings to fund the operation
and expansion of our business. We do not anticipate paying cash dividends on our
shares in the future. As a result, our common stock is not a good investment for
people who need income from their holdings.
THE RESALES OF OUR COMMON STOCK RECENTLY REGISTERED COULD HAVE A DEPRESSIVE
EFFECT ON THE MARKET PRICE OF OUR SHARES.
We recently registered 3,171,810 shares of common stock subject to
resale by certain security holders of Datalink.net. Up to 1,283,350 of those
shares are issuable upon the exercise of warrants and up to 938,462 of those
shares are issuable upon the conversion of Series B Convertible Preferred Stock.
We are unable to predict the effect that sales of these shares 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.
FORWARD-LOOKING STATEMENTS
This prospectus contains "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933, as amended. All statements, other
than statements of historical facts, included in, or incorporated by reference
into this prospectus, are forward-looking statements. In addition, when used in
this document, the words "anticipate", "estimate", "project", and similar
expressions are intended to identify forward-looking statements. These
forward-looking statements are subject to various risks or uncertainties and
assumptions. Should one or more of these risks or uncertainties materialize, or
should underlying assumptions prove incorrect, actual results may vary
materially from those anticipated, estimated or projected. Although we believe
that the expectations reflected in these forward-looking statements are
reasonable, no assurance can be given that such expectations will prove to have
been correct. These statements are only predictions and involve known and
unknown risks, uncertainties and other factors, including the risks outlined
under "Risk Factors," that may cause our or our industry's actual results,
levels of activity, performance or achievements to be materially different from
future results, levels of activity, performance or achievements expressed or
implied by these forward-looking statements.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, levels of
activity, performance or achievements. Moreover, neither we nor any other person
assumes responsibility for the accuracy and completeness of these statements. We
are under no duty to update any of the forward-looking statements after the date
of this prospectus to conform these statements to actual results unless required
by law.
USE OF PROCEEDS
Proceeds from this offering will be used for general operating costs, capital
expenditures and working capital needs; for the development of administrative
and other support services necessary to support these activities; for
acquisitions; and other general corporate purposes as necessary. However, the
Company does not have any specific targets for the use of proceeds at this time.
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PLAN OF DISTRIBUTION
We may offer our common stock:
- directly to purchasers;
- to or through underwriters;
- through dealers, agents or institutional investors; or
- through a combination of such methods.
Regardless of the method used to sell the securities, we will provide a
prospectus supplement that will disclose:
- the identity of any underwriters, dealers, agents or investors who purchase
the securities;
- the material terms of the distribution, including the amount sold and the
consideration paid;
- the amount of any compensation, discounts or commissions to be received by
the underwriters, dealers or agents;
- the terms of any indemnification provisions, including indemnification from
liabilities under the federal securities laws; and
- the nature of any transaction by an underwriter, dealer or agent during the
offering that is intended to stabilize or maintain the market price of the
securities.
We may sell our common stock at fixed prices, which may change, at market
prices prevailing at the time of sale, at prices related to prevailing market
prices or at negotiated prices.
In connection with the sale of our common stock, underwriters may receive
compensation from us or from purchasers of our common stock in the form of
discounts, concessions or commissions. Underwriters, dealers and agents that
participate in the distribution of our common stock may be deemed to be
underwriters. Discounts or commissions they receive and any profit on their
resale of our common stock may be considered underwriting discounts and
commissions under the Securities Act of 1933.
We may agree to indemnify underwriters, dealers and agents who participate
in the distribution of our common stock against various liabilities, including
liabilities under the Securities Act of 1933. We may also agree to contribute to
payments, which the underwriters, dealers or agents may be required to make in
respect of these liabilities. We may authorize dealers or other persons who act
as our agents to solicit offers by various institutions to purchase our common
stock from us under contracts, which provide for payment and delivery on a
future date. We may enter into these contracts with commercial and savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions and others. If we enter into these agreements concerning
our common stock, we will indicate that in the prospectus supplement.
In connection with an offering of our common stock, underwriters may engage
in transactions that stabilize, maintain or otherwise affect the price of our
common stock. Specifically, underwriters may over-allot in connection with the
offering, creating a syndicate short position in our common stock for their own
account. In addition, underwriters may bid for, and purchase, our common stock
in the open market to cover short positions or to stabilize the price of our
common stock. Finally, underwriters may reclaim selling concessions allowed for
distributing our common stock in the offering if the underwriters repurchase
previously distributed common stock in transactions to cover short positions, in
stabilization transactions or otherwise. Any of these activities may stabilize
or maintain the market price of our common stock above independent market
levels. Underwriters are not required to engage in any of these activities and
may end any of these activities at any time. Agents and underwriters may engage
in transactions with, or perform services for, us and our affiliates in the
ordinary course of business.
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LEGAL MATTERS
The legality of the shares offered hereby is being passed upon for
Datalink.net by:
Greenberg, Glusker, Fields, Claman, Machtinger & Kinsella LLP
1900 Avenue of the Stars, Suite 2100
Los Angeles, California 90067.
EXPERTS
The annual 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, 2000 (SEC File No. 1-15569).
(b) Datalink.net's quarterly report on Form 10-QSB for the quarter
ended September 30, 2000 (SEC File No. 1-15569).
(c) Datalink.net's quarterly report on Form 10-QSB for the quarter
ended June 30, 2000 (SEC File No. 1-15569).
(d) Datalink.net's Form 8-K filed on October 16, 2000.
(e) Datalink.net's Proxy Statements for its Annual Meeting held on
August 14, 2000 and the Special Meeting to be held on January 11,
2001.
(f) The description of Datalink.net's shares contained in the
registration statement on Form 8-A filed on December 15, 2000.
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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 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, Inc. 1735 Technology Drive, Suite 790, San Jose,
California 95110, telephone (408) 367-1700, and directed to the attention of
Charles K. Dargan, Chief Financial Officer.
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........................................... $1,500.00
Legal Fees and Expenses..................................... $1,500.00
Accounting Fees and Expenses................................ $2,500.00
Miscellaneous............................................... $ 200.00
---------
TOTAL....................................................... $5,700.00
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
The only statute, charter provision, bylaw, contract, or other
arrangement 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,
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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 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.
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ITEM 16. EXHIBITS.
Exhibit
Number Description
------- -----------
5.1 Opinion of Greenberg Glusker Fields Claman & Machtinger
LLP regarding the legality of the securities being
registered.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Greenberg Glusker Fields Claman & Machtinger
LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (contained in the signature page
hereof).
________________________________________________________________________________
ITEM 17. UNDERTAKINGS
(1) We hereby undertake:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events 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 additional or changed 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, each post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered, and the
offering of securities at that time shall be deemed to be the initial
bona fide offering.
(c) To remove from registration by means of a post-effective amendment any
of the securities that remain unsold at the termination of the
offering.
(2) We hereby undertake that, for the purposes of determining any liability
under the Securities Act, each filing of our 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.
(3) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been advised
that, in the opinion of the Securities and Exchange Commission, such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities
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(other than our payment of expenses incurred or paid by a director, officer
or controlling person in the successful defense of any action, suit or
proceeding) is asserted by our directors, officers or controlling persons
in connection with the securities being registered, we will, unless in the
opinion of our counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of
whether indemnification is against public policy as expressed in the Act
and will be governed by the final adjudication of such issue.
(4) We also undertake that we will:
(a) For determining any liability under the Securities Act, treat the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by us under the Rule 424(b)(1), or (4) or
497(h) under the Securities Act as part of this registration statement
as of the time the Securities and Exchange Commission declared it
effective.
(b) For determining any liability under the Securities Act, treat each
post-effective amendment that contains a form of prospectus as a new
registration statement for the securities offered in the registration
statement, and that offering of the securities at that time as the
bona fide offering of those securities.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, we
certify that we have reasonable grounds to believe that our company meets all of
the requirements for filing on Form S-3 and we have authorized this registration
statement to be signed on our behalf by the undersigned, thereunto duly
authorized, in San Jose, California, on January 4, 2001.
By: /s/ Anthony N. LaPine
Anthony N. LaPine,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL ME BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Anthony N. LaPine and Charles K. Dargan his true
and lawful attorneys-in-fact and agents, each acting alone, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all amendments to this Registration
Statement, including post-effective amendments, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, and hereby ratifies and confirms all his said
attorneys-in-fact and agents, each acting alone, or his substitute or
substitutes may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
/s/ Anthony N. LaPine Chief Executive Officer, President and January 4, 2001
Anthony N. LaPine Chairman of the Board
/s/ Frederick M. Hoar Director January 4, 2001
Frederick M. Hoar
/s/ Charles K. Dargan, II Director; Chief Financial and Accounting January 4, 2001
Charles K. Dargan, II Officer
/s/ Jason Pavona Director January 4, 2001
Jason Pavona
</TABLE>
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