As filed with the Securities and Exchange Commission on September 8, 1999.
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
______________________________
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
______________________________
I-LINK INCORPORATED
(Exact name of registrant as specified in its charter)
Florida 59-2291344
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
13751 S. Wadsworth Park Drive, Suite 200, Draper, UT 84020 (801) 576-5000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
1997 Recruitment Stock Option Plan
(Full Title of Plan)
______________________________
<PAGE>
John W. Edwards, Chairman, President and Chief Executive Officer
I-Link Incorporated
13751 S. Wadsworth Park Drive, Suite 200, Draper, UT 84020, (801) 576-5000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
______________________________
Copies to:
Ralph V. De Martino, Esquire
De Martino Finkelstein Rosen & Virga
1818 N Street, NW, Suite 400
Washington, DC 20036-2492
(202) 659-0494 (Telephone)
(202) 659-1290 (Facsimile)
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, check the following box: [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum
Recent Aggregate Amount of
Title of Securities Amount to be Market Price Offering Registration
to be Registered Registered Per Share(1) Price (1) Fee (1)
- -------------------- ------------ ------------ --------- ------------
Options (2) 4,400,000 ----- ----- -----
Common Stock,
$.007 par value (2) 4,400,000 $3.375 $14,850,000 $4,128.30
Total $4,128.30
</TABLE>
(1) Calculated in accordance with Rule 457(h) under the Securities Act of
1933, as amended, based upon the average of the bid and asked prices
for the common stock on September 2, 1999.
(2) Represents the maximum number of securities which may be granted
pursuant to the 1997 Recruitment Stock Option Plan (the "1997 Plan").
In addition to such shares this registration statement covers,
pursuant to Rule 416, such additional number of shares as may be
required by reason of the operation of the antidilution provisions
of the 1997 Plan and/or the option.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in Part I of the
registration statement will be sent or given to employees, officers,
directors, and other eligible persons under the 1997 Recruitment Stock
Option Plan (the "1997 Plan") as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act"). Such documents
are not required to be, and are not, filed with the Securities and
Exchange Commission (the "SEC") either as part of the registration
statement or as prospectuses or prospectus supplements pursuant to Rule
424. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this Form S-8
taken together, constitute a prospectus that meets the requirements of
Section 10(a) of the Securities Act.
Item 2. Registrant Information and Plan Information.
A copy of the documents or portions of documents containing the
information specified in Part I will be provided to employees, officers,
directors and others eligible to participate in the 1997 Plan at such
time as those persons become participants in the 1997 Plan, or as soon as
practicable after the date this Form S-8 is filed with the SEC, which
ever is later. Moreover, upon written or oral request, the Company shall
provide to eligible persons under the 1997 Plan, any document or part
thereof incorporated by reference in Item 3 of Part II of the registration
statement (which are incorporated by reference in this Section 10(a)
prospectus), or other documents required to be delivered to eligible
persons pursuant to Rule 428(b). Such requests may be made to the
attention of the following:
David Hardy, Esq.
I-Link Incorporated
13751 S. Wadsworth Park Drive
Suite 200
Draper, UT 84020
(801) 576-5000
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Documents by Reference.
The following documents, including any amendments thereto, filed by
the Company with the SEC are incorporated by reference in this
registration statement and shall be deemed to be a part hereof from the
date of filing of such documents.
(a) The Company's latest annual report, whether or not filed
pursuant to Section 13(a) or 15(d) of the Exchange Act of
1934, as amended (the "Exchange Act").
(b) All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to
the date of this registration statement and prior to the
filing of a post-effective amendment which indicates that all
of the securities offered hereby have been sold or which
deregisters all securities then remaining unsold.
(c) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covering
documents referred to in paragraph (b) above.
(d) The description of the Company's common stock contained in
the Company's registration statement on Form S-2 filed
pursuant to the Securities Act (File No. 333-70645) and
reports filed for the purpose of updating that description.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Officers and Directors.
Section 607.0850 of the Florida Business Corporation Act empowers a
corporation to indemnify any person who was or is a party to a proceeding
by reason of the fact that he was or is an officer, director, employee or
agent of the corporation against liability incurred in connection with such
proceeding. Such person must have acted in good faith and in a manner
<PAGE>
reasonably believed to be in, or not opposed to, the best interests of the
corporation. With respect to any criminal proceeding, such person must
have had no reasonable cause to believe his conduct was unlawful.
Moreover, indemnification of officers, directors, employees or agents of
the Company is only appropriate when determined to be proper under the
applicable standard of conduct by a majority vote of a quorum of the
Company's board of directors, excluding any directors seeking
indemnification.
Indemnification is not exclusive under the Florida Business
Corporation Act, however, indemnification is not permitted to be made on
behalf of any person if a judgment or final adjudication establishes:
(1) a violation of the criminal law, unless such person had reasonable
cause to believe his conduct was lawful or no reasonable cause to believe
his conduct was unlawful; (2) such person derived an improper personal
benefit from the transaction; (3) as to any director, such proceeding
arose from an unlawful distribution under Section 607.0834 of the Florida
Business Corporation Act; or (4) willful misconduct or a conscious
disregard for the best interests of the Company in a proceeding by the
corporation or a stockholder.
The Company's bylaws provide that the Company shall indemnify any such
person to the fullest extent provided by law and empowers the Company to
purchase and maintain insurance on behalf of any such person.
The Company previously entered into indemnification agreements with
certain officers and directors of the Company for indemnification against
expenses (including attorneys' fees, through all proceedings, trials, and
appeals), judgments, and amounts paid in settlement actually and reasonably
incurred in connection with any threatened, pending, or contemplated
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative, arising from any actual or alleged breach of duty, neglect,
effort, or other action taken or omitted, solely in the capacity as an
officer and/or a director of the Company; provided that no indemnification
will be made in respect of any acts or omissions: (1) involving gross
negligence or willful misconduct, (2) involving libel or slander, or (3)
based upon or attributable to gaining, directly or indirectly, any profit
or advantage to which he or she was not legally entitled.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in
the opinion of the SEC, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
<PAGE>
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits are filed herewith as part of this registration
statement and are specifically incorporated herein by reference:
Exhibit No. Exhibit
4 1997 Recruitment Stock Option Plan of Medcross, Inc. (now
known as I-Link Incorporated)
5 Opinion of Counsel
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Counsel (included in Exhibit 5)
24 Power of Attorney (included in signature page)
Item 9. Undertakings.
The Company hereby undertakes:
(a) Rule 415 Offering.
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this registration statement to
include any material information with respect to the plan of distribution
not previously disclosed in the registration statement or any material
change to such information in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities 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.
(b) Subsequent Exchange Act Documents Incorporated by Reference.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act,
<PAGE>
that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Indemnification.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company has been advised that in the opinion of the SEC 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 (other than the payment by the
Company of expenses incurred or paid by a director, officer, or
controlling person of the Company in the successful defense of any action,
suit, or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the Company
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 Securities Act and will be governed by the final
adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Draper, Utah, on September 8,
1999.
I-LINK INCORPORATED
By: /s/ John W. Edwards
John W. Edwards, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as
amended, this registration statement has been signed below by the following
persons in the capacities and on the date indicated.
Each person whose signature appears below in so signing constitutes
and appoints John W. Edwards and David E. Hardy and each of them acting
alone, his true and lawful attorney-in-fact, with full power of
substitution, for him in any and all capacities, to execute and cause to be
filed with the Securities and Exchange Commission any and all amendments
and exhibits thereto and other documents in connection therewith, and
hereby ratifies and confirms all that said attorney-in-fact or his
substitute or substitutes may do or cause to be done by virtue hereof.
Signature Title Date
/s/ John W. Edwards Chairman of the Board, September 8, 1999
John W. Edwards President and Chief
Executive Officer
/s/ John M. Ames Senior Vice President, September 8, 1999
John M. Ames Chief Operating Officer
and Acting Chief
Financial Officer
/s/ David E. Hardy Secretary September 8, 1999
David E. Hardy
/s/ Henry Y.L. Toh Director and Assistant September 8, 1999
Henry Y.L. Toh Secretary
<PAGE>
/s/ Thomas A. Keenan Director September 8, 1999
Thomas A. Keenan
/s/ Joseph A. Cohen Director September 8, 1999
Joseph A. Cohen
/s/ David R. Bradford Director September 8, 1999
David R. Bradford
<PAGE>
EXHIBIT 4
1997 RECRUITMENT STOCK OPTION PLAN
OF MEDCROSS, INC.
ARTICLE I
ESTABLISHMENT AND PURPOSE
Section 1.1 Medcross, Inc. (the "Company"), a Florida
corporation, hereby establishes a stock option plan to be named the 1997
Recruitment Stock Option Plan (the "1997 Plan").
Section 1.2 The purpose of this 1997 Plan is to induce persons
who are officers, directors, employees and consultants of the Company or
any of its subsidiaries who are in a position to contribute materially to
the Company's prosperity to remain with the Company, to offer said persons
incentives and rewards in recognition of their contributions to the
Company's progress, and to encourage said persons to continue to promote
the best interests of the Company. This 1997 Plan provides for the grant
of options to purchase shares of common stock of the Company, par value
$.007 per share (the "Common Stock") which qualify as incentive stock
options ("Incentive Options") under Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code"), to persons who are employees, as
well as options which do not so qualify ("Non-Qualified Options") to be
issued to persons or consultants, including those who are not employees.
This 1997 Plan also provides for grants of stock appreciation rights
("SARs") in connection with the grant of options under this 1997 Plan.
Incentive Options and Non-Qualified Options may be collectively referred to
hereinafter as the "Options" as the context may require.
Section 1.3 All options and other rights previously granted by
the Company under any other plan previously adopted by the Company shall
continue to be governed by such plan. All Options granted hereunder on or
after the date that this 1997 Plan has been approved and adopted by the
Company's board of directors (the "Board of Directors") shall be governed
by the terms and conditions of this 1997 Plan unless the terms of such
Option specifically indicate that it is not to be so governed.
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<PAGE>
ARTICLE II
ADMINISTRATION
Section 2.1 All determinations under this 1997 Plan concerning
the selection of persons eligible to receive awards under this 1997 Plan
and with respect to the timing, pricing and amount of an award under this
1997 Plan shall be made by the administrator (the "Administrator") of this
1997 Plan. The Administrator shall be either: (a) the Board of Directors
or (b) in the discretion of the Board of Directors by a committee (the
"Committee") of the Board of Directors of two or more members of the Board
of Directors, each of whom is a "Non-Employee Director" as such term is
defined by Rule 16b-3 (as such rule may be amended from time to time,
"Rule 16b-3") under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). In such case, a majority of the total number of members
of the Committee shall be necessary to constitute a quorum; and (i) the
affirmative act of a majority of the members present at any meeting at
which a quorum is present, or (ii) the approval in writing by a majority of
the members of the Committee shall be necessary to constitute action by the
Committee.
With respect to persons subject to Section 16 of the Exchange Act,
transactions under this 1997 Plan are intended to comply with all
applicable conditions of Rule 16b-3 or its successors under the Exchange
Act. To the extent that any provision of this 1997 Plan or action by the
Administrator fails to so comply, it shall be deemed to be null and void,
to the extent permitted by law and deemed advisable by the Administrator.
Section 2.2 The provisions of this 1997 Plan relating to
Incentive Options are intended to comply in every respect with Section 422
of the Code ("Section 422") and the regulations promulgated thereunder. In
the event that any future statute or regulation shall modify Section 422,
this 1997 Plan shall be deemed to incorporate by reference such
modification. Any stock option agreement relating to the grant of any
Incentive Option pursuant to this 1997 Plan, which option is outstanding
and unexercised at the time that any modifying statute or regulation
becomes effective, shall also be deemed to incorporate by reference such
modification, and no notice of such modification need be given to the
Optionee (as hereinafter defined). Any stock option agreement relating to
an Incentive Option shall provide that the Optionee (as hereinafter
defined) hold the stock received upon exercise of such Incentive Option for
a minimum of two years from the date of grant of the Incentive Option and
one year from the date of exercise of such Incentive Option, absent the
written approval, consent or waiver of the Administrator.
Section 2.3 If any provision of this 1997 Plan is determined
2
<PAGE>
to disqualify the shares of Common Stock purchasable upon exercise of an
Incentive Option granted under this 1997 Plan from the special tax
treatment provided by Section 422, such provision shall be deemed to
incorporate by reference the modification required to qualify such shares
of Common Stock for said tax treatment.
Section 2.4 The Company shall grant Options under this 1997
Plan in accordance with determinations made by the Administrator pursuant
to the provisions of this 1997 Plan. All Options granted pursuant to this
1997 Plan shall be clearly identified as Incentive Options or Non-Qualified
Options. The Administrator may from time to time adopt (and thereafter
amend or rescind) such rules and regulations for carrying out this 1997
Plan and take such action in the administration of this 1997 Plan, not
inconsistent with the provisions hereof, as it shall deem proper. The
Board of Directors or, subject to the supervision of the Board of
Directors, the Committee, as the Administrator, shall have plenary
discretion, subject to the express provisions of this 1997 Plan, to
determine which officers, directors, employees and consultants shall be
granted Options, the number of shares subject to each Option, the time or
times when an Option may be exercised (whether in whole or in
installments), whether Rights under Section 7.6 hereof shall be granted,
the terms and provisions of the respective option agreements (which need
not be identical), including such terms and provisions which may be amended
from time to time as shall be required, in the judgment of the
Administrator, to conform to any change in any law or regulation applicable
hereto, and to make all other determinations deemed necessary or advisable
for the administration of this 1997 Plan. The interpretation and
construction of any provision of this 1997 Plan by the Administrator
(unless otherwise determined by the Board of Directors) shall be final,
conclusive and binding upon all persons.
Section 2.5 No member of the Administrator shall be liable for
any action or determination made in good faith with respect to
administration of this 1997 Plan or the Options granted hereunder. A
member of the Administrator shall be indemnified by the Company, pursuant
to the Company's bylaws, for any expenses, judgments or other costs
incurred as a result of a lawsuit filed against such member claiming any
rights or remedies arising out of such member's participation in the
administration of this 1997 Plan.
ARTICLE III
TOTAL NUMBER OF SHARES TO BE OPTIONED
Section 3.1 There shall be reserved for issuance or transfer
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<PAGE>
upon exercise of Options to be granted from time to time under this 1997
Plan an aggregate of [4,400,000] shares of Common Stock of the Company
(subject to adjustment as provided in Article VIII hereof). The shares
issued upon exercise of any Options granted under this 1997 Plan may be
shares of Common Stock previously issued and reacquired by the Company at
any time or authorized but unissued shares of Common Stock, as the Board of
Directors from time to time may determine.
Section 3.2 In the event that any Options outstanding under
this 1997 Plan for any reason expire or are terminated without having been
exercised in full or shares of Common Stock subject to Options are
surrendered in whole or in part pursuant to Rights granted under
Section 7.6 hereof (except to the extent that shares of Common Stock are
issued as payment to the holder of the Option upon such surrender) the
unpurchased shares of Common Stock subject to such Option and any such
surrendered shares of Common Stock may again be available for transfer
under this 1997 Plan.
Section 3.3 No Options shall be granted pursuant to this 1997
Plan to any Optionee after the tenth anniversary of the date that this 1997
Plan is adopted by the Board of Directors.
ARTICLE IV
ELIGIBILITY
Section 4.1 Non-Qualified Options may be granted pursuant to
this 1997 Plan to officers, directors, employees and consultants of the
Company (or any of its subsidiaries) selected by the Administrator, and
Incentive Options may be granted pursuant to this 1997 Plan only to
employees (including officers and directors who are also employees) of the
Company (or any of its subsidiaries) selected by the Administrator.
Persons granted Options pursuant to this 1997 Plan are referred to herein
as "Optionees." For purposes of determining who is an employee with
respect to eligibility for Incentive Options, Section 422 shall govern.
The Administrator may determine (in its sole discretion) that any person
who would otherwise be eligible to be granted Options shall, nonetheless,
be ineligible to receive any award under this 1997 Plan.
Section 4.2 The Administrator will (in its discretion)
determine the persons to be granted Options, the time or times at which
Options shall be granted, the number of shares of Common Stock subject to
each Option, the terms of a vesting or forfeiture schedule, if any, the
type of Option issued, the period during which such Options may be
exercised, the manner in which Options may be exercised and all other terms
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<PAGE>
and conditions of the Options; provided, however, no Option will be granted
which has terms or conditions inconsistent with those stated in Articles V
and VI hereof. Relevant factors in making such determinations may include
the value of the services rendered by the respective Optionee, his or her
present and potential contributions to the Company, and such other factors
which are deemed relevant in accomplishing the purpose of this 1997 Plan.
ARTICLE V
TERMS AND CONDITIONS OF OPTIONS
Section 5.1 Each Option granted under this 1997 Plan shall be
evidenced by a stock option certificate and agreement (the "Stock Option
Certificate and Agreement") in a form consistent with this 1997 Plan,
provided that the following terms and conditions shall apply:
(a) The price at which each share of Common Stock covered by an
Option may be purchased shall be set forth in the Stock Option Certificate
and Agreement and shall be determined by the Administrator, provided that
the option price for any Incentive Option shall not be less than the "fair
market value" of the shares of Common Stock at the time of grant determined
in accordance with Section 5.1(b) below. Notwithstanding the foregoing, if
an Incentive Option to purchase shares of Common Stock is granted pursuant
to this 1997 Plan to an Optionee who, on the date of the grant, directly or
indirectly owns more than ten percent (10%) of the voting power of all
classes of capital stock of the Company (or its parent or subsidiary), not
including the shares of Common Stock obtainable upon exercise of the
Option, the minimum exercise price of such Option shall be not less than
one hundred ten percent (110%) of the "fair market value" of the shares of
Common Stock on the date of grant determined in accordance with
Section 5.1(b) below.
(b) The "fair market value" shall be determined by the Administrator,
which determination shall be binding upon the Company and its officers,
directors, employees and consultants. The determination of the fair market
value shall be based upon the following: (i) if the shares of Common Stock
are not listed and traded upon a recognized securities exchange and there
is no report of stock prices with respect to the shares of Common Stock
published by a recognized stock quotation service, on the basis of the
recent purchases and sales of the shares of Common Stock in arms-length
transactions; or (ii) if the shares of Common Stock are not then listed and
traded upon a recognized securities exchange or quoted on the NASDAQ Stock
Market, and there are reports of stock prices by a recognized quotation
service, upon the basis of the last reported sale or transaction price of
such stock on the date of grant as reported by a recognized quotation
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<PAGE>
service, or, if there is no last reported sale or transaction price on that
day, then upon the basis of the mean of the last reported closing bid and
closing asked prices for such stock on that day or on the date nearest
preceding that day; or (iii) if the shares of Common Stock shall then be
listed and traded upon a recognized securities exchange or quoted on the
NASDAQ Stock Market, upon the basis of the last reported sale or
transaction price at which shares of Common Stock were traded on such
recognized securities exchange on the date of grant or, if the shares of
Common Stock were not traded on such date, upon the basis of the last
reported sale or transaction price on the date nearest preceding that date.
The Administrator shall also consider such other factors relating to the
fair market value of the shares of Common Stock as it shall deem
appropriate.
(c) For the purpose of determining whether an Optionee owns more than
ten percent (10%) of the voting power of all classes of stock of the
Company, an Optionee is considered to own those shares which are owned
directly or indirectly through brothers and sisters (including half-blooded
siblings), spouse, ancestors and lineal descendants; and proportionately as
a shareholder of a corporation, a partner of a partnership, and/or a
beneficiary of a trust or an estate that owns shares of the Company.
(d) Notwithstanding any other provision of this 1997 Plan, in
accordance with the provisions of Section 422(d) of the Code, to the extent
that the aggregate fair market value (determined at the time the Option is
granted) of the shares of Common Stock of the Company with respect to which
Incentive Options (without reference to this provision) are exercisable for
the first time by any individual in any calendar year under any and all
stock option plans of the Company, its subsidiary corporations and its
parent (if any) exceeds $100,000, such Options shall be treated as
Non-Qualified Options.
(e) An Optionee may, in the Administrator's discretion, be granted
more than one Incentive Option or Non-Qualified Option during the duration
of this 1997 Plan, and may be issued a combination of Non-Qualified Options
and Incentive Options; provided, however, that non-employees are not
eligible to receive Incentive Options.
(f) The duration of any Option and any Right related thereto shall be
within the sole discretion of the Administrator; provided, however, that
any Incentive Option granted to a ten percent (10%) or less stockholder or
any Non-Qualified Option shall, by its terms, be exercised within ten years
after the date the Option is granted and any Incentive Option granted to a
greater than ten percent (10%) stockholder shall, by its terms, be
exercised within five years after the date the Option is granted.
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<PAGE>
(g) An Option and any Right related thereto shall not be transferable
by the Optionee other than by will, or by the laws of descent and
distribution. An Option may be exercised during the Optionee's lifetime
only by the Optionee.
(h) The Administrator may impose such other or further conditions on
any transaction under the 1997 Plan, including without limitation, the
grant or award of any Option or the exercise or other disposition thereof,
as it, in its discretion, may deem necessary or advisable in order to
exempt the transaction from Section 16(b) of the Exchange Act, including
without limitation thereto, the approval or ratification of the transaction
by shareholders or a six-month restriction on disposition of the Option or
the Common Stock issuable upon exercise thereof.
ARTICLE VI
EMPLOYMENT OR SERVICE OF OPTIONEE
Section 6.1 If the employment or service of an Optionee is
terminated for cause, the option rights of such Optionee, both accrued and
future, under any then outstanding Non-Qualified or Incentive Option shall
terminate immediately. "Cause" shall mean incompetence in the performance
of duties, disloyalty, dishonesty, theft, embezzlement, unauthorized
disclosure of patents, processes or trade secrets of the Company,
individually or as an employee, partner, associate, officer or director of
any organization. The determination of the existence and the proof of
"cause" shall be made by the Administrator and, subject to the review of
any determination made by the Administrator, such determination shall be
binding on the Optionee and the Company.
Section 6.2 If the employment or service of the Optionee is
terminated by either the Optionee or the Company for any reason other than
for cause, death, or for disability, as defined in Section 22(e)(3) of the
Code, the option rights of such Optionee under any then outstanding Non-
Qualified or Incentive Option shall, subject to the provisions of
Section 5.1(h) hereof, be exercisable by such Optionee at any time prior to
the expiration of the Option or within three months after the date of such
termination, whichever period of time is shorter, but only to the extent of
the accrued right to exercise the Option at the date of such termination.
Section 6.3 In the case of an Optionee who becomes disabled,
as defined by Section 22(e)(3) of the Code, the option rights of such
Optionee under any then outstanding Non-Qualified or Incentive Option
shall, subject to the provisions of Section 5.1(h) hereof, be exercisable
by such Optionee at any time prior to the expiration of the Option or
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<PAGE>
within one year after the date of termination of employment or service due
to disability, whichever period of time is shorter, but only to the extent
of the accrued right to exercise the Option at the date of such
termination.
Section 6.4 In the event of the death of an Optionee, the
option rights of such Optionee under any then outstanding Non-Qualified or
Incentive Option shall be exercisable by the person or persons to whom
these rights pass by will or by the laws of descent and distribution, at
any time prior to the expiration of the Option or within three years after
the date of death, whichever period of time is shorter, but only to the
extent of the accrued right to exercise the Option at the date of death.
If a person or estate acquires the right to exercise a Non-Qualified or
Incentive Option by bequest or inheritance, the Administrator may require
reasonable evidence as to the ownership of such Option, and may require
such consents and releases of taxing authorities as the Administrator may
deem advisable.
Section 6.5 The Administrator may also provide that an
employee must be continuously employed by the Company for such period of
time as the Administrator, in its discretion, deems advisable before the
right to exercise any portion of an Option granted to such employee will
accrue, and may also set such other targets, restrictions or other terms
relating to the employment of the Optionee which targets, restrictions, or
terms must be fulfilled or complied with, as the case may be, prior to the
exercise of any portion of an Option granted to any employee.
Section 6.6 Options granted under this 1997 Plan shall not be
affected by any change of duties or position, so long as the Optionee
continues in the service of the Company.
Section 6.7 Nothing contained in this 1997 Plan, or in any
Option granted pursuant to this 1997 Plan, shall confer upon any Optionee
any right with respect to continuance of employment or service by the
Company nor interfere in any way with the right of the Company to terminate
the Optionee's employment or service or change the Optionee's compensation
at any time.
ARTICLE VII
PURCHASE OF SHARES
Section 7.1 Except as provided in this Article VII, an Option
shall be exercised by tender to the Company of the full exercise price of
the shares of Common Stock with respect to which the Option is exercised
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and written notice of the exercise. The right to purchase shares of Common
Stock shall be cumulative so that, once the right to purchase any shares of
Common Stock has accrued, such shares or any part thereof may be purchased
at any time thereafter until the expiration or termination of the Option.
A partial exercise of an Option shall not affect the right of the Optionee
to exercise the Option from time to time, in accordance with this 1997
Plan, as to the remaining number of shares of Common Stock subject to the
Option. The purchase price of the shares shall be in United States
dollars, payable in cash or by certified bank check. Notwithstanding the
foregoing, in lieu of cash, an Optionee may, with the approval of the
Administrator, exercise his or her Option by tendering to the Company
shares of Common Stock of the Company owned by him or her and having an
aggregate fair market value at least equal to the full exercise price. The
fair market value of any shares of Common Stock so surrendered shall be
determined by the Administrator in accordance with Section 5.1(b) hereof.
Section 7.2 Except as provided in Article VI above, an Option
may not be exercised unless the holder thereof is an officer, director,
employee, or consultant of the Company at the time of exercise.
Section 7.3 No Optionee, or Optionee's executor,
administrator, legatee, or distributee or other permitted transferee, shall
be deemed to be a holder of any shares of Common Stock subject to an Option
for any purpose whatsoever unless and until a stock certificate or
certificates for such shares are issued to such person under the terms of
this 1997 Plan. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the
date such stock certificate is issued, except as provided in Article VIII
hereof.
Section 7.4 If: (i) the listing, registration or qualification
of the Options issued hereunder, or of any securities issuable upon
exercise of such Options (the "Subject Securities") upon any securities
exchange or quotation system or under federal or state law is necessary as
a condition of or in connection with the issuance or exercise of the
Options, or (ii) the consent or approval of any governmental regulatory
body is necessary as a condition of or in connection with the issuance or
exercise of the Options, the Company shall not be obligated to deliver the
certificates representing the Subject Securities or to accept or to
recognize an Option exercise unless and until such listing, registration,
qualification, consent or approval shall have been effected or obtained.
The Company will take reasonable action to so list, register, or qualify
the Options and the Subject Securities, or effect or obtain such consent or
approval, so as to allow for their issuance.
Section 7.5 An Optionee may be required to represent to the
Company as a condition of his or her exercise of Options issued under this
1997 Plan that: (i) the Subject Securities acquired upon exercise of his
or her Option are being acquired by him or her for investment purposes only
and not with a view to distribution or resale, unless counsel for the
Company is then of the view that such a representation is not necessary and
is not required under the Securities Act of 1933, as amended (the
"Securities Act"), or any other applicable statute, law, regulation or
rule; and (ii) that the Optionee shall make no exercise or disposition of
an Option or of the Subject Securities in contravention of the Securities
Act, the Exchange Act or the rules and regulations thereunder. Optionees
may also be required to provide (as a condition precedent to exercise of an
Option) such documentation as may be reasonably requested by the Company to
assure compliance with applicable law and the terms and conditions of this
1997 Plan and the subject Option.
Section 7.6 The Administrator may, in its discretion, grant in
connection with any Option, at any time prior to the exercise thereof, the
right (previously defined as an "SAR" or collectively, the "SARs") to
surrender all or part of the Option to the extent that such Option is
exercisable and receive in exchange an amount (payable in cash, shares of
Common Stock valued at the then fair market value, or a combination thereof
as determined by the Administrator) equal to the difference (the "Spread")
between the then fair market value of the shares of Common Stock issuable
upon the exercise of the Option (or portions thereof surrendered) and the
option price payable upon the exercise of the Option (or portions thereof
surrendered). Such SARs may be included in an Option only under the
following conditions: (a) the SARs will expire no later than the
expiration of the underlying Option; (b) the SARs may be for no more than
one hundred percent (100%) of the Spread; (c) the SARs are transferable
only when the underlying Option is transferable and under the same
conditions; (d) the SARs may be exercised only when the underlying Option
is eligible to be exercised; and (e) the SARs may be exercised only when
the Spread is positive, i.e., when the market price of the stock subject to
the Option exceeds the exercise price of the Option.
Section 7.7 An Option may also be exercised by tender to the
Company of a written notice of exercise together with advice of the
delivery of an order to a broker to sell part or all of the shares of
Common Stock subject to such exercise notice and an irrevocable order to
such broker to deliver to the Company (or its transfer agent) sufficient
proceeds from the sale of such shares to pay the exercise price and any
withholding taxes. All documentation and procedures to be followed in
connection with such a "cashless exercise" shall be approved in advance by
the Administrator.
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ARTICLE VIII
CHANGE IN NUMBER OF OUTSTANDING SHARES OF
STOCK, ADJUSTMENTS, REORGANIZATIONS, ETC.
Section 8.1 In the event that the outstanding shares of Common Stock
of the Company are hereafter increased or decreased or changed into or
exchanged for a different number of shares or kind of shares or other
securities of the Company or of another corporation by reason of
reorganization, merger, consolidation, recapitalization, reclassification,
stock split, combination of shares, or a dividend payable in capital stock,
appropriate adjustment shall be made by the Administrator in the number
and kind of shares for the purchase of which Options may be granted under
this 1997 Plan, including the maximum number that may be granted to any
one person. In addition, the Administrator shall make appropriate
adjustments in the number and kind of shares as to which outstanding
Options, or portions thereof then unexercised, shall be exercisable, to
the end that the Optionee's proportionate interest shall be maintained as
before the occurrence to the unexercised portion of the Option and with a
corresponding adjustment in the option price per share. Any such
adjustment made by the Administrator shall be conclusive.
Section 8.2 The grant of an Option pursuant to this 1997 Plan shall
not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital
or business structure or to merge or to consolidate or to dissolve,
liquidate or sell, or transfer all or any part of its business or assets.
Section 8.3 Upon the dissolution or liquidation of the Company, or
upon a reorganization, merger or consolidation of the Company as a result
of which the outstanding securities of the class then subject to Options
hereunder are changed into or exchanged for cash or property or securities
not of the Company's issue, or upon a sale of substantially all the
property of the Company to an association, person, party, corporation,
partnership, or control group as that term is construed for purposes of the
Exchange Act, this 1997 Plan shall terminate, and all outstanding Options
theretofore granted hereunder shall terminate, unless provision be made in
writing in connection with such transaction for the continuance of this
1997 Plan and/or for the assumption of Options theretofore granted, or the
substitution for such Options of options covering the stock of a successor
employer corporation, or a parent or a subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and prices, in which event
this 1997 Plan and options theretofore granted shall continue in the manner
and under the terms so provided. If this 1997 Plan and unexercised Options
shall terminate pursuant to the foregoing sentence, all persons owning any
unexercised portions of Options then outstanding shall have the right, at
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such time prior to the consummation of the transaction causing such
termination as the Company shall designate, to exercise the unexercised
portions of their Options, including the portions thereof which would, but
for this Section 8.3 not yet be exercisable.
ARTICLE IX
DURATION, AMENDMENT AND TERMINATION
Section 9.1 The Board of Directors may at any time terminate this
1997 Plan or make such amendments hereto as it shall deem advisable and in
the best interests of the Company, without action on the part of the
shareholders of the Company unless such approval is required pursuant to
Section 422 of the Code or the regulations thereunder or other federal or
state law; provided, however, that no such termination or amendment shall,
without the consent of the individual to whom any Option shall theretofore
have been granted, materially adversely affect or impair the rights of such
individual under such Option. Pursuant to Section 422(b) of the Code, no
Incentive Option may be granted pursuant to this 1997 Plan after ten years
from the date this 1997 Plan is adopted or the date this 1997 Plan is
approved by the shareholders of the Company, whichever is earlier.
ARTICLE X
RESTRICTIONS
Section 10.1 Any Options and shares of Common Stock issued pursuant
to this 1997 Plan shall be subject to such restrictions on transfer and
limitations as shall, in the opinion of the Administrator, be necessary or
advisable to assure compliance with the laws, rules and regulations of the
United States government or any state or jurisdiction thereof. In
addition, the Administrator may in any Stock Option Certificate and
Agreement impose such other restrictions upon the disposition or exercise
of an Option or upon the sale or other disposition of the shares of Common
Stock deliverable upon exercise thereof as the Administrator may, in its
sole discretion, determine. By accepting an award pursuant to this 1997
Plan, each Optionee shall thereby agree to any such restrictions.
Section 10.2 Any certificate issued to evidence shares of Common
Stock issued pursuant to an Option shall bear such legends and statements
as the Committee, the Board of Directors or counsel to the Company shall
deem advisable to assure compliance with the laws, rules and regulations of
the United States government or any state or jurisdiction thereof. No
shares of Common Stock will be delivered pursuant to exercise of the
Options granted under this 1997 Plan until the Company has obtained such
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consents or approvals from such regulatory bodies of the United States
government or any state or jurisdiction thereof as the Committee, the Board
of Directors or counsel to the Company deems necessary or advisable.
ARTICLE XI
FINANCIAL ASSISTANCE
Section 11.1 The Company is vested with authority under this 1997
Plan to assist any employee to whom an Option is granted hereunder
(including any officer or director of the Company or any of its
subsidiaries who is also an employee) in the payment of the purchase price
payable on exercise of such Option, by lending the amount of such purchase
price to such employee on such terms and at such rates of interest and upon
such security (or unsecured) as shall have been authorized by or under
authority of the Board of Directors. Any such assistance shall comply with
the requirements of Regulation G promulgated by the Board of the Federal
Reserve System, as amended from time to time, and any other applicable law,
rule or regulation.
ARTICLE XII
APPLICATION OF FUNDS
Section 12.1 The proceeds received by the Company from the issuance
and sale of Common Stock upon exercise of Options granted pursuant to this
1997 Plan are to be added to the general funds of the Company and used for
its corporate purposes as determined by the Board of Directors.
ARTICLE XIII
EFFECTIVENESS OF PLAN
Section 13.1 This 1997 Plan shall become effective upon adoption by
the Board of Directors, and approval by the Shareholders and Options may
be issued hereunder from and after that date subject to the provisions of
Section 3.3 above. This 1997 Plan must be approved by the Company's
shareholders in accordance with the applicable provisions (relating to the
issuance of stock or options) of the Company's governing documents and
state law or, if no such approval is prescribed therein, by the affirmative
vote of the holders of a majority of the votes cast at a duly held
shareholders meeting at which a quorum representing a majority of all the
Company's outstanding voting stock is present and voting (in person or by
proxy) or, without regard to any required time period for approval, by any
other method permitted by Section 422 of the Code and the regulations
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thereunder.
IN WITNESS WHEREOF, pursuant to the approval of this 1997 Plan by the
Board of Directors, this 1997 Plan is executed and adopted subject to
Shareholder approval as of the 10th day of February, 1997.
MEDCROSS, INC.
ATTEST:
By: /s/ David E. Hardy By: /s/ John W. Edwards
Secretary Its: President
[CORPORATE SEAL]
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EXHIBIT 5
DE MARTINO FINKELSTEIN ROSEN & VIRGA
A PARTNERSHIP CONSISTING OF PROFESSIONAL CORPORATIONS
1818 N STREET, N.W., SUITE 400
WASHINGTON, D.C. 20036-2492
___
TELEPHONE (202) 659-0494 * TELECOPIER (202) 659-1290
E-MAIL ADDRESS: [email protected]
PAULA A. ARGENTO NEW YORK OFFICE
NEIL R.E. CARR _____
RALPH V. DE MARTINO 90 BROAD STREET, SUITE 1700
STEVEN R. FINKELSTEIN* NEW YORK, NEW YORK 10004-2005
CAROLINE GEORGE TELEPHONE (212)363-2500
B. HENRY PEREZ TELECOPIER (212) 363-2723
KEITH H. PETERSON*
JEFFREY S. ROSEN
GERARD A. VIRGA*
*NOT ADMITTED TO DISTRICT OF COLUMBIA BAR
September 8, 1999
Board of Directors
I-Link Incorporated
13751 S. Wadsworth Park Drive, Suite 200
Draper, Utah 84020
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to I-Link Incorporated, a Florida
corporation (the "Company"), in connection with the preparation and
filing by the Company of a registration statement on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended,
relating to stock options (the "Options") to purchase up to 4,400,000
shares of Common Stock, $.007 par value (the "Common Stock") and relating
to a maximum of 4,400,000 shares of Common Stock issuable upon exercise
of Options granted or to be granted pursuant to the Company's 1997
Recruitment Stock Option (the "1997 Plan").
<PAGE>
Board of Directors
I-Link Incorporated
September 8, 1999
Page 2
We have examined the 1997 Plan, the Articles of Incorporation, as
amended, and the By-Laws of the Company, the minutes of the various
meetings and consents of the Company's Board of Directors, originals or
copies of such records of the Company, agreements, certificates of public
officials, certificates of officers and representatives of the Company
and others, and such other documents, certificates, records,
authorizations, proceedings, statutes and judicial decisions as we have
deemed necessary to form the basis of the opinion expressed below. In
such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the
conformity to originals of all documents submitted to us as copies
thereof. As to various questions of fact material to such opinion, we
have relied upon statements and certificates of officers and
representatives of the Company and others.
Based upon the foregoing, we are of the opinion that the Options to
purchase up to 4,400,000 shares of Common Stock which are the subject of
the Registration Statement have been duly authorized and when issued in
accordance with the 1997 Plan will be enforceable in accordance with
their terms, and the 4,400,000 shares of Common Stock which are the
subject of the Registration Statement have been duly authorized and when
issued, and paid for in accordance with the terms of the Options and the
1997 Plan under which the Options are issued will be duly authorized,
fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name
appearing in said Registration Statement and amendments thereto.
Very truly yours,
DE MARTINO FINKELSTEIN ROSEN & VIRGA
/s/ Ralph V. De Martino
Ralph V. De Martino, a Principal
cc: David E. Hardy, Esquire
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference of this Registration
Statement on Form S-8 of our report dated April 15, 1999 relating to the
financial statements included in the I-Link Incorporated Form 10-K for the
year ended December 31, 1998. We also consent to the incorporation by
reference of our report dated April 15, 1999 relating to the financial
statement schedule, which appears in such Form 10-K.
PricewaterhouseCoopers LLP
Salt Lake City, Utah
September 8, 1999
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