Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
MarketLink, Inc.
(Exact Name of Registrant as Specified in its Charter)
Minnesota 41-1675041
(State or Other Juris- (I.R.S. Employer
diction of Incorporation Identification Number)
or Organization)
10340 Viking Drive, Suite 150
Eden Prairie, Minnesota 55344
(Address of Principal Executive Office and Zip Code)
MarketLink, Inc. 1994 Stock Option Plan
(Full Title of the Plan)
Nicholas C. Bluhm, President
MarketLink, Inc.
10340 Viking Drive, Suite 150
Eden Prairie, Minnesota 55344
(612) 996-9000
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
John A. Grimstad
Fredrikson & Byron, P.A.
1100 International Centre
Minneapolis, Minnesota 55402
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================================
Proposed
Proposed Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
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<S> <C> <C> <C> <C>
Options to Purchase
Common Stock under
the 1994 Plan Indefinite $ 0.00 $ 0.00 $ 0.00
Common Stock
issuable upon
exercise of options
granted under the
1994 Plan 750,000 shares $ 1.9375 $ 1,453,125 $ 501.08
-------
TOTAL: $ 501.08
================================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein and any additional securities which may become
issuable pursuant to anti-dilution provisions of the plan.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the registration fee and based upon the average of the bid and asked
prices of the Registrant's Common Stock on July 9, 1996.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed in (a) through (c) below:
(a) The Registrant's latest annual report filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, or either (I) the latest
prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933
that contains audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed or (II) the
Registrant's effective registration statement on Form 10 or 10-SB filed
under the Securities Exchange Act of 1934 containing audited financial
statements for the Registrant's latest fiscal year;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by
the Registrant document referred to in (a) above;
(c) If the class of securities to be offered is registered under Section 12 of
the Securities Exchange Act of 1934, the description of such class of
securities contained in a registration statement filed under such Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Minnesota corporate law, a corporation shall, unless prohibited or
limited by its Articles of Incorporation or Bylaws, indemnify its directors,
officers, employees and
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agents against judgments, penalties, fines, settlements, expenses and
disbursements incurred by such person who was, or is threatened to be, made a
party to a proceeding by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation if generally, with
respect to the acts or omissions of the person complained of in the proceeding,
the person: (i) has not been indemnified by another organization with respect to
the same acts or omissions; (ii) acted in good faith, (iii) received no improper
personal benefit; (iv) in the case of a criminal proceeding, had no reasonable
cause to believe the conduct was unlawful; and (v) reasonably believed the
conduct was in the best interests of the corporation or, in certain
circumstances, reasonably believed that the conduct was not opposed to the best
interests of the corporation. Minnesota corporate law also provides that a
corporation may purchase and maintain insurance on behalf of any indemnified
party against any liability asserted against such person, whether or not the
corporation would have been required to indemnify the person against liability
under the provisions of Minnesota corporate law. The Registrant's Articles of
Incorporation and Bylaws do not limit the Registrant's obligation to indemnify
such persons.
The Company's Articles of Incorporation limit the liability of its
directors to the full extent permitted by the Minnesota Business Corporation
Act. Specifically, directors of the Company will not be personally liable for
monetary damages for breach of fiduciary duty as directors except liability for
(i) any breach of the duty of loyalty to the Company or its shareholders, (ii)
acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (iii) dividends or other distributions of corporate
assets that are in contravention of certain statutory or contractual
restrictions, (iv) violations of certain Minnesota securities laws, or (v) any
transaction from which the director derives an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion and Consent of Fredrikson & Byron, P.A. relating to the legality of
securities under the 1994 Stock Option Plan.
23.1 Consent of Fredrikson & Byron, P.A. -- included in their opinion filed as
Exhibit 5.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Boulay, Heutmaker, Zibell & Co. P.L.L.P.
24 Power of Attorney from certain directors.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
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(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represents
a fundamental change in the information set forth in the
Registration Statement;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(2) That, for the purposes of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has
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been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim
for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act
and will be governed by final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Eden Prairie and State of Minnesota, on the 3rd
day of June , 1996.
MARKETLINK, INC.
(the "Registrant")
By /s/ Nicholas C. Bluhm
Nicholas C. Bluhm, President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
(Power of Attorney)
Each of the undersigned constitutes and appoints Ronald E. Eibensteiner and
Nicholas C. Bluhm his true and lawful attorney-in-fact and agent, each acting
alone, with full powers of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign the Form S-8
Registration Statement of MarketLink, Inc. relating to the Company's 1994 Stock
Option Plan and any or all amendments or post-effective amendments to the Form
S-8 Registration Statement, 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, each acting alone,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying
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and confirming all that said attorneys-in-fact and agents, each acting alone, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Signature Title Date
/s/ Nicholas C. Bluhm President, Chief Executive June 3, 1996
- ---------------------- Officer and Chief Financial
Nicholas C. Bluhm Officer (principal executive,
accounting and financial officer)
/s/ Ronald E. Eibensteiner Chairman and Director June 3, 1996
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Ronald E. Eibensteiner
/s/ Michael P. Corcoran Director June 7, 1996
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Michael P. Corcoran
/s/ Gregory H. Mohn Director June 4, 1996
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Gregory H. Mohn
/s/ Vin Weber Director June 19, 1996
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Vin Weber
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
MarketLink, Inc.
Form S-8 Registration Statement
E X H I B I T I N D E X
Number Exhibit Description
5 Opinion and Consent of counsel re securities under the Plan
23.1 Consent of counsel (See Exhibit 5)
23.2 Consent of independent accountants
23.3 Consent of former independent accountants
24 Power of attorney (See Signature Page)
EXHIBIT 5
FREDRIKSON & BYRON, P.A.
900 Second Avenue South, Suite 1100
Minneapolis, Minnesota 55402
July 10, 1996
MarketLink, Inc.
10340 Viking Drive, Suite 150
Eden Prairie, Minnesota 55344
Re: Registration Statement on Form S-8
Ladies/Gentlemen:
We are acting as corporate counsel to MarketLink, Inc. (the "Company")
in connection with the original registration by the Company on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act") of options and 750,000 shares (the "Shares") of Common Stock issuable
pursuant to the Company's 1994 Stock Option Plan (the "Plan").
In acting as such counsel and for the purpose of rendering this
opinion, we have reviewed copies of the following, as presented to us by the
Company:
1. The Company's Articles of Incorporation, as amended.
2. The Company's Bylaws, as amended.
3. Certain corporate resolutions adopted by the Board of
Directors and shareholders of the Company pertaining to the
adoption and approval of the Plan.
4. The Plan.
5. The Registration Statement.
Based on, and subject to, the foregoing and upon representations and
information provided by the Company or its officers or directors, it is our
opinion as of this date that:
1. The Shares are validly authorized by the Company's Articles
of Incorporation, as amended.
2. Upon issuance and delivery of the Shares against receipt by
the Company of the consideration for the Shares pursuant to
the terms of the Plan, the Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
FREDRIKSON & BYRON, P.A.
By /s/ John A. Grimstad
John A. Grimstad
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the MarketLink, Inc. 1994 Stock Option Plan
of our report dated January 19, 1996 with respect to the financial statements of
MarketLink, Inc. for the year ended December 31, 1995 included in its Annual
Report (Form 10-KSB) for the year ended December 31, 1995, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Minneapolis, Minnesota
July 10, 1996
EXHIBIT 23.3
We consent to the incorporation by reference in this Registration
Statement of MarketLink, Inc. on Form S-8 of our report dated January 13, 1995,
except for Note 14, as to which the date was April 6, 1995, appearing in (or
incorporated by reference in) the Annual Report on Form 10-KSB of MarketLink,
Inc. for the year ended December 31, 1995.
/s/ Boulay, Heutmaker, Zibell & Co. P.L.L.P.
Boulay, Heutmaker, Zibell & Co. P.L.L.P.
Certified Public Accountants
Minneapolis, Minnesota
July 10, 1996
