SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
Mind2Market, Inc.
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(Exact Name of Registrant as Specified in Its Charter)
Colorado 84-1361341
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(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
777 S. Wadsworth Boulevard, Suite B1-200, Lakewood, CO 80226
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(Address of principal executive offices) (Zip Code)
Employee and Consultant Compensation Plan
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(Full title of the plan)
Michael Littman
7609 Ralston Road, Arvada, CO 80002
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(Name and address of agent for service)
303-422-8127
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(Telephone number, including area code, of agent for service)
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Title of Amount Proposed maximum Proposed
Securities to be To be Offering price Maximum aggregate Amount of
Registered Registered Per Share (1) Offering price(2) Registration fee
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Common stock 3,000,000 $0.12 $360,000.00 $100.00
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(1) Estimated solely for the purpose of calculating the registration fee.
(2) Based upon Market average bid/ask on a date five days prior to filing,
pursuant to Rule 457.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part I
are not required to be filed with the Securities and Exchange Commission (the
"Commission") as part of this Form S-8 Registration Statement.
There is a letter agreement with the consultant which provide for the
payment for services rendered in shares of the common stock of the Company in
lieu of cash.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
(a) The Annual Report on Form 10KSB of Mind2Market, Inc. for the fiscal
year ended December 31, 2000 filed on June 13, 2001 under Section 13(a) or 15(d)
of the Securities Exchange Act of 1934, as amended.
(b) All reports filed by the Company pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December
31, 2000.
(c) The description of the common shares issued by the company in a
Registration Statement dated December 29, 1999, and any amendment or report
filed for the purpose of updating such description under Registration Statement
000-28711.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15 of the Exchange Act after the date of filing of this
Registration Statement and prior to such time as the Company files a
post-effective amendment to this Registration Statement which indicates that all
common shares covered by this Registration Statement have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in the registration statement and to be part thereof
from the date of filing of such documents. Copies of these documents are not
required to be filed with the registration statement.
ITEM 4. DESCRIPTION OF SECURITIES
The description of the common shares issued by the company in a
Registration Statement dated December 29, 1999, and any amendment or report
filed for the purpose of updating such description under Registration Statement
000-28711.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the securities being registered hereunder will be passed on
for the Company by Michael A. Littman, attorney, of Arvada, Colorado. He is an
independent securities attorney and owns 1,275,900 shares.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Certificate of Incorporation includes a provision that
eliminates the personal liability of the directors to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director to
the maximum extent permitted by the Colorado Revised Statutes, Section 7-108-402
("CRS"). The Colorado Business Corporation Act does not permit liability to be
eliminated (i) for any breach of a director's duty of loyalty to the Company or
its stockholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions, as provided
in the Colorado Revised Statutes, or (iv) for any transaction for which a
director derived an improper personal benefit. The Certificate of Incorporation
also provides that the Company shall indemnify its directors and executive
officers to the fullest extent permitted by the Colorado Business Corporation
Act, including those circumstances in which indemnification would otherwise be
discretionary, subject to certain exceptions. The Certificate of Incorporation
also provides that the Company will advance expenses to directors and executive
officers incurred in connection with an action or proceeding as to which they
may be entitled to indemnification, subject to certain exceptions.
The Colorado Business Corporation Act provides that a corporation may
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 proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a director, officer, employee, or agent of the Company, or is or was serving
at the Company's request in such capacity in another corporation or business
association, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
The Company has entered into indemnification agreements with certain
directors and executive officers that provide the maximum indemnity allowed to
directors and executive officers by the Colorado Business Corporation Act and
the Certificate of Incorporation, subject to certain exceptions as well as
certain additional procedural protections. In addition, the indemnification
agreements provide generally that the Company will advance expenses incurred by
directors and executive officers in any action or proceeding as to which they
may be entitled to indemnification, subject to certain exceptions.
The indemnification provisions in the Certificate of Incorporation and the
indemnity agreements entered into between the Company and certain directors and
executive officers may permit indemnification for liabilities arising under the
Securities Act of 1933. Insofar as indemnification for liabilities arising under
the Securities Act of 1933 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 Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. CONSULTANTS AND ADVISORS
The following consultant will be issued securities pursuant to this Regi-
stration statement:
Name Number Type of Services Provided
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UINFO International, Inc. 3,000,000 Contract/Website design and
encryption
ITEM 9. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
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4.2 2001 Stock Plan
5.1 Opinion of Michael A. Littman
10.1 Consulting Agreement with UINFO
23.1 Consent of Van Dorn & Bossi
23.2 Consent of Michael A. Littman
(contained in Exhibit 5.1).
ITEM 10. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this registration
Statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the high or low end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement; and
(iii) include any additional or changed material information on 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 Registration Statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference 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 the
securities at that time shall be deemed to be the initial BONA FIDE offering.
(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 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 (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 Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Broomfield, on this ______ day of August, 2001.
MIND2MARKET, INC.
By: /s/ Douglas Webber
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Douglas Webber
President
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
SIGNATURE TITLE DATE
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/s/ Douglas Webber President 8/8/2001
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Douglas Webber
/s/ James R. Clark Director 8/8/2001
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James R. Clark
/s/ Douglas P. Deckert Director 8/7/2001
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Douglas P. Deckert
/s/ Charles H. Jacobson Director 8/7/2001
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Charles H. Jacobson
/s/ Stuart M. Novak Director 8/7/2001
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Stuart M. Novak
/s/ Charles R. Powell Director 8/7/2001
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Charles R. Powell
EXHIBIT 4.2
2001 STOCK PLAN
OF
MIND2MARKET, INC.
SECTION 1. ESTABLISHMENT AND PURPOSE.
The Plan is established on August 10, 2001, effective upon approval by
the Board of Directors, to offer directors and selected employees, advisors and
consultants an opportunity to acquire a proprietary interest in the success of
the Company, or to increase such interest, by purchasing Shares of the Company's
Common Stock. The Plan provides both for the direct award or sale of Shares and
for the grant of Options to purchase Shares. Options granted under the Plan may
include Non-Statutory Options as well as Incentive Stock Options intended to
qualify under section 422 of the Code.
The Plan is intended to comply in all respects with Rule 16b-3 (or its
successor) under the Exchange Act and shall be construed accordingly.
SECTION 2. DEFINITIONS.
(a) "Board of Directors" shall mean the Board of Directors of the
Company, as constituted from time to time.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean a committee of the Board of Directors, as
described in Section 3(a).
(d) "Company" shall mean Mind2Market, Inc. (or M2M), a Colorado
corporation.
(e) "Employee" shall mean (i) any individual who is a common law
employee of the Company or of a Subsidiary, (ii) an Outside Director and (iii)
an independent contractor who performs services for the Company or a Subsidiary
and who is not a member of the Board of Directors. Service as an Outside
Director or independent contractor shall be considered employment for all
purposes of the Plan, except as provided in Subsections (a) and (b) of Section
4.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(g) "Exercise Price" shall mean the amount for which one Share may be
purchased upon exercise of an Option, as specified by the Committee in the
applicable Stock Option Agreement.
(h) "Fair Market Value" shall mean the market price of Stock,
determined by the Committee as follows:
(i) If Stock was traded on a stock exchange on the date in
question, then the Fair Market Value shall be equal to the closing price
reported for such date by the applicable composite transactions report;
(ii) If Stock was traded over-the-counter on the date in
question and was traded on the Nasdaq system or the Nasdaq National Market, then
the Fair Market Value shall be equal to the last transaction price quoted for
such date by the Nasdaq system or the Nasdaq National Market;
(iii) If Stock was traded over-the-counter on the date in
question but was not traded on the Nasdaq system or the Nasdaq National Market,
then the Fair Market Value shall be equal to the mean between the last reported
representative bid and asked prices quoted for such date by the principal
automated inter-dealer quotation system on which Stock is quoted or, if the
Stock is not quoted on any such system, by the "Pink Sheets" published by the
National Quotation Bureau, Inc.; and
(iv) If none of the foregoing provisions is applicable, then
the Fair Market Value shall be determined by the Committee in good faith on such
basis, as it deems appropriate.
In all cases, the determination of Fair Market Value by the Committee
shall be conclusive and binding on all persons.
(i) "ISO" shall mean an employee incentive stock option described in
section 422(b) of the Code.
(j) "Non-Statutory Option" shall mean an employee stock option not
described in sections 422(b) or 423(b) of the Code.
(k) "Offeree" shall mean an individual to whom the Committee has
offered the right to acquire Shares under the Plan (other than upon exercise of
an Option).
(l) "Option" shall mean an ISO or Non-Statutory Option granted under
the Plan and entitling the holder to purchase Shares.
(m) "Optionee" shall mean an individual who holds an Option.
(n) "Outside Director" shall mean a member of the Board of Directors
who is not a common-law employee of the Company or of a Subsidiary.
(o) "Committee Procedures." The Committee shall designate one of its
members as chairman. The Committee may hold meetings at such times and places as
it shall determine. The acts of a majority of the Committee members present at
meetings at which a quorum exists, or acts reduced to or approved in writing by
all Committee members shall be valid acts of the Committee.
(p) Committee Responsibilities. Subject to the provisions of the Plan,
the Committee shall have the authority and discretion to take the following
actions:
(i) To interpret the Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms
relating to the Plan;
(iii) To authorize any person to execute, on behalf of the
Company, any instrument required to carry out the purposes of the Plan;
(iv) To determine when Shares are to be awarded or offered for
sale and when Options are to be granted under the Plan;
(v) To select the Offerees and Optionees;
(vi) To determine the number of Shares to be offered to each
Offeree or to be made subject to each Option;
(vii) To prescribe the terms and conditions of each award or
sale of Shares, including (without limitation) the Purchase Price, and to
specify the provisions of the Stock Purchase Agreement relating to such award or
sale;
(viii) To prescribe the terms and conditions of each Option,
including (without limitation) the Exercise Price, to determine whether such
Option is to be classified as an ISO or as a Non-Statutory Option, and to
specify the provisions of the Stock Option Agreement relating to such Option;
(ix) To amend any outstanding Stock Purchase Agreement or
Stock Option Agreement, subject to applicable legal restrictions and, to the
extent such amendments adverse to the Offeree's or Optionee's interest, to the
consent of the Offeree or Optionee who entered into such agreement;
(x) To prescribe the consideration for the grant of each
Option or other right under the Plan and to determine the sufficiency of such
consideration; and
(xi) To take any other actions deemed necessary or advisable
for the administration of the Plan.
All decisions, interpretations and other actions of the Committee shall
be final and binding on all Offerees, all Optionees, and all persons deriving
their rights from an Offeree or Optionee. No member of the Committee shall be
liable for any action that he or she has taken or has failed to take in good
faith with respect to the Plan, any Option, or any right to acquire Shares under
the Plan.
SECTION 3. ADMINISTRATION.
(a) Committee Membership. The Plan shall be administered by the
Committee. The "Committee" shall mean the full Board of Directors and/or a
committee designated by the Board of Directors, which is authorized to
administer the Plan under this Section. The Committee's membership shall enable
the Plan to qualify under Rule 16b-3 with regard to the grant of Shares and
Options under the Plan to persons who are subject to Section 16 of the Exchange
Act. Subject to the requirements of applicable law, the Committee may designate
persons other than members of the Committee to carry out its responsibilities
and may prescribe such conditions and limitations as it may deem appropriate,
except that the Committee may not delegate its authority with regard to the
selection for participation of or the granting of Shares or Options under the
Plan to persons subject to Section 16 of the Exchange Act.
(b) Committee Procedures. The Committee shall designate one of its
members as chairman. The Committee may hold meetings at such times and places as
it shall determine. The acts of a majority of the Committee members present at
meetings at which a quorum exists, or acts reduced to or approved in writing by
all Committee members shall be valid acts of the Committee.
(c) Committee Responsibilities. Subject to the provisions of the Plan,
the Committee shall have full authority and discretion to take the following
actions:
(i) To interpret the Plan and to apply its provisions;
(ii) To adopt, amend or rescind rules, procedures and forms
relating to the Plan;
(iii) To authorize any person to execute, on behalf of the
Company, any instrument required to carry out the purposes of the Plan;
(iv) To determine when Shares are to be awarded or offered for
sale and when Options are to be granted under the Plan;
(v) To select the Offerees and Optionees;
(vi) To determine the number of Shares to be offered to each
Offeree or to be made subject to each Option;
(vii) To prescribe the terms and conditions of each award or
sale of Shares, including (without limitation) the Purchase Price, and to
specify the provisions of the Stock Purchase Agreement relating to such award or
sale;
(viii) To prescribe the terms and conditions of each Option,
including (without limitation) the Exercise Price, to determine whether such
Option is to be classified as an ISO or as a Non-statutory Option, and to
specify the provisions of the Stock Option Agreement relating to such Option;
(ix) To amend any outstanding Stock Purchase Agreement or
Stock Option Agreement, subject to applicable legal restrictions and, to the
extent such amendments adverse to the Offeree's or Optionee's interest, to the
consent of the Offeree or Optionee who entered into such agreement;
(x) To prescribe the consideration for the grant of each
Option or other right under the Plan and to determine the sufficiency of such
consideration; and
(xi) To take any other actions deemed necessary or advisable
for the administration of the Plan.
All decisions, interpretations and other actions of the Committee shall
be final and binding on all Offerees, all Optionees, and all persons deriving
their rights from an Offeree or Optionee. No member of the Committee shall be
liable for any action that he or she has taken or has failed to take in good
faith with respect to the Plan, any Option, or any right to acquire Shares under
the Plan.
SECTION 4. ELIGIBILITY.
(a) General Rules. Only Employees (including, without limitation,
independent contractors who are not members of the Board of Directors) shall be
eligible for designation as Optionees or Offerees by the Committee. In addition,
only Employees who are common-law employees of the Company or a Subsidiary shall
be eligible for the grant of Incentive Stock Options. Employees who are Outside
Directors shall only be eligible for the grant of the Non-Statutory Options
described in Subsection (b) below.
(b) Outside Directors. Any other provision of the Plan notwith-
standing, the participation of Outside Directors in the Plan shall be subject to
the following restrictions:
(i) Outside Directors shall receive no grants other than the
Non-Statutory Options described in this Subsection (b).
(ii) All Non-Statutory Options granted to an Outside Director
under this Subsection (b) shall also become exercisable in full in the event of
the termination of such Outside Director's service because of death, Total and
Permanent Disability or voluntary retirement at or after age 65.
(iii) The Exercise Price under all Non-statutory Options
granted to an Outside Director under this Subsection (b) shall be equal to 100
percent of the Fair Market Value of a Share on the date of grant, payable in one
of the forms described in Subsection (a), (b), (c) or (d) of Section 8.
(iv) Non-Statutory Options granted to an Outside Director
under this Subsection (b) shall terminate on the earliest of (A) the 10th
anniversary of the date of grant, (B) the date three months after the
termination of such Outside Director's service for any reason other than death
or Total and Permanent Disability or (C) the date 12 months after the
termination of such Outside Director's service because of death or Total and
Permanent Disability.
The Committee may provide that the Non-Statutory Options that otherwise
would be granted to an Outside Director under this Subsection (b) shall instead
be granted to an affiliate of such Outside Director. Such affiliate shall then
be deemed to be an Outside Director for purposes of the Plan, provided that the
service-related vesting and termination provisions pertaining to the
Non-Statutory Options shall be applied with regard to the service of the Outside
Director.
SECTION 5. STOCK SUBJECT TO PLAN.
(a) Basic Limitation. Shares offered under the Plan shall be authorized
but unissued Shares or treasury Shares. The aggregate number of Shares which may
be issued under the Plan (upon exercise of Options or other rights to acquire
Shares) shall not exceed 4,500,000 Shares, subject to adjustment pursuant to
Section 9. The number of Shares, which are subject to Options or other rights
outstanding at any time under the Plan, shall not exceed the number of Shares,
which then remain available for issuance under the Plan. The Company, during the
term of the Plan, shall at all times reserve and keep available sufficient
Shares to satisfy the requirements of the Plan.
(b) Additional Shares. In the event that any outstanding Option or
other right for any reason expires or is canceled or otherwise terminated, the
Shares allocable to the unexercised portion of such Option or other right shall
again be available for the purposes of the Plan. In the event that Shares issued
under the Plan are reacquired by the Company pursuant to a forfeiture provision,
a right of repurchase or a right of first refusal, such Shares shall again be
available for the purposes of the Plan.
SECTION 6. TERMS AND CONDITIONS OF AWARDS OR SALES.
(a) Stock Purchase Agreement. Each award or sale of Shares under the
Plan (other than upon exercise of an Option) shall be evidenced by a Stock
Purchase Agreement or a Stock Compensation Agreement between the Offeree and the
Company. Such award or sale shall be subject to all applicable terms and condi-
tions of the Plan and may be subject to any other terms and conditions which are
not inconsistent with the Plan and which the Committee deems appropriate for in-
clusion in a Stock Purchase Agreement. The provisions of the various Stock Pur-
chase Agreements or Stock Compensation Agreement entered into under the Plan
need not be identical.
(b) Duration of Offers and Non-Transferability of Rights. Any right to
acquire Shares under the Plan (other than an Option) shall automatically expire
if not exercised by the Offeree within 30 days after the grant of such right was
communicated to the Offeree by the Committee. Such right shall not be
transferable and shall be exercisable only by the Offeree to whom such right was
granted.
(c) Purchase Price. The Purchase Price of Shares to be offered under
the Plan shall not be less than 85 percent of the Fair Market Value of such
Shares. Subject to the preceding sentence, the Committee at its sole discretion
shall determine the Purchase Price. The Purchase Price shall be payable in a
form described in Section 8.
(d) Withholding Taxes. As a condition to the award, sale or vesting of
Shares, the Offeree shall make such arrangements as the Committee may require
for the satisfaction of any federal, state, local or foreign withholding tax
obligations that arise in connection with such Shares. The Committee may permit
the Offeree to satisfy all or part of his or her tax obligations related to such
Shares by having the Company withhold a portion of any Shares that otherwise
would be issued to him or her or by surrendering any Shares that previously were
acquired by him or her. The Shares withheld or surrendered shall be valued at
their Fair Market Value on the date when taxes otherwise would be withheld in
cash. The payment of taxes by assigning Shares to the Company, if permitted by
the Committee, shall be subject to such restrictions as the Committee may
impose, including any restrictions required by rules of the Securities and
Exchange Commission.
(e) Restrictions on Transfer of Shares. Any Shares awarded or sold
under the Plan shall be subject to such special forfeiture conditions, rights of
repurchase, rights of first refusal and other transfer restrictions as the
Committee may determine. Such restrictions shall be set forth in the applicable
Stock Purchase Agreement and shall apply in addition to any general restrictions
that may apply to all holders of Shares.
SECTION 7. TERMS AND CONDITIONS OF OPTIONS.
(a) Stock Option Agreement. Each grant of an Option under the Plan
shall be evidenced by a Stock Option Agreement between the Optionee and the
Company. Such Option shall be subject to all applicable terms and conditions of
the Plan and may be subject to any other terms and conditions which are not
inconsistent with the Plan and which the Committee deems appropriate for
inclusion in a Stock Option Agreement. The provisions of the various Stock
Option Agreements entered into under the Plan need not be identical.
(b) Number of Shares. Each Stock Option Agreement shall specify the
number of Shares that are subject to the Option and shall provide for the
adjustment of such number in accordance with Section 9. Options granted to any
Optionee in a single calendar year shall in no event cover more than 15,000
Shares, subject to adjustment in accordance with Section 9. The Stock Option
Agreement shall also specify whether the Option is an ISO or a Non-Statutory
Option.
(c) Exercise Price. Each Stock Option Agreement shall specify the
Exercise Price. The Exercise Price of an ISO shall not be less than 100 percent
of the Fair Market Value of a Share on the date of grant, except as otherwise
provided in Section 4(c). The Exercise Price of a Non-Statutory Option shall not
be less than 85 percent of the Fair Market Value of a Share on the date of
grant. Subject to the preceding two sentences, the Committee at its sole
discretion shall determine the Exercise Price under any Option. The Exercise
Price shall be payable in a form described in Section 8.
(d) Withholding Taxes. As a condition to the exercise of an Option, the
Optionee shall make such arrangements as the Committee may require for the
satisfaction of any federal, state, local or foreign withholding tax obligations
that arise in connection with such exercise. The Optionee shall also make such
arrangements as the Committee may require for the satisfaction of any federal,
state, local or foreign withholding tax obligations that may arise in connection
with the disposition of Shares acquired by exercising an Option. The Committee
may permit the Optionee to satisfy all or part of his or her tax obligations
related to the Option by having the Company withhold a portion of any Shares
that otherwise would be issued to him or her or by surrendering any Shares that
previously were acquired by him or her. Such Shares shall be valued at their
Fair Market Value on the date when taxes otherwise would be withheld in cash.
The payment of taxes by assigning Shares to the Company, if permitted by the
Committee, shall be subject to such restrictions as the Committee may impose,
including any restrictions required by rules of the Securities and Exchange
Commission.
(e) Exercisability and Term. Each Stock Option Agreement shall specify
the date when all or any installment of the Option is to become exercisable. The
Committee at its sole discretion shall determine the vesting of any Option. A
Stock Option Agreement may provide for accelerated exercisability in the event
of the Optionee's death, Total and Permanent Disability or retirement or other
events. The Stock Option Agreement shall also specify the term of the Option.
The term shall not exceed 10 years from the date of grant, except as otherwise
provided in Section 4(c). Subject to the preceding sentence, the Committee at
its sole discretion shall determine when an Option is to expire.
(f) Non-Transferability. During an Optionee's lifetime, such Optionee's
Option(s) shall be exercisable only by him or her and shall not be transferable,
unless permitted by the Stock Option Agreement. In the event of an Optionee's
death, such Optionee's Option(s) shall not be transferable other than by will,
by a beneficiary designation executed by the Optionee and delivered to the
Company, or by the laws of descent and distribution.
(g) Termination of Service (Except by Death). If an Optionee's Service
terminates for any reason other than the Optionee's death, then such Optionee's
Option(s) shall expire on the earliest of the following occasions:
(i) The expiration date determined pursuant to Subsection (e)
above;
(ii) The date 90 days after the termination of the Optionee's
Service for any reason other than Total and Permanent Disability; or
(iii) The date six months after the termination of the
Optionee's Service by reason of Total and Permanent Disability.
The Optionee may exercise all or part of his or her Option(s) at any time before
the expiration of such Option(s) under the preceding sentence, but only to the
extent that such Option(s) had become exercisable before the Optionee's Service
terminated or became exercisable as a result of the termination. The balance of
such Option(s) shall lapse when the Optionee's Service terminates. In the event
that the Optionee dies after the termination of the Optionee's Service but
before the expiration of the Optionee's Option(s), all or part of such Option(s)
may be exercised (prior to expiration) by his or her designated beneficiary (if
applicable), by the executors or administrators of the Optionee's estate or by
any person who has acquired such Option(s) directly from the Optionee by bequest
or inheritance, but only to the extent that such Option(s) had become
exercisable before the Optionee's Service terminated or became exercisable as a
result of the termination.
(h) Leaves of Absence. For purposes of Subsection (g) above, Service
shall be deemed to continue while the Optionee is on military leave, sick leave
or other bona fide leave of absence (as determined by the Committee). The
foregoing notwithstanding, in the case of an ISO granted under the Plan, Service
shall not be deemed to continue beyond the first 90 days of such leave, unless
the Optionee's reemployment rights are guaranteed by statute or by contract.
(i) Death of Optionee. If an Optionee dies while he or she is in
Service, then such Optionee's Option(s) shall expire on the earlier of the
following dates:
(i) The expiration date determined pursuant to Subsection (e)
above; or
(ii) The date six months after the Optionee's death.
All or part of the Optionee's Option(s) may be exercised at any time
before the expiration of such Option(s) under the preceding sentence by his or
her designated beneficiary (if applicable), by the executors or administrators
of the Optionee's estate or by any person who has acquired such Option(s)
directly from the Optionee by bequest or inheritance, but only to the extent
that such Option(s) had become exercisable before the Optionee's death or became
exercisable as a result of the Optionee's death. The balance of such Option(s)
shall lapse when the Optionee dies.
(j) No Rights as a Stockholder. An Optionee, or a transferee of an
Optionee, shall have no rights as a stockholder with respect to any Shares
covered by his or her Option until the date of the issuance of a stock
certificate for such Shares. No adjustments shall be made, except as provided in
Section 9.
(k) Modification, Extension and Renewal of Options. Within the
limitations of the Plan, the Committee may modify, extend or renew outstanding
Options or may accept the cancellation of outstanding Options (to the extent not
previously exercised) in return for the grant of new Options at the same or a
different price. The foregoing notwithstanding, no modification of an Option
shall, without the consent of the Optionee, impair such Optionee's rights or
increase his or her obligations under such Option.
(l) Restrictions on Transfer of Shares. Any Shares issued upon exercise
of an Option shall be subject to such special forfeiture conditions, rights of
repurchase, rights of first refusal and other transfer restrictions as the
Committee may determine. Such restrictions shall be set forth in the applicable
Stock Option Agreement and shall apply in addition to any general restrictions
that may apply to all holders of Shares.
SECTION 8. PAYMENT FOR SHARES.
(a) General Rule. The entire Purchase Price or Exercise Price of Shares
issued under the Plan shall be payable in lawful money of the United States of
America at the time when such Shares are purchased, except as follows:
(i) In the case of Shares sold under the terms of a Stock
Purchase Agreement subject to the Plan, payment shall be made only pursuant to
the express provisions of such Stock Purchase Agreement. However, the Committee
(at its sole discretion) may specify in the Stock Purchase Agreement that
payment may be made in one or all of the forms described in Subsections (e), (f)
and (g) below.
(ii) In the case of an ISO granted under the Plan, payment
shall be made only pursuant to the express provisions of the applicable Stock
Option Agreement. However, the Committee (at its sole discretion) may specify in
the Stock Option Agreement that payment may be made pursuant to Subsections (b),
(c), (d), (f) or (g) below.
(iii) In the case of a Non-Statutory Option granted under the
Plan, the Committee (at its sole discretion) may accept payment pursuant to
Subsections (b), (c), (d), (f) or (g) below.
(iv) In the case of shares issued as compensation for
services rendered, payment may be made by rendering of the services.
(b) Surrender of Stock. To the extent that this Subsection (b) is
applicable, payment may be made all or in part with Shares, which have already
been owned, by the Optionee or his or her representative for more than 12 months
and which are surrendered to the Company in good form for transfer. Such Shares
shall be valued at their Fair Market Value on the date when the new Shares are
purchased under the Plan.
(c) Exercise/Sale. To the extent that this Subsection (c) is
applicable, payment may be made by the delivery (on a form prescribed by the
Company) of an irrevocable direction to a securities broker approved by the
Company to sell Shares and to deliver all or part of the sales proceeds to the
Company in payment of all or part of the Exercise Price and any withholding
taxes.
(d) Exercise/Pledge. To the extent that this Subsection (d) is
applicable, payment may be made by the delivery (on a form prescribed by the
Company) of an irrevocable direction to pledge Shares to a securities broker or
lender approved by the Company, as security for a loan, and to deliver all or
part of the loan proceeds to the Company in payment of all or part of the
Exercise Price and any withholding taxes.
(e) Services Rendered. To the extent that this Subsection (e) is
applicable, Shares may be awarded under the Plan in consideration of services
rendered to the Company or a Subsidiary prior to the award. If Shares are
awarded without the payment of a Purchase Price in cash, the Committee shall
make a determination (at the time of the award) of the value of the services
rendered by the Offeree and the sufficiency of the consideration to meet the
requirements of Section 6(c).
(f) Promissory Note. To the extent that this Subsection (f) is
applicable, a portion of the Purchase Price or Exercise Price, as the case may
be, of Shares issued under the Plan may be payable by a full recourse promissory
note, provided that (i) the par value of such Shares must be paid in lawful
money of the United States of America at the time when such Shares are
purchased, (ii) the Shares are security for payment of the principal amount of
the promissory note and interest thereon and (iii) the interest rate payable
under the terms of the promissory note shall be no less than the minimum rate
(if any) required to avoid the imputation of additional interest under the Code.
Subject to the foregoing, the Committee (at its sole discretion) shall specify
the term, interest rate, amortization requirements (if any) and other provisions
of such note.
(g) Other Forms of Payment. To the extent that this Subsection (g) is
applicable, payment may be made in any other form approved by the Committee,
consistent with applicable laws, regulations and rules.
SECTION 9. ADJUSTMENT OF SHARES.
(a) General. In the event of a subdivision of the outstanding Stock, a
declaration of a dividend payable in Shares, a declaration of a dividend payable
in a form other than Shares in an amount that has a material effect on the value
of Shares, a combination or consolidation of the outstanding Stock (by
reclassification or otherwise) into a lesser number of Shares, a
re-capitalization, a spin-off or a similar occurrence, the Committee shall make
appropriate adjustments in one or more of (i) the number of Shares available for
future grants under Section 5, (ii) the number of Non-Statutory Options to be
granted to Outside Directors under Section 4(b), (iii) the number of Shares
covered by each outstanding Option or (iv) the Exercise Price under each
outstanding Option.
(b) Reorganizations. In the event that the Company is a party to a
merger or other reorganization, outstanding Options shall be subject to the
agreement of merger or reorganization. Such agreement may provide, without
limitation, for the assumption of outstanding Options by the surviving
corporation or its parent, for their continuation by the Company (if the Company
is a surviving corporation), for payment of a cash settlement equal to the
difference between the amount to be paid for one Share under such agreement and
the Exercise Price, or for the acceleration of their exercisability followed by
the cancellation of Options not exercised, in all cases without the Optionees'
consent. Any cancellation shall not occur until after such acceleration is
effective and Optionees have been notified of such acceleration. In the case of
Options that have been outstanding for less than 12 months, a cancellation need
not be preceded by an acceleration.
(c) Reservation of Rights. Except as provided in this Section 9, an
Optionee or Offeree shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any dividend or
any other increase or decrease in the number of shares of stock of any class.
Any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to an Option. The grant of an Option pursuant
to the 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, to merge or consolidate or to dissolve, liquidate, sell
or transfer all or any part of its business or assets.
SECTION 10. SECURITIES LAWS.
Shares shall not be issued under the Plan unless the issuance and
delivery of such Shares complies with (or is exempt from) all applicable
requirements of law, including (without limitation) the Securities Act of 1933,
as amended, the rules and regulations promulgated there under, state securities
laws and regulations, and the regulations of any stock exchange on which the
Company's securities may then be listed. When applicable the shares may be
registered with the SEC on Form S-8.
SECTION 11. NO RETENTION RIGHTS.
Neither the Plan nor any Option shall be deemed to give any individual
a right to remain an employee, consultant or director of the Company or a
Subsidiary. The Company and its Subsidiaries reserve the right to terminate the
service of any employee, consultant or director at any time, with or without
cause, subject to applicable laws, the Company's certificate of incorporation
and by-laws and a written employment agreement (if any).
SECTION 12. DURATION AND AMENDMENTS.
(a) Term of the Plan. The Plan, as set forth herein, became effective
after approval by the Board of Directors. The Plan shall terminate automatically
15 years after its initial adoption by the Board of Directors on August 16,
2001, and may be terminated on any earlier date pursuant to Subsection (b)
below.
(b) Right to Amend or Terminate the Plan. The Board of Directors may,
subject to applicable law, amend, suspend or terminate the Plan at any time and
for any reason. An amendment to the Plan shall require stockholder approval only
to the extent required by applicable law.
(c) Effect of Amendment or Termination. No Shares shall be issued or
sold under the Plan after the termination thereof, except upon exercise of an
Option granted prior to such termination. The termination of the Plan, or any
amendment thereof, shall not affect any Share previously issued or any Option
previously granted under the Plan.
SECTION 13. EXECUTION.
To record the adoption of the Plan by the Board of Directors on August
16, 2001 the Company has caused its authorized officer to execute the same.
MIND2MARKET, INC.
By: /s/ James R. Clark
-----------------------------------------
Chairman of the Board
EXHIBIT 5.1
Michael A. Littman
Attorney at Law
7609 Ralston Road
Arvada, Colorado 80002
(303) 422-8127
(303) 431-1567 fax
August ___, 2001
Mind2Market, Inc.
777 S. Wadsworth Blvd., #B1-200
Lakewood, Colorado 80226
Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Mind2Market, Inc. (the "Company") of a Registration Statement
on form S-8 (the "Registration Statement") with the United States' Securities
and Exchange Commission covering the offering of an aggregate of 3,000,000
shares of the common stock of the Company (the "Shares").
In connection with this opinion, we have examined the Registration Statement and
the Company's Amended and Restated Articles of Incorporation and By-laws, and
such other documents, records, certificates, memoranda and other instruments, as
we deem necessary as a basis for this opinion. We have assumed the genuineness
and authenticity of all documents submitted to us as originals, the conformity
to originals of all documents submitted to us as copies thereof, and the due
execution and delivery of all documents, where due execution and delivery are a
prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the plans referenced
above and the Registration Statement, will be validly issued, fully paid, and
non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Sincerely yours,
/s/ Michael A. Littman
Exhibit 10.1
Consulting Agreement with UINFO
AGREEMENT
between
UINFO INTERNATIONAL, INC., and MIND2MARKET, INC.
This Agreement dated October 2, 2000 is between Mind2Market, Inc., a
Colorado Corporation, having a place of business at 1625 Abilene Drive,
Broomfield, CO 80020, referred to as M2M in this agreement and UINFO
International, Inc., a Colorado Corporation having a place of business at 777 S.
Wadsworth Blvd., Suite #B1-200, Lakewood, CO 80226, referred to as UINFO in this
agreement.
WITNESSETH:
Whereas: M2M is desirous of a business relationship with an engineering
and software development firm to help design and build its proprietary digital
data distribution system over the Internet with an initial emphasis on music
sales and distribution, and
Whereas: UINFO is a US based subsidiary of a foreign firm with an
existing staff that has the ability to develop the secured digital data distri-
bution system needed by M2M and is desirous of doing that development work, and
Whereas: UINFO needs a US partner to effectively penetrate the US
markets with its developed products, and
Whereas: UINFO has developed accounting software and a proprietary
innovative advertising software capability that can be used effectively with
M2M's proprietary digital data distribution system and both companies are
desirous of combining the systems and participating in the resulting economic
advantage such a combined system will bring to both the US and world-wide
markets,
Now Therefore: The parties named above, based on representations made
to each other by their respective executive officers and boards hereby agree to
enter into a business relationship as defined below.
1. UNIFO will develop the complete software package to implement the music
distribution and accounting system needed by M2M along with UINFO's
advertising program according to the System Requirements and Associated
Schedule attached hereto (Appendices A and B respectively) and amended from
time to time.
2. UNIFO will also grant to M2M the exclusive US and world-wide rights to its
proprietary and patent-pending advertising technology and associated
software subject to agreements by UNIFO for rights outside the United
States of America to other parties that are made prior to November 20,
2000.
3. For this work and these rights, M2M will issue to UINFO a total of Two
Million (2,000,000) shares of M2M common stock which shall be held in
escrow to ensure performance and 1.5 Million Dollars ($1,500,000) US
according to the schedule indicated below. Of the Two Million (2,000,000)
shares of common stock, 1,667,000 shares hall be restricted stock as
defined by the corporate securities counsel, and the remaining 333,000
shares shall be registered under S8 with the SEC. Additional compensation
for the world-wide rights outside the United States defined in (2) above
shall be subject to negotiation after the other agreements, if any, are
defined as indicated in (2) above.
4. In addition to the above, M2M will pay UINFO a royalty fee of Ten Percent
(10%) of all third party advertising funds collected using the proprietary
advertising software purchased from UINFO. Third parties are defined to be
any entity other than M2M or UINFO and their affiliated companies that do
not directly or indirectly own or control more than Three Percent (3%) of
the outstanding common stock in M2M.
5. Also, any stock defined in (3) above that is not yet issued, shall become
issued at the option and written request of UINFO upon the sale of Fifty
Percent (50%) or more of M2M to any third party or entity, in which event
these shares may be issued just prior to the completion of such sale and
the issuance of which may be conditioned upon the completion of such sale.
PHASE 1:
During Phase 1, UINFO shall develop a complete demonstration model of the music
sales and distribution software showing the Web interactive HMI (Human Machine
Interface) that allows sampling and purchasing of music as well as the
accounting forms to be used for providing complete accounting of the purchases
and fund distribution. Within thirty (30) days of the completion of this phase,
M2M shall deliver from escrow to UINFO One Third (1/3) of the total of each
respective type of shares indicated in Item 2 above and One Third of the funds
so indicated ($500,000 US). This phase is scheduled to be completed by November
7, 2000 as shown in Appendix B. Since the schedule for Phase 2 shall not begin
until all the funds due for Phase 1 have been paid, payment of these funds shall
be made as soon as M2M has the funds available from its fund raising efforts,
the thirty (30) day period defined above notwithstanding.
PHASE 2:
During Phase 2, UINFO shall finish developing and deliver to M2M the complete
operational system including the music sales and distribution system with the
accounting system so that sales can commence on the Internet for selling M2M
secured downloadable music and take orders for CDs and provide appropriate
accounting to the owners of the music being sold. In addition, UINFO shall
support M2M in defining the requirements to be developed during Phase 3. Within
thirty (30) days of the completion of this phase, M2M shall deliver from escrow
to UINFO One Third (1/3) of the total of each respective type of shares
indicated in Item 2 above and One Third of the funds so indicated ($500,000 US).
This phase is scheduled to be completed within four months of receipt of payment
from Phase 1 as shown in Appendix B. Since the schedule for Phase 3 shall not
begin until all the funds due for Phase 2 have been paid, payment of these funds
shall be made as soon as M2M has the funds available from its fund raising
efforts, the thirty (30) day period defined above notwithstanding.
PHASE 3:
During Phase 3, UINFO shall finish developing and deliver to M2M the updated
complete operational system that in addition to the features contained in the
system delivered in Phase 2 also has the ability to manufacture and ship
individually ordered, customized CDs, and also has incorporated in it the
proprietary advertising software described above and the database and other
features necessary to implement it. The details of what is included during this
phase shall be further defined before the end of Phase 2. Within thirty (30)
days of the completion of this phase, M2M shall deliver from escrow to UINFO the
final One Third (1/3) of the total of each respective type of shares indicated
in Item 2 above and the final One Third (1/3) of the total of each respective
type of shares indicated in Item 2 above and the final One Third of the funds so
indicated ($500,000 US). This phase is scheduled to be completed within four
months of receipt of payment from Phase 2 as shown in Schedule B.
WARRANTIES:
(a) UINFO hereby warrants and represents that it has the right and power to
grant the Rights herein described in Item Two (2) of this Agreement and is free
to enter into this agreement with M2M. Upon the execution of this Agreement,
UINFO shall provide M2M with existing documentation regarding its proprietorship
of and ability to grant the Rights as set forth herein.
(b) UINFO hereby warrants and represents that it has not assigned or in any
other way sold, conveyed, transferred or encumbered all or any portion of the
Rights described in Item Two (2), to any other person, firm or corporation by
any instrument or agreement or agreement now valid or outstanding except as
disclosed to M2M by December 1, 2000.
MISCELLANEOUS
(a) The parties hereto do hereby agree that they are each dealing with the other
under this Agreement as independent parties and that this Agreement does not
create, not create, nor is it intended in any way to create a joint venture or
partnership between the parties hereto.
(b) This Agreement resulting from this Agreement may not be assigned by either
party without the prior written consent of the other party or one or more of the
principals.
(c) Both parties agree to hold all information received from the other party
hereto in confidence and all contracts, names, names of clients will not be used
by the other party in any type of endeavor or that party will be held liable for
damages. (d) Any notice required by or provided pursuant to this Agreement or
the resulting agreement shall eb given in writing by means of facsimile, the
U.S. Postal Service or any professional delivery service that requires a signed
written receipt conforming delivery of the envelope or package containing the
notice. The effective date of the notice shall be the date it is FAXed or
delivered to the party for which it is intended. If the notice is for UINFO, it
shall be delivered to the following address or to such other addresses as UINFO
may designate by notice:
Name UINFO International, Inc.
Address 716 Chelcickeho
City 76205 2 Lin
State Czech Republic, 76205
Attn: Mr. Miroslav Rajch
Phone 011-420-67-721-0608
Fax ______________________
If the notice is to M2M it shall be delivered to the following address or to
such addresses that M2M shall designate by notice:
Name Mind2Market, Inc.
Address 777 S. Wadsworth Boulevard, Suite B1-200
City Lakewood
State Colorado Zip 80226
Attn: James R. Clark
Phone 303-438-9185
Fax 303-438-9243
(e) The agreement resulting from this Agreement may be executed in any
number of counterparts agreed to by both parties in writing, each of which shall
be deemed to be an original and all of which together shall be deemed to be one
and the same agreement.
(f) The agreement resulting from this Agreement sets forth the entire
agreement of the parties, all prior verbal or written agreements, whether
express or implied, being merged therein.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date set forth below to be effective as provided in the first sentence of the
Agreement, subject to the approval of the Board of Directors of M2M.
Date: October 2, 2000 /s/ Miroslav Rajch
-------------------------------
Miroslav Rajch, President
UINFO International, Inc.
Date: October 2, 2000 /s/ James R. Clark
-------------------------------
James R. Clark, CEO
Mind2Market, Inc.
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
VAN DORN & BOSSI
Certified Public Accountants
VAN DORN & BOSSI
Certified Public Accountants
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 for Mind2Market, Inc., of our report dated May 23, 2001
relating to the December 31, 2000 financial statements of Mind2Market, Inc.
/s/Van Dorn & Bossi
- --------------------------------
Van Dorn & Bossi, C.P.A.'s
Boulder, Colorado
August 14, 2001