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As filed with the Securities and Exchange Commission December 28, 2000
Registration No. 333-47948
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________________
Amendment No. 1 to
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________________________
ADVANCED RADIO TELECOM CORP.
(Exact name of registrant as specified in its charter)
Delaware 52-1869023
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
500 108th Avenue NE, Suite 2600, Bellevue, Washington 98004 (425) 688-8700
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Thomas M. Walker, Esq.
Senior Vice President and General Counsel
500 108th Avenue NE, Suite 2600
Bellevue, Washington 98004
(425) 688-8700 / (425) 990-1642 (fax)
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies of all communications to:
Mary E. Weber, Esq.
Joel F. Freedman, Esq.
Ropes & Gray
One International Place
Boston, MA 02110-2624
(617) 951-7000 / (617) 951-7050 (fax)
Approximate date of commencement of proposed sale to the public: From time to
time after the effectiveness of the Registration Statement.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box.
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box.
If this form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement under the earlier effective
registration statement for the same offering.
If this form is a post effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box:
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PROSPECTUS Subject to Completion
December 28, 2000
Advanced Radio Telecom Corp.
Common Stock
9,698,166 Shares
_________________
This prospectus relates to the offer and sale from time to time by the
selling shareholders listed on page 8 of this prospectus of a total of
9,698,166 shares of common stock of Advanced Radio Telecom Corp. See "Selling
Shareholders" in this prospectus for more information. The price to the public
for the shares and the proceeds to the selling shareholders will depend upon the
market price of such securities when sold. Pursuant to our rights agreement, one
right to purchase a unit of junior preferred stock is deemed to be delivered
with each share of common stock issued by us. The number of shares being offered
for sale represents approximately 25% of our outstanding shares of common stock
and approximately 14% of our voting power as of December 19, 2000.
Investment in our common stock involves a high degree of risk. See "Risk
Factors" beginning on page 1 to read about risks you should consider before
acquiring shares of our common stock.
The common stock is listed on the Nasdaq National Market with the ticker
symbol: "ARTT." On December 22, 2000, the closing price of one share of common
stock on the Nasdaq National Market was $0.91.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
__________________
The date of this Prospectus is , 2000.
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<TABLE>
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TABLE OF CONTENTS
Page
<S> <C>
THE COMPANY........................................................... 1
RISK FACTORS.......................................................... 1
USE OF PROCEEDS....................................................... 10
SELLING SHAREHOLDERS.................................................. 10
PLAN OF DISTRIBUTION.................................................. 11
WHERE YOU CAN FIND MORE INFORMATION................................... 13
LEGAL OPINION......................................................... 14
EXPERTS............................................................... 14
</TABLE>
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THE COMPANY
We provide businesses with high speed transmission services, including
access to the Internet. We own and operate high speed wireless networks in
Dallas/Fort Worth, Houston, Los Angeles, Phoenix, Portland, San Diego, San Jose,
Seattle, and Washington, D.C. We have licenses throughout the United States
allocated by the FCC for wireless high speed transmissions, known as 39 GHz
licenses. We own other licenses for wireless high speed transmission in the
United Kingdom and several Scandinavian countries. Our executive offices are
located at 500 108th Avenue NE, Suite 2600, Bellevue, Washington 98004. Our
telephone number is (425) 688-8700.
RISK FACTORS
An investment in these shares involves a high degree of risk. You should
consider carefully the following risk factors, together with the other
information in, or incorporated into, this prospectus, before acquiring any
shares. Any of the following risks could materially adversely affect our
business, financial conditions or results of operation. This, in turn, could
cause the trading price of our common stock to decline.
Our incurrence of negative cash flows and operating losses during the next
several years may adversely affect the price of our common stock.
We have generated only nominal revenues from operations to date. We have
generated operating and net losses since our inception and we expect to generate
significant operating and net losses for at least the next several years. In
particular, we had a net loss of approximately $97 million in 1999 and $48
million for the nine months ended September 30, 2000, and an accumulated deficit
of $288 million at September 30, 2000. We may not develop a successful business
or achieve or sustain profitability in the future. Our ability to achieve
profitability will depend, in part, on our ability to:
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. raise adequate additional capital when required;
. attract and retain an adequate customer base;
. acquire adequate access rights for our network;
. deploy and commercialize our network;
. attract and retain experienced and talented personnel; and
. establish strategic business relationships.
We may not be able to do any of these successfully.
In light of our brief operating history and change of strategy, you may have
difficulty evaluating us.
We have a limited operating history under our current business strategy. We
commenced commercial operations during the last 18 months as a provider to
businesses of high speed transmission services, including access to the
Internet. As a result, limited historical operating and financial information
about our current strategy is available for you to evaluate. Also, comparisons
of our financial results to prior periods may not be useful.
If we are unable to obtain additional capital, we may not be able to expand our
network, fund our operations or meet our obligations. We may be required to
raise capital on unfavorable terms.
At September 30, 2000, we had cash and cash equivalents of approximately
$112.4 million. In October 2000, we made the remaining payment of $61.6 million
for auction licenses from the FCC. Giving effect to the October auction license
payment, cash and cash equivalents at September 30, 2000, would have been $50.8
million. We have incurred losses from operations since inception and expect to
continue to incur losses from operations for at least the next few years. We are
in the process of evaluating our strategy and business plan. Changes to our
business plan will affect our capital requirements. We will need to raise
substantial additional capital to fund our operations and our business plan. We
have engaged investment bankers to assist us in obtaining financing. In order to
obtain needed funds, we may be required to issue equity or debt on unfavorable
terms. If we sell equity at unfavorable prices your interest in us could be
materially diluted. However, we may not be able to obtain additional financing
at all, or on acceptable terms. We believe that raising capital for emerging
telecommunications companies has become difficult due to changes in the capital
markets. We have reduced expenditures to conserve cash and, if additional
financing is not obtained soon, we will make further reductions in expenditures.
Our failure to access capital on acceptable terms or delays in obtaining
financing could result in the modification, delay or abandonment of some or all
of our business plan, which could result in our not being able to meet our
obligations when due.
We may be unable to comply with our debt covenants or repay or refinance our
debt when due, which may require us to take steps that limit our operating
flexibility and growth.
Our ability to make principal and interest payments on our indebtedness
will depend in part upon our future operating performance and cash flow and our
ability to obtain additional debt or equity financing on acceptable terms. These
will depend on a number of factors, many of which are out of our control. Until
and including the February 15, 2000 payment, interest payments on our senior
notes were funded through an escrow account of pledge securities. Future
interest payments on our senior notes will not be funded by the escrow. As we do
not expect to generate cash from operations for the next few years, we will need
to raise additional funds to meet interest payments in future periods. Our
inability to obtain financing promptly and changes in the business plan could
also affect our ability to comply with the covenants under our credit facility
with Cisco Systems Capital Corporation. We may be unable to obtain amendments or
waivers from Cisco at all or on favorable terms. We also may not generate
sufficient cash flow to repay our debt obligations at maturity. If we are unable
to raise additional funds, then in order to meet our debt obligations, we may be
required to renegotiate the payment terms of all or a portion of our
indebtedness on less favorable terms or to sell assets. We may not be able to do
any of these things successfully and doing these things may limit our operating
flexibility and growth.
Our high leverage creates financial and operating risks that could limit the
growth of our business.
We have a significant amount of debt. We may incur substantial additional
debt to finance our business strategy. Our high leverage could have adverse
consequences to us, including:
. requiring us to use a substantial portion of our cash to make payments
on debt;
. limiting our flexibility to respond to changes in the industry and
economic conditions generally;
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. in the event of default, forcing us to renegotiate or refinance our
debt at less favorable terms, preventing us from obtaining future
financing, forcing us to sell our assets and restricting our
operations;
. making us more vulnerable to adverse economic conditions in the event
of an economic downturn; and
. placing us at a competitive disadvantage to competitors with less
leverage.
If our services do not achieve market acceptance we may lose or not obtain
revenue.
We and other providers have only recently begun to market fixed wireless
high speed services. Because the provision of wireless high speed transmission
services represents an emerging sector of the telecommunications industry, the
demand for our services is uncertain. A substantial market for our services may
not develop. The demand for our services may be adversely affected by:
. historical perceptions of the unreliability of previous wireless
technologies;
. concerns about the security of transmissions over wireless networks;
. the lack of market history of operational fixed wireless services; and
. possible desire of customers to acquire telecommunications services
from a single provider.
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Insufficient acceptance of our services would adversely affect our
revenues and our ability to achieve profitability.
Our equipment, equipment suppliers and service providers may not perform as we
expect, which could delay or affect the quality of our services, increase our
costs and reduce our revenues.
Some of the equipment we are deploying in our network has not been widely
used. This equipment may not provide us with the functionality or quality we
expect. Also, our equipment suppliers may not be able to timely provide us with
equipment we need to build our network and deliver our services. The service
providers we use to deploy our networks also may not perform as we plan. Any of
these could delay the deployment of our network, adversely affect the quality of
our service, increase our costs and reduce our revenues.
Because of our limited experience, we may be unsuccessful in executing our
strategy, which could increase our costs and adversely affect our market
penetration.
We may be unsuccessful in executing our strategy. We have limited
experience providing high speed transmission services. We also have limited
experience in deploying, maintaining and operating wireless networks. We may not
effectively be able to do these things. We also may not effectively manage the
third party relationships upon which our success depends. In addition, we may
not be able to manage our planned implementation of our business plan in
multiple markets. The failure to do any of these could increase our costs and
adversely affect our market penetration.
Our market is highly competitive and we may be unable to compete effectively,
especially against competitors with greater financial and other resources, which
may affect our ability to attract customers and grow and maintain our
sales.
We operate in a highly competitive environment and may not be able to
successfully compete. We compete with other providers of telecommunications
services that use a variety of telecommunications technologies including copper,
fiber, cable, mobile and fixed wireless and satellite networks. We also expect
to compete with new providers and technologies not yet introduced. To date, we
do not have a significant market share in any of the markets in which we are
operating. Given the intense competition we may be unable to compete effectively
with these and other technologies and service providers and consequently we may
be unable to attract customers and grow and maintain our sales.
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Many of our competitors are larger and have greater financial and other
resources and have more experience than we have. As a result, these competitors
may be able, among other things, to better develop and exploit new technologies,
adapt to changes in customer requirements more quickly, devote greater resources
to the marketing and sale of their services or more rapidly deploy and build-out
a network than we can.
We may lose sales to our competitors if we are unable to adapt to changes in
technology and industry requirements.
If we are unable to offer high speed wireless transmission services that
exploit advanced technologies or unable to anticipate or adapt to evolving
industry standards, we may lose sales to our competitors. In particular:
. our services may become economically or technically outmoded by
current or future technologies with which we may compete;
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. we may not be able to arrange to offer the new services required by
our customers;
. we may not have sufficient resources to develop or acquire new
technologies or introduce new services capable of competing with
future technologies or service offerings;
. our equipment may be rendered obsolete; and
. the cost of our equipment and network may decline slower than that of
competitive alternatives.
We may be delayed or prevented from deploying our network by our inability to
secure suitable locations for our radios, and may be unable to provide the
services on which our future performance will depend.
We install our radios and antennas primarily on rooftops of buildings and
on other tall structures. Therefore, we must generally secure building access
rights and access to conduits and wiring from building owners. In addition, we
may require construction, zoning, franchises or other governmental permits. If
we are unable to secure suitable access or any permits in any market we may be
unable to deploy our network timely or at all in that market.
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Our FCC licenses may be canceled or revoked for violations of the FCC's rules,
which could limit our operations and growth.
Our FCC radio licenses are currently our principal assets. As an FCC
licensee and as a common carrier, we are subject to comprehensive regulatory
oversight, including regulations constraining ownership of us, rules governing
the services we can provide and impacting the prices we charge, and rules
related to construction and operation of our network. Under certain
circumstances, our licenses may be revoked, canceled, conditioned or the FCC
may fail to renew our licenses. For example, the licenses may be revoked for
violations of the FCC's rules or we may be fined. We may not be able to meet the
requirements for renewal of our licenses. The loss of some of our licenses could
limit the expansion of our business. Even the initiation of a proceeding that
may result in the loss of our licenses could adversely affect our business.
We are subject to comprehensive and continually evolving regulation that could
increase our costs and adversely affect our ability to successfully implement
our business plan.
We and some of our communications services and installations are regulated
by the FCC, the states, local zoning authorities, and other governmental
entities. These regulators regularly conduct rulemaking proceedings and issue
interpretations of existing rules. For example, the FCC has a number of
proceedings still pending to implement the Telecommunications Act of 1996, which
Act sought to increase competition in local telephone services. These regulatory
proceedings could impose additional obligations on us, give other competitors
rights, increase our costs, and otherwise adversely affect our ability to
implement our business plan.
We may be unable to retain or exploit high speed wireless licenses in foreign
countries, and foreign governmental regulation may slow our expansion into those
countries.
Entities owned by us have obtained licenses to provide high speed wireless
services in some Western European countries. Moreover, entities owned by us or
in which we have a substantial interest have applied or may apply for such
licenses in various other countries. We may not be able to retain or obtain
these licenses. Additionally, changes in foreign laws and regulations may result
in our foreign licenses being subject to forfeiture or other sanctions. If we do
not construct and operate using these licenses, we may forfeit them. Our
inability to retain or obtain licenses and any acts of foreign authorities which
reduce the
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<PAGE>
value of our existing licenses may result in our inability to successfully
expand into foreign markets.
We may have difficulty managing the expansion of our operations which could
result in increased costs, high employee turnover or damage to customer
relationships.
The implementation of our business plan may result in a period of rapid
growth in the number of our employees and the scope of our operations. Rapid
expansion could place a significant strain on our management, financial and
other resources. We may have difficulty obtaining additional facilities as well
as managing budgeting, forecasting, hiring and other business control issues
presented by such a rapid expansion. This could, among other things, result in
delays in billing and collections of revenue from our customers as well as in
increased costs. Moreover, our difficulty in managing the expansion of our
operations may increase employee turnover and adversely affect our relationships
with customers.
Lack of effective "back office" systems may adversely affect the provision of
services, result in customer dissatisfaction or delayed billing or collection of
revenue.
Our billing, provisioning, customer service, network management and other
"back office" systems remain in development. Significant work by us or a third-
party provider will be required to complete these systems. Delays in developing
and implementing these systems may have a negative impact on our ability to
offer our services. Delays may also result in customer dissatisfaction or delays
in billing or collection of revenue.
If we are unable to attract or retain qualified personnel we may experience
difficulty developing our business.
The implementation of our business strategy will require the addition of a
significant number of qualified personnel. Our success will be dependent, in
large part, on our ability to attract and retain qualified technical, marketing,
sales and management personnel. Competition for these personnel is intense,
particularly for those experienced in information technology and engineering. We
may be unable to attract and retain additional key employees or retain our
current key employees at a reasonable cost, if at all. To date, we have had
difficulty in attracting and retaining a sufficient number of skilled personnel
and have had to rely on consultants to provide necessary skills. The failure to
attract and retain personnel at reasonable costs could prevent us from
implementing all or some of our business plan and increase our costs.
Equipment failure or interruption of service could adversely affect our
reputation and our relations with our customers.
Our operations will require that our network, including leased fiber-optic
connections, operates on a continuous basis. The network and facilities utilized
by us may from time to time experience service interruptions or equipment
failures. Should this occur consumer confidence and our reputation could be
adversely affected.
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We may pursue acquisitions which could disrupt our business and may not yield
the benefits we expect.
We may pursue strategic acquisitions as we expand. Acquisitions may disrupt
our business. In particular, we may:
. experience difficulties integrating acquired operations and personnel
into our operations;
. divert resources and management time;
. be unable to maintain uniform standards, controls, procedures and
policies;
. enter markets or businesses in which we have little or no experience;
and
. find that the acquired business does not perform as we expected.
Our existing principal stockholders, executive officers and directors control a
substantial amount of our voting shares and will be able to significantly
influence any matter requiring shareholder approval.
As of December 19, 2000, our officers and directors and parties related to
them will control approximately 14% of the voting power of our outstanding
capital stock. Further, holders of our preferred stock representing
approximately 14% of our voting power as of December 19, 2000 have agreed to
vote as jointly directed by our two stockholders, U.S. Telesource, Inc., a
wholly owned subsidiary of Qwest Communications International Inc., and Oak
Investment Partners. In addition, each of U.S. Telesource and Oak currently has
the right to designate a director. Therefore, the officers and directors and
related parties, particularly U.S. Telesource and Oak, are able to significantly
influence any matter requiring shareholder approval.
Because our stock price has been, and is likely to be, volatile, our stock price
could experience substantial declines and our management's attention may be
diverted from more productive tasks.
The trading price of our common stock has been, and is likely to continue
to be, volatile. The stock market in general, and the market for technology and
telecommunications companies in particular, has experienced extreme volatility.
This volatility has often been unrelated to the operating performance of
particular companies. Various announcements or developments related to our
business, or that of our competitors, our industry group or our customers could
cause the market price of our common stock to fluctuate substantially. Stock
price volatility could lead to securities litigation involving us. Securities
litigation could result in our incurring substantial costs and in diverting
management's attention.
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. a shortfall in our results compared to analysts' expectations and
changes in analysts' recommendations or projections;
. sales of substantial amounts of our equity securities into the
marketplace;
. regulatory developments affecting the telecommunications industry or
data services; and
. general conditions in the telecommunications industry or the economy
as a whole.
We have anti-takeover defenses that could delay or prevent an acquisition and
could adversely affect the price of our common stock.
The telecommunications industry has experienced significant consolidation
in recent years. However, provisions of our certificate of incorporation and
bylaws and Delaware law could make it more difficult for a third party to
acquire control of us even if a change in control would be beneficial to our
shareholders. These provisions may negatively affect the price of our common
stock and may discourage third parties from bidding for us. In addition, our
board of directors may issue, without shareholder approval, shares of preferred
stock with terms set by the board. The issuance of a substantial number of
preferred shares could delay or prevent an acquisition or depress the price of
our common stock.
USE OF PROCEEDS
All net proceeds from the sale of the shares of common stock will go to the
shareholders who offer and sell them. We will not receive any proceeds from this
offering. However, the selling shareholders may use a portion of the proceeds to
repay all or part of the loan referred to below in "Selling Shareholders."
SELLING SHAREHOLDERS
Commco L.L.C. and the predecessor of Commco Technology LLC acquired their
shares of common stock from us in exchange for FCC licenses and other assets
that we acquired from them in the previously announced transaction with
BroadStream Communications Corporation. Each of those selling shareholders is a
party to a registration rights agreement in which we agreed to register their
shares of common stock upon their request. The remaining selling shareholders
other than Paul S. Bachow received their shares from Commco Technology LLC. In
connection with the transfer of shares from Commco Technology LLC to these
selling shareholders, we agreed to include their shares in this registration
statement. Bachow Communications, Inc., a corporation wholly-owned by Paul S.
Bachow, acquired shares of common stock from us in exchange for FCC licenses
that we acquired from them and subsequently transferred those shares to Paul S.
Bachow. In connection with that acquisition, we gave Bachow the right to include
those shares in future registration statements. Registration of these shares
does not necessarily mean that the selling shareholders will sell all or any of
the shares.
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In connection with the acquisition of FCC licenses and assets from Commco
L.L.C. and the predecessor of Commco Technology LLC referred to above, we loaned
the predecessor of Commco Technology LLC approximately $13 million, which amount
was due on November 22, 2000. This loan has not yet been repaid. Commco
Technology LLC may use a portion of the proceeds from this offering to repay all
or part of the loan. Also under the acquisition agreement with Commco L.L.C. and
the predecessor of Commco Technology LLC, we have an option to acquire from the
sellers, and they have the right to require us to buy, additional FCC licenses,
if they receive final orders of renewal from the FCC for the licenses. If we
acquire all of these licenses, we will be required to issue an additional
2,168,550 shares of our common stock as consideration.
The following table lists the selling shareholders and, as of December 19,
2000, the number of shares each selling shareholder beneficially owns and may
sell pursuant to this prospectus.
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Shares Beneficially Owned Maximum Shares Beneficially
Selling and Ownership Percentage Number of Shares Owned and Ownership
Shareholder Prior to Offering (1) Being Offered Percentage After Offering (1)
----------- --------------------- ------------- -----------------------------
<S> <C> <C> <C>
Commco
Technology LLC (2) 6,798,621 (17.3%) 6,798,621 0 *
Wireless Facilities, Inc. 101,606 * 101,606 0 *
ELAR Cellular (3) 85,295 * 85,295 0 *
Bear Stearns & Co. Inc. (4) 480,482 (1.2%) 480,482 0 *
Commco L.L.C.(2) 6,863,774 (17.5%) 6,863,774 0 *
Paul S. Bachow 2,122,268 (5.4%) 2,122,268 0 *
</TABLE>
_______________________
(1) Assumes the sale of all shares offered by this prospectus.
(2) Shares beneficially owned by Commco L.L.C. includes shares held of record
by Commco Technology LLC, of which Commco L.L.C. owns a majority of the
outstanding interests. Scott Reardon may be deemed to beneficially own all of
our common stock owned of record by Commco L.L.C. and Commco Technology LLC.
(3) Jerry K. Bask, the sole proprietor of ELAR Cellular, beneficially owns the
shares shown.
(4) Bear, Stearns & Co, Inc. is a registered broker-dealer under the Securities
Exchange Act of 1934 and may be deemed to be an underwriter with respect to the
shares being sold by it. Bear Stearns has advised us that it is not underwriting
the sale of any other shares in the offering and has not entered into an
agreement with us or any other selling shareholder with respect to the
distribution of any other shares in the offering.
* Less than one percent
When used in this prospectus, "selling shareholders" includes donees and
pledgees selling shares received from the named selling shareholders after the
date of this prospectus if we consent to permit those donees and pledgees to be
selling shareholders.
PLAN OF DISTRIBUTION
We will pay the expenses associated with registering the selling
shareholders' common stock. The selling shareholders will pay any brokerage
commissions and similar expenses attributable to the sale of the shares. The
selling shareholders may sell the shares of common stock on the Nasdaq National
Market, in the over-the-counter market, in private transactions other than in
the over-the-counter
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market or otherwise at prices and on terms then prevailing or at prices related
to the then current market price, or in negotiated transactions, or in a
combination of any of the above or following transactions.
The common stock may be sold in:
. block trades, where a broker or dealer will try to sell the common stock as
agent but may position and resell a portion of the block as principal to
facilitate the transaction;
. transactions where a broker or dealer acts as principal and resells the
common stock for its account pursuant to this prospectus;
. exchange distributions in accordance with the rules of such exchange; or
. ordinary brokerage transactions and transactions in which the broker
solicits purchases.
The common stock may also be sold through short sales of shares, put or
call option transactions, loans or pledges of the shares, hedging or similar
transactions, or a combination of such methods. The selling shareholders may or
may not involve brokers or dealers in any of these transactions. In effecting
sales, brokers or dealers engaged by the selling shareholders may arrange for
other brokers or dealers to participate. Brokers or dealers will receive
commissions or discounts from the selling shareholders in amounts to be
negotiated immediately prior to sale. Offers and sales may also be made directly
by the selling shareholders or other bona fide owners of the common stock, so
long as an applicable exemption from state broker-dealer registration
requirements is available in the jurisdiction of sale. The selling shareholders,
brokers or dealers and any other participating brokers or dealers may be deemed
to be "underwriters" within the meaning of the Securities Act in connection with
these sales, and any discounts and commissions received by them and any profit
realized by them on the resale of the common stock may be deemed to be
underwriting discounts and commissions under the Securities Act. Because the
selling shareholders may be deemed to be "underwriters" within the meaning of
the Securities Act, the selling shareholders will be subject to the prospectus
delivery requirements of the Securities Act. We have informed the selling
shareholders that the anti-manipulative provisions of Regulation M promulgated
under the Exchange Act may apply to their sales in the market.
Upon notification to us by a selling shareholder that any material
arrangement has been entered into with a broker or dealer for the sale of shares
through a block trade, special offering, exchange distribution or secondary
distribution or a purchase by a broker or dealer, a supplement to this
prospectus will be filed, if required, by Rule 424(b) under the Securities Act,
disclosing (i) the name of each such selling shareholder and of the
participating brokers or dealers, (ii) the number of shares involved, (iii) the
price at which such shares were sold, (iv) the commissions paid or discounts or
concessions allowed to such brokers or dealers, where applicable, (v) that such
brokers or dealers did not conduct any investigation to verify the information
set out or incorporated by reference in this prospectus and (vi) other facts
material to the transaction. In addition, if we consent to permitting a donee or
pledgee to be a selling shareholder, a supplement to this prospectus will be
filed if the donees or transferees wish to use this prospectus to re-offer the
shares.
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The selling shareholders may sell common stock to creditors of the selling
shareholders in satisfaction of outstanding debts owed to such creditors
pursuant to negotiated account settlement agreements.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
from the SEC's Web site at "http://www.sec.gov."
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and the information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934:
. Our annual report of Form 10-K for the year ended December 31, 1999, filed
with the SEC on March 31, 2000; Form 10-K/A filed with the SEC on May 1,
2000; and Form 10-K/A filed with the SEC on May 19, 2000; and
. Our quarterly reports on Form 10-Q for the fiscal quarters ended (i) March
31, 2000, filed with the SEC on May 15, 2000, (ii) June 30, 2000, filed
with the SEC on August 11, 2000, and (iii) September 30, 2000, filed with
the SEC on November 14, 2000.
. Our report on Form 8-K filed with the SEC on November 28, 2000.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Advanced Radio Telecom Corp.
500 108th Avenue NE, Suite 2600
Bellevue, Washington 98004
Attention: Investor Relations
(425) 688-8700 / (425) 990-1642 (fax)
This prospectus is part of a registration statement that we have filed with
the SEC. You should rely only on the information or representations provided in
this prospectus. We have not authorized nor have any of the selling shareholders
authorized anyone to provide you with different information. The selling
shareholders are not making an offer of these securities in any state where the
offer is not permitted. You should not assume that the information in this
prospectus is accurate as of any date other than the date on the front of the
document.
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<PAGE>
LEGAL OPINION
For the purpose of this offering, Ropes & Gray, Boston, Massachusetts, is
giving its opinion on the validity of the shares.
EXPERTS
The consolidated financial statements incorporated in this Prospectus by
reference to the Annual Report on Form 10-K for the year ended December 31,
1999, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Distribution
SEC registration fee....................... $17,283
Legal fees and expenses*................... 75,000
Accounting fees and expenses*.............. 50,000
Miscellaneous*............................. 7,717
Total Expenses........................ $150,000
____________________
* Estimated
Item 15. Indemnification of Directors and Officers
Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, as amended (the
"DGCL"), 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, suit or proceeding, whether civil, criminal or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amount 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 corporation, and, with respect to any criminal action
or proceeding, had not reasonable cause to believe his conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any such
person serving in any such capacity who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, against expenses
actually and reasonably incurred in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the corporation and
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Delaware Court of Chancery or
such other court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnify for such expenses which the Court of Chancery or such other court
shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its
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<PAGE>
shareholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the DGCL (relating to unlawful payment of dividends and unlawful stock purchase
and redemption) or (iv) for any transaction from which the director derived an
improper personal benefit.
The Registrant's Certificate of Incorporation provides that the liability
of the directors shall be eliminated to the fullest extent permissible by
Section 102(b)(7) of the DGCL, as amended. The Certificate of Incorporation
further provides that the Registrant shall indemnify its directors and officers
to the fullest extent permitted by Section 145 of the DGCL, as amended.
For the undertaking with respect to indemnification, see Item 17
herein.
Item 16. Exhibits
Title of Exhibit
----------------
5.1 Opinion of Ropes & Gray
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Ropes & Gray (to be included in the opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (previously filed)
24.2 Power of Attorney (included on signature page filed herewith)
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act") may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the provisions
set forth in Item 15 above, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission (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 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.
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:
II-2
<PAGE>
a. To include any prospectus required by Section 10(a)(3) of
the Securities Act;
b. To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a
20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement; and
c. To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
(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.
(4) That, for purposes of determining any liability under the
Securities Act, 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.
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<PAGE>
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-3 and has duly caused this registration
statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Bellevue, State of Washington, on the 27 day
of December, 2000.
ADVANCED RADIO TELECOM CORP.
By: /s/ Robert S. McCambridge
----------------------------
Name: Robert S. McCambridge
Title: President and Chief Operating Officer
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<PAGE>
POWER OF ATTORNEY
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. Each person whose signature appears below
hereby authorizes Robert S. McCambridge and Thomas M. Walker, jointly and
severally, with full power to each, to execute in the names and on behalf of
such person any amendment (including any post-effective amendment) to this
Registration Statement (or any other registration statement for the same
offering that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933) and to file the same, with exhibits thereto, and other
documents in connection therewith, making such changes in this Registration
Statement as the person(s) so acting deems appropriate, and appoints each of
such person, each with full power of substitution, attorney-in-fact to sign any
amendment (including any post-effective amendment) to this Registration
Statement (or any other registration statement that is to be effective upon
filing pursuant to Rule 462(b) of the Securities Act of 1933) and to file the
same, with exhibits thereto, and other documents in connection therein.
Pursuant to the requirement of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Wharton B. Rivers Chief Executive
-------------------------- Officer, Director December 27, 2000
Wharton B. Rivers
/s/ Robert S. McCambridge
-------------------------- President, Director December 27, 2000
Robert S. McCambridge
* Senior Vice President, December 27, 2000
-------------------------- Finance (principal
Darla Norris financial officer)
*
--------------------------
Bandel L. Carano Director December 27, 2000
*
--------------------------
Andrew I. Fillat Director December 27, 2000
*
--------------------------
Richard T. Liebhaber Director December 27, 2000
*
--------------------------
James B. Murray, Jr. Director December 27, 2000
*
--------------------------
Marc B. Weisberg Director December 27, 2000
* By: /s/ Robert S. McCambridge
------------------------------
Robert S. McCambridge
Attorney-in-Fact
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<PAGE>
EXHIBIT INDEX
Number Title of Exhibit Page
------ ---------------- ----
5.1 Opinion of Ropes & Gray
23.1 Consent of PricewaterhouseCoopers LLP, Independent
Accountants
23.2 Consent of Ropes & Gray (to be included in the opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (previously filed)
24.2 Power of Attorney (included on signature page filed herewith)
