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As filed with the Securities and Exchange Commission on December 6, 1999.
File No. 333-_____________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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HIGH SPEED ACCESS CORP.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 61-1324009
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(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification Number)
</TABLE>
4100 East Mississippi Avenue, Denver, Colorado 80246
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(Address, including zip code, of Principal Executive Offices)
High Speed Access Corp. 1999 Non-Employee Directors Stock Option Plan
High Speed Access Corp. 1998 Stock Option Plan
High Speed Access Corp. 1999 Stock Option Plan
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(Full Titles of the Plans)
Copies to:
<TABLE>
<S> <C>
Mr. Daniel J. O'Brien John G. Hundley, Esq.
President Vice President and General Counsel
High Speed Access Corp. High Speed Access Corp.
4100 East Mississippi Avenue 1000 W. Ormsby Avenue
Denver, Colorado 80246 Louisville, Kentucky 40210
(303) 256-2000 (502) 515-3333
------------------------------------------------------------------------------------------------
(Name, address and telephone number, including area code, of agent for service)
</TABLE>
Copy to:
Caryn F. Price, Esq.
Wyatt, Tarrant & Combs
2800 Citizens Plaza
Louisville, Kentucky 40202
(502) 562-7231
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed
Title of securities to be Amount to be Proposed maximum offering maximum aggregate Amount of
registered registered price per share (1) offering price (1) registration fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 940,705 (2) $22.50 $21,165,862 --
par value
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Common Stock, $.01 par 3,091,394 (2) $15.74 $48,663,252.54 $18,434.89
value
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</TABLE>
(1) Pursuant to Rule 457(h), the proposed maximum offering price per share,
the proposed maximum offering price and the registration fee
calculation are based on the average of the high and low prices for the
Common Stock as reported on the Nasdaq National Market on December 2,
1999 with respect to 940,705 shares and on the basis of the weighted
average exercise prices of options previously granted with respect to
3,091,394 shares.
(2) The amount of Common Stock to be registered hereby includes such
additional shares as may be issued pursuant to the anti-dilution
provisions of the respective plans to reflect stock splits, stock
dividends or similar transactions pursuant to Rule 416(a) under the
Securities Act of 1933, as amended (the "Securities Act"), without the
need of a post-effective amendment.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by High Speed Access Corp. (the
"Registrant") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated herein by reference and deemed to be a part hereof from
the date of the filing of such documents:
1. The audited consolidated financial statements of the Registrant and
its subsidiaries as of December 31, 1998 and for the period April 3, 1998
(inception) through December 31, 1998 contained in the Prospectus dated June 4,
1999 filed by the Registrant under Rule 424(b) (SEC File No. 333-74667);
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999 (filed August 13, 1999);
3. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1999 (filed November 15, 1999); and
4. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A (SEC File No. 000-26153),
including any subsequent amendment or report filed for the purpose of updating
that description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein and filed prior to the
filing hereof shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein modifies
or supersedes such statement, and any statement contained herein or in any other
document incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained in any other subsequently filed document which also is
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the common stock offered hereby will be passed upon for
the Registrant by Wyatt, Tarrant & Combs, Louisville, Kentucky. Wyatt, Tarrant &
Combs provides legal services from time to time to the Registrant. Partners of
Wyatt, Tarrant & Combs own shares of the Registrant's common stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Amended and Restated Certificate of Incorporation (the
"Certificate") provides that, except to the extent prohibited by the Delaware
General Corporation Law, as amended (the "DGCL"), the Registrant's directors
shall not be personally liable to the Registrant or its stockholders for
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<PAGE> 3
monetary damages for any breach of fiduciary duty as directors of the
Registrant. Under the DGCL, the directors have a fiduciary duty to the
Registrant which is not eliminated by this provision of the Certificate and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of non-monetary relief will remain available. In addition, each director will
continue to be subject to liability under the DGCL for breach of the director's
duty of loyalty to the Registrant and its stockholders, for acts or omissions
which are found by a court of competent jurisdiction to be not in good faith or
involving intentional misconduct, for knowing violations of law, for actions
leading to improper personal benefit to the director, and for payment of
dividends or approval of stock repurchases or redemptions that are prohibited by
DGCL. This provision also does not affect the directors' responsibilities under
any other laws, such as the Federal securities laws or state or Federal
environmental laws. The Registrant has obtained liability insurance for its
officers and directors.
Section 145 of the DGCL empowers a corporation to indemnify its
directors and officers and to purchase insurance with respect to liability
arising out of their capacity or status as directors and officers. The
Certificate provides that the Registrant shall indemnify any person who was or
is a party or is threatened to be made a party to or becomes involved in any
action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that such person is or was a director or
officer of the Registrant, or is or was serving at the request of the Registrant
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement reasonably incurred by such person in connection with such action,
suit or proceeding. The DGCL provides further that the indemnification permitted
thereunder shall not be deemed exclusive of any other rights to which the
directors and officers may be entitled under the corporation's bylaws, any
agreement, a vote of stockholders or otherwise. The Registrant has entered into
indemnification agreements with each member of the Board of Directors and
certain executive officers of the Registrant providing for the indemnification
of the directors and such officers to the fullest extent authorized, permitted
or allowed by Delaware law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
See Exhibit Index, which is incorporated herein by reference.
ITEM 9. 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 of 1933;
(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 low or high
end of the 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
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a 20 percent change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above 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 by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
being offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
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 Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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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 Denver, State of Colorado, on the 30th day of
November, 1999.
HIGH SPEED ACCESS CORP.
By: /s/ George E. Willett
---------------------------------------
George E. Willett
Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints George E. Willett and John G. Hundley,
and each of them, with the power to act without the other, his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her, and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully and to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed below by the following
persons on the dates and in the capacities indicated.
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<CAPTION>
Name Capacity Date
- ---- -------- ----
<S> <C> <C>
/s/ Ron Pitcock, Sr. President (Principal Executive November 30, 1999
- ------------------------------- Officer)
Ron Pitcock, Sr.
/s/ George E. Wilett Chief Financial Officer (Principal November 30, 1999
- ------------------------------- Financial and Accounting Officer)
George E. Willett
/s/ David A. Jones, Jr. Director, Chairman November 30, 1999
- -------------------------------
David A. Jones, Jr.
/s/ Robert S. Saunders Director, Vice Chairman November 30, 1999
- -------------------------------
Robert S. Saunders
/s/ Irving W. Bailey, II Director November 30, 1999
- -------------------------------
Irving W. Bailey, II
</TABLE>
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<TABLE>
<CAPTION>
Name Capacity Date
- ---- -------- ----
<S> <C> <C>
/s/ Michael E. Gellert Director November 30, 1999
- ------------------------------
Michael E. Gellert
/s/ Jerald L. Kent Director November 30, 1999
- ------------------------------
Jerald L. Kent
/s/ William D. Savoy Director November 30, 1999
- ------------------------------
William D. Savoy
/s/ Stephen E. Silva Director November 30, 1999
- ------------------------------
Stephen E. Silva
</TABLE>
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EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
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Exhibit Number Description
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation of High Speed Access Corp. (incorporated by reference to
Exhibit 3.1 to the Registrant's Registration Statement on Form S-1, as amended (SEC File No. 333-74667))
4.2 Amended and Restated Bylaws of High Speed Access Corp. (incorporated by reference to Exhibit 3.2 to the
Registrant's Registration Statement on Form S-1, as amended (SEC File No. 333-746667))
5.1 Opinion of Wyatt, Tarrant & Combs
23.1 Consent of Wyatt, Tarrant & Combs (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included on the signature page)
99.1 High Speed Access Corp. 1998 Stock Option Plan (incorporated by reference to Exhibit 10.30 to the
Registrant's Registration Statement on Form S-1, as amended (SEC File No. 333-74667))
99.2 High Speed Access Corp. 1999 Stock Option Plan (incorporated by reference to Exhibit 10.31 to the
Registrant's Registration Statement on Form S-1, as amended (SEC File No. 333-74667))
99.3 High Speed Access Corp. Non-Employee Director Stock Option Plan (incorporated by reference to
Exhibit 10.32 to the Registrant's Registration Statement on Form S-1, as amended (SEC File No. 333-74667))
</TABLE>
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Exhibit 5.1
[Letterhead of Wyatt, Tarrant & Combs]
November 30, 1999
Board of Directors
High Speed Access Corp.
4100 East Mississippi Avenue
Denver, Colorado 80246
Re: 4,032,099 Shares of the Common Stock, $.01 Par Value Per
Share of High Speed Access Corp., a Delaware Corporation
(the "Company")
Gentlemen:
We have acted as counsel to the Company in connection with the
Registration Statement on Form S-8 (the "Registration Statement") being filed by
the Company with the Securities and Exchange Commission pursuant to the
Securities Act of 1933 (as amended) (the "Act"), to register not more than
4,032,099 shares of the Company's Common Stock, $.01 par value per share,
("Common Stock"), 467,099 of such shares to be issued by the Company pursuant to
the High Speed Access Corp. 1998 Stock Option Plan; 3,100,000 of such shares to
be issued by the Company pursuant to the High Speed Access Corp. 1999 Stock
Option Plan; and 465,000 of such shares to be issued by the Company pursuant to
the High Speed Access Corp. 1999 Non-Employee Directors Stock Option Plan
(collectively, the "Plans").
For purposes of rendering the opinion expressed herein, we have
examined and are familiar with the Company, its organization and proceedings
related thereto. We have also examined such other documents and procedures as we
have considered necessary for the purpose of this opinion. We have relied upon
certificates of public officials and representations of officials of the
Company, and have assumed that all documents examined by us as originals are
authentic, that all documents submitted to us as photocopies are exact
duplicates of original documents, and that all signatures on all documents are
genuine.
We have assumed for purposes of this opinion that, to the extent
options are granted under the Plans, the shares of Common Stock will be validly
authorized on the respective dates of exercise of any options under the Plans,
and that on the dates of exercise the options will have been duly executed and
delivered and will constitute the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective
terms.
Based upon and subject to the foregoing and subsequent assumptions,
qualifications and exceptions, we are of the opinion that the shares of Common
Stock to be issued by the Company pursuant to the Plans will be duly authorized
and, when issued and sold by the Company in accordance with the Registration
Statement, the prospectus delivered to participants in the respective Plans
pursuant to the requirements of the Act, the pertinent provisions of any
applicable state securities laws, and the applicable Plans, such shares of
Common Stock will be duly and validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the laws of the United States and
the General Corporation Law of the State of Delaware and we express no opinion
with respect to the laws of any other state or jurisdiction. Although we are not
licensed to practice law in the State of Delaware, we believe we are
sufficiently familiar with the General Corporation Law of the State of Delaware
to render the opinions expressed herein.
<PAGE> 2
Board of Directors
High Speed Access Corp.
November 30, 1999
Page 2
Our opinion is directed to the Board of Directors of the Company and
may not be relied upon by an persons other than said directors, recipients of
the prospectus and participants in the respective Plans. We expressly disclaim
any responsibility for advising you of any change hereafter occurring in
circumstances touching or concerning the transaction which is the subject of
this opinion, including any changes in the law or in factual matters occurring
subsequent to the date of this opinion.
We hereby consent to the filing of this opinion, or copies thereof, as
an Exhibit to the Registration Statement. In giving this consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Securities and Exchange Commission thereunder.
Yours very truly,
/s/ WYATT, TARRANT & COMBS
<PAGE> 1
Exhibit 23.2
Consent of PricewaterhouseCoopers LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of High Speed Access Corp of our report dated March 12,
1999 except as to the third paragraph of Note 8 and the first seven paragraphs
of Note 14, for which the date is May 3, 1999, and as to the last paragraph of
Note 14 for which the date is May 21, 1999 relating to the consolidated
financial statements, which appears in High Speed Access Corp's Registration
Statement on Form S-1 (File No. 333-74667) dated June 4, 1999 filed with the
Securities and Exchange Commission.
PricewaterhouseCoopers LLP
Louisville, Kentucky
November 24, 1999
