As Filed with the Securities and Exchange Commission on December 13, 2000.
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
HIGH SPEED ACCESS CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 61-1324009
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
10901 WEST TOLLER DRIVE
LITTLETON, COLORADO 80127
(720) 922-2500
(Address, including ZIP code, and telephone number, including area code, of
registrant's principal executive offices)
JOHN G. HUNDLEY
SECRETARY AND SENIOR VICE PRESIDENT OF BUSINESS DEVELOPMENT
10300 ORMSBY PARK PLACE
LOUISVILLE, KENTUCKY 40223
(502) 420-7452
(Name, address, including ZIP code, and telephone number, including
area code, of agent for service)
Copy to:
JEREMY DICKENS, ESQ.
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153
(212) 310-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective.
If the securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If 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, please check the following box. [X]
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 number of 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. [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
================================================ ============= ================== ======================== ==============
Proposed
Amount Proposed Maximum Maximum Amount of
Title of Each Class of To be Offering Price Aggregate Registration
Securities to be Registered(1) Registered Per Unit Offering Price Fee
------------------------------------------------ ------------- ------------------ ------------------------ --------------
<S> <C> <C> <C> <C>
Common stock, $.01 par value 2,961,718 $1.82(2) $5,390,326.76 $ 1,423.05
------------------------------------------------ ------------- ------------------ ------------------------ --------------
Common stock issuable upon exercise of 277,306 $5.59(3) $1,550,140.54 $ 409.24
outstanding Warrants
------------------------------------------------ ------------- ------------------ ------------------------ --------------
Total 3,239,024 $6,940,467.30 $1,832.29
================================================ ============= ================== ======================== ==============
(1) This registration statement is being used to register 2,961,718 shares of
common stock owned by selling stockholders and 277,306 shares of common
stock underlying warrants owned by selling stockholders, plus an
indeterminate number of shares of common stock which may be issued by
reason of the antidilution provisions of the warrants.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c) under the Securities Act of 1933, as amended, on the basis
of the average of the high and low sales prices of the Registrant's common
stock on the Nasdaq National Market on December 7, 2000.
(3) Calculated pursuant to Rule 457(g) under the Securities Act of 1933, as
amended, on the basis of the exercise price of the warrants.
</TABLE>
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
NY2:\958285\15\52678.0004
<PAGE>
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
THE SELLING STOCKHOLDERS IDENTIFIED IN THIS PROSPECTUS MAY NOT SELL THESE
SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL NOR IS
IT SEEKING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE
IS NOT PERMITTED.
Subject to Completion. Dated __________ __, 2001.
PROSPECTUS
HIGH SPEED ACCESS CORP.
3,239,024 Shares of Common Stock
The stockholders identified in this prospectus are offering:
o 2,961,718 shares of common stock owned by selling
stockholders; and
o 277,306 shares of common stock underlying warrants
owned by selling stockholders.
We will not receive any of the proceeds from sales of the shares.
Our common stock trades on the Nasdaq National Market under the symbol
HSAC. On December 12, 2000, the last reported sale price of the common stock on
the Nasdaq National Market was $1.78 per share.
SEE "RISK FACTORS" BEGINNING ON PAGE 5 OF THIS PROSPECTUS FOR A
DISCUSSION OF MATERIAL RISKS THAT AN INVESTOR SHOULD CONSIDER BEFORE BUYING HSA
COMMON STOCK.
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 __________ __, 2001.
<PAGE>
TABLE OF CONTENTS
HIGH SPEED ACCESS CORP.................................................3
RISK FACTORS...........................................................5
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS.....................21
WHERE YOU CAN FIND MORE INFORMATION...................................22
USE OF PROCEEDS.......................................................24
SELLING STOCKHOLDERS..................................................24
PLAN OF DISTRIBUTION..................................................29
LEGAL MATTERS.........................................................30
EXPERTS 30
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HIGH SPEED ACCESS CORP.
Because this is a summary, it does not contain all the information
about HSA that may be important to you. You should read the more detailed
information and the financial statements and related notes which are
incorporated by reference in this Prospectus.
We provide high speed Internet access via cable modem to residential
and commercial customers primarily in exurban areas. We enter into long-term
exclusive contracts with cable system operators to provide them with either a
comprehensive "full turnkey" or "partial turnkey" solution. These solutions
provide high speed Internet access to a cable system's customers.
In exchange for providing us with access to customers in the full
turnkey solution, we pay the cable operator a portion of the monthly fees
received from an end user that subscribes to the services. In a partial turnkey
or "network services" solution, we deliver fewer services and incur lower costs
than in a full turnkey solution but also earn a smaller percentage of the
subscription revenue or a fixed fee on a per subscriber basis. For partial
turnkey services, our cable partners typically bill the end user and pay us a
percentage of the revenue or a fixed fee. Partial turnkey solutions have become
a significant part of our business mix, and we anticipate that this trend will
continue.
We also provide other value added services to cable operators, such as
engineering services related to design and installation of data network hardware
and software necessary to offer Internet service via cable modems, on a fee for
service basis.
Our revenue from dial-up services, as a percentage of our total
revenue, has decreased and will continue to decline over time as our high speed
business and other service revenue grows. Moreover, although we expect cable
modem rentals to be a significant part of our revenue during the next few years,
we expect our cable modem rental income to decrease as cable modems become
commercially available at lower costs through retail stores and as they become
standard features of personal computers. However, we will save the cost of
purchasing and installing cable modems for end users. In the future we expect to
earn revenues from additional services such as Internet telephony, and to a
lesser extent, from local content.
In addition to high speed Internet access via cable modem, we are
expanding our offering of services to include DSL Internet access on a reseller
basis. Currently, we receive no revenue from the provision of high speed DSL
Internet access but we expect to provide DSL service to commercial customers in
the future. Currently, we offer DSL service as a reseller for Northpoint
Communications Group, Inc. on a limited basis. We anticipate that our business
will become more dependent upon providing DSL service to commercial customers in
the future.
RECENT DEVELOPMENTS
In May 2000 Lucent purchased 1,250,000 shares of our common stock at
fair value for total proceeds of $10.0 million. In addition, we entered into a
general agreement with Lucent whereby Lucent will provide equipment and services
to us with an initial purchase commitment by us of $5.0 million.
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In August 2000, we completed the acquisition of Digital Chainsaw, Inc.
d/b/a Netperformance, a one-stop provider of strategic Internet services
primarily to small- and medium-sized enterprises, including web hosting, web
site and creative design, legacy systems integration and overall strategic
consulting. Moreover, we are conducting technical and customer trials for
Voice-over-Internet-Protocol, or VoIP, telephone service in collaboration with
Lucent and other major vendors, and plan to introduce second-line VoIP services
late this year. We also intend to continue expanding our suite of core
connectivity and related value-added services as broadband technology
proliferates and additional services become viable.
In October 2000 we signed a definitive agreement with Vulcan Ventures
Incorporated and Charter Communications, under which Vulcan and Charter made an
aggregate preferred equity investment of $75 million. Vulcan, an affiliate of
Microsoft Corporation co-founder Paul Allen, owns 34.5% of our outstanding
common stock as of September 30, 2000. Charter, our largest cable partner, is an
affiliate of Vulcan. Under the agreement, Vulcan and Charter have invested
approximately equal amounts. Pursuant to the agreement, Vulcan and Charter have
purchased convertible preferred stock, which may be converted into our common
stock at a conversion price of approximately $5 per share, subject to adjustment
for future stock issuances at less than the conversion price and other customary
adjustments.
On November 13, 2000, we signed a definitive agreement with ISP Channel
to negotiate with its cable affiliates with respect to the transition of these
affiliates onto our network.
Our principal executive offices are located at:
10901 West Toller Drive
Littleton, Colorado 80127
Tel: (720) 922-2828
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RISK FACTORS
You should carefully consider the following risk factors as well as the
other information contained and incorporated by reference in this prospectus
before making an investment in our common stock. Any one or a combination of
these risk factors may have a material adverse effect on us.
RISKS RELATED TO OUR OPERATIONS
-------------------------------
OUR BUSINESS IS DIFFICULT TO EVALUATE BECAUSE WE HAVE A LIMITED OPERATING
HISTORY.
Our predecessor companies began offering services to cable operators in
October 1997. Most of our cable modem deployments occurred within the last
eighteen months, and we do not consider any of the markets in which we operate
to be mature. In addition, our senior management team and other employees have
worked together for only a short period of time. Consequently, we have a limited
operating history upon which our business can be evaluated.
WE HAVE NOT BEEN PROFITABLE AND EXPECTS FUTURE LOSSES.
Since our founding, we have not been profitable. We have incurred
substantial costs to create and introduce broadband Internet access services, to
operate these services, and to grow our business. We have incurred net losses of
approximately $159.4 million from April 3, 1998 (date of inception) through
September 30, 2000. Our limited operating history and ambitious growth plans
make predicting operating results, including operating expenses, difficult.
We expect to incur substantial losses and experience substantial
negative cash flows from operations for at least the next several years as we
expand our business. The principal costs of expanding the business will include:
o substantial direct and indirect selling, marketing and
promotional costs;
o system operational expenses, including the lease of our
Internet backbone, which has a traffic capacity in excess of
our current needs;
o costs incurred in connection with higher staffing levels to
meet our growth;
o the acquisition and installation of the equipment, software
and telecommunications circuits necessary to enable our cable
partners to offer our services; and
o costs in connection with acquisitions, divestitures, business
alliances or changing technologies.
If any of these costs or expenses are not accompanied by an increase in
revenues, our ability to achieve profitability may suffer and we may be forced
to revise our business plan.
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WE CANNOT PREDICT OUR SUCCESS BECAUSE OUR BUSINESS MODEL HAS NOT BEEN
SUCCESSFUL, HAS CHANGED IN THE PAST AND MAY CONTINUE TO CHANGE. OUR BUSINESS IS
UNPROVEN AND EVOLVING.
We do not believe that any cable-based Internet access services
currently offered by cable companies have been profitable. We continue to
introduce new services, make changes to our product offerings to meet our
customer demands and respond to changes in our evolving industry. In addition,
many industry analysts believe that Internet access providers will become
increasingly reliant upon advertising, barter and subscription-based revenues
from content due to competitive pressures to provide low cost or even free
Internet access.
Although our primary service offering is high bandwidth Internet
access, we currently derive a substantial portion of our revenue from standard
dial-up Internet access, which we offer as a feeder for our high speed
offerings. We cannot predict whether demand for our high speed Internet access
services will develop, particularly at the volume or prices we need to become
profitable. Even if we are able to generate sufficient demand for our high speed
services, we may be unable to deploy our services at the pace required to
satisfy that demand. Additionally, we believe that partial turnkey services will
become an increasingly important part of our business. Under the partial turnkey
arrangements, such as the one we signed with Charter Communications on May 12,
2000, covering a minimum of 5 million homes passed, we will earn less revenue,
and absorb less operating expense, per end user, than under a full turnkey
arrangement. In our partial turnkey solution, we deliver fewer services and
incur lower costs than in a full turnkey solution but will also earn a smaller
percentage of the subscription revenue or a fixed fee on a per subscriber basis.
We have also begun to offer DSL Internet access on a limited basis as a
reseller under an agreement with NorthPoint Communications We expect to rollout
DSL Internet access and related services on a bundled basis, and will incur
significant operating losses in doing so. In this effort, we intend to target
markets in which we have (i) existing DSL re-seller agreements and/or (ii)
existing infrastructure or facilities.
We recently acquired Digital, a one-stop provider of strategic Internet
services primarily to small and medium sized enterprises, including web hosting,
web site and creative design, legacy systems integration and overall strategic
consulting.
We have also initiated technical trials of IP Telephony in
collaboration with Charter and Lucent, as additional services for our cable
partners to offer their customers.
We do not know whether our new services will become significant to our
business or whether we will continue to offer them at all. Consequently, our
business model is likely to continue to change.
OUR ABILITY TO ATTRACT AND RETAIN END USERS DEPENDS ON MANY FACTORS WE CANNOT
CONTROL.
Our ability to increase the number of end users, and our ability to
retain end users, will depend on a number of factors, many of which are beyond
our control. These factors include:
o our ability to enter into and retain agreements with cable
operators;
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o the speed at which we are able to deploy our services,
particularly if we cannot obtain on a timely basis the
telecommunications circuitry necessary to connect our cable
headend equipment to our Internet backbone;
o our success in marketing our service to new and existing end
users;
o competition, including new entrants advertising free or lower
priced Internet access and/or alternative access technologies;
o whether our cable partners maintain their cable systems or
upgrade their systems from one-way to two-way service;
o the quality of the customer and technical support we provide;
and
o the quality of the content we offer.
In addition, our service is currently priced at a premium to many other
online services and many end users may not be willing to pay a premium for our
service. Because of these factors, our actual revenues or the rate at which we
will add new end users may differ from past increases, the forecasts of industry
analysts, or a level that meets the expectations of investors.
OUR QUARTERLY OPERATING RESULTS ARE LIKELY TO FLUCTUATE SIGNIFICANTLY AND MAY BE
BELOW THE EXPECTATIONS OF ANALYSTS AND INVESTORS.
Our revenues and expenses, and in particular our quarterly revenues,
expenses and operating results have varied in the past and may fluctuate
significantly in the future due to a variety of factors, many of which are
outside of our control. These factors include:
o the pace of the rollout of our service to our cable partners,
including the impact of substantial capital expenditures and
related operating expenses;
o whether and the rate at which we enter into contracts with
cable operators for additional systems;
o the rate at which new end users subscribe to our services, the
rate at which these customers are installed and receive
service, and the rate at which we retain these customers net
of customers who disconnect;
o changes in revenue splits with our cable partners;
o price competition in the Internet and cable industries;
o the extent we provide partial, rather than full turnkey
access;
o our ability to avoid system failures;
o changes in our operating expenses including, in particular,
personnel expenses;
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o the introduction of new products or services by us or our
competitors;
o our ability to enter into strategic alliances with content
providers; and
o economic conditions specific to the Internet and cable
industries, as well as general economic and market conditions.
In addition, our operating expenses are based on our expectations of
the future demand for our services and are relatively fixed in the short term.
We may be unable to adjust our spending quickly enough to offset any unexpected
demand surge or shortfall in demand.
The quarter-to-quarter comparisons of our results of operations should
not be relied upon as an indication of future performance. If our results of
operations are below the expectations of analysts and investors, the price of
our common stock is likely to fall.
WE MAY NOT BE ABLE TO ESTABLISH OR MAINTAIN ACCEPTABLE RELATIONSHIPS WITH CABLE
OPERATORS.
Our success depends, in part, on our ability to gain access to cable
customers. We gain that access through our agreements with cable operators.
There can be no assurance that we will be able to establish or maintain
relationships with cable operators. Even if we establish and maintain those
relationships, there can be no assurance that we will be able to do so on terms
favorable to us or in the quantities we need to become profitable. If we fail to
form partnerships rapidly with a large number of cable operators, we will be
effectively excluded from providing our services in the systems owned by those
operators. Not only can other cable-based broadband service providers compete
against us for an exclusive contract, the cable operator may decide to offer
cable-based Internet services directly, without assistance from us or our
competitors. Delays in forming relationships and deploying our cable-based
services also create windows of time for alternative broadband access providers
to enter the market and acquire customers.
Furthermore, in order to rapidly deploy our services within a market,
we typically begin installation of our equipment and related telecommunications
circuits prior to the execution of final documentation. If we are unable to
finalize our contractual relationship with a cable operator, if the exclusive
relationship between us and our cable partners, or between our cable partners
and their cable customers, is impaired, or if we do not establish affiliation
with a sufficient number of cable operators, we may be unable to build our end
user base at the rate we anticipate, which could hinder our growth and force us
to revise our business plan.
OUR LARGEST CABLE PARTNER CAN TERMINATE ITS CONTRACT WITH US.
Our largest cable partner is Charter. Charter is an affiliate of Vulcan
Ventures Incorporated, an affiliate of Microsoft Corporation co-founder Paul
Allen, which owns 34.5% of our outstanding common stock as of September 30,
2000. We have entered into several agreements with Charter, including several
network services agreements. The first network services agreement was entered
into in November 1998 and the second in May 2000. Under both agreements, Charter
has committed to provide us the exclusive right to provide network services
related to the delivery of Internet access to homes passed in some cable
systems.
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Under the May 2000 agreement, we will provide partial turnkey services,
including call center support for cable modem customers as well as network
monitoring, troubleshooting and security services. The agreement has an initial
term of five years and may be renewed at Charter's option for additional
successive five-year terms. In a partial turnkey solution, we deliver fewer
services and incur lower costs than in full turnkey solutions, but will also
earn a smaller percentage of the subscription revenue based on a fixed fee per
subscriber. Under the November 1998 agreement, we have primarily provided
comprehensive turnkey services.
Subject to the provisions of the network service agreements, Charter
can terminate our exclusivity rights, on a system-by-system basis, if we fail to
meet performance specifications or otherwise breach our agreement. Moreover,
Charter can terminate the November 1998 agreement, for any reason, as long as it
purchases the associated cable headend equipment and modems at book value and
pays us a termination fee based on the net present value of the revenues we
otherwise would earn for the remaining term of the agreement from those end
users subscribing to our services as of the date of termination. We may be
unable to meet the benchmarks related to its customer penetration rates.
Further, Charter may decide to terminate either agreement for any other reason.
If Charter were to terminate either agreement, in whole or for any material
system, regardless of any termination fee we may receive we would lose end users
and market share, and likely be forced to incur significant unanticipated costs
to establish alternative arrangements, which may not be available on competitive
terms, or at all.
OUR AGREEMENT WITH VULCAN VENTURES COULD CONSTRAIN OUR ABILITY TO GENERATE
REVENUES FROM PROVIDING CONTENT AND FUTURE SERVICES OUR END USERS MAY DEMAND.
Under our programming content agreement with Vulcan, Vulcan has the
right to require us to carry, on an exclusive basis in all cable systems we
serve, content that Vulcan designates. Vulcan content may include start-up and
related web pages, electronic programming guides, other multimedia information
and telephony services. We will not share in any revenues Vulcan may earn
through the content or telephony services it provides. We must provide all
equipment necessary for the delivery of Vulcan content, although Vulcan will
reimburse us for any costs incurred in excess of $3,000 per cable headend.
Vulcan cannot charge us for any Vulcan content through November 25, 2008; after
that date we will be obligated to pay Vulcan for this content at the lowest fee
charged to any Internet service provider who subscribes to Vulcan content.
Vulcan has the right to prohibit us from providing content or telephony
services that compete with Vulcan content in Vulcan's discretion and can require
us to remove competing content. Many industry analysts believe that Internet
access will become increasingly reliant upon revenues from content due to
competitive pressures to provide low cost or even free Internet access. If
Vulcan were to require us to remove our content or substitute Vulcan's telephony
services for any we might provide, we could lose a source of additional revenues
and might not recover all related costs of providing Vulcan's content or
telephony services. Vulcan's ability to prohibit us from providing content and
telephony services means that Vulcan's interests are not necessarily aligned
with those of our other stockholders.
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ONE-WAY CABLE SYSTEMS INCREASE OUR OPERATING COSTS AND MAY NOT PROVIDE THE
QUALITY NECESSARY TO ATTRACT CUSTOMERS.
Although our service can operate in one-way cable systems, where data
can be transmitted at high speeds from the cable headend to the end user, the
end user in a one-way system can only transmit data back to the cable headend
via a standard phone line. Because we must support the telephone return
component of the system, we incur higher operating costs in one-way systems.
Presently only one-third of the systems where we are or will soon operate our
services are two-way systems. Over time, however, we expect most, if not all, of
our cable partners to upgrade and or rebuild their plants to provide increased
bandwidth and two-way capabilities. We believe faster uploads and the
elimination of phone line return costs make our service more valuable and may
lead to higher customer penetration rates, which in turn benefits the cable
operator through higher revenue. However, upgrading a cable system can be
expensive and time-consuming for the cable operator. Delays in upgrading one-way
cable plants also makes our services vulnerable to competition from alternative
broadband technologies, and may make our cable partner vulnerable to overbuilds
by competitors.
Moreover, we do not require our cable partners to make these upgrades
and they have no legal obligation to do so. Consequently, if our cable partners
do not upgrade to two-way capability at the rate we anticipate, we might not be
able to provide the quality of service necessary to attract customers on an
economical basis.
WE MAY HAVE DIFFICULTY MANAGING OUR GROWTH PLANS.
To manage our anticipated growth, we must continue to implement and
improve our operational, financial and management information systems; hire,
train and retain additional qualified personnel; continue to expand and upgrade
core technologies; and effectively manage our relationships with end users,
suppliers and other third parties. Our expansion could place a significant
strain on our services and support operations, sales and administrative
personnel and other resources. Our billing software is not adequate to meet our
growth plans. We are in the process of replacing our billing software with an
integrated billing and customer care software system that we believe is capable
of meeting our planned future needs, but can offer no assurances that we will
successfully achieve the replacement, or if we do achieve the replacement that
we will do so within a time frame that will permit us to achieve our growth
objectives. Additionally, if we are unable to provide training and support for
our products, the implementation process will be longer and customer
satisfaction may be lower. Our growth plan may include acquisitions. If we
acquire additional companies, we could have difficulty integrating their
operations, or integrating and retaining their key personnel. In addition, if
the demand for our service exceeds our ability to provide our services on a
timely basis, we may lose customers. There can be no assurance that our systems,
procedures or controls will be adequate to support our operations or that our
management will be capable of exploiting fully the market for our products and
services. Our inability to manage our growth effectively could compromise the
quality of services we offer, harm our reputation and reduce demand for our
services, any of which would hinder our growth.
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OUR ABILITY TO INCREASE THE CAPACITY AND MAINTAIN THE SPEED OF OUR NETWORK IS
UNPROVEN.
We may not be able to increase the transmission capacity of our network
to meet expected end user levels while maintaining superior performance. While
peak downstream data transmission speeds across the cable infrastructure
approach 10 Mbps in each 6 megahertz (Mhz) channel, actual downstream data
transmission speeds are almost always significantly slower, depending on a
variety of factors. These factors include our intentional throttling of data
traffic flowing through the local network in order to optimize the use of our
network capacity and to sell tiered price-service packages, bandwidth capacity
constraints between the cable headend and the Internet backbone, the type and
location of content, Internet traffic, the number of active end users on a given
cable network node, the number of 6 Mhz channels allocated to us by our cable
partner, the capabilities of the cable modems used and the service quality of
the cable operators' fiber-coax facilities. The actual data delivery speed that
an end user realizes also will depend on the end user's hardware, operating
system and software configurations. There can be no assurance that we will be
able to achieve or maintain a speed of data transmission at a speed sufficient
to attract and retain our planned number of end users, especially as the number
of end users grows. Because end users will share the available capacity on a
cable network node, we may underestimate the capacity we need to provide in
order to maintain peak transmission speeds. A perceived or actual failure to
achieve or maintain sufficiently high speed data transmission could
significantly reduce end user demand for our services or increase costs
associated with customer complaints.
OUR NETWORK MAY BE VULNERABLE TO SECURITY RISKS.
Despite our implementation of industry-standard security measures, the
networks we operate may be vulnerable to unauthorized access, computer viruses
and other disruptive problems. Internet and online service providers in the past
have experienced, and in the future may experience, interruptions in service as
a result of the accidental or intentional actions of Internet users. Because the
cable infrastructure is a shared medium, it is inherently more vulnerable to
security risks than dedicated telephony technologies such as digital subscriber
lines. Moreover, we have no control over the security measures that our cable
partners and end users adopt. Unauthorized access could also potentially
jeopardize the security of confidential information stored in the computer
systems maintained by us and our end users. These events may result in liability
to us or harm to our end users. Eliminating computer viruses and alleviating
other security problems may require interruptions, delays or cessation of
service to our end users, which could have a material adverse effect on our
business and financial results. In addition, the threat of these and other
security risks may harm our reputation and deter potential end users from
purchasing our services.
WE WILL NEED ADDITIONAL CAPITAL IN THE FUTURE AND IT MAY NOT BE AVAILABLE ON
ACCEPTABLE TERMS.
The development of our business may require significant additional
capital in the future to fund our operations, to finance the substantial
investments in equipment and corporate infrastructure needed for our planned
expansion, to enhance and expand the range of services we offer and to respond
to competitive pressures and perceived opportunities, such as investment,
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acquisition and international expansion activities. To date, our cash flow from
operations has been insufficient to cover our expenses and capital needs. We
believe our current cash, cash equivalents and short term investments, together
with the proceeds from unused loan facilities and lease financing through
various facilities, as well as additional loan and lease financing facilities,
will be sufficient to meet our working capital requirements, including operating
losses and capital expenditure requirements into 2002, assuming we achieve our
business plan. At such time, or sooner, if we do not achieve our business plan
we will require additional equity and/or debt financing. In this regard, in
October 2000, we signed a definitive agreement with Vulcan and Charter pursuant
to which Vulcan and Charter will make an aggregate preferred equity investment
of $75 million. Under the agreement, Vulcan and Charter have invested
approximately equal amounts. The investments take the form of convertible
preferred stock, and may convert into our common stock at a conversion price of
approximately $5 per share, subject to adjustment for future stock issuances at
less than the conversion price and other customary adjustments. We expect these
funds to last into 2002.
However, we anticipate that we will need to seek additional equity or
debt financing to execute our current business plan. Further, if additional
financing is not available on acceptable terms, we may be forced to curtail our
operations, which could have a material adverse effect on our business and
financial results and may require us to delay the deployment of our services.
Furthermore, additional equity or debt financing could give rise to any or all
of the following:
o additional dilution to our current stockholders;
o the issuance of securities with rights, preferences or
privileges senior to those of the existing holders of our
common stock; and
o the issuance of securities with covenants imposing
restrictions on our operations.
OUR FINANCING WITH VULCAN AND CHARTER CONTAINS ANTI-DILUTION ADJUSTMENTS AND
RESTRICTIONS ON OUR FUTURE ACTIVITIES.
On October 19, 2000, we entered into a stock purchase agreement with
Vulcan and Charter pursuant to which Vulcan and Charter purchased 38,000 and
37,000 shares, respectively, of our Series D convertible preferred stock at a
price of $1,000 per share, for an aggregate purchase price of $38,000,000 and
$37,000,000, respectively. Paul G. Allen controls Vulcan and Charter. The shares
of convertible preferred stock initially are convertible at a conversion price
of $5.01875 per share into 14,943,960 shares of common stock. The conversion
price will be subject to an anti-dilution adjustment which would increase the
number of shares issuable to Vulcan and Charter upon conversion of the
convertible preferred stock if we issue common stock (or are deemed to issue
common stock) at below the conversion price.
The transaction also places significant restrictions on our activities
in the future. Among other things, these constraints will require us to:
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o obtain the approval of Vulcan and Charter before declaring a
dividend, entering into a merger, acquisition, consolidation,
business combination, or other similar transaction, or issuing
any debt or equity securities;
o provide Vulcan and Charter with a right of first refusal to
purchase any shares of stock, common or otherwise, that we may
offer in the future; and
o offer and make available to Vulcan, Charter and their
affiliates licensing and business arrangements relating to our
technologies, products and services, or any combination
thereof, on terms and conditions at least as favorable as
those agreed to with any third party at substantially the same
level of purchase or other financial commitment.
Our stockholders should be aware that conversion of the convertible
preferred stock into shares of our common stock will have a dilutive effect on
earnings per share and the relative voting power of our present stockholders. In
addition, our stockholders should note that we may issue additional shares of
common stock in connection with the payment of dividends or conversion price
adjustments on the convertible preferred stock, which may increase the number of
shares of common stock issued in connection with the transaction.
WE MAY BECOME SUBJECT TO RISKS OF INTERNATIONAL OPERATIONS.
We are currently evaluating international expansion opportunities. If
we expand internationally or enter into joint venture arrangements to pursue
international business opportunities, we would become subject to the risks of
conducting business internationally, including:
o foreign currency fluctuations, which could result in reduced
revenues or increased operating expenses;
o inability to locate qualified local partners and suppliers;
o the burdens of complying with a variety of foreign laws and
trade standards;
o tariffs and trade barriers;
o difficulty in accounts receivable collection;
o potentially longer payment cycles;
o foreign taxes;
o unexpected changes in regulatory requirements, including the
regulation of Internet access; and
o uncertainty regarding liability for information retrieved and
replicated in foreign countries.
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If we expand internationally, we will also be subject to general
geopolitical risks, such as political and economic instability and changes in
diplomatic and trade relationships. Our proposed international operations could
harm our revenues and ability to achieve profitability.
RISKS RELATED TO THE MARKET FOR HIGH SPEED INTERNET ACCESS
----------------------------------------------------------
THE MARKET FOR INTERNET SERVICES IS HIGHLY COMPETITIVE.
We face competition from many competitors with significantly greater
financial, sales and marketing resources, larger customer bases, longer
operating histories, greater name recognition and more established relationships
with advertisers, content and application providers and/or other strategic
partners than we have. We expect this competition in cable and DSL Internet
access markets to intensify in the future. We face competition from both cable
modem service providers and from providers of other types of data, IP telephony
and Internet services for end users. This intense competition may create a
time-limited market opportunity for our cable-based high speed Internet access
and IP telephony services. We may be unable to achieve widespread acceptance of
our services before competitors offer services similar to our current offerings,
which might preclude or delay purchasing decisions by potential end users.
Our competitors in the cable-based Internet access and IP telephony
markets are those companies that have developed their own cable-based services
and market those services to cable system operators. Other competitors in the
cable-based Internet and IP telephony access markets are those companies seeking
to establish distribution arrangements with cable system operators in exurban
markets and/or provide one-way system capability. In addition, other cable
system operators have launched their own cable-based Internet services that
could limit the market for our services. Our agreement with Charter and other
operators provides us with exclusive rights to provide high speed Internet
access to the customer's personal computer. However, Charter and other online
service providers may deploy TV-based Internet access services through set-top
boxes or other devices.
We also compete with traditional Internet service providers and other
competing broadband technologies including ISDNs, DSLs, wireless and satellite
data services. Moreover, our competitors include long distance inter-exchange
carriers, regional Bell operating companies and other local exchange carriers.
Many of these carriers are offering diversified packages of telecommunications
services, including Internet access, and could bundle these services together,
putting us at a competitive disadvantage. Widespread commercial acceptance of
any of these competing technologies or competitors' products could significantly
reduce the potential customer base for our services, which could harm our
revenues and ability to achieve profitability.
OUR CABLE PARTNERS COULD SELL THEIR SYSTEMS OR BE ACQUIRED.
In recent years, the cable television industry has undergone
substantial consolidation. If one of our cable partners is acquired by a cable
operator that already has a relationship with one of our competitors or that
does not enter into a contract with us, we could lose the ability to offer our
cable modem access services in the systems formerly served by our cable partner.
Many of the cable operators with whom we have contracts operate multiple
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systems, thus increasing the risk to us if they are acquired. Moreover, it is
common in the cable industry for operators to swap systems, which could cause us
to lose our contract for a swapped system. Even though many of our contracts
obligate our cable partners to pay us a termination fee if they sell their
system to another operator who does not assume our contract, the potential
termination fee may not be adequate to ensure that the successor operator
assumes our contract, or to compensate us fully for the loss of future business
in that system.
OUR CABLE PARTNERS COULD LOSE THEIR FRANCHISES, AND ARE VULNERABLE TO
COMPETITION.
Cable television companies operate under franchises granted by local or
state authorities that are subject to renewal and renegotiation from time to
time. A franchise is generally granted for a fixed term ranging from 5 to 15
years, although in many cases the franchise is terminable if the franchisee
fails to comply with the material provisions of its franchise agreement. No
assurance can be given that the cable operators that have contracts with us will
be able to retain or renew their franchises. The non-renewal or termination of
any of these franchises would result in the termination of our contract with the
applicable cable operator. Moreover, cable television operators are sometimes
subject to overbuilding by competing operators who offer competing video and
Internet access services. Moreover, many direct broadcast satellite (DBS)
operators can compete with cable operators and provide Internet access services
to their subscribers. Any dilution of our cable operator market base can
adversely affect our potential market base.
OUR MARKET IS CHARACTERIZED BY RAPID TECHNOLOGICAL CHANGE AND OUR SERVICES COULD
BECOME OBSOLETE OR FAIL TO GAIN MARKET ACCEPTANCE.
The market for our services is characterized by rapid technological
advances, evolving industry standards, changes in end user requirements and
frequent new service introductions and enhancements. For example, the North
American cable industry has adopted a set of interface specifications, known as
"DOCSIS," for hardware and software to support cable-based data delivery using
cable modems. Our ability to adapt to rapidly changing technology and industry
standards, such as DOCSIS, and to develop and introduce new and enhanced
products and service offerings will be significant factors in maintaining or
improving our competitive position, reducing our costs and prospects for growth.
If technologies or standards applicable to our services become obsolete or fail
to gain widespread consumer acceptance, our business and financial results will
be materially and adversely affected.
We currently anticipates that we will use a significant portion of our
working capital to acquire headend, cable modem and other related capital
equipment. The technology underlying that equipment is continuing to evolve. It
is possible that the equipment we acquire could become obsolete prior to the
time we would otherwise intend to replace it, which could require us to make
unanticipated capital expenditures. Our inability to replace obsolete equipment
on a timely basis could have a material adverse effect on our business and
financial results.
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WE DEPEND ON A DATA TRANSMISSION INFRASTRUCTURE LARGELY MAINTAINED BY THIRD
PARTIES OR SUBJECT TO DISRUPTION BY EVENTS OUTSIDE OUR CONTROL.
Our success will depend upon the capacity, reliability and security of
the infrastructure used to carry data between our end users and the Internet. A
significant portion of that infrastructure is owned by third parties.
Accordingly, we have no control over our quality and maintenance. For example,
we rely on our cable partners to maintain their cable infrastructures. We also
rely on other third parties to provide a connection from the cable
infrastructure to the Internet. Currently, we have transit agreements with MCI
WorldCom, UUNet and others to support the exchange of traffic between our data
servers, the cable infrastructure and the Internet. Our operations also depend
on our ability to avoid damages from fires, earthquakes, floods, power losses,
telecommunications failures, network software flaws, transmission cable cuts and
similar events. The occurrence of any of these events could interrupt our
services. The failure of the Internet backbone, our servers, or any other link
in the delivery chain, whether from operational disruption, natural disaster or
otherwise, resulting in an interruption in our operations could have a material
adverse effect on our business and financial results.
WE MAY BE HELD LIABLE FOR DEFAMATORY OR INDECENT CONTENT, AS WELL AS INFORMATION
RETRIEVED OR REPLICATED.
In part, our business involves supplying information and entertainment
to customers over the cable systems of our cable system partners. Accordingly we
face the same types of risks that apply to all businesses that publish or
distribute information, such as potential liability for defamation, libel,
invasion of privacy and similar claims, as well as copyright or trademark
infringement and similar claims. A number of third parties have claimed that
they hold patents covering various forms of online transactions or online
technologies. In addition, our errors and omissions and liability insurance may
not cover potential patent or copyright infringement claims and may not
adequately indemnify us for any liability that may be imposed.
The law relating to the liability of Internet and online service
providers for information carried or disseminated through their networks is
unsettled. There are some federal laws regarding the distribution of obscene or
indecent material over the Internet under which we are subject to potential
liability. These risks are mitigated by two federal laws. One, passed in 1996,
immunizes Internet service providers from liability for defamation and similar
claims for materials the Internet service provider did not create, but merely
distributed. The other, passed in 1998, creates a "safe harbor" from copyright
infringement liability for Internet service providers who comply with its
requirements. These laws apply only in the United States; if we expand our
operations to other countries, our potential liability under the laws of those
countries could be greater.
WE MAY BECOME SUBJECT TO BURDENSOME GOVERNMENT REGULATION, "OPEN ACCESS"
COMPETITION AND OTHER DSL- AND DBS-BASED COMPETITION.
The regulatory environment in which we operate is uncertain and
evolving. Historically, HSA and its cable partners have taken the position that
for regulatory purposes we are a cable service provider, or an unregulated
information service provider. However, the United States Court of Appeals for
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the Ninth Circuit recently concluded that a cable operator's provision of
transmission facilities in some instances is a telecommunications service under
the Communications Act. This classification could subject our cable partners,
and possibly us, to federal and state regulation as "telecommunications
carriers." If we or our cable partners were classified as telecommunications
common carriers, or otherwise subject to common carrier-like access and
non-discrimination requirements in the provision of our Internet over cable
service, we or our cable partners could be subject to burdensome governmental
regulations. In particular, the government might seek to regulate us and our
cable partners with respect to the terms, conditions and prices for Internet
connection services and interconnections with the public switched telephone
network, and require that we make contributions to the universal service support
fund. The Internet telephony services we expect to offer may also be regulated
as a common carrier telecommunications service. Accordingly, any of our cable
partners may be required to obtain a "telecommunications franchise" or a license
to operate as a "competitive local exchange carrier" from some states or
localities, which might not be available on reasonable terms, or at all.
In addition, some local cable franchising authorities seek to impose
"non-discrimination" or "open access" obligations on our cable partners. Other
local franchising authorities might claim that our cable partners require
separate franchises to offer our cable service. This franchise may not be
obtainable on reasonable terms, or at all. A consortium of dial-up Internet
service providers and large telephone companies are encouraging local
franchising authorities and the Federal Communications Commission to ban the
type of ISP-cable operator arrangements that we have with our cable partners
that make us the exclusive supplier of high speed data on the cable systems
where our service is offered. If these arrangements are banned, we could face
additional competition from other Internet access providers using the cable
system to connect to their customers, which could harm our business and
financial results. Both AOL-Time Warner and AT&T-Mindspring have announced plans
to open their networks to competing Internet service providers in the coming
years, and AT&T and Time Warner Cable have initiated "open-access" trials with
selected ISPs in several markets. Other ISPs are petitioning the FCC and various
large cable operators for access to cable plants. We cannot predict the degree
to which voluntary or involuntary "open access" will affect our business.
In addition, regulatory decisions that make DSL technology services
easier for competing telephone companies to deploy over normal telephone lines
and less expensive for customers to buy could negatively affect our business.
The Federal Communications Commission issued a line-sharing ruling in December
1999 that allows DSL providers to simply lease the data spectrum of the
customer's local loop from the incumbent carrier. This obviates the need for
customers to lease a secondary DSL-provisioned loop from the incumbent carrier
in order to obtain high speed DSL data service, which in turn could make DSL
service a more cost-competitive alternative to our services. Finally, firms
controlling digital broadcast spectrum have announced plans to utilize a portion
of that spectrum to offer consumers high-bandwidth data delivery via broadcast.
Some direct broadcast satellite video companies are also deploying
higher-bandwidth data delivery products. We cannot predict when or whether these
services will be offered, but if offered they could present material competition
to our services and could materially and adversely affect our success in the
marketplace.
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WE DEPEND ON OUR KEY PERSONNEL AND MAY HAVE DIFFICULTY ATTRACTING AND RETAINING
THE SKILLED EMPLOYEES WE NEED TO EXECUTE OUR GROWTH PLAN.
Our future success depends on the continued service of our key
personnel, especially our Chief Executive Officer, Chief Operating Officer and
Chief Technology Officer. We do not carry key person life insurance on most of
our personnel. Given our early stage and plans for rapid expansion, the loss of
the services of any of our executive officers or the loss of the services of
other key employees could have a material adverse effect on our business and
financial results. Our future success also depends on our ability to attract,
retain and motivate highly skilled employees, particularly engineering and
technical personnel. Competition for employees in our industry is intense. We
may not be able to retain our key employees or attract, assimilate or retain
other highly qualified employees in the future. From time to time we have
experienced, and we expect to continue to experience in the future, difficulty
in hiring and retaining highly skilled employees.
RISKS RELATED TO TRADING IN OUR STOCK
-------------------------------------
INVESTORS MAY SUFFER SUBSTANTIAL DILUTION FROM OTHER TRANSACTIONS.
As an inducement to cause Charter to commit additional systems to us,
we have granted Charter warrants to purchase up to 12,000,000 shares of our
common stock at an exercise price of $3.23 per share. These warrants become
exercisable, in respect of (i) full turnkey systems at the rate of 1.55 shares
for each home passed in excess of 750,000, and (ii) partial turnkey systems at
the rate of .775 shares for each home passed for up to a total of 5,000,000
homes passed; and at the rate of 1.55 shares per every home passed for each
additional home passed in excess of 5,000,000. To the extent that Charter
becomes eligible to exercise all or a significant portion of these warrants, our
stockholders will experience substantial dilution.
In addition, we have granted Microsoft a warrant to purchase 387,500
shares of our common stock at an exercise price of $16.25, with additional
warrants issuable for more than 2,500,000 homes passed committed to us by
Comcast. Our agreement with ServiceCo LLC provides for granting of warrants to
purchase one share of our common stock at a price of $5 per share up to a
maximum of 5 million shares. We have also granted Classic Cable, Inc. and CMA
Associates, both cable operators, a warrant to purchase 600,000 and 200,000
shares, respectively, each at an exercise price of $13 per share in connection
with the distribution of our services. We have issued and may in the future
issue additional stock or warrants to purchase our common stock in connection
with our efforts to expand the distribution of our services and retain various
consulting services. Our stockholders could face additional dilution from these
possible future transactions.
In addition, Vulcan and Charter made a $75 million preferred equity
investment in us. The investments take the form of convertible preferred stock,
and may convert into our common stock at a conversion price of approximately $5
per share, subject to adjustment for future stock issuances at less than the
conversion price and other customary adjustments.
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BECAUSE OF OUR RELATIONSHIP WITH VULCAN, NEW INVESTORS WILL HAVE LITTLE
INFLUENCE OVER MANAGEMENT DECISIONS.
Vulcan owns 34.5% of our outstanding stock as of September 30, 2000.
Vulcan's affiliate, Charter, also has warrants to purchase up to an additional
12 million shares of our common stock. Accordingly, Vulcan will be able to
significantly influence and possibly exercise control over most matters
requiring approval by our stockholders, including the election of directors and
approval of significant corporate transactions. This concentration of ownership
may also have the effect of delaying or preventing a change in control. In
addition, conflicts of interest may arise as a consequence of Vulcan's control
relationship with us, including:
o conflicts between Vulcan, as our controlling stockholder, and
our other stockholders, whose interests may differ with
respect to, among other things, our strategic direction or
significant corporate transactions,
o conflicts related to corporate opportunities that could be
pursued by us, on the one hand, or by Vulcan, on the other
hand, or
o conflicts related to existing or new contractual relationships
between us, on the one hand, and Vulcan and its other
affiliates, on the other hand
In particular, Vulcan is affiliated with Charter, currently our largest
cable partner. Additionally, Vulcan has the exclusive right to provide or
designate the first page our end users see when they log on to our service and,
if it provides that first page, will be entitled to all of the related revenues.
Moreover, Vulcan can prohibit us from providing content that competes with
content it chooses to provide, and can prohibit us from providing telephony
service if it chooses to provide those services.
THE FUTURE SALE OF SHARES MAY HURT OUR MARKET PRICE.
A substantial number of shares of our common stock are available for
resale. If our stockholders sell substantial amounts of our common stock in the
public market, the market price of our common stock could fall. These sales also
might make it more difficult for us to sell equity securities in the future at
times and prices that we deem appropriate.
OUR STOCK PRICE IS LIKELY TO CONTINUE TO BE HIGHLY VOLATILE.
The stock market has experienced extreme price and volume fluctuations.
In particular, the market prices of the securities of Internet-related companies
have been especially volatile. In the past, companies that have experienced
volatility in the market price of their stock have been the object of securities
class action litigation. If we were the object of securities class action
litigation, it could result in substantial costs and a diversion of our
management's attention and resources.
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WE HAVE ANTI-TAKEOVER PROVISIONS.
Some provisions of our certificate of incorporation and bylaws and
Delaware law, in addition to the concentration of ownership in Vulcan, could
make it difficult for a third party to acquire us, even if doing so might be
beneficial to our other stockholders.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
In connection with the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995, we are hereby providing cautionary statements
identifying important factors that could cause our actual results to differ
materially from those projected in forward-looking statements (as such term is
defined in the Reform Act) made or incorporated by reference in this prospectus.
Any statements that express, or involve discussions as to, expectations,
beliefs, plans, objectives, assumptions or future events or performance (often,
but not always, through the use of words or phrases such as "will likely
result," "are expected to," "will continue," "is anticipated," "believe,"
"expect," "plan," "seek," "estimate," "intends," "plans," "projection" and
"outlook") are not historical facts and may be forward-looking and, accordingly,
such statements involve estimates, assumptions and uncertainties which could
cause actual results to differ materially from those expressed in the
forward-looking statements. Accordingly, these statements are qualified in their
entirety by reference to, and are accompanied by, the factors discussed
throughout this prospectus, and particularly in the risk factors set forth
herein under "Risk Factors."
Any forward-looking statement speaks only as of the date on which the
statement is made, and we undertake no obligation to update any forward-looking
statement or statements to reflect events or circumstances after the date on
which the statement is made or to reflect the occurrence of unanticipated
events. New factors emerge from time to time, and it is not possible for us to
predict all of these factors. Further, we cannot assess the impact of each
factor on our businesses or the extent to which any factor, or combination of
factors, may cause actual results to differ materially from those contained in
any forward-looking statements.
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WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, and file reports and other information with
the Securities and Exchange Commission in accordance therewith. These reports,
proxy statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549, and at the Commission's regional offices
located at Seven World Trade Center, Suite 1300, New York, New York 10048 and
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Information regarding the public reference facilities may be obtained from the
Commission by calling 1-800-SEC-0330. Our filings are also available to the
public on the Commission's Internet site at http://www.sec.gov. Copies of these
materials may also be obtained by mail from the Public Reference Section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed
rates. We maintain a website at http://www.hsacorp.net.
We have filed with the Commission a registration statement on Form S-3
under the Securities Act of 1933, as amended, with respect to the common stock
that the selling stockholders may offer under this prospectus. This prospectus,
which is a part of that registration statement, does not include all the
information contained in the registration statement and its exhibits. For
further information with respect to us and our common stock, you should consult
the registration statement and its exhibits. Statements contained in this
prospectus concerning the provisions of any documents are summaries of those
documents, and we refer you to the document filed with the SEC for more
information. The registration statement and any of its amendments, including
exhibits filed as a part of the registration statement or an amendment to the
registration statement, are available for inspection and copying as described
above.
The Commission allows us to "incorporate by reference" the information
we file with them. This means that we can disclose important information to you
by referring you to the other information we have filed with the Commission. The
information that we incorporate by reference is considered to be part of this
prospectus. Information that we file later with the Commission will
automatically update and supersede this information.
The following documents filed by us with the Commission and any future
filings under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act made prior
to the termination of this offering are incorporated by reference:
o our Annual Report on Form 10-K for the fiscal year ended
December 31, 1999;
o our Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 2000, June 30, 2000 and September 30, 2000;
o our Current Report on Form 8-K, filed with the Commission on
October 23, 2000; and
o the description of our common stock contained in the
registration statement on Form 8-A, filed with the Commission
on May 21, 1999.
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You can request a free copy of the above filings or any filings
subsequently incorporated by reference into this prospectus by writing or
calling us at:
High Speed Access Corp.
10901 West Toller Drive
Littleton, CO 80127
Attention: Stephen M. Calk
Telephone: (720) 922-2828
YOU SHOULD RELY ONLY ON THE INFORMATION PROVIDED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE
ELSE TO PROVIDE YOU WITH ADDITIONAL OR DIFFERENT INFORMATION. THE COMMON STOCK
IS NOT BEING OFFERED IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD
NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY SUPPLEMENT IS ACCURATE
AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THIS PROSPECTUS OR ANY
SUPPLEMENT.
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USE OF PROCEEDS
The shares of our common stock being offered hereby are offered solely
for the accounts of the selling stockholders pursuant to various agreements that
we have entered into with them. We will not receive any proceeds from the sale
of common stock by selling stockholders, but to the extent warrants to purchase
common stock held by selling stockholders are exercised, we will receive up to
an aggregate of approximately $1.5 million. We intend to use the proceeds from
the exercise of the warrants for working capital and general corporate purposes.
See "Selling Stockholders."
SELLING STOCKHOLDERS
In connection with the issuance of these securities to the selling
stockholders, we have entered into various agreements that require us to file a
registration statement covering the common stock offered hereby, including the
common stock issuable upon exercise of warrants held by certain selling
stockholders. This prospectus is a part of the registration statement we filed
with the Commission covering all of those shares of common stock.
The following table sets forth information about the selling
stockholders and the number of shares of our common stock beneficially owned by
them, including upon exercise of warrants. We received this information from the
selling stockholders. Except as disclosed in this prospectus, none of the
selling stockholders has, or within the past three years has had, any position,
office or other material relationship with us or any of our predecessors or
affiliates. Because the selling stockholders may offer all or some portion of
our common stock pursuant to this prospectus, no estimate can be given as to the
number of shares of our common stock that will be held by the selling
stockholders upon termination of any sales of such common stock. In addition,
the selling stockholders identified below may have sold, transferred or
otherwise disposed of all or a portion of their securities since the date on
which they provided the information regarding their securities in transactions
exempt from the registration requirements of the Securities Act.
The shares of common stock are being registered to permit public
secondary trading of the shares and the selling stockholders may offer the
shares for sale from time to time. See "Plan of Distribution."
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BENEFICIAL NUMBER OF SHARES
OWNERSHIP AT COVERED BY THIS
SELLING SHAREHOLDERS DECEMBER 11, 2000 PROSPECTUS
-------------------- ----------------- ----------
Alan Booge 34,476 34,476
Alkis P. Zingas Trust 2,542 2,542
Andy Rogers and Kay Rogers 1,779 1,779
Arkansas Valley Produce of Texas, Inc 11,299 11,299
Arthur Kimicata(1) 2,288 2,288
Baca Ranches 1,271 1,271
Beaird Drilling Services, Inc. 1,271 1,271
BH Properties 1,271 1,271
Bill M. Lowe 28,250 28,250
Billy R. Scivally 10,170 10,170
Brian Burke(2) 149,784 149,784
Brian Yatzkan 15,255 15,255
C. Warren Lindig 1,271 1,271
Casey Cameron 1,271 1,271
Catherine A. Corrigan 20,340 20,340
Catoctin Holdings, LLC(3) 53,392 53,392
Chad Justice 1,525 1,525
Charles E. Richardson III(4) 45,765 45,765
Charles G. Burns & Rebecca H. Burns 1,500 1,500
Charles T. Sellers & Jan Sellers JTWROS 2,542 2,542
Charlotte Biladeau 7,322 7,322
Christopher & Holly E. Read 23,391 23,391
Christopher J. Ledo 1,271 1,271
Cindy Cawley & Kevin Cawley, JTWROS 1,271 1,271
Claudia C. Dent Trust 15,255 15,255
Cynthia C. Lewis 1,271 1,271
David A. Dysard 2,054 2,054
David A. Neff 7,627 7,627
Dennis Lapidus 2,804 2,804
Dent Irrevocable Trust 10,170 10,170
Donald P. Baker 2,054 2,054
Don Hawkins, Jr. 2,054 2,054
Don Opplinger 1,525 1,525
Dudding Investments Ltd. 118,378 118,378
Eddie Oran 1,525 1,525
Edward Lewis 1,232 1,232
Eliott D. & Joanne M. James5 5,085 5,085
Eliott D. James(5) 61,550 61,550
Ernest and Judy Rylie 2,542 2,542
Erwin J. Riven, TTEE 2,542 2,542
Frank R. West 1,271 1,271
Gary Allen(6) 366,642 366,642
Gary Flanagan 7,322 7,322
Gary Granger 2,542 2,542
Gene Bradley/Shari Bradley 1,271 1,271
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BENEFICIAL NUMBER OF SHARES
OWNERSHIP AT COVERED BY THIS
SELLING SHAREHOLDERS DECEMBER 11, 2000 PROSPECTUS
-------------------- ----------------- ----------
Glen Grimsley 11,299 11,299
Gregory A. Dent 1,271 1,271
Gregory A. Dent Trust 15,255 15,255
Gregory Grimsley 10,170 10,170
Gregory W. Nestor 1,881 1,881
Gunn Allen Financial, Inc. 69,279 69,279
Irmgard Drilling 1,026 1,026
Irwin H. Miller 2,542 2,542
Jack S. McCotter 2,054 2,054
Jacquelyn R. McIntosh 10,170 10,170
James A. Brooks(7) 143,083 143,083
James A. Dudding 2,034 2,034
James B. Munroe 1,271 1,271
James D. Simpson 2,542 2,542
James I. Burke, Jr. 1,271 1,271
James Lidestri(8) 6,864 6,864
Jeffrey J. Anderson 1,271 1,271
Jerry and Vickie Durant 5,650 5,650
Joe Cooper 6,102 6,102
John Lunter 20,340 20,340
John McIntosh 10,170 10,170
Jud & Teri Hennington(9) 45,765 45,765
Ken R. Burger 12,326 12,326
Ken Shively 6,752 6,752
Kenneth Eugene Scivally 10,170 10,170
Knut E. Ellenes and Eleanor B. Ellenes 5,085 5,085
KSM International Inc. 10,170 10,170
Larry A. Darnell 2,054 2,054
Larry Tidwell 1,271 1,271
Lynn Crabtree 2,054 2,054
Marsha Kay Foster Irrevocable Trust 2,542 2,542
McCauley Asset Management Co. 1,271 1,271
McDix Properties Ltd. 5,085 5,085
Michael Day 2,054 2,054
Michael Dooly 9,661 9,661
Michael T. Cronin 50,249 50,249
Mike Baca and Jan Baca 3,101 3,101
Mike Ollinger 1,271 1,271
MJD Defined Benefit Plan 2,440 2,440
Morrison Enterprises 5,085 5,085
Nicholas Kratsios 1,026 1,026
Pacific Cattle Corporation 8,136 8,136
Patton G. Lochridge 1,271 1,271
Paul J. Lunter(10) 715,201 715,201
Paul P. Lunter 20,340 20,340
Paul Powers 6,162 6,162
Peter Cronin 3,051 3,051
Philip P. Petrakos CQE Partnership 1,271 1,271
26
<PAGE>
BENEFICIAL NUMBER OF SHARES
OWNERSHIP AT COVERED BY THIS
SELLING SHAREHOLDERS DECEMBER 11, 2000 PROSPECTUS
-------------------- ----------------- ----------
Phillip E. Williams, Jr. 10,170 10,170
Poky Feeders, Inc. 1,271 1,271
Progressive Services, Inc. 7,627 7,627
Rainbow Joint Ventures 11,441 11,441
Ralph Frasca 82,352 82,352
Randall A. & Sandra E. Pollard, JTWROS 1,271 1,271
Robert A. Mueller(11) 53,392 53,392
Robert Mynarcik 1,372 1,372
Robert P. Thigpen, Jr. 11,299 11,299
Robert R. LaMotte 4,107 4,107
Robert W. Wyatt, Jr. 2,054 2,054
Royal Gamber 5,085 5,085
Sidney M. Kalina 1,271 1,271
Simon Chalpin 201 201
Smith Financial Trust 116,139 116,139
Stephen K. Zahumensky 2,542 2,542
Steve Braccini 2,542 2,542
Steve Late 11,299 11,299
Steven Reynolds 20,340 20,340
Strategic Solutions Group Inc. 65,194 65,194
Supermex Trading Co., Ltd. 15,255 15,255
Terri A. Burkett 6,752 6,752
Timothy Hutton & Vicki Jones 5,085 5,085
Tom Hansen 4,107 4,107
Tom Shuhda 2,003 2,003
Troy Cowdrey 2,054 2,054
Vincent Risalvato 18,965 18,965
W. Paul Resop II 1,525 1,525
Wilfred Goth 2,542 2,542
William & Sheila Kellagher 2,542 2,542
William G. Wolf 11,299 11,299
Unnamed Selling Shareholders or any future 458,284 458,284
transferees, pledgees, donees or successors
of or from any such unnamed holder(12)
Total 3,239,024 3,239,024
----------
1 Mr. Kimicata was an officer of U.S. Technologies, Inc., which was
acquired by Digital in 1998. Represents 2,288 shares of common stock
issuable upon the exercise of a warrant.
2 Mr. Burke was a founding officer and director of Digital.
3 Catoctin Holdings, LLC is controlled by Randall Coppersmith, a former
director of Digital.
4 Mr. Richardson was an officer of Digital prior to the merger of Digital
and HSA, and continues to be an officer of Digital. Mr. Richardson is
currently the General Counsel of HSA.
5 Mr. James was a director of Digital.
27
<PAGE>
6 Mr. Allen was a founding officer and director of Digital and is
currently is an observer to the board of directors of Digital.
7 Includes 80,080 shares of common stock issuable upon the exercise of a
warrant.
8 Mr. Lidestri was an officer of U.S. Technologies. Represents 6,864
shares of common stock issuable upon the exercise of a warrant.
9 Mr. Hennington was an officer and director of Digital prior to the
merger of Digital and HSA, and continues to be an officer and director
of Digital.
10 Mr. Lunter was a founding officer and director of Digital. Represents
1.2% of our outstanding common stock as of the completion of the
distribution of common stock to the former Digital shareholders.
11 Mr. Mueller was an officer of Digital.
12 Includes 182,354 shares of common stock issuable upon the exercise of
warrants.
28
<PAGE>
PLAN OF DISTRIBUTION
We are registering common stock on behalf of the selling shareholders.
As used herein, "selling shareholders" includes donees and pledgees selling our
common stock received from a named selling shareholder after the date of this
prospectus. All costs, expenses and fees in connection with the registration of
our common stock offered hereby will be borne by us. Brokerage commissions and
similar selling expenses, if any, attributable to the sale of our common stock
will be borne by the selling shareholders. Sales of our common stock may be
effected by selling shareholders from time to time in one or more types of
transactions (which may include block transactions) on the Nasdaq National
Market, in the over-the-counter market, in negotiated transactions, through put
or call options transactions relating to our common stock, through short sales
of our common stock, or a combination of such methods of sale, at market prices
prevailing at the time of sale, or at negotiated prices. Such transactions may
or may not involve brokers or dealers. The selling shareholders have advised us
that they have not entered into any agreements, understandings or arrangements
with any underwriters or broker-dealers regarding the sale of their securities,
nor is there an underwriter or coordinating broker acting in connection with the
proposed sale of our common stock by the selling shareholders.
The selling shareholders may effect such transactions by selling our
common stock directly to purchasers or to or through broker-dealers, which may
act as agents or principals. Such broker-dealers may receive compensation in the
form of discounts, concessions, or commissions from the selling shareholders
and/or the purchasers of our common stock for whom such broker-dealers may act
as agents or to whom they sell as principal, or both (which compensation as to a
particular broker-dealer might be in excess of customary commissions).
The selling shareholders and any broker-dealers that act in connection
with the sale of our common stock might be deemed to be "underwriters" with the
meaning of Section 2(11) of the Securities Act, and any commissions received by
such broker-dealers and any profit on the resale of our common stock sold by
them while acting as principals might be deemed to be underwriting discounts or
commissions under the Securities Act. We have agreed to indemnify each selling
shareholder against certain liabilities, including liabilities arising under the
Securities Act. The selling shareholders may agree to indemnify any agent,
dealer or broker-dealer that participates in transactions involving sales of our
common stock against certain liabilities, including liabilities arising under
the Securities Act.
Because selling shareholders may be deemed to be "underwriters" within
the meaning of Section 2(11) of the Securities Act, the selling shareholders
will be subject to the prospectus delivery requirements of the Securities Act.
HSA has 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.
Selling shareholders also may resell all or a portion of their HSA
common stock in open market transactions in reliance upon Rule 144 under the
Securities Act, provided they meet the criteria and conform to the requirements
of such Rule.
29
<PAGE>
Upon our notification by a selling shareholder that any material
arrangement has been entered into with a broker-dealer for the sale of our
common stock 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, pursuant to Rule 424(b) under the
Securities Act, disclosing (i) the name of each such selling shareholder and of
the participating broker-dealer(s), (ii) the number of shares of our common
stock involved, (iii) the price at which such shares were sold, (iv) the
commissions paid or discounts or concessions allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) 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,
upon our notification by a selling shareholder that a donee or pledgee intends
to sell more than 500 shares of our common stock, a supplement to this
prospectus will be filed.
LEGAL MATTERS
The validity of the securities offered hereby will be passed upon for
us by Weil, Gotshal & Manges LLP, New York, New York.
EXPERTS
The 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.
30
<PAGE>
HIGH SPEED ACCESS CORP.
3,239,024 Shares
Common Stock
----------
PROSPECTUS
----------
__________ __, 2001
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The estimated amounts of the expenses of and related to offering are as
follows:
SEC registration fee........................ $ 1,832.29
Transfer agent fees......................... $ 3,500
Accounting fees and expenses................ $ 3,500
Legal fees and expenses..................... $ 25,000
Miscellaneous............................... $ 5,000
--------------
Total....................................... $ 38,832.29
=============
ITEM 15. 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
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
the 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.
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibit No. Description
----------- -----------
4.1** Specimen Common Stock Certificate.
4.2** Amended and Restated Certificate of Incorporation.
4.3** Amended and Restated Bylaws.
5* Opinion of Weil, Gotshal & Manges LLP.
23.1* Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on signature page to this
Registration Statement).
--------------
* To be filed by amendment.
** Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 333-74667).
ITEM 17. 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 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 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.
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the 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
31
<PAGE>
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the 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 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 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, as amended, 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 Commission such indemnification is against public policy
as expressed in the Securities Act of 1933, as amended, 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 of 1933, as amended, and will
be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Louisville, State of Kentucky, on this 11th day
of December, 2000.
HIGH SPEED ACCESS CORP.
By: /s/ Charles E. Richardson III
------------------------------------
Name: Charles E. Richardson III
Title: General Counsel
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints John G. Hundley, George E. Willett
and Stephen M. Calk, 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
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 agent, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ David A. Jones, Jr. Chairman of the Board of Directors December 11, 2000
--------------------------------------------
David A. Jones, Jr.
/s/ Robert Saunders Vice Chairman of the Board of December 11, 2000
-------------------------------------------- Directors
Robert Saunders
/s/ Irving W. Bailey, II Director December 11, 2000
--------------------------------------------
Irving W. Bailey, II
/s/ Michael Gellert Director December 11, 2000
--------------------------------------------
Michael Gellert
/s/ Jerald L. Kent Director December 11, 2000
--------------------------------------------
Jerald L. Kent
/s/ William D. Savoy Director December 11, 2000
--------------------------------------------
William D. Savoy
<PAGE>
/s/ Stephen E. Silva Director December 11, 2000
--------------------------------------------
Stephen E. Silva
/s/ Daniel J. O'Brien President, Chief Executive Officer and December 11, 2000
-------------------------------------------- Director (Principal Executive Officer)
Daniel J. O'Brien
/s/ George E. Willett Chief Financial Officer December 11, 2000
-------------------------------------------- (Principal Financial and Accounting
George E. Willett Officer)
</TABLE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4.1** Specimen Common Stock Certificate.
4.2** Amended and Restated Certificate of Incorporation.
4.3** Amended and Restated Bylaws.
5* Opinion of Weil, Gotshal & Manges LLP.
23.1* Consent of Weil, Gotshal & Manges LLP (included in Exhibit 5).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on signature page to this
Registration Statement).
--------------
* To be filed by amendment.
** Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (File No. 333-74667).
