As Filed with the Securities and Exchange Commission on December 14, 1999
Registration No. 333-_________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
________________________________
HOST AMERICA CORPORATION
(Exact name of registrant as specified in its charter)
COLORADO 06-1168423
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
TWO BROADWAY
HAMDEN, CONNECTICUT 06518
(203) 248-4100
(Address, including zip code, and telephone number, including
area code or registrant's principal executive offices)
GEOFFREY W. RAMSEY
CHIEF EXECUTIVE OFFICER
HOST AMERICA CORPORATION
TWO BROADWAY
HAMDEN, CONNECTICUT 06518
(Name, address, including zip code, and telephone number,
including area code or agent for service)
COPIES TO:
JOHN B. WILLS, ESQ. GEOFFREY W. RAMSEY
BERENBAUM, WEINSHIENK & EASON, P.C. HOST AMERICA CORPORATION
370 SEVENTEENTH STREET, SUITE 2600 TWO BROADWAY
DENVER, COLORADO 80202-5626 HAMDEN, CONNECTICUT 06518
(303) 825-0800 (203) 248-4100
________________________________
Approximate date of commencement of proposed sale of the securities to the
public: At such time or times after the effective date of this Registration
Statement as the Selling Shareholders shall determine.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the
following box: / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividends or
interest reinvestment plans, 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 statement 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 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: / /
________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
Proposed maximum Proposed maximum
Title of each class of offering aggregate Amount of
Securities to be registered Amount to be registered Price per unit(2) Offering price Registration fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value (1) 302,000 $3.96 $1,195,920 $332.47
=================================================================================================================
</TABLE>
(1) Each share of the Registrant's Common Stock includes one stock
purchase right.
(2) Estimated solely for the purpose of calculating the registration fee
and computed in accordance with Rule 457(c) under the Securities Act
based on the high ($4.06) and low ($3.85) sale prices of the
Registrant's Common Stock as quoted on the Nasdaq Small Cap Market on
December 3, 1999.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay the effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
section 8(a) of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to said section 8(a),
may determine.
<PAGE>
PROSPECTUS
HOST AMERICA CORPORATION
302,000 SHARES OF COMMON STOCK
($.001 PAR VALUE)
________________________________
This prospectus is part of a registration statement that covers
302,000 shares of our Common Stock which are presently outstanding as
underlying outstanding options and warrants. These shares may be offered
and sold from time to time by certain of our shareholders (the "Selling
Shareholders") in a manner set forth in this Prospectus. We will receive
up to approximately $1,762,500 from the exercise price of the options and
warrants (which have exercise prices ranging from $2.25 to $7.50) if and
when exercised. We will use the proceeds for general working capital
purposes. We will not receive any of the proceeds from the sale of the
Common Stock. We will bear the costs relating to the registration of the
Common Stock, which we estimate to be $15,000.
Our Common Stock and Warrants to purchase Common Stock are traded on
the Nasdaq Stock Market under the symbols CAFE and CAFEW. The average of
the high and low prices of the Common Stock as reported on the Nasdaq Stock
Market on December 2, 1999 was $4.0625 per share of Common Stock.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved these securities, or
determined if this prospectus is truthful or complete. Any representation
to the contrary is a criminal offense.
Purchasing shares of our Common Stock involves a high degree of risk.
See "Risk Factors" beginning on page 4.
________________________________
THE DATE OF THIS PROSPECTUS IS __________, 1999
<PAGE>
The terms "Host America," "Company," "we," "our" and "us" refer to
Host America Corporation unless the context suggests otherwise. The term
"you" refers to a prospective investor.
________________________________
You should rely on the information contained or incorporated by
reference in this prospectus. See "Where You Can Find More Information"
and "Incorporation of Certain Documents by Reference" on page ___. We have
not authorized anyone to provide you with different information. We are
not making an offer of these securities in any jurisdiction where the offer
or sale is not permitted. You should not assume that the information
contained in this prospectus is accurate as of any date other than the date
on the front cover of this prospectus.
<PAGE>
THE COMPANY
Host America Corporation is a regional contract food service
management company with operations in Connecticut, New York, New Jersey and
Massachusetts. Our diversity of services allows our customers to offer
their employees full breakfast and lunch availability, multi-level catering
and a variety of complementary food service options. The majority of our
revenues come from the following areas:
* management of corporate cafeterias
* management of corporate restaurants
* home meal replacement
* catering in single-tenant office buildings
* catering in multi-tenant office buildings
The remainder of our revenue comes from maintaining vending machines and
coffee service at select facilities. We concentrate on small- to medium-
sized clients who generate between $500,000 and $2 million in annual food
sales at each of their locations. We believe that these middle-market
clients provide us with greater profit margins. We also believe that these
middle-market clients give us the opportunity to provide them with a
variety of food-related services. We endeavor to be the exclusive food
provider at each facility we serve, thereby allowing us to control the
quality of food and service at each location.
We currently use various marketing and operating strategies to provide
clients with an umbrella of food services. These services include:
* corporate cafeteria dining
* office coffee
* vending machines
* special events catering
* home meal replacement
We believe that this umbrella strategy has been an important factor in our
growth, as well as in attracting large, corporate clients with multiple
needs. Through our on-site account managers and employees, we endeavor to
provide high quality food and client satisfaction while controlling
overhead and labor costs.
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We will attempt to increase our revenues through acquisition of small-
to medium-sized food service providers currently operating in geographical
locations and dining markets that we do not currently serve. We believe
that through acquiring these kinds of businesses our revenues will increase
at the same time as our overall per unit food costs and general and
administrative expenses will decrease. We have not, as of the date of this
report, entered into any agreements to acquire other food service
providers. We also cannot offer assurance that we will be successful in
finding suitable food service companies to acquire.
RECENT DEVELOPMENTS
The following is a summary of certain significant food service customers
we have acquired into in the past few months:
* On September 30, 1999, we entered into an agreement with Metro
Four Associates, Limited Partnership, the owner and lessor of a
multi-tenant building located in Edison, New Jersey. We will
provide deli-convenience style food for the tenants of this
building.
* On September 30, 1999, we entered into a contract with Trumpf,
Inc. located in Farmington, Connecticut, to provide the entire
food service operation for Trumpf, Inc. Trumpf, Inc.
manufactures sophisticated metal cutting machines. We project
the opening date for this operation to be in January, 2000.
* On October 4, 1999, we replaced Sodexho-Marriott as the food
service provider at Corporate Campus One located in Milford,
Connecticut. Crown Milford is the landlord of three multi-tenant
buildings. Some of the major tenants at Corporate Campus One are
Bayer Corporation, Oxford Health Plans, Executone, Staples, and
Warnaco.
* On October 4, 1999, we replaced Sodexho-Marriott as the food
service provider at Merritt Crossing Woods located in Milford,
Connecticut. Preotle, Lane & Associates Ltd. is the landlord of
the several multi-tenant buildings.
* On October 4, 1999, we replaced Sodexho-Marriott as the food
service provider at Stolt-Nielson Transportation Group Ltd.
located in Greenwich, Connecticut. This company is in the
business of shipping chemicals and liquids in tankers throughout
the world.
* On October 11, 1999, we replaced a food service company as the
dining service provider for Oxford Health Plans at Hookset and
Nashua, New Hampshire.
* On November 15, 1999, we became the food service provider for
Priceline.com located in Norwalk, Connecticut. Priceline.com
provides on line purchasing of airline and hotel reservations and
other internet services.
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* On December 9, 1999, we became the food service provider for New
York City Housing Authority. This is our first account in
downtown Manhattan. We hope this new account will provide us
with an opportunity to showcase our quality service and meal
selection to potential clients in the New York City area.
THE OFFERING
Securities Offered 302,000 shares of Common Stock, $.001 par value
Offering Price All or part of the shares offered hereby may be
sold from time to time in amounts and on terms to
be determined by the Selling Shareholders at the
time of the sale
Nasdaq Symbols "CAFE" and "CAFEW"
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RISK FACTORS
You should carefully consider the following risk factors, in addition
to the other information in this prospectus, before purchasing shares of
our Common Stock. Each of these risk factors could adversely affect our
business, operating results and financial condition. This means that each
of these risk factors could adversely affect the value of our Common Stock.
Investing in common stock involves a high degree of risk.
RETENTION AND RENEWAL OF CUSTOMER CONTRACTS. Our success depends upon
our ability to keep and renew contracts with our current customers.
Success also depends upon our ability to obtain and negotiate new customer
contracts. Two major customers make up 55% of our annual sales. There can
be no assurance that we will be able to:
* retain and renew existing client contracts
* obtain new contracts
* ensure new contracts we obtain will be profitable
Our failure to retain and renew existing contracts or obtain new contracts
could have a material adverse effect on our business, financial condition
and results of operations.
INVESTMENT IN CLIENT CONTRACTS. Typically we are required to invest
a substantial amount of money in a client's facility for equipment and
initial start-up expenses. Historically, we have funded these expenditures
from cashflow and short-term borrowings. To the extent that we are not
reimbursed for a part of these costs, are unable to enter into long-term
contracts or are unable to retain existing clients, we could experience
short-term cashflow problems or be required to seek additional outside
financing. There is no assurance that this outside financing will be
available.
DEPENDENCE ON BUILDING OWNERS TO RETAIN TENANTS. Our customers
consist primarily of tenants in large office complexes and buildings in the
Northeastern United States. Accordingly, we are dependent, in a large
part, on the building owners to attract and retain quality tenants by
offering competitive rental rates, favorable locations and adequate
maintenance services. To the extent these building owners fail to provide
a favorable rental atmosphere and retain existing tenants, we may lose
customers, revenues, and potentially a food service contract irrespective
of the quality of its food service facility. If we were to lose customers
due to building vacancies, it could have an adverse material effect on our
operations and financial condition.
FLUCTUATING FOOD PRICES AND SHORTAGES. We are subject to fluctuating
food prices and availability of certain food items which can, and does,
vary by location. Although our contracts with our clients allow for
certain adjustments due to rising prices over a specified period of time,
often times we must take a reduced profit to ensure that certain required
food groups are available and to avoid customer dissatisfaction. Although
most shortages last only a short period of time, shortages in certain items
may adversely affect the quality and variety of food offered at
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a given location. We attempt to anticipate shortages by centralized buying
for our various locations by placing large orders with reliable suppliers
and following trends in product availability and price.
COMPETITION IN TAKE-HOME PREPARED MEAL MARKET; DEPENDENCE ON CUSTOMERS
WITH DISPOSABLE INCOME. At certain of our locations, we offer tenant
employees the opportunity to purchase fully cooked homestyle meals which
can be served at home with little or no additional preparation. Our fully
prepared, take home meals compete with many other forms of home replacement
meals, including a variety of ethnic foods. Our take home meals are
generally purchased by upper middle class employees who have the disposable
income to purchase such meals. If a downturn in the economy were to occur,
it is likely that this source of revenues would be adversely affected.
DEPENDENCE ON KEY PERSONNEL. Our future success depends to a
significant extent on the efforts and abilities of our founders and
executive Officers, Geoffrey W. Ramsey and David J. Murphy. Although we
have five (5) year employment agreements with these two individuals, the
loss of their services could have a material adverse effect on our
business, financial condition and results of operations. We believe that
our future success also will depend significantly upon our ability to
attract, motivate and retain additional highly skilled managerial
personnel. Competition for this type of personnel is intense, and there
can be no assurance that we will be successful in attracting, assimilating
and retaining the personnel we require to grow and operate profitability.
On July 21, 1998, we obtained a $1,000,000 key man life insurance policy on
each of these individuals; we are the beneficiary of these policies.
LABOR SHORTAGES. From time to time, we must hire and train a number
of qualified food service managers and temporary workers to provide food
service at a new corporate location or scheduled events at the Laurel View
Country Club and other locations. We may encounter difficulty in hiring
sufficient numbers of qualified individuals to staff these events, which
could have a material adverse effect on our business, financial condition
and results of operations. These shortages occur most often during the
summer months when a large number of events are planned at the Laurel View
Country Club.
COMPETITION. We encounter significant competition in each area of the
contract food service market in which we operate. Some of our competitors
compete with us on both a national and a local basis, and have
significantly greater financial and other resources than we do.
Competition may result in:
* price reductions
* decreased gross margins
* loss of market share
In addition, existing or potential clients may elect to "self operate"
their food service, thereby eliminating the opportunity for us to compete
for the account. There can be no assurance that we
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will be able to compete successfully in the future or that competition will
not have a material adverse effect on our business, financial condition or
results of operations.
INFLATION RISK. Although most of our contracts provide for minimum
annual price increases for the products and services we provide, we could
be adversely impacted during inflationary periods if the rate of these
contractual increases is lower than the inflation rate.
ACQUISITION RISKS. One component of our corporate strategy is to
pursue acquisitions of related businesses. There can be no assurance that
we will be able to identify, negotiate and complete acquisitions or that
acquired businesses can be operated profitably or integrated successfully
into our operations. In addition, our acquisitions are subject to various
risks generally associated with the acquisition of businesses, including
the financial impact of expenses associated with the integration of
acquired businesses. There can be no assurance that our historic or future
acquisitions will not have an adverse impact on our business, financial
condition or results of operations. If suitable opportunities arise, we
anticipate that we would finance future acquisitions through available
cash, bank lines of credit or through additional debt or equity financing.
There can be no assurance that such debt or equity financing would be
available to us on acceptable terms when, and if, suitable strategic
opportunities arise. If we were to consummate one or more significant
acquisitions in which part or all of the consideration consisted of equity,
our stockholders could suffer a significant dilution of their interests.
In addition, many of the acquisitions we are likely to pursue, if accounted
for as a purchase, would result in substantial amortization charges.
GOVERNMENT REGULATION. Our business is subject to various
governmental regulations incidental to our operations. Among these are:
* environmental regulations
* employment regulations
* health and safety regulations
We also hold a liquor license at one facility which is subject to the
liquor license requirements of the state of Connecticut, including its
"dram-shop" statute. "Dram-shop" statutes generally provide a person
injured by an intoxicated person the right to recover damages from an
establishment that wrongfully served alcoholic beverages to the intoxicated
person. While we maintain insurance for such liability, there can be no
assurance that this insurance will be adequate to cover any potential
liability or that this insurance will continue to be available on
commercially acceptable terms. The loss of our liquor license could have
a material adverse effect on our business, financial condition or results
of operations. There can be no assurance that additional federal or state
regulation would not limit our activities in the future or significantly
increase the cost of regulatory compliance.
EFFECTIVE CONTROL BY CURRENT OFFICERS AND DIRECTORS. Our current
Officers, Directors and family members beneficially own approximately 66.6%
of the voting Common Stock and voting Series A Preferred Stock outstanding.
Our Articles of Incorporation do not authorize
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cumulative voting in the election of directors and as a result, our
Officers and Directors currently are, and in the foreseeable future will
continue to be, in a position to have a significant impact on the outcome
of substantially all matters on which shareholders are entitled to vote,
including the election of Directors.
NO DIVIDENDS. We have paid no cash dividends on our Common Stock and
have no present intention of paying cash dividends in the foreseeable
future. It is the present policy of our Board of Directors to retain all
earnings to provide for our growth. Payment of cash dividends in the
future will depend upon:
* our future earnings
* our requirements for capital improvements
* our operating conditions
* our financial conditions
* other factors deemed relevant by the Board of Directors
LIMITED PUBLIC MARKET AND POSSIBLE VOLATILITY OF PRICE OF SHARES OF
COMMON STOCK AND WARRANTS. The prices of securities of publicly traded
corporations tend to fluctuate widely. It can be expected that trading in
our Common Stock and Warrants may have wide fluctuations in price. Prior
to July 21, 1998, there was no public market for our Common Stock or
Warrants and, despite the initial listing of the Common Stock and Warrants
on Nasdaq, there is no assurance that a market will develop or be
sustained. The limited market for our Common Stock and Warrants,
fluctuations in trading interest and changes in our operating results,
financial condition and prospects could have a significant impact on the
market prices for our Common Stock and our Warrants.
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FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements within meaning of
section 27A of the Securities Act of 1933 and section 21E of the Securities
Exchange Act of 1934, including statements regarding, among other items,
our growth strategies, anticipated trends in our business and our future
results of operations, general economic conditions in the Northern United
States, our ability to make and integrate acquisitions and the outcome of
litigation and the impact of governmental regulation. These forward-looking
statements are based largely on our expectations and are subject to
a number of risks and uncertainties, many of which are beyond our control.
Actual results could differ materially from these forward-looking
statements as a result of, among other things:
* economic outlook,
* cost reduction,
* cash flow,
* operating performance,
* modification of existing strategies, or
* improvements and industry developments
In addition, the words "believe," "may," "will," "estimate," "continue,"
"anticipate," "intend," "expect" and similar expressions, as they relate to
Host America, our business of our management, are intended to identify
forward-looking statements.
We undertake no obligations to publicly update or revise any forward-
looking statements, whether as a result of new information, future events
or otherwise after the date of this prospectus. In light of these risks
and uncertainties, the forward-looking events and circumstances discussed
in the prospectus may not occur and actual results could differ materially
from those anticipated or implied in the forward-looking statements.
USE OF PROCEEDS
We will receive approximately $1,762,500 from the exercise of certain
options and warrants but nothing of the proceeds from the sale of the
Common Stock. We have paid the costs relating to the registration of these
shares, which we estimate to be $15,000.
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SELLING SHAREHOLDERS
The following table sets forth, for each Selling Shareholder, the
amount of Common Stock of the Company owned, the number of shares of Common
Stock offered hereby and the number of shares of Common Stock to be held
and the percentage of outstanding Common Stock to be beneficially owned
after completion of this offering (assuming the sale of all shares offered
under this Prospectus).
Number Number of
of Common Common Shares
Name Shares Owned(1) Offered Hereby(1)
---- ------------ --------------
Geoffrey and Debra Ramsey 35,000 35,000
David Murphy 35,000 35,000
Anne Ramsey 11,000 11,000
Thomas P. and Irene Eagan 11,000 11,000
Patrick J. Healy 5,000 5,000
John D'Antona 5,000 5,000
Robert T. Kirk 156,000 156,000
Michael Morrisett 8,000 8,000
Marie Lima 8,000 8,000
James St. Clair 4,000 4,000
Brian Herman 4,000 4,000
David A. Carter 10,000 10,000
Wendy Tand Gusrae 10,000 10,000
----------- -----------
Total 302,000 302,000
=========== ===========
_______________
(1) Represents only shares owned of restricted Common Stock underlying
warrants and options issued by the Company to Barron Chase Securities,
Inc. and its assigns in connection with the Company's public offering
in July 1999 and options and warrants issued to Officers and Directors
as incentive bonuses.
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PLAN OF DISTRIBUTION
We are registering the shares covered by this Prospectus for the
Selling Shareholders. As used in this Prospectus, "Selling Shareholders"
includes the pledgees, donees, transferees or others who may later hold the
Selling Shareholders' interest. We will pay the costs and fees of
registering the shares, but the Selling Shareholders will pay any brokerage
commissions, discounts or other expenses relating to the sale of the shares.
The Selling Shareholders may sell the shares in the over-the-counter
market or otherwise, at market prices prevailing at the time of the sale,
at prices related to the prevailing market prices, or at negotiated prices.
In addition, the Selling Shareholders may sell some or all of their shares
through:
* a block trade in which a broker-dealer may resell a portion of
the block, as principal, in order to facilitate the transaction;
* purchases by a broker-dealer, as principal, and resale by the
broker-dealer for its account; or
* ordinary brokerage transactions and transactions in which a
broker solicits purchasers.
The Selling Shareholders may negotiate and pay broker-dealers
commissions, discounts or concessions for their services. Broker-dealers
engaged by the Selling Shareholders may allow other broker-dealers to
participate in resales. However, the Selling Shareholders and any broker-
dealers involved in the sale or resale of the shares may qualify as
"underwriters" within the meaning of Section 2(a) (11) of the Securities
Act of 1933. If the Selling Shareholders qualify as "underwriters" they
will be subject to the prospectus delivery requirements of Section 5(b) (2)
of the 1933 Act.
In addition to selling their shares under this Prospectus, the Selling
Shareholders may:
* agree to indemnify any broker-dealer or agent against certain
liabilities related to the selling of the shares, including
liabilities arising under the 1933 Act;
* transfer their shares in other ways not involving market makers
or established trading markets, including directly by gift,
distribution, or other transfer; or
* sell their shares under Rule 144 of the 1933 Act rather than
under this Prospectus, if the transaction meets the requirements
of Rule 144.
EXPERTS
The financial statements incorporated in this Prospectus by reference
from the Company's annual report on Form 10K-SB have been audited by
DiSanto Bertoline & Company, P.C., independent auditors, as stated in their
report appearing herein in the Registration
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Statement, and have been so included in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
LEGAL OPINIONS
The legality of the shares offered hereby has been passed upon for us
by Berenbaum, Weinshienk & Eason, P.C.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the
Securities and Exchange Commission. You may read and copy documents we
have filed at the SEC's public reference rooms located at 450 Fifth Street,
N.W., Judiciary Plaza, Room 1024, Washington, D.C. 20549, and at regional
offices of the SEC at the Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661-2511 and at 7 World Trade
Center, New York, New York 10048. For further information on the SEC's
public reference rooms, please call 1-800-SEC-0330. Our filings are also
available to the public from the SEC's Internet web site at
http://www.sec.gov. Information about us also may be inspected at the
offices of the National Association of Securities Dealers, Inc., 1735 K
Street, N.W., Washington, D.C. 20006.
This prospectus is part of a registration statement that we filed with
the SEC utilizing a "shelf" registration process. Additional prospectuses
or prospectus supplements may add, update or change information contained
in this prospectus. Any statement that we make in this prospectus will be
modified or superseded by any inconsistent statement made by us in a later
prospectus supplement. You should read this prospectus together with
additional information described under the heading "Incorporation of
Certain Documents by Reference."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" the information we
file with the SEC, which means that we can disclose important information
to you by referring you to those documents that are considered part of this
prospectus. Information filed with the SEC after the date of this
prospectus will automatically update and supersede this information. The
following documents filed with the SEC are incorporated by reference.
(1) Definitive Proxy Statement for Annual Meeting of Shareholders to
be held November 23, 1999.
(2) Quarterly Report on Form 10-QSB for the quarter ended September 30,
1999.
(3) Annual Report on Form 10-KSB for the year ended June 25, 1999.
(4) Quarterly Report on Form 10-QSB for the quarter ended March 26,
1999.
(5) Definitive Proxy Statement for Special Meeting of Shareholders
held on April 30, 1999.
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(6) Quarterly Report on Form 10-QSB for the quarter ended December 25,
1998.
(7) Quarterly Report on Form 10-QSB for the quarter ended September 27,
1998.
(8) The description of our Defined Contribution and Trust Agreement
for 401(k) Plan that is contained in our registration Statement
on form S-8 filed with the SEC on January 4, 1999.
Any future filings we make with the SEC under Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act are incorporated by reference in
this prospectus until we complete the offering of the securities.
We will provide each person to whom a copy of this prospectus has been
delivered, without charge, a copy of any of the documents referred to above
as being incorporated by reference. You may request a copy by writing or
telephoning Geoffrey W. Ramsey, Two Broadway, Hamden, Connecticut 06518
(telephone 203-248-4100).
You should rely on the information incorporated by reference or
provided in this prospectus or any prospectus supplement. We have not
authorized anyone else to provide you with different information. We are
not making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus
or any prospectus supplement is accurate as of the date other than the date
on the front of those documents.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following sets forth expenses, other than underwriting fees and
commissions, expected to be borne by the Registrant in connection with the
distribution of the securities being registered:
Securities and Exchange Commission registration fee $ 2,000
Legal fees and expenses 10,000 (1)
Accounting fees and expense 2,000 (1)
Miscellaneous 1,000 (1)
-------
Total(1) $15,000 (1)
=======
____________
(1) All amounts listed above are estimates, except for the Securities and
Exchange Commission registration fee.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 7-108-402 of the Colorado Business Corporation Act (the "Act")
provides, generally, that the articles of incorporation of a Colorado
corporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director; except that any such
provision may not eliminate or limit the liability of a director (i) for
any breach of the director's duty of loyalty to the corporation or its
shareholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) acts specified
in Section 7-108-403 (concerning unlawful distribution), or (iv) any
transaction from which a director directly or indirectly derived an
improper personal benefit. Such provision may not eliminate or limit the
liability of a director for any act or omission occurring prior to the date
on which such provision becomes effective. The Company's articles of
incorporation contain a provision eliminating liability as permitted by the
statute. The Company's articles of incorporation further provide that
directors and officers of the Company will not be held personally liable
for any injury to persons or property caused by the wrongful act of any
employee of the Company unless either (i) the director or officer was
personally involved in the situation leading to litigation or (ii) the
director or officer committed a criminal offense in connection with such
litigation.
Section 7-109-103 of the Act provides that a Colorado corporation must
indemnify a person (i) who is or was a director of the corporation or an
individual who, while serving as a director of the corporation, is or was
serving at the corporation's request as a director, officer, partner,
trustee, employee or fiduciary or agent of another corporation or other
entity or of any employee benefit plan (a "Director") or officer of the
corporation and (ii) who was wholly successful, on the merits or otherwise,
in defense of any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative and
whether formal or informal (a "Proceeding"), in which he was a party,
against reasonable expenses incurred by him in connection with the
Proceeding unless such indemnity is limited by the corporation's articles
of incorporation. The Company's articles of incorporation do not contain
any such limitation.
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Section 7-109-102 of the Act provides, generally, that a Colorado
corporation may indemnify a person made a party to a Proceeding because the
person is or was a Director against any obligation incurred with respect to
a Proceeding to pay a judgment, settlement, penalty, fine (including an
excise tax assessed with respect to an employee benefit plan) or reasonable
expenses incurred in the Proceeding if the person conducted himself or
herself in good faith and the person reasonably believed, in the case of
conduct in an official capacity with the corporation, that the person's
conduct was in the corporation's best interests and, in all other cases,
his conduct was at least not opposed to the corporation's best interests
and, with respect to any criminal proceedings, the person had no reasonable
cause to believe that his conduct was unlawful. The Company's articles of
incorporation and its bylaws provide for such indemnification. A
corporation may not indemnify a Director in connection with any Proceeding
by or in the right of the corporation in which the Director was adjudged
liable to the corporation or, in connection with any other Proceeding
charging the Director derived an improper personal benefit, whether or not
involving actions in an official capacity, in which Proceeding the Director
was judged liable on the basis that he derived an improper personal
benefit. Any indemnification permitted in connection with a Proceeding by
or in the right of the corporation is limited to reasonable expenses
incurred in connection with such Proceeding.
Under Section 7-109-107 of the Act, unless otherwise provided in the
articles of incorporation, a Colorado corporation may indemnify an officer,
employee, fiduciary, or agent of the corporation to the same extent as a
Director and may indemnify such a person who is not a Director to a greater
extent, if not inconsistent with public policy and if provided for by its
bylaws, general or specific action of its board of directors or
shareholders, or contract. The Company's articles of incorporation and
bylaws provide for indemnification of officers, employees and agents of the
Company to the same extent as its directors.
The Company's articles of incorporation and bylaws permit the Company
to pay expenses incurred in defending a Proceeding in advance of the final
disposition of the Proceeding if the person undertakes to repay the amount
unless it is ultimately determined that he is entitled to such expenses.
The Company's articles of incorporation also provide that the Company
may purchase and maintain insurance covering any person serving on behalf
of, or at the request of, the Company against any liability incurred by him
in such capacity or arising out of his status as such, whether or not the
Company would have the power to indemnify him against such liability.
ITEM 16. EXHIBITS.
The following exhibits are filed as part of this registration
statement pursuant to Item 601 of Regulation S-K:
EXHIBIT NO. TITLE
- ------------- ------------------------------------
5 Opinion of Berenbaum, Weinshienk & Eason, P.C.
23.1 Consent of Berenbaum, Weinshienk & Eason, P.C. (included in
Exhibit 5)
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24.1 Consent of DiSanto Bertoline & Company, P.C.
5 Power of Attorney (included in the signature page of this
registration statement)
ITEM 17. UNDERTAKINGS.
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, provided, however, that 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 or prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement;
(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 (1)(i) and (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 by the registrant
pursuant to 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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to
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section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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 provisions described
under Item 15 above, 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 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 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 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-3 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
December 14, 1999.
HOST AMERICA CORPORATION
/s/ GEOFFREY W. RAMSEY
--------------------------------
By: Geoffrey W. Ramsey, President and
Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned hereby nominates, constitutes and appoints
Geoffrey W. Ramsey and David J. Murphy, or either one of them severally, to
be his true and lawful attorney-in-fact and to sign in his name and on his
behalf in any and all capacities stated below, and to file with the
Securities and Exchange Commission (the "Commission"), any and all
amendments, including post-effective amendments on Form S-3 or other
appropriate form, to this registration statement, and any additional
registration statement pursuant to Rule 462(b), and generally to do all
such things on his behalf in any and all capacities stated below to enable
the Company to comply with the provisions of the Securities Act of 1933 and
all requirements of the Commission.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on December 14, 1999.
/s/ GEOFFREY W. RAMSEY /s/ DAVID J. MURPHY
- --------------------------------- -------------------------------
Geoffrey W. Ramsey, Director David J. Murphy, Director
/s/ ANNE L. RAMSEY /s/ THOMAS P. EAGAN, JR
- --------------------------------- -------------------------------
Anne L. Ramsey, Director Thomas, P. Eagan, Jr., Director
/s/ PATRICK J. HEALY /s/ JOHN D'ANTONA
- --------------------------------- -------------------------------
Patrick J. Healy, Director John D'Antona, Director
5
EXHIBIT 5
BW&E
Berenbaum, Weinshienk & Eason, P.C. Attorneys at Law
370 Seventeenth Street
Republic Plaza - Suite 2600
Denver - Colorado 80202-5626
Telephone: 303/825-0800
Facsimile: 303/629-7610
E-Mail: [email protected]
- -------------------------------------------------------------------------
John Wills
Direct Dial 303/592-8360
E-Mail: [email protected]
December 13, 1999
Host America Corporation
Two Broadway
Hamden, CT 06518
RE: SEC REGISTRATION STATEMENT ON FORM S-3
Gentlemen:
I am counsel for Host America Corporation, a Colorado corporation (the
"Company"), in connection with its proposed public offering under the
Securities Act of 1933, as amended, of 302,000 shares of the Company's
Common Stock through a Registration Statement on Form S-3 as to which this
opinion is a part, to be filed with the Securities and Exchange Commission
(the "Commission").
In connection with rendering my opinion as set forth below, I have
reviewed and examined originals or copies identified to my satisfaction of
the following:
(1) Articles of Incorporation of the Company as filed with the
Secretary of State of the State of Colorado.
(2) Minute Book containing the written deliberations and resolutions
of the Board of Directors and Shareholders of the Company.
(3) The Registration Statement and the Preliminary Prospectus
contained within the Registration Statement.
(4) The other exhibits to the Registration Statement filed with the
Commission.
I have examined such other documents and records, instruments and
certificates of public officials, officers and representatives of the
Company, and have made such other investigations as I have deemed necessary
or appropriate under the circumstances.
<PAGE>
Host America Corporation
Opinion to Form S-3
December 13, 1999
Page 2
Based upon the foregoing and in reliance thereon, it is my opinion
that the 302,000 of Common Stock, $.001 value, have been duly and validly
authorized, legally issued, and are fully paid and non-assessable.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of my name under the caption "Legal
Matters" in the Prospectus constituting a part thereof.
Very truly yours,
BERENBAUM, WEINSHIENK & EASON, P.C
EXHIBIT 24.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Host America Corporation on Form S-3 of our report dated August 18,
1999, appearing in and incorporated by reference in the Annual Report on
Form 10-KSB of Host America Corporation for the years ended June 25, 1999
and June 28, 1998 and to the reference to us under the heading "Experts" in
the Prospectus, which is part of this Registration Statement.
/s/ DISANTO BERTOLINE & COMPANY, P.C.
Glastonbury, Connecticut
December 10, 1999
