________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________________________
FORM S-8
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)
HOST AMERICA CORPORATION
2000 STOCK OPTION PLAN
________________________________
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)
________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
Proposed Proposed
Title of each class of Amount to maximum offering maximum aggregate Amount of
Securities to be registered be registered(1) price per share(2) offering price(2) Registration fee(2)
--------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 500,000 $2.562 per share $1,281,000 $338.18
==============================================================================================================
</TABLE>
(1) The number of shares of common stock, par value $.001 per share
("Common Stock"), stated above consists of the aggregate number of
shares which may be sold upon the exercise of options which have been
granted and/or may hereafter be granted under the Host America
Corporation 2000 Stock Option Plan (the "Plan"). The maximum number
of shares which may be sold upon the exercise of such options granted
under the Plan are subject to adjustment in accordance with certain
anti-dilution and other provisions of the Plan. Accordingly, pursuant
to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement covers, in addition to
the number of shares stated above, an indeterminate number of shares
which may be subject to grant or otherwise issuable after the
operation of any such anti-dilution and other provisions.
(2) Pursuant to Rule 457(c) and (h)(1), based on the average ($2.562) of
the high ($2.625) and low ($2.50) sale prices of the Company's common
stock on December 6, 2000, as reported on the Nasdaq Small Cap Market.
<PAGE>
EXPLANATORY NOTE
----------------
In accordance with the instructional Note to Part I of Form S-8 as
promulgated by the Securities and Exchange Commission, the information
specified by Part I of Form S-8 has been omitted from this Registration
Statement on Form S-8 for offers of Common Stock pursuant to the Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Host America Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission")
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
are incorporated herein by reference:
(1) The Company's Annual Report on Form 10-KSB for the year ended
June 30, 2000, as filed with the Commission on September 28, 2000;
(2) The Company's Quarterly Report on Form 10-QSB for the quarter
ended September 29, 2000, as filed with the Commission on
November 13, 2000;
(3) The Company's Definitive Proxy Materials, as filed with the
Commission on October 17, 2000;
(4) The Company's Current Reports on Form 8-K and Form 8-K/A, as
filed with the Commission on August 9, 2000 and October 13, 2000,
respectively;
(5) The description of the common stock that is contained in the
Company's registration statement on Amendment No. 2 to Form 8-A
filed with the Commission on or about July 16, 1998, including
any amendment or report filed for the purposes of updating the
description; and
(6) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year referred to in (1)
above.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities remaining unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof
from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
II-1
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the securities offered hereby has been passed upon by
the law firm of Berenbaum, Weinshienk & Eason, P.C.
ITEM 6. 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.
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.
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
II-2
<PAGE>
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement.
EXHIBIT NO. TITLE
------------- ----------------------------------------------------------
5 Opinion of Berenbaum, Weinshienk & Eason, P.C.
23.1 Consent of Berenbaum, Weinshienk & Eason, P.C. (included in
Exhibit 5)
23.2 Consent of DiSanto Bertoline & Company, P.C.
24 Power of Attorney of Directors and Officers of the Company
(included in the signature page)
99.1 Host America Corporation 2000 Stock Option Plan
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(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
II-3
<PAGE>
(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 (a)(1)(i) and (a)(1)(ii) do not apply if
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 Exchange Act that are incorporated
by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of 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, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of
the Securities Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Exchange Act) 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 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 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Host
America Corporation certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Hamden, State of
Connecticut on this 6th day of December, 2000.
HOST AMERICA CORPORATION
/s/ GEOFFREY W. RAMSEY
---------------------------------------
By: Geoffrey W. Ramsey, President and
Chief Executive Officer
POWER OF ATTORNEY
Each of the undersigned, being a director and/or officer of Host
America Corporation (the "Company"), hereby nominates, constitutes and
appoints Geoffrey W. Ramsey and David J. Murphy, or any one of them
severally, to be his or her true and lawful attorney-in-fact and agent and
to sign in his or her name and on his or her behalf in any and all
capacities stated below, and to file with the Securities and Exchange
Commission (the "Commission"), a Registration Statement on Form S-8 (the
"Registration Statement") relating to the issuance of certain shares of the
common stock of the Company (the "Common Stock") in connection with the
Host America Corporation 2000 Stock Option Plan, and to file any and all
amendments, including post-effective amendments, to the Registration
Statement making such changes in the Registration Statement as such
attorney-in-fact and agent deems appropriate, and generally to do all such
things on his or her behalf in any and all capacities stated below to
enable the Company to comply with the provisions of the Securities Act of
1933, as amended, 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 6, 2000.
/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
/s/ GILBERT ROSSOMANDO
-------------------------------
Gilbert Rossomando, Director
II-5
<PAGE>
EXHIBIT INDEX TO REGISTRATION STATEMENT ON FORM S-8 OF
HOST AMERICA CORPORATION
EXHIBIT NO. TITLE
------------- ----------------------------------------------------------
5 Opinion of Berenbaum, Weinshienk & Eason, P.C.
23.1 Consent of Berenbaum, Weinshienk & Eason, P.C. (included in
Exhibit 5)
23.2 Consent of DiSanto Bertoline & Company, P.C.
24 Power of Attorney of Directors and Officers of the Company
(included in the signature page)
99.1 Host America Corporation 2000 Stock Option Plan
