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As filed with the Securities and Exchange Commission on July 18, 2000
Registration No. 333-41308
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
AMENDMENT NO. 1 TO FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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SBA COMMUNICATIONS CORPORATION
(Exact name of Registrant as specified in its charter)
Florida 65-0716501
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
One Town Center Road
Third Floor
Boca Raton, Florida 33486
(561) 995-7670
(Address, including zip code, and telephone number,
including area code, of Registrant's principal
executive offices)
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Jeffrey A. Stoops
President
SBA Communications Corporation
One Town Center Road
Third Floor
Boca Raton, Florida 33486
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
Robert C. Boehm, Esquire
Akerman, Senterfitt & Eidson, P.A.
One S.E. 3rd Ave, 28th Floor
Miami, Florida 33131
Phone: (305) 374-5600
Fax: (305) 374-5095
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Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. |_|
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Calculation of Registration Fee
<TABLE>
<CAPTION>
Proposed Maximum Amount of
Title of Each Class Amount to be Proposed Maximum Aggregate Offering Price Registration
of Securities to be Registered Registered Offering Price per Unit (1)(2) Fee (3)
------------------------------ ---------- ----------------------- --------------------- -------
<S> <C> <C> <C> <C>
Debt Securities(4)..............
Preferred Stock, par value $0.01
per share(5)....................
Class A Common Stock, par value
$0.01 per share(6)..............
Depositary Shares(7)............
Warrants(8).....................
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Total........................... $500,000,000(1) (2) $500,000,000 $132,000(9)
(Footnotes appear on following page)
</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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
(1) In no event will the aggregate maximum initial offering price of all
securities issued and sold by the Registrant pursuant to this Registration
Statement exceed $500,000,000, or the equivalent thereof in foreign
currencies or currency units. Any securities registered hereunder may be
sold separately, together or as units with other securities registered
hereunder.
(2) The proposed maximum offering price per unit (a) has been omitted pursuant
to Instruction II.D of Form S-3 and (b) will be determined, from time to
time, by the Registrant in connection with the issuance by the Registrant
of the securities registered hereunder.
(3) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended.
(4) Subject to footnote 1, there is being registered hereunder an indeterminate
principal amount of debt securities as may be sold, from time to time, by
the Company. Such amount shall be increased, if any debt securities are
issued at an original issue discount, by an amount such that the net
proceeds to be received by the Company shall be equal to the above amount
to be registered. Also, in addition to any debt securities that may be
issued directly under this Registration Statement, there is being
registered hereunder such indeterminate amount of debt securities as may be
issued upon conversion or exchange of other debt securities, preferred
stock or depositary shares of the Company, for which no consideration will
be received by the Company, or upon exercise of warrants registered hereby.
(5) Subject to footnote 1, there is being registered hereunder an indeterminate
number of shares of preferred stock as may be sold, from time to time, by
the Company. There also is being registered hereunder an indeterminate
number of shares of preferred stock as shall be issuable upon exercise of
warrants registered hereby. In addition, there is being registered
hereunder such indeterminate number of shares of preferred stock, for which
no consideration will be received by the Company, as may be issued upon
conversion or exchange of debt securities of the Company.
(6) Subject to footnote 1, there is being registered hereunder an indeterminate
number of shares of Class A common stock as may be sold, from time to time,
by the Company. There also is being registered hereunder an indeterminate
number of shares of Class A common stock as may be issuable upon conversion
of the debt securities or the preferred stock or upon exercise of warrants
registered hereby. The aggregate amount of Class A common stock registered
hereunder is limited, solely for purposes of any market offerings, to that
which is permissible under Rule 415(a)(4) under the Securities Act of 1933,
as amended.
(7) Such indeterminate number of depositary shares to be evidenced by
depositary receipts, representing a fractional interest of a share of
preferred stock.
(8) Subject to footnote 1, there is being registered hereunder an indeterminate
number of warrants representing rights to purchase debt securities, shares
of Class A common stock or preferred stock or depositary shares of the
Company registered hereby.
(9) This amount was previously remitted to the Commission.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth an estimate of the fees and expenses in
connection with the issuance and distribution of the securities being registered
hereunder. All such fees and expenses shall be borne by the undersigned company
(the "Company").
Commission Registration Fee......................................... $132,000
Trustee's Fees and Expenses ........................................ --
Rating Agencies' Fees .............................................. 100,000
Transfer Agent and Registrar Fees and Expenses...................... --
Legal Fees and Expenses............................................. 200,000
Accounting Fees and Expenses........................................ 200,000
Printing, Engraving and Mailing Expenses............................ 100,000
Miscellaneous....................................................... 200,000
Total............................................................... $932,000
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Florida Business Corporation Act (the "FBCA"), a director is not
personally liable for monetary damages to the corporation or any other person
for any statement, vote, decision, or failure to act regarding corporate
management or policy unless (1) the director breached or failed to perform his
duties as a director and (2) the director's breach of, or failure to perform,
those duties constitutes: (a) a violation of the criminal law, unless the
director had reasonable cause to believe his conduct was lawful or had no
reasonable cause to believe his conduct was unlawful, (b) a transaction from
which the director derived an improper personal benefit, either directly or
indirectly, (c) a circumstance under which an unlawful distribution is made, (d)
in a proceeding by or in the right of the corporation to procure a judgment in
its favor or by or in the right of a shareholder, conscious disregard for the
best interest of the corporation, or willful misconduct, or (e) in a proceeding
by or in the right of someone other than the corporation or a shareholder,
recklessness or an act or omission which was committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful disregard of
human rights, safety, or property. A corporation may purchase and maintain
insurance on behalf of any director or officer against any liability asserted
against him or her and incurred by him or her in his or her capacity or arising
out of his or her status as such, whether or not the corporation would have the
power to indemnify him or her against such liability under the FBCA.
Under the FBCA, a corporation has power to indemnify any person who was or
is a party to any proceeding (other than an action by, or in the right of the
corporation), by reason of the fact that he is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture,
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trust or other enterprise against liability incurred in connection with the
proceeding, including any appeal thereof, if he acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
proceeding by judgment, order, settlement or conviction or upon a plea of nolo
contendere or its equivalent does not, of itself, create a presumption that the
person did not act in good faith and in a manner which he reasonably believed to
be in, or not opposed to, the best interests of the corporation or, with respect
to any criminal action or proceeding, has reasonable cause to believe that his
conduct was unlawful.
However, indemnification or advancement of expenses shall not be made to or
on behalf of any director, officer, employee or agent if a judgment or other
final adjudication establishes that his actions, or omissions to act, were
material to the cause of action so adjudicated and constitute: (a) a violation
of the criminal law, unless the director, officer, employee or agent had
reasonable cause to believe his conduct was lawful or had no reasonable cause to
believe his conduct was unlawful; (b) a transaction from which the director,
officer, employee or agent derived an improper personal benefit; (c) in the case
of a director, a circumstance under which the above liability provisions are
applicable; or (d) willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder.
The articles of incorporation of the Company provide that the Company
shall, to the fullest extent permitted by applicable law and its by-laws, as
amended from time to time, indemnify all officers and directors of the Company.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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.
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ITEM 16. EXHIBITS
Exhibit Description
Number
4.2 Form of Senior Indenture.
4.3 Form of Subordinated Indenture.
4.4 Form of Senior Debt Security.*
4.5 Form of Convertible Debt Security.*
4.6 Form of Preferred Stock Certificate of Designation.*
4.7 Form of Warrant.*
4.8 Form of Warrant Agreement.*
4.9 Form of Deposit Agreement.*
5.1 Opinion of Akerman, Senterfitt & Eidson, P.A.*
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Akerman, Senterfitt & Eidson, P.A. (included in Exhibit
5.1).*
24.1 Power of Attorney of certain directors and officers of SBA (set forth
on the signature page of this registration statement).**
25.1 Form T-1 Statement of Eligibility of Trustee for Senior Indenture
under the Trust Indenture Act of 1939.*
25.1 Form T-1 Statement of Eligibility of Trustee for Subordinated
Indenture under the Trust Indenture Act of 1939.*
* To be filed with a Current Report on Form 8-K or a
Post-Effective Amendment to the registration statement.
** Previously Filed.
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ITEM 17. UNDERTAKINGS
(a) The 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 a 20
percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in 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 with or furnished to the Commission 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 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 Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the 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 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 and will be
governed by the final adjudication of such issue.
(d) The registrant hereby undertakes:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to
Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall
be deemed to be part of this registration statement as of the time it
was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of
prospectus 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.
(e) The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with
the rules and regulations prescribed by the Commission under Section
305(b)(2) of the Act.
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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 Boca Raton, State of Florida on July 17, 2000.
SBA COMMUNICATIONS CORPORATION
By: /s/ Steven E. Bernstein
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Name: Steven E. Bernstein
Title: Chairman and Chief Executive Officer
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints each of Jeffrey A. Stoops and John Marino, or either of
them, each acting alone, his or her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for such person and in his
or her name, place and stead, in any and all capacities, in connection with the
Registrant's Registration Statement on Form S-3 under the Securities Act of
1933, including to sign the Registration Statement in the name and on behalf of
the Registrant or on behalf of the undersigned as a director or officer of the
Registrant, and any and all amendments or supplements to the Registration
Statement, including any and all stickers and post-effective amendments or
supplements to the Registration Statement and to sign any and all additional
registration statements relating to the same offerings of securities as those
that are covered by the Registration Statement that are filed pursuant to Rule
462(b) under the Securities Act of 1933, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission and any applicable securities exchange or securities
self-regulatory body, granting unto said attorneys-in-fact and agents, each
acting alone, 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 to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, 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 to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Steven E. Bernstein Chairman, Chief Executive Officer and Director July 17 2000
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Steven E. Bernstein
/s/ Jeffrey A. Stoops President and Director July 17, 2000
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Jeffrey A. Stoops
/s/ John Marino Chief Financial Officer July 17, 2000
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John Marino
/s/ Pamela J. Kline Chief Accounting Officer July 17, 2000
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Pamela J. Kline
/s/ Donald B. Hebb, Jr. Director July 17, 2000
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Donald B. Hebb, Jr.
/s/ C. Kevin Landry Director July 17, 2000
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C. Kevin Landry
/s/ Richard W. Miller Director July 17, 2000
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Richard W. Miller
/s/ Robert S. Picow Director July 17, 2000
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Robert S. Picow
</TABLE>
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EXHIBIT INDEX
Exhibit Description
Number
4.2 Form of Senior Indenture.
4.3 Form of Subordinated Indenture.
12.1 Computation of Ratio of Earnings to Fixed Charges.
23.1 Consent of Arthur Andersen LLP.
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