As filed with the Securities and Exchange Commission on August 31, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SpectraSite Holdings, Inc.
(Exact name of registrant as specified in its charter)
Delaware 56-2027322
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
8000 Regency Parkway 27511
Suite 570 (Zip Code)
Cary, North Carolina
(Address of Principal Executive Offices)
SPECTRASITE HOLDINGS, INC.
STOCK INCENTIVE PLAN
(Full title of plan)
DAVID P. TOMICK
SpectraSite Holdings, Inc.
8000 Regency Parkway
Suite 570
Cary, North Carolina 27511
(Name and Address of agent for service)
Telephone number of agent for service:
(919) 468-0012
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================== ===================== ======================= ===================== =====================
Proposed Proposed
maximum offering maximum
Title of security Amount being price per aggregate offering Amount of
being registered Registered* share(**) price(**) registration fee
======================== ===================== ======================= ===================== =====================
======================== ===================== ======================= ===================== =====================
<S> <C> <C> <C> <C>
Class A
Common Stock, $.01 Par
Value 10,000,000 $13.3633 $133,632,596.60 $37,149.86
======================== ===================== ======================= ===================== =====================
</TABLE>
(*) In addition, pursuant to Rule 416(a) under the Securities Act of 1933,
this registration statement also covers an indeterminate number of
additional shares which may be offered and issued in accordance with the
Plan terms to prevent dilution from stock splits, stock dividends or
similar transactions.
(**) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f)(1) under the Securities Act of 1933.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing information specified in the instructions to Part I of
Form S-8 will be sent or given to employees participating in the Plan as
specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act"). Those documents and the documents incorporated by reference
into this Registration Statement pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
SpectraSite Holdings, Inc. (the "Company") hereby incorporates, or will be
deemed to have incorporated, herein by reference the following documents:
(1) The Company's prospectus (File No. 333-67043) filed pursuant to Rule
424(b) of the Securities Act of 1933.
(2) The Company's Form 10-Q for the period ended June 30, 1999.
(3) The description of the Company's Class A Common Stock contained in
the Company's most recent Exchange Act registration statement, including any
amendment thereto or report filed for the purpose of updating such description;
(4) All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Officers and Directors
Section 102(b)(7) of the General Corporation Law of the State of
Delaware (the "DGCL"), provides that a corporation (in its original certificate
of incorporation or an amendment thereto) may eliminate or limit the personal
liability of a director (or certain persons who, pursuant to the provisions of
the certificate of incorporation, exercise or perform duties conferred or
imposed upon directors by the DGCL) to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provisions shall 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 stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL
(providing for liability of directors for unlawful payment of dividends or
unlawful stock purchases or redemptions) or (iv) for any transaction from which
the director derived an improper personal benefit. The Registrant's Certificate
of Incorporation, as amended, limits the liability of directors thereof to the
extent permitted by Section 102(b)(7) of the DGCL.
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<PAGE>
Under Section 145 of the DGCL, in general, a corporation may indemnify
its directors, officers, employees or agents against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by them in connection with any action, suit or proceeding
brought by third parties to which they may be made parties by reason of their
being or having been directors, officers, employees or agents and shall so
indemnify such persons only if they acted in good faith and in a manner they
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 their conduct was unlawful.
In addition, the SpectraSite Holdings, Inc. Stock Incentive Plan (the
"Plan") provides for the indemnification of directors who serve on the Plan's
administrative committee against any loss, liability, claim, cost or expense
incurred by or asserted against such director as a result of any act or omission
to act in connection with the Plan, unless arising out of such director's fraud
or bad faith.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit No. Exhibit Page No.
<S> <C> <C>
5 Opinion of Dow, Lohnes & Albertson, PLLC 7
23.1 Consent of Ernst & Young LLP 9
23.2 Consent of Dow, Lohnes & Albertson 7
(contained in their opinion in Exhibit 5)
</TABLE>
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 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;
(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; and
(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
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 bonafide offering thereof.
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<PAGE>
(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 foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Cary, State of North Carolina on the 31st day
of August, 1999.
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
------------------------
Stephen H. Clark
President, Chief Executive Officer and Director
Pursuant to the requirements of the Securities Act of 1933, the Plan
Administrators have duly caused this Registration Statement to be signed by the
following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
<S> <C> <C>
/s/ Stephen H. Clark
___________________________ President, August 31, 1999
Stephen H. Clark Chief Executive Officer
and Director
(Principal Executive Officer)
/s/ David P. Tomick
___________________________ Executive Vice President, August 31, 1999
David P. Tomick Chief Financial Officer and
Secretary
(Principal Financial Officer)
/s/ Daniel I. Hunt
___________________________ Vice President - Finance and August 30, 1999
Daniel I. Hunt Administration
(Principal Accounting Officer)
/s/ Lawrence B. Sorrel
___________________________ Chairman of the Board of August 30, 1999
Lawrence B. Sorrel Directors
/s/ Timothy M. Donahue
___________________________ Director August 30, 1999
Timothy M. Donahue
/s/ Andrew R. Heyer
___________________________ Director August 30, 1999
Andrew R. Heyer
/s/ Thomas E. McInerney
___________________________ Director August 30, 1999
Thomas E. McInerney
/s/ Michael J. Price
___________________________ Director August 30, 1999
Michael J. Price
/s/ Rudolph E. Rupert
___________________________ Director August 30, 1999
Rudolph E. Rupert
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<PAGE>
/s/ Steven M. Shindler
___________________________ Director August 30, 1999
Steven M. Shindler
</TABLE>
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Exhibit 5
[FIRM LETTERHEAD APPEARS HERE]
August 31, 1999
SpectraSite Holdings, Inc.
8000 Regency Parkway
Suite 570
Cary, North Carolina 27511
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as special counsel for SpectraSite Holdings, Inc., a
Delaware corporation ("SpectraSite"), in connection with the preparation of the
Registration Statement on Form S-8 (the "Registration Statement") pertaining to
10,000,000 shares (the "Shares") of Class A Common Stock, $.001 par value per
share of SpectraSite, being issued by SpectraSite pursuant to the SpectraSite
Holdings, Inc. Stock Incentive Plan (the "Plan").
In preparing this opinion, we have reviewed (a) the Registration
Statement; (b) SpectraSite's Amended and Restated Certificate of Incorporation
and Restated Bylaws; (c) the Plan; and (d) certain records of SpectraSite's
corporate proceedings as reflected in its minute and stock books.
As to matters of fact relevant to our opinion, we have relied upon oral
representations of officers of SpectraSite without further investigation. With
respect to the foregoing documents, we have assumed: (i) the authenticity of all
documents submitted to us as originals, the conformity with authentic original
documents of all documents submitted to us as copies or forms, the genuineness
of all signatures and the legal capacity of natural persons, and (ii) that the
foregoing documents, in the forms thereof submitted for our review, have not
been altered, amended or repealed in any respect material to our opinion as
stated herein. We have not reviewed any documents other than the documents
listed above for purposes of rendering our opinion as expressed herein, and we
assume that there exists no provision of any such other document that bears upon
or is inconsistent with our opinion as expressed herein. We have conducted no
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we assume to be true,
complete and accurate in all material respects.
Our opinion is limited to matters of law arising under the General
Corporation Law of the State of Delaware, insofar as such law applies, and we
express no opinion as to conflicts of law rules or the laws of any states or
jurisdictions, including federal laws regulating securities, other federal laws
or the rules and regulations of stock exchanges or any other regulatory body,
other than as specified above.
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<PAGE>
SpectraSite Holdings, Inc.
August 31, 1999
Page 2
Based upon and subject to the foregoing and any other qualifications
stated herein, we are of the opinion that the Shares, when and to the extent
issued, will be validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as Exhibit 5 to the
Registration Statement, and to all references to our firm in the Registration
Statement, provided, that in giving such consent we do not admit that we come
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933 or the Rules and Regulations of the Securities and
Exchange Commission thereunder. Except as provided for hereinabove, without our
prior written consent, this opinion may not be furnished or quoted to, or relied
upon by, any other person or entity for any purpose.
Very truly yours,
DOW, LOHNES & ALBERTSON, PLLC
By: /s/ Michael A. Hepburn
---------------------------
Michael A. Hepburn
Member of the Firm
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Exhibit 23(i)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Stock Incentive Plan of SpectraSite
Holdings, Inc., of our report dated February 26, 1999 with respect to the
consolidated financial statements of SpectraSite Holdings, Inc., included in its
Registration Statement (Form S-4, No. 333-67043) as of December 31, 1998 and
December 31, 1997 and for the period from inception (April 25, 1997) to
December 31, 1997 and for the year ended December 31, 1998 and our report dated
March 27, 1998, with respect to the consolidated financial statements of the
Company's predecessor, TeleSite Services, LLC, as of December 31, 1996 and for
the year ended December 31, 1996 and the period from January 1, 1997 to May 12,
1997.
/s/ Ernst & Young LLP
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Ernst & Young LLP
Raleigh, North Carolina
August 30, 1999
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