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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 25, 2000
FILE NO. 333-47964
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TERREMARK WORLDWIDE, INC.
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(Exact Name of Registrant as Specified in its Charter)
DELAWARE 52-1989122
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
2601 S. Bayshore Drive
Coconut Grove, Florida 33133
(305) 856-3200
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(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
Brian K. Goodkind
Executive Vice President and Chief Operating Officer
Terremark Worldwide, Inc.
2601 S. Bayshore Drive
Coconut Grove, Florida 33133
(305) 856-3200
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(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
COPIES OF COMMUNICATIONS TO:
Paul Berkowitz, Esq.
Julie M. Levitt, Esq.
Greenberg Traurig, P.A.
1221 Brickell Avenue
Miami, Florida 33131
(305) 579-0500
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
From time to time or at one time after this
Registration Statement becomes effective
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, 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 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. [ ]
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, 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.
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THE INFORMATION IN THIS PRELIMINARY PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PRELIMINARY
PROSPECTUS IS NOT AN OFFER TO SELL NOR DOES IT SEEK AN OFFER TO BUY THESE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
We estimate that expenses in connection with the distribution described
in this registration statement will be as follows. All expenses incurred with
respect to the distribution will be paid by us, and such amounts, with the
exception of the Securities and Exchange Commission registration fees, are
estimates.
SEC registration fee........................................ $ 253.74
Accounting fees and expenses................................ 10,000.00
Legal fees and expenses..................................... 5,000.00
Printing and engraving expenses............................. 5,000.00
Miscellaneous............................................... 246.26
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Total....................................................... $20,500.00
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to Section 102(b)(7) of the General Corporation Law of the
State of Delaware, our certificate of incorporation eliminates the liability of
our directors to us or our stockholders, except for liabilities related to
breach of duty of loyalty, actions not in good faith, and certain other
liabilities.
Our certificate of incorporation, and bylaws provide for the
indemnification of directors and officers to the fullest extent permitted by the
General Corporate Law.
Section 145 of the General Corporate Law authorizes indemnification
when a person is made a party to any proceeding by reason of the fact that such
person is or was a director, officer, employee or agent of the corporation or
was serving as a director, officer, employee or agent of another enterprise, at
the request of the corporation, and if such person acted in good faith and in a
manner reasonably believed by him or her to be in, or not opposed to, the best
interests of the corporation. With respect to any criminal proceeding, such
person must have had no reasonable cause to believe that his or her conduct was
unlawful. If it is determined that the conduct of such person meets these
standards, he or she may be indemnified for expenses incurred and amounts paid
in such proceeding if actually and reasonably incurred by him or her in
connection therewith.
If such a proceeding is brought by or on behalf of the corporation
(i.e., a derivative suit), such person may be indemnified against expenses
actually and reasonably incurred if he or she acted in good faith and in a
manner reasonably believed by him or her to be in, or not opposed to, the best
interests of the corporation. There can be no indemnification with respect to
any matter as to which such person is adjudged to he liable to the corporation;
however, a court may, even in such case, allow such indemnification to such
person for such expenses as the court deems proper. Where such person is
successful in any such proceeding, he or she is entitled to be indemnified
against expenses actually and reasonably incurred by him or her. In all other
cases, indemnification is made by the corporation upon determination by it that
indemnification of such person is proper because such person has met the
applicable standard of conduct.
Our board of directors has approved, and we are in the process of
entering into, indemnification agreements with all of our directors and senior
officers. These indemnification agreements provide, in pertinent part, that we
shall indemnify an indemnitee who is or was a party or is threatened, pending or
completed action or proceeding whether civil, criminal, administrative or
investigative by reason of the fact that the indemnitee is or was our director
or senior officer. We shall advance all expenses, judgments, fines, penalties
and amounts paid in settlement (including taxes imposed on indemnitee on account
of receipt of such payouts) incurred by the indemnitee in connection with the
investigation, defense, settlement or appeal of any civil or criminal action or
proceeding as described above. The indemnitee shall repay such amounts advanced
only if it shall be ultimately
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determined that he or she is not entitled to be indemnified by us. The advances
paid to the indemnitee by us shall be delivered within 20 days following a
written request by the indemnitee. Any award of indemnification to an
indemnitee, if not covered by insurance, would come directly from our assets,
thereby affecting a stockholder's investment.
We have obtained directors' and officers' liability insurance with an
aggregate liability for the policy year, inclusive of costs of defense, in the
amount of $3,000,000.
ITEM 16. EXHIBITS
The following exhibits, which are furnished with this registration
statement or incorporated by reference, are filed as part of this registration
statement:
3.1 Restated Certificate of Incorporation of the Registrant(3)
3.2 Restated Bylaws of the Registrant (1)
5.1 Opinion of Greenberg Traurig, P.A.(3)
10.1 Form of Indemnification Agreement for Senior Officers and
Directors (2)
23.1 Consent of Deloitte & Touche LLP(3)
23.2 Consent of PricewaterhouseCoopers LLP(3)
23.3 Consent of Greenberg Traurig, P.A. (contained in Exhibit 5.1)(3)
24.1 Power of Attorney (included on signature page)
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(1) Incorporated by reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-3 filed May 15, 2000.
(2) Incorporated by reference to Exhibit 10.1 to the Registrant's Registration
Statement on Form S-3/A filed on September 1, 2000.
(3) Incorporated by reference to the Registrant's Registration Statement on
Form S-3 filed October 13, 2000.
ITEM 17. UNDERTAKINGS
(a) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (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 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.
(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 bona
fide offering thereof.
(c) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective amendment to
this Registration Statement.
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement;
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(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 (i) and (ii) do not apply if the Registration Statement
is on Form S-3, and the information required to be included in
a post-effective amendment is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section
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 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.
(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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this
amendment to registration statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
** Chairman of the Board, Chief Executive Officer October 23, 2000
--------------------------------------- (Principal Executive)
Manuel D. Medina
** Director October 23, 2000
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Timothy Elwes
** Senior Vice-President and Chief Financial October 23, 2000
--------------------------------------- Officer
Irving A. Padron, Jr. (Principal Accounting Officer)
** Director October 23, 2000
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Clifford J. Preminger
** Director October 23, 2000
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Marvin S. Rosen
** Director October 23, 2000
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Miguel Rosenfeld
** Director October 23, 2000
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Joel A. Schleicher
** Director October 23, 2000
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Kenneth I. Starr
** Director October 23, 2000
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Joseph R. Wright, Jr.
/s/ Brian K. Goodkind Executive Vice President and Chief Operating October 23, 2000
--------------------------------------- Officer
Brian K. Goodkind, on behalf of himself
as well as Attorney in fact
</TABLE>
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** Executed on behalf of these individuals by Brian K. Goodkind as
Attorney in fact.
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EXHIBIT INDEX
Exhibits
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3.1 Restated Certificate of Incorporation of the Registrant(3)
3.2 Restated Bylaws of the Registrant (1)
5.1 Opinion of Greenberg Traurig, P.A.(3)
10.1 Form of Indemnification Agreement for Senior Officers and
Directors (2)
23.1 Consent of Deloitte & Touche LLP(3)
23.2 Consent of PricewaterhouseCoopers LLP(3)
23.3 Consent of Greenberg Traurig, P.A. (contained in Exhibit 5.1)(3)
24.1 Power of Attorney (included on signature page)
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(1) Incorporated by reference to Exhibit 3.2 to the Registrant's
Registration Statement on Form S-3 filed on May 15, 2000.
(2) Incorporated by reference to Exhibit 10.1 to the Registrant's
Registration Statement on Form S-3/A filed on September 1, 2000.
(3) Incorporated by reference to the Registrant's Registration Statement
on Form S-3 filed on October 13, 2000.
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