AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 20, 1996
Registration No. 333-16063
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Amendment No. 1
to
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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American Telecasting, Inc.
(Exact name of registrant as specified in its charter)
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<TABLE>
<S> <C> <C>
Delaware 4841 54-14869888
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Identification No.)
incorporation or Code Number)
organization)
</TABLE>
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5575 TECH CENTER DRIVE, SUITE 300
COLORADO SPRINGS, COLORADO 80919
(719) 260-5533
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
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ROBERT D. HOSTETLER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
AMERICAN TELECASTING, INC.
5575 TECH CENTER DRIVE, SUITE 300
COLORADO SPRINGS, COLORADO 80919
(719) 260-5533
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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Copies to:
ROBERT N. JENSEN, ESQ.
MCDERMOTT, WILL & EMERY
1850 K STREET, N.W.
WASHINGTON, D.C. 20006
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As
soon as practicable after the effective date of this Registration
Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or 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
conjunction 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."
<PAGE>
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.
<PAGE>
PART II
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
SEC registration fee ................... $ 13,550
Fees and expenses of counsel............ 20,000
Fees and expenses of accountants........ 5,000
Miscellaneous........................... 11,450
........................................ -------
Total................................... $ 50,000
=======
Except for the SEC registration fee, all of the foregoing
expenses have been estimated. All expenses will be paid by the
Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Delaware law, a corporation may indemnify any person who
was or is a party or is threatened to be made a party to an action
(other than an action by or in the right of the corporation) by reason
of his service as a director or officer of the corporation, or his
service, at the corporation's request, as a director, officer,
employee or agent of another corporation or other enterprise, against
expenses (including attorneys' fees) that are actually and reasonably
incurred by him ("Expenses"), and judgments, fines and amounts paid in
settlement that are actually and reasonably incurred by him, in
connection with the defense or settlement of such action, provided
that he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the corporation's best interest, and, with
respect to any criminal action or proceeding, had no reasonable cause
to believe that his conduct was unlawful. Although Delaware law
permits a corporation to indemnify any person referred to above
against Expenses in connection with the defense or settlement of an
action by or in the right of the corporation, provided that he acted
in good faith and in a manner he reasonably believed to be in or not
opposed to corporation's best interests, if such person has been
judged liable to the corporation, indemnification is only permitted to
the extent that the Court of Chancery (or the court in which the
action was brought) determines that, despite the adjudication of
liability, such person is entitled to indemnity of such Expenses as
the court deems proper. The General Corporation Law of the State of
Delaware also provides for mandatory indemnification of any director,
officer, employee or agent against Expenses to the extent such person
has been successful in any proceeding covered by the statute. In
addition, the General Corporation Law of the State of Delaware
provides the general authorization of advancement of a director's or
officer's litigation expenses in lieu of requiring the authorization
of such advancement by the board of directors in specific cases, and
that indemnification and advancement of expenses provided by the
statute shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement or otherwise.
Article 7 of ATI's Restated Certificate of Incorporation and
Article 8 of ATI's Amended and Restated ByLaws provide for
indemnification of the Company's directors, officers, employees and
other agents to the fullest extent not prohibited by Delaware law.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
<PAGE>
ITEM 16. EXHIBITS
4.1 Specimen Common Stock Certificate (incorporated by reference
to Exhibit 4.1 to Amendment No. 1 to the Company's
Registration Statement on Form S-3 filed with the Commission
on April 26, 1996).
5.1 Opinion of McDermott, Will & Emery.
23.1 Consent of Arthur Andersen, LLP. *
23.2 Consent of McGladrey Pullen, LLP. *
23.3 Consent of McDermott, Will & Emery (included in Exhibit
5.1).
24.1 Power of Attorney (included on the signature page to the
Registration Statement).
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* previously filed
ITEM 17. 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;
(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;
(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
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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 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 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 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.
<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 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.
<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-3 and has duly
caused this Amendment No. 1 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Colorado
Springs, State of Colorado, on November 19, 1996.
AMERICAN TELECASTING, INC.
By: /s/ ROBERT D. HOSTETLER
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Robert D. Hostetler
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 has been signed on November 19, 1996 by the following
persons in the capacities indicated.
SIGNATURE TITLE
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/s/ DONALD R. DEPRIEST* Chairman of the Board and Director
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Donald R. DePriest
/s/ ROBERT D. HOSTETLER President, Chief Executive Officer
------------------------ Director (principal executive officer)
Robert D. Hostetler
/s/ RICHARD F. SENEY* Vice Chairman of the Board,
------------------------ Secretary and Director
Richard F. Seney
/s/ DAVID K. SENTMAN Senior Vice President, Chief
----------------------- Financial Officer and Treasurer
David K. Sentman (principal financial officer)
/s/ JOHN R. HAGER Controller (principal accounting officer)
------------------------
John R. Hager
/s/ MITCHELL R. HAUSER* Director
------------------------
Mitchell R. Hauser
/s/ JAMES S. QUARFORTH* Director
------------------------
James S. Quarforth
/s/ CARL A. ROSBERG* Director
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Carl A. Rosberg
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*By Power of Attorney
/s/ ROBERT D. HOSTETLER
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Robert D. Hostetler (attorney-in-fact)
Exhibit 5.1
November 20, 1996
American Telecasting, Inc.
5575 Tech Center Drive
Suite 300
Colorado Springs, CO 80919
Re: Registration Statement on Form S-3
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Ladies and Gentlemen:
You have requested our opinion in connection with the above-referenced
registration statement (the "Registration Statement"), under which certain
stockholders of American Telecasting, Inc. (the "Company") intend to sell up
to 4,082,436 shares of Common Stock, par value $.01 per share, of the Company
(all such shares in the aggregate, the "Offered Shares").
In arriving at the opinion expressed below, we have examined the
Registration Statement, the Stock Purchase Agreement dated as of October 25,
1996 by and among American Telecasting, Inc. and Wartone Property Holdings,
Ltd., Harleko Ltd. and Tarian Properties Ltd. (the "Stock Purchase Agreement")
and such other documents as we have deemed necessary to enable us to express
the opinion hereinafter set forth. In addition, we have examined and relied,
to the extent we deem proper, on certificates of officers of the Company as to
factual matters, and on the originals or copies certified or otherwise
identified to our satisfaction, of all such corporate records of the Company
and such other instruments and certificates of public officials and other
persons as we have deemed appropriate. In our examination, we have assumed
the authenticity of all documents submitted to us as originals, the conformity
of the original documents of all documents submitted to us as copies, the
genuineness of all signatures on documents reviewed by us and the legal
capacity of natural persons.
Based upon and subject to the foregoing, we are of the opinion that, upon
issuance in accordance with the terms of the Stock Purchase Agreement, the
Offered Shares will be duly authorized, validly issued, fully paid and non-
assessable.
We hereby consent to the references to our firm under the caption "Legal
Matters" in the Registration Statement and to the use of this opinion as an
exhibit to the Registration Statement. In giving this consent, we do not
hereby admit that we come within the category of persons whose consents is
required under Section 7 of the Securities Act of 1933, as amended, or the
rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
McDermott, Will & Emery
