As filed with the Securities and Exchange Commission on
September 13, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
Form S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SPECTRASITE HOLDINGS, INC.
(Exact name of Registrant as Specified in its Charter)
Delaware 56-2027322
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
100 Regency Forest Drive David P. Tomick
Suite 400 SpectraSite Holdings, Inc.
Cary, North Carolina 27511 100 Regency Forest Drive
(919) 468-0112 Suite 400
(Address, including zip code, and telephone number, including Cary, North
Carolina 27511 area code, of registrant's principal executive offices)
(919) 468-0112
(Name, address,
including zip
code, and
telephone
number
including area
code, of
registrant's
agent for
service)
----------------------------
Copies to:
Timothy J. Kelley
Thomas D. Twedt
Dow, Lohnes & Albertson, PLLC
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036
(202) 776-2000
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement, as determined by market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend 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
===================================== ================================= ====================================
Proposed
Maximum
Title of Each Class Aggregate Amount of
of Securities to be Registered Offering Price (1) Registration Fee
Common Stock, $.001 par value $ 25,000,000 $6,600
===================================== ================================= ====================================
(1) Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457.
----------------------------
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 Commission, acting pursuant to said Section
8(a), may determine.
SUBJECT TO COMPLETION, DATED SEPTEMBER 13, 2000
Shares
[LOGO]
SPECTRASITE HOLDINGS, INC.
COMMON STOCK
The stockholders of SpectraSite Holdings, Inc. described under
the caption "Selling Stockholders" on page 9 of this prospectus are
offering and selling up to shares of SpectraSite's common stock under
this prospectus.
The common stock is listed on the Nasdaq National Market under
the ticker symbol "SITE". On September 12, 2000, the closing sale price
on the Nasdaq National Market of a single share of the common stock was
$21 5/16.
You should carefully review "Risk Factors" beginning on page 2
for a discussion of risks you should consider when investing in our
common stock.
You should rely only on the information contained in this
prospectus. We have not authorized anyone to provide you with
information different from that contained in this prospectus. The
selling stockholders are authorized to offer to sell, and seek offers
to buy, shares of common stock only in jurisdictions where offers and
sales are permitted. The information contained in this prospectus is
accurate only as of the date of this prospectus, regardless of the time
of delivery of this prospectus or of any sale of common stock.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities
or passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
The date of this prospectus is , 2000.
TABLE OF CONTENTS
SpectraSite................................. 1
Risk Factors................................ 2
Use of Proceeds............................. 8
Price Range of Common Stock................. 8
Dividend Policy............................. 8
Selling Stockholders........................ 9
Plan of Distribution .......................10
Legal Matters...............................12
Experts.....................................12
Where You Can Find More Information.........12
Information Incorporated by Reference.......13
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SpectraSite Holdings, Inc. is a Delaware corporation. Our principal
executive offices are located at 100 Regency Forest Drive, Suite 400, Cary,
North Carolina 27511, and our telephone number at that address is (919)
468-0112. Our World Wide Web site address is http://www.spectrasite.com. The
information in our website is not part of this prospectus.
In this prospectus, Holdings refers to SpectraSite Holdings, Inc. and
SpectraSite, we, us and our refer to SpectraSite Holdings, Inc., its wholly
owned subsidiaries and all predecessor entities collectively, unless the context
requires otherwise. The term common stock refers to Holdings' common stock, par
value $.001 per share.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including information incorporated by reference in this
prospectus, contains forward-looking statements within the meaning of Section
27A of the Securities Act of 1933 and Section 21C of the Securities Exchange Act
of 1934, including statements concerning possible or assumed future results of
operations of SpectraSite and those preceded by, followed by or that include the
words may, will, should, could, expects, plans, anticipates, believes,
estimates, predicts, potential or continue or the negative of such terms and
other comparable terminology. You should understand that the factors described
below, in addition to those discussed elsewhere in this document, could affect
our future results and could cause those results to differ materially from those
expressed in such forward-looking statements. These factors include:
o material adverse changes in economic conditions in the markets we serve;
o future regulatory actions and conditions in our operating areas;
o competition from others in the communications tower industry;
o the integration of our operations with those of businesses we have
acquired or may acquire in the future and the realization of the
expected benefits; and
o other risks and uncertainties as may be detailed from time to time in
our public announcements and Securities and Exchange Commission
filings.
-i-
SPECTRASITE
We are one of the leading providers of outsourced antenna site and network
services to the wireless communications and broadcast industries in North
America and Europe. Our businesses include the ownership and leasing of antenna
sites on towers, managing rooftop and in-building telecommunications access on
commercial real estate, network planning and deployment, and construction of
towers and related wireless facilities. Our customers are leading wireless
communications providers and broadcasters, including Nextel, SBC Communications,
Sprint PCS, AT&T Wireless, AirTouch Communications, Tritel Communications,
Teligent, WinStar, Cox Broadcasting, Clear Channel Communications and Paxson
Communications. As of June 30, 2000 and after giving effect to all pending
transactions, we will own or manage over 20,000 sites, including 7,841 towers,
primarily in the top 100 markets in the United States and with major
metropolitan market clusters in Southern California, Chicago and Boston. We also
own 50% of SpectraSite-Transco Communications Ltd., a joint venture with
Transco, the arm of BG Group plc that runs Britain's gas network. As of June 30,
2000, the joint venture owned 718 towers and 1,500 sites and has the option to
purchase 30,000 potential sites in the United Kingdom.
Recent Developments
On July 12, 2000, we entered into a master site lease agreement with
Cell-Loc Inc. for a minimum of 2,000 antenna site lease commencements over a two
year period.
On July 17, 2000, we acquired 11 broadcast towers from Pegasus
Communications Corporation for 1,373,545 shares of unregistered common stock.
Under the agreement, we will build up to five new digital television towers for
Pegasus in the next 12 months.
On July 28, 2000, we completed an underwritten public offering of 11 million
shares of common stock for net proceeds of approximately $220.2 million. On
August 2, 2000, the underwriters purchased an additional 1,650,000 shares of
common stock pursuant to the exercise of their overallotment option for net
proceeds of approximately $33.2 million.
On August 15, 2000, we acquired subleasehold interests in 107 wireless
towers from Airtouch Communications for approximately $38.5 million in cash. We
expect to acquire leasehold and subleasehold interests in an additional 323
towers from Airtouch in the six-month period following this initial closing.
On August 17, 2000, we acquired GoCom, Inc., which owned 12 broadcast towers
and 14 other communications towers for $28.2 million in cash.
On August 25, 2000, we entered into an agreement to acquire leasehold and
subleasehold interests in approximately 3,900 wireless communications towers
from affiliates of SBC Communications, Inc. in exchange for $982.7 million in
cash and approximately 14.3 million shares of common stock, subject to
adjustment, valued at $325.0 million. We will manage, maintain and lease
available space on the SBC towers, including the right to co-locate tenants on
the towers. SBC is an anchor tenant on all of the towers and will pay us a
monthly fee per tower of $1,400. In addition, we have agreed to enter into a
5-year exclusive build-to-suit agreement with SBC under which we will develop
and construct all of SBC's towers during the term of the agreement. We expect
the SBC tower transaction to close in stages, with an initial closing expected
in the fourth quarter of 2000 and a final closing in the first quarter of 2002.
Trimaran Fund II, L.L.C. and certain of its affiliates have agreed to
purchase approximately 3.4 million shares of common stock at a price of $22.00
per share in a private placement exempt from the registration requirements of
the Securities Act of 1933. In addition, Trimaran will receive warrants to
purchase an additional 1.5 million shares of common stock at a price of $28.00
per share. We will use the proceeds from this investment to partially fund the
SBC tower transaction and for general corporate purposes. This transaction is
subject to the negotiation of definitive documentation and, although we cannot
assure you when or if it will be completed, we anticipate consummating this
transaction on or before the initial closing date of the SBC tower transaction.
In connection with the SBC tower transaction, we received a commitment
letter from Canadian Imperial Bank of commerce and CIBC World Markets Corp. to
provide up to $1.4 billion under an amended and restated credit facility. We
anticipate that we will amend and restate our existing credit facility during
the fourth quarter of 2000, after the initial closing of the SBC tower
transaction.
For other recent developments regarding SpectraSite, we refer you to our
most recent and future filings under the Securities Exchange Act of 1934.
-1-
RISK FACTORS
Our common stock involves a high degree of risk. You should consider
carefully the risks and uncertainties described below and the other information
included and incorporated by reference in this prospectus, including the
financial statements and related notes, before deciding to purchase our common
stock. While these are the risks and uncertainties we believe are most important
for you to consider, you should know that they are not the only risks or
uncertainties facing us or which may adversely affect our business. If any of
the following risks or uncertainties actually occur, our business, financial
condition or results of operations would likely suffer.
We may encounter difficulties in integrating acquisitions with our operations,
which could limit our revenue growth and our ability to achieve or sustain
profitability.
Acquiring additional tower assets and complementary businesses is an
integral part of our business strategy. We may not be able to realize the
expected benefits of past or future acquisitions or identify suitable
acquisition candidates. Our ability to complete future acquisitions will depend
on a number of factors, some of which are beyond our control, including the
attractiveness of acquisition prices and the negotiation of acceptable
definitive acquisition agreements. In addition, the process of integrating
acquired operations into our existing operations may result in unforeseen
operating difficulties, divert managerial attention or require significant
financial resources that could otherwise be used for existing tower construction
and network deployment contracts. Future acquisitions also may require us to
incur additional indebtedness and contingent liabilities, which could have a
material adverse effect on our business, financial condition and results of
operations.
We are not profitable and expect to continue to incur losses.
We incurred net losses of $98.4 million and $70.9 million for the year ended
December 31, 1999 and the six months ended June 30, 2000, respectively. Our
losses are principally due to significant depreciation, amortization and
interest expense. We have not achieved profitability and expect to continue to
incur losses for the foreseeable future.
We have substantial indebtedness, and servicing our indebtedness could reduce
funds available to grow our business.
We are, and will continue to be, highly leveraged. As of June 30, 2000, we
had total consolidated indebtedness of $1.3 billion. Our high level of
indebtedness could interfere with our ability to grow. For example, it could:
o increase our vulnerability to general adverse economic and industry
conditions;
o limit our ability to obtain additional financing;
o require the dedication of a substantial portion of our cash flow from
operations to the payment of principal of, and interest on, our
indebtedness;
o limit our flexibility in planning for, or reacting to, changes in our
business and the industry; and
o place us at a competitive disadvantage relative to less leveraged
competitors.
Our ability to generate sufficient cash flow from operations to pay
principal of, and interest on, our indebtedness is uncertain. In particular, we
may not meet our anticipated revenue growth and operating expense targets, and
as a result, our future debt service obligations could exceed cash available to
us. Further, we may not be able to refinance any of our indebtedness on
commercially reasonable terms or at all. Our business depends on the demand for
wireless communications sites and our ability to secure co-location tenants.
-2-
Our business depends on demand for communications sites from wireless
service providers, which, in turn, depends on the demand for wireless services.
A reduction in demand for communications sites or increased competition for
co-location tenants could have a material adverse effect on our business,
financial condition or results of operations. In particular, the success of our
business model requires us to secure co-location tenants, and securing
co-location tenants depends upon the demand for communications sites from a
variety of service providers in a particular market. The extent to which
wireless service providers lease communications sites on our towers depends on
the level of demand for wireless services, the financial condition and access to
capital of those providers, the strategy of providers with respect to owning or
leasing communications sites, government licensing of communications licenses,
changes in telecommunications regulations, the characteristics of each company's
technology, and geographic terrain.
A significant portion of our revenues and tower construction activity currently
depends on Nextel and is expected to come from SBC.
Nextel accounts for a significant portion of our total revenues. Nextel
represented approximately 35% and 26% of our revenues for the year ended
December 31, 1999 and for the six months ended June 30, 2000, respectively.
Following the final closing of the SBC tower transaction, SBC will be paying us
approximately $65.5 million each year as the anchor tenant on the 3,900
subleased towers. If Nextel or SBC were to suffer financial difficulties or if
Nextel or SBC were unwilling or unable to perform its obligations under its
arrangements with us, our business, financial condition or results of operations
could be materially and adversely affected.
Nextel agreed to lease 1,700 additional sites on our towers as part of its
national service deployment, and as of June 30, 2000, they had leased 809 of
those sites. In connection with the initial closing of the SBC tower
transaction, we will enter into a 5-year build-to-suit agreement with SBC for an
estimated 800 new towers. Under the terms of our agreements with Nextel and SBC,
we are required to construct or purchase agreed upon numbers of qualified towers
at specified times and specified prices. Our failure to construct or
purchase the towers as agreed could result in the cancellation of our
right to construct or purchase additional towers under these agreements.
Such a cancellation could have a material adverse effect on our business,
financial condition or results of operations and on our ability to implement
or achieve our business objectives in the future.
Under our agreements with Nextel and SBC, subject to limited exceptions, we
will be required to construct new towers in locations to be determined by Nextel
and SBC. These towers may have limited appeal to other providers of wireless
communications services, which may limit our opportunities to attract additional
tenants, which, in turn, could have a material adverse effect on our business,
financial condition or results of operations.
We may be unable to increase our construction activities or to acquire towers as
contemplated by our growth strategy.
Our growth strategy depends on our ability to construct, acquire and operate
towers as wireless service providers expand their tower network infrastructure.
Regulatory and other barriers could adversely affect our ability to construct
towers in accordance with the requirements of our customers, and, as a result,
we may be subject to penalties and forfeiture provisions under our anchor tenant
leases. Our ability to construct new towers may be affected by a number of
factors beyond our control, including zoning and local permitting requirements,
FAA considerations, FCC tower registration procedures, availability of tower
components and construction equipment, availability of skilled construction
personnel and weather conditions. In addition, because the concern over tower
proliferation has grown in recent years, certain communities now restrict new
tower construction or delay granting permits required for construction.
Our expansion plans call for a significant increase in construction
activity. We may not be able to overcome the barriers to new construction, and
we may not complete the number of towers planned for construction. Our failure
to complete the necessary construction could have a material adverse effect on
our business, financial condition or results of operations.
-3-
We compete for tower acquisition opportunities with wireless service
providers, broadcasters, site developers and other independent tower owners and
operators, and we expect competition to increase. Increased competition for
acquisitions may result in fewer acquisition opportunities and higher
acquisition prices. We regularly explore acquisition opportunities; however, we
may have trouble identifying towers or tower companies to acquire in the future.
We compete with companies that may have greater financial resources.
If we are unable to successfully compete, our business will suffer. We
believe that tower location and capacity, price, quality of service and density
within a geographic market historically have been, and will continue to be, the
most significant competitive factors affecting the site leasing business. We
compete for site leasing tenants with:
o wireless service providers that own and operate their own towers and
lease, or may in the future decide to lease, antenna space to other
providers;
o other independent tower operators;
o site acquisition companies which acquire antenna space on existing
towers for wireless service providers, manage new tower construction
and provide site acquisition services; and
o owners of non-tower antenna sites, including rooftops, water towers and other
alternate structures.
Wireless service providers that own and operate their own towers generally
are substantially larger and have substantially greater financial resources than
SpectraSite. For example, AT&T Wireless and Sprint PCS own and operate their own
tower networks.
We compete for acquisition, new tower construction and network development
opportunities primarily with other independent tower companies and site
construction firms. Some of these competitors may have greater financial
resources than SpectraSite.
Rapid growth could strain or divert our management team and will increase our
operating expenses.
Implementation of our business strategy may impose significant strains on
our management, operating systems and financial resources. In addition, we
anticipate that operating expenses will increase significantly as we build and
acquire additional tower assets. Our failure to manage growth or unexpected
difficulties encountered during our expansion could have a material adverse
effect on our business, financial condition or results of operations. The
pursuit and integration of acquisitions, investments, joint ventures and
strategic alliances will require substantial attention from our senior
management, which will limit the amount of time they have available to devote to
existing operations.
We anticipate significant capital expenditures and may need additional financing
which may not be available.
Our current plans call for significant capital expenditures during the
second half of 2000 for the construction and acquisition of communication sites,
primarily towers. We had approximately $300.0 million available under our credit
facility as of June 30, 2000 and have a commitment to increase this facility to
$1.4 billion. As of June 30, 2000, we had $330.2 million of cash and cash
equivalents, and after giving effect to our public offering of common stock in
July 2000, we had approximately $583.6 million of cash and cash equivalents.
However, we may need additional sources of debt or equity capital prior to
the end of 2000. Additional financing may not be available or may be
restricted by the terms of the credit facility and the indentures governing
our outstanding notes.
Competing technologies and other alternatives could reduce the demand for our
services.
Most types of wireless services currently require ground-based network
facilities, including communications sites for transmission and reception. The
development and growth of communications technologies which do not require
ground-based sites or other alternatives could reduce the demand for space on
our towers.
In particular, the emergence of new technologies that do not require
terrestrial antenna sites and that can be substituted for those that do, could
have a negative impact on our operations. For example, the FCC has granted
license applications for several low-earth orbiting satellite systems that are
intended to provide mobile voice and data services; one system was operating
commercially, but has terminated operations because of bankruptcy, and another
has recently initiated service. In addition, the FCC has issued licenses for
several low-earth orbiting satellite
-4-
systems that are intended to provide solely data services, and one of those
systems is operational. Although these systems are highly capital-intensive and
have only begun to be tested, mobile satellite systems could compete with
land-based wireless communications systems, thereby reducing the demand for the
infrastructure services we provide. Reduced demand for ground-based antenna
sites could have a material adverse effect on our business, financial condition
or results of operations.
In addition, wireless service providers frequently enter into agreements
with competitors allowing them to utilize one another's wireless communications
facilities to accommodate customers who are out of range of their home
providers' services. These roaming agreements may be viewed by wireless service
providers as a superior alternative to leasing space for their own antennas on
communications sites we own. The proliferation of these roaming agreements could
have a material adverse effect on our business, financial condition or results
of operations.
A small number of stockholders control the voting power of Holdings, and these
stockholders' interests may be different from yours.
Affiliates of Welsh, Carson, Anderson & Stowe own 32.4 million shares, or
24.1%, of our common stock as of August 4, 2000. This ownership will allow
Welsh, Carson to exert significant influence over the management and policies of
SpectraSite. In addition, Welsh, Carson and certain other Holdings stockholders
have a right to board representation under a stockholders' agreement. Welsh,
Carson and the other parties to the stockholders' agreement may have interests
that are different from yours.
Our business depends on our key personnel.
Our future success depends to a significant extent on the continued services of
our Chief Executive Officer, Stephen H. Clark, our Chief Operating Officer,
Timothy G. Biltz, our Chief Financial Officer, David P. Tomick, our Executive
Vice President--Wireless Tower Group, Richard J. Byrne, and our Executive Vice
President--Construction Operations, Calvin J. Payne. Although each of these
officers other than Mr. Biltz has an employment agreement with Holdings, the
loss of any of these key employees would likely have a significantly detrimental
effect on our business.
Our operations require compliance with and approval from federal and state
regulatory authorities.
We are subject to a variety of regulations, including those at the federal,
state and local levels. Both the FCC and the FAA regulate towers and other sites
used for wireless communications transmitters and receivers. Failure to comply
with applicable requirements may lead to civil penalties and tort liability.
These regulations control siting, marking, and lighting of towers and may,
depending on the characteristics of the tower, require registration of tower
facilities with the FCC. Wireless communications devices operating on towers are
separately regulated and independently licensed by the FCC based upon the
particular frequency used and the services being provided. Any proposals to
construct new communications sites or modify existing communications sites that
could affect air traffic must be reviewed by the FAA to ensure that the
proposals will not present a hazard to aviation. Tower owners may have an
obligation to paint their towers or install lighting to conform to FCC and FAA
standards and to maintain such painting or lighting. Tower owners also may bear
the responsibility for notifying the FAA of any tower lighting failure.
SpectraSite generally indemnifies its customers against any failure by
SpectraSite to comply with applicable standards.
Local regulations include city or other local ordinances, zoning
restrictions and restrictive covenants imposed by community developers. These
regulations vary greatly, but typically require tower owners to obtain approval
from local officials or community standards organizations prior to tower
construction. Local regulations can delay or prevent new tower construction or
site upgrade projects, thereby limiting our ability to respond to customers'
demands. In addition, these regulations increase the costs associated with new
tower construction. Existing regulatory policies may adversely affect the timing
or cost of new tower construction, and additional regulations may be adopted
that will increase these delays or result in additional costs to SpectraSite.
These factors could have a material adverse effect on our business, financial
condition or results of operations and on our ability to implement or achieve
our business objectives.
The FCC has initiated a rulemaking proceeding to consider how to improve
telecommunications service providers' access to rooftops, other rights-of-way
and conduits in multi-tenant buildings. The FCC is considering whether such
access should be mandated and, if so, under what rules, terms, and conditions.
While new telecommunications entrants have supported the proposals, building
owners and incumbent local exchange carriers have argued that the proposals are
unconstitutional and that the agency lacks the statutory authority to adopt
them.
-5-
Federal legislation addressing access by telecommunications providers to
multi-tenant buildings has also been introduced and may be considered in the
coming year. Other legislative proposals concerning tower siting and related
environmental issues may also be considered. We cannot predict whether these
regulatory and legislative initiatives will be adopted and, if they are, the
effect that they will have on our business.
As part of the Westower merger, we acquired operations in Canada. As a
result, we are subject to regulation in Canada. If we pursue additional
international opportunities, we will be subject to regulation in additional
foreign jurisdictions. In addition, our customers may become subject to new
regulatory policies which may adversely affect the demand for communications
sites.
We generally lease the land under our towers and may not be able to maintain
these leases.
Our real property interests relating to towers primarily consist of
leasehold interests, private easements and licenses, easements and rights-of-way
granted by governmental entities. A loss of these interests, including a loss
arising from the bankruptcy of one or more of our significant lessors, would
interfere with our ability to conduct our business and generate revenues. Our
ability to protect our rights against persons claiming superior rights in towers
depends on our ability to:
o recover under title policies, the policy limits of which may be less
than the purchase price of a particular tower;
o in the absence of title insurance coverage, recover under title
warranties given by tower sellers, which warranties often terminate
after the expiration of a specific period, typically one to three
years; and
o recover under title covenants from landlords contained in lease
agreements.
We are subject to environmental laws that impose liability without regard to
fault.
Our operations are subject to federal, state, provincial, local, and foreign
environmental laws and regulations regarding the use, storage, disposal,
emission, release and remediation of hazardous and nonhazardous substances,
materials or wastes. Under these laws, SpectraSite could be held strictly, as
well as jointly and severally, liable for the investigation and remediation of
hazardous substance contamination at its facilities or at third-party waste
disposal sites and also could be held liable for any personal or property damage
related to such contamination. Although we believe that we currently have no
material liability under applicable environmental laws, the costs of complying
with existing or future environmental laws, investigating and remediating any
contaminated real property and resolving any related liability could have a
material adverse effect on our business, financial condition or results of
operations.
The FCC requires tower owners who are subject to the agency's antenna
structure registration program to comply at the time of registration with
federal environmental rules that may restrict the siting of towers. Under these
rules, tower owners are required initially to identify whether proposed sites
are in environmentally sensitive locations. If so, the tower owners must prepare
and file environmental assessments, which must be reviewed by the FCC staff
prior to registration and construction of the particular towers.
Our towers may be damaged by natural disasters.
Our towers are subject to risks associated with natural disasters such as
ice and wind storms, tornadoes, hurricanes and earthquakes. We self-insure
almost all of our towers against such risks. A tower accident for which we are
uninsured or underinsured, or damage to a tower or group of towers, could have a
material adverse effect on our business, financial condition or results of
operations.
Perceived health risks of radio frequency emissions could impact our business.
The wireless service providers that utilize our towers are subject to FCC
requirements and other guidelines relating to radio frequency emissions. The
potential connection between radio frequency emissions and certain negative
health effects, including some forms of cancer, has been the subject of
substantial study by the scientific community in recent years. To date, the
results of these studies have been inconclusive. If radio frequency emissions
were conclusively proved harmful, our tenants and possibly we could face
lawsuits claiming damages from such emissions and demand for wireless services
and new towers would be adversely affected. Although we have not been subject to
any claims relating to radio frequency emissions, we cannot assure you that
these claims will not arise in the future.
-6-
We do not intend to pay dividends in the foreseeable future and, because we are
a holding company, we may be unable to pay dividends.
We have never declared or paid any cash dividends on our common stock. For
the foreseeable future, we intend to retain any earnings to finance the
development and expansion of our business, and we do not anticipate paying any
cash dividends on our common stock. In addition, our credit facility and the
indentures governing our outstanding notes restrict our ability to pay
dividends. Any future determination to pay dividends will be at the discretion
of our board of directors and will be dependent upon then existing conditions,
including our financial condition and results of operations, capital
requirements, contractual restrictions, business prospects and other factors
that the board of directors considers relevant. Furthermore, because Holdings is
a holding company, it depends on the cash flow of its subsidiaries, and
SpectraSite Communications' credit facility imposes restrictions on Holdings'
subsidiaries' ability to distribute cash to Holdings.
Our stock price has been highly volatile, and you could lose a significant part
of your investment as a result.
Prior to the Westower merger in September 1999, our common stock was
privately held with no public trading market. On September 1, 1999, our common
stock was approved for trading on the Nasdaq National Market under the symbol
"SITE", and public trading commenced on September 3, 1999. The market price of
our common stock has been and can be expected to be significantly affected by:
o quarterly variations in our operating results;
o operating results that vary from the expectations of securities
analysts and investors; o changes in expectations as to our future
financial performance, including financial estimates by securities
analysts and investors;
o changes in market valuations of other communications tower companies;
o announcements of technological innovations or new services by us
or our competitors; o announcements of significant contracts,
acquisitions, strategic partnerships, joint ventures or capital
commitments by us or our competitors;
o additions or departures of key personnel
o future sales of our common stock; and
o stock market price and volume fluctuations.
In addition, the stock market in general has experienced extreme volatility
that often has been unrelated to the operating performance of particular
companies. These broad market and industry fluctuations may adversely affect the
trading price of our common stock, regardless of our actual operating
performance.
Limitation of Liability and Indemnification Matters
Holdings' certificate of incorporation provides that directors of Holdings
will not be personally liable to Holdings or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for liability: (1)
for any breach of the director's duty of loyalty to Holdings or its
stockholders; (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (3) under a provision of
Delaware law relating to unlawful payment of dividend or unlawful stock purchase
or redemption of stock; or (4) for any transaction from which the director
derives an improper personal benefit. As a result of this provision, Holdings
and its stockholders may be unable to obtain monetary damages from a director
for breach of his or her duty of care.
Our bylaws provide for the indemnification of directors, officers,
employees and agents and any person who is or was serving at the request of
Holdings as a director, officer, partner, trustee, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise and
any person who was or is serving at the request of Holdings as a trustee or
administrator under an employee benefit plan to the fullest extent authorized
by, and subject to the conditions set forth in, the Delaware General Corporation
Law against all expenses and liabilities. the indemnification provided under the
bylaws includes the right to be paid by Holdings the expenses in advance of any
proceeding for which indemnification may be had in advance of its final
disposition.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling Holdings
pursuant to the foregoing provisions, we have 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.
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USE OF PROCEEDS
All net proceeds from the sale of the shares will go to the stockholders who
offer and sell them. We will not receive any proceeds from the sale of shares by
the selling stockholders.
PRICE RANGE OF COMMON STOCK
Prior to the Westower merger, our common stock was privately held with no
public trading market. On September 1, 1999, our common stock was approved for
trading on the Nasdaq National Market under the symbol "SITE", and public
trading commenced on September 3, 1999. The following table sets forth on a per
share basis the high and low sales prices for consolidated trading in our common
stock as reported on the Nasdaq National Market for the period from September 3,
1999 through September 30, 1999, the fourth quarter of 1999, the first and
second quarter of 2000 and the third quarter of 2000 through September 12, 2000.
Common Stock
High Low
1999
Third quarter (beginning September 3) $ 14 7/8 $ 11
Fourth quarter.................... 12 1/8 7 3/8
2000
First quarter..................... 30 3/8 10 3/4
Second quarter.................... 28 1/2 15 1/8
Third quarter (through September 12, 2000) 20 1/16 29 1/2
The last reported sale price for our common stock on September 12, 2000 is
set forth on the cover page of this prospectus. As of September 12, 2000, there
were approximately 222 holders of record of our common stock.
DIVIDEND POLICY
We have never declared or paid any cash dividends on our common stock. For
the foreseeable future, we intend to retain any earnings to finance the
development and expansion of our business, and we do not anticipate paying any
cash dividends on our common stock. In addition, our credit facility and the
indentures governing our outstanding notes restrict our ability to pay
dividends. Any future determination to pay dividends will be at the discretion
of our board of directors and will be dependent upon then existing conditions,
including our financial condition and results of operations, capital
requirements, contractual restrictions, business prospects and other factors
that the board of directors considers relevant. Furthermore, because Holdings is
a holding company, it depends on the cash flow of its subsidiaries, and
SpectraSite Communications' credit facility imposes restrictions on Holdings'
subsidiaries' ability to distribute cash to Holdings.
-8-
SELLING STOCKHOLDERS
The shares of common stock covered by this prospectus are being registered
to permit secondary trading and so that the selling stockholders may offer the
shares for resale from time to time. See "Plan of Distribution." Except as
described below, none of the selling stockholders has had a material
relationship with SpectraSite within the past three years other than as a result
of the ownership of the common stock and other securities of Holdings.
The following table sets forth the names of the selling stockholders, the
number of shares of common stock owned beneficially by each of the selling
stockholders as of , 2000, and the number of shares which may be offered for
resale pursuant to this prospectus regardless of whether such selling
stockholder has a present intent to sell.
The information included below is based upon information provided by the
selling stockholders as of the date of this prospectus. Because the selling
stockholders may offer all, some or none of their shares of common stock, no
definite estimate as to the number of shares or the percentage thereof that will
be held by the selling stockholders after such offering can be provided and the
following table has been prepared on the assumption that all shares of common
stock offered under this prospectus will be sold.
- ------------------------- ---------------------- ---------------------- ----------------------- ----------------------
Shares of Common
Stock Beneficially Shares of Common Percentage of Common
Owned Prior to Shares of Common Stock Owned After the Stock Owned After
Name (1) Offering Stock Offered Hereby Offering the Offering
- ------------------------- ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------- ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------- ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------- ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------- ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------- ---------------------- ---------------------- ----------------------- ----------------------
- ------------------------- ---------------------- ---------------------- ----------------------- ----------------------
==================================================================================
(1) Unless otherwise indicated in the footnotes to this table, the persons and
entities named in the table have sole voting and sole investment power with
respect to all shares beneficially owned.
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PLAN OF DISTRIBUTION
SpectraSite is registering the shares on behalf of the selling stockholders.
References in this section to selling stockholders also include any permitted
pledgees, donees or transferees identified in a supplement to this prospectus as
described below. The selling stockholders may offer their shares at various
times in one or more of the following transactions:
o in transactions, which may involve crosses or block
transactions, on any national securities exchange or quotation
service on which the shares may be listed or quoted at the
time of sale;
o in the over-the-counter market;
o in private transactions other than in the over-the-counter market or on
an exchange;
o in connection with short sales of shares;
o by pledge to secure debts and other obligations;
o in connection with the writing of non-traded and exchange-traded call
options, in hedge transactions and in settlement of other transactions
in standardized or over-the-counter options; or
o in a combination of any of the above transactions.
In addition, pursuant to the registration rights agreement among SpectraSite
and the selling stockholders, the selling stockholders and the other parties
thereto are entitled to demand up to three underwritten offerings on the terms
and conditions set forth in the registration rights agreement. In the event of
an underwritten offering and subject to the terms of the registration rights
agreement, Holdings and the selling stockholders will enter into an underwriting
agreement and other appropriate agreements with the underwriters participating
in the underwritten offering that will set forth the terms on which the
participating underwriters will effect sales of the shares.
The selling stockholders may sell their shares at market prices at the time
of sale, at prices related to market prices, at negotiated prices or at fixed
prices.
The selling stockholders may use underwriters or broker-dealers to sell
their shares. In effecting such sales, underwriters, brokers or dealers engaged
by the selling stockholders may arrange for other underwriters, brokers or
dealers to participate. Underwriters, brokers or dealers may purchase shares as
principals for their own accounts and resell such shares pursuant to this
prospectus. If this happens, the underwriters or broker-dealers will either
receive discounts or commissions from the selling stockholders, or they will
receive commissions from purchasers of shares for whom they acted as agents. The
selling stockholders, any underwriters, brokers, dealers and any other
participating brokers or dealers may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933 in connection with these sales, and any
profits realized or commissions received may be deemed underwriting
compensation.
The selling stockholders may also enter into hedging transactions with
broker-dealers or other financial institutions. In connection with these
transactions, broker-dealers or other financial institutions may engage in short
sales of common stock in the course of hedging the positions they assume with
selling stockholders. The selling stockholders may also enter into options or
other transactions with broker-dealers or other financial institutions which
require the delivery, to that broker-dealer or other financial institution, of
the shares offered under this prospectus. The shares that broker-dealers or
other financial institutions receive in those types of transactions may be
resold under this prospectus.
Selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act of 1933,
provided they meet the criteria and conform to the requirements of that Rule.
When a particular offering of shares is made, if required, we will
distribute a prospectus supplement. That supplement will set forth the names of
the selling stockholders, the aggregate amount and type of shares being offered,
the number of such securities owned prior to and after the completion of any
such offering, and, to the extent required, the terms of the offering, including
the name or names of any underwriters, broker-dealers or agents,
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any discounts, commissions and other terms constituting compensation from the
selling stockholders and any discounts, commissions or concessions allowed or
reallowed or paid to broker-dealers.
To comply with the securities law in some jurisdictions, the shares will be
offered or sold in particular jurisdictions only through registered or licensed
brokers or dealers. In addition, in some jurisdictions the shares may not be
offered or sold unless they have been registered or qualified for sale in such
jurisdiction or an exemption from registration or qualification is available and
is complied with.
To comply with rules and regulations under the Securities Exchange Act of
1934, persons engaged in a distribution of the shares may be limited in their
ability to engage in market activities with respect to such shares. In addition
and without limiting the foregoing, each selling stockholder will be subject to
applicable provisions of the Securities Exchange Act of 1934 and the rules and
regulations thereunder, which provisions may limit the timing of purchases and
sales of any of the shares by the selling stockholders. All of these things may
affect the marketability of the shares.
All expenses of the registration of the shares will be paid by SpectraSite,
including, without limitation, SEC filing fees and expenses of compliance with
state securities or "blue sky" laws; provided, however, that the selling
stockholders will pay all underwriting discounts and selling commissions, if
any. Subject to some limitations, the selling stockholders will be indemnified
by SpectraSite against civil liabilities, including liabilities under the
Securities Act of 1933, or will be entitled to contribution in connection
therewith. Subject to some limitations, SpectraSite will be indemnified by the
selling stockholders against civil liabilities, including liabilities under the
Securities Act of 1933, or will be entitled to contribution in connection
therewith.
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LEGAL MATTERS
Dow, Lohnes & Albertson, PLLC, Washington, D.C., will pass upon the validity
of the shares of common stock offered by this prospectus.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements for the period from inception (April 25, 1997) to December
31, 1997 and the years ended December 31, 1998 and 1999 and the consolidated
financial statements of our predecessor, Telesite Services, LLC, for the year
ended December 31, 1996 and for the period from January 1, 1997 to May 12, 1997
included in this registration statement, as set forth in their reports
incorporated by reference herein, and are included in reliance upon such reports
given upon the authority of such firm as experts in accounting and auditing.
Westower's consolidated financial statements as of September 30, 1998 and
for the seven months then ended and Summit's financial statements as of
September 30, 1998 and for the nine months then ended have been included in this
registration statement in reliance on the reports of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
Westower's consolidated financial statements as of February 28, 1997 and
February 28, 1998 and for the three years ended February 28, 1998 and Cord's
financial statements as of June 30, 1997 and 1998 and for the two years ended
June 30, 1998 have been incorporated by reference in this prospectus in reliance
on the report of Moss Adams LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
The financial statements of MJA Communications Corp. as of December 31, 1996
and December 31, 1997 and for the three years ended December 31, 1997, have been
consolidated with those of Westower and incorporated by reference in this
prospectus in reliance on the report of Lamn, Krielow, Dytrych & Darling,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
The financial statements of Summit Communications LLC as of December 31,
1997 and for the period from inception, May 24, 1997, to December 31, 1997 have
been incorporated by reference in this prospectus in reliance on the report of
Shearer, Taylor & Co., P.A., independent accountants, given on the authority of
said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
Holdings is subject to the informational requirements of the Securities
Exchange Act of 1934 and files reports, proxy statements and other information
with the Securities and Exchange Commission. In addition, the indentures
governing Holdings' outstanding notes require that we file Exchange Act reports
with the Securities and Exchange Commission and provide those reports to the
indenture trustee and holders of notes. Our Securities and Exchange Commission
filings are available over the Internet at the Commission's web site at
http://www.sec.gov. You may also read and copy any document we file at the
public reference rooms the Securities and Exchange Commission maintains at 450
Fifth Street, N.W., Washington, D.C.; 13th Floor, Seven World Trade Center, New
York, New York; and Suite 1400, Northwestern Atrium Center 500 West Madison
Street, Chicago, Illinois or obtain copies of such materials by mail. Please
call the SEC at 1-800-SEC-0330 for more information on the public reference
rooms and their copy charges, as well as the Public Reference Section's charges
for mailing copies of the documents Holdings has filed.
-12-
INFORMATION INCORPORATED BY REFERENCE
Holdings has filed the following documents with the Securities and Exchange
Commission. Securities and Exchange Commission rules permit Holdings to
incorporate these filings by reference into this prospectus. By incorporating
our Securities and Exchange Commission filings by reference they are made a part
of this prospectus.
o Annual Report on Form 10-K for the year ended December 31, 1999;
o Quarterly Report on Form 10-Q for the quarter ended March 31, 2000;
o Quarterly Report on Form 10-Q for the quarter ended June 30, 2000;
o Form 8-K dated December 30, 1999 and filed January 21, 2000;
o Form 8-K dated March 6, 2000 and filed March 10, 2000;
o Form 8-K dated April 12, 2000 and filed April 18, 2000;
o Form 8-K dated June 6, 2000 and filed June 21, 2000;
o Form 8-K dated and filed August 18, 2000; and
o Form 8-K dated August 25, 2000 and filed August 31, 2000.
A description of Holdings' common stock, par value $0.001, appears in the
section captioned "Description of Common Stock" contained in Holdings'
prospectus filed pursuant to Rule 424(b)(4) with the SEC on July 26, 2000 with
respect to its Form S-1 Registration Statement (File No. 333-41022). That
description is incorporated by reference into Holdings' amended registration
statement on Form 8-A filed pursuant to Section 12(g) of the Securities Exchange
Act of 1934 on July 28, 2000. That description is also incorporated herein by
reference.
All documents which Holdings will file with the Securities and Exchange
Commission, under the terms of Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, after the date of this prospectus and prior to
the termination of any offering of securities offered by this prospectus shall
be deemed to be incorporated by reference in, and to be a part of, this
prospectus from the date such documents are filed. Holdings' Securities and
Exchange Commission file number for Securities Exchange Act documents is
0-27217. Holdings will provide without charge, to any person, including any
beneficial owner, who receives a copy of this prospectus and the accompanying
prospectus supplement, upon such recipient's written or oral request, a copy of
any document this prospectus incorporates by reference, other than exhibits to
such incorporated documents, unless such exhibits are specifically incorporated
by reference in such incorporated document. Requests should be directed to:
David P. Tomick
Executive Vice President and Chief Financial Officer
SpectraSite Holdings, Inc.
100 Regency Forest Drive
Suite 400
Cary, North Carolina 27511
Telephone: (919) 468-0112
Any statement contained in this prospectus or in a document incorporated in,
or deemed to be incorporated by reference to, this prospectus shall be deemed to
be modified or superseded, for purposes of this prospectus, to the extent that a
statement contained in:
o the prospectus;
o the accompanying prospectus supplement; or
o any other subsequently filed document which also is incorporated in,
or is deemed to be incorporated by reference to, this prospectus;
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
-13-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered. All amounts shown are
estimates except for the Securities and Exchange Commission registration fee and
the NASD filing fee. All of these fees are being paid by SpectraSite.
Registration Fee.................... $6,600
NASD Filing Fee..................... 3,000
Legal Fees and Expenses............. 20,000
Accounting Fees and Expenses........ 10,000
Printing and Engraving Fees......... 50,000
Miscellaneous....................... 5,400
--------
Total............................... $95,000
=======
Item 15. Indemnification of Directors and Officers.
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 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.
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 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.
II-1
Item 16. Exhibits.
Exhibit Description
Number
2.1 Agreement and Plan of Merger, dated as of February 10, 1999,
among Nextel Communications, Inc., Tower Parent Corp., Tower
Merger Vehicle, Inc., Tower Asset Sub Inc., SpectraSite
Holdings, Inc., SpectraSite Communications, Inc. and SHI Merger
Sub, Inc. (the "Nextel Merger Agreement"). Incorporated by
reference to the corresponding exhibit to the registration
statement on Form S-4 of the Registrant, file no. 333-67043.
2.2 Amendment No. 1 to the Nextel Merger Agreement. Incorporated by
reference to the corresponding exhibit to the registration
statement on Form S-4 of the Registrant, file no. 333-67043.
2.3 Agreement and Plan of Merger among Westower Corporation,
SpectraSite Holdings, Inc. and W. Acquisition Corp., dated as of
May 15, 1999. Incorporated by reference to the corresponding
exhibit to the registration statement on Form S-4 of the
Registrant, file no. 333-67043.
2.4 Merger Agreement and Plan of Reorganization, dated as of
November 24, 1999, among the Registrant, Apex Merger Sub, Inc.
and Apex Site Management Holdings, Inc. (the "Apex Merger
Agreement"). Incorporated by reference to the corresponding
exhibit to the Registrant's registration statement on Form S-1,
file no. 333-93873.
2.5 Agreement to Sublease, dated as of February 16, 2000, by and
between AirTouch Communications, Inc. and the other parties
named therein as Sublessors, California Tower, Inc. and the
Registrant. Incorporated by reference to exhibit no. 2.9 to the
Registrant's Form 10-K for the year ended December 31, 1999.
2.6 Joint Venture Shareholders' Agreement, dated as of April 13,
2000, by and among SpectraSite International, Inc., Transco
Telecommunications Asset Development Company Limited and EVER
1267 Limited. Incorporated by reference to exhibit 2.2 of the
Registrant's report on Form 8-K filed on April 18, 2000.
2.7 Agreement to Sublease, dated as of August 25, 2000, by and among
SBC Wireless, Inc. and certain of its affiliates, the
Registrant, and Southern Towers, Inc. Incorporated by reference
to exhibit no. 10.1 to the Registrant's Form 8-K dated August
25, 2000 and filed August 31, 2000.
3.1 Amended and Restated Certificate of Incorporation of SpectraSite
Holdings, Inc. (the "Registrant"). Incorporated by reference to
exhibit no. 3.9 to the registration statement on Form S-4 of the
Registrant, file no. 333-67043.
3.2 Certificate of Amendment of the Amended and Restated Certificate
of Incorporation of the Registrant, dated August 31, 1999.
Incorporated by reference to exhibit no. 3.1 to the Form 8-K
of the Registrant, dated September 2, 1999 and filed September
17, 1999.
3.3 Amended Bylaws of SpectraSite Holdings, Inc. Incorporated by
reference to exhibit no. 3.8 to the registration statement on
Form S-1 of the Registrant, file no. 333-93873.
4.1 Indenture, dated as of June 26, 1998, between the Registrant and
United States Trust Company of New York, as trustee.
Incorporated by reference to the corresponding exhibit to the
registration statement on Form S-4 of the Registrant, file no.
333-67043.
4.2 First Supplemental Indenture, dated as of March 25, 1999,
between the Registrant and United States Trust Company of New
York, as trustee. Incorporated by reference to the corresponding
exhibit to the registration statement on Form S-4 of the
Registrant, file no. 333-67043.
4.3 Second Supplemental Indenture, dated as of June 6, 2000, between
the Registrant and United States Trust Company of New York, as
trustee. Incorporated by reference to exhibit no. 4.1 of the
Registrant's report on Form 8-K, dated June 6, 2000, and filed
June 21, 2000.
4.4 Indenture, dated as of April 20, 1999, between the Registrant
and United States Trust Company of New York, as trustee.
Incorporated by reference to exhibit no. 4.3 to the registration
statement on Form S-4 of the Registrant, file no. 333-67043.
4.5 Indenture, dated as of March 15, 2000, between the Registrant
and United States Trust Company of New York, as trustee. (10
3/4% senior notes) Incorporated by reference to exhibit no. 4.4
of the registration statement on Form S-4 of the Registrant,
file no. 333-35094.
4.6 Indenture, dated as of March 15, 2000, between the Registrant
and United States Trust Company of New York, as trustee. (12
7/8% senior notes) Incorporated by reference to exhibit no. 4.5
of the Registrant's registration statement on Form S-4, file no.
333-35094.
4.7 Second Amended and Restated Registration Rights Agreement, dated
as of April 20, 1999. Incorporated by reference to exhibit no.
10.5 to the registration statement on Form S-4 of the
Registrant, file no. 333-67043.
4.8 Third Amended and Restated Stockholders' Agreement, dated as of
April 20, 1999. Incorporated by reference to exhibit no. 10.6 to
the registration statement on Form S-4 of the Registrant, file
no. 333-67043.
II-2
4.9 Joinder Agreement to SpectraSite Restated Registration Rights
Agreement, dated January 5, 2000. Incorporated by reference to
exhibit no. 10.36 to the Registrant's registration statement on
Form S-1, file no. 333-93873.
*5.1 Opinion of Dow Lohnes & Albertson, PLLC.
*23.1 Consent of Dow, Lohnes & Albertson, PLLC (contained in Exhibit
5.1).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of PricewaterhouseCoopers LLP.
23.4 Consent of Moss Adams LLP.
23.5 Consent of Lamn, Krielow, Dytrych & Co. (formerly, Lamn,
Krielow, Dytrych & Darling).
23.6 Consent of Shearer, Taylor & Co., P.A.
24.1 Powers of Attorney (included on the signature page to this
registration statement).
* To be filed by amendment.
Item 17. Undertakings.
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 provisions of the Registrant's certificate of
incorporation and its bylaws, 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 Act and
will be governed by the final adjudication of such issue.
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:
(a) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(b) 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;
(c) 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)(a) and (1)(b) 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 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 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.
4. 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 this 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.
II-3
5. That, 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 shall be deemed to be part of this registration
statement as of the time it was declared effective.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
SpectraSite Holdings, Inc. 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 Cary, State of North Carolina, on
September 13, 2000.
SPECTRASITE HOLDINGS, INC.
By: /s/ Stephen H. Clark
------------------------
Stephen H. Clark
President, Chief Executive
Officer and Director
SpectraSite Holdings, Inc., a Delaware corporation, and each person whose
signature appears below constitutes and appoints Stephen H. Clark and David P.
Tomick, and either of them, with full power to act without the others, such
person's true and lawful attorneys-in-fact, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign this Registration Statement, and any and all amendments
thereto (including, without limitation, post-effective amendments and any
subsequent registration statement filed pursuant to Rule 462(b) or Rule 462(d)
under the Securities Act of 1933, as amended), and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact, and each of them, full power and authority to do and perform
each and every act and thing necessary or desirable to be done in and about the
premises, as fully and to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact, or
either of them, or their substitute or substitutes may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
President, Chief Executive Officer and Director
/s/ Stephen H. Clark (Principal Executive Officer) September 13,
Stephen H. Clark 2000
Executive Vice President and Chief Financial
/s/ David P. Tomick Officer (Principal Financial Officer) September 13,
David P. Tomick 2000
Executive Vice President--Design and
/s/ Calvin J. Payne Construction and Director September 13,
Calvin J. Payne 2000
Vice President--Finance and Administration
/s/ Daniel I. Hunt (Principal Accounting Officer) September 13,
Daniel I. Hunt 2000
/s/ Lawrence B. Sorrel Chairman of the Board of Directors September 13,
Lawrence B. Sorrel 2000
/s/ Andrew R. Heyer Director September 13,
Andrew R. Heyer 2000
/s/ James R. Matthews Director September 13,
James R. Matthews 2000
/s/ Thomas E. McInerney Director September 13,
Thomas E. McInerney 2000
/s/ Steven M. Shindler Director September 13,
Steven M. Shindler 2000
/s/ Michael J. Price Director September 13,
Michael J. Price 2000
/s/ Michael R. Stone Director September 13,
Michael R. Stone 2000
/s/ Rudolph E. Rupert Director September 13,
Rudolph E. Rupert 2000