As filed with the Securities and Exchange Commission on November 1, 1999
Registration No. 333-89345
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN TOWER CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 65-0723837
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
116 Huntington Avenue, Boston, Massachusetts 02116
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
STEVEN B. DODGE
American Tower Corporation
116 Huntington Avenue
Boston, Massachusetts 02116
(617) 375-7500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copy to:
NORMAN A. BIKALES, ESQ.
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 338-2800
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement as determined in
light of market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the 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. |_|
AMERICAN TOWER CORPORATION
REGISTRATION STATEMENT ON FORM S-3
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following expenses are the estimated expenses of the issuance
and distribution of the securities (other than underwriting
discounts and commissions) being registered, all of which will be
paid by American Tower:
Securities and Exchange Commission fee......... $ 166,818
New York Stock Exchange listing fee............ 1,500
Accountants' fees and expenses................. 300,000
Legal fees and expenses........................ 300,000
Miscellaneous.................................. 231,682
--------------
Total $ 1,000,000
==============
The foregoing, except for the SEC and NYSE fees, are estimated.
Item 15. Indemnification of Directors and Officers.
Section 145 of the DGCL provides, in effect, that any person made
a party to any action by reason of the fact that he is or was a
director, officer, employee or agent of ATC may and, in certain
cases, must be indemnified by ATC against, in the case of a
non-derivative action, judgments, fines, amounts paid in
settlement and reasonable expenses (including attorney's fees), if
in either type of action he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of ATC and, in a non-derivative action, which involves a criminal
proceeding, in which such person had no reasonable cause to
believe his conduct was unlawful. This indemnification does not
apply, in a derivative action, to matters as to which it is
adjudged that the director, officer, employee or agent is liable
to ATC, unless upon court order it is determined that, despite
such adjudication of liability, but in view of all the
circumstances of the case, he is fairly and reasonably entitled to
indemnity for expenses.
Article XII of ATC's By-Laws provides that ATC shall indemnify each
person who is or was an officer or director of ATC to the fullest extent
permitted by Section 145 of the DGCL.
Article Sixth of ATC's Restated Certificate states than no
director of ATC shall be personally liable to ATC or its
stockholders for monetary damages for breach of fiduciary duty as
a director, except for (i) breach of the director's duty of
loyalty to ATC or its stockholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or knowing
violation of law, (iii) liability under Section 174 of the DGCL
relating to certain unlawful dividends and stock repurchases, or
(iv) any transaction from which the director derived an improper
personal benefit.
II-1
Item 16. Exhibits.
Listed below are the exhibits which are filed as part of this
Registration Statement on Form S-3 (according to the number assigned to
them in Item 601 of Regulation S-K). Each exhibit marked by a (*) is
incorporated by reference to the initial filing of this Registration
Statement on Form S-3 (File No. 333-89345) on October 20, 1999.
Exhibit No. Description of Document Exhibit File No.
4.1 Indenture, by and between the Company and The Bank of New York as
Trustee, for the 6.25% Notes, dated as of October 4, 1999,
including form of 6.25% Note (*4.1)
4.2 Indenture by and between the Company and The Bank of New York as
Trustee, for the 2.25% Notes, dated as of October 4, 1999,
including the form of 2.25% Note. (*4.2)
4.3 Form of 6.25% Note (included in Exhibit 4.1) Filed as part of Exhibit 4.1(*)
4.4 Form of 2.25% Note (included in Exhibit 4.2) Filed as part of Exhibit 4.2(*)
4.5 Registration Rights Agreement, by and between the Company and the
Initial Purchasers named therein, dated as of October 4, 1999 (*4.5)
5 Opinion of Sullivan & Worcester LLP Filed herewith as Exhibit 5
8 Tax Opinion of Sullivan & Worcester LLP Filed herewith as Exhibit 8
12 Statement Regarding Computation of Ratios of Earnings to Fixed
Charges (*12)
23 Consent of Sullivan & Worcester LLP Contained in the opinion of
Sullivan & Worcester LLP filed
herewith as part of Exhibits 5
and 8
23.1 Independent Auditors' Consent--Deloitte & Touche LLP (*23.1)
23.2 Consent of KPMG LLP (*23.2)
23.3 Consent of KPMG LLP (*23.3)
23.4 Consent of Ernst & Young LLP (*23.4)
23.5 Consent of Ernst & Young LLP (*23.5)
23.6 Consent of KPMG LLP (*23.6)
23.7 Consent of Arthur Andersen LLP (*23.7)
23.8 Consent of KPMG LLP (*23.8)
24 Power of Attorney Filed as page II-4 of the
Registration Statement(*)
25 Statement of Eligibility of Trustee on Form T-1 (*25)
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 of 1933;
(ii)To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) under the Securities Act of 1933 if, in the
II-2
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in this
registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this
registration statement or any material change to such
information in this registration statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the registration statement
is on Form S-3 or Form S-8, and the information required to be included
in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in
the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions referred
to in Item 15 of this registration statement, 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 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.
(d) The undersigned registrant hereby undertakes:
(1) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section
310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
(2) 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 effective.
II-3
(3) That for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains
a form of Prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Boston, Commonwealth of
Massachusetts, on the first day of November, 1999.
AMERICAN TOWER CORPORATION
By: *
Steven B. Dodge
Chairman of the Board, President
and Chief Executive Officer
Signature Title Date
* Chairman, President, Chief November 1, 1999
Steven B. Dodge Executive Officer and Director
* Chief Financial Officer and November 1, 1999
Joseph L. Winn Treasurer
/s/ Justin D. Benincasa* Vice President and Corporate November 1, 1999
Justin D. Benincasa Controller
* Executive Vice President and November 1, 1999
Alan L. Box Director
* Director November 1, 1999
Arnold L. Chavkin
* Director November 1, 1999
Dean H. Eisner
* Director November 1, 1999
Jack D. Furst
* Executive Vice President and November 1, 1999
J.Michael Gearon, Jr. Director
* Director November 1, 1999
Fred R. Lummis
* Director November 1, 1999
Randall Mays
II-5
* Director November 1, 1999
Thomas H. Stoner
* Director November 1, 1999
Maggie Wilderotter
*By: /s/ Justin D. Benincasa
Justin D. Benincasa
Attorney-in-Fact
II-6
EXHIBIT INDEX
Listed below are the exhibits which are filed as part of this
Registration Statement on Form S-3 (according to the number assigned to
them in Item 601 of Regulation S-K). Each exhibit marked by a (*) is
incorporated by reference to the initial filing of this Registration
Statement on Form S-3 (File No. 333-89345) on October 20, 1999.
Exhibit No. Description of Document Exhibit File No.
4.1 Indenture, by and between the Company and The Bank of New York as
Trustee, for the 6.25% Notes, dated as of October 4, 1999,
including form of 6.25% Note (*4.1)
4.2 Indenture by and between the Company and The Bank of New York as
Trustee, for the 2.25% Notes, dated as of October 4, 1999,
including the form of 2.25% Note. (*4.2)
4.3 Form of 6.25% Note (included in Exhibit 4.1) Filed as part of Exhibit 4.1(*)
4.4 Form of 2.25% Note (included in Exhibit 4.2) Filed as part of Exhibit 4.2(*)
4.5 Registration Rights Agreement, by and between the Company and the
Initial Purchasers named therein, dated as of October 4, 1999 (*4.5)
5 Opinion of Sullivan & Worcester LLP Filed herewith as Exhibit 5
8 Tax Opinion of Sullivan & Worcester LLP Filed herewith as Exhibit 8
12 Statement Regarding Computation of Ratios of Earnings to Fixed
Charges (*12)
23 Consent of Sullivan & Worcester LLP Contained in the opinion of
Sullivan & Worcester LLP filed
herewith as part of Exhibits 5
and 8
23.1 Independent Auditors' Consent--Deloitte & Touche LLP (*23.1)
23.2 Consent of KPMG LLP (*23.2)
23.3 Consent of KPMG LLP (*23.3)
23.4 Consent of Ernst & Young LLP (*23.4)
23.5 Consent of Ernst & Young LLP (*23.5)
23.6 Consent of KPMG LLP (*23.6)
23.7 Consent of Arthur Andersen LLP (*23.7)
23.8 Consent of KPMG LLP (*23.8)
24 Power of Attorney Filed as page II-4 of the
Registration Statement(*)
25 Statement of Eligibility of Trustee on Form T-1 (*25)
[S&W Letterhead]
November 1, 1999
American Tower Corporation
116 Huntington Avenue
Boston, Massachusetts 02116
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended (the "Securities Act"), by American Tower Corporation, a Delaware
corporation ("American Tower") of (i) $300,000,000 aggregate principal amount of
American Tower's 6.25% Convertible Notes due 2009 (the "Standard Notes"), (ii)
$425,500,000 aggregate principal amount of American Tower's 2.25% Convertible
Notes due 2009 (the "Discount Notes", and collectively with the Standard Notes,
the "Notes"), and (iii) 24,797,690 shares of Class A Common Stock, par value
$.01 per share, issuable upon conversion of such Notes (the "Class A Common
Stock"), of American Tower initially issuable upon conversion of the Notes plus
such indeterminate amount of shares of Class A Common Stock as may become
issuable upon conversion of the Notes as a result of adjustments to the
conversion price (the "Shares"), to be offered by the selling securityholders
(as described in the Registration Statement), the following opinion is furnished
to you to be filed with the Securities and Exchange Commission (the
"Commission") as Exhibit 5 to American Tower's registration statement on Form
S-3 (the "Registration Statement").
We have acted as counsel to American Tower in connection with the
preparation of the (i) Registration Statement, (ii) the Indenture, dated as of
October 4, 1999, for the Standard Notes between American Tower and The Bank of
New York, as trustee (the "Standard Indenture"), (iii) the Indenture, dated as
of October 4, 1999, for the Discount Notes between American Tower and The Bank
of New York, as trustee (the "Discount Indenture", and collectively with the
Standard Indenture, the "Indentures"), and (iv) the Registration Rights
Agreement, dated as of October 4, 1999, between American Tower and Credit Suisse
First Boston Corporation, Deutsche Bank Securities Inc., Lehman Brothers Inc.,
Morgan Stanley & Co. Incorporated, Banc of America Securities LLC, Bear, Stearns
& Co. Inc., Goldman, Sachs & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Salomon Smith Barney Inc., and we have examined originals or
copies, certified or otherwise identified to our satisfaction, of corporate
records, certificates and statements of officers and accountants of American
Tower, and of public officials, and such other documents as we have considered
relevant and necessary in order to furnish the opinion hereinafter set forth. We
express no opinion herein as to any laws other than the General Corporation Law
of the State of Delaware.
The authorized capital stock of American Tower consists of 20,000,000
shares of preferred stock, par value $.01 per share, the relative designations,
preferences, rights and restrictions of which are to be designated from time to
time by the Board of Directors of American Tower, 500,000,000 shares of Class A
Common Stock, 50,000,000 shares of Class B Common Stock, par value $.01 per
share, and 10,000,000 shares of Class C Common Stock, par value $.01 per share.
Based on and subject to the foregoing, we are of the opinion that (i)
the Notes have been duly authorized and are validly issued and represent binding
obligations of American Tower, and (ii) the Shares, when issued in accordance
with the terms of the Notes and the Indentures, will be duly authorized, validly
issued, fully paid and non-assessable by American Tower.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm therein under the
caption "Legal Matters." In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or under the Rules and Regulations of the Commission
promulgated thereunder.
Very truly yours,
/s/ Sullivan & Worcester LLP
Sullivan & Worcester LLP
[S&W Letterhead]
November 1, 1999
American Tower Corporation
116 Huntington Avenue
Boston, Massachusetts 02116
Ladies and Gentlemen:
The following opinion is furnished to you to be filed with the
Securities and Exchange Commission (the "SEC") as Exhibit 8 to the registration
statement on Form S-3, File No. 333- 89345 (the "Registration Statement"), to be
filed by American Tower Corporation ("American Tower") under the Securities Act
of 1933, as amended (the "Securities Act").
We have acted as counsel for American Tower in connection with the
preparation of the Registration Statement, and we have examined originals or
copies, certified or otherwise identified to our satisfaction, of the
Registration Statement, corporate records, certificates and statements of
officers and accountants of American Tower and of public officials, and such
other documents as we have considered relevant and necessary in order to furnish
the opinion hereinafter set forth. With respect to all questions of fact on
which the opinion set forth below is based, we have assumed the accuracy and
completeness of and have relied on the information set forth in the Registration
Statement, and in the documents incorporated therein by reference, and on
representations made to us by the officers of American Tower. We have not
independently verified such information.
The opinion set forth below is based upon the Internal Revenue Code of
1986, as amended, the Treasury Regulations issued thereunder, published
administrative interpretations thereof, and judicial decisions with respect
thereto, all as of the date hereof (collectively, the "Tax Laws"). No assurance
can be given that the Tax Laws will not change. In preparing the discussions
with respect to Tax Laws matters in the section of the Registration Statement
captioned "Certain Federal Income Tax Consequences," we have made certain
assumptions and expressed certain conditions and qualifications therein, all of
which assumptions, conditions and qualifications are incorporated herein by
reference.
American Tower Corporation
November 1, 1999
Page 2
Based upon and subject to the foregoing, we are of the opinion that the
discussion with respect to Tax Laws matters in the section of the Registration
Statement captioned "Certain Federal Income Tax Consequences," in all material
respects is accurate and fairly summarizes the Tax Laws issues addressed
therein.
This opinion is intended solely for the benefit and use of American
Tower, and it is not to be used, released, quoted, or relied upon by anyone else
for any purpose (other than as required by law) without our prior written
consent. We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm therein under the
caption "Legal Matters." In giving such consent, we do not thereby admit that we
come within the category of persons whose consent is required under Section 7 of
the Securities Act or under the rules and regulations of the SEC promulgated
thereunder.
Very truly yours,
/s/ SULLIVAN & WORCESTER LLP
SULLIVAN & WORCESTER LLP