Filed Pursuant to Rule 424(b)(3)
Registration No. 333-37988
PROSPECTUS
$1,000,000,000
[LOGO]
American Tower Corporation
Debt Securities, Preferred Stock, Depositary Shares,
Class A Common Stock and Warrants
----------------------
We may from time to time offer:
o debt securities,
o shares of our preferred stock,
o fractional shares of our preferred stock in the
form of depositary shares,
o shares of our Class A common stock, or
o warrants to purchase any of these securities.
The securities we offer will have an aggregate public offering price of up
to $1,000,000,000.
We will show the particular securities we offer and their specific terms in
a supplement to this document. In each case we would describe the type and
amount of securities we are offering, the initial public offering price, and the
other terms of the offering.
Our Class A common stock is listed on the New York Stock Exchange under the
symbol "AMT." We will make application to list any shares of Class A common
stock sold pursuant to a supplement to this prospectus on the NYSE. We have not
determined whether we will list any of the other securities we may offer on any
exchange or over-the-counter market. If we decide to seek listing of any
securities, the supplement will disclose the exchange or market.
Investing in our securities involves risks. See "Risk Factors" beginning on
page 1.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
We may offer the securities directly, through agents designated from time
to time by us or to or through underwriters or dealers. We will show in a
supplement the names of any agents or underwriters involved in the sale of any
securities. We will also describe any applicable purchase price and fee or
commission or discount arrangement between or among us and/or them. See "Plan of
Distribution" on page 20. We may not sell any securities without delivery of a
supplement describing the method and terms of the offering of the securities.
Our principal place of business is 116 Huntington Avenue, Boston, Massachusetts
02116 and our telephone number is (617) 375-7500.
The date of this prospectus is June 7, 2000
TABLE OF CONTENTS
About This Prospectus........................(i)
Cautionary Note Regarding Forward-
Looking Statements......................(i)
American Tower............................... 1
Risk Factors................................. 1
Ratio of Earnings to Fixed Charges............ 5
Use of Proceeds.............................. 5
Description of Certain Indebtedness........... 5
Description of Debt Securities................ 7
Description of Capital Stock..................12
Description of Depositary Shares..............17
Description of Warrants.......................19
Plan of Distribution..........................20
Validity of the Offered Securities............21
Experts.......................................21
Where You Can Find More Information.......... 22
Documents Incorporated By Reference.......... 22
You should rely only on the information incorporated by reference or
provided in this document. We have not authorized anyone else to provide you
with different information. We are not making an offer of these securities in
any jurisdiction where it is unlawful. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the front of this document.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement we filed with the SEC
using a "shelf" registration process. Under this shelf process, we may sell any
combination of the securities described in this prospectus in one of more
offerings up to a total dollar amount of proceeds of $1.0 billion. This
prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
containing specific information about the terms of that offering. The prospectus
supplement may also add, update, or change information contained in this
prospectus. You should read both this prospectus and any prospectus supplement
together with additional information described under the heading "Where You Can
Find More Information" on page 22 and "Documents Incorporated By Reference" on
page 22.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
We have made and incorporated by reference forward-looking statements in
this document. Forward-looking statements include those regarding our goals,
beliefs, plans or current expectations and other statements contained regarding
matters that are not historical facts. For example, when we use the words
believe, expect, anticipate or similar expressions, we are making
forward-looking statements. Forward-looking statements include statements
concerning:
o the outcome of our growth strategy,
o future results of operations,
o liquidity and capital expenditures,
o construction and acquisition activities,
o debt levels and the ability to obtain financing and make payments on our
debt,
o regulatory developments and competitive conditions in the communications
site and wireless carrier industries,
o projected growth of the wireless communications and wireless carrier
industries,
o dependence on demand for satellites for Internet data transmission, and
o general economic conditions.
Our forward-looking statements are subject to risks and uncertainties. You
should note that many factors, some of which are discussed elsewhere in this
prospectus or in the documents we have incorporated by reference, could affect
us in the future and could cause our results to differ materially from those
expressed in our forward-looking statements. For a discussion of some of these
factors, please read carefully the information under "Risk Factors" beginning on
page 1. We are not required to release publicly the results of any revisions to
these forward-looking statements we may make to reflect future events or
circumstances.
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AMERICAN TOWER
We are a wireless communications and broadcast infrastructure company
operating in three business segments.
o We operate a leading network of communications towers and are the largest
independent operator of broadcast towers in North America. Giving effect as
of June 1, 2000 to our pending transactions, we have approximately 10,600
multi-user sites in the United States, Mexico and Canada, including
approximately 300 broadcast tower sites.
o We provide comprehensive network development services for wireless service
providers and broadcasters. We offer full turnkey network development
solutions to our customers, consisting of radio frequency engineering,
network design, site acquisition, zoning and other regulatory approvals,
construction management, tower construction and antenna installation.
o We are a leading provider of domestic and international satellite and IP
network service. We own and operate more than 160 antennas accessing most
major satellite systems from U.S. teleport locations in Arizona,
California, Massachusetts, New Jersey, Texas, Washington state and
Washington, D.C.
We estimate that our three business segments accounted for the following
percentages of pro forma 1999 operating revenues:
o Rental and management--53.0%,
o Network development services--27.0%, and
o Internet, voice, data and video transmission services--20.0%.
RISK FACTORS
You should consider carefully the following factors and other information in
this prospectus before deciding to invest in our securities.
If we cannot keep raising capital, our growth will be impeded.
Without additional capital, we would need to curtail our acquisition and
construction programs. We expect to use borrowed funds to satisfy most of our
capital needs. However, we must continue to satisfy financial ratios and to
comply with financial and other covenants in order to do so. If our revenues and
cash flow do not meet expectations, we may lose our ability to borrow money.
These same factors, as well as market conditions beyond our control, could make
it difficult or impossible for us to sell securities as an alternative to
borrowing.
Meeting payments on our large debt could be a burden to us.
Our high debt level makes us vulnerable to downturns in our operations. This
high debt level requires us to use most of our cash flow to make interest and
principal payments. If we do not generate sufficient cash flow through our
operations to make interest and principal payments, we may be forced to sell
debt or equity securities or sell some of our core assets. This could be harmful
to our business and our securityholders. Market conditions or our own financial
situation may require us to make these sales on unattractive terms.
Demand for tower space may be beyond our control.
Many of the factors affecting the demand for tower space, and therefore our
cash flow, are beyond our control. Those factors include:
o consumer demand for wireless services,
o the financial condition of wireless service providers and their preference
for owning or leasing antennae sites,
o the growth rate of wireless communications or of a particular wireless
segment,
o the number of wireless service providers in a particular segment,
nationally or locally,
o governmental licensing of broadcast rights,
o zoning, environmental and other government regulations, and
o technological changes.
Roaming and resale arrangements could also adversely affect demand. These
arrangements enable a wireless service provider to serve customers outside its
license area through agreements with other providers. Wireless providers might
consider
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roaming and resale arrangements preferable to leasing antennae space.
New tower construction, particularly build-to-suit projects, involves
uncontrollable risks and increasing competition.
Our increasing focus on major build-to-suit projects for wireless service
providers entails several unique risks. First is our greater dependence on a
limited number of customers. In addition, although we have the benefit of an
anchor tenant in build-to-suit projects, we may not be able to find a sufficient
number of additional tenants. In fact, one reason wireless service providers may
prefer build-to-suit arrangements is to share or escape the costs of an
undesirable site. A site may be undesirable because it has high construction
costs or may be considered a poor location by other providers.
Our expanded construction activities also involve other substantial risks.
These risks include:
o increasing our debt and the amount of payments on that debt,
o uncontrollable risks that could delay or increase the cost of a project,
o increasing competition for construction sites and experienced tower
construction companies, resulting in significantly higher costs and failure
to meet time schedules,
o failure to meet time schedules that could result in our paying significant
penalties to prospective tenants, particularly in build-to-suit situations,
and
o possible lack of sufficient experienced personnel to manage an expanded
construction program.
We cannot control the main factors that can prevent, delay or increase the
cost of construction. These factors include:
o zoning and local permitting requirements,
o environmental group opposition,
o availability of skilled construction personnel and construction equipment,
o adverse weather conditions, and
o federal regulations.
Our acquisition strategy involves increasing acquisition costs, high debt levels
and potential management and integration issues.
Increased competition, which we believe will continue, has resulted in
substantially higher acquisition costs, particularly for towers being sold by
wireless service providers. These prices, in turn, result in high debt and debt
service requirements. Equally important, the increased size of our acquisitions
from wireless service providers could create problems we have not faced in the
past. These include:
o dependence on a limited number of customers,
o lease and control provisions more favorable to the wireless service
provider than those we give our tenants generally,
o integration of major national networks into our operational systems,
o demands on managerial personnel that could divert their attention from
other aspects of our business, and
o potential antitrust constraints, either in local markets or on a regional
or national basis, that could impede future acquisitions or require
selective divestitures at unfavorable prices.
An additional risk we face when acquiring large numbers of towers in one
transaction is that some of these towers may have limited marketing potential.
For example, towers may not be marketable because of location.
Covenants in our credit facilities could impede our growth strategy and restrict
our ability to pay interest on or redeem our notes.
Our growth strategy may be impaired by restrictive covenants in our credit
facilities. The most significant of these covenants impose limits on our
aggregate borrowings, including in the case of American Tower, the parent
company, the type and amount of borrowings. We are also required to meet certain
financial ratios and comply with all of the financial and other covenants in
order to borrow funds. Certain types of acquisitions and investments in other
companies are limited. Events beyond our control may affect our ability to meet
these requirements. If these covenants restrict our ability
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to borrow funds, acquisitions and construction will be impeded.
Our credit facilities also restrict the ability of our subsidiaries to pay
dividends or make other distributions to us and prohibit those dividends and
other distributions during periods of default. Since we are a holding company,
with no independent operations, we are dependent on our subsidiaries for funds
to pay interest and principal on our notes, including any debt securities we
offer pursuant to this prospectus. In addition, our credit facilities require us
to invest 100% of all debt and equity offerings, public or private, in our
borrower subsidiaries.
Our existing credit facilities prohibit us from redeeming or repurchasing
any currently outstanding notes for cash. This will probably require us to elect
to repurchase currently outstanding notes with Class A common stock on the
repurchase dates and to obtain lender consent in order to repurchase currently
outstanding notes upon any change in control. This same limitation could impact
our ability to redeem or repurchase any securities we may offer pursuant to this
prospectus.
We are dependent on key personnel and would be hurt if they leave.
The loss of our chief executive officer, Steven B. Dodge, and other
executive officers has a greater likelihood of having a material adverse effect
upon us than it would on most other companies of our size. Our growth strategy
is highly dependent on the efforts of Mr. Dodge and our other executive
officers. Our ability to raise capital is dependent in part on the reputation of
Mr. Dodge. You should be aware that we have not entered into employment
agreements with Mr. Dodge or most of our other executive officers. We may not be
able to retain our executive officers, including those with employment
agreements, or other key personnel or prevent them from competing with us if
they did leave.
Expanding operations into foreign countries could create certain operational and
financial risks.
Our recent expansion into Canada and Mexico, and other possible foreign
operations in the future, could result in adverse financial consequences and
operational problems not experienced in the United States. We have made a
substantial loan to a Mexican company and are committed to construct a sizable
number of towers in that country. We have also invested in a Canadian joint
venture that intends to acquire and construct towers in that country. We may
also, in the future, engage in comparable transactions in other countries. Among
the risks of foreign operations are governmental expropriation and regulation,
inability to repatriate earnings or other funds, currency fluctuations,
difficulty in recruiting trained personnel, and language and cultural
differences that could impair management control and operations.
New technologies could make our tower antenna leasing services less desirable to
potential tenants.
Mobile satellite systems and other new technologies could compete with
land-based wireless communications systems, thereby reducing the demand for
tower lease space and other services we provide. The Federal Communications
Commission has granted license applications for several low-earth orbiting
satellite systems that are intended to provide mobile voice or data services. In
addition, the emergence of new technologies could reduce the need for
tower-based transmission and reception and have an adverse affect on our
operations.
The development and implementation of signal combining technologies, which
permit one antenna to service two different transmission frequencies and,
thereby, two customers, may reduce the need for tower-based broadcast
transmission and hence demand for our antenna space. The growth in delivery of
video services by direct broadcast satellites could also adversely affect demand
for our antenna space.
Demand for teleport services is subject to technological, competitive and
regulatory factors beyond our control.
Demand for teleport services by its primary historical base of video
customers has been diverted to fiber optic transmission services in some
instances. Teleport transmission services for Internet-related entities,
however, have increased. Revenues from these new technologies may not continue
to grow and may decline if other forms of transmission, fiber optic or
otherwise, are introduced. In addition, our teleport satellite operations are
dependent upon maintaining valid FCC licensing.
We could be harmed if perceived health risks from radio emissions are
substantiated.
If a connection between radio emissions and possible negative health
effects, including cancer, were established, we would be materially and
adversely affected. The results of several substantial
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studies by the scientific community in recent years have been inconclusive. We
and the lessees of antennae sites on our towers are subject to government
regulations relating to radio frequency emissions. We do not maintain any
significant insurance with respect to these matters.
Pro forma financial information is based on estimates and assumptions and may
not be indicative of actual future results.
Our actual future results could vary materially and adversely from those
reflected in the pro forma financial information we have incorporated by
reference in this prospectus. That information is based upon a number of
assumptions we believe to be reasonable. However, our two most significant
acquisitions to date, the AirTouch and AT&T transactions, do not involve the
acquisition of businesses. The towers involved in those acquisitions were
operated as part of the wireless service divisions of AirTouch and AT&T. Those
companies did not maintain extensive separate financial records or prepare
financial statements for the operation of those towers. We have, however,
compiled certain revenue and expense data of those towers in the pro forma
information. In the case of certain expenses, we have estimated amounts based on
both the limited information provided by the carriers and our own experience
with comparable towers. Neither our auditors, AirTouch's auditors nor AT&T's
auditors have expressed any opinion or provided any form of assurance with
respect to AirTouch's or AT&T's historical data presented in the unaudited pro
forma financial information.
We could have liability under environmental laws.
Under various federal, state and local environmental laws, we, as an owner,
lessee or operator of real estate, may be liable for the substantive costs of
remediating soil and groundwater contaminated by hazardous wastes. Some of these
laws impose responsibility and liability on us even if we did not cause the
contamination or even know about it. Almost all of the towers we own and
operate, other than roof top towers, are located on parcels of land, which could
result in substantial environmental liability. Our liability often will continue
even if we sell the property.
The debt will effectively rank junior to secured debt under our credit
facilities.
Our payment of principal and interest on any debt we may issue will
effectively rank junior to all existing and future debt under our credit
facilities. This is so because the debt under our credit facilities is issued or
guaranteed by our subsidiaries and secured by their assets. Any debt we issue
will also effectively rank junior to all other existing and future debt of our
subsidiaries. We have also guaranteed that debt and secured our guaranty with
our assets, including the stock of our subsidiaries. As a result, in the event
of our insolvency, liquidation or reorganization, or should any of that debt be
accelerated because of a default, we must pay that debt in full before we can
make any payment on any debt we may sell publicly.
No trading market may exist for any offered securities other than Class A common
stock.
No trading market for any offered securities other than Class A common
stock may exist and one may never develop. Accordingly, you may not be able to
sell those securities or sell them at an acceptable price. If a market were to
develop, those offered securities could trade at prices that may be higher or
lower than your purchase price depending on many factors, including prevailing
interest rates, our operating results, the market for similar securities, and,
if those securities are convertible or exchangeable, the market price of the
Class A common stock. We do not intend to list any offered securities other than
Class A common stock on any securities exchange or to seek approval for
quotation through any automated quotation system. One or more of the managing
underwriters, if any, may decide to make a market in the those offered
securities. They would not, however, be obligated to do so and may discontinue
market making at any time. Therefore, any liquidity may disappear and those
offered securities may not be readily marketable.
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Control by our principal stockholders could deter mergers where you could get
more than current market price for your stock.
Control by Mr. Dodge and others may have the effect of discouraging a merger
or other takeover of our company in which holders of common stock may be paid a
premium for their shares over then-current market prices. Mr. Dodge, together
with a limited number of our directors, may be able to control or block the vote
on mergers and other matters submitted to the common stockholders.
Our common stock does not pay dividends.
We have never paid a dividend on our common stock and do not expect to pay
cash dividends in the foreseeable future. In addition, our credit facilities
effectively restrict the payment of cash dividends or other distributions and
the repurchase, redemption or other acquisition of equity securities.
RATIO OF EARNINGS TO FIXED CHARGES
For purposes of calculating this ratio, earnings consist of loss before
income taxes and extraordinary losses and fixed charges. Fixed charges consist
of capitalized interest, interest expense, amortization of debt discount and
related issuance costs and the component of rental expense that management
believes to be representative of the interest factor on that expense. For the
year ended December 31, 1998, interest expense included redeemable preferred
stock dividends of $3.1 million. We have not paid dividends on preferred stock
in any other period presented below. For each of the periods listed below, our
ratio of earnings to fixed charges was less than 1.0:1. We had a deficiency in
earnings to fixed charges in each period as follows (amounts in thousands):
Period Deficiency
------ ----------
Period from July 17, 1995 (incorp-
oration) to December 31, 1995........ $ 184
Year ended December 31, 1996............ 434
Year ended December 31, 1997............ 2,507
Year ended December 31, 1998............ 43,844
Year ended December 31, 1999............ 52,520
Three months ended March 31, 2000....... 53,595
USE OF PROCEEDS
We expect to use net proceeds from the sale of the offered securities
primarily to finance construction and acquisitions. We also expect to use those
proceeds to finance general working capital requirements, including repayment
from time to time of borrowings under our credit facilities. Any borrowings so
repaid may be available in the future to finance construction and acquisitions
and other general corporate purposes. We intend to continue actively seeking
construction and acquisition prospects, including acquisitions of companies
outside of the United States engaged in businesses related to the tower
communications business in which we are not presently engaged.
DESCRIPTION OF CERTAIN INDEBTEDNESS
Credit Facilities
The description below summarizes the more important terms of our borrowing
arrangements, as currently in effect, which we refer to as the credit
facilities. We have previously filed copies of the loan agreement governing the
credit facilities with the SEC. See "Where You Can Find More Information" on
page 22. You should refer to that agreement for the complete terms of the credit
facilities. Capitalized words used in the description below have specialized
meanings defined in that agreement.
Several of our principal operating subsidiaries have borrowed and expect to
continue to borrow under the credit facilities. We refer to those borrowers
collectively as the borrower subsidiaries. The credit facilities provide for up
to $2.0 billion of loans, the funding of which has been committed to by the
lenders. The credit facilities also contemplate possible additional borrowings
of up to $500.0 million, although the lenders are not committed to fund those
borrowings. Borrowings under the credit facilities are limited by (a) the cash
flow of the borrower subsidiaries and the Restricted Subsidiaries, (b) their
construction costs of Developing Towers, and (c) the aggregate number of
Developing Towers and AirTouch towers we acquire.
The credit facility is made up of three separate types of loans:
o a $650.0 million reducing revolving credit facility maturing on June 30,
2007,
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o an $850.0 million multiple-draw term loan maturing on June 30, 2007, and
o a $500.0 million term loan maturing on December 31, 2007.
We are required to reduce the revolving credit commitments and to amortize
the term loans quarterly, commencing March 31, 2003, in increasing amounts
designed to repay the loans by maturity. We are also required to repay the
loans, and reduce the commitments, out of the proceeds of asset sales and sales
of equity or debt securities, by us or our subsidiaries, and out of cash flow.
We can repay the loans voluntarily at any time, without penalty.
We may incur indebtedness under the credit facilities for acquisitions,
construction and other capital expenditures, working capital and general
corporate purposes.
The credit facilities require compliance with financial coverage ratios that
measure Annualized Operating Cash Flow against Total Debt, Interest Expense, Pro
Forma Debt Service and Fixed Charges. The credit facilities contain other
financial and operational covenants and other restrictions with which the
borrower subsidiaries and the Restricted Subsidiaries must comply, whether or
not there are any borrowings outstanding. These include restrictions on certain
types of acquisitions, other than towers and communications sites, indebtedness,
liens, capital expenditures, investments in Unrestricted Subsidiaries, and the
ability of the borrower subsidiaries and the Restricted Subsidiaries to pay
dividends or make other distributions.
The credit facilities include two events of default that restrict American
Tower, the parent company:
o it cannot have any Indebtedness for Money Borrowed outstanding other than
(a) the convertible notes issued in October 1999 and February 2000, and (b)
other Indebtedness for Money Borrowed in an aggregate amount not to exceed
$500.0 million and containing certain terms, and
o it is required to invest the net cash proceeds of any issue of Capital
Stock (other than pursuant to permitted acquisitions and up to $2.0 million
under stock option plans) or Indebtedness as equity in the borrower
subsidiaries.
Our permitted Indebtedness for Money Borrowed must (a) be unsecured, (b)
have no scheduled payments of principal prior to June 30, 2008, (c) have no
required cash payments of interest and (d) have other terms and conditions
reasonably satisfactory to the Majority Lenders.
We and the Restricted Subsidiaries have guaranteed all of the loans. We have
secured the loans by liens on substantially all assets of the borrower
subsidiaries and the Restricted Subsidiaries and all outstanding capital stock
and other debt and equity interests of our direct and indirect subsidiaries.
Convertible Notes
In October 1999, we issued 6.25% Convertible Notes due 2009 in an aggregate
principal amount of $300.0 million and 2.25% Convertible Notes due 2009 at an
issue price of $300.1 million, representing 70.52% of their principal amount at
maturity of $425.5 million. In February 2000, we issued 5.00% Convertible Notes
due 2010 in an aggregate principal amount of $450.0 million. We will accrete
each year as interest expense in our financial statements the difference between
the issue price and the principal amount at maturity of the 2.25% notes.
The 6.25% notes are convertible into shares of Class A common stock at a
conversion price of $24.40 per share. The 2.25% notes are convertible into
shares of Class A common stock at a conversion price of $24.00 per share. The
5.00% notes are convertible into shares of Class A common stock at a conversion
price of $51.50 per share. The conversion prices are subject to adjustment in
certain customary circumstances.
We may not redeem the 6.25% notes prior to October 22, 2002. Thereafter, we
may redeem those notes, at our option, in whole or in part at a redemption price
initially of 103.125% of the principal amount. The redemption price declines
ratably immediately after October 15 of each following year to 100% of the
principal amount in 2005. We may not redeem the 2.25% notes prior to October 22,
2003. Thereafter, we may redeem those notes, at our option, in whole or in part
at increasing redemption prices designed to reflect the accrued original issue
discount. We may not redeem the 5.00% notes prior to February 20, 2003.
Thereafter, we may redeem those notes, at our option, in whole or in part at a
redemption price initially of 102.50% of the principal amount. The redemption
price declines ratably immediately after February 15 of each following year to
100% of the principal amount in 2006. We are also required to pay accrued and
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unpaid interest in all redemptions of any series of notes.
Holders may require us to repurchase all or any of their 6.25% notes on
October 22, 2006 at their principal amount, together with accrued and unpaid
interest. Holders may require us to repurchase all or any of their 2.25% notes
on October 22, 2003 at those notes' issue price plus accreted original issue
discount, together with accrued and unpaid interest. Holders may require us to
repurchase all or any of their 5.00% notes on February 20, 2007 at their
principal amount, together with accrued and unpaid interest. We may, at our
option, elect to pay the repurchase price of any series in cash or shares of
Class A common stock, or any combination thereof. Our credit facilities restrict
our ability to repurchase the convertible notes for cash.
The indentures under which the convertible notes are outstanding do not
contain any restrictions on the payment of dividends, the incurrence of debt or
liens or the repurchase of our equity securities or any financial covenants.
None of the notes are entitled to the benefit of any sinking fund. The 6.25%
notes, the 2.25% notes and the 5.00% notes are junior to debt under our credit
facilities and rank equally with each other.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be our unsecured direct obligations. They may be
senior or subordinated indebtedness. The debt securities will be issued under
one or more indentures between us and a trustee. Any indenture will be subject
to, and governed by, the Trust Indenture Act of 1939, as amended. The statements
made in this prospectus relating to any indenture and the debt securities to be
issued under any indenture are summaries of certain anticipated provisions of
the indentures, do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all provisions of the indentures
and the debt securities.
General
We have filed with the registration statement relating to the offered
securities a form of indenture relating to our senior securities and a form of
indenture relating to our senior subordinated securities and subordinated
securities. Our senior debt securities will rank equally and ratably in right of
payment with other indebtedness of ours that is not subordinated. If we issue
subordinated debt securities, they will be subordinated in right of payment to
the prior payment in full of senior indebtedness, as defined in the applicable
prospectus supplement, and may rank equally and ratably with any other
subordinated indebtedness. They may, however, also be subordinated in right of
payment to senior subordinated securities. See "--Subordination" on page 12.
We may issue the debt securities without limit as to aggregate principal
amount, in one or more series, in each case as established from time to time in
or pursuant to authority granted by a resolution of our board of directors or as
established in one or more supplemental indentures. We need not issue all debt
securities of one series at the same time. Unless we otherwise provide, we may
reopen a series, without the consent of the holders of such series, for
issuances of additional securities of that series.
We anticipate that any indenture will provide that we may, but need not,
designate more than one trustee under an indenture, each with respect to one or
more series of debt securities. Any trustee under any indenture may resign or be
removed with respect to one or more series of debt securities, and a successor
trustee may be appointed to act with respect to that series.
The applicable prospectus supplement will describe the specific terms
relating to the series of debt securities we will offer, including, where
applicable, the following:
o the title and series designation and whether they are senior securities,
senior subordinated securities or subordinated securities,
o the aggregate principal amount of the securities,
o the percentage of the principal amount at which we will issue the debt
securities and, if other than the principal amount of the debt securities,
the portion of the principal amount of the debt securities payable upon
declaration of acceleration of the maturity of the debt securities,
o if convertible, the initial conversion price, the conversion period and any
other terms governing such conversion,
o the stated maturity date,
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o any fixed or variable interest rate or rates per annum,
o the date from which interest may accrue and any interest payment dates,
o any sinking fund requirements,
o any provisions for redemption, including the redemption price and any
remarketing arrangements,
o whether the securities are denominated or payable in United States dollars
or a foreign currency or units of two or more foreign currencies,
o the events of default and covenants of such securities, to the extent
different from or in addition to those described in this prospectus,
o whether we will issue the debt securities in certificated and/or book-entry
form,
o whether the debt securities will be in registered or bearer form and, if in
registered form, the denominations if other than in even multiples of
$1,000 and, if in bearer form, the denominations and terms and conditions
relating thereto,
o whether we will issue any of the debt securities in permanent global form
and, if so, the terms and conditions, if any, upon which interests in the
global security may be exchanged, in whole or in part, for the individual
debt securities represented by the global security,
o the applicability, if any, of the defeasance and covenant defeasance
provisions described in this prospectus or any prospectus supplement,
o whether we will pay additional amounts on the securities in respect of any
tax, assessment or governmental charge and, if so, whether we will have the
option to redeem the debt securities instead of making this payment, and
o the subordination provisions, if any, relating to the debt securities.
We may issue debt securities at less than the principal amount payable upon
maturity. We refer to these securities as "original issue discount securities."
If material or applicable, we will describe in the applicable prospectus
supplement special U.S. federal income tax, accounting and other considerations
applicable to original issue discount securities.
Except as described under "--Merger, Consolidation or Sale of Assets" on
page 9 or as may be set forth in any prospectus supplement, an indenture will
not contain any other provisions that would limit our ability to incur
indebtedness or that would afford holders of the debt securities protection in
the event of a highly leveraged or similar transaction involving us or in the
event of a change of control. You should review carefully the applicable
prospectus supplement for information with respect to events of default and
covenants applicable to the securities being offered.
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable prospectus supplement, we will
issue the debt securities of any series that are registered securities in
denominations that are even multiples of $1,000, other than global securities,
which may be of any denomination.
Unless otherwise specified in the applicable prospectus supplement, we will
pay the interest on and principal of and premium, if any, on any debt securities
at the corporate trust office of the trustee. At our option, however, we may
make payment of interest by check mailed to the address of the person entitled
to the payment as it appears in the applicable register or by wire transfer of
funds to that person at an account maintained within the United States.
If we do not punctually pay or duly provide for interest on any interest
payment date, the defaulted interest will be paid either:
o to the person in whose name the debt security is registered at the close of
business on a special record date to be fixed by the applicable trustee or
o in any other lawful manner, all as more completely described in the
applicable indenture.
You may have your debt securities broken into more debt securities of
smaller denominations or combined into fewer debt securities of larger
denominations, as long as the total principal amount is not changed. We call
this an "exchange."
You may exchange or transfer debt securities at the office of the trustee.
The trustee acts as our agent
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for registering debt securities in the names of holders and transferring debt
securities. We may change this appointment to another entity or perform it
ourselves. The entity performing the role of maintaining the list of registered
holders is called the "security registrar." It will also perform transfers.
You will not be required to pay a service charge to transfer or exchange
debt securities, but you may be required to pay for any tax or other
governmental charge associated with the exchange or transfer. The security
registrar will make the transfer or exchange only if it is satisfied with your
proof of ownership.
Merger, Consolidation or Sale of Assets
Under any indenture, we are generally permitted to consolidate or merge with
another company. We are also permitted to sell substantially all of our assets
to another company, or to buy substantially all of the assets of another
company. However, we may not take any of these actions unless all the following
conditions are met:
o If we merge out of existence or sell our assets, the other company must be a
corporation, partnership or other entity organized under the laws of a State
or the District of Columbia or under federal law. The other company must
agree to be legally responsible for the debt securities.
o The merger, sale of assets or other transaction must not cause a default on
the debt securities. In addition, we must not already be in default, unless
the merger or other transaction would cure the default. A default for this
purpose would include any event that would be an event of default if the
requirements for giving us default notice or our default having to exist for
a specific period of time were disregarded.
Events of Default and Related Matters
Events of Default. The term "event of default" means any of the following:
o We do not pay the principal or any premium on a debt security on its due
date.
o We do not pay interest on a debt security within 30 days of its due date.
o We do not deposit any sinking fund payment on its due date.
o We remain in breach of any other term of the applicable indenture for 60
days after we receive a notice of default stating we are in breach. Either
the trustee or holders of 25% of the principal amount of debt securities of
the affected series may send the notice.
o We file for bankruptcy or certain other events in bankruptcy, insolvency or
reorganization occur.
o Any other event of default described in the applicable prospectus
supplement occurs.
Remedies If an Event of Default Occurs. If an event of default has occurred
and has not been cured, the trustee or the holders of at least 25% in principal
amount of the debt securities of the affected series may declare the entire
principal amount of all the debt securities of that series to be due and
immediately payable. We call this a declaration of acceleration of maturity. If
an event of default occurs because of certain events in bankruptcy, insolvency
or reorganization, the principal amount of all the debt securities of that
series will be automatically accelerated, without any action by the trustee or
any holder. At any time after the trustee or the holders have accelerated any
series of debt securities, but before a judgment or decree for payment of the
money due has been obtained, the holders of at least a majority in principal
amount of the debt securities of the affected series may, under certain
circumstances, rescind and annul such acceleration.
Except in cases of default, where the trustee has some special duties, the
trustee is not required to take any action under the applicable indenture at the
request of any holders unless the holders offer the trustee reasonable
protection from expenses and liability. We refer to this as an indemnity. If
reasonable indemnity is provided, the holders of a majority in principal amount
of the outstanding securities of the relevant series may direct the time, method
and place of conducting any lawsuit or other formal legal action seeking any
remedy available to the trustee. These majority holders may also direct the
trustee in performing any other action under the applicable indenture, subject
to certain limitations.
Before you bypass the trustee and bring your own lawsuit or other formal
legal action or take other steps to enforce your rights or protect your
interests relating to the debt securities, the following must occur:
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o You must give the trustee written notice that an event of default has
occurred and remains uncured.
o The holders of at least 25% in principal amount of all outstanding
securities of the relevant series must make a written request that the
trustee take action because of the default, and must offer reasonable
indemnity to the trustee against the cost and other liabilities of taking
that action.
o The trustee must have not taken action for 60 days after receipt of the
above notice and offer of indemnity.
However, you are entitled at any time to bring a lawsuit for the payment of
money due on your security after its due date.
We will furnish to the trustee every year a written statement of certain of
our officers certifying that to their knowledge we are in compliance with the
applicable indenture and the debt securities, or else specifying any default.
Modification of an Indenture
There are three types of changes we can make to the indentures and the debt
securities:
Changes Requiring Your Approval. First, there are changes we cannot make to
your debt securities without your specific approval. Following is a list of
those types of changes:
o change the stated maturity of the principal or interest on a debt security,
o reduce any amounts due on a debt security,
o reduce the amount of principal payable upon acceleration of the maturity of
a debt security following a default,
o change the place or currency of payment on a debt security,
o impair your right to sue for payment,
o modify the subordination provisions, if any, in a manner that is adverse to
you,
o reduce the percentage of holders of debt securities whose consent is needed
to modify or amend an indenture,
o reduce the percentage of holders of debt securities whose consent is needed
to waive compliance with certain provisions of an indenture or to waive
certain defaults, and
o modify any other aspect of the provisions dealing with modification and
waiver of an indenture.
Changes Requiring a Majority Vote. The second type of change to an indenture
and the debt securities is the kind that requires a vote in favor by holders of
debt securities owning a majority of the principal amount of the particular
series affected. Most changes fall into this category, except for clarifying
changes and certain other changes that would not adversely affect holders of the
debt securities. We require the same vote to obtain a waiver of a past default.
However, we cannot obtain a waiver of a payment default or any other aspect of
an indenture or the debt securities listed in the first category described above
under "--Changes Requiring Your Approval" unless we obtain your individual
consent to the waiver.
Changes Not Requiring Approval. The third type of change does not require
any vote by holders of debt securities. This type is limited to clarifications
and certain other changes that would not adversely affect holders of the debt
securities.
Further Details Concerning Voting. When taking a vote, we will use the
following rules to decide how much principal amount to attribute to a debt
security:
o For original issue discount securities, we will use the principal amount
that would be due and payable on the voting date if the maturity of the
debt securities were accelerated to that date because of a default.
o For debt securities whose principal amount is not known, we will use a
special rule for that security described in the applicable prospectus
supplement. An example is if the principal amount is based on an index.
o For debt securities denominated in one or more foreign currencies or
currency units, we will use the U.S. dollar equivalent.
Debt securities are not considered outstanding, and therefore not eligible
to vote, if we have deposited or set aside in trust for you money for their
payment or redemption or if we or one of our affiliates own them. Debt
securities are also not
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eligible to vote if they have been fully defeased as described immediately below
under "--Discharge, Defeasance and Covenant Defeasance--Full Defeasance."
We are generally entitled to set any day as a record date for the purpose of
determining the holders of outstanding securities entitled to vote or take other
action under an indenture. If we set a record date, only persons who are holders
of outstanding securities of the applicable series on the record date may vote
or take the action. Moreover, the applicable holders must vote or take the
action within 180 days following the record date or another period that we may
specify. We may shorten or lengthen this period from time to time.
Discharge, Defeasance and Covenant Defeasance
Discharge. We may discharge some obligations to holders of any series of
debt securities that either have become due and payable or will become due and
payable within one year, or scheduled for redemption within one year, by
irrevocably depositing with the trustee, in trust, funds in the applicable
currency in an amount sufficient to pay the debt securities, including any
premium and interest.
Full Defeasance. We can, under particular circumstances, effect a full
defeasance of your series of debt securities. By this we mean we can legally
release ourselves from any payment or other obligations on the debt securities
if we put in place the following arrangements to repay you:
o We must deposit in trust for your benefit and the benefit of all other
direct holders of the debt securities a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the debt
securities on their various due dates.
o The current federal tax law must be changed or an IRS ruling must be issued
permitting the above deposit without causing you to be taxed on the debt
securities any differently than if we did not make the deposit and just
repaid the debt securities ourselves. Under current federal tax law, the
deposit and our legal release from the debt securities would be treated as
though we took back your debt securities and gave you your share of the
cash and notes or bonds deposited in trust. In that event, you could
recognize gain or loss on the debt securities you give back to us.
o We must deliver to the trustee a legal opinion confirming the tax law
change described above.
If we did accomplish full defeasance, you would have to rely solely on the
trust deposit for repayment on the debt securities. You could not look to us for
repayment in the unlikely event of any shortfall. Conversely, the trust deposit
would most likely be protected from claims of our lenders and other creditors if
we ever became bankrupt or insolvent. You would also be released from any
subordination provisions.
Covenant Defeasance. Under current federal tax law, we can make the same
type of deposit described above and be released from some of the restrictive
covenants in the debt securities. This is called "covenant defeasance." In that
event, you would lose the protection of those restrictive covenants but would
gain the protection of having money and securities set aside in trust to repay
the securities and you would be released from any subordination provisions. In
order to achieve covenant defeasance, we must do the following:
o We must deposit in trust for your benefit and the benefit of all other
direct holders of the debt securities a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the debt
securities on their various due dates.
o We must deliver to the trustee a legal opinion confirming that under current
federal income tax law we may make the above deposit without causing you to
be taxed on the debt securities any differently than if we did not make the
deposit and just repaid the debt securities ourselves.
If we accomplish covenant defeasance, the following provisions of an
indenture and the debt securities would no longer apply:
o Any covenants applicable to the series of debt securities and described in
the applicable prospectus supplement.
o Any subordination provisions.
o Certain events of default relating to breach of covenants and acceleration
of the maturity of other debt set forth in any prospectus supplement.
If we accomplish covenant defeasance, you can still look to us for repayment
of the debt securities if
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a shortfall in the trust deposit occurred. If one of the remaining events of
default occurs, for example, our bankruptcy, and the debt securities become
immediately due and payable, there may be a shortfall. Depending on the event
causing the default, you may not be able to obtain payment of the shortfall.
Subordination
We will set forth in the applicable prospectus supplement the terms and
conditions, if any, upon which any series of senior subordinated securities or
subordinated securities is subordinated to debt securities of another series or
to other indebtedness of ours. The terms will include a description of:
o the indebtedness ranking senior to the debt securities being offered,
o the restrictions on payments to the holders of the debt securities being
offered while a default with respect to the senior indebtedness is
continuing,
o the restrictions, if any, on payments to the holders of the debt securities
being offered following an event of default, and
o provisions requiring holders of the debt securities being offered to remit
some payments to holders of senior indebtedness.
Global Securities
If so set forth in the applicable prospectus supplement, we may issue the
debt securities of a series in whole or in part in the form of one or more
global securities that will be deposited with a depositary identified in the
prospectus supplement. We may issue global securities in either registered or
bearer form and in either temporary or permanent form. The specific terms of the
depositary arrangement with respect to any series of debt securities will be
described in the prospectus supplement.
DESCRIPTION OF CAPITAL STOCK
The description below summarizes the more important terms of our capital
stock. Because this section is a summary, it does not describe every aspect of
the capital stock. This summary is subject to and qualified in its entirety by
reference to the provisions of our Restated Certificate of Incorporation, as
amended, including by any applicable Certificates of Designation. We refer to it
as the restated certificate. We have incorporated by reference a copy of the
restated certificate as an exhibit to the registration statement of which this
prospectus is a part. This summary is subject to and qualified by reference to
the description of the particular terms of your series of preferred stock
described in the applicable prospectus supplement.
General
Our authorized capital stock consists of 20,000,000 shares of preferred
stock, $.01 par value per share, 500,000,000 shares of Class A common stock,
$.01 par value per share, 50,000,000 shares of Class B common stock, $.01 par
value per share, and 10,000,000 shares of Class C common stock, $.01 par value
per share.
Preferred Stock
General. Our board of directors will determine the designations,
preferences, limitations and relative rights of the 20,000,000 authorized and
unissued shares of preferred stock. These include:
o the distinctive designation of each series and the number of shares that
will constitute the series,
o the voting rights, if any, of shares of the series,
o the dividend rate on the shares of the series, any restriction, limitation
or condition upon the payment of the dividends, whether dividends will be
cumulative, and the dates on which dividends are payable,
o the prices at which, and the terms and conditions on which, the shares of
the series may be redeemed, if the shares are redeemable,
o the purchase or sinking fund provisions, if any, for the purchase or
redemption of shares of the series,
o any preferential amount payable upon shares of the series upon our
liquidation or the distribution of our assets,
o if the shares are convertible, the price or rates of conversion at which,
and the terms and conditions on which, the shares of the series may be
converted into other securities, and
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o whether the series can be exchanged, at our option, into debt securities,
and the terms and conditions of any permitted exchange.
The issuance of preferred stock, or the issuance of rights to purchase
preferred stock, could discourage an unsolicited acquisition proposal. In
addition, the rights of holders of common stock will be subject to, and may be
adversely affected by, the rights of holders of any preferred stock that we may
issue in the future.
The following description of the preferred stock sets forth some general
terms and provisions of the preferred stock to which a prospectus supplement may
relate. The statements below describing the preferred stock are in all respects
subject to and qualified in their entirety by reference to the applicable
provisions of our restated certificate, including any applicable certificates of
designation, and our by-laws.
The prospectus supplement will describe the specific terms as to each
issuance of preferred stock, including:
o the number of shares of the preferred stock offered,
o the offering price of the preferred stock,
o the dividend rate, when dividends will be paid, or the method of
determining the dividend rate if it is based on a formula or not otherwise
fixed,
o the date from which dividends on the preferred stock shall accumulate,
o the provisions for any auctioning or remarketing, if any, of the preferred
stock,
o the provision, if any, for redemption or a sinking fund,
o the liquidation preference per share,
o any listing of the preferred stock on a securities exchange,
o whether the preferred stock will be convertible and, if so, the security
into which it is convertible and the terms and conditions of conversion,
including the conversion price or the manner of determining it,
o whether interests in the preferred stock will be represented by depositary
shares as more fully described under "Description of Depositary Shares" on
page 17,
o a discussion of federal income tax considerations,
o the relative ranking and preferences of the preferred stock as to dividend
and liquidation rights,
o any limitations on issuance of any preferred stock ranking senior to or on
a parity with the series of preferred stock being offered as to dividend
and liquidation rights,
o any limitations on direct or beneficial ownership and restrictions on
transfer, and
o any other specific terms, preferences, rights, limitations or restrictions
of the preferred stock.
As described under "Description of Depositary Shares" on page 17, we may, at
our option, elect to offer depositary shares evidenced by depositary receipts.
If we elect to do this, each depositary receipt will represent a fractional
interest in a share of the particular series of the preferred stock issued and
deposited with a depositary. The applicable prospectus supplement will specify
that fractional interest.
Rank. Unless our board of directors otherwise determines and we so specify
in the applicable prospectus supplement, we expect that the preferred stock
will, with respect to dividend rights and rights upon liquidation, rank senior
to all common stock.
Dividends. Holders of preferred stock of each series will be entitled to
receive cash and/or stock dividends at the rates and on the dates shown in the
applicable prospectus supplement. Even though the preferred stock may specify a
fixed dividend, our board of directors must declare those dividends and they may
be paid only out of assets of legally available for payment. Each dividend will
be payable to holders of record as they appear on our stock transfer books on
the record dates fixed by our board of directors. In the case of preferred stock
represented by depositary receipts, the records of the depositary referred to
under "Description of Depositary Shares" on page 17 will determine the persons
to whom dividends are payable.
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Dividends on any series of preferred stock (we refer to that series, for
ease of reference, as the "applicable series") may be cumulative or
noncumulative, as provided in the applicable prospectus supplement. Cumulative
dividends will be cumulative from and after the date shown in the applicable
prospectus supplement. If our board of directors fails to declare a dividend on
any applicable series that is noncumulative, the holders will have no right to
receive, and we will have no obligation to pay, a dividend in respect of the
applicable dividend period, whether or not dividends on that series are declared
payable in the future.
If the applicable series is entitled to a cumulative dividend, we may not
declare, or pay or set aside for payment, any full dividends on any other series
of preferred stock ranking, as to dividends, on a parity with or junior to the
applicable series, unless we declare, and either pay or set aside for payment,
full cumulative dividends on the applicable series for all past dividend periods
and the then current dividend period. If the applicable series does not have a
cumulative dividend, we must declare, and pay or set aside for payment, full
dividends for the then current dividend period only. When dividends are not
paid, or set aside for payment, in full upon any applicable series and the
shares of any other series ranking on a parity as to dividends with the
applicable series, we must declare, and pay or set aside for payment, all
dividends upon the applicable series and any other parity series
proportionately, in accordance with accrued and unpaid dividends of the several
series. For these purposes, accrued and unpaid dividends do not include unpaid
dividend periods on noncumulative preferred stock. No interest will be payable
in respect of any dividend payment that may be in arrears.
Except as provided in the immediately preceding paragraph, unless we
declare, and pay or set aside for payment, full cumulative dividends, including
for the then current period, on any cumulative applicable series, we may not
declare, or pay or set aside for payment, any dividends or other distributions
upon common stock or any other capital stock ranking junior to or on a parity
with the applicable series as to dividends or upon liquidation. The foregoing
restriction does not apply to dividends or other distributions paid in common
stock or other capital stock ranking junior to the applicable series as to
dividends and upon liquidation.
If the applicable series is noncumulative, we need only declare, and pay or
set aside for payment, the dividend for the then current period, before
declaring dividends or distributions on common stock or junior or parity
securities. In addition, under the circumstances that we could not declare a
dividend, we may not redeem, purchase or otherwise acquire for any consideration
any common stock or other parity or junior capital stock, except upon conversion
into or exchange for common stock or other junior capital stock.
We may, however, make purchases and redemptions otherwise prohibited
pursuant to certain redemptions or pro rata offers to purchase the outstanding
shares of the applicable series and any other parity series of preferred stock.
We will credit any dividend payment made on an applicable series first
against the earliest accrued but unpaid dividend due with respect to the series.
Redemption. We may have the right and/or may be required to redeem the
preferred stock, as a whole or in part, in each case upon the terms, if any, and
at the times and at the redemption prices shown in the applicable prospectus
supplement.
Liquidation Preference. The applicable prospectus supplement will show the
liquidation preference of the applicable series. Upon any voluntary or
involuntary liquidation, before any distribution may be made to the holders of
common stock or any other capital stock ranking junior in the distribution of
assets upon any liquidation to the applicable series, the holders of that series
will be entitled to receive, out of assets of ours legally available for
distribution to stockholders, liquidating distributions in the amount of the
liquidation preference, plus an amount equal to all dividends accrued and
unpaid. In the case of a noncumulative applicable series, accrued and unpaid
dividends include only the then current dividend period. After payment of the
full amount of the liquidating distributions to which they are entitled, the
holders of preferred stock will have no right or claim to any of our remaining
assets. If liquidating distributions shall have been made in full to all holders
of preferred stock, our remaining assets will be distributed among the holders
of any other capital stock ranking junior to the preferred stock upon
liquidation, according to their rights and preferences and in each case
according to their number of shares.
If, upon any voluntary or involuntary liquidation, our available assets are
insufficient to pay the amount of the liquidating distributions on all
outstanding shares of an applicable series and the corresponding amounts payable
on all shares of other capital stock
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ranking on a parity in the distribution of assets with that series, then the
holders of that series and all other equally ranking capital stock shall share
ratably in the distribution in proportion to the full liquidating distributions
to which they would otherwise be entitled.
For these purposes, our consolidation or merger with or into any other
corporation or other entity, or the sale, lease or conveyance of all or
substantially all of our property or business, will not be deemed to constitute
our liquidation.
Voting Rights. Holders of the preferred stock will not have any voting
rights, except as otherwise from time to time required by law or as indicated in
the applicable prospectus supplement.
Conversion Rights. We will show in the applicable prospectus supplement the
terms and conditions, if any, upon which you may, or we may require you to,
convert shares of any series of preferred stock into common stock or any other
class or series of capital stock will be shown. The terms will include the
number of shares of common stock or other securities into which the shares are
convertible, the conversion price, or the manner of determining it, the
conversion period, provisions as to whether conversion will be at the option of
the holders of the series or at our option, the events requiring an adjustment
of the conversion price, and provisions affecting conversion upon the redemption
of shares of the series.
Our Exchange Rights. We will show in the applicable prospectus supplement
the terms and conditions, if any, upon which we can require you to exchange
shares of any series of preferred stock for junior subordinated debt or other
debt securities. If an exchange is required, you will receive junior
subordinated debt or other debt securities with a principal amount equal to the
liquidation preference of the applicable series of preferred stock. The other
terms will include the terms and provisions of the junior subordinated debt or
other debt securities which will not be materially less favorable to you than
those of the series of preferred stock being exchanged.
Common Stock
Dividends. Holders of record of shares of common stock on the record date
fixed by our board of directors are entitled to receive dividends as declared by
our board of directors out of funds legally available for that purpose. No
dividends may be declared or paid in cash or property on any share of any class
of common stock, however, unless simultaneously the same dividend is declared or
paid on each share of the other classes of common stock. Dividends in the form
of shares of stock of any company, including our company or any of our
subsidiaries, are excepted from that requirement. In that case, the shares may
differ as to voting rights to the extent that voting rights now differ among the
different classes of common stock. In the case of any dividend payable in shares
of common stock, holders of each class of common stock are entitled to receive
the same percentage dividend, payable in shares of that class, as the holders of
each other class. Dividends and other distributions on common stock are also
subject to the rights of holders of any series of preferred stock that may be
outstanding from time to time and under our credit facilities. See "--Dividend
Restrictions" on page 16.
Voting Rights. Except as otherwise required by law and in the election of
directors, and subject to the rights of holders of any series of preferred stock
that may be outstanding from time to time, holders of shares of Class A common
stock and Class B common stock have the exclusive voting rights and will vote as
a single class on all matters submitted to a vote of the stockholders. Each
share of Class A common stock is entitled to one vote and each share of Class B
common stock is entitled to ten votes. The holders of the Class A common stock,
voting as a separate class, have the right to elect two independent directors.
The Class C common stock is nonvoting, except as otherwise required by Delaware
corporate law.
Delaware corporate law requires the affirmative vote of the holders of a
majority of the outstanding shares of any class or series of common stock to
approve, among other things, a change in the designations, preferences and
limitations of the shares of that class or series. The restated certificate,
however, requires the affirmative vote of the holders of not less than 66 2/3%
of the Class A common stock and Class B common stock, voting as a single class,
to amend most of the provisions of the restated certificate, including those
relating to the provisions of the various classes of common stock,
indemnification of directors, exoneration of directors for certain acts and the
super-majority provision.
The restated certificate:
o limits the aggregate voting power of Steven B. Dodge and his controlled
entities to 49.99% of the aggregate voting power of all shares of
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capital stock entitled to vote generally for the election of directors,
less the voting power represented by the shares of Class B common stock
acquired by Thomas H. Stoner, a director, and purchasers affiliated with
him in a January 1998 private offering and owned by them or certain
affiliates,
o prohibits future issuances of Class B common stock, except upon exercise of
then outstanding options and pursuant to stock dividends or stock splits,
o limits transfers of Class B common stock to permitted transferees,
o provides for automatic conversion of the Class B common stock to Class A
common stock if the aggregate voting power of Mr. Dodge, Mr. Stoner and
their respective controlled entities falls below 21.3%, and
o requires the holders of a majority of Class A common stock to approve
amendments adversely affecting the Class A common stock.
Conversion Provisions. Shares of Class B common stock and Class C common
stock are convertible, at any time at the option of the holder, on a share for
share basis into shares of Class A common stock. The present owner of Class C
common stock can convert that stock only upon the occurrence of a conversion
event or with the consent of our board of directors. Shares of Class B common
stock automatically convert into shares of Class A common stock upon any sale,
transfer, assignment or other disposition other than (a) to permitted
transferees, or (b) pursuant to pledges but not to the pledgee upon foreclosure.
Permitted transferees include certain family members and other holders of Class
B common stock.
Liquidation Rights. Upon our liquidation, dissolution or winding up, the
holders of each class of common stock are entitled to share ratably in all
assets available for distribution after payment in full of creditors and payment
in full to any holders of the preferred stock then outstanding of any amount
required to be paid to them.
Other Provisions. The holders of common stock are not entitled to
preemptive or subscription rights. The shares of common stock presently
outstanding are validly issued, fully paid and nonassessable.
In any merger, consolidation or business combination, the holders of each
class of common stock must receive the identical consideration to that received
by holders of each other class of common stock. However, if shares of capital
stock or other securities of any other company are distributed, they may differ
as to voting rights to the same extent that voting rights then differ among the
different classes of our common stock.
No class of common stock may be subdivided, consolidated, reclassified or
otherwise changed unless, concurrently, the other classes of common stock are
subdivided, consolidated, reclassified or otherwise changed in the same
proportion and in the same manner.
Listing of Class A Common Stock. Our Class A common stock is traded on the
NYSE under the symbol "AMT."
Transfer Agent and Registrar. The transfer agent and registrar for our
common stock is Harris Trust and Savings Bank, 311 West Monroe Street, Chicago,
Illinois 60606. Its telephone number is (312) 461-4600.
Dividend Restrictions
Our credit facilities prohibit our borrower subsidiaries from paying cash
dividends or distributions, or from purchasing or otherwise acquiring their
capital stock or other equity interests. However, beginning on April 15, 2004,
if no default exists or would be created under the credit facilities, our
borrower subsidiaries may pay cash dividends or make other distributions of up
to 50% of excess cash flow, for the preceding calendar year.
Delaware Business Combination Provisions
Under Delaware corporate law, certain business combinations, including the
issuance of equity securities, between a Delaware corporation and any
"interested stockholder" must be approved by the holders of at least 66 2/3% of
the voting stock not owned by the interested stockholder if it occurs within
three years of the date the person became an interested stockholders. The voting
requirement does not apply, however, if, before the acquisition, the
corporation's board of directors approved either the business combination or the
transaction which resulted in the person becoming an interested stockholder.
"Interested stockholder" means any person who owns, directly or indirectly,
15.0% or more of the voting power of the corporation's shares
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of capital stock. The provision does not apply to Mr. Dodge because our board of
directors approved the transaction pursuant to which he became an interested
stockholder.
DESCRIPTION OF DEPOSITARY SHARES
General. The description shown below and in any applicable prospectus
supplement of certain provisions of any deposit agreement and of the depositary
shares and depositary receipts representing depositary shares does not purport
to be complete and is subject to and qualified in its entirety by reference to
the forms of deposit agreement and depositary receipts relating to each
applicable series of preferred stock. The deposit agreement and the depositary
receipts contain the full legal text of the matters described in this section.
We will file a copy of those documents with the SEC at or before the time of the
offering of the applicable series of preferred stock. This summary also is
subject to and qualified by reference to the description of the particular terms
of your series of depositary shares described in the applicable prospectus
supplement.
We may, at our option, elect to offer fractional interests in shares of
preferred stock, rather than shares of preferred stock. If we exercise this
option, we will appoint a depositary to issue depositary receipts representing
those fractional interests. Preferred stock of each series represented by
depositary shares will be deposited under a separate deposit agreement between
us and the depositary. The prospectus supplement relating to a series of
depositary shares will show the name and address of the depositary. Subject to
the terms of the applicable deposit agreement, each owner of depositary shares
will be entitled to all of the dividend, voting, conversion, redemption,
liquidation and other rights and preferences of the preferred stock represented
by those depositary shares.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the applicable deposit agreement. Upon surrender of depositary
receipts at the office of the depositary, and upon payment of the charges
provided in and subject to the terms of the deposit agreement, a holder of
depositary shares is entitled to receive the shares of preferred stock
underlying the surrendered depositary receipts.
Dividends and Other Distributions. A depositary will be required to
distribute all cash dividends or other cash distributions received in respect of
the applicable preferred stock to the record holders of depositary receipts
evidencing the related depositary shares in proportion to the number of
depositary receipts owned by the holders. Fractions will be rounded down to the
nearest whole cent.
If the distribution is other than in cash, a depositary will be required to
distribute property received by it to the record holders of depositary receipts
entitled thereto, unless the depositary determines that it is not feasible to
make the distribution. In that case, the depositary may, with our approval, sell
the property and distribute the net proceeds from the sale to the holders.
No distributions will be made on any depositary shares that represent
preferred stock converted or exchanged. The deposit agreement will also contain
provisions relating to the manner in which any subscription or similar rights
offered by us to holders of the preferred stock will be made available to
holders of depositary shares. All distributions are subject to obligations of
holders to file proofs, certificates and other information and to pay certain
charges and expenses to the depositary.
Withdrawal of Preferred Stock. You may receive the number of whole shares of
your series of preferred stock and any money or other property represented by
those depositary receipts after surrendering the depositary receipts at the
corporate trust office of the depositary. Partial shares of preferred stock will
not be issued. If the depositary shares which you surrender exceed the number of
depositary shares that represent the number of whole shares of preferred stock
you wish to withdraw, then the depositary will deliver to you at the same time a
new depositary receipt evidencing the excess number of depositary shares. Once
you have withdrawn your preferred stock, you will not be entitled to re-deposit
that preferred stock under the deposit agreement in order to receive depositary
shares. We do not expect that there will be any public trading market for
withdrawn shares of preferred stock.
Redemption of Depositary Shares. If we redeem a series of the preferred
stock underlying the depositary shares, the depositary shares will be redeemed
from the proceeds received by the depositary resulting from the redemption, in
whole or in part, of the series held by the depositary. The depositary will mail
notice of redemption not less than 30 and not more than 60 days before the date
fixed for redemption to the record holders of the depositary receipts evidencing
the depositary shares we are redeeming at their addresses appearing in the
depositary's books. The redemption price per depositary share will be equal to
the applicable
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fraction of the redemption price per share payable with respect to the series of
the preferred stock. Whenever we redeem shares of preferred stock held by the
depositary, the depositary will redeem as of the same redemption date the number
of depositary shares relating to shares of preferred stock so redeemed. If we
are redeeming less than all of the depositary shares, the depositary will select
the depositary shares we are redeeming by lot or pro rata as the depositary may
determine.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be deemed outstanding. All rights of the holders of
the depositary shares and the related depositary receipts will cease at that
time, except the right to receive the money or other property to which the
holders of depositary shares were entitled upon redemption. Receipt of the money
or other property is subject to surrender to the depositary of the depositary
receipts evidencing the redeemed depositary shares.
Voting of the Preferred Stock. Upon receipt of notice of any meeting at
which the holders of the applicable preferred stock are entitled to vote, a
depositary will be required to mail the information contained in the notice of
meeting to the record holders of the applicable depositary receipts. Each record
holder of depositary receipts on the record date, which will be the same date as
the record date for the preferred stock, will be entitled to instruct the
depositary as to the exercise of the voting rights pertaining to the amount of
preferred stock represented by the holder's depositary shares. The depositary
will try, as practical, to vote the shares as you instruct. We will agree to
take all reasonable action that the depositary deems necessary in order to
enable it to do so. If you do not instruct the depositary how to vote your
shares, the depositary will abstain from voting those shares.
Liquidation Preference. Upon our liquidation, whether voluntary or
involuntary, the holders of each depositary share will be entitled to the
fraction of the liquidation preference accorded each share of preferred stock
represented by the depositary share, as shown in the applicable prospectus
supplement.
Conversion or Exchange of Preferred Stock. The depositary shares will not
themselves be convertible into or exchangeable for common stock, preferred stock
or any of our other securities or property. Nevertheless, if so specified in the
applicable prospectus supplement, the depositary receipts may be surrendered by
holders to the applicable depositary with written instructions to it to instruct
us to cause conversion of the preferred stock represented by the depositary
shares. Similarly, if so specified in the applicable prospectus supplement, we
may require you to surrender all of your depositary receipts to the applicable
depositary upon our requiring the exchange of the preferred stock represented by
the depositary shares into our debt securities. We will agree that, upon receipt
of the instruction and any amounts payable in connection with the conversion or
exchange, we will cause the conversion or exchange using the same procedures as
those provided for delivery of preferred stock to effect the conversion or
exchange. If you are converting only a part of the depositary shares, the
depositary will issue you a new depositary receipt for any unconverted
depositary shares.
Taxation. As owner of depositary shares, you will be treated for U.S.
federal income tax purposes as if you were an owner of the series of preferred
stock represented by the depositary shares. Therefore, you will be required to
take into account for U.S. federal income tax purposes income and deductions to
which you would be entitled if you were a holder of the underlying series of
preferred stock. In addition:
o no gain or loss will be recognized for U.S. federal income tax purposes
upon the withdrawal of preferred stock in exchange for depositary shares as
provided in the deposit agreement,
o the tax basis of each share of preferred stock issued to you as exchanging
owner of depositary shares will, upon exchange, be the same as the
aggregate tax basis of the depositary shares exchanged for the preferred
stock, and
o if you held the depositary shares as a capital asset at the time of the
exchange for preferred stock, the holding period for shares of the
preferred stock will include the period during which you owned the
depositary shares.
Amendment and Termination of a Deposit Agreement. We and the applicable
depositary are permitted to amend the provisions of the depositary receipts and
the deposit agreement. However, the holders of at least a majority of the
applicable depositary shares then outstanding must approve any amendment that
adds or increases fees or charges or prejudices an important right of holders.
Every holder of an outstanding depositary receipt at the time any amendment
becomes effective, by continuing to hold the receipt, will be bound by the
applicable deposit agreement as amended.
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Any deposit agreement may be terminated by us upon not less than 30 days'
prior written notice to the applicable depositary if a majority of each series
of preferred stock affected by the termination consents to the termination. When
that occurs, the depositary will be required to deliver or make available to
each holder of depositary receipts, upon surrender of the depositary receipts
held by the holder, the number of whole or fractional shares of preferred stock
as are represented by the depositary shares evidenced by the depositary
receipts, together with any other property held by the depositary with respect
to the depositary receipts. In addition, a deposit agreement will automatically
terminate if:
o all depositary shares outstanding it shall have been redeemed,
o there shall have been a final distribution in respect of the related
preferred stock in connection with our liquidation and the distribution
shall have been made to the holders of depositary receipts evidencing the
depositary shares underlying the preferred stock, or
o each of the shares of related preferred stock shall have been converted or
exchanged into securities not represented by depositary shares.
Charges of a Depositary. We will pay all transfer and other taxes and
governmental charges arising solely from the existence of a deposit agreement.
In addition, we will pay the fees and expenses of a depositary in connection
with the initial deposit of the preferred stock and any redemption of preferred
stock. However, holders of depositary receipts will pay any transfer or other
governmental charges and the fees and expenses of a depositary for any duties
the holders request to be performed that are outside of those expressly provided
for in the applicable deposit agreement.
Resignation and Removal of Depositary. A depositary may resign at any time
by delivering to us notice of its election to do so. In addition, we may at any
time remove a depositary. Any resignation or removal will take effect when we
appoint a successor depositary and it accepts the appointment. We must appoint a
successor depositary within 60 days after delivery of the notice of resignation
or removal. A depositary must be a bank or trust company having its principal
office in the United States that has a combined capital and surplus of at least
$50 million.
Miscellaneous. A depositary will be required to forward to holders of
depositary receipts any reports and communications from us that are received by
it with respect to the related preferred stock.
Neither a depositary nor we will be liable if it is prevented from or
delayed in performing its obligations under a deposit agreement by law or any
circumstances beyond its control. Our obligations and those of the depositary
under a deposit agreement will be limited to performing their duties in good
faith and without gross negligence or willful misconduct. Neither we nor any
depositary will be obligated to prosecute or defend any legal proceeding in
respect of any depositary receipts, depositary shares or related preferred stock
unless satisfactory indemnity is furnished. We and each depositary will be
permitted to rely on written advice of counsel or accountants, on information
provided by persons presenting preferred stock for deposit, by holders of
depositary receipts, or by other persons believed in good faith to be competent
to give the information, and on documents believed in good faith to be genuine
and signed by a proper party.
If a depositary receives conflicting claims, requests or instructions from
any holders of depositary receipts, on the one hand, and us, on the other hand,
the depositary shall be entitled to act on the claims, requests or instructions
received from us.
DESCRIPTION OF WARRANTS
We may issue, together with any other securities being offered or
separately, warrants entitling the holder to purchase from or sell to us, or to
receive from us the cash value of the right to purchase or sell, debt
securities, preferred stock, depositary shares or common stock. We and a warrant
agent will enter a warrant agreements pursuant to which the warrants will be
issued. The warrant agent will act solely as our agent in connection with the
warrants and will not assume any obligation or relationship of agency or trust
for or with any holders or beneficial owners of warrants. We will file a copy of
the warrants and the warrant agreement with the SEC at or before the time of the
offering of the applicable series of warrants.
In the case of each series of warrants, the applicable prospectus supplement
will describe the terms of the warrants being offered thereby. These include the
following, if applicable:
o the offering price,
o the number of warrants offered,
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o the securities underlying the warrants,
o the exercise price, the procedures for exercise of the warrants and the
circumstances, if any, that will deem the warrants to be automatically
exercised,
o the date on which the warrants will expire,
o federal income tax consequences,
o the rights, if any, we have to redeem the warrant,
o the name of the warrant agent, and
o the other terms of the warrants.
Warrants may be exercised at the appropriate office of the warrant agent or
any other office indicated in the applicable prospectus supplement. Before the
exercise of warrants, holders will not have any of the rights of holders of the
securities purchasable upon exercise and will not be entitled to payments made
to holders of the securities.
The warrant agreements may be amended or supplemented without the consent of
the holders of the warrants to which it applies to effect changes that are not
inconsistent with the provisions of the warrants and that do not adversely
affect the interests of the holders of the warrants. However, any amendment that
materially and adversely alters the rights of the holders of warrants will not
be effective unless the holders of at least a majority of the applicable
warrants then outstanding approve the amendment. Every holder of an outstanding
warrant at the time any amendment becomes effective, by continuing to hold the
warrant, will be bound by the applicable warrant agreement as amended thereby.
The prospectus supplement applicable to a particular series of warrants may
provide that certain provisions of the warrants, including the securities for
which they may be exercisable, the exercise price, and the expiration date, may
not be altered without the consent of the holder of each warrant.
PLAN OF DISTRIBUTION
We may sell the offered securities to one or more underwriters for public
offering and sale by them. We may also sell the offered securities to investors
directly or through agents. We will name any underwriter or agent involved in
the offer and sale of the offered securities in the applicable prospectus
supplement.
The distribution of offered securities may be effected from time to time in
one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to the market
prices, or at negotiated prices. In connection with the sale of offered
securities, underwriters or agents may receive or be deemed to have received
compensation from us or from purchasers in the form of underwriting discounts,
concessions or commissions. Underwriters may sell offered securities to or
through dealers, and dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters or from purchasers.
We will show any underwriting compensation paid by us to underwriters or
agents in connection with the offering of offered securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers, in
the applicable prospectus supplement. Underwriters, dealers and agents
participating in the distribution of the offered securities may be deemed to be
underwriters. Any discounts, concessions and commissions received by them and
any profit realized by them on resale of the offered securities may be deemed to
be underwriting discounts and commissions, under the Securities Act of 1933.
Underwriters, dealers and agents may be entitled, under agreements entered into
with us, to indemnification against and contribution toward certain civil
liabilities, including liabilities under the Securities Act.
If so indicated in the applicable prospectus supplement, we will authorize
underwriters or other persons acting as our agents to solicit offers by certain
institutions to purchase offered securities from us at the public offering price
shown in the applicable prospectus supplement pursuant to contracts providing
for payment and delivery on a future date or dates. Institutions with whom
contracts may be made include commercial and savings banks, insurance companies,
pension funds, investment companies, educational and charitable institutions,
and other institutions. We are required to approve any contracts and the
institutions that may become parties to them. Any contracts will be subject to
the condition that the purchase by an institution of the offered securities will
not at the time of delivery be prohibited under the law of any jurisdiction in
the United States to which the institution is subject. If a portion of the
offered securities is being sold to underwriters, the contract may also be
subject to the condition that we will have sold to the underwriters the offered
securities not sold for delayed delivery. The underwriters and the other persons
will not have
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any responsibility in respect of the validity or performance of the contracts.
Unless otherwise specified in the related prospectus supplement, each series
of offered securities, other than shares of Class A common stock, will be a new
issue with no established trading market. Our Class A common stock is listed on
the NYSE and traded under the symbol "AMT." Any shares of Class A common stock
sold pursuant to a prospectus supplement will be listed on the NYSE, subject to
official notice of issuance. We may elect to list any other series or class of
offered securities on an exchange or on the Nasdaq National Market, but are not
obligated to do so. Any underwriters to whom offered securities are sold by us
for public offering and sale may make a market in those offered securities.
Underwriters will not be obligated to make any market, however, and may
discontinue any market making at any time without notice. No assurance can be
given as to the liquidity of or the trading markets for any offered securities.
Certain of the underwriters and their affiliates may engage in transactions
with and perform services for us in the ordinary course of business for which
they receive compensation.
The specific terms and manner of sale of the offered securities will be
shown or summarized in the applicable prospectus supplement.
VALIDITY OF THE OFFERED SECURITIES
Sullivan & Worcester LLP, Boston, Massachusetts, will pass upon the validity
of the offered securities for us. As of June 1, 2000, Norman A. Bikales, a
member of the firm of Sullivan & Worcester LLP, owned 11,000 shares of our Class
A common stock and 41,490 shares of Class B common stock and had options to
purchase 20,000 shares of Class A common stock at $10.00 per share and 25,000
shares of Class A common stock at $23.813 per share. Mr. Bikales and associates
of that firm serve as secretary or assistant secretaries of us and certain of
our subsidiaries.
EXPERTS
The consolidated financial statements of American Tower Corporation
incorporated in this prospectus by reference from our Annual Report on Form 10-K
for the year ended December 31, 1999 have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and has been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
We are incorporating the following financial statements by reference in this
prospectus from our Form 8-K dated March 30, 2000:
o The consolidated financial statements of UNIsite, Inc. and subsidiaries as
of December 31, 1999 and 1998 and for the three years ended December 31,
1999 have been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG LLP, independent certified
public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
o The consolidated financial statements of ICG Satellite Services, Inc. and
subsidiary as of November 30, 1999 and for the eleven months ended November
30, 1999 have been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG LLP, independent certified
public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any reports, statements or other
information on file at the SEC's public reference room at 450 Fifth Street,
N.W., Washington, D.C. 20549. You can request copies of those documents upon
payment of a duplicating fee to the SEC. You may also review a copy of the
registration statement at the SEC's regional offices in Chicago, Illinois and
New York, New York. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the public reference rooms. You can review our
SEC filings and the registration statement by accessing the SEC's Internet site
at http://www.sec.gov.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus. Statements in this prospectus regarding the
contents of any contract or other document may not be complete. You should refer
to the copy of the contract or other document filed as an exhibit to the
registration statement. Later information filed with the SEC will update and
supersede information we have included or incorporated by reference in this
prospectus.
We incorporate by reference the documents listed below and any filings made
after the date of the original filing of the registration statement of which
this prospectus is a part made with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 until our offering is completed or
terminated:
o our Annual Report on Form 10-K for the fiscal year ended December 31, 1999,
o our Quarterly Report on Form 10-Q for the quarter ended March 31, 2000,
o our Current Reports on Form 8-K dated January 28, 2000, January 31, 2000,
February 9, 2000, February 24, 2000, March 14, 2000, March 30, 2000, April
13, 2000, May 15, 2000 and May 23, 2000, and
o the description of our Class A common stock contained in our registration
statement on Form 8-A (File No. 001-14195), filed on June 4, 1998.
We will provide you with a copy of the information we have incorporated by
reference, excluding exhibits other than those to which we specifically refer.
You may obtain this information at no cost by writing or telephoning us at: 116
Huntington Avenue, Boston, Massachusetts 02116, (617) 375-7500, Attention:
Director of Investor Relations.
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