As filed with the Securities and Exchange Commission on August 4, 2000
Registration No. 333-39030
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
To
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMERICAN TOWER CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 4899 65-0723837
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or Industrial jurisdiction Identification No.)
organization) Classification Code Number)
116 Huntington Avenue, Boston, Massachusetts 02116
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
STEVEN B. DODGE
American Tower Corporation
116 Huntington Avenue
Boston, Massachusetts 02116
(617) 375-7500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
NORMAN A. BIKALES, ESQ.
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 338-2800
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement as determined in
light of market conditions and other factors.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
THE PROSPECTUS CONTAINED HEREIN IS A COMBINED PROSPECTUS PURSUANT TO RULE 429(A)
OF THE RULES AND REGULATIONS UNDER THE SECURITIES ACT OF 1933, AS AMENDED, WHICH
ALSO RELATES TO (I) $300 MILLION AGGREGATE ORIGINAL PRINCIPAL AMOUNT OF THE
COMPANY'S 6.25% CONVERTIBLE NOTES DUE 2009 AND THE 12,295,081 SHARES OF CLASS A
COMMON STOCK ISSUABLE UPON CONVERSION THEREOF INCLUDED IN THE COMPANY'S
REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-89345), (II) $425.5 MILLION
AGGREGATE ORIGINAL PRINCIPAL AMOUNT OF THE COMPANY'S 2.25% CONVERTIBLE NOTES DUE
2009 AND THE 12,502,609 SHARES OF CLASS A COMMON STOCK ISSUABLE UPON CONVERSION
THEREOF INCLUDED IN THE COMPANY'S REGISTRATION STATEMENT ON FORM S-3 (FILE NO.
333-89345), AND (III) $450 MILLION AGGREGATE ORIGINAL PRINCIPAL AMOUNT OF THE
COMPANY'S 5.0% CONVERTIBLE NOTES DUE 2010 AND THE 8,737,864 SHARES OF CLASS A
COMMON STOCK ISSUABLE UPON CONVERSION THEREOF INCLUDED IN THE COMPANY'S
REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-35412).
--------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
We will amend and complete the information in this prospectus. Although we are
permitted by U.S. federal securities laws to offer these securities using this
prospectus, we may not sell them or accept your offer to buy them until the
documentation filed with the SEC relating to these securities has been declared
effective by the SEC. This prospectus is not an offer to sell these securities
or our solicitation of your offer to buy these securities in any jurisdiction
where that would not be permitted or legal.
SUBJECT TO COMPLETION, DATED AUGUST 4, 2000
PROSPECTUS
[LOGO]
$212,742,000 $352,396,000 $450,000,000 2,000,000 Shares
6.25% Convertible Notes 2.25% Convertible Notes 5.00% Convertible Notes Class A Common Stock
Due 2009 Due 2009 Due 2010 $.01 par value
This prospectus relates to:
o $212,742,000 principal amount of 6.25% convertible notes due 2009,
o $352,396,000 principal amount at maturity of 2.25% convertible notes
due 2009,
o $450,000,000 principal amount of 5.00% convertible notes due 2010,
o the 27,811,365 shares of Class A common stock currently issuable upon
conversion or exchange of the notes, plus an additional indeterminate
number of shares that may become issuable upon conversion of the notes
due to adjustment of the conversion price, and
o up to 2,000,000 shares of Class A common stock that may be issued to
certain note holders to induce them to convert or exchange their
notes.
The notes and the Class A common stock are offered for resale by their
holders. The notes were initially acquired from us in October 1999 and February
2000 in connection with two private offerings by groups of investment banking
firms who resold the notes pursuant to Rule 144A.
You may convert the 6.25% notes at any time prior to maturity into
shares of our Class A common stock at a conversion price of $24.40 per share of
Class A common stock. This means that we will deliver 40.9836 shares of Class A
common stock for each $1,000 principal amount of the 6.25% notes you convert. We
will pay interest on the 6.25% notes on April 15 and October 15 of each year,
commencing on April 15, 2000.
You may convert the 2.25% notes at any time prior to maturity into
shares of our Class A common stock at a conversion price of $24.00 per share of
Class A common stock, based on the issue price of 70.52% of the principal amount
at maturity. This means that we will deliver 29.3833 shares of Class A common
stock for each $1,000 principal amount at maturity of the 2.25% notes you
convert. We will pay interest on the 2.25% notes on April 15 and October 15 of
each year, commencing on April 15, 2000.
You may convert the 5.00% notes at any time prior to maturity into
shares of our Class A common stock at a conversion price of $51.50 per share of
Class A common stock. This means that we will deliver 19.4175 shares of Class A
common stock for each $1,000 principal amount of the 5.00% notes you convert. We
will pay interest on the 5.00% notes on February 15 and August 15 of each year,
commencing on August 15, 2000.
We may redeem the 6.25% notes on or after October 22, 2002. You may
require us to repurchase the 6.25% notes at a price of $1,000 each on October
22, 2006. We may redeem the 2.25% notes on or after October 22, 2003. You may
require us to repurchase the 2.25% notes at a price of $802.93 each on October
22, 2003. We may redeem the 5.00% notes on or after February 20, 2003. You may
require us to repurchase the 5.00% notes at a price of $1,000 each on February
20, 2007. In the case of a repurchase of notes, we have the right to issue
shares of our Class A common stock, rather than to pay cash. In addition, you
may require us to repurchase the notes of each series upon a change in control.
There is no sinking fund for any of the notes.
Our Class A common stock is listed on the New York Stock Exchange under
the symbol "AMT." The last reported sale price of the Class A common stock on
the New York Stock Exchange on August 3, 2000 was $43.4375 per share.
Investing in the notes involves risks. See "Risk Factors" beginning on
page 6.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is , 2000.
TABLE OF CONTENTS
Summary..........................................1 Selling Securityholders...................................30
Risk Factors.....................................6 Certain Federal Income Tax Consequences...................36
Selected Financial Data.........................10 Plan of Distribution......................................45
Use of Proceeds.................................13 Legal Matters.............................................46
Certain Exchange Transactions...................14 Experts...................................................47
Description of the Notes........................15 About This Prospectus.....................................47
Description of Certain Indebtedness.............25 Where You Can Find More Information.......................47
Description of Capital Stock....................27 Cautionary Note Regarding Forward-Looking Statements......48
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You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized anyone to provide you with
any different information. You may use this prospectus only where it is legal to
sell these securities. The information in this prospectus may only be accurate
on the date of this prospectus.
-i-
SUMMARY
This summary highlights selected information about us. You should read
this entire prospectus carefully, including the "Risk Factors" section beginning
on page 6 and the financial statements, which are incorporated by reference
from our 1999 Annual Report on Form 10-K, our Quarterly Reports on Form 10-Q
dated May 17, 1999 and May 15, 2000, and our Current Reports on Form 8-K, dated
March 30, 2000 and May 15, 2000.
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 10,000 multi-user sites in
the United States, Mexico and Canada, including approximately
300 broadcast tower sites.
o We provide comprehensive network development services and
components 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. We also offer a complete line of
wireless infrastructure components and fabricate steel used
for broadcast towers and other structures.
o We are a leading provider of domestic and international
satellite and Internet protocol network transmission services
worldwide. 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 Satellite and Internet protocol network transmission
services--20.0%.
THE OFFERINGS
The Notes
Notes offered................. The selling securityholders may from time to
time offer the following notes: $212,742,000
principal amount of 6.25% Convertible Notes
Due 2009, $352,396,000 principal amount at
maturity of 2.25% Convertible Notes Due 2009,
and $450,000,000 principal amount of 5.0%
Convertible Notes Due 2010.
Issue price................... 100% plus accrued interest, if any, from the
date of issue in the case of the 6.25% notes
and the 5.0% notes. 70.52% plus accrued
interest, if any, from the date of issue in
the case of the 2.25% notes.
Interest...................... 6.25% notes: 6.25% per annum on the principal
amount, payable semiannually in arrears in
cash on April 15 and October 15 of each year,
beginning April 15, 2000.
2.25% notes: 2.25% per annum on the principal
amount, payable semiannually in arrears in cash
on April 15 and October 15 of each year,
beginning April 15, 2000.
5.00% notes: 5.00% per annum on the principal
amount, payable semiannually in arrears in cash
on February 15 and August 15 of each year,
beginning August 15, 2000.
Yield to maturity............. 6.25% notes: 6.25% per annum calculated on a
semiannual basis from October 4, 1999.
2.25% notes: 6.25% per annum, calculated on a
semiannual basis giving effect both to accrued
original issue discount and to accrued interest
from October 4, 1999.
5.00% notes: 5.00% per annum calculated on a
semiannual basis from February 15, 2000.
Conversion rights............. 6.25% notes: You may convert the 6.25% notes,
unless we have redeemed or purchased them, at
any time on or before October 15, 2009. The
6.25% notes are convertible into shares of
Class A common stock at a conversion price of
$24.40 per share. We will deliver 40.9836
shares of Class A common stock for each $1,000
principal amount of 6.25% notes. Upon
conversion you will not receive any cash
payment representing accrued interest.
2.25% notes: You may convert the 2.25% notes,
unless we have redeemed or purchased them, at
any time on or before October 15, 2009. The
2.25% notes are convertible into shares of
Class A common stock at a conversion price of
$24.00 per share. We will deliver 29.3833
shares of Class A common stock for each $1,000
principal amount at maturity of 2.25% notes. We
will not adjust the conversion rate for accrued
original issue discount or interest. Upon
conversion, you will not receive any cash
payment representing accrued original issue
discount or interest.
5.00% notes: You may convert the 5.00% notes,
unless we have redeemed or purchased them, at
any time on or before February 15, 2010. The
5.00% notes are convertible into shares of
Class A common stock at a conversion price of
$51.50 per share. We will deliver 19.4175
shares of Class A common stock for each $1,000
principal amount of 5.00% notes. Upon
conversion you will not receive any cash
payment representing accrued interest.
-2-
The conversion rate of all three series of
notes is subject to adjustment in certain
events.
Maturity date................. October 15, 2009 in the case of the 6.25%
notes and the 2.25% notes, and February 15,
2010 in the case of the 5.00% notes.
Change in control............. If a change in control of our company occurs,
you may require us to purchase your notes for
cash at a price equal to the principal amount,
in the case of the 6.25% notes and 5.00%
notes, and the issue price plus accrued
original issue discount in the case of the
2.25% notes. In each case we will also be
required to pay accrued and unpaid interest.
Our existing credit facilities restrict making
these change in control payments without
lender consent.
Optional redemption........... 6.25% notes: We will not be able to redeem the
6.25% notes prior to October 22, 2002.
Thereafter, we can 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.
2.25% notes: We will not be able to redeem the
2.25% notes prior to October 22, 2003.
Thereafter, we can redeem those notes, at our
option, in whole or in part at increasing
redemption prices designed to reflect the
accrued original issue discount.
5.00% notes: We will not be able to redeem the
5.00% notes prior to February 20, 2003.
Thereafter, we can 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.
In each case we are also required to pay
accrued and unpaid interest upon redemption.
Repurchase of notes at your
option........................ 6.25% notes: You may require us to repurchase
all or any of your 6.25% notes on October 22,
2006 at their principal amount, together with
accrued and unpaid interest.
2.25% notes: You may require us to repurchase
all or any of your 2.25% notes on October 22,
2003 at $802.93, which is its issue price plus
accrued original issue discount, together with
accrued and unpaid interest.
5.00% notes: You may require us to repurchase
all or any of your 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 each series in cash or
shares of Class A common stock, or any
combination thereof. Our credit facilities
restrict our ability to repurchase the notes
for cash.
Sinking fund.................. None.
-3-
Original issue discount
on 2.25% notes................ Each 2.25% note was issued with original issue
discount for federal income tax purposes. The
amount of the discount is the difference
between the principal amount of the 2.25% note
at maturity and its issue price. You should be
aware that accrued original issue discount
will be includable periodically in your gross
income for federal income tax purposes before
conversion, redemption, other disposition or
maturity of your 2.25% notes, whether or not
those notes are ultimately converted,
redeemed, sold to us or others or paid at
maturity.
Ranking....................... The notes of all three series will rank
equally with one another. Each series will
effectively rank junior to indebtedness
outstanding under the credit facilities since
that indebtedness is issued by our
subsidiaries and is secured, directly or
indirectly through guarantees, by the assets
of our subsidiaries. That indebtedness is also
guaranteed by us and secured by our assets.
Class A Common Stock
Class A common stock offered.. We may from time to time offer up to 2,000,000
additional shares of Class A common stock to
certain note holders to induce them to convert
or exchange their notes. We would also issue
the shares of Class A common stock issuable
upon conversion in those transactions. The
selling securityholders may from time to time
offer these additional shares and conversion
shares for resale.
Voting rights................. The Class A common stock and the Class B
common stock generally vote as a single class.
Class A common stock has one vote per share
and Class B common stock has ten votes per
share. The Class A common stock, voting as a
separate class, is entitled to elect two
independent directors. Delaware corporate law
and our charter also require class votes on
some matters. Approximately 39.61% of the
total voting power will be owned by Steven B.
Dodge and other executive officers and
directors, together with their affiliates,
after this offering. The Class C common stock
is generally nonvoting.
Other rights.................. Each class of common stock has the same rights
to dividends upon liquidation. The Class B
common stock and the Class C common stock are
convertible into Class A common stock on a
share-for-share basis. The Class B common
stock cannot be sold or transferred, except to
certain categories of persons specified in our
charter. The Class B common stock
automatically converts into Class A common
stock upon the occurrence of certain events.
Resale........................ If you are a broker or dealer who acquired
notes as a market maker or in other trading
activity, or if you are our affiliate, and you
exchange those notes for Class A common stock
pursuant to a negotiated transaction with us,
you will be required to deliver a prospectus
in connection with the resale of the Class A
common stock received in exchange for those
notes. See "Plan of Distribution" on page 45.
Common stock outstanding(l)... 168,324,408 shares of Class A common stock
8,232,303 shares of Class B common stock
2,267,813 shares of Class C common stock
-----------
178,824,524 shares of common stock
===========
General
Registration rights........... We have agreed to keep the SEC registration
statement that includes this prospectus
useable, with respect to the 6.25% notes, the
2.25% notes and the Class A common stock
issuable upon their conversion, until October
4, 2001, and with
-4-
respect to the 5.00% notes and the Class A
common stock issuable upon their conversion,
until February 15, 2002, or, in each case, any
shorter period permitted under the SEC rules
permitting unregistered resales of privately
placed securities. If we are not in compliance
with this requirement for any series of notes,
the interest rate on those notes will
increase.
Use of proceeds............... We will not receive any of the cash proceeds
from sales of the notes or the shares issued
on conversion or exchange of the notes by the
selling securityholders. In consideration of
the issuance of Class A common stock in
privately negotiated exchange transactions
with certain note holders, we will receive the
notes surrendered by those holders. The net
proceeds of approximately $1.0 billion
received from the initial sale of the notes
were used to repay bank borrowings, to finance
tower construction and acquisitions, and for
general working capital purposes.
Trading....................... The notes are not listed and trade on the
over-the-counter market. The Class A common
stock is listed on the NYSE under the symbol
"AMT."
(1) The number of shares of common stock outstanding was determined as of
July 19, 2000. This number does not include shares we may issue in the
future. Examples of these future issuances include: (a) shares of Class
A common stock issuable upon conversion of Class B common stock or
Class C common stock, (b) shares issuable upon exercise of options
outstanding on May 1, 2000 to purchase an aggregate of 16,760,882
shares of common stock, (c) 3,000,000 shares of Class A Common Stock
issuable upon exercise of warrants issued in the AirTouch transaction,
(d) shares issuable upon consummation of certain pending transactions,
(e) 19,073,490 shares of Class A common stock issuable upon conversion
of 6.25% notes and 2.25% notes, (f) 8,737,875 shares of Class A common
stock issuable upon conversion of the 5.00% notes, and (g) the
2,000,000 shares of Class A common stock that may be issued to induce
conversion or exchange of notes.
-5-
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 which are essential for our long-term success. 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.
Failure to meet our large debt payments could require us to sell securities or
assets on unfavorable terms
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 to sell some of our core assets. This could be
harmful to our business and to our securityholders. Market conditions or our own
financial situation may require us to make these sales on unattractive terms.
Decrease in demand for tower space would materially and adversely affect our
cash flow and we cannot control that demand
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 antenna 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 increased use of roaming and resale arrangements by service
providers,
o zoning, environmental and other government regulations, and
o technological changes.
Build-to-suit construction projects increase our dependence on a limited number
of customers
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
-6-
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 program increases our exposure to uncontrollable risks
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.
Increasing competition poses problems for our construction and acquisition
programs
Increased competition, which we believe will continue, has resulted in
substantially higher acquisition costs, particularly for towers being sold by
wireless service providers. That competition has also raised construction site
acquisition costs and created shortages for experienced tower construction
personnel. Because of personnel shortages, we could experience failures to meet
time schedules. Failures to meet time schedules could result in our paying
significant penalties to prospective tenants, particularly in build-to-suit
situations.
Our acquisition strategy involves potential management and integration issues
The increased size of our acquisitions from wireless service providers,
which often involve major build-to-suit arrangements, could create certain
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 the acquisition of significant numbers of towers that, because
of location or age, may have limited marketing potential.
Covenants in our credit facilities restrict our ability to redeem the notes
Our credit facilities prohibit us from redeeming or repurchasing any of
the notes for cash. This will probably require us to elect to repurchase the
notes with Class A common stock on the repurchase dates and to obtain lender
consent in order to repurchase notes upon any change in control.
-7-
We are dependent on our chief executive officer and would be hurt if he left
The loss of our chief executive officer, Steven B. Dodge, 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. Our ability to raise capital is also dependent to a
significant extent on the reputation of Mr. Dodge. You should be aware that we
have not entered into employment agreements with Mr. Dodge.
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.
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. 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 by the carriers and our own experience with
comparable towers. Neither our auditors, AirTouch's auditors, AT&T's auditors
nor the initial purchasers of the notes 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.
-8-
The notes will effectively rank junior to secured debt under our credit
facilities
Our payment of principal and interest on the notes 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. The notes 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
the notes.
There may not be any trading market for the notes
No existing trading market for the notes exists and one may never
develop. Accordingly, you may not be able to sell your notes or sell them at an
acceptable price. If a market were to develop, the notes could trade at prices
that may be higher or lower than your purchase price depending on many factors,
including prevailing interest rates, the market price of the Class A common
stock, our operating results and the market for similar securities. We do not
intend to list the notes on any securities exchange or to seek approval for
quotation through any automated quotation system. The initial purchasers of the
notes have advised us that they currently intend to make a market in the notes.
They are not, however, obligated to do so and may discontinue market making at
any time. Therefore, any liquidity may disappear and the notes may not be
readily marketable.
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 Class A 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.
-9-
SELECTED FINANCIAL DATA
We have derived the following selected financial data from our
historical consolidated financial statements. The selected financial data should
be read in conjunction with those financial statements. Prior to our separation
from American Radio on June 4, 1998, we operated as its subsidiary and not as an
independent public company. Therefore, our results of operations for that period
may be different from what they would have been had we operated as a separate,
independent company. The information is not necessarily indicative of our future
results of operations or financial condition.
Year-to-year comparisons are significantly affected by our acquisitions
and construction of towers, both of which have been numerous during the periods
presented. See our historical financial statements for a description of our
principal acquisitions.
We use certain terms as follows:
o divisional cash flow means income (loss) from operations
before depreciation and amortization, tower separation
expense, development expense and corporate general and
administrative expense, plus interest income, TV Azteca, net,
o development expense means the costs incurred in connection
with the integration of acquisitions and development of new
business initiatives,
o tower separation expense means the one-time expenses incurred
as a result of our separation from American Radio,
o EBITDA means income (loss) from operations before depreciation
and amortization and tower separation expense, plus interest
income, TV Azteca, net, and
o after-tax cash flow means income (loss) before extraordinary losses, plus
depreciation and amortization.
We do not consider divisional cash flow, EBITDA and after-tax cash flow
to be substitutes for other measures of operating results or cash flow from
operating activities or as measures of our profitability or liquidity. These
measures of performance are not calculated in accordance with generally accepted
accounting principles. However, we have included them because they are generally
used in the communications site industry as a measure of a company's operating
performance. More specifically, we believe they can assist in comparing company
performances on a consistent basis without regard to depreciation and
amortization. Our concern is that depreciation and amortization can vary
significantly among companies depending on accounting methods, particularly
where acquisitions are involved, or on non-operating factors including
historical cost bases. We believe divisional cash flow is useful because it
enables you to compare divisional performances before the effect of tower
separation, development, and corporate general and administrative expenses that
do not relate directly to performance.
-10-
Selected Financial Data
July 17, 1995 Three Months
Year ended through Ended
December 31, December 31, March 31,
---------------------------------------------- ------------- ------------
1999 1998 1997 1996 1995(1) 2000 1999
--------- ---------- --------- -------- -------- --------- ---------
(in thousands, except per share data)
Statements of Operations Data:
Operating revenues.......................$ 258,081 $ 103,544 $ 17,508 $ 2,897 $ 163 $ 115,517 $ 42,408
--------- ---------- --------- -------- -------- --------- ---------
Operating expenses:
Operating expenses excluding
depreciation and amortization,
tower separation, development and
corporate general and
administrative expenses............ 155,857 61,751 8,713 1,362 60 79,708 24,961
Depreciation and amortization........ 132,539 52,064 6,326 990 57 55,198 24,669
Tower separation expense............. 12,772
Development expense(2)............... 1,607 988 267
Corporate general and administrative
expense............................ 9,136 5,099 1,536 830 230 3,431 1,782
--------- ---------- --------- -------- -------- --------- ---------
Total operating expenses........... 299,139 131,686 16,575 3,182 347 139,325 51,679
--------- ---------- --------- -------- -------- --------- ---------
(Loss) income from operations............ (41,058) (28,142) 933 (285) (184) (23,808) (9,271)
Interest expense......................... (27,492) (23,229) (3,040) (32,150) (6,001)
Interest income and other, net........... 19,551 9,217 251 36 2,586 4,949
Interest income, TV Azteca net of
interest expense of $160 (related party) 2,308
Minority interest in net earnings of
subsidiaries(3)........................ (142) (287) (193) (185) (36) (3)
--------- ---------- --------- -------- -------- --------- ---------
Loss before income taxes and
extraordinary losses................... (49,141) (42,441) (2,049) (434) (184) (51,100) (10,326)
Benefit (provision) for income taxes..... (214) 4,491 473 (45) 74 13,440 826
--------- ---------- --------- -------- ------- --------- ---------
Loss before extraordinary losses.........$ (49,355) $ (37,950) $ (1,576) $ (479) $ (110) $ (37,660) $ (9,500)
========= =========- ========= ======== ======== ========= =========
Basic and diluted loss per common share
before extraordinary losses(4)......... $ (0.33) $ (0.48) $ (0.03) $ (0.01) $ (0.00) $ (0.24) $ (0.07)
========= =========- ========= ======== ======== ========= =========
Basic and diluted weighted average common
shares outstanding(4).................. 149,749 79,786 48,732 48,732 48,732 156,515 131,269
========= =========- ========= ======== ======== ========= =========
Other Operating Data:
Ratio of earnings to fixed charges(5)...
Tower cash flow......................... $ 102,224 $ 41,793 $ 8,795 $ 1,535 $ 103 $ 38,117 $ 17,447
EBITDA ................................. 91,481 36,694 7,259 705 (127) 33,698 15,398
EBITDA margin........................... 35.4% 35.4% 41.5% 24.3% (N/A) 28.6% 36.3%
After-tax cash flow..................... 83,184 14,114 4,750 511 (53) 17,538 15,169
Cash provided by (used for) operating
activities............................ 97,011 18,429 9,913 2,230 (51) (12,429) 8,568
Cash used for investing activities......(1,137,700) (350,377) (216,783) (900,242) (156,153)
Cash provided by financing activities... 879,726 513,527 209,092 132 63 1,028,192 444,673
Balance Sheet Data:
Cash and cash equivalents................$ 25,212 $ 186,175 $ 4,596 $ 2,373 $ 12 $ 140,733 $ 483,263
Working capital (deficiency), excluding
current portion of long-term debt..... 19,156 93,602 (2,208) 663 (40) 129,814 476,019
Property and equipment, net..............1,092,346 449,476 117,618 19,710 3,759 1,668,854 642,638
Total assets.............................3,018,866 1,502,343 255,357 37,118 3,863 4,255,140 2,528,537
Long-term debt, including current portion 740,822 281,129 90,176 4,535 1,883,607 287,871
Total stockholders' equity...............2,145,083 1,091,746 153,208 29,728 3,769 2,176,423 2,162,576
(1) We were organized on July 17, 1995.
(2) Development expenses prior to 1999 were immaterial.
(3) Represents the minority interest in net earnings of our non-wholly-owned subsidiaries.
(4) Basic and diluted loss per common share before extraordinary losses have been computed using the weighted average number of
shares outstanding during each period presented. Shares outstanding following consummation of our separation from American
Radio are assumed to be outstanding for all periods prior to June 4, 1998. Shares issuable upon exercise of options and other
common stock equivalents have been excluded from the computations as the effect is anti-dilutive.
(5) 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
-11-
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. For each of the periods listed below, our ratio of earnings to fixed charges was less that 1:1. We had a deficiency in
earnings to fixed charges in each period as follows (in thousands): 1995--$184; 1996--$434; 1997--$2,507; 1998--$43,844;
1999--$52,520, and for the three months ended March 31, 2000--$53,595.
-12-
USE OF PROCEEDS
We will not receive any of the cash proceeds from sales of the notes or
the shares issued on conversion or exchange of the notes by the selling
securityholders. In consideration of the issuance of Class A common stock in
privately negotiated exchange transactions with certain note holders, we will
receive the notes surrendered by those holders. The net proceeds of
approximately $1.0 billion received from the initial sale of the notes were used
to repay bank borrowings, to finance tower construction and acquisitions, and
for general working capital purposes.
-13-
CERTAIN EXCHANGE TRANSACTIONS
Under certain market conditions, we may determine that conversion or
exchange of all or some portion of the notes into shares of Class A common stock
would provide us with a more favorable capital structure. It would, for example,
reduce the amount of our debt and interest expense. Under those conditions we
may negotiate private transactions with individual note holders to provide them
with incentive to convert or exchange their notes for shares of Class A common
stock. This prospectus includes 2,000,000 shares of our Class A common stock
which, in addition to the shares issuable upon conversion, may be issued
pursuant to those transactions.
-14-
DESCRIPTION OF THE NOTES
The notes have been issued under three separate indentures, dated as of
October 4, 1999 in the case of the 6.25% notes and 2.25% notes, and dated as of
February 15, 2000 in the case of the 5.00% notes, between us and The Bank of New
York, as trustee. We have filed a copy of each indenture as an exhibit to the
registration statement of which this prospectus is a part. Wherever particular
provisions of an indenture are referred to, we incorporate those provisions by
reference as a part of the statements made. We qualify the statements in their
entirety by that reference. We use certain terms defined in the indentures in
this section without definitions.
General
The notes represent our unsecured general obligations convertible into
Class A common stock as described under "Conversion." The currently outstanding
principal amount of the 6.25% notes is $212,742,000. The currently outstanding
principal amount of the 2.25% notes at maturity is $352,396,000. The currently
outstanding principal amount of the 5.00% notes is $450,000,000. Notes of each
series may be in fully registered form only in denominations of $1,000 or any
multiple thereof. Unless we redeem them or you convert them earlier, the 6.25%
notes and 2.25% notes mature on October 15, 2009 and the 5.00% notes mature on
February 15, 2010.
The indentures do not contain any restrictions on the payment of
dividends, the incurrence of debt or the repurchase of our equity securities or
any financial covenants.
The notes bear interest at the respective annual rates set forth on the
cover page of this prospectus from their issue date. Interest on the 6.25% notes
and 2.25% notes is payable semiannually on April 15 and October 15 of each year,
commencing on April 15, 2000, to holders of record at the close of business on
the preceding March 31 and September 30. Interest on the 5.00% notes is payable
semiannually on February 15 and August 15 of each year, commencing on August 15,
2000, to holders of record at the close of business on the preceding January 31
and July 31. We may pay interest by mailing a check to note holders.
We will make payment of principal and any premium, and you may present
the notes for conversion, registration of transfer and exchange, without service
charge, at the office of our paying agent, initially the trustee, in New York,
and at the corporate trust office of the trustee in New York.
The 2.25% notes were issued at 70.52% of their principal amount at
maturity. The federal income tax consequences of this discount are discussed
under "Certain Federal Income Tax Consequences-Tax Consequences for U.S.
Holders-Original Issue Discount on the 2.25% Notes" on page 37. Original issue
discount means the difference between the issue price of the 2.25% notes and
their principal amount at maturity. The calculation of the accrual of original
issue discount in the period during which a 2.25% note remains outstanding will
be on a semiannual bond equivalent basis, using a 360-day year composed of
twelve 30-day months. The accrual began on October 4, 1999, the first date of
issuance of 2.25% notes.
Conversion
You will be entitled to convert your notes, in denominations of $1,000
principal amount at maturity or multiples thereof, at any time, into shares of
Class A common stock. You determine the number of shares of Class A common stock
issuable upon conversion by dividing the issue price of the notes surrendered
for conversion by the conversion price. The conversion price is shown on the
cover of this prospectus.
Upon conversion, you will not be entitled to any payment or adjustment
on account of accrued and unpaid interest on notes. Our delivery to you of the
fixed number of shares of Class A common stock into which the note is
convertible, together with cash in lieu of any fractional share, will be deemed
to satisfy our obligation to pay principal and accrued interest on the notes to
the date of conversion. Accrued interest is deemed to be paid in full rather
than canceled, extinguished or forfeited.
If you surrender notes for conversion during the period after any
interest record date and prior to the corresponding interest payment date, you
must pay us the interest payable on those notes, unless they have been
-15-
called for redemption on a redemption date within the period on the interest
payment date. You may not convert notes called for redemption after the close of
business on the business day preceding the date fixed for redemption, unless we
default in payment of the redemption price. We will not issue fractional shares
of Class A common stock on a conversion. Rather, we will pay the converting
holder cash equal to the fair market value of the fractional interest, unless
payment in cash is prohibited by our indebtedness. In that case we will issue
fractional shares.
With respect to the notes that are no longer restricted securities on
the conversion date, shares of Class A common stock issued on conversion of
notes will be freely transferable without restriction under the Securities Act,
other than by our affiliates. Those shares will be eligible for receipt in
global form through the facilities of the depositary.
The initial conversion price per share of Class A common stock is
subject to adjustment in certain events, including upon the occurrence of an
adjustment event. We use the term adjustment event to mean the following:
o the issuance of Class A common stock as a dividend or
distribution on Class A common stock,
o certain subdivisions and combinations of the Class A common
stock,
o the issuance to all holders of Class A common stock of certain
rights or warrants to purchase Class A common stock, and
o the distribution to all holders of Class A common stock of
shares of our capital stock, other than Class A common stock,
evidences of our indebtedness or other assets, including
securities. Excluded from the foregoing are shares of Class A
common stock and rights, warrants, dividends and distributions
referred to above and dividends and distributions in
connection with our liquidation or paid in cash.
To the extent permitted by law, we may reduce the conversion price by any amount
for any period of at least 20 days if our board of directors determines that the
reduction would be in our best interests. We may also reduce the conversion
price as our board of directors deems advisable to avoid or diminish any income
tax to holders of Class A common stock resulting from any dividend or
distribution of stock, or rights to acquire stock, or from any event so treated
for income tax purposes. See "Certain Federal Income Tax Consequences-Tax
Consequences for U.S. Holders-Potential Distributions Resulting from Adjustment
of Conversion Price" on page 40.
If a reorganization event occurs, you will have the right to convert
notes only into the kind and amount of the securities, cash or other property
you would have received had you converted your notes immediately prior to the
reorganization event. We use the term reorganization event to mean:
o any recapitalization or reclassification of shares of Class A
common stock, other than changes involving par value, or as a
result of a subdivision or combination of the Class A common
stock,
o any consolidation or merger involving our company, other than
one that does not result in a reclassification, conversion,
exchange or cancellation of Class A common stock,
o any sale or transfer of all or substantially all of our
assets, or
o any compulsory share exchange pursuant to which any holders of
Class A common stock shall be entitled to receive other
securities, cash or other property.
Any company that succeeds to us or acquires our assets will be required
to provide in its governing documents the foregoing right and also to provide
for other rights essentially equivalent to those described under this
"--Conversion" heading.
-16-
Payment of Excess Cash Dividends
If we declare and pay excess cash dividends on the Class A common
stock, we will pay you an amount equal to the excess, based on the number of
shares of Class A common stock that you would have received had you converted
all of your notes, unless you convert and receive those dividends as a holder of
Class A common stock. We use the term excess cash dividends to mean cash
dividends in an annualized amount per share that exceeds the greater of
o the annualized amount per share of the immediately preceding
cash dividend on the Class A common stock, appropriately
adjusted for anti-dilution type events, and
o 15% of the last sale price of the Class A common stock as of
the trading day immediately preceding the declaration date of
that dividend.
Our credit facilities effectively restrict us from paying cash
dividends or making excess cash dividend payments on the notes.
Change in Control
If we experience a change in control, then you will have the right to
require us to repurchase for cash all or a portion of your notes. The repurchase
price of the 6.25% notes and the 5.00% notes is equal to the principal amount of
the notes, plus accrued and unpaid interest, through the day prior to
repurchase. The cash repurchase price of the 2.25% notes is their accreted
value, plus accrued and unpaid interest, through the day prior to repurchase.
The repurchase day is 45 days after notice to you. By accreted value we mean the
issue price of the 2.25% notes plus accrued original issue discount. This right
to require us to repurchase the notes will exist upon the occurrence of any
change in control whether or not the relevant transaction has been approved by
our management. It may not be waived by our management. Your exercise of this
right will be irrevocable. We must obtain lender approval under our credit
facilities in order to make any change in control payments before July 1, 2008.
We may not be able to obtain that approval.
Your right to require us to repurchase the notes upon a change in
control will not apply if either:
o the last sale price of the Class A common stock for five of
the ten trading days before the date of the change in control
equals or exceeds 105% of the applicable conversion price; or
o the consideration paid for the Class A common stock in a
transaction constituting the change in control consists of
cash, securities that are traded on a national securities
exchange or quoted on the National Association of Securities
Dealers, Inc. Automated Quotation System or the Nasdaq
National Market, or a combination of cash and such securities,
and the aggregate fair market value of such consideration is a
least 105% of the conversion price in effect immediately
before the closing of that transaction.
The existence of the right to require us to repurchase the notes upon a
change in control may deter certain mergers, tender offers or other takeover
attempts and may thereby adversely affect the market price of the Class A common
stock.
By a change in control we mean:
o any person or group, other than a permitted owner, acquires
direct or indirect beneficial ownership of shares of our
capital stock sufficient to entitle such person to exercise
more than 50% of the total voting power of all classes of our
capital stock entitled to vote generally in elections of
directors. An acquisition could occur by means of an exchange
offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise,
or
-17-
o we sell, lease, exchange or otherwise transfer, in one
transaction or a series of related transactions, all or
substantially all of our assets to any person or group, other
than to a permitted owner.
However, a transaction of a type described above that results in the
Class A common stock no longer being listed on a stock exchange or traded on the
Nasdaq National Market would also be treated as a change in control even if a
permitted owner were involved.
We use a permitted owner to mean one or more of our principal
stockholders or any person employed by us in a management capacity as of the
original offering of the notes, or any group of which any of them is a member.
We use the terms person and group as those terms are used in Section 13(d)(3) or
14(d)(2) of the Exchange Act. Principal stockholder means Steven B. Dodge,
Thomas H. Stoner, Hicks, Muse, Tate & Furst Incorporated, Cox Telecom Towers,
Inc. and Clear Channel Communications, Inc. and includes their affiliates.
Optional Redemption
6.25% notes. We may not redeem 6.25% notes prior to October 22, 2002.
On or after that date, at our option, we may redeem the 6.25% notes, in whole or
in part, at the following redemption prices, expressed as a percentage of the
principal amount. We are also required to pay any accrued and unpaid interest
upon redemption.
Twelve Months (or shorter period) commencing Redemption Price
-------------------------------------------- ----------------
October 22, 2002 ............................................103.125%
October 15, 2003 ............................................102.083
October 15, 2004 ............................................101.042
October 15, 2005 and thereafter.................................100.000
2.25% notes. We may not redeem 2.25% notes prior to October 22, 2003.
On or after that date, at our option, we may redeem the 2.25% notes, in whole or
in part, at the applicable redemption price. The table below shows redemption
prices of notes per $1,000 principal amount on the dates listed. The prices
reflect the accrued original issue discount calculated through each date. The
redemption price of a 2.25% note redeemed between these dates would include an
additional amount reflecting the additional original issue discount accrued
since the next preceding date in the table to the actual redemption date.
(2) (3)
(1) Original Issue Redemption
Redemption Date Note Issue Price Discount Price (1) + (2)
--------------- ---------------- -------- ---------------
October 22, 2003............. $705.20 $97.73 $802.93
October 15, 2004............. 705.20 125.28 830.48
October 15, 2005............. 705.20 155.14 860.34
October 15, 2006............. 705.20 186.90 892.10
October 15, 2007............. 705.20 220.68 925.88
October 15, 2008............. 705.20 256.60 961.80
October 15, 2009 (maturity).. 705.20 294.80 1,000.00
5.00% notes. We may not redeem the 5.00% notes prior to February 20,
2003. On or after that date, at our option, we may redeem the 5.00% notes, in
whole or in part, at the following redemption prices, expressed as a percentage
of the principal amount. We are also required to pay any accrued and unpaid
interest upon redemption.
Twelve Months (or shorter period) commencing Redemption Price
-------------------------------------------- ----------------
February 20, 2003..................................... 102.500%
February 15, 2004..................................... 101.670%
February 15, 2005..................................... 100.830%
February 15, 2006 and thereafter...................... 100.000%
-18-
We must give holders at least 20 and not more than 60 calendar days'
notice of any redemption date of any series of notes.
Repurchase of Notes at the Option of the Holder
6.25% notes. On October 22, 2006, you have the right to require us to
repurchase any outstanding 6.25% notes if certain conditions are met. The
repurchase price of a 6.25% note will be equal to its principal amount together
with accrued and unpaid interest through the repurchase date. If you desire us
to repurchase your 6.25% notes, you must give, and not withdraw, a written
repurchase notice to the trustee at any time during the 20 business days prior
to and including October 22, 2006.
2.25% notes. On October 22, 2003, you have the right to require us to
repurchase any outstanding 2.25% notes if certain conditions are met. The
repurchase price of a 2.25% note will be equal to $802.93, which is its accreted
value on October 22, 2003, in other words, its issue price plus accrued original
issue discount, together with accrued and unpaid interest through the repurchase
date. If you desire us to repurchase your 2.25% notes, you must give, and not
withdraw, a written repurchase notice to the trustee at any time during the 20
business days prior to October 22, 2003 until the close of business on October
22, 2003.
5.00% notes. On February 20, 2007, you have the right to require us to
repurchase any outstanding 5.00% notes if certain conditions are met. The
repurchase price of a 5.00% note will be equal to its principal amount together
with accrued and unpaid interest through the repurchase date. If you desire us
to repurchase your 5.00% notes, you must give, and not withdraw, a written
repurchase notice to the trustee at any time during the 20 business days prior
to and including February 20, 2007.
We may, at our option, elect to pay the repurchase price of any series
of notes in cash or shares of Class A common stock, or any combination thereof.
We will be required to give notice on a date not less than 20 business
days prior to the relevant repurchase date to you stating, among other things:
o what portion of the notes we will repurchase for cash and what
portion for Class A common stock,
o if we elect to use Class A common stock, how we calculate its
value, and
o the procedures that you must follow to require us to purchase
notes from you.
If you elect to require us to purchase notes, the repurchase notice
given by you shall state:
o the notes to be delivered by you for purchase by us,
o the portion of the principal amount at maturity of notes to be
purchased; this portion must be $1,000 principal amount at
maturity or an integral multiple of $1,000, and
o that the notes are to be purchased by us pursuant to the
applicable provisions of the notes.
If we elect to pay any portion of the repurchase price in Class A
common stock, but the repurchase price is ultimately to be paid entirely in cash
because the conditions to payment in Class A common stock are not satisfied, the
repurchase notice shall also state whether you elect: (a) to withdraw your
repurchase notice as to any of the notes, or (b) to receive cash. If you fail to
make an election, you will be deemed to have elected to receive cash in respect
of the entire repurchase price.
You may withdraw any repurchase notice by a written notice of
withdrawal delivered to the applicable trustee prior to 10:00 a.m. on the
repurchase date. The notice of withdrawal must state the principal amount at
maturity, and the certificate numbers of the notes as to which the withdrawal
notice relates and the principal amount at maturity, if any, which remains
subject to the repurchase notice.
-19-
If we elect to pay any portion of the repurchase price in shares of
Class A common stock, we will determine the number of shares of Class A common
stock to be delivered by dividing that portion by the market price of a share of
Class A common stock. Our credit facilities require us to make the entire
payment in Class A common stock.
By market price we mean, in effect, the average of the sale prices of
the Class A common stock for the five trading day period ending on the third
business day prior to the applicable repurchase date, appropriately adjusted to
take into account the occurrence of certain events that would result in an
adjustment of the conversion price with respect to the Class A common stock.
Sales price will be determined under the terms of the indenture.
Because we will determine the market price of the Class A common stock
prior to the applicable repurchase date, you will bear the market risk with
respect to the value of the Class A common stock to be received from the date of
determination to the repurchase date.
Our right to repurchase notes with Class A common stock is subject to
our satisfying various conditions, including:
o the registration of the Class A common stock under the
Securities Act and the Exchange Act, if required; and
o any necessary qualification or registration under applicable
state securities law or the availability of an exemption from
that qualification and registration.
When we determine the actual number of shares of Class A common stock
in accordance with the foregoing provisions, we will publish that information in
a daily newspaper of national circulation.
If the foregoing conditions are not satisfied with respect to a holder
or holders prior to the close of business on the repurchase date, we will pay
you the repurchase price of your tendered notes entirely in cash. We may not
change the form of consideration to be paid once we have given you the
applicable notice, except as described in the prior sentence.
We will comply with the provisions of Rule 13e-4, Rule 14e-1 and any
other tender offer rules under the Exchange Act that may then be applicable and
will file Schedule TO or any other schedule required under those rules in
connection with any offer by us to purchase notes at the option of holders.
We may not purchase notes for cash at your option if an event of
default continues with respect to the notes described under "--Events of Default
and Remedies" immediately below, other than a default in the payment of the
repurchase price with respect to the notes.
Payment of the repurchase price for a note for which a repurchase
notice has been delivered and not validly withdrawn is conditioned upon delivery
of the note, together with necessary endorsements to the applicable trustee at
any time after delivery of such repurchase notice. Payment of the repurchase
price for the note will be made promptly following the later of the repurchase
date or the delivery of the note. If the relevant trustee holds, in accordance
with the terms of its indenture, money or securities sufficient to pay the
repurchase price of the note on the business day following the repurchase date,
then, immediately after the repurchase date, the note will cease to be
outstanding and interest and, in the case of 2.25% notes, original issue
discount will cease to accrue, whether or not you deliver the note to the
trustee. In that event, all of your other rights shall terminate, other than the
right to receive the repurchase price upon delivery of your note.
Our ability to redeem notes and to repurchase notes upon a change in
control or at your option, as described in the three preceding sections, is
restricted under the terms of our credit facilities and is effectively
prohibited during the existence of a default under them. See "Description of
Certain Indebtedness."
-20-
Events of Default and Remedies
An event of default is defined in each indenture as being any of the
following:
o our default in payment of the principal amount at maturity,
issue price plus accrued original issue discount (2.25% notes
only), repurchase price, optional redemption price or any
change in control repurchase price when due, upon maturity,
acceleration, redemption or otherwise, on any of the notes,
o our default for 30 days in payment of any installment of
interest on the notes,
o our default for 60 days after notice in the observance or
performance of any other covenants in the applicable
indenture, and
o certain events involving our bankruptcy, insolvency or
reorganization.
Each indenture provides that if any event of default exists, the
applicable trustee or the holders of not less than 25% in principal amount of
the notes of a relevant series then outstanding may declare the relevant amount
of all notes of that series to be due and payable immediately. The relevant
amount for the 6.25% and the 5.00% notes is their principal amount. The relevant
amount for the 2.25% notes is the sum of their issue price plus accrued original
issue discount from their date of issue to the date of acceleration. However, if
we cure all defaults, except the nonpayment of principal and interest with
respect to any notes of that series that become due by acceleration, and certain
other conditions are met, the holders of a majority in principal amount of notes
of that series then outstanding may rescind that acceleration. Holders may
similarly waive past defaults.
The holders of a majority in principal amount of the notes of the
relevant series then outstanding have the right to direct the time, method and
place of conducting any proceedings for any remedy available to the trustee,
subject to certain limitations specified in the relevant indenture.
Each indenture provides that the trustee shall give notice to the
holders of notes of any default, except in payment of principal or interest with
respect to the notes, if the trustee, in good faith, considers it in the
interest of the holders of the notes of that series to dispense with notice.
Modification of the Indentures
Each indenture contains provisions permitting us and the trustee, with
the consent of the holders of not less than a majority in principal amount of
the notes of the relevant series at the time outstanding, to modify the
indenture and the rights of the holders of the notes of that series. However,
without the consent of the holder of each note so affected, we cannot make any
modification that will:
o extend the final maturity of any notes,
o reduce the rate or extend the time for payment of interest,
o reduce the principal amount or any premium,
o change the accrual rate or time of payment of original issue
discount on the 2.25% notes,
o change the provisions for redemption at the option of the
holders in a manner adverse to the holders,
o impair or affect the right of a holder to institute suit for
the payment of principal, interest or any premium,
-21-
o change the currency in which the notes are payable,
o impair the right to convert the notes into Class A common
stock, or
o reduce the percentage of notes of that series, the consent of
the holders of which is required for any modification.
Global Notes, Book-Entry Form
The notes will be represented by global notes, except as set forth
below under "--Certificated Notes." The global notes will be deposited with, or
on behalf of, DTC and registered in the name of Cede & Co., as DTC's nominee.
Beneficial interests in the global notes will be exchangeable for definitive
certificated notes only in accordance with the terms of the relevant indenture.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a banking organization within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a clearing corporation within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants deposit with DTC. DTC also facilitates
the settlement among participants of securities transactions, including
transfers and pledges, in deposited securities through electronic computerized
book-entry changes in participants' accounts, thereby eliminating the need for
physical movement of securities certificates. Direct participants include
securities brokers and dealers, banks, trust companies, clearing corporations,
and certain other organizations. DTC is owned by a number of its direct
participants and by the NYSE, the American Stock Exchange, Inc. and the NASD.
Access to DTC's system is also available to others such as securities brokers
and dealers, banks and trust companies that clear through or maintain a
custodial relationship with a direct participant, either directly or indirectly.
The rules applicable to DTC and its participants are on file with the SEC.
Purchases of interests in global notes under DTC's system must be made
by or through direct participants, which will receive a credit for the interest
in the global notes on DTC's records. The ownership interest of each actual
purchaser of each interest in the global notes (we call it the "beneficial
owner") is in turn to be recorded on the direct and indirect participants'
records. Beneficial owners will not receive written confirmation from DTC of
their purchase, but beneficial owners are expected to receive written
confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the direct or indirect participant through
which the beneficial owner entered into the transaction. Transfers of ownership
interests in the global notes are to be accomplished by entries made on the
books of participants acting on behalf of beneficial owners. Beneficial owners
will not receive certificates representing their ownership interests in global
notes, except in the event that use of the book-entry system for one or more
global notes is discontinued.
To facilitate subsequent transfers, all global notes deposited by
participants with DTC are registered in the name of DTC's partnership nominee,
Cede & Co. The deposit of global notes with DTC and their registration in the
name of Cede & Co. effects no change in beneficial ownership. DTC has no
knowledge of the actual beneficial owners of the global notes. DTC's records
reflect only the identity of the direct participants to whose accounts such
global notes are credited, which may or may not be the beneficial owners. The
participants will remain responsible for keeping account of their holdings on
behalf of their customers.
Conveyance of notices and other communications by DTC to direct
participants, by direct participants to indirect participants and by direct
participants and indirect participants to beneficial owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect.
Redemption notices will be sent to Cede & Co. If less than all of the
global notes are being redeemed, and unless otherwise notified by either us or
the relevant trustee, DTC's practice is to determine by lot the amount of the
interest of each direct participant in such issue to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to global
notes. Under its usual procedures, DTC will mail an omnibus proxy to us as soon
as possible after the record date. The omnibus proxy assigns Cede &
-22-
Co.'s consenting or voting rights to those direct participants to whose accounts
the global notes are credited on the record date. This is identified in a
listing attached to the omnibus proxy.
Payment of interest on and the redemption price of the global notes
will be made to DTC. DTC's practice is to credit direct participants' accounts
on the payment date in accordance with their respective holdings shown on DTC's
records unless DTC has reason to believe that it will not receive payment on the
payment date. Payments by participants to beneficial owners will be governed by
standing instructions and customary practices as is the case with securities
held for the accounts of customers in bearer form or registered in "street name"
and will be the responsibility of such participant and not of DTC, any agents or
us. The foregoing is subject to any statutory or regulatory requirements as may
be in effect from time to time. Payment of interest on and the redemption price
of the global notes to DTC is our responsibility. Disbursement of payments to
direct participants will be the responsibility of DTC. Disbursement of payments
to the beneficial owners will be the responsibility of direct and indirect
participants.
A beneficial owner must give notice to elect to have its interest in
the global notes purchased or tendered, through its participant, to the paying
agent, and must effect delivery of this interest by causing the direct
participant to transfer the participant's interest in the global notes, on DTC's
records, to the paying agent. The requirement for physical delivery of global
notes in connection with a demand for purchase or a mandatory purchase will be
deemed satisfied when the ownership rights in the global notes are transferred
by direct participants on DTC's records.
DTC may discontinue providing its services as securities depositary
with respect to the global notes at any time by giving reasonable notice to us
or to our agents. Under these circumstances, or if DTC is at any time unable to
continue as depositary and a successor depositary is not appointed by us within
90 days, we will cause notes to be issued in definitive form in exchange for the
global notes.
According to DTC, the foregoing information with respect to DTC has
been provided to the financial community for informational purposes only and is
not intended to serve as a representation, warranty or contract modification of
any kind. The information in this section concerning DTC and DTC's book-entry
system has been obtained from sources that we believe to be reliable, but we
take no responsibility for the accuracy.
Neither we, either trustee, any paying agent nor the registrar for the
notes will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interest in a
global security or for maintaining, supervising or reviewing any records
relating to beneficial ownership interests.
Certificated Notes
The notes represented by the global securities are exchangeable for
certificated notes in definitive form of the same series and of like tenor if:
o DTC notifies us that it is unwilling or unable to continue as
depositary for the global securities and a successor is not
appointed within 90 days or if at any time DTC ceases to be a
clearing agency registered under the Exchange Act,
o an event of default has occurred and is continuing, or
o we, in our discretion and at any time, determine not to have
all of the notes represented by the global securities.
Any notes that are exchangeable pursuant to the preceding sentence are
exchangeable for certificated notes issuable in authorized denominations and
registered in those names as DTC shall direct. Subject to the foregoing, the
global securities are not exchangeable, except for global securities of the same
aggregate denominations to be registered in the name of DTC or its nominee.
-23-
Concerning the Trustee
The Bank of New York is a lender under our credit facilities and may
provide other commercial banking services to us in the future.
-24-
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 47. 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,
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 notes, 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.
-25-
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.
-26-
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. We refer to it as the restated certificate. A copy of
the restated certificate has been filed as an exhibit to the registration
statement of which this prospectus is a part. Wherever particular defined terms
or provisions of the restated certificate are referred to, those terms and
provisions are incorporated by reference as a part of the statements made, and
the statements are qualified in their entirety by that reference.
General
Our authorized capital stock consists of 20,000,000 shares of preferred
stock, $.0l par value per share, 500,000,000 shares of Class A common stock,
$.0l par value per share, 50,000,000 shares of Class B common stock, $.0l par
value per share, and 10,000,000 shares of Class C common stock, $.0l par value
per share. The number of outstanding shares of common stock as of July 19, 2000
is shown on page 4.
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 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, if the shares are convertible, and
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.
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 the
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
-27-
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 or debt that may be
outstanding from time to time. See "Dividend Restrictions" on the following
page.
Voting Rights. 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. The foregoing is subject to
the requirements of Delaware corporate law, special provisions governing
election of directors and the rights of holders of any series of preferred stock
that may be outstanding from time to time. 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 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 the
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.
On July 19, 2000, our directors and executive officers, together with
their affiliates, owned beneficially, within the meaning of applicable SEC
regulations, approximately 39.61% of the combined voting power of the common
stock. On that date, Mr. Dodge, together with his affiliates, owned beneficially
approximately 26.72% of the combined voting power.
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 includes certain family members and other holders of Class
B common stock.
-28-
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 holders of 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, except if shares of
common stock or common stock of any other company are distributed, the shares
may differ as to voting rights to the same extent that voting rights then differ
among the different classes of 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.
Dividend Restrictions
Our borrower subsidiaries are prohibited under the terms of their
credit facilities from paying cash dividends or making other distributions on,
or making redemptions, purchases or other acquisitions of, their capital stock
or other equity interests, including preferred stock, except that, beginning on
April 15, 2004, if no default exists or would be created thereby under the
credit facilities, our borrower subsidiaries may pay cash dividends or make
other distributions to the extent that restricted payments, as defined in the
credit facilities, do not exceed (a) 50% of excess cash flow, as defined in the
credit facilities, for the preceding calendar year or (b) 50% of the net
proceeds of any debt or equity offering after June 16, 1998.
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 stockholder. 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%
or more of the voting power of the corporation's shares 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.
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 the common stock is Computershare
Investor Services LLC, 2 North La Salle, 3rd floor, Chicago, IL 60602 (telephone
number (312) 588-4991).
-29-
SELLING SECURITYHOLDERS
The notes were originally issued by us and sold by the initial
purchasers in private transactions exempt from the registration requirements of
the Securities Act to "qualified institutional buyers," as defined in Rule 144A
under the Securities Act. The selling securityholders may from time to time
offer and sell pursuant to this prospectus any or all of the notes and Class A
common stock issuable upon conversion or exchange of the notes. The selling
securityholders will determine the actual number of notes and Class A common
stock issuable upon conversion or exchange of the notes that they will sell.
Because the selling securityholders may sell all, some or none of the notes and
Class A common stock issuable upon conversion or exchange of the notes, we are
unable to estimate the number of notes and Class A common stock issuable upon
conversion or exchange of the notes that will be held by them upon completion of
the offering. Prior to any use of this prospectus in connection with a sale of
the notes and Class A common stock issuable upon conversion or exchange of the
notes, we may supplement this prospectus to contain additional terms of the
offering of such notes and Class A common stock issuable upon conversion or
exchange of the notes.
The following table sets forth certain information concerning the
principal amount of the notes beneficially owned by each selling securityholder
and the number of, and Class A common stock issuable upon conversion or exchange
of, the notes that may be offered from time to time pursuant to this prospectus.
Number of
Shares
Principal Issuable
Amount of Upon Number of Percentage of
6.25% Notes Conversion Shares Class A Common
Beneficially of 6.25% Beneficially Stock
Selling Securityholders Owned Notes Owned** Outstanding***
----------------------- ----- ----- ------- --------------
AFG Industries, Inc. 380,000 15,573 -- *
Alexandra Global Investment Fund I LTD 2,000,000 81,967 -- *
Allegheny Teledyne Inc. Pension Plan 3,100,000 127,049 -- *
Alstott Investments, LLC 1,500,000 61,475 -- *
Aquinas Equity Growth Fund 360,000 14,754 -- *
Argent Classic Convertible Arbitrage Fund (Bermuda) 28,000,000 1,147,540 -- *
L.P.
Associated Electric & Gas Insurance Services Limited 600,000 24,590 -- *
Bank of America Pension Plan 2,000,000 81,967 -- *
Barclays Capital Securities Limited 1,000,000 40,983 -- *
California Public Employees' Retirement System 8,000,000 327,868 -- *
CIBC World Markets (International) Arbitrage 10,145,000 415,778 -- *
City of Orlando 170,000 6,967 -- *
Davis Convertible Securities Fund 7,800,000 319,672 -- *
Delta Airlines Inc. Retirement Plan 2,800,000 114,754 -- *
Deutsche Bank Securities Inc. (1) 9,000,000 368,852 -- *
Duckbill & Co. 2,000,000 81,967 -- *
Evergreen Growth & Income Fund 1,900,000 77,868 -- *
Evergreen Income & Growth Fund 6,000,000 245,901 -- *
Evergreen Utility Fund 5,000,000 204,918 -- *
Evergreen Variable Annuity Growth & Income Fund 100,000 4,098 -- *
General Motors Welfare Benefit Trust 2,000,000 81,967 -- *
GranGem 23 41 LLC 500,000 20,491 -- *
Great Lakes Protection Fund 250,000 10,245 -- *
Hamilton Family Trust 400,000 16,393 -- *
-30-
Hartford Dividend and Growth Fund 1,200,000 49,180 -- *
Hartford Dividend and Growth Fund, Inc. 9,200,000 377,049 -- *
Highbridge Capital Corporation 1,000,000 40,983 -- *
Ithaca College 100,000 4,098 -- *
J.F. Maddox Foundation 210,000 8,606 -- *
John M. Olin Foundation, Inc. 1,000,000 40,983 -- *
Kaleida Health - Master Investment Trust 40,000 1,639 -- *
Kaleida Health - Retirement Trust 90,000 3,688 -- *
Kaleida Health - Self Insurance Trust 30,000 1,229 -- *
Kentfield Trading, Ltd. 8,993,000 368,565 -- *
LibertyView Funds, L.P. 650,000 26,639 -- *
Lipper Convertibles, L.P. 9,000,000 368,852 -- *
Lipper Offshore Convertibles, L.P. 3,000,000 122,950 -- *
LLT Limited 100,000 4,098 -- *
Mary Ann Hamilton 400,000 16,393 -- *
Maryland State Retirement Fund 4,100,000 168,032 -- *
McMahan Securities Company, L.P. 250,000 10,245 -- *
MFS Series Trust V: MFS Total Return Fund 1,790,000 73,360 -- *
Morgan Stanley Dean Witter (1) 1,730,000 70,901 -- *
Morgan Stanley Dean Witter Convertible Securities 1,500,000 61,475 -- *
Trust (1)
Museum of Fine Arts, Boston 14,000 573 -- *
New York Life Insurance Company 13,000,000 532,786 -- *
New York State Teamsters Health & Hospital Fund 2,000,000 81,967 -- *
Oppenheimer Convertible Securities Fund 5,000,000 204,918 -- *
Parker-Hannifen Corporation 24,000 983 -- *
Peoples Benefit Life Insurance Company 5,000,000 204,918 -- *
ProMutual 50,000 2,049 -- *
Putnam Balanced Retirement Fund 28,000 1,147 -- *
Putnam Convertible Income-Growth Trust 36,000 1,475 -- *
Putnam Convertible Opportunities and Income Trust 36,000 1,475 -- *
Robert P. Luciano 20,000 819 -- *
Scientifc-Atlanta, Inc. 150,000 6,147 -- *
SG Cowen Securities Corp. 2,500,000 102,459 -- *
Shirley Acheson Shirock Trust 50,000 2,049 -- *
South Dakota Retirement System 3,000,000 122,950 55,000 *
Southport Management Partners L.P. 300,000 12,295 -- *
Southport Partners International Ltd. 600,000 24,590 -- *
The Retail Clerks Pension Trust 2,000,000 81,967 -- *
Tribeca Investments LLC 6,500,000 266,393 -- *
Triton Capital Investments, LTD 2,000,000 81,967 -- *
U.S. Olympic Foundation 800,000 32,786 -- *
University of Nebraska Foundation 400,000 16,393 -- *
University of Nebraska Foundation #2 40,000 1,639 -- *
University of Rochester -- *
13,000 532
------------------------------------------------------------
TOTAL(2) $182,949,000 7,497,879 55,000 4.56%
============ ========= ====== =====
-31-
Principal Number of
Amount at Shares of Class Number of
Maturity of A Common Stock Shares of Percentage of
2.25% Notes Issuable Upon Class A Common Class A Common
Beneficially Conversion of Stock Stock Outstanding
Owned That May the 2.25% Notes Beneficially as of July 19,
Selling Securityholders be Sold That May be Sold Owned** 2000***
----------------------- ------- ---------------- ------- -------
Others $22,850,000 952,083 -- *
Principal Number of
Amount of 5.0% Shares Issuable Number of Percentage of
Notes Upon Conversion Shares Class A Common
Beneficially of the 5.0% Beneficially Stock
Selling Securityholders Owned Notes Owned** Outstanding***
----------------------- ----- ----- ------- --------------
1976 Distribution Trust FBO Aerin 23,000 446 -- *
Lauder/Zinterhoffer
1976 Distribution Trust FBO Jane A. Lauder 23,000 446 -- *
Allstate Insurance Company 3,000,000 58,252 -- *
Arkansas PERS 1,900,000 36,893 -- *
Aspen Growth & Income Fund 600,000 11,650 -- *
Associated Electric & Gas Insurance Services 900,000 17,475 -- *
Limited
AXP Bond Fund, Inc. 1,730,000 33,592 -- *
AXP Utilities Income Fund, Inc. 10,367,000 201,300 -- *
AXP Variable Portfolio - Bond Fund 765,000 14,854 -- *
AXP Variable Portfolio - Managed Fund 1,031,000 20,019 -- *
Bancroft Convertible Fund, Inc. 750,000 14,563 -- *
Bank Austria Cayman Island, Ltd. 3,005,000 58,349 -- *
Employee Benefit Convertible Securities Fund, 250,000 4,854 -- *
DTC #955 Bank of America Personal Trust
Bankers Trust Company Trustee for Chrysler 8,242,000 160,038 -- *
Corp. EMP #1 Pension Plan DTD 4/1/89
Bear, Stearns & Co. Inc. (1) 3,000,000 58,252 -- *
BNP Arbitrage SNC 500,000 9,708 -- *
Boilermakers Blacksmith Pension Trust 1,350,000 26,213 -- *
Boulder II Limited 1,000,000 19,417 -- *
BP Amoco Corporation Master Trust for Employee 2,600,000 50,485 -- *
Pension Plans
BP Amoco PLC, Master Trust 3,567,000 69,262 -- *
BVI Social Security Board 44,000 854 -- *
CALAMOS(R) Market Neutral Fund-CALAMOS(R) 940,000 18,252 -- *
Investment Trust
Chartwell Investment Partners 1,000,000 19,417 -- *
Chrysler Corporation Master Retirement Trust 10,425,000 202,427 -- *
CIBC World Markets 685,000 13,300 -- *
City University of New York 114,000 2,213 -- *
-32-
Consulting Group Capital Markets Funds 320,000 6,213 -- *
Continental Assurance Company Separate
Account (E) 960,000 18,640 -- *
Convexity Partners L.P. 250,000 4,854 -- *
Delaware PERS 2,410,000 46,796 -- *
Delphi Foundation, Inc. 28,000 543 -- *
Delta Air Lines Master Trust c/o Oaktree 3,975,000 77,184 -- *
Capital Management, LLC
Deutsche Bank Securities Inc. (1) 16,548,000 321,320 -- *
Ellsworth Convertible Growth and Income
Fund, Inc. 750,000 14,563 -- *
Family Service Life Insurance Co. 200,000 3,883 -- *
Fidelity Financial 12,000,000 233,009 -- *
Trust:
Fidelity Convertible Securities Fund
Forest Alternative Strategies Fund LP II
Series A5I 115,000 2,233 -- *
Forest Fulcrum Fund LP 685,000 13,300 -- *
Forest Global Convertible Fund A5 3,890,000 75,533 -- *
Franklin and Marshall College 568,000 11,029 -- *
GCG Total Return Series 1,110,000 21,553 -- *
General Motors Employees Global Group Pension 5,285,000 102,621 -- *
Fund
General Motors Foundation, Inc. 287,000 5,572 -- *
Georges et/ou Noya Andraos 100,000 1,941 -- *
GLG Global Convertible Fund 4,000,000 77,669 -- *
GLG Global Convertible Ucits Fund 1,000,000 19,417 -- *
Goldman Sachs and Company (1) 500,000 9,708 -- *
Grady Hospital 170,000 3,300 -- *
Granville Capital Corporation 17,000,000 330,097 -- *
Guardian Life Insurance Co. 7,500,000 145,631 94,500 *
Guardian Pension Trust 300,000 5,825 -- *
Highbridge International LLC 7,305,000 141,844 -- *
Hotel Union & Hotel Industry of Hawaii 899,000 17,456 -- *
Hull Overseas, Ltd. 250,000 4,854 -- *
ICI American Holdings Trust 1,250,000 24,271 -- *
IDS Life Series Fund, Inc. - Income Portfolio 64,000 1,242 -- *
Independence Blue Cross 80,000 1,553 -- *
ITG, Inc. 197,000 3,825 -- *
J.M. Hull Associates, L.P. 250,000 4,854 -- *
Janus Growth & Income Fund 40,450,000 785,436 -- *
Jeffries & Company Inc. 20,000 388 -- *
Julius Baer Securities Inc. 1,068,000 20,737 -- *
KBC Financial Products 1,400,000 27,184 -- *
KVS Growth & Income Portfolio 200,000 3,883 -- *
Lipper Convertibles Series II, L.P. 500,000 9,708 -- *
Lipper Convertibles, L.P. 3,000,000 58,252 -- *
Lipper Offshore Convertibles, L.P. 1,000,000 19,417 -- *
Lipper Offshore Convertibles, L.P. #2 500,000 9,708 -- *
LLT LTD 255,000 4,951 -- *
Local Initiatives Support Corporation 70,000 1,359 -- *
-33-
London Pacific Total Return 20,000 388 -- *
Maryland Retirement System 2,397,000 46,543 -- *
McMahan Securities Co. L.P. 97,000 1,883 -- *
Merrill Lynch Convertible Fund, Inc. (1) 500,000 9,708 -- *
Merrill Lynch Insurance Group (1) 389,000 7,553 -- *
MFS Total Return Fund 3,710,000 72,038 -- *
MFS Total Return Variable 480,000 9,320 -- *
MFS VII-MFS Total Return Series 410,000 7,961 -- *
MFS/Sun Life - Total Return Series 2,870,000 55,728 -- *
Morgan Stanley & Co. (1) 1,500,000 29,126 -- *
Morgan Stanley Dean Witter Convertible 300,000 5,825 -- *
Securities Trust (1)
Motion Picture Industry Health Plan - Active 1,210,000 23,495 -- *
Member Fund
Motion Picture Industry Health Plan - Retiree 605,000 11,747 -- *
Member Fund
Motors Insurance Corporation 1,400,000 27,184 -- *
Museum of Fine Arts, Boston 50,000 970 -- *
Nations Capital Income Fund, DTC #901 Bank of 4,050,000 78,640 -- *
New York
New Hampshire Retirement System 320,000 6,213 -- *
New Orleans Firefighters Pension 176,000 3,417 -- *
New York Life Insurance and Annuity 2,200,000 42,718 -- *
Corporation (NYLIAU)
New York Life Insurance Company (NYLIC) 20,300,000 394,174 -- *
Nomura Securities International Inc. 6,150,000 119,417 -- *
Northern Income Equity Fund 1,000,000 19,417 -- *
Occidental Petroleum 299,000 5,805 -- *
OCM Convertible Trust 4,165,000 80,873 -- *
Onex Industrial Partners Limited 1,000,000 19,417 -- *
Oppenheimer Convertible Securities Fund 8,000,000 155,339 -- *
Pacific Life Insurance Company 1,500,000 29,126 -- *
Parker-Hannifin Corporation 60,000 1,165 -- *
Partner Reinsurance Company Ltd. 2,215,000 43,009 -- *
Pell Rudman Trust Company 2,180,000 42,330 154,460 *
Penn Treaty Network America Insurance Company 682,000 13,242 -- *
PIMCO Total Return Fund 2,000,000 38,834 -- *
PRIM Board 2,800,000 54,368 -- *
ProMutual 200,000 3,883 -- *
Putnam Asset Allocation Funds-Balanced 1,100,000 21,359 -- *
Portfolio
Putnam Asset Allocation Funds-Convertible 700,000 13,592 -- *
Portfolio
Putnam Convertible Income-Growth Trust 7,000,000 135,922 -- *
Putnam Convertible Opportunities and Income 140,000 2,718 -- *
Trust
Rhone-Poulenc Rorer Pension Plan 70,000 1,359 -- *
San Diego County Convertible 2,133,000 41,417 -- *
Shell Pension Trust 235,000 4,563 -- *
-34-
State Employees' Retirement Fund of the State 5,300,000 102,912 -- *
of Delaware
State of Connecticut Combined Investment Funds 11,695,000 227,087 -- *
State of Oregon Equity 10,000,000 194,174 -- *
State Street Bank Custodian for GE Pension 4,083,000 79,281 -- *
Trust
STI Capital Management 1,000,000 19,417 -- *
Strong Total Return Fund, Inc. 2,000,000 38,834 -- *
Sun America Balanced 360,000 6,990 -- *
Sylvan IMA Ltd. c/o Forest Investment 685,000 13,300 -- *
Management LLC
TCW Group, Inc. 33,455,000 649,611 -- *
The Adams Express Company 9,500,000 184,466 -- *
The Class IC Company, Ltd. 1,500,000 29,126 -- *
The Estate of James Campbell 1,164,000 22,601 -- *
The Grable Foundation 160,000 3,106 -- *
Total Return Portfolio 1,053,000 20,446 -- *
Tracor Inc. Employees Retirement Plan 322,000 6,252 -- *
UBS Warburg LLC 60,000 1,165 -- *
University of Rochester 50,000 970 -- *
Van Kampen Convertible Securities Fund (1) 935,000 18,155 -- *
Van Kampen Harbor Fund (1) 5,065,000 98,349 -- *
Vanguard Convertible Securities Fund, Inc. 10,910,000 211,844 -- *
Viacom Inc. Pension Plan Master Trust 129,000 2,504 -- *
White River Securities LLC (1) 3,000,000 58,252 -- *
Writers Guild - Industry Health Fund 276,000 5,359 -- *
ZCM/HFR Index Management, L.L.C. 110,000 2,135 -- *
Zeneca Holdings Trust 990,000 19,223 -- *
Zurich HFR Master Hedge Fund Index Ltd. 40,000 776 -- *
--------------------------------------------------------------
TOTAL $341,388,000 6,628,834 248,960 4.08%
============ ========= ======= =====
* Less than 1% calculated as of July 19, 2000.
** In addition to the shares issuable upon conversion of the notes.
*** Includes shares issuable upon conversion of the notes and additional shares beneficially owned as of July
19, 2000.
(1) Entity shown in the table, or an affiliate of the entity, was one of the initial purchasers of these
notes and/or other notes of the Company that were sold in a private placement. The initial purchasers
acquired such notes at a discount. In addition, some of these entities or their affiliates have
participated in other offerings of securities by the Company and/or have performed other banking services
for which they have received fees.
(2) According to the Depository Trust Company, the total principal amount outstanding of the 6.25%
convertible notes due 2009 which have not been previously registered and sold, as of July 10, 2000, was
$67,860,000. The table, however, reflects the most current information provided by the securityholders,
which may include some notes that have already been registered.
-35-
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
We have based the following summary of certain federal income tax
consequences upon the Internal Revenue Code of 1986, as amended (we refer to it
as the Code), Treasury regulations, and rulings and decisions now in effect, all
of which are subject to change or differing interpretations. We have not sought
a ruling from the Internal Revenue Service with respect to any matter described
in this summary. We can provide no assurance that the IRS or a court will agree
with the statements made in this summary. This summary applies to you only if
you hold the notes and Class A common stock as capital assets. A capital asset
is generally an asset held for investment rather than as inventory or as
property used in a trade or business. This summary also does not discuss the
particular tax consequences that might be relevant to you if you are subject to
special rules under the federal income tax laws. Special rules apply, for
example, if you are:
o a bank, life insurance company, regulated investment company,
or other financial institution,
o a broker or dealer in securities or foreign currency,
o a person that has a functional currency other than the U.S.
dollar,
o a person who acquires the notes or Class A common stock in
connection with your employment or other performance of
services,
o a person subject to alternative minimum tax,
o a person who owns the notes or Class A common stock as part of
a straddle, hedging transaction, conversion transaction, or
constructive sale transaction,
o a tax-exempt entity, or
o an expatriate.
In addition, the following summary does not address all possible tax
consequences. In particular, it does not discuss any estate, gift,
generation-skipping, transfer, state, local or foreign tax consequences. For all
these reasons, we urge you to consult with your tax advisor about the federal
income tax and other tax consequences of the acquisition, ownership and
disposition of the notes and Class A common stock.
As explained below, the federal income tax consequences of acquiring,
owning and disposing of the notes and Class A common stock depend on whether or
not you are a U.S. holder. For purposes of this summary, you are a U.S. holder
if you are a beneficial owner of the notes or Class A common stock and for
federal income tax purposes are:
o a citizen or resident of the United States, including an alien
individual who is a lawful permanent resident of the United
States or meets the substantial presence residency test under
the federal income tax laws,
o a corporation, partnership or other entity treated as a
corporation or partnership for federal income tax purposes,
that is created or organized in or under the laws of the
United States, any of the fifty states or the District of
Columbia, unless otherwise provided by Treasury regulations,
o an estate the income of which is subject to federal income
taxation regardless of its source, or
o a trust if a court within the United States is able to
exercise primary supervision over the administration of the
trust and one or more United States persons have the authority
to control all substantial decisions of the trust, or electing
trusts in existence on August 20, 1996 to the extent provided
in Treasury regulations,
-36-
and if your status as a U.S. holder is not overridden under the provisions of an
applicable tax treaty. Conversely, you are a "non-U.S. holder" if you are a
beneficial owner of the notes or Class A common stock and are not a U.S. holder.
In General
We have treated the notes as indebtedness for federal income tax
purposes. This summary discussion assumes that the IRS will respect this
classification.
Payments you might receive on the notes that are for excess cash
dividends paid on Class A common stock should be treated as potential contingent
interest payments and not as distributions on stock potentially taxable as
ordinary dividend income. Further, this summary discussion reflects our
expectation that only a remote possibility exists that you will receive (a)
payments for excess cash dividends on Class A common stock or (b) additional
interest because of a registration default.
Tax Consequences for U.S. Holders
Interest and Excess Cash Dividend Payments on the Notes
All of the notes bear interest at a stated fixed rate. You must
generally include this stated interest in your gross income as ordinary interest
income:
o when you receive it, if you use the cash method of accounting
for federal income tax purposes, or
o when it accrues, if you use the accrual method of accounting
for federal income tax purposes.
Purchase price for a note that is allocable to prior accrued stated interest may
be treated as offsetting a portion of the interest income from the next
scheduled stated interest payment on the note.
If you receive a payment equivalent to an excess cash dividend paid on
our Class A common stock or a payment of additional interest for a registration
default, and if the chances of another payment like that occurring in the future
remain remote, then you should report the payment as ordinary interest income in
the manner discussed above. In that event, the tax consequences of the notes
should otherwise remain unchanged. In contrast, if one or more of these types of
payments cease to remain remote in the future, then the notes would be treated
as having been retired and reissued with original issue discount, and the tax
consequences of holding the notes would then be governed by special original
issue discount rules for contingent payment debt instruments. We urge you to
consult your tax advisor on the consequences to you if these events, which we
believe are remote, should occur.
Original Issue Discount on the 2.25% Notes
In addition to the stated interest that you must include in income, the
2.25% notes are treated as having original issue discount (we refer to it as
OID), which is generally taxable to you as interest income. The amount of OID on
a 2.25% note is the excess of its stated redemption price at maturity over its
issue price. A 2.25% note's stated redemption price at maturity is the sum of
all payments expected to be received under the terms of the 2.25% note from the
time of issue until maturity, except for the stated interest which is
unconditionally payable semiannually. Its issue price was 70.52% of the
principal amount at maturity.
You are required under section 1272 of the Code to include in gross
income, irrespective of your method of accounting, a portion of the OID for each
year during which you hold a 2.25% note, even though the cash to which the
income is attributable may not be received until maturity or redemption of the
2.25% note. The timing of the accrual of OID is based on the 2.25% note's yield
to maturity, which is its economic, not its stated, interest rate. The economic
interest rate is equal to the present value discount rate at which all expected
payments on the 2.25% note would have an aggregate present value equal to its
issue price. The yield to maturity of the 2.25% notes is 6.25%, calculated on a
semi-annual basis from October 4, 1999. The amount of any OID included in income
for a taxable year is calculated by accruing and compounding interest at the
economic interest rate at semiannual intervals
-37-
corresponding to the payments of stated interest on the 2.25% notes. This is
known as the "constant yield method" of accruing interest. The excess of the
determined constant yield over the stated interest is the amount of OID included
in income for that semiannual period. The semiannual amounts of OID are then
allocated evenly to each day in the semiannual period, and the sum of the OID
allocable to the days in your tax year constitutes the OID includable in your
gross income for the year. You should consult your tax advisor about the
possibility of using different accrual periods and other assumptions for
purposes of computing OID accruals into your income.
The amount of OID you include in income without actual receipt of cash
increases your basis in your 2.25% notes for federal income tax purposes.
Conversely, your basis is reduced by the actual receipt of OID payments and
principal payments. Similarly, the issue price of the 2.25% notes is adjusted
upward by OID accrued but not received and is decreased by the receipt of
payments of OID and principal. This "adjusted issue price" of a 2.25% note is
especially relevant if you purchase a 2.25% note after its original issue.
Acquisition Premium on the 2.25% Notes
If you acquire a 2.25% note and your adjusted tax basis in the 2.25%
note upon acquisition is in excess of its then adjusted issue price but below
its stated redemption price at maturity, then you will have an acquisition
premium equal to this excess. If this happens, then each of your subsequent
accruals of OID into gross income would be reduced by a percentage equal to the
amount of acquisition premium divided by the remaining amount of OID to be
accrued at the time you acquired the 2.25% note. If instead you acquire a 2.25%
note and your adjusted tax basis in the 2.25% note upon acquisition is in excess
of its stated redemption price at maturity, then you need not include any OID
accruals into income and the elective amortization of bond premium described
below would apply.
Amortizable Bond Premium on the Notes
If you acquire a 6.25% note or a 5.00% note and your adjusted tax basis
in the 6.25% or 5.00% note upon acquisition, reduced by the value of the
conversion feature upon acquisition, is greater than its principal amount, or if
you acquire a 2.25% note and your adjusted tax basis in the 2.25% note upon
acquisition, reduced by the value of the conversion feature upon acquisition, is
greater than its stated redemption price at maturity, then you will be treated
as having acquired that note with bond premium equal to the excess. You
generally may elect to amortize this bond premium over the remaining term of the
note on a constant yield method. The amount amortized in any year will be
treated as a reduction of your interest income from the note for that year. If
you do not make the election, your bond premium on a note will decrease the gain
or increase the loss that you otherwise recognize on the note's disposition. Any
election to amortize bond premium applies to all debt obligations, other than
debt obligations the interest on which is excludable from gross income, that you
hold at the beginning of the first taxable year to which the election applies or
that you thereafter acquire. You may not revoke an election to amortize bond
premium without the consent of the IRS. We urge you to consult with your tax
advisor regarding this election.
Market Discount on the Notes
If you acquire a 6.25% note or a 5.00% note and your adjusted tax basis
in the 6.25% or 5.00% note upon acquisition is less than its principal amount,
or if you acquire a 2.25% note and your adjusted tax basis in the 2.25% note
upon acquisition is less than its then adjusted issue price, then you will be
treated as having acquired that note at a market discount equal to the
difference. The foregoing does not apply if the amount of the market discount is
less than the de minimis amount specified under the Code. Under the market
discount rules, you will be required to treat any gain on the sale, exchange,
redemption, retirement or other taxable disposition of a note, or any
appreciation in a note in the case of a nontaxable disposition such as a gift,
as ordinary income. The amount of ordinary income equals the market discount
that has not previously been included in your income and that is treated as
having accrued on the note through the date of disposition. In addition, you may
be required to defer, until the maturity of the note or earlier taxable
disposition, the deduction of all or a portion of the interest expense on any
indebtedness incurred or continued to purchase or carry the note.
Any market discount will be considered to accrue evenly during the
period from the day after your acquisition to the maturity date of the note,
unless you elect to accrue the market discount on a constant yield method. You
may also elect to include market discount in income currently as it accrues, on
either an even or constant yield method. In that event, your basis in the note
will increase by the amounts you so include in your
-38-
income. If you make this election, the rules described above regarding ordinary
income on dispositions and deferral of interest deductions will not apply. This
election to include market discount in income currently, once made, applies to
all market discount obligations acquired on or after the first taxable year to
which the election applies. You may not revoke a market discount election
without the consent of the IRS. We urge you to consult with your tax advisor
regarding these market discount elections.
Redemption or Sale of the Notes
Generally, a redemption or sale of your notes will result in your
recognizing taxable gain or loss equal to the difference between the amount of
cash or property you receive and your adjusted tax basis in the notes. This rule
does not apply to cash or property received that is attributable to accrued
interest, because those amounts would be taxed as interest income in the manner
described above. Your adjusted tax basis in a 6.25% note or a 5.00% note
generally will be equal to your acquisition cost for the notes, after reduction
for amounts allocated to prior accrued stated interest, increased by any market
discount included in your income, and reduced by any bond premium you amortized
and principal payments you received. Your adjusted tax basis in a 2.25% note
generally will be equal to your acquisition cost for the notes, after reduction
for amounts allocated to prior accrued stated interest, increased by any OID or
market discount included in your income, and reduced by any bond premium you
amortized and OID or principal payments you received. Subject to the market
discount rules described above, your gain or loss will be capital gain or loss
and will be long-term capital gain or loss if your holding period in the note
exceeds one year.
Repurchase of the Notes at Your Option or by Privately Negotiated
Exchanges
If you exercise your repurchase right, then we will exchange your notes
for cash, Class A common stock or a combination of both. In addition, from time
to time in conjunction with a privately negotiated transaction with you, we may
offer you shares of our Class A common stock as an inducement to convert or
exchange your notes. To the extent the cash or Class A common stock received
constitutes payment of accrued interest, those amounts should be taxed as
interest income in the manner described above. The balance of the cash and Class
A common stock should be treated as proceeds of the conversion or exchange and
taxed in the following manner. In an exchange of notes solely for cash, the
repurchase will be treated as a redemption for cash, the consequences of which
we discussed above. In a conversion or an exchange of notes involving Class A
common stock, the transaction should constitute a recapitalization in which you
would not recognize any taxable gain except to the extent of the cash you
receive, and in which you would not recognize any loss for federal income tax
purposes. Accordingly, your tax basis in the Class A common stock you receive
would equal your adjusted tax basis in the notes you surrendered, plus any
taxable gain you recognized and minus the amount of cash that you received in
the recapitalization. Any gain would be ordinary income to the extent of any
accrued market discount on your notes that you had not previously included in
your income, and otherwise would be capital gain. Any accrued market discount
not previously included in income as of the date of the recapitalization would
carry over to the Class A common stock received and would give rise to ordinary
income upon the subsequent disposition of that stock. Your holding period in the
Class A common stock would include your holding period in the notes you
surrendered in the recapitalization, except that the shares of Class A common
stock attributable to accrued interest would have a holding period commencing
upon the recapitalization.
Conversion of the Notes into Class A Common Stock; Treatment of Class A
Common Stock
You will generally not recognize any gain or loss on conversion of your
notes solely into shares of Class A common stock, except that shares of Class A
common stock attributable to accrued interest may be taxable as interest in the
manner described above. You will have some taxable gain or loss if you receive
cash in lieu of a fractional share of Class A common stock. The cash will be
treated as your receipt of a fractional share, followed by our redemption of it
for cash. The redemption will be treated as a sale of your Class A common stock
which would result in your recognition of gain or loss equal to the difference
between the cash received and your adjusted tax basis in the fractional share of
Class A common stock redeemed. Any gain would be ordinary income to the extent
of any accrued market discount on your notes that you have not previously
included in your income, and otherwise would be capital gain.
Your income tax basis for the shares of Class A common stock received
upon conversion will be equal to the adjusted tax basis of the notes you
exchange, except for any adjustment necessary because of your deemed
-39-
receipt of any interest upon conversion or your receipt of cash in lieu of a
fractional share of Class A common stock. Any accrued market discount not
previously included in income as of the date of the conversion of the notes will
carry over to the Class A common stock received on conversion and will give rise
to ordinary income upon the subsequent disposition of that stock. Your holding
period in the Class A common stock will include your holding period in the notes
you surrendered in the conversion, except that shares of Class A common stock
attributable to accrued interest may have a holding period commencing upon
conversion.
Distributions on Class A common stock are treated as follows:
o first as ordinary dividend income to the extent paid out of
our current or accumulated earnings and profits,
o next as a nontaxable return of capital that reduces your basis
in the stock dollar-for-dollar until the basis has been
reduced to zero, and
o finally as gain from the sale or exchange of the stock.
We do not anticipate making distributions on the Class A common stock at this
time.
Subject to the market discount rules discussed above, your sale or
other taxable disposition of Class A common stock will generally result in
capital gain or loss equal to the difference between the amount of cash or
property you receive and your adjusted tax basis in the stock.
Potential Distributions Resulting from Adjustment of Conversion Price
Your rights to convert your notes into Class A common stock allow for
the conversion price to be adjusted under a number of circumstances, generally
to ensure that you receive an economically equivalent number of shares from a
conversion following stock splits and stock dividends of our Class A common
stock. Section 305 of the Code may treat some of these adjustments as
constructive taxable distributions of stock. This would generally occur if the
conversion price is adjusted for a taxable distribution to the holders of Class
A common stock. Constructive distributions so treated would be taxable as
follows:
o first as ordinary dividend income to the extent paid out of
our current or accumulated earnings and profits,
o next as a nontaxable return of capital to the extent of your
basis in the notes immediately prior to the constructive
distribution, and
o finally as gain from the sale or exchange of the notes.
Your adjusted tax basis in the notes would be increased by constructive
distributions to you taxable as dividends or gain. Your basis would be
unaffected by constructive distributions that were nontaxable returns of
capital. Conversely, a failure to appropriately adjust the conversion price of
the notes could result in a constructive distribution to holders of Class A
common stock that would be taxable to them in a similar manner.
Special Tax Consequences for Non-U.S. Holders
The federal income tax attributes of the notes and Class A common stock
for non-U.S. holders are generally comparable to those described above for U.S.
holders. However, special federal income tax rules apply to non-U.S. holders as
described below.
-40-
In General
If you are a non-U.S. holder, you will generally not be subject to
federal income taxes on payments of principal, premium, if any, or interest or
OID on a note or upon the sale, exchange, redemption, retirement or other
disposition of a note or Class A common stock, if:
o you do not own directly or indirectly 10% or more of the total
voting power of all classes of our voting stock,
o your income and gain in respect of the note or Class A common
stock is not effectively connected with the conduct of a
United States trade or business,
o you are not a controlled foreign corporation that is related
to or under common control with us,
o we or the applicable withholding agent have received from you
a properly executed, applicable IRS Form W-8 or substantially
similar form in the year in which a payment of interest, OID,
principal or premium on a note occurs, or in a preceding
calendar year to the extent provided for in the instructions
to the applicable IRS Form W-8,
o in the case of gain upon the sale, exchange, redemption,
retirement or other disposition of a note or Class A common
stock recognized by an individual non-U.S. holder, you were
present in the United States for less than 183 days during the
taxable year in which the gain was recognized, and
o section 897 of the Code, discussed below, does not apply to
you.
The IRS Form W-8 or substantially similar form must be signed by you
under penalties of perjury certifying that you are a non-U.S. holder and
providing your name and address. You must inform the withholding agent of any
change in the information on the statement within 30 days of the change. If you
hold a note or Class A common stock through a securities clearing organization
or other qualified financial institution, the organization or institution may
provide a signed statement to the withholding agent. However, in that case, they
must generally accompany the signed statement with a copy of the executed IRS
Form W-8 or substantially similar form that you provided to the organization or
institution.
Except in the case of income or gain that is effectively connected with
the conduct of a United States trade or business, discussed immediately below,
interest, OID, dividends or gain recognized by you which does not qualify for
exemption from taxation will be subject to federal income tax and withholding at
a rate of 30% unless reduced or eliminated by an applicable tax treaty. For
example, neither constructive distributions on notes taxable as dividends, nor
excess cash dividend payments on notes, nor dividends on Class A common stock
would qualify for exemption from taxation, although an applicable tax treaty may
reduce the federal income tax and withholding rate on these items to below 30%.
You may generally use IRS Form 1001 to claim tax treaty benefits for calendar
year 2000, and under new Treasury regulations discussed below an applicable IRS
Form W-8 or substantially similar form for subsequent calendar years.
Effectively Connected Income and Gain
If you are a non-U.S. holder whose income and gain in respect of a note
or Class A common stock is effectively connected with the conduct of a United
States trade or business, you will be subject to regular federal income tax on
this income and gain in generally the same manner as a U.S. holder, and general
federal income tax return filing requirements will apply. In addition, if you
are a corporation, you may be subject to a branch profits tax equal to 30% of
your effectively connected adjusted earnings and profits for the taxable year,
unless you qualify for a lower rate under an applicable tax treaty. To obtain an
exemption from withholding on interest, dividends, and OID, you may generally
supply to the withholding agent an IRS Form 4224 for calendar year 2000, and
under new Treasury regulations discussed below an applicable IRS Form W-8 or
substantially similar form for subsequent calendar years.
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We believe that we are currently and will continue to be a United
States real property holding corporation. Because of this, section 897 of the
Code and the applicable Treasury regulations potentially cause any gain or loss
you realize upon a disposition of your notes or Class A common stock to be
treated as effectively connected with the conduct of a trade or business in the
United States, and thus taxable as effectively connected gain in the manner
described above. Section 897 can also cause realized gains that would otherwise
remain unrecognized, for example gains in a recapitalization where you have
required us or privately negotiated with us to repurchase your note in exchange
for Class A common stock, to be recognized in full absent compliance with
procedural requirements under section 897. We believe that, provided our Class A
common stock continues to be regularly traded on the New York Stock Exchange,
you will not recognize taxable gain under section 897 on a disposition of a
6.25%, 5.00% or 2.25% note or Class A common stock, so long as you meet the
following three standards:
o you have not directly or indirectly owned, at any time during
the five-year period preceding the disposition, more than 5%
of the total outstanding 6.25% notes, more than 5% of the
total outstanding 5.00% notes or more than 5% of the total
outstanding 2.25% notes;
o you have not directly or indirectly owned more than 5% of the
outstanding Class A common stock at any time during the
five-year period preceding the disposition; and
o upon the date of your acquisition of any of the notes or any
other interests in our company not regularly traded on an
established securities market, the aggregate fair market value
of all of your direct and indirect interests in our company
not regularly traded on an established securities market does
not exceed 5% of the aggregate value of our outstanding Class
A common stock.
We urge you to consult with your tax advisor to determine whether you meet these
three standards, or whether you otherwise qualify for exemption from section 897
of the Code.
Our Deductions for Interest and OID on the Notes
Under section 279 of the Code, deductions otherwise allowable to a
corporation for interest and OID expense may be reduced or eliminated in the
case of corporate acquisition indebtedness. This is defined generally to include
subordinated convertible debt issued to provide consideration for the
acquisition of stock or a substantial portion of the assets of another
corporation, if the acquiring corporation does not meet statutorily specified
debt/equity ratio and earnings coverage tests. Our deductions for interest and
OID expense on any notes could be reduced or eliminated if the notes meet the
definition of corporate acquisition indebtedness in the year of issue. Also, the
notes could become corporate acquisition indebtedness in a subsequent year if we
initially meet the debt/equity ratio and earnings coverage tests, but later fail
them in a year during which we issue additional indebtedness for corporate
acquisitions. Because the notes are not expressly subordinated to any of our
unsecured debt, and because the notes have the same creditor priority as more
than an insubstantial amount of our trade debt, we believe the notes are not
subordinated within the meaning of section 279 of the Code and therefore do not
constitute corporate acquisition indebtedness.
Under section 163(l) of the Code, our deduction for interest and OID
expense on the notes would be disallowed if they are found to be disqualified
debt instruments. Disqualified debt instruments are debt instruments:
o where a substantial amount of the principal or interest is
required to be paid or converted, or at the option of the
issuer or a related party is payable in or convertible into,
issuer equity, or
o which are part of an arrangement that is reasonably expected
to result in a transaction described in the preceding clause.
For these purposes, principal or interest on a debt instrument is treated as
required to be paid in or converted into issuer equity if the payment or
conversion may be required at the option of the holder and that option is
substantially certain to be exercised. We do not believe that principal or
interest on the notes is required to be paid in or converted into our equity
under section 163(l), because principal or interest on our notes may only be
exchanged for equity in our company at the holder's option, and we do not
believe that this option is substantially certain to be
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exercised. Furthermore, the legislative history of section 163(l) indicates that
the provision is not intended to apply to debt instruments with a conversion
feature where the conversion price is significantly higher than the market price
of the stock on the issue date of the debt. We believe that the conversion
prices of the notes were significantly higher than the market price of our Class
A common stock on the dates the notes were issued. Accordingly, we believe that
the notes are not disqualified debt instruments under section 163(l) of the
Code. However, our conclusions in this regard are factual judgments. We can give
no legal opinion on these matters and we cannot assure you that the IRS or a
court would agree with our conclusions.
Information Reporting, Income Tax Withholding and Backup Withholding
Information reporting, income tax withholding and backup withholding
may apply to interest, OID, dividend and other payments to you under the
circumstances discussed below. Amounts withheld are generally not an additional
tax and may be refunded or credited against your federal income tax liability,
provided you furnish the required information to the IRS.
If You are a U.S. Holder. You may be subject to backup withholding at a
31% rate when you receive interest, OID and dividends with respect to the notes
or Class A common stock, or when you receive proceeds upon the sale, exchange,
redemption, retirement or other disposition of the notes or Class A common
stock. In general, you can avoid this backup withholding by properly executing
under penalties of perjury an IRS Form W-9 or substantially similar form that
provides:
o your correct taxpayer identification number, and
o a certification that (a) you are exempt from backup
withholding because you are a corporation or come within
another enumerated exempt category, (b) you have not been
notified by the IRS that you are subject to backup
withholding, or (c) you have been notified by the IRS that you
are no longer subject to backup withholding.
If you do not provide your correct taxpayer identification number on the IRS
Form W-9 or substantially similar form, you may be subject to penalties imposed
by the IRS.
Unless you have established on a properly executed IRS Form W-9 or
substantially similar form that you are a corporation or come within another
enumerated exempt category, interest, OID, dividend and other payments on the
notes or Class A common stock paid to you during the calendar year, and the
amount of tax withheld, if any, will be reported to you and to the IRS.
Special Rule for U.S. Holders Beneficially Owned by Non-U.S. Holders.
As stated above, we believe that we are currently and will continue to be a
United States real property holding corporation under section 897 of the Code.
Section 1445 of the Code governs income tax withholding for gains taxable to
non-U.S. holders under section 897. It provides that upon a disposition of the
notes or Class A common stock, income tax withholding may be required of
disposing U.S. holders that are partnerships, trusts, estates or other entities
because of their beneficial ownership by non-U.S. holders. We believe that, so
long as our Class A common stock continues to be regularly traded on the New
York Stock Exchange, you will not have to withhold upon a disposition of the
notes or Class A common stock under section 1445 of the Code if you meet the 5%
thresholds discussed above that are applicable to non-U.S. holders on the
disposition of the notes and Class A common stock. We urge you to consult with
your tax advisor to determine whether you meet these standards, or whether you
otherwise qualify for exemption from sections 897 and 1445 of the Code.
Special Rule for Substantial Acquisitions from Non-U.S. Holders. As
stated above, we believe we are currently and will continue to be a United
States real property holding corporation under section 897 of the Code. Because
of this, section 1445 of the Code may require a person acquiring notes from a
non-U.S. holder to withhold 10% of the purchase price. However, provided our
Class A common stock continues to be regularly traded on the New York Stock
Exchange, this 10% withholding is generally not required for an acquisition of
notes where the purchase price constitutes 5% or less of the then aggregate
value of the outstanding Class A common stock. We
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urge you to consult with your tax advisor to determine whether you meet this
standard, or whether you otherwise qualify for exemption from section 1445 of
the Code.
If You are a Non-U.S. Holder. The amount of interest, OID and dividends
paid to you on a note or Class A common stock during each calendar year, and the
amount of tax withheld, if any, will generally be reported to you and to the
IRS. This information reporting requirement applies regardless of whether you
were subject to withholding or whether withholding was reduced or eliminated by
an applicable tax treaty. Also, interest, OID and dividends paid to you may be
subject to backup withholding at a 31% rate, unless you properly certify your
non-U.S. holder status on an IRS Form W-8 or substantially similar form.
Similarly, information reporting and 31% backup withholding will not apply to
proceeds you receive upon the sale, exchange, redemption, retirement or other
disposition of the notes or Class A common stock, if you properly certify that
you are a non-U.S. holder on an IRS Form W-8 or substantially similar form. Even
without having executed an IRS Form W-8 or substantially similar form, however,
in some cases information reporting and 31% backup withholding will not apply to
proceeds you receive upon the sale, exchange, redemption, retirement or other
disposition of the notes or Class A common stock if you receive those proceeds
through a broker's foreign office.
If you are a non-U.S. holder whose income and gain on the notes or
Class A common stock are effectively connected with the conduct of a United
States trade or business, a slightly different rule may apply to proceeds you
receive upon the sale, exchange, redemption, retirement or other disposition of
those securities. Until you comply with the new Treasury regulations discussed
below, information reporting and 31% backup withholding may apply to you in the
same manner as to a U.S. holder, and thus you may have to execute an IRS Form
W-9 or substantially similar form to prevent the backup withholding.
New Treasury Regulations. New Treasury regulations alter the
withholding rules on interest, OID, dividends and sale or exchange proceeds paid
to you, effective generally for payments after December 31, 2000 and subject to
complex transition rules. For example, documentation and procedures satisfying
the new Treasury regulations are deemed in some instances to satisfy current law
requirements. In these instances you or the withholding agent may wish to
satisfy the requirements of the new Treasury regulations rather than the
requirements of the Treasury regulations soon to expire. The new Treasury
regulations are complex, and we urge you to consult with your tax advisor to
determine how the new Treasury regulations affect your particular circumstances.
The new Treasury regulations replace old IRS Forms W-8, 1001 and 4224
with a new series of IRS Forms W-8, which you will generally have to properly
execute earlier than you would have otherwise had to for purposes of providing
replacements for the old IRS forms. For example, you must properly execute the
appropriate new version of IRS Form W-8 or substantially similar form no later
than December 31, 2000 if you remain a non-U.S. holder of the notes or Class A
common stock on that date. Under the new Treasury regulations, it may also be
possible for you to receive payments on those securities through a qualified
intermediary that complies with requisite procedures and provides applicable
certification of your non-U.S. holder status on your behalf. The new Treasury
regulations also clarify withholding agents' standards of reliance on executed
IRS Forms W-8 or substantially similar forms.
If you are a non-U.S. holder claiming benefits under an income tax
treaty, you should be aware that you may be required to obtain a taxpayer
identification number and to certify your eligibility under the applicable
treaty's limitations on benefits article in order to comply with the new
Treasury regulations' certification requirements. The new Treasury regulations
also provide special rules to determine whether, for purposes of determining the
applicability of a tax treaty, amounts paid to a non-U.S. holder that is an
entity should be treated as paid to the entity or to those holding the ownership
interests in that entity, and whether the entity or the holders in the entity
are entitled to benefits under the tax treaty.
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PLAN OF DISTRIBUTION
The notes and Class A common stock may be sold from time to time to
purchasers directly by the selling securityholders or through broker-dealers
that may act as agents or principals, and for which they may receive
compensation that may be in excess of customary commissions. The selling
securityholders may offer the notes with discounts, concessions or commissions
from the selling securityholders or the purchasers of the notes and Class A
common stock for whom such broker-dealers may act as agents or to whom they sell
as principals or both.
We may issue Class A common stock to holders of notes in negotiated
private exchanges that are not eligible for the exemption from registration
provided by Section 3(a)(9) of the Securities Act because, for example, the note
holder owns notes that have not previously been registered or the note holder is
a broker-dealer that would under the circumstances be considered an
"underwriter." Such Class A common stock may also be resold from time to time by
any such former note holder who must or may be required to register that sale
under the Securities Act because, for example, the note holder is our affiliate
or otherwise must deliver a prospectus as described below.
The notes and Class A common stock may be sold from time to time in one
or more transactions at fixed prices or at varying prices determined at the time
of sale that are based on prevailing market prices or at negotiated prices. The
notes and Class A common stock may be sold by one or more of the following
methods of sale:
o a block trade in which the broker or dealer so engaged will
attempt to sell the notes or Class A common stock as agent but
may position and resell a portion of the block as principal to
facilitate the transaction,
o purchases by a broker or dealer as principal and resale by it
for its account pursuant to this prospectus,
o sales of Class A common stock by a broker or dealer who
acquired them in a negotiated transaction with us pursuant to
an exchange or conversion of notes acquired by it as a market
maker or in other trading activity.
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers,
o an exchange distribution in accordance with the rules of that
exchange,
o face-to-face transactions between sellers and purchasers
without a broker-dealer,
o through the writing, buying and selling of put or call options
relating to the Class A common stock,
o through covering short sales of the Class A common stock,
and/or
o through a combination of such methods of sale.
At any time a particular offer of the notes or Class A common stock is
made, a revised prospectus or prospectus supplement, if required, will be
distributed. It will set forth the aggregate amount and type of securities being
offered and the terms of the offering, including the name or names of any
underwriters, brokers, dealers or agents, any discounts, commissions,
concessions and other items constituting compensation from the selling
securityholders and any discounts, commissions or concessions allowed or
reallowed or paid to dealers. The prospectus supplement and, if necessary, a
post-effective amendment to the registration statement of which this prospectus
is a part, will be filed with the SEC to reflect the disclosure of additional
information with respect to the distribution of the notes and Class A common
stock.
We know of no plans, arrangements or understandings between any selling
securityholders and any broker, dealer, agent or underwriter regarding the sale
of the securities by the selling securityholders. We cannot assure you that any
selling securityholder will sell any or all of the securities offered by it
under this prospectus or that any
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selling securityholder will not transfer, devise or gift those securities by
other means not described in this prospectus. Notes and Class A common stock
covered by this prospectus may also be sold in private transactions or under
Rule 144 rather than pursuant to this prospectus.
If you receive shares of Class A common stock pursuant to a negotiated
private exchange transaction with us, those shares will, generally, be freely
transferable without further registration under the Securities Act by you and
without compliance with the registration and prospectus delivery provisions of
the Securities Act. Your ability to so transfer your shares of Class A common
stock assumes you acquired those shares in the ordinary course of your business
and you have no arrangement with any person to participate in the distribution
of those shares. Moreover, the foregoing does not apply to you if you are a
broker or dealer who acquired notes as a market maker or in other trading
activity, or if you are our affiliate as that term is defined under the
Securities Act.
Each broker-dealer that acquires notes for its own account as a result
of market-making or other trading activities, and then receives shares of Class
A common stock pursuant to a negotiated private exchange transaction with us,
must acknowledge that it will deliver a prospectus in connection with any resale
of any of those shares. Any negotiated private exchange agreement will state
that, by making that acknowledgement and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. Delivery of this prospectus, as it may be amended
or supplemented from time to time, will satisfy a broker-dealer's delivery
obligation in connection with its resales of those shares of Class A common
stock.
The selling securityholders and any brokers, dealers or agents who
participate in the distribution of the notes and Class A common stock may be
deemed to be underwriters. Accordingly, any profits on the sale of the notes and
Class A common stock by them and any discounts, commissions or concessions
received by any brokers, dealers or agents might be deemed to be underwriting
discounts and commissions under the Securities Act. To the extent the selling
securityholders and any brokers, dealers or agents may be deemed to be
underwriters, the selling securityholders may be subject to certain statutory
liabilities, including Sections 11, 12 and 17 of the Securities Act and Rule
10b-5 under the Exchange Act and will be subject to the prospectus delivery
requirements of the Securities Act.
The selling securityholders and any other person participating in a
distribution will be subject to applicable provisions of the Exchange Act and
the rules and regulations under that act, including Regulation M. Regulation M
may limit the timing of purchases and sales of any of the notes and Class A
common stock by the selling securityholders and any other participating person.
Furthermore, Regulation M may restrict the ability of any person engaged in the
distribution of the notes and Class A common stock to engage in market-making
activities with respect to the particular notes and Class A common stock being
distributed for a period of up to five business days prior to the commencement
of the distribution. All of the foregoing may affect the marketability of the
notes and Class A common stock and the ability of any person to engage in
market-making activities with respect to the notes and Class A common stock.
Pursuant to the registration rights agreements, we and each of the
selling securityholders will be indemnified by the other against certain
liabilities, including certain liabilities under the Securities Act, or will be
entitled to contribution in connection with these matters.
We have agreed to pay substantially all of the expenses incidental to
the registration, offering and resale by the selling securityholders of the
notes and Class A common stock to the public other than commissions, fees and
discounts of underwriters, brokers, dealers and agents.
Pursuant to two separate registration rights agreements, we have agreed
to keep this prospectus current, with respect to the 6.25% notes and 2.25%
notes, until October 4, 2001, and with respect to the 5.00% notes, until
February 15, 2002. Copies of each of these agreements are filed as exhibits to
the registration statement of which this prospectus is a part and are
incorporated herein by this reference.
LEGAL MATTERS
Sullivan & Worcester LLP, Boston, Massachusetts has passed upon the
validity of the notes and the Class A common stock issuable upon conversion or
exchange of the notes for us. Sullivan & Worcester LLP, Boston,
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Massachusetts, also passed upon certain matters relating to United States
federal income tax considerations for us, as our special tax counsel. Norman A.
Bikales, a member of the firm of Sullivan & Worcester LLP, is the owner of
11,000 shares of Class A common stock and 41,490 shares of Class B common stock
and has 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
for us and for certain of our subsidiaries.
EXPERTS
The consolidated financial statements of American Tower Corporation
incorporated in this prospectus by reference from American Tower Corporation's
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.
ABOUT THIS PROSPECTUS
This prospectus is a combined prospectus under two registration
statements on Forms S-3 that we filed with the SEC, covering the resale of the
notes and the shares issuable upon conversion of the notes, and a registration
statement on Form S-4 covering the issuance of 2,000,000 additional shares of
Class A common stock that we may offer to certain note holders to induce them to
convert or exchange their notes. This prospectus provides you with a description
of the securities we and the selling securityholders may offer. It may not
identify all selling securityholders. We or the selling securityholders may
provide prospectus supplements identifying additional selling securityholders.
Prospectus supplements 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."
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.
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
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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 Reports on Form 10-Q for the quarters ended
March 31, 1999 and 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, May
23, 2000, June 12, 2000, June 23, 2000, June 29,2000, July 28,
2000 and August 1, 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. To obtain timely delivery, you must
request the information no later than five business days before you make your
investment decision.
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
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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 6. 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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[LOGO]
AMERICAN TOWER CORPORATION
REGISTRATION STATEMENT ON FORM S-4
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Section 145 of the DGCL provides, in effect, that any person made a party
to any action by reason of the fact that he is or was a director, officer,
employee or agent of ATC may and, in certain cases, must be indemnified by
ATC against, in the case of a non-derivative action, judgments, fines,
amounts paid in settlement and reasonable expenses (including attorney's
fees), if in either type of action he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of ATC
and, in a non-derivative action, which involves a criminal proceeding, in
which such person had no reasonable cause to believe his conduct was
unlawful. This indemnification does not apply, in a derivative action, to
matters as to which it is adjudged that the director, officer, employee or
agent is liable to ATC, unless upon court order it is determined that,
despite such adjudication of liability, but in view of all the
circumstances of the case, he is fairly and reasonably entitled to
indemnity for expenses.
Article XII of ATC's By-Laws provides that ATC shall indemnify each person
who is or was an officer or director of ATC to the fullest extent permitted
by Section 145 of the DGCL.
Article Sixth of ATC's Restated Certificate states than no director of ATC
shall be personally liable to ATC or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for (i) breach of the
director's duty of loyalty to ATC or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) liability under Section 174 of the DGCL
relating to certain unlawful dividends and stock repurchases, or (iv) any
transaction from which the director derived an improper personal benefit.
Item 21. Exhibits and Financial Statements Schedules.
Listed below are the exhibits which are filed as part of this Registration
Statement on Form S-4 (according to the number assigned to them in Item 601
of Regulation S-K). Each exhibit marked by a (+) is incorporated by
reference to the filing of ATC's Quarterly Report on Form 10-Q (File No.
001-14195) on August 16, 1999. Each exhibit marked by a (++) is
incorporated by reference to the filing of ATC's Registration Statement on
Form S-3 (File No. 333-37988) on May 26, 2000. Each exhibit marked by a
(+++) is incorporated by reference to the filing of ATC's Registration
Statement on Form S-3 (File No. 333-89345) on October 20, 1999. Each
exhibit marked by a (++++) is incorporated by reference to the filing of
ATC's Current Report on Form 8-K filed on February 24, 2000. Each exhibit
marked by a (+++++) is incorporated by reference to the filing of ATC's
Registration Statement on Form S-1 (File No. 333-50111) filed on May 8,
1998. Each exhibit marked by a (++++++) is incorporated by reference to the
filing of Amendment No. 2 to ATC's Registration Statement on Form S-1 (File
No. 333-52481) filed on June 30, 1998. Each exhibit marked by a (*) is
incorporated by reference to the filing of ATC's Registration Statement on
Form S-4 (File No. 333-76083) on January 15, 1999. Each exhibit marked by a
(**) is incorporated by reference to the filing of ATC's Annual Report on
Form 10-K (File No. 001-14195) filed on March 19, 1999. Each exhibit marked
by a (***) is incorporated by reference to ATC's Registration Statement on
Form S-4 (File No. 333-46025) filed on February 10, 1998. Each exhibit
marked by a (****) is incorporated by reference to the filing of ATC's
Current Report on Form 8-K filed on January 28, 2000. Each exhibit marked
by a (*****) is incorporated by reference to the filing of ATC's Annual
Report on Form 10-K (File No. 001-14195) filed on March 29, 2000. Each
exhibit marked by a (******) is incorporated by reference to the filing
II-1
of ATC's Quarterly Report on Form 10-Q (File No. 001-14195) on August 14,
1998. Each exhibit marked by a (*******) is incorporated by reference to
the filing of ATC's Current Report on Form 8-K filed on September 17, 1999.
Each exhibit marked by a (********) is incorporated by reference to the
filing of ATC's Registration Statement on Form S-4 (File No. 333-39030) on
June 9, 2000. Exhibit numbers in parenthesis refer to the exhibit number in
the applicable filing.
Exhibit Description of Document Exhibit File No.
-------- ------------------------ ----------------
No.
---
3.1 Restated Certificate of Incorporation, as amended, of the
Company as filed with the Secretary of State of the State of
Delaware on June 4, 1999 (+3(i))
3.2 By-Laws, as amended, of the Company (++3.2)
4.1 Indenture, by and between the Company and The Bank of New York
as Trustee, for the 6.25% Notes, dated as of October 4, 1999,
including form of 6.25% Note (+++4.1)
4.2 Indenture by and between the Company and The Bank of New York
as Trustee, for the 2.25% Notes, dated as of October 4, 1999,
including the form of 2.25% Note. (+++4.2)
4.3 Form of 6.25% Note (included in Exhibit 4.1) Filed as part of Exhibit 4.1(+++)
4.4 Form of 2.25% Note (included in Exhibit 4.2) Filed as part of Exhibit 4.2(+++)
4.5 Registration Rights Agreement, by and between the Company and
the Initial Purchasers named therein, dated as of October 4,
1999 (+++4.5)
4.6 Indenture, by and between the Company and The Bank of New York
as Trustee, for the 5.0% Notes, dated as of February 15, 2000,
including form of 5.0% Note (++++4.1)
4.7 Form of 5.0% Note (included in Exhibit 4.6) Filed as part of Exhibit 4.1(++++)
4.8 Registration Rights Agreement, by and between the Company and
the Initial Purchasers named therein, dated as of February 15,
2000 Filed as Exhibit 4.5(++++)
5 Opinion of Sullivan & Worcester LLP Filed as Exhibit 5(********)
8 Tax Opinion of Sullivan & Worcester LLP Filed as Exhibit 8(********)
10.1 American Tower Systems Corporation 1997 Stock Option Plan,
dated as of November 5, 1997, as amended and restated on April
27, 1998 (+++++10.26)
10.1A Amendment to the Amended and Restated American Tower
Corporation 1997 Stock Option Plan as Amended and Restated on
April 27, 1998 (*****10.1A)
10.2 American Tower Systems Corporation Stock Purchase Agreement,
dated as of January 8, 1998, by and among ATC and the
Purchasers (***10.27)
II-2
Exhibit Description of Document Exhibit File No.
-------- ------------------------ ----------------
No.
---
10.3 Employment Agreement, dated as of January 22, 1998, by and
between ATC by and between ATI and J. Michael Gearon, Jr. (***10.28)
10.4 Letter of Agreement, dated as of April 13, 1998, by and between
ATC and Douglas Wiest (*10.22)
10.5 ARS-ATS Separation Agreement, dated as of June 4, 1998 by and
among American Radio Systems Corporation, a Delaware
Corporation ("ARS"), ATC and CBS Corporation (++++++10.30)
10.6 Securities Purchase Agreement, dated as of June 4, 1998 by and
among ATC, Credit Suisse First Boston Corporation and each of
the Purchasers named therein (++++++10.31)
10.7 Registration Rights Agreement, dated June 4, 1998, by and
among ATC, Credit Suisse First Boston Corporation and each of
the Parties named therein (++++++10.32)
10.8 Registration Rights Agreement, dated as of January 22, 1998, by
and among ATC and each of the Parties named therein (******10.3)
10.9 Stock Purchase Agreement, dated as of February 4, 1999, by and
among ATC and Credit Suisse First Boston Corporation (**10.12)
10.10 Registration Rights Agreement, dated as of February 4, 1999, by
and among ATC and Credit Suisse First Boston Corporation (**10.13)
10.11 Amended and Restated Registration Rights Agreement, dated as of
February 25, 1999, by and among ATC and each of the Parties
named therein (**1014)
10.12 Agreement to Sublease, dated as of August 6, 1999, by and
between AirTouch Communications, Inc., the other parties named
therein as Sublessors, ATC and American Tower, L.P. (+10.1)
10.13 Stock Purchase Agreement, dated as of August 11, 1999, between
ATC Teleports, Inc., ICG Holdings, Inc. and ICG Satellite
Services (+10.2)
10.14 Purchase and Sale Agreement, dated as of September 10, 1999, by
and among ATC and AT&T Corp., a New York corporation (*******10.1)
10.15 Amended and Restated Loan Agreement, dated as of January 6,
2000, among American Tower, L.P., American Towers, Inc. and ATC
Teleports, Inc., as Borrowers and Toronto Dominion (Texas)
Inc., as Administrative Agent, and the Bank Parties thereto
(****10.1)
10.16 ATC Teleports Corporation 1999 Stock Option Plan (*****10.16)
10.17 Kline Iron & Steel Co., Inc. 2000 Stock Option Plan (*****10.17)
10.18 American Tower Corporation 2000 Employee Stock Purchase Plan (*****10.18)
II-3
Exhibit Description of Document Exhibit File No.
-------- ------------------------ ----------------
No.
---
12 Statement Regarding Computation of Ratios of Earnings to Fixed
Charges Filed as Exhibit 12(********)
21 Subsidiaries of ATC Filed as Exhibit 21(********)
23 Consent of Sullivan & Worcester LLP Contained in the opinion of Sullivan &
Worcester LLP filed as part of
Exhibits 5 and 8(********)
23.1 Independent Auditors' Consent--Deloitte & Touche LLP Filed herewith as Exhibit 23.1
23.2 Accountants' Consent - KPMG LLP Filed herewith as Exhibit 23.2
23.3 Accountants' Consent - KPMG LLP Filed herewith as Exhibit 23.3
24 Power of Attorney Filed as page II-6 of the Registration
Statement(********)
Item 22. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii)To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in this registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) under the
Securities Act of 1933 if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in this registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i)
and (a)(1)(ii) above do not apply if the registration statement is on Form
S-3 or Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the
II-4
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination
of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions
referred to in Item 15 of this registration statement, or otherwise,
the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes:
(1) To file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section
310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the Commission under Section 305(b)(2)
of the Act.
(e) The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the
prospectus pursuant to Item 4, 10(b), 11, or 13 of this form, within
one business day of receipt of such request, and to send the
incorporated documents by first class mail or other equally prompt
means. This includes information contained in documents filed
subsequent to the effective date of the registration statement through
the date of responding to the request.
(f) The undersigned registrant hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction,
and the company being acquired involved therein, that was not the
subject of and included in the registration statement when it became
effective.
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-4 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on the 4th day
of August, 2000.
AMERICAN TOWER CORPORATION
By: /s/ Steven B Dodge*
Steven B. Dodge
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1
to Registration Statement has been signed below by the following persons on
behalf of the Company and in the capacities and on the dates indicated.
Signature Title Date
/s/ Steven B. Dodge* Chairman, President, Chief August 4, 2000
Steven B. Dodge Executive Officer and Director
/s/ Joseph L. Winn* Chief Financial Officer and August 4, 2000
Joseph L. Winn Treasurer
/s/ Justin D. Benincasa Vice President and Corporate August 4, 2000
Justin D. Benincasa Controller
*Individually and as Attorney-in Fact
/s/ Alan L. Box* Executive Vice President and August 4, 2000
Alan L. Box Director
_______________________ Director August 4, 2000
Arnold L. Chavkin
/s/ Dean H. Eisner* Director August 4, 2000
Dean H. Eisner
II-6
_____________________ Executive Vice President and August 4, 2000
J.Michael Gearon, Jr. Director
/s/ Fred R. Lummis* Director August 4, 2000
Fred R. Lummis
/s/ Randall Mays* Director August 4, 2000
Randall Mays
/s/ Thomas H. Stoner* Director August 4, 2000
Thomas H. Stoner
_____________________ Director August 4, 2000
Maggie Wilderotter
II-7
EXHIBIT INDEX
Listed below are the exhibits which are filed as part of this Registration
Statement on Form S-4 (according to the number assigned to them in Item 601 of
Regulation S-K). Each exhibit marked by a (+) is incorporated by reference to
the filing of ATC's Quarterly Report on Form 10-Q (File No. 001-14195) on August
16, 1999. Each exhibit marked by a (++) is incorporated by reference to the
filing of ATC's Registration Statement on Form S-3 (File No. 333-37988) on May
26, 2000. Each exhibit marked by a (+++) is incorporated by reference to the
filing of ATC's Registration Statement on Form S-3 (File No. 333-89345) on
October 20, 1999. Each exhibit marked by a (++++) is incorporated by reference
to the filing of ATC's Current Report on Form 8-K filed on February 24, 2000.
Each exhibit marked by a (+++++) is incorporated by reference to the filing of
ATC's Registration Statement on Form S-1 (File No. 333-50111) filed on May 8,
1998. Each exhibit marked by a (++++++) is incorporated by reference to the
filing of Amendment No. 2 to ATC's Registration Statement on Form S-1 (File No.
333-52481) filed on June 30, 1998. Each exhibit marked by a (*) is incorporated
by reference to the filing of ATC's Registration Statement on Form S-4 (File No.
333-76083) on January 15, 1999. Each exhibit marked by a (**) is incorporated by
reference to the filing of ATC's Annual Report on Form 10-K (File No. 001-14195)
filed on March 19, 1999. Each exhibit marked by a (***) is incorporated by
reference to ATC's Registration Statement on Form S-4 (File No. 333-46025) filed
on February 10, 1998. Each exhibit marked by a (****) is incorporated by
reference to the filing of ATC's Current Report on Form 8-K filed on January 28,
2000. Each exhibit marked by a (*****) is incorporated by reference to the
filing of ATC's Annual Report on Form 10-K (File No. 001-14195) filed on March
29, 2000. Each exhibit marked by a (******) is incorporated by reference to the
filing of ATC's Quarterly Report on Form 10-Q (File No. 001-14195) on August 14,
1998. Each exhibit marked by a (*******) is incorporated by reference to the
filing of ATC's Current Report on Form 8-K filed on September 17, 1999. Each
exhibit marked by a (********) is incorporated by reference to the filing of
ATC's Registration Statement on Form S-4 (File No. 333-39030) on June 9, 2000.
Exhibit numbers in parenthesis refer to the exhibit number in the applicable
filing.
Exhibit Description of Document Exhibit File No.
-------- ------------------------ ----------------
No.
---
3.1 Restated Certificate of Incorporation, as amended, of the
Company as filed with the Secretary of State of the State of
Delaware on June 4, 1999 (+3(i))
3.2 By-Laws, as amended, of the Company (++3.2)
4.1 Indenture, by and between the Company and The Bank of New York
as Trustee, for the 6.25% Notes, dated as of October 4, 1999,
including form of 6.25% Note (+++4.1)
4.2 Indenture by and between the Company and The Bank of New York
as Trustee, for the 2.25% Notes, dated as of October 4, 1999,
including the form of 2.25% Note. (+++4.2)
4.3 Form of 6.25% Note (included in Exhibit 4.1) Filed as part of Exhibit 4.1(+++)
4.4 Form of 2.25% Note (included in Exhibit 4.2) Filed as part of Exhibit 4.2(+++)
4.5 Registration Rights Agreement, by and between the Company and
the Initial Purchasers named therein, dated as of October 4,
1999 (+++4.5)
4.6 Indenture, by and between the Company and The Bank of New York
as Trustee, for the 5.0% Notes, dated as of February 15, 2000,
including form of 5.0% Note (++++4.1)
II-8
Exhibit Description of Document Exhibit File No.
-------- ------------------------ ----------------
No.
---
4.7 Form of 5.0% Note (included in Exhibit 4.6) Filed as part of Exhibit 4.1(++++)
4.8 Registration Rights Agreement, by and between the Company and
the Initial Purchasers named therein, dated as of February 15,
2000 Filed as Exhibit 4.5(++++)
5 Opinion of Sullivan & Worcester LLP Filed as Exhibit 5(********)
8 Tax Opinion of Sullivan & Worcester LLP Filed as Exhibit 8(********)
10.1 American Tower Systems Corporation 1997 Stock Option Plan,
dated as of November 5, 1997, as amended and restated on April
27, 1998 (+++++10.26)
10.1A Amendment to the Amended and Restated American Tower
Corporation 1997 Stock Option Plan as Amended and Restated on
April 27, 1998 (*****10.1A)
10.2 American Tower Systems Corporation Stock Purchase Agreement,
dated as of January 8, 1998, by and among ATC and the
Purchasers (***10.27)
10.3 Employment Agreement, dated as of January 22, 1998, by and
between ATC by and between ATI and J. Michael Gearon, Jr. (***10.28)
10.4 Letter of Agreement, dated as of April 13, 1998, by and between
ATC and Douglas Wiest (*10.22)
10.5 ARS-ATS Separation Agreement, dated as of June 4, 1998 by and
among American Radio Systems Corporation, a Delaware
Corporation ("ARS"), ATC and CBS Corporation (++++++10.30)
10.6 Securities Purchase Agreement, dated as of June 4, 1998 by and
among ATC, Credit Suisse First Boston Corporation and each of
the Purchasers named therein (++++++10.31)
10.7 Registration Rights Agreement, dated June 4, 1998, by and
among ATC, Credit Suisse First Boston Corporation and each of
the Parties named therein (++++++10.32)
10.8 Registration Rights Agreement, dated as of January 22, 1998, by
and among ATC and each of the Parties named therein (******10.3)
10.9 Stock Purchase Agreement, dated as of February 4, 1999, by and
among ATC and Credit Suisse First Boston Corporation (**10.12)
10.10 Registration Rights Agreement, dated as of February 4, 1999, by
and among ATC and Credit Suisse First Boston Corporation (**10.13)
10.11 Amended and Restated Registration Rights Agreement, dated as of
February 25, 1999, by and among ATC and each of the Parties
named therein (**1014)
II-9
Exhibit Description of Document Exhibit File No.
-------- ------------------------ ----------------
No.
---
10.12 Agreement to Sublease, dated as of August 6, 1999, by and
between AirTouch Communications, Inc., the other parties named
therein as Sublessors, ATC and American Tower, L.P. (+10.1)
10.13 Stock Purchase Agreement, dated as of August 11, 1999, between
ATC Teleports, Inc., ICG Holdings, Inc. and ICG Satellite
Services (+10.2)
10.14 Purchase and Sale Agreement, dated as of September 10, 1999, by
and among ATC and AT&T Corp., a New York corporation (*******10.1)
10.15 Amended and Restated Loan Agreement, dated as of January 6,
2000, among American Tower, L.P., American Towers, Inc. and ATC
Teleports, Inc., as Borrowers and Toronto Dominion (Texas)
Inc., as Administrative Agent, and the Bank Parties thereto
(****10.1)
10.16 ATC Teleports Corporation 1999 Stock Option Plan (*****10.16)
10.17 Kline Iron & Steel Co., Inc. 2000 Stock Option Plan (*****10.17)
10.18 American Tower Corporation 2000 Employee Stock Purchase Plan (*****10.18)
12 Statement Regarding Computation of Ratios of Earnings to
Fixed Charges Filed as Exhibit 12(********)
21 Subsidiaries of ATC Filed as Exhibit 21(********)
23 Consent of Sullivan & Worcester LLP Contained in the opinion of Sullivan &
Worcester LLP filed as part of
Exhibits 5 and 8(********)
23.1 Independent Auditors' Consent--Deloitte & Touche LLP Filed herewith as Exhibit 23.1
23.2 Accountants' Consent - KPMG LLP Filed herewith as Exhibit 23.2
23.3 Accountants' Consent - KPMG LLP Filed herewith as Exhibit 23.3
24 Power of Attorney Filed as page II-6 of the Registration
Statement(********)
II-10
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Amendment No. 1 to
Registration Statement No. 333-39030 of American Tower Corporation on Form S-4
of our report dated March 1, 2000, appearing in the Annual Report on Form 10-K
of American Tower Corporation for the year ended December 31, 1999, and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/S/ DELOITTE & TOUCHE LLP
Boston, Massachusetts
August 1, 2000
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
UNIsite, Inc. and Subsidiaries:
We consent to the incorporation by reference in Amendment No. 1 to
registration statement No. 333-39030 on Form S-4 of American Tower Corporation
of our report dated January 14, 2000, with respect to the consolidated balance
sheets of UNIsite, Inc. and Subsidiaries as of December 31, 1999 and 1998, and
the related consolidated statements of operations, redeemable convertible
preferred stock and stockholders' deficit, and cash flows for each of the years
in the three-year period ended December 31, 1999 which report appears in the
Form 8-K of American Tower Corporation dated March 30, 2000, and to the
reference to our firm under the heading "Experts" in the prospectus.
Tampa, Florida
August 1, 2000
/s/ KPMG LLP
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
ICG Satellite Services, Inc.
We consent to the incorporation by reference in Amendment No. 1 to
registration statement No. 333-39030 on Form S-4 of American Tower Corporation
of our report dated February 28, 2000, with respect to the consolidated balance
sheet of ICG Satellite Services, Inc. and subsidiary as of November 30, 1999,
and the related consolidated statements of operations and accumulated deficit
and cash flows for the eleven month period ended November 30, 1999, which report
appears in the Form 8-K of American Tower Corporation dated March 30, 2000, and
to the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
Denver, Colorado
August 1, 2000
