As filed with the Securities and Exchange Commission on April 11, 2001
Registration No. 333- 58128
--------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------
AMENDMENT NO. 1
TO
NOTE EXCHANGE ON
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
SBA COMMUNICATIONS CORPORATION
------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
------------------
Florida 1700
--------------------------------- ----------------------------
(State or Other Jurisdiction (Primary Standard Industrial
of Incorporation or Organization) Classification Code Number)
65-0716501
----------------------
(I.R.S. Employer
Identification Number)
One Town Center Road
Third Floor
Boca Raton, Florida 33486
(561) 995-7670
------------------------------------------------------------------------
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
------------------
Jeffrey A. Stoops
President
SBA Communications Corporation
One Town Center Road
Third Floor
Boca Raton, Florida 33486
(561) 995-7670
------------------------------------------------------------------------------
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent For Service)
Copy To:
Robert C. Boehm, Esquire
Akerman, Senterfitt & Eidson, P.A.
One S.E. Third Avenue, 28Th Floor
Miami, Florida 33131
Phone: (305) 374-5600
Fax: (305) 374-5095
------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES TO THE
PUBLIC: as soon as practicable after the effective date of this registration
statement.
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(d)
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 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 THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
--------------------------------------------------------------------------------
EXPLANATORY NOTE
This Amendment No. 1 to Form S-4 is being filed solely to file Exhibits
5.1 and 23.2.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
Under the Florida Business Corporation Act (the "FBCA"), a director is not
personally liable for monetary damages to the corporation or any other person
for any statement, vote, decision, or failure to act regarding corporate
management or policy unless (1) the director breached or failed to perform his
or her duties as a director and (2) the director's breach of, or failure to
perform, those duties constitutes: (a) a violation of the criminal law, unless
the director had reasonable cause to believe his or her conduct was unlawful,
(b) a transaction from which the director derived an improper personal benefit,
either directly or indirectly, (c) a circumstance under which an unlawful
distribution is made, (d) in a proceeding by or in the right of the corporation
to procure a judgment in its favor or by or in the right of a shareholder, the
director's actions constituted conscious disregard for the best interest of the
corporation, or willful misconduct, or (e) in a proceeding by or in the right of
someone other than the corporation or a shareholder, the director's actions
constituted recklessness or were an act or omission which was committed in bad
faith or with malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety, or property. A corporation may purchase and
maintain insurance on behalf of any director or officer against any liability
asserted against him and incurred by him in his or her capacity or arising out
of his or her status as such, whether or not the corporation would have the
power to indemnify him against such liability under the FBCA.
Under the FBCA, a corporation has power to indemnify any person who was or
is a party to any proceeding (other than an action by, or in the right of the
corporation), by reason of the fact that he or she is or was a director,
officer, employee or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against
liability incurred in connection with such proceeding, including any appeal
thereof, and has the power to indemnify any such person in any proceeding by or
in the right of the corporation, by reason of the fact that he or she is or was
a director, officer, employee or agent of the corporation or is or was serving
at the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses and amounts paid in settlement not exceeding, in the judgment
of the board of directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof, if he or she acted
in good faith and in manner he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. The termination of any proceeding by judgment, order,
settlement or conviction or upon a plea of nolo contendere or its equivalent
does not, of itself, create a presumption that the person did not act in good
faith and in a manner which he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation or, with respect to any
criminal action or proceeding, has reasonable cause to believe that his or her
conduct was unlawful.
However, indemnification or advancement of expenses shall not be made to or
on behalf of any director, officer, employee or agent if a judgment or other
final adjudication establishes that his or her actions, or omissions to act,
were material to the cause of action so adjudicated and constitute: (a) a
violation of the criminal law, unless the director, officer, employee or agent
had reasonable cause to believe his or her conduct was unlawful; (b) a
transaction from which the director, officer, employee or agent derived an
improper personal benefit; (c) in the case of a director, a circumstance under
which the above liability provisions are applicable; or (d) willful misconduct
or a conscious disregard for the best interests of the corporation in a
proceeding by or in the right of the corporation to procure a judgment in its
favor or in a proceeding by or in the right of a shareholder.
The articles of incorporation of the Company provide that the Company
shall, to the fullest extent permitted by applicable law and its by-laws, as
amended from time to time, indemnify all officers and directors of the Company.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Company
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
II-1
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits
Exhibit
Number Description
1.3 Purchase Agreement, dated January 26, 2001, among SBA
Communications Corporation, Lehman Brothers Inc., Salomon Smith
Barney Inc., Deutsche Bank Alex. Brown Inc., Donaldson, Lufkin &
Jenrette Securities Corporation (an affiliate of Credit Suisse
First Boston Corporation), TD Securities (USA) Inc., Barclays
Capital Inc. and Wachovia Securities, Inc. (1)
4.4 Indenture, dated as of February 2, 2001, between SBA
Communications Corporation and State Street Bank and Trust
Company, as trustee, relating to $500,000,000 in aggregate
principal amount and maturity of 10 1/4% senior notes due
2009. (1)
4.5 Form of 10 1/4% senior note due February 1, 2009. (1)
5.1 Opinion of Akerman, Senterfitt & Eidson, P.A. regarding the
legality of the New Notes. (2)
10.32 Registration Rights Agreement, dated February 2, 2001, among SBA
Communications Corporation, Lehman Brothers Inc., Salomon Smith
Barney Inc., Deutsche Banc Alex. Brown Inc., Donaldson, Lufkin &
Jenrette Securities Corporation (an affiliate of Credit Suisse
First Boston Corporation), TD Securities (USA) Inc., Barclays
Capital Inc. and Wachovia Securities, Inc. (1)
12.2 Computation of Ratio of Earnings to Fixed Charges. (1)
21.1 Subsidiaries. (1)
23.1 Consent of Arthur Andersen LLP. (1)
23.2 Consent of Akerman, Senterfitt & Eidson, P.A. (included in
Exhibit 5.1).
24.1 Power of Attorney of certain directors and officers of SBA.(1)
25.1 Statement of Eligibility of Trustee. (1)
99.01 Form of Letter of Transmittal for Notes. (1)
99.02 Form of Notice of Guaranteed Delivery for Notes. (1)
_________
(1) Previously filed.
(2) Filed herewith.
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
II-2
fundamental change in the information set forth in the 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) 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 the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned registrant hereby undertakes as follows: that prior to any
public reoffering of the securities registered hereunder through use of a
prospectus which is a part of this registration statement, by any person or
party who is deemed to be an underwriter within the meaning of Rule 145(c), the
issuer undertakes that such reoffering prospectus will contain the information
called for by the applicable registration form with respect to reofferings by
persons who may be deemed underwriters, in addition to the information called
for by the other items of the applicable form.
(d) The registrant undertakes that every prospectus (i) that is filed pursuant
to paragraph (c) immediately preceding, or (ii) that purports to meet the
requirements of Section 10(a)(3) of the Securities Act and is used in connection
with an offering of securities subject to Rule 415, will be filed as a part of
an amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(e) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(f) 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.
(g) 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-3
Signatures
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the city of Boca
Raton, State of Florida on April 11, 2001.
SBA COMMUNICATIONS CORPORATION
By: /s/ STEVEN E. BERNSTEIN
-----------------------
Name: Steven E. Bernstein
Title: Chairman and Chief Executive
Officer
II-4
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 1 to the Registration Statement has been signed by the following
persons in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ STEVEN E. BERNSTEIN Chairman, Chief Executive Officer April 11, 2001
----------------------- and Director
Steven E. Bernstein
/s/ JEFFREY A. STOOPS President and Director April 11, 2001
---------------------
Jeffrey A. Stoops
/s/ JOHN MARINO Chief Financial Officer April 11, 2001
---------------
John Marino
/s/ PAMELA J. KLINE Chief Accounting Officer April 11, 2001
-------------------
Pamela J. Kline
* Director April 11, 2001
-----------------------
Donald B. Hebb, Jr.
* Director April 11, 2001
-------------------
C. Kevin Landry
* Director April 11, 2001
---------------------
Richard W. Miller
* Director April 11, 2001
---------------------
Robert S. Picow
* /s/ JEFFREY A. STOOPS April 11, 2001
-----------------------
Jeffrey A. Stoops
Attorney-in-fact
II-5
EXHIBIT INDEX
Exhibit No. Description of Exhibits
----------- -----------------------
5.1 Opinion of Akerman, Senterfitt & Eidson,
P.A. regarding the legality of the New
Notes.
23.2 Consent of Akerman, Senterfitt & Eidson,
P.A. (included in Exhibit 5.1).