Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SPECTRASITE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 56-2027322
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
___________________________________
400 Regency Forest Drive
Cary, NC 27511
(919) 468-0112
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
SpectraSite, Inc. 2003 Equity Incentive Plan
(Full title of plan)
John H. Lynch
SpectraSite, Inc.
100 Regency Forest Drive, Suite 160
Cary, North Carolina 27511
(Name and address of agent for service)
(919) 468-0112
(Telephone number, including area code, of agent for service)
____________________
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) PER SHARE PRICE REGISTRATION FEE
------------------------------------- ---------------------- -------------------- -------------------- ------------------------
Common Stock, par value
S$0.01 per share 763,889 Shares $29.82 $22,779,169.98
277,778 Shares $30.18 $ 8,383,340.04
1,644,999 Shares $26.15 $43,016,723.85
313,334 Shares $31.25(2) $ 9,791,687.50 $6,793.25
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(1) This Registration Statement shall, in accordance with Rule 416 under
the Securities Act of 1933, as amended, be deemed to cover such
additional shares as may be issued to prevent dilution resulting from
stock splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457 under the Securities Act.
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PART I
INFORMATION REQUIRED IN
THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION
Not required to be filed in the Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed in the Registration Statement.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended December
31, 2002;
(b) Current Reports on Form 8-K filed on January 30, 2003 and
February 11, 2003; and
(c) The description of the Registrant's Common Stock contained in
its Registration Statement on Form 8-A/A, dated February 11, 2003.
All documents filed by the Registrant pursuant to Section 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities registered pursuant to this
Registration Statement have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be part of it from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference to this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in such (or in any other subsequently filed documents
which also is or is deemed to be incorporated by reference) modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145(a) of the General Corporation Law of the State of Delaware
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (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 or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding if he or she acted in good faith and in a 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 cause to believe his
or her conduct was unlawful.
Section 145(b) provides that a Delaware corporation may indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted under similar standards,
except that no indemnification may be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the court in which such action or
suit was brought shall determine that despite the adjudication of liability,
such person is fairly and reasonably entitled to be indemnified for such
expenses which the court shall deem proper.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue, or matter therein, he or she shall be indemnified against expenses
actually and reasonably incurred by him or her in connection therewith, that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against him or
incurred by him or her in any such capacity or arising out of his status as such
whether or not the corporation would have the power to indemnify him or her
against such liabilities under such Section 145.
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Section 102(b)(7) of the General Corporation Law provides that a
corporation in its original certificate of incorporation or an amendment thereto
validly approved by stockholders may eliminate or limit personal liability of
members of its board of directors or governing body for breach of a director's
fiduciary duty. However, no such provision may eliminate or limit the liability
of a director for breaching his or her duty of loyalty, failing to act in good
faith, engaging in intentional misconduct or knowingly violating a law, paying a
dividend or approving a stock repurchase which was illegal, or obtaining an
improper personal benefit. A provision of this type has no effect on the
availability of equitable remedies, such as injunction or rescission, for breach
of fiduciary duty. The Registrant's Restated Certificate of Incorporation
contains such a provision.
The Registrant's Restated Certificate of Incorporation provides for the
indemnification of directors and officers of the Registrant and any person who
is or was serving at the request of the Registrant as a director, officer,
partner, trustee, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise and any person who was or is serving at
the request of the Registrant as a trustee or administrator under an employee
benefit plan to the fullest extent authorized by, and subject to, the conditions
set forth in the Delaware General Corporation Law, against all expenses and
liabilities.
The indemnification provided under the Restated Certificate of
Incorporation includes the right to be paid by the Registrant the expenses in
advance of any proceeding for which indemnification may be had in advance of its
final disposition.
The Restated Certificate of Incorporation also authorizes the
Registrant to purchase and maintain insurance against any liability asserted
against any director, officer, employee or agent arising out of his or her
capacity as such. The Registrant has obtained such directors' and officers'
insurance insuring, subject to certain conditions, its directors and officers
against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
A list of Exhibits to this Registration Statement is set forth in the
Exhibit Index starting on page II-1.
ITEM 9. 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:
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(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 this 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 Securities and Exchange 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.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the Registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to the
securities offered in it, 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 Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934), that
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is incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered in it, 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, 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 of 1933 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 of 1933 and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Cary, North Carolina, on May 5, 2003.
SPECTRASITE, INC.
By: /s/ David P. Tomick
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David P. Tomick
Principal Financial Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stephen H. Clark and David P. Tomick as
such person's true and lawful attorneys-in-fact and agents, with full power of
substitution and revocation, for such person and in such person's name, place
and stead, in any and all capacities (until revoked in writing), to sign any and
all amendments (including post-effective amendments) to this registration
statement and to file the same with all exhibits thereto, and the other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and things requisite and
necessary to be done, as fully to all intents and purposes as such person might
or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities on May 5, 2003:
SIGNATURE TITLE
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/s/ David P. Tomick
------------------------- Principal Financial Officer
David P. Tomick
/s/ Gabriela Gonzalez
------------------------- Principal Accounting Officer
Gabriela Gonzalez
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SIGNATURE TITLE
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/s/ Stephen H. Clark
------------------------- Director and Chief Executive Officer
Stephen H. Clark
/s/ Paul M. Albert, Jr.
------------------------- Director
Paul M. Albert, Jr.
/s/ Gary S. Howard
------------------------- Director
Gary S. Howard
/s/ Robert Katz
------------------------- Director
Robert Katz
/s/ Richard Masson
------------------------- Director
Richard Masson
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EXHIBIT INDEX
EXHIBIT DESCRIPTION
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5.1 Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP,
regarding the legality of the common stock being registered.
10.1 SpectraSite, Inc. 2003 Equity Incentive Plan (incorporated by
reference to exhibit 10.6 to the Registrant's Current Report
on Form 8-K dated February 11, 2003).
23.1 Consent of Paul, Weiss, Rifkind, Wharton & Garrison LLP,
counsel to the Registrant (contained in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on signature page).
II-1