As filed with the Securities and Exchange Commission on September 10, 2001
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
_____________
SBA COMMUNICATIONS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
_____________
Florida
(State or Other Jurisdiction of Incorporation or Organization)
65-0716501
(I.R.S. Employer Identification No.)
One Town Center Road
Third Floor
Boca Raton, Florida 33486
(Address of Principal Executive Offices) (Zip Code)
SBA COMMUNICATIONS CORPORATION 2001 EQUITY PARTICIPATION PLAN
(Full Title of the Plan)
_____________
Jeffrey A. Stoops
President
SBA Communications Corporation
One Town Center Road
Third Floor
Boca Raton, Florida 33486
(Name and Address of Agent For Service)
(561) 995-7670
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Robert C. Boehm, Esq.
Akerman, Senterfitt & Eidson, P.A.
One S.E. Third Avenue, 28th Floor
Miami, Florida 33131
(305) 374-5600
_____________
Calculation of Registration Fee
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Proposed Proposed
Maximum Maximum
Title of Securities Amount To Be Offering Price Aggregate Amount of
To Be Registered Registered /(1)/ Per Share /(2)/ Offering Price Registration Fee/(2)/
---------------- ---------------- --------------- -------------- ---------------------
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Class A Common Stock 5,000,000 shares $10.79 $53,950,000 $13,488
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(1) This Registration Statement shall also cover any additional shares of Class
A common stock which become issuable under the 2001 Equity Participation
Plan by reason of any stock dividend, stock split, recapitalization or
other similar transaction effected without the receipt of consideration
which results in an increase in the number of SBA Communications
Corporation's outstanding shares of Class A common stock.
(2) Calculated solely for the purpose of this offering under Rule 457(h) of the
Securities Act of 1933 on the basis of the average of the high and low
selling prices per share of Class A common stock of SBA Communications
Corporation on September 7, 2001, as reported by The Nasdaq National
Market.
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Part I
Information Required in the Section 10(a) Prospectus
The documents containing the information specified in Part I of this
Registration Statement will be sent or given to all persons who participate in
our 2001 Equity Participation Plan (the "2001 Plan"), as specified by Rule
428(b)(1) of the Securities Act. These documents are not required to be filed
with the Commission as part of this Registration Statement or as prospectuses or
prospectus supplements pursuant to Rule 424 of the Securities Act. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Registration Statement,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
Part II
Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents filed with the Commission by us are
incorporated by reference herein:
Commission Filing (File No. 000-30110) Period Covered or Date of Filing
-------------------------------------- --------------------------------
Annual Report on Form 10-K..................................... Year ended December 31, 2000
Quarterly Reports on Form 10-Q................................. Quarters ended March 31, 2001 and
June 30, 2001
Current Reports on Form 8-K.................................... January 22, 2001, February 1, 2001, April
19, 2001, May 3, 2001, May 10, 2001, May
10, 2001, May 16, 2001, July 19, 2001 and
August 10, 2001
Description of our Class A Common Stock contained in
Registration Statement on Form 8-A and any amendment or
report filed for the purpose of updating such description...... June 9, 1999
All subsequent documents filed by us under Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters
all securities then remaining unsold........................... After the date of this Registration Statement
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Under Section 607.0831 of 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,
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those duties constitutes: (a) a violation of the criminal law, unless the
director had reasonable cause to believe his or her conduct was lawful or had no
reasonable cause to believe his or her conduct was unlawful. A judgment or other
final adjudication against a director in any criminal proceeding for a violation
of the criminal law estops that director from contesting the fact that his or
her breach, or failure to perform, constitutes a violation of the criminal law;
but does not estop the director from establishing that he or she had reasonable
cause to believe that his or her conduct was lawful or had no reasonable cause
to believe that 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 the liability provisions of s.
607.0834 are applicable; (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, 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, recklessness or 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.
Under Section 607.0850 of the FBCA, a corporation has the 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, 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
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 shall 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, had
reasonable cause to believe that his or her conduct was unlawful.
In addition, under Section 607.0850 of the FBCA, a corporation has the
power to indemnify any person, who was or is a party to any proceeding by or in
the right of the corporation to procure a judgment in its favor by reason of the
fact that the person 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. Such indemnification shall be
authorized if such person 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, except that no indemnification shall be made under this subsection
in respect of any claim, issue, or matter as to which such person shall have
been adjudged to be liable unless, and only to the extent that, the court in
which such proceeding was brought, or any other court of competent jurisdiction,
shall determine upon application that, despite the adjudication of liability but
in view of all circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which such court shall deem proper.
Under Section 607.0850 of the FBCA, the indemnification and advancement of
expenses provided pursuant to Section 607.0850 of the FBCA are not exclusive,
and a corporation may make any other or further indemnification or advancement
of expenses of any of its directors, officers, employees, or agents, under any
bylaw, agreement, vote of shareholders or disinterested directors, or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office. However, indemnification or advancement of
expenses shall not be made to or on behalf of any director,
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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 lawful or had no 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 liability provisions of s. 607.0834 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.
Our articles of incorporation provide that we shall, to the fullest
extent permitted by applicable law and our by-laws, as amended from time to
time, indemnify all of our officers and directors.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to our directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, we have 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.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit No. Exhibits
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5.1 Opinion of Akerman, Senterfitt & Eidson, P.A. regarding the
legality of the Class A common stock being registered.
10.33 SBA Communications Corporation 2001 Equity Participation Plan.
23.1 Consent of Arthur Andersen LLP.
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 (set
forth on the signature page of this Registration Statement).
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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:
(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
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or in the aggregate, represent a 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do
not apply if 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 Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose 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.
(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 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) 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.
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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 the City of Boca Raton, State of Florida, on this 10th day of
September, 2001.
SBA COMMUNICATIONS CORPORATION
By: /s/ Steven E. Bernstein
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Name: Steven E. Bernstein
Title: Chairman and Chief Executive Officer
Power of Attorney
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints each of Jeffrey A. Stoops and John Marino, or either of
them, each acting alone, his or her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for such person and in his
or her name, place and stead, in any and all capacities, in connection with the
registrant's Registration Statement on Form S-8 under the Securities Act of
1933, including to sign the Registration Statement in the name and on behalf of
the registrant or on behalf of the undersigned as a director or officer of the
registrant, and any and all amendments or supplements to the Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission and any
applicable securities exchange or securities self-regulatory body, granting unto
said attorneys-in-fact and agents, each acting alone, full power and authority
to do and perform each and every act and thing requisite and necessary to be
done in and about the premises, as fully to all intents and purposes as he or
she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitutes or substitute, may lawfully
do or cause to be done by virtue hereof.
____________
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Pursuant to the requirements of the Securities Act of 1933, this
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 and Director September 10, 2001
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Steven E. Bernstein
/s/ Jeffrey A. Stoops President and Director September 10, 2001
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Jeffrey A. Stoops
/s/ John Marino Chief Financial Officer September 10, 2001
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John Marino
/s/ John F. Fiedor Chief Accounting Officer September 10, 2001
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John F. Fiedor
/s/ Donald B. Hebb, Jr. Director September 10, 2001
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Donald B. Hebb, Jr.
/s/ C. Kevin Landry Director September 10, 2001
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C. Kevin Landry
/s/ Richard W. Miller Director September 10, 2001
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Richard W. Miller
/s/ Robert S. Picow Director September 10, 2001
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Robert S. Picow
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Exhibit Index
Exhibit
Number Description
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5.1 Opinion of Akerman, Senterfitt & Eidson, P.A. regarding the
legality of the Class A common stock being registered.
10.33 SBA Communications Corporation 2001 Equity Participation Plan.
23.1 Consent of Arthur Andersen LLP.