<PAGE> 1
As filed with the Securities and Exchange Commission on July 8, 1998
Registration No. 333-
================================================================================
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CAPSTAR BROADCASTING CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 74-2833106
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
600 CONGRESS AVENUE, SUITE 1400
AUSTIN, TEXAS 78701
(Address, including ZIP code, of registrant's
principal executive offices)
CAPSTAR BROADCASTING CORPORATION 1998 STOCK OPTION PLAN
(Full title of the plans)
R. STEVEN HICKS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CAPSTAR BROADCASTING CORPORATION
600 CONGRESS AVENUE, SUITE 1400
AUSTIN, TEXAS 78701
(Name, address, including ZIP code, of agent for service)
(512) 340-7800
(Telephone number, including area code, of agent for service of process)
Copy to:
MICHAEL D. WORTLEY
VINSON & ELKINS L.L.P.
3700 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================
Proposed Proposed
Title of maximum maximum
securities Amount to be offering price aggregate Amount of
to be registered registered (1) per share (2) offering price (2) registration fee
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock 4,580,000 Shares $19.159 $87,748,220 $25,886
============================================================================================================
</TABLE>
(1) If, as a result of stock splits, stock dividends or similar
transactions, the number of securities purported to be registered on
this Registration Statement changes, the provisions of Rule 416 shall
apply to this Registration Statement, and this Registration Statement
shall be deemed to cover the additional securities resulting from the
split of, or dividend on, the securities covered by this Registration
Statement.
(2) Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(h), using the exercise price with respect
to 2,062,595 shares subject to options which have been granted and
using the average of the high and low prices for the Class A Common
Stock on July 6, 1998, as reported on the New York Stock Exchange,
with respect to 2,517,405 shares.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information called for in Part I of Form
S-8 will be provided to participants in the 1998 Stock Option Plan of Capstar
Broadcasting Corporation (the "Company" or the "Registrant") with respect to
which this Registration Statement on Form S-8 (this "Registration Statement")
relates. Such information is not being filed with or included in this
Registration Statement in accordance with the rules and regulations of the
Securities and Exchange Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed with the Commission by
the Company, are hereby incorporated by reference into this Registration
Statement.
(a) Prospectus, dated May 26, 1998, filed pursuant to Rule 424(b)
of the Rules and Regulations of the Commission under the
Securities Act of 1933, as amended (the "Securities Act"), on
May 26, 1998; and
(b) The description of the Company's Class A Common Stock, par
value $.01 per share, contained in Item 1 of the Registration
Statement on Form 8-A filed with the Commission on May 11,
1998.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), after the date of this Registration Statement and before
the filing of a post-effective amendment to this Registration Statement which
indicates that all shares of Class A Common Stock offered hereunder have been
sold or that deregisters all such shares then remaining unsold shall be deemed
to be incorporated herein by reference and to be a part hereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Eight of the Certificate of Incorporation of the Registrant
provides that the Registrant shall indemnify its officers and directors to the
maximum extent allowed by the Delaware General Corporation Law. Pursuant to
Section 145 of the Delaware General Corporation Law, the Registrant generally
has the power to indemnify its current and former directors against expenses
and liabilities incurred by them in connection with any suit to which they are,
or are threatened to be made, a party by reason of their serving in those
positions so long as they acted in good faith and in a manner they reasonably
believed to be in, or not opposed to, the best interests of the Registrant, and
with respect to any criminal action, so long as they had no reasonable cause to
believe their conduct was unlawful. With respect to suits by or in the right
of the Registrant, however, indemnification is generally limited to attorneys'
fees and other expenses and is not available if the person is adjudged to be
liable to the Registrant, unless the court determines that indemnification is
appropriate. The statute expressly provides that the power to indemnify
authorized thereby is not exclusive of any rights granted under any bylaw,
agreement, vote of stockholders or disinterested directors, or otherwise. The
Registrant also has the power to purchase and maintain insurance for its
directors and officers and has purchased a policy providing such insurance.
2
<PAGE> 3
Article Nine of the Certificate of Incorporation provides that no
director of the Registrant will be personally liable to the Registrant or any
of its stockholders for monetary damages arising from the director's breach of
fiduciary duty as a director. However, this does not apply with respect to any
action in which the director would be liable (i) for any breach of the
director's duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
The preceding discussion of the Registrant's Amended and Restated
Certificate of Incorporation and Section 145 of the Delaware General
Corporation Law is not intended to be exhaustive and is qualified in its
entirety by the Amended and Restated Certificate of Incorporation and Section
145 of the Delaware General Corporation Law.
The Registrant has entered into indemnification agreements with the
Registrant's directors and officers. Pursuant to such agreements, the
Registrant will, to the extent permitted by applicable law, indemnify such
persons against all expenses, judgments, fines and penalties incurred in
connection with the defense or settlement of any actions brought against them
by reason of the fact that they were directors or officers of the Registrant or
assumed certain responsibilities at the direction of the Registrant.
The form of Underwriting Agreement and Subscription Agreement included
as Exhibits 1.1 and 1.2, respectively, to the Registrant's Registration
Statement on Form S-1 filed under the Securities Act on March 27, 1998
(Commission File No. 333-48819) provides for indemnification of the Registrant
and certain controlling persons under certain circumstances, including
indemnification for liabilities under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Amended and Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 3.1 of the
Company's Registration Statement on Form S-1, Commission File
No. 333-48819).
4.2 Amended and Restated By-Laws of the Company (incorporated by
reference to Exhibit 3.2 of the Company's Registration
Statement on Form S-1, Commission File No. 333-48819).
5.1* Opinion of Vinson & Elkins L.L.P.
23.1* Consent of Coopers & Lybrand L.L.P., Independent Accountants
-- the Company.
23.2* Consent of Ernst & Young LLP, Independent Auditors --
Commodore Media, Inc., Southern Star Communications, Inc. and
SFX Broadcasting, Inc.
23.3* Consent of Coopers & Lybrand L.L.P., Independent Auditors --
Benchmark Communications.
23.4* Consent of Coopers & Lybrand L.L.P., Independent Auditors --
Community Pacific Broadcasting Company, L.P.
23.5* Consent of Coopers & Lybrand L.L.P., Independent Auditors --
Midcontinent Broadcasting Co. of Wisconsin, Inc.
23.6* Consent of Coopers & Lybrand L.L.P., Independent Auditors --
Point Communications Limited Partnership.
23.7* Consent of Arthur Andersen LLP, Independent Auditors -- Ameron
Broadcasting, Inc.
23.8* Consent of Arthur Andersen LLP, Independent Auditors --
Patterson Broadcasting, Inc.
3
<PAGE> 4
23.9* Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
24.1* Power of Attorney of officers and directors of the Company
(included on signature page).
99.1 Amended and Restated Capstar Broadcasting Corporation 1998
Stock Option Plan (incorporated by reference to Exhibit 10.16
of the Company's Registration Statement on Form S-1,
Commission File No. 333-48819).
- -------------------
* Filed herewith.
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;
(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 the 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
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 Exchange Act that are incorporated by
reference in the Registration Statement.
2. That, for any 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 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) 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 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.
4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Austin, State of Texas, on July 8, 1998.
CAPSTAR BROADCASTING CORPORATION
(Registrant)
By: /s/ R. Steven Hicks
-------------------------------------
R. Steven Hicks
President and Chief Executive Officer
KNOWN ALL MEN BY THESE PRESENTS, that the undersigned directors and
officers of Capstar Broadcasting Corporation, a Delaware corporation, which is
filing a Registration Statement on Form S-8 with the Securities and Exchange
Commission, Washington, D.C. 20549 under the provisions of the Securities Act
of 1933 (the "Securities Act") hereby constitute and appoint R. Steven Hicks
and William S. Banowsky, Jr., and each of them, the individual's true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the person and in his or her name, place and stead, in any
and all capacities, to sign such Registration Statement and any or all
amendments, including post-effective amendments, to the Registration Statement,
including any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act, and all
other documents in connection therewith to be filed 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
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in fact as agents or any of them, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof. Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ R. Steven Hicks President and Chief July 8, 1998
---------------------------------------- Executive Officer (Principal
R. Steven Hicks Executive Officer)
/s/ Paul D. Stone Executive Vice President and July 8, 1998
---------------------------------------- Chief Financial Officer
Paul D. Stone (Principal Financial and
Accounting Officer)
/s/ Thomas O. Hicks Chairman of the Board July 8, 1998
----------------------------------------
Thomas O. Hicks
/s/ Michael J. Levitt Director July 8, 1998
----------------------------------------
Michael J. Levitt
/s/ Eric C. Neuman Director July 8, 1998
----------------------------------------
Eric C. Neuman
/s/ Lawrence D. Stuart, Jr. Director July 8, 1998
----------------------------------------
Lawrence D. Stuart, Jr.
/s/ R. Gerald Turner Director July 7, 1998
----------------------------------------
R. Gerald Turner
</TABLE>
5
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION OF EXHIBITS PAGE
------- ----------------------- ------------
<S> <C> <C>
4.1 -- Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's Registration
Statement on Form S-1, Commission File No. 333-48819).
4.2 -- Amended and Restated By-Laws of the Company (incorporated by reference to
Exhibit 3.2 of the Company's Registration Statement on Form S-1, Commission
File No. 333-48819).
5.1* -- Opinion of Vinson & Elkins L.L.P.
23.1* -- Consent of Coopers & Lybrand L.L.P., Independent Accountants -- the
Company.
23.2* -- Consent of Ernst & Young LLP, Independent Public Accountants -- Commodore
Media, Inc., Southern Star Communications, Inc. and SFX Broadcasting, Inc.
23.3* -- Consent of Coopers & Lybrand L.L.P., Independent Auditors -- Benchmark
Communications.
23.4* -- Consent of Coopers & Lybrand L.L.P., Independent Auditors -- Community
Pacific Broadcasting Company, L.P.
23.5* -- Consent of Coopers & Lybrand L.L.P., Independent Auditors -- Midcontinent
Broadcasting Co. of Wisconsin, Inc.
23.6* -- Consent of Coopers & Lybrand L.L.P., Independent Auditors -- Point
Communications Limited Partnership.
23.7* -- Consent of Arthur Andersen LLP, Independent Auditors -- Ameron
Broadcasting, Inc.
23.8* -- Consent of Arthur Andersen LLP, Independent Auditors -- Patterson
Broadcasting, Inc.
23.9* -- Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
24.1* -- Power of Attorney of officers and directors of the Company (included on
signature page).
99.1 -- Amended and Restated Capstar Broadcasting Corporation 1998 Stock Option
Plan (incorporated by reference to Exhibit 10.16 of the Company's
Registration Statement on Form S-1, Commission File No. 333-48819).
</TABLE>
- -------------------------
* Filed herewith.
6
<PAGE> 1
EXHIBIT 5.1
[VINSON & ELKINS LETTERHEAD]
July 8, 1998
Capstar Broadcasting Corporation
600 Congress Avenue, Suite 1400
Austin, Texas 78701
Dear Sirs:
We have acted as counsel to Capstar Broadcasting Corporation, a
Delaware corporation (the "Company"), in connection with the registration under
the Securities Act of 1933 (the "Securities Act") of the offer and sale of an
aggregate of 4,580,000 shares (the "Shares") of Class A Common Stock, par value
$.01 per share ("Common Stock"), of the Company, as that number may be adjusted
from time to time pursuant to the provisions of the Capstar Broadcasting
Corporation 1998 Stock Option Plan (including the agreement evidencing an award
thereunder, the "Plan"), that may be issued pursuant to the Plan. Unless
otherwise defined herein, terms having their initial letters capitalized have
the meanings ascribed to them in the Plan.
In reaching the opinion set forth herein, we have reviewed such
agreements, certificates of public officials and officers of the Company,
records, documents and matters of law that we deemed relevant.
Based upon and subject to the foregoing, and subject further to the
assumptions, exceptions, and qualifications hereinafter stated, we express the
opinion that each Share, when issued in accordance with the terms of the Plan,
will be legally issued, fully paid and non-assessable.
The opinion expressed above is subject to the following assumptions,
exceptions and qualifications:
(a) We have assumed that (i) all information contained in
all documents reviewed by us is true and correct, (ii) all signatures on all
documents reviewed by us are genuine, (iii) all documents submitted to us as
originals are true and complete, (iv) all documents submitted to us as copies
are true and complete copies of the originals thereof, and (v) each natural
person signing any document reviewed by us had the legal capacity to do so.
<PAGE> 2
Capstar Broadcasting Corporation
July 8, 1998
Page 2
(b) We have also assumed that the Company will receive the
full amount and type of consideration (as specified in the Plan) for each of the
Shares upon issuance, that such consideration will be in cash, personal
property, or services already performed, that such consideration will equal or
exceed the par value per share of Common Stock, that appropriate certificates
evidencing the Shares will be properly executed upon such issuance, and that
each grant of an award pursuant to the Plan will be duly authorized.
The opinion expressed above is limited to the laws of the State of
Texas, the Delaware General Corporation Law, and the federal laws of the United
States of America.
This opinion may be filed as an exhibit to a registration statement
filed under the Securities Act. In giving this consent, we do not thereby admit
that we come into the category of persons whose consent is required under
Section 7 of the Securities Act or the rules and regulations of the Securities
and Exchange Commission promulgated thereunder.
Very truly yours,
VINSON & ELKINS L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated March 26, 1998, on our audits of the
consolidated financial statements of Capstar Broadcasting Corporation and
Subsidiaries as of December 31, 1996 and 1997, and for each of the three years
in the period ended December 31, 1997.
PRICE WATERHOUSE COOPERS LLP
/s/ Price Waterhouse Coopers LLP
Austin, Texas
July 6, 1998
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference of our reports dated (i) February
10, 1997 with respect to the consolidated financial statements of Commodore
Media, Inc. and Subsidiaries, (ii) February 3, 1997 with respect to the
consolidated financial statements of Southern Star Communications Inc., formerly
known as Osborn Communications Corporation, and (iii) March 5, 1998, except for
Notes 2 and 14 as to which the date is April 27, 1998, with respect to the
consolidated financial statements of SFX Broadcasting, Inc. and Subsidiaries, in
the Registration Statement on Form S-8 pertaining to the 1998 Stock Option Plan
of Capstar Broadcasting Corporation.
ERNST & YOUNG LLP
/s/ Ernst & Young LLP
New York, New York
July 6, 1998
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated February 8, 1997, on our audits of the
consolidated financial statements of Benchmark Communications Radio Limited
Partnership as of December 31, 1995 and 1996, and for each of the three years in
the period ended December 31, 1996.
PRICE WATERHOUSE COOPERS LLP
/s/ Price Waterhouse Coopers LLP
Dallas, Texas
July 6, 1998
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated February 13, 1997, on our audit of the
consolidated financial statements of Community Pacific Broadcasting Company L.P.
as of December 31, 1996 and for the year then ended.
PRICE WATERHOUSE COOPERS LLP
/s/ Price Waterhouse Coopers LLP
San Jose, California
July 6, 1998
<PAGE> 1
EXHIBIT 23.5
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated February 3, 1997 on our audit of the
consolidated financial statements of Midcontinent Broadcasting Co. of Wisconsin,
Inc. as of December 31, 1996 and for the year then ended.
PRICE WATERHOUSE COOPERS LLP
/s/ Price Waterhouse Coopers LLP
Milwaukee, Wisconsin
July 6, 1998
<PAGE> 1
EXHIBIT 23.6
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration
statement on Form S-8 of our report dated February 3, 1997, on our audit of the
consolidated financial statements of Point Communications Limited Partnership as
of December 31, 1996 and for the year then ended.
PRICE WATERHOUSE COOPERS LLP
/s/ Price Waterhouse Coopers LLP
Milwaukee, Wisconsin
July 6, 1998
<PAGE> 1
EXHIBIT 23.7
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated May 14, 1997, on the financial statements of Ameron Broadcasting, Inc.
(and to all references to our firm) included in or made a part of this
registration statement.
ARTHUR ANDERSEN LLP
/s/ Arthur Andersen LLP
St. Louis, Missouri,
July 6, 1998
<PAGE> 1
EXHIBIT 23.8
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
March 20, 1998, on the financial statements of Patterson Broadcasting, Inc. and
subsidiaries, included in or made part of Capstar Broadcasting Corporation's
Registration Statement on Form S-1 (File No. 333-48819), as amended on May 26,
1998, and to all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Dallas, Texas
July 6, 1998
