As filed with the Securities and Exchange Commission on November 16, 1998
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
CHILDREN'S BROADCASTING CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
MINNESOTA 5961 41-1663712
(State or Other Jurisdiction of (Primary Standard Industrial (I.R.S. Employer
Incorporation or Organization) Classification Code Number) Identification
Number)
724 FIRST STREET NORTH
MINNEAPOLIS, MINNESOTA 55401
(612) 338-3300
(Address and telephone number, including area code, of registrant's principal
executive offices)
JAMES G. GILBERTSON
CHIEF OPERATING OFFICER
CHILDREN'S BROADCASTING CORPORATION
724 FIRST STREET NORTH
MINNEAPOLIS, MINNESOTA 55401
(612) 338-3300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
AVRON L. GORDON, ESQ. LANCE W. RILEY, ESQ.
BRETT D. ANDERSON, ESQ. CHILDREN'S BROADCASTING CORPORATION
BRIGGS AND MORGAN, P.A. 724 FIRST STREET NORTH
2400 IDS CENTER MINNEAPOLIS, MINNESOTA 55401
MINNEAPOLIS, MINNESOTA 55402 (612) 330-9521
(612) 334-8400
---------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS DETERMINED BY
MARKET CONDITIONS.
---------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: |_|
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please 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: |_|
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================================
Proposed Maximum Proposed Maximum Amount of
TITLE OF EACH CLASS OF Amount to be Offering Price per Aggregate Offering Registration
SECURITIES TO BE REGISTERED Registered Share(1) Price(1) Fee
- - -------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK ($0.02 PAR VALUE)....... 150,000 $3.28125 $492,187.50 $136.83
=============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and based upon the average of the high and low
prices for such stock on November 12, 1998, as reported by the Nasdaq
National Market.
--------------------------
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.
================================================================================
<PAGE>
The information contained in this prospectus is not complete and may be amended.
These securities may not be sold until the related registration statement filed
with the SEC or any applicable state securities commission becomes effective.
This prospectus is not an offer to sell nor is it seeking an offer to buy any
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED NOVEMBER 16, 1998
PROSPECTUS
- - --------------------------------------------------------------------------------
150,000 SHARES
CHILDREN'S BROADCASTING CORPORATION
COMMON STOCK
- - --------------------------------------------------------------------------------
The shareholders of Children's Broadcasting Corporation listed below
are offering and selling 150,000 shares of common stock under this prospectus.
We will not receive any part of the proceeds from this offering.
The selling shareholders will receive the shares covered by this
prospectus upon the exercise of warrants. We issued those warrants in connection
with the securities purchase agreement between us and the selling shareholders
and the recent amendment to that agreement.
The selling shareholders may offer their shares through public or
private transactions, on or off the Nasdaq National Market, at prevailing market
prices or privately negotiated prices. No period of time has been fixed within
which the selling shareholders may offer or sell their shares.
Our common stock is quoted on the Nasdaq National Market and trades
under the ticker symbol "AAHS." On November 12, 1998, the average of the high
and low sale prices of one share of our stock on the Nasdaq National Market was
$3.28125.
---------------
NEITHER THE SEC NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR
DISAPPROVED THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
---------------
THE SHARES INVOLVE CERTAIN RISKS. SEE "RISK FACTORS" BEGINNING ON
PAGE 5.
----------------
THE DATE OF THIS PROSPECTUS IS _______________, 1998
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
from the SEC's web 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 documents we file with the SEC. The information incorporated by
reference is considered to be part of this prospectus. Information that we file
later with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings we
will make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act until the selling shareholders sell all of the shares covered by this
prospectus:
(a) Annual report on Form 10-KSB for the year ended December 31,
1997 (as amended);
(b) Quarterly reports on Form 10-QSB for the quarters ended March
31, 1998 (as amended), June 30, 1998 and September 30, 1998;
(c) Description of our common stock contained in our registration
statement on Form S-2 (No. 33-80721) filed on December 21,
1995 (as amended);
(d) Current reports on Form 8-K filed on January 7, 1998, January
28, 1998, February 20, 1998, April 22, 1998, May 7, 1998, June
5, 1998, July 6, 1998, September 15, 1998 and October 2, 1998;
and
(e) Proxy statement on Schedule 14A filed on July 8, 1998.
This prospectus is part of a registration statement we filed with the
SEC. You may request a copy of the registration statement or any of the above
filings, at no cost, by writing or telephoning our Chief Operating Officer at
the following address:
Children's Broadcasting Corporation
724 First Street North
Minneapolis, Minnesota 55401
(612) 338-3300
You should rely only on the information and representations provided in
this prospectus. We have not authorized anyone else to provide you with
different information. The selling shareholders will not make an offer of their
shares in any state where the offer is not permitted. You should not assume that
the information in this prospectus is accurate as of any date other than the
date on the front of this document.
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<PAGE>
PROSPECTUS SUMMARY
BECAUSE THIS IS A SUMMARY, IT DOES NOT CONTAIN ALL THE INFORMATION THAT
MAY BE IMPORTANT TO YOU. YOU SHOULD READ THE ENTIRE PROSPECTUS CAREFULLY BEFORE
YOU DECIDE TO INVEST.
THE COMPANY
We formerly broadcast children's radio programming to markets
representing approximately 40% of the United States population. We ceased
broadcasting our Aahs World Radio programming format in January 1998 in
anticipation of the sale of our radio stations to Global Broadcasting Company,
Inc. When Global failed to complete the purchase, we pursued other transactions
for the sale of our radio stations. In April 1998, we entered into three
purchase agreements pursuant to which we planned to sell our 13 radio stations
to three parties for an aggregate of $61.7 million. Our shareholders approved
this plan to sell substantially all of our assets in August 1998.
SALE OF ASSETS
Instead of purchasing ten radio stations from us, Catholic Radio
Network purchased seven and effectively assigned its right to purchase three
more to Radio Unica Corp. As of the date of this prospectus, we had completed
the sale of 10 of our 13 radio stations, yielding an aggregate of $41.6 million
in gross proceeds. Such sales may be summarized as follows:
Stations Purchaser Amount and Type of Consideration
-------- --------- --------------------------------
One 1090 Investments $2.0 million in cash
Two Salem Communications $2.7 million in cash
Seven Catholic Radio Network $21.9 million in cash and a $15.0
million note
Radio Unica has agreed to purchase our three remaining radio stations,
which are located in the Phoenix, Dallas and New York markets, for approximately
$29.3 million in cash. The sale to Radio Unica is subject to customary closing
conditions and regulatory approvals. We expect to close on this sale in January
1999. Radio Unica currently operates our radio station in the New York market
pursuant to a local marketing agreement. Radio Unica has pre-paid $2.5 million
in fees to operate such station for two years or until closing, whichever occurs
first. If regulatory approval is obtained, Radio Unica will also operate our
radio stations in the Phoenix and Dallas markets on the same terms upon
pre-payment of an additional $500,000 in fees. We will offset any unused portion
of such fees against the purchase price which Radio Unica must pay at closing
for the three stations.
ONGOING CORPORATE OPERATIONS
We seek to reposition ourselves by selling our broadcasting assets and
using the proceeds to repay indebtedness and make one or more acquisitions in
the television commercial production industry. We believe that the expanded
number of television channels, advances in digital technology, the demand for
effective advertising concepts and the demand for efficient delivery of
production services represent sources of opportunity in the television
commercial production industry.
We began our entry into this market by acquiring a major ownership
interest (44.6% as of the date of this prospectus) in Harmony Holdings, Inc., a
company which engages primarily in the production of television commercials. We
play a significant role in its management and have become a guarantor of its
$5.0 million revolving line of credit. We may determine to increase our
ownership position in Harmony should an
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opportunity exist at a favorable price and have resolved to invest such funds in
Harmony to allow it to meet its working capital requirements through June 30,
1999. Such investment may take the form of loans or the purchase of securities.
We seek to further expand through acquisition and consolidation of
additional television commercial production companies. We envision growing to a
size which would enable us to enjoy economies of scale internally and within the
industry. We hope to control access to a significant amount of creative talent
and increase our access to major ad agency creativity. We believe that achieving
such objectives will make us an influential media force. While we have begun the
process of identifying acquisition targets, as of the date of this prospectus,
we do not have any understandings, commitments or agreements with respect to any
such acquisitions. No assurance can be given that we will consummate future
acquisitions or that any acquisitions, if consummated, will ultimately be
advantageous or profitable.
ABC/DISNEY LITIGATION
On September 30, 1998, a jury in the United States District Court for
the District of Minnesota ruled in our favor in connection with litigation for
breach of contract and misappropriation of trade secrets that we had commenced
against The Walt Disney Company and ABC Radio Networks, Inc. We are seeking to
have judgment entered by the Court upon that verdict in the amount of $20.0
million against ABC and $10.0 million against Disney. We are also seeking
additional amounts for taxes, pre-judgment interest and exemplary damages for
willful and malicious misappropriation of trade secrets. As of the date of this
prospectus, the entry of judgment is pending before the Court.
FOOTHILL FINANCING
To meet our working capital requirements and to facilitate radio
station acquisitions pursuant to our former growth strategy, we entered into a
credit agreement with Foothill Capital Corporation in November 1996. This
agreement has provided us with loan facilities aggregating approximately $26.0
million. Such funds were used for working capital purposes, for the acquisition
of radio stations and for the purchase of shares of Harmony. In October 1998, we
repaid approximately $14.7 million of such indebtedness with the cash we
received from our asset sales. As of the date of this prospectus, we owed
Foothill approximately $11.3 million. A first priority lien in favor of Foothill
on substantially all of our assets (and those of our subsidiaries) secures our
remaining indebtedness. We intend to repay Foothill in full upon consummation of
the sale of assets to Radio Unica. If the sale of assets to Radio Unica is not
consummated, our highly-leveraged position and requirements for payments to
Foothill may require us to liquidate all or a portion of our assets.
GENERAL
Our principal executive offices are located at 724 First Street North,
Minneapolis, Minnesota 55401, and our telephone number is (612) 338-3300.
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<PAGE>
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION IN THIS DOCUMENT, YOU SHOULD
CONSIDER CAREFULLY THE FOLLOWING RISK FACTORS BEFORE YOU INVEST IN THE SHARES
OFFERED HEREBY.
SOME OF THE INFORMATION IN THIS DOCUMENT MAY CONTAIN FORWARD-LOOKING
STATEMENTS. YOU CAN IDENTIFY SUCH STATEMENTS BY NOTING THE USE OF
FORWARD-LOOKING TERMS SUCH AS "BELIEVES," "EXPECTS," "PLANS," "ESTIMATES" AND
OTHER SIMILAR WORDS. CERTAIN RISKS, UNCERTAINTIES OR ASSUMPTIONS THAT ARE
DIFFICULT TO PREDICT MAY AFFECT SUCH STATEMENTS. THE FOLLOWING RISK FACTORS AND
OTHER CAUTIONARY STATEMENTS COULD CAUSE OUR ACTUAL OPERATING RESULTS TO DIFFER
MATERIALLY FROM THOSE EXPRESSED IN ANY FORWARD-LOOKING STATEMENT. WE CAUTION YOU
TO KEEP IN MIND THE FOLLOWING RISK FACTORS AND OTHER CAUTIONARY STATEMENTS AND
TO REFRAIN FROM PLACING UNDUE RELIANCE ON ANY FORWARD-LOOKING STATEMENTS, WHICH
SPEAK ONLY AS OF THE DATE OF THIS DOCUMENT.
STRATEGY TO SELL REMAINING RADIO STATIONS; LIMITED REVENUES. In October
1998, we signed a purchase agreement with Radio Unica for the sale of our three
remaining radio stations for approximately $29.3 million. We ceased broadcasting
our Aahs World Radio programming format in January 1998 in anticipation of the
sale of such radio stations to another party. Before we discontinued
broadcasting our children's radio format, we obtained most of our revenue from
the sale of local advertising and air time and network revenue. The cessation of
such broadcasting has negatively impacted our revenue. The sale of stations to
Radio Unica is subject to various contingencies, including customary closing
conditions and regulatory approvals. If we are unable to consummate the sale of
stations to Radio Unica and additional financing is not available, we will be
forced to liquidate some or all of our assets.
LIQUIDITY; POTENTIAL INABILITY TO REPAY EXISTING INDEBTEDNESS. At the
end of each of the past four quarters, we had the following working capital
deficits:
September 30, 1998 $32.4 million
June 30, 1998 $30.7 million
March 31, 1998 $28.4 million
December 31, 1997 $25.7 million
While we have obtained working capital through our credit agreement
with Foothill, such loan facilities mature on September 30, 2000. As of the date
of this prospectus, we owed Foothill approximately $11.3 million. A first
priority lien in favor of Foothill on substantially all of our assets (and those
of our subsidiaries) secures our remaining indebtedness. Interest under the
facilities is payable at the prime rate plus 5.75%. Our credit agreement with
Foothill contains financial covenants which require us, among other things, to
maintain specified financial ratios. In the event of default, our assets would
be at risk. There can be no assurance that we will be able to repay or refinance
our remaining indebtedness to Foothill. We intend to repay Foothill in full upon
consummation of the sale of assets to Radio Unica. If the sale of assets to
Radio Unica is not consummated, our highly-leveraged position and requirements
for payments to Foothill may require us to liquidate all or a portion of our
assets.
In addition to our indebtedness to Foothill, we have become a guarantor
of Harmony's $5.0 million revolving line of credit. In connection with the audit
report on Harmony's financial statements as of and for the year ended June 30,
1998, BDO Seidman, LLP, Harmony's independent auditors, expressed substantial
doubt about Harmony's ability to continue as a going concern because of its
recurring losses, negative working capital and negative cash flow from
operations. As of June 30, 1998 and for the period then ended, Harmony incurred
a net loss of $4.5 million, had a working capital deficit of $689,000 and
incurred negative cash flow from operations of $1.2 million. In November 1998,
Harmony announced its intention to discontinue a division which represented $1.6
million of its operating loss for the year ended June 30, 1998. No assurance can
be given that the discontinuation of such division will allow Harmony to meet
the requirements of its line of credit. If Harmony defaults on this line of
credit, we may be forced to satisfy its obligations thereunder. If
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<PAGE>
such default occurs before consummation of our sale of assets to Radio Unica, we
may be required to liquidate all or a portion of our assets.
EXPANSION INTO NEW BUSINESS. We intend, either directly or through
Harmony, to further expand our television commercial production business and
holdings through acquisitions and the hiring of creative talent. This expansion
is subject to all of the risks inherent in the establishment of a new business
enterprise. Our likelihood of success must be considered in light of the
problems, expenses, difficulties, complications and delays frequently
encountered in connection with the expansion into a new business enterprise. As
of the date of this prospectus, we do not have any understandings, commitments
or agreements with respect to any such acquisitions. No assurance can be given
that we will consummate future acquisitions or that any acquisitions, if
consummated, will ultimately be advantageous or profitable.
HISTORY OF OPERATING LOSSES. Since inception, we experienced
substantial net losses as a result of our efforts to develop a national
children's radio network. We have not generated positive cash flow sufficient to
fund our ongoing operations and have had frequent working capital shortages. For
each of the last three quarters, we incurred the following net losses:
September 30, 1998 $4.1 million
June 30, 1998 $3.9 million
March 31, 1998 $3.7 million
For each of the last two years, we incurred the following net losses:
December 31, 1997 $14.6 million
December 31, 1996 $9.9 million
We expect to continue to incur operating losses throughout 1998. In
connection with the audit reports on our financial statements as of and for the
years ended December 31, 1997 and 1996, BDO Seidman, LLP, our independent
auditors, expressed substantial doubt about our ability to continue as a going
concern because of our recurring losses, negative working capital and negative
cash flow from operations. As of September 30, 1998, we had an accumulated
deficit of $52.6 million and had used approximately $46.4 million of cash to
fund our losses.
ABC/DISNEY LITIGATION. On September 30, 1998, a jury in the United
States District Court for the District of Minnesota ruled in our favor in
connection with litigation for breach of contract and misappropriation of trade
secrets that we had commenced against ABC/Disney. We are seeking to have
judgment entered by the Court upon that verdict in the amount of $20.0 million
against ABC and $10.0 million against Disney. We are also seeking additional
amounts for taxes, pre-judgment interest and exemplary damages for willful and
malicious misappropriation of trade secrets. As of the date of this prospectus,
the entry of judgment is pending before the Court. No assurance can be given
that the Court will enter judgment in such amounts. If ABC/Disney decides to
appeal, defending such appeal would consume our resources, including personnel
costs and litigation costs. We have issued shares of common stock to legal
counsel for legal fees incurred in connection with the ABC/Disney litigation. We
may issue additional shares of our common stock to such counsel. The resale of
such shares may result in dilution to our other shareholders.
VOLATILITY OF MARKET PRICE OF COMMON STOCK. The market price of our
common stock has been subject to significant fluctuations in response to
numerous factors, including variations in our annual or quarterly financial
results, changes by financial research analysts in their estimates of our
earnings, conditions in the economy in general or in the radio industry in
particular, unfavorable publicity or changes in applicable laws and regulations
(or interpretations thereof) affecting us or the radio industry. During the
first ten months of 1998, the market price of our common stock ranged from a
high of $4.31 on January 7, 1998 to a low of $2.81 on January 28, 1998. There
can be no assurance that purchasers of our common stock will be able to sell
such stock at or above the prices at which they purchase it.
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<PAGE>
IMPACT OF SALE OF SHARES; SHARES ELIGIBLE FOR FUTURE SALE. As of
November 16, 1998, we had 6,600,642 shares of common stock outstanding and had
warrants and options outstanding to purchase an additional 3,393,691 shares of
common stock, exercisable at prices ranging from $4.00 to $13.80 per share. We
have periodically registered shares of our common stock for resale on the public
market. The sale of such shares, and the sale of additional shares which may
become eligible for sale in the public market from time to time upon the
exercise of warrants and options, may be dilutive to existing shareholders and
could have the effect of depressing the market price of our common stock.
DILUTION DUE TO CONVERSION OF PREFERRED STOCK. In June 1998, we issued
606,061 shares of Series B Convertible Preferred Stock to the selling
shareholders. The shares of this series have a stated value of $3.30 per share
and they may be converted into shares of common stock in certain circumstances.
The number of shares of common stock to be delivered upon conversion of a share
of this series is the stated value, divided by the lesser of (x) 110% of the
average best bid price of the common stock for the five consecutive trading days
ending on the day preceding the conversion date, or (y) 94% of the average of
the three lowest closing prices of the common stock during the 60 calendar day
period ending on the day preceding the conversion date; provided, however, that
such initial conversion price is subject to adjustment from time to time in
certain instances. Notwithstanding the foregoing, if the common stock is not
traded on the New York Stock Exchange, the American Stock Exchange, the Nasdaq
National Market or the Nasdaq SmallCap Market on the conversion date, then the
percentage specified in clause (y) above will be 84%. Under the amended
securities purchase agreement between us and the selling shareholders, we agreed
that the percentage in clause (y) of the conversion formula would be 80%
effective February 1, 1999 and such percentage would be 75% effective May 1,
1999. While we have the absolute right to redeem the shares of this series at
$4.0425 per share through January 31, 1999, there can be no assurance that we
will be able to redeem all or any portion of such shares. The sale of the shares
of common stock which may become eligible for sale in the public market from
time to time upon conversion of shares of this series may be dilutive to
existing shareholders and could have the effect of depressing the market price
of our common stock.
CONFLICTS OF INTEREST. In January 1996, we entered into a five-year
lease with 724 Associates, a partnership consisting of Christopher T. Dahl, our
President, Chief Executive Officer and Chairman of the Board, Richard W.
Perkins, one of our directors, and Stephen L. Wallack, one of our shareholders,
for approximately 6,000 square feet of office space at 724 First Street North,
Minneapolis, Minnesota. In November 1996, we entered into a five-year lease with
5501 Building Company, a partnership consisting of Messrs. Dahl and Perkins, for
approximately 12,000 square feet of office space at 5501 Excelsior Boulevard,
Minneapolis, Minnesota. We lease these facilities to house our executive offices
at an aggregate annual rental of $186,000. Both of our executive offices are
adjacent to the offices of Community Airwaves Corporation and Media Management,
L.L.C. Community Airwaves is owned and controlled by Messrs. Dahl, Perkins and
Russell Cowles II, either directly or through trusts. Media Management is owned
by Messrs. Dahl and Perkins. Mr. Cowles, a former director-elect, is a
beneficiary and trustee of the John Cowles Family Trust, one of our
shareholders. Under the terms of each lease, we are obligated to pay our
proportionate share of repairs and maintenance.
From July 1993 through July 1998, we received administrative, legal and
accounting services from Radio Management Corporation, an entity owned by
Messrs. Dahl, Perkins and Cowles. Since July 1998, we have received such
services from Media Management. Media Management provides corporate, legal,
accounting and financial services to us, Community Airwaves and Harmony. We pay
a set monthly fee of $75,000 for the services listed above. All outside services
directly attributable to us are billed directly to us. We paid Radio Management
Corporation an aggregate of $750,000 for such services during the fiscal year
ended December 31, 1996 and an aggregate of $900,000 for such services during
the fiscal year ended December 31, 1997. The salaries of two of our officers,
Messrs. Riley and Gilbertson, are paid by Media Management. Such arrangements
present conflicts of interest in connection with the pricing of services
provided.
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FCC REGULATION. The Federal Communications Commission must approve the
transfer of ownership of our three remaining radio stations to Radio Unica.
There can be no assurance that we will receive such approval. Without such
approval the pending sale of assets will not be consummated.
ANTI-TAKEOVER PROVISIONS. The Board of Directors, without any action by
our shareholders, has the authority to issue the remaining undesignated and
unissued authorized shares and to fix the powers, preferences, rights and
limitations of such shares or any class or series thereof, without shareholder
approval. Persons acquiring such shares could have preferential rights with
respect to voting, liquidation, dissolution or dividends over existing
shareholders. We are subject to certain provisions of the Minnesota Business
Corporation Act which limit the voting rights of shares acquired in "control
share acquisitions" and restrict certain "business combinations." Such
provisions, as well as the ability to issue undesignated shares, could have the
effect of deterring or delaying a takeover or other change in control, deny
shareholders the receipt of a premium on their common stock and depress the
market price of our common stock.
In February 1998, the Board of Directors declared a dividend of one
common share purchase right for each share of our common stock outstanding as of
the close of business on February 27, 1998. Each right will entitle the
registered holder to purchase from us, after the distribution date (as defined
in the Rights Agreement), common shares at an initial price of $18.00. The
rights have certain anti-takeover effects. The rights will cause substantial
dilution to a person or group that attempts to acquire us without conditioning
the offer on a substantial number of rights being acquired or redeemed. The
rights should not interfere with any merger or other business combination
approved by our Board of Directors since the Board of Directors may, at its
option and in its sole and absolute discretion, redeem the rights as provided in
the Rights Agreement.
CONTROL BY MANAGEMENT. As of November 16, 1998, approximately 17.5% of
our outstanding common stock was beneficially owned by our current officers and
directors. Accordingly, such persons may be able to significantly influence our
business and affairs. This concentration of ownership may have the effect of
delaying, deferring or preventing a change in control.
NO ASSURANCE AS TO LIQUIDITY ON THE NASDAQ STOCK MARKET. Our common
stock is currently listed on the Nasdaq National Market. If the sale of assets
to Radio Unica is not consummated, our common stock may not be eligible for
continued listing on the Nasdaq National Market. In the event that our common
stock becomes delisted, the market price of our common stock may decline.
Harmony's common stock is currently listed on the Nasdaq SmallCap
Market. On October 14, 1998, Harmony received a notice from Nasdaq that, based
on the net tangible assets reported in Harmony's public filings, its common
stock will be delisted from the Nasdaq SmallCap Market. It is Harmony's
obligation to establish for Nasdaq that its net tangible assets can be brought
into compliance with applicable listing requirements. Harmony submitted a plan
of compliance to Nasdaq which was found unacceptable by Nasdaq, raising the
possibility that Harmony's common stock will be delisted from the Nasdaq
SmallCap Market. We have been advised that Harmony intends to appeal Nasdaq's
decision as to its eligibility for continued listing. In the event that
Harmony's common stock becomes delisted, the liquidity and market value of our
investment in Harmony may be adversely affected.
ABSENCE OF DIVIDENDS. We have never declared or paid any cash dividends
on our common stock and do not intend to declare or pay cash dividends on our
common stock in the foreseeable future. We presently expect to retain our
earnings to finance our business. The declaration or payment of dividends, if
any, on our common stock in the future is subject to the discretion of the Board
of Directors and will depend on our earnings, financial condition, capital
requirements and other relevant factors. The declaration or payment of dividends
is also subject to our credit agreement with Foothill. Without Foothill's prior
written consent, we cannot declare or pay any cash dividends.
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SELLING SHAREHOLDERS
Under the securities purchase agreement between us and the selling
shareholders and the amendment to that agreement, we issued additional warrants
to them and agreed to register the shares to be issued to them upon the exercise
of such warrants. We also agreed to use our best efforts to keep the
registration statement effective for two years, until all of the shares have
been sold, or until all of the shares may be sold pursuant to SEC rules without
volume restrictions, whichever comes first. Our registration of the shares does
not necessarily mean that the selling shareholders will sell all or any of the
shares. Further, such registration does not necessarily mean that all of the
additional warrants will become exercisable.
In October 1998, we issued the selling shareholders warrants to
purchase an aggregate of up to 25,000 shares due to the delay in our closing
with Catholic Radio Network. Later that month, we issued them additional
warrants to purchase an aggregate of up to 65,000 shares in connection with the
extension of our absolute right to redeem their preferred stock through January
31, 1999. If we do not redeem all of their preferred stock on or before December
31, 1998, they will have the right to exercise additional warrants to purchase
an aggregate of up to 35,000 shares. Further, if we do not redeem all of their
preferred stock on or before January 31, 1999, they will have the right to
exercise additional warrants to purchase an aggregate of up to 25,000 shares.
Each warrant has a term of five years and may be exercised at $2.6755062 per
share. To redeem their preferred stock we must pay them $4.0425 per share.
The following table presents certain information regarding the selling
shareholders. The shares covered by this prospectus represent shares that
each selling shareholder may own upon the exercise of warrants.
<TABLE>
<CAPTION>
PERCENTAGE OF
SHARES OUTSTANDING
BENEFICIALLY SHARES SHARES
OWNED BENEFICIALLY BENEFICIALLY
PRIOR TO SHARES OWNED UPON OWNED UPON
OFFERING OFFERED COMPLETION OF COMPLETION OF THE
SELLING SHAREHOLDER (1)(2) HEREBY(3) THE OFFERING(4) OFFERING(5)
- - ------------------- ------------ --------- --------------- -----------------
<S> <C> <C> <C> <C>
Talisman Capital Opportunity Fund Ltd. 846,500(6) 75,000 771,500 10.5%
Dominion Capital Limited 423,250(7) 37,500 385,750 5.5
Sovereign Partners L.P. 423,250(7) 37,500 385,750 5.5
</TABLE>
- - --------------------
(1) The securities "beneficially owned" by a person are determined in
accordance with the SEC's definition of "beneficial ownership" and,
accordingly, may include securities owned by or for, among others, the
spouse, children or certain other relatives of such person, as well as
other securities over which the person has or shares voting or
investment power or securities which the person has the right to
acquire within 60 days of the date of this prospectus.
(2) The actual number of shares issuable upon conversion of shares of
convertible stock held by the selling shareholders is subject to
adjustment and could be materially more or less than such estimated
amount depending on factors that cannot be predicted at this time, such
as the future market price of the common stock. We have assumed a
conversion factor of approximately 2.38 shares of common stock for each
share of preferred stock.
(3) Represents shares purchasable upon the exercise of warrants.
(4) Assumes that all of the shares held by the selling shareholders and
being offered under this prospectus are sold, and that the selling
shareholders acquire no additional shares of common stock before the
completion of this offering.
(5) Percentage of beneficial ownership is based on 6,600,642 shares of
common stock outstanding as of the date of this prospectus. Shares
issuable pursuant to the conversion of preferred stock and the
9
<PAGE>
exercise of warrants are deemed outstanding for computing the
percentage of the person holding such securities but are not deemed
outstanding for computing the percentage of any other person.
(6) Represents 721,500 shares purchasable upon the conversion of preferred
stock and 125,000 shares purchasable upon exercise of warrants.
(7) Represents 360,750 shares purchasable upon the conversion of preferred
stock and 62,500 shares purchasable upon the exercise of warrants.
USE OF PROCEEDS
All net proceeds from the sale of the shares will go to the
shareholders who offer and sell their shares. Accordingly, we will not receive
any proceeds from the sale of the shares.
PLAN OF DISTRIBUTION
The selling shareholders may offer their shares at various times in one
or more of the following transactions:
* on the Nasdaq National Market
* in transactions other than on such market
* in privately negotiated transactions, or
* in a combination of any of the above transactions
The selling shareholders may sell their shares at market prices
prevailing at the time of sale, at prices related to such prices, or at
negotiated prices. We are indemnifying the selling shareholders and they are
indemnifying us against certain liabilities, including liabilities under the
Securities Act.
The selling shareholders may use broker-dealers to sell their shares.
If this happens, such broker-dealers will either receive discounts or
commissions from the selling shareholders, or they will receive commissions from
purchasers of shares for whom they acted as agent.
The selling shareholders and any persons who participate in the sale of
the shares from time to time, may be deemed to be "underwriters" within the
meaning of the Securities Act. Any commissions paid or discounts or concessions
allowed to any such persons, and any profits received on resale of the shares,
may be deemed to be underwriting compensation under the Securities Act.
In order to comply with the securities laws of certain states, if
applicable, the shares will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
shares may not be sold unless they have been registered or qualified for sale in
the applicable state or an exemption from the registration or qualification
requirement is available.
LEGAL MATTERS
For the purposes of this offering, Lance W. Riley, Esq., our Secretary
and General Counsel, is giving his opinion on the validity of the shares and
certain other legal matters. Mr. Riley has options to purchase shares of our
common stock.
EXPERTS
The consolidated financial statements as of December 31, 1996 and
December 31, 1997 of Children's Broadcasting Corporation, incorporated by
reference in this prospectus, have been audited by BDO Seidman, LLP, independent
certified public accountants, as set forth in their reports thereon (which
contain an explanatory paragraph with respect to substantial doubt about the
Company's ability to continue as a going concern and management's plans
described in Note 2 to the consolidated financial statements). Such consolidated
financial statements are incorporated by reference herein in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
10
<PAGE>
=========================================== ====================================
YOU SHOULD RELY ON THE INFORMATION
CONTAINED IN THIS DOCUMENT OR THAT TO WHICH
WE HAVE REFERRED YOU. WE HAVE NOT AUTHORIZED 150,000 SHARES
ANYONE TO PROVIDE YOU WITH INFORMATION THAT
IS DIFFERENT. YOU SHOULD NOT ASSUME THAT THE
INFORMATION IN THIS DOCUMENT IS ACCURATE AS
OF ANY DATE OTHER THAN THE DATE ON THE FRONT
OF THIS DOCUMENT. THIS PROSPECTUS IS NOT AN
OFFER TO SELL NOR IS IT SEEKING AN OFFER TO CHILDREN'S BROADCASTING
BUY ANY SECURITIES IN ANY STATE WHERE THE CORPORATION
OFFER OR SALE IS NOT PERMITTED.
COMMON STOCK
---------------------
TABLE OF CONTENTS
--------------------- --------------
PROSPECTUS
--------------
Page
----
Where You Can Find More Information...... 2
Prospectus Summary....................... 3
Risk Factors............................. 5
Selling Shareholders......................9
Use of Proceeds..........................10
Plan of Distribution.....................10
Legal Matters............................10
Experts..................................10
__________, 1998
=========================================== ====================================
<PAGE>
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses to be borne by
the Company in connection with the offering described in this registration
statement:
SEC registration fee........................................ $ 154
Legal fees and expenses..................................... 6,000
Accounting fees and expenses................................ 4,000
Blue sky and related fees and expenses...................... 1,000
Miscellaneous (including listing fees, if applicable)....... 1,346
--------
Total.................................................. $ 12,500
========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
We are a Minnesota corporation. We refer you to Minnesota Statutes
Section 302A.521 which provides that a Minnesota business corporation shall
indemnify any director, officer, employee or agent of the corporation made or
threatened to be made a party to a proceeding, by reason of the former or
present official capacity (as defined) of the person, against judgments,
penalties, fines, settlements and reasonable expenses incurred by the person in
connection with the proceeding if certain statutory standards are met.
"Proceeding" means a threatened, pending or completed civil, criminal,
administrative, arbitration or investigative proceeding, including one by or in
the right of the corporation. Section 302A.521 contains detailed terms regarding
such right of indemnification and reference is made thereto for a complete
statement of such indemnification rights.
Article 6.2 of our Bylaws provides that we will indemnify our
directors, officers, employees and agents, past or present, and persons serving
as such of another corporation or entity at our request, for such expenses and
liabilities, in such manner, under such circumstances, and to such extent as
permitted under Section 302A.521.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
4.1 Articles of Incorporation, as amended and restated (incorporated by
reference to our quarterly report on Form 10-QSB for the quarter ended
September 30, 1998).
4.2 Bylaws, as amended and restated (incorporated by reference to our
registration statement on Form S-18 (No. 33-44412) filed on December 5,
1991).
4.3 Rights Agreement between Children's Broadcasting Corporation and
Norwest Bank Minnesota, National Association, dated February 19, 1998
(incorporated by reference to our registration statement on Form 8-A
(No. 0-21534) filed on February 20, 1998).
5.1 Opinion of Lance W. Riley, Esq.
10.1 Securities Purchase Agreement by and between Children's Broadcasting
Corporation, Talisman Capital Opportunity Fund Ltd., Dominion Capital
Limited and Sovereign Partners LP, dated June 25, 1998 (incorporated by
reference to our current report on Form 8-K, filed on July 6, 1998).
10.2 Amendment No. 1 to Securities Purchase Agreement by and between
Children's Broadcasting Corporation, Talisman Capital Opportunity Fund
Ltd., Dominion Capital Limited and Sovereign Partners LP, dated October
22, 1998 (incorporated by reference to our quarterly report on Form 10-
QSB for the quarter ended September 30, 1998).
II-2
<PAGE>
10.3 Form of Common Stock Purchase Warrant issued by Children's Broadcasting
Corporation to Talisman Capital Opportunity Fund Ltd. (incorporated by
reference to our current report on Form 8-K, filed on July 6, 1998).
10.4 Form of Common Stock Purchase Warrant issued by Children's Broadcasting
Corporation to Dominion Capital Limited (incorporated by reference to
our current report on Form 8-K, filed on July 6, 1998).
10.5 Form of Common Stock Purchase Warrant issued by Children's Broadcasting
Corporation to Sovereign Partners LP (incorporated by reference to our
current report on Form 8-K, filed on July 6, 1998).
23.1 Consent of Lance W. Riley, Esq. (included in Exhibit 5.1).
23.2 Consent of Independent Certified Public Accountants.
24.1 Power of Attorney.
ITEM 17. UNDERTAKINGS
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 (other than as
provided in the proviso and instructions to Item 512(a) of Regulation S-B): (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 registration statement; and (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, 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.
(4) 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 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.
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 provisions described in Item 15 above, or otherwise,
the registrant has been advised that, in the opinion of the SEC, 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 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 or not 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Minneapolis and State of Minnesota, on November 16,
1998.
CHILDREN'S BROADCASTING CORPORATION
By /s/ Christopher T. Dahl
-------------------------------------
Christopher T. Dahl, President
and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Lance W. Riley and James G. Gilbertson as his
true and lawful attorney-in-fact and agent, with full powers of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments (including post-effective amendments)
to this registration statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the SEC, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or 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 attorney-in-fact and agent, or his 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 on the dates and in the
capacities indicated.
Signature Title Date
--------- ----- ----
/s/ Christopher T. Dahl President, Chief Executive November 16, 1998
- - -------------------------- Officer and Director (Principal
Christopher T. Dahl Executive Officer)
/s/ James G. Gilbertson Chief Operating Officer November 16, 1998
- - -------------------------- (Principal Accounting Officer
James G. Gilbertson and Principal Financial Officer)
/s/ Richard W. Perkins Director November 16, 1998
- - --------------------------
Richard W. Perkins
/s/ Michael R. Wigley Director November 16, 1998
- - --------------------------
Michael R. Wigley
/s/ William E. Cameron Director November 16, 1998
- - --------------------------
William E. Cameron
II-4
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
- - ------ -----------
4.1 Articles of Incorporation, as amended and restated (incorporated
by reference to our quarterly report on Form 10-QSB for the
quarter ended September 30, 1998).
4.2 Bylaws, as amended and restated (incorporated by reference to our
registration statement on Form S-18 (No. 33-44412) filed on
December 5, 1991).
4.3 Rights Agreement between Children's Broadcasting Corporation and
Norwest Bank Minnesota, National Association, dated February 19,
1998 (incorporated by reference to our registration statement on
Form 8-A (No. 0-21534) filed on February 20, 1998).
5.1 Opinion of Lance W. Riley, Esq.
10.1 Securities Purchase Agreement by and between Children's
Broadcasting Corporation, Talisman Capital Opportunity Fund Ltd.,
Dominion Capital Limited and Sovereign Partners LP, dated June 25,
1998 (incorporated by reference to our current report on Form 8-K,
filed on July 6, 1998).
10.2 Amendment No. 1 to Securities Purchase Agreement by and between
Children's Broadcasting Corporation, Talisman Capital Opportunity
Fund Ltd., Dominion Capital Limited and Sovereign Partners LP,
dated October 22, 1998 (incorporated by reference to our quarterly
report on Form 10-QSB for the quarter ended September 30, 1998).
10.3 Form of Common Stock Purchase Warrant issued by Children's
Broadcasting Corporation to Talisman Capital Opportunity Fund Ltd.
(incorporated by reference to our current report on Form 8-K,
filed on July 6, 1998).
10.4 Form of Common Stock Purchase Warrant issued by Children's
Broadcasting Corporation to Dominion Capital Limited (incorporated
by reference to our current report on Form 8-K, filed on July 6,
1998).
10.5 Form of Common Stock Purchase Warrant issued by Children's
Broadcasting Corporation to Sovereign Partners LP (incorporated by
reference to our current report on Form 8-K, filed on July 6,
1998).
23.1 Consent of Lance W. Riley, Esq. (included in Exhibit 5.1).
23.2 Consent of Independent Certified Public Accountants.
24.1 Power of Attorney.
II-5
EXHIBIT 5.1
November 16, 1998
Children's Broadcasting Corporation
724 First Street North
Minneapolis, Minnesota 55401
Gentlemen:
I am General Counsel to Children's Broadcasting Corporation, a
Minnesota corporation, in connection with its filing of a registration statement
on Form S-3, under the Securities Act, relating to the proposed sale by
selling shareholders of 150,000 shares of common stock of the Company. Such
shares are issuable upon the exercise of warrants held by the selling
shareholders.
I have examined the registration statement and those documents,
corporate records, and other instruments I deemed relevant as a basis for the
opinion herein expressed.
Based on the foregoing, it is my opinion that when the registration
statement shall have been declared effective by order of the SEC, and the shares
have been sold as contemplated by the registration statement, the shares will be
legally and validly issued, fully-paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
registration statement and to the reference to myself under the caption "Legal
Matters" in the prospectus included in such registration statement.
/s/ Lance W. Riley
---------------------------------------
Lance W. Riley
Secretary and General Counsel
Children's Broadcasting Corporation
EXHIBIT 23.2
Consent of Independent Certified Public Accountants
We consent to the reference to our firm under the captions "Risk Factors -
History of Operating Losses" and "Experts" in the registration statement on Form
S-3 of Children's Broadcasting Corporation for the registration of 150,000
shares of common stock and to the incorporation by reference therein of our
report dated February 24, 1998, except for Notes 2, 9, 13 and 16 which are dated
March 13, 1998, with respect to the consolidated financial statements of
Children's Broadcasting Corporation included in the annual report (Form 10-KSB)
for the year ended December 31, 1997.
/s/ BDO Seidman, LLP
--------------------------
BDO Seidman, LLP
Milwaukee, Wisconsin
November 13, 1998
