<PAGE>
As filed with the Securities and Exchange Commission on October 9, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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SFX BROADCASTING, INC.
(Exact Name of Registrant as Specified in Its Charter)
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DELAWARE 13-3649750
(State of Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
150 EAST 58TH STREET, 19TH FLOOR
NEW YORK, NEW YORK 10155
(Address, Including Zip Code, of Principal Executive Offices)
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Stock Option Agreement, dated April 29, 1996, between
SFX Broadcasting, Inc. and Michael G. Ferrel
(Full Title of the Plan)
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Robert F.X. Sillerman
Executive Chairman
150 East 58th Street, 19th Floor
New York, New York 10155
(212) 407-919
(Name, Address and Telephone Number,
Including Area Code, of Agent For Service)
with copies to:
Howard Berkower
Baker & McKenzie
805 Third Avenue
New York, New York 10022
(212) 751-5700
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED
MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED (1) PER SHARE OFERING PRICE FEE
- ------------------------- -------------- -------------- ---------------- ------------
<S> <C> <C> <C> <C>
Class A Common Stock 50,000 $ 33.75 $1,687,500 $ 511.36
</TABLE>
(1) Pursuant to Rule 416 of the Securities Act of 1933, this Registration
Statement also covers such additional shares of Class A Common Stock
as may be issuable by reason of the operation of the anti-dilution
provisions of the options granted under the Stock Option Agreement.
================================================================================
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of SFX Broadcasting, Inc., a Delaware
corporation (the "Company") are incorporated by reference into this
Registration Statement:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996;
2. The Company's Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1997 and June 30, 1997;
3. The Company's Current Reports on Form 8-K dated
January 17, 1997, January 21, 1997, January 22,
1997, January 27, 1997; April 15, 1997, June 16,
1997, July 11, 1997 and August 25, 1997 and the
Company's Current Report on Form 8-K/A dated June
16, 1997; and
4. The description of the Company's Class A Common
Stock, $.01 par value per share, contained in the
Company's Registration Statement on Form 8-A (File
No. 0-22486) filed with the Securities and Exchange
Commission on September 27, 1993, as amended.
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,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all of the securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated by reference
herein as set forth above shall be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Class A Common Stock offered
hereby is being passed upon for the Company by Baker & McKenzie, New York, New
York. Baker & McKenzie has also served as counsel to entities controlled by
Robert F.X. Sillerman, the Executive Chairman and a Director of the Company,
who directly and through his affiliates, including Sillerman Communications
Management Corporation ("SCMC") and Sillerman Communications Partners, L.P.
("SCP"), controls a majority of the voting power of the Company. Howard J.
Tytel, who is Executive Vice President, Secretary and a Director of the
Company, is Executive Vice President, General Counsel and a Director of, and
holds an equity interest in, SCMC and is Of Counsel to Baker & McKenzie. Baker
& McKenzie has served as counsel to SCMC and SCP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware empowers a Delaware corporation to indemnify any person who is, or is
threatened to be made, a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal administrative or investigative
(other than an action by or in the right of such corporation) by reason of the
fact that such person is or was an officer or director of such corporation, or
is or was serving at the request of such corporation as a director, officer,
employee or agent of
<PAGE>
another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided that he acted in good faith and in a manner he
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 conduct was unlawful. A Delaware corporation
may indemnify officers and directors against expenses (including attorneys'
fees) in an action by or in the right of the corporation under similar
conditions, except that no indemnification is permitted without judicial
approval if the officer or director is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses which he actually and reasonably incurred in
connection therewith.
The Restated Certificate of Incorporation of the Company, as
amended (the "Certificate of Incorporation"), provides that no director of the
Company shall be personally liable to the Company or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Company
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the General Corporation Law of the State of Delaware or (iv) for
any transaction from which the director derived an improper personal benefit.
The Company's By-Laws, as amended (the "By-Laws") provide
that the Company shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Company) by reason of the fact
that he is, was or has agreed to become a director or officer of the Company,
or is or was serving or has agreed to serve at the request of the Company as a
director or officer of another company, partnership, joint venture, trust or
other enterprise, against costs, charges, expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him or on his behalf in connection with such action, suit or
proceeding and any appeal therefrom, if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, 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
reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had reasonable
cause to believe that his conduct was unlawful.
The By-laws also provide that the Company shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Company to procure a judgment in its favor by reason of the fact that he is,
was or has agreed to become a director or officer of the Company, or is or was
serving at the request of the Company as a director or officer of another
company, partnership, joint venture, trust or other enterprise, or by reason of
any action alleged to have been taken or omitted in such capacity, against
costs, charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection with the defense or settlement
of such action or suit and any appeal therefrom, if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Company and except that no such indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable to the Company unless and only to the extent that
the Court of Chancery of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which such Court
of Chancery or such other court shall deem proper.
The By-Laws state that, to the extent that a director or
officer of the Company shall be successful on the merits or otherwise,
including, without limitation, the dismissal of an action without prejudice, in
defense of any action, suit or proceeding referred to above, or in the defense
of any claim, issue or matter therein, he shall be indemnified against all
costs, charges and expenses (including attorneys' fees) actually and reasonably
incurred by him or on his behalf in connection therewith.
II-2
<PAGE>
The By-Laws further provide that any indemnification (unless
ordered by a court) shall be paid by the Company as authorized in the specific
case upon a determination that indemnification of the director or officer is
proper in the circumstances because he has met the applicable standard of
conduct set forth in the By-Laws unless a determination is made that
indemnification of the director or officer is not proper in the circumstances
because he has not met the applicable standard of conduct set forth in the
By-Laws. Such determination shall be made (i) by the Board of Directors of the
Company by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders.
The By-Laws further require that expenses incurred by an
officer or director in defending a civil or criminal action, suit or proceeding
shall be paid by the Company in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Company as
authorized in the ByLaws.
The By-Laws require the Board of Directors of the Company to
purchase and maintain insurance on behalf of any person who is or was or has
agreed to become a director or officer of the Company, or is or was serving at
the request of the Company as a director or officer of another company,
partnership, joint venture, trust or other enterprise against any liability
asserted against him and incurred by him or on his behalf in any such capacity,
or arising out of his status as such, whether or not the Company would have the
power to indemnify him against such liability under the provisions of the
By-Laws, provided that such insurance is available on acceptable terms, which
determination shall be made by a vote of a majority of the Board of Directors.
The By-Laws also provide that the indemnification and
advancement of expenses provided by, or granted pursuant to, the By-Laws shall
continue as to a person who has ceased to be a director or officer and shall
inure to the benefit of the estate, heirs, executors and administrators of such
person.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
5.1 Opinion of Baker & McKenzie.
23.1 Consent of Baker & McKenzie (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Arthur Andersen LLP.
23.4 Consent of Fisher Wayland Cooper Leader & Zaragoza LLP.
23.5 Consent of BIA Publications, Inc.
25.1 Power of Attorney (included on the signature page of the Registration
Statement).
ITEM 9. UNDERTAKINGS.
RULE 415 OFFERING. 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:
II-3
<PAGE>
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the Prospectus any facts of 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. 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; 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; provided,
however, that paragraphs (1)(i)and(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 Securities Exchange
Act of 1934 (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 of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE. 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.
FILING OF REGISTRATION STATEMENT ON FORM S-8. 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 proceedings) 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 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-4
<PAGE>
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 New York, State of New York, on the 8th day of
October, 1997.
SFX BROADCASTING, INC.
By: /s/ Howard J. Tytel
----------------------------------------
Howard J. Tytel
Executive Vice President and Secretary
POWER OF ATTORNEY
In accordance with 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 stated. Each person whose signature to this
Registration Statement appears below hereby appoints Robert F.X. Sillerman or
Howard J. Tytel as his attorney-in-fact to sign on his behalf, individually and
in the capacities stated below, and to file any and all amendments and
post-effective amendments to this Registration Statement, which amendment or
amendments may make such changes and additions as such attorney-in-fact may
deem necessary or appropriate.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------------------------- ------------------------------------------------ ----------------
<S> <C> <C>
/s/ Robert F.X. Sillerman Executive Chairman and Director October 8, 1997
- -----------------------------
Robert F.X. Sillerman (principal executive officer)
/s/ Michael G. Ferrel Chief Executive Officer and Director October 8, 1997
- -----------------------------
Michael G. Ferrel
/s/ D. Geoffrey Armstrong Chief Operating Officer, Executive Vice October 8, 1997
- -----------------------------
D. Geoffrey Armstrong President and Director
/s/ Thomas P. Benson Chief Financial Officer, Treasurer and Director October 8, 1997
- -----------------------------
Thomas P. Benson (principal financial and accounting officer)
/s/ Howard J. Tytel Executive Vice President, Secretary and October 8, 1997
- -----------------------------
Howard J. Tytel Director
/s/ James F. O'Grady, Jr.. Director October 8, 1997
James F. O'Grady, Jr.
/s/ Paul Kramer Director October 8, 1997
Paul Kramer
/s/ Richard A. Liese Director October 8, 1997
- -----------------------------
Richard A. Liese
/s/ Edward F. Dugan Director October 8, 1997
- -----------------------------
Edward F. Dugan
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
5.1 Opinion of Baker & McKenzie.
23.1 Consent of Baker & McKenzie (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Arthur Andersen LLP.
23.4 Consent of Fisher Wayland Cooper Leader & Zaragoza LLP.
23.5 Consent of BIA Publications, Inc.
25.1 Power of Attorney (included on the signature page of the Registration
Statement).
<PAGE>
EXHIBIT 5.1
October 9, 1997
SFX Broadcasting, Inc.
150 East 58th Street, 19th Floor
New York, New York 10155
RE: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
As counsel to SFX Broadcasting, Inc., a Delaware corporation
(the "Company"), we have assisted in the preparation of the Company's
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"). The Registration Statement
relates to the registration by the Company of 50,000 shares of Class A Common
Stock, par value $.01 per share, of the Company issuable upon exercise of a
stock option granted to Michael G. Ferrel pursuant to the Stock Option
Agreement, dated April 29, 1996 (the "Agreement") between the Company and Mr.
Ferrel.
In rendering this opinion, we have examined originals or
copies authenticated to our satisfaction of the Company's Restated Certificate
of Incorporation, as amended, the Company's Bylaws, as amended, and the
Company's records of corporate proceedings. In addition, we have made such
other examinations of law and fact as we have considered necessary in order to
form a basis for the opinions hereinafter expressed. In such examination we
have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as photostatic or certified copies, and the
authenticity of the originals of such copies.
Based upon the foregoing, we are of the opinion that the
shares to be issued upon exercise of the stock option granted by the Agreement
have been duly and validly authorized and, when issued and paid for as
described in the Agreement, will be duly and validly issued, fully paid, and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement. In giving this consent, we do not admit that we
come within the category of persons whose consent is required by the Act or the
rules and regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Baker & McKenzie
HMB/GG
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement (Form S-8) pertaining to the Stock Option Agreement
dated April 29, 1996 between SFX Broadcasting, Inc. and Michael G. Ferrel of
our report dated February 20, 1997, except for Note 13, as to which the date is
March 27, 1997, with respect to the consolidated financial statements and
schedule of SFX Broadcasting, Inc. and Subsidiaries included in its Annual
Report (Form 10-K) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
New York, New York
October 8, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement on Form S-8 of SFX
Broadcasting, Inc. of our report dated January 17, 1997 (and to all references
to our firm) relating to the combined financial statements of The Secret
Stations: Indianapolis and Pittsburgh included in SFX Broadcasting, Inc.'s
previously filed Form 8-K dated January 21, 1997.
/s/ Arthur Andersen LLP
Chicago, Illinois
October 8, 1997
<PAGE>
EXHIBIT 23.4
CONSENT
We hereby consent to the use of our firm name in SFX
Broadcasting, Inc.'s Registration Statement on Form S-8 as filed with the
Securities and Exchange Commission on October 9, 1997. In giving this consent,
we do not concede that we come within the category of persons whose consent is
required by Section 7 of the Securities Act of 1933, as amended.
/s/ Fisher Wayland Cooper Leader & Zaragoza LLP
Dated: October 9, 1997
<PAGE>
EXHIBIT 23.5
BIA Research, Inc.
14595 Avion Parkway, Suite 500
Chantilly, Virginia 22021
October 8, 1997
SFX Broadcasting, Inc.
150 East 58th Street, 19th Floor
New York, New York 10155
Gentlemen:
BIA Research, Inc. hereby consents to the incorporation by
reference in the Registration Statements of SFX Broadcasting, Inc. on Form S-8
of the radio station and market data which was included in SFX Broadcasting,
Inc.'s Annual Report on Form 10-K for the fiscal year ended December 31, 1996.
Very truly yours,
BIA RESEARCH, INC.
By: /s/ Debra L. Metcalf
-------------------------------
Debra L. Metcalf
Vice President
