<PAGE>
As filed with the Securities and Exchange Commission on May ___, 1997
Registration No. 333-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
------------------------------------
SFX BROADCASTING, INC.
(Exact Name of Registrant as Specified in Its Charter)
------------------------------------
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)
------------------------------------
SFX BROADCASTING, INC. 1993 STOCK OPTION PLAN
SFX BROADCASTING, INC. 1994 STOCK OPTION PLAN
SFX BROADCASTING, INC. 1995 STOCK OPTION PLAN
SFX BROADCASTING, INC. 1996 STOCK OPTION PLAN
SFX BROADCASTING, INC. 1997 STOCK OPTION PLAN
(Full Title of the Plans)
------------------------------------
ROBERT F.X. SILLERMAN with copies to:
EXECUTIVE CHAIRMAN
150 EAST 58TH STREET, 19TH FLOOR HOWARD BERKOWER
NEW YORK, NEW YORK 10155 BAKER & MCKENZIE
(212) 407-9191 805 THIRD AVENUE
(Name, Address and Telephone Number, NEW YORK, NEW YORK 10022
Including Area Code, of Agent For Service) (212) 751-5700
------------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE FEE
<S> <C> <C> <C> <C>
Class A Common Stock (1993 Plan) 350,000 $ 13.50(2) $ 4,725,000 $ 1,431.82
Class A Common Stock (1994 Plan) 150,000 $ 13.00(2) $ 1,950,000 $ 590.91
Class A Common Stock (1995 Plan) 250,000 $ 21.25(2) $ 5,312,500 $ 1,609.85
Class A Common Stock (1996 Plan) 300,000 $ 27.25(2) $ 10,900,000 $ 3,303.03
Class A Common Stock (1997 Plan) 400,000 $ 30.50(3) $ 12,200,000 $ 3,696.97
TOTAL: $ 10,632.58
<FN>
(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 SFX Broadcasting, Inc.'s 1993, 1994, 1995, 1996 and 1997 Stock Option Plans.
(2) Pursuant to Rule 457(h)(i), the offering price is based on the highest exercise price per share of options
issued under the applicable plan.
(3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c), based on the
average high and low prices of the Class A Common Stock on April 30, 1997, as reported by the Nasdaq National
Market System.
</TABLE>
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<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 Current Reports on Form 8-K dated January 17,
1997, January 21, 1997, January 22, 1997, January 27, 1997
and April 15, 1997; and
3. 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 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
II-1
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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.
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
II-2
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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 By-Laws.
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 Fisher Wayland Cooper Leader & Zaragoza LLP.
23.4 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
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(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
day of May, 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 May 5, 1997
- ----------------------------------- (principal executive officer)
Robert F.X. Sillerman
/s/ Michael G. Ferrel Chief Executive Officer and Director May 5, 1997
- -----------------------------------
Michael G. Ferrel
/s/ D. Geoffrey Armstrong Chief Operating Officer, May 5, 1997
- ----------------------------------- Executive Vice President and Director
D. Geoffrey Armstrong
/s/ Thomas P. Benson Chief Financial Officer, Treasurer and Director May 5, 1997
- ----------------------------------- (principal financial and accounting officer)
Thomas P. Benson
/s/ Howard J. Tytel Executive Vice President, Secretary May 5, 1997
- ----------------------------------- and Director
Howard J. Tytel
/s/ James F. O'Grady, Jr. Director May 5, 1997
- -----------------------------------
James F. O'Grady, Jr.
/s/ Paul Kramer Director May 5, 1997
- -----------------------------------
Paul Kramer
/s/ Richard A. Liese Director May 5, 1997
- -----------------------------------
Richard A. Liese
Director
/s/ Edward F. Dugan May 5, 1997
- -----------------------------------
Edward F. Dugan
<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 Fisher Wayland Cooper Leader & Zaragoza LLP.
23.4 Consent of BIA Publications, Inc.
25.1 Power of Attorney (included on the signature page of the
Registration Statement).
</TABLE>
<PAGE>
EXHIBIT 5.1
May 6, 1997
Board of Directors
SFX Broadcasting, Inc.
150 East 58th Street, 19th Floor
New York, New York 10155
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
On May 6, 1997, SFX Broadcasting, Inc., a Delaware corporation (the
"Company"), filed with the Securities and Exchange Commission a 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 an aggregate of 1,450,000 shares of Class A
Common Stock, par value $.01 per share (the "Shares"), issuable upon exercise
of stock options granted under the Company's 1993, 1994, 1995, 1996, and 1997
Stock Option Plans (collectively, the "Plans"). We have acted as Counsel to
the Company in connection with the preparation and filing of the Registration
Statement.
In this regard, 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
genuiness 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 in accordance with the terms of the Plans have been duly and validly
authorized for issuance or sale, and, when issued and paid for as described in
the Plans, 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
-----------------------------------
BAKER & McKENZIE
HMB/NTD/GFB
<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 1993 Stock Option Plan, the 1994 Stock Option Plan,
the 1995 Stock Option Plan, the 1996 Stock Option Plan and the 1997 Stock
Option Plan of SFX Broadcasting, Inc. 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
----------------------
Ernst & Young LLP
New York, New York
May 6, 1997
<PAGE>
CONSENT
We hereby consent to the incorporation by reference in the
Registration Statements of SFX Broadcasting, Inc. ("SFX") on Form S-8 of our
firm name included in the SFX Annual Report on Form 10-K for the year ended
December 31, 1996. 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 L.L.P.
--------------------------------------------------
FISHER WAYLAND COOPER LEADER
& ZARAGOZA L.L.P.
Dated: May 2, 1997
<PAGE>
BIA Publications, Inc.
14595 Avion Parkway, Suite 500
Chantilly, Virginia 22021
May 1, 1997
SFX Broadcasting, Inc.
150 East 58th Street, 19th Floor
New York, New York 10155
Gentlemen:
BIA Publications, 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 dated March 31, 1996.
Very truly yours,
BIA PUBLICATIONS, INC.
By: /s/ Debra L. Metcalf, V.P.
----------------------------
Authorized Officer
