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As Filed with the Securities and Exchange Commission on June 13, 1996
File No. 333
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
-----------------------
HEFTEL BROADCASTING CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 99-0113417
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification
Number)
6767 West Tropicana Avenue, Suite 102
Las Vegas, Nevada 89103
(Address of Principal Executive Offices)
HEFTEL BROADCASTING CORPORATION STOCK OPTION PLAN
(Full Title of the Plan)
H. CARL PARMER, PRESIDENT AND CO-CHIEF EXECUTIVE OFFICER
HEFTEL BROADCASTING CORPORATION
6767 West Tropicana Avenue
Las Vegas, Nevada 89103
(Name and address of agent for service)
(702) 367-3322
(Telephone number, including area code,
of agent for service)
Copies of Communications to:
FREDERICK W. GARTSIDE, ESQ.
JEFFER, MANGELS, BUTLER & MARMARO LLP
2121 Avenue of the Stars, 10th Floor
Los Angeles, California 90067
(310) 203-8080
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=======================================================================================================================
Title of securities Amount Proposed Proposed Amount of
to be to be Maximum Offering Maximum Registration
Registered Registered(1) Price per share Aggregate Offering Price Fee (2)
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common 750,000 $27.375 $20,531,250 $7,079.74
Stock, $.001 par value,
to be issued under
Stock Option Plan
=======================================================================================================================
</TABLE>
(1) This Registration Statement also includes an indeterminable number of
additional shares that may become issuable, pursuant to the
antidilution adjustment provisions of the Heftel Broadcasting
Corporation Stock Option Plan.
(2) Calculated pursuant to Rules 457(h) and 457(c) under the Securities Act
of 1933. The total registration fee is based on the last sale reported
on the Nasdaq National Market on June 5, 1996.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I will
be sent or given to employees as specified by Rule 428(b)(1). Such documents are
not filed with the Commission either as part of this registration statement or
as a prospectus or prospectus supplement pursuant to Rule 424.
I-1
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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Registrant under the
Securities Act of 1933 or the Securities Exchange Act of 1934 with the
Securities and Exchange Commission are incorporated herein by reference.
(a) The Registrant's Annual Report on Form 10-K for the year ended
September 30, 1995;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by
the registrant document referred to in (a) above;
(c) The description of the Registrant's Class A Common Stock which
is contained in the Registrant's Registration Statement on
Form 8-A which was filed by the Registrant under the
Securities Act of 1933 on April 29, 1994 (File No. 33-78370),
as amended on May 20, 1994, June 17, 1994, July 8, 1994, and
July 15, 1994.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date hereof and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities covered hereby then remaining unsold shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents, except as to any portion of any future Annual
or Quarterly Report to Stockholders which is not deemed to be filed under said
provisions. Any statement made in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that such statement is replaced or modified by a
statement contained in a subsequently dated document incorporated by reference
or contained in this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
John E. Mason, a director of the Registrant, is of counsel to Jeffer,
Mangels, Butler & Marmaro LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Pursuant to the provisions of the Delaware General Corporation Law, the
Restated Certificate of Incorporation of the Company includes a provision which
eliminates the personal liability of its directors to the Company and its
stockholders for monetary damage to the fullest extent permissible under
Delaware law. This provision does not eliminate liability (a) for any breach of
a director's loyalty to the Company or its stockholders; (b) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (c) in connection with payment of any illegal dividend or an
illegal stock repurchase; or (d) for any transaction from which the director
derives an improper personal benefit. Further, this provision has no effect on
claims arising under federal or state securities laws and does not affect the
availability of injunctions and other equitable remedies available to the
Company's stockholders for any violation of a director's fiduciary duty to the
Company or its stockholders.
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The Company's Restated Certificate of Incorporation authorizes the
Company to indemnify its officers, directors and other agents to the fullest
extent permissible by Delaware law, exclusive of rights provided through bylaw
provisions, agreements, vote of stockholders or disinterested directors or
otherwise. The Company's Restated Certificate of Incorporation also authorizes
the Company to indemnify its officers, directors and agents for breach of duty
to the corporation and its stockholders through bylaw provisions, agreements or
both, in excess of the indemnification otherwise permitted under Delaware law,
subject to certain limitations. The Company has entered into indemnification
agreements with all of its directors whereby the Company will indemnify each
such person (an "indemnitee") against certain claims arising out of certain
past, present or future acts, omissions or breaches of duty committed by an
indemnitee while serving in his or her capacity. Such indemnification does not
apply to acts or omissions which are knowingly fraudulent, deliberately
dishonest or arise from willful misconduct. Indemnification will only be
provided to the extent the indemnitee has not already received payments in
respect of such claim from the Company or from an insurance company. Under
certain circumstances, such indemnification (including reimbursement of expenses
incurred) will be allowed for liability arising under the Securities Act of
1933.
The Bylaws of the Company require the Company to provide
indemnification for directors and officers to the fullest extent permitted under
Delaware law and the Company's Restated Certificate of Incorporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The exhibits to the Registration Statement are listed in the Index to
Exhibits which is incorporated herein by this reference.
ITEM 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth 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;
provided, however, that the undertakings set forth in paragraphs (l)(i) and
(l)(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, as amended, that are incorporated by reference
in this Registration Statement.
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(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.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
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 Las Vegas, State of Nevada, on the 10th day of June,
1996.
HEFTEL BROADCASTING CORPORATION
By /s/ John T. Kendrick
-------------------------------
John T. Kendrick,
Senior Vice President and Chief
Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Cecil Heftel, H. Carl Parmer and John T. Kendrick, his or her true and lawful
attorneys-in-fact and agents, each acting alone, with full powers of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and 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
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, each acting alone, full powers and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all said attorneys-in-fact and agents,
each acting alone, or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Registrant in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ Cecil Heftel Chairman of the Board, June 10, 1996
- -------------------------------------------
Cecil Heftel Co-Chief Executive
Officer and Director
/s/ H. Carl Parmer President, Co-Chief June 10, 1996
- -------------------------------------------
H. Carl Parmer Executive Officer and
Director (Principal
Executive Officer)
</TABLE>
[Signatures Continued on Page II-5]
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[Signatures Continued from Page II-4]
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/s/ John T. Kendrick Senior Vice President, June 10, 1996
- ----------------------------------------
John T. Kendrick Chief Financial
Officer and Secretary
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ Richard D. Heftel Director June 10, 1996
- ----------------------------------------
Richard D. Heftel
/s/ John E. Mason Director June 10, 1996
- ----------------------------------------
John E. Mason
/s/ Madison B. Graves II Director June 10, 1996
- ----------------------------------------
Madison B. Graves II
</TABLE>
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[JEFFER, MANGELS, BUTLER & MARMARO LLP LETTERHEAD]
June 6, 1996 55504-0002
Heftel Broadcasting Corporation
6767 West Tropicana Avenue, Suite 102
Las Vegas, Nevada 89103
Re: Heftel Broadcasting Corporation
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement") which Heftel Broadcasting Corporation, a
Delaware corporation (the "Company"), proposes to file with the Securities and
Exchange Commission.
The Registration Statement covers 750,000 shares (the "Shares") of the
Company's common stock to be issued under the Company's Stock Option Plan (the
"Plan").
In rendering the following opinion, we have examined and relied only
upon the documents and certificates of public officials as are specifically
described below. In our examination, we have assumed the genuineness of all
signatures, the authenticity, accuracy and completeness of the documents
submitted to us as originals, and the conformity with the original documents of
all documents submitted to us as copies. Our examination was limited to the
following documents and no others:
1. Certificate of Incorporation of the Company, as amended to date;
2. By-Laws of the Company, as amended to date;
3. Resolutions adopted by the Board of Directors of the Company
approving and adopting the Plan, and authorizing the issuance of the Shares;
<PAGE> 2
Heftel Broadcasting Corporation
June 6, 1996
Page 2
4. Resolutions adopted by the Shareholders of the Company approving the
adoption of the Plan;
5. The Plan;
6. The form of the Company's Common Stock certificate; and
7. The Registration Statement, together with all amendments thereto,
exhibits filed in connection therewith and form of Prospectus contained
therein.
We have not undertaken, nor do we intend to undertake, any independent
investigation beyond such documents and records, or to verify the adequacy or
accuracy of same.
Based upon and subject to the foregoing, it is our opinion that the
Shares to be issued upon exercise pursuant to the Plan have been duly
authorized, and, when so issued upon (i) such exercise against payment therefor
pursuant to the Plan; (ii) the effectiveness of the Registration Statement; and
(iii) compliance with applicable blue sky laws, will constitute legally issued,
fully paid and nonassessable shares of the common stock of the Company.
We express no opinion as to compliance with the securities or "blue
sky" laws of any state in which the Shares are proposed to be offered and sold
or as to the effect, if any, which non-compliance with such laws might have on
the validity of issuance of the Shares.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement; to the filing of this opinion in connection with such
filings of applications by the Company as may be necessary to register, qualify
or establish eligibility for an exemption from registration or qualification of
the Securities under the blue sky laws of any state or other jurisdiction; and
to the reference, in any, to this firm in the Prospectus under the heading
"Legal Opinion". In giving this consent, we do not admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended or the rules and regulations of the Commission
promulgated thereunder.
Other than as provided in the preceding sentence, this opinion (i) is
addressed solely to you, (ii) may not be relied upon by any other party, (iii)
may not be quoted or reproduced or delivered by you to any other person, and
(iv) may not be relied
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Heftel Broadcasting Corporation
June 6, 1996
Page 3
upon for any other purpose whatsoever. Nothing herein shall be deemed to relate
to or constitute an opinion concerning any matters not specifically set forth
above.
The opinions set forth herein are based upon the federal laws of the
United States of America, the laws of the State of California and the corporate
laws of the State of Delaware, all as now in effect. We express no opinion as
to whether the laws of any particular jurisdiction apply, and no opinion to the
extent that the laws of any jurisdiction other than those identified above are
applicable to the subject matter hereof.
The information set forth herein is as of the date of this letter. We
disclaim any undertaking to advise you of changes which may be brought to our
attention after the effective date of the Registration Statement.
Very truly yours,
/s/ Jeffer, Mangels, Butler & Marmaro LLP
-----------------------------------------
JEFFER, MANGELS, BUTLER & MARMARO LLP
RPG:mjl
<PAGE> 1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference of our report dated December 14,
1995 in the Registration Statement (Form S-8) pertaining to the Heftel
Broadcasting Corporation Stock Option Plan, with respect to the consolidated
financial statements included in its Annual Report (Form 10-K) for the year
ended September 30, 1995, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Los Angeles, California
June 10, 1996
