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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 30, 1997
Registration No. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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HEFTEL BROADCASTING CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 99-0113417
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 CRESCENT COURT, SUITE 1777
DALLAS, TEXAS 75201
(214) 855-8882
(Address of principal executive offices, including zip code)
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HEFTEL BROADCASTING CORPORATION
LONG-TERM INCENTIVE PLAN
(Full title of the plans)
JEFFREY T. HINSON
CHIEF FINANCIAL OFFICER
HEFTEL BROADCASTING CORPORATION
100 CRESCENT COURT, SUITE 1777
DALLAS, TEXAS 75201
(214) 855-8882
(Name, address and telephone number of agent for service)
copy to:
MICHAEL D. WORTLEY
MARK EARLY
VINSON & ELKINS L.L.P.
3700 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201-2975
(214) 220-7700
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED PER SHARE* OFFERING PRICE* REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, $.001 par value . 1,498,937 shares $42.8125 $64,173,240 $18,932
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</TABLE>
* Estimated solely for purposes of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933, as
amended, and based on the average of the high and low prices of the
Common Stock reported on the Nasdaq National Market System on
December 26, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed with the Securities and Exchange
Commission (the "Commission") by Heftel Broadcasting Corporation, a Delaware
corporation (the "Company"), and are incorporated herein by reference and
made a part hereof:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 1996, as amended;
(b) The description of the Company's Common Stock contained in the section
entitled "Description of Capital Stock" contained in the Registration
Statement on Form S-1 of the Company, as amended, filed with the
Commission on April 29, 1994 (No. 33-78370) and incorporated by
reference into the Registration Statement on Form 8-A filed by the
Company with the Commission on July 8, 1994;
(c) The Company's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1996 (as amended), and March 31, June 30 (as amended),
and September 30, 1997;
(d) The Company's Current Report on Form 8-K filed with the Commission on
February 26, 1997;
(e) The Company's Current Report on Form 8-K filed with the Commission on
March 3, 1997, as amended;
(f) The Company's Current Report on Form 8-K filed with the Commission
on December 12, 1997; and
(g) The restatement of the Company's earnings per share contained in the
section entitled "Recent Developments" contained in the Registration
Statement on Form S-3 of the Company filed with the Commission on
December 12, 1997 (File No. 333-42171).
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"),
subsequent to the effective date hereof and prior to the filing of a
post-effective amendment hereto that indicates that all securities offered
hereby have been sold or that deregisters all such securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a
part hereof from the date of filing of such documents. Any statement contained
herein or in any document incorporated or deemed to be incorporated by reference
herein 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 which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed to constitute a
part of this Registration Statement, except as so modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers
a corporation to 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 by reason of the fact that he is or was serving at the request of
the corporation or enterprise. Section 145 also allows a corporation to
purchase and maintain insurance on behalf of any such person.
Pursuant to provisions of the DGCL, the Company's Charter 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 duty of 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)
2
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for any transaction from which the director derives an improper personal
benefit. Further, this provision has no effect on claims arising under
federal or sate securities laws and does not affect the availability to the
Company's stockholders for any violation of a director's fiduciary duty to
the Company or its stockholders.
The Company's Charter authorizes the Company to indemnify its officers,
directors and other agents to the fullest extent permitted by Delaware law,
exclusive of rights provided through bylaw provisions, agreements, vote of
stockholders or disinterested directors or otherwise. The Charter 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 and
executive officers 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 employment 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 require the Company to provide indemnification for directors
and officers to the fullest extent permitted under Delaware law and the
Company's Charter.
An insurance policy obtained by the registrant provides for
indemnification of officers and directors of Heftel and certain persons
against liabilities and expenses incurred by any of them in certain stated
proceedings and under certain stated conditions.
The DGCL was amended in 1986 to provide that Delaware corporations may
amend their certificates of incorporation to relieve directors of monetary
liability for breach of their fiduciary duty, except under certain
circumstances, including breach of the director's duty of loyalty, acts or
omissions not in good faith or involving intentional misconduct and a knowing
violation of law or any transaction from which the director derived improper
personal benefit. Article 10 of the Company's Charter provides that, to the
fullest extent permitted by the Delaware Act, the Company's directors shall
not be liable to the Company or its stockholders for monetary damages for
breach of their fiduciary duties as a director.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Unless otherwise indicated below as being incorporated by reference to
another filing of the Company with the Commission, each of the following
exhibits is filed herewith:
4.1*** -- Heftel Broadcasting Corporation Long-Term Incentive Plan
4.3** -- Specimen Share Certificate
5.1* -- Opinion of Vinson & Elkins LLP
23.1* -- Consent of KPMG Peat Marwick LLP
23.2* -- Consent of Ernst & Young LLP
23.3* -- Consent of Vinson & Elkins LLP (included in its opinion filed
as Exhibit 5.1 hereto)
24.1* -- Power of Attorney (see signature pages hereto)
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* Filed Herewith
** Filed with the Company's Registration Statement No. 33-78370 and
incorporated herein by reference
*** Filed as Appendix A to the Company's Definitive Proxy Statement filed
with the Commission on April 24, 1997 (Commission File No. 000-24516) and
incorporated herein by reference.
3
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ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement. 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) (Section
230.424(b) of this chapter) 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
registration statement is on Form S-3 (Section 239.13 of this chapter) or
Form S-8 (Section 239.16b of this chapter), and 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 that are incorporated
by reference in the registration statement.
(2) That, for the purposes 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 Company's annual report pursuant to
section 13(a) or section 15(d) of the Exchange Act (and, where applicable,
each filing on 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company 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 Dallas, Texas on the 30th day of
December, 1997.
HEFTEL BROADCASTING CORPORATION
By: /s/ McHenry T. Tichenor, Jr.
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McHenry T. Tichenor, Jr., Chairman
and Chief Executive Officer
We, the undersigned officers and directors of Heftel Broadcasting
Corporation hereby severally constitute McHenry T. Tichenor, Jr. and Jeffrey
T. Hinson, and each of them singly, our true and lawful attorneys with full
power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement filed herewith and
any and all amendments to said Registration Statement, and generally to do
all such things in our names and in our capacities as officers and directors
to enable Heftel Broadcasting Corporation to comply with the provisions of
the Securities Act of 1933, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they
may be signed by our mid attorneys, or any of them, to said Registration
Statement and any all amendments thereto.
Pursuant to 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 indicated.
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SIGNATURE CAPACITY DATE
<S> <C> <C>
/s/ McHenry T. Tichenor, Jr. Chairman and Chief Executive December 30, 1997
- ---------------------------- Officer
McHenry T. Tichenor, Jr. (Principal Executive Officer)
/s/ Jeffrey T. Hinson Chief Financial Officer December 30, 1997
- ---------------------------- (Principal Financial Officer)
Jeffrey T. Hinson
/s/ David Gerow Vice President and Controller December 30, 1997
- ---------------------------- (Controller and Principal
David Gerow Accounting Officer)
/s/ Ernesto Cruz Director December 30, 1997
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Ernesto Cruz
/s/ Robert W. Hughes Director December 30, 1997
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Robert W. Hughes
/s/ James M. Raines Director December 30, 1997
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James M. Raines
Director December __, 1997
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McHenry T. Tichenor
</TABLE>
<PAGE>
EXHIBIT INDEX
4.1*** -- Heftel Broadcasting Corporation Long-Term Incentive Plan
4.3** -- Specimen Share Certificate
5.1* -- Opinion of Vinson & Elkins LLP
23.1* -- Consent of KPMG Peat Marwick LLP
23.2* -- Consent of Ernst & Young LLP
23.3* -- Consent of Vinson & Elkins LLP (included in its opinion filed
as Exhibit 5.1 hereto)
24.1* -- Power of Attorney (see signature pages hereto)
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* Filed Herewith
** Filed with the Company's Registration Statement No. 33-78370 and
incorporated herein by reference
*** Filed as Appendix A to the Company's Definitive Proxy Statement filed with
the Commission on April 24, 1997 (Commission File No. 000-24516) and
incorporated herein by reference.
<PAGE>
[Letterhead of Vinson & Elkins L.L.P.]
December 30, 1997
Heftel Broadcasting Corporation
100 Crescent Court, Suite 1777
Dallas, Texas 75201
Ladies and Gentlemen:
We have acted as counsel for Heftel Broadcasting Corporation, a Delaware
corporation (the "COMPANY"), in connection with the Company's registration
under the Securities Act of 1933, as amended (the "ACT"), of 1,498,937 shares
of common stock, par value $0.001 per share (the "SHARES"), of the Company
which may be offered from time to time under the Heftel Broadcasting
Corporation Long-Term Incentive Plan (the "PLAN") under the Company's
Registration Statement on Form S-8 (the "REGISTRATION STATEMENT") filed with
the Securities and Exchange Commission (the "COMMISSION") on December 30,
1997.
In reaching the opinions set forth herein, we have examined and are
familiar with originals or copies, certified or otherwise identified to our
satisfaction, of such documents and records of the Company and such statutes,
regulations and other instruments as we deemed necessary or advisable for
purposes of this opinion, including (i) the Registration Statement, (ii) the
Second Amended and Restated Certificate of Incorporation of the Company, as
filed with the Secretary of State of the State of Delaware, (iii) the Bylaws of
the Company, (iv) certain minutes of meetings of, and resolutions adopted by,
the Board of Directors of the Company, and (v) the Plan.
We have assumed that (i) all information contained in all documents we
reviewed is true, correct and complete, (ii) all signatures on all documents we
reviewed are genuine, (iii) all documents submitted to us as originals are true
and complete, (iv) all documents submitted to us as copies are true and complete
copies of the originals thereof, and (v) all persons executing and delivering
the documents we examined were competent to execute and deliver such documents.
In addition, we have assumed that, upon purchase of the Shares pursuant to the
Plan, (i) the Shares will be issued in accordance with the Plan, (ii) the full
consideration for each Share shall be paid to the Company and in no event will
be less than the par value for each Share, and (iii) certificates evidencing the
Shares will be properly executed and delivered by the Company in accordance with
the Delaware General Corporation Law.
<PAGE>
Heftel Broadcasting Corporation
December 30, 1997
Page 2
Based on the foregoing, and having due regard for the legal considerations
we deem relevant, we are of the opinion that the Shares, when offered and issued
by the Company upon purchase thereof pursuant to the terms of the Plan, will be
legally issued, fully paid and non-assessable.
This opinion is limited in all respects to the laws of the State of Texas,
the Delaware General Corporation Law and the federal laws of the United States
of America. You should be aware that we are not admitted to the practice of law
in the State of Delaware.
This opinion letter may be filed as an exhibit to the Registration
Statement. In giving this consent, we do not thereby admit that we come within
the category of persons whose consent is required under Section 7 of the Act or
the rules and regulations of the Commission promulgated thereunder.
Very truly yours,
/s/ VINSON & ELKINS L.L.P.
<PAGE>
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Heftel Broadcasting Corporation:
We consent to the incorporation by reference herein of our report.
/s/ KPMG Peat Marwick LLP
Dallas, Texas
December 24, 1997
<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 Heftel Broadcasting Corporation Long-Term
Incentive Plan of our report dated November 7, 1996, with respect to the
consolidated financial statements of Heftel Broadcasting Corporation included
in its Annual Report (Form 10-K) for the year ended September 30, 1996, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Los Angeles, California
December 29, 1997
