<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 30, 1997
Registration No. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
UNITED STATES
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 (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)
____________________
AMENDED AND RESTATED 1997 EMPLOYEE
STOCK PURCHASE 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
<TABLE>
<CAPTION>
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
- ------------------ -------------- ---------------- ----------------- ------------------
<S> <C> <C> <C> <C>
Common Stock, 800,000 shares $42.8125 $34,250,000 $10,104
$.001 par value
- ------------------ -------------- ---------------- ----------------- ------------------
</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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<PAGE>
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
2
<PAGE>
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 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 Amended and Restated 1997 Employee
Stock Purchase 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)
________________
* Filed Herewith
** Filed with the Company's Registration Statement No. 33-78370 and
incorporated herein by reference
3
<PAGE>
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
<PAGE>
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.
--------------------------------------
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.
SIGNATURE CAPACITY DATE
----------- ---------- ------
/s/ McHenry T. Tichenor, Jr.
- ---------------------------- Chairman and Chief Executive December 30, 1997
McHenry T. Tichenor, Jr. Officer
(Principal Executive Officer)
/s/ Jeffrey T. Hinson
- ---------------------------- Chief Financial Officer December 30, 1997
Jeffrey T. Hinson (Principal Financial Officer)
/s/ David Gerow
- ---------------------------- Vice President and Controller December 30, 1997
David Gerow (Controller and Principal
Accounting Officer)
/s/ Ernesto Cruz
- ---------------------------- Director December 30, 1997
Ernesto Cruz
/s/ Robert W. Hughes
- ---------------------------- Director December 30, 1997
Robert W. Hughes
/s/ James M. Raines
- ---------------------------- Director December 30, 1997
James M. Raines
- ---------------------------- Director December __, 1997
McHenry T. Tichenor
<PAGE>
EXHIBIT INDEX
4.1* -- Heftel Broadcasting Corporation Amended and Restated 1997 Employee
Stock Purchase 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)
___________________
* Filed Herewith
** Filed with the Company's Registration Statement No. 33-78370 and
incorporated herein by reference
<PAGE>
HEFTEL BROADCASTING CORPORATION
AMENDED AND RESTATED 1997 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE. The purpose of the HEFTEL BROADCASTING CORPORATION AMENDED
AND RESTATED 1997 EMPLOYEE STOCK PURCHASE PLAN (the "Plan") is to furnish to
eligible employees an incentive to advance the best interests of Heftel
Broadcasting Corporation (the "Company") by providing a method whereby they
voluntarily may purchase stock of the Company at a favorable price and upon
favorable terms.
2. ADMINISTRATION OF THE PLAN. The Plan shall be administered by a
committee (the "Committee") of, and appointed by, the Board of Directors of the
Company (the "Board"), and the Committee shall be constituted so as to permit
the Plan to comply with Rule 16b-3, as currently in effect or as hereinafter
modified or amended ("Rule 16b-3"), promulgated under the Securities Exchange
Act of 1934, as amended (the "1934 Act"). Subject to the provisions of the Plan,
the Committee shall interpret the Plan and all options granted under the Plan,
shall make such rules as it deems necessary for the proper administration of the
Plan, shall make all other determinations necessary or advisable for the
administration of the Plan and shall correct any defect or supply any omission
or reconcile any inconsistency in the Plan or in any option granted under the
Plan in the manner and to the extent that the Committee deems desirable to carry
the Plan or any option into effect. The Committee shall, in its sole discretion
exercised in good faith, make such decisions or determinations and take such
actions, and all such decisions, determinations and actions taken or made by the
Committee pursuant to this and the other paragraphs of the Plan shall be
conclusive on all parties. The Committee shall not be liable for any decision,
determination or action taken in good faith in connection with the
administration of the Plan.
3. PARTICIPATING COMPANIES. Each present and future parent or subsidiary
corporation of the Company (within the meaning of Sections 424(e) and (f) of the
Internal Revenue Code of 1986, as amended (the "Code")) that is eligible by law
to participate in the Plan shall be a "Participating Company" during the period
that such corporation is such a parent or subsidiary corporation; provided,
however, that the Committee may at any time and from time to time, in its sole
discretion, terminate a Participating Company's Plan participation. Any
Participating Company may, by appropriate action of its Board of Directors,
terminate its participation in the Plan. Transfer of employment among the
Company and Participating Companies (and among any other parent or subsidiary
corporation of the Company) shall not be considered a termination of employment
hereunder.
4. ELIGIBILITY. All employees of the Company and the Participating
Companies who have been employed by the Company or any Participating Company for
at least 12 months (including any authorized leave of absence meeting the
requirements of Treasury Regulation Section 1.421-7(h)(2)) as of the applicable
date of grant (defined below) and who are customarily employed at
<PAGE>
least 20 hours per week and at least 5 months per year shall be eligible to
participate in the Plan; provided, however, that no option shall be granted
to an employee if such employee, immediately after the option is granted,
owns stock possessing five percent or more of the total combined voting power
or value of all classes of stock of the Company or of its parent or
subsidiary corporation (within the meaning of Sections 423(b)(3) and 424(d)
of the Code).
5. STOCK SUBJECT TO THE PLAN. Subject to the provisions of paragraph 12
(relating to adjustment upon changes in stock), the aggregate number of shares
which may be sold pursuant to options granted under the Plan shall not exceed
400,000 shares of the authorized $.001 par value common stock of the Company
("Stock"), which shares may be unissued shares or reacquired shares or shares
bought on the market for purposes of the Plan. Should any option granted under
the Plan expire or terminate prior to its exercise in full, the shares
theretofore subject to such option may again be subject to an option granted
under the Plan. Any shares which are not subject to outstanding options upon the
termination of the Plan shall cease to be subject to the Plan.
6. GRANT OF OPTIONS.
(a) GENERAL STATEMENT; "DATE OF GRANT"; "OPTION PERIOD"; "DATE OF
EXERCISE". Following the effective date of the Plan and continuing while the
Plan remains in force, the Company shall offer options under the Plan to all
eligible employees to purchase shares of Stock. Except as otherwise determined
by the Committee, these options shall be granted on November 1, 1997 and,
thereafter, on the first day of each January and July (each of which dates is
herein referred to as a "date of grant"). The term of each option granted on
November 1, 1997 shall be for two months, and the term of each option granted
thereafter shall be for six months (each of such two-month and six-month periods
is herein referred to as an "option period"), which shall begin on a date of
grant (the last day of each option period is herein referred to as a "date of
exercise"). The number of shares subject to each option shall be the quotient of
the payroll deductions withheld on behalf of each participant in accordance with
subparagraph 6(b) and the payments made by such participant pursuant to
subparagraph 6(f) extended for the option period divided by the "option price"
(defined in subparagraph 7(b)) of the Stock, provided, however, that the maximum
number of shares that may be subject to any option may not exceed 625 (subject
to adjustment as provided in paragraph 12).
(b) ELECTION TO PARTICIPATE; PAYROLL DEDUCTION AUTHORIZATION. Except
as provided in subparagraph 6(f), an eligible employee may participate in the
Plan only by means of payroll deduction. Except as provided in subparagraph
6(g), each eligible employee who elects to participate in the Plan shall deliver
to the Company, within the time period prescribed by the Company, a written
payroll deduction authorization in a form prepared by the Company whereby he
gives notice of his election to participate in the Plan as of the next following
date of grant, and whereby he designates an integral percentage or specific
amount of his "eligible compensation" (as defined in subparagraph 6(d)) to be
deducted from his compensation for each pay period and paid into the Plan for
his account. The designated percentage or specific amount may not be expected to
result in the payment into the Plan during any payroll period of an amount less
than five dollars. The designated percentage or specific amount may not exceed
either of the following: (i) 15% of the
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<PAGE>
amount of eligible compensation for the option period in which the deduction
is made; or (ii) an amount which will result in noncompliance with the
$25,000 limitation stated in subparagraph 6(e).
(c) CHANGES IN PAYROLL AUTHORIZATION. Except as provided in
subparagraph 8(a), the payroll deduction authorization referred to in
subparagraph 6(b) may not be changed during the option period.
(d) "ELIGIBLE COMPENSATION" DEFINED. The term "eligible
compensation" means the gross (before taxes are withheld) total of all wages,
salaries, commissions, and bonuses received during the option period, and
provided that such term shall include elective contributions made on an
employee's behalf by the Company or a Participating Company that are not
includable in income under Section 125 or Section 402(e)(3) of the Code.
Notwithstanding the foregoing, "eligible compensation" shall not include (i)
employer contributions to or payments from any deferred compensation program,
whether such program is qualified under Section 401(a) of the Code or
nonqualified, (ii) amounts realized from the receipt or exercise of a stock
option that is not an incentive stock option within the meaning of Section 422
of the Code, (iii) amounts realized at the time property described in Section 83
of the Code is freely transferable or no longer subject to a substantial risk of
forfeiture, (iv) amounts realized as a result of an election described in
Section 83(b) of the Code, and (v) any amount realized as a result of a
disqualifying disposition within the meaning of Section 421(a) of the Code.
(e) $25,000 LIMITATION. No employee shall be granted an option under
the Plan to the extent the grant of an option under the Plan would permit his
rights to purchase Stock under the Plan and under all other employee stock
purchase plans of the Company and its parent and subsidiary corporations (as
such terms are defined in Section 424(e) and (f) of the Code) to accrue at a
rate which exceeds $25,000 of fair market value of Stock (determined at the time
the option is granted) for each calendar year in which any such option granted
to such employee is outstanding at any time (within the meaning of Section
423(b)(8) of the Code).
(f) LEAVES OF ABSENCE. During a paid leave of absence approved by the
Company and meeting the requirements of Treasury Regulation Section
1.421-7(h)(2), a participant's elected payroll deductions shall continue. If a
participant takes an unpaid leave of absence that is approved by the Company or
a Participating Company and meets the requirements of Treasury Regulation
Section 1.421-7(h)(2), then such participant may continue participation in the
Plan by cash payments to the Company on his normal pay days equal to the
reduction in his payroll deductions caused by his leave. If a participant on
such leave fails to make such payments, or if a participant takes a leave of
absence that is not described in the preceding provisions of this subparagraph
6(f), then he shall be considered to have withdrawn from the Plan pursuant to
the provisions of paragraph 8 hereof.
(g) CONTINUING ELECTION. A participant (i) who has elected to
participate in the Plan pursuant to subparagraph 6(b) as of a date of grant and
(ii) who takes no action to change or revoke such election as of the next
following date of grant and/or as of any subsequent date of grant prior to any
such respective date of grant shall be deemed to have made the same election,
including
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<PAGE>
the same attendant payroll deduction authorization, for such next following
and/or subsequent date(s) of grant as was in effect for the date of grant for
which he made such election to participate.
7. EXERCISE OF OPTIONS.
(a) GENERAL STATEMENT. Each eligible employee who is a participant in
the Plan automatically and without any act on his part shall be deemed to have
exercised his option on each date of exercise. To the extent that the cash
balance then in his account under the Plan is insufficient to purchase at the
"option price" (as defined in subparagraph 7(b)) a whole share of Stock or if
the exercise of the option would result in the acquisition of a fractional
share, the eligible employee's account will be credited with the ownership of a
fractional share. Upon the issuance of a stock certificate to an eligible
employee pursuant to subparagraph 7(c) or the termination of an eligible
employee's employment with the Company, any fractional shares shall be treated
as provided in subparagraph 7(d).
(b) "OPTION PRICE" DEFINED. The option price per share of Stock to be
paid by each optionee on each exercise of his option shall be a sum equal to 85%
of the fair market value of the Stock on the date of exercise or on the date of
grant, whichever amount is lesser. For all purposes under the Plan, the fair
market value of a share of Stock on a particular date shall be equal to the
closing sales price of the Stock as reported on the stock exchange composite
tape on that date; or, if no prices are reported on that date, on the last
preceding date on which such prices of the Stock are so reported. If the Stock
is traded over the counter at the time a determination of its fair market value
is required to be made hereunder, its fair market value shall be deemed to be
equal to the average between the reported high and low or closing bid and asked
prices of Stock on the most recent date on which Stock was publicly traded. In
the event Stock is not publicly traded at the time a determination of its value
is required to be made hereunder, the determination of its fair market value
shall be made by the Committee in such manner as it deems appropriate.
(c) DELIVERY OF STOCK CERTIFICATES. As soon as practicable after each
date of exercise, the Company shall issue one or more certificates representing
the total number of whole shares of Stock respecting exercised options in the
aggregate of all of the eligible employees hereunder. Any such certificate shall
be held by the Company, and, if the Company issues a certificate representing
the shares of more than one eligible employee, the Company shall keep accurate
records of the beneficial interests of each eligible employee in each such
certificate by means of a Company stock account. Each eligible employee shall be
provided with such periodic statements as may be directed by the Committee
reflecting all activity in any such Company stock account. In the event the
Company is required to obtain from any commission or agency authority to issue
any such certificate, the Company shall seek to obtain such authority. Inability
of the Company to obtain from any such commission or agency authority which
counsel for the Company deems necessary for the lawful issuance of any such
certificate shall relieve the Company from liability to any participant in the
Plan except to return to him the amount of the balance in his account. After a
period of at least two years from the date of grant and a period of at least one
year from the date of exercise of an option pursuant to which shares of Stock
were issued has past, an employee may, on the form prescribed by the Committee,
request the Company to deliver to such employee as soon as practicable, a
certificate issued in his name representing the aggregate whole
-4-
<PAGE>
number of shares of Stock issued in connection with such option and then held
by the Company on his behalf under the Plan. Further, upon the termination of
an employee's employment with the Company and its parent or subsidiary
corporations for any reason whatsoever, the Company shall deliver to such
employee a certificate issued in his name representing the aggregate whole
number of shares of Stock then held by the Company on his behalf under the
Plan. While shares of Stock are held by the Company, such shares may not be
sold, assigned, pledged, exchanged, hypothecated or otherwise transferred,
encumbered or disposed of by the employee who has purchased such shares;
provided, however, that such restriction shall not apply to the transfer of
such shares of Stock pursuant to (i) a plan of reorganization, merger,
recapitalization or other extraordinary corporate transaction or share
exchange of the Company, but the stock, securities or other property received
in exchange therefor shall be held by the Company pursuant to the provisions
hereof or (ii) a divorce. The Committee may cause the Stock certificates
issued in connection with the exercise of options under the Plan to bear such
legend or legends, and the Committee may take such other actions, as it deems
appropriate in order to reflect the provisions of this subparagraph 7(c) and
to assure compliance with applicable securities laws. Neither the Company nor
the Committee shall have any liability with respect to a delay in the
delivery of a Stock certificate pursuant to this subparagraph 7(c).
(d) NO FRACTIONAL SHARES. No stock certificates evidencing
fractional shares of Stock shall be issued to eligible employees under the Plan,
and such fractional share interests shall not entitle the owner thereof to any
rights of a stockholder of the Company. In lieu of any such fractional shares,
each eligible employee whose account reflects any factional share interest, upon
the issuance of certificate as provided in subparagraph 7(c), shall be paid an
amount in cash (without interest), rounded to the nearest cent, determined by
multiplying (i) the fair market value of the Stock, determined as the average
between the reported high and low or closing bid and asked prices of Stock on
the most recent trading day prior to the date on which the certificate is issued
by (ii) the fractional interest to which such eligible employee would otherwise
be entitled. In the event Stock is not publicly traded at the time a
determination of its fair market value is required to be made hereunder, the
determination of its fair market value shall be made by the Committee in such
manner as it deems appropriate.
8. WITHDRAWAL FROM THE PLAN
(a) GENERAL STATEMENT. Any participant may withdraw in whole from the
Plan at any time prior to 30 days before the exercise date relating to a
particular option period. Partial withdrawals shall not be permitted. A
participant who wishes to withdraw from the Plan must timely deliver to the
Company a notice of withdrawal in a form prepared by the Company. The Company,
promptly following the time when the notice of withdrawal is delivered, shall
refund to the participant the amount of the cash balance in his account under
the Plan; and thereupon, automatically and without any further act on his part,
his payroll deduction authorization and his interest in unexercised options
under the Plan shall terminate.
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(b) ELIGIBILITY FOLLOWING WITHDRAWAL. A participant who withdraws
from the Plan shall be eligible to participate again in the Plan upon expiration
of the option period during which he withdrew (provided that he is otherwise
eligible to participate in the Plan at such time).
9. TERMINATION OF EMPLOYMENT. If the employment of a participant
terminates for any reason whatsoever, his participation in the Plan
automatically and without any act on his part shall terminate as of the date of
the termination of his employment. The Company shall refund to him the amount of
the cash balance in his account under the Plan, and thereupon his interest in
unexercised options under the Plan shall terminate. In addition, as provided in
subparagraph 7(c), the Company shall deliver to the employee a certificate
issued in his name representing the aggregate whole number of shares of Stock
then held by the Company on his behalf under the Plan.
10. RESTRICTION UPON ASSIGNMENT OF OPTION. An option granted under the
Plan shall not be transferable otherwise than by will or the laws of descent and
distribution. Each option shall be exercisable, during his lifetime, only by the
employee to whom granted. The Company shall not recognize and shall be under no
duty to recognize any assignment or purported assignment by an employee of his
option or of any rights under his option.
11. NO RIGHTS OF STOCKHOLDER UNTIL CERTIFICATE ISSUES. With respect to
shares of Stock subject to an option, an optionee shall not be deemed to be a
stockholder, and he shall not have any of the rights or privileges of a
stockholder. An optionee shall have the rights and privileges of a stockholder
upon, but not until, a certificate for shares has been issued on his behalf
following exercise of his option. With respect to an optionee's Stock held by
the Company pursuant to subparagraph 7(c), the Company shall, as soon as
practicable, pay the optionee any cash dividends attributable thereto and
facilitate the optionee's voting rights (other than with respect to any
fractional shares) attributable thereto.
12. CHANGES IN STOCK; ADJUSTMENTS. Whenever any change is made in the
Stock, by reason of a stock dividend or by reason of subdivision, stock split,
reverse stock split, recapitalization, reorganization, combinations,
reclassification of shares, or other similar change, appropriate action will be
taken by the Committee to adjust accordingly the number of shares subject to the
Plan, the maximum number of shares that may be subject to any option, and the
number and option price of shares subject to options outstanding under the Plan.
If the Company shall not be the surviving corporation in any merger or
consolidation (or survives only as a subsidiary of another entity), or if the
Company is to be dissolved or liquidated, then unless a surviving corporation
assumes or substitutes new options (within the meaning of Section 424(a) of the
Code) for all options then outstanding, (i) the date of exercise for all options
then outstanding shall be accelerated to a date fixed by the Committee prior to
the effective date of such merger or consolidation or such dissolution or
liquidation and (ii) upon such effective date any unexercised options shall
expire.
13. USE OF FUNDS; NO INTEREST PAID. All funds received or held by the
Company under the Plan shall be included in the general funds of the Company
free of any trust or other restriction,
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<PAGE>
and may be used for any corporate purpose. No interest shall be paid to any
participant or credited to his account under the Plan.
14. TERM OF THE PLAN. The Plan shall be effective as of August 1, 1997.
The Plan was originally approved by the stockholders of the Company on May 21,
1997 and the amendments contained herein do not require further approval of the
stockholders of the Company. Except with respect to options then outstanding,
if not sooner terminated under the provisions of paragraph 15, the Plan shall
terminate upon and no further options shall be granted after July 31, 2007.
15. AMENDMENT OR TERMINATION THE PLAN. The Board in its discretion may
terminate the Plan at any time with respect to any shares for which options have
not theretofore been granted. The Board shall have the right to alter or amend
the Plan or any part thereof from time to time; provided, that no change in any
option theretofore granted may be made which would impair the rights of the
optionee without the consent of such optionee; and provided, further, that the
Board may not make any alteration or amendment which would materially increase
the benefits accruing to participants under the Plan, increase the aggregate
number of shares which may be issued pursuant to the provisions of the Plan
(other than as a result of the anti-dilution provisions of the Plan), change the
class of individuals eligible to receive options under the Plan, extend the term
of the Plan, cause options issued under the Plan to fail to meet the
requirements of employee stock purchase options as defined in Section 423 of the
Code, or otherwise modify the requirements as to eligibility for participation
in the Plan without the approval of the stockholders of the Company.
16. SECURITIES LAWS. The Company shall not be obligated to issue any Stock
pursuant to any option granted under the Plan at any time when the shares
covered by such option have not been registered under the Securities Act of
1933, as amended, and such other state and federal laws, rules or regulations as
the Company or the Committee deems applicable and, in the opinion of legal
counsel for the Company, there is no exemption from the registration
requirements of such laws, rules or regulations available for the issuance and
sale of such shares. Further, all Stock acquired pursuant to the Plan shall be
subject to the Company's policy or policies, if any, concerning compliance with
securities laws and regulations, as the same may be amended from time to time.
17. NO RESTRICTION ON CORPORATE ACTION. Nothing contained in the Plan
shall be construed to prevent the Company or any subsidiary from taking any
corporate action which is deemed by the Company or such subsidiary to be
appropriate or in its best interest, whether or not such action would have an
adverse effect on the Plan or any award made under the Plan. No employee,
beneficiary or other person shall have any claim against the Company or any
subsidiary as a result of any such action.
EXECUTED this 31st day of October, 1997.
HEFTEL BROADCASTING CORPORATION
By: /s/ McHenry T. Tichenor, Jr.
-------------------------------------
McHenry T. Tichenor, Jr.
President and Chief Executive Officer
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<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 800,000 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 Amended and
Restated 1997 Employee Stock Purchase 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 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 Amended and Restated 1997 Employee Stock
Purchase Plan of Heftel Broadcasting Corporation 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
