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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 19, 1999
REGISTRATION NO. 333-85499
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SPANISH BROADCASTING SYSTEM, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 4832 13-3827791
(STATE OR OTHER JURISDICTION (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
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RAUL ALARCON, JR.
3191 CORAL WAY 3191 CORAL WAY
MIAMI, FLORIDA 33145 MIAMI, FLORIDA 33145
(305) 441-6901 (305) 441-6901
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL NUMBER,
EXECUTIVE OFFICES) INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPIES TO:
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JASON L. SHRINSKY, ESQ. BONNIE A. BARSAMIAN, ESQ.
WILLIAM E. WALLACE, JR., ESQ. G. DAVID BRINTON, ESQ.
KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP ROGERS & WELLS LLP
425 PARK AVENUE 200 PARK AVENUE
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10166
(212) 836-8000 (212) 878-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is an itemized statement of estimated expenses in connection
with the issuance and sale of the securities being registered by this
registration statement.
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Securities and Exchange Commission registration fee......... $83,400.00
Printing.................................................... *
Accounting fees and expenses................................ *
Legal fees and expenses..................................... *
Blue sky fees and expenses.................................. *
Miscellaneous............................................... *
Total............................................. $ *
==========
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* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") provides that
a corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or complete action, suit or
proceeding whether civil, criminal, administrative or investigative (other than
an action by or in the right of the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding 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
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Section 145 further
provides that a corporation similarly may indemnify any such person serving in
any such capacity 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
corporation to procure a judgment in its favor, against expenses actually and
reasonably incurred in connection with the defense or settlement of such action
or suit 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 corporation and except that no
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 corporation
unless and only to the extent that the Delaware Court of Chancery or such other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation 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 DGCL (relating to
unlawful payment of dividends and
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unlawful stock purchase and redemption) or (iv) for any transaction from which
the director derived an improper personal benefit.
Our certificate of incorporation provides that our directors shall not be
liable to SBS or its stockholders for monetary damages for breach of fiduciary
duty as a director except to the extent that exculpation from liabilities is not
permitted under the DGCL as in effect at the time the liability is determined.
Our certificate further provides that we shall indemnify our directors and
officers to the fullest extent permitted by the DGCL.
The directors and officers of SBS are covered under directors' and
officers' liability insurance policies maintained by SBS.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
On March 25, 1996 we sold 37,500 shares of our redeemable series A
preferred stock and $35.0 million of our 12 1/4% senior secured notes due 2001,
in a transaction not registered under the Securities Act in reliance upon the
exemption provided in Section 4(2) of the Securities Act. We also issued to the
holders of the preferred stock and notes warrants to purchase, in the aggregate,
6% of our common stock on a fully diluted basis which are exercisable no later
than June 29, 1998. We received gross proceeds of $72.5 million from this
offering. The securities were sold to certain qualified institutional buyers
through CIBC Wood Gundy Securities Corp., as exclusive placement agent.
In June 1996, September 1996 and December 1996, we elected to satisfy
interest due on the notes through the issuance of $3,384,843 additional notes
issued at face value. In June 1996, September 1996 and December 1996, we elected
to satisfy the dividends due of $3,773,000 through the issuance of 3,773
additional shares of preferred stock. On March 27, 1997, the notes, the
preferred stock and the warrants were repurchased or redeemed by SBS.
In lieu of paying dividends on the senior preferred stock, we paid
dividends in the form of shares of senior preferred stock on each of September
15, 1997, March 15, 1998 and September 15, 1998 of 11,706, 13,303 and 14,251,
respectively.
On March 27, 1997, we sold 175,000 units comprised of 175,000 shares of our
series A senior exchangeable preferred stock, liquidation preference $1,000 per
share, and warrants to purchase 74,900 shares of our Class B Common Stock, par
value $.01 per share and (b) $75.0 million aggregate principal amount of our 11%
notes due 2004 in transactions not registered under the Securities Act, in
reliance upon the exemption provided in Section 4(2) of the Act. We received
gross proceeds of $250,000,000 from these offerings. The securities were sold to
certain qualified institutional buyers through CIBC Wood Gundy Securities Corp.,
as exclusive placement agent.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) EXHIBITS
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1.1 Underwriting Agreement with Lehman Brothers Inc., Merrill
Lynch & Co. and CIBC World Markets Corp., dated ,
, 1999.*
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* To be filed by amendment.
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1.2 Financial Advisory Agreement dated March 4, 1997 between the
Company and CIBC Wood Gundy Securities Corp., as financial
advisor (incorporated by reference to the Company's Current
Report on Form 8-K dated March 27, 1997 (Commission File No.
33-82114)(the "Current Report")).
3.1 Second Amended and Restated Certificate of Incorporation of
the Company, dated , 1999.*
3.2 By-Laws of the Company (incorporated by reference to Exhibit
3.1.2 of the Company's Registration Statement on Form S-4
(Commission File No. 33-82114) (the "1994 Registration
Statement")).
3.3 Certificate of Designation of Senior Exchangeable Preferred
Stock, Series A, filed March 27, 1997 (incorporated by
reference to the Current Report).
4.1 Article V of the Second Amended and Restated Certificate of
Incorporation of the Company, dated , 1999.*
4.2 Indenture dated June 29, 1994 among the Company, IBJ
Schroder Bank & Trust Company, as Trustee, the Guarantors
named therein and the Purchasers named therein (incorporated
by reference to Exhibit 4.1 of the 1994 Registration
Statement).
4.3 Second Supplemental Indenture dated as of March 21, 1997 to
Indenture dated as of June 29, 1994 among the Company, the
Guarantors named therein and IBJ Schroder Bank & Trust
Company, as Trustee (incorporated by reference to the
Current Report).
4.4 Indenture dated as of March 15, 1997, among the Company, the
Guarantors named therein, IBJ Schroder Bank & Trust Company,
as Trustee, and CIBC Wood Gundy Securities Corp., as Initial
Purchaser (incorporated by reference to the Current Report).
4.5 Exchange Debenture Indenture dated as of March 15, 1997,
among the Company, the Guarantors named therein, U.S. Trust
Company of New York, as Trustee, and CIBC Wood Gundy
Securities Corp., as Initial Purchaser (incorporated by
reference to the Current Report).
4.6 Indenture with respect to % Senior Subordinated Notes
due 2009 with , as Trustee, dated
.*
5.1 Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP
regarding legality.*
10.1 Securities Purchase Agreement dated as of March 24, 1997
among the Company, the Guarantors named therein and CIBC
Wood Gundy Securities Corp., as Initial Purchaser
(incorporated by reference to the Current Report).
10.2 Unit Agreement dated as of March 15, 1997 among the Company,
the Guarantors and IBJ Schroder Bank & Trust Company, as
Trustee (incorporated by reference to the Current Report).
10.3 Warrant Agreement dated as of March 15, 1997 among the
Company and IBJ Schroder Bank & Trust Company, as Warrant
Agent (incorporated by reference to the Current Report).
10.4 Common Stock Registration Rights and Stockholders Agreement
dated as of March 15, 1997 among the Company, certain
Management Stockholders named therein and CIBC Wood Gundy
Securities Corp., as Initial Purchaser (incorporated by
reference to the Current Report).
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* To be filed by amendment.
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10.5 Notes Registration Rights Agreement dated as of March 15,
1997 among the Company, the Guarantors named therein and
CIBC Wood Gundy Securities Corp., as Initial Purchaser
(incorporated by reference to the Current Report).
10.6 Preferred Stock Registration Rights Agreement dated as of
March 15, 1997 among the Company, the Guarantors named
therein and CIBC Wood Gundy Securities Corp., as Initial
Purchaser (incorporated by reference to the Current Report).
10.7 National Radio Sales Representation Agreement dated as of
February 3, 1997 between Caballero Spanish Media, L.L.C. and
the Company (incorporated by reference to the Current
Report).
10.8 Employment Agreement dated as of March 4, 1997 between Raul
Alarcon, Jr. and the Company (incorporated by reference to
the Current Report).
10.9 Employment Agreement dated February 5, 1997 between Carey
Davis and the Company.*
10.10 Letter Agreement dated January 13, 1997 between the Company
and Caballero Spanish Media, LLC (incorporated by reference
to the Current Report).
10.11 1994 Stock Option Plan of the Company (incorporated by
reference to Exhibit 10.4 of the 1994 Registration
Statement).
10.12 Ground Lease dated December 18, 1995 between Louis Viola
Company and SBS-NJ (incorporated by reference to the 1996
Current Report).
10.13 Ground Lease dated December 18, 1995 between Frank F. Viola
and Estate of Thomas C. Viola and SBS-NJ (incorporated by
reference to the 1996 Current Report).
10.14 Lease and License Agreement dated February 1, 1991 between
Empire State Building Company, as landlord, and SBS-NY, as
tenant (incorporated by reference to Exhibit 10.15.1 of the
1994 Registration Statement).
10.15 Modification of Lease and License dated June 30, 1992
between Empire State Building Company and SBS-NY related to
WSKQ-FM (incorporated by reference to Exhibit 10.15.2 of the
1994 Registration Statement).
10.16 Lease and License Modification and Extension Agreement dated
as of June 30, 1992 between Empire State Building Company,
as landlord, and SBS-NY as tenant (incorporated by reference
to Exhibit 10.15.3 of the 1994 Registration Statement).
10.17 Promissory Note, dated as of December 31, 1995 of Raul
Alarcon, Sr. to SBS-NJ in the principal amount of $577,323
(incorporated by reference to Exhibit 10.26 to the Company's
1995 Annual Report on Form 10-K).
10.18 Promissory Note, dated as of December 31, 1995 of Raul
Alarcon, Jr. to SBS-NJ in the principal amount of $1,896,913
(incorporated by reference to Exhibit 10.27 to the Company's
1995 Annual Report on Form 10-K).
10.19 Lease Agreement dated June 1, 1992 among Raul Alarcon, Sr.,
Raul Alarcon, Jr., and SBS-Fla (incorporated by reference to
Exhibit 10.30 of the 1994 Registration Statement).
10.20 Indenture dated October 12, 1988 between Alarcon Holdings,
Inc. and SBS-NJ related to the studio located at 26 West
56th Street, NY, NY (incorporated by reference to Exhibit
10.32 of the 1994 Registration Statement).
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* To be filed by amendment.
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10.21 Agreement of Lease dated as of March 1, 1996. No. WT-1744-A119 1067 between The Port Authority of New
Jersey and SBS-GNY as assignee of Park Radio (incorporated by reference to the 1996 Current Report).
10.22 Asset Purchase Agreement dated as of July 2, 1997, by and between Spanish Broadcasting System, Inc. (New
Jersey), Spanish Broadcasting System of California, Inc., Spanish Broadcasting System of Florida, Inc.,
Spanish Broadcasting System, Inc., and One-on-One Sports, Inc. (incorporated by reference to Exhibit 10.62
of the Company's Registration Statement on Form S-4 (Commission File No. 333-26295)).
10.23 Amendment No. 1 dated as of September 29, 1997 to the Asset Purchase Agreement dated as of July 2, 1997,
by and between Spanish Broadcasting System, Inc. (New Jersey), Spanish Broadcasting System of California,
Inc., Spanish Broadcasting System of Florida, Inc., Spanish Broadcasting System, Inc., and One-on-One
Sports, Inc. (incorporated by referent to the Company's Registration Statement on Form S-1, dated January
21, 1999).
10.24 Promissory Note dated July 16, 1997 of Raul Alarcon, Jr. to the Company in the principal amount of
$1,050,229.63 (incorporated by reference to Exhibit 10.63 of the Company's Registration Statement on Form
S-4 (Commission File No. 333-26295)).
10.25 Asset Purchase Agreement dated January 28, 1998 by and between Spanish Broadcasting System of San Antonio,
Inc. and Radio KRIO, Ltd. (incorporated by reference to the Company's Form 10-Q dated February 12, 1998).
10.26 Asset Purchase Agreement dated June 16, 1998 by and between Spanish Broadcasting System of Puerto Rico,
Inc. and Pan Caribbean Broadcasting Corporation (incorporated by reference to the Company's Form 10-Q
dated July 12, 1998).
10.27 Extension of lease of a Condominium Unit (Metropolitan Tower Condominium) between Raul Alarcon, Jr.
("Landlord") and Spanish Broadcasting System, Inc. ("Tenant") (incorporated by reference to the Company's
1998 Annual Report on Form 10-K).
10.28 Asset Purchase Agreement dated January 8, 1999 by and between Spanish Broadcasting System of Puerto Rico,
Inc. and Guayama Broadcasting Company, Inc. and LaMega Estacion, Inc. (incorporated by reference to the
Company's Registration Statement on Form S-1, dated January 21, 1999).
10.29 Stock Purchase Agreement among JuJu Media Inc., each of the individual sellers, and Spanish Broadcasting
System, Inc., dated April 26, 1999.*
13.1 Annual Report of the Company (incorporated by reference to the Company's 1998 Annual Report on Form 10-K).
21.1 List of Subsidiaries of the Company (incorporated by reference to the Company's Registration Statement on
Form S-1, dated January 21, 1999).
23.1 Consent of KPMG LLP.**
23.2 Consent of Kaye, Scholer, Fierman, Hays & Handler, LLP (included in Exhibit 5.1).
24.1 Power of Attorney (included herein).
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* To be filed by amendment.
** Previously filed.
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(b) FINANCIAL STATEMENT SCHEDULES
The financial statement schedule -- "Valuation and Qualifying
Accounts" -- appears on page F-29. All other schedules are omitted because they
either are not applicable or the required information is included in the
financial statements or corresponding notes appearing elsewhere in this
registration statement.
ITEM 17. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
SBS pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by SBS of
expenses incurred or paid by a director, officer or controlling person of SBS 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, we will, unless in the opinion of our counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification is against public policy as expressed
in the Securities Act of 1933 and will be governed by the final adjudication of
such issue.
(b) We hereby undertake:
(1) To supply by means of a post-effective amendment all information
concerning a transaction, and the company being acquired involved in the
transaction, that was not the subject of and included in the registration
statement when it became effective.
(2) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
- To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
- 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) if, in
the aggregate, the changes in volume and price represent no more than
a 20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement;
- 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.
(3) 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
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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.
(4) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, SBS has duly
caused this Form S-1 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on the 19th day of
August, 1999.
SPANISH BROADCASTING
SYSTEM, INC.
By: *
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Name: Joseph A. Garcia
Title: Chief Executive Officer and
President
Pursuant to the requirements of the Securities Act of 1933, this Form S-1
has been signed below by the following persons in the capacities indicated on
the 19th day of August, 1999. Each person whose signature appears below hereby
authorizes Raul Alarcon, Jr. and Joseph A. Garcia, and each of them, as
attorney-in-fact, to sign and file in his behalf, individually and in each
capacity stated below, all amendments and post-effective amendments to this
registration statement.
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SIGNATURE
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* Chief Executive Officer, President and a
- --------------------------------------------------- Director (principal executive officer)
Raul Alarcon, Jr.
/s/ JOSEPH A. GARCIA Executive Vice President, Chief Financial
- --------------------------------------------------- Officer, and Assistant Secretary
Joseph A. Garcia (principal financial and accounting
officer)
* Chairman of the Board of Directors
- ---------------------------------------------------
Pablo Raul Alarcon, Sr.
* Secretary and a Director
- ---------------------------------------------------
Jose Grimalt
/s/ JOSEPH A. GARCIA
- ---------------------------------------------------
Joseph A. Garcia
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* The undersigned by signing his name hereto, does hereby sign and execute this
Amendment No. 1 to Registration Statement on behalf of the above named
officers and directors of the Company pursuant to the Power of Attorney
executed by such officers and directors and previously filed with the
Securities and Exchange Commission.
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