<PAGE> 1
As filed with the Securities and Exchange Commission on January 24, 2000
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
SPANISH BROADCASTING SYSTEM, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C>
DELAWARE 13-3827791
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
</TABLE>
3191 CORAL WAY
MIAMI, FLORIDA 33145
(Address of principal executive offices)
SPANISH BROADCASTING SYSTEM 1999 STOCK OPTION PLAN
FOR NONEMPLOYEE DIRECTORS
(Full title of plan)
Raul Alarcon, Jr.
Chairman of the Board of Directors,
Chief Executive Officer and President
Spanish Broadcasting System, Inc.
3191 Coral Way
Miami, Florida 33145
(305) 441-6901
(Name, address and telephone number
of agent for service)
--------------------
Copies to:
JASON L. SHRINSKY, ESQ.
WILLIAM E. WALLACE, JR., ESQ.
Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, N.Y. 10022
(212) 836-8000
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================================================================================
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
TITLE OF SECURITIES TO AMOUNT TO BE PROPOSED PROPOSED AMOUNT OF
BE REGISTERED REGISTERED MAXIMUM MAXIMUM REGISTRATION
(1) OFFERING PRICE AGGREGATE FEE (2)
PER SHARE OFFERING
PRICE
- -------------------------------------------------------------------------------
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Class A Common Stock, 300,000 $20.00 $6,000,000 $1,584.00
par value $.0001 per
share
- -------------------------------------------------------------------------------
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(1) Represents the total number of shares of Class A common stock, par
value $.0001 per share, of Spanish Broadcasting System, Inc. which may
be issued upon exercise of outstanding stock options granted under the
Spanish Broadcasting System 1999 Stock Option Plan for Nonemployee
Directors.
(2) Computed in accordance with Rule 457(h)(1) under the Securities Act of
1933 based on the exercise price of the options granted under the plan
or relevant option agreements.
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i
<PAGE> 3
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents or portions of these documents, filed with the
Securities and Exchange Commission by Spanish Broadcasting System, Inc., a
Delaware corporation (the "Company"), pursuant to the Securities Exchange Act of
1934, are incorporated herein by reference:
1. the Company's Annual Report on Form 10-K for the fiscal year ended
September 26, 1999 filed on December 27, 1999; and
2. a description of the Company's Class A common stock, par value $.0001
per share, included in registration statements filed pursuant to the Securities
Act of 1933, including any amendments or reports which are filed for the purpose
of updating such descriptions.
All documents we file after the date of this registration statement
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed incorporated by reference and to be a part of this
registration statement from the date the documents are filed.
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded, for
purposes of this registration statement, to the extent that a statement
contained in this registration statement or in any other subsequently filed
document which also is or is deemed to be incorporated by reference modifies or
supersedes the statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Class A common stock that may be issued
under options granted under the Spanish Broadcasting System 1999 Stock Option
Plan for Nonemployee Directors is being passed upon for the Company by Kaye,
Scholer, Fierman, Hays & Handler, LLP. Jason L. Shrinsky, a member of the board
of directors of the Company, is a partner in Kaye, Scholer, Fierman, Hays &
Handler, LLP. As of the date of this registration statement, Mr. Shrinsky had
received stock options to purchase 50,000 shares of the Company's Class A common
stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the Delaware General Corporation Law (the "DGCL"),
the Company has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities. Section 145 of the DGCL provides
that a corporation may indemnify any person, including a director or officer,
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of the
corporation) by reason of the fact that he or she is or was a director or
officer of the corporation, or is or was a director or officer of the
corporation serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection with such action,
suit or proceeding, provided, he or she acted in good faith and in a manner he
or she reasonably believed to be
II-1
<PAGE> 4
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 or
her conduct was unlawful.
A Delaware corporation may also indemnify directors and/or officers in an
action or suit by or in the right of the corporation under the same conditions,
except that no indemnification is permitted without judicial approval if the
director or officer is adjudged to be liable to the corporation. Where a
director or officer is successful on the merits or otherwise in the defense of
any action referred to above, the corporation must indemnify him or her against
the expenses which such director or officer actually and reasonably incurred.
The Company's third amended and restated certificate of incorporation has
a provision which limits the liability of directors to the maximum extent
permitted by Delaware law. The third amended and restated certificate of
incorporation specifies that directors will not be personally liable for
monetary damages for breach of his fiduciary duty as a director. This limitation
does not apply to actions by a director or officer that do not meet the
standards of conduct which make it permissible under the DGCL for the Company to
indemnify such director or officer. The Company's amended and restated by-laws
also provide for indemnification of directors and officers (and others) in the
manner, under the circumstances and to the fullest extent permitted by the DGCL.
Each director has entered into an indemnification agreement with the Company
that provides for indemnification to the fullest extent provided by law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors and officers pursuant to the foregoing
provisions, we have been informed that, in the opinion of the Securities and
Exchange Commission, the indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following are filed as exhibits to this registration statement:
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EXHIBITS DESCRIPTION
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4.1 Third Amended and Restated Certificate of Incorporation of the
Company. Incorporated by reference to Amendment No. 3 to the
Company's Registration Statement on Form S-1 filed on October 6,
1999.
4.2 Amended and Restated By-laws of the Company. Incorporated by
reference to Amendment No. 3 to the Company's Registration Statement
on Form S-1 filed on October 6, 1999.
4.3 Spanish Broadcasting System 1999 Stock Option Plan for Nonemployee
Directors.
5.1 Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Kaye, Scholer, Fierman, Hays & Handler, LLP (included
in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page of this
registration statement).
</TABLE>
II-2
<PAGE> 5
ITEM 9. UNDERTAKINGS.
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. 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.
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 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 of 1933, each filing of the registrant's annual report pursuant to Sections
13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of any
employee benefit plan's annual report pursuant to section 15(d) of the Exchange
Act) that is incorporated by reference in this 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 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 Securities
Act and will be governed by the final adjudication of such issue.
II-3
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, we certify
that we have reasonable grounds to believe we meet all of the requirements for
filing on Form S-8 and have duly caused this registration statement to be signed
on our behalf by the undersigned, duly authorized, in the City of New York,
State of New York, as of January 20, 2000.
SPANISH BROADCASTING SYSTEM, INC.
By: /s/ Raul Alarcon, Jr.
-------------------------------------
Raul Alarcon, Jr.
Chairman of the Board of Directors,
Chief Executive Officer and President
POWER OF ATTORNEY. Each person whose signature appears below hereby
authorizes each of Raul Alarcon, Jr. and Joseph A. Garcia, as attorney-in-fact,
to sign and file on his behalf, individually and in each capacity stated below,
any post-effective amendment to this registration statement or any registration
statement relating to this offering.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and as of the date indicated:
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<CAPTION>
Date
<S> <C>
/s/ Raul Alarcon, Jr. January 20, 2000
- ---------------------------------------------
Raul Alarcon, Jr.
Chairman of the Board of Directors,
Chief Executive Officer and President
(principal executive officer)
/s/ Joseph A. Garcia January 20, 2000
- ---------------------------------------------
Joseph A. Garcia
Chief Financial Officer, Executive Vice
President and Secretary
(principal financial and accounting officer)
/s/ Pablo Raul Alarcon January 20, 2000
- ------------------------------------------
Pablo Raul Alarcon, Sr.
Director
/s/ Jose Grimalt January 20, 2000
- ------------------------------------------
Jose Grimalt
Director
</TABLE>
II-4
<PAGE> 7
<TABLE>
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Date
<S> <C>
/s/ Roman Martinez IV January 20, 2000
- --------------------------------------
Roman Martinez IV
Director
/s/ Jason L. Shrinsky January 20, 2000
- -----------------------------------------
Jason L. Shrinsky
Director
</TABLE>
II-5
<PAGE> 8
EXHIBIT INDEX
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EXHIBITS DESCRIPTION
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4.1 Third Amended and Restated Certificate of Incorporation of the
Company. Incorporated by reference to Amendment No. 3 to the
Company's Registration Statement on Form S-1 filed on October 6,
1999.
4.2 Amended and Restated By-laws of the Company. Incorporated by
reference to Amendment No. 3 to the Company's Registration Statement
on Form S-1 filed on October 6, 1999.
4.3 Spanish Broadcasting System 1999 Stock Option Plan for Nonemployee
Directors.
5.1 Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP.
23.1 Consent of KPMG LLP.
23.2 Consent of Kaye, Scholer, Fierman, Hays & Handler, LLP (included
in Exhibit 5.1).
24.1 Powers of Attorney (included on the signature page of this
registration statement).
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<PAGE> 1
EXHIBIT 4.3
SPANISH BROADCASTING SYSTEM
1999 STOCK OPTION PLAN
FOR NONEMPLOYEE DIRECTORS
1. PURPOSE.
The purpose of the Plan is to promote the interests of Spanish
Broadcasting System, Inc. (the "Company") and its shareholders by increasing the
proprietary and personal interest of nonemployee members of the Board in the
growth and continued success of the Company by granting them Options to purchase
shares of the Company's stock.
2. DEFINITIONS.
Whenever the following terms are used in this Plan, they shall have the
meaning specified below unless the context clearly indicates to the contrary.
"Board" shall mean the Board of Directors of the Company.
"Change in Control" shall mean the occurrence of any of the following:
(a) any "person" as such term is defined in Sections 13(d) and 14(d) of
the Exchange Act (other than the Company or any Subsidiary or any trustee or
other fiduciary holding securities under an employee benefit plan of the Company
or any Subsidiary), becomes the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the combined voting power of
the Company's then outstanding securities;
(b) during any two consecutive years, individuals who at the beginning of
such period constitute the Board, and any new director (whose election by the
Board or nomination for election by the Company's shareholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office who
either were directors at the beginning of the period or whose election or
nomination for election was previously so approved), cease for any reason to
constitute at least a majority of the Board;
(c) the stockholders of the Company approve a merger or consolidation of
the Company with any other company other than (i) a merger or consolidation
which would result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by remaining
outstanding or by being converted into voting securities of the surviving
entity) more than eighty percent (80%) of the combined voting power of the
voting securities of the Company (or such surviving entity) outstanding
immediately after such merger or consolidation, or (ii) a merger or
consolidation effected to implement a recapitalization of the Company (or
similar transaction) in which no "person" (as hereinabove defined) acquires more
than fifty percent (50%) of the combined voting power of the Company's then
outstanding securities; or
(d) the stockholders of the Company adopt a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the Company of all
or substantially all of the Company's assets.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Company" shall mean Spanish Broadcasting System, Inc., a Delaware
corporation, and any successor corporation.
<PAGE> 2
"Disability" shall mean the inability, by reason of bodily injury or
physical or mental disease, or any combination thereof, of the Optionee to
perform his duties as a member of the Board for a period of one hundred eighty
(180) days (whether or not consecutive) in any period of three hundred and
sixty-five (365) consecutive days.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Fair Market Value" per Share as of a particular date shall mean, unless
otherwise determined by the Board:
(i) the closing sales price per Share on a national securities
exchange for the business day preceding the exercise date on which there was a
sale of Shares on such exchange;
(ii) if clause (i) does not apply and the Shares are then quoted on
the National Association of Securities Dealers Automated Quotation system (known
as "NASDAQ"), the closing price per Share as reported on such system for the
business day preceding the exercise date on which a sale was reported;
(iii) if clause (i) or (ii) does not apply and the Shares are then
traded on an over-the-counter market, the closing price for the Shares in such
over-the-counter market for the business day preceding the exercise date; or
(iv) if the Shares are not then listed on a national securities
exchange or traded in an over-the-counter market, such value as the Board in its
discretion may determine.
"Nonemployee Director" shall mean a member of the Board who is not an
employee of the Company.
"Option" shall mean an option to purchase Shares granted pursuant to the
Plan. Options granted under the Plan are not intended to be "incentive stock
options" within the meaning of Section 422 of the Code.
"Option Agreement" shall mean an Option Agreement, substantially in the
form attached hereto as Exhibit A, to be entered into between the Company and an
Optionee, which shall set forth the terms and conditions of the Options granted
to such Optionee.
"Participant" shall mean a Nonemployee Director who is granted an Option
under the Plan.
"Plan" shall mean this Spanish Broadcasting System 1999 Stock Option Plan
for Nonemployee Directors, as hereinafter amended from time to time.
"Share" shall mean a share of the Company's common stock, $.0001 par
value.
3. SHARES SUBJECT TO THE PLAN.
(a) Shares Subject to the Plan. Subject to adjustment as set forth
in Section 3(b), the maximum number of Shares that may be issued or transferred
pursuant to Options under this Plan shall be 300,000 which may be authorized but
unissued Shares or Shares held in the Company's treasury, or a combination
thereof. Any Shares subject to an Option that cease to be subject thereto may
again be the subject of Options hereunder.
(b) Changes in Company's Shares. In the event the Board determines
that any stock dividend, extraordinary cash dividend, recapitalization,
reorganization, merger, consolidation, split-up, spin-off, combination, exchange
of shares, warrants or rights offering to purchase Shares, or other similar
corporate event, affects the value of the Shares such that an adjustment is
required in order to preserve the benefits or potential benefits intended to be
made available under this Plan, the Board shall have the right, in its sole
discretion, and in such manner as it may deem equitable, to adjust any or all of
(a) the number and kind of Shares subject to outstanding Options, and (b) the
exercise price with respect to any Option or (c) make provision for a cash
payment to an Optionee or a person who has an
<PAGE> 3
outstanding Option (in an amount equal to the then difference between the
exercise price and the Fair Market Value of a Share).
4. PARTICIPATION.
Each Nonemployee Director shall be eligible to participate in the
Plan, provided that the Board shall have the discretion to determine which, if
any, Nonemployee Director shall receive a grant of Options hereunder.
5. TERMS OF OPTIONS AND SHARES.
(a) Terms. The Options granted hereunder shall have the following
terms and conditions:
(i) Exercise Price. The exercise price of any Option shall be one
hundred percent (100%) of the Fair Market Value of a Share as of the date the
Option is granted, provided, however, that the Board, in its discretion may
grant Options above or below Fair Market Value.
(ii) Term. Subject to the discretion of the Board, the term of an
Option shall be ten years from the date it is granted.
(iii) Vesting. Options shall be exercisable in such installments
(which need not be equal) and at such times as the Board may designate, as
embodied in the Option Agreement covering such Option, provided, however, that
any Options granted hereunder as of the Effective Date shall vest and become
exercisable at a rate of twenty percent (20%) immediately and an additional
twenty percent (20%) each year, beginning on the first anniversary of the date
of grant, and each anniversary thereof, provided that the Optionee is still a
member of the Board on each such vesting date. In addition, any Option granted
an individual who is elected to the Board as a Nonemployee Director during
calendar year 2000 or thereafter shall vest and become exercisable at a rate of
twenty percent (20%) per year, beginning on the date of grant and an additional
twenty percent (20%) on the first anniversary of the date of grant and each
anniversary thereafter, provided that the Optionee is still a member of the
Board on each such date. Notwithstanding the foregoing, any Options that are not
exercisable prior to a Change in Control shall become exercisable on the date of
such Change in Control and shall remain exercisable for the remainder of their
Term.
(iv) Number. The Board shall have the discretion to determine the
number of options to be granted any Nonemployee Director, and to determine the
terms and conditions of any such grant, all as embodied in the Option Agreement
covering such Option.
(b) Termination of Service. If an Optionee ceases to be a member of the
Board for any reason, including death, retirement on or after age 65, or
Disability, all outstanding Options held by such Optionee that are exercisable
on such date shall remain exercisable for their Term, and shall thereafter
terminate and be of no further force or effect.
(c) Option Agreement. Options shall be granted only pursuant to a
written Option Agreement, which shall be executed by the Optionee and an
authorized officer of the Company and which shall contain such terms and
conditions as the Board shall determine, consistent with the Plan.
(d) Non-Transferability. No Option granted hereunder the Plan shall be
transferable by the Optionee to whom granted otherwise than by will or the laws
of descent and distribution, and an Option may be exercised during the lifetime
of such Optionee only by the Optionee or his guardian or legal representative.
The terms of such Option shall be binding upon the beneficiaries, executors,
administrators, heirs and successors of the Optionee.
(e) Method of Exercise. The exercise of an Option shall be made only by
delivery of a written notice (in person or by first class mail to the Secretary
of the Company at the Company's principal executive office) specifying the
number of Shares to be purchased and accompanied by full payment therefor and
otherwise in accordance with the Option Agreement pursuant to which the Option
was granted. The exercise price for any Shares purchased
<PAGE> 4
pursuant to the exercise of an Option shall be paid in full upon such exercise
in cash, by check or, at the discretion of the Board and upon such terms and
conditions as the Board shall approve, by transferring previously owned Shares
to the Company, having Shares withheld, or pursuant to a "cashless exercise"
procedure, or any combination thereof. Any Shares transferred to the Company as
payment of the exercise price shall be valued at their Fair Market Value on the
day preceding the date of exercise of such Option. If requested by the Board,
the Optionee shall deliver the Option Agreement evidencing the Option to the
Secretary of the Company who shall endorse thereon a notation of such exercise
and return such Option Agreement to the Optionee. Not less than one hundred
(100) Shares may be purchased at any time upon the exercise of an Option unless
the number of Shares so purchased constitutes the total number of Shares then
purchasable under the Option or the Board determines otherwise in its sole
discretion.
(f) Rights as Stockholder. No Optionee shall be deemed for any purpose
to be or to have the rights and privileges of the owner of any Shares subject to
any Option unless and until (a) the Option shall have been exercised pursuant to
the terms thereof, and (b) the Company shall have issued the Shares to the
Optionee.
6. ADMINISTRATION.
The Plan shall be administered by the Board. Subject to the provisions
of the Plan, the Board shall be authorized to interpret and construe the Plan
and the Option Agreements, to establish, amend, and rescind any rules and
regulations relating to the Plan, and to make all other determinations necessary
or advisable for the administration of the Plan and to carry out its purpose.
The determinations of the Board in the administration of the Plan, as described
herein, shall be final and conclusive. The Secretary shall be authorized to
implement the Plan in accordance with its terms and to take such actions of a
ministerial nature as shall be necessary to effectuate the intent and purposes
thereof. The Board may, in its sole and absolute discretion, delegate to any
proper officer of the Company, or more than one of them, any or all of its
administrative duties under this Plan.
7. OTHER PROVISIONS.
(a) Effective Date. The Plan has been approved by the Board and by the
Company's stockholders, and shall become effective as of the date the Board
approved such Plan, (the "Effective Date"). The Plan shall continue in effect
until ten years after the date it was approved by the Company's stockholders.
(b) Amendment, Suspension or Termination of the Plan. The Plan may be
wholly or partially amended or otherwise modified, suspended or terminated at
any time or from time to time by the Board; provided, however, that, except as
provided in Section 3(b), no amendment, suspension nor termination shall,
without the consent of the Optionee, alter or impair any rights or obligations
under any Option theretofore granted.
(c) Governing Law. The Plan and the rights of all persons claiming
hereunder shall be construed and determined in accordance with the laws of the
State of New York without giving effect to the choice of law principles thereof.
(d) Regulations and Other Approvals. (i) The obligation of the Company
to sell or deliver Shares with respect to Options granted under the Plan shall
be subject to all applicable laws, rules and regulations, including all
applicable federal and state securities laws, and the obtaining of all such
approvals by governmental agencies as may be deemed necessary or appropriate by
the Board.
(ii) The Board may make such changes as may be necessary or
appropriate to comply with the rules and regulations of any government
authority.
(iii) Each Option is subject to the requirement that, if at any time
the Board determines, in its sole discretion, that the listing, registration or
qualification of Shares issuable pursuant to the Plan is required by any
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body is necessary or desirable as a
condition of, or in connection with, the grant of an Option or the issuance of
Shares,
<PAGE> 5
no Options shall be granted or payment made or Shares issued, in whole or in
part, unless listing, registration, qualification, consent or approval has been
effected or obtained free of any conditions as acceptable to the Board.
(iv) In the event that the disposition of Shares acquired pursuant
to the Plan is not covered by a then current registration statement under the
Securities Act, and is not otherwise exempt from such registration, such Shares
shall be restricted against transfer to the extent required by the Securities
Act or regulations thereunder, and the Board may require any individual
receiving Shares pursuant to the Plan, as a condition precedent to receipt of
such Shares, to represent to the Company in writing that the Shares acquired by
such individual are acquired for investment only and not with a view to
distribution. The certificate for such shall include any legend that the Board
deems appropriate to reflect any restrictions on transfer.
(e) Withholding of Taxes. As a condition to the exercise of an Option
and to the extent required by law, no later than the date as of which an amount
first becomes includible in the gross income of an Optionee for federal income
tax purposes with respect to Options granted under this Agreement, the Optionee
shall pay to the Company, or make arrangements satisfactory to the Company
regarding the payment of, any federal, estate, or local taxes of any kind
required by law to be withheld with respect to such amount. The obligations of
the Company under this Agreement shall be conditioned on such payment or
arrangements, and the Company shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to the
employee. In its discretion, the Board may permit an Optionee to satisfy
withholding obligations by delivering previously owned Shares or by having
Shares withheld.
(f) Titles; Construction. Titles are provided herein for convenience
only and are not to serve as a basis for interpretation or construction of the
Plan. The masculine pronoun shall include the feminine and neuter and the
singular shall include the plural, when the context so indicates.
<PAGE> 6
EXHIBIT A
FORM OF STOCK OPTION AGREEMENT
THIS AGREEMENT, dated as of __________________, is made by and
between Spanish Broadcasting System, Inc. a Delaware corporation (the "Company")
and ________________ (the "Optionee").
WHEREAS, the Optionee has been selected by the Board to receive a
grant of stock options under the Spanish Broadcasting System 1999 Stock Option
Plan for Nonemployee Directors (the "Plan").
NOW, THEREFORE, in consideration of the Optionee's agreement to
serve on the Board, the Company and the Optionee agree as follows:
1. Definitions.
Any capitalized term not defined herein shall have the meaning set
forth in the Plan.
2. Grant of Option.
(a) Grant; Grant Date. Subject to the terms and conditions hereof
and contingent on the consummation of the Company's initial public offering
("IPO"), the Company hereby grants to the Optionee as of _____________ (the
"Grant Date") an Option to purchase ________ Shares at an exercise price equal
to _____________.
(b) Adjustments in Option. In the event that the outstanding Shares
subject to the Option are changed into or exchanged for a different number or
kind of shares or securities of the Company, or of another corporation, by
reason of reorganization, merger or other subdivision, consolidation,
recapitalization, reclassification, stock split, issuance of warrants, stock
dividend or combination of shares or similar event, the Board shall make an
appropriate and equitable adjustment in the Option so that the Optionee's
proportionate interest shall be maintained as before the occurrence of such
event, provided that any such adjustment shall be consistent with the provisions
of the Optionee's employment agreement, if applicable.
(c) Form of Option. The Option is intended to be a Nonqualified
Stock Option, and not an Incentive Stock Option.
(d) Term. The Option shall expire on the tenth anniversary of the
Grant Date, unless terminated earlier by the Committee.
(e) Vesting. Twenty percent (20%) of the Options shall be vested and
exercisable upon the Grant Date; an additional twenty percent (20%) of the
Options shall vest and become exercisable on each of the first four
anniversaries of the Grant Date, provided that the Optionee is still a member of
the Board on such vesting dates.
(f) Exercise. The Optionee may exercise an Option in whole or in
part at any time by delivering written notice of such exercise to the Secretary
of the Company of the number of Shares as to which the Option is being
exercised, and enclosing payment for the Shares with respect to which the Option
is being exercised. Such payment shall be in cash or by check, or if approved by
the Committee, by the delivery of Shares previously owned by the Employee, duly
endorsed for transfer to the Company, with a Fair Market Value on the date of
delivery equal to the aggregate purchase price of the Shares with respect to
which the Option is being exercised, or pursuant to a "cashless exercise," or
any combination of the foregoing approved by the Committee, in its sole
discretion. Partial exercise shall be for whole Shares only and shall not be for
less than one hundred (100) Shares unless the number of Shares purchased
constitutes the total number of Shares then remaining subject to the Option or
the Committee permits such smaller exercise in its sole discretion.
<PAGE> 7
(g) Exercise Following Termination of Service as a Director. If the
Optionee ceases to be a member of the Board for any reason, including death,
Disability, or retirement on or after age 65, all outstanding Options held by
such Optionee that are exercisable on such date shall remain exercisable by the
Optionee (or his personal representative or beneficiary) for the remainder of
their original term, and shall thereafter terminate and have no further force or
effect.
(h) Nontransferability. The Option shall not be transferable other
than by will or the laws of descent and distribution, and no transfer so
effected shall be effective to bind the Company unless the Company has been
furnished with written notice thereof and a copy of the will and/or such other
evidence as the Committee may deem necessary to establish the validity of the
transfer and the acceptance by the transferee or transferees of the terms and
conditions of the Option, provided, however, that, in the discretion of the
Committee, Options may be transferred pursuant to a Qualified Domestic Relations
Order (within the meaning of the Code).
(i) Conditions to Issuance of Stock Certificates.
(1) The Shares deliverable upon the exercise of the Option, or
any portion thereof, may be either previously authorized but unissued Shares or
issued Shares which have been reacquired by the Company. Such Shares shall be
fully paid and non-assessable. The stock certificates evidencing the Shares
shall bear such legends restricting transferability as the Committee deems
necessary or advisable.
(2) The Company shall not be required to issue or deliver any
certificate or certificates for Shares deliverable upon any exercise of the
Option prior to fulfillment of all of the following conditions:
(a) The completion of any registration or other qualification
of such Shares under any state or federal law or under rulings or regulations of
the Securities and Exchange Commission or of any other governmental regulatory
body, or the obtaining of approval or other clearance from any state or federal
governmental agency which the Committee shall, in its sole discretion, deem
necessary or advisable.
(b) If, in its sole discretion, the Committee deems it
necessary or advisable, the execution by the Employee of a written
representation and agreement, in a form satisfactory to the Committee, in which
the Optionee represents that the Shares acquired by him upon exercise are being
acquired for investment and not with a view to distribution thereof.
(j) Rights as Stockholder. The Optionee shall not be, nor have any
of the rights or privileges of, a stockholder of the Company in respect of any
Shares purchasable upon the exercise of the Option unless and until certificates
representing such Shares have been issued by the Company.
3. Miscellaneous.
(a) Administration. The Committee shall have the power to interpret the
Plan and this Agreement, and to adopt such rules for the administration,
interpretation and application of the Plan as are consistent therewith and to
interpret or revoke any such rules. All actions taken and all interpretations
and determinations made by the Committee shall be final and binding upon the
Optionee, the Company, and all other interested persons.
(b) Withholding of Taxes. No later than the date as of which an amount
first becomes includible in the gross income of the Optionee for federal income
tax purposes with respect to the grant of the Option under this Agreement, the
Optionee shall pay to the Company, or the Optionee (or his Designated
Beneficiary) shall make arrangements satisfactory to the Company regarding the
payment of, any federal, state, or local taxes of any kind
<PAGE> 8
required by law or the Company to be withheld with respect to such amount. The
obligations of the Company under this Agreement shall be conditioned on such
payment or arrangements, and the Company shall, to the extent permitted by law,
have the right to deduct any such taxes from any payment of any kind otherwise
due to the Optionee.
(c) No Right to Continued Board Status. Nothing in this Agreement or in
the Plan shall confer upon the Optionee any right to continue as a member of the
Board.
(d) Entire Agreement; Amendment. This Agreement, and the Plan,
constitute the entire agreement between the parties with respect to the subject
matter hereof, and supersedes all prior agreements and understandings between
the parties with respect to such subject matter. Any term or provision of this
Agreement may be waived at any time by the party which is entitled to the
benefits thereof, and any term or provision of this Agreement may be amended or
supplemented at any time by the mutual consent of the parties hereto, except
that any waiver of any term or condition, or any amendment, of this Agreement
must be in writing.
(e) Governing Law. The laws of the State of New York shall govern the
interpretation, validity and performance of the terms of this Agreement
regardless of the law that might be applied under principles of conflict of
laws.
(f) Successors. This Agreement shall be binding upon and inure to the
benefit of the successors, assigns and heirs of the respective parties.
(g) Notices. All notices or other communications made or given in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by registered or certified mail, return
receipt requested, to those listed below at their following respective addresses
or at such other address as each may specify by notice to the others:
To the Optionee:
--------------------
--------------------
--------------------
To the Company:
Spanish Broadcasting System, Inc.
3191 Coral Way
Miami, Florida 33145
Attention: Joseph A. Garcia
Copy to:
Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, New York 10022
Attention: William E. Wallace, Jr., Esq.
(h) Waiver. The failure of a party to insist upon strict adherence to
any term of this Agreement on any occasion shall not be considered a waiver
thereof or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(i) Conflict with the Plan. In the event of any conflict or
inconsistency between the provisions of this Agreement and the Plan, the
provisions of the Plan shall control.
<PAGE> 9
(j) Titles; Construction. Titles are provided herein for convenience
only and are not to serve as a basis for interpretation or construction of the
Agreement. The masculine pronoun shall include the feminine and neuter and the
singular shall include the plural, when the context so indicates.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
Spanish Broadcasting System, Inc.
By ___________________________
Name:
Title:
OPTIONEE
________________________________
<PAGE> 1
EXHIBIT 5.1
January 20, 2000
Spanish Broadcasting System, Inc.
3191 Coral Way
Miami, Florida 33145
Re: Spanish Broadcasting System, Inc.
Ladies and Gentlemen:
We have acted as special counsel to Spanish Broadcasting System,
Inc., a Delaware corporation (the "Company"), in connection with the Company's
registration statement on Form S-8 (the "Registration Statement") to be filed
pursuant to the Securities Act of 1933, as amended (the "Securities Act"). The
Registration Statement relates to an aggregate of 300,000 shares of the
Company's Class A Common Stock, par value $.0001 per share (the "Common Stock"),
all of which may be issued upon the exercise of stock options granted pursuant
to the Spanish Broadcasting System 1999 Stock Option Plan for Nonemployee
Directors (the "Plan").
In connection with the above, we have reviewed the Company's third
amended and restated certificate of incorporation, its amended and restated
by-laws, resolutions adopted by its Board of Directors, the Registration
Statement and its related Prospectus and such other documents and proceedings as
we have deemed appropriate.
On the basis of such review, and having regard to legal
considerations that we deem relevant, we are of the opinion that the shares of
Common Stock to be offered pursuant to the Registration Statement have been duly
authorized and, when issued in accordance with the terms set forth in the Plan
and in the Registration Statement, will be duly and validly issued, fully paid
and nonassessable.
Our opinion set forth above is based as to matters of law solely on
applicable provisions of the laws of the State of Delaware, and we express no
opinions as to any other laws, statutes, ordinances, rules or regulations.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this opinion, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the use of our report dated December 10, 1999, which
appears in the Annual Report on Form 10-K, as amended, of Spanish Broadcasting
System, Inc. for the fiscal year ended September 26, 1999, which Annual Report
is incorporated herein by reference.
/s/ KPMG LLP
Miami, Florida
January 20, 2000
