As filed with the Securities and Exchange Commission on December 8, 1997
Registration No. 333-
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
HUNGARIAN BROADCASTING CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 13-378-7223
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
445 Park Avenue, 15th Floor
New York, New York 10022
(212) 758-9870
------------------------------------------------------------
(Address and telephone number of principal executive offices)
HUNGARIAN BROADCASTING CORP.
INCENTIVE STOCK OPTION PLAN
AND
HUNGARIAN BROADCASTING CORP.
MANAGEMENT COMPENSATION PLAN
(Full Titles of the Plans)
------------------------------------------------------------
Copy to:
Ronald Scott Moss, Esq.
445 Park Avenue, 15th Floor
New York, New York 10022
(212) 758-9870
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered(2) Per Share(1) Price Registration Fee
- ------------------------ ---------------- ------------------------- ----------------------- --------------------
<S> <C> <C> <C> <C>
Common Stock(1) 325,000 $8.00 $2,600,000 $520.00
- ------------------------ ---------------- ------------------------- ----------------------- --------------------
(SEE FOOTNOTES ON NEXT PAGE)
</TABLE>
<PAGE>
(FOOTNOTES FROM COVER PAGE)
(1) Estimated solely for the purpose of calculating the registration fee based
on the average of the high and low sale prices as reported in the NASDAQ
reporting system on December 8, 1997.
(2) Consists of 325,000 shares of Common Stock, par value $.001 per share
("Common Stock"), issuable upon the exercise of options awarded prior to
the date of this prospectus to purchase shares of Common Stock under either
the Hungarian Broadcasting Corp. Incentive Stock Option Plan (the
"Incentive Plan") or Hungarian Broadcasting Corp. Management Compensation
Plan (the "Management Plan").
NOTE: This Registration Statement, pursuant to Instruction C of Form
S-8 includes as Part I hereof the form of Prospectus for the
resale of shares of Common Stock issuable under the Incentive and
the Management Plans. The documents comprising the Prospectus for
the offer and sale of shares of Common Stock under the Incentive
and the Management Plans have been omitted in accordance with the
instructions to Form S-8.
<PAGE>
Subject to Completion, dated December 8, 1997
PROSPECTUS
HUNGARIAN BROADCASTING CORP.
325,000 SHARES OF COMMON STOCK
This prospectus relates to the offering of 325,000 shares (the "Shares") of
Common Stock, par value $.001 per share (the "Common Stock") of Hungarian
Broadcasting Corp., a Delaware corporation (the "Company"), which may be offered
for sale from time to time by certain shareholders of the Company (the "Selling
Shareholders") as described herein under the heading "Selling Shareholders." All
of the 325,000 shares are issuable upon the exercise of outstanding stock
options issued pursuant to the Company's Incentive Stock Option Plan ("Incentive
Plan") and Management Compensation Plan ("Management Plan").
The distribution of the Shares by the Selling Shareholders may be effected
from time to time in one or more transactions on a securities exchange, in
negotiated transactions or otherwise, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices or at negotiated
prices. The Selling Shareholders will pay all underwriting discounts and selling
commissions, if any, incurred in connection with the sale of the Shares. The
Company will not receive any of the proceeds from the sale of the Shares. The
Common Stock is quoted on the NASDAQ SmallCap Market system under the symbol
HBCO.
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE
SECURITIES COMMISSION NOR HAS THE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE
--------------------------------------
The date of this Prospectus is December 8, 1997
<PAGE>
No person is authorized to give any information or to make any
representation in connection with the offer and sale of the shares of Common
Stock that are the subject of this Prospectus other than those contained or
incorporated by reference herein and, if given or made, any such information or
representation must not be relied upon as having been authorized by the Company.
This Prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any securities other than those to which it relates, or an offer to
sell or a solicitation of an offer to buy the securities in any jurisdiction to
any person to whom it would be unlawful to make such offer or solicitation in
such jurisdiction. Neither the delivery of this Prospectus nor any sale made
hereunder shall under any circumstances create any implication that there has
been no change in the affairs of the Company since the date hereof.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
and Exchange Act of 1934, as amended (the "Exchange Act") and in accordance
therewith files reports and other information with Securities and Exchange
Commission (the "SEC"). Such reports, proxy statements and other information
concerning the Company can be inspected and copied at the public reference
facilities maintained by the maintained by the SEC at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549; at its Regional Offices located at 7 World
Trade Center, Suite 1300, New York, New York 10007; and at 500 West Madison
Street, Chicago, Illinois 60661-2511. Copies of such material can also be
obtained from the Public Reference Section of the Securities and Exchange
Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates.
The Corporation's Common Stock is quoted and traded on the NASDAQ SmallCap
Market.
A Registration Statement under the Securities Act of 1933, as amended (the
"Securities Act"), has been filed with the SEC with respect to the shares of
Common Stock offered hereby. This Prospectus has been filed as a part of the
Registration Statement, and does not contain all information set forth in the
Registration Statement and the exhibits thereto. The Registration Statement and
exhibits thereto, copies of which may be inspected at the offices of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, or obtained from
the Commission at the same address at prescribed rates.
INCORPORATION BY REFERENCE
The following documents filed with the SEC pursuant to the Exchange Act are
hereby incorporated by reference in this Prospectus. except as superseded or
modified as described herein:
1. The Company's Annual Report on Form 10-KSB for the transition period
from July 1, 1996 to December 31, 1996.
2. The Company's Quarterly Reports on Form 10-QSB for the quarters ended
March 31, 1997, June 30, 1997, and September 30, 1997.
3. The description of Common Stock contained in the Company's Registration
Statement filed under Section 12(b) of the Exchange Act, including any
amendment or reports filed for the purpose of updating such
description. See "Description of Common Stock" in this Prospectus for a
description of the Company's Common Stock.
All documents filed by the Company pursuant to Sections 13, 14 and 15(d) of
the Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Shares shall be deemed to be incorporated by
reference in this Prospectus and to be part hereof from the date of filing of
such documents. Any statement contained in any incorporated document shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained in any other incorporated document
subsequently filed (or in this Prospectus, with respect to an incorporated
document filed prior to the filing hereof), modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or supersede, to constitute a part of this Prospectus.
Any person to whom a copy of this Prospectus is delivered may obtain without
charge, upon written or oral request, a copy of any of the documents
incorporated by reference herein, except for the exhibits to such documents that
are not specifically incorporated by references into such documents. Requests
for copies of such documents should be directed to Ronald Scott Moss, Secretary,
Hungarian Broadcasting Corp., 445 Park Avenue, 15th Floor, New York, New York
10022, telephone number (212) 758-9870.
2
<PAGE>
THE COMPANY
The Company and its subsidiaries are engaged in the television business in
Hungary.
The address of the principal executive offices of the Company is 445 Park
Avenue, 15th Floor, New York, New York 10022, telephone number (212) 758-9870.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the shares of
Common Stock offered hereby.
DESCRIPTION OF COMMON STOCK
The Company's authorized capitalization consists of 15,000,000 shares of Common
Stock, par value $.001 per share and 5,000,000 shares of Preferred Stock, par
value $.001 per share, which may be issued in one or more series. The holders of
Common Stock are entitled to one vote per share on all matters to be voted upon
by Stockholders. The holders of shares of Common Stock are entitled to dividends
when and as declared by the Board of Directors from funds legally available
therefore, and, upon liquidation, are entitled to share pro rata in any
distribution to stockholders after payments to creditors and after paying or
providing for any liquidation preferences to the Preferred Stock. There are no
conversion or redemption privileges, nor sinking fund provisions with respect to
the Common Stock, and stockholders have no preemptive rights to acquire shares
of Common Stock issued by the Company in the future. All of the outstanding
shares of Common Stock are validly issued, fully paid and non-assessable.
TRANSFER AGENT
The transfer agent and registrar of the Common Stock is American Stock
Transfer and Trust Company, 40 Wall Street, New York, New York 10005.
SELLING SHAREHOLDERS
The Shares that may be offered for sale from time to time by the Selling
Shareholders consist of shares that are issuable to the Selling Shareholders on
the exercise of options acquired by the Selling Shareholders prior to the date
hereof under the Company's Incentive Stock Option Plan and Management
Compensation Plan. The following table sets forth certain information with
respect to the ownership of options to purchase shares of Common Stock by each
Selling Shareholder as of December 8, 1996.
MANAGEMENT OPTIONS TOTALS
------------------ --------
Season 20,000
Bedo 10,000
Klenner 145,000
Bodle 40,000
Cohen 10,000
Moss 40,000
Kovats 30,000 295,000
--------
TOTAL 295,000
INCENTIVE STOCK OPTION PLAN
---------------------------
Tomassey 20,000
Kristoff 10,000
30,000 30,000
-------
TOTAL OPTIONS 325,000
3
<PAGE>
PLAN OF DISTRIBUTION
The Selling Shareholders have advised the Company that they wish to be in a
position to sell the Shares offered hereby from time to time in the event their
options are exercised. The number of Shares that actually may be sold by the
Selling Shareholders will be determined by each Selling Shareholder and will
depend on a number of factors, including the market price of the Common Stock
and the Selling Shareholders' personal financial circumstances.
The distribution of the Shares by the Selling Shareholders may be effected
from time to time in one or more transactions on a securities exchange, in
negotiated transactions or otherwise, at market prices prevailing at the time of
the sale, at prices related to such prevailing market prices or at negotiated
prices.
Each of the Selling Shareholders will be selling the Shares for his own
account. The Company will not receive any of the proceeds from the sale of the
Shares.
The Company intends to maintain the effectiveness of the Registration
Statement (of which this Prospectus is a part) during the period commencing on
the date hereof and ending at such time as all the Shares are sold or the
Company delivers to the Selling Shareholders an opinion of counsel to the effect
that the Shares may be sold without compliance with the registration
requirements of the Securities Act. The Company is bearing all expenses incurred
in connection with the registration of the Shares.
EXPERTS
The consolidated financial statements incorporated by reference in this
Prospectus have been audited by Coopers and Lybrand, independent certified
accountants, to the extent and for the periods set forth in their reports
incorporated herein by reference, and are incorporated herein by reference, and
are incorporated herein in reliance on such reports given upon the authority of
said firm as experts in accounting and auditing.
INDEMNIFICATION
Section 145 of the General corporation Law of the State of Delaware ("DGCL")
provides, in general, that a corporation incorporated under the laws of the
State of Delaware, such as registrant, may 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 (other than a derivative action by or in
the right of the corporation) by reason of the fact that such person 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 enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if such person acted
in good faith and in a manner such person reasonable 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 such director,
officer, employee or agent of the corporation person's conduct was unlawful. In
the case of a derivative action, a Delaware corporation may indemnify any such
person against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit if such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
corporation, 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 Court of
Chancery of the State of Delaware or any other court in which such action was
brought determines such person is fairly and reasonably entitled to indemnity
for such expenses.
Section 10 of the Company's Certificate of Incorporation, and Article X of
the Company's By-laws provide that the Company shall indemnify its officers,
directors, employees and agents to the extent permitted by the DGCL. In
addition, Section 9 of the company's Certificate of Incorporation provides, in
general, that no director of the Company shall be personally liable to the
Company or its stockholders for monetary damages for beach of fiduciary duty as
a director, except for liability (i) for any breach of the director's duty of
loyalty to the Company 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 (which provides that under certain
circumstances, directors may be jointly and severally liable for willful or
negligent violations of the DGCL provisions regarding the payment of dividends
or stock repurchases or redemptions), or (iv) for any transaction from which the
director derived an improper personal benefit. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Company has been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
4
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, heretofore filed by Hungarian Broadcasting Corp.
(the "Registrant") with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated by reference in this Registration Statement, except as
superseded or modified as described herein:
1. The Company's Annual Report on Form 10-KSB for the transition period
from July 1, 1996 to December 31, 1996.
2. The Company's Quarterly Reports on Form 10-QSB for the quarters ended
March 31, 1997, June 30, 1997, and September 30, 1997.
3. The description of Common Stock contained in the Company's Registration
Statement filed under Section 12(b) of the Exchange Act, including any
amendment or reports filed for the purpose of updating such
description. See "Description of Common Stock" in this Prospectus for a
description of the Company's Common Stock.
All documents subsequently filed by the Registrant pursuant to Sections 13,
14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part hereof
from the date of filing of such documents. Any statement contained in any
incorporated document shall be deemed to be modified or superseded for purposes
of this Registration Statement to the extent that a statement contained in any
other incorporated document subsequently filed (or in this Registration
Statement, with respect to an incorporated document filed prior to the filing
hereof), modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL"), 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 completed action,
suit or proceeding by reason of the fact that such person 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
enterprise, if such person acted in good faith 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, such person had no reasonable
cause to believe that his conduct was unlawful, except that, in the case of any
action or suit by or in the right of the corporation, no indemnification is
permitted if the person shall be adjudged liable to the corporation (other than
indemnification for such expenses as a court shall determine such person is
fairly and reasonably entitled).
Article Tenth of the Registrant's Bylaws requires indemnification of
directors and officers to the fullest extent permitted by the DGCL.
II-1
<PAGE>
Article Ninth of the Registrant's Certificate of Incorporation provides that
a director of the Registrant is not personally liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for breach of the director's duty of loyalty to the
Registrant 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, or (iv) for any transaction from which the director
derived an improper personal benefit.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, 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 this Registration Statement (or
the most recent post-effective amendment hereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement,
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a
post-effective amendment by those clauses 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 this Registration Statement.
(2) That, for the purpose 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, herein and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the Offering.
(b) The undersigned registrant hereby undertakes that for the purpose of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13 or 15(d) of the Exchange Act
(and, where applicable, each filing of 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the undersigned Registrant pursuant to the foregoing provisions, or
otherwise, the undersigned Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-2
<PAGE>
ITEM 9. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION REFERENCE
------- ----------- ----------
5.1 Opinion of Ronald Scott Moss, Esq. Filed herewith
23.1 Consent of Ronald Scott Moss, Esq. Contained in Exhibit 5.1
11-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
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 New York, State of New York, on the 9th day of
December 1996.
HUNGARIAN BROADCASTING CORP.
By \S\ PETER E. KLENNER
------------------------------
Peter E. Klenner
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
II-4
<PAGE>
HUNGARIAN BROADCASTING CORP.
EXHIBIT INDEX
ITEM 9. EXHIBITS
EXHIBIT SEQUENTIAL
NUMBER DESCRIPTION PAGE NUMBER
------- ----------- ------------
5.1 Opinion of Ronald Scott Moss, Esq. II-6
23.1 Consent of Ronald Scott Moss, Esq. II-6
II-5
December 8, 1997
Board of Directors
Hungarian Broadcasting Corp.
445 Park Avenue, 15th Floor
New York, New York 10022
Re: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
This opinion is being furnished to you in connection with the proposed offer
and sale by Hungarian Broadcasting Corp., a Delaware corporation (the
"Corporation"), of up to 325,000 shares (the "Shares") of Common Stock, par
value $.001 per share (the "Common Stock"), of the Corporation that may be
originally issued under the terms of the Corporation's Incentive Stock Option
Plan (the "Incentive Plan") and the Company's Management Compensation Plan (the
"Management Plan"), pursuant to a Registration Statement on Form S-8 (the
"Registration Statement") to be filed by the Corporation with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, on or about the date hereof.
I have acted as counsel to the Corporation in connection with the
preparation of the Registration Statement, and have examined signed copies of
the Registration Statement. I have also examined and relied upon copies of
minutes of meetings of the Board of Directors of the Corporation relating to the
adoption of the Incentive Stock Option Plan and the Management Compensation Plan
and the authorization of the Shares.
I also have examined originals or copies, certified otherwise identified to
our satisfaction, of such other documents, and have made such other
investigations, as I have deemed necessary to form a basis for the opinions
hereinafter expressed. In making such examination, I have assumed the
genuineness of the signatures, the legal capacity of all natural persons, the
authenticity of all documents submitted to me as originals and the conformity to
original documents of copies submitted to me, whether certified or not. As to
all matters of fact relevant to our opinion, I also have relied exclusively,
without independent investigation or verification, upon the foregoing documents
and on the certificates of public officials and officers of the Company.
Based upon the foregoing, I am of the opinion that the Shares have been duly
authorized and, upon the issuance thereof in accordance with the terms of the
Incentive Stock Option Plan and the Management Compensation Plan, the Shares
will be validly issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection with the
offer and sale of the Shares under the Plans and only while the Registration
Statement is in effect.
Very truly yours,
By: /s/ Ronald Scott Moss
----------------------
Ronald Scott Moss
(Contained in Exhibit 5.1)
