-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, O2BegcE/27w+0dHm9LaIt21X0dSGZNzLpNGofSEwM5LIN4ZR88mKUjlEiqU/Dvo7 9VcW/0dgDDblyUvQtOEBMg== 0001047469-97-009184.txt : 19971231 0001047469-97-009184.hdr.sgml : 19971231 ACCESSION NUMBER: 0001047469-97-009184 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971230 EFFECTIVENESS DATE: 19971230 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEFTEL BROADCASTING CORP CENTRAL INDEX KEY: 0000922503 STANDARD INDUSTRIAL CLASSIFICATION: RADIO BROADCASTING STATIONS [4832] IRS NUMBER: 990113417 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-43495 FILM NUMBER: 97747016 BUSINESS ADDRESS: STREET 1: 100 CRESCENT COURT STREET 2: SUITE 1777 CITY: DALLAS STATE: TX ZIP: 75201- BUSINESS PHONE: 7023673322 S-8 1 S-8 COVER AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 30, 1997 Registration No. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------- HEFTEL BROADCASTING CORPORATION (Exact name of registrant as specified in its charter) Delaware 99-0113417 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 100 CRESCENT COURT, SUITE 1777 DALLAS, TEXAS 75201 (214) 855-8882 (Address of principal executive offices, including zip code) ----------------- HEFTEL BROADCASTING CORPORATION LONG-TERM INCENTIVE PLAN (Full title of the plans) JEFFREY T. HINSON CHIEF FINANCIAL OFFICER HEFTEL BROADCASTING CORPORATION 100 CRESCENT COURT, SUITE 1777 DALLAS, TEXAS 75201 (214) 855-8882 (Name, address and telephone number of agent for service) copy to: MICHAEL D. WORTLEY MARK EARLY VINSON & ELKINS L.L.P. 3700 TRAMMELL CROW CENTER 2001 ROSS AVENUE DALLAS, TEXAS 75201-2975 (214) 220-7700 CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------- TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF REGISTERED REGISTERED PER SHARE* OFFERING PRICE* REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------------------- Common Stock, $.001 par value . 1,498,937 shares $42.8125 $64,173,240 $18,932 - ---------------------------------------------------------------------------------------------------------------------------------
* Estimated solely for purposes of calculating the registration fee in accordance with Rule 457(h) under the Securities Act of 1933, as amended, and based on the average of the high and low prices of the Common Stock reported on the Nasdaq National Market System on December 26, 1997. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents have been filed with the Securities and Exchange Commission (the "Commission") by Heftel Broadcasting Corporation, a Delaware corporation (the "Company"), and are incorporated herein by reference and made a part hereof: (a) The Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1996, as amended; (b) The description of the Company's Common Stock contained in the section entitled "Description of Capital Stock" contained in the Registration Statement on Form S-1 of the Company, as amended, filed with the Commission on April 29, 1994 (No. 33-78370) and incorporated by reference into the Registration Statement on Form 8-A filed by the Company with the Commission on July 8, 1994; (c) The Company's Quarterly Reports on Form 10-Q for the quarters ended December 31, 1996 (as amended), and March 31, June 30 (as amended), and September 30, 1997; (d) The Company's Current Report on Form 8-K filed with the Commission on February 26, 1997; (e) The Company's Current Report on Form 8-K filed with the Commission on March 3, 1997, as amended; (f) The Company's Current Report on Form 8-K filed with the Commission on December 12, 1997; and (g) The restatement of the Company's earnings per share contained in the section entitled "Recent Developments" contained in the Registration Statement on Form S-3 of the Company filed with the Commission on December 12, 1997 (File No. 333-42171). All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"), subsequent to the effective date hereof and prior to the filing of a post-effective amendment hereto that indicates that all securities offered hereby have been sold or that deregisters all such securities then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from the date of filing of such documents. Any statement contained herein or in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law (the "DGCL") empowers a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that he is or was serving at the request of the corporation or enterprise. Section 145 also allows a corporation to purchase and maintain insurance on behalf of any such person. Pursuant to provisions of the DGCL, the Company's Charter includes a provision which eliminates the personal liability of its directors to the Company and its stockholders for monetary damage to the fullest extent permissible under Delaware law. This provision does not eliminate liability (a) for any breach of a director's duty of loyalty to the Company or its stockholders; (b) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (c) in connection with payment of any illegal dividend or an illegal stock repurchase; or (d) 2 for any transaction from which the director derives an improper personal benefit. Further, this provision has no effect on claims arising under federal or sate securities laws and does not affect the availability to the Company's stockholders for any violation of a director's fiduciary duty to the Company or its stockholders. The Company's Charter authorizes the Company to indemnify its officers, directors and other agents to the fullest extent permitted by Delaware law, exclusive of rights provided through bylaw provisions, agreements, vote of stockholders or disinterested directors or otherwise. The Charter also authorizes the Company to indemnify its officers, directors and agents for breach of duty to the corporation and its stockholders through bylaw provisions, agreements or both, in excess of the indemnification otherwise permitted under Delaware law, subject to certain limitations. The Company has entered into indemnification agreements with all of its directors and executive officers whereby the Company will indemnify each such person (an "indemnitee") against certain claims arising out of certain past, present or future acts, omissions or breaches of duty committed by an indemnitee while serving in his employment capacity. Such indemnification does not apply to acts or omissions which are knowingly fraudulent, deliberately dishonest or arise from willful misconduct. Indemnification will only be provided to the extent the indemnitee has not already received payments in respect of such claim from the Company or from an insurance company. Under certain circumstances, such indemnification (including reimbursement of expenses incurred) will be allowed for liability arising under the Securities Act of 1933. The Bylaws require the Company to provide indemnification for directors and officers to the fullest extent permitted under Delaware law and the Company's Charter. An insurance policy obtained by the registrant provides for indemnification of officers and directors of Heftel and certain persons against liabilities and expenses incurred by any of them in certain stated proceedings and under certain stated conditions. The DGCL was amended in 1986 to provide that Delaware corporations may amend their certificates of incorporation to relieve directors of monetary liability for breach of their fiduciary duty, except under certain circumstances, including breach of the director's duty of loyalty, acts or omissions not in good faith or involving intentional misconduct and a knowing violation of law or any transaction from which the director derived improper personal benefit. Article 10 of the Company's Charter provides that, to the fullest extent permitted by the Delaware Act, the Company's directors shall not be liable to the Company or its stockholders for monetary damages for breach of their fiduciary duties as a director. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. Unless otherwise indicated below as being incorporated by reference to another filing of the Company with the Commission, each of the following exhibits is filed herewith: 4.1*** -- Heftel Broadcasting Corporation Long-Term Incentive Plan 4.3** -- Specimen Share Certificate 5.1* -- Opinion of Vinson & Elkins LLP 23.1* -- Consent of KPMG Peat Marwick LLP 23.2* -- Consent of Ernst & Young LLP 23.3* -- Consent of Vinson & Elkins LLP (included in its opinion filed as Exhibit 5.1 hereto) 24.1* -- Power of Attorney (see signature pages hereto) - ------------------- * Filed Herewith ** Filed with the Company's Registration Statement No. 33-78370 and incorporated herein by reference *** Filed as Appendix A to the Company's Definitive Proxy Statement filed with the Commission on April 24, 1997 (Commission File No. 000-24516) and incorporated herein by reference. 3 ITEM 9. UNDERTAKINGS. The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) to include any prospectus required by section 10(a)(3) of the Securities Act; (ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this chapter) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the registration statement is on Form S-3 (Section 239.13 of this chapter) or Form S-8 (Section 239.16b of this chapter), and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purposes of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) That, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing on an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (5) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, as amended, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, Texas on the 30th day of December, 1997. HEFTEL BROADCASTING CORPORATION By: /s/ McHenry T. Tichenor, Jr. ------------------------------------------ McHenry T. Tichenor, Jr., Chairman and Chief Executive Officer We, the undersigned officers and directors of Heftel Broadcasting Corporation hereby severally constitute McHenry T. Tichenor, Jr. and Jeffrey T. Hinson, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the Registration Statement filed herewith and any and all amendments to said Registration Statement, and generally to do all such things in our names and in our capacities as officers and directors to enable Heftel Broadcasting Corporation to comply with the provisions of the Securities Act of 1933, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our mid attorneys, or any of them, to said Registration Statement and any all amendments thereto. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
SIGNATURE CAPACITY DATE /s/ McHenry T. Tichenor, Jr. Chairman and Chief Executive December 30, 1997 - ---------------------------- Officer McHenry T. Tichenor, Jr. (Principal Executive Officer) /s/ Jeffrey T. Hinson Chief Financial Officer December 30, 1997 - ---------------------------- (Principal Financial Officer) Jeffrey T. Hinson /s/ David Gerow Vice President and Controller December 30, 1997 - ---------------------------- (Controller and Principal David Gerow Accounting Officer) /s/ Ernesto Cruz Director December 30, 1997 - ---------------------------- Ernesto Cruz /s/ Robert W. Hughes Director December 30, 1997 - ---------------------------- Robert W. Hughes /s/ James M. Raines Director December 30, 1997 - ---------------------------- James M. Raines Director December __, 1997 - ---------------------------- McHenry T. Tichenor
EXHIBIT INDEX 4.1*** -- Heftel Broadcasting Corporation Long-Term Incentive Plan 4.3** -- Specimen Share Certificate 5.1* -- Opinion of Vinson & Elkins LLP 23.1* -- Consent of KPMG Peat Marwick LLP 23.2* -- Consent of Ernst & Young LLP 23.3* -- Consent of Vinson & Elkins LLP (included in its opinion filed as Exhibit 5.1 hereto) 24.1* -- Power of Attorney (see signature pages hereto) - ---------------- * Filed Herewith ** Filed with the Company's Registration Statement No. 33-78370 and incorporated herein by reference *** Filed as Appendix A to the Company's Definitive Proxy Statement filed with the Commission on April 24, 1997 (Commission File No. 000-24516) and incorporated herein by reference. EX-5.1 2 EXHIBIT 5.1 [Letterhead of Vinson & Elkins L.L.P.] December 30, 1997 Heftel Broadcasting Corporation 100 Crescent Court, Suite 1777 Dallas, Texas 75201 Ladies and Gentlemen: We have acted as counsel for Heftel Broadcasting Corporation, a Delaware corporation (the "COMPANY"), in connection with the Company's registration under the Securities Act of 1933, as amended (the "ACT"), of 1,498,937 shares of common stock, par value $0.001 per share (the "SHARES"), of the Company which may be offered from time to time under the Heftel Broadcasting Corporation Long-Term Incentive Plan (the "PLAN") under the Company's Registration Statement on Form S-8 (the "REGISTRATION STATEMENT") filed with the Securities and Exchange Commission (the "COMMISSION") on December 30, 1997. In reaching the opinions set forth herein, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of such documents and records of the Company and such statutes, regulations and other instruments as we deemed necessary or advisable for purposes of this opinion, including (i) the Registration Statement, (ii) the Second Amended and Restated Certificate of Incorporation of the Company, as filed with the Secretary of State of the State of Delaware, (iii) the Bylaws of the Company, (iv) certain minutes of meetings of, and resolutions adopted by, the Board of Directors of the Company, and (v) the Plan. We have assumed that (i) all information contained in all documents we reviewed is true, correct and complete, (ii) all signatures on all documents we reviewed are genuine, (iii) all documents submitted to us as originals are true and complete, (iv) all documents submitted to us as copies are true and complete copies of the originals thereof, and (v) all persons executing and delivering the documents we examined were competent to execute and deliver such documents. In addition, we have assumed that, upon purchase of the Shares pursuant to the Plan, (i) the Shares will be issued in accordance with the Plan, (ii) the full consideration for each Share shall be paid to the Company and in no event will be less than the par value for each Share, and (iii) certificates evidencing the Shares will be properly executed and delivered by the Company in accordance with the Delaware General Corporation Law. Heftel Broadcasting Corporation December 30, 1997 Page 2 Based on the foregoing, and having due regard for the legal considerations we deem relevant, we are of the opinion that the Shares, when offered and issued by the Company upon purchase thereof pursuant to the terms of the Plan, will be legally issued, fully paid and non-assessable. This opinion is limited in all respects to the laws of the State of Texas, the Delaware General Corporation Law and the federal laws of the United States of America. You should be aware that we are not admitted to the practice of law in the State of Delaware. This opinion letter may be filed as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission promulgated thereunder. Very truly yours, /s/ VINSON & ELKINS L.L.P. EX-23.1 3 EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT The Board of Directors Heftel Broadcasting Corporation: We consent to the incorporation by reference herein of our report. /s/ KPMG Peat Marwick LLP Dallas, Texas December 24, 1997 EX-23.2 4 EXHIBIT 23.2 Exhibit 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Heftel Broadcasting Corporation Long-Term Incentive Plan of our report dated November 7, 1996, with respect to the consolidated financial statements of Heftel Broadcasting Corporation included in its Annual Report (Form 10-K) for the year ended September 30, 1996, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Los Angeles, California December 29, 1997 -----END PRIVACY-ENHANCED MESSAGE-----