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As filed with the Securities and Exchange Commission on January 24, 2000
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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SPANISH BROADCASTING SYSTEM, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 13-3827791
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification No.)
organization)
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)
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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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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
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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:
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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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.
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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.
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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:
Date
/s/ Raul Alarcon, Jr. January 20, 2000
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Raul Alarcon, Jr.
Chairman of the Board of Directors,
Chief Executive Officer and President
(principal executive officer)
/s/ Joseph A. Garcia January 20, 2000
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Joseph A. Garcia
Chief Financial Officer, Executive Vice
President and Secretary
(principal financial and accounting officer)
/s/ Pablo Raul Alarcon January 20, 2000
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Pablo Raul Alarcon, Sr.
Director
/s/ Jose Grimalt January 20, 2000
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Jose Grimalt
Director
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Date
/s/ Roman Martinez IV January 20, 2000
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Roman Martinez IV
Director
/s/ Jason L. Shrinsky January 20, 2000
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Jason L. Shrinsky
Director
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EXHIBIT INDEX
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).