(Mark One) | ||
þ
|
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the quarterly period ended March 31, 2005 | ||
or | ||
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 | |
For the transition period from to |
Delaware
|
13-3827791 | |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification No.) |
Page | ||||||
PART I. FINANCIAL INFORMATION | ||||||
ITEM 1.
|
Financial Statements Unaudited | |||||
Unaudited Condensed Consolidated Balance Sheets as of December 31, 2004 and March 31, 2005 | 2 | |||||
Unaudited Condensed Consolidated Statements of Operations for the Three-Months Ended March 31, 2004 and 2005 | 3 | |||||
Unaudited Condensed Consolidated Statements of Cash Flows for the Three-Months Ended March 31, 2004 and 2005 | 4 | |||||
Notes to Unaudited Condensed Consolidated Financial Statements | 5 | |||||
ITEM 2.
|
Managements Discussion and Analysis of Financial Condition
and Results of
Operations |
16 | ||||
ITEM 3.
|
Quantitative and Qualitative Disclosures About Market Risk | 21 | ||||
ITEM 4.
|
Controls and Procedures | 22 | ||||
PART II. OTHER INFORMATION | ||||||
ITEM 1.
|
Legal Proceedings | 22 | ||||
ITEM 5.
|
Other Information | 24 | ||||
ITEM 6.
|
Exhibits and Reports on Form 8-K | 25 |
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Item 1.
Financial Statements Unaudited
December 31,
March 31,
2004
2005
(In thousands,
except share data)
ASSETS
$
132,032
$
161,924
32,622
23,811
2,520
2,216
65,004
64,559
232,178
252,510
22,178
22,254
710,410
710,410
32,806
32,806
1,400
1,391
10,073
9,738
678
886
$
1,009,723
$
1,029,995
LIABILITIES AND STOCKHOLDERS EQUITY
$
123,750
$
123,438
3,154
3,112
20,036
24,225
19,614
5,428
13,397
525
506
157,082
180,103
326,476
326,807
567
549
127,055
123,981
993
966
612,173
632,406
84,914
87,196
1
1
4
4
2
2
520,450
520,450
(207,821
)
(210,064
)
312,636
310,393
$
1,009,723
$
1,029,995
Three Months Ended
March 31,
2004
2005
(In thousands, except per
share data)
$
29,232
$
35,339
7,412
7,865
10,917
15,318
3,228
3,701
822
830
22,379
27,714
6,853
7,625
(10,238
)
(10,170
)
175
7
(3,210
)
(2,538
)
(3,948
)
(2,579
)
738
41
10,940
(2
)
$
11,678
$
39
(2,054
)
(2,282
)
$
9,624
$
(2,243
)
$
(0.02
)
$
(0.03
)
$
0.17
$
$
0.15
$
(0.03
)
64,693
72,381
65,359
72,381
Three Months Ended
March 31,
2004
2005
(In thousands)
$
11,678
$
39
(10,940
)
2
(9
)
822
830
46
257
(232
)
(107
)
294
331
493
499
(4,012
)
(2,623
)
(19
)
(19
)
3,861
8,812
267
304
(577
)
(208
)
(3,537
)
(4,925
)
300
7,115
7,969
5,559
11,152
908
(3
)
6,467
11,149
23,730
20,036
(682
)
(894
)
23,048
19,142
(55
)
(87
)
(140
)
(430
)
(312
)
(312
)
(937
)
(399
)
28,578
29,892
45,609
132,032
74,187
161,924
2,479
1,945
323
1,649
$
1,366
$
1,910
1.
Basis of Presentation
2.
Financial Information for Parent, Guarantor and Non-Guarantor
Subsidiaries
As of December 31, 2004
Non
Guarantor
Guarantor
Condensed Consolidating Balance Sheet
Parent
Subsidiaries
Subsidiaries
Eliminations
Total
$
110,374
18,647
3,011
132,032
30,974
1,648
32,622
992
1,069
459
2,520
1,107
63,897
65,004
111,366
51,797
69,015
232,178
1,334
14,177
6,667
22,178
1,962
9,249
733,405
744,616
10,073
10,073
738,151
342,518
(644,000
)
(436,669
)
37
640
1
678
$
862,923
418,381
165,088
(436,669
)
1,009,723
$
123,750
70
3,084
126,904
8,206
11,542
4,477
24,225
5,423
5
5,428
525
525
137,904
11,617
7,561
157,082
326,476
567
327,043
993
993
127,055
127,055
465,373
12,184
134,616
612,173
84,914
84,914
1
1
6
1
(1
)
6
520,450
94,691
(94,691
)
520,450
(207,821
)
406,197
(64,220
)
(341,977
)
(207,821
)
312,636
406,197
30,472
(436,669
)
312,636
$
862,923
418,381
165,088
(436,669
)
1,009,723
As of March 31, 2005
Non
Guarantor
Guarantor
Condensed Consolidating Balance Sheet
Parent
Subsidiaries
Subsidiaries
Eliminations
Total
$
137,178
22,109
2,637
161,924
22,614
1,197
23,811
909
865
442
2,216
1,114
63,445
64,559
138,087
46,702
67,721
252,510
1,441
14,065
6,748
22,254
1,962
9,240
733,405
744,607
9,738
9,738
736,374
357,483
(644,493
)
(449,364
)
254
628
4
886
$
887,856
428,118
163,385
(449,364
)
1,029,995
$
123,438
71
3,041
126,550
20,036
20,036
5,117
10,087
4,410
19,614
13,397
13,397
506
506
162,494
10,158
7,451
180,103
326,807
549
327,356
966
966
123,981
123,981
490,267
10,707
131,432
632,406
87,196
87,196
1
1
6
1
(1
)
6
520,450
94,691
(94,691
)
520,450
(210,064
)
417,411
(62,739
)
(354,672
)
(210,064
)
310,393
417,411
31,953
(449,364
)
310,393
$
887,856
428,118
163,385
(449,364
)
1,029,995
For the Three Months Ended March 31, 2004
Non
Guarantor
Guarantor
Condensed Consolidating Statement of Operations
Parent
Subsidiaries
Subsidiaries
Eliminations
Total
$
26,788
2,444
29,232
16,175
2,154
18,329
3,228
120
(120
)
3,228
96
603
123
822
(3,324
)
10,010
47
120
6,853
(9,914
)
1,006
(1,330
)
(10,238
)
177
121
(3
)
(120
)
175
(20,727
)
20,727
(4,012
)
20
44
(3,948
)
10,940
10,940
$
11,678
22,057
(1,330
)
(20,727
)
11,678
(2,054
)
(2,054
)
9,624
22,057
(1,330
)
(20,727
)
9,624
For the Three Months Ended March 31, 2005
Non
Guarantor
Guarantor
Condensed Consolidating Statement of Operations
Parent
Subsidiaries
Subsidiaries
Eliminations
Total
$
33,075
2,264
35,339
21,199
1,984
23,183
3,701
120
(120
)
3,701
103
596
131
830
(3,804
)
11,280
29
120
7,625
(8,857
)
(1,313
)
(10,170
)
5
(64
)
186
(120
)
7
(12,695
)
12,695
(2,579
)
(2,579
)
(2
)
_
(2
)
$
39
11,214
1,481
(12,695
)
39
(2,282
)
(2,282
)
(2,243
)
11,214
1,481
(12,695
)
(2,243
)
For the Three Months Ended March 31, 2004
Non
Guarantor
Guarantor
Condensed Consolidating Statement of Cash Flows
Parent
Subsidiaries
Subsidiaries
Eliminations
Total
$
(5,898
)
14,432
(2,067
)
6,467
$
40,174
(1,818
)
24,894
(40,202
)
23,048
$
(882
)
(16,172
)
(24,085
)
40,202
(937
)
For the Three Months Ended March 31, 2005
Non
Guarantor
Guarantor
Condensed Consolidating Statement of Cash Flows
Parent
Subsidiaries
Subsidiaries
Eliminations
Total
$
5,677
6,084
(612
)
11,149
$
21,603
(472
)
(212
)
(1,777
)
19,142
$
(476
)
(2,150
)
450
1,777
(399
)
3.
New Accounting Pronouncements
4.
Assets Held for Sale
5.
Stockholders Equity
(a)
Series C Preferred Stock
(b)
Class A and B Common Stock
(c)
Warrants
Number of Class A
Common Shares
Per Share
Warrant
Warrant Date of Issue
Underlying Warrants
Exercise Price
Expiration Date
100,000
$6.14
March 31, 2006
100,000
$7.67
April 30, 2006
100,000
$7.55
May 31, 2006
100,000
$8.08
June 30, 2006
100,000
$8.17
July 31, 2006
100,000
$7.74
August 31, 2006
100,000
$8.49
September 30, 2006
3,800,000
(see Note 5(a))
December 23, 2008
4,500,000
(d)
Stock Option Plans
Weighted
Average
Exercise
Shares
Price
2,351
$
13.05
993
10.12
(89
)
6.53
(242
)
12.99
3,013
$
12.28
80
10.78
(60
)
20.00
3,033
$
12.09
Weighted
Average
Remaining
Weighted
Weighted
Contractual
Average
Average
Number
Life
Exercise
Number
Exercise
Range of Exercise Prices
Outstanding
(Years)
Price
Exercisable
Price
100
5.7
$
4.81
100
$
4.81
1,624
7.9
9.05
994
8.68
486
5.2
10.52
296
10.32
18
7.1
15.48
18
15.48
805
4.1
20.00
805
20.00
3,033
6.4
$
12.09
2,213
$
12.90
March 31,
March 31,
2004
2005
7 years
5 years
None
None
3.33
%
4.18
%
78
%
72
%
Three-Months Ended
March 31,
2004
2005
$
9,624
(2,243
)
(1,784
)
(742
)
$
7,840
(2,985
)
$
0.15
(0.03
)
$
0.12
(0.04
)
6.
Litigation
Item 2.
Managements Discussion and Analysis of Financial
Condition and Results of Operations
Three Months Ended
March 31,
Change
2004
2005
$
%
(In thousands)
$
29,232
$
35,339
$
6,107
21
%
7,412
7,865
453
6
%
10,917
15,318
4,401
40
%
3,228
3,701
473
15
%
822
830
8
1
%
6,853
7,625
772
11
%
(10,238
)
(10,170
)
68
(1
)%
175
7
(168
)
(96
)%
(3,948
)
(2,579
)
1,369
(35
)%
10,940
(2
)
(10,942
)
(100
)%
$
11,678
39
$
(11,639
)
(100
)%
Three Months Ended
March 31,
Change
2004
2005
$
(In thousands)
$
682
$
894
212
$
6,467
$
11,149
4,682
23,048
19,142
(3,906
)
(937
)
(399
)
538
$
28,578
$
29,892
the economic conditions within the radio broadcasting industry
and economic conditions in general will not deteriorate in any
material respect;
we will continue to successfully implement our business
strategies; and
we will not incur any material unforeseen liabilities, including
environmental liabilities.
Our substantial amount of debt could adversely affect our
financial health;
We will require a significant amount of cash to service our debt
and to make cash dividend payments under our Series B
preferred stock;
Our ability to generate cash depends on many factors, some of
which are beyond our control;
We may not have the funds or the ability to raise the funds
necessary to repurchase our Series B preferred stock if
holders exercise their repurchase right, or to finance the
change of control offer required by our Series B preferred
stock and the indenture that would govern our
10
3
/
4
%
subordinated exchange notes due 2013, if issued;
Any acceleration of our debt or event of default would harm our
business and financial condition;
Despite our current significant level of debt, we and our
subsidiaries may still be able to incur substantially more debt,
which, if increased, could further intensify the risks
associated with our substantial leverage;
The terms of our debt restrict us from engaging in many
activities and require us to satisfy various financial tests;
The terms of our existing debt and our preferred stock impose or
will impose restrictions on us that may adversely affect our
business;
We may not complete the proposed sale of our Los Angeles
stations;
We have experienced net losses in the past and, to the extent
that we experience net losses in the future, our ability to
raise capital and the market price of our common stock may be
adversely affected;
Our operating results could be adversely affected by a national
or regional recession;
A large portion of our net revenue and station operating income
currently comes from our New York, Los Angeles and Miami markets;
Loss of any key personnel could adversely affect our business;
Our growth depends on successfully executing our acquisition
strategy;
We are a holding company and depend entirely upon cash flow from
our subsidiaries to meet our obligations;
Raúl Alarcón, Jr., our Chairman of the Board of
Directors, Chief Executive Officer and President, has majority
voting control and this control may discourage or influence
certain types of transactions, including an actual or potential
change of control such as a merger or sale;
We compete for advertising revenue with other radio groups as
well as television and other media, many operators of which have
greater resources than we do;
Cancellations or reductions in advertising could adversely
affect our net revenues;
The FCC has begun more vigorous enforcement of its indecency
rules against the broadcast industry, which could have a
material adverse effect on our business;
We may face regulatory review for additional acquisitions and
divestitures in our existing markets and, potentially,
acquisitions in new markets;
Any failure by us to comply with the Sarbanes-Oxley Act of 2002
could cause a loss of confidence in the reliability of our
financial statements and could have a material adverse effect on
our business and the price of our Class A common stock;
We must be able to respond to rapidly changing technology,
services and standards which characterize our industry in order
to remain competitive;
Our business depends on maintaining our FCC licenses. We cannot
assure you that we will be able to maintain these licenses;
The market price of our shares of Class A common stock may
fluctuate significantly; and
Current or future sales by existing stockholders could depress
the market price of our Class A common stock.
Item 3.
Quantitative and Qualitative Disclosures About Market
Risk
Item 4.
Controls and Procedures
Item 1.
Legal Proceedings
Item 5.
Other Information
Item 6.
Exhibits and Reports on Form 8-K
Third Amended and Restated Certificate of Incorporation of
Spanish Broadcasting System, Inc. (the Company),
dated September 29, 1999 (incorporated by reference to the
Companys 1999 Registration Statement on Form S-1
(Commission File No. 333-85499) (the 1999
Registration Statement)) (Exhibit A to this exhibit
is incorporated by reference to the Companys Current
Report on Form 8-K, dated March 25, 1996 (the
1996 Current Report).
Certificate of Amendment to the Third Amended and Restated
Certificate of Incorporation of the Company, dated
September 29, 1999 (incorporated by reference to
Exhibit 3.2 of the Companys 1999 Registration
Statement).
Amended and Restated By-Laws of the Company.
Certificate of Elimination of 14
1
1
/
4
% Senior
Exchangeable Preferred Stock, Series A of the Company,
dated October 28, 2003 (incorporated by reference to
Exhibit 3.3 of the Companys Quarterly Report on
Form 10-Q, dated November 14, 2003 (the 11/14/03
Quarterly Report)).
Article V of the Third Amended and Restated Certificate of
Incorporation of the Company, dated September 29, 1999
(incorporated by reference to Exhibit 3.1 of the
Companys 1999 Registration Statement).
Certificate of Designations dated October 29, 2003 Setting
Forth the Voting Power, Preferences and Relative, Participating,
Optional and Other Special Rights and Qualifications,
Limitations and Restrictions of the
10
3
/
4
%
Series A Cumulative Exchangeable Redeemable Preferred Stock
of Spanish Broadcasting System, Inc. (incorporated by reference
to Exhibit 4.1 of the Companys 11/14/03 Quarterly
Report).
Certificate of Designations dated October 29, 2003 Setting
Forth the Voting Power, Preferences and Relative, Participating,
Optional and Other Special Rights and Qualifications,
Limitations and Restrictions of the
10
3
/
4
%
Series B Cumulative Exchangeable Redeemable Preferred Stock
of Spanish Broadcasting System, Inc. (incorporated by reference
to Exhibit 4.2 of the Companys 11/14/03 Quarterly
Report).
Indenture dated June 29, 1994 among the Company, IBJ
Schroder Bank & Trust Company, as Trustee, the
Guarantors named therein and the Purchasers named therein
(incorporated by reference to Exhibit 4.1 of the
Companys 1994 Registration Statement on Form S-4 (the
1994 Registration Statement).
First Supplemental Indenture dated as of March 25, 1996 to
the Indenture dated as of June 29, 1994 among the Company,
the Guarantors named therein and IBJ Schroder Bank &
Trust Company, as Trustee (incorporated by reference to the 1996
Current Report).
Second Supplemental Indenture dated as of March 1, 1997 to
the Indenture dated as of June 29, 1994 among the Company,
the Guarantors named therein and IBJ Schroder Bank &
Trust Company, as Trustee (incorporated by reference to the 1996
Current Report).
Supplemental Indenture dated as of October 21, 1999 to the
Indenture dated as of June 29, 1994 among the Company, the
Guarantors named therein and IBJ Schroder Bank & Trust
Company, as Trustee (incorporated by reference to the
Companys 1999 Registration Statement).
Indenture with respect to
9
5
/
8
% Senior
Subordinated Notes due 2009 with The Bank of New York as
Trustee, dated November 2, 1999 (incorporated by reference
to the Current Report on Form 8-K dated November 2,
1999 (the 1999 Current Report)).
Indenture with respect to
9
5
/
8
% Senior
Subordinated Notes due 2009 with the Bank of New York as
Trustee, dated June 8, 2001 (incorporated by reference to
the Companys Registration Statement on Form S-3,
filed on June 25, 2001 (the 2001 Form S-3).
Form of stock certificate for the Class A common stock of
the Company (incorporated by reference to the Companys
1999 Registration Statement).
Certificate of Elimination of 14
1
1
/
4
%
of Senior Exchangeable Preferred Stock, Series A of the
Company, dated October 28, 2003 (incorporated by reference
to Exhibit 3.3 of the Companys Quarterly Report on
Form 10-Q filed November 14, 2003).
Certificate of Designation Setting Forth the Voting Power,
Preferences and Relative, Participating, Optional and Other
Special Rights and Qualifications, Limitations and Restrictions
of the Series C Convertible Preferred Stock of the Company
(Certificate of Designation of Series C Preferred
Stock) (incorporated by reference to Exhibit 4.1 of
the Companys Quarterly Report on Form 8-K filed on
December 27, 2004).
Certificate of Correction to Certificate of Designation of
Series C Preferred Stock of the Company dated
January 7, 2005 (incorporated by reference to the
Companys Annual Report on Form 10-K filed on
March 16, 2005).
Nonqualified Stock Option Agreement dated as of March 15,
2005 between the Company and Jason Shrinsky.
Nonqualified Stock Option Agreement dated as of July 11,
2003 between the Company and Joseph A. García.
Chief Executive Officers Certification pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
Chief Financial Officers Certification pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
Chief Executive Officers Certification pursuant to
18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
Chief Financial Officers Certification pursuant to
18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
27
Spanish Broadcasting
System, Inc.
By:
/s/ JOSEPH A. GARCÍA
JOSEPH A. GARCÍA
Executive Vice President, Chief
Financial Officer and Secretary (principal
financial and accounting officer and duly
authorized officer of the registrant)
Third Amended and Restated Certificate of Incorporation of
Spanish Broadcasting System, Inc. (the Company),
dated September 29, 1999 (incorporated by reference to the
Companys 1999 Registration Statement on Form S-1
(Commission File No. 333-85499) (the 1999
Registration Statement)) (Exhibit A to this exhibit
is incorporated by reference to the Companys Current
Report on Form 8-K, dated March 25, 1996 (the
1996 Current Report).
Certificate of Amendment to the Third Amended and Restated
Certificate of Incorporation of the Company, dated
September 29, 1999 (incorporated by reference to
Exhibit 3.2 of the Companys 1999 Registration
Statement).
Amended and Restated By-Laws of the Company.
Certificate of Elimination of 14
1
1
/
4
% Senior
Exchangeable Preferred Stock, Series A of the Company,
dated October 28, 2003 (incorporated by reference to
Exhibit 3.3 of the Companys Quarterly Report on
Form 10-Q, dated November 14, 2003 (the 11/14/03
Quarterly Report)).
Article V of the Third Amended and Restated Certificate of
Incorporation of the Company, dated September 29, 1999
(incorporated by reference to Exhibit 3.1 of the
Companys 1999 Registration Statement).
Certificate of Designations dated October 29, 2003 Setting
Forth the Voting Power, Preferences and Relative, Participating,
Optional and Other Special Rights and Qualifications,
Limitations and Restrictions of the
10
3
/
4
%
Series A Cumulative Exchangeable Redeemable Preferred Stock
of Spanish Broadcasting System, Inc. (incorporated by reference
to Exhibit 4.1 of the Companys 11/14/03 Quarterly
Report).
Certificate of Designations dated October 29, 2003 Setting
Forth the Voting Power, Preferences and Relative, Participating,
Optional and Other Special Rights and Qualifications,
Limitations and Restrictions of the
10
3
/
4
%
Series B Cumulative Exchangeable Redeemable Preferred Stock
of Spanish Broadcasting System, Inc. (incorporated by reference
to Exhibit 4.2 of the Companys 11/14/03 Quarterly
Report).
Indenture dated June 29, 1994 among the Company, IBJ
Schroder Bank & Trust Company, as Trustee, the
Guarantors named therein and the Purchasers named therein
(incorporated by reference to Exhibit 4.1 of the
Companys 1994 Registration Statement on Form S-4 (the
1994 Registration Statement).
First Supplemental Indenture dated as of March 25, 1996 to
the Indenture dated as of June 29, 1994 among the Company,
the Guarantors named therein and IBJ Schroder Bank &
Trust Company, as Trustee (incorporated by reference to the 1996
Current Report).
Second Supplemental Indenture dated as of March 1, 1997 to
the Indenture dated as of June 29, 1994 among the Company,
the Guarantors named therein and IBJ Schroder Bank &
Trust Company, as Trustee (incorporated by reference to the 1996
Current Report).
Supplemental Indenture dated as of October 21, 1999 to the
Indenture dated as of June 29, 1994 among the Company, the
Guarantors named therein and IBJ Schroder Bank & Trust
Company, as Trustee (incorporated by reference to the
Companys 1999 Registration Statement).
Indenture with respect to
9
5
/
8
% Senior
Subordinated Notes due 2009 with The Bank of New York as
Trustee, dated November 2, 1999 (incorporated by reference
to the Current Report on Form 8-K dated November 2,
1999 (the 1999 Current Report)).
Indenture with respect to
9
5
/
8
% Senior
Subordinated Notes due 2009 with the Bank of New York as
Trustee, dated June 8, 2001 (incorporated by reference to
the Companys Registration Statement on Form S-3,
filed on June 25, 2001 (the 2001 Form S-3).
Form of stock certificate for the Class A common stock of
the Company (incorporated by reference to the Companys
1999 Registration Statement).
Certificate of Elimination of 14
1
1
/
4
%
of Senior Exchangeable Preferred Stock, Series A of the
Company, dated October 28, 2003 (incorporated by reference
to Exhibit 3.3 of the Companys Quarterly Report on
Form 10-Q filed November 14, 2003).
Certificate of Designation Setting Forth the Voting Power,
Preferences and Relative, Participating, Optional and Other
Special Rights and Qualifications, Limitations and Restrictions
of the Series C Convertible Preferred Stock of the Company
(Certificate of Designation of Series C Preferred
Stock) (incorporated by reference to Exhibit 4.1 of
the Companys Quarterly Report on Form 8-K filed on
December 27, 2004).
Certificate of Correction to Certificate of Designation of
Series C Preferred Stock of the Company dated
January 7, 2005 (incorporated by reference to the
Companys Annual Report on Form 10-K filed on
March 16, 2005).
Nonqualified Stock Option Agreement dated as of March 15,
2005 between the Company and Jason Shrinsky.
Nonqualified Stock Option Agreement dated as of July 11,
2003 between the Company and Joseph A. García.
Chief Executive Officers Certification pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
Chief Financial Officers Certification pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
Chief Executive Officers Certification pursuant to
18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
Chief Financial Officers Certification pursuant to
18 U.S.C. Section 1350, as adopted pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
EXHIBIT 3.3
AMENDED & RESTATED BYLAWS
OF
SPANISH BROADCASTING SYSTEM, INC.
(hereinafter called the "Corporation")
ARTICLE I
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the Corporation shall be in the City of Dover, County of Kent, State of Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine.
ARTICLE II
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. Meetings of the stockholders for the election of directors or for any other purpose shall be held at such time and place, either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. ANNUAL MEETINGS. The Annual Meetings of Stockholders shall be held on such date and at such time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which meetings the stockholders shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. Written notice of the Annual Meeting stating the place, date and hour of the meeting shall
be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting.
SECTION 3. SPECIAL MEETINGS. Unless otherwise prescribed by law, or by the Certificate of Incorporation, Special Meetings of Stockholders, for any purpose or purposes, may be called by (i) the Chairman of the Board of Directors, (ii) the Chief Executive Officer or (iii) the President, and shall be called by any such officer at the request in writing of a majority of the members of the Board of Directors or upon the affirmative vote, verified in writing, of the holders of fifty-one percent (51%) of the outstanding shares entitled to vote. Written notice of a Special Meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called shall be given not less than ten nor more than sixty days before the date of the meeting to each stockholder entitled to vote at such meeting.
SECTION 4. QUORUM. Except as otherwise provided by law or by the Corporation's Certificate of Incorporation, as amended (the "Certificate of Incorporation") the holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.
SECTION 5. VOTING. Unless otherwise required by law, the Certificate of Incorporation or these Bylaws, any question brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the stock represented and entitled to vote thereat. Each holder of Class A Common Stock represented at a meeting of stockholders shall be entitled to cast one vote for each share of Class A Common Stock entitled to vote thereat held by such stockholder. Each holder of Class B Common Stock represented at a meeting of stockholders shall be entitled to cast ten votes for each share of Class B Common Stock entitled to vote thereat held by such stockholder. Such votes may be cast in person or by proxy but no proxy shall be voted on or after three years from its date, unless such proxy provides for a longer period. The Board of Directors, in its discretion, or the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes cast at such meeting shall be cast by written ballot.
SECTION 6. CONSENT OF STOCKHOLDERS IN LIEU OF MEETING. Unless otherwise provided in the Certificate of Incorporation, any action required or permitted to be taken at any Annual or Special Meeting of Stockholders of the Corporation, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Such written consent shall be deemed effective upon receipt by the Secretary of the Corporation of a copy of such written consent executed by each stockholder of record by facsimile, telex, telegram or cable. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.
SECTION 7. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer of the Corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meetings arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder of the Corporation who is present.
SECTION 8. STOCK LEDGER. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by Section 7 of this Article II or the books of the Corporation, or, to vote in person or by proxy at any meeting of stockholders.
ARTICLE III
DIRECTORS
SECTION 1. NUMBER AND ELECTION OF DIRECTORS. The Board of Directors shall consist of not less than three and not more than nine members (at least two of which shall be independent directors), as such number shall be established from time to time by resolution of the Board of Directors. Except as provided in Section 2 of this Article, directors shall be elected by a majority of the votes cast at Annual Meetings of Stockholders, and each director so elected shall hold office until the next Annual Meeting and until his successor is duly elected and qualified, or until his earlier resignation or removal. Any director may resign at any time upon notice to the Corporation. Directors need not be stockholders.
SECTION 2. REMOVAL AND VACANCIES. At any time, the stockholders may remove any director or the entire Board of Directors and elect directors to fill the vacancies created by such removal, unless otherwise provided by law. A director may be so removed, with or without cause, at any time.
In the event that a vacancy is created on the Board of Directors at any time, if not filled by the Board of Directors, the stockholders shall meet or act by consent as promptly as practicable, and in any event within twenty (20) days of the occurrence of such vacancy, for the purpose of electing a new director.
SECTION 3. DUTIES AND POWERS. The business, operations and affairs of the Corporation shall be managed by the Board of Directors; provided, however, that the Board of Directors may delegate such management responsibilities to such officer(s) as it may appoint to the extent permitted by the Certificate of Incorporation, these Bylaws and the laws of the State of Delaware.
SECTION 4. MEETINGS. The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware. Regular meetings of the Board of Directors may be held without notice at such time and at such place as may from time to time be determined by the Board of Directors. Any one or more members of the Board of Directors, or the stockholders, acting by a majority vote, may call a meeting of the Board of Directors or require action by consent for the Directors, including a meeting by written consent, at any time. Notice thereof stating the place, date and hour of the meeting shall be given to each director either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone or telegram on twenty-four (24) hours' notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate in the circumstances.
SECTION 5. QUORUM. Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these Bylaws, at all meetings of the Board of Directors, a majority of the entire Board of Directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board of Directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
SECTION 6. ACTIONS OF BOARD. Unless otherwise provided by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all the members of the Board of Directors or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors or committee. Such written consent shall be deemed effective upon receipt by the Secretary of the Corporation of a copy of such written consent by facsimile, telex, telegram or cable executed by each director.
SECTION 7. MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Unless otherwise provided by the Certificate of Incorporation or these Bylaws, members of the Board of Directors of the Corporation, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors or such committee by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this Section 7 shall constitute presence in person at such meeting.
SECTION 8. COMMITTEES. The Board of Directors may, by resolution passed by a majority of the entire Board of Directors, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of any such committee. In the absence or disqualification of a member of a committee, and in the absence of a designation by the Board of Directors of an alternate member to replace the absent or disqualified member, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any absent or disqualified member. Any committee, to the extent allowed by law and provided in the resolution establishing such committee, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the Corporation. Each committee shall keep regular minutes and report to the Board of Directors when required.
SECTION 9. COMPENSATION. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may, in the case of non-employee directors, receive such compensation as the Board of Directors determines for attendance at each meeting of the Board of Directors. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.
SECTION 10. INTERESTED DIRECTORS. No contract or transaction between the Corporation and one or more of its directors or officers, or between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose if (i) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative vote of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by a majority vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
OFFICERS
SECTION 1. GENERAL. The officers of the Corporation shall be elected by the Board of Directors and shall be a Chairman of the Board, a Chief Executive Officer, a President, a Chief Operating Officer, a Secretary and a Treasurer. The Board of Directors, in its discretion, may also choose one or more Executive Vice-Presidents, Vice-Presidents, Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of
Incorporation or these Bylaws. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chairman of the Board of Directors, need such officers be directors of the Corporation.
SECTION 2. ELECTION. The Board of Directors at its first meeting held after each Annual Meeting of Stockholders shall elect the officers of the Corporation who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen and qualified, or until their earlier resignation or removal. Any officer elected by the Board of Directors may be removed in accordance with the terms of the employment agreement with such officer, and if no such agreement exists, then at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries of all officers of the Corporation shall be fixed by the Board of Directors.
SECTION 3. VOTING SECURITIES OWNED BY THE CORPORATION. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer or any Vice-President, as the case may be, and any such officer may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities and at any such meeting shall possess and may exercise any and all rights and powers incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of Directors may, by resolution, from time to time confer like powers upon any other person or persons.
SECTION 4. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of the Board shall preside at all meetings of the stockholders and of the Board of Directors. Except where by law the signature of the President is required, the Chairman of the Board of Directors shall possess the same power as the President to sign all Contracts, certificates and other instruments of the Corporation which may be authorized by the Board of Directors.
SECTION 5. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall be the chief executive officer of the Corporation. He shall have general and active management responsibility for the business of the Corporation and shall be responsible for carrying out the orders and resolutions of the Board of Directors of the Corporation. In addition, he shall have such powers and perform such duties as are prescribed by the Board of Directors. Subject to the control and direction of the Board of Directors, the Chief Executive Officer may enter into any contract or execute and deliver any instrument in the name and on behalf of the Corporation. In general, he shall make reports to the Board of Directors and stockholder and shall perform any and all other duties incident to the office of Chief Executive Officer, as herein defined, and all such other duties as from time to time may be assigned to him by the Board of Directors. During the absence or disability of the Chairman of the Board, the Chief Executive Officer shall exercise all the powers and discharge all the duties of the Chairman of the Board (providing that the Chief Executive Officer is a member of the Board of Directors).
SECTION 6. PRESIDENT. The President shall have general supervision of the affairs of the Corporation, shall sign or countersign all certificates, contracts or other instruments of the Corporation as authorized by the Board of Directors, shall make reports to the Board of Directors and stockholders and shall perform any and all other duties as are incident to the office of President or are properly assigned to him by the Board of Directors or
the Chief Executive Officer. During the absence or disability of the Chief Executive Officer, the President shall exercise all the powers and discharge all the duties of the Chief Executive Officer. The President shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these Bylaws, the Board of Directors or the Chief Executive Officer.
SECTION 7. CHIEF OPERATING OFFICER. The Chief Operating Officer shall perform such duties and have such powers as the Board of Directors, the Chief Executive Officer or the President may prescribe. If there is no Chief Executive Officer, then at the request of the President or in his absence or in the event of the President's inability or refusal to act, the Chief Operating Officer shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President. If there is no Chief Executive Officer, President, Chief Operating Officer or Vice-President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President.
SECTION 8. EXECUTIVE VICE-PRESIDENTS; VICE-PRESIDENTS. Each Executive Vice- President and/or Vice-President shall perform such duties and have such powers as the Board of Directors, the Chief Executive Officer, the President or the Chief Operating Officer may prescribe. If there is no Chief Executive Officer or President, then at the request of the Chief Operating Officer or in his absence or in the event of the Chief Operating Officer's inability or refusal to act, the Executive Vice-President or the Vice-President, as the case may be, or the Executive Vice-Presidents or the Vice-Presidents, as the case may be, if there is more than one (in the order designated by the Board of Directors) shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the
President. If there is no Chief Executive Officer, President, Chief Operating Officer, Executive Vice-President or Vice-President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the President or in the event of the inability or refusal of the President to act, shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions upon the President.
SECTION 9. SECRETARY. The Secretary shall attend all meetings of the stockholders and record all the proceedings thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the Board of Directors and for standing committees when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or President, under whose supervision he shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of all meetings of the stockholders and special meetings of the Board of Directors, and if there be no Assistant Secretary, then either the Board of Directors or the Chief Executive Officer may choose another officer to cause such notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary, if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature. The Secretary shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed are properly kept or filed, as the case may be.
SECTION 10. TREASURER. The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors, the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, moneys and other property of whatever kind in his possession or under his control belonging to the Corporation.
SECTION 11. ASSISTANT SECRETARIES. Except as may be otherwise provided in these Bylaws, Assistant Secretaries, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, any Vice-President, if there be one, or the Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Secretary.
SECTION 12. ASSISTANT TREASURERS. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors, the Chairman of the Board, the Chief Executive Officer, the President, any Vice-President, if there be one, or the Treasurer, and in the absence of the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the Treasurer, and
when so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, moneys and other property of whatever kind in his possession or under his control belonging to the Corporation.
SECTION 13. OTHER OFFICERS. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation the power to choose such other officers and to prescribe their respective duties and powers.
ARTICLE V
STOCK
SECTION 1. FORM OF CERTIFICATES. Every holder of stock in the Corporation shall be entitled to have a certificate signed, in the name of the Corporation (i) by the Chairman of the Board of Directors, the Chief Executive Officer, the President or a Vice-President and (ii) by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the Corporation, certifying the number of shares owned by him in the Corporation.
SECTION 2. SIGNATURES. Where a certificate is countersigned by
(i) a transfer agent other than the Corporation or its employee, or (ii) a
registrar other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue.
SECTION 3. LOST CERTIFICATES. The Board of Directors may direct a new certificate to be issued in place of any certificate theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate, the Board of Directors may, in its discretion and as a condition precedent the issuance thereof, require the owner of such lost, stolen or destroyed certificate, or his legal representative, to advertise the same in such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed.
SECTION 4. TRANSFERS. Stock of the Corporation shall be transferable in the manner prescribed by law and in these Bylaws. Transfers of stock shall be made on the books of the Corporation only by the person named in the certificate or by his attorney lawfully constituted in writing and upon the surrender of the certificate therefor, which shall be cancelled before a new certificate shall be issued.
SECTION 5. RECORD DATE. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty days nor less than
ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 6. BENEFICIAL OWNERS. The Corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by law.
ARTICLE VI
NOTICES
SECTION 1. NOTICES. Whenever written notice is required by law, the Certificate of Incorporation or these Bylaws, to be given to any director, member of a committee or stockholder, such notice may be given by mail, addressed to such director, member of a committee or stockholder, at his address as it appears on the records of the Corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Written notice may also be given personally or by facsimile, telex, telegram or cable.
SECTION 2. WAIVERS OF NOTICE. Whenever any notice is required by law, the Certificate of Incorporation or these Bylaws to be given to any director, member of a committee or stockholder, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE VII
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Dividends upon the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, and may be paid in cash, in property, or in shares of the capital stock. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for any proper purpose, and the Board of Directors may modify or abolish any such reserve.
SECTION 2. DISBURSEMENTS. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate.
SECTION 3. FISCAL YEAR. The fiscal year of the Corporation shall be fixed by resolution of the Board of Directors.
SECTION 4. CORPORATE SEAL. The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization, and the words "Corporate Seal, Delaware". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
ARTICLE VIII
INDEMNIFICATION
SECTION 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS OTHER THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of
this Article VIII, the Corporation shall 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, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that he is or was a director 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, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of NOLO CONTENDERE or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.
SECTION 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS
BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 3 of this Article
VIII, the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he 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 against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation; 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 or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
SECTION 3. AUTHORIZATION OF INDEMNIFICATION. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to the action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director officer, employee or agent of the Corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding described in Sections 1 and 2 of this Article VIII, or in the defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith, without the necessity of authorization in the specific case.
SECTION 4. GOOD FAITH DEFINED. For purposes of any determination under Section 3 of this Article VIII, a person shall be deemed to have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to have had no reasonable cause to believe that his conduct was unlawful, if his action is based on the records or books of account of the Corporation or another enterprise, or on information supplied to him by the officers of the Corporation or another enterprise in the course of their duties, or on the advice of legal counsel for the Corporation or another enterprise or on information or records given or reports made to the Corporation or another enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or another enterprise. The term "another enterprise" as used in this Section 4 shall mean any other corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise of which such person is or was serving at the request of the Corporation as a director, officer, employee or agent. The provisions of this Section 4 shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be deemed to have met the applicable standard of conduct set forth in Section 1 or 2 of this Article VIII, as the case may be.
SECTION 5. INDEMNIFICATION BY A COURT. Notwithstanding any contrary determination in the specific case under Section 3 of this Article VIII, and notwithstanding the absence of any determination thereunder, any director, officer, employee or agent may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 1 and 2 of this Article VIII. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standards of conduct set forth
in Section 1 or 2 of this Article VIII, as the case may be. Neither a contrary determination in the specific case under Section 3 of this Article VIII nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director, officer, employee or agent seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 5 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director, officer, employee or agent seeking indemnification shall also be entitled to be paid the expenses of prosecuting such application.
SECTION 6. EXPENSES PAYABLE IN ADVANCE. Expenses (including attorneys' fees) incurred by a director or officer in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article VIII.
SECTION 7. NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The indemnification and advancement of expenses provided by or granted pursuant to this Article VIII shall not be deemed exclusive of any other rights to which an individual seeking indemnification or advancement of expenses may be entitled under any Bylaw, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (howsoever embodied) of any court of competent jurisdiction or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections 1 and 2 of this Article VIII shall be made to the fullest extent permitted by law. The provisions of this Article VIII shall not be deemed
to preclude the indemnification of any person who is not specified in Section 1 or 2 of this Article VIII but whom the Corporation has the power or obligation to indemnify under the provisions of the General Corporation Law of the State of Delaware or otherwise.
SECTION 8. INSURANCE. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent 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 against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power or the obligation to indemnify him against such liability under the provisions of this Article VIII.
SECTION 9. CERTAIN DEFINITIONS. For purposes of this Article VIII, references to "the Corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VIII, references to "fines" shall include any excise taxes assessed on a person with respect to an employee benefit plan and references to "serving at the request of the Corporation" shall
include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonable believed to be in the interests of the participants and the beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the Corporation" as referred to in this Article VIII.
SECTION 10. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such person.
SECTION 11. LIMITATION ON INDEMNIFICATION. Notwithstanding anything contained in this Article VIII to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 5 hereof) , the Corporation shall not be obligated to indemnify any director, officer, employee or agent in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of Directors of the Corporation.
SECTION 12. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The Corporation may, to the extent authorized from time to time by the Board of Directors, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
AMENDMENTS
SECTION 1. These Bylaws may be altered, amended or repealed, in whole or in part, or new Bylaws may be adopted by the stockholders or by the Board of Directors; provided, however, that notice of such alteration, amendment, repeal or adoption of new Bylaws be contained in the notice of such meeting of stockholders or Board of Directors, as the case may be. All such amendments must be approved by either the holders of a majority of the outstanding capital stock entitled to vote thereon or by a majority of the entire Board of Directors then in office.
SECTION 2. ENTIRE BOARD OF DIRECTORS. As used in this Article IX and in these Bylaws generally, the term "entire Board of Directors" means the total number of directors which the Corporation would have if there were no vacancies.
Exhibit 10.1
March 15, 2005
Jason Shrinsky
7792 Trieste Place
Delray Beach, FL 33446
Dear Jason Shrinsky:
Pursuant to the terms and
conditions of the Spanish Broadcasting System, Inc. 1999 Stock Option
Plan for NonEmployee Directors (the Plan), you have been
granted a Nonqualified Stock Option to purchase 50,000 shares
(the Option) of Class A common stock as outlined
below.
Granted To:
Jason Shrinsky
Grant Date:
March 7, 2005
Options Granted:
50,000
Option Price per Share:
$10.79
Total Cost to Exercise:
$539,500.00
Expiration Date:
March 7, 2015, unless
terminated earlier.
Vesting Schedule:
20% immediately, 20% each year as
follows:
10,000 on 03/07/2005
10,000 on 03/07/2006
10,000 on 03/07/2007
10,000 on 03/07/2008
10,000 on 03/07/2009
Transferability:
Not transferable except in
accordance with the Plan.
Spanish Broadcasting System, Inc. | ||
By: | /s/ Joseph A. García | |
Joseph A. García |
By my signature below, I hereby acknowledge receipt of this Option granted on the date shown above, which has been issued to me under the terms and conditions of the Plan. I further acknowledge receipt of a copy of the Plan and agree to conform to all of the terms and conditions of the Option and the Plan.
Signature: | /s/ Jason Shrinsky | Date: | 3/17/05 | |
Jason Shrinsky |
SBS TOWER | 2601 SOUTH BAYSHORE DRIVE, PENTHOUSE II COCONUT GROVE, FLORIDA 33133 | TEL (305) 441-6901 | FAX (305) 446-5148 |
Exhibit 10.2
March 15, 2005
Joseph A. García
14021 SW 67 Ct.
Miami, FL 33158
Dear Joseph A. García:
Pursuant to the terms and
conditions of the Spanish Broadcasting System, Inc. 1999 Stock Option
Plan (the Plan), and/or your Employment Agreement, if
applicable, you have been granted a Nonqualified Stock Option, to
purchase 25,000 shares (the Option) of Class A
common stock as outlined below.
Granted To:
Joseph A. García
Grant Date:
March 7, 2005
Options Granted:
25,000
Option Price per Share:
$10.79
Total Cost to Exercise:
$269,750.00
Expiration Date:
March 7, 2015, unless
terminated earlier.
Vesting Schedule:
50% immediately, 50% first yr as
follows:
12,500 on 03/07/2005
12,500 on 03/07/2006
Transferability:
Not transferable except in
accordance with the Plan.
Spanish Broadcasting System, Inc. | ||
By: | /s/ Raúl Alarcón, Jr. | |
Raúl Alarcón, Jr. |
By my signature below, I hereby acknowledge receipt of this Option granted on the date shown above, which has been issued to me under the terms and conditions of the Plan. I further acknowledge receipt of a copy of the Plan and agree to conform to all of the terms and conditions of the Option and the Plan.
Signature: | /s/ Joseph A. García | Date: | 3/15/05 | |
Joseph A. García |
SBS TOWER | 2601 SOUTH BAYSHORE DRIVE, PENTHOUSE II COCONUT GROVE, FLORIDA 33133 | TEL (305) 441-6901 | FAX (305) 446-5148 |
Exhibit 31(i).1
CERTIFICATION
I, Raúl Alarcón, Jr., certify that:
1. I
have reviewed this quarterly report on Form 10-Q of Spanish Broadcasting System, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of operations
and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer and I are responsible for establishing and maintaining
disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and
internal control over financial reporting (as defined in Exchange Act Rules 13(a)-15(f)) for the
registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material information relating to
the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(b) Designed such internal controls over financial reporting, or caused such internal control
over financial reporting to be designed under our supervision to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the disclosure controls and
procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial
reporting that occured during the registrants most recent fiscal quarter that has materially
affected, or is reasonably likely to materially affect, the registrants internal control over
financial reporting;
5. The registrants other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the audit
committee of registrants board of directors (or persons performing the equivalent function):
(a) All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to adversely affect the
registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a
significant role in the registrants internal control over financial reporting.
Date: May 10, 2005
/s/ Raúl Alarcón, Jr.
Name:
Raúl Alarcón, Jr.
Title:
Chairman of the Board of Directors,
Chief Executive Officer and President
Exhibit 31(i).2
CERTIFICATION
I, Joseph A. García, certify that:
1. I
have reviewed this quarterly report on Form 10-Q of Spanish Broadcasting System, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements made, in light of the circumstances
under which such statements were made, not misleading with respect to the period covered by this
report;
3. Based on my knowledge, the financial statements, and other financial information included in
this report, fairly present in all material respects the financial condition, results of operations
and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrants other certifying officer and I are responsible for establishing and maintaining
disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and
internal control over financial reporting (as defined in Exchange Act Rules 13(a)-15(f)) for the
registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and
procedures to be designed under our supervision, to ensure that material information relating to
the registrant, including its consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is being prepared;
(b) Designed such internal controls over financial reporting, or caused such internal control
over financial reporting to be designed under our supervision to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of financial statements for
external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrants disclosure controls and procedures and
presented in this report our conclusions about the effectiveness of the disclosure controls and
procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrants internal control over financial
reporting that occured during the registrants most recent fiscal quarter that has materially
affected, or is reasonably likely to materially affect, the registrants internal control over
financial reporting;
5. The registrants other certifying officer and I have disclosed, based on our most recent
evaluation of internal control over financial reporting, to the registrants auditors and the audit
committee of registrants board of directors (or persons performing the equivalent function):
(a) All significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to adversely affect the
registrants ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a
significant role in the registrants internal control over financial reporting.
Date: May 10, 2005
/s/ Joseph A. García
Name:
Joseph A. García
Title:
Chief Financial Officer,
Executive Vice President and Secretary
Exhibit 32.1
CERTIFICATION PURSUANT TO
In
connection with the Quarterly Report on Form 10-Q of Spanish Broadcasting System, Inc. (the
Company) for the quarterly period ended March 31,
2005 as filed with the Securities and Exchange
Commission on the date hereof (the Report), I, Raúl Alarcón, Jr., Chairman of the Board of
Directors, President and Chief Executive Officer of the Company, certify, pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The
Report fully complies with the requirements of section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2) The
information contained in the Report fairly presents, in all material respects, the
financial condition and results of operations of the Company.
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
/s/ Raúl Alarcón, Jr.
Name:
Raúl Alarcón, Jr.
Title:
Chairman of the Board of Directors,
President and Chief Executive Officer
Date:
May 10, 2005
Exhibit 32.2
CERTIFICATION PURSUANT TO
In connection with the Quarterly Report on Form 10-Q of Spanish Broadcasting System, Inc. (the
Company) for the quarterly period ended March 31, 2005 as filed with the Securities and
Exchange Commission on the date hereof (the Report), I, Joseph A. García, Chief Financial
Officer, Executive Vice President and Secretary of the Company, certify, pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The
Report fully complies with the requirements of section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)); and
(2) The
information contained in the Report fairly presents, in all material respects, the
financial condition and results of operations of the Company.
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
/s/ Joseph A. García
Name:
Joseph A. García
Title:
Chief Financial Officer, Executive Vice
President and Secretary
Date:
May 10, 2005