SC TO-T/A 1 w73863a7sctovtza.htm SC TO-T/A sctovtza
 
 
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
SCHEDULE TO/A
(Amendment No. 7)
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1)
OR SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
 
COX RADIO, INC.
(Name of Subject Company (Issuer))
COX ENTERPRISES, INC.
COX MEDIA GROUP, INC.
(Names of Filing Persons (Offerors))
 
CLASS A COMMON STOCK, PAR VALUE $0.33 PER SHARE
(Title of Class of Securities)
 
224051102
(CUSIP Number of Class of Securities)
 
Andrew A. Merdek, Esq.
Cox Enterprises, Inc.
6205 Peachtree Dunwoody Road
Atlanta, Georgia 30328
Telephone: (678) 645-0000
(Name, address and telephone number of
person authorized to receive notices
and communications on behalf of filing persons)
Copy to:
     
Stuart A. Sheldon, Esq.
Thomas D. Twedt, Esq.
Dow Lohnes PLLC
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Telephone: (202) 776-2000 		  Jay M. Tannon, Esq.
Frank M. Conner III, Esq.
Michael P. Reed, Esq.
DLA Piper US LLP
500 8th Street
Washington, DC 20004
(202) 799-4000
     
CALCULATION OF FILING FEE
Transaction Valuation(1): $65,237,321   Amount of Filing Fee(2): $3,641
 
(1)   Estimated solely for the purpose of calculating the amount of the filing fee in accordance with the Securities Exchange Act of 1934 based on the product of (i) $3.80 (i.e., the tender offer price) and (ii) 17,167,716, the estimated maximum number of shares of Class A common stock, par value $0.33 per share, of Cox Radio, Inc. Such number of Shares represents the 20,759,670 Shares outstanding as of March 17, 2009, less the 3,591,954 Shares already beneficially owned by Cox Enterprises, Inc.
 
(2)   The amount of the filing fee calculated in accordance with the Securities Exchange Act of 1934 equals $55.80 for each $1,000,000 of value. The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934 and Fee Rate Advisory #5 for Fiscal Year 2009, issued March 11, 2009.
þ Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
         
 
  Amount previously paid:   $3,641
 
  Filing Party:   Cox Enterprises, Inc. and Cox Media Group, Inc.
 
  Form or registration no.:   Schedule TO-T
 
  Date Filed:   March 23, 2009
o Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the statement relates:
þ third-party tender offer subject to Rule 14d-1.
o issuer tender offer subject to Rule 13e-4.
þ going-private transaction subject to Rule 13e-3.
o amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results of the tender offer: ¨
 
 

 

 

Explanatory Note
This Amendment No. 7 amends and supplements the Tender Offer Statement and Rule 13E-3 Transaction Statement filed under cover of Schedule TO on March 23, 2009 (as previously amended and supplemented, the “Schedule TO”), by Cox Enterprises, Inc., a Delaware corporation (“Enterprises”), and Cox Media Group, Inc., a Delaware corporation and a wholly-owned subsidiary of Enterprises (“Media”). The Schedule TO relates to the offer by Media to purchase all of the issued and outstanding shares of Class A common stock, par value $0.33 per share (the “Shares”), of Cox Radio, Inc., a Delaware corporation (the “Radio”), not owned by Media upon the terms and subject to the conditions set forth in the Offer to Purchase dated March 23, 2009 (the “Offer to Purchase”), and in the related Letter of Transmittal (which, together with any amendments or supplements from time to time thereto, collectively constitute the “Offer”).
All capitalized terms used in this Amendment No. 7 without definition have the meanings ascribed to them in the Schedule TO or the Offer to Purchase.
Item 13 of the Schedule TO, the information required by Schedule 13E-3, is being amended and supplemented by this Amendment No. 7 to incorporate disclosures relating to Radio. The items of the Schedule TO set forth below are hereby further amended and supplemented as follows:
Items 1 through 9, 11 and 13.
The information contained in the Solicitation/Recommendation Statement on Schedule 14D-9 (the “Schedule 14D-9”) originally filed by Radio with the Securities and Exchange Commission on April 3, 2009, as amended and supplemented by Amendment Nos. 1, 2 and 3, copies of which is attached hereto as Exhibit (a)(2)(A)(i) to (a)(2)(A)(iv), respectively, is incorporated by reference herein.
Item 12. Exhibits.
     
Exhibit No.   Description
(a)(1)(A)*
  Offer to Purchase, dated March 23, 2009.
 
    
(a)(1)(B)*
  Letter of Transmittal.
 
    
(a)(1)(C)*
  Notice of Guaranteed Delivery.
 
    
(a)(1)(D)*
  Letter from Citigroup Global Markets Inc. to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.
 
    
(a)(1)(E)*
  Letter to clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.
 
    
(a)(1)(F)*
  Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.
 
    
(a)(1)(G)*
  Summary Advertisement to be published on March 24, 2009.
 
    
(a)(1)(H)*
  Cox Enterprises, Inc. press release, dated March 23, 2009.
 
    
(a)(1)(I)*
  Letter to Board of Directors of Cox Radio, Inc., dated March 22, 2009 (incorporated by reference to Exhibit 7.02 to the Schedule 13D/A filed by Cox Enterprises, Inc., Cox Holdings, Inc., Cox Media Group, Inc. and the Dayton Cox Trust A on March 23, 2009).
 
    
(a)(1)(J)*
  Notice to Participants of Cox Radio, Inc. Employee Stock Purchase Plan to be mailed by Cox Enterprises to plan participants.
 
    
(a)(1)(K)*
  Email correspondence to employees of Cox Enterprises and Cox Radio from Cox Enterprises delivered on March 23, 2009.
 
    
(a)(1)(L)*
  Press release issued by Cox Enterprises, Inc. on April 20, 2009, entitled “Cox Enterprises, Inc. Extends Tender Offer for Cox Radio.”
 
    
(a)(1)(M)*
  Press release issued by Cox Enterprises on April 29, 2009, entitled “Cox Enterprises, Inc. to Increase Tender Offer Price for Cox Radio to $4.80 per Share and Extend Offer.”
 
    
(a)(1)(N)*
  Amended and Restated Offer to Purchase, dated April 29, 2009.
 
    
(a)(1)(O)*
  Amended and Restated Letter of Transmittal.
 
    
(a)(1)(P)*
  Amended and Restated Notice of Guaranteed Delivery.
 
    
(a)(1)(Q)*
  Amended and Restated Letter from Citigroup Global Markets Inc. to Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.
 
    
(a)(1)(R)*
  Amended and Restated Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and Nominees.
 
    
(a)(2)(A)(i)*
  Solicitation/Recommendation Statement on Schedule 14D-9 filed by Cox Radio, dated and filed on April 3, 2009.
 
    
(a)(2)(A)(ii)*
  Solicitation/Recommendation Statement (Amendment No. 1) on Schedule 14D-9 filed by Cox Radio, dated and filed on April 20, 2009.
 
    
(a)(2)(A)(iii)*
  Solicitation/Recommendation Statement (Amendment No. 2) on Schedule 14D-9 filed by Cox Radio, dated and filed on April 30, 2009.
 
    
(a)(2)(A)(iv)
  Solicitation/Recommendation Statement (Amendment No. 3) on Schedule 14D-9 filed by Cox Radio, dated and filed on May 1, 2009.

 

 

     
Exhibit No.   Description
(a)(2)(B)
  Letter, dated April 3, 2009, from the Special Committee of Cox Radio to Cox Radio’s stockholders (incorporated by reference to Exhibit (a)(2)(A) to the Schedule 14D-9 filed by Cox Radio on April 3, 2009).
 
    
(a)(2)(C)
  Press release issued by Cox Radio on April 3, 2009, entitled “Cox Radio, Inc. Issues Response/Recommendation Statement Regarding Tender Offer of Cox Enterprises, Inc.” (incorporated by reference to Exhibit (a)(2)(B) to the Schedule 14D-9 filed by Cox Radio on April 3, 2009).
 
    
(a)(2)(D)
  Press release issued by Cox Radio on April 1, 2009, entitled “Cox Radio, Inc. Forms Special Committee to Evaluate Cox Media’s Tender Offer” (incorporated by reference to Exhibit (a)(2)(C) to the Schedule 14D-9 filed by Cox Radio on April 3, 2009).
 
    
(a)(5)(A)
  George Leon v. Cox Radio, Inc., et al., Case No. 4461, Delaware Chancery Court (filed March 27, 2009) (incorporated by reference to Exhibit (a)(5)(D) to the Schedule 14D-9 filed by Cox Radio on April 3, 2009).
 
    
(a)(5)(B)
  Coral Springs Police Pension Fund v. Cox Radio, Inc., et al., Case No. 4463, Delaware Chancery Court (filed March 30, 2009) (incorporated by reference to Exhibit (a)(5)(E) to the Schedule 14D-9 filed by Cox Radio on April 3, 2009).
 
    
(a)(5)(C)
  Ruthellen Miller v. Cox Radio, Inc., et al., Case No. 09A 029219, Superior Court of Gwinnett County (filed March 30, 2009) (incorporated by reference to Exhibit (a)(5)(F) to the Schedule 14D-9 filed by Cox Radio on April 3, 2009).
 
    
(a)(5)(D)*
  In re Cox Radio, Inc. Shareholders Litigation, Case No. 4461-VCP, Delaware Chancery Court (filed April 7, 2009).
 
    
(a)(5)(E)*
  Ruthellen Miller v. James C. Kennedy, et al., Case No. 09-A-02921-9, Superior Court of Gwinnett County (filed April 8, 2009).
 
    
(a)(5)(F)*
  Donald Dixon v. James C. Kennedy, et al., Case No. 1:09-CV-0938-JEC, U.S. District Court Northern District of Georgia, Atlanta Division (filed April 15, 2009).
 
    
(a)(5)(G)*
  Unanimous Written Consent of the Board of Directors of Cox Radio, Inc. dated March 31, 2009.
 
    
(a)(5)(H)*
  Unanimous Written Consent of the Board of Directors of Cox Radio, Inc. dated April 19, 2009.
 
    
(a)(5)(I)*
  Memorandum of Understanding, dated April 29, 2009.
 
    
(a)(5)(J)
  Letter, dated May 1, 2009, from the Special Committee to Cox Radio’s stockholders (incorporated by reference to Exhibit (a)(2)(F) to the Schedule 14D-9/A filed by Cox Radio on May 1, 2009).
 
    
(b)(1)*
  Credit Agreement, dated as of July 26, 2006, by and among Cox Enterprises, Inc., the lenders party thereto, JP Morgan Chase Bank, N.A., as administrative agent, Citibank, N.A. and Wachovia Capital Markets, LLC, as syndication agents, Lehman Brothers Inc. and The Bank of Tokyo-Mitsubishi UFJ, LTD, New York Branch, as documentation agents, and JP Morgan Securities, Inc., Citigroup Global Markets, Inc. and Wachovia Capital Markets, LLC as joint lead arrangers and joint bookrunners (incorporated by reference to Exhibit 7.03 to the Schedule 13D/A filed by Cox Enterprises, Inc., Cox Holdings, Inc., Cox Media Group, Inc. and the Dayton Cox Trust A on March 23, 2009).
 
    
(b)(2)*
  First Commitment Increase Amendment to Credit Agreement, dated as of September 28, 2007 (incorporated by reference to Exhibit 7.04 to the Schedule 13D/A filed by Cox Enterprises, Inc., Cox Holdings, Inc., Cox Media Group, Inc. and the Dayton Cox Trust A on March 23, 2009).
 
    
(b)(3)*
  Second Amendment and Limited Waiver to Credit Agreement, dated as of December 29, 2008 (incorporated by reference to Exhibit 7.05 to the Schedule 13D/A filed by Cox Enterprises, Inc., Cox Holdings, Inc., Cox Media Group, Inc. and the Dayton Cox Trust A on March 23, 2009).
 
    
(c)(1)*
  Materials presented by Citigroup Global Markets Inc. to the senior management of Cox Enterprises, Inc. on March 16, 2009.
 
    
(c)(2)*
  Materials presented by Citigroup Global Markets Inc. to the Board of Directors of Cox Enterprises, Inc. on March 22, 2009.
 
    
(c)(3)*
  Materials presented by senior management of Cox Enterprises, Inc. and Cox Media Group, Inc. to the Boards of Directors of Cox Enterprises, Inc. and Cox Media Group, Inc. on March 22, 2009.
 
    
(c)(4)
  Opinion of Gleacher (incorporated by reference to Exhibit (a)(5)(C) to the Schedule 14D-9 filed by Cox Radio on April 3, 2009).
 
    
(c)(5)*
  Appraisal of Cox Radio, Inc. as of December 31, 2007 by John Morton, Paul Ravaris and Associates.
 
    
(c)(6)*
  Appraisal of Cox Radio, Inc. as of December 31, 2007 by Duff & Phelps.
 
    
(c)(7)*
  Appraisal of Cox Radio, Inc. as of December 31, 2007 by Bond & Pecaro.
 
    
(c)(8)*
  Valuation of Cox Radio, Inc.’s radio stations as of December 31, 2008 by Bond & Pecaro for purposes of impairment testing pursuant to SFAS No. 142.
 
    
(c)(9)*
  Valuation of Cox Radio, Inc.’s FCC licenses as of December 31, 2008 by Bond & Pecaro for purposes of impairment testing pursuant to SFAS No. 142.
 
    
(c)(10)*
  Valuation of Cox Radio, Inc. as of December 31, 2007 by Valuation Research Corporation.
 
    
(c)(11)*
  Materials presented by Citigroup Global Markets Inc. to the financial advisors of the special committee of Cox Radio, Inc. on April 24, 2009.
 
    
(d)
  None.
 
    
(e)*
  Promissory Note, dated December 4, 2003, filed with Cox Radio’s Annual Report on Form 10-K for the year ended December 31, 2008 (incorporated by reference to Exhibit (e)(1) to the Schedule 14D-9 filed by Cox Radio on April 3, 2009).
 
    
(f)*
  Section 262 of the Delaware General Corporation Law (included as Schedule C of the Offer to Purchase filed with the Schedule TO on March 23, 2009 as Exhibit (a)(1)(A)).
 
    
(g)
  None.
 
    
(h)
  None.
 
*   Previously filed.

 

 

SIGNATURES
After due inquiry and to the best knowledge of the undersigned, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.
AMENDMENT TO SCHEDULE TO AND SCHEDULE 13E-3
         
  COX ENTERPRISES, INC.
 		  
  /s/ John M. Dyer    
  John M. Dyer   
  Executive Vice President and Chief Financial Officer   
 
  COX MEDIA GROUP, INC.
 		  
  /s/ Neil O. Johnston    
  Neil O. Johnston   
  Vice President and Chief Financial Officer   
 
Date: May 1, 2009

 

 

SIGNATURES
After due inquiry and to the best knowledge of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct.
AMENDMENT TO SCHEDULE 13E-3
         
  COX RADIO, INC.
 		  
  /s/ Charles L. Odom    
  Charles L. Odom   
  Chief Financial Officer   
 
Date: May 1, 2009

 

 

EXHIBIT INDEX
     
Exhibit No.   Description
(a)(2)(A)(iv)
  Solicitation/Recommendation Statement (Amendment No. 3) on Schedule 14D-9 filed by Cox Radio, dated and filed on May 1, 2009.