-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, J/PH9ZM6xQp9x+fpQYFABXhmhuuQYJAMrRIOyzQZqnRYAVwATMsV3lc/T+mcwUKN UrEXtjGgYJSrhAF2FxB5pQ== 0000950144-97-005045.txt : 19970505 0000950144-97-005045.hdr.sgml : 19970505 ACCESSION NUMBER: 0000950144-97-005045 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19970502 EFFECTIVENESS DATE: 19970502 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: COX RADIO INC CENTRAL INDEX KEY: 0001018522 STANDARD INDUSTRIAL CLASSIFICATION: RADIO BROADCASTING STATIONS [4832] IRS NUMBER: 581620022 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-26417 FILM NUMBER: 97594722 BUSINESS ADDRESS: STREET 1: C/O COX ENTERPRISES INC STREET 2: 1400 LAKE HEARN DR CITY: ATLANTA STATE: GA ZIP: 30319 BUSINESS PHONE: 4048435000 MAIL ADDRESS: STREET 1: C/O COX ENTERPRISES INC STREET 2: 1400 LAKE HEARN DR CITY: ATLANTA STATE: GA ZIP: 30319 S-8 1 COX RADIO, INC. 1 As filed with the Securities and Exchange Commission on May 2, 1997 Registration No. 333- =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------- COX RADIO, INC. (Exact name of registrant as specified in its charter) DELAWARE 58-1620022 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 1400 LAKE HEARN DRIVE 30319 ATLANTA, GEORGIA (Zip Code) (Address of Principal Executive Offices) ------------------- COX RADIO, INC. EMPLOYEE STOCK PURCHASE PLAN (Full title of plan) ------------------- DOW, LOHNES & ALBERTSON, PLLC Counsel 1200 New Hampshire Avenue, N.W. Suite 800 Washington, D.C. 20036 (Name and address of agent for service) ------------------- Telephone number of agent for service: (202) 776-2000 ------------------- CALCULATION OF REGISTRATION FEE
============================================================================================================================== Proposed Proposed Title of security maximum offering maximum being registered Amount being price per aggregate offering Amount of registered (**) share (***) price registration fee - ------------------------------------------------------------------------------------------------------------------------------ Class A* Common Stock, $1.00 Par Value Per Share....... 350,000 $ 20.13 $ 7,045,500 $ 2,135 ==============================================================================================================================
(*) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an inderminate amount of interests to be offered or sold pursuant to the Plan. (**) Plus an indeterminate number of additional shares which may be offered and issued in accordance with the Plan terms to prevent dilution from stock splits, stock dividends or similar transactions. (***) The maximum offering price per share is calculated pursuant to Rule 457(c), (h) using the average high and low prices of the security as of April 28, 1997 as reported on the New York Stock Exchange. =============================================================================== 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE Cox Radio, Inc. (the "Company") hereby incorporates, or will be deemed to have incorporated, herein by reference the following documents: (1) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996. (2) The Company's Current Report on Form 8-K filed on April 14, 1997. (3) The description of the Company's Class A Common Stock contained in the Company's most recent Exchange Act registration statement on Form 8-A, effective September 26, 1996 (SEC File No. 001-12187), including any amendment thereto or report filed for the purpose of updating such description; and (4) All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold. INDEMNIFICATION OF OFFICERS AND DIRECTORS Reference is made to Section 102(b)(7) of the Delaware General Corporation Law (the "DGCL"), which enables a corporation in its original certificate of incorporation or an amendment thereto to eliminate or limit the personal liability of a director for violations of the director's fiduciary duty, except (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the DGCL (providing for liability of directors for unlawful payment of dividends or unlawful stock purchases or redemptions), or (iv) for any transaction from which a director derived an improper personal benefit. The Company's Amended Certificate of Incorporation contains a provision which eliminates the liability of directors to the extent permitted by Section 102(b)(7) of the DGCL. Reference is made to Section 145 of the DGCL, which provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporations (a "derivative action")), if they acted in good faith and in a manner they 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 their conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys' fees) incurred in connection with the defense or settlement of such action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other 3 indemnification that may be granted by a corporation's charter, by-laws, disinterested director vote, stockholder vote, agreement or otherwise. The Amended Certificate of Incorporation of the Company provides that the Company shall indemnify its directors and officers to the fullest extent permitted by Delaware law and each director has signed an indemnification agreement to that effect. EXHIBITS *3.1 Amended and Restated Certificate and Incorporation of Cox Radio, Inc. *3.2 Amended and Restated Bylaws of Cox Radio, Inc. *4.1 Indenture between NewCity Communications, Inc. and Shawmut Bank Connecticut, National Association, as Trustee dated as of November 2, 1993, related to the 11 3/8% Notes due 2003 of NewCity Communications, Inc. *4.2 First Supplemental Indenture between NewCity Communications, Inc. and Shawmut Bank Connecticut, National Association, as Trustee, dated as of September 16, 1994, relating to the 11 3/8% Notes due 2003 of NewCity Communications, Inc. *4.3 Specimen of Class A Common Stock Certificate 5 Opinion of Dow, Lohnes & Albertson, PLLC 23.1 Consent of Deloitte & Touche LLP 23.2 Consent of Ernst & Young LLP 23.3 Consent of Dow, Lohnes & Albertson, PLLC (contained in their opinion in Exhibit 5) 99.1 Amended and Restated Cox Radio, Inc. Employee Stock Purchase Plan * Incorporated by reference to the corresponding exhibit of Cox Radio's Registration Statement on Forms S-1, as amended, (File No. 333-08737). UNDERTAKINGS (a) The undersigned Registrant hereby undertakes: (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; (2) that, for the purpose of determining any liability under the Securities Act, each such post effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's Annual Report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Atlanta, State of Georgia on the 29 day of April 1997. COX RADIO, INC. By: /s/ Robert F.Neil ------------------------------------ Robert F. Neil President and Chief Executive Officer
Signature Capacity Date --------- -------- ---- /s/ Nicholas D. Trigony Director and April 29, 1997 - --------------------------------------------- Chairman of the Board Nicholas D. Trigony /s/ Robert F. Neil Director, President and April 29, 1997 - --------------------------------------------- Chief Executive Officer Robert F. Neil /s/ Maritza C. Pichon Chief Financial Officer April 29, 1997 - --------------------------------------------- (Principal Financial Officer Maritza C. Pichon and Principal Accounting Officer) /s/ James C. Kennedy Director April 29, 1997 - --------------------------------------------- James C. Kennedy /s/ David E. Easterly Director April 29, 1997 - --------------------------------------------- David E. Easterly
5 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Plan Administrators have duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Atlanta, State of Georgia on the 29th day of April, 1997. COX RADIO, INC. EMPLOYEE STOCK PURCHASE PLAN By: /s/ Maritza C. Pichon ------------------------------------ Maritza C. Pichon Chief Financial Officer Cox Communications, Inc. 6 EXHIBIT INDEX
Exhibit No. Exhibit ----------- ------- *3.1 Amended and Restated Certificate and Incorporation of Cox Radio, Inc. *3.2 Amended and Restated Bylaws of Cox Radio, Inc. *4.1 Indenture between NewCity Communications, Inc. and Shawmut Bank Connecticut, National Association, as Trustee, dated as of November 2, 1993, related to the 11 3/8% Notes due 2003 of NewCity Communications, Inc. *4.2 First Supplemental Indenture between NewCity Communications, Inc. and Shawmut Bank Connecticut, National Association, as Trustee, dated as of September 16, 1994, relating to the 11 3/8% Notes due 2003 of NewCity Communications, Inc. *4.3 Specimen of Class A Common Stock Certificate 5 Opinion of Dow, Lohnes & Albertson, PLLC 23.1 Consent of Deloitte & Touche LLP 23.2 Consent of Ernst & Young LLP 23.3 Consent of Dow, Lohnes & Albertson, PLLC (contained in their opinion in Exhibit 5) 99.1 Amended and Restated Cox Radio, Inc. Employee Stock Purchase Plan
* Incorporated by reference to the corresponding exhibit of Cox Radio's Registration Statement on Forms S-1, as amended, (File No. 333-08737). EX-5 2 OPINION OF DOW LOHNES 1 Exhibit 5 [Firm Letterhead Appears Here] May 1, 1997 Cox Radio, Inc. 1400 Lake Hearn Drive Atlanta, Georgia 30319 Re: Registration Statement on Form S-8 Gentlemen: We have acted as special counsel for Cox Radio, Inc., a Delaware corporation ("Cox"), in connection with the preparation of the Registration Statement on Form S-8 (the "Registration Statement") pertaining to 350,000 shares (the "Shares") of Cox Class A Common Stock $1.00 par value per share, being issued by Cox pursuant to the Cox Radio, Inc. Employee Stock Purchase Plan (the "Plan") and an indeterminate number of interests in the Plan (the "Interests") that may be acquired thereunder. In preparing this opinion we have reviewed (a) the Registration Statement; (b) Cox's Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws; (c) the Plan; and (d) certain records of Cox's corporate proceedings as reflected in its minute and stock books. As to matters of fact relevant to our opinion, we have relied upon oral representations of officers of Cox without further investigation. With respect to the foregoing documents, we have assumed: (i) the authenticity of all documents submitted to us as originals, the conformity with authentic original documents of all documents submitted to us as copies or forms, the genuineness of all signatures and the legal capacity of natural persons, and (ii) that the foregoing documents, in the forms thereof submitted for our review, have not been altered, amended or repealed in any respect material to our opinion as stated herein. We have not reviewed any documents other than the documents listed above for purposes of rendering our opinion as expressed herein, and we assume that there exists no provision of any such other document that bears upon or is inconsistent with our opinion as expressed herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein and the additional matters recited or assumed herein, all of which we assume to be true, complete and accurate in all material respects. 2 Cox Radio, Inc. May 1, 1997 Page 2 Our opinion is limited to matters of law arising under the General Corporation Law of the State of Delaware, insofar as such law applies, and we express no opinion as to conflicts of law rules or the laws of any states or jurisdictions, including federal laws regulating securities, other federal laws or the rules and regulations of stock exchanges or any other regulatory body, other than as specified above. Based upon and subject to the foregoing and any other qualifications stated herein, we are of the opinion that (i) the Shares, when and to the extent issued and paid for pursuant to the provisions of the Plan, will be validly issued, fully paid and non-assessable; and (ii) the Plan confers legally enforceable Interests to employees participating in the Plan to the extent and upon the terms and conditions described therein, subject to limitations imposed by bankruptcy, insolvency, reorganization, moratorium or similar laws and related court decisions of general applicability relating to or affecting creditors' rights generally. We hereby consent to the use of this opinion as Exhibit 5 to the Registration Statement and to all references to our firm in the Registration Statement, provided, that in giving such consent we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933 or the Rules and Regulations of the Securities Exchange Commission thereunder. Except as provided for hereinabove, without our prior written consent, this opinion may not be furnished or quoted to, or relied upon by, any other person or entity for any purpose. Very truly yours, DOW, LOHNES & ALBERTSON, PLLC By:/s/ Richard P. McHugh ------------------------------- Richard P. McHugh Member EX-23.1 3 CONSENT OF DELOITTE & TOUCHE 1 Exhibit 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Cox Radio, Inc. on Form S-8 of our report dated February 7, 1997, appearing in the Annual Report on Form 10-K of Cox Radio, Inc. for the year ended December 31, 1996. /s/ Deloitte & Touche LLP - ------------------------- DELOITTE & TOUCHE LLP Atlanta, Georgia April 30, 1997 EX-23.2 4 CONSENT OF ERNST & YOUNG 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8 dated May 2, 1997) pertaining to the Cox Radio, Inc. Employee Stock Purchase Plan of our report dated March 7, 1997, with respect to the consolidated financial statements of NewCity Communications, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 1996, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP --------------------- ERNST & YOUNG LLP Stamford, Connecticut May 2, 1997 EX-99.1 5 AMENDED & RESTATED EMPLOYEE S.O.P. 1 Exhibit 99.1 AMENDED AND RESTATED COX RADIO, INC. EMPLOYEE STOCK PURCHASE PLAN 1. Purpose of the Plan The purpose of the Cox Radio, Inc. Employee Stock Purchase Plan (the"Plan") is to provide a method by which eligible employees of Cox Radio, Inc. and its subsidiary corporations (the "Company") may purchase shares of Class A Common Stock of the Company ("Shares") by payroll deductions and at favorable prices. By this means, eligible employees will be given an opportunity to acquire an additional interest in the economic progress of the Company and a further incentive to promote the best interest of the Company. The Plan is intended to meet the requirements for an "employee stock purchase plan" under Section 423 of the Internal Revenue Code of 1986, as amended, (the "Code") and is to be interpreted and applied consistent with those requirements. The Plan was initially effective on September 25, 1996, and is hereby amended and restated effective as of that date. 2. Eligibility to Participate Any regular employee of the Company who has been employed by the Company as of December 1, 1996 is eligible to participate in the Plan. For this purpose, employment service with New City Communications, Inc. and its subsidiary corporations is counted under the Plan as employment with the Company. A "regular employee" means any employee regularly scheduled to work at least 20 hours per week, including any such person on an authorized leave of absence. Notwithstanding the foregoing, any employee who, after purchasing Shares under the Plan, would own 5 percent or more of the total combined voting power or value of all classes of stock of the Company or any parent corporation or subsidiary corporation thereof is not eligible to participate. Ownership of stock is determined in accordance with the provisions of Section 424(d) of the Code. For all Plan purposes, the terms "parent corporation" and "subsidiary corporation" have the meanings set forth in Sections 424(e) and (f) of the Code, respectively. 3. Number of Shares To Be Offered An aggregate 350,000 Shares will be offered for subscription under the Plan. 4. Purchase Price The purchase price per Share offered under this Plan will be 85 percent of the Fair Market Value of a Share determined as of the "Grant Date." "Fair Market Value" means the average of the high and low prices per Share as reflected by composite transactions on the national securities exchange on which the Shares are listed or as reported by the National Association of Securities Dealers on the date the Fair Market Value is being determined, or if 2 there are no transactions on that date, then the closing price for the preceding date upon which transactions occurred. "Grant Date" means the date, selected at the discretion of the Management Committee appointed by the Board of Directors of the Company (the "Committee") that Shares first will be offered to eligible employees for subscription. 5. Offering of Shares for Subscription Shares will be offered to eligible employees for subscription during the period beginning with the Grant Date and ending on the date 45 days thereafter (the "Subscription Period"). To subscribe, an eligible employee must complete, sign and deliver a subscription agreement to the Company no later than the last day of the Subscription Period. In the subscription agreement, the employee shall indicate the dollar amount of Shares for which the employee is subscribing to purchase (the "Subscription Amount"). 6. Method of Payment Payment of an employee's Subscription Amount will be made through payroll deductions, and an employee's participation in the Plan is contingent on the employee's providing the Company with written authorization to withhold payroll deductions. The Subscription Amount shall be withheld from the employee's pay in substantially equal installments each pay day during the 25 month period beginning on the first day of the month next following the close of the Subscription Period. Notwithstanding the foregoing, an employee may arrange to pay any installment due for any payroll period directly to the Company in the event the employee is on an authorized unpaid leave of absence during such payroll period. 7. Limit on Amount of Shares Subscribed Notwithstanding an employee's subscription agreement, the maximum amount that may be withheld from an employee's pay or otherwise paid to the Company for the purchase of Shares during the 25 month period referenced in Section 6 of the Plan shall not exceed $25,000. In the event of an oversubscription of Shares, each employee's subscription shall be reduced on a pro rata basis so that the total number of Shares subject to subscription does not exceed the maximum number of Shares authorized under Section 3 of the Plan. 8. Purchase of Shares Unless an employee previously has withdrawn from the Plan as provided in Section 9 or otherwise has had his or her participation terminated as provided in Section 11, a participating employee will be deemed to have exercised his or her right to purchase Shares as of the Purchase Date. The "Purchase Date" means the first day of the month next following the close of the 25 month period referenced in Section 6 of the Plan. The number of Shares purchased by the employee shall be equal to the whole number of Shares that may be purchased with the total amount of withheld payments made by the employee under the Plan that have not been refunded - 2 - 3 to the employee. Any amount remaining after the purchase of full Shares will be refunded to the employee. 9. Change in Participation and Withdrawal from Plan A participating employee may reduce his or her Subscription Amount at any time, but on a prospective basis only, by giving written notice to that effect to the Company. Such a reduction shall take effect as soon as is administratively feasible following the date as of which the Company is so notified. An employee may withdraw from the Plan and cancel his or her subscription at any time prior to the Purchase Date by giving written notice of cancellation to the Company. In such event, the employee may elect to have the entire amount he or she has paid to date applied to the purchase of whole Shares, with any remaining amount refunded in cash to the employee, or to have the entire amount paid to date refunded to the employee in cash. Should any installment be due and unpaid for 30 days (as in the case of an unpaid leave of absence) without satisfactory arrangement for the payment being made within such period, the subscription shall be automatically canceled, the amount previously paid shall be refunded to the employee in cash and the employee shall have no right to purchase Shares under the Plan. 10. Rights Not Transferable An employee's rights under the Plan belong to the employee alone and may not be transferred or assigned to any other person during the employee's lifetime. After Shares have been issued under the Plan, such Shares may be assigned or transferred the same as any other Shares. 11. Termination of Rights In the case of termination of employment, including retirement or death, the participating employee or his or her beneficiary may elect within 30 days after the happening of such event to (i) receive in cash the full amount paid by the employee, or (ii) have the amount paid applied to the purchase of full Shares with any remaining funds refunded in cash to the employee or to his or her beneficiary. A failure to make such election within such 30 day period will be treated as notice of cancellation and the full amount paid will be refunded in cash. Each employee shall be permitted to designate his or her beneficiary under this Section 11, which designation shall be made in writing on a form prepared by or satisfactory to the Company and shall be delivered to the Company. In the event an employee does not so designate a beneficiary, any election rights under this Section 11 otherwise subject to delegation to a beneficiary will be deemed delegated to the employee's estate. 12. Issuance of Shares As soon as is administratively feasible after the purchase of any Shares under the Plan, the employee will be issued a stock certificate for the number of Shares purchased. The Shares will be issued only in the name of the participating employee, or if directed by the - 3 - 4 employee, in the employee's name and in the name of one other person as tenants by the entireties or joint tenants with right of survivorship. 13. Application of Funds All funds held or received by the Company under this Plan may be used for any corporate purpose until applied to the purchase of Shares or refunded to employees and shall not be segregated from the general assets of the Company. 14. Administration The Plan shall be administered by the Committee. The Committee shall prescribe such rules as it deems necessary to administer the Plan and shall have the sole and discretionary authority to resolve any questions regarding the interpretation or application of the terms of the Plan. 15. Amendment or Discontinuance of Plan The Board of Directors of the Company shall have the right to amend, modify or terminate the Plan at any time without notice, provided that no employee's then existing rights are adversely affected without his or her consent, and provided further that any amendment of the Plan, except as is provided in Section 16 of the Plan, shall be subject to shareholder approval to the extent required by any Federal or state law or the rules of any stock exchange on which the Shares may be listed. 16. Adjustment of Subscriptions In the event of reorganization, recapitalization, stock split, stock dividend, merger, consolidation or any other change in the structure of Shares of the Common Stock of the Company, the Board of Directors of the Company may make such adjustment as it may deem appropriate in the number, kind and subscription price of Shares available for purchase under the Plan. - 4 - -----END PRIVACY-ENHANCED MESSAGE-----