-----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, MvJiSFr5XARD4unW5MJcNkV2desoD1nBLfTB/cEepPMXY77edSoSA3NwZWbMgY40 A8zFhqPC+52g06Z842zEMA== 0001010192-99-000086.txt : 19990917 0001010192-99-000086.hdr.sgml : 19990917 ACCESSION NUMBER: 0001010192-99-000086 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990916 EFFECTIVENESS DATE: 19990916 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: SEC FILE NUMBER: 333-87193 FILM NUMBER: 99712482 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 FORM S-8 As filed with the Securities and Exchange Commission on 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. 1999 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 Amount being maximum offering maximum being registered registered (**) price per aggregate offering Amount of share price registration fee - ---------------------- ----------------------- --------------------- ------------------- -------------------- - ---------------------- ----------------------- --------------------- ------------------- -------------------- Class A* Common Stock, $1.00 Par Value Per Share....... 250,000 $48.15 $12,037,500 $3,346.43 - ---------------------- ----------------------- --------------------- ------------------- --------------------
(*) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plan described herein. (**) 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. 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, 1998; (2) All other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since December 31, 1998; (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 indemnification that may be granted by a corporation's charter, by-laws, disinterested director vote, stockholder vote, agreement or otherwise. The -2- 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 The Exhibit Index is located on page 5 of this Registration Statement. The Exhibits are located on pages 6 through 8 of this Registration Statement. 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. -3- 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 6th day of September, 1999. COX RADIO, INC. By: /s/ Robert F. Neil ----------------------- Robert F. Neil President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Capacity Date --------- -------- ---- /s/ Nicholas D. Trigony Director and September 6, 1999 - ---------------------------- Chairman of the Board Nicholas D. Trigony /s/ Robert F. Neil Director, President and September 6, 1999 - ---------------------------- Chief Executive Officer Robert F. Neil /s/ Maritza C. Pichon Chief Financial Officer September 6, 1999 - ---------------------------- (Principal Financial Officer Martiza C. Pichon and Principal Accounting Officer) /s/ James C. Kennedy Director September 6, 1999 - --------------------------- James C. Kennedy /s/ David E. Easterly Director September 6, 1999 - --------------------------- David E. Easterly /s/ Marc W. Morgan Director September 9, 1999 - --------------------------- Marc W. Morgan
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 6th day of September, 1999. COX RADIO, INC. EMPLOYEE STOCK PURCHASE PLAN By: /s/ Maritza C. Pichon --------------------------- Maritza C. Pichon Chief Financial Officer Cox Radio, Inc. -4- EXHIBIT INDEX
Exhibit No. Exhibit Page No. - ----------- ------- -------- 5 Opinion of Dow, Lohnes & Albertson, PLLC 6 23.1 Consent of Deloitte & Touche LLP 8 23.2 Consent of Dow, Lohnes & Albertson, PLLC 6 (contained in their opinion in Exhibit 5)
-5- EX-5 2 OPINION OF DOW LOHNES EXHIBIT 5 [Firm Letterhead Appears Here] September 16, 1999 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 250,000 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. 1999 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. -6- Our opinion is limited to matters of law arising under the General Corporation Law of the State of Delaware and federal law of the United States of America, insofar as such laws apply, and we express no opinion as to conflicts of law rules, or the laws of any states or jurisdictions, including federal laws regulating securities, or the rules and regulations of stock exhanges 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 -7- EX-23.1 3 CONSENT OF DELOITTE & TOUCHE 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 8, 1999 (March 1, 1999 as to Note 16), appearing in the Annual Report on Form 10-K of Cox Radio, Inc. for the year ended December 31, 1998. /s/ Deloitte & Touche LLP - ------------------------- DELOITTE & TOUCHE LLP Atlanta, Georgia September 15, 1999 -8- -----END PRIVACY-ENHANCED MESSAGE-----