<PAGE> 1
================================================================================
As filed with the Securities and Exchange Commission on October 2, 1996
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.
LONG-TERM INCENTIVE PLAN
(Full title of plan)
DOW, LOHNES & ALBERTSON
Counsel
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036-6802
(Name and address of agent for service)
Telephone number of agent for service:
(202) 776-2000
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
Proposed Proposed
maximum offering maximum
Title of security Amount being price per aggregate offering Amount of
being registered registered (*) share price registration fee
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A
Common Stock,
$1.00 Par Value
Per Share....... 2,400,000 $18.50 $44,400,000 $15,311
==============================================================================================================
</TABLE>
(*) 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.
================================================================================
<PAGE> 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 Prospectus filed pursuant to Rule 424(b) of the
Securities Act of 1933 which contains audited financial statements for the
fiscal year ended December 31, 1995.
(2) The description of the Company's Class A Common Stock
contained in the Company's most recent Exchange Act registration statement,
including any amendment thereto or report filed for the purpose of updating
such description; and
(3) 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 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.
<PAGE> 3
EXHIBITS
The Exhibit Index is located on page 5 of this Registration Statement.
The Exhibits are located on pages 6 through 14 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.
<PAGE> 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 27th day of
September, 1996.
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.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- --------- ----
<S> <C> <C>
/s/ Nicholas D. Trigony Chairman of the Board of September 27, 1996
- ------------------------------ Directors
Nicholas D. Trigony
/s/ Robert F. Neil Director, President and September 27, 1996
- ------------------------------ Chief Executive Officer
Robert F. Neil
/s/ Maritza C. Pichon Chief Financial Officer September 27, 1996
- ------------------------------ (Principal Financial
Maritza C. Pichon Officer and Principal
Accounting Officer)
/s/ James C. Kennedy Director September 27, 1996
- ------------------------------
James C. Kennedy
/s/ David E. Easterly Director September 27, 1996
- ------------------------------
David E. Easterly
</TABLE>
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Exhibit
----------- -------
<S> <C>
*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, relating to the
113/8% Notes due 2003 of NewCity Communications, Inc.
*4.2 First Supplemental Indenture between NewCity Communications, Inc. and Shawmut Bank
113/8% Notes due 2003 of NewCity Communications, Inc.
*4.3 Specimen of Class A Common Stock Certificate
5 Opinion of Dow, Lohnes & Albertson
23(i) Consent of Deloitte & Touche LLP
23(ii) Consent of Deloitte & Touche LLP
23(iii) Consent of Ernst & Young LLP, Independent Auditors
23(iv) Consent of Dow, Lohnes & Albertson
(contained in their opinion in Exhibit 5)
99.1 Cox Radio Inc. Long-Term Incentive Plan
</TABLE>
* Incorporated by reference to the corresponding exhibit of Cox Radio's
Registration Statement on Form S-1, as amended, (File No. 333-08737).
<PAGE> 1
EXHIBIT 5
October 2, 1996
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 2,400,000
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. Long-Term Incentive Plan
(the "Plan").
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
certificates 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.
<PAGE> 2
Cox Radio, Inc.
October 2, 1996
Page 2
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 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 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.
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 of the Firm
<PAGE> 1
EXHIBIT 23(i)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Cox Radio, Inc. on Form S-8 of our reports dated July 18, 1996
appearing in Amendment No. 3 to Registration Statement No. 333-08737 of Cox
Radio, Inc. on Form S-1.
/s/ Deloitte & Touche LLP
- -------------------------
Deloitte & Touche LLP
Atlanta, Georgia
October 1, 1996
<PAGE> 1
EXHIBIT 23(ii)
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration
Statement of Cox Radio, Inc. on Form S-8 of our report dated July 19, 1996
(relating to the financial statements of Infinity Holdings Corp. of Orlando),
appearing in the Prospectus, which is part of Amendment No. 3 to Registration
Statement No. 333-08737 of Cox Radio, Inc. on Form S-1.
/s/ Deloitte & Touche LLP
- -------------------------
Deloitte & Touche LLP
Atlanta, Georgia
October 1, 1996
<PAGE> 1
Exhibit 23(iii)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Cox Radio, Inc. Long-Term Incentive Plan of our
report dated March 1, 1996, with respect to the financial statements of NewCity
Communications, Inc. included in Amendment No. 3 to the Registration Statement
(Form S-1 No. 333-08737) and related Prospectus of Cox Radio, Inc.
/s/ Ernst & Young LLP
---------------------
ERNST & YOUNG LLP
Stamford, CT
September 30, 1996
<PAGE> 1
EXHIBIT 99.1
COX RADIO, INC.
LONG-TERM INCENTIVE PLAN
SECTION 1. PURPOSE. The purpose of this Long-Term Incentive Plan (the
"Plan") of Cox Radio, Inc. (the "Corporation") is (a) to promote the identity
of interests between shareholders and employees of the Corporation by
encouraging and creating significant ownership of Common Stock of the
Corporation by officers and other employees of the Corporation and its
subsidiaries; (b) to enable the Corporation to attract and retain qualified
officers and employees who contribute to the Corporation's success by their
ability, ingenuity and industry; and (c) to provide meaningful long-term
incentive opportunities for officers and other employees who are responsible
for the success of the Corporation and who are in a position to make
significant contributions toward its objectives.
SECTION 2. DEFINITIONS. In addition to the terms defined elsewhere in the
Plan, the following shall be defined terms under the Plan:
2.01. "Award" means any Performance Award, Option, Stock Appreciation
Right, Restricted Stock, Deferred Stock, Dividend Equivalent, or Other
Stock-Based Award, or any other right or interest relating to Shares or cash,
granted to a Participant under the Plan.
2.02. "Award Agreement" means any written agreement, contract or other
instrument or document evidencing an Award.
2.03. "Board" means the Board of Directors of the Corporation.
2.04. "Code" means the Internal Revenue Code of 1986, as amended from
time to time. References to any provision of the Code shall be deemed to
include successor provisions thereto and regulations thereunder.
2.05. "Committee" means the Board, or such committee designated by the
Board to administer the Plan, or any subcommittee of either.
2.06. "Corporation" is defined as Cox Radio, Inc. or any successor to it
in ownership of substantially all of its assets, whether by merger,
consolidation or otherwise.
2.07. "Covered Employee" has the same meaning as set forth in section
162(m) of the Code, and successor provisions.
2.08. "Deferred Stock" means a right, granted to a Participant under
Section 6.05, to receive Shares at the end of a specified deferral period.
2.09. "Dividend Equivalent" means a right, granted to a Participant under
Section 6.03, to receive cash, Shares, other Awards, or other property equal in
value to dividends paid with respect to a specified number of Shares.
2.10. "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time. References to any provision of the Exchange Act
shall be deemed to include successor provisions thereto and regulations
thereunder.
2.11. "Fair Market Value" means, with respect to Shares, Awards or other
property, the fair market value of such Shares, Awards or other property
determined by such methods or procedures as shall be established from time to
time by the Committee. Unless otherwise determined by the Committee, the Fair
<PAGE> 2
Market Value of Shares as of any date shall be the closing sales price on that
date of a Share as reported in the New York Stock Exchange Composite
Transaction Report; provided, that if there were no sales on the valuation date
but there were sales on dates within a reasonable period both before and after
the valuation date, the Fair Market Value is the weighted average of the
closing prices on the nearest date before and the nearest date after the
valuation date. The average is to be weighted inversely by the respective
numbers of trading days between the selling dates and the valuation date.
2.12. "Incentive Stock Option" means an Option that is intended to meet
the requirements of Section 422 of the Code.
2.13. "Non-Qualified Stock Option" means an Option that is not intended
to be an Incentive Stock Option.
2.14. "Option" means a right, granted to a Participant under Section
6.06, to purchase Shares, other Awards, or other property at a specified price
during specified time periods. An Option may be either an Incentive Stock
Option or a Non-Qualified Stock Option.
2.15. "Other Stock-Based Award" means a right, granted to a Participant
under Section 6.08, that relates to or is valued by reference to Shares.
2.16. "Participant" means a person who, as an officer or employee of the
Corporation or any Subsidiary, has been granted an Award under the Plan.
2.17. "Performance Award" means a right, granted to a Participant under
Section 6.02, to receive cash, Shares, other Awards, or other property the
payment of which is contingent upon achievement of performance goals specified
by the Committee.
2.18. "Performance-Based Restricted Stock" means Restricted Stock that is
subject to a risk of forfeiture if specified performance criteria are not met
within the restriction period.
2.19. "Plan" is the Cox Radio, Inc. Long-Term Incentive Plan.
2.20. "Restricted Stock" means Shares granted to a Participant under
Section 6.04, that are subject to certain restrictions and to a risk of
forfeiture.
2.21. "Rule 16b-3" means Rule 16b-3, as from time to time amended and
applicable to Participants, promulgated by the Securities and Exchange
Commission under Section 16 of the Exchange Act.
2.22. "Shares" means the Class A Common Stock of the Corporation and such
other securities of the Corporation as may be substituted for Shares or such
other securities pursuant to Section 10.
2.23. "Stock Appreciation Right" means a right, granted to a Participant
under Section 6.07, to be paid an amount measured by the appreciation in the
Fair Market Value of Shares from the date of grant to the date of exercise of
the right, with payment to be made in cash, Shares, other Awards, or other
property as specified in the Award or determined by the Committee.
2.24. "Subsidiary" means any corporation (other than the Corporation)
with respect to which the Corporation owns, directly or indirectly, 50% or more
of the total combined voting power of all classes of stock.
2.25. "Year" means a calendar year.
<PAGE> 3
SECTION 3. ADMINISTRATION.
3.01. Authority of the Committee. The Plan shall be administered by the
Committee. The Committee shall have full and final authority to take the
following actions, in each case subject to and consistent with the provisions
of the Plan:
(i) to select and designate Participants;
(ii) to determine the type or types of Awards to be granted to
each Participant;
(iii) to determine the number of Awards to be granted, the number
of Shares to which an Award will relate, the terms and conditions of any
Award granted under the Plan (including, but not limited to, any exercise
price, grant price, or purchase price, any restriction or condition, any
schedule for lapse of restrictions or conditions relating to
transferability or forfeiture, exercisability, or settlement of an Award,
and waivers or accelerations thereof, and waiver of performance
conditions relating to an Award, based in each case on such
considerations as the Committee shall determine), and all other matters
to be determined in connection with an Award;
(iv) to determine whether, to what extent, and under what
circumstances an Award may be settled, or the exercise price of an Award
may be paid, in cash, Shares, other Awards, or other property, or an
Award may be cancelled, forfeited or surrendered;
(v) to determine whether, to what extent, and under what
circumstances cash, Shares, other Awards, or other property payable with
respect to an Award will be deferred either automatically, at the
election of the Committee or at the election of the Participant;
(vi) to prescribe the form of each Award Agreement, which need not
be identical for each Participant;
(vii) to adopt, amend, suspend, waive and rescind such rules and
regulations and appoint such agents as the Committee may deem necessary
or advisable to administer the Plan;
(viii) to correct any defect or supply any omission or reconcile
any inconsistency in the Plan and to construe and interpret the Plan and
any Award, rules and regulations, Award Agreement or other instrument
hereunder; and
(ix) to make all other decisions and determinations as may be
required under the terms of the Plan or as the Committee may deem
necessary or advisable for the administration of the Plan.
3.02. Manner of Exercise of Committee Authority. Except to the extent
specifically reserved to another entity under the terms of the Plan or
applicable law, the Committee shall have sole discretion in exercising such
authority under the Plan. Any action of the Committee with respect to the Plan
shall be final, conclusive and binding on all persons, including the
Corporation, Subsidiaries, Participants, any person claiming any rights under
the Plan from or through any Participant and shareholders. The express grant of
any specific power to the Committee, and the taking of any action by the
Committee, shall not be construed as limiting any power or authority of the
Committee. A memorandum signed by all members of the Committee shall constitute
the act of the Committee without the necessity, in such event, to hold a
meeting. The Committee may delegate to officers or managers of the Corporation
or any Subsidiary the authority to perform administrative functions under the
Plan, subject to such terms as the Committee shall determine. Notwithstanding
any provisions of the Plan to the contrary, the Committee may delegate any or
all of its authority to select Participants, determine the type, amount and
terms of Awards and to exercise all other powers described in Section 3.01 to
any person or persons the Committee shall from time to time designate, but such
delegation of authority may be made only with respect to the selection under
the Plan for participation by and issuance of Awards to individuals who are not
officers or directors who could be exempt from Section 16 of the Exchange Act
under the provisions of Rule 16b-3.
<PAGE> 4
3.03. Limitation of Liability. Each member of the Committee shall be
entitled to, in good faith, rely or act upon any report or other information
furnished to him by any officer or other employee of the Corporation or any
Subsidiary, the Corporation's independent certified public accountants, or any
executive compensation consultant or other professional retained by the
Corporation to assist in the administration of the Plan. No member of the
Committee, nor any officer or employee of the Corporation acting on behalf of
the Committee, shall be personally liable for any action, determination, or
interpretation taken or made in good faith with respect to the Plan, and all
members of the Committee and any officer or employee of the Corporation acting
on their behalf, shall, to the extent permitted by law, be fully indemnified
and protected by the Corporation with respect to any such action,
determination, or interpretation.
SECTION 4. SHARES SUBJECT TO THE PLAN. Subject to adjustment as provided
in Section 10, the total number of Shares reserved and available for Awards
under the Plan shall be 2,400,000. For purposes of this Section 4, the number
of and time at which Shares shall be deemed to be subject to Awards and
therefore counted against the number of Shares reserved and available under the
Plan shall be the earliest date at which the Committee can reasonably estimate
the number of Shares to be distributed in settlement of an Award or with
respect to which payments will be made; provided, that, subject to the
requirements of Rule 16b-3, the Committee may adopt procedures for the counting
of Shares relating to any Award for which the number of Shares to be
distributed or with respect to which payment will be made cannot be fixed at
the date of grant to ensure appropriate counting, avoid double counting (in the
case of tandem or substitute awards), and provide for adjustments in any case
in which the number of Shares actually distributed or with respect to which
payments are actually made differs from the number of Shares previously counted
in connection with such Award.
If any Shares to which an Award relates are forfeited or the Award is
settled or terminates without a distribution of Shares (whether or not cash,
other Awards, or other property is distributed with respect to such Award), any
Shares counted against the number of Shares reserved and available under the
Plan with respect to such Award shall, to the extent of any such forfeiture,
settlement or termination, again be available for Awards under the Plan;
provided, that such Shares shall be available for issuance only to the extent
the issuance of such shares would be exempted under Rule 16b-3.
SECTION 5. ELIGIBILITY. Awards may be granted only to individuals who are
officers or other employees (including employees who are also directors) of the
Corporation or a Subsidiary.
SECTION 6. SPECIFIC TERMS OF AWARDS.
6.01. General. Awards may be granted on the terms and conditions set
forth in this Section 6. In addition, the Committee may impose on any Award or
the exercise thereof, at the date of grant or thereafter (subject to Section
11.02), such additional terms and conditions, not inconsistent with the
provisions of the Plan, as the Committee shall determine, including without
limitation the acceleration of vesting of any Awards or terms requiring
forfeiture of Awards in the event of termination of employment by the
Participant. Except as provided in Sections 7.03 or 7.04, only services may be
required as consideration for the grant of any Award.
6.02. Performance Awards. Subject to the provisions of Sections 7.01 and
7.02, the Committee is authorized to grant Performance Awards to Participants
on the following terms and conditions:
(i) Awards and Conditions. A Performance Award shall confer upon
the Participant rights, valued as determined by the Committee, and
payable to, or exercisable by, the Participant to whom the Performance
Award is granted, in whole or in part, as determined by the Committee,
conditioned upon the achievement of performance criteria determined by
the Committee.
(ii) Other Terms. A Performance Award shall be denominated in
Shares and may be payable in cash, Shares, other Awards, or other
property, and have such other terms as shall be determined by the
Committee.
<PAGE> 5
6.03. Dividend Equivalents. The Committee is authorized to grant Dividend
Equivalents to Participants. The Committee may provide that Dividend
Equivalents shall be paid or distributed when accrued or shall be deemed to
have been reinvested in additional Shares or Awards, or otherwise reinvested.
6.04. Restricted Stock. The Committee is authorized to grant Restricted
Stock to Participants on the following terms and conditions:
(i) Issuance and Restrictions. Restricted Stock shall be subject
to such restrictions on transferability and other restrictions as the
Committee may impose (including, without limitation, limitations on the
right to vote Restricted Stock or the right to receive dividends
thereon), which restrictions may lapse separately or in combination at
such times, under such circumstances, in such installments or otherwise
as the Committee shall determine.
(ii) Forfeiture. Performance-Based Restricted Stock shall be
forfeited unless preestablished performance criteria specified by the
Committee are met during the applicable restriction period. Except as
otherwise determined by the Committee, upon termination of employment (as
determined under criteria established by the Committee) during the
applicable restriction period, Restricted Stock that is at that time
subject to restrictions shall be forfeited and reacquired by the
Corporation; provided, that the Committee may provide, by rule or
regulation or in any Award Agreement, or may determine in any individual
case, that restrictions or forfeiture conditions relating to Restricted
Stock will be waived in whole or in part in the event of terminations
resulting from specified causes.
(iii) Certificates of Shares. Restricted Stock granted under the
Plan may be evidenced in such manner as the Committee shall determine. If
certificates representing Restricted Stock are registered in the name of
the Participant, such certificates shall bear an appropriate legend
referring to the terms, conditions, and restrictions applicable to such
Restricted Stock, the Corporation shall retain physical possession of the
certificates, and the Participant shall deliver a stock power to the
Corporation, endorsed in blank, relating to the Restricted Stock.
(iv) Dividends. Unless otherwise determined by the Committee, cash
dividends paid on Performance-Based Restricted Stock shall be
automatically reinvested in additional shares of Performance-Based
Restricted Stock and cash dividends paid on other Restricted Stock shall
be paid to the Participant. Dividends reinvested in Performance-Based
Restricted Stock and Shares distributed in connection with a stock split
or stock dividend, and other property distributed as a dividend, shall be
subject to restrictions and a risk of forfeiture to the same extent as
the Restricted Stock with respect to which such stock or other property
has been distributed.
6.05. Deferred Stock. The Committee is authorized to grant Deferred Stock
to Participants, on the following terms and conditions:
(i) Award and Restrictions. Delivery of Shares will occur upon
expiration of the deferral period specified for Deferred Stock by the
Committee (or, if permitted by the Committee, as elected by the
Participant). In addition, Deferred Stock shall be subject to such
restrictions as the Committee may impose, which restrictions may lapse at
the expiration of the deferral period or at earlier specified times,
separately or in combination, in installments, or otherwise, as the
Committee shall determine.
(ii) Forfeiture. Except as otherwise determined by the Committee,
upon termination of employment (as determined under criteria established
by the Committee) during the applicable deferral period or portion
thereof (as provided in the Award Agreement evidencing the Deferred
Stock), all Deferred Stock that is at that time subject to deferral
(other than a deferral at the election of the Participant) shall be
forfeited; provided, that the Committee may provide, by rule or
regulation or in any Award Agreement, or may determine in any individual
case, that restrictions or forfeiture conditions relating to Deferred
Stock will be waived in whole or in part in the event of terminations
<PAGE> 6
resulting from specified causes, and the Committee may in other cases
waive in whole or in part the forfeiture of Deferred Stock.
6.06 Options. The Committee is authorized to grant Options to
Participants on the following terms and conditions:
(i) Exercise Price. The exercise price per Share purchasable under
an Option shall be determined by the Committee; provided, that, except as
provided in Section 7.03, such exercise price shall be not less than the
Fair Market Value of a Share on the date of grant of such Option.
(ii) Time and Method of Exercise. The Committee shall determine
the time or times at which an Option may be exercised in whole or in
part, the methods by which such exercise price may be paid or deemed to
be paid, the form of such payment, including, without limitation, cash,
Shares, other Awards or awards issued under other Corporation plans, or
other property (including notes or other contractual obligations of
Participants to make payment on a deferred basis, such as through
"cashless exercise" arrangements), and the methods by which Shares will
be delivered or deemed to be delivered to Participants. Options shall
expire not later than ten years after the date of grant.
(iii) Incentive Stock Options. The terms of any Incentive Stock
Option granted under the Plan shall comply in all respects with the
provisions of Section 422 of the Code, including but not limited to the
requirement that no Incentive Stock Option shall be granted more than ten
years after the effective date of the Plan. Anything in the Plan to the
contrary notwithstanding, no term of the Plan relating to Incentive Stock
Options shall be interpreted, amended, or altered, nor shall any
discretion or authority granted under the Plan be exercised, so as to
disqualify either the Plan or any Incentive Stock Option under Section
422 of the Code. In the event a Participant voluntarily disqualifies an
Option as an Incentive Stock Option, the Committee may, but shall not be
obligated to, make such additional Awards or pay bonuses as the Committee
shall deem appropriate to reflect the tax savings to the Corporation
which result from such disqualification.
6.07. Stock Appreciation Rights. The Committee is authorized to grant
Stock Appreciation Rights to Participants on the following terms and
conditions:
(i) Right to Payment. A Stock Appreciation Right shall confer on
the Participant to whom it is granted a right to receive, upon exercise
thereof, the excess of (A) the Fair Market Value of one Share on the date
of exercise (or, if the Committee shall so determine in the case of any
such right, other than one related to an Incentive Stock Option, the Fair
Market Value of one Share at any time during a specified period before or
after the date of exercise or the Change of Control Price as defined in
Section 9.03) over (B) the grant price of the Stock Appreciation Right as
determined by the Committee as of the date of grant of the Stock
Appreciation Right, which, except as provided in Section 7.03, shall be
not less than the Fair Market Value of one Share on the date of grant.
(ii) Other Terms. The Committee shall determine the time or times
at which a Stock Appreciation Right may be exercised in whole or in part,
the method of exercise, method of settlement, form of consideration
payable in settlement, method by which Shares will be delivered or deemed
to be delivered to Participants, and any other terms and conditions of
any Stock Appreciation Right. Limited Stock Appreciation Rights that may
be exercised only upon the occurrence of a Change of Control (as such
term is defined in Section 9.02) or as otherwise defined by the
Committee) may be granted under this Section 6.07. Stock Appreciation
Rights shall expire not later than ten years after the date of grant.
6.08 Other Stock-Based Awards. The Committee is authorized to grant to
Participants such other Awards that are denominated or payable in, valued in
whole or in part by reference to, or otherwise based on or related to, Shares,
as deemed by the Committee to be consistent with the purposes of the Plan,
including without limitation, Shares awarded purely as a "bonus" and not
subject to any restrictions or conditions, convertible or exchangeable debt
securities, other rights convertible or exchangeable into
<PAGE> 7
Shares, purchase rights, and Awards valued by reference to book value of Shares
or the value of securities of or the performance of specified Subsidiaries. The
Committee shall determine the terms and conditions of such Awards, which may
include performance criteria. Shares delivered pursuant to an Award in the
nature of a purchase right granted under this Section 6.08 shall be purchased
for such consideration, paid for at such times, by such methods, and in such
forms, including, without limitation, cash, Shares, other Awards, or other
property, as the Committee shall determine.
SECTION 7. CERTAIN PROVISIONS APPLICABLE TO AWARDS.
7.01. Performance-Based Awards. Performance Awards, Performance-Based
Restricted Stock, and certain Other Stock-Based Awards subject to performance
criteria are intended to be "qualified performance-based compensation" within
the meaning of section 162(m) of the Code and shall be paid solely on account
of the attainment of one or more preestablished, objective performance goals
within the meaning of section 162(m) and the regulations thereunder. As
selected by the Committee, the performance goal shall be the attainment of one
or more of the preestablished amounts of annual net income, operating income,
cash flow, return on assets, return on equity, return on capital or total
shareholder return of the Corporation.
The payout of any such Award to a Covered Employee may be reduced, but
not increased, based on the degree of attainment of other performance criteria
or otherwise at the direction of the Committee.
7.02. Maximum Individual Awards. No individual may be granted more than
100,000 shares subject to any combination of Performance Awards, Restricted
Stock, or other Stock-Based Awards subject to performance criteria in any given
year. The maximum payout for any individual for a Performance Award paid in
cash is 100 percent of the participant's January 1 base salary for the year of
the Performance Award payment. No individual may receive more than 300,000
options in any given year. The Share amounts in this Section 7.02 are subject
to adjustment under Section 10 and are subject to the Plan maximum under
Section 4.
7.03. Stand-Alone, Additional, Tandem, and Substitute Awards. Awards
granted under the Plan may, in the discretion of the Committee, be granted
either alone or in addition to, in tandem with, or in substitution for any
other Award granted under the Plan or any award granted under any other plan of
the Corporation, any Subsidiary, or any business entity to be acquired by the
Corporation or a Subsidiary, or any other right of a Participant to receive
payment from the Corporation or any Subsidiary. If an Award is granted in
substitution for another Award or award, the Committee shall require the
surrender of such other Award or award in consideration for the grant of the
new Award. Awards granted in addition to or in tandem with other Awards or
awards may be granted either as of the same time as or a different time from
the grant of such other Awards or awards. The per Share exercise price of any
Option, grant price of any Stock Appreciation Right, or purchase price of any
other Award conferring a right to purchase Shares:
(i) Granted in substitution for an outstanding Award or award
shall be not less than the lesser of the Fair Market Value of a Share at
the date such substitute award is granted or such Fair Market Value at
that date reduced to reflect the Fair Market Value at that date of the
Award or award required to be surrendered by the Participant as a
condition to receipt of the substitute Award; or
(ii) Retroactively granted in tandem with an outstanding Award or
award shall be not less than the lesser of the Fair Market Value of a
Share at the date of grant of the later Award or at the date of grant of
the earlier Award or award.
7.04. Exchange Provisions. The Committee may at any time offer to
exchange or buy out any previously granted Award for a payment in cash, Shares,
other Awards (subject to Section 7.03), or other property based on such terms
and conditions as the Committee shall determine and communicate to the
Participant at the time that such offer is made.
<PAGE> 8
7.05. Term of Awards. The term of each Award shall be for such period as
may be determined by the Committee; provided, that in no event shall the term
of any Option or a Stock Appreciation Right granted in tandem therewith exceed
a period of ten years from the date of its grant (or such shorter period as may
be applicable under Section 422 of the Code).
7.06. Form of Payment Under Awards. Subject to the terms of the Plan and
any applicable Award Agreement, payments to be made by the Corporation or a
Subsidiary upon the grant or exercise of an Award may be made in such forms as
the Committee shall determine, including without limitation, cash, Shares,
other Awards, or other property, and may be made in a single payment or
transfer, in installments, or on a deferred basis. Such payments may include,
without limitation, provisions for the payment or crediting of reasonable
interest on installment or deferred payments or the grant or crediting of
Dividend Equivalents in respect of installment or deferred payments denominated
in Shares.
SECTION 8. GENERAL RESTRICTIONS APPLICABLE TO AWARDS.
8.01. Restrictions Under Rule 16b-3.
8.01.1. Six-Month Holding Period. Unless a Participant could
otherwise transfer an equity security, derivative security, or Shares
issued upon exercise of a derivative security granted under the Plan
without incurring liability under Section 16(b) of the Exchange Act, (i)
an equity security issued under the Plan, other than an equity security
issued upon exercise or conversion of a derivative security granted under
the Plan, shall be held for at least six months from the date of
acquisition; (ii) with respect to a derivative security issued under the
Plan, at least six months shall elapse from the date of acquisition of
the derivative security to the date of disposition of the derivative
security (other than upon exercise or conversion) or its underlying
equity security; and (iii) any Award in the nature of a Stock
Appreciation Right must be held for six months from the date of grant to
the date of cash settlement.
8.01.2. Nontransferability. Awards which constitute derivative
securities (including any option, stock appreciation right, or similar
right) shall not be transferable by a Participant except by will or the
laws of descent and distribution (except pursuant to a beneficiary
designation authorized under Section 8.02) or, if then permitted under
Rule 16b-3, pursuant to a qualified domestic relations order as defined
under the Code or Title I of the Employee Retirement Income Security Act
of 1974, as amended, or the rules thereunder, and, in the case of an
Incentive Stock Option or, if then required by Rule 16b-3, any other
derivative security granted under the Plan, shall be exercisable during
the lifetime of a Participant only by such Participant or his guardian or
legal representative.
8.01.3. Compliance with Rule 16b-3. It is the intent of the
Corporation that this Plan comply in all respects with Rule 16b-3 in
connection with any Award granted to a person who is subject to Section
16 of the Exchange Act. Accordingly, if any provision of this Plan or any
Award Agreement does not comply with the requirements of Rule 16b-3 as
then applicable to any such person, such provision shall be construed to
the extent practicable to conform to such requirements with respect to
such person.
8.02. Limits on Transfer of Awards; Beneficiaries. No right or interest
of a Participant in any Award shall be pledged, encumbered, or hypothecated to
or in favor of any party (other than the Corporation or a Subsidiary), or shall
be subject to any lien, obligation, or liability of such Participant to any
party (other than the Corporation or a Subsidiary). Unless otherwise determined
by the Committee (subject to the requirements of Section 8.01.2), no Award
subject to any restriction shall be assignable or transferable by a Participant
otherwise than by will or the laws of descent and distribution (except to the
Corporation under the terms of the Plan); provided, that a Participant may, in
the manner established by the Committee, designate a beneficiary or
beneficiaries to exercise the rights of the Participant, and to receive any
distribution, with respect to any Award, upon the death of the Participant. A
beneficiary, guardian, legal representative, or other person claiming any
rights under the Plan from or through any Participant shall be subject to all
terms and conditions of the Plan and any Award Agreement applicable to such
Participant or
<PAGE> 9
agreement applicable to such, except to the extent the Plan and such Award
Agreement or agreement otherwise provide with respect to such persons, and to
any additional restrictions deemed necessary or appropriate by the Committee.
8.03. Registration and Listing Compliance. The Corporation shall not be
obligated to deliver any Award or distribute any Shares with respect to any
Award in a transaction subject to regulatory approval, registration, or any
other applicable requirement of federal or state law, or subject to a listing
requirement under any listing or similar agreement between the Corporation and
any national securities exchange, until such laws, regulations, and contractual
obligations of the Corporation have been complied with in full, although the
Corporation shall be obligated to use its best efforts to obtain any such
approval and comply with such requirements as promptly as practicable.
8.04. Share Certificates. All certificates for Shares delivered under the
Plan pursuant to any Award or the exercise thereof shall be subject to such
stop-transfer order and other restrictions as the Committee may deem advisable
under applicable federal or state laws, rules and regulations thereunder, and
the rules of any national securities exchange on which Shares are listed. The
Committee may cause a legend or legends to be placed on any such certificates
to make appropriate reference to such restrictions or any other restrictions
that may be applicable to Shares, including under the terms of the Plan or any
Award Agreement. In addition, during any period in which Awards or Shares are
subject to restrictions under the terms of the Plan or any Award Agreement, or
during any period during which delivery or receipt of an Award or Shares has
been deferred by the Committee or a Participant, the Committee may require the
Participant to enter into an agreement providing that certificates representing
Shares issuable or issued pursuant to an Award shall remain in the physical
custody of the Corporation or such other person as the Committee may designate.
SECTION 9. CHANGE OF CONTROL PROVISIONS. Notwithstanding any other
provision of the Plan, the following acceleration provisions shall apply in the
event of a "Change in Control" as defined in this Section 9.
9.01. Acceleration and Cash-Out Rights. In the event of a "Change in
Control" and a "Qualified Termination" as defined in Sections 9.02 and 9.03,
respectively, automatically in the case of Participants subject to Section 16
of the Exchange Act, and unless otherwise determined by the Board in writing at
or after grant but prior to the occurrence of the Change of Control in the case
of Participants not subject to Section 16 of the Exchange Act:
(i) the performance criteria of all Performance Awards,
Performance-Based Restricted Stock, and Other Stock-Based Awards shall be
deemed fully achieved and all such Awards shall be fully earned and
vested, subject only to the restrictions on dispositions of equity
securities set forth in Section 8.01.1 and legal restrictions on the
issuance of Shares set forth in Section 8.04;
(ii) any Option, Stock Appreciation Right, and other Award in the
nature of a right that may be exercised which was not previously
exercisable and vested shall become fully exercisable and vested, subject
only to the restrictions on disposition of equity securities set forth in
Section 8.01.1 and legal restrictions on the issuance of Shares set forth
in Section 8.04; and
(iii) the restrictions, deferral limitations, and forfeiture
conditions applicable to any other Award granted under the Plan shall
lapse and such Awards shall be deemed fully vested, subject only to the
restrictions on dispositions of equity securities set forth in Section
8.01.1 and legal restrictions on the issuance of Shares set forth in
Section 8.04.
9.02. Change of Control. For purposes of Section 9.01, a "Change of
Control" shall mean any transaction that results in the voting control of the
Corporation held by Cox Enterprises, Inc., its successor or any subsidiary of
either falling below 50.1 percent.
<PAGE> 10
9.03. Qualified Termination. For the purposes of Section 9.01, a
"Qualified Termination" shall mean any termination of employment for reasons
other than (i) Cause; (ii) death, Disability or Retirement, or (iii) by the
Participant without Good Reason within one (1) year following a Change in
Control.
(a) "Cause" shall mean (i) the willful and continued failure by
the Participant to substantially perform the Participant's duties with
the Corporation or (ii) the willful engaging by the Participant in
conduct which is demonstrably and materially injurious to the Corporation
or its subsidiaries, monetarily or otherwise.
(b) "Disability" shall be deemed the reason for the termination by
the Corporation of the Participant's employment, if, as a result of the
Participant's incapacity due to physical or mental illness, the
Participant shall have been absent from the full-time performance of the
Participant's duties with the Corporation for a period of six (6)
consecutive months.
(c) "Good Reason" for termination by the Participant of the
Participant's employment shall mean the occurrence (without the
Participant's express written consent) after any Change in Control of any
one of the following acts by the Corporation.
(i) a reduction by the Corporation in the Participant's
annual base salary;
(ii) the relocation of the Corporation's principal
executive offices to a location more than fifty (50) miles from
the location of such offices immediately prior to the Change in
Control, but only in the event the Participant was employed at the
Corporation's principal executive offices immediately prior to
such reallocation.
(d) "Retirement" shall be deemed the reason for the termination by
the Corporation or the Participant of the Participant's employment if
such employment is terminated in accordance with the Corporation's
retirement policy, not including early retirement, generally applicable
to its employees, as in effect immediately prior to the Change in
Control, or in accordance with any retirement arrangement established
with the Participant's consent with respect to the Participant.
SECTION 10. ADJUSTMENT PROVISIONS. In the event that the Committee shall
determine that any dividend or other distribution (whether in the form of cash,
Shares, or other property), recapitalization, stock split, reverse stock split,
reorganization, merger, consolidation, spin-off, combination, repurchase, or
share exchange, or other similar corporate transaction or event, affects the
Shares such that an adjustment is determined by the Committee to be appropriate
in order to prevent dilution or enlargement of the rights of Participants under
the Plan, then the Committee shall, in such manner as it may deem equitable,
adjust any or all of (i) the number and kind of Shares which may thereafter be
issued in connection with Awards (ii) the number and kind of Shares issued or
issuable in respect of outstanding Awards, and (iii) the exercise price, grant
price, or purchase price relating to any Award or, if deemed appropriate, make
provision for a cash payment with respect to any outstanding Award; provided,
however, in each case, that, with respect to Incentive Stock Options, no such
adjustment shall be authorized to the extent that such authority would cause
the Plan to violate Section 422(b)(1) of the Code. In addition, the Committee
is authorized to make adjustments in the terms and conditions of, and the
criteria included in, Awards in recognition of unusual or nonrecurring events
(including, without limitation, events described in the preceding sentence)
affecting the Corporation or any Subsidiary or the financial statements of the
Corporation or any Subsidiary, or in response to changes in applicable laws,
regulations, or accounting principles.
SECTION 11. CHANGES TO THE PLAN AND AWARDS.
11.01. Changes to the Plan. The Board may amend, alter, suspend,
discontinue or terminate the Plan without the consent of shareholders or
Participants, except that any such amendment, alteration, suspension,
discontinuation, or termination shall be subject to the approval of the
Corporation's shareholders within one year after such Board action if such
shareholder approval is required by any
<PAGE> 11
federal or state law or regulation or the rules of any stock exchange on which
the Shares may be listed, or if the Board in its discretion determines that
obtaining such shareholder approval is for any reason advisable; provided,
however, that, without the consent of an affected Participant, no amendment,
alteration, suspension, discontinuation, or termination of the Plan may impair
the rights of such Participant under any Award theretofore granted to him.
11.02. Changes to Awards. The Committee may waive any conditions or
rights under, or amend, alter, suspend, discontinue, or terminate, any Award
theretofore granted and any Award Agreement relating thereto; provided,
however, that, without the consent of an affected Participant, no such
amendment, alteration, suspension, discontinuation, or termination of any Award
may impair the rights of such Participant under such Award.
SECTION 12. GENERAL PROVISIONS.
12.01. No Rights to Awards. No Participant or employee shall have any
claim to be granted any Award under the Plan, and there is no obligation for
uniformity of treatment of Participants and employees.
12.02. No Shareholder Rights. No Award shall confer on any Participant
any of the rights of a shareholder of the Corporation unless and until Shares
are duly issued or transferred to the Participant in accordance with the terms
of the Award.
12.03. Tax Withholding. The Corporation or any Subsidiary is authorized
to withhold from any Award granted, any payment relating to an Award under the
Plan, including from a distribution of Shares, or any payroll or other payment
to a Participant, amounts or withholding and other taxes due with respect
thereto, its exercise, or any payment thereunder, and to take such other action
as the Committee may deem necessary or advisable to enable the Corporation and
Participants to satisfy obligations for the payment of withholding taxes and
other tax liabilities relating to any Award. This authority shall include
authority to withhold or receive Shares or other property and to make cash
payments in respect thereof in satisfaction of Participant's tax obligations.
12.04. No Right to Employment. Nothing contained in the Plan or any Award
Agreement shall confer, and no grant of an Award shall be construed as
conferring, upon any employee any right to continue in the employ of the
Corporation or any Subsidiary or to interfere in any way with the right of the
Corporation or any Subsidiary to terminate his employment at any time or
increase or decrease his compensation from the rate in existence at the time of
granting of an Award.
12.05. Unfunded Status of Awards. The Plan is intended to constitute an
"unfunded" plan for incentive and deferred compensation. With respect to any
payments not yet made to a Participant pursuant to an Award, nothing contained
in the Plan or any Award shall give any such Participant any rights that are
greater than those of a general creditor of the Corporation; provided, however,
that the Committee may authorize the creation of trusts or make other
arrangements to meet the Corporation's obligations under the Plan to deliver
cash, Shares, other Awards, or other property pursuant to any award, which
trusts or other arrangements shall be consistent with the "unfunded" status of
the Plan unless the Committee otherwise determines with the consent of each
affected Participant.
12.06. Other Compensatory Arrangements. The Corporation or any Subsidiary
shall be permitted to adopt other or additional compensation arrangements
(which may include arrangements which relate to Awards), and such arrangements
may be either generally applicable or applicable only in specific cases.
12.07. Fractional Shares. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award. The Committee shall determine
whether cash, other Awards, or other property shall be issued or paid in lieu
of fractional Shares or whether such fractional Shares or any rights thereto
shall be forfeited or otherwise eliminated.
<PAGE> 12
12.08. Governing Law. The validity, construction, and effect of the Plan,
any rules and regulations relating to the Plan, and any Award Agreement shall
be determined in accordance with the laws of the State of Delaware, without
giving effect to principles of conflicts of laws, and applicable Federal law.
SECTION 13. EFFECTIVE DATE. The Plan shall become effective on the date
of the effective day of the initial public offering of common stock of the
Corporation.
