<PAGE> 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
<TABLE>
<CAPTION>
==============================================================================================================================
Proposed Proposed
Title of security maximum offering maximum
being registered Amount being price per aggregate offering Amount of
registered (**) share (***) price registration fee
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A*
Common Stock, $1.00
Par Value Per
Share....... 350,000 $ 20.13 $ 7,045,500 $ 2,135
==============================================================================================================================
</TABLE>
(*) 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.
===============================================================================
<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 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
<PAGE> 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.
<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 29 day of
April 1997.
COX RADIO, INC.
By: /s/ Robert F.Neil
------------------------------------
Robert F. Neil
President and
Chief Executive Officer
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/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
</TABLE>
<PAGE> 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.
<PAGE> 6
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, 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
</TABLE>
* Incorporated by reference to the corresponding exhibit of Cox Radio's
Registration Statement on Forms S-1, as amended, (File No. 333-08737).
<PAGE> 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.
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
<PAGE> 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
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<PAGE> 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 -
<PAGE> 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 -
