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
<TABLE>
<CAPTION>
- ---------------------- ----------------------- --------------------- ------------------- --------------------
Proposed Proposed
Title of security Amount being maximum offering maximum
being registered registered (**) price per aggregate offering Amount of
share price registration fee
- ---------------------- ----------------------- --------------------- ------------------- --------------------
- ---------------------- ----------------------- --------------------- ------------------- --------------------
<S> <C> <C> <C> <C>
Class A*
Common Stock, $1.00
Par Value Per
Share....... 250,000 $48.15 $12,037,500 $3,346.43
- ---------------------- ----------------------- --------------------- ------------------- --------------------
</TABLE>
(*) 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.
<PAGE>
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
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<PAGE>
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.
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<PAGE>
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.
<TABLE>
<CAPTION>
Signature Capacity Date
--------- -------- ----
<S> <C> <C>
/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
</TABLE>
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-
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Exhibit Page No.
- ----------- ------- --------
<S> <C> <C>
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)
</TABLE>
-5-
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-
<PAGE>
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-
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
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