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Filed Pursuant to Rule 424(b)(2)
Registration No. 333-35398
8,800,000 Shares
(COX RADIO LOGO)
Class A Common Stock
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We are selling 8,800,000 shares of Class A common stock.
Cox Enterprises, Inc., the ultimate parent company of Cox Radio, has agreed
to purchase directly from Cox Radio in a private placement $100 million of Class
A common stock at a per share price equal to the public offering price per
share, less the underwriting discounts and commissions.
The Class A common stock trades on The New York Stock Exchange under the
symbol "CXR." On June 21, 2000, the last reported sale price for the Class A
common stock on The New York Stock Exchange was $29.56 per share.
The underwriters have an option to purchase a maximum of 1,320,000
additional shares to cover over-allotments of shares.
INVESTING IN OUR CLASS A COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS" ON
PAGE S-5.
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UNDERWRITING
PRICE TO DISCOUNTS AND PROCEEDS TO
PUBLIC COMMISSIONS COX RADIO
------------ ------------- ------------
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Per Share............................................ $29.00 $1.16 $27.84
Total................................................ $255,200,000 $10,208,000 $244,992,000
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Delivery of the shares of Class A common stock will be made on or about
June 27, 2000.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus supplement or the prospectus to which it relates is truthful or
complete. Any representation to the contrary is a criminal offense.
CREDIT SUISSE FIRST BOSTON MORGAN STANLEY DEAN WITTER
ALLEN & COMPANY INCORPORATED
BANC OF AMERICA SECURITIES LLC
FIRST UNION SECURITIES, INC.
ROBERTSON STEPHENS
SALOMON SMITH BARNEY
The date of this prospectus supplement is June 21, 2000.
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TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
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PROSPECTUS SUPPLEMENT SUMMARY......... S-1
Cox Radio, Inc...................... S-1
Pending Transactions................ S-2
Recent Developments................. S-2
The Offering........................ S-4
RISK FACTORS.......................... S-5
USE OF PROCEEDS....................... S-8
PRICE RANGE OF CLASS A COMMON STOCK... S-8
DIVIDEND POLICY....................... S-8
CAPITALIZATION........................ S-9
SELECTED FINANCIAL INFORMATION AND
OTHER DATA.......................... S-10
SELECTED UNAUDITED PRO FORMA COMBINED
FINANCIAL INFORMATION............... S-11
MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS....................... S-13
BUSINESS.............................. S-18
MANAGEMENT............................ S-19
CERTAIN UNITED STATES FEDERAL TAX
CONSIDERATIONS FOR NON-U.S.
HOLDERS............................. S-21
UNDERWRITING.......................... S-25
NOTICE TO CANADIAN RESIDENTS.......... S-27
LEGAL MATTERS......................... S-28
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PROSPECTUS
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COX RADIO, INC........................ 1
THE COX RADIO TRUSTS.................. 2
USE OF PROCEEDS....................... 3
RATIO OF EARNINGS TO FIXED CHARGES.... 3
DESCRIPTION OF CAPITAL STOCK.......... 4
DESCRIPTION OF THE DEBT SECURITIES.... 6
DESCRIPTION OF JUNIOR SUBORDINATED
DEBENTURES.......................... 20
DESCRIPTION OF TRUST PREFERRED
SECURITIES.......................... 29
DESCRIPTION OF PREFERRED SECURITIES
GUARANTEES.......................... 38
RELATIONSHIP AMONG THE TRUST PREFERRED
SECURITIES, THE CORRESPONDING JUNIOR
SUBORDINATED DEBENTURES OR OTHER
DEBT SECURITIES AND THE PREFERRED
SECURITIES GUARANTEES............... 41
DESCRIPTION OF STOCK PURCHASE
CONTRACTS AND STOCK PURCHASE
UNITS............................... 42
PLAN OF DISTRIBUTION.................. 43
LEGAL MATTERS......................... 43
EXPERTS............................... 44
WHERE YOU CAN FIND MORE INFORMATION... 44
INFORMATION INCORPORATED BY
REFERENCE........................... 44
</TABLE>
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YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS
SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS OR TO WHICH WE HAVE REFERRED YOU. WE
HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT.
THESE DOCUMENTS MAY ONLY BE USED WHERE IT IS LEGAL TO SELL THESE SECURITIES. THE
INFORMATION IN THESE DOCUMENTS MAY ONLY BE ACCURATE ON THE RESPECTIVE DATES
THEREOF.
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DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement and the accompanying prospectus contain or
incorporate "forward-looking statements" within the meaning of Section 27A of
the Securities Act of 1933, as amended, and Section 21E of the Securities
Exchange Act of 1934, as amended. These forward-looking statements are subject
to a number of risks and uncertainties, many of which are beyond Cox Radio's
control. Forward-looking statements are typically identified by the words
"believe," "expect," "anticipate," "intent," "estimate," "plan" or similar
expressions. Actual results could differ materially from those contemplated by
these forward-looking statements as a result of factors, which we refer to as
"cautionary statements," such as operating risks, the impact of competitors, the
results of financing efforts, litigation and risks of non-approval or delays in
the issuance of licenses by the Federal Communications Commission, which we
refer to as the "FCC," and those risks described under "Risk Factors." In light
of these risks and uncertainties, there can be no assurance that the results and
events contemplated by the forward-looking information contained or incorporated
in this prospectus supplement or the accompanying prospectus will in fact
transpire. Potential investors are cautioned not to place undue reliance on
these forward-looking statements. We do not undertake any obligation to update
or revise any forward-looking statements. All subsequent written or oral
forward-looking statements attributable to us or any person acting on our behalf
are expressly qualified in their entirety by the cautionary statements.
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement contains the terms of this offering. A
description of our capital stock is contained in the accompanying prospectus.
This prospectus supplement, or the information incorporated by reference in this
prospectus supplement, may add, update or change information in the accompanying
prospectus. If information in this prospectus supplement, or the information
incorporated by reference in this prospectus supplement, is inconsistent with
the accompanying prospectus, this prospectus supplement, or the information
incorporated by reference in this prospectus supplement, will apply and will
supersede that information in the accompanying prospectus.
It is important for you to read and consider all information contained in
this prospectus supplement and the accompanying prospectus in making your
investment decision. You should also read and consider the information in the
documents we have referred you to in "Where You Can Find More Information About
the Company" below.
WHERE YOU CAN FIND MORE
INFORMATION ABOUT THE COMPANY
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission. You may read and copy
any document we file at the Commission's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the Securities and
Exchange Commission at 1-800-SEC-0330 for further information on the public
reference rooms. Our Securities and Exchange Commission filings are also
available to the public at the Commission's web site at http://www.sec.gov.
The Securities and Exchange Commission allows us to "incorporate by
reference" into this prospectus supplement the information we file with it,
which means that we can disclose important information to you by referring you
to those documents. The information incorporated by reference is considered to
be a part of this prospectus supplement and later information filed with the
Securities and Exchange Commission will update and supersede such information.
We incorporate by reference our Annual Report on Form 10-K for the year ended
December 31, 1999, as amended, our Current Report on Form 8-K dated August 30,
1999 and our Quarterly Report on Form 10-Q for the quarter ended March 31, 2000,
including the documents incorporated by reference therein, and any future
filings made with the Securities and Exchange Commission under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until our offering is
completed.
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PROSPECTUS SUPPLEMENT SUMMARY
This summary contains basic information about us and the offering. Because
it is a summary, it does not contain all the information that you should
consider before investing. You should read the entire prospectus supplement and
the accompanying prospectus carefully, including the risk factors and our
financial statements and the related notes to those statements included or
incorporated by reference into this prospectus supplement and the accompanying
prospectus.
COX RADIO, INC.
Cox Radio is one of the largest radio broadcasting companies in the U.S. We
are focused primarily on maximizing the revenues and broadcast cash flow of our
radio stations by operating and developing clusters of stations in
demographically attractive and rapidly growing markets.
As a result of our management, programming and sales efforts, our radio
stations are characterized by strong ratings and above average power ratios,
which are the ratios of advertising revenues to ratings. In addition, we have a
track record of acquiring, repositioning and improving the operating performance
of previously underperforming stations. Our senior operating management is
comprised of five individuals with an average of over 27 years of experience in
the radio broadcasting industry. We believe that our experienced senior
management team is well positioned to manage larger radio station clusters and
take advantage of new opportunities arising in the U.S. radio broadcasting
industry.
Our stations are diversified in terms of format, target audience,
geographic location and stage of development. We believe that a number of our
stations have significant growth opportunities or turnaround potential and can
therefore be characterized as developing stations. We believe these stations can
achieve significant broadcast cash flow growth by employing our operating
strategy. We believe that our portfolio of stations in different stages of
development enables us to maximize our growth potential.
We operate our stations in clusters to:
- enhance net revenue growth by increasing the appeal of our radio stations
to advertisers and enabling our stations to compete more effectively with
other forms of advertising; and
- achieve operating efficiencies by consolidating broadcast facilities,
eliminating duplicative positions in management and production and
reducing overhead expenses.
In addition, we have demonstrated an ability to acquire underperforming
stations with turnaround potential and develop them into ratings and revenue
leaders. We have achieved this through our management philosophy which
emphasizes:
- market research and targeted programming;
- a customer-focused selling strategy; and
- marketing and promotional activities.
This management philosophy is designed and coordinated by our experienced
senior operating management and implemented on a local level by our station
managers. We invest significant resources to identify and train local managers
who are given:
- responsibility for day-to-day operations of our stations; and
- flexibility to develop policies that will improve station performance and
establish long-term relationships with advertisers and listeners.
During the last several years, we have implemented our clustering strategy
through the acquisition of radio stations in several existing markets and by
building new clusters through acquisitions in select new markets. We intend to
continue to make acquisitions in the markets in which we operate. We may also
make opportunistic acquisitions in additional markets where we believe that we
can cost-effectively achieve a leading position in terms of audience and revenue
share. In evaluating acquisition opportunities in these
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additional markets, we intend to focus primarily on demographically attractive
markets, such as those in the Sunbelt, and markets ranked between 10 and 70 in
terms of radio advertising revenues. We believe that such markets offer the
greatest potential for growth relative to the cost of entry. We also believe
that we will have the financial resources and management expertise to continue
to pursue our acquisition strategy.
PENDING TRANSACTIONS
In August 1999, we agreed to acquire: one FM station in Miami, Florida; one
FM station in Atlanta, Georgia; two AM stations and four FM stations in
Jacksonville, Florida; two AM stations and two FM stations in Stamford/Norwalk,
Connecticut; and one FM station and local sales rights at a second FM station in
New Haven, Connecticut (collectively, the "AMFM Stations"), in exchange for one
AM station and one FM station in Los Angeles, California, and approximately $3
million in cash. In October 1999, we began operating the AMFM Stations pursuant
to local marketing or joint sales agreements. Pending regulatory approvals,
including obtaining a temporary waiver of the FCC's newspaper-radio
cross-ownership rule for the acquisition of the Atlanta station, we anticipate
consummating this transaction in the third quarter of 2000.
In March 2000, we agreed to acquire one FM station in Miami, Florida (the
"Miami Station"). This station will be acquired, along with one FM station and
one AM station in Hartford, Connecticut, and one FM station in Gloucester,
Massachusetts, for approximately $125 million. As part of the agreement, we
further agreed to sell the assets of the Hartford and Gloucester stations to
certain principals of the previous owner for approximately $25 million. We
anticipate consummating these transactions in the third quarter of 2000.
Also in March 2000, we agreed to acquire three FM stations in Houston,
Texas, and three FM stations and one AM station in Richmond, Virginia
(collectively, the "Clear Channel Stations"), for approximately $380 million.
Pending regulatory approvals, we anticipate consummating this acquisition in the
third quarter of 2000.
In June 2000, we exercised our right of first refusal and have agreed to
acquire all of the capital stock of Midwestern Broadcasting Company, Inc., which
owns WALR-FM serving the Atlanta market, for $280 million. WALR-FM is Atlanta's
fourth-ranked radio station among adults 25-54. Pending regulatory approvals, we
anticipate consummating this transaction in the second half of 2000.
In a related transaction, we entered into an asset exchange agreement with
Salem Communications Corporation, under which we would exchange the license and
transmitting facilities of WALR-FM, as well as the license and transmitting
facilities of one AM station serving San Antonio, Texas, and one AM station
serving Tampa, Florida, for the license and transmitting facilities of an FM
station serving Houston, Texas. Under this agreement, we would retain the
intellectual property of WALR-FM and intend to broadcast this programming on one
of our existing FM stations serving Atlanta. Pending regulatory approvals, we
anticipate consummating this exchange transaction concurrently with the closing
of the acquisition of Midwestern Broadcasting. We collectively refer to the
acquisition of Midwestern Broadcasting and the related exchange transaction as
the "WALR Transaction."
RECENT DEVELOPMENTS
In April 2000, we disposed of the assets of one FM station serving the
Honolulu, Hawaii market for approximately $6.6 million. Cox Radio continues to
manage this station's local, regional and national sales efforts under a joint
sales agreement.
In May 2000, we acquired the assets of two FM stations and one AM station
serving the Honolulu, Hawaii market for approximately $17.8 million.
At Cox Radio's annual meeting on May 11, 2000, our stockholders, among
other things, approved an increase in the number of authorized shares of our
capital stock and a three-for-one stock split of our outstanding stock. As a
result, our authorized shares of capital stock now consist of 210,000,000 shares
of Class A common stock, 135,000,000 shares of Class B common stock and
15,000,000 shares of preferred stock. In addition, the three-for-one stock split
was distributed on May 19, 2000 to holders of record on
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May 12, 2000. In connection with the stock split, the par value of each share of
Cox Radio's capital stock was reduced from $1.00 to $0.33 per share. All share
information in this prospectus supplement has been revised to reflect the
increase in the number of authorized shares of capital stock and the
three-for-one stock split.
We are in the process of replacing our existing $300 million credit
facility with $700 million of new credit facilities, consisting of a $350
million 364-day credit facility and a $350 million 5-year credit facility. We
expect that the new credit facilities will have variable interest rates based on
our credit ratings. The new credit facilities are subject to negotiation of
definitive documentation and, although we cannot assure you when or if we will
complete these negotiations, we expect to have the new credit facilities in
place by the end of the second quarter or early in the third quarter of 2000.
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THE OFFERING
Class A common stock offered
by Cox Radio(1):
Shares to be sold to the
public in this offering(2).. 8,800,000 shares
Shares to be sold to Cox
Enterprises(3)........... 3,591,954 shares
Common stock outstanding after
the offering:
Class A common stock(4)..... 40,521,070 shares
Class B common stock(5)..... 58,733,016 shares
Voting Rights................. There are two classes of Cox Radio common stock
outstanding: Class A common stock and Class B
common stock. Except with respect to voting and
conversion rights, each class of common stock
is identical. The Class A common stock and
Class B common stock generally vote as a single
class with respect to all matters submitted to
a vote of stockholders. However, each share of
Class A common stock is entitled to one vote
and each share of Class B common stock is
entitled to ten votes. Each share of Class B
common stock is convertible into one share of
Class A common stock.
Use of proceeds............... The net proceeds from the sale of the Class A
common stock we are offering in this prospectus
supplement will be used to partially finance
pending acquisitions, to repay outstanding
indebtedness and for general corporate
purposes.
Dividend policy............... We have never paid dividends on our common
stock, and we do not anticipate paying any cash
dividends on our common stock in the
foreseeable future.
Risk factors.................. See "Risk Factors" and the other information
included in this prospectus supplement for a
discussion of risks you should carefully
consider before deciding to invest in shares of
our Class A common stock.
New York Stock Exchange
symbol........................ "CXR"
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(1) Excludes 1,320,000 shares of Class A common stock that are subject to
purchase from us upon exercise of the underwriters' over-allotment option.
(2) Cox Enterprises currently indirectly owns approximately 68% of the common
stock of Cox Radio and has approximately 95% of the voting power of Cox
Radio. After giving effect to this offering, assuming the underwriters do
not exercise their over-allotment option and including Cox Enterprises'
purchase of shares of Class A common stock, Cox Enterprises will own
approximately 63% of the common stock of Cox Radio representing
approximately 94% of the voting power of Cox Radio.
(3) Cox Enterprises has agreed to purchase directly from Cox Radio in a private
placement $100 million of Class A common stock at a per share price equal to
the public offering price per share, less underwriting discounts and
commissions.
(4) Based on the number of shares of Class A common stock outstanding on March
31, 2000. It does not include 838,289 shares of Class A common stock
reserved for issuance upon the exercise of outstanding stock options under
our stock option plans.
(5) Cox Enterprises indirectly owns all of the outstanding Class B common stock.
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RISK FACTORS
You should carefully consider the risks described below before buying
shares in this offering. If any of the following risks actually occur, our
business, results of operations and financial condition could be materially and
adversely affected, the trading price of our Class A common stock could decline,
and you might lose all or part of your investment.
RISKS ASSOCIATED WITH COX RADIO'S ACQUISITION STRATEGY
A principal component of our business strategy is the acquisition of
additional radio stations. In addition to the pending transactions described
herein, we intend to continue to evaluate the acquisition of additional radio
stations or radio station groups. There can be no assurance that future
acquisitions will be available on attractive terms. In addition, there can be no
assurance that any synergies or savings will be achieved as a result of any
acquisitions, that the integration of Cox Radio and new stations or management
groups can be accomplished successfully or on a timely basis, that stations
acquired for their growth potential will in fact grow or that other aspects of
our acquisition strategy can be implemented. Although we have entered into
definitive agreements regarding the pending transactions described herein, there
can be no assurance that any of the pending transactions will be consummated.
Consummation of the pending transactions is subject to certain closing
conditions, including the receipt of FCC approvals, which receipt cannot be
assured.
COMPETITION IN THE RADIO BROADCASTING INDUSTRY
The radio broadcasting industry is a highly competitive business. Our radio
stations compete against other radio stations and other media (including new
media technologies that are being developed or introduced) for audience share
and advertising revenue. Factors that are material to a station's competitive
position include management experience, the station's audience share rank in its
market, transmitter power, assigned frequency, audience characteristics, local
program acceptance and the number and characteristics of other stations in the
market area. Recent changes in the law and in FCC rules and policies have
increased the number of radio stations a broadcaster may own in a given market
and permit, within limits, joint arrangements with other stations in a market
relating to programming, advertising sales and station operations. No assurance
can be given that any of our stations will be able to maintain or increase their
current audience ratings and advertising revenue share.
GOVERNMENT REGULATION OF THE BROADCASTING INDUSTRY
The radio broadcasting industry is subject to extensive and changing
regulation. Among other things, the Communications Act of 1934, as amended, and
FCC rules and policies limit the number of radio stations that one entity can
own in a given market and restrict ownership in markets where a licensee has an
attributable interest in a daily newspaper. The Communications Act, and FCC
rules and policies also require FCC approval for transfers of control and
assignments of FCC licenses. The filing of petitions or complaints against FCC
licensees, such as Cox Radio, could result in the FCC delaying the grant of, or
refusing to grant, its consent to the assignment of licenses to or from an FCC
licensee or the transfer of control of an FCC licensee. In certain
circumstances, the Communications Act, and FCC rules and policies will operate
to impose limitations on alien ownership and voting of our common stock. There
can be no assurance that there will be no changes in the current regulatory
scheme, the imposition of additional regulations or the creation of new
regulatory agencies, which changes could restrict or curtail our ability to
acquire, operate and dispose of stations or, in general, to compete profitably
with other operators of radio and other media properties.
Each of our radio stations operates pursuant to one or more licenses issued
by the FCC. Under FCC rules, radio licenses are granted for a term of eight
years. Our licenses expire at various times between the years 2004 and 2006.
Although we will apply to renew these licenses, third parties may challenge our
renewal applications. While we are not aware of facts or circumstances that
would prevent us from having our current licenses renewed, there can be no
assurance that the licenses will be renewed. Failure to obtain the renewal of
any of our broadcast licenses or to obtain FCC approval for an assignment or
transfer to us of a license in connection with a radio station acquisition may
have a material adverse effect on our business and
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operations. In addition, if we or any of our officers, directors or significant
stockholders materially violates the FCC's rules and regulations or the
Communications Act, is convicted of a felony or is found to have engaged in
unlawful anticompetitive conduct or fraud upon another government agency, the
FCC may, in response to a petition from a third party or on its own initiative,
in its discretion, commence a proceeding to impose sanctions upon us which could
involve the imposition of monetary fines, the revocation of Cox Radio's
broadcast licenses or other sanctions. If the FCC were to issue an order denying
a license renewal application or revoking a license, we would be required to
cease operating the applicable radio station only after we had exhausted all
rights to administrative and judicial review without success.
CONTROL OF COX RADIO BY COX ENTERPRISES AND POTENTIAL CONFLICTS OF INTEREST
Cox Enterprises, through wholly owned subsidiaries, owns approximately 68%
of the outstanding common stock of Cox Radio and has approximately 95% of the
voting power of Cox Radio. After giving effect to this offering, assuming the
underwriters do not exercise their over-allotment option and including Cox
Enterprises' purchase of shares of Class A common stock, Cox Enterprises will
own approximately 63% of the common stock of Cox Radio representing
approximately 94% of the voting power of Cox Radio. As a result, Cox Enterprises
has sufficient voting power to elect all the members of the board of directors
of Cox Radio and effect transactions without the approval of Cox Radio's public
stockholders, except for those limited transactions that require a separate
class vote. The interests of Cox Enterprises, other subsidiaries of which
operate businesses in other industries, including television broadcasting,
broadband communications, auto auctions, Internet content development and
newspapers, may from time to time diverge from the interests of Cox Radio. In
addition, from time to time, Cox Radio enters into transactions with Cox
Enterprises or its affiliates and has entered into a credit facility with Cox
Enterprises. Conflicts of interest between Cox Radio and Cox Enterprises could
arise with respect to business dealings between them, including potential
acquisitions of businesses or properties, the issuance of additional securities
and the election of new or additional members of Cox Radio's board of directors.
The Audit Committee of Cox Radio's board of directors consists of independent
directors and addresses certain potential conflicts of interest and related
party transactions that may arise between Cox Radio and Cox Enterprises and its
other affiliates. However, there can be no assurance that any conflicts of
interest will be resolved in favor of Cox Radio.
ANTI-TAKEOVER AND OTHER PROVISIONS OF THE COX RADIO CERTIFICATE OF INCORPORATION
COULD DELAY OR DETER A CHANGE OF CONTROL
Inability of stockholders to call special stockholders meeting; Cox
Enterprises' right to act without a meeting. The Cox Radio certificate of
incorporation provides that a special meeting of stockholders may be called only
by the Cox Radio board. The principal effect of this provision is to prevent
stockholders from forcing a special meeting. In addition, the Cox Radio
certificate of incorporation provides that any action required by the Delaware
general corporate law to be taken at any annual or special meeting of
stockholders, and any action which may be taken at any annual or special meeting
of stockholders, may be taken without a meeting and without a vote, if a consent
in writing, setting forth the action so taken, shall be signed by the holders of
record of shares of the outstanding stock of Cox Radio having not less than the
minimum number of votes necessary to authorize or take such action at a meeting
at which all shares entitled to vote thereon were present and voted. However, if
stockholder action is taken by written consent, Cox Radio, in accordance with
the rules and regulations of the Securities and Exchange Commission, will be
required to send each stockholder entitled to vote on the matter voted on, but
whose consent was not solicited, a written information statement at least 20
calendar days prior to the earliest date on which the corporate action may be
taken. Such information statement will contain information substantially similar
to that which would have been contained in a proxy statement complying with
Schedule 14A of the Securities Exchange Act of 1934.
Procedures for stockholder proposal. The Cox Radio certificate of
incorporation provides that a stockholder must furnish written notice to the
secretary of Cox Radio of any nomination or business proposal to be brought
before a stockholders meeting not less than 30 nor more than 60 days prior to
the meeting as originally scheduled. In the event that less than 40 days' public
notice of a meeting is given by Cox Radio, a stockholder must furnish notice of
a nomination or business proposal not later than the close of business on
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the tenth day following the mailing or the public disclosure of notice of the
meeting date. These procedures prohibit last minute attempts by any stockholder
to nominate a director or present a business proposal at an annual stockholders
meeting, even if such a nomination or proposal might be desired by a majority of
the stockholders.
Foreign ownership. The Cox Radio certificate of incorporation restricts
the ownership, voting and transfer of Cox Radio's capital stock, including the
Class A common stock and the Class B common stock, in accordance with the
Communications Act of 1934 and the rules of the FCC, to prohibit ownership of
more than 25% of Cox Radio's outstanding capital stock (or more than 25% of the
voting rights it represents) by or for the account of aliens or corporations
otherwise subject to domination or control by aliens. The Cox Radio certificate
of incorporation also prohibits any transfer of its capital stock that would
cause it to violate this prohibition. In addition, the Cox Radio certificate of
incorporation authorizes the Cox Radio board of directors to adopt such
provisions as it deems necessary to enforce these prohibitions, including the
inclusion of a legend regarding restrictions on foreign ownership of the capital
stock of Cox Radio on the certificates representing such capital stock. The
Class A common stock certificates contain a certification that must be executed
by the transferee of any such certificate before transfers of the shares
represented thereby may be made on the books of Cox Radio. Such certification
addresses whether such transferee, or any person or entity for whose account
such shares will be held, is an alien. In addition, the Cox Radio certificate of
incorporation provides that Cox Radio reserves the right to refuse to honor any
transfer of the capital stock of Cox Radio which, in the judgment of Cox Radio
or its transfer agent, would or might constitute a violation of the
Communications Act or the FCC rules and regulations.
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USE OF PROCEEDS
We expect to receive net proceeds from the sale of our Class A common stock
of approximately $344.5 million ($381.2 million if the underwriters'
over-allotment option is exercised in full), after deducting the underwriting
discounts and commissions and offering expenses. We intend to use these proceeds
to partially finance pending acquisitions, to repay outstanding indebtedness and
for general corporate purposes. We subsequently expect to borrow additional
amounts necessary to complete our pending acquisitions. See "Prospectus
Supplement Summary -- Pending Transactions."
PRICE RANGE OF CLASS A COMMON STOCK
Our Class A common stock is listed for trading on the New York Stock
Exchange under the symbol "CXR." The following table sets forth on a per share
basis the high and low sales prices for consolidated trading in our Class A
common stock as reported on the New York Stock Exchange Composite Tape for the
quarters indicated. These market prices have been adjusted for the three-for-one
split of all classes of our capital stock, distributed on May 19, 2000.
<TABLE>
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HIGH LOW
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1998
First Quarter............................................... $16.33 $11.75
Second Quarter.............................................. 17.13 13.23
Third Quarter............................................... 15.90 11.33
Fourth Quarter.............................................. 15.17 8.75
1999
First Quarter............................................... 17.08 12.44
Second Quarter.............................................. 19.00 16.17
Third Quarter............................................... 20.25 17.21
Fourth Quarter.............................................. 35.67 19.25
2000
First Quarter............................................... 34.83 20.17
Second Quarter (through June 21, 2000)...................... 32.00 22.92
</TABLE>
On June 21, 2000, the closing price of our Class A common stock was $29.56
per share. Stockholders should obtain current market quotations before making
any decision with respect to an investment in the Class A common stock.
As of June 21, 2000, there were 340 holders of record of our Class A common
stock. This number excludes beneficial owners of Class A common stock held in
street name.
DIVIDEND POLICY
We have never paid any dividends on our stock, and we do not anticipate
paying any cash dividends on our common stock in the foreseeable future. The
current policy of our board of directors is to retain earnings to finance the
operations and expansion of our business. Any future determination to pay
dividends will depend on our results of operations, financial condition, capital
requirements, contractual restrictions and other factors deemed relevant by our
board of directors.
S-8
<PAGE> 12
CAPITALIZATION
The following table sets forth the capitalization of Cox Radio as of March
31, 2000 on an historical basis, updated for Cox Radio's three-for-one stock
split distributed on May 19, 2000, and as adjusted to give effect to the
issuance of 8,800,000 shares of Class A common stock in this offering and an
additional 3,591,954 shares to be sold to Cox Enterprises in the concurrent
private placement at the public offering price per share, less underwriting
discounts and commissions. The as adjusted column below does not give effect to
the acquisitions of the AMFM Stations, the Miami Station, the Clear Channel
Stations or to the WALR Transaction. See "Prospectus Supplement
Summary -- Pending Transactions." We expect the aggregate cash requirements to
complete the acquisitions of the AMFM Stations, the Miami Station and the Clear
Channel Stations will be approximately $407.4 million, and we expect the cash
requirements to complete the WALR Transaction will be approximately $280.0
million. We expect to fund these acquisitions with the proceeds from this
offering, cash from operations and additional borrowings.
<TABLE>
<CAPTION>
MARCH 31, 2000
-----------------------
AS
ACTUAL ADJUSTED
---------- ----------
(DOLLARS IN THOUSANDS)
<S> <C> <C>
Cash and cash equivalents, including restricted cash........ $ 84,205 $208,697
======== ========
Long-term debt:
Credit agreement.......................................... $220,000 $ --
6.250% notes due 2003..................................... 99,950 99,950
6.375% notes due 2005..................................... 99,790 99,790
Other long-term debt...................................... 379 379
-------- --------
Total long-term debt.............................. 420,119 200,119
Shareholders' equity:
Preferred stock, $.33 par value;
15,000,000 shares authorized;
none outstanding....................................... -- --
Class A common stock, $.33 par value;
210,000,000 shares authorized
28,129,116 and 40,521,070 shares issued and
outstanding........................................... 9,283 13,372
Class B common stock, $.33 par value;
135,000,000 shares authorized
58,733,016 shares issued and outstanding............... 19,382 19,382
Additional paid-in capital................................ 267,187 607,590
Retained earnings......................................... 119,403 119,403
Less: Class A common stock held in treasury
(119,856 shares at cost)............................... (1,651) (1,651)
-------- --------
Total shareholders' equity........................... 413,604 758,096
-------- --------
Total capitalization............................ $833,723 $958,215
======== ========
</TABLE>
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<PAGE> 13
SELECTED FINANCIAL INFORMATION AND OTHER DATA
We are providing the following financial information and other data to aid
you in your analysis of the financial aspects of Cox Radio. You should read this
information in conjunction with the historical consolidated financial statements
of Cox Radio and the related notes contained in our annual, quarterly and other
reports and other information that Cox Radio has filed with the Securities and
Exchange Commission.
The following selected consolidated financial information for each of the
three years in the period ended December 31, 1999 has been derived from Cox
Radio's audited historical consolidated financial statements, and the
consolidated financial information for the three months ended March 31, 1999 and
2000 has been derived from Cox Radio's unaudited historical consolidated
financial statements.
"Net revenues" is total revenues less advertising agency commissions.
"Broadcast cash flow" consists of net revenues less station operating expenses.
"Broadcast cash flow margin" is broadcast cash flow as a percentage of net
revenues. "EBITDA" is operating income excluding any gain on sales of assets and
radio stations plus depreciation and amortization. "After-tax cash flow" is
income before extraordinary items excluding any gain on sales of assets and
radio stations plus depreciation, amortization and deferred tax expense.
Although broadcast cash flow, broadcast cash flow margin, EBITDA and after-tax
cash flow are not recognized under generally accepted accounting principles,
they are accepted by the broadcasting industry as generally recognized measures
of performance and are used by analysts who report publicly on the condition and
performance of broadcast companies. For the foregoing reasons, Cox Radio
believes that these measures are useful to investors. However, investors should
not consider these measures to be an alternative to operating income as
determined in accordance with generally accepted accounting principles, an
alternative to cash flows from operating activities (as a measure of liquidity)
or an indicator of Cox Radio's performance under generally accepted accounting
principles.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
YEAR ENDED DECEMBER 31, MARCH 31,
------------------------ -----------------
1997 1998 1999 1999 2000
------ ------ ------ ------ --------
(DOLLARS IN MILLIONS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
STATEMENTS OF OPERATIONS DATA:
Net revenues......................................... $199.6 $261.2 $300.5 $ 60.4 $ 75.9
Station operating expenses........................... 129.8 167.0 183.9 40.7 49.2
Corporate general and administrative expenses........ 6.9 8.4 10.1 2.2 2.8
Depreciation and amortization........................ 17.4 23.4 29.1 6.3 7.3
Gain on sales of assets and radio stations........... 49.1 -- 40.5 -- 45.4
------ ------ ------ ------ --------
Operating income..................................... 94.6 62.4 117.9 11.2 62.0
Interest expense, net................................ 9.4 16.9 22.8 4.4 6.3
Net income........................................... 49.7 23.0 55.3 3.8 32.9
Basic net income per common share.................... $ 0.59 $ 0.27 $ 0.64 $ 0.04 $ 0.38
Diluted net income per common share.................. $ 0.58 $ 0.27 $ 0.64 $ 0.04 $ 0.38
OTHER OPERATING DATA:
Broadcast cash flow.................................. $ 69.8 $ 94.2 $116.6 $ 19.7 $ 26.7
Broadcast cash flow margin........................... 35.0% 36.1% 38.8% 32.6% 35.2%
EBITDA............................................... $ 62.9 $ 85.8 $106.5 $ 17.5 $ 23.9
After-tax cash flow.................................. 44.1 52.2 62.3 10.4 13.4
Net cash provided by operating activities............ 42.2 47.2 56.1 23.7 16.4
Net cash used in investing activities................ 285.1 115.1 179.1 22.9 19.1
Net cash provided by (used in) financing
activities......................................... 238.5 68.1 131.2 (1.4) (3.4)
Capital expenditures................................. 10.8 6.9 6.7 1.8 1.8
BALANCE SHEET DATA (END OF PERIOD):
Cash and cash equivalents, including restricted
cash............................................... $ 6.2 $ 6.5 $ 14.7 $ 5.9 $ 84.2
Intangible assets, net............................... 518.9 590.7 829.3 604.0 799.2
Total assets......................................... 654.6 753.1 986.6 761.8 1,021.4
Total debt (including amounts due from/to Cox
Enterprises)....................................... 232.6 269.9 437.2 262.7 423.6
Total shareholders' equity........................... 287.3 313.0 378.7 317.7 413.6
</TABLE>
S-10
<PAGE> 14
SELECTED UNAUDITED PRO FORMA COMBINED
FINANCIAL INFORMATION
The following selected unaudited pro forma combined financial information
as of and for the year ended December 31, 1999 has been derived from the
unaudited pro forma combined financial statements contained in Cox Radio's
Current Report on Form 8-K, dated August 30, 1999 and filed with the Securities
and Exchange Commission on April 19, 2000.
The statement of operations data give effect to the acquisitions of the
AMFM Stations, the Miami Station and the Clear Channel Stations as if such
transactions had been consummated on January 1, 1999. The balance sheet data
gives effect to the acquisitions of the AMFM Stations, the Miami Station and the
Clear Channel Stations as if such transactions had occurred on December 31,
1999. None of the data presented below gives effect to the WALR Transaction.
The unaudited pro forma combined financial information gives effect to the
transactions under the purchase method of accounting for business combinations
and is based upon the assumptions and adjustments described in the notes to the
unaudited pro forma combined financial information presented in Cox Radio's Form
8-K dated August 30, 1999. Because the transactions have not yet been
consummated, a final determination of required purchase accounting adjustments,
including the allocation of the purchase price to the assets acquired and
liabilities assumed based on their respective fair values, has not yet been
made. Accordingly, the purchase accounting adjustments made in connection with
the development of the unaudited pro forma combined financial information are
preliminary and have been made solely for purposes of developing such unaudited
pro forma combined financial information. Upon determination of the final fair
values of certain assets and liabilities, the actual financial position and
results of operations may differ from the unaudited pro forma combined amounts
reflected below because of a variety of factors, including availability of
additional information, changes in values not currently identified and changes
in operating results between the dates of the unaudited pro forma combined
financial information and the date on which the acquisitions are consummated and
such final fair values are determined. However, we do not expect that such final
determination will have a material impact on Cox Radio's financial position or
results of operations.
The pro forma adjustments do not reflect any operating efficiencies and
cost savings that we may achieve with respect to the combined entities. The pro
forma adjustments do not include any adjustments to historical revenues for any
future price changes nor any adjustments to operating, marketing and general and
administrative expenses for any future operating changes.
The unaudited pro forma combined results do not purport to represent the
financial position or operating results that would have occurred had the
transactions been consummated on the date, or at the beginning of the period,
for which such acquisition has been given effect, or to project our financial
position or results of operations at any future date or for any future period.
S-11
<PAGE> 15
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
1999
------------
(DOLLARS IN
MILLIONS,
EXCEPT PER
SHARE DATA)
<S> <C>
STATEMENT OF OPERATIONS DATA:
Net revenues................................................ $ 349.5
Station operating expenses.................................. 216.1
Corporate general and administrative expense................ 11.3
Depreciation and amortization............................... 73.4
Gain on sales of assets and radio stations.................. 40.5
--------
Operating income............................................ 89.2
Interest expense, net....................................... 56.1
Net income.................................................. 18.1
Basic income per common share............................... $ 0.21
Diluted income per common share............................. $ 0.21
BALANCE SHEET DATA (END OF PERIOD):
Cash and cash equivalents, including restricted cash........ $ 11.7
Intangible assets, net...................................... 1,784.9
Total assets................................................ 1,961.5
Total debt (including amounts due from/to Cox
Enterprises).............................................. 920.9(1)
Total shareholders' equity.................................. 652.6
</TABLE>
---------------
(1) Cox Radio's Form 8-K dated August 30, 1999 assumed that the acquisitions of
the AMFM Stations, the Miami Station and the Clear Channel Stations were
financed with additional indebtedness. Giving effect to this offering and
following completion of the foregoing acquisitions, we would expect to have
total debt of approximately $576.4 million. Upon consummation of the WALR
Transaction, we would expect total debt to be approximately $856.4.
S-12
<PAGE> 16
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with Cox Radio's
unaudited historical consolidated statements of income for the three month
periods ended March 31, 2000 and March 31, 1999, which statements are included
in and incorporated by reference to Cox Radio's quarterly report on Form 10-Q
for the quarter ended March 31, 2000.
GENERAL
Cox Radio is a leading national radio broadcast company whose business,
which constitutes one reportable segment, is devoted to acquiring, developing
and operating radio stations located throughout the United States. Cox
Enterprises indirectly owns approximately 68% of the common stock of Cox Radio
through its wholly owned subsidiary, Cox Broadcasting, Inc., and has
approximately 95% of the voting power of Cox Radio.
The performance of a radio station group, such as Cox Radio, is customarily
measured by its ability to generate broadcast cash flow, EBITDA and after-tax
cash flow. Broadcast cash flow is defined as net revenues less station operating
expenses. EBITDA is defined as operating income excluding any gain on sales of
assets and radio stations plus depreciation and amortization. After-tax cash
flow is defined as income (loss) before extraordinary items excluding any gain
on sales of assets and radio stations plus depreciation, amortization and
deferred tax expense. Although broadcast cash flow, EBITDA and after-tax cash
flow are not recognized under generally accepted accounting principles, they are
accepted by the broadcasting industry as generally recognized measures of
performance and are used by analysts who report publicly on the condition and
performance of broadcasting companies. For the foregoing reasons, Cox Radio
believes that these measures will be useful to investors. However, broadcast
cash flow, EBITDA or after-tax cash flow should not be considered to be an
alternative to operating income or cash flows from operating activities (as a
measure of liquidity), each as determined in accordance with generally accepted
accounting principles, or an indicator of Cox Radio's performance under
generally accepted accounting principles.
The primary source of Cox Radio's revenues is the sale of local and
national advertising. Historically, approximately 73% and 25% of Cox Radio's net
revenues have been generated from local and national advertising, respectively.
Cox Radio's most significant station operating expenses are employees' salaries
and benefits, commissions, programming expenses and advertising and promotional
expenditures.
Cox Radio's revenues vary throughout the year. As is typical in the radio
broadcasting industry, Cox Radio's revenues and broadcast cash flows are
typically lowest in the first quarter and higher in the second and fourth
quarters. Cox Radio's operating results in any period may be affected by the
incurrence of advertising and promotional expenses that do not necessarily
produce commensurate revenues until the impact of the advertising and promotion
is realized in future periods.
ACQUISITIONS AND DISPOSITIONS
During the past several years, Cox Radio has actively managed its portfolio
of radio stations through selected acquisitions, dispositions and exchanges, as
well as through the use of local marketing agreements, or LMAs, and joint sales
agreements, or JSAs. Under an LMA, Cox Radio will operate a station and provide
programming, sales and marketing services. Under a JSA, Cox Radio will operate a
station and provide sales and marketing services. The broadcast revenues and
operating expenses of stations operated by Cox Radio under LMAs and JSAs have
been included in Cox Radio's operations since the respective dates of such
agreements.
All consummated and pending acquisitions discussed below have been or will
be accounted for using the purchase method. As such, the results of operations
of the acquired stations have been or will be included in the results of
operations from the date of acquisition. Specific transactions entered into or
consummated by Cox Radio during the three months ended March 31, 2000 and
through May 31, 2000 are discussed below. In addition, the pending acquisition
of the AMFM Stations has been included below due to its significance.
S-13
<PAGE> 17
In August 1999, Cox Radio agreed to acquire from AMFM Inc.: WEDR-FM in
Miami, Florida; WFOX-FM in Atlanta, Georgia; WFYV-FM, WAPE-FM, WBWL-AM, WKQL-FM,
WMXQ-FM and WOKV-AM in Jacksonville, Florida; WEFX-FM, WNLK-AM, WKHL-FM and
WSTC-AM in Stamford/Norwalk, Connecticut; and WPLR-FM and local sales rights at
WYBC-FM in New Haven, Connecticut, in exchange for KFI-AM and KOST-FM in Los
Angeles, California plus approximately $3 million. In October 1999, Cox Radio
began operating the stations to be acquired (other than WYBC-FM) pursuant to an
LMA and WYBC-FM pursuant to a JSA. Pending certain regulatory approvals,
including obtaining a temporary waiver of the FCC's newspaper-radio
cross-ownership rule for the acquisition of WFOX-FM in Atlanta, Cox Radio
anticipates consummating this transaction in the third quarter of 2000.
In January 2000, Cox Radio acquired the assets of KRTQ-FM (formerly
KTFX-FM), serving the Tulsa, Oklahoma market, for consideration of $3.5 million.
Cox Radio had been operating this station pursuant to an LMA since January 1999.
Also in January 2000, Cox Radio disposed of the assets of KACE-FM and
KRTO-FM, serving the Los Angeles, California market, for consideration of
approximately $75 million.
On March 3, 2000, Cox Radio entered into an agreement to acquire the assets
of radio stations KKBQ-FM, KLDE-FM and KKTL-FM, serving the Houston, Texas
market, and WKHK-FM, WMXB-FM, WKLR-FM and WTVR-AM, serving the Richmond,
Virginia market, for consideration of approximately $380 million. Pending
receipt of all necessary legal and regulatory approvals, Cox Radio anticipates
closing this transaction during the third quarter of 2000.
For tax purposes, Cox Radio intends to account for the disposition of
KACE-FM and KRTO-FM, serving the Los Angeles, California market, and the
acquisition of WKHK-FM, WMXB-FM, WKLR-FM and WTVR-AM, serving the Richmond,
Virginia market, as like-kind exchanges. Tax rules allow Cox Radio to defer a
substantial portion of the related tax gains on these transactions upon the
reinvestment of the net proceeds in qualifying future acquisitions. Restricted
cash of $75.6 million was held in escrow pending reinvestment.
On March 14, 2000, Cox Radio entered into an agreement to acquire the
outstanding capital stock of Marlin Broadcasting, Inc., which owns radio
stations WTMI-FM serving Miami, Florida; WCCC-FM and WCCC-AM serving Hartford,
Connecticut and WBOQ-FM serving Gloucester, Massachusetts, for approximately
$125 million. As part of this transaction, Cox Radio will sell certain assets of
Marlin comprising WCCC-FM, WCCC-AM and WBOQ-FM to certain principals of Marlin
for approximately $25 million. Cox Radio anticipates closing these transactions
during the third quarter of 2000.
On April 2, 2000, the LMA for WCNN-AM, serving the Atlanta, Georgia market,
terminated.
Also in April 2000, Cox Radio disposed of the assets of KGMZ-FM, serving
the Honolulu, Hawaii market, for approximately $6.6 million. Cox Radio continues
to manage this station's local, regional and national advertising sales efforts
under a JSA. In addition, Cox Radio is a guarantor of the buyer's financing for
this transaction.
On May 1, 2000, Cox Radio acquired the assets of KINE-FM, KCCN-FM and
KCCN-AM, serving the Honolulu, Hawaii market, for consideration of approximately
$17.8 million.
In June 2000, Cox Radio exercised its right of first refusal and has agreed
to acquire all of the capital stock of Midwestern Broadcasting Company, Inc.,
which owns WALR-FM serving the Atlanta market, for $280 million. WALR-FM is
Atlanta's fourth-ranked radio station among adults 25-54. Pending regulatory
approvals, Cox Radio anticipates consummating this transaction in the second
half of 2000.
In a related transaction, Cox Radio entered into an asset exchange
agreement with Salem Communications Corporation, under which Cox Radio would
exchange the license and transmitting facilities of WALR-FM, as well as the
license and transmitting facilities of radio stations KLUP-AM serving San
Antonio, Texas, and WSUN-AM serving Tampa, Florida, for the license and
transmitting facilities of radio station KKHT-FM serving Houston, Texas. Under
this agreement, Cox Radio would retain the intellectual property of WALR-FM and
intends to broadcast this programming on its WJZF-FM signal in Atlanta.
S-14
<PAGE> 18
Pending regulatory approvals, Cox Radio anticipates consummating this exchange
transaction concurrently with the closing of the acquisition of Midwestern
Broadcasting.
RESULTS OF OPERATIONS
Three months ended March 31, 2000 compared to three months ended March 31,
1999
Net revenues for the first quarter of 2000 increased $15.5 million to $75.9
million, a 25.7% increase over the first quarter of 1999. This increase was
primarily a result of the acquisition of radio stations in Tampa, Florida;
Louisville, Kentucky; and Honolulu, Hawaii; the acquisition of the operations of
radio stations in Jacksonville, Florida; New Haven, Connecticut;
Stamford/Norwalk, Connecticut; Atlanta, Georgia; and Miami, Florida; and was
offset somewhat by the disposition of stations in Syracuse, New York and the
operations of KFI-AM and KOST-FM in Los Angeles, California. In addition there
were significant increases in net revenues at stations in Atlanta, Georgia; Long
Island, New York; and Orlando, Florida; which were realized as a result of
continued strong ratings performance.
Station operating expenses increased $8.5 million to $49.2 million, an
increase of 21.0% over the first quarter of 1999. This increase was primarily a
result of the acquisition of radio stations in Tampa, Florida; Louisville,
Kentucky; and Honolulu, Hawaii, the acquisition of the operations of radio
stations in Jacksonville, Florida; New Haven, Connecticut; Stamford/Norwalk,
Connecticut; Atlanta, Georgia; and Miami, Florida. This increase was offset
somewhat by the disposition of stations in Syracuse, New York and the
disposition of the operations of KFI-AM and KOST-FM in Los Angeles, California;
and also due to higher programming and sales-related costs which are driven by
ratings and revenues, respectively.
Broadcast cash flow increased $7.0 million to $26.7 million, a 35.4%
increase over the first quarter of 1999 for the reasons discussed above.
Corporate general and administrative expenses increased $0.7 million to
$2.8 million primarily due to higher overhead costs incurred as a result of the
increase in number of stations owned and/or operated in 2000.
Operating income increased $50.8 million to $62.0 million for the first
quarter of 2000, primarily as a result of a $46.6 million pre-tax gain on the
sale of KACE-FM and KRTO-FM in Los Angeles, California and for the reasons
discussed above.
Interest expense during the first quarter of 2000 totaled $6.9 million as
compared to first quarter 1999 of $4.8 million as a result of borrowings
incurred to complete Cox Radio's acquisitions during 1999 and the first quarter
of 2000.
Net income increased $29.0 million to $32.9 million for the first quarter
of 2000, primarily as a result of an after-tax gain of $27.9 million on the sale
of KACE-FM and KRTO-FM in Los Angeles, California in January 2000 and for the
reasons discussed above.
LIQUIDITY AND CAPITAL RESOURCES
Cox Radio's primary source of liquidity is cash provided by operations.
Historically, cash requirements have been funded by Cox Radio's operating
activities and through borrowings under Cox Radio's bank credit facility
described below. We expect the aggregate cash requirements to complete the
acquisitions of the AMFM Stations, the Miami Station and the Clear Channel
Stations will be approximately $407.4 million, and we expect the cash
requirements to complete the WALR Transaction will be approximately $280.0. We
expect to finance these transactions with the proceeds from the sales of Class A
common stock in this offering, cash flow from operations and additional
borrowings.
For the three months ended March 31, 2000 as compared to the three months
ended March 31, 1999, cash from operations decreased $7.4 million to $16.3
million, primarily due to the earlier gain on sales of radio stations and the
net change in working capital accounts. In addition, cash requirements
historically have been funded on a temporary basis through intercompany advances
from Cox Enterprises under a revolving credit facility. Borrowings, if any, by
Cox Radio under the Cox Enterprises credit facility would typically be
S-15
<PAGE> 19
repaid by Cox Radio within 30 days. Borrowings, if any, under the Cox
Enterprises credit facility would accrue interest at Cox Enterprises' commercial
paper rate, plus 40 basis points. Cox Enterprises continues to perform
day-to-day cash management services for Cox Radio.
On March 7, 1997, Cox Radio entered into a $300 million 5-year senior
unsecured revolving credit facility with certain guarantors and banks, including
Texas Commerce Bank National Association, as Administrative Agent, Nationsbank
of Texas, N.A., as Syndications Agent, and Citibank, N.A., as Documentation
Agent. The interest rate is based on the London Interbank Offered Rate, plus a
spread determined by the ratio of Cox Radio's debt to EBITDA. This facility
includes a commitment fee on the unused portion of the total amount available of
.1% to .25% based on the ratio of Cox Radio's debt to EBITDA. Cox Radio borrowed
approximately $110 million under this bank credit facility to consummate its
acquisition of NewCity Communications in 1997. At March 31, 2000 and December
31, 1999, Cox Radio had approximately $220 million of outstanding indebtedness
under the bank credit facility and had approximately $80 million available under
the bank credit facility. The interest rate applied to amounts due under the
bank credit facility was 6.58% at March 31, 2000 and 6.9% at December 31, 1999.
The bank credit facility contains, among other provisions, defined requirements
as to ratio of debt to EBITDA and ratio of EBITDA to interest expense. At March
31, 2000 and December 31, 1999, Cox Radio was in compliance with these
covenants. Borrowings under the bank credit facility approximate fair value
based upon the current borrowing rates available to Cox Radio.
Cox Radio is in the process of replacing its existing $300 million credit
facility with $700 million of new credit facilities, consisting of a $350
million 364-day credit facility and a $350 million 5-year credit facility. Cox
Radio expects that the new credit facilities will have variable interest rates
based on Cox Radio's credit ratings. The new credit facilities are subject to
negotiation of definitive documentation and, although Cox Radio cannot assure
you when or if it will complete these negotiations, Cox Radio expects to have
the new credit facilities in place by the end of the second quarter or early in
the third quarter of 2000.
On May 26, 1998, Cox Radio issued and sold an aggregate of $200 million
principal amount of notes in an offering exempt from registration under Rule
144A of the Securities Act of 1933, as amended, which have been exchanged for
notes which have been registered under the Securities Act of 1933. The
registered notes consist of $100 million principal amount of 6.25% notes due in
full in 2003 and $100 million principal amount of 6.375% notes due in full in
2005. On December 14, 1998, pursuant to the Registration Rights Agreement dated
as of May 26, 1998 among Cox Radio, its then-wholly owned subsidiaries WSB, Inc.
and WHIO, Inc. (each a former guarantor of the notes), NationsBanc Montgomery
Securities LLC, Chase Securities, Inc., and J.P. Morgan Securities, Inc., Cox
Radio consummated an exchange offer pursuant to which Cox Radio exchanged $200
million principal amount of the notes originally sold on May 26, 1998, for an
aggregate of $200 million principal amount of notes (the terms and form of which
are the same in all material respects as the original notes, except as to
restrictions on transfer) which have been registered under the Securities Act of
1933. As a result of the mergers of WSB, Inc. and WHIO, Inc. into Cox Radio,
WSB, Inc. and WHIO, Inc. are no longer guarantors of the notes. As a result of
the transfer of certain FCC licenses, permits and authorizations held by Cox
Radio to CXR Holdings, Inc., a wholly owned subsidiary of Cox Radio, CXR
Holdings became a guarantor of the notes on February 1, 1999. At March 31, 2000
and December 31, 1999, the estimated fair value of these notes was approximately
$191.3 and $191.0 million, respectively, based on quoted market prices.
In September 1997, Cox Radio entered into interest rate swap agreements
with certain lenders providing bank financing under the bank credit facility.
Pursuant to the interest rate swap agreements, Cox Radio has exchanged its
floating rate interest obligations on an aggregate of $100 million in principal
amount at an average fixed rate of 6.23% per annum having an average maturity of
6.25 years. The fixing of interest rates for this period reduces Cox Radio's
exposure to the uncertainty of floating interest rates. The differential paid or
received on the interest rate swap agreements is recognized as an adjustment to
interest expense. The counterparties to these interest rate swap agreements are
a diverse group of major financial institutions. Cox Radio is exposed to credit
loss in the event of nonperformance by these counterparties. However, Cox Radio
does not anticipate nonperformance by these counterparties, and no material loss
would be expected from their nonperformance. The fair value of the interest rate
swap agreements was not recognized in the
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<PAGE> 20
consolidated financial statements since they are accounted for as hedges. The
estimated fair value of the interest rate swap agreements, based on current
market rates, approximated a net receivable of $2.3 million and $1.9 million at
March 31, 2000 and December 31, 1999, respectively.
Future cash requirements are expected to include capital expenditures,
principal and interest payments on indebtedness and funds for acquisitions. Cox
Radio expects its operations to generate sufficient cash to meet its capital
expenditures and debt service requirements. Additional cash requirements,
including funds for pending or other acquisitions, will be funded from various
sources, including the proceeds from the sale of Class A common stock in this
offering and to Cox Enterprises in the concurrent private placement, bank
financing and, if or when appropriate, other issuances of Cox Radio securities.
S-17
<PAGE> 21
BUSINESS
The following table summarizes certain information relating to radio
stations owned or operated by Cox Radio, assuming consummation of all pending
transactions:
<TABLE>
<CAPTION>
MARKET RANK
MARKET BY REVENUE AM STATIONS FM STATIONS TOTAL
------ ----------- ----------- ----------- -----
<S> <C> <C> <C> <C>
Atlanta, Georgia..................................... 7 1 4 5
Houston, Texas....................................... 8 -- 4 4
Miami, Florida....................................... 12 -- 4 4
Tampa, Florida....................................... 21 -- 6 6
Orlando, Florida..................................... 24 2 5 7
San Antonio, Texas................................... 32 2 5 7
Jacksonville, Florida................................ 43 2 4 6
Louisville, Kentucky................................. 45 -- 4 4
Richmond, Virginia................................... 47 1 3 4
Long Island, New York................................ 48 -- 3 3
Birmingham, Alabama.................................. 49 2 5 7
Dayton, Ohio......................................... 57 1 3 4
Tulsa, Oklahoma...................................... 60 2 4 6
Honolulu, Hawaii..................................... 73 2 5 7
Bridgeport, Connecticut.............................. 85 -- 1 1
New Haven, Connecticut............................... 102 -- 2 2
Stamford/Norwalk, Connecticut........................ 200 2 2 4
-- -- --
17 64 81
== == ==
</TABLE>
---------------
Source: BIA Research, Inc., 1999 Radio Market Report (4th edition).
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<PAGE> 22
MANAGEMENT
The following table sets forth certain information with respect to our
executive officers and directors as of June 21, 2000.
<TABLE>
<CAPTION>
NAME AGE POSITION
---- --- --------
<S> <C> <C>
Robert F. Neil......................................... 41 President, Chief Executive Officer
and Director
Richard A. Ferguson.................................... 54 Vice President, Co-Chief Operating
Officer and Director
Marc W. Morgan......................................... 50 Vice President, Co-Chief Operating
Officer and Director
Maritza C. Pichon...................................... 46 Chief Financial Officer
Robert B. Green........................................ 47 Group Vice President
Richard A. Reis........................................ 46 Group Vice President
Nicholas D. Trigony.................................... 59 Chairman of the Board
David E. Easterly...................................... 57 Director
Ernest D. Fears, Jr.................................... 67 Director
Paul M. Hughes......................................... 61 Director
James C. Kennedy....................................... 52 Director
</TABLE>
Robert F. Neil has served as a director and as President and Chief
Executive Officer of Cox Radio since July 1996 and was Executive Vice
President -- Radio of Cox Broadcasting from June 1992 to 1996. Previously, he
was Vice President and General Manager of WSB-AM/FM (Atlanta, Georgia). Mr. Neil
joined Cox Broadcasting in November 1986. Previously, Mr. Neil was Operations
Manager from December 1984 to November 1986 at WYAY-FM (Gainesville, Florida).
He served at WYYY-FM and WSYR-AM (Syracuse, New York) as Operations Manager from
October 1983 to December 1984 and as Program Director from March 1983 to October
1983.
Richard A. Ferguson has served as a director of Cox Radio since May 1997
and as Vice President and Co-Chief Operating Officer since July 1999. Prior to
that, he served as Vice President and Chief Operating Officer since April 1997.
Previously, Mr. Ferguson served as President, Chief Executive Officer and a
director of NewCity Communications, Inc. since its organization in 1986. He
served as the President of Katz Broadcasting Company, Inc., a subsidiary of Katz
Communications, Inc., from 1981 to 1986, when he led a management group in
organizing NewCity to purchase all of the stock of Katz Broadcasting Company.
Prior to 1981, he served as the President of Park City Communications, Inc.,
until Park City was acquired by Katz Communications, Inc. Mr. Ferguson is
Immediate Past Chairman of the Joint Board of Directors of the National
Association of Broadcasters and a member of the Radio Operators Caucus.
Marc W. Morgan has served as a director of Cox Radio since August 1999 and
as Vice President and Co-Chief Operating Officer since July 1999. Prior to that,
he served as Senior Group Vice President of Cox Radio from May 1997 to June
1999. He has been Vice President and General Manager of WSB Radio since July
1992. Previously, Mr. Morgan was Senior Vice President of Cox Radio from July
1996 to May 1997, and Vice President and General Manager of WCKG-FM (Chicago,
Illinois) from January 1984 to July 1992.
Maritza C. Pichon has served as Chief Financial Officer of Cox Radio since
July 1996. She was Assistant Controller of Cox Enterprises from June 1990
through June 1996. Previously, she served as manager of accounting, senior
accountant and staff accountant. Ms. Pichon joined Cox Enterprises in September
1984.
Robert B. Green has served as Group Vice President of Cox Radio since May
1997 and was Vice President and General Manager of Cox Radio's Miami, Florida
radio stations, WFLC-FM and WHQT-FM, since September 1992. Previously, Mr. Green
was Regional Vice President of Cox Radio from July 1996 to
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<PAGE> 23
May 1997, and Station Manager of WSB-AM/FM (Atlanta, Georgia) from January 1990
to September 1992.
Richard A. Reis has served as Group Vice President of Cox Radio since April
1997. Previously, he was a Director and Group Vice President of NewCity since
its organization in 1986. From 1983 to 1984, he served as Vice President of the
Broadcasting Company, then a subsidiary of Katz Broadcasting Company, Inc.,
becoming Group Vice President in 1984. He was General Manager of WFTQ-AM and
WAAF-FM in Worcester, Massachusetts from 1981 and 1983, respectively, to 1989.
Since 1989, he has served as General Manager of WDBO-AM and WWKA-FM in Orlando,
Florida and of WCFB-FM since 1992. Since July 1996, Mr. Reis has served as Group
Vice President of Cox Radio's six Orlando, Florida radio stations (WDBO-AM,
WWKA-FM, WCFB-FM, WHOO-AM, WHTQ-FM and WMMO-FM). He is a member of the Orlando
Radio Broadcasters Association and Orlando Ad Federation.
Nicholas D. Trigony has served as Chairman of the Board of Directors of Cox
Radio since July 1996 and has served as President of Cox Broadcasting since
March 1990. Mr. Trigony joined Cox Broadcasting in September 1986 as Executive
Vice President -- Radio and was Executive Vice President -- Broadcast from April
1989 to March 1990. He is also past Chairman of the Board of the National
Association of Television Program Executives and serves on its Executive
Committee. Mr. Trigony is a past chairman and current board member of the
Television Operators Caucus and past Chairman of the National Association of
Broadcaster's Media Convergence Task Force.
David E. Easterly has served as director of Cox Radio since July 1996 and
has served as President and Chief Operating Officer of Cox Enterprises since
October 1994. He was President of Cox Newspapers, Inc., a subsidiary of Cox
Enterprises, from May 1986 through October 1994. Mr. Easterly joined Cox
Enterprises in 1970 at the Dayton Daily News, transferring to Atlanta in 1981 as
Vice President of Operations for Cox Newspapers. He was named Publisher of the
Cox Enterprises-owned Atlanta Journal-Constitution in April 1984. Mr. Easterly
is a member of the Board of Directors of the Associated Press and Mutual
Insurance Company, Ltd. and of MP3.com, Inc. Mr. Easterly also serves as a
director of Cox Enterprises and of Cox Communications, Inc., a majority-owned
subsidiary of Cox Enterprises.
Ernest D. Fears, Jr. has served as director of Cox Radio since December
1996. He has been a lecturer at Howard University since 1990 and was a
consultant to the National Institute of Health from February to August of 1996.
From June 1992 to August 1992, he was General Manager for radio station XFRM-FM
in San Diego, California/Tijuana, Mexico. Mr. Fears retired in 1987 as General
Manager of American Broadcasting Company's WRQX-FM in Washington D.C.
Paul M. Hughes has served as director of Cox Radio since December 1996. He
has been President and Chief Operating Officer of OG Holding LTD since April
1995. From June 1991 through April 1, 1995 he was Chairman of Hughes
Broadcasting Partners, and from April 1995 through December 1998 he was
President of Great Trails Broadcasting, Inc.
James C. Kennedy has served as a director of Cox Radio since July 1996. He
has served as Chairman of the Board of Directors and Chief Executive Officer of
Cox Enterprises since January 1988, and prior to that time was Cox Enterprises'
President and Chief Operating Officer. Mr. Kennedy joined Cox Enterprises in
1972, and initially worked with Cox Enterprises' Atlanta Newspapers. He is
Chairman of the Board of Directors of Cox Communications, Inc., and a director
of Flagler Systems, Inc. and an advisory director of Chase Bank of Texas, N.A.
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<PAGE> 24
CERTAIN UNITED STATES FEDERAL TAX CONSIDERATIONS
FOR NON-U.S. HOLDERS
The following is a summary of the material United States federal income,
estate and gift tax consequences of the purchase, ownership and disposition of
the Cox Radio Class A common stock by holders that are Non-U.S. Holders, as that
term is defined below. This summary does not purport to be a complete analysis
of all potential tax effects and is based upon the Internal Revenue Code of
1986, as amended, existing and proposed regulations promulgated thereunder,
published rulings and court decisions, all as in effect and existing on the date
hereof and all of which are subject to change at any time, which change may be
retroactive or prospective. Unless otherwise specifically noted, this summary
applies only to those persons that purchased common stock for cash and hold the
Class A common stock as a capital asset within the meaning of Section 1221 of
the Internal Revenue Code.
THIS SUMMARY IS FOR GENERAL INFORMATION ONLY AND DOES NOT ADDRESS THE TAX
CONSEQUENCES TO TAXPAYERS WHO ARE SUBJECT TO SPECIAL RULES OR CIRCUMSTANCES.
THIS SUMMARY DOES NOT ADDRESS ANY TAX CONSEQUENCES ARISING UNDER ANY STATE,
MUNICIPALITY, FOREIGN COUNTRY OR OTHER TAXING JURISDICTION. WE URGE YOU TO
CONSULT YOUR OWN TAX ADVISOR REGARDING THE UNITED STATES FEDERAL TAX
CONSEQUENCES OF PURCHASING, OWNING AND DISPOSING OF THE CLASS A COMMON STOCK,
INCLUDING YOUR STATUS AS A NON-U.S. HOLDER, AS WELL AS ANY TAX CONSEQUENCES THAT
MAY ARISE UNDER THE LAWS OF ANY STATE, MUNICIPALITY, FOREIGN COUNTRY OR OTHER
TAXING JURISDICTION.
GENERAL
A Non-U.S. Holder means a beneficial owner of the common stock that is not:
(i) a citizen or individual resident, as defined in Section 7701(b) of
the Internal Revenue Code, of the United States;
(ii) a corporation, including any entity treated as a corporation for
United States federal income tax purposes, created or organized under the
laws of the United States, any State thereof or the District of Columbia;
(iii) an estate, the income of which is subject to United States federal
income tax without regard to its source; or
(iv) a trust, if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more
United States persons have the authority to control all substantial
decisions of the trust.
Notwithstanding the preceding sentence, certain trusts in existence on August
20, 1996, and treated as U.S. Holders prior to such date, may elect to continue
to be treated as U.S. Holders. If a partnership holds Cox Radio Class A common
stock, the tax treatment of a partner will generally depend upon the status of
the partner and upon the activities of the partnership. Partners of partnerships
holding Cox Radio Class A common stock should consult their tax advisors.
DIVIDENDS
Dividends, if any, paid to a Non-U.S. Holder will generally be subject to
the withholding of United States federal income tax at the rate of 30% of the
gross amount of such dividends, unless:
- the dividends are effectively connected with the conduct of a trade or
business (or, if an income tax treaty applies, are attributable to a
"permanent establishment", as defined therein) within the United States
of the Non-U.S. Holder, and such Non-U.S. Holder timely furnishes to us
or our paying agent two duly executed copies of Internal Revenue Service
Form W-8ECI, or any successor form, executed under penalties of perjury;
or
- such Non-U.S. Holder is entitled to a reduced withholding tax rate
pursuant to any applicable income tax treaty.
S-21
<PAGE> 25
For purposes of determining whether tax will be withheld at a reduced rate
as specified by an income tax treaty, current law permits us to presume that
dividends paid to an address in a foreign country are paid to a resident of such
country absent definite knowledge that such presumption is not warranted.
However, under newly issued U.S. Treasury regulations, in the case of dividends
paid after December 31, 2000, in order to obtain a reduced rate of withholding
under an income tax treaty, a Non-U.S. Holder generally will be required to
furnish to us or our agent a duly executed Internal Revenue Service Form W-8BEN
(or any successor form) certifying, under penalties of perjury, that such
Non-U.S. Holder is entitled to benefits under an income tax treaty. The new
regulations also provide special rules for dividend payments made to foreign
intermediaries, U.S. or foreign wholly-owned entities that are disregarded for
U.S. federal income tax purposes, and entities that are treated as fiscally
transparent in the United States, the applicable income tax treaty jurisdiction
or both. We urge you to consult your own tax advisor concerning the effect, if
any, of the adoption of these new U.S. Treasury regulations on an investment in
the Class A common stock. A Non-U.S. Holder who is eligible for a reduced
withholding rate may obtain a refund of any excess amounts withheld by filing an
appropriate claim for a refund with the Internal Revenue Service.
Dividends paid to a Non-U.S. Holder that are effectively connected with the
conduct of a trade or business (or, if an income tax treaty applies, are
attributable to a "permanent establishment," as defined therein) within the
United States of the Non-U.S. Holder will generally be taxed on a net income
basis (that is, after allowance for applicable deductions) at the graduated
rates that are applicable to United States persons. In the case of a Non-U.S.
Holder that is a corporation, such income may also be subject to the United
States federal branch profits tax (which is generally imposed on a foreign
corporation upon the deemed repatriation from the United States of effectively
connected earnings and profits) at a 30% rate, unless the rate is reduced or
eliminated by an applicable income tax treaty and the Non-U.S. Holder is a
qualified resident of the treaty country.
GAIN ON SALE OR OTHER DISPOSITION
A Non-U.S. Holder generally will not be subject to regular United States
federal income or withholding tax on gain recognized on a sale or other
disposition of the Class A common stock, unless:
(i) the gain is effectively connected with the conduct of a trade or
business (or, if an income tax treaty applies, is attributable to a
"permanent establishment," as defined therein) within the United States of
the Non-U.S. Holder or of a partnership, trust or estate in which such
Non-U.S. Holder is a partner or beneficiary;
(ii) we have been, are or become a "United States real property holding
corporation" within the meaning of Section 897(c)(2) of the Internal
Revenue Code at any time within the shorter of the five-year period
preceding such sale or other disposition or such Non-U.S. Holder's holding
period for the Class A common stock; or
(iii) the Non-U.S. Holder is an individual that:
(a) is present in the United States for 183 days or more in the
taxable year of the sale or other disposition; and
(b) either (1) has a "tax home" in the United States, as specially
defined for purposes of the United States federal income tax, or (2)
maintains an office or other fixed place of business in the United
States and the gain from the sale or other disposition of the Class A
common stock is attributable to such office or other fixed place of
business.
A corporation is generally considered to be a United States real property
holding corporation if the fair market value of its "United States real property
interests" within the meaning of Section 897(c)(1) of the Internal Revenue Code
equals or exceeds 50% of the sum of the fair market value of its worldwide real
property interests plus the fair market value of any other of its assets used or
held for use in a trade or business. We believe that we have not been, are not
currently and are not likely to become a United States real property holding
corporation. Further, even if we were to become a United States real property
holding corporation, any gain recognized by a Non-U.S. Holder still would not be
subject to U.S. federal income tax if
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<PAGE> 26
the Class A common stock were considered to be "regularly traded" (within the
meaning of applicable U.S. Treasury regulations) on an established securities
market (e.g., the New York Stock Exchange, on which the Class A common stock is
listed), and the Non-U.S. Holder did not own, directly or indirectly, at any
time during the five-year period ending on the date of the sale or other
disposition, more than 5% of the Class A common stock.
Gains realized by a Non-U.S. Holder that are effectively connected with the
conduct of a trade or business (or, if an income tax treaty applies, are
attributable to a "permanent establishment," as defined therein) within the
United States of the Non-U.S. Holder will generally be taxed on a net income
basis (that is, after allowance for applicable deductions) at the graduated
rates that are applicable to United States persons. In the case of a Non-U.S.
Holder that is a corporation, such income may also be subject to the United
States federal branch profits tax (which is generally imposed on a foreign
corporation upon the deemed repatriation from the United States of effectively
connected earnings and profits) at a 30% rate, unless the rate is reduced or
eliminated by an applicable income tax treaty and the Non-U.S. Holder is a
qualified resident of the treaty country.
Individual Non-U.S. Holders may also be subject to tax pursuant to
provisions of United States federal income tax law applicable to certain United
States expatriates, including former long-term residents of the United States.
FEDERAL ESTATE AND GIFT TAXES
Class A common stock owned or treated as owned by an individual (regardless
of whether such an individual is a citizen or a resident of the United States)
at the date of death will be included in such individual's estate for United
States federal estate tax purposes, unless an applicable estate tax treaty
provides otherwise.
A Non-U.S. Holder will not be subject to United States federal gift tax on
a transfer of Class A common stock, unless such person is an individual
domiciled in the United States or such person is an individual subject to
provisions of United States federal gift tax law applicable to certain United
States expatriates, including certain former long-term residents of the United
States.
BACKUP WITHHOLDING TAX AND INFORMATION REPORTING
We must report annually to the Internal Revenue Service and to each
Non-U.S. Holder the amount of dividends paid to, and the tax withheld with
respect to, such Non-U.S. Holder, regardless of whether tax was actually
withheld and whether withholding was reduced by an applicable income tax treaty.
Pursuant to certain income tax treaties and other agreements, that information
may also be made available to the tax authorities of the country in which the
Non-U.S. Holder resides.
United States federal backup withholding tax is imposed at the rate of 31%
on certain payments to persons not otherwise exempt who fail to furnish certain
identifying information. This tax will generally not apply to:
- dividends paid to a Non-U.S. Holder that are subject to withholding at
the 30% rate (or that are subject to withholding at a reduced rate under
an applicable income tax treaty); or
- under current law, dividends paid to a Non-U.S. Holder at an address
outside of the United States, unless the payor has knowledge that the
payee is a United States person.
Under newly issued U.S. Treasury regulations, in the case of dividends paid
after December 31, 2000, a Non-U.S. Holder will generally be subject to backup
withholding tax, unless certain certification procedures (or in the case of
payments made outside of the United States with respect to an offshore account,
certain documentary evidence procedures) are satisfied, directly or through a
foreign intermediary.
The backup withholding and information reporting requirements will
generally also apply to the gross proceeds paid to a Non-U.S. Holder upon the
sale or other disposition of Class A common stock by or through a United States
office of a United States or foreign broker, unless the Non-U.S. Holder
certifies to the broker
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<PAGE> 27
under penalties of perjury as to, among other things, such holder's name,
address and status as a Non-U.S. Holder by timely filing two duly executed
copies of Internal Revenue Service Form W-8BEN (or any successor form) with the
broker, or unless the Non-U.S. Holder otherwise establishes an exemption.
Information reporting requirements (but not backup withholding tax) will
generally apply to a payment of the proceeds of a sale or other disposition of
Class A common stock effected at a foreign office of:
(i) a United States broker;
(ii) a foreign broker 50% or more of whose gross income for certain
periods is effectively connected with the conduct of a trade or business
within the United States;
(iii) a foreign broker that is a "controlled foreign corporation" for
United States federal income tax purposes; or
(iv) pursuant to newly issued U.S. Treasury regulations effective after
December 31, 2000, a foreign broker that is (a) a foreign partnership one
or more of whose partners are U.S. persons that in the aggregate hold more
than 50% of the income or capital interest in the partnership at any time
during its tax year, or (b) a foreign partnership engaged at any time
during its tax year in the conduct of a trade or business in the United
States,
unless the broker has certain documentary evidence in its records that the
holder is a Non-U.S. Holder (and the broker has no knowledge to the contrary)
and certain other conditions are met, or unless the Non-U.S. Holder otherwise
establishes an exemption.
Neither backup withholding tax nor information reporting will generally
apply to a payment of the proceeds of a sale or other disposition of Class A
common stock effected at a foreign office of a foreign broker not subject to the
preceding paragraph. You should consult your own tax advisor concerning the
effect, if any, of the adoption of the newly issued U.S. Treasury regulations on
backup withholding tax and information reporting on an investment in the Common
Stock.
Backup withholding tax is not an additional tax. Any amounts withheld under
the backup withholding tax rules will be refunded or credited against the
Non-U.S. Holder's United States federal income tax liability; provided, however,
that the Non-U.S. Holder files an appropriate claim for a refund with the
Internal Revenue Service.
S-24
<PAGE> 28
UNDERWRITING
Under the terms and subject to the conditions contained in an underwriting
agreement dated June 21, 2000, we have agreed to sell to the underwriters named
below, for whom Credit Suisse First Boston Corporation, Morgan Stanley & Co.
Incorporated, Allen & Company Incorporated, Banc of America Securities LLC,
First Union Securities, Inc., FleetBoston Robertson Stephens Inc. and Salomon
Smith Barney Inc. are acting as representatives, the following respective
numbers of shares of Class A common stock. Credit Suisse First Boston
Corporation and Morgan Stanley & Co. Incorporated are acting as joint
book-running managers for this offering.
<TABLE>
<CAPTION>
NUMBER
UNDERWRITER OF SHARES
----------- ---------
<S> <C>
Credit Suisse First Boston Corporation...................... 2,805,000
Morgan Stanley & Co. Incorporated........................... 2,805,000
Allen & Company Incorporated ............................... 638,000
Banc of America Securities LLC.............................. 638,000
First Union Securities, Inc. ............................... 638,000
FleetBoston Robertson Stephens Inc. ........................ 638,000
Salomon Smith Barney Inc. .................................. 638,000
---------
Total.................................................. 8,800,000
=========
</TABLE>
The underwriting agreement provides that the underwriters are obligated to
purchase all the shares of Class A common stock in the offering if any are
purchased, other than those shares covered by the over-allotment option
described below. The underwriting agreement also provides that if an underwriter
defaults, the purchase commitments of non-defaulting underwriters may be
increased or the offering of Class A common stock may be terminated.
We have granted to the underwriters a 30-day option to purchase on a pro
rata basis up to 1,320,000 additional shares at the public offering price less
the underwriting discounts and commissions. The option may be exercised only to
cover any over-allotments of Class A common stock.
The underwriters propose to offer the shares of Class A common stock
initially at the public offering price on the cover page of this prospectus
supplement and to selling group members at that price less a concession of $0.70
per share. The underwriters and selling group members may allow a discount of
$0.10 per share on sales to other broker/dealers. After the public offering, the
public offering price and concession and discount to broker/dealers may be
changed by the representatives.
The following table summarizes the compensation and estimated expenses we
will pay.
<TABLE>
<CAPTION>
PER SHARE TOTAL
------------------------------- -------------------------------
WITHOUT WITH WITHOUT WITH
OVER-ALLOTMENT OVER-ALLOTMENT OVER-ALLOTMENT OVER-ALLOTMENT
-------------- -------------- -------------- --------------
<S> <C> <C> <C> <C>
Underwriting Discounts and
Commissions paid by us................... $1.16 $1.16 $10,208,000 $11,739,200
Expenses payable by us..................... $0.06 $0.05 $ 500,000 $ 500,000
</TABLE>
We have agreed that we will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Securities and
Exchange Commission a registration statement under the Securities Act relating
to, any shares of our common stock or securities convertible into or
exchangeable or exercisable for any shares of our common stock, or publicly
disclose the intention to make any such offer, sale, pledge, disposition or
filing, without the prior written consent of Credit Suisse First Boston
Corporation and Morgan Stanley & Co. Incorporated for a period of 90 days after
the date of this prospectus supplement, except issuances pursuant to the
exercise of employee stock options outstanding on the date hereof.
Cox Enterprises and executive officers and directors of Cox Radio have
agreed that they will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any shares of our Class A common stock or
securities convertible into or exchangeable or exercisable for any shares of our
common stock, enter
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<PAGE> 29
into a transaction which would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or in part, any of the
economic consequences of ownership of our common stock, whether any such
aforementioned transaction is to be settled by delivery of our common stock or
such other securities, in cash or otherwise, or publicly disclose the intention
to make any such offer, sale, pledge or disposition, or to enter into any such
transaction, swap, hedge or other arrangement, without, in each case, the prior
written consent of Credit Suisse First Boston Corporation for a period of 90
days after the date of this prospectus supplement.
We have agreed to indemnify the underwriters against liabilities under the
Securities Act, or contribute to payments which the underwriters may be required
to make in that respect.
In the ordinary course of business, certain of the underwriters and their
affiliates have from time to time provided investment banking, general financing
and banking and financial advisory services to us and our affiliates and have
also acted as representatives of various other underwriters in connection with
public offerings of our securities.
The representatives may engage in over-allotment, stabilizing transactions,
syndicate covering transactions and penalty bids in accordance with Regulation M
under the Securities Exchange Act of 1934.
- Over-allotment involves syndicate sales in excess of the offering size,
which creates a syndicate short position.
- Stabilizing transactions permit bids to purchase the underlying security
so long as the stabilizing bids do not exceed a specified maximum.
- Syndicate covering transactions involve purchases of the common stock in
the open market after the distribution has been completed in order to
cover syndicate short positions.
- Penalty bids permit the representatives to reclaim a selling concession
from a syndicate member when the common stock originally sold by the
syndicate member is purchased in a stabilizing or syndicate covering
transaction to cover syndicate short positions.
These stabilizing transactions, syndicate covering transactions and penalty bids
may cause the price of the common stock to be higher than it would otherwise be
in the absence of these transactions. These transactions may be effected on The
New York Stock Exchange or otherwise and, if commenced, may be discontinued at
any time.
A prospectus supplement in electronic format may be made available on the
web sites maintained by one or more of the underwriters participating in this
offering. The representatives may agree to allocate a number of shares to
underwriters for sale to their online brokerage account holders. Internet
distributions will be allocated by the underwriters that will make internet
distributions on the same basis as other allocations.
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<PAGE> 30
NOTICE TO CANADIAN RESIDENTS
RESALE RESTRICTIONS
The distribution of the Class A common stock in Canada is being made only
on a private placement basis exempt from the requirement that we prepare and
file a prospectus with the securities regulatory authorities in each province
where trades of common stock are effected. Accordingly, any resale of the Class
A common stock in Canada must be made in accordance with applicable securities
laws which will vary depending on the relevant jurisdiction, and which may
require resales to be made in accordance with available statutory exemptions or
pursuant to a discretionary exemption granted by the applicable Canadian
securities regulatory authority. Purchasers are advised to seek legal advice
prior to any resale of the Class A common stock.
REPRESENTATIONS OF PURCHASERS
Each purchaser of Class A common stock in Canada who receives a purchase
confirmation will be deemed to represent to us and the dealer from whom such
purchase confirmation is received that (i) such purchaser is entitled under
applicable provincial securities laws to purchase such Class A common stock
without the benefit of a prospectus qualified under such securities laws, (ii)
where required by law, that such purchaser is purchasing as principal and not as
agent, and (iii) such purchaser has reviewed the text above under "Resale
Restrictions."
RIGHTS OF ACTION (ONTARIO PURCHASERS)
The securities being offered are those of a foreign issuer and Ontario
purchasers will not receive the contractual right of action prescribed by
Ontario securities law. As a result, Ontario purchasers must rely on other
remedies that may be available, including common law rights of action for
damages or rescission or rights of action under the civil liability provisions
of the U.S. federal securities laws.
ENFORCEMENT OF LEGAL RIGHTS
All of the issuer's directors and officers as well as the experts named
herein may be located outside of Canada and, as a result, it may not be possible
for Canadian purchasers to effect service of process within Canada upon the
issuer or such persons. All or a substantial portion of the assets of the issuer
and such persons may be located outside of Canada and, as a result, it may not
be possible to satisfy a judgment against the issuer or such persons in Canada
or to enforce a judgment obtained in Canadian courts against such issuer or
persons outside of Canada.
NOTICE TO BRITISH COLUMBIA RESIDENTS
A purchaser of Class A common stock to whom the Securities Act (British
Columbia) applies is advised that such purchaser is required to file with the
British Columbia Securities Commission a report within ten days of the sale of
any Class A common stock acquired by such purchaser pursuant to this offering.
Such report must be in the form attached to British Columbia Securities
Commission Blanket Order BOR #95/17, a copy of which may be obtained from us.
Only one such report must be filed in respect of Class A common stock acquired
on the same date and under the same prospectus exemption.
TAXATION AND ELIGIBILITY FOR INVESTMENT
Canadian purchasers of Class A common stock should consult their own legal
and tax advisors with respect to the tax consequences of an investment in the
Class A common stock in their particular circumstances and with respect to the
eligibility of the Class A common stock for investment by the purchaser under
relevant Canadian legislation.
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<PAGE> 31
LEGAL MATTERS
Certain legal matters with respect to the validity of the Class A common
stock offered hereby will be passed upon by Dow, Lohnes & Albertson, PLLC,
Washington, D.C. The underwriters have been represented by Cravath, Swaine &
Moore, New York, New York.
S-28
<PAGE> 32
PROSPECTUS
$750,000,000
COX RADIO, INC.
CLASS A COMMON STOCK
PREFERRED STOCK
SUBSCRIPTION RIGHTS WARRANTS
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
DEBT SECURITIES
JUNIOR SUBORDINATED DEBENTURES
COX RADIO TRUST I
COX RADIO TRUST II
TRUST PREFERRED SECURITIES FULLY AND UNCONDITIONALLY GUARANTEED
TO THE EXTENT PROVIDED IN THIS PROSPECTUS BY
COX RADIO, INC.
------------------------
This prospectus is part of a shelf registration statement which Cox Radio
and the Cox Radio Trusts have filed with the Securities and Exchange Commission.
Under the shelf registration statement, Cox Radio may offer: shares of Class A
common stock, shares of preferred stock; stock purchase contracts to purchase
shares of Class A common stock; stock purchase units; unsecured debentures,
notes, bonds or other evidences of indebtedness; and warrants or subscription
rights to purchase shares of Class A common stock, preferred stock or debt
securities; and the Cox Radio Trusts may offer trust preferred securities, all
of which securities combined, have an aggregate initial public offering price of
$750.0 million, including the U.S. dollar equivalent if the initial public
offering is denominated in one or more foreign currencies, foreign currency
units or composite currencies.
Under the shelf registration process, we may sell the securities from time
to time in one or more separate offerings, in amounts, at prices and on terms to
be determined at the time of sale. Cox Radio's debt securities may be issuable
in global form, in registered form without coupons attached, or in bearer form
with or without coupons attached.
Our Class A common stock is listed on the New York Stock Exchange under the
symbol "CXR."
In addition to Class A common stock, Cox Radio also has shares of Class B
common stock issued and outstanding. The rights of holders of Class A common
stock and Class B common stock differ with respect to some aspects of
convertibility and voting. Cox Radio will not offer or sell any shares of Class
B common stock using this prospectus.
This prospectus provides a general description of the securities Cox Radio
and the Cox Radio Trusts may offer. Each time Cox Radio sells a particular
series of debt securities or preferred stock, shares of Class A common stock,
stock purchase contracts, stock purchase units, warrants or subscription rights
or a Cox Radio Trust sells trust preferred securities, it will provide a
prospectus supplement which will contain the specific terms of the securities
being offered at that time. Unless otherwise specified in the prospectus
supplement, the debt securities will be senior debt securities of Cox Radio.
The prospectus supplement may add, update or change information contained
in the prospectus. You should read both this prospectus and the prospectus
supplement in conjunction with the additional information described under the
headings "Where You Can Find More Information" and "Information Incorporated by
Reference."
------------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR
DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS
PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this prospectus is May 2, 2000.
<PAGE> 33
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Cox Radio, Inc.............................................. 1
The Cox Radio Trusts........................................ 2
Use of Proceeds............................................. 3
Ratio of Earnings to Fixed Charges.......................... 3
Description of Capital Stock................................ 4
Description of the Debt Securities.......................... 6
Description of Junior Subordinated Debentures............... 20
Description of Trust Preferred Securities................... 29
Description of Preferred Securities Guarantees.............. 38
Relationship Among the Trust Preferred Securities, the
Corresponding Junior Subordinated Debentures or other Debt
Securities and the Preferred Securities Guarantees........ 41
Description of Stock Purchase Contracts and Stock Purchase
Units..................................................... 42
Plan of Distribution........................................ 43
Legal Matters............................................... 43
Experts..................................................... 44
Where You Can Find More Information......................... 44
Information Incorporated by Reference....................... 44
</TABLE>
---------------------
The principal executive offices of Cox Radio, Inc. and the Cox Radio Trusts
are located at 1400 Lake Hearn Drive, Atlanta, Georgia 30319, and the telephone
number is (404) 843-5000.
---------------------
This prospectus, as well as information incorporated by reference into this
prospectus, includes forward-looking statements within the meaning of Section
21E of the Securities Exchange Act of 1934, as amended, and Section 27A of the
Securities Act of 1933, as amended. We have based these statements on our
current expectations or projections about future events and on assumptions we
have made. These forward-looking statements are subject to certain risks and
uncertainties which could cause actual results or events to differ materially
from those we anticipate or project. Prospective purchasers should not place
undue reliance on these forward-looking statements. We undertake no obligation
to update or revise any forward-looking statements as a result of new
information, future events or otherwise.
---------------------
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized any person to provide you
with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We are not making an offer
to sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus,
as well as information we previously filed with the Securities and Exchange
Commission and incorporated by reference, is accurate as of the date on the
front cover of this prospectus only. Our business, financial condition, results
of operations and prospects may have changed since that date.
i
<PAGE> 34
COX RADIO, INC.
Cox Radio is one of the largest radio broadcasting companies in the U.S. At
present, we are focused primarily on maximizing the revenues and broadcast cash
flow of our radio stations by operating and developing clusters of stations in
demographically attractive and rapidly growing markets.
As a result of our management, programming and sales efforts, our radio
stations are characterized by strong ratings and above average power ratios. In
addition, we have a track record of acquiring, repositioning and improving the
operating performance of previously underperforming stations. Our senior
operating management is comprised of five individuals with an average of over 26
years of experience in the radio broadcasting industry. We believe that our
experienced senior management team will be well positioned to manage larger
radio station clusters and take advantage of new opportunities arising in the
U.S. radio broadcasting industry.
Our stations are diversified in terms of format, target audience,
geographic location and stage of development. We believe that a number of our
stations have significant growth opportunities or turnaround potential and can
therefore be characterized as developing stations. We believe these stations can
achieve significant broadcast cash flow growth by employing our operating
strategy. We believe that our portfolio of stations in different stages of
development enables us to maximize our growth potential.
We operate our stations in clusters to:
- enhance net revenue growth by increasing the appeal of our radio stations
to advertisers and enabling our stations to compete more effectively with
other forms of advertising; and
- achieve operating efficiencies by consolidating broadcast facilities,
eliminating duplicative positions in management and production and
reducing overhead expenses.
In addition, we have demonstrated an ability to acquire underperforming
stations and develop them into ratings and revenue leaders. We have achieved
this through our management philosophy which emphasizes:
- market research and targeted programming;
- a customer-focused selling strategy; and
- marketing and promotional activities.
This management philosophy is designed and coordinated by our experienced senior
operating management and implemented on a local level by our station managers.
We invest significant resources to identify and train local managers who are
given:
- the responsibility for day-to-day operations of our stations; and
- the flexibility to develop policies that will improve station performance
and establish long-term relationships with advertisers and listeners.
During the last several years, we have implemented our clustering strategy
through the acquisition of radio stations in several existing markets, and we
intend to continue to make acquisitions in the markets in which we operate. In
the past, we have primarily acquired underperforming stations. We may also make
opportunistic acquisitions in additional markets in which we believe that we can
cost-effectively achieve a leading position in terms of audience and revenue
share. In evaluating acquisition opportunities in additional markets, we intend
to focus primarily on demographically attractive markets, such as those in the
Sunbelt, and markets ranked between 10 and 70 in terms of radio advertising
revenues. We believe that such markets offer the greatest potential for growth
relative to the cost of entry. We also believe that we will have the financial
resources and management expertise to continue to pursue our acquisition
strategy.
Cox Enterprises, Inc., a privately held corporation based in Georgia and
one of the largest media companies in the U.S., controls approximately 95.4% of
the voting power of Cox Radio. In addition to Cox Radio, Cox Enterprises
controls approximately 76.4% of the voting power of a publicly traded broadband
communications company, Cox Communications, Inc., and publishes, owns or
operates newspapers, television stations, Internet web sites and Manheim
Auctions, the world's largest auto auction operator.
1
<PAGE> 35
THE COX RADIO TRUSTS
Each Cox Radio Trust is a statutory business trust created under Delaware
law pursuant to:
1. a declaration of trust executed by Cox Radio as sponsor for each Cox
Radio Trust and by the initial trustees of such Cox Radio Trust; and
2. the filing of a certificate of trust with the Delaware Secretary of
State.
Each Cox Radio Trust exists for the exclusive purposes of:
- issuing and selling trust preferred securities representing undivided
beneficial interests in the assets of such Cox Radio Trust and trust
common securities representing undivided beneficial interests in the
assets of such Cox Radio Trust;
- using the proceeds from the sale of such trust securities to acquire a
series of corresponding junior subordinated debentures or other debt
securities of Cox Radio; and
- engaging in only those other activities necessary, advisable or
incidental to these purposes.
Cox Radio's junior subordinated debentures or other debt securities, as the
case may be, will be the sole assets of a Cox Radio Trust and, accordingly,
payments under the corresponding junior subordinated debentures or other debt
securities, as the case may be, will be the sole revenues of that Cox Radio
Trust.
All of the trust common securities of a Cox Radio Trust will be owned by
Cox Radio and will rank equally, and payments will be made on trust common
securities pro rata, with the trust preferred securities of such Cox Radio
Trust, except that upon the occurrence and continuance of an event of default
under the applicable declaration of trust resulting from an event of default
under the applicable indenture, the rights of Cox Radio as the trust common
securities holder to payments in respect of distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the rights of the
holders of trust preferred securities of such Cox Radio Trust. See "Description
of Trust Preferred Securities -- Subordination of Trust Common Securities." Cox
Radio will acquire trust common securities of each Cox Radio Trust in an
aggregate liquidation amount equal to at least 3% of the total capital of that
Cox Radio Trust. Each Cox Radio Trust will dissolve on the date specified in the
applicable prospectus supplement, but may dissolve earlier as provided in the
applicable declaration of trust.
Each Cox Radio Trust's business and affairs are conducted by its trustees
who are appointed by Cox Radio as the trust common securities holder. Unless
otherwise specified in the prospectus supplement, the issuer trustees for each
Cox Radio Trust will be The Bank of New York, as property trustee, The Bank of
New York (Delaware), as Delaware trustee, and three individual trustees, which
are referred to as administrative trustees, who are officers or employees of Cox
Radio. The Bank of New York, as property trustee, will act as sole indenture
trustee under each declaration of trust. The Bank of New York will also act as
indenture trustee under any preferred securities guarantee and the junior
subordinated debenture indenture. See "Description of Preferred Securities
Guarantees," "Description of Debt Securities" and "Description of Junior
Subordinated Debentures." The trust common securities holder of a Cox Radio
Trust or, if an event of default under the declaration of trust has occurred and
is continuing, the holders of a majority in liquidation amount of the trust
preferred securities of such Cox Radio Trust will be entitled to appoint, remove
or replace such Cox Radio Trust's property trustee and the Delaware trustee. In
no event will the holders of trust preferred securities have the right to vote
to appoint, remove or replace the administrative trustees; such voting rights
will be vested exclusively in Cox Radio as the trust common securities holder.
The duties and obligations of the trustees will be governed by the applicable
declaration of trust.
Cox Radio, as issuer of the corresponding junior subordinated debentures or
other debt securities, will pay all fees, expenses, debts and obligations, other
than payments in respect of trust securities, related to each Cox Radio Trust
and the offering of the trust preferred securities and will pay, directly or
indirectly, all ongoing costs, expenses and liabilities of each Cox Radio Trust,
other than payments in respect of trust securities.
2
<PAGE> 36
USE OF PROCEEDS
Unless we state otherwise in the accompanying prospectus supplement, we
intend to use the net proceeds from the sale of the securities offered in such
prospectus supplement for general corporate purposes, which may include
additions to working capital, repayment or redemption of existing indebtedness
and financing of capital expenditures and acquisitions. We may borrow additional
funds from time to time from public and private sources on both a long-term and
short-term basis and may sell commercial paper to fund our future capital and
working capital requirements in excess of internally generated funds.
The proceeds from the sale of trust preferred securities by a Cox Radio
Trust will be invested in either junior subordinated debentures or other debt
securities of Cox Radio. Except as may otherwise be described in the related
prospectus supplement, Cox Radio expects to use the net proceeds from the sale
of such junior subordinated debentures or other debt securities to the
applicable Cox Radio Trust for general corporate purposes. Any specific
allocation of the proceeds to a particular purpose that has been made at the
date of any prospectus supplement will be described therein.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges of
Cox Radio for the periods indicated:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-------------------------------------
1995 1996 1997 1998 1999
---- ----- ----- ----- -----
<S> <C> <C> <C> <C>
3.20x 5.86x 8.03x 3.38x 4.85x
</TABLE>
For purposes of this computation, earnings are defined as income before
income taxes and fixed charges excluding capitalized interest. Fixed charges are
the sum of:
- interest cost, including capitalized interest and amortization of debt
premiums, discounts and capitalization expenses related to indebtedness;
and
- estimated interest component of rent expense.
3
<PAGE> 37
DESCRIPTION OF CAPITAL STOCK
The following description of Cox Radio's capital stock sets forth general
terms and provisions of the particular issuance of capital stock to which any
prospectus supplement may relate. The prospectus supplement will describe the
particular terms of any sale of capital stock and the extent, if any, to which
such general provisions will not apply to such sale. The following description
also sets forth selected provisions of Cox Radio's certificate of incorporation
and bylaws. This description is a summary only and is qualified in its entirety
by Cox Radio's certificate of incorporation and bylaws, which are incorporated
as exhibits to our registration statement of which this prospectus is a part.
Cox Radio's certificate of incorporation currently authorizes it to issue
70,000,000 shares of Class A common stock, 45,000,000 shares of Class B common
stock and 5,000,000 shares of preferred stock.
As of February 29, 2000, there were outstanding 9,342,074 shares of Class A
common stock and 19,577,672 shares of Class B common stock.
The Cox Radio Board of Directors has approved an increase in the authorized
number of shares of Class A common stock, Class B common stock and preferred
stock and a three-for-one stock split of the outstanding shares of Class A
common stock and Class B common stock. There currently are no outstanding shares
of preferred stock. Cox Radio stockholders will vote on the proposed increase in
authorized shares of capital stock and the proposed stock split at the Cox Radio
annual meeting scheduled for May 11, 2000. If approved by stockholders, the
number of authorized shares of Class A common stock, Class B common stock and
preferred stock will be increased to 210,000,000 shares, 135,000,000 shares and
15,000,000 shares, respectively, and the stock split will be distributed on May
19, 2000 to stockholders of record on May 12, 2000. In giving effect to the
stock split, the par value of the Class A common stock, the Class B common stock
and the preferred stock will be reduced from $1.00 per share to $.33 per share
and the number of shares reserved for issuance under Cox Radio's various benefit
plans will triple. The stock split will not affect the proportionate voting
rights of stockholders.
COMMON STOCK
Except with respect to voting and convertibility, shares of Class A common
stock and shares of Class B common stock are identical in all respects.
Voting. Class A common stock holders are entitled to one vote per share,
while Class B common stock holders are entitled to ten votes per share. The
Class A common stock holders and the Class B common stock holders vote together
as a single class on all actions, except that the affirmative vote of the
holders of a majority of outstanding shares of Class A common stock and Class B
common stock voting separately as a class is required:
- to approve any amendment to Cox Radio's certificate of incorporation that
would alter or change the powers, preferences or special rights of such
class in a way that adversely affects the holders of such class; and
- to approve such other matters as may require a class vote under the
Delaware General Corporation Law.
Dividends and Other Distributions. Each share of common stock is equal in
respect of dividends and other distributions in cash, stock or property,
including distributions upon Cox Radio's liquidation or a sale of all or
substantially all of Cox Radio's assets. However, in the case of dividends or
other distributions payable on either class of common stock in shares of such
stock, including distributions pursuant to stock splits or dividends, only Class
A common stock will be distributed with respect to outstanding Class A common
stock, and only Class B common stock will be distributed with respect to
outstanding Class B common stock. Neither the Class A common stock nor the Class
B common stock will be split, divided or combined unless each other class is
proportionately split, divided or combined.
Cox Radio has never declared or paid cash dividends on its Class A common
stock and currently intends to retain any future earnings for use in developing
and operating its businesses. Accordingly, Cox Radio does not expect to pay cash
dividends on the Class A common stock in the foreseeable future.
4
<PAGE> 38
Convertibility of Class B Common Stock into Class A Common Stock. Cox
Enterprises holds all of the shares of Class B common stock currently
outstanding. Shares of the Class B common stock are convertible at any time, or
from time to time, at the Class B stock holder's option, into Class A common
stock on a share-for-share basis.
Liquidation, Dissolution or Winding Up. In the event of any liquidation,
dissolution or winding up of Cox Radio, whether voluntary or not, the Class A
common stock holders and the Class B common stock holders shall be entitled to
share ratably, according to their respective interests, in Cox Radio's assets
which remain after payment, or provision for payment, of Cox Radio's debts and
other liabilities and the preferential amounts due to the holders of any stock
ranking prior to the common stock in the distribution of assets.
PREFERRED STOCK
Cox Radio may issue preferred stock with such designations, powers,
preferences and other rights and qualifications, limitations and restrictions as
our board of directors may authorize, without further action by our
stockholders, including but not limited to:
- the distinctive designation of each series and the number of shares that
will constitute the series;
- the voting rights, if any, of shares of the series;
- the dividend rate on the shares of the series, any restriction,
limitation or condition upon the payment of dividends, whether dividends
will be cumulative and the dates on which dividends are payable;
- the prices at which, and the terms and conditions on which, the shares of
the series may be redeemed, if the shares are redeemable;
- the purchase or sinking fund provisions, if any, for the purchase or
redemption of shares of the series;
- any preferential amount payable upon shares of the series in the event of
the liquidation, dissolution or winding up of Cox Radio or the
distribution of its assets; and
- the prices or rates of conversion at which, and the terms and conditions
on which, the shares of such series may be converted into other
securities, if such shares are convertible.
TRANSFER AGENT
The transfer agent and registrar for the Class A common stock is First
Chicago Trust Company of New York.
5
<PAGE> 39
DESCRIPTION OF THE DEBT SECURITIES
GENERAL
The following description of the terms of the debt securities sets forth
selected general terms and provisions of the particular issuance of debt
securities to which any prospectus supplement may relate. The prospectus
supplement will describe the particular terms of any debt securities and the
extent, if any, to which such general provisions will not apply to those debt
securities.
The debt securities will be issued from time to time in series under an
indenture, dated as of May 26, 1998, between Cox Radio and The Bank of New York,
as trustee. The indenture was supplemented by a first supplemental indenture,
dated as of February 1, 1999, under which CXR Holdings, Inc., a Nevada
corporation and a wholly owned restricted subsidiary of Cox Radio, became a
guarantor of the debt securities of Cox Radio. A copy of the indenture, as
supplemented by the first supplemental indenture, is incorporated by reference
as an exhibit to the registration statement of which this prospectus is a part.
The indenture provides that Cox Radio may issue debt securities from time
to time in one or more series and does not limit the aggregate principal amount
of debt securities Cox Radio may issue. The following summary of selected
provisions of the indenture and the debt securities does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all the provisions of the indenture, including the definitions of selected terms
which it contains as well as those terms which the Trust Indenture Act of 1939,
as amended, requires be incorporated.
Cox Radio refers you to the prospectus supplement for the following terms
and other possible terms of each series of debt securities in respect of which
this prospectus is being delivered, to the extent such terms are applicable to
such debt securities:
- the classification, specific designation, date, aggregate principal
amount, purchase price and denomination of the debt securities;
- currency or units based on or relating to currencies in which such debt
securities are denominated and/or in which principal, premium, if any,
and/or interest will or may be payable;
- the formula, if any, upon which Cox Radio may determine from time to time
the principal amount of debt securities outstanding;
- any date of maturity, which may be fixed or extendible;
- the interest rate or rates or the method by which the interest rate or
rates will be determined, if any;
- the dates on which any interest will be payable, Cox Radio's right, if
any, to extend or defer the interest period and the duration of
extensions or deferrals;
- the place or places where the principal of, premium, if any, and interest
on the debt securities will be payable;
- any repayment, redemption, prepayment or sinking fund provisions and any
provisions related to the purchase of debt securities at the option of
the holders;
- whether the debt securities will be issuable in global form, and, if so,
the identity of the depositary, or in registered and/or bearer form and,
if bearer securities are issuable, any restrictions applicable to the
exchange of one form for another and to the offer, sale and delivery of
bearer securities;
- the terms, if any, on which debt securities may be converted into or
exchanged for stock or other securities of Cox Radio or other entities or
for cash, any specific terms relating to the adjustment of the conversion
or exchange terms, and the period during which debt securities may be so
converted or exchanged;
- any applicable United States federal income tax consequences, including
whether and under what circumstances Cox Radio will pay additional
amounts on debt securities held by a person who is
6
<PAGE> 40
not a U.S. person, as defined in the prospectus supplement, in respect of
any tax, assessment or governmental charge withheld or deducted and, if
so, whether Cox Radio will have the option to redeem debt securities
rather than pay such additional amounts;
- the subordination provisions, if any, relating to the debt securities;
and
- any other specific terms of the debt securities, including any additional
events of default or covenants provided for with respect to debt
securities, and any terms which may be required by or advisable under
applicable laws or regulations.
Holders may present debt securities for exchange, and holders of registered
debt securities may present them for transfer, in the manner, at the places and
subject to the restrictions set forth in the debt securities and the prospectus
supplement. Cox Radio will provide these services without charge, other than any
tax or other governmental charge payable in that connection, but subject to the
limitations provided in the indenture. Debt securities in bearer form and the
coupons, if any, pertaining to such debt securities will be transferable by
delivery.
Debt securities will bear interest at a fixed rate or a floating rate. Debt
securities bearing no interest or interest at a rate that at the time of
issuance is below the prevailing market rate will be sold at a discount below
their stated principal amount. Special United States federal income tax
considerations applicable to any discounted debt securities or to certain debt
securities issued at par, which are treated as having been issued at a discount
for United States federal income tax purposes, will be described in the
accompanying prospectus supplement.
Cox Radio may issue debt securities from time to time, with the principal
amount or the amount of interest payable on any payment date to be determined by
reference to one or more currency exchange rates, commodity prices, equity
indices or other factors. Holders of these debt securities may receive a payment
of principal on any principal payment date, or a payment of interest on any
interest payment date, that is greater or less than the amount of principal or
interest otherwise payable on those dates, depending upon the value of the
applicable currency, commodity, equity index or other factor on those dates.
Information as to the methods Cox Radio will use to determine the amount of
principal or interest payable on any date, the currencies, commodities, equity
indices or other factors to which the amount payable on that date is linked and
certain additional tax considerations will be set forth in the applicable
prospectus supplement.
Unless Cox Radio indicates otherwise in the accompanying prospectus
supplement, the debt securities will be issued only in fully registered form,
without coupons, in denominations of $1,000 and integral multiples of $1,000.
Unless Cox Radio specifies otherwise in the prospectus supplement, the principal
amount of the debt securities will be payable at the corporate trust office of
the trustee in New York, New York. Holders may present the debt securities for
transfer or exchange at that office unless Cox Radio specifies otherwise in the
prospectus supplement, subject to the limitations provided in the indenture and
without any service charge, but Cox Radio may require payment of a sum
sufficient to cover any tax or other governmental charges payable.
CONCERNING THE TRUSTEE
The Bank of New York is the trustee under the indenture and has been
appointed by Cox Radio as registrar and paying agent with regard to the debt
securities. The trustee is a depositary for funds and performs other services
for, and transacts other banking business with, Cox Radio in the normal course
of business.
RANKING
Unless Cox Radio specifies otherwise in a prospectus supplement for a
particular series of debt securities, all series of debt securities will be
senior indebtedness of Cox Radio and will be direct, unsecured obligations,
ranking equally with all of Cox Radio's other unsecured and unsubordinated
obligations.
7
<PAGE> 41
GUARANTEES
The indenture requires Cox Radio to cause each of its subsidiaries that
guarantee, on the date of this prospectus or in the future, indebtedness under
Cox Radio's $300 million, five-year, senior, unsecured revolving credit
facility, dated as of March 7, 1997, which we refer to as the credit agreement,
and indebtedness under any future senior unsecured credit facility of Cox Radio,
to fully and unconditionally guarantee, as primary obligors and not merely as
sureties, under a guarantee on an unsubordinated, unsecured basis, the due and
punctual payment of the principal of, interest on and other amounts payable
under the debt securities, when and if the same shall become due and payable.
If, however, any guarantor subsidiary is released from its guarantee of
indebtedness under the credit agreement or a future credit facility, then such
subsidiary will also be immediately released from its obligations under its
guarantee without further action by any party.
Each guarantee will be limited to an amount not to exceed the maximum
amount that can be guaranteed by the applicable guarantor without rendering such
guarantee, as it relates to such guarantor, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting creditors' rights generally.
CERTAIN COVENANTS
The indenture contains covenants, including, among others, the following:
Limitation on liens. Cox Radio will not, and will not permit any
restricted subsidiary to, create, incur or assume any lien, other than permitted
liens, on restricted property incurred to secure the payment of Indebtedness of
Cox Radio or any restricted subsidiary, if, immediately after the creation,
incurrence or assumption of such lien, the aggregate outstanding principal
amount of all Indebtedness of Cox Radio and its restricted subsidiaries that is
secured by liens, other than permitted liens, on restricted property would
exceed the greater of:
- $30 million; or
- 15% of the aggregate outstanding principal amount of all Indebtedness of
Cox Radio and its restricted subsidiaries, whether or not so secured,
unless effective provision is made such that, at Cox Radio's determination, the
debt securities together with any other Indebtedness of equal ranking, whether
then existing or later created, are secured equally and ratably with, or prior
to, such Indebtedness, but only for as long as such Indebtedness is so secured.
The foregoing limitation does not apply to:
- liens existing on the date on which the first series of debt securities
is originally issued under the indenture, which we refer to as the
closing date;
- liens granted after the closing date on any assets or capital stock of
Cox Radio or its restricted subsidiaries in favor of the holders of the
debt securities;
- liens with respect to the assets of a restricted subsidiary granted by
such restricted subsidiary to Cox Radio or another restricted subsidiary
to secure Indebtedness owing to Cox Radio or such other restricted
subsidiary;
- liens securing Indebtedness permitted under the "Limitation on
Indebtedness of restricted subsidiaries" covenant;
- liens securing Indebtedness which is incurred to refinance secured
Indebtedness which is permitted to be incurred under the "Limitation of
Indebtedness of restricted subsidiaries" covenant; provided that such
liens do not extend to or cover any property or assets of Cox Radio or
any restricted subsidiary other than the property or assets securing the
Indebtedness being refinanced; or
- permitted liens.
8
<PAGE> 42
Limitation on indebtedness of restricted subsidiaries. Cox Radio will not
permit any restricted subsidiary to incur any Indebtedness if, immediately after
the incurrence or assumption of such Indebtedness, the aggregate outstanding
principal amount of all Indebtedness of the restricted subsidiaries would exceed
the greater of:
- $30 million; or
- 15% of the aggregate outstanding principal amount of all Indebtedness of
Cox Radio and its restricted subsidiaries;
provided that, in any event, a restricted subsidiary may incur Indebtedness to
extend, renew or replace its own Indebtedness to the extent that the principal
amount of the Indebtedness so incurred does not exceed the level of the
principal amount of the Indebtedness immediately prior to such extension,
renewal or replacement plus any premium, accrued and unpaid interest or
capitalized interest payable on the previous amount.
Designation of subsidiaries. Cox Radio may designate a restricted
subsidiary as an unrestricted subsidiary or designate an unrestricted subsidiary
as a restricted subsidiary at any time, provided that:
- immediately after giving effect to such designation, the restricted
group's leverage ratio is not greater than 7:1 and Cox Radio and its
restricted subsidiaries are in compliance with the "Limitation on liens"
and "Limitation on Indebtedness of restricted subsidiaries" covenants;
and
- Cox Radio delivers an officers' certificate with respect to such
designation, to the trustee, within 75 days after the end of Cox Radio's
fiscal quarter in which it made such designation, or, in the case of a
designation made during the last fiscal quarter of Cox Radio's fiscal
year, within 120 days after the end of such fiscal year. The officers'
certificate shall state the effective date of such designation.
Mergers or sales of assets. The indenture provides that neither Cox Radio
nor any guarantor may merge into or consolidate with another entity or convey,
transfer or lease all or substantially all of its assets to another entity
unless either:
- Cox Radio or the guarantor is the surviving corporation; or
- the resulting, surviving or transferee entity is a corporation organized
under the laws of a state of the United States or the District of
Columbia and expressly assumes all of Cox Radio's obligations under the
debt securities and the indenture or all of the guarantor's obligations
under its guarantee and the indenture, as applicable; and
- immediately after and giving effect to such transaction, no event of
default has occurred.
The indenture does not contain any provisions affording debt securities
holders any additional protection in the event that Cox Radio enters into a
highly leveraged transaction.
DEFINITIONS
Asset acquisition means:
- an investment by Cox Radio or any of its restricted subsidiaries in any
other entity whereby such entity would become a restricted subsidiary or
would be merged into or consolidated with Cox Radio or any of its
restricted subsidiaries; or
- an acquisition by Cox Radio or any of its restricted subsidiaries of the
property and assets of any entity other than Cox Radio or any of its
restricted subsidiaries which property and assets constitute
substantially all of a division or line of business of such entity.
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Asset disposition means the sale or other disposition by Cox Radio or any
of its restricted subsidiaries, other than to Cox Radio or another restricted
subsidiary, of:
- all or substantially all of the capital stock of any restricted
subsidiary; or
- all or substantially all of the assets that constitute a division or line
of business of Cox Radio or any of its restricted subsidiaries.
Capital stock means, with respect to any entity, any and all shares,
interests, participations or other equivalents, however designated, whether
voting or non-voting, in equity of such entity, whether outstanding on the
closing date or issued after the closing date.
Capitalized lease means, as applied to any entity, any lease of any
property, whether real, personal or mixed, of which the discounted present value
of the rental obligations of such entity as lessee, in conformity with GAAP, is
required to be capitalized on the balance sheet of such entity.
Currency agreement means any foreign exchange contract, currency swap
agreement or other similar agreement or arrangement.
Default means any event which is, or after notice or passage of time or
both would be, an event of default.
GAAP means such accounting principles as are generally accepted in the
United States of America as of the date or time of any particular computation.
Indebtedness means, without duplication, with respect to any entity:
- any indebtedness of such entity for borrowed money or indebtedness of
such entity evidenced by a note, debenture or similar instrument,
including a purchase money obligation which was given in connection with
the acquisition of any property or assets, including securities;
- any guarantee by such entity of any indebtedness of others as described
in the preceding clause; and
- any amendment, extension, renewal or refunding of any such indebtedness
or guarantee.
The term Indebtedness excludes:
- any indebtedness of Cox Radio or of any its restricted subsidiaries to
Cox Radio or another restricted subsidiary;
- any guarantee by Cox Radio or any restricted subsidiary of indebtedness
of Cox Radio or another restricted subsidiary;
- trade accounts payable;
- money borrowed and set aside at the time of the incurrence of any
Indebtedness in order to prefund the payment of the interest on such
Indebtedness so long as this money is held to secure the payment of such
interest;
- liabilities for federal, state, local or other taxes; and
- letters of credit, performance bonds and similar obligations issued in
favor of governmental or franchising authorities as a term of any
governmental franchise, license, permit or authorization held by such
entity or any of its subsidiaries.
The amount of Indebtedness of any entity at any date shall be the
outstanding balance at such date of all unconditional obligations described
above and, with respect to contingent obligations, the maximum liability upon
the occurrence of the contingency giving rise to the obligation. The amount of
Indebtedness issued with original issue discount is the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at that time as determined in conformity with
GAAP.
Interest rate agreement means any interest rate protection agreement,
interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate
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collar agreement, interest rate hedge agreement, option or future contract or
other similar agreement or arrangement.
Leverage ratio with respect to the restricted group means, as of the date
of and after giving effect to any designation of an unrestricted subsidiary as a
restricted subsidiary, or any designation of a restricted subsidiary as an
unrestricted subsidiary, in each case in accordance with the "Designation of
subsidiaries" covenant, the ratio of:
- the aggregate outstanding principal amount of all Indebtedness of the
restricted group as of such date;
to
- the product of four times the restricted group cash flow for the most
recent full fiscal quarter for which financial information is available
on such date;
provided that, in making the foregoing calculation:
1. pro forma effect shall be given to any Indebtedness to be incurred
or repaid on the date of incurrence of any Indebtedness, referred to as the
transaction date;
2. pro forma effect shall be given to Asset Dispositions and Asset
Acquisitions, including giving pro forma effect to the application of
proceeds of any Asset Dispositions, that occur from the beginning of the
fiscal quarter through the transaction date, referred to as the reference
period, as if they had occurred and such proceeds had been applied on the
first day of such reference period and, in the case of any Asset
Acquisition, giving pro forma effect to any cost reductions Cox Radio
anticipates if Cox Radio delivers to the trustee an officer's certificate
executed by the Chief Financial Officer of Cox Radio certifying to and
describing and quantifying with reasonable specificity the cost reductions
expected to be attained within the first year after such Asset Acquisition;
and
3. pro forma effect shall be given to Asset Dispositions and Asset
Acquisitions, including giving pro forma effect to the application
of proceeds of any Asset Disposition, that:
- have been made by any entity that has become a restricted
subsidiary or has been merged with or into Cox Radio or any
restricted subsidiary during such reference period; and
- would have constituted Asset Dispositions or Asset Acquisitions
had such transactions occurred when such entity was a restricted
subsidiary as if such Asset Dispositions or Asset Acquisitions
were Asset Dispositions or Asset Acquisitions that occurred on
the first day of such reference period;
provided that to the extent that paragraph (2) or (3) above
requires that pro forma effect be given to an Asset Acquisition of
Asset Disposition, such pro forma calculation shall be based upon
the fiscal quarter immediately preceding the transaction date of
the entity, or division or line of business of the entity, that is
acquired or disposed of for which financial information is
available.
Permitted liens means:
- liens for taxes, assessments, governmental charges or claims that are not
yet delinquent or are being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made;
- statutory and common law liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other similar liens
arising in the ordinary course of business and with respect to amounts
not yet delinquent or being contested in good faith by appropriate legal
proceedings promptly instituted and diligently conducted and for which a
reserve or other appropriate provision, if any, under GAAP has been made;
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- liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
types of social security;
- liens incurred or deposits made to secure the performance of tenders,
bids, leases, statutory or regulatory obligations including obligations
under franchise agreements, bankers' acceptances, surety and appeal
bonds, government contracts, performance and return-of-money bonds and
other obligations of a similar nature incurred in the ordinary course of
business, exclusive of obligations for the payment of borrowed money;
- easements, rights-of-way, municipal and zoning ordinances and similar
charges, encumbrances, title defects or other irregularities that do not
materially interfere with the ordinary course of business of Cox Radio or
any of its restricted subsidiaries;
- liens upon real or personal property acquired after the closing date;
provided that:
1. such lien is created solely for the purpose of securing
Indebtedness incurred, in accordance with the "Limitation on
Indebtedness of restricted subsidiaries" covenant to finance the
cost, including the cost of design, development, acquisition,
installation, integration, improvement or construction, of the item
of property or assets subject to such lien, and such lien is
created prior to, at the time of or within six months after the
later of the acquisition, the completion of construction or the
commencement of full operation of such property;
2. the principal amount of the Indebtedness secured by such lien does
not exceed 100% of such cost; and
3. any such lien shall not extend to or cover any property or assets
other than such item of property or assets and any improvements on
such item;
- liens arising from filing Uniform Commercial Code financing statements
regarding leases;
- liens on property of, or on shares of capital stock or Indebtedness of,
any entity existing at the time such entity becomes, or becomes a part
of, any restricted subsidiary; provided that such liens do not extend to
or cover any property or assets of Cox Radio or any restricted subsidiary
other than the property or assets acquired;
- liens in favor of Cox Radio or any restricted subsidiary;
- liens arising from the rendering of a final judgment or order against Cox
Radio or any restricted subsidiary that does not give rise to an event of
default;
- liens securing reimbursement obligations with respect to letters of
credit that encumber documents and other property relating to such
letters of credit and the products and proceeds thereof;
- liens in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the
importation of goods;
- liens encumbering customary initial deposits and margin deposits, and
other liens that are within the general parameters customary in the radio
industry and incurred in the ordinary course of business, in each case,
securing Indebtedness under interest rate agreements and currency
agreements and forward contracts, options, futures contracts, futures
options or similar agreements or arrangements designed solely to protect
Cox Radio or any of its restricted subsidiaries from fluctuations in
interest rates, currencies or the price of commodities;
- liens arising out of conditional sale, title retention, consignment or
similar arrangements for the sale of goods entered into by Cox Radio or
any of its restricted subsidiaries in the ordinary course of business in
accordance with industry practice;
- liens resulting from deposits made in connection with any proposed Asset
Acquisition; provided that such deposit does not exceed 10% of the
estimated purchase price for such Asset Acquisition; and
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- liens on or sales of receivables, including related intangible assets and
proceeds thereof where, in the good faith determination of Cox Radio, Cox
Radio has received the fair market value of such receivables.
Principal property means, as of any date of determination, any property or
assets which any restricted subsidiary owns other than:
- property which, in the good faith opinion of Cox Radio's board of
directors, is not of material importance to the business conducted by Cox
Radio and its restricted subsidiaries taken as a whole; and
- any shares of any class of stock or any other security of any
unrestricted subsidiary.
Restricted group means, as of any date of determination, Cox Radio and the
restricted subsidiaries as of such date.
Restricted property means, as of any date of determination, any principal
property and any shares of stock of a restricted subsidiary which Cox Radio or a
restricted subsidiary owns.
DEFAULTS
An event of default with respect to debt securities of any series is
defined in the indenture as:
1. a default in the payment of interest when due on the debt
securities of that series which continues for 30 days;
2. a default in the payment of principal of or any premium on any debt
security of that series, or any additional amounts payable on any
debt security of that series, when due, whether at its stated
maturity, upon redemption, upon required repurchase, by declaration
or otherwise;
3. a default in the deposit of any sinking fund payment when due on
the debt securities of that series;
4. Cox Radio's or the guarantor's failure to comply with their
respective obligations under "-- Certain Covenants -- Mergers or
sales of assets" above;
5. Cox Radio's failure to comply, within 60 days after notice provided
in accordance with the terms of the indenture, with any of its
other covenants or agreements contained in the indenture with
respect to that series of debt securities, including its
obligations under the covenants described above under "-- Certain
Covenants -- Limitation on liens," "-- Limitation on Indebtedness
of restricted subsidiaries" or "-- Designation of subsidiaries,"
provided that this provision does not apply to defaults in
covenants for which the indenture specifically provides otherwise;
6. failure of Cox Radio or any restricted subsidiary to pay
Indebtedness within any applicable grace period after final
maturity or acceleration of Indebtedness by its holders because of
a default and the total amount of such Indebtedness unpaid or
accelerated exceeds the greater of $25 million or 30% of the
aggregate outstanding principal amount of all Indebtedness of Cox
Radio and its restricted subsidiaries;
7. certain events of bankruptcy, insolvency or reorganization of Cox
Radio or a restricted subsidiary;
8. Cox Radio's or any restricted subsidiary's failure, within 60 days,
to pay, bond or otherwise discharge any uninsured judgment or court
order for the payment of money in excess of $25 million, which is
not stayed on appeal or is not otherwise being appropriately
contested in good faith; or
9. any other events of default specified for that series of debt
securities.
Except as described in the second to last sentence of this paragraph, if an
event of default occurs and is continuing with respect to a particular series of
debt securities, the trustee or the holders of at least 25%
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in principal amount of the outstanding debt securities of such series may
declare the principal of and accrued but unpaid interest on all the debt
securities of such series to be due and payable. Upon such a declaration, such
principal and interest shall be due and payable immediately. If an event of
default relating to specific events of bankruptcy, insolvency or reorganization
of Cox Radio occurs and is continuing, the principal of and interest on all the
debt securities will become and be immediately due and payable without any
declaration or other act on the part of the trustee or any holders of the debt
securities. Under some circumstances, the holders of a majority in principal
amount of the outstanding debt securities of a series may rescind any
acceleration and its consequences with respect to the debt securities of that
series.
Subject to the provisions of the indenture relating to the duties of the
trustee, if an event of default occurs and is continuing, the trustee will be
under no obligation to exercise any of its rights or powers under the indenture
at the request or direction of any of the holders of the debt securities of any
series, unless such holders have offered to the trustee reasonable indemnity or
security against any loss, liability or expense. Except to enforce the right to
receive payment of principal, premium, if any, or interest when due, no debt
security holder may pursue any remedy with respect to the indenture or the debt
securities of its series unless:
- that holder has previously given the trustee notice that an event of
default is continuing;
- holders of at least 25% in principal amount of the outstanding debt
securities of such series have requested the trustee to pursue the
remedy;
- those holders have offered the trustee reasonable security or indemnity
against any loss, liability or expense;
- the trustee has not complied with such request within 60 days of
receiving it with an offer of security or indemnity; and
- the holders of a majority in principal amount of the outstanding debt
securities of such series have not given the trustee a direction
inconsistent with such request within such 60-day period.
Subject to some restrictions, the holders of a majority in principal amount
of the outstanding debt securities of any series are given the right to direct
the time, method and place of conducting any proceeding for any remedy available
to the trustee, or of exercising any trust or power conferred on the trustee.
The trustee, however, may refuse to follow any direction that conflicts with law
or the indenture or that the trustee determines is unduly prejudicial to the
rights of any other holder of a debt security of the same series, or that would
involve the trustee in personal liability.
The indenture provides that if a default occurs and is continuing with
respect to a particular series of debt securities and is known to the trustee,
the trustee must mail notice of the default within 90 days after it occurs to
each holder of the debt securities of such series. Except in the case of a
default in the payment of principal of, premium, if any, or interest on any debt
security, the trustee may withhold notice if and so long as a committee of its
trust officers determines that withholding notice is in the interests of the
holders of the debt securities of such series. In addition, Cox Radio must
deliver to the trustee, within 120 days after the end of each fiscal year, an
officers' certificate indicating whether the signing officers know of any
default that occurred during the previous year. Cox Radio also is required to
deliver to the trustee, within 30 days after its occurrence, written notice of
any events which would constitute certain defaults, their status and what action
Cox Radio is taking or proposes to take.
The holders of a majority in aggregate principal amount of the outstanding
debt securities of that series may, on behalf of all the debt securities and any
related coupons of that series, waive any past default or event of default,
except:
- a default in the payment of the principal of, any premium or interest on,
or any additional amounts with respect to, any of the debt securities or
in the payment of any related coupon; and
- a default that cannot be waived without the consent of each holder
affected.
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A waiver will serve to end such default, to cure any event of default, and to
restore Cox Radio, the trustee and holders of the affected debt securities to
their former positions and rights. No such waiver will extend to any subsequent
or other default.
AMENDMENTS AND WAIVERS
Subject to specific exceptions, the indenture may be amended with respect
to a series of debt securities with the consent of the holders of a majority in
principal amount then outstanding of the debt securities of that series,
including consents obtained in connection with a tender offer or exchange for
the debt securities. Any past default or compliance with any provisions also may
be waived with such a consent of the holders of a majority in principal amount
then outstanding of the debt securities of such series. However, without the
consent of each holder of an outstanding debt security of that series, no
amendment may, among other things:
- change the stated maturity of the principal of, or any premium or
installment of interest on, or any additional amounts payable in respect
of, any debt security of that series;
- reduce the principal amount of, or the rate, or modify the calculation of
such rate, of interest on, or any additional amounts with respect to, or
any premium payable upon redemption of, any debt security of that series;
- change the obligation of Cox Radio to pay additional amounts with respect
to any debt security of that series or reduce the amount of any debt
security of that series provable in bankruptcy;
- change the redemption provisions of any debt security of that series;
- change the place of payment or the coin or currency in which the
principal of, or any premium or interest on or any additional amounts
with respect to any debt security of that series is payable;
- impair the right to institute suit for the enforcement of any payment on
or after the stated maturity of any debt security of that series, or, in
the case of redemption, on or after the redemption date;
- reduce the percentage and principal amount of the outstanding debt
securities of that series, the consent of whose debt securities holders
is required in order to take certain actions;
- reduce the requirements for quorum or voting by debt securities holders
of any series;
- modify any provisions of the indenture regarding the waiver of past
defaults or the waiver of certain covenants by the debt securities
holders of any series except to increase any percentage vote required or
to provide that certain other provisions of the indenture cannot be
modified or waived without the consent of the holder of each outstanding
debt security of that series who is affected by the proposed modification
or waiver;
- make any changes to the terms and conditions of the guarantor's
obligations that adversely affect the debt securities holders of any
series;
- make any changes that adversely affect the right to exchange any debt
security of that series for other securities in accordance with its
terms; or
- modify any of the above.
Without the consent of any of the debt securities holders, Cox Radio, the
guarantor and the trustee may amend the indenture:
- to cure any ambiguity, omission, defect or inconsistency;
- to provide for the assumption of all obligations of Cox Radio under the
debt securities or all obligations of the guarantor under its guarantee
and, in each case, the indenture, by any successor entity, as provided in
the indenture;
- to provide for uncertificated debt securities in addition to or in place
of certificated debt securities;
- to make any change that does not adversely affect the rights of any debt
securities holder;
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- to provide for the issuance of and to establish the form and terms and
conditions of a series of debt securities or the form of any
certification required to be furnished under the indenture or by the
terms of any series of debt securities;
- to add to the rights of debt securities holders; or
- to secure the debt securities.
Under the indenture, Cox Radio and the guarantor are required to provide
the trustee with an annual statement as to the performance by Cox Radio and the
guarantor of their respective obligations under the indenture and as to any
default in such performance. Cox Radio is also required to deliver to the
trustee, within five days after its occurrence, written notice of any event of
default or any event which after notice or lapse of time or both would
constitute an event of default.
The indenture does not require the debt securities holders to give consent
approving the particular form of any proposed amendment. It is sufficient if
such consent approves the substance of the proposed amendment.
After an amendment under the indenture becomes effective, Cox Radio is
required to mail to holders of the debt securities of the affected series a
notice briefly describing such amendment. However, Cox Radio's failure to give
such notice to all holders of the debt securities of such series, or any defect
in such notice, will not impair or affect the validity of the amendment.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Cox Radio may discharge certain obligations to holders of any series of
debt securities that have not already been delivered to the trustee for
cancellation and that either have become due and payable or will become due and
payable within one year, or scheduled for redemption within one year, by
depositing with the trustee, in trust, funds in U.S. dollars in an amount
sufficient to pay the entire indebtedness on such debt securities with respect
to principal, and premium, if any, and interest to the date of such deposit, if
such debt securities have become due and payable, or to the date of their stated
maturity, upon redemption, upon required repurchase, by declaration or
otherwise, as the case may be.
The indenture provides that, unless the following provisions are made
inapplicable to the debt securities of or within any series, Cox Radio may elect
either:
1. defeasance, which means to defease and be discharged from its
obligations with respect to the debt securities, except for, among
other things:
- the obligation to pay additional amounts owed to holders of debt
securities, if any, and other obligations to register the
transfer or exchange of the debt securities;
- to replace temporary or mutilated, destroyed, lost or stolen debt
securities;
- to maintain an office or agency with respect to the debt
securities; and
- to hold moneys for payment in trust; or
2. covenant defeasance, which means to be released from its
obligations with respect to the debt securities under the covenants
described under "Certain Covenants -- Limitation on liens" and
"-- Limitation on Indebtedness of restricted subsidiaries" above
and its obligations with respect to any other specified covenant,
and any omission to comply with such obligations shall not
constitute a default or an event of default with respect to the
debt securities.
Defeasance or covenant defeasance, as the case may be, are conditioned upon
the irrevocable deposit by Cox Radio with the trustee, in trust, of an amount in
U.S. dollars or government obligations, or both, which through the scheduled
payment of principal and interest in accordance with their terms will provide
money in an amount sufficient to pay the principal of, and premium, if any, and
interest on the debt securities on their scheduled due date.
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This trust may only be established if, among other things:
- the applicable defeasance or covenant defeasance does not result in a
breach or violation of, or constitute a default under, the indenture or
any other material agreement or instrument to which Cox Radio is a party
or by which it is bound;
- no event of default or event which with notice or lapse of time or both
would become an event of default with respect to the debt securities to
be defeased shall have occurred and be continuing on the date of
establishing the trust and, for defeasance only, at any time during the
period ending on the 123rd day after such date; and
- Cox Radio has delivered to the trustee an opinion of counsel, as
specified in the indenture, to the effect that:
1. the holders of the debt securities will not recognize income, gain
or loss for U.S. federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to U.S.
federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance or
covenant defeasance had not occurred; and
2. such opinion of counsel, in the case of defeasance, must refer to
and be based upon a letter ruling of the Internal Revenue Service
received by Cox Radio, a ruling published by the Internal Revenue
Service or a change in applicable U.S. federal income tax law
occurring after the date of the indenture.
The term government obligations, for purposes of funding the trust, means
securities which are:
1. direct obligations of the United States of America, for the payment
of which its full faith and credit is pledged; or
2. obligations of an entity controlled or supervised by and acting as
an agency or instrumentality of the United States of America, the
timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America,
which, in the case of clauses 1 and 2 above, are not callable or redeemable at
the option of the issuer or issuers, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
government obligation or a specific payment of interest on or principal of or
any other amount with respect to any such government obligation held by such
custodian for the account of the holder of such depository receipt, provided
that, except as required by law, such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian with respect to the government obligation
or the specific payment of interest on or principal of or any other amount with
respect to the government obligation evidenced by such depository receipt.
In the event Cox Radio elects covenant defeasance with respect to any debt
securities and such debt securities are declared due and payable because of the
occurrence of any event of default other than an event of default relating to a
breach of the related covenant which would no longer be applicable to such debt
securities after such covenant defeasance, or with respect to any other covenant
as to which there has been covenant defeasance, the government obligations on
deposit with the trustee will be sufficient to pay amounts due on such debt
securities at the time of their stated maturity, but may not be sufficient to
pay amounts due on such debt securities at the time of the acceleration
resulting from such event of default. Cox Radio would, in that case, remain
liable to make payment of such amounts due at the time of acceleration.
TRANSFER
Holders may transfer or exchange the debt securities in accordance with the
indenture. Unless Cox Radio indicates otherwise in the applicable prospectus
supplement, Cox Radio will issue the debt securities in registered form and they
will be transferable only upon the surrender of such debt securities for
registration of transfer. Cox Radio may require payment of a sum sufficient to
cover any tax, assessment or
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other governmental charge payable in connection with certain transfers or
exchanges. Cox Radio is not required to transfer or exchange any debt security
selected for redemption. In addition, Cox Radio is not required to transfer or
exchange any debt security for a period of 15 days before a selection of debt
securities to be redeemed or before any interest payment date.
GOVERNING LAW
The indenture provides that it, the debt securities and the guarantees will
be governed by, and construed in accordance with, the laws of the State of New
York without giving effect to applicable principles of conflicts of law to the
extent that the application of the law of another jurisdiction would be required
thereby.
GLOBAL SECURITIES
Cox Radio may issue the registered debt securities of a series in the form
of one or more fully registered global securities which will be deposited with a
depositary, or with a nominee for the depositary, as identified in the
prospectus supplement relating to such series. A registered global security will
be registered in the name of the depositary or its nominee. If registered debt
securities are issued in global form, one or more registered global securities
will be issued in a denomination or aggregate denominations equal to the portion
of the aggregate principal amount of outstanding registered debt securities of
the series to be represented by those registered global securities.
The specific terms of the depositary arrangement with respect to any
portion of a series of debt securities to be represented by a registered global
security will be described in the prospectus supplement relating to such series.
Cox Radio anticipates that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a registered global security will be
limited to persons, who will be referred to as participants, who have accounts
with the depositary for such registered global security, or persons that may
hold interests through participants. Upon the issuance of a registered global
security, the depositary will credit the participants' accounts, on its
book-entry registration and transfer system, with the respective principal
amounts of the debt securities represented by such registered global security
and beneficially owned by those participants. The accounts to be credited shall
be designated by any dealers, underwriters or agents participating in the
distribution of those debt securities, or by Cox Radio if it offers and sells
such debt securities directly. Ownership of beneficial interests in such
registered global security will be shown on, and the transfer of those ownership
interests will be effected only through, records maintained by the depositary
with respect to participants' interests, and on the records of participants with
respect to interests of persons holding through participants. The laws of some
states may require that some purchasers of securities take physical delivery of
such securities in definitive form. Such laws may impair the ability of those
purchasers to own, transfer or pledge beneficial interests in registered global
securities.
So long as the depositary for a registered global security, or its nominee,
is the registered owner of that registered global security, that depositary or
that nominee, as the case may be, will be considered the sole owner or holder of
the debt securities represented by such registered global security for all
purposes under the indenture. Except as set forth below, owners of beneficial
interests in a registered global security will not be entitled to have the debt
securities registered in their names, will not receive or be entitled to receive
physical delivery of such debt securities in definitive form and will not be
considered the owners or holders of the debt securities under the indenture.
Accordingly, each person owning a beneficial interest in a registered global
security must rely on the procedures of the depositary for such registered
global security and, if such person is not a participant, on the procedures of
the participant through which that person owns its interest, to exercise any
rights a holder possesses under the indenture. Cox Radio understands that under
existing industry practices, if Cox Radio requests any action of holders or if
an owner of a beneficial interest in a registered global security desires to
give or take any action which a holder is entitled to give or take under the
indenture, as the case may be, the depositary for such registered global
security would authorize the participants holding the relevant beneficial
interests to give or take that action, and such
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participants would authorize beneficial owners owning through such participants
to give or take that action or would otherwise act upon the instructions of
beneficial owners holding through them.
Principal, premium, if any, and interest payments on debt securities
represented by a registered global security registered in the name of a
depositary or its nominee will be made to such depositary or its nominee, as the
case may be, as the registered owner of such registered global security. None of
Cox Radio, the trustee, the registrar or any other agent of Cox Radio, of the
trustee or of the registrar will have any responsibility or liability for any
aspect of the records relating to, or payments made on account of, beneficial
ownership interests in such registered global security, or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Cox Radio expects that the depositary for any debt securities represented
by a registered global security, or its nominee, upon receipt of any payment of
principal, premium or interest in respect of the registered global security,
will immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests as shown on the records
of such depositary or its nominee. Cox Radio also expects that payments by
participants to owners of beneficial interests in the registered global security
held through such participants will be governed by standing customer
instructions and customary practices, and will be the responsibility of those
participants, as is now the case with the securities held for the accounts of
customers in bearer form or registered in street name.
The indenture provides that if:
- the depositary for any debt securities represented by a registered global
security notifies Cox Radio that it is unwilling or unable to continue as
depositary, or ceases to be eligible under the indenture and Cox Radio
does not appoint a successor depositary within 90 days; or
- Cox Radio determines that the debt securities of any series will no
longer be represented by a registered global security and executes and
delivers to the trustee an order to that effect; or
- an event of default with respect to the debt securities of any series has
occurred and is continuing,
then Cox Radio will issue such debt securities in definitive form in exchange
for all of the registered global securities representing such debt securities.
Any debt securities issued in definitive form in exchange for a registered
global security will be registered in such name or names as the depositary shall
instruct the trustee or the registrar. Cox Radio expects that such instructions,
with respect to ownership of beneficial interests in the registered global
security, will be based upon directions received by the depositary from
participants.
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DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
GENERAL
The junior subordinated debentures will be issued in one or more series
under a junior subordinated debenture indenture, as supplemented from time to
time, between Cox Radio and The Bank of New York, as the debenture trustee. The
junior subordinated debenture indenture has been qualified under the Trust
Indenture Act, and is subject to, and governed by, the Trust Indenture Act and
is included as an exhibit to the registration statement of which this prospectus
is a part. This summary of certain terms and provisions of the junior
subordinated debentures and the junior subordinated debenture indenture does not
purport to be complete and is subject to, and is qualified in its entirety by
reference to, all of the provisions of such junior subordinated debentures and
the junior subordinated debenture indenture, including the definitions therein
of certain terms, and those terms made a part of the junior subordinated
debenture indenture by the Trust Indenture Act.
The prospectus supplement will describe the specific terms of each series
of junior subordinated debentures offered thereby, including:
- the specific title and designation, aggregate principal amount, including
any limit on the principal amount, purchase price and denominations of
those junior subordinated debentures;
- the date or dates on which the principal of those junior subordinated
debentures is payable or the method of determining the same, if
applicable;
- the rate or rates, which may be fixed or variable, at which those junior
subordinated debentures will bear interest, if any, or the method of
determining the same, if applicable;
- the date or dates from which interest, if any, shall accrue or the method
of determining the same, if applicable, the interest payment dates, if
any, on which interest will be payable or the manner of determining the
same, if applicable, and the record dates for the determination of
holders to whom interest is payable on those junior subordinated
debentures;
- the duration of the maximum consecutive period that Cox Radio may elect
to defer payments of interest on those junior subordinated debentures;
- any redemption, repayment or sinking fund provisions;
- whether those junior subordinated debentures are convertible into or
exchangeable for Class A common stock or other securities or rights of
Cox Radio or other issuers, or a combination of the foregoing and, if so,
the applicable conversion or exchange terms and conditions;
- any applicable material United States federal income tax consequences;
and
- any other specific terms pertaining to those junior subordinated
debentures, whether in addition to, or modification or deletion of, the
terms described herein.
RANKING
Each series of junior subordinated debentures will rank equally with all
other series of junior subordinated debentures to be issued by Cox Radio and
sold to other trusts or other entities to be established by Cox Radio that are
similar to the Cox Radio Trusts and will be unsecured and will rank subordinate
and junior in right of payment, to the extent and in the manner set forth in the
junior subordinated debenture indenture, to all senior indebtedness of Cox Radio
as defined in the junior subordinated debenture indenture. The junior
subordinated debenture indenture will not limit the amount of secured or
unsecured debt, including senior indebtedness, that may be incurred by Cox Radio
or its subsidiaries. See "-- Subordination." As of December 31, 1999, the
aggregate principal amount of senior indebtedness as defined in the junior
subordinated debenture indenture was approximately $437.2 million.
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FORM, REGISTRATION AND TRANSFER
The junior subordinated debentures will be issued in fully registered form.
Until any dissolution of the applicable Cox Radio Trust, the junior subordinated
debentures will be held in the name of the property trustee in trust for the
benefit of the holders of the related trust securities. If the junior
subordinated debentures are distributed to the holders of the related trust
securities, the junior subordinated debentures will be issued to such holders in
the same form as the trust securities were held. Accordingly, any depositary
arrangements for such junior subordinated debentures are expected to be
substantially similar to those in effect for the trust preferred securities. See
"Description of Trust Preferred Securities -- Global Trust Preferred
Securities."
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable prospectus supplement, payment
of principal of and premium, if any, on and interest on the junior subordinated
debentures will be made at the office of the debenture trustee in The City of
New York or at the office of such paying agent or paying agents as Cox Radio may
designate from time to time, except that at the option of Cox Radio payment of
any interest may be made, except in the case of a global certificate
representing junior subordinated debentures, by:
1. check mailed to the address of the person entitled thereto as such
address shall appear in the applicable securities register for junior
subordinated debentures; or
2. transfer to an account maintained by the person entitled thereto as
specified in such securities register, provided that proper transfer
instructions have been received by the relevant record date.
Payment of any interest on any junior subordinated debenture will be made
to the person in whose name such junior subordinated debenture is registered at
the close of business on the record date for such interest, except in the case
of defaulted interest. Cox Radio may at any time designate additional paying
agents or rescind the designation of any paying agent; provided, however, Cox
Radio will at all times be required to maintain a paying agent in each place of
payment for the junior subordinated debentures.
Any moneys deposited with the debenture trustee or any paying agent, or
then held by Cox Radio in trust, for the payment of the principal of and
premium, if any, on or interest on any junior subordinated debentures and
remaining unclaimed for two years after such principal and premium, if any, or
interest has become due and payable shall, at the request of Cox Radio, be
repaid to Cox Radio and the holder of such junior subordinated debentures shall
thereafter look, as a general unsecured creditor, only to Cox Radio for payment
thereof.
OPTION TO EXTEND INTEREST PAYMENT DATE
So long as no debenture event of default has occurred and is continuing,
Cox Radio will have the right under the junior subordinated debenture indenture
to defer the payment of interest on the junior subordinated debentures at any
time or from time to time up to the maximum period specified in the applicable
prospectus supplement for the deferral of interest. Each of these deferral
periods is referred to in this prospectus as an extension period. An extension
period must end on an interest payment date and may not extend beyond the stated
maturity of such junior subordinated debentures. At the end of an extension
period, Cox Radio must pay all interest then accrued and unpaid, together with
interest on the accrued and unpaid interest, to the extent permitted by
applicable law. During an extension period, interest will continue to accrue and
holders of junior subordinated debentures, and holders of the related trust
securities that are outstanding will be required to accrue such deferred
interest income for United States federal income tax purposes prior to the
receipt of cash attributable to such income, regardless of the method of
accounting used by the holders.
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Prior to the termination of any extension period, Cox Radio may extend such
extension period, provided that such extension does not:
- cause such extension period to exceed the maximum extension period;
- end on a date other than an interest payment date; or
- extend beyond the stated maturity of the related junior subordinated
debentures.
Upon the termination of any extension period, or any extension of the
related extension period, and the payment of all amounts then due, Cox Radio may
begin a new extension period, subject to the limitations described above. No
interest shall be due and payable during an extension period except at the end
thereof. Cox Radio must give the debenture trustee notice of its election to
begin or extend an extension period at least five business days prior to the
earlier of:
- the date cash distributions on the related trust securities would have
been payable except for the election to begin or extend such extension
period; or
- the date the applicable Cox Radio Trust is required to give notice to any
securities exchange or to holders of its trust preferred securities of
the record date or the date cash distributions are payable, but in any
event not less than five business days prior to such record date.
The debenture trustee shall give notice of Cox Radio's election to begin or
extend an extension period to the holders of the trust preferred securities.
Subject to the foregoing limitations, there is no limitation on the number of
times that Cox Radio may begin or extend an extension period.
RESTRICTIONS ON CERTAIN PAYMENTS
Cox Radio will covenant that if at any time:
1. there shall have occurred any event of which Cox Radio has actual
knowledge that is, or with the giving of notice or the lapse of time,
or both, would be, a debenture event of default;
2. Cox Radio shall be in default with respect to any of its payment
obligations under the preferred securities guarantee; or
3. Cox Radio shall have given notice of its election to exercise its
right to begin or extend an extension period as provided in the
junior subordinated debenture indenture and shall not have rescinded
such notice, and such extension period, or any extension thereof,
shall have commenced and be continuing,
then it will not:
- declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of Cox Radio's
capital stock; or
- make any payment of principal of or premium, if any, on or interest on or
repay or repurchase or redeem any debt securities of Cox Radio, including
other junior subordinated debentures, that rank equally with or junior in
right of payment to the junior subordinated debentures; or
- make any guarantee payments with respect to any guarantee by Cox Radio of
the debt securities of any subsidiary of Cox Radio, including under any
guarantees to be issued by Cox Radio with respect to securities of other
Cox Radio trusts or entities to be established by Cox Radio similar to
the Cox Radio Trusts, if such guarantee ranks equally with or junior in
right of payment to the junior subordinated debentures
other than:
- dividends or distributions in shares of, or options, warrants or rights
to subscribe for or purchase shares of, Class A and Class B common stock
of Cox Radio;
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- any declaration of a dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any such plan
in the future, or the redemption or repurchase of any such rights
pursuant thereto;
- payments under the preferred securities guarantee;
- as a result of reclassification of Cox Radio's capital stock or the
exchange or conversion of one class or series of Cox Radio's capital
stock for another class or series of Cox Radio's capital stock;
- the purchase of fractional interests in shares of Cox Radio's capital
stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged; and
- purchases of Class A and Class B common stock related to the issuance of
Class A and Class B common stock or rights under any of Cox Radio's
benefit plans for its directors, officers or employees or any of Cox
Radio's dividend reinvestment plans.
So long as the trust securities remain outstanding, Cox Radio also will
covenant:
- to maintain 100% direct or indirect ownership of the related trust common
securities, provided that any permitted successor of Cox Radio under the
junior subordinated debenture indenture may succeed to Cox Radio's
ownership of such trust common securities;
- to use its best efforts to cause each Cox Radio Trust:
- to remain a business trust, except in connection with the distribution
of junior subordinated debentures to the holders of related trust
securities in liquidation of such Cox Radio Trust, the conversion,
exchange or redemption of all of such trust securities, or certain
mergers, consolidations or amalgamations, each as permitted by the
declaration of trust, and
- to otherwise continue to be classified as a grantor trust for United
States federal income tax purposes;
- to use its reasonable best efforts to cause each holder of its trust
securities to be treated as owning an undivided beneficial interest in
the related junior subordinated debentures; and
- not to cause, as sponsor of the Cox Radio Trusts, or to permit, as the
trust common securities holder, the dissolution, liquidation or
winding-up of any Cox Radio Trust, except as provided in the declaration
of trust.
MODIFICATION OF JUNIOR SUBORDINATED DEBENTURE INDENTURE
From time to time, Cox Radio and the debenture trustee may, without the
consent of the holders of the junior subordinated debentures, amend, waive or
supplement the junior subordinated debenture indenture for specified purposes,
including, among other things, curing ambiguities or adding provisions, provided
that any such action does not materially adversely affect the interests of the
holders of the junior subordinated debentures, and maintaining the qualification
of the junior subordinated debenture indenture under the Trust Indenture Act.
The junior subordinated debenture indenture will permit Cox Radio and the
debenture trustee, with the consent of the holders of a majority in principal
amount of all outstanding junior subordinated debentures affected thereby, to
modify the junior subordinated debenture indenture in a manner affecting the
rights of the holders of junior subordinated debentures; provided, however, that
no such modification may, without the consent of the holder of each outstanding
junior subordinated debenture so affected:
- change the stated maturity or reduce the principal of any such junior
subordinated debentures;
- change the interest rate, or the manner of calculation of the interest
rate, or extend the time of payment of interest on any such junior
subordinated debentures except pursuant to Cox Radio's right under the
junior subordinated debenture indenture to defer the payment of interest
as provided therein (see "-- Option to Extend Interest Payment Date");
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- change any of the conversion, exchange or redemption provisions
applicable to any such junior subordinated debentures;
- change the currency in respect of which payments of principal of or any
premium or interest on any such junior subordinated debentures are to be
made;
- change the right of holders of trust securities to bring a direct action
in respect of any required payments or conversion or exchange rights;
- impair or affect the right of any holder of any such junior subordinated
debentures to institute suit for the payment of the principal thereof or
premium, if any, or interest thereon or for the conversion or exchange of
any such junior subordinated debentures in accordance with their terms;
- change the subordination provisions adversely to the holders of the
junior subordinated debentures; or
- reduce the percentage of principal amount of junior subordinated
debentures the holders of which are required to consent to any such
modification of the junior subordinated debenture indenture.
DEBENTURE EVENTS OF DEFAULT
The following described events with respect to any series of junior
subordinated debentures will constitute a debenture event of default, whatever
the reason for such debenture event of default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body, unless such event is specifically deleted
or modified in or pursuant to the supplemental indenture, board resolution or
officers' certificate establishing the terms of such series pursuant to the
junior subordinated debenture indenture:
1. failure for 30 days to pay any interest on that series of junior
subordinated debentures when due, subject to any permitted deferral
thereof; provided that, during any extension period for such series
of junior subordinated debentures, failure to pay interest on such
series of junior subordinated debentures shall not constitute a
debenture event of default; or
2. failure to pay any principal of or premium, if any, on that series of
junior subordinated debentures when due, whether at maturity, upon
any redemption, by declaration of acceleration of maturity or
otherwise; or
3. if applicable, failure by Cox Radio to deliver the required
securities or other rights upon an appropriate conversion or exchange
election by holders of that series of junior subordinated debentures
or the related trust preferred securities; or
4. failure to observe or perform any other agreement or covenant
contained in the junior subordinated debenture indenture in respect
of that series of junior subordinated debentures for 90 days after
written notice to Cox Radio from the debenture trustee or the holders
of at least 25% in aggregate outstanding principal amount of that
series of junior subordinated debentures; or
5. certain events in bankruptcy, insolvency or reorganization of Cox
Radio.
The holders of a majority in aggregate outstanding principal amount of the
junior subordinated debentures of any series have, subject to certain
exceptions, the right to direct the time, method and place of conducting any
proceeding for any remedy available to the debenture trustee in respect of such
junior subordinated debentures. The debenture trustee or the holders of at least
25% in aggregate outstanding principal amount of the junior subordinated
debentures of any series may declare the principal of and any accrued interest
on such junior subordinated debentures due and payable immediately upon a
debenture event of default, other than a debenture event of default referred to
in paragraph (5) above, which shall result in the immediate acceleration of the
junior subordinated debentures. The holders of a majority in aggregate
outstanding principal amount of the junior subordinated debentures of any series
may annul such declaration and waive the default in respect of such junior
subordinated debentures if the default, other
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than the non-payment of the principal and interest of the junior subordinated
debentures which has become due solely by such acceleration, has been cured and
a sum sufficient to pay all matured installments of interest and premium, if
any, and principal due otherwise than by acceleration has been deposited with
the debenture trustee.
The holders of a majority in aggregate outstanding principal amount of the
junior subordinated debentures of any series may, on behalf of the holders of
all of the junior subordinated debentures of such series, waive any past default
except:
- a default in the payment of the principal of or premium, if any, on or
interest on the junior subordinated debentures, unless such default has
been cured and a sum sufficient to pay all matured installments of
interest and premium, if any, and principal due otherwise than by
acceleration has been deposited with the debenture trustee; or
- a default in respect of a covenant or provision which under the junior
subordinated debenture indenture cannot be modified or amended without
the consent of the holder of each outstanding junior subordinated
debenture of such series.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF TRUST PREFERRED SECURITIES
To the extent any action under the junior subordinated debenture indenture
is entitled to be taken by the holders of at least a specified percentage of
junior subordinated debentures, holders of the corresponding trust preferred
securities may take such action if such action is not taken by the property
trustee of the related Cox Radio Trust. Notwithstanding the foregoing, if a
debenture event of default has occurred and is continuing and is attributable
either to:
- the failure of Cox Radio to pay the principal of or premium, if any, on
or interest on the junior subordinated debentures on the due date; or
- the failure by Cox Radio to deliver the required securities or other
rights upon an appropriate conversion or exchange right election,
a holder of the related trust preferred securities may institute a legal
proceeding directly against Cox Radio for enforcement of payment to such holder
of the principal of or premium, if any, on or interest on such junior
subordinated debentures having a principal amount equal to the liquidation
amount of the trust preferred securities held by such holder or for enforcement
of such conversion or exchange rights, as the case may be, which is referred to
as a direct action. Cox Radio may not amend the junior subordinated debenture
indenture to remove the foregoing right to bring a direct action without the
prior written consent of the holders of all of the trust preferred securities
outstanding. If the right to bring a direct action is removed, the applicable
Cox Radio Trust may become subject to the reporting obligations under the
Exchange Act. Notwithstanding any payments made to a holder of trust preferred
securities by Cox Radio in connection with a direct action, Cox Radio shall
remain obligated to pay the principal of and premium, if any, on and interest on
the related junior subordinated debentures, and Cox Radio shall be subrogated to
the rights of the holder of such trust preferred securities with respect to
payments on the trust preferred securities to the extent of any payments made by
Cox Radio to such holder in any direct action.
The holders of the trust preferred securities will not be able to exercise
directly any remedies, other than those set forth in the preceding paragraph,
available to the holders of the related junior subordinated debentures unless an
event of default has occurred and is continuing under the applicable declaration
of trust. See "Description of Trust Preferred Securities -- Events of Default;
Notice."
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CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
Cox Radio shall not consolidate with or merge into any other person or
convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any person, and no person shall consolidate with
or merge into Cox Radio or convey, transfer or lease its properties and assets
as an entirety or substantially as an entirety to Cox Radio, unless:
- in case Cox Radio consolidates with or merges into another person or
conveys or transfers its properties and assets as an entirety or
substantially as an entirety to any person, the successor person is
organized under the laws of the United States or any State or the
District of Columbia, and such successor person expressly assumes Cox
Radio's obligations under the junior subordinated debentures and the
preferred securities guarantee;
- immediately after giving effect thereto, no debenture event of default,
and no event which, after notice or lapse of time or both, would become a
debenture event of default, shall have occurred and be continuing; and
- certain other conditions as prescribed in the junior subordinated
debenture indenture are met.
SATISFACTION AND DISCHARGE
The junior subordinated debenture indenture will cease to be of further
effect, except as to Cox Radio's obligations to pay all other sums due pursuant
to the junior subordinated debenture indenture and to provide the required
officers' certificates and opinions of counsel, and Cox Radio will be deemed to
have satisfied and discharged the junior subordinated debenture indenture, when,
among other things, all junior subordinated debentures not previously delivered
to the debenture trustee for cancellation:
- have become due and payable;
- will become due and payable at maturity or upon redemption within one
year; or
- if redeemable at the option of Cox Radio, are to be called for redemption
within one year under arrangements satisfactory to the debenture trustee
for the giving of notice of redemption by the debenture trustee in the
name, and at the expense, of Cox Radio;
and Cox Radio deposits or causes to be deposited with the debenture trustee
funds, in trust, for the purpose and in an amount sufficient to pay and
discharge the entire indebtedness on the junior subordinated debentures not
previously delivered to the debenture trustee for cancellation, for the
principal, and premium, if any, and interest to the date of the deposit or to
the stated maturity thereof, as the case may be.
SUBORDINATION
The junior subordinated debentures will rank subordinate and junior in
right of payment to all senior indebtedness to the extent provided in the junior
subordinated debenture indenture. Upon any payment or distribution of assets to
creditors upon any liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors, marshaling of assets or any bankruptcy,
insolvency, debt restructuring or similar proceedings in connection with any
insolvency or bankruptcy proceeding of Cox Radio, the holders of senior
indebtedness will first be entitled to receive payment in full of such senior
indebtedness before the holders of junior subordinated debentures will be
entitled to receive or retain any payment in respect thereof.
In the event of the acceleration of the maturity of junior subordinated
debentures, the holders of all senior indebtedness outstanding at the time of
such acceleration will first be entitled to receive payment in full of such
senior indebtedness before the holders of junior subordinated debentures will be
entitled to receive or retain any payment in respect of the junior subordinated
debentures.
No payments on account of principal or premium, if any, or interest in
respect of the junior subordinated debentures may be made if there shall have
occurred and be continuing a default in any payment with respect to senior
indebtedness, or an event of default with respect to any senior indebtedness
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resulting in the acceleration of the maturity thereof, or if any judicial
proceeding shall be pending with respect to any such default.
Indebtedness, under the junior subordinated debentures indenture, shall
mean:
1. every obligation of Cox Radio for money borrowed;
2. every obligation of Cox Radio evidenced by bonds, debentures, notes
or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses;
3. every reimbursement obligation of Cox Radio with respect to letters
of credit, banker's acceptances or similar facilities issued for the
account of Cox Radio;
4. every obligation of Cox Radio issued or assumed as the deferred
purchase price of property or services, excluding trade accounts
payable or accrued liabilities arising in the ordinary course of
business;
5. every capital lease obligation of Cox Radio which generally accepted
accounting principles require to be classified and accounted for as a
capital lease on Cox Radio's balance sheet;
6. all indebtedness of Cox Radio, whether incurred on or prior to the
date of the junior subordinated debentures indenture or thereafter
incurred, for claims in respect of derivative products, including
interest rate, foreign exchange rate and commodity forward contracts,
options and swaps and similar arrangements;
7. letters of credit, performance bonds and similar obligations issued
in favor of governmental or licensing authorities as a term of a
governmental franchise, license, permit or authorization held by such
entity or any of its subsidiaries;
8. every obligation of the type referred to in paragraphs (1) through
(7) of another person and all dividends of another person the payment
of which, in either case, Cox Radio has guaranteed or is responsible
or liable for, directly or indirectly, as obligor or otherwise; and
9. obligations of the type referred to in paragraphs (1) through (8) of
another person secured by any lien on any property or asset of Cox
Radio, whether or not such obligation is assumed by Cox Radio; and
all deferrals, renewals, extensions and refundings of, and
amendments, modifications and supplements to, any of the foregoing
obligations.
Indebtedness ranking on a parity with the junior subordinated debentures
shall mean:
1. Indebtedness, whether outstanding on the date of execution of the
junior subordinated debentures indenture or thereafter created,
assumed or incurred, to the extent such Indebtedness specifically by
its terms ranks equally with and not prior to the junior subordinated
debentures in the right of payment upon the happening of the
dissolution, winding-up, liquidation or reorganization of Cox Radio;
and
2. all other debt securities, and guarantees in respect of those debt
securities, issued to any other trust, or a trustee of such trust,
partnership or other entity affiliated with Cox Radio that is a
financing vehicle of Cox Radio, which is referred to as a financing
entity, in connection with the issuance by such financing entity of
equity securities or other securities guaranteed by Cox Radio
pursuant to an instrument that ranks equally with or junior in right
of payment to the preferred securities guarantee.
The securing of any Indebtedness otherwise constituting indebtedness ranking on
a parity with the junior subordinated debentures shall not prevent such
Indebtedness from constituting indebtedness ranking on a parity with the junior
subordinated debentures.
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Indebtedness ranking junior to the junior subordinated debentures shall
mean any Indebtedness, whether outstanding on the date of execution of the
junior subordinated debentures indenture or thereafter created, assumed or
incurred, to the extent such Indebtedness by its terms ranks junior to and not
equally with or prior to:
- the junior subordinated debentures; and
- any other Indebtedness ranking equally with the junior subordinated
debentures in right of payment upon the happening of the dissolution,
winding-up, liquidation or reorganization of Cox Radio.
The securing of any Indebtedness otherwise constituting indebtedness ranking
junior to the junior subordinated debentures shall not be deemed to prevent such
Indebtedness from constituting Indebtedness ranking junior to the junior
subordinated debentures.
Senior indebtedness shall mean all Indebtedness, whether outstanding on the
date of execution of the junior subordinated debentures indenture or thereafter
created, assumed or incurred, except indebtedness ranking on a parity with the
junior subordinated debentures or indebtedness ranking junior to the junior
subordinated debentures.
GOVERNING LAW
The junior subordinated debentures indenture and the junior subordinated
debentures will be governed by and construed in accordance with the laws of the
State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The debenture trustee shall be subject to all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to the foregoing, the debenture trustee will not be under
any obligation to exercise any of the powers vested in it by the junior
subordinated debentures indenture at the request of any holder of junior
subordinated debentures, unless offered reasonable indemnity by such holder
against the costs, expenses and liabilities which might be incurred thereby. The
debenture trustee will not be required to expend or risk its own funds or
otherwise incur personal financial liability in the performance of its duties if
the debenture trustee reasonably believes that repayment or adequate indemnity
is not reasonably assured to it.
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DESCRIPTION OF TRUST PREFERRED SECURITIES
The trust preferred securities will be issued by a Cox Radio Trust under a
declaration of trust of such Cox Radio Trust and will represent beneficial
interests in the assets of such Cox Radio Trust. The holders of such beneficial
interests will be entitled to a preference over the trust common securities of
such Cox Radio Trust with respect to the payment of distributions and amounts
payable on redemption of the trust preferred securities or the liquidation of
such Cox Radio Trust under the circumstances described under "-- Subordination
of Trust Common Securities." The declaration of trust has been qualified under
the Trust Indenture Act and is subject to, and governed by, the Trust Indenture
Act. This summary of certain terms and provisions of the trust preferred
securities and the declaration of trust does not purport to be complete and is
subject to, and is qualified in its entirety by reference to, all of the
provisions of the trust preferred securities and such declaration of trust,
including the definitions therein of certain terms, and those made a part of
such declaration of trust by the Trust Indenture Act.
Reference is made to the applicable prospectus supplement for a description
of the specific terms of the trust preferred securities offered thereby,
including:
- the particular Cox Radio Trust issuing such trust preferred securities;
- the specific designation, number and purchase price of such trust
preferred securities;
- the annual distribution rate, or method of calculation of the
distribution rate, for such trust preferred securities and, if
applicable, the dates from which and upon which such distributions shall
accumulate and be payable and the record dates therefor, and the maximum
extension period for which such distributions may be deferred;
- the liquidation amount per trust preferred security which shall be paid
out of the assets of such Cox Radio Trust to the holders thereof upon
voluntary or involuntary dissolution, winding-up and liquidation of such
Cox Radio Trust;
- the obligation or right, if any, of such Cox Radio Trust to purchase or
redeem its trust preferred securities and the price or prices at which,
the date or dates on which or period or periods within which and the
terms and conditions upon which, such trust preferred securities shall or
may be purchased or redeemed, in whole or in part, pursuant to such
obligation or right;
- the terms and conditions, if any, upon which such trust preferred
securities may be converted or exchanged, in addition to the
circumstances described herein, into other securities or rights, or a
combination of the foregoing, including the name of the issuer of such
securities or rights, the initial conversion or exchange price or rate
per trust preferred security and the date or dates on which or period or
periods within which such conversion or exchange may be effected;
- if applicable, any securities exchange upon which such trust preferred
securities shall be listed;
- whether such trust preferred securities are issuable in book-entry form
only and, if so, the identity of the depositary and disclosure relating
to the depositary arrangements; and
- any other rights, preferences, privileges, limitations or restrictions of
such trust preferred securities consistent with the declaration of trust
or with law which may differ from those described in this prospectus.
Certain material United States federal income tax considerations applicable to
any offering of trust preferred securities will also be described in the
applicable prospectus supplement.
GENERAL
The trust preferred securities of a Cox Radio Trust will rank equally, and
payments will be made thereon pro rata, with the trust common securities of that
Cox Radio Trust except as described under "-- Subordination of Trust Common
Securities." The proceeds from the sale of trust preferred securities and trust
common securities by a Cox Radio Trust will be used by such Cox Radio Trust to
purchase an aggregate principal amount of junior subordinated debentures or
other debt securities of Cox Radio equal
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to the aggregate liquidation amount of such trust preferred securities and trust
common securities. Legal title to such junior subordinated debentures will be
held by the property trustee of the Cox Radio Trust for the benefit of the
holders of the related trust securities. In addition, Cox Radio will execute a
preferred securities guarantee for the benefit of the holders of the related
trust preferred securities. The preferred securities guarantee will not
guarantee payment of distributions or amounts payable on redemption of the trust
preferred securities or liquidation of a Cox Radio Trust when such Cox Radio
Trust does not have funds legally available for the payment thereof. See
"Description of Preferred Securities Guarantees."
The revenue of a Cox Radio Trust available for distribution to holders of
its trust preferred securities will be limited to payments received under the
related junior subordinated debentures which such Cox Radio Trust purchased with
the proceeds from the sale of its trust securities. If Cox Radio fails to make a
required payment in respect of such junior subordinated debentures, the
applicable Cox Radio Trust will not have sufficient funds to make the related
payments, including distributions, in respect of its trust preferred securities.
Each of the Cox Radio Trusts is a separate legal entity, and the assets of one
are not available to satisfy the obligations of the other.
DEFERRAL OF DISTRIBUTIONS
So long as no debenture event of default has occurred and is continuing,
Cox Radio will have the right to defer the payment of interest on the junior
subordinated debentures at any time or from time to time for up to the maximum
extension period specified in the applicable prospectus supplement, provided
that an extension period must end on an interest payment date and may not extend
beyond the stated maturity of such junior subordinated debentures. If Cox Radio
elects to exercise such right, distributions on the related trust preferred
securities will be deferred during any such extension period. Distributions to
which holders of the trust preferred securities are entitled during any
extension period will continue to accumulate additional distributions thereon.
Cox Radio has no current intention to exercise its right to defer payments of
interest on the junior subordinated debentures Cox Radio may issue and,
accordingly, distributions on the related trust preferred securities.
REDEMPTION
Upon the repayment at the stated maturity or redemption, in whole or in
part, prior to the stated maturity of the junior subordinated debentures, the
proceeds from such repayment or redemption shall be applied by the property
trustee to redeem an aggregate liquidation amount of the related trust
securities equal to the aggregate principal amount of such junior subordinated
debentures so repaid or redeemed, upon not less than 30 nor more than 60 days
prior written notice, at a redemption price equal to such aggregate liquidation
amount plus accumulated distributions to the redemption date. Any redemption of
trust securities shall be made and the applicable redemption price shall be
payable on the redemption date only to the extent that the applicable Cox Radio
Trust has funds legally available for the payment thereof. See "-- Subordination
of Trust Common Securities."
If less than all of the junior subordinated debentures are to be redeemed
prior to the stated maturity thereof, then the proceeds of such redemption shall
be used to redeem the related trust securities on a pro rata basis among the
trust preferred securities and the trust common securities of the applicable Cox
Radio Trust except as described under "-- Subordination of Trust Common
Securities." If less than all of the trust preferred securities held in
book-entry form, if any, are to be redeemed, such trust preferred securities
will be redeemed in accordance with the procedures of The Depository Trust
Company. See "-- Global Trust Preferred Securities."
REDEMPTION PROCEDURES
If a Cox Radio Trust gives a notice of redemption in respect of its trust
preferred securities, then, by 12:00 noon, New York City time, on the redemption
date, to the extent funds are legally available,
- with respect to trust preferred securities held by The Depository Trust
Company or its nominee, the property trustee will deposit, or cause the
paying agent to deposit, irrevocably with The Depository Trust Company
funds sufficient to pay the applicable redemption price, and
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- with respect to trust preferred securities held in certificated form, the
property trustee will irrevocably deposit with the paying agent funds
sufficient to pay the applicable redemption price and will give such
paying agent irrevocable instructions and authority to pay the applicable
redemption price to the holders thereof upon surrender of their
certificates evidencing the trust preferred securities.
If notice of redemption shall have been given and funds irrevocably
deposited as required, then, upon the date of such deposit, all rights of the
holders of the trust preferred securities called for redemption will cease,
except the right of such holders to receive the applicable redemption price, but
without interest thereon, and such trust preferred securities will cease to be
outstanding. In the event that any redemption date is not a business day, then
the applicable redemption price payable on that date will be paid on the next
succeeding day that is a business day, without any interest or other payment in
respect of any delay, with the same force and effect as if made on that date. In
the event that payment of the applicable redemption price is improperly withheld
or refused and not paid either by the applicable Cox Radio Trust or by Cox Radio
pursuant to the preferred securities guarantee as described under "Description
of Preferred Securities Guarantees,"
- distributions on the related trust preferred securities will continue to
accumulate from the redemption date originally established by such Cox
Radio Trust to the date such applicable redemption price is actually
paid; and
- the actual payment date will be the redemption date for purposes of
calculating the applicable redemption price.
Subject to applicable law, including, without limitation, United States
federal securities law, Cox Radio or its subsidiaries may at any time and from
time to time purchase outstanding trust preferred securities by tender, in the
open market or by private agreement.
LIQUIDATION OF A COX RADIO TRUST AND DISTRIBUTION OF JUNIOR SUBORDINATED
DEBENTURES
Cox Radio will have the right at any time to dissolve a Cox Radio Trust and
cause the related junior subordinated debentures to be distributed to the
holders of the trust securities of such Cox Radio Trust in liquidation of such
Cox Radio Trust after satisfaction, or reasonable provision for satisfaction, of
liabilities to creditors of such Cox Radio Trust as required by applicable law.
Such right is subject to Cox Radio having received an opinion of counsel to the
effect that such distribution will not be a taxable event to holders of the
trust preferred securities of such Cox Radio Trust.
The applicable Cox Radio Trust shall automatically dissolve upon the first
to occur of:
1. certain events of bankruptcy, dissolution or liquidation of Cox
Radio;
2. the distribution of the related junior subordinated debentures to the
holders of the trust securities of such Cox Radio Trust, if Cox
Radio, as sponsor, has given written direction to the property
trustee to dissolve such Cox Radio Trust, which direction is optional
and, except as described above, wholly within the discretion of Cox
Radio, as sponsor;
3. the redemption of all of the trust securities of such Cox Radio
Trust;
4. expiration of the term of such Cox Radio Trust; and
5. the entry of an order for the dissolution of such Cox Radio Trust by
a court of competent jurisdiction.
If a dissolution occurs as described in paragraph (1), (2), (4) or (5)
above, the applicable Cox Radio Trust shall be liquidated by the issuer trustees
as expeditiously as the issuer trustees determine to be possible by
distributing, after satisfaction, or reasonable provision for satisfaction, of
liabilities to creditors of such Cox Radio Trust as provided by applicable law,
to the holders of the trust securities and the related junior subordinated
debentures, unless such distribution is determined by the property trustee not
to be practicable, in which event such holders will be entitled to receive out
of the assets of such Cox Radio Trust legally available for distribution to
holders, after satisfaction of liabilities to creditors of such
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Cox Radio Trust as provided by applicable law, an amount equal to the aggregate
of the liquidation amount per trust security specified in the applicable
prospectus supplement plus accumulated distributions thereon to the date of
payment. If the liquidation distribution can be paid only in part because the
applicable Cox Radio Trust has insufficient assets legally available to pay in
full the aggregate liquidation distribution, then the amounts payable directly
by such Cox Radio Trust on its trust securities shall be paid on a pro rata
basis, except that if a debenture event of default has occurred and is
continuing, the trust preferred securities of such Cox Radio Trust shall have a
priority over the trust common securities of such Cox Radio Trust in respect of
such amounts. See "-- Subordination of Trust Common Securities."
After a date is fixed for any distribution of junior subordinated
debentures to holders of the related trust securities:
- such trust securities will no longer be deemed to be outstanding;
- each registered global certificate, if any, representing such trust
securities will be exchanged for a registered global certificate
representing the junior subordinated debentures to be delivered upon such
distribution; and
- any trust securities in certificated form will be deemed to represent
junior subordinated debentures having a principal amount equal to the
liquidation amount of such trust securities, and bearing accrued interest
in an amount equal to the accumulated distributions on such trust
securities until such certificates are presented to the administrative
trustees or their agent for cancellation, whereupon Cox Radio will issue
to such holder, and the debenture trustee will authenticate, junior
subordinated debentures in certificated form.
There can be no assurance as to the market prices for the trust preferred
securities or the junior subordinated debentures that may be distributed in
exchange for such trust preferred securities if a dissolution and liquidation of
the applicable Cox Radio Trust were to occur. Accordingly, the trust preferred
securities that an investor may purchase, or the junior subordinated debentures
that the investor may receive on dissolution and liquidation of the applicable
Cox Radio Trust, may trade at a discount to the price that the investor paid to
purchase such trust preferred securities.
SUBORDINATION OF TRUST COMMON SECURITIES
Payment of distributions on, and the applicable redemption price of, trust
securities shall be made pro rata among the trust preferred securities and the
trust common securities of the applicable Cox Radio Trust based on their
respective liquidation amounts; provided, however, that if on any distribution
date or redemption date a debenture event of default has occurred and is
continuing, no payment of any distribution on, or applicable redemption price
of, any of the trust common securities of the applicable Cox Radio Trust, and no
other payment on account of the redemption, liquidation or other acquisition of
such trust common securities, shall be made unless payment in full in cash of
all accumulated distributions on all of the outstanding trust preferred
securities of such Cox Radio Trust for all distribution periods terminating on
or prior thereto, or in the case of payment of the applicable redemption price,
the full amount of such redemption price, shall have been made or provided for,
and all funds available to the property trustee shall first be applied to the
payment in full in cash of all distributions on, or applicable redemption price
of, such trust preferred securities then due and payable.
Upon the occurrence and continuance of an event of default under the
declaration of trust, Cox Radio, as the trust common securities holder of the
applicable Cox Radio Trust, will be deemed to have waived any right to act with
respect to such event of default until the effect of such event of default shall
have been cured, waived or otherwise eliminated. Until any such event of default
has been so cured, waived or otherwise eliminated, the property trustee shall
act solely on behalf of the holders of the trust preferred securities of such
Cox Radio Trust and not on behalf of Cox Radio as the trust common securities
holder, and only the holders of such trust preferred securities will have the
right to direct the property trustee to act on their behalf.
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EVENTS OF DEFAULT; NOTICE
The occurrence of a debenture event of default under the junior
subordinated debenture indenture will constitute an event of default under the
declaration of trust. Within ten business days after the occurrence of an event
of default under the declaration of trust actually known to the property
trustee, the property trustee shall transmit notice of such event of default to
the holders of the trust preferred securities of the applicable Cox Radio Trust,
the administrative trustees and Cox Radio, as sponsor, unless such event of
default shall have been cured or waived.
For a discussion of the limited circumstances in which holders of trust
preferred securities may bring a direct action against Cox Radio, see
"Description of Junior Subordinated Debentures -- Enforcement of Certain Rights
by Holders of Trust Preferred Securities."
REMOVAL OF TRUSTEES
Unless a debenture event of default has occurred and is continuing, any
issuer trustee may be removed at any time by Cox Radio as the trust common
securities holder of the applicable Cox Radio Trust. If a debenture event of
default has occurred and is continuing, the property trustee and the Delaware
trustee may be removed at such time only by the holders of a majority in
liquidation amount of the outstanding trust preferred securities of the
applicable Cox Radio Trust. In no event will the holders of the trust preferred
securities have the right to vote to appoint, remove or replace the
administrative trustees, which voting rights are vested exclusively in Cox Radio
as the trust common securities holder. No resignation or removal of an issuer
trustee, and no appointment of a successor trustee, shall be effective until the
acceptance of appointment by the successor trustee in accordance with the
provisions of the declaration of trust.
MERGER OR CONSOLIDATION OF TRUSTEES
Any person into which the property trustee, the Delaware trustee or any
administrative trustee that is not a natural person may be merged or converted
or with which it may be consolidated, or any person resulting from any merger,
conversion or consolidation to which such issuer trustee shall be a party, or
any person succeeding to all or substantially all the corporate trust business
of such issuer trustee, shall be the successor of such issuer trustee under the
declaration of trust, provided such person shall be otherwise qualified and
eligible.
MERGERS, CONVERSIONS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF A COX
RADIO TRUST
The applicable Cox Radio Trust may not merge with or into, convert into,
consolidate, amalgamate or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to any
corporation or other person, except as described below or as otherwise described
under "-- Liquidation of a Cox Radio Trust and Distribution of Junior
Subordinated Debentures." A Cox Radio Trust may, at the request of Cox Radio, as
sponsor, with the consent of the administrative trustees but without the consent
of the holders of its trust preferred securities, merge with or into, convert
into, consolidate, amalgamate or be replaced by or convey, transfer or lease its
properties and assets as an entirety or substantially as an entirety to a trust
organized as such under the laws of any State; provided that:
- such successor entity either:
- expressly assumes all of the obligations of such Cox Radio Trust with
respect to the trust securities of such Cox Radio Trust; or
- substitutes for the trust securities of such Cox Radio Trust other
securities having substantially the same terms as such trust securities
so long as the successor securities rank the same as such trust
securities rank in priority with respect to distributions and payments
upon liquidation, redemption and otherwise;
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- Cox Radio expressly appoints a trustee of such successor entity
possessing the same powers and duties as the property trustee with
respect to the related junior subordinated debentures;
- the successor securities are listed, or any successor securities will be
listed upon notification of issuance, on each national securities
exchange or other organization on which the trust securities of such Cox
Radio Trust are then listed, if any;
- such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not cause the trust securities,
including any successor securities, of such Cox Radio Trust or the
related junior subordinated debentures to be downgraded or placed under
surveillance or review by any nationally recognized statistical rating
organization;
- such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the trust securities,
including any successor securities, of such Cox Radio Trust in any
material respect, other than any dilution of such holders' interests in
the new entity;
- such successor entity has a purpose substantially identical to that of
such Cox Radio Trust;
- prior to such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, Cox Radio has received an
opinion from independent counsel to such Cox Radio Trust experienced in
such matters to the effect that:
- such merger, conversion, consolidation, amalgamation, replacement,
conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the trust securities,
including any successor securities, of such Cox Radio Trust in any
material respect, other than any dilution of such holders' interests in
the new entity; and
- following such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease, neither such Cox Radio Trust
nor such successor entity will be required to register as an investment
company under the Investment Company Act of 1940, as amended; and
- Cox Radio or any permitted successor or assignee owns all of the common
securities of such successor entity and guarantees the obligations of
such successor entity under the successor securities at least to the
extent provided by the preferred securities guarantee and the common
securities guarantee for the benefit of the owner of the common
securities of such Cox Radio Trust.
Notwithstanding the foregoing, such Cox Radio Trust shall not, except with the
consent of each holder of its trust securities, consolidate, amalgamate, merge
with or into, or be replaced by or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it, if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause such Cox Radio Trust or the successor
entity not to be classified as a grantor trust for United States federal income
tax purposes.
VOTING RIGHTS; AMENDMENT OF A DECLARATION OF TRUST
Except as provided below and under "-- Mergers, Conversions,
Consolidations, Amalgamations or Replacements of a Cox Radio Trust" and
"Description of Preferred Securities Guarantees -- Amendments and Assignment"
and as otherwise required by law and the applicable declaration of trust, the
holders of trust preferred securities will have no voting rights.
The declaration of trust may be amended from time to time by Cox Radio, the
property trustee and the administrative trustees, without the consent of the
holders of the trust securities of the applicable Cox Radio Trust:
- to cure any ambiguity, correct or supplement any provisions in such
declaration of trust that may be inconsistent with any other provision,
or to make any other provisions with respect to matters or questions
arising under such declaration of trust, which shall not be inconsistent
with the other provisions of such declaration of trust; or
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- to modify, eliminate or add to any provisions of such declaration of
trust to such extent as shall be necessary to ensure that such Cox Radio
Trust will be classified for United States federal income tax purposes as
a grantor trust at all times that any of its trust securities are
outstanding or to ensure that such Cox Radio Trust will not be required
to register as an investment company under the Investment Company Act;
provided, however, that in each case, such action shall not materially adversely
affect in any material respect the interests of the holders of such trust
securities.
A declaration of trust may be amended by the issuer trustees and Cox Radio:
- with the consent of holders of a majority in liquidation amount of the
outstanding trust securities of the applicable Cox Radio Trust; and
- upon receipt by the issuer trustees of an opinion of counsel experienced
in such matters to the effect that such amendment or the exercise of any
power granted to the issuer trustees in accordance with such amendment
will not affect such Cox Radio Trust's status as a grantor trust for
United States federal income tax purposes or such Cox Radio Trust's
exemption from status as an investment company under the Investment
Company Act;
provided, however, that, without the consent of each holder of such trust
securities, such declaration of trust may not be amended to:
- change the distribution rate or manner of calculation of the distribution
rate, amount, timing or currency or otherwise adversely affect the method
of any required payment;
- change the purpose of the applicable Cox Radio Trust;
- authorize the issuance of any additional beneficial interests in such Cox
Radio Trust;
- change the conversion, exchange or redemption provisions;
- change the conditions precedent for Cox Radio to elect to dissolve such
Cox Radio Trust and distribute the related junior subordinated debentures
to the holders of such trust securities;
- change the liquidation distribution or other provisions relating to the
distribution of amounts payable upon the dissolution and liquidation of
such Cox Radio Trust;
- affect the limited liability of any holder of such trust securities; or
- restrict the right of a holder of such trust securities to institute suit
for the enforcement of any required payment on or after the due date
therefor or for the conversion or exchange of such trust securities in
accordance with their terms.
So long as any junior subordinated debentures are held by the property
trustee, the issuer trustees shall not:
- direct the time, method and place of conducting any proceeding for any
remedy available to such debenture trustee, or execute any trust or power
conferred on the trustee, with respect to the junior subordinated
debentures;
- waive certain past defaults under the junior subordinated debenture
indenture;
- exercise any right to rescind or annul a declaration of acceleration of
the maturity of the principal of such junior subordinated debentures; or
- consent to any amendment, modification or termination of the junior
subordinated debenture indenture or such junior subordinated debentures
where such consent shall be required, without, in each case, obtaining
the prior approval of the holders of a majority in liquidation amount of
all outstanding trust preferred securities of the applicable Cox Radio
Trust;
provided, however, that where a consent under the junior subordinated debenture
indenture would require the consent of each holder affected thereby, no such
consent shall be given by the property trustee without
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the prior approval of each holder of the related trust preferred securities. The
issuer trustees shall not revoke any action previously authorized or approved by
a vote of the holders of trust preferred securities except by subsequent vote of
such holders. The property trustee shall notify each holder of trust preferred
securities of any notice of default with respect to the related junior
subordinated debentures. In addition to obtaining approvals of holders of trust
preferred securities referred to above, prior to taking any of the foregoing
actions, the issuer trustees shall obtain an opinion of counsel experienced in
such matters to the effect that the applicable Cox Radio Trust will not be
classified as an association taxable as a corporation for United States federal
income tax purposes on account of such action.
Any required approval of holders of trust preferred securities may be given
at a meeting of such holders convened for such purpose or pursuant to written
consent. The administrative trustees will cause a notice of any meeting at which
holders of trust preferred securities are entitled to vote to be given to each
holder of record of trust preferred securities in the manner set forth in the
applicable declaration of trust.
Notwithstanding that holders of trust preferred securities are entitled to
vote or consent under any of the circumstances referred to above, any trust
preferred securities that are owned by Cox Radio or any affiliate of Cox Radio
shall, for purposes of such vote or consent, be treated as if they were not
outstanding.
GLOBAL TRUST PREFERRED SECURITIES
If specified in the prospectus supplement, trust preferred securities may
be represented by one or more global certificates deposited with, or on behalf
of, The Depository Trust Company, or other depositary identified in such
prospectus supplement, or a nominee thereof, in each case for credit to an
account of a participant in The Depository Trust Company, or other depositary.
The identity of the depositary and the specific terms of the depositary
arrangements with respect to the trust preferred securities to be represented by
one or more global certificates will be described in the prospectus supplement.
However, unless otherwise specified in the prospectus supplement, The Depository
Trust Company will be the depositary and the depositary arrangements described
with respect to the debt securities will apply to such trust preferred
securities as well, except all references to Cox Radio shall include Cox Radio
Trust and all references to the applicable indenture will refer to the
applicable declaration of trust. See "Description of Debt Securities -- Global
Securities."
PAYMENT AND PAYING AGENT
Payments in respect of any global certificate representing trust preferred
securities shall be made to Cede & Co. as nominee of The Depository Trust
Company, or other applicable depositary or its nominee, which shall credit the
relevant accounts at The Depository Trust Company or such other depositary on
the applicable payment dates, while payments in respect of trust preferred
securities in certificated form shall be made by check mailed to the address of
the holder entitled thereto as such address shall appear on the register. The
paying agent shall initially be the property trustee and any co-paying agent
chosen by the property trustee and acceptable to the administrative trustees and
Cox Radio. The paying agent shall be permitted to resign as paying agent upon 30
days' prior written notice to the property trustee, the administrative trustees
and Cox Radio. In the event that the property trustee shall no longer be the
paying agent, the administrative trustees shall appoint a successor, which shall
be a bank or trust company acceptable to the administrative trustees and Cox
Radio, to act as paying agent.
REGISTRAR AND TRANSFER AGENT
The property trustee will act as registrar and transfer agent for the trust
preferred securities.
Registration of transfers of trust preferred securities will be effected
without charge by or on behalf of the applicable Cox Radio Trust, but upon
payment of any tax or other governmental charges that may be imposed in
connection with any transfer or exchange. A Cox Radio Trust will not be required
to register or cause to be registered the transfer of its trust preferred
securities after they have been converted, exchanged, redeemed or called for
redemption.
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INFORMATION CONCERNING THE PROPERTY TRUSTEE
The property trustee, other than during the occurrence and continuance of
an event of default under the applicable declaration of trust, will undertake to
perform only such duties as are specifically set forth in such declaration of
trust and, during the continuance of such event of default, must exercise the
same degree of care and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to the foregoing, the property
trustee will not be under any obligation to exercise any of the powers vested in
it by such declaration of trust at the request of any holder of the related
trust securities unless it is offered reasonable indemnity against the costs,
expenses and liabilities that might be incurred thereby. If no such event of
default has occurred and is continuing and the property trustee is required to
decide between alternative causes of action, construe ambiguous provisions in
such declaration of trust or is unsure of the application of any provision of
such declaration of trust, and the matter is not one on which holders of trust
preferred securities or trust common securities are entitled under such
declaration of trust to vote, then the property trustee shall take such action
as is directed by Cox Radio and if not so directed, shall take such action as it
deems advisable and in the best interests of the holders of the related trust
securities and will have no liability except for its own bad faith, negligence
or willful misconduct.
MISCELLANEOUS
The administrative trustees are authorized and directed to conduct the
affairs of and to operate the applicable Cox Radio Trust in such a way that:
- such Cox Radio Trust will not be deemed to be an investment company
required to be registered under the Investment Company Act;
- such Cox Radio Trust will be classified as a grantor trust for United
States federal income tax purposes; and
- the related junior subordinated debentures will be treated as
indebtedness of Cox Radio for United States federal income tax purposes.
Cox Radio and the administrative trustees are authorized to take any
action, not inconsistent with applicable law, the certificate of trust of the
applicable Cox Radio Trust or the applicable declaration of trust, that the
administrative trustees determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not materially
adversely affect the interests of the holders of the related trust securities.
Holders of trust preferred securities will not have any preemptive or
similar rights.
A Cox Radio Trust may not borrow money, issue debt, execute mortgages or
pledge any of its assets.
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DESCRIPTION OF PREFERRED SECURITIES GUARANTEES
A preferred securities guarantee will be executed and delivered by Cox
Radio concurrently with the issuance by a Cox Radio Trust of its trust preferred
securities for the benefit of the holders from time to time of such trust
preferred securities and will be held for such holders by The Bank of New York,
as preferred securities guarantee trustee. Each preferred securities guarantee
has been qualified as an indenture under the Trust Indenture Act and is subject
to, and governed by, the Trust Indenture Act. This summary of certain terms and
provisions of a preferred securities guarantee does not purport to be complete
and is subject to, and qualified in its entirety by reference to, all of the
provisions of such preferred securities guarantee, including the definitions
therein of certain terms, and those made a part of such preferred securities
guarantee by the Trust Indenture Act.
GENERAL
Cox Radio will irrevocably agree to pay in full, to the extent set forth
herein, the guarantee payments to the holders of the related trust preferred
securities, as and when due, regardless of any defense, right of set-off or
counterclaim that the applicable Cox Radio Trust may have or assert other than
the defense of payment. The following payments, which are referred to as
guarantee payments, with respect to trust preferred securities, to the extent
not paid by or on behalf of the applicable Cox Radio Trust, will be subject to
the preferred securities guarantee:
- any accumulated distributions required to be paid on such trust preferred
securities, to the extent that such Cox Radio Trust has funds legally
available therefor at such time;
- the applicable redemption price with respect to such trust preferred
securities called for redemption, to the extent that such Cox Radio Trust
has funds legally available therefor at such time; or
- upon a voluntary or involuntary dissolution and liquidation of such Cox
Radio Trust, other than in connection with the distribution of the
related junior subordinated debentures to holders of such trust preferred
securities or the redemption, conversion or exchange of the trust
preferred securities, the lesser of:
- the amounts due upon the dissolution and liquidation of such Cox Radio
Trust, to the extent that such Cox Radio Trust has funds legally
available therefor at the time; and
- the amount of assets of such Cox Radio Trust remaining available for
distribution to holders of its trust preferred securities after
satisfaction of liabilities to creditors of such Cox Radio Trust as
required by applicable law.
Cox Radio's obligation to make a guarantee payment may be satisfied by
direct payment of the required amounts by Cox Radio to the holders of the trust
preferred securities entitled thereto or by causing the applicable Cox Radio
Trust to pay such amounts to such holders.
Cox Radio will, through the preferred securities guarantee, the declaration
of trust, the related junior subordinated debentures and the junior subordinated
debenture indenture, taken together, fully, irrevocably and unconditionally
guarantee all of the applicable Cox Radio Trust's obligations under its trust
preferred securities. No single document standing alone or operating in
conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of a Cox
Radio Trust's obligations under its trust preferred securities.
RANKING
Unless otherwise specified in the applicable prospectus supplement, each
preferred securities guarantee will constitute an unsecured obligation of Cox
Radio and will rank:
- subordinate and junior in right of payment to all other liabilities of
Cox Radio, including all senior debt securities, any subordinated debt
securities and the junior subordinated debentures, except those made
ratable or subordinate by their terms; and
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- senior to all capital stock now or hereafter issued by Cox Radio and to
any guarantee now or hereafter entered into by Cox Radio in respect of
any of its capital stock.
The declaration of trust will provide that each holder of trust preferred
securities by acceptance thereof agrees to the subordination provisions and
other terms of the related preferred securities guarantee. The preferred
securities guarantee will rank subordinate to, or equally with, all other
guarantees to be issued by Cox Radio with respect to securities of other trusts
or other entities to be established by Cox Radio that are similar to a Cox Radio
Trust.
The preferred securities guarantees will not limit the amount of secured or
unsecured debt, including senior indebtedness as defined in the junior
subordinated debenture indenture, that may be incurred by Cox Radio or any of
its subsidiaries.
PREFERRED SECURITIES GUARANTEE OF PAYMENT
Each preferred securities guarantee will constitute a guarantee of payment
and not of collection. In other words, the guaranteed party may institute a
legal proceeding directly against Cox Radio to enforce its rights under such
preferred securities guarantee without first instituting a legal proceeding
against any other person or entity. A preferred securities guarantee will not be
discharged except by payment of the related preferred securities guarantee
payments in full to the extent not paid by the applicable Cox Radio Trust or
upon distribution of its trust preferred securities to the holders of the
related junior subordinated debentures.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes that do not materially adversely affect
the rights of holders of the related trust preferred securities, in which case
no approval will be required, the applicable preferred securities guarantee may
not be amended without the prior approval of the holders of a majority of the
liquidation amount of such outstanding trust preferred securities. The manner of
obtaining any such approval will be as set forth under "Description of Trust
Preferred Securities -- Voting Rights; Amendment of a Declaration of Trust." All
guarantees and agreements contained in a preferred securities guarantee shall
bind the successors, assigns, receivers, trustees and representatives of Cox
Radio and shall inure to the benefit of the holders of the related trust
preferred securities then outstanding.
EVENTS OF DEFAULT
An event of default under a preferred securities guarantee will occur upon
the failure of Cox Radio to perform any of its payment or other obligations
thereunder, provided that, except with respect to a default in respect of any
preferred securities guarantee payment, Cox Radio shall have received notice of
such default and shall not have cured such default within 60 days of such
receipt. The holders of a majority in liquidation amount of the related trust
preferred securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the preferred securities
guarantee trustee in respect of the applicable preferred securities guarantee or
to direct the exercise of any trust or power conferred upon the preferred
securities guarantee trustee under such preferred securities guarantee.
If the preferred securities guarantee trustee fails to enforce a preferred
securities guarantee, any holder of the related trust preferred securities may
institute a legal proceeding directly against Cox Radio to enforce its rights
under such preferred securities guarantee without first instituting a legal
proceeding against the applicable Cox Radio Trust, the preferred securities
guarantee trustee or any other person or entity.
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TERMINATION
A preferred securities guarantee will terminate and be of no further force
and effect upon:
- full payment of the applicable redemption price of the related trust
preferred securities;
- full payment of all amounts due upon the dissolution and liquidation of
the applicable Cox Radio Trust; or
- upon the conversion or exchange of all of the related trust preferred
securities, whether upon distribution of junior subordinated debentures
to the holders of such trust preferred securities or otherwise.
A preferred securities guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any holder of the related trust
preferred securities must restore payment of any sums paid under such trust
preferred securities or such preferred securities guarantee.
GOVERNING LAW
Each preferred securities guarantee will be governed by and construed in
accordance with the laws of the State of New York.
INFORMATION CONCERNING THE PREFERRED SECURITIES GUARANTEE TRUSTEE
The preferred securities guarantee trustee, other than during the
occurrence and continuance of a default by Cox Radio in performance of a
preferred securities guarantee, will undertake to perform only such duties as
are specifically set forth in the preferred securities guarantee and, during the
continuance of such default, must exercise the same degree of care and skill as
a prudent person would exercise or use in the conduct of his or her own affairs.
Subject to the foregoing, the preferred securities guarantee trustee will not be
under any obligation to exercise any of the powers vested in it by a preferred
securities guarantee at the request of any holder of the related trust preferred
securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby.
LIMITED PURPOSE OF A COX RADIO TRUST
The trust preferred securities will represent preferred beneficial
interests in the applicable Cox Radio Trust, and each Cox Radio Trust exists for
the sole purpose of issuing and selling its trust securities, using the proceeds
from the sale of its trust securities to acquire the related junior subordinated
debentures of Cox Radio and engaging in only those other activities necessary,
advisable or incidental thereto.
RIGHTS UPON DISSOLUTION
Unless the junior subordinated debentures are distributed to holders of the
related trust securities, upon any voluntary or involuntary dissolution and
liquidation of the applicable Cox Radio Trust, after satisfaction of the
liabilities of creditors of such Cox Radio Trust as required by applicable law,
the holders of such trust securities will be entitled to receive, out of assets
held by such Cox Radio Trust, the liquidation distribution in cash. See
"Description of Trust Preferred Securities -- Liquidation of a Cox Radio Trust
and Distribution of Junior Subordinated Debentures." Upon any voluntary or
involuntary liquidation or bankruptcy of Cox Radio, the property trustee, as
holder of the junior subordinated debentures, would be a creditor of Cox Radio,
subordinated in right of payment to all senior indebtedness as set forth in the
junior subordinated debenture indenture, but entitled to receive payment in full
of principal and premium, if any, and interest in respect of such junior
subordinated debentures, before any stockholders of Cox Radio receive payments
or distributions.
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RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES, THE CORRESPONDING
JUNIOR SUBORDINATED DEBENTURES OR OTHER DEBT SECURITIES AND THE
PREFERRED SECURITIES GUARANTEES
Full and Unconditional Guarantee. Cox Radio will irrevocably guarantee
payments of distributions and other amounts due on the trust preferred
securities to the extent the applicable Cox Radio Trust has funds available for
the payment of the distributions as and to the extent set forth under
"Description of Preferred Securities Guarantees." Taken together, Cox Radio's
obligations under the junior subordinated debentures, the securities resolution,
the junior subordinated debenture indenture, the declaration of trust and the
preferred securities guarantee agreements provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of distributions and other
amounts due on the trust preferred securities. No single document standing alone
or operating in conjunction with fewer than all of the other documents
constitutes the full guarantee. It is only the combined operation of these
documents that has the effect of providing a full, irrevocable and unconditional
guarantee of the applicable Cox Radio Trust's obligations under the trust
preferred securities.
If and to the extent that Cox Radio does not make payments on the junior
subordinated debentures or other debt securities, the applicable Cox Radio Trust
will not pay distributions or other amounts due on its trust preferred
securities. A preferred securities guarantee does not cover payment of
distributions when such Cox Radio Trust does not have sufficient funds to pay
the distributions. In that event, the remedy for a holder of trust preferred
securities is to institute a legal proceeding directly against Cox Radio for
enforcement of payment of the distributions to such holder.
Sufficiency of Payments. As long as all payments are made when due on the
junior subordinated debentures or other debt securities, as the case may be,
those payments will be sufficient to cover distributions and other payments due
on the trust preferred securities. This is primarily because:
- the aggregate principal amount of the junior subordinated debentures or
other debt securities, as the case may be, will be equal to the sum of
the aggregate stated liquidation amount of the trust preferred securities
and trust common securities;
- the interest rate and interest and other payment dates on the junior
subordinated debentures to other debt securities, as the case may be,
will match the distribution rate and distribution and other payment dates
for the trust preferred securities;
- Cox Radio, as borrower, has promised to pay any and all costs, expenses
and liabilities of the applicable Cox Radio Trust except such Cox Radio
Trust's obligations under its trust preferred securities; and
- the declaration of trust provides that the applicable Cox Radio Trust
will not engage in any activity that is not consistent with the limited
purposes of such Cox Radio Trust.
Cox Radio has the right to set-off any payment Cox Radio is otherwise
required to make under the junior subordinated debenture indenture if and to the
extent Cox Radio has already made, or is concurrently making, a payment under
the applicable preferred securities guarantee agreement.
Enforcement Rights of Holders of Trust Preferred Securities. A holder of a
trust preferred security may institute a legal proceeding directly against Cox
Radio to enforce its rights under the applicable preferred securities guarantee
agreement without first instituting a legal proceeding against the preferred
securities guarantee trustee, the applicable Cox Radio Trust or anyone else.
Cox Radio's default or event of default under any other senior or
subordinated indebtedness would not necessarily constitute a trust event of
default. However, in the event of payment defaults under, or acceleration of,
Cox Radio's senior or subordinated indebtedness, the subordination provisions of
the applicable securities resolution will provide that no payments may be made
in respect of the junior subordinated debentures or other debt securities until
the senior or subordinated indebtedness has been paid in full or any payment
default thereunder has been cured or waived. Cox Radio's failure to make
required payments on any junior subordinated debentures or other debt securities
would constitute a trust event of default.
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Limited Purpose of a Cox Radio Trust. The applicable Cox Radio Trust's
trust preferred securities evidence undivided beneficial ownership interests in
the assets of the applicable Cox Radio Trust, and each Cox Radio Trust exists
for the sole purposes of issuing its trust preferred securities and trust common
securities, investing the proceeds in junior subordinated debentures or other
debt securities and engaging in only those other activities necessary,
convenient or incidental to those purposes. A principal difference between the
rights of a holder of a trust preferred security and a holder of a corresponding
junior subordinated debenture or other debt securities is that a holder of a
junior subordinated debenture or other debt securities is entitled to receive
from Cox Radio the principal amount of and interest accrued on the corresponding
junior subordinated debentures or other debt securities, while a holder of trust
preferred securities is entitled to receive distributions from the applicable
Cox Radio Trust, or from Cox Radio under the applicable preferred securities
guarantee agreement, if and to the extent the applicable Cox Radio Trust has
funds available for the payment of the distributions.
Rights Upon Dissolution. Upon any voluntary or involuntary dissolution of
a Cox Radio Trust involving the liquidation of the junior subordinated
debentures or other debt securities, the holders of the trust preferred
securities will be entitled to receive the liquidation distribution in cash, out
of assets of such Cox Radio Trust and after satisfaction of creditors of such
Cox Radio Trust as provided by applicable law. If Cox Radio becomes subject to
any voluntary or involuntary liquidation or bankruptcy, the property trustee, as
holder of the junior subordinated debentures or other debt securities, would be
one of Cox Radio's junior subordinated creditors. The property trustee would be
subordinated in right of payment to all of Cox Radio's senior indebtedness and
subordinated indebtedness, but it would be entitled to receive payment in full
of principal and interest before Cox Radio's stockholders receive payments or
distributions. Cox Radio is the guarantor under the preferred securities
guarantee agreements and pursuant to the junior subordinated debenture
indenture, as borrower, has agreed to pay all costs, expenses and liabilities of
the applicable Cox Radio Trust other than the applicable Cox Radio Trust's
obligations to the holders of the trust preferred securities. Accordingly, in
the event of Cox Radio's liquidation or bankruptcy the positions of a holder of
trust preferred securities and of a holder of junior subordinated debentures or
other debt securities are expected to be substantially the same relative to Cox
Radio's other creditors and to Cox Radio's stockholders.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
Cox Radio may issue stock purchase contracts, representing contracts
obligating holders to purchase from Cox Radio and Cox Radio to sell to the
holders, a specified number of shares of Class A common stock at a future date
or dates. The price per share of Class A common stock may be fixed at the time
the stock purchase contracts are issued or may be determined by reference to a
specific formula set forth in the stock purchase contracts. The stock purchase
contracts may be issued separately or as a part of units, which are referred to
as stock purchase units, consisting of a stock purchase contract and, as
security for the holder's obligations to purchase the Class A common stock under
stock purchase contracts, either:
- senior debt securities, subordinated debt securities or junior
subordinated debt securities of Cox Radio;
- debt obligations of third parties, including U.S. Treasury securities; or
- preferred securities of a Cox Radio Trust.
The stock purchase contracts may require Cox Radio to make periodic
payments to the holders of the stock purchase units or vice versa, and such
payments may be unsecured or prefunded on some basis. The stock purchase
contracts may require holders to secure their obligations thereunder in a
specified manner and in certain circumstances Cox Radio may deliver newly issued
prepaid stock purchase contracts, which are referred to as prepaid securities,
upon release to a holder of any collateral securing such holder's obligations
under the original stock purchase contract.
The applicable prospectus supplement will describe the terms of any stock
purchase contracts or stock purchase units and, if applicable, prepaid
securities. The description in the prospectus supplement will not purport to be
complete and will be qualified in its entirety by reference to the stock
purchase contracts, the
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collateral arrangements and depositary arrangements, if applicable, relating to
such stock purchase contracts or stock purchase units and, if applicable, the
prepaid securities and the document pursuant to which such prepaid securities
will be issued.
PLAN OF DISTRIBUTION
Cox Radio and the Cox Radio Trusts may sell the securities to one or more
underwriters or dealers for public offering and sale by them, or it may sell the
securities to investors directly or through agents. The accompanying prospectus
supplement will set forth the terms of the offering and the method of
distribution and will identify any firms acting as underwriters, dealers or
agents in connection with the offering, including:
- the name or names of any underwriters;
- the purchase price of the securities and the proceeds to Cox Radio or the
Cox Radio Trusts from the sale;
- any underwriting discounts and other items constituting underwriters'
compensation;
- any public offering price;
- any discounts or concessions allowed or reallowed or paid to dealers; and
- any securities exchange or market on which the securities offered in the
prospectus supplement may be listed.
Only those underwriters identified in such prospectus supplement are deemed to
be underwriters in connection with the securities offered in the prospectus
supplement.
We may distribute the securities from time to time in one or more
transactions at a fixed price or prices, which may be changed, or at prices
determined as the prospectus supplement specifies. We may sell securities
through a rights offering, forward contracts or similar arrangements. In
connection with the sale of the securities, underwriters, dealers or agents may
be deemed to have received compensation from Cox Radio in the form of
underwriting discounts or commissions and also may receive commissions from
securities purchasers for whom they may act as agent. Underwriters may sell the
securities to or through dealers, and such dealers may receive compensation in
the form of discounts, concessions or commissions from the underwriters or
commissions from the purchasers for whom they may act as agent. Some of the
underwriters, dealers or agents who participate in the securities distribution
may engage in other transactions with, and perform other services for, Cox Radio
and its subsidiaries in the ordinary course of business.
Any underwriting discounts or other compensation which we pay to
underwriters or agents in connection with the securities offering, and any
discounts, concessions or commissions which underwriters allow to dealers, are
set forth in the prospectus supplement. Underwriters, dealers and agents
participating in the securities distribution may be deemed to be underwriters,
and any discounts and commissions they receive and any profit they realize on
the resale of the securities may be deemed to be underwriting discounts and
commissions under the Securities Act of 1933, as amended. Underwriters and their
controlling persons, dealers and agents may be entitled, under agreements
entered into with Cox Radio and the Cox Radio Trusts, to indemnification against
and contribution toward specific civil liabilities, including liabilities under
the Securities Act.
LEGAL MATTERS
Dow, Lohnes & Albertson, PLLC, of Washington, D.C., and Richards, Layton &
Finger, P.A., Wilmington, Delaware, will pass upon the validity of the
securities offered in the prospectus supplement for Cox Radio and the Cox Radio
Trusts, respectively.
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EXPERTS
The consolidated financial statements and the related financial statement
schedule incorporated in this prospectus by reference from Cox Radio's Annual
Report on Form 10-K for the year ended December 31, 1999, as amended, have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated by reference, and have been so incorporated in
reliance upon the report of such firm given upon their authority as experts in
accounting and auditing.
The combined financial statements of WEDR-FM, Miami, Florida; WFOX-FM,
Atlanta, Georgia; WAPE-FM, Jacksonville, Florida; WFYV-FM, Jacksonville,
Florida; WKQL-FM, Jacksonville, Florida; WMXQ-FM, Jacksonville, Florida;
WOKV-AM, Jacksonville, Florida; WBWL-AM, Jacksonville, Florida; WPLR-FM, New
Haven, Connecticut; WKHL-FM, Stamford-Norwalk, Connecticut; WSTC-AM
Stamford-Norwalk, Connecticut; WEFX-FM, Stamford-Norwalk, Connecticut; and
WNLK-AM, Stamford-Norwalk, Connecticut incorporated in this prospectus by
reference from Cox Radio's current report on Form 8-K, dated August 30, 1999 and
filed April 19, 2000, have been audited by Deloitte & Touche, LLP, independent
auditors, as stated in their report, which is incorporated herein by reference,
and have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
The combined financial statements of WAPE-FM, Jacksonville, Florida;
WFYV-FM, Jacksonville, Florida; WKQL-FM, Jacksonville, Florida; WMXQ-FM,
Jacksonville, Florida; WOKV-AM, Jacksonville, Florida; WBWL-AM Jacksonville,
Florida; WPLR-FM, New Haven, Connecticut; WKHL-FM, Stamford-Norwalk,
Connecticut; WSTC-AM, Stamford-Norwalk, Connecticut; WEFX-FM, Stamford-Norwalk,
Connecticut; and WNLK-AM, Stamford-Norwalk, Connecticut incorporated in this
prospectus by reference from Cox Radio's current report on Form 8-K, dated
August 30, 1999 and filed April 19, 2000, have been audited by Deloitte & Touche
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference, and have been so incorporated in reliance upon the report
of such firm given upon their authority as experts in accounting and auditing.
The financial statements of Marlin Broadcasting, Inc. incorporated in this
prospectus by reference from Cox Radio's current report on Form 8-K, dated
August 30, 1999 and filed April 19, 2000, have been audited by Ernst & Young
LLP, independent auditors, as stated in their report, which is incorporated
herein by reference, and have been so incorporated in reliance upon the report
of such firm given upon their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
Cox Radio is subject to the informational requirements of the Securities
Exchange Act and files reports, proxy statements and other information with the
SEC. Cox Radio's SEC filings are available over the Internet at the SEC's web
site at http://www.sec.gov. You also may read and copy any document Cox Radio
files at the SEC's public reference rooms in Washington, D.C., New York and
Chicago or obtain copies of such materials by mail. Please call the SEC at
1-800-SEC-0330 for more information on the public reference rooms and their copy
charges, as well as the Public Reference Section's charges for mailing copies of
the documents Cox Radio has filed.
You can also inspect and copy any of our SEC filings at the offices of the
New York Stock Exchange, Inc., located at 20 Broad Street, New York, New York,
10005.
INFORMATION INCORPORATED BY REFERENCE
Cox Radio filed the following documents with the SEC. SEC rules permit Cox
Radio to incorporate these filings by reference into this prospectus. By
incorporating our SEC filings by reference they are made a part of this
prospectus.
- Annual Report on Form 10-K for the year ended December 31, 1999;
- Annual Report on Form 10-K/A (Amendment No. 1) for the year ended
December 31, 1999;
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- Current Report on Form 8-K, dated August 30, 1999 and filed April 19,
2000; and
- Registration Statement on Form 8-A.
All documents which Cox Radio will file with the SEC, under the terms of
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, after
the date of this prospectus and prior to the termination of any offering of
securities offered by this prospectus shall be deemed to be incorporated by
reference in, and to be a part of, this prospectus from the date such documents
are filed. Cox Radio's SEC file number for Securities Exchange Act documents is
1-12187. Cox Radio will provide without charge, to any person who receives a
copy of this prospectus and the accompanying prospectus supplement, upon such
recipient's written or oral request, a copy of any document this prospectus
incorporates by reference, other than exhibits to such incorporated documents,
unless such exhibits are specifically incorporated by reference in such
incorporated document. Requests should be directed to:
Richard Jacobson
Vice President and Treasurer
Cox Radio, Inc.
1400 Lake Hearn Drive
Atlanta, Georgia 30319
Telephone: (404) 843-5000
Any statement contained in this prospectus or in a document incorporated
in, or deemed to be incorporated by reference to, this prospectus shall be
deemed to be modified or superseded, for purposes of this prospectus, to the
extent that a statement contained in:
- the prospectus;
- the accompanying prospectus supplement; or
- any other subsequently filed document which also is incorporated in, or
is deemed to be incorporated by reference to, this prospectus;
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this prospectus.
Cox Radio has not included or incorporated by reference separate financial
statements of the Cox Radio Trusts into this prospectus. Cox Radio does not
consider such financial statements to be material to holders of the trust
preferred securities of the Cox Radio Trusts because:
- all of the voting securities of the Cox Radio Trusts will be owned,
directly or indirectly, by Cox Radio, a reporting company under the
Securities Exchange Act of 1934;
- each of the Cox Radio Trusts is a special purpose entity, has no
operating history, has no independent operations and is not engaged in,
and does not propose to engage in, any activity other than issuing
securities representing undivided beneficial interests in the assets of
such Cox Radio Trust and investing the proceeds thereof in junior
subordinated debentures or other debt securities issued by Cox Radio; and
- Cox Radio's obligations described in this prospectus and in any
accompanying prospectus supplement under the declaration of trust of a
Cox Radio Trust, the preferred securities guarantee issued by Cox Radio
with respect to the trust preferred securities issued by such Cox Radio
Trust, the debt securities or junior subordinated debentures of Cox Radio
purchased by the Cox Radio Trusts and the applicable indenture pursuant
to which such debt securities or junior subordinated debentures are
issued, taken together, constitute direct obligations of Cox Radio and a
full and unconditional guarantee of the trust preferred securities of
each such Cox Radio Trust.
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(COX RADIO LOGO)
