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As filed with the Securities and Exchange Commission on June 7, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CUMULUS MEDIA INC.
(Exact Name of Registrant as Specified in its Charter)
ILLINOIS 36-4159663
(State of Incorporation) (I.R.S. Employer Identification
Number)
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CUMULUS MEDIA INC. 1999 STOCK INCENTIVE PLAN
CUMULUS MEDIA INC. 1999 EXECUTIVE STOCK INCENTIVE PLAN
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LEWIS W. DICKEY, JR., CHAIRMAN, PRESIDENT & CHIEF EXECUTIVE OFFICER
CUMULUS MEDIA INC.
3535 PIEDMONT ROAD, BUILDING 14, 14TH FLOOR
ATLANTA, GA 30305
(Name and Address of Agent for Service)
(404) 949-0700
(Telephone Number, including area code, of Agent for Service)
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Copy to:
MARK L. HANSON, ESQ.
JONES, DAY, REAVIS & POGUE
3500 SUNTRUST PLAZA
303 PEACHTREE STREET
ATLANTA, GA 30308-3242
(404) 521-3939
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CALCULATION OF REGISTRATION FEE
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Title of securities Amount to Proposed maximum Proposed maximum Amount of
to be registered be registered offering price per aggregate offering registration fee
share price
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Class A Common Stock (1) 469,854 $27.88(3) $13,099,530(3) $3,274.88
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Class A Common Stock (1) 430,146 $12.30(4) $ 5,290,673(4) $1,322.67
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Class C Common Stock (2) 1,000,000 $27.88(3) $27,880,000(3) $ 6,970
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(1) Issuable under the 1999 Stock Incentive Plan.
(2) Issuable under the 1999 Executive Stock Incentive Plan.
(3) The registration fee with respect to the shares of Class A and Class C
Common Stock was calculated pursuant to Rule 457(h) of the Securities
Act based upon the exercise price of the outstanding options. The
registration fee is calculated by multiplying the product of the
proposed maximum offering price per share and the number of shares to
be registered by .00025.
(4) The registration fee with respect to the shares of Class A Common Stock
was calculated pursuant to Rule 457(c) and (h) under the Securities
Act. The registration fee is based on the price per share of Cumulus
Media Inc. Class A Common Stock on June 5, 2001, on the Nasdaq National
Market, as reported in The Wall Street Journal on June 6, 2001
($12.30). The registration fee is calculated by multiplying the product
of the proposed maximum offering price per share and the number of
shares to be registered by .00025.
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EXPLANATORY NOTE
In accordance with the Note to Part I of Form S-8, the information specified in
Part I of Form S-8 has been omitted from this Registration Statement on Form S-8
for offers of Class A and Class C Common Stock of Cumulus Media Inc. pursuant to
the Cumulus Media Inc. 1999 Stock Incentive Plan and the Cumulus Media Inc. 1999
Executive Stock Incentive Plan, respectively.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 2000;
(b) The Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2001; and
(c) The description of the Registrant's Class A common
stock, $0.01 par value (the "Class A Common Stock")
contained in the Registrant's Registration Statement
on Form 8-A filed pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and any amendment or report filed
for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the
filing of a post-effective amendment which indicates that all shares
offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed incorporated by reference in this
Registration Statement and to be part hereof from the date of filing
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
The Registrant's Class C Common Stock, $0.01 par value (the
"Class C Common Stock") is not registered under Section 12 of the
Exchange Act. Set forth below is a summary description of the terms and
conditions of the Class C Common Stock:
Dividend Rights. All shares of the Class C Common Stock are
entitled to participate ratably when, and as, dividends are declared by
the Board of Directors. Any such dividends may be paid in cash, shares
of Class C Common Stock or property.
Convertibility of Class C Common Stock into Class A Common
Stock. The Class C Common Stock is convertible at any time, or from
time to time, at the option of the holder of such Class C Common Stock,
without cost to such holder, into Class A Common Stock on a
share-for-share basis; provided such holder is not at the time of such
conversion a disqualified person (generally defined as a person whose
ownership of Class A Common Stock would violate certain provisions of
the Communications Act of 1934, as amended, and certain rules of the
Federal Communications Commission).
Voting Rights. Holders of Class C Common Stock, subject to
certain exceptions, are entitled to 10 votes per share. All actions
submitted to a vote of the Registrant's stockholders are voted on by
holders of Class A Common Stock and Class C Common Stock, voting
together as a single class. Holders of Class B common stock, $0.01 par
value (the "Class B Common Stock"), are not entitled to vote, except in
limited circumstances. In such cases, the holders of Class B Common
Stock will vote separately as a class. The affirmative vote of a
majority of the outstanding shares of Class A Common Stock and Class C
Common Stock, voting together as a single class, and the affirmative
vote of the holders of a majority of
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the outstanding shares of Class B Common Stock, voting separately as a
class, are required to approve fundamental corporate actions. The
holders of Class C Common Stock are generally entitled to elect a
director to the Registrant's Board of Directors (the "Class C
Director"), and the vote of the Class C Director is required in order
for the Registrant to take certain actions.
Liquidation Rights. In the event of any liquidation,
dissolution or winding up of the Registrant, whether voluntarily or
involuntarily, after payment or provision for payment of the debts and
other liabilities of the Registrant and the preferential amounts to
which the holders of any stock ranking prior to the Class C Common
Stock in the distribution of assets, the holders of Class C Common
Stock are entitled to share pro rata in the remaining assets of the
Registrant according to their respective interests.
Miscellaneous. The Class C Common Stock is not traded on a
securities exchange. Holders of Class C Common Stock have no preemptive
or other subscription rights, redemption or sinking fund rights.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Article XI of the Registrant's Articles of
Incorporation, Article VI of the Registrant's Amended and Restated
By-laws and Illinois Law, the Registrant shall indemnify its directors
and officers against all liabilities and expenses actually and
reasonably incurred in connection with the defense or settlement of any
threatened, pending or completed action, suit or proceeding (whether
civil, criminal, administrative or investigative) in which they have
become involved by reason of their status as corporate directors or
officers, if they acted in good faith and in the reasonable belief that
their conduct was neither unlawful (in the case of criminal
proceedings) nor opposed to the best interests of the Registrant. With
respect to legal proceedings by or in the right of the Registrant in
which a director or officer is adjudged liable for improper performance
of his duty to the Registrant or another enterprise which such person
served in a similar capacity at the request of the Registrant,
indemnification is limited by such provisions of that amount which is
permitted by the court.
The Registrant will maintain officers' and directors'
liability insurance which will insure against liabilities that officers
and directors of the Registrant may incur in such capacities. The
Registrant has also entered into indemnification agreements with its
directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
4.1 Cumulus Media, Inc. 1999 Stock Incentive Plan.
4.2 Cumulus Media, Inc. 1999 Executive Stock Incentive Plan.
5 Opinion of Jones, Day, Reavis & Pogue regarding legality of
the Common Stock being registered.
23.1 Consent of KPMG LLP.
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23.2 Consent of PricewaterhouseCoopers LLP
23.3 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5).
24. Power of Attorney (included in signature pages).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) to include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts
or events arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change
in the information set forth in the registration
statement;
(iii) to include any material information
with respect to the plan of distribution not
previously disclosed in the registration statement or
any material change to such information in the
registration statement;
provided, however, that sub-paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3 or Form S-8, and the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
or 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director,
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officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Atlanta, State of Georgia, on June 7, 2001.
CUMULUS MEDIA INC.
By: /s/ Martin R. Gausvik
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Martin R. Gausvik
Executive Vice President, Treasurer
and Chief Financial Officer
(Principal Financial and Accounting Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints, Martin R. Gausvik and Lewis W. Dickey,
Jr., jointly and severally, each in his own capacity, his true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
/s/ Lewis W. Dickey, Jr. Date: June 7, 2001
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Lewis W. Dickey, Jr.
Chairman, President & Chief Executive Officer
and Director
/s/ Ralph B. Everett Date: June 7, 2001
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Ralph B. Everett
Director
/s/ Holcombe T. Green, Jr. Date: June 7, 2001
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Holcombe T. Green, Jr.
Director
/s/ Eric P. Robison Date: June 7, 2001
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Eric P. Robison
Director
/s/ Robert H. Sheridan, III Date: June 7, 2001
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Robert H. Sheridan, III
Director
/s/ Richard W. Weening Date: June 7, 2001
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Richard W. Weening
Director
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EXHIBIT INDEX
Exhibits
4.1 Cumulus Media, Inc. 1999 Stock Incentive Plan.
4.2 Cumulus Media, Inc. 1999 Executive Stock Incentive Plan.
5 Opinion of Jones, Day, Reavis & Pogue regarding legality of
the Common Stock being registered.
23.1 Consent of KPMG LLP.
23.2 Consent of PricewaterhouseCoopers LLP.
23.3 Consent of Jones, Day, Reavis & Pogue (included in Exhibit 5).
24 Power of Attorney (included in signature pages).