SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 11, 2008
Cox Radio, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 1-12187 58-1620022
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(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
6205 Peachtree Dunwoody Road
Atlanta, Georgia 30328
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(Address of principal executive offices) (Zip Code)
(678) 645-0000
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(Registrant's telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[ ] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act
(17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.
Appointment of Chief Financial Officer
As previously announced, Neil O. Johnston is expected to become the chief
financial officer of Cox Media Group, Inc. (formerly Cox Broadcasting, Inc.),
our direct parent, effective as of January 1, 2009, and Mr. Johnston will
continue to serve as chief financial officer of Cox Radio through December 31,
2008. On December 11, 2008, our board of directors appointed Charles L. Odom to
succeed Mr. Johnston as our chief financial officer effective as of January 1,
2009.
Mr. Odom, age 39, joined Cox Radio in September 1996 and currently serves as
Director, Financial Reporting & Analysis, a position he has held for more than
five years. Prior positions with Cox Radio include Assistant Controller and
Manager of Financial Reporting. Prior to joining Cox Radio, Mr. Odom was with
Deloitte & Touche LLP from July 1991 to September 1996, where he served as a
supervising senior accountant. Mr. Odom is a certified public accountant, and he
holds a B.B.A. in accounting from Mercer University.
Approval of Compensatory Plan and Amendments
On December 11, 2008, the Compensation Committee of our Board of Directors
approved amendments to our Third Amended and Restated Long-Term Incentive Plan
and our Annual Incentive Plan. These amendments were primarily made to maintain
compliance with Section 409A of the Internal Revenue Code and the related rules
and regulations thereunder. The Long-Term Incentive Plan amendments include
revisions to reference Section 409A in certain places, to limit certain deferral
features, and to limit the types of replacement awards that may be issued. The
Annual Incentive Plan amendments include adding a provision that awards are
intended to qualify as short-term deferrals exempt from Section 409A.
Also on December 11, 2008, the Compensation Committee approved a new Annual
Bonus Plan, to become effective on January 1, 2009. Under this plan, a target
bonus is established as the executive's annual incentive award, with a
percentage of the award to be based on performance targets applied to
performance goals in one or more of the following areas: income before
depreciation and amortization; controllable free cash flow; cash flow (operating
cash flow or free cash flow); revenue; earnings; income (operating income or net
income); debt; return on assets; return on equity; return on investment; and
individual performance. The annual incentive plan will be administered by a
management committee, which will have the discretion to establish the
performance targets and to determine whether such targets have been achieved.
The foregoing is a summary of the material terms of the new Annual Bonus Plan.
As a summary of the material terms of the Annual Bonus Plan, it does not purport
to be complete and is subject to, and qualified in its entirety by, the terms of
the Annual Bonus Plan, a copy of which is attached hereto as Exhibit 10.3 and
incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Not applicable.
(d) Exhibits:
10.1 Amendment Number One to the Cox Radio, Inc. Third
Amended and Restated Long-Term Incentive Plan
(management contract or compensatory plan).
10.2 Amendment Number One to the Cox Radio, Inc. Annual
Incentive Plan, effective January 1, 2008
(management contract or compensatory plan).
10.3 Cox Radio, Inc. Annual Bonus Plan, effective
January 1, 2009 (management contract or
compensatory plan).
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COX RADIO, INC.
Date: December 17, 2008 By: /s/ Andrew A. Merdek
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Name: Andrew A. Merdek
Title: Secretary
AMENDMENT NUMBER ONE
TO THE
COX RADIO, INC.
THIRD AMENDED AND RESTATED LONG-TERM INCENTIVE PLAN
Pursuant to the power of amendment reserved under Section 11.01 of the
Cox Radio, Inc. Third Amended and Restated Long-Term Incentive Plan (the
"Plan"), the Plan hereby is amended as set forth herein. This amendment shall
supersede the provisions of the Plan document to the extent those provisions are
inconsistent with the provisions of this amendment, including re-numbering and
re-lettering sections and updating internal references as appropriate.
1.
Section 2.01 of the Plan is amended by deleting the phrase
",Dividend Equivalent,".
2.
Section 2 of the Plan is amended by striking subsection 2.09 in its
entirety and by renumbering the remaining subsections accordingly (including
allinternal references).
3.
Section 3.01 of the Plan is amended by striking sub-paragraph (v)
thereof in its entirety and by renumbering the remaining sub-paragraphs
accordingly (including all internal references).
4.
Section 6 of the Plan is amended by striking subsection 6.03 in its
entirety and by renumbering the remaining subsections accordingly (including all
internal references).
5.
Section 6.04 of the Plan is amended by striking sub-paragraph (iv)
thereof in its entirety (including all internal references).
6.
Section 6.05 of the Plan is amended by striking such section in its
entirety and by replacing it with the following new Section 6.05:
"6.05. Deferred Stock. The Committee is authorized to
grant Deferred Stock to Participants, on the following terms
and conditions:
(i) Award and Restrictions. Delivery of
Shares will occur upon expiration of the deferral
period specified for Deferred Stock by the Committee.
In addition, Deferred Stock shall be subject to such
restrictions as the Committee may impose, which
restrictions may lapse at the expiration of the
deferral period or at earlier specified times,
separately or in combination, in installments, or
otherwise, as the Committee shall determine.
(ii) Forfeiture. Except as otherwise
determined by the Committee, upon termination of
employment (as determined under criteria established
by the Committee) during the applicable deferral
period or portion thereof (as provided in the Award
Agreement evidencing the Deferred Stock), all
Deferred Stock that is at that time subject to
deferral shall be forfeited; provided, that the
Committee may provide, by rule or regulation or in
any Award Agreement, or may determine in any
individual case, that restrictions or forfeiture
conditions relating to Deferred Stock will be waived
in whole or in part in the event of terminations
resulting from specified causes, and the Committee
may in other cases waive in whole or in part the
forfeiture of Deferred Stock."
7.
Section 6.07(i) of the Plan is amended by striking such section in its
entirety and by replacing it with the following new Section 6.07(i):
"(i) Right to Payment. A Stock Appreciation Right
shall confer on the Participant to whom it is granted a right
to receive, upon exercise thereof, the excess of (A) the Fair
Market Value of one Share on the date of exercise over (B) the
grant price of the Stock Appreciation Right as determined by
the Committee as of the date of grant of the Stock
Appreciation Right, which, except as provided in Section 7.03,
shall be not less than the Fair Market Value of one Share on
the date of grant."
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8.
Section 7.06 of the Plan is amended by striking the last sentence of
such section in its entirety and by replacing it with the following new
sentence:
"Such payments may include, without limitation,
provisions for the payment or crediting of reasonable interest
on installment or deferred payments."
9.
Section 11.01 of the Plan is amended by striking such section in its
entirety and replacing it with the following new Section 11.01:
"11.01. Changes to the Plan. The Board may amend,
alter, suspend, discontinue or terminate the Plan without the
consent of shareholders or Participants, except that any such
amendment, alteration, suspension, discontinuation, or
termination shall be subject to the approval of the
Corporation's shareholders within one year after such Board
action if such shareholder approval is required by any federal
or state law or regulation or the rules of any stock exchange
on which the Shares may be listed, or if the Board in its
discretion determines that obtaining such shareholder approval
is for any reason advisable; provided, however, that, the
Board may not terminate and liquidate the Plan unless, (1) the
termination and liquidation does not occur proximate to a
downturn in the financial health of the Company (as defined
under Code Section 409A); (2) the Board terminates and
liquidates all agreements, methods, programs, and other
arrangements sponsored by the Company that would be aggregated
with the Plan under Code Section 409A if Participants have
accrued benefits under such agreements, methods, programs, and
other arrangements; (3) no payments in liquidation of the Plan
are made within 12 months of the date the Board takes all
necessary action to irrevocably terminate and liquidate the
Plan other than payments that would be payable under the terms
of the Plan if the action to terminate and liquidate the Plan
had not occurred; (4) all payments are made within 24 months
of the date the Board takes all necessary action to
irrevocably terminate and liquidate the Plan; and (5) the
Board does not adopt a new plan that would be aggregated with
the Plan under Code Section 409A if Participants participated
in both plans at any time within 3 years following the date
the Board takes all necessary action to irrevocably terminate
and liquidate the Plan; and further provided, however, that,
without the consent of an affected Participant, no amendment,
alteration, suspension, discontinuation, or termination of the
Plan may impair the rights of such Participant under any Award
previously granted to him or her."
10.
Section 12 of the Plan is amended by adding the following new
subsection 12.09:
"12.09. Section 409A Compliance. The Plan is intended
to comply with the requirements of Code Section 409A and
regulations and other guidance thereunder. The Committee shall
interpret the Plan provisions in a manner consistent with the
requirements of Code Section 409A and regulations and other
guidance thereunder."
11.
This Amendment Number One to the Plan shall be
effective as of January 1, 2005.
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AMENDMENT NUMBER ONE
TO THE
COX RADIO, INC.
ANNUAL INCENTIVE PLAN
Pursuant to the power of amendment reserved under Section 12 of the Cox
Radio, Inc. Annual Incentive Plan (the "Plan"), the Plan hereby is amended as
set forth herein. This amendment shall supersede the provisions of the Plan
document to the extent those provisions are inconsistent with the provisions of
this amendment, including re-numbering and re-lettering sections and updating
internal references as appropriate.
1.
Section 5(a) of the Plan is amended by striking such section in its
entirety and replacing it with the following new Section 5(a):
"(a) At the sole discretion of the Committee, distribution of
each Award shall be made by Cox Radio either (1) in a lump sum cash
payment, (2) in the form of shares of common stock of Cox Radio, or
(3) some combination of cash and common stock; provided, that the
issuance of shares of common stock may be made only to the extent
permissible under applicable securities laws. In the event any
distribution is made in the form of Cox Radio common stock, the value
of the common stock so issued may not exceed the total amount of the
Award to be made under this Plan, and the value of any fractional
shares of common stock shall be distributed in cash. Any distribution
made under this Plan shall occur no later than the 15th day of the
third month after the end of the Plan Year in which the Participant
has earned the Award; provided, that no Award shall become payable to
a Participant with respect to any Plan Year until the Committee has
certified in writing that the terms and conditions underlying the
payment of such Award have been satisfied. If a Participant entitled
to the payment of an Award under the Plan dies prior to the
distribution of such Award, the distribution shall be made to the
Participant's beneficiary, as designated under the Plan, within the
same time period in which the Award otherwise would have been paid to
the Participant."
2.
The Plan is amended by adding the following new Section 13:
"13. NO DEFERRED COMPENSATION
The Plan is intended to be exempt from the
requirements of Section 409A of the Internal Revenue
Code of 1986, as amended, by reason of all payments made
under the Plan being "short-term deferrals," within the
meaning of Treas. Reg. ss. 1.409A-1(b)(4)."
3.
This Amendment Number One to the Plan shall be
effective as of January 1, 2008.
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COX RADIO, INC. ANNUAL BONUS PLAN
1. Purpose. The Cox Radio, Inc. Annual Bonus Plan (the "Plan") provides an
opportunity for selected employees of Cox Radio, Inc., a Delaware corporation
(the "Company"), and its subsidiaries to receive cash bonuses based on the
achievement of goals related to the performance of the Company and/or its
subsidiaries and individual performance.
2. Administration. The Plan is administered by a committee consisting of two
or more persons (the "Committee"), who may be employees of the Company and/or
its affiliates who are eligible to receive bonuses under the Plan, to whom
responsibility for administration of the Plan has been delegated. The Committee
shall have the discretionary authority to interpret the provisions of the Plan
in its sole discretion, including all decisions on eligibility to participate
and on the amount, form and timing of distributions of any bonus. The Committee
may delegate any or all of its authority under the Plan to officers or managers
of the Company and/or its affiliates as the Committee may from time to time
designate.
3. Participation. The Committee and/or its delegates, in its or their sole
discretion, selects individuals to participate in the Plan, establishes
performance goal(s) for each participant for the calendar year during which the
individual is a Plan participant (the "Plan Year"), and determines whether such
goal(s) have been achieved. The Committee has discretion to award a bonus under
this Plan even if performance does not meet established goals, and also has
negative discretion to adjust, reduce or eliminate the amount of an award
otherwise payable to a participant.
4. Bonus Award Calculation. The Committee and/or its delegates, in its or
their sole discretion, shall establish a target bonus as a percentage of each
participant's base salary. Except as set forth in Section 3, the target bonus
shall become payable only upon the achievement of performance goals established
by the Committee and/or its delegates with respect to each participant for that
Plan Year in one or more of the following areas: Income Before Depreciation and
Amortization; Controllable Free Cash Flow; cash flow (operating cash flow or
free cash flow); revenue; earnings; income (operating income or net income);
debt; return on assets; return on equity; return on investment and individual
performance.
5. Payment of Bonuses. Earned bonuses will be paid in a lump sum cash payment
as soon as practicable after the end of the applicable Plan Year to all eligible
participants. All bonus payments shall be paid not later than the 15th day of
the third month after the end of the applicable Plan Year in a manner that does
not result in a deferral of compensation under the provisions of Section 409A of
the Internal Revenue Code (the "Code"). Notwithstanding the foregoing, certain
participants may be provided with an opportunity to elect to defer amounts
otherwise payable under the Plan into an account maintained for the benefit of
such participant under the Cox Radio, Inc. Savings Plus Restoration Plan,
provided that any such deferral election is made before the first day of the
applicable Plan Year (or, with respect to any participant first eligible under
the Plan during the Plan Year, within the first thirty days after such
participant becomes eligible to participate in the Plan) and in all respects
complies with the applicable provisions of Code Section 409A. Any bonus amounts
that such participants do not elect to defer will be paid no later than the
15th day of the third month after the end of the Plan Year, as described
above. Each participant must be an employee of the Company and/or its
subsidiaries as of December 31st of the applicable Plan Year in order for a
bonus to be payable under the Plan, unless the Committee determines otherwise in
its sole discretion.
6. Withholding and Offset. The Company and/or its subsidiaries are entitled to
withhold from bonus payments any amounts under applicable federal, state or
local law or court order, including withholding tax payments. If a participant
owes money to the Company or its affiliated entities, then the Company and/or
its subsidiaries are entitled to offset or direct any portion or all of a bonus
payment to be applied to the obligation.
7. Limitation on Claim for Benefits. This Plan is intended to constitute an
unfunded bonus arrangement and shall be construed accordingly. All payments
under this Plan shall be made from the general assets of the Company and/or its
subsidiaries, and no person under any circumstances whatsoever shall have a
claim for a benefit or payment under this Plan that is superior in any manner
whatsoever to an unsecured claim for a payment by a general creditor of the
Company and/or its subsidiaries. Neither the establishment of the Plan nor the
making of bonus payments hereunder shall be deemed to create a trust.
8. Not a Contract of Employment. Participation in this Plan shall not give any
participant the right to continued employment or, upon termination of such
employment, the right to have any interest or right or claim as a result of
participation in the Plan, other than as expressly provided in this Plan.
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9. No Assignment or Other Rights. Neither a participant nor or any person or
entity claiming a benefit or payment through such participant shall have any
right whatsoever to alienate, anticipate, transfer or assign (either at law or
in equity) any benefit or payment under this Plan. The provisions of this Plan
shall not entitle any participant (or any person or entity claiming a benefit or
payment through such participant) to any rights whatsoever that are either
legally or customarily associated with the rights of a holder of any equity
security of the Company and/or its subsidiaries, including, but not limited to,
the right of access to any financial information regarding the Company and/or
its subsidiaries.
10. Death or Incapacity. In the event a participant dies before the payment of
any bonus payment otherwise due to him or her, any benefits due to be paid to
the Participant under the Plan shall be payable to his estate. If the Committee,
in its sole and absolute discretion, determines that a participant has become
incapacitated, then the Committee may pay benefits under the Plan to the legal
guardian of the participant.
11. Governing Law. This Plan shall be interpreted under the laws of the State
of Delaware, without regard to the conflicts of laws provisions thereof. This
Plan is an incentive bonus arrangement and is, therefore, not intended to be
subject to the requirements of the Employee Retirement Income Security Act of
1974, as amended.
12. Savings Clause. If any provision of this Plan is held invalid or
unenforceable, it will not affect the other provisions. The Plan will remain in
effect as though the invalid or unenforceable provisions were omitted.
13. Amendment and Termination of the Plan. The Company reserves the right to
amend this Plan at any time, except to the extent that any such actions might
adversely affect the tax treatment of the benefits or payments under the Plan
pursuant to applicable law, including, but not limited to, Section 409A of the
Code. The Company reserves the right to terminate this Plan at any time,
provided, that, subject to applicable law, the termination of the Plan shall not
affect the timing of the payment of any bonus amounts accrued under the Plan as
of the date of such termination.
14. No Deferred Compensation. The Plan is intended to be exempt from the
requirements of Section 409A of the Internal Revenue Code of 1986, as amended,
by reason of all payments made under the Plan being "short-term deferrals,"
within the meaning of Treas. Reg. ss. 1.409A-1(b)(4).
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