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): May 28, 2009
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 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 3.01 Notice of Delisting.
On May 29, 2009, we notified the New York Stock Exchange (the "NYSE") that the
Merger (as defined in Item 8.01 below) had been consummated and requested that
the NYSE file a notification of removal from listing on Form 25 with the
Securities and Exchange Commission (the "Commission") with respect to our Class
A common stock, par value $0.33 per share (the "Former Public Stock"). Trading
in the Former Public Stock was suspended prior to the market opening on June 1,
2009, and we have been advised by the NYSE that a Form 25 will be filed with the
Commission on or about June 2, 2009.
Item 5.02 Amendments to Compensatory Plans.
On May 28, 2009, pursuant to powers delegated to the Compensation Committee of
our board of directors, the Compensation Committee amended the Cox Radio, Inc.
Third Amended and Restated Long-Term Incentive Plan so that participants would
receive certain financial and other information if we no longer are required to
file reports pursuant to Sections 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and are relying on the exemption from
registration provided by Rule 12h-1(f)(1) promulgated under the Exchange Act.
The foregoing description of the amendment to the plan is qualified by reference
to the full text of the amendment attached hereto as Exhibit 10.3 and is hereby
incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation.
Upon the effective time of the Merger, our certificate of incorporation was
amended and restated in its entirety in order to, among other things:
o provide more generally for the purposes of the corporation;
o eliminate preferred stock from our authorized capital stock;
o provide for indemnification of directors and officers at the discretion of
the corporation; and
o promote efficiency in our constitutive documents by removing corporate
governance provisions that are set forth in our bylaws.
A copy of the amended certificate of incorporation is attached hereto as Exhibit
3.1 and is hereby incorporated herein by reference.
Item 8.01 Other Events.
As previously announced, Cox Enterprises, Inc. and Cox Media Group, Inc.
successfully completed their tender offer to acquire all of the outstanding
shares of our Former Public Stock not otherwise owned Cox Media Group. A total
of 9,721,047 shares of Former Public Stock were validly tendered and purchased
on May 26, 2009. Cox Media Group subsequently converted all outstanding shares
of our Class B common stock held by it into shares of Former Public Stock, and
as a result, Cox Media Group held 72,046,017 shares of our Former Public Stock,
or approximately 90.6% of the outstanding shares of Former Public Stock, as of
May 28, 2009.
On May 29, 2009, Cox Media Group caused the consummation of a short-form merger
pursuant to Section 253 of the Delaware General Corporation Law (the "Merger").
In the Merger, CXR Acquisition, Inc., a wholly-owned subsidiary of Cox Media
Group, was merged with and into Cox Radio, with Cox Radio continuing as the
surviving corporation and as an indirect, wholly-owned subsidiary of Cox
Enterprises. Pursuant to the Merger, all shares of Former Public Stock were
cancelled, and shares of Former Public Stock, other than those held by Cox Media
Group and by Cox Radio in treasury, were converted into the right to receive
$4.80 per share, without interest, subject to the assertion and perfection of
appraisal rights by the former holders of the Former Public Stock pursuant to
Section 262 of the Delaware General Corporation Law.
Persons who held Former Public Stock will receive materials advising them of how
to surrender their shares of Former Public Stock and receive the merger
consideration and of their appraisal rights under Delaware law. We expect to
mail these materials on or about June 3, 2009.
Item 9.01 Financial Statements and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Not applicable.
(d) Exhibit:
3.1 Amended Certificate of Incorporation of Cox Radio, Inc.
10.1 Cox Radio, Inc. Third Amended and Restated Long-Term Incentive
Plan (management contract or compensatory plan) (incorporated
by reference to Exhibit 10.2 to Cox Radio's Report on Form
10-Q for the period ended March 31, 2005).
10.2 Amendment Number One to the Cox Radio, Inc. Third Amended and
Restated Long-Term Incentive Plan (management contract or
compensatory plan) (incorporated by reference to Exhibit 10.1
to Cox Radio's Current Report on Form 8-K dated December 11,
2008 and filed December 17, 2008).
10.3 Amendment Number Two to the Cox Radio, Inc. Third Amended and
Restated Long-Term Incentive Plan (management contract or
compensatory plan).
SIGNATURE
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: June 1, 2009 By: /s/ Charles L. Odom
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Name: Charles L. Odom
Title: Chief Financial Officer
Exhibit 3.1
AMENDED CERTIFICATE OF INCORPORATION
OF
COX RADIO, INC.
FIRST. The name of the corporation is:
Cox Radio, Inc. (the "Corporation").
SECOND. The Corporation's registered office in the State of
Delaware is to be located at 2711 Centerville Road, Suite 400, in the City of
Wilmington, County of New Castle, 19808. The registered agent in charge thereof
is Corporation Service Company.
THIRD. The purpose or purposes of the Corporation are as
follows:
To engage in any lawful act or activity for which corporations
may be organized under the General Corporation Law of the State of Delaware, as
amended (the "DGCL"), and to have and exercise all the powers conferred by the
laws of the State of Delaware upon corporations organized under the DGCL.
FOURTH. The total number of shares of all capital stock that
the Corporation shall have the authority to issue is three hundred forty-five
million (345,000,000) shares of Common Stock, par value $0.01 per share ("Common
Stock"). The Common Stock shall be divided into classes as follows: two hundred
and ten million (210,000,000) shares of Class A Common Stock ("Class A Stock")
and one hundred thirty-five million (135,000,000) shares of Class B Common Stock
("Class B Stock").
FIFTH. Except as otherwise provided in this Article Fifth,
each share of Common Stock shall be identical.
A. Voting Rights. Each share of Class A Stock shall entitle
the holder thereof to one (1) vote and each share of Class B Stock shall entitle
the holder thereof to ten (10) votes. Except as set forth herein or as may
otherwise be required by the laws of the State of Delaware, all actions
submitted to a vote of stockholders of the Corporation (including, without
limitation, any proposed amendment to this Amended Certificate of Incorporation
(this "Certificate") that would increase the number of authorized shares of
Class A Stock or of Class B Stock or decrease the number of authorized shares of
any such class of stock (but not below the number of shares thereof then
outstanding)) shall be voted on by the holders of Class A Stock and Class B
Stock voting together as a single class, and no separate vote or consent of the
holders of shares of Class A Stock or the holders of the shares of Class B Stock
shall be required for the approval of any such matter. The holders of Class A
Stock and Class B Stock shall each be entitled to vote separately as a class
with respect to (i) amendments to this Certificate that alter or change the
powers, preferences or special rights of their respective class of stock so as
to affect them adversely and (ii) such other matters as require class votes
under the DGCL. Except as otherwise provided by law or pursuant to this Article
Fifth, the holders of the Class A Stock and the Class B Stock shall have sole
voting power for all purposes, each holder of Class A Stock and each holder of
Class B Stock being entitled to vote as provided in this Article Fifth.
B. Dividends. If and when dividends on the Class A Stock and
Class B Stock are declared payable from time to time by the Board as provided in
this Article Fifth, whether payable in cash, in property or in shares of stock
of the Corporation, the holders of Class A Stock and the holders of Class B
Stock shall be entitled to share equally, on a per share basis, in such
dividends, subject to the limitations described below. If dividends are declared
that are payable in shares of Class A Stock or Class B Stock, such dividends
shall be payable at the same rate on all classes of Common Stock and the
dividends payable in shares of Class A Stock shall be payable only to holders of
Class A Stock and the dividends payable in shares of Class B Stock shall be
payable only to holders of Class B Stock. If the Corporation shall in any manner
subdivide or combine the outstanding shares of Class A Stock or Class B Stock,
the outstanding shares of the other class of Common Stock shall be
proportionally subdivided or combined in the same manner and on the same basis
as the outstanding shares of Class A Stock or Class B Stock, as the case may be,
that have been subdivided or combined. Subject to provisions of law, the holders
of the Class A Stock and the Class B Stock shall be entitled to receive
dividends at such time and in such amounts as may be determined by the Board and
declared out of any funds lawfully available therefor. Dividends on the Class A
Stock and the Class B Stock shall be payable only as and when declared by the
Board.
C. Conversion of Class B Stock by Holder.
1. The holder of each share of Class B Stock shall
have the right at any time, or from time to time, at such holder's option, to
convert such share into one fully paid and nonassessable share of Class A Stock
on and subject to the terms and conditions hereinafter set forth.
2. In order to exercise his conversion privilege, the
holder of any shares of Class B Stock to be converted shall deliver a written
notice of the election of the holder to convert such shares and, if applicable,
shall present and surrender with such notice any certificate or certificates
representing such shares, duly endorsed, during usual business hours at any
office or agency of the Corporation maintained for the transfer of Class B
Stock. Such notice shall also state the name or names (with address) in which
the shares of Class A Stock issuable on such conversion shall be registered.
If required by the Corporation, any certificate for shares surrendered for
conversion shall be accompanied by instruments of transfer, in form
satisfactory to the Corporation, duly executed by the holder of such shares
or his duly authorized representative. Each conversion of shares of Class B
Stock shall be deemed to have been effected at the close of business on the
date (the "conversion date") on which such notice and, if applicable, the
certificate or certificates representing such shares and any required
instruments of transfer shall have been received as aforesaid, provided,
however, that the conversion may, at the option of any holder of any
shares of Class B Stock to be converted, be conditioned upon notice by such
holder to the Corporation of the occurrence of any specified event (including,
without limitation, the closing of any sale, exchange or other disposition of
such shares of Class B Stock), and the person or persons in whose name or names
the shares of Class A Stock shall be issuable on such conversion shall be, for
the purpose of receiving dividends and for all other corporate purposes
whatsoever, deemed to have become the holder or holders of record of the shares
of Class A Stock represented thereby on the conversion date.
3. As promptly as practicable after the delivery of
notice of conversion, as herein provided, of any shares of Class B Stock
(but only after the notice of the occurrence of any event specified, if any,
by the holder of such shares of Class B Stock), the Corporation shall issue the
number of shares of Class A Stock issuable upon such conversion. The issuance
of shares of Class A Stock issuable upon the conversion of shares of Class B
Stock by the registered holder thereof shall be made without charge to the
converting holder for any tax imposed on the Corporation in respect of the
issue thereof. The Corporation shall not, however, be required to pay any tax
that may be payable with respect to any transfer involved in the issue of the
shares being converted, and the Corporation shall not be required to issue
such shares unless and until the person requesting the issue thereof shall have
paid to the Corporation the amount of such tax or has established to the
satisfaction of the Corporation that such tax has been paid.
4. Upon any conversion of shares of Class B Stock
into shares of Class A Stock pursuant hereto, no adjustment with respect to
dividends shall be made; only those dividends shall be payable on the shares
so converted as have been declared and are payable to holders of record of
shares of Class B Stock on a date prior to the conversion date with respect to
the shares so converted; and only those dividends shall be payable on shares
of Class A Stock issued upon such conversion as have been declared and are
payable to holders of record of shares of Class A Stock on or after such
conversion date.
5. In case of any sale or conveyance of all or
substantially all of the property or business of the Corporation as an
entirety, a holder of a share of Class B Stock shall have the right thereafter
to convert such share into the kind and amount of cash, shares of stock and
other securities and properties receivable upon such sale or conveyance by a
holder of one share of Class A Stock and shall have no other conversion rights
with regard to such share. The provisions of this Section C.5 of Article Fifth
shall similarly apply to successive sales or conveyances.
6. Shares of Class B Stock converted into Class A
Stock shall be retired and shall resume the status of authorized but unissued
shares of Class B Stock.
7. Such number of shares of Class A Stock as may from
time to time be required for such purpose shall be reserved for issuance upon
conversion of outstanding shares of Class B Stock.
D. Liquidation, Dissolution or Winding Up. In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntarily
or involuntarily (sometimes referred to as liquidation), after payment or
provision for payment of the debts and other liabilities of the Corporation, the
holders of the Class A Stock and the Class B Stock shall be entitled to share
equally, on a per share basis, in the distribution of the remaining assets of
the Corporation. Neither the consolidation or merger of the Corporation with or
into any other corporation or corporations nor the sale, transfer or lease of
all or substantially all of the assets of the Corporation shall itself be deemed
to be a liquidation, dissolution or winding up of the Corporation within the
meaning of this Section D of Article Fifth.
SIXTH. The business, property and affairs of the Corporation
shall be managed by or under the direction of the Board of Directors. The number
of directors of the Corporation shall be as specified in, or determined in the
manner provided in, the Amended and Restated Bylaws of the Corporation, as
amended or restated (the "Bylaws"). Unless and except to the extent that the
Bylaws of the Corporation shall so require, the election of directors of the
Corporation need not be by written ballot. Meetings of the Board of Directors
may be held within or without the State of Delaware as the Bylaws of the
Corporation may provide. The books and records of the Corporation may be kept
(subject to applicable laws) outside the State of Delaware at such place or
places as may be designated from time to time by the Board of Directors or in
the Bylaws of the Corporation.
SEVENTH. In furtherance and not in limitation of the powers
conferred by the laws of the State of Delaware, the Board of Directors of the
Corporation shall have the power without assent or vote of the stockholders to
adopt, amend, alter or repeal the Bylaws of the Corporation.
EIGHTH. The Corporation shall have perpetual existence.
NINTH. A director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent such exemption from liability
or limitation thereof is not permitted under the DGCL as the same exists or may
hereafter be amended. Any amendment, modification or repeal of the foregoing
sentence shall not adversely affect any right or protection of a director of the
Corporation hereunder in respect of any act or omission occurring prior to the
time of such amendment, modification or repeal.
TENTH. To the fullest extent permitted by applicable law, the
Corporation is authorized to provide for the indemnification of (and advancement
of expenses to) directors and officers of the Corporation (and any other persons
to whom the DGCL permits the Corporation to provide indemnification), including,
without limitation, through Bylaw provisions, agreements with such directors,
officers or other persons, vote of stockholders or disinterested directors or
otherwise, in excess of the indemnification and advancement otherwise permitted
by Section 145 of the DGCL (statutory or non-statutory), with respect to actions
for breach of duty to the Corporation, its stockholders, and others.
The right to indemnification of (and advancement of expenses
to) directors and officers arising from the forgoing provisions of this Article
Tenth shall not be eliminated or impaired by an amendment to such provisions
after the occurrence of the act or omission that is the subject of the civil,
criminal, administrative or investigative action, suit or proceeding for which
indemnification or advancement of expenses is sought.
ELEVENTH. The Corporation reserves the right at any time, and
from time to time, to amend, alter, change or repeal any provision contained in
this Certificate, and other provisions authorized by the laws of the State of
Delaware at the time in force may be added or inserted, in the manner now or
hereafter prescribed by law; and all rights, preferences and privileges of
whatsoever nature conferred upon stockholders, directors or any other persons
whomsoever by and pursuant to this Certificate in its present form or as
hereafter amended are granted subject to the rights reserved in this Article
Eleventh.
TWELFTH. The Corporation shall not be governed by Section 203
of the DGCL.
Exhibit 10.3
AMENDMENT NUMBER TWO
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 7 of the Plan is amended by inserting the following new subsection 7.07:
7.07. Disclosure. If the Corporation (i) no longer has a class of
securities registered under Section 12 of the Exchange Act, (ii) no
longer is required to file reports pursuant to Section 15(d) of the
Exchange Act, and (iii) relies on the exemption from registration under
Section 12(g) of the Exchange Act pursuant to paragraph (f)(1) of Rule
12h-1 with respect to Options issued under the Plan, the Corporation
agrees to provide to the holders of such Options the information
described in Rules 701(e)(3), (4) and (5), as such rules may be amended
from time to time, under the Securities Act of 1933, every six months
(with the financials not more than 180 days old) until the Corporation
again becomes subject to the reporting requirements of Section 13 or
Section 15(d) of the Exchange Act or is no longer relying on such
exemption. Such information may be provided either by physical or
electronic delivery or by written notice to the holders of Options of
the availability of the information on an Internet site.
Notwithstanding this Section 7.07, the Participant may be required to
enter into a written agreement to keep the information provided to him
or her pursuant to this Section 7.07 confidential prior to providing
such information to the Participant.
2.
This Amendment Number Two to the Plan shall be effective as of January 1, 2009.