- Amended tender offer statement by Third Party (SC TO-T/A)
20 Maio 2009 - 8:32AM
Edgar (US Regulatory)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO/A
(Amendment No. 12)
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1)
OR SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
COX RADIO, INC.
(Name of Subject Company (Issuer))
COX ENTERPRISES, INC.
COX MEDIA GROUP, INC.
(Names of Filing Persons)
CLASS A COMMON STOCK, PAR VALUE $0.33 PER SHARE
(Title of Class of Securities)
224051102
(CUSIP Number of Class of Securities)
Andrew A. Merdek, Esq.
Cox Enterprises, Inc.
6205 Peachtree Dunwoody Road
Atlanta, Georgia 30328
Telephone: (678) 645-0000
(Name, address and telephone number of
person authorized to receive notices
and communications on behalf of filing persons)
Copy to:
Stuart A. Sheldon, Esq.
Thomas D. Twedt, Esq.
Dow Lohnes PLLC
1200 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Telephone: (202) 776-2000
CALCULATION OF FILING FEE
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Transaction Valuation(1): $82,405,037
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Amount of Filing Fee(2): $4,599
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(1)
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Estimated solely for the purpose of calculating the amount of the filing fee in accordance
with the Securities Exchange Act of 1934, as amended, based on the product of (i) $4.80, which
is the increased tender offer price, and (ii) 17,167,716, the estimated maximum number of
shares of Class A common stock, par value $0.33 per share, of Cox Radio, Inc. to be acquired
in the tender offer. The 17,167,716 Shares represent the 20,759,670 Shares outstanding as of
March 17, 2009, less the 3,591,954 Shares already beneficially owned by Cox Enterprises, Inc.
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(2)
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The amount of the filing fee calculated in accordance with the Securities Exchange Act of
1934, as amended, equals $55.80 for each $1,000,000 of value. The filing fee was calculated in
accordance with Rule 0-11 under the Securities Exchange Act of 1934 and Fee Rate Advisory #5
for Fiscal Year 2009, issued March 11, 2009.
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Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the
filing with which the offsetting fee was previously paid. Identify the previous filing by
registration statement number, or the Form or Schedule and the date of its filing.
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Amount previously paid:
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$4,599
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Filing Party:
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Cox Enterprises, Inc. and Cox Media Group, Inc.
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Form or registration no.:
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Schedule TO-T
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Date Filed:
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March 23, 2009 and April 30, 2009
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o
Check the box if the filing relates solely to preliminary communications made before the
commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the statement relates:
þ
third-party tender offer subject to Rule 14d-1.
o
issuer tender offer subject to Rule 13e-4.
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going-private transaction subject to Rule 13e-3.
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amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the results of the tender
offer:
þ
TABLE OF CONTENTS
Explanatory Note
This Amendment No. 12 amends and supplements the Tender Offer Statement and Rule 13E-3 Transaction
Statement filed under cover of Schedule TO-T on March 23, 2009 (as previously amended and
supplemented, the “Schedule TO”), by Cox Enterprises, Inc., a Delaware corporation (“Enterprises”),
and Cox Media Group, Inc., a Delaware corporation and a wholly-owned subsidiary of Enterprises
(“Media”). The Schedule TO relates to the offer by Media to purchase all of the issued and
outstanding shares of Class A common stock, par value $0.33 per share (the “Shares”), of Radio not
owned by Media upon the terms and subject to the conditions set forth in the Amended and Restated
Offer to Purchase dated April 29, 2009 (the “Amended and Restated Offer to Purchase”), and in the
related Amended and Restated Letter of Transmittal (which, together with any amendments or
supplements from time to time thereto, collectively constitute the “Offer”).
All capitalized terms used in this Amendment No. 12 without definition have the meanings ascribed
to them in the Schedule TO.
The items of the Schedule TO set forth below are hereby amended and supplemented as follows:
Items 1 through 9, 11 and 13.
(1) The Offer expired at 5:00 p.m., New York City time, on May 19, 2009. According to American
Stock Transfer & Trust Company, the depositary for the Offer, a total of approximately 10,327,500
Shares were validly tendered, including approximately 917,500 Shares guaranteed to be delivered in
the Offer, representing, in the aggregate, 59.4% of the Shares not owned by Enterprises, Media or
their respective affiliates or the directors and executive officers of Enterprises, Media or Radio
(which includes the Shares held by the independent directors of Radio’s board that serve on the
special committee formed to consider the Offer).
The number of Shares tendered pursuant to the Offer satisfies the non-waivable majority of the
minority condition to the Offer. Together with the Shares already owned by Media, assuming
conversion of all outstanding shares of Radio’s Class B common stock, tendered Shares, including
those subject to guaranteed delivery, represent approximately 91.4% of the outstanding Shares.
Radio has accepted for payment all Shares that were validly tendered in the Offer, and payment for
such Shares will be made promptly in accordance with the terms of the Offer.
Since Media will own at least 90% of the outstanding Shares, after the conversion of some or all
outstanding shares of Radio’s Class B common stock, Media intends to cause Radio to consummate a
short-form merger in which any remaining Shares held by stockholders will be converted into the
right to receive $4.80 per Share, other than with respect to Shares for which appraisal rights are
asserted and perfected. Following such a merger, the Shares will cease to be listed on the New
York Stock Exchange.
(2) The press release, dated May 19, 2009, announcing the results of the Offer is attached hereto
as Exhibit (a)(1)(U) and is incorporated herein by reference.
Item 12. Exhibits.
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Exhibit No.
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Description
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(a)(1)(A)*
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Offer to Purchase, dated March 23, 2009.
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(a)(1)(B)*
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Letter of Transmittal.
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(a)(1)(C)*
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Notice of Guaranteed Delivery.
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(a)(1)(D)*
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Letter from Citigroup Global Markets Inc. to Brokers, Dealers, Commercial Banks, Trust
Companies and Nominees.
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(a)(1)(E)*
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Letter to clients for use by Brokers, Dealers, Commercial Banks, Trust Companies and
Nominees.
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1
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Exhibit No.
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Description
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(a)(1)(F)*
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Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.
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(a)(1)(G)*
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Summary Advertisement published on March 24, 2009.
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(a)(1)(H)*
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Cox Enterprises, Inc. press release, dated March 23, 2009.
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(a)(1)(I)
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Letter to Board of Directors of Cox Radio, Inc., dated March 22, 2009 (incorporated by
reference to Exhibit 7.02 to the Schedule 13D/A filed by Cox Enterprises, Inc., Cox Holdings,
Inc., Cox Media Group, Inc. and the Dayton Cox Trust A on March 23, 2009).
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(a)(1)(J)*
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Notice to Participants of Cox Radio, Inc. Employee Stock Purchase Plan mailed by Cox
Enterprises to plan participants.
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(a)(1)(K)*
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Email correspondence to employees of Cox Enterprises and Cox Radio from Cox Enterprises
delivered on March 23, 2009.
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(a)(1)(L)*
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Press release issued by Cox Enterprises on April 20, 2009, entitled “Cox Enterprises,
Inc. Extends Tender Offer for Cox Radio.”
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(a)(1)(M)*
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Press release issued by Cox Enterprises on April 29, 2009, entitled “Cox Enterprises,
Inc. to Increase Tender Offer Price for Cox Radio to $4.80 per Share and Extend Offer.”
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(a)(1)(N)*
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Amended and Restated Offer to Purchase, dated April 29, 2009.
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(a)(l)(O)*
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Amended and Restated Letter of Transmittal.
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(a)(l)(P)*
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Amended and Restated Notice of Guaranteed Delivery.
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(a)(l)(Q)*
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Amended and Restated Letter from Citigroup Global Markets Inc. to Brokers, Dealers,
Commercial Banks, Trust Companies and Nominees.
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(a)(l)(R)*
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Amended and Restated Letter to clients for use by Brokers, Dealers, Commercial Banks,
Trust Companies and Nominees.
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(a)(1)(S)*
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Press release issued by Cox Enterprises on May 14, 2009, entitled “Cox Enterprises
Extends Tender Offer for Cox Radio and Maintains $4.80 Offer Price.”
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(a)(1)(T)*
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Press release issued by Cox Enterprises on May 18, 2009, entitled “Cox Enterprises
Extends Tender Offer for Cox Radio and Maintains $4.80 Offer Price.”
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(a)(1)(U)
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Press release issued by Cox Enterprises on May 19, 2009, entitled “Cox Enterprises
Completes Tender Offer for Cox Radio.”
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(a)(2)(A)(i)*
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Solicitation/Recommendation Statement on Schedule 14D-9 filed by Cox Radio, dated and
filed on April 3, 2009.
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(a)(2)(A)(ii)*
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Solicitation/Recommendation Statement (Amendment No. 1) on Schedule 14D-9 filed by
Cox Radio, dated and filed on April 20, 2009.
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(a)(2)(A)(iii)*
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Solicitation/Recommendation Statement (Amendment No. 2) on Schedule 14D-9 filed by
Cox Radio, dated and filed on April 30, 2009.
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(a)(2)(A)(iv)*
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Solicitation/Recommendation Statement (Amendment No. 3) on Schedule 14D-9 filed by
Cox Radio, dated and filed on May 1, 2009.
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Exhibit No.
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Description
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(a)(2)(A)(v)
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Solicitation/Recommendation Statement (Amendment No. 4) on Schedule 14D-9 filed by Cox
Radio, dated and filed on May 7, 2009 (incorporated by reference to the Schedule 14D-9/A filed
by Cox Radio on May 7, 2009).
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(a)(2)(A)(vi)
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Solicitation/Recommendation Statement (Amendment No. 5) on Schedule 14D-9 filed by
Cox Radio, dated and filed on May 13, 2009 (incorporated by reference to the Schedule 14D-9/A
filed by Cox Radio on May 13, 2009).
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(a)(2)(B)
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Letter, dated April 3, 2009, from the Special Committee of Cox Radio to Cox Radio’s
stockholders (incorporated by reference to Exhibit (a)(2)(A) to the Schedule 14D-9 filed by
Cox Radio on April 3, 2009).
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(a)(2)(C)
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Press release issued by Cox Radio on April 3, 2009, entitled “Cox Radio, Inc. Issues
Response/Recommendation Statement Regarding Tender Offer of Cox Enterprises, Inc.”
(incorporated by reference to Exhibit (a)(2)(B) to the Schedule 14D-9 filed by Cox Radio on
April 3, 2009).
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(a)(2)(D)
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Press release issued by Cox Radio on April 1, 2009, entitled “Cox Radio, Inc. Forms
Special Committee to Evaluate Cox Media’s Tender Offer” (incorporated by reference to Exhibit
(a)(2)(C) to the Schedule 14D-9 filed by Cox Radio on April 3, 2009).
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(a)(5)(A)
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George Leon v. Cox Radio, Inc., et al., Case No. 4461, Delaware Chancery Court (filed
March 27, 2009) (incorporated by reference to Exhibit (a)(5)(D) to the Schedule 14D-9 filed by
Cox Radio on April 3, 2009).
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(a)(5)(B)
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Coral Springs Police Pension Fund v. Cox Radio, Inc., et al., Case No. 4463, Delaware
Chancery Court (filed March 30, 2009) (incorporated by reference to Exhibit (a)(5)(E) to the
Schedule 14D-9 filed by Cox Radio on April 3, 2009).
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(a)(5)(C)
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Ruthellen Miller v. James C. Kennedy, et al., Case No. 09-A-02921-9, Superior Court of
Gwinnett County (filed March 30, 2009) (incorporated by reference to Exhibit (a)(5)(F) to the
Schedule 14D-9 filed by Cox Radio on April 3, 2009).
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(a)(5)(D)*
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In re Cox Radio, Inc. Shareholders Litigation, Case No. 4461-VCP, Delaware Chancery
Court (filed April 7, 2009).
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(a)(5)(E)*
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Ruthellen Miller v. James C. Kennedy, et al., Case No. 09-A-02921-9, Superior Court of
Gwinnett County (filed April 8, 2009).
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(a)(5)(F)*
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Donald Dixon v. James C. Kennedy, et al., Case No. 1:09-CV-0938-JEC, U.S. District Court
Northern District of Georgia, Atlanta Division (filed April 15, 2009).
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(a)(5)(G)*
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Unanimous Written Consent of the Board of Directors of Cox Radio, Inc. dated March 31,
2009.
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(a)(5)(H)*
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Unanimous Written Consent of the Board of Directors of Cox Radio, Inc. dated April 19, 2009.
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(a)(5)(I)*
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Memorandum of Understanding, dated April 29, 2009.
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(a)(5)(J)
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Letter, dated May 1, 2009, from the Special Committee to Cox Radio’s stockholders
(incorporated by reference to Exhibit (a)(2)(F) to the Schedule 14D-9/A filed by Cox Radio on
May 1, 2009).
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(a)(5)(K)*
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Email correspondence to Cox Radio stockholders delivered on May 15, 2009.
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(b)(1)
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Credit Agreement, dated as of July 26, 2006, by and among Cox Enterprises, Inc., the lenders
party thereto, JP Morgan Chase Bank, N.A., as administrative agent, Citibank, N.A. and
Wachovia Capital Markets, LLC, as syndication agents, Lehman Brothers Inc. and The Bank of
Tokyo-
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Exhibit No.
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Description
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Mitsubishi UFJ, LTD, New York Branch, as documentation agents, and JP Morgan
Securities, Inc., Citigroup Global Markets, Inc. and Wachovia Capital Markets, LLC as
joint lead arrangers and joint bookrunners (incorporated by reference to Exhibit 7.03
to the Schedule 13D/A filed by Cox Enterprises, Inc., Cox Holdings, Inc., Cox Media
Group, Inc. and the Dayton Cox Trust A on March 23, 2009).
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(b)(2)
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First Commitment Increase Amendment to Credit Agreement, dated as of September 28, 2007
(incorporated by reference to Exhibit 7.04 to the Schedule 13D/A filed by Cox Enterprises,
Inc., Cox Holdings, Inc., Cox Media Group, Inc. and the Dayton Cox Trust A on March 23, 2009).
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(b)(3)
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Second Amendment and Limited Waiver to Credit Agreement, dated as of December 29, 2008
(incorporated by reference to Exhibit 7.05 to the Schedule 13D/A filed by Cox Enterprises,
Inc., Cox Holdings, Inc., Cox Media Group, Inc. and the Dayton Cox Trust A on March 23, 2009).
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(c)(1)*
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Materials presented by Citigroup Global Markets Inc. to the senior management of Cox
Enterprises, Inc. on March 16, 2009.
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(c)(2)*
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Materials presented by Citigroup Global Markets Inc. to the Board of Directors of Cox
Enterprises, Inc. on March 22, 2009.
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(c)(3)*
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Materials presented by senior management of Cox Enterprises, Inc. and Cox Media Group, Inc.
to the Boards of Directors of Cox Enterprises, Inc. and Cox Media Group, Inc. on March 22,
2009.
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(c)(4)
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Opinion of Gleacher Partners LLC (incorporated by reference to Exhibit (a)(5)(C) to the
Schedule 14D-9 filed by Cox Radio on April 3, 2009).
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(c)(5)*
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Appraisal of Cox Radio, Inc. as of December 31, 2007 by John Morton, Paul Ravaris and
Associates.
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(c)(6)*
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Appraisal of Cox Radio, Inc. as of December 31, 2007 by Duff & Phelps.
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(c)(7)*
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Appraisal of Cox Radio, Inc. as of December 31, 2007 by Bond & Pecaro.
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(c)(8)*
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Valuation of Cox Radio, Inc.’s radio stations as of December 31, 2008 by Bond & Pecaro for
purposes of impairment testing pursuant to SFAS No. 142.
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(c)(9)*
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Valuation of Cox Radio, Inc.’s FCC licenses as of December 31, 2008 by Bond & Pecaro for
purposes of impairment testing pursuant to SFAS No. 142.
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(c)(10)*
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Valuation of Cox Radio, Inc. as of December 31, 2007 by Valuation Research Corporation.
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(c)(11)*
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Materials presented by Citigroup Global Markets Inc. to the financial advisors of the
special committee of Cox Radio, Inc. on April 24, 2009.
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(c)(12)
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Materials presented by Gleacher Partners to Citigroup Global Markets Inc. on April 21, 2009
(incorporated by reference to Exhibit (a)(5)(M) to the Schedule 14D-9/A filed by Cox Radio on
May 7, 2009).
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(c)(13)
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Materials presented by Gleacher Partners to the special committee of Cox Radio, Inc. on
April 16, 2009 (incorporated by reference to Exhibit (a)(5)(N) to the Schedule 14D-9/A filed
by Cox Radio on May 7, 2009).
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(c)(14)
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Materials presented by Gleacher Partners to the special committee of Cox Radio, Inc. on
April 23, 2009 (incorporated by reference to Exhibit (a)(5)(O) to the Schedule 14D-9/A filed
by Cox Radio on May 7, 2009).
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Exhibit No.
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Description
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(c)(15)
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Materials presented by Gleacher Partners to the special committee of Cox Radio, Inc. on
April 27, 2009 (incorporated by reference to Exhibit (a)(5)(P) to the Schedule 14D-9/A filed
by Cox Radio on May 7, 2009).
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(d)
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None.
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(e)
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Revolving Promissory Note, dated December 4, 2003 (incorporated by reference to Exhibit
(e)(1) to the Schedule 14D-9 filed by Cox Radio on April 3, 2009).
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(f)*
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Section 262 of the Delaware General Corporation Law (included as Schedule C of the Amended
and Restated Offer to Purchase filed as Exhibit (a)(1)(M)).
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(g)
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None.
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(h)
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None.
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5
SIGNATURES
After due inquiry and to the best knowledge of the undersigned, each of the undersigned certifies
that the information set forth in this statement is true, complete and correct.
AMENDMENT TO SCHEDULE TO AND SCHEDULE 13E-3
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COX ENTERPRISES, INC.
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/s/ John M. Dyer
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John M. Dyer
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Executive Vice President and
Chief Financial Officer
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COX MEDIA GROUP, INC.
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/s/ Neil O. Johnston
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Neil O. Johnston
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Vice President and
Chief Financial Officer
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Date: May 20, 2009
EXHIBIT INDEX
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Exhibit No.
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Description
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(a)(1)(U)
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Press release issued by Cox Enterprises on May 19, 2009, entitled “Cox Enterprises
Completes Tender Offer for Cox Radio.”
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Cox Radio A (NYSE:CXR)
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