As filed with the Securities and Exchange Commission on April 15, 2003
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)
DELAWARE 36-4159663
(State of Incorporation) (I.R.S. Employer Identification Number)
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CUMULUS MEDIA INC. 2002 STOCK INCENTIVE PLAN
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LEWIS W. DICKEY, JR.
CHAIRMAN, PRESIDENT & CHIEF EXECUTIVE OFFICER
CUMULUS MEDIA INC.
3535 PIEDMONT ROAD, BUILDING 14, FOURTEENTH FLOOR
ATLANTA, GEORGIA 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
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 share aggregate offering price registration fee
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Class A Common Stock, $.01
par value 2,000,000 (1) $16.64 (2) $33,280,000 (2) $2,692 (3)
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(1) Issuable under the Cumulus Media Inc. 2002 Stock Incentive Plan.
(2) 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 average of the reported high and low sales
prices of Cumulus Media Class A Common Stock on the NASDAQ National Market
("NASDAQ") on April 8, 2003, a date within 5 business days prior to
the date of filing of this Registration Statement.
(3) The registration fee for the securities offered hereby, $2,692, is
calculated pursuant to Rule 457(c) under the Securities Act as follows:
.00008090 multiplied by the product of $16.64, the average of the reported
high and low sales prices of Cumulus Media Class A Common Stock on NASDAQ
on April 8, 2003, multiplied by 2,000,000, the number of shares to be
registered.
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 shares of our Class A Common Stock pursuant
to the Cumulus Media Inc. 2002 Stock Incentive Plan.
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) Annual Report on Form 10-K for the fiscal year ended
December 31, 2002;
(b) Current Report on Form 8-K filed April 2, 2003; and
(c) The description of the Class A common stock, $0.01 par value
contained in Post-Effective Amendment No. 1 to the Registration
Statement on Form 8-A, filed by the Registrant 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 us 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 into this registration
statement and to be part hereof from the date of filing such documents.
Any statement contained herein or in a document, all or a portion of
which is incorporated or deemed to be incorporated by reference herein,
shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed
to be incorporated by reference herein 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 registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our certificate of incorporation provides that no director
shall be liable to us or our stockholders for monetary damages for
breach of fiduciary duty as a director, provided, however, that our
certificate of incorporation does not eliminate or limit the liability
of a director (a) for any breach of the director's duty of loyalty to
us or our stockholders, (b) for acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law, (c)
under Section 174 of the Delaware General Corporation Law, (d) for any
transaction from which the director derived an improper personal
benefit, or (e) for any act or omission occurring before the effective
date of our certificate of incorporation.
Our by-laws provide that each director, officer or employee
who was or is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that
he is or was a director or an officer of ours or is or was serving at
our request as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan,
shall be indemnified and held harmless by us to the fullest extent
permitted or required by the
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Delaware General Corporation Law against all expense, liability and
loss (including attorneys' fees, judgments, fines, ERISA excise taxes
or penalties and amounts paid in settlement) reasonably incurred or
suffered by such indemnitee in connection therewith; provided, however,
that, except as provided below with respect to proceedings to enforce
rights to indemnification, we shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such
indemnitee only if the proceeding (or part thereof) was authorized by
our board.
This right to indemnification shall include the right to have
paid by us the expenses (including, without limitation, attorneys' fees
and expenses) incurred in defending any such proceeding in advance of
its final disposition; provided, however, that, if the Delaware General
Corporation Law so requires, such an advancement of expenses incurred
by an indemnitee in his capacity as a director or officer (and not in
any other capacity in which service was or is rendered by such
indemnitee, including, without limitation, service to an employee
benefit plan) shall be made only upon delivery to us of an undertaking
by or on behalf of such indemnitee to repay all amounts so advanced, if
it shall ultimately be determined by final judicial decision from which
there is no further right to appeal that such indemnitee is not
entitled to be indemnified for such expenses under our by-laws or
otherwise. The rights to indemnification and to the advancement of
expenses conferred in our by-laws shall be contract rights and these
rights shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of
the indemnitee's heirs, executors and administrators.
The rights to indemnification and to the advancement of
expenses conferred in our by-laws shall not be exclusive of any other
right which any person may have or hereafter acquire under any statute,
our certificate of incorporation, our by-laws, or any agreement, vote
of stockholders or disinterested directors or otherwise.
We generally maintain insurance, at our expense, to protect us
and any of our directors, officers, employees or agents or those of
another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not we
would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
We may, to the extent authorized from time to time by our
board, grant rights to indemnification and to the advancement of
expenses to any of our employees or agents to the fullest extent of the
provisions of our by-laws with respect to the indemnification and
advancement of expenses of our directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
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ITEM 8. EXHIBITS.
4.1 Cumulus Media Inc. 2002 Stock Incentive Plan
4.2 Amended and Restated Certificate of Incorporation, including
Certificates of Designations for the 13-3/4% Series A
Cumulative Exchangeable Redeemable Preferred Stock due 2009
and the 12% Series B Cumulative Preferred Stock (incorporated
by reference to Exhibit 3.1 of the registrant's current report
on Form 8-K, filed August 2, 2002)
4.3 Amended and Restated By-laws (incorporated by reference to
Exhibit 3.2 of the registrant's current report on Form 8-K,
filed August 2, 2002)
5.1 Opinion of Jones Day regarding legality of the Common Stock
being registered.
23.1 Consent of KPMG LLP
23.2 Consent of Jones Day (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page to this
registration statement)
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
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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, 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 April 15, 2003.
CUMULUS MEDIA INC.
By: /s/ LEWIS W. DICKEY, JR.
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Lewis W. Dickey, Jr.
Chairman, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Lewis W. Dickey, Jr. and Martin R.
Gausvik, jointly and severally, his true and lawful attorney-in-fact and agent,
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 the above-listed registration statements, and to file the same, with 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, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ LEWIS W. DICKEY, JR. Chairman, President, Chief Executive April 15, 2003
--------------------------------------------------------------- Officer and Director
Lewis W. Dickey, Jr. (Principal Executive Officer)
/s/ MARTIN R. GAUSVIK Executive Vice President and Chief April 15, 2003
--------------------------------------------------------------- Financial Officer (Principal
Martin R. Gausvik Financial and Accounting
Officer)
/s/ RALPH B. EVERETT
--------------------------------------------------------------- Director April 15, 2003
Ralph B. Everett
/s/ HOLCOMBE T. GREEN, JR.
--------------------------------------------------------------- Director April 15, 2003
Holcombe T. Green, Jr.
/s/ ERIC P. ROBISON
--------------------------------------------------------------- Director April 15, 2003
Eric P. Robison
/s/ ROBERT H. SHERIDAN, III
--------------------------------------------------------------- Director April 15, 2003
Robert H. Sheridan, III
EXHIBIT INDEX
Exhibits
4.1 Cumulus Media Inc. 2002 Stock Incentive Plan
4.2 Amended and Restated Certificate of Incorporation, including
Certificates of Designations for the 13-3/4% Series A
Cumulative Exchangeable Redeemable Preferred Stock due 2009
and the 12% Series B Cumulative Preferred Stock (incorporated
by reference to Exhibit 3.1 of the registrant's current report
on Form 8-K, filed August 2, 2002)
4.3 Amended and Restated By-laws (incorporated by reference to
Exhibit 3.2 of the registrant's current report on Form 8-K,
filed August 2, 2002)
5.1 Opinion of Jones Day regarding legality of the Common Stock
being registered
23.1 Consent of KPMG LLP
23.2 Consent of Jones Day (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page to this
registration statement)