AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 26, 2002
REGISTRATION NO. 333-94323
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
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 4832 36-4159663
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
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3535 PIEDMONT ROAD
BUILDING 14, FOURTEENTH FLOOR
ATLANTA, GEORGIA 30305
(404) 949-0700
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
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LEWIS W. DICKEY, JR.,
CHAIRMAN, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
3535 PIEDMONT ROAD
BUILDING 14, FOURTEENTH FLOOR
ATLANTA, GEORGIA 30305
(404) 949-0700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
MARK L. HANSON, ESQ.
JONES, DAY, REAVIS & POGUE
3500 SUNTRUST PLAZA
303 PEACHTREE ST., N.E.
ATLANTA, GEORGIA 30308-3242
(404) 521-3939
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED AMOUNT OF
AMOUNT TO BE OFFERING PRICE PER MAXIMUM REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED SHARE(1) OFFERING PRICE(1) FEE
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Class A Common Stock, par value $.01
per share......................... 20,000,000 $18.33 $366,600,000 $33,727(2)
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(1) Estimated solely for the purpose of calculating the registration fee, based
upon the average of the high and low prices for the Class A Common Stock as
reported on the Nasdaq National Market on April 25, 2002, pursuant to Rule
457(c) of the Securities Act.
(2) A registration fee of $125,070 was paid by the issuer at the time this
registration statement was initially filed on January 10, 2000. No
additional fee is due.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED APRIL 26, 2002
PROSPECTUS
(CUMULUS LOGO)
20,000,000 SHARES OF CLASS A COMMON STOCK
CUMULUS MEDIA INC.
We may periodically offer up to 16,969,448 shares of our Class A Common
Stock, and three of our shareholders may periodically offer and sell up to an
aggregate of 3,030,552 shares of our Class A Common Stock, from time to time, in
one or more offerings, pursuant to this prospectus, in amounts, at prices and on
terms to be determined at the time of each offering or as may be provided in
supplements to this prospectus. We will not receive any proceeds from sales of
Class A Common Stock by the selling shareholders.
This prospectus may not be used to sell securities unless accompanied by a
prospectus supplement. We urge you to read carefully this prospectus and any
accompanying prospectus supplement before you make your investment decision.
Our Class A Common Stock is listed on the Nasdaq National Market under the
symbol "CMLS." The last reported sale price of our Class A Common Stock on the
Nasdaq National Market on April 25, 2002 was $18.33 per share. We urge you to
obtain current market quotations for our Class A Common Stock.
INVESTING IN OUR CLASS A COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. SEE
"RISK FACTORS" BEGINNING ON PAGE 2 OF THIS PROSPECTUS.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES THAT MAY BE OFFERED
UNDER THIS PROSPECTUS OR THE ACCOMPANYING PROSPECTUS SUPPLEMENT, OR DETERMINED
IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
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The date of this prospectus is , 2002.
TABLE OF CONTENTS
PAGE
----
ABOUT THIS PROSPECTUS....................................... i
THE COMPANY................................................. 1
RISK FACTORS................................................ 2
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING
INFORMATION............................................... 2
USE OF PROCEEDS............................................. 2
PROSPECTUS SUPPLEMENTS...................................... 3
SELLING SHAREHOLDERS........................................ 4
PLAN OF DISTRIBUTION........................................ 6
LEGAL MATTERS............................................... 6
EXPERTS..................................................... 6
WHERE YOU CAN FIND MORE INFORMATION......................... 7
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ABOUT THIS PROSPECTUS
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT. WE HAVE
NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION DIFFERENT FROM THAT
CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR ANY ACCOMPANYING
PROSPECTUS SUPPLEMENT. WE ARE OFFERING TO SELL SECURITIES AND SEEKING OFFERS TO
BUY SECURITIES ONLY IN JURISDICTIONS WHERE OFFERS AND SALES ARE PERMITTED. THE
INFORMATION CONTAINED IN THIS PROSPECTUS AND IN ANY ACCOMPANYING PROSPECTUS
SUPPLEMENT IS ACCURATE ONLY AS OF THE DATE ON THEIR COVERS, REGARDLESS OF THE
TIME OF DELIVERY OF THIS PROSPECTUS OR ANY ACCOMPANYING PROSPECTUS SUPPLEMENT OR
ANY SALE OF THE SECURITIES.
In this prospectus, the terms "Company," "Cumulus," "we," "us" and "our"
refer to Cumulus Media Inc. and its consolidated subsidiaries. The term "Class A
Common Stock" means our Class A Common Stock, par value $.01 per share. The term
"selling shareholders" refers to BA Capital Company, L.P., referred to as BA
Capital, the State of Wisconsin Investment Board, referred to as SWIB, and ING
Capital LLC, referred to as ING Capital.
WE HAVE NOT TAKEN ANY ACTION TO PERMIT A PUBLIC OFFERING OF THE SHARES OF
SECURITIES OUTSIDE THE UNITED STATES. PERSONS OUTSIDE THE UNITED STATES WHO COME
INTO POSSESSION OF THIS PROSPECTUS MUST INFORM THEMSELVES ABOUT AND OBSERVE ANY
RESTRICTIONS RELATING TO THE OFFERING OF THE SHARES OF SECURITIES AND THE
DISTRIBUTION OF THIS PROSPECTUS OUTSIDE THE UNITED STATES.
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i
THE COMPANY
Cumulus Media Inc. is the parent company of Cumulus Broadcasting, Inc.,
which, along with other subsidiaries, owns and operates FM and AM radio station
clusters serving mid-size markets throughout the United States. Giving effect to
the completion of all of our currently pending acquisitions and divestitures, we
will own and operate 245 radio stations in 53 mid-sized U.S. media markets. In
addition, we own and operate a multi-market radio network in the
English-speaking Caribbean. We also provide sales and marketing services under
local marketing agreements, or LMA's, (pending Federal Communications
Commission, or FCC, approval of acquisitions) for 14 stations in six U.S.
markets. We are the second largest radio broadcasting company in the United
States based on number of stations owned or operated. According to the Fall 2001
Arbitron Market Report, we have assembled market-leading groups or clusters of
radio stations which rank first or second in terms of revenue share or audience
share in substantially all of our markets.
Relative to the 50 largest markets in the United States, we believe that
the mid-size markets represent attractive operating environments and generally
are characterized by:
- a greater use of radio advertising, as evidenced by the greater
percentage of total media revenues captured by radio than the national
average;
- rising advertising revenues, as the larger national and regional
retailers expand into these markets;
- small independent operators, many of whom lack the capital to produce
high-quality locally originated programming or to employ more
sophisticated research, marketing, management and sales techniques; and
- lower overall susceptibility to economic downturns.
We believe that the attractive operating characteristics of mid-size
markets, together with the relaxation of radio station ownership limits under
the Telecommunications Act of 1996 and the FCC rules, create significant
opportunities for growth from the formation of groups of radio stations within
these markets. We believe that mid-size radio markets provide an excellent
opportunity to acquire attractive properties at favorable purchase prices due to
the size and fragmented nature of ownership in these markets and to the greater
attention historically given to the larger markets by radio station acquirers.
According to the FCC's records, there are approximately 8,285 FM and 4,727 AM
stations in the United States.
To maximize the advertising revenues and broadcast cash flow of our
stations, we seek to enhance the quality of radio programs for listeners and the
attractiveness of our radio stations in a given market. Broadcast cash flow
consists of operating income (loss) before depreciation, amortization, LMA fees,
corporate, general and administrative expense, and restructuring and impairment
charges, and is a measure widely used in the broadcast industry to evaluate a
radio broadcasting company's operating performance. We also seek to increase the
amount of locally originated programming content which airs on each station.
Within each market, our stations are diversified in terms of format, target
audience and geographic location, enabling us to attract larger and broader
listener audiences and thereby a wider range of advertisers. This
diversification, coupled with our favorable advertising pricing, also has
provided us with the ability to compete successfully for advertising revenue
against other media competitors such as print media and television.
We believe that we are in a position to generate revenue growth, increase
audience and revenue shares within these markets and, by capitalizing on
economies of scale and by competing against other media for incremental
advertising revenue, increase our broadcast cash flow growth rates and margins
to those levels found in large markets. As we have assembled our portfolio of
stations over the past five years, many of our markets are still in the
development stage with the potential for substantial growth as we implement our
operating strategy.
We are an Illinois corporation with our principal executive offices located
at 3535 Piedmont Road, Building 14, Fourteenth Floor, Atlanta, Georgia 30305.
Our homepage is located at www.cumulus.com. The information included on our
homepage is not a part of this prospectus. Our telephone number is (404)
949-0700.
1
RISK FACTORS
Investing in our Class A Common Stock involves a high degree of risk.
Please see the risk factors described under the caption "Risk Factors" beginning
on page 43 of our Annual Report on Form 10-K for the year ended December 31,
2001, which is incorporated by reference in this prospectus. Before making an
investment decision, you should carefully consider these risks as well as other
information we include or incorporate by reference in this prospectus and in any
accompanying prospectus supplement.
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING INFORMATION
In various places in this prospectus, any prospectus supplement and the
documents we incorporate by reference, we use statements that constitute
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements relate to our future plans,
objectives, expectations and intentions. Although we believe that, in making any
of those statements, our expectations are based on reasonable assumptions, any
such statement may be influenced by factors that could cause actual outcomes and
results to be materially different from those projected. When used in this
document, the words "anticipates," "believes," "expects," "intends," and similar
expressions, as they relate to us or our management, are intended to identify
such forward-looking statements. These forward-looking statements are subject to
numerous risks and uncertainties, including those referred to under "Risk
Factors" and as otherwise described in our periodic filings with the SEC from
time to time.
Important facts that could cause actual results to differ materially from
those in forward-looking statements, certain of which are beyond our control,
include:
- the impact of general economic conditions in the United States and in
other countries in which we currently do business;
- industry conditions, including existing competition and future
competitive technologies;
- the popularity of radio as a broadcasting and advertising medium;
- capital expenditure requirements;
- legislative or regulatory requirements;
- risks and uncertainties relating to our leverage;
- interest rates;
- consummation and integration of pending acquisitions;
- access to capital markets; and
- fluctuations in exchange rates and currency values.
Our actual results, performance or achievements could differ materially
from those expressed in, or implied by, these forward-looking statements.
Accordingly, we cannot be certain that any of the events anticipated by the
forward-looking statements will occur or, if any of them do, what impact they
will have on us. We assume no obligation to update any forward-looking
statements as a result of new information or future events or developments,
except as required under Federal securities laws. Investors are cautioned not to
place undue reliance on any forward-looking statements, which speak only as of
the date of this prospectus or, in the case of any document we incorporate by
reference, the date of such document.
USE OF PROCEEDS
Except as otherwise set forth in the accompanying prospectus supplement, we
intend to use the net proceeds from the issuance of Class A Common Stock issued
by us under this prospectus for general corporate purposes, which could include
repayment of indebtedness or potential future acquisitions. We may temporarily
invest funds not required immediately for such purposes in short-term
investment-grade
2
securities. In the event a selling shareholder sells any shares of Class A
Common Stock under this prospectus, that selling shareholder will receive all of
the net proceeds from such a sale.
Additional information on the use of net proceeds from the sale of our
Class A Common Stock issued under this prospectus will be set forth in the
prospectus supplement relating to such offering.
PROSPECTUS SUPPLEMENTS
This prospectus provides you with a general description of the proposed
offering of shares of our Class A Common Stock. Each time that we or the selling
shareholders sell securities under this prospectus, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. The prospectus supplement may also add to or change information
contained in this prospectus. If so, the prospectus supplement should be read as
superseding this prospectus. You should read both this prospectus and any
prospectus supplement together with additional information described under the
heading "Where You Can Find More Information."
The prospectus supplement to be attached to the front of this prospectus
will describe the terms of any securities that we or the selling shareholders
offer and any initial offering price to the public in that offering, the
purchase price and net proceeds that we or the selling shareholders will receive
and the other specific terms related to that offering of the securities.
3
SELLING SHAREHOLDERS
No offer or sale of shares of Class A Common Stock under this prospectus
may be made by a selling shareholder until that shareholder has notified us and
a supplement to this prospectus has been filed or an amendment to the
registration statement has become effective.
The table below lists the following information:
- the name of each selling shareholder;
- the number of shares and percentage of Class A Common Stock beneficially
owned by each selling shareholder as of March 31, 2002;
- the maximum number of shares of Class A Common Stock that may be offered
for sale by each selling shareholder; and
- the number of shares and percentage of Class A Common Stock beneficially
owned by each such shareholder after all shares that may be offered under
this prospectus have been sold.
Beneficial ownership is determined in accordance with the rules of the SEC,
and includes voting or investment power with respect to shares. The information
in the table reflects the most recent information furnished to us by each
identified selling shareholder. As of March 31, 2002, there were approximately
35,230,452 shares of our Class A Common Stock issued and outstanding, 14,858,682
shares of our nonvoting Class B Common Stock, which may be converted into shares
of Class A Common Stock on a one-for-one basis, issued and outstanding, and
1,529,277 shares of our Class C Common Stock, which may be converted into shares
of Class A Common Stock on a one-for-one basis, issued and outstanding.
SHARES OF CLASS A
COMMON STOCK
NUMBER OF BENEFICIALLY OWNED
SHARES OF CLASS A SHARES THAT AFTER ALL SHARES ARE
COMMON STOCK MAY BE SOLD UNDER THIS
BENEFICIALLY OWNED OFFERED PROSPECTUS(1)
------------------- PURSUANT TO ---------------------
NAME NUMBER PERCENT THIS PROSPECTUS NUMBER PERCENT
---- --------- ------- --------------- ---------- --------
BA Capital Company, L.P.(2).............. 2,861,621 7.7% 1,500,000 1,361,621 3.7%
State of Wisconsin Investment Board(3)... 3,240,619 8.4% 1,500,000 1,740,619 4.5%
ING Capital LLC(4)....................... 30,552 * 30,552 0 --
--------- ---- --------- ---------
Total.......................... 6,132,792 15.1% 3,030,552 3,102,240 7.7%
========= ==== ========= =========
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* Indicates less than one percent.
(1) We do not know when or in what amounts a selling shareholder may offer
shares for sale. Because the selling shareholders may offer all or some of
the shares pursuant to this prospectus, we cannot estimate the number of the
shares that will be held by the selling shareholders at any given time in
the future. However, for purposes of this table, we have assumed that the
selling shareholders will sell all shares covered by this prospectus.
(2) The number of shares of Class A Common Stock beneficially owned by BA
Capital gives effect to the conversion into shares of Class A Common Stock
of all of BA Capital's 1,979,996 shares of Class B Common Stock and assumes
the exercise of its options to purchase 41,375 shares of Class A Common
Stock. BancAmerica Capital Investors SBIC I, L.P., or BACI, an affiliate of
BA Capital, also owns 8,944,369 shares of Class B Common Stock and a warrant
to purchase an additional 706,424 shares of Class B Common Stock. BACI is
not a selling shareholder and the number of shares included in the foregoing
table does not reflect any shares or the warrant held by BACI.
(3) The number of shares of Class A Common Stock beneficially owned by SWIB
gives effect to the conversion into shares of Class A Common Stock of all of
SWIB's 3,240,619 shares of Class B Common Stock.
4
(4) The number of shares of Class A Common Stock beneficially owned by ING
Capital gives effect to the exercise in full of its warrants to purchase
30,552 shares of Class B Common Stock, and the conversion of those shares of
Class B Common Stock into shares of Class A Common Stock. ING Capital is an
affiliate of ING Groep N.V., a Dutch corporation.
BA Capital is an affiliate of BACI, which indirectly owned a majority of
the equity interests in Aurora Communications, LLC, which we acquired on March
28, 2002. Robert H. Sheridan, III, one of our directors, is a senior vice
president and managing director of both BA Capital and BACI. BA Capital and BACI
are both affiliates of Bank of America Corporation. BA Capital has the right to
designate one member of our board and Mr. Sheridan currently serves on our board
as BA Capital's designee.
As of March 31, 2002, BA Capital and BACI together owned 840,250 shares, or
2.4%, of our Class A Common Stock and 10,924,335 shares, or 73.5%, of our
nonvoting Class B Common Stock, which is convertible into shares of Class A
Common Stock, BACI held a warrant to purchase 706,424 shares of our Class A
Common Stock or Class B Common Stock, and BA Capital held presently exercisable
options to purchase 41,375 shares of Class A Common Stock. Assuming this warrant
were exercised for shares of Class A Common Stock and the options were
exercised, and giving effect to the conversion into shares of Class A Common
Stock of all shares of Class B Common Stock held by BA Capital and BACI, BA
Capital and BACI would hold approximately 20.1% of the total voting power of our
common stock.
In addition, Banc of America Securities LLC, or BA Securities, acted as one
of the financial advisors to Aurora Communications in connection with our
acquisition of Aurora Communications. Furthermore, in connection with the
financing that we entered into in order to refinance our existing indebtedness
and to finance the cash portion of the acquisition of Aurora Communications, BA
Securities acted as joint lead arranger and joint bookrunner, and Bank of
America, N.A. acted as syndication agent and is a lender. BA Securities and Bank
of America, N.A. are each affiliates of BA Capital, BACI and Bank of America
Corporation.
ING Capital is a participant and a lender under our senior credit
facilities.
5
PLAN OF DISTRIBUTION
The shares of Class A Common Stock being offered by us or the selling
shareholders may be sold through underwriters or dealers, directly to one or
more purchasers, through agents or through a combination of any such methods of
sale. The name of any such underwriter or agent involved in the offer and sale
of the Class A Common Stock, the amounts underwritten and the nature of its
obligation to purchase the Class A Common Stock will be described in the
applicable prospectus supplement.
The distribution of the Class A Common Stock may be effected from time to
time in one or more transactions at a fixed price or prices, at market prices
prevailing at the time of sale, at prices related to such prevailing market
prices, or at negotiated prices. Prices may change over time.
In connection with the sale of Class A Common Stock, underwriters or agents
may receive compensation from us, the selling shareholders or from purchasers of
the securities, for whom they may act as agents, in the form of discounts,
concessions or commissions. Underwriters may sell securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agents. Underwriters, dealers, and agents
that participate in the distribution of securities may be deemed to be
underwriters under the Securities Act of 1933, as amended, referred to as the
Securities Act. Any discounts or commissions they receive from us or the selling
shareholders and any profit on the resale of securities they realize may be
deemed to be underwriting discounts and commissions under the Securities Act.
Any underwriter or agent will be identified, and any compensation received from
us or any selling shareholder will be described, in the applicable prospectus
supplement.
To facilitate the offering of Class A Common Stock, certain persons
participating in the offering may engage in transactions that stabilize,
maintain, or otherwise affect the price of the Class A Common Stock. This may
include over-allotments or short sales, which involve the sale by persons
participating in the offering of more shares than we sold to them. In these
circumstances, these persons would cover such over-allotments or short positions
by making purchases in the open market or by exercising their over-allotment
option, if any. In addition, these persons may stabilize or maintain the price
of the Class A Common Stock by bidding for or purchasing shares in the open
market or by imposing penalty bids, whereby selling concessions allowed to
dealers participating in the offering may be reclaimed if shares sold by them
are repurchased in connection with stabilization transactions. The effect of
these transactions may be to stabilize or maintain the market price of the Class
A Common Stock at a level above that which might otherwise prevail in the open
market. These transactions may be discontinued at any time.
Any shares of Class A Common Stock sold pursuant to a prospectus supplement
will be listed on the Nasdaq National Market by us, subject to official notice
of issuance.
Under agreements into which we may enter, underwriters, dealers and agents
who participate in the distribution of securities may be entitled to
indemnification by us against certain liabilities, including liabilities under
the Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, us in the ordinary course of business.
LEGAL MATTERS
Jones, Day, Reavis & Pogue, Atlanta, Georgia, will pass upon the validity
of the Class A Common Stock that may be offered by this prospectus.
EXPERTS
The financial statements of Cumulus Media for the fiscal years ended
December 31, 2001 and 2000, incorporated by reference in this prospectus, have
been audited by KPMG LLP, independent certified
6
public accountants, as indicated in their report with respect thereto, and are
incorporated by reference in reliance upon the authority of said firm as experts
in accounting and auditing.
The financial statements of Cumulus Media for the fiscal year ended
December 31, 1999, incorporated by reference in this prospectus, have been
audited by PricewaterhouseCoopers LLP, independent accountants, as indicated in
their report with respect thereto, and are incorporated by reference in reliance
upon such report given on the authority of said firm as experts in accounting
and auditing.
The financial statements of Aurora Communications at December 31, 2001 and
2000 and for the years ended December 31, 2001 and 2000, and for the period
January 20, 1999 (commencement of operations) to December 31, 1999, incorporated
by reference in this prospectus, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report incorporated by reference in
reliance upon such report given upon the authority of such firm as experts in
accounting and auditing.
The financial statements of DBBC, L.L.C. as of December 31, 2001 and 2000,
and for each of the three fiscal years in the period ended December 31, 2001,
incorporated by reference in this prospectus, have been audited by Kraft Bros.,
Esstman, Patton & Harrell, PLLC, independent auditors, as indicated in their
report with respect thereto, and are incorporated by reference in reliance upon
the authority of said firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
AVAILABLE INFORMATION
We have filed with the SEC under the Securities Act a registration
statement on Form S-3. This prospectus does not contain all of the information
contained in the registration statement, certain portions of which have been
omitted under the rules of the SEC. We also file annual, quarterly and special
reports, proxy statements and other information with the SEC under the
Securities Exchange Act of 1934.
For further information concerning the SEC's public reference rooms, you
may call the SEC at (800) SEC-0330. You may read and obtain copies of this
information by mail from the public reference section of the SEC, 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates. You may
also access some of this information via the World Wide Web through the SEC's
Internet address at www.sec.gov.
INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information into this
prospectus, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is deemed to be part of this prospectus, except for
any information superseded by information in, or subsequently incorporated by
reference into, this prospectus. This prospectus incorporates by reference the
documents set forth below that we have previously filed with the SEC. These
documents contain important information about us.
SEC FILINGS PERIOD
----------- ------
Annual Report on Form 10-K Fiscal year ended December 31, 2001
Current Report on Form 8-K Filed on February 7, 2002
Current Report on Form 8-K Filed on March 7, 2002
Current Report on Form 8-K Filed on March 28, 2002
Registration Statement on Form 8-A Filed on June 24, 1998
We are also incorporating by reference additional documents we may file
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934 after the date of this prospectus and before all of the shares covered by
this prospectus are sold or deregistered (other than those portions of such
7
documents described in paragraphs (i), (k) and (l) of Item 402 of Regulation S-K
promulgated by the SEC). This additional information is a part of this
prospectus from the date of filing of those documents.
Any statements made in this prospectus or in a document incorporated or
deemed to be incorporated by reference into this prospectus will be deemed to be
modified or superseded for purposes of this prospectus to the extent that a
statement contained in this prospectus or in any other subsequently filed
document which is also incorporated or deemed to be incorporated by reference
into this prospectus modifies or supersedes the statement. Any statement so
modified or superseded will not be deemed, except as so modified or superseded,
to constitute a part of this prospectus.
The information relating to us contained in this prospectus should be read
together with the information in the documents incorporated or deemed to be
incorporated by reference. In addition, some of the information, including
financial information, contained in this prospectus or incorporated or deemed to
be incorporated by reference into this prospectus by reference should be read in
conjunction with documents filed with the SEC by us.
Documents incorporated by reference are available from us without charge,
excluding all exhibits unless we have specifically incorporated by reference an
exhibit into this prospectus. Any person to whom a prospectus is delivered may
obtain documents incorporated by reference into this prospectus at no cost, by
requesting them in writing or by telephone from us at the following address:
Cumulus Media, Inc.
3535 Piedmont Road
Building 14, Fourteenth Floor
Atlanta, GA 30305
Telephone: (404) 949-0700
Attention: Daniel O'Donnell, Vice President, Finance
8
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the distribution of the securities being
registered are set forth in the following table (all amounts except the SEC
registration fee are estimated):
SEC registration fee........................................ $ 33,727
Printing expenses........................................... 50,000
Legal fees and expenses..................................... 75,000
Accounting fees and expenses................................ 25,000
Miscellaneous............................................... 16,273
--------
Total............................................. $200,000
========
We will bear all expenses in connection with the issuance and distribution
of the Class A Common Stock being offered (other than selling commissions).
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The general effect of the provisions in the Company's Articles of
Incorporation and Illinois law is to provide that the Company may 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
Company. With respect to legal proceedings by or in the right of the Company in
which a director or officer is adjudged liable for improper performance of his
duty to the Company or another enterprise which such person served in a similar
capacity at the request of the Company, indemnification is limited by such
provisions of that amount which is permitted by the court.
The Company maintains officers' and directors' liability insurance that
insures against liabilities that officers and directors of the Company may incur
in such capabilities. The Company has entered into indemnification agreements
with each of its directors. Pursuant to such agreements, the Company has agreed
to indemnify each director (the "Indemnitee") to the fullest extent permitted by
Illinois law if the Indemnitee was, is or becomes a party to or witness or other
participant in any threatened, pending or completed action, suit, proceeding or
alternative dispute resolution mechanism resulting from any event or occurrence
relating to the fact that the Indemnitee is a director, officer, employee or
agent or fiduciary of the Company.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
3.1 Amended and Restated Articles of Incorporation (incorporated
by reference to Exhibit 3.1 of the registrant's quarterly
report on Form 10-Q for the quarter ended September 30,
2001)
3.2 Certificate of Designation with respect to Series A
Cumulative Exchangeable Redeemable Preferred Stock Due 2009
(incorporated by reference to Exhibit 3.5 of the
registrant's Registration Statement on Form S-1, declared
effective on June 26, 1998 (Commission File No. 333-48849))
3.3 Amended and Restated Certificate of Designation with respect
to Series B Cumulative Preferred Stock (incorporated by
reference to Exhibit 3.3 of the registrant's quarterly
report on Form 10-Q for the quarter ended September 30,
2001)
3.4 Amended and Restated Bylaws, as amended (incorporated by
reference to Exhibit 3.4 of the registrant's quarterly
report on Form 10-Q for the quarter ended September 30,
2001)
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
4.1 Form of Class A Common Stock Certificate (incorporated by
reference to Exhibit 4.1 of the registrant's Registration
Statement on Form S-1, declared effective on June 26, 1998
(Commission File No. 333-48849))
*5.1 Form of opinion of Jones, Day, Reavis & Pogue regarding
validity
*23.1 Consent of KPMG LLP
*23.2 Consent of PricewaterhouseCoopers LLP
*23.3 Consent of Ernst & Young LLP
*23.4 Consent of Kraft Bros., Esstman, Patton & Harrell, PLLC
*23.5 Consent of Jones, Day, Reavis & Pogue (included in Exhibit
5.1)
*24.1 Power of Attorney (included on signature page to this
registration statement)
---------------
* Filed with this registration statement.
ITEM 17. 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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(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 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 with or
furnished to the Commission by the registrant pursuant to Section 13 or
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; and
(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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's
II-2
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 SEC 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, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Atlanta, in the State of Georgia, on April 26, 2002.
CUMULUS MEDIA INC.
By: /s/ LEWIS W. DICKEY, JR.
------------------------------------
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 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 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
--------- ----- ----
/s/ LEWIS W. DICKEY, JR. Chairman, President, Chief April 26, 2002
------------------------------------------------ Executive Officer and Director
Lewis W. Dickey, Jr. (Principal Executive Officer)
/s/ MARTIN R. GAUSVIK Executive Vice President and Chief April 26, 2002
------------------------------------------------ Financial Officer (Principal
Martin R. Gausvik Financial and Accounting Officer)
/s/ RALPH B. EVERETT Director April 26, 2002
------------------------------------------------
Ralph B. Everett
/s/ HOLCOMBE T. GREEN, JR. Director April 26, 2002
------------------------------------------------
Holcombe T. Green, Jr.
/s/ ERIC P. ROBISON Director April 26, 2002
------------------------------------------------
Eric P. Robison
/s/ ROBERT H. SHERIDAN, III Director April 26, 2002
------------------------------------------------
Robert H. Sheridan, III
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
3.1 Amended and Restated Articles of Incorporation (incorporated
by reference to Exhibit 3.1 of the registrant's quarterly
report on Form 10-Q for the quarter ended September 30,
2001)
3.2 Certificate of Designation with respect to Series A
Cumulative Exchangeable Redeemable Preferred Stock Due 2009
(incorporated by reference to Exhibit 3.5 of the
registrant's Registration Statement on Form S-1, declared
effective on June 26, 1998 (Commission File No. 333-48849))
3.3 Amended and Restated Certificate of Designation with respect
to Series B Cumulative Preferred Stock (incorporated by
reference to Exhibit 3.3 of the registrant's quarterly
report on Form 10-Q for the quarter ended September 30,
2001)
3.4 Amended and Restated Bylaws, as amended (incorporated by
reference to Exhibit 3.4 of the registrant's quarterly
report on Form 10-Q for the quarter ended September 30,
2001)
4.1 Form of Class A Common Stock Certificate (incorporated by
reference to Exhibit 4.1 of the registrant's Registration
Statement on Form S-1, declared effective on June 26, 1998
(Commission File No. 333-48849))
*5.1 Form of opinion of Jones, Day, Reavis & Pogue regarding
validity
*23.1 Consent of KPMG LLP
*23.2 Consent of PricewaterhouseCoopers LLP
*23.3 Consent of Ernst & Young LLP
*23.4 Consent of Kraft Bros., Esstman, Patton & Harrell, PLLC
*23.5 Consent of Jones, Day, Reavis & Pogue (included in Exhibit
5.1)
*24.1 Power of Attorney (included on signature page to this
registration statement)
---------------
* Filed with this registration statement.