Amendment to General Statement of Beneficial Ownership — Schedule 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D/A Schedule 13D Amendment No. 5 8 38K
2: EX-1 Exhibit 1 - Securities Purchase Agreement 23 99K
3: EX-2 Exhibit 2 - Purchase Warrant 13 43K
4: EX-3 Exhibit 3 - Incentive Warrant 13 43K
5: EX-4 Exhibit 4 - Incentive Warrant 13 43K
6: EX-5 Exhibit 5 - Incentive Warrant 13 43K
7: EX-6 Exhibit 6 - Voting Agreement 10 36K
8: EX-7 Exhibit 7 - Registration Rights Agreement 16 53K
9: EX-8 Exhibit 8 - Letter of Agreement 2 11K
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement")
is entered into as of February 3, 1994 by and between Westwood One, Inc., a
Delaware corporation (the "Company"), and Infinity Network Inc., a Delaware
corporation (the "Purchaser").
R E C I T A L S :
A. Pursuant to a Securities Purchase Agreement entered
into concurrently herewith between the Company and the Purchaser (the
"Securities Purchase Agreement"), the Purchaser has purchased from the Company
5,000,000 shares of common stock of the Company ("Common Stock") and a warrant
to purchase an additional 3,000,000 shares of Common Stock (the "Purchase
Warrant").
B. Pursuant to a Management Agreement (the "Management
Agreement") entered into concurrently herewith between the Company and Infinity
Broadcasting Corporation ("Infinity"), which owns all of the outstanding
capital stock of the Purchaser, the Company has issued to the Purchaser a
warrant to purchase an additional 1,500,000 shares of Common Stock (the
"Management Warrant"), upon and subject to the terms and conditions set forth
therein.
C. The Company and the Purchaser desire in this
Agreement to provide, with respect to the above-described securities of the
Company, for (i) the granting to the Purchaser of the registration rights set
forth herein, and (ii) certain contractual restrictions on any sale or
disposition thereof.
A G R E E M E N T
NOW, THEREFORE, in consideration of the premises and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
REGISTRATION RIGHTS
1.1 Definitions. As used in this Section 1:
(a) The terms "register," "registered," and
"registration" refer to a registration effected by filing with
Exhibit 7
the Securities and Exchange Commission (the "SEC") a registration statement
("Registration Statement") in compliance with the Securities Act of 1933, as
amended (the "1933 Act") and the declaration or ordering by the SEC of the
effectiveness of such Registration Statement.
(b) The term "Registrable Securities" means (i)
the 5,000,000 shares of Common Stock issued to the Purchaser concurrently
herewith pursuant to the Securities Purchase Agreement, (ii) any and all shares
of Common Stock hereafter issued upon exercise of the Purchase Warrant, and
(iii) any and all shares of Common Stock hereafter issued upon exercise of the
Management Warrant. The term "Registrable Securities" shall also include any
Common Stock issued as (or issuable upon the conversion or exercise of any
warrant, right, or other security that is issued as) a dividend, stock split or
other distribution with respect to, or in exchange for, upon reclassification
or in replacement of, Registrable Securities. In the event of any
recapitalization by the Company, whether by stock split, reverse stock split,
stock dividend or otherwise, the number of shares of Registrable Securities
used throughout this Agreement for various purposes shall be proportionately
increased or decreased.
1.2 Demand Registration. If the Company shall receive
from the Purchaser a written request to register shares of Registrable
Securities (a "Demand"), the Company shall prepare and file a Registration
Statement under the 1933 Act covering the shares so requested to be registered,
and shall use its best efforts to cause as expeditiously as possible such
Registration Statement to become effective; provided, however, that if at the
time the request for registration is made, the Company is in the process of
registering securities under the 1933 Act for sale by it or has pending or in
process a material transaction, the disclosure of which would, in the good
faith judgment of the Board of Directors of the Company, materially and
adversely affect the Company, the Company may defer the filing (but not the
preparation) of the requested Registration Statement (a) in the case of another
registration statement in process, until the filing or abandonment of such
registration statement but in no event longer than sixty (60) days, and (b) in
the case of a material transaction, for up to sixty (60) days (but the Company
shall use its best efforts to resolve the transaction and file the Registration
Statement as soon as practicable). The Company shall be required to register
the Registrable Securities pursuant to this Section 1.2 in response to any
Demand by Purchaser, provided (i) no Demand may be made by Purchaser until on
and after one year from the date hereof, (ii) only one Demand may be made by
Purchaser (together with all permitted assignees thereof pursuant to Section
1.9) in any calendar year and (iii) the Company shall not be required to
register the Registrable
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Securities more than three (3) times on registration forms other than Form S-3
(or any substantially equivalent successive form). The registration of
Registrable Securities under this Section 1.2 shall not be deemed to have been
requested unless such registration becomes effective (provided that if, within
one hundred twenty (120) days after it has become effective, the offering of
Registrable Securities pursuant to such registration is interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court, such registration will be deemed not to have
become effective unless 80% of such Registrable Securities have been sold
pursuant to such registration), and if the registration has remained effective
for one hundred twenty (120) days without such interference such registration
shall be deemed to have been requested regardless of whether any of the
Registrable Securities are ultimately sold pursuant to such registration. The
Company may grant piggyback registration rights with respect to any
registration statement demanded pursuant to this Section 1.2, provided that any
such rights shall be subject to the priority of Purchaser's rights under this
Section 1.2.
1.3 Incidental Registrations.
(a) If at any time or from time to time the
Company shall determine to register any of its securities, either for its own
account or the account of security holders, other than a registration relating
solely to employee benefit plans or a registration on Form S-4 relating solely
to an SEC Rule 145 transaction, the Company will:
(i) promptly give to Purchaser written
notice thereof (which shall include a list of the
jurisdictions in which the Company intends to attempt to
qualify such securities under the applicable blue sky or
other state securities laws); and
(ii) include in such registration (and any
related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, all
the Registrable Securities specified in a written request,
made by Purchaser within thirty (30) days after receipt of
such written notice from the Company, except as set forth in
Section 1.3(b) below.
(b) If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise Purchaser as a part of the written notice given
pursuant to Section 1.3(a)(i). In such event the right of Purchaser to
registration pursuant to this Section 1.3 shall be conditioned upon Purchaser's
participation in such underwriting and the inclusion of Purchaser's Registrable
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Securities in the underwriting to the extent provided herein. Purchaser,
together with the Company and the other parties distributing their securities
through such underwriting, shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this
Section 1.3, if the underwriter determines that marketing factors require a
limitation of the number of shares or type of securities to be underwritten,
the underwriter may limit the number of Registrable Securities to be included
in the registration and underwriting, or may exclude Registrable Securities
entirely from such registration and underwriting subject to the terms of this
Section. The Company shall so advise all holders of the Company's securities
that would otherwise have a right to be so registered and underwritten and the
number of shares of such securities, including Registrable Securities, that may
be included in the registration and underwriting shall be allocated among
Purchaser and all such other holders in proportion, as nearly as practicable,
to the respective amounts of securities of the Company proposed to be included
in such underwritten offering by all shareholders other than the Company;
provided, however, that the rights of Purchaser to include all or any allocable
portion of such Registrable Securities shall be subject to the priority (prior
to any allocation to Purchaser or others) of the holders of existing "demand"
registration rights similar to that provided in Section 1.2 hereof existing on
the date hereof (all such existing rights are included in agreements listed on
Schedule 2.2 to the Securities Purchase Agreement) and of other holders of
demand registration rights permitted pursuant to the proviso to Section 1.9
hereof. No securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration. If
Purchaser disapproves of the terms of the underwriting, it may elect to
withdraw therefrom by written notice to the Company and the underwriter. The
Registrable Securities so withdrawn shall also be withdrawn from registration.
(c) The Purchaser agrees that any shares of
Registrable Securities which are not included in an underwritten public
offering described in Section 1.3(b) shall not be publicly sold by the
Purchaser for a period, not to exceed one hundred twenty (120) days, which the
managing underwriter reasonably determines is necessary in order to effect such
underwritten public offering.
1.4 Expenses of Registration. All expenses incurred in
connection with the registrations effected pursuant to Section 1.2 and all
registrations effected pursuant to Section 1.3, including without limitation
all registration, filing, listing and qualification fees (including SEC,
securities exchange,
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National Association of Securities Dealers Inc. and blue sky fees and
expenses), printing expenses, escrow fees, fees and disbursements of counsel
for each of the Company and Purchaser (if Purchaser is participating in such
registration), and expenses of any special audits and/or "cold comfort" letters
incidental to or required by such registration, fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, and the
reasonable fees and expenses of any special experts retained by the Company in
connection with the requested registration shall be borne by the Company;
provided, however, that the Company shall not be required to pay stock transfer
taxes or underwriters' discounts or commissions relating to Registrable
Securities.
1.5 Obligations of the Company. Whenever required under
this Section 1 to effect the registration of any Registrable Securities, the
Company shall, as expeditiously as reasonably possible:
(a) prepare and file with the SEC (but in any event
within ninety (90) days after the date of the Demand pursuant to Section 1.2) a
Registration Statement with respect to such Registrable Securities (which, in
the case of a Demand registration pursuant to Section 1.2, shall be on a form
designated by the underwriters or Purchaser) and use its diligent best efforts
to cause such Registration Statement to become effective, and, upon the request
of Purchaser, keep such Registration Statement effective for up to one hundred
twenty (120) days or such longer period as the Company may agree upon, or until
Purchaser has completed the distribution relating thereto, whichever occurs
first;
(b) prepare and file with the SEC such amendments
and supplements to such Registration Statement and the prospectus used in
connection with such Registration Statement as may be necessary to keep such
registration statement effective as provided in Section 1.5(a) and to comply
with the provisions of the 1933 Act with respect to the disposition of all
securities covered by such Registration Statement provided that, before filing
a Registration Statement or prospectus, or any amendments or supplements
thereto, the Company will furnish to Purchaser copies of all documents proposed
to be filed, which documents will be subject to the comments of Purchaser and
its counsel;
(c) furnish to Purchaser such numbers of copies of
the registration statement, the prospectus, including a preliminary prospectus,
and of each amendment and supplement (in each case, including all exhibits), in
conformity with the requirements of the 1933 Act, and such other documents as
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Purchaser may reasonably request in order to facilitate the disposition of
Registrable Securities owned by Purchaser;
(d) use its best efforts to register and qualify
the securities covered by such Registration Statement under such other
securities or Blue Sky laws of such jurisdictions in such states as shall
be reasonably necessary to facilitate an orderly distribution of the
Registrable Securities, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business in
any such jurisdiction that, but for the requirements of this Section 1.5(d),
it would not be obligated to be so qualified or to file a general consent to
service of process in any such states or jurisdictions;
(e) use its best efforts to cause such securities
covered by such Registration Statement to be registered with or approved by
such other governmental agencies or authorities of the United States of America
or any state thereof as may be necessary to enable Purchaser to consummate the
disposition of such securities;
(f) in the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, usual and customary in form, with the managing underwriter of such
offering; Purchaser shall also enter into and perform its obligations under
such agreement; and the Company shall take such other actions as the
underwriters reasonably request in order to expedite or facilitate a
disposition of such securities;
(g) use its best efforts to cause all such
securities covered by such Registration Statement to be listed on any
securities exchange on which the Common Stock is then listed, and if the Common
Stock is not already so listed at such time, to use its best efforts promptly
to cause all such securities to be listed on either the New York Stock Exchange
or the American Stock Exchange or to be included in the National Association of
Securities Dealers Automotive Quotation System on the National Market List; and
to provide a transfer agent and registrar for such securities covered by such
Registration Statement no later than the effective date of such Registration
Statement;
(h) use its best efforts to obtain a "cold
comfort" letter or letters from the Company's independent public accountants in
customary form and covering matters of the type customarily covered by "cold
comfort" letters as Purchaser shall reasonably request;
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(i) notify Purchaser at any time when a
prospectus relating thereto is required to be delivered under the 1933 Act of
the happening of any event as a result of which, or of the Company becoming
otherwise aware that, the prospectus included in such Registration Statement,
as then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of Purchaser, prepare and furnish to Purchaser a
reasonable number of copies of an amended or supplemental prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such securities
under such Registration Statement, such prospectus shall not include an untrue
statement of a material fact or a misstatement of a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing; and
(j) make reasonably available for inspection by
representatives of Purchaser, by any underwriter participating in any
disposition to be effected pursuant to such Registration Statement and by any
attorney, accountant or other agent retained by Purchaser or any such
underwriter, all pertinent financial and other records, pertinent corporate
documents and properties of the Company reasonably requested by such persons in
connection with such Registration Statement.
Purchaser agrees that, upon receipt of any notice from the
Company of the happening of any event described in Section 1.5(i), Purchaser
will forthwith discontinue disposition of such securities pursuant to such
Registration Statement until Purchaser's receipt of the copies of the
supplemental or amended prospectus contemplated by Section 1.5(i), and, as so
directed by the Company, Purchaser will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in
Purchaser's possession, of the prospectus covering such securities covered by
such Registration Statement current at the time of receipt of such notice. In
the event the Company shall give any such notice, the period mentioned in
Section 1.5(a) shall be extended by the number of days during the period from
the date of the giving of such notice pursuant to Section 1.5(i) and through
the date when each seller of such securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 1.5(i).
1.6 Selection of Underwriter. In any registration which
is being effected as a result of a Demand by Purchaser pursuant to Section 1.2,
Purchaser shall have the exclusive right to designate the managing underwriter
or underwriters with
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respect to the related offer, which underwriter or underwriters must be
reasonably acceptable to the Company. In all other registrations, the Company
shall select, in its sole discretion, the managing underwriter or underwriters
with respect to the related offering of the Common Stock.
1.7 Indemnification.
(a) The Company will, and does hereby undertake to,
indemnify and hold harmless Purchaser, each of Purchaser's officers, directors
and affiliates, and each person controlling Purchaser, with respect to any
registration, qualification, listing, or compliance effected pursuant to this
Section 1, and each underwriter, if any (including any broker or dealer which
may be deemed an underwriter), and each person who controls any underwriter
(including any such broker or dealer), of the Registrable Securities held by or
issuable to Purchaser, against all claims, losses, damages, liabilities and
expenses, joint or several (or actions in respect thereto whether or not a
party thereto), to which they may become subject under the 1933 Act, the
Securities Exchange Act of 1934, as amended, (the "1934 Act"), or other
federal, state or common law, or otherwise, arising out of or based on (i) any
untrue statement (or alleged untrue statement) of a material fact contained in
any preliminary, final or summary prospectus, offering circular, or other
similar document or any amendment or supplement thereto (including any related
Registration Statement, notification, or the like) incident to any such
registration, qualification, listing, or compliance, or arising out of or based
upon any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or (ii) any violation or alleged violation by the Company of any
federal, state or common law, rule or regulation applicable to the Company in
connection with any such registration, qualification, or compliance, and will
reimburse, as incurred, Purchaser, each such underwriter, and each such
director, officer, affiliate and controlling person, for any legal and any
other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability, or action (whether or not
the indemnified party is a party to any proceeding); provided that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage, liability or expense arises out of or is based on any untrue statement
or omission based upon written information furnished to the Company by an
instrument duly executed by Purchaser or by such underwriter and stated to be
specifically for use therein. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of Purchaser or any
other indemnified party and shall survive the transfer of such securities by
Purchaser.
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(b) Purchaser will indemnify the Company, each of
its directors, and each officer who signs a Registration Statement in
connection therewith, and each person controlling the Company, each
underwriter, if any, and each person who controls any underwriter, of the
Company's securities covered by such a Registration Statement, against all
claims, losses, damages, liabilities and expenses, joint or several (or actions
in respect thereto whether or not a party thereto) arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact contained
in any such Registration Statement, preliminary, final or summary prospectus,
offering circular, or other document, or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse, as incurred,
the Company, each such underwriter and each such director, officer, partner,
and controlling person, for any legal or any other expenses reasonably incurred
in connection with investigating or defending any such claim, loss, damage,
liability or action (whether or not the indemnified party is a party to any
proceeding), in each case to the extent, but only to the extent, that such
untrue statement (or alleged untrue statement) or omission (or alleged
omission) was made in such Registration Statement, preliminary, final or
summary prospectus, offering circular or other document, in reliance upon and
in conformity with written information furnished to the Company by an
instrument duly executed by Purchaser and stated to be specifically for use
therein; provided, however, that the liability of Purchaser hereunder shall be
limited to the net proceeds received by Purchaser from the sale of securities
under such Registration Statement.
(c) Each party entitled to indemnification under
this Section 1.6 (the "Indemnified Party") shall give notice to the party
required to provide such indemnification (the "Indemnifying Party") of any
claim as to which indemnification may be sought promptly after such Indemnified
Party has actual knowledge thereof, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting therefrom;
provided that counsel for the Indemnifying Party, who shall conduct the defense
of such claim or litigation, shall be subject to approval by the Indemnified
Party (whose approval shall not be unreasonably withheld) and the Indemnified
Party may participate in such defense at the Indemnifying Party's expense if
representation of such Indemnified Party would be inappropriate due to actual
or potential differing interests between such Indemnified Party and any other
party represented by such counsel in such proceeding; and provided further that
the failure of any Indemnified Party to give notice as provided herein shall
not relieve the Indemnifying Party of its obligations under this Section 1,
except to the extent that such
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failure to give notice shall materially adversely affect the Indemnifying Party
in the defense of any such claim or any such litigation. No Indemnifying
Party, in the defense of any such claim or litigation, shall except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff therein, to such Indemnified Party, of a
full and final release from all liability in respect to such claim or
litigation.
(d) Indemnification similar to that specified in
this Section 1.7 (with appropriate modifications) shall be given by the Company
and Purchaser with respect to any required registration or other qualification
of securities under any federal or state law or regulation or governmental
authority other than the 1933 Act.
(e) If recovery is not available under the
foregoing indemnification provisions of this Section 1.7 for any reason other
than as expressly specified therein, the parties entitled to indemnification by
the terms thereof shall be entitled to contribution to liabilities and
expenses. In determining the amount of contribution which the respective
parties are entitled, there shall be considered the relative fault of each
party in connection with the statements or omissions which resulted in such
claims, losses, damages or actions, as well as other equitable considerations
appropriate under the circumstances. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding anything in this section 1.7(e),
Purchaser will not be obligated to make contributions which in the aggregate
exceeds the amount for which it would have been liable pursuant to Section
1.7(b) had indemnification been available thereunder.
(f) The obligations of the parties under this
Section 1.7 shall be in addition to any liabilities which any party may
otherwise have to any other party.
1.8 Information by Purchaser. Purchaser shall furnish to
the Company such information regarding Purchaser and the distribution proposed
by Purchaser as the Company may reasonably request in writing and as shall be
required in connection with any registration, qualification, or compliance
referred to in this Section 1.
1.9 Transfer of Registration Rights. The rights,
contained in Sections 1.2 and 1.3 hereof, to cause the Company to register the
Registrable Securities, may be assigned or otherwise
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conveyed to a transferee or assignee of Registrable Securities, provided that
such transferee or assignee (or, if such transferee or assignee is Infinity or
a wholly-owned subsidiary of Infinity, together with Infinity and other
wholly-owned subsidiaries of Infinity) acquires at least 500,000 shares of the
Common Stock constituting Registrable Securities held by the transferring
holder, and, provided further, that the Company is given written notice by the
transferor at the time of or within a reasonable time after said transfer,
stating the name and address of said transferee or assignee and identifying the
securities with respect to which such registration rights are being assigned.
1.10 Limitations on Subsequent Registration Rights. From
and after the date of this Agreement, the Company shall not, without the prior
written consent of Purchaser, enter into any agreement with any holder or
prospective holder of any securities of the Company which would allow such
holder or prospective holder to (a) require the Company to effect a
registration under terms and conditions inconsistent with Purchaser's
registration rights under Sections 1.2 or 1.3 hereof, or (b) include any
securities in any registration filed under Section 1.3 hereof, unless, under
the terms of such agreement, such holder or prospective holder may include such
securities in any such registration only to the extent of such holder's
allocable portion consistent with Section 1.3(b); provided, however, that the
Company may grant rights to demand registrations under which such holders shall
have priority (prior to allocation among Purchaser and other holders possessing
"piggyback" registration rights, but not prior to Purchaser's Demand rights
under Section 1.2 hereof).
1.11 Rule 144 Reporting. With a view to making available
to Purchaser the benefits of certain rules and regulations of the SEC which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use its best efforts to:
(a) at all times make and keep public information
available, as those terms are understood and defined in SEC Rule 144 or any
similar or analogous rule promulgated under the 1933 Act;
(b) file with the SEC, in a timely manner, all
reports and other documents required of the Company under the 1933 Act and 1934
Act; and
(c) so long as Purchaser owns any Registrable
Securities, furnish to Purchaser forthwith upon request: a written statement
by the Company as to its compliance with the reporting requirements of said
Rule 144 of the 1933 Act, and of
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the 1993 Act and the 1934 Act; a copy of the most recent annual or quarterly
report of the Company; and such other reports and documents as Purchaser may
reasonably request in availing itself of any rule or regulation of the SEC
allowing it to sell any such securities without registration.
SECTION 2
RESTRICTIONS ON TRANSFER
2.1 Definition of "Transfer". For purposes of this
Section 2, the term "Transfer" includes any sale, transfer, pledge,
hypothecation, assignment, encumbrance or other disposition to any person.
2.2 Restrictions on Transfer of Purchase Warrant and
Management Warrant. The Purchaser and the Company agree that, subject to
compliance with all applicable securities laws, Purchaser may Transfer the
Purchase Warrant or Management Warrant, or any portion thereof, (a) to any
wholly-owned subsidiary of Purchaser or to Infinity or any wholly-owned
subsidiary of Infinity and (b) to any other person or entity to the extent that
the right to acquire shares of Common Stock has vested pursuant to the terms of
the Purchase Warrant or Management Warrant, respectively, provided that such
transferee agrees in writing to be bound by the provisions of Section 2.3 with
respect to the shares of Common Stock issued upon exercise of either such
Warrant as if such transferee were the "Purchaser" referred to therein.
2.3 Restrictions on Transfer of Registrable Securities.
The Purchaser agrees to the following contractual restrictions (which shall be
in addition to any restrictions on transfer imposed by applicable securities
laws) on any Transfer of the Registrable Securities:
(a) The Purchaser shall not Transfer any of the
Registrable Securities under any circumstances for a period of one (1) year
following the date hereof;
(b) If the Company terminates the Management
Agreement other than pursuant to Section 3.2(b) or (c) thereof, there shall be
no restrictions on Transfer of the Registrable Securities except the one-year
restriction set forth in (a) above;
(c) If the Manager terminates the Management
Agreement, or if the Company terminates the Management Agreement pursuant to
Section 3.2(b) or (c) thereof, the Purchaser may
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Transfer without contractual restriction such of the Registrable Securities as
Purchaser could, pursuant to Section 2.3(d), permissibly Transfer immediately
prior to such termination, and may additionally Transfer all of the other
Registrable Securities without contractual restriction upon the earlier of (i)
one year following such termination and (ii) five years after the date hereof;
and
(d) If the Management Agreement is not
terminated, upon and after two years following the date hereof, the Purchaser
may sell in the aggregate twenty-five percent (25%) of the sum of (i) the
Registrable Securities then held by the Purchaser plus (ii) any Registrable
Securities which, at the time of calculating such percentage amount, could then
be acquired by the Purchaser upon exercise of the Purchase Warrant and the
Management Warrant; and such percentage amount shall be increased by
twenty-five percent (25%) on each subsequent anniversary date thereafter (i.e.,
fifty percent (50%) on the third anniversary of the date hereof, seventy-five
percent (75%) on the fourth anniversary of the date hereof, and one hundred
percent (100%) on the fifth anniversary of the date hereof).
SECTION 3
MISCELLANEOUS
3.1 Entire Agreement. This Agreement, the Securities
Purchase Agreement, the Purchase Warrant, the Management Agreement, the
Management Warrant, the Stock Purchase Agreement (as defined in the Management
Agreement) and the Voting Agreement (as defined in the Securities Purchase
Agreement) constitute the entire agreement of the parties and supersede all
prior written or oral agreements, contemporaneous oral agreements,
understandings and negotiations between the parties with respect to the subject
matter hereof.
3.2 Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware.
3.3 Amendments and Waivers. This Agreement may not be
modified, amended or waived except by written document specifically identifying
this Agreement and signed by the parties, except that waivers may be effected
by such written document if only signed by the party against which such waiver
is sought to be enforced.
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3.4 Headings. The headings included in this Agreement
are for convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
3.5 Attorneys' Fees. In the event of litigation or other
proceeding in connection with or related to this Agreement, the prevailing
party in such litigation or proceeding shall be entitled to reimbursement from
the opposing party of all reasonable expenses, including without limitation
reasonable attorney fees and expenses of investigation in connection with such
litigation or proceeding.
3.6 Notices. All notices hereunder shall be in writing
and shall be given to the respective parties by U. S. mail, personal delivery,
or facsimile transmission to their respective addresses as follows:
If to the Company: Westwood One, Inc.
9540 Washington Boulevard
Culver City, California 90232
Attention: Mr. Norman J. Pattiz
Facsimile: (310) 840-0834
with a copy to: Riordan & McKinzie
5743 Corsa Avenue, Suite 116
Westlake Village, California 91362
Attention: Lawrence C. Weeks, Esq.
Facsimile: (818) 706-2956
If to Purchaser: Infinity Network Inc.
c/o Infinity Broadcasting Corporation
600 Madison Avenue, 4th Floor
New York, New York 10022
Attention: Mr. Farid Suleman
Facsimile: (212) 898-2959
with a copy to: Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
Attention: Richard D. Bohm, Esq.
Facsimile: (212) 909-6836
All such notices shall be deemed effective upon receipt.
3.7 Successors and Assigns. Subject to Section 1.9 and
Section 2 hereof, this Agreement shall be binding upon the parties hereto and
their respective successors and permitted assigns. The Company may not assign
its rights under this Agreement without the prior written consent of Purchaser.
C-14.
3.8 Remedies, Waivers. No failure or delay on the part
of any party in the exercise of any power, right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof or of
any other right, power or privilege. Any waiver or consent shall be effective
only in the specific instance and for the specific purpose for which it was
given. The parties to this Agreement acknowledge and agree that the breach of
any of the terms of this Agreement will cause irreparable injury for which an
adequate remedy at law is not available. Accordingly, it is agreed that either
party shall be entitled to an injunction, restraining order or other equitable
relief to prevent breaches of this Agreement and to enforce specifically the
terms and provisions hereof in any court of competent jurisdiction in the
United States or any state thereof, without the requirement of posting any
bond. All rights and remedies existing under this Agreement are cumulative to
and not exclusive of, any rights or remedies available under this Agreement or
otherwise.
3.9 Severability. In the event that any provision of
this Agreement or the application of any provision hereof is declared to be
illegal, invalid or otherwise unenforceable by a court of competent
jurisdiction, such provision shall be reformed, if possible, to the extent
necessary to render it legal, valid and enforceable, or otherwise deleted, and
the remainder of this Agreement shall not be affected except to the extent
necessary to reform or delete such illegal, invalid or unenforceable provision.
3.10 Termination. The provisions of this Agreement shall
terminate and be of no further effect upon the earlier to occur of (a) the
mutual consent of the Company and Purchaser and (b) Purchaser ceasing to own or
have rights to acquire Registrable Securities.
3.11 Further Assurances. Each party shall cooperate and
take such action as may be reasonably requested by the other party in order to
carry out the provisions and purposes of this Agreement and the transactions
contemplated hereby.
3.12 Counterparts. This Agreement may be executed in two
counterparts, each of which shall be deemed an original, but which together
shall constitute one and the same instrument.
C-15.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed by their respective officers, duly authorized for such
purpose, as of the date first written above.
WESTWOOD ONE, INC.
By: /s/ Eric R. Weiss
Name: Eric R. Weiss
Title: Senior Vice President
INFINITY NETWORK INC.
By: /s/ Farid Suleman
Name: Farid Suleman
Title: Vice President - Finance
C-16.
Dates Referenced Herein and Documents Incorporated by Reference
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