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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13D-1(A) AND
AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(A)
(Amendment No. 7)
WESTWOOD ONE, INC.
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
961815107
(CUSIP Number)
Angeline C. Straka
Vice President, Secretary & Deputy General Counsel
CBS Corporation
51 West 52nd Street
New York, New York 10019
(212) 975-4321
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
March 31, 1999, April 30, 1999, June 1, 1999 and August 20, 1999
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[ ].
Note. Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities
of that Section of the Exchange Act but shall be subject to all other provisions
of the Exchange Act.
(Continued on following pages)
(Page 1 of 26 Pages)
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CUSIP No. 961815107 13D Page 2 of 26 Pages
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1 NAME OF REPORTING PERSON: CBS CORPORATION (FORMERLY
WESTINGHOUSE ELECTRIC
CORPORATION)
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY): 25-0877540
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [X]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: Pennsylvannia
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NUMBER OF 7 SOLE VOTING POWER: None
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 9,000,000
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: None
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 9,000,000
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
9,000,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 28.36%
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14 TYPE OF REPORTING PERSON: CO
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CUSIP No. 961815107 13D Page 3 of 26 Pages
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1 NAME OF REPORTING PERSON: WESTINGHOUSE CBS
HOLDING COMPANY, INC.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY): 25-1776511
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [X]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
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NUMBER OF 7 SOLE VOTING POWER: None
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 9,000,000
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: None
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 9,000,000
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
9,000,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 28.36%
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14 TYPE OF REPORTING PERSON: CO
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CUSIP No. 961815107 13D Page 4 of 26 Pages
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1 NAME OF REPORTING PERSON: CBS BROADCASTING INC.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY): 13-0590730
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [X]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: New York
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NUMBER OF 7 SOLE VOTING POWER: None
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 9,000,000
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: None
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 9,000,000
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
9,000,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 28.36%
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14 TYPE OF REPORTING PERSON: CO
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CUSIP No. 961815107 13D Page 5 of 26 Pages
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1 NAME OF REPORTING PERSON: INFINITY BROADCASTING
CORPORATION
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY): 13-4030071
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [X]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
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NUMBER OF 7 SOLE VOTING POWER: 1,000,000
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 8,000,000
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 1,000,000
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 8,000,000
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
9,000,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 28.36%
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14 TYPE OF REPORTING PERSON: CO
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CUSIP No. 961815107 13D Page 6 of 26 Pages
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1 NAME OF REPORTING PERSON: INFINITY MEDIA CORPORATION
(FORMERLY INFINITY
BROADCASTING CORPORATION)
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY): 13-2766282
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [X]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: N/A
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
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NUMBER OF 7 SOLE VOTING POWER: None
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: 8,000,000
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: None
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: 8,000,000
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
8,000,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 28.03%
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14 TYPE OF REPORTING PERSON: CO
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CUSIP No. 961815107 13D Page 7 of 26 Pages
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1 NAME OF REPORTING PERSON: INFINITY NETWORK, INC.
S.S. OR I.R.S. IDENTIFICATION NO.
OF ABOVE PERSON (ENTITIES ONLY): 52-1859471
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP: (a) [X]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS: AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEM 2(d) OR 2(e): [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION: Delaware
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NUMBER OF 7 SOLE VOTING POWER: 8,000,000
SHARES ------------------- -------------------------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER: None
OWNED BY ------------------- -------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER: 8,000,000
REPORTING ------------------- -------------------------------------------------------------------------------
PERSON WITH 10 SHARED DISPOSITIVE POWER: None
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY REPORTING PERSON:
8,000,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES:
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11): 26.03%
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14 TYPE OF REPORTING PERSON: CO
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CUSIP NO. 961815107
This Amendment No. 7 amends and supplements the statement
on Schedule 13D, dated February 14, 1994 and amended on February 10, 1995,
December 8, 1995, September 20, 1996, December 30, 1996, January 10, 1997 and
February 19, 1998 (the "Schedule 13D"), by Infinity Network, Inc. ("INI") (an
indirect wholly-owned subsidiary of Infinity Broadcasting Corporation ("Infinity
Broadcasting"), an approximately 82% indirect subsidiary of CBS Corporation
(formerly Westinghouse Electric Corporation) ("CBS")), Infinity Media
Corporation (formerly known as Infinity Broadcasting Corporation) ("Infinity
Media"), and CBS with respect to the common stock, par value $.01 per share
("Common Stock"), of Westwood One, Inc., a Delaware corporation (the "Issuer"),
as follows:
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 is amended to report that INI is a direct
wholly-owned subsidiary of Infinity Media. Infinity Media is a direct
wholly-owned subsidiary of Infinity Broadcasting. Infinity Broadcasting is a
direct approximately 82% subsidiary of CBS Broadcasting Inc. ("CBS
Broadcasting"). CBS Broadcasting is a direct wholly-owned subsidiary of
Westinghouse CBS Holding Company, Inc. ("CBS Holding"). CBS Holding is a direct
wholly-owned subsidiary of CBS. CBS Holding, CBS Broadcasting and Infinity
Broadcasting, all of which became indirect stockholders of Infinity Media and
INI (with Infinity Broadcasting becoming the direct stockholder of Infinity
Media) in December 1998 as part of a reorganization undertaken in connection
with Infinity Broadcasting's initial public offering, have been added as filing
persons for the Schedule 13D.
Schedule I of Item 2 is amended by the attached Schedule I,
which sets forth, (A) for each filing person, its state of organization, its
principal business, the address of its principal business and the address of its
principal office and (B) a list of the directors and executive officers of each
filing person setting forth the following information with respect to each such
person: (i) name, (ii) business address and (iii) present principal occupation
or employment and the name and address of any corporation or other organization
in which such employment is conducted. Except for Jan Leschly, a director of CBS
who is a Danish citizen, each person identified in Schedule I hereto is a United
States citizen.
Item 2 is further amended to report that during the last
five years, none of CBS, CBS Holding, CBS Broadcasting, Infinity Broadcasting,
Infinity Media or INI, or, to the best knowledge of any such party, any person
identified in Schedule I hereto, has been convicted in a criminal proceeding
(excluding traffic violations and similar misdemeanors) or has been subject to a
judgment, decree or final order of a judicial or administrative body of
competent jurisdiction enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
As described in Item 4 below, on August 20, 1999 INI
exercised the 1994 Warrants (as defined in Item 4 below) and thereby acquired
3,000,000 shares of Common Stock from the Issuer at a price of $3 per share (or
an aggregate of $9,000,000). The source of the funds used to make such purchase
was Infinity Broadcasting. Infinity Broadcasting's source of funds was general
working capital.
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ITEM 4. PURPOSE OF TRANSACTION
Item 4 is amended to report (i) the exercise by INI on
August 20, 1999 of warrants (the "1994 Warrants") to purchase 3,000,000 shares
of Common Stock at a price of $3.00 per share, (ii) the vesting of the First
Management Warrant, as described in Item 5 below, and (iii) the Metro Merger
Voting Agreement described below.
On June 1, 1999, Infinity Broadcasting entered into a
Parent Stockholder Voting Agreement, dated as of June 1, 1999 (the "Metro Merger
Voting Agreement"), with Metro Networks, Inc. ("Metro") in connection with the
Agreement and Plan of Merger, dated as of June 1, 1999 (the "Metro Merger
Agreement"), among the Issuer, Copter Acquisition Corp. and Metro. Pursuant to
the Metro Merger Voting Agreement, Infinity Broadcasting agreed with Metro that
it would vote all shares of Common Stock beneficially owned by it (the "Shares")
in favor of the issuance of shares of the Issuer to the stockholders of Metro in
the merger contemplated by the Merger Agreement (the "Share Issuance"). In
furtherance of such agreement, Infinity Broadcasting granted to and appointed
Metro and each of Charles I. Bortnick and Shane E. Coppola, in their respective
capacities as officers of Metro, and any individual who thereafter succeeded to
any such officer of Metro, and any other designee of Metro, each of them
individually, its irrevocable proxy and attorney-in-fact (with full power of
substitution) to vote the Shares in favor of the Share Issuance. In addition,
Infinity Broadcasting agreed that unless Metro received, prior to the record
date for the meeting of stockholders of the Issuer to vote on the Share Issuance
(which record date is the close of business on August 20, 1999 (the "Record
Date")) irrevocable written commitments from stockholders of the Issuer or other
evidence satisfactory to Metro that an adequate number of shares of Common Stock
to approve the Share Issuance would be voted in favor of such approval, Infinity
Broadcasting would, not later than the Record Date, exercise or cause to be
exercised the warrants to purchase up to 3,000,000 shares of Common Stock. INI
exercised the 1994 Warrants on August 20, 1999. The 1994 Warrants had been
purchased by INI in 1994. INI acquired the shares pursuant to the exercise of
the 1994 Warrants for investment purposes.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
Item 5 is amended to report (i) the termination of the
Voting Agreement, dated as of February 3, 1994 (the "Voting Agreement"), by and
among the Issuer, INI and Norman J. Pattiz ("Pattiz") and (ii) the vesting of
Infinity Broadcasting's First Management Warrant, as hereinafter defined, to
purchase 1,000,000 shares of Common Stock at a price of $20.00 per share.
Termination of the Voting Agreement. Pursuant to the Voting
Agreement, Pattiz and INI agreed to vote all shares of capital stock of the
Issuer held by them to elect their respective designees to the Board of
Directors of the Issuer. Throughout the term of the Voting Agreement, for the
purposes of calculating the percentage of Common Stock beneficially owned by
INI, certain shares of Common Stock and Class B Stock beneficially owned by
Pattiz (the "Pattiz Shares"), as well as the 1994 Warrants, were included in
shares of Common Stock beneficially owned by INI.
The terms of the Voting Agreement provided that such
agreement would terminate upon the earlier of (i) February 3, 2004 or (ii) the
termination of the Management Agreement, dated as of February 3, 1994 and
amended as of December 16, 1996 and March 31, 1997 (the "Original Management
Agreement"). The Original Management Agreement terminated pursuant to its terms
on March 30, 1999 and,
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accordingly, the Voting Agreement also terminated on such date. Therefore, after
March 30, 1999, INI no longer shared voting power with respect to the Pattiz
Shares.
Management Warrants. On June 1, 1999, as additional
compensation to Infinity Broadcasting under the Management Agreement, dated as
of March 30, 1999, by and between the Issuer and Infinity Broadcasting (the
"Management Agreement"), the Issuer issued to Infinity Broadcasting two warrants
(the "Management Warrants"), each dated as of March 30, 1999, to purchase up to
an aggregate of 2,000,000 shares of Common Stock exercisable as follows: (i) an
aggregate of 1,000,000 shares of Common Stock at a price of $20.00 per share if
the Common Stock reaches a price per share of at least $30.00 on at least twenty
(20) out of thirty (30) consecutive days during which the national securities
exchanges are open for trading (the "First Management Warrant") and (ii) an
aggregate of 1,000,000 shares of Common Stock at a price of $25.00 per share if
the Common Stock reaches a price per share of at least $40.00 on at least twenty
(20) out of thirty (30) consecutive days during which the national securities
exchanges are open for trading (the "Second Management Warrant"). On April 30,
1999, the Common Stock reached a price of at least $30.00 per share on at least
20 out of 30 consecutive days during which the national securities exchanges
were open for trading, and, accordingly, the First Management Warrant vested.
The Management Warrants may be exercised at any time prior to the close of
business on March 31, 2009, after which time such Warrants will terminate.
Item 5 is further amended to report that, (a) effective
March 31, 1999, the filing persons beneficially owned an aggregate of 8,000,000
shares of Common Stock and (b) effective April 30, 1999 (i) CBS, CBS Holding and
CBS Broadcasting indirectly beneficially owned an aggregate of 9,000,000 shares
of Common Stock, (ii) Infinity Broadcasting beneficially owned an aggregate of
1,000,000 shares (directly) and 8,000,000 shares (indirectly) of Common Stock,
(iii) Infinity Media indirectly beneficially owned an aggregate of 8,000,000
shares of Common Stock and (iv) INI directly beneficially owned an aggregate of
8,000,000 shares of Common Stock.
As previously reported, the filing persons are aware that
certain executive officers and directors of the filing persons own Common Stock
of Westwood and/or hold options to acquire Common Stock of the Issuer. Item 5 is
further amended to report that as of the date of this filing, these executive
officers and directors beneficially owned 1,178,149 shares of Common Stock.
Based on the 30,735,035 shares of Common Stock outstanding
as of August 20, 1999, as reported by the Issuer in its Registration Statement
on Form S-4 (File No. 333-85609) filed with the Securities and Exchange
Commission on August 20, 1999, CBS, CBS Holding, CBS Broadcasting and Infinity
Broadcasting each were the beneficial owners of approximately 28.4%, and
Infinity Media and INI each were the beneficial owners of approximately 26%, of
the outstanding shares of Common Stock. INI has sole power to vote and to
dispose or to direct the disposition of 8,000,000 shares of Common Stock.
Infinity Media has shared power to vote and to dispose or to direct the
disposition of 8,000,000 shares of Common Stock. Infinity Broadcasting has sole
power to vote and to dispose or to direct the disposition of 1,000,000 shares of
Common Stock and shared power to vote and to dispose or to direct the
disposition of 8,000,000 shares of Common Stock. Each of CBS, CBS Holding and
CBS Broadcasting has shared power to vote and to dispose or to direct the
disposition of 9,000,000 shares of Common Stock.
Item 5 is further amended to report that, except as
described in Item 4, no transactions in shares of Common Stock have been
effected during the past sixty days
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by the filing persons or, to the best of the filing persons' knowledge, by any
person identified in Schedule I hereto.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS
WITH RESPECT TO SECURITIES OF THE ISSUER.
Item 6 is amended to report (i) the execution of the Metro
Merger Voting Agreement, as described in Item 4 above and (ii) the termination
of the Voting Agreement, as described in Item 5 above under "Termination of the
Voting Agreement." The description of the Metro Merger Voting Agreement does not
purport to be complete and is qualified in its entirety by reference to such
agreement attached hereto as Exhibit 1.
Reference is made to the description of the Management
Warrants in Item 5 above. The description of the Management Warrants set forth
in Item 5 does not purport to be complete and is qualified in its entirety by
reference to the Management Warrants attached hereto as Exhibits 2 and 3.
Item 6 is further amended to report that on June 1, 1999
Infinity Broadcasting and the Issuer entered into a Registration Rights
Agreement, dated as of March 30, 1999 (the "Registration Rights Agreement"), to
provide certain registration rights and impose certain contractual restrictions
on the transfer of the Management Warrants and all shares of Common Stock which
Infinity Broadcasting has the right to acquire under the Management Warrants
(collectively, the "Registrable Securities").
Subject to compliance with applicable securities laws,
Infinity Broadcasting may transfer either Management Warrant, or any portion
thereof, (a) to a wholly-owned subsidiary of Infinity Broadcasting or (b) to the
extent the right to acquire shares of Common Stock thereunder has vested to any
other person or entity that agrees in writing to the restrictions on transfer
described below.
In addition to any transfer restrictions imposed by
applicable securities laws, the Registration Rights Agreement imposes the
following restrictions on Infinity Broadcasting's ability to transfer the
Registrable Securities: (i) Infinity Broadcasting may not transfer any
Registrable Securities until March 30, 2000, (ii) if the Issuer terminates the
Management Agreement as a result of certain bankruptcy events with respect to
Infinity Broadcasting there will be no further restriction on transfer
thereafter other than under clause (i) above, (iii) if Infinity Broadcasting
terminates the Management Agreement or if the Issuer terminates the Management
Agreement with or without cause, Infinity Broadcasting may transfer the
Registrable Securities it would be eligible to transfer under clause (iv) below,
and may also transfer all other Registrable Securities upon the earlier of (x)
one year following the termination, and (y) March 30, 2004, and (iv) if the
Management Agreement has not been terminated, Infinity Broadcasting may sell 25%
of the number of Registrable Securities then held by it (including any
Registrable Securities which could then be acquired upon the exercise of the
Management Warrants) on March 30, 2001, which number will be increased by 25% on
March 30 of each following year so that 100% of the Registrable Securities may
be transferred without contractual restrictions on March 30, 2004.
The Registration Rights Agreement will terminate upon the
earlier of the mutual consent of the Issuer and Infinity
Broadcasting or when Infinity Broadcasting ceases to own or have rights to
acquire the Registrable Securities.
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The description of the Registration Rights Agreement set
forth above does not purport to be complete and is qualified in its entirety by
reference to the Registration Rights Agreement attached hereto as Exhibit 4.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
1. Parent Stockholder Voting Agreement, dated as of June 1, 1999, between
Metro Networks, Inc. and Infinity Broadcasting Corporation.
2. First Management Warrant, dated as of March 30, 1999, by the Issuer in
favor of Infinity Broadcasting Corporation.
3. Second Management Warrant, dated as of March 30, 1999, by the Issuer in
favor of Infinity Broadcasting Corporation.
4. Registration Rights Agreement, dated as of March 30, 1999, between the
Issuer and Infinity Broadcasting Corporation.
Any information previously included in the Schedule 13D, as
amended, and not revised or modified as described in this Amendment No. 7,
remains unchanged.
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SIGNATURE
After reasonable inquiry and to the best of their knowledge
and belief, the undersigned certify that the information set forth in this
Amendment No. 7 is true, complete and correct.
Date: August ___, 1999
CBS CORPORATION
By: /s/ Angeline C. Straka
----------------------------------
Angeline C. Straka
Vice President and Secretary
WESTINGHOUSE CBS HOLDING COMPANY, INC.
By: /s/ Angeline C. Straka
----------------------------------
Angeline C. Straka
Vice President and Secretary
CBS BROADCASTING INC.
By: /s/ Angeline C. Straka
----------------------------------
Angeline C. Straka
Vice President and Secretary
INFINITY BROADCASTING CORPORATION
By: /s/ Angeline C. Straka
----------------------------------
Angeline C. Straka
Vice President and Secretary
INFINITY MEDIA CORPORATION
By: /s/ Angeline C. Straka
----------------------------------
Angeline C. Straka
Vice President and Secretary
INFINITY NETWORK, INC.
By: /s/ Angeline C. Straka
----------------------------------
Angeline C. Straka
Vice President and Secretary
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WGM DRAFT
09/01/99
SCHEDULE I
PART A
INFORMATION REGARDING FILING PERSONS
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FILING PERSON, STATE OF ORGANIZATION AND PRINCIPAL BUSINESS ADDRESS OF PRINCIPAL BUSINESS AND PRINCIPAL OFFICE
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CBS Corporation 51 West 52nd Street
Pennsylvania New York, NY 10019
Television and radio broadcasting; cable programming
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Westinghouse CBS Holding Company, Inc. 51 West 52nd Street
Delaware New York, NY 10019
Television and radio broadcasting; cable programming
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CBS Broadcasting Inc. 51 West 52nd Street
New York New York, NY 10019
Television and radio broadcasting; cable programming
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Infinity Broadcasting Corporation 40 West 57th Street
Delaware New York, NY 10019
Radio broadcasting and outdoor advertising
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Infinity Media Corporation 40 West 57th Street
Delaware New York, NY 10019
Radio broadcasting and outdoor advertising
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Infinity Network, Inc. 40 West 57th Street
Delaware New York, NY 10019
Radio broadcasting
- ---------------------------------------------------------------------------- ------------------------------------------------------
</TABLE>
I-1
<PAGE>
PART B
I. CBS CORPORATION
NAME, BUSINESS ADDRESS, AND PRESENT
PRINCIPAL OCCUPATION OR EMPLOYMENT OF
THE DIRECTORS AND EXECUTIVE OFFICERS OF
CBS CORPORATION
DIRECTORS OF CBS
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- ------------------------------------------------------
NAME AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS OF EMPLOYMENT
- ---------------------------------------------------------------------------- ------------------------------------------------------
<S> <C>
George H. Conrades Chairman and CEO
AKAMAI Technologies AKAMAI Technologies
201 Broadway 201 Broadway
Cambridge, MA 02139 Cambridge, MA 02139
- ---------------------------------------------------------------------------- ------------------------------------------------------
Martin C. Dickinson Retired Senior Vice President
P.O. Box 7078 Scripps Bank
Rancho Santa Fe, CA 92067 P.O. Box 7078
Rancho Santa Fe, CA 92067
- ---------------------------------------------------------------------------- ------------------------------------------------------
William H. Gray, III President and Chief Executive Officer
The College Fund/UNCF The College Fund/UNCF
8260 Willow Oaks Corporate Drive 8260 Willow Oaks Corporate Drive
P.O. Box 10444 P.O. Box 10444
Fairfax, VA 22031 Fairfax, VA 22031
- ---------------------------------------------------------------------------- ------------------------------------------------------
Mel Karmazin President and Chief Executive Officer
CBS Corporation CBS Corporation
51 W. 52nd Street Chairman, President, and Chief Executive Officer
New York, NY 10019 Infinity Broadcasting Corporation
51 West 52nd Street
New York, NY 10019
- ---------------------------------------------------------------------------- ------------------------------------------------------
Jan Leschly Chief Executive
SmithKline Beecham SmithKline Beecham
P.O. Box 7929 P.O. Box 7929
Philadelphia, PA 19101 Philadelphia, PA 19101
- ---------------------------------------------------------------------------- ------------------------------------------------------
David T. McLaughlin Chairman, CBS Corporation
The Gallery - Suite 205 Chairman and Chief Executive Officer
46 Newport Road Orion Safety Products
New London, NH 03257 P.O. Box 1047
Easton, MD 21601
- ---------------------------------------------------------------------------- ------------------------------------------------------
</TABLE>
I-2
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- ------------------------------------------------------
<S> <C>
Leslie Moonves Executive Vice President
CBS Corporation CBS Corporation;
7800 Beverly Boulevard President and Chief Executive Officer
Los Angeles, CA 90036 CBS Television
7800 Beverly Boulevard
Los Angeles, CA 90036
- ---------------------------------------------------------------------------- ------------------------------------------------------
Richard R. Pivirotto President
Richard R. Pivirotto Co., Inc. Richard R. Pivirotto Co., Inc.
111 Clapboard Ridge Rd. 111 Clapboard Ridge Rd.
Greenwich, CT 06830 Greenwich, CT 06830
- ---------------------------------------------------------------------------- ------------------------------------------------------
Raymond W. Smith Chairman
Rothschild North America Inc. Rothschild North America Inc.
1251 Avenue of the Americas 1251 Avenue of the Americas
New York, NY 10020 New York, NY 10020
- ---------------------------------------------------------------------------- ------------------------------------------------------
Paula Stern President
The Stern Group, Inc. The Stern Group, Inc.
3314 Ross Place NW 3314 Ross Place NW
Washington, DC 20008 Washington, DC 20008
- ---------------------------------------------------------------------------- ------------------------------------------------------
Robert D. Walter Chairman and Chief Executive Officer
Cardinal Health, Inc. Cardinal Health, Inc.
7000 Cardinal Place 7000 Cardinal Place
Dublin, OH 43017 Dublin, OH 43017
- ---------------------------------------------------------------------------- ------------------------------------------------------
</TABLE>
I-3
<PAGE>
EXECUTIVE OFFICERS OF CBS
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- ------------------------------------------------------
NAME, TITLE AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS OF EMPLOYMENT
- ---------------------------------------------------------------------------- ------------------------------------------------------
<S> <C>
Mel Karmazin, President and Chief Executive Officer
President and Chief Executive Officer CBS Corporation, and
CBS Corporation Chairman, President and Chief Executive Officer
51 West 52nd Street Infinity Broadcasting Corporation
New York, NY 10019 51 West 52nd Street
New York, NY 10019
- ---------------------------------------------------------------------------- ------------------------------------------------------
Louis J. Briskman, Executive Vice President and General Counsel
Executive Vice President and General Counsel CBS Corporation
CBS Corporation 51 West 52nd Street
51 West 52nd Street New York, NY 10019
New York, NY 10019
- ---------------------------------------------------------------------------- ------------------------------------------------------
Robert G. Freedline, Vice President and Controller
Vice President and Controller CBS Corporation
CBS Corporation 51 West 52nd Street
51 West 52nd Street New York, NY 10019
New York, NY 10019
- ---------------------------------------------------------------------------- ------------------------------------------------------
Leslie Moonves, Executive Vice President,
Executive Vice President CBS Corporation;
CBS Corporation President and Chief Executive Officer,
7800 Beverly Boulevard CBS Television
Los Angeles, CA 90036 7800 Beverly Boulevard
Los Angeles, CA 90036
- ---------------------------------------------------------------------------- ------------------------------------------------------
Fredric G. Reynolds, Executive Vice President and Chief Financial Officer
Executive Vice President and Chief Financial Officer CBS Corporation
CBS Corporation 51 West 52nd Street
51 West 52nd Street New York, NY 10019
New York, NY 10019
- ---------------------------------------------------------------------------- ------------------------------------------------------
Farid Suleman, Vice President and Treasurer
Vice President and Treasurer CBS Corporation, and
CBS Corporation Executive Vice President, Chief Financial Officer and
40 West 57th Street Treasurer Infinity Broadcasting Corporation
New York, NY 10019 40 West 57th Street
New York, NY 10019
- ---------------------------------------------------------------------------- ------------------------------------------------------
</TABLE>
I-4
<PAGE>
II. WESTINGHOUSE CBS HOLDING COMPANY, INC.
NAME, BUSINESS ADDRESS, AND PRESENT
PRINCIPAL OCCUPATION OR EMPLOYMENT OF
THE DIRECTORS AND EXECUTIVE OFFICERS OF
WESTINGHOUSE CBS HOLDING COMPANY, INC.
DIRECTORS OF WESTINGHOUSE CBS HOLDING COMPANY, INC.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- -----------------------------------------------------
NAME AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS OF EMPLOYMENT
- ---------------------------------------------------------------------------- -----------------------------------------------------
<S> <C>
Mel Karmazin Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- -----------------------------------------------------
Louis J. Briskman Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- -----------------------------------------------------
Fredric G. Reynolds Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- -----------------------------------------------------
</TABLE>
I-5
<PAGE>
EXECUTIVE OFFICERS OF WESTINGHOUSE CBS HOLDING COMPANY, INC.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- ------------------------------------------------------
NAME, TITLE AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS OF EMPLOYMENT
- ---------------------------------------------------------------------------- ------------------------------------------------------
<S> <C>
Mel Karmazin, Same as Schedule I(B)(I)
Chairman and Chief Executive Officer
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Louis J. Briskman, Same as Schedule I(B)(I)
Executive Vice President and General Counsel
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Fredric G. Reynolds, Same as Schedule I(B)(I)
Executive Vice President and Chief Financial Officer
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Leslie Moonves, Same as Schedule I(B)(I)
Executive Vice President
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
</TABLE>
I-6
<PAGE>
III. CBS BROADCASTING INC.
NAME, BUSINESS ADDRESS, AND PRESENT
PRINCIPAL OCCUPATION OR EMPLOYMENT OF
THE DIRECTORS AND EXECUTIVE OFFICERS OF
CBS BROADCASTING INC.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- -----------------------------------------------------
NAME AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS OF EMPLOYMENT
- ---------------------------------------------------------------------------- -----------------------------------------------------
<S> <C>
Mel Karmazin Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- -----------------------------------------------------
Louis J. Briskman Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- -----------------------------------------------------
Fredric G. Reynolds Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- -----------------------------------------------------
</TABLE>
I-7
<PAGE>
EXECUTIVE OFFICERS OF CBS BROADCASTING INC.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- ------------------------------------------------------
NAME, TITLE AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS OF EMPLOYMENT
- ---------------------------------------------------------------------------- ------------------------------------------------------
<S> <C>
Mel Karmazin, Same as Schedule I(B)(I)
Chairman and Chief Executive Officer
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Louis J. Briskman, Same as Schedule I(B)(I)
Executive Vice President and General Counsel
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Leslie Moonves, Same as Schedule I(B)(I)
Executive Vice President
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Fredric G. Reynolds, Same as Schedule I(B)(I)
Executive Vice President and
Chief Financial Officer
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
</TABLE>
I-8
<PAGE>
IV. INFINITY BROADCASTING CORPORATION
NAME, BUSINESS ADDRESS, AND PRESENT
PRINCIPAL OCCUPATION OR EMPLOYMENT OF
THE DIRECTORS AND EXECUTIVE OFFICERS OF
INFINITY BROADCASTING CORPORATION
DIRECTORS OF INFINITY BROADCASTING CORPORATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- ------------------------------------------------------
NAME AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS OF EMPLOYMENT
- ---------------------------------------------------------------------------- ------------------------------------------------------
<S> <C>
Mel Karmazin Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Farid Suleman Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
George H. Conrades Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Robert D. Walter Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Paula Stern Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Richard R. Pivirotto Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Jeffrey Sherman President and Chief Operating Officer
Bloomingdale's Inc. Bloomingdale's Inc.
1000 Third Avenue 1000 Third Avenue
New York, N.Y. 10022 New York, N.Y. 10022
- ---------------------------------------------------------------------------- ------------------------------------------------------
</TABLE>
I-9
<PAGE>
EXECUTIVE OFFICERS OF INFINITY BROADCASTING CORPORATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- ------------------------------------------------------
NAME, TITLE AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS OF EMPLOYMENT
- ---------------------------------------------------------------------------- ------------------------------------------------------
<S> <C>
Mel Karmazin, Same as Schedule I(B)(I)
Chairman, President and Chief Executive Officer
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Farid Suleman, Same as Schedule I(B)(I)
Executive Vice President, Chief Financial Officer and Treasurer
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Daniel R. Mason, Executive Vice President of Infinity Broadcasting
Executive Vice President, Corporation and President, Infinity
Infinity Broadcasting, and Radio Group
President, c/o First Media Corporation
Infinity Radio Group 10220 River Road
c/o First Media Corporation Potomac, Maryland 20854
10220 River Road
Potomac, Maryland 20854
- ---------------------------------------------------------------------------- ------------------------------------------------------
William M. Apfelbaum, President and Chief Executive Officer,
President and Chief Executive Officer TDI Worldwide, Inc.
TDI Worldwide, Inc. 275 Madison Avenue, 8th Floor
275 Madison Avenue, 8th Floor New York, NY 10016
New York, NY 10016
- ---------------------------------------------------------------------------- ------------------------------------------------------
</TABLE>
I-10
<PAGE>
V. INFINITY MEDIA CORPORATION
NAME, BUSINESS ADDRESS, AND PRESENT
PRINCIPAL OCCUPATION OR EMPLOYMENT OF
THE DIRECTORS AND EXECUTIVE OFFICERS OF
INFINITY MEDIA CORPORATION
DIRECTORS OF INFINITY MEDIA CORPORATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- ------------------------------------------------------
NAME AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS OF EMPLOYMENT
- ---------------------------------------------------------------------------- ------------------------------------------------------
<S> <C>
Mel Karmazin Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Farid Suleman Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
</TABLE>
EXECUTIVE OFFICERS OF INFINITY MEDIA CORPORATION
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- ------------------------------------------------------
NAME, TITLE AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS OF EMPLOYMENT
- ---------------------------------------------------------------------------- ------------------------------------------------------
<S> <C>
Mel Karmazin, Same as Schedule I(B)(I)
Chairman, President and Chief Executive Officer
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Farid Suleman, Same as Schedule I(B)(I)
Executive Vice President, Chief Financial Officer and Treasurer
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
</TABLE>
I-11
<PAGE>
VI. INFINITY NETWORK, INC.
NAME, BUSINESS ADDRESS, AND PRESENT
PRINCIPAL OCCUPATION OR EMPLOYMENT OF
THE DIRECTORS AND EXECUTIVE OFFICERS OF
INFINITY NETWORK INC.
DIRECTORS OF INFINITY NETWORK, INC.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- ------------------------------------------------------
NAME AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS OF EMPLOYMENT
- ---------------------------------------------------------------------------- ------------------------------------------------------
<S> <C>
Mel Karmazin Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Farid Suleman Same as Schedule I(B)(I)
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
</TABLE>
EXECUTIVE OFFICERS OF INFINITY NETWORK, INC.
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------- ------------------------------------------------------
NAME, TITLE AND BUSINESS ADDRESS PRESENT PRINCIPAL OCCUPATION AND
ADDRESS OF EMPLOYMENT
- ---------------------------------------------------------------------------- ------------------------------------------------------
<S> <C>
Mel Karmazin, Same as Schedule I(B)(I)
Chairman, President and Chief Executive Officer
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
Farid Suleman, Same as Schedule I(B)(I)
Executive Vice President, Chief Financial Officer and Treasurer
Same as Schedule I(B)(I)
- ---------------------------------------------------------------------------- ------------------------------------------------------
</TABLE>
<PAGE>
EXHIBITS
1. Parent Stockholder Voting Agreement, dated as of June 1, 1999, between
Metro Networks, Inc. and Infinity Broadcasting Corporation.
2. First Management Warrant, dated as of March 30, 1999, by the Issuer in
favor of Infinity Broadcasting Corporation.
3. Second Management Warrant, dated as of March 30, 1999, by the Issuer in
favor of Infinity Broadcasting Corporation.
4. Registration Rights Agreement, dated as of March 30, 1999, between the
Issuer and Infinity Broadcasting Corporation.
I-13
PARENT STOCKHOLDER VOTING AGREEMENT
-----------------------------------
PARENT STOCKHOLDER VOTING AGREEMENT, dated as of June 1, 1999 (this
"Agreement"), by and among METRO NETWORKS, INC., a Delaware corporation (the
"Company"), and INFINITY BROADCASTING CORPORATION, a Delaware corporation (the
"Stockholder").
WHEREAS, concurrently herewith, the Company, Copter Acquisition
Corp., a Delaware corporation ("Merger Sub"), and Westwood One, Inc. a Delaware
corporation ("Parent"), are entering into an Agreement and Plan of Merger (the
"Merger Agreement"; capitalized terms used without definition herein having the
meanings ascribed thereto in the Merger Agreement);
WHEREAS, among other things, the Merger Agreement provides for the
merger (the "Merger") of Merger Sub into the Company, and the Share Issuance
pursuant thereto;
WHEREAS, the Stockholder is the record and beneficial owner of the
number of shares ("Shares") of each class of capital stock of Parent entitled to
vote ("Voting Stock") set forth opposite its name in Schedule I hereto;
WHEREAS, approval of the Share Issuance by Parent's stockholders is
required in order to consummate the Merger;
WHEREAS, the Board of Directors of Parent has, prior to the execution
of this Agreement, duly and validly approved and adopted the Merger Agreement
and the Share Issuance, and has resolved and agreed to recommend to its
stockholders that they approve the Share Issuance, and such approval, adoption
and recommendation has not been withdrawn;
WHEREAS, the Stockholder is executing this Agreement (i) as an
inducement to the Company to enter into and execute the Merger Agreement and
(ii) in reliance upon the representations, warranties, agreements and covenants
of the Company set forth in the Merger Agreement; and
WHEREAS, certain holders of shares of the Company capital stock are
concurrently executing the Company Stockholder Voting Agreement agreeing to vote
for the Merger Agreement as an inducement to Parent to enter into and execute
the Merger Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
Section 1. Agreement to Vote. The Stockholder agrees that,
during the term of this Agreement, such Stockholder shall, from time to time, at
any meeting (whether annual or special and whether or not an adjourned or
postponed meeting) of stockholders of Parent, however called, or in connection
with any written consent of the
<PAGE>
holders of any of the Voting Stock, in either case, prior to the earlier of the
Effective Time and the termination of this Agreement, appear at such meeting or
otherwise cause the Shares to be counted as present thereat for purposes of
establishing a quorum, and such Stockholder shall vote or consent (or cause to
be voted or consented), in person or by proxy, all Shares, and any other voting
securities of Parent (whether acquired heretofore or hereafter), that are
beneficially owned by such Stockholder or its wholly-owned Affiliates or as to
which such Stockholder has, directly or indirectly, the right to vote or direct
the voting, in favor of the approval and adoption of the Share Issuance. The
Stockholder agrees, during the period commencing on the date hereof and ending
on the earlier of the Effective Time and the termination of this Agreement, not
to, and not to permit any of its wholly-owned Affiliates to, vote or execute any
written consent in lieu of a stockholders meeting or vote of Parent, if such
consent or vote by the stockholders of Parent would be inconsistent with or
frustrate the purposes or terms of this Agreement or the Merger Agreement.
In furtherance and not in limitation of the foregoing, the
Stockholder hereby grants to, and appoints, the Company and each of Charles I.
Bortnick and Shane E. Coppola, in their respective capacities as officers of the
Company, and any individual who shall hereafter succeed to any such officer of
the Company, and any other designee of the Company, each of them individually,
its irrevocable proxy and attorney-in-fact (with full power of substitution) to
vote the Shares as indicated in this Section 1. The Stockholder intends this
proxy to be irrevocable and coupled with an interest and will take such further
action and execute such other instruments as may be necessary to effectuate the
intent of this proxy.
The Stockholder hereby revokes any and all previous proxies with respect to its
Shares or any other voting securities of Parent that may relate to the voting of
its Voting Stock in accordance with the provisions of this Section 1.
Section 2. Exercise of Warrants. Not later than the second
business day immediately prior to the date established by the Parent Board as
the record date (the "Record Date") for the Parent Stockholders Meeting, the
Stockholder shall confer with the Company with respect to the anticipated voting
of shares of Parent Common Stock with respect to the Share Issuance. If the
Company has not received irrevocable written commitments from stockholders or
other evidence satisfactory to the Company that an adequate number of shares of
Parent Common Stock to approve the Share Issuance at the Parent Stockholders
Meeting, the Company shall so advise the Stockholders in writing not later than
the first business day prior to the Record Date and the Stockholder shall, not
later than the Record Date, exercise such number of warrants to acquire Parent
Common Stock equal to the lesser of (a) such number as shall be reasonably
requested by the Company, in its good faith judgment, in order to make it
reasonably likely that the Parent Requisite Vote will be obtained and (b) the
excess of 3 million minus the number of shares of Parent Common Stock acquired
by the Stockholder or its affiliates between the date hereof and the day
immediately preceding the Record Date. The provisions of this Section 2 shall
automatically be of no further force or effect if holders of shares of Parent
Common Stock or Parent Class B Stock enter into one or more voting agreements in
favor of the Company substantially to the effect of this Agreement (other than
this
<PAGE>
Section 2) such that the aggregate number of votes represented by such
agreements and this Agreement is adequate to achieve the Parent Requisite Vote.
Section 3. Restriction on Transfer, Proxies and
Non-Interference. Except as contemplated by this Agreement, the Stockholder
agrees not to, directly or indirectly, (i) offer for sale, sell, transfer,
tender, pledge, encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to, or
consent to the offer for sale, transfer, tender, pledge, encumbrance, assignment
or other disposition of, any or all of the Shares or any interest therein; (ii)
grant any proxies or powers of attorney, deposit any Shares into a voting trust
or enter into a voting agreement with respect to any Shares; or (iii) take any
action that would make any representation or warranty of such Stockholder
contained herein untrue or incorrect, or have the effect of preventing or
disabling the Stockholder from performing the Stockholder's obligations pursuant
to this Agreement or the Company's obligations under the Merger Agreement.
Section 4. Further Assurances. Each party shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or appropriate to effectuate, carry out and
comply with all of its obligations under this Agreement.
Section 5. Representations and Warranties of the Company.
The Company represents and warrants to the Stockholder as follows:
(a) This Agreement has been approved by the Board of
Directors of the Company, representing all necessary corporate action on the
part of the Company for the execution and performance hereof and thereof by the
Company (no action by the stockholders of the Company being required).
(b) This Agreement has been duly executed and delivered by
a duly authorized officer of the Company.
(c) This Agreement constitutes the valid and binding
agreement of the Company, enforceable against the Company in accordance with its
terms.
(d) The execution and delivery of this Agreement by the
Company does not violate or breach, and will not give rise to any violation or
breach, of the Company's charter or bylaws, or, except as will not materially
impair its ability to effectuate, carry out or comply with all of the terms of
this Agreement or the Merger Agreement, any Law, Governmental Entity approval or
contract by which the Company or its subsidiaries or their respective assets or
properties may be bound.
Section 6. Representations and Warranties of the
Stockholders. The Stockholder represents and warrants to the Company as follows:
(a) Schedule I sets forth, opposite the Stockholder's name,
the number and type of Shares of which such Stockholder is the record or
beneficial owner and the
<PAGE>
number of votes per share that the Stockholder is entitled to with respect to
the Merger Agreement. The Stockholder is the lawful owner of such Shares, free
and clear of all liens, charges, options, rights, encumbrances, stockholders
agreements, voting agreements, agreements to transfer or otherwise dispose of
such Shares and commitments of every kind, other than this Agreement and as
disclosed in Schedule II and has the sole power to vote (or cause to be voted)
the Shares as set forth in this Agreement. Except as set forth on such Schedule
I, neither the Stockholder nor any of its Affiliates owns or holds any rights to
acquire any additional shares of any class of Voting Stock or other securities
of Parent or any interest therein or any voting rights with respect to any
additional shares of Voting Stock or any other securities of Parent.
(b) This Agreement has been duly executed and delivered by
a duly authorized officer of the Stockholder.
(c) This Agreement constitutes the valid and binding
agreement of the Stockholder, enforceable against such Stockholder in accordance
with its terms.
(d) The execution and delivery of this Agreement by the
Stockholder does not violate or breach, and will not give rise to any violation
or breach, of such Stockholder's charter, by-laws, trust instrument or
partnership agreement, to the extent applicable or, except as will not
materially impair the ability of such Stockholder to effectuate, carry out or
comply with all of the terms of this Agreement, any Law, third party consent,
approval, filing, registration or similar requirement of any Governmental Entity
or any agreement or contract by which such Stockholder or its assets or
properties may be bound.
Section 7. Effectiveness and Termination. In the event the
Merger Agreement is terminated in accordance with its terms or immediately upon
the Effective Time, this Agreement shall automatically terminate and be of no
further force or effect. Upon such termination, except for any rights any party
may have in respect of any breach by any other party of its obligations
hereunder, none of the parties hereto shall have any further obligation or
liability hereunder. This Agreement shall continue in full force and effect
despite any amendment or other modification of, or any consent or waiver under,
the Merger Agreement; provided, however, (A) that any amendment by the parties
to the Merger Agreement to (x) the Exchange Ratio or the Merger Consideration
(each as defined in Section 2.1(b) of the Merger Agreement), or (y) Article 7 of
the Merger Agreement entitled "Termination; Amendment; Waiver" or (B) the waiver
on or prior to the Closing Date by Parent of any material condition precedent
set forth in Article 6 of the Merger Agreement, shall require the written
consent of the Stockholder, failing which this Agreement may be terminated in
writing by the Stockholder. In any event, if the Effective Time shall not have
occurred on or before the Termination Date, this Agreement may be terminated in
writing by the Stockholder and it shall be of no further force or effect as to
such Stockholder.
Section 8. Voting Agreement. Stockholder agrees that it
shall enter into a voting agreement with David Saperstein at the Effective Time
pursuant to which the Stockholder shall agree, subject to any applicable laws or
regulations of the exchange
<PAGE>
where the Company's securities are listed, to vote all shares of capital stock
of the Company entitled to vote at meetings of the stockholders of the Company
for the election of David Saperstein's designees to the Company's Board of
Directors, to the extent such designees have been nominated by the Board of
Directors or a committee thereof, for election at such meeting.
Section 9. Reasonable Best Efforts. To the extent
consistent with applicable law, Stockholder agrees to use its reasonable best
efforts to cooperate with Parent to cause the Share Issuance to be approved by
the stockholders of Parent.
Section 10. Miscellaneous.
(a) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly given upon receipt) by delivery in person, by cable,
telegram, confirmed facsimile or telex, or by first class mail (postage prepaid,
return receipt requested), to the other party as follows:
if to the Company, to
Metro Networks, Inc.
681 Fifth Avenue
New York, New York 10022
Attention: Gary Worobow
Facsimile: (212) 750-5393
with a copy to: Paul, Hastings, Janofsky & Walker, LLP
399 Park Avenue
New York, New York
Attention: Neil A. Torpey, Esq.
Facsimile: (212) 319-4090
if to Stockholder, to
Infinity Broadcasting Corporation
40 West 57th Street
New York, New York 10019
Attention: Farid Suleman
Facsimile: (212) 314-9336
with a copy to Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153-0119
Attention: Howard Chatzinoff, Esq.
Facsimile: (212) 310-8007
or to such other address as the person to whom notice is given may have
previously furnished to the other in writing in the manner set forth above.
<PAGE>
(b) Descriptive Headings. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(c) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
(d) Entire Agreement; No Third Party Beneficiaries. This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto, and nothing in this Agreement, express or
implied, is intended to or shall confer upon any other Person any right, benefit
or remedy of any nature whatsoever under or by reason of this Agreement.
(e) Waiver of Jury Trial. Each party hereto waives, to the
fullest extent permitted by applicable law, any right it may have to a trial by
jury in respect of any litigation directly or indirectly arising out of, under
or in connection with this Agreement.
(f) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware applicable to
contracts made, executed, delivered and performed wholly within such state and,
in any case, without regard to the principles of conflicts of laws of such
state.
(g) Severability. If any term or other provision of this
Agreement is invalid, illegal or unenforceable, all other provisions of this
Agreement shall remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party.
(h) Assignment. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto, in whole or in part (whether by operation of law or otherwise),
without the prior written consent of the other parties hereto and the written
undertaking of the assignee to be bound by the terms of this Agreement, and any
attempt to make any such assignment without such consent shall be null and void.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by the parties and their respective successors
and permitted assigns.
(i) Submission to Jurisdiction; Waivers. Each of the
Company and the Stockholder irrevocably agrees that any legal action or
proceeding with respect to this Agreement or for recognition and enforcement of
any judgment in respect hereof brought by the other party hereto or its
successors or assigns may be brought and determined in the Chancery or other
Courts of the State of Delaware, and each of the Company and the Stockholder
hereby irrevocably submits with regard to any such action or proceeding for
itself and in respect to its property, generally and unconditionally, to the
exclusive jurisdiction of the aforesaid courts. Each of the Company and the
Stockholder hereby
<PAGE>
irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement, (a) any claim that it is not personally subject to the jurisdiction
of the above-named courts for any reason other than the failure to serve process
in accordance with this Section 10(i), (b) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal process commenced
in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise),
and (c) to the fullest extent permitted by applicable law, that (i) the suit,
action or proceeding in any such court is brought in an inconvenient forum, (ii)
the venue of such suit, action or proceeding is improper or (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
(j) Specific Performance. The parties hereto acknowledge
that irreparable damage would result if this Agreement were not specifically
enforced, and they therefore consent that the rights and obligations of the
parties under this Agreement may be enforced by a decree of specific performance
issued by a court of competent jurisdiction. Such remedy shall, however, not be
exclusive and, shall be in addition to any other remedies which any party may
have under this Agreement or otherwise.
(k) Expenses. Each of the Company and the Stockholder shall
bear its own expenses incurred in connection with this Agreement and the
transactions contemplated hereby.
(l) Action in Stockholder Capacity Only. The Stockholder
makes no agreement or understanding herein as a director or officer of Parent or
in any capacity other than as a stockholder of Parent. The Stockholder signs
solely in its capacity as a record holder and beneficial owner of Shares and
nothing herein shall limit or affect any actions taken by a representative of
such Stockholder in such representative's capacity as an officer or director of
Parent.
[SIGNATURES BEGIN ON NEXT PAGE]
<PAGE>
SIGNATURE PAGE TO PARENT STOCKHOLDER VOTING AGREEMENT
IN WITNESS WHEREOF, the parties have duly executed this
Parent Stockholder Voting Agreement as of the date first above
written.
METRO NETWORKS, INC.
By: /s/
--------------------------------------
Name:
Title:
INFINITY BROADCASTING CORPORATION
By: /s/
--------------------------------------
Name:
Title:
<PAGE>
Schedule I
----------
Ownership of Voting Stock
-------------------------
<TABLE>
<CAPTION>
Name and Address Class and Series Number of Shares Number of
of Stockholder of Voting Stock Owned Votes per Share
- -------------- --------------- --------------- ---------------
<S> <C> <C> <C>
Infinity Broadcasting common stock 8,000,0001 1
Corporation
40 West 57th Street
New York, New York 10019
- --------
1 Includes 3,000,000 shares issuable upon the exercise of warrants to
purchase Voting Stock if required pursuant to Section 2 of this Agreement.
</TABLE>
<PAGE>
Schedule II
-----------
Liens on Shares
None
EXECUTION COPY
--------------
Warrant to Purchase 1,000,000 Shares
of Common Stock at $20.00 per Share
INCORPORATED UNDER THE LAWS OF THE STATE
OF DELAWARE
WESTWOOD ONE, INC.
---------------------------------
THE SECURITIES EVIDENCED BY THIS WARRANT OR ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED, ASSIGNED OR OTHERWISE ENCUMBERED
OR DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
WESTWOOD ONE, INC., a Delaware corporation (the "Company"),
certifies that, for value received, Infinity Broadcasting
Corporation, a Delaware corporation ("Infinity"), or a designated affiliated
entity (collectively, the "Holder"), is entitled to purchase, until the close of
business on the Termination Date (as defined in the next sentence), One Million
(1,000,000) shares of Common Stock, par value $0.01 per share, of the Company,
at a price of $20.00 per share; subject, however, to the provisions and upon the
terms and conditions hereinafter set forth. "Termination Date" shall mean March
31, 2009.
1. Exercisability of Warrant. This Warrant shall become
exercisable only if the Market Price (as defined below) per share of Common
Stock, par value $0.01 per share, of the Company is at least $30.00 on at least
twenty (20) out of thirty (30) consecutive days during which the national
securities exchanges are open for trading.
2. Method of Exercise; Payment; Issuance of New Warrant.
(a) This Warrant may be exercised by the holder hereof,
in whole or in part, by the surrender of this Warrant, properly endorsed, to the
Company at its principal office at 9540 Washington Boulevard, Culver City,
California 90232, Attention: Secretary, and by (i) the payment to the Company of
the then applicable Warrant Price of the Common Stock being purchased ("Warrant
Price" shall mean the price specified in the first paragraph of this Warrant and
such other prices as shall result from the adjustments specified in Section 5
hereof); and (ii) delivery to the Company of the form of subscription at the end
hereof (or a reasonable facsimile thereof).
<PAGE>
(b) Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on the business
day on which this Warrant shall have been surrendered to the Company as provided
in this Section 2, and at such time the person or persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable
upon such exercise shall be deemed to have become the holder or holders of
record thereof.
(c) In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of Common Stock so
purchased shall be delivered at the Company's expense (including the payment by
the Company of any applicable issuance taxes) to the holder hereof within five
(5) business days after the rights represented by this Warrant shall have been
so exercised, and unless this Warrant has expired, a new Warrant of like tenor
representing the number of shares of Common Stock, if any, with respect to which
this Warrant shall not then have been exercised, shall also be issued to the
holder hereof within such time.
3. Stock Fully Paid; Reservation of Shares. The Company
covenants and agrees that all shares which may be issued upon the exercise of
the rights represented by this Warrant will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable and free from all liens. The
Company further covenants and agrees that during the period within which the
rights represented by this Warrant may be exercised, the Company will at all
times have authorized, and reserved for the purpose of the issue upon exercise
of the purchase rights evidenced by this Warrant, at least the maximum number of
shares of its Common Stock as are issuable upon the exercise of the rights
represented by this Warrant.
4. Fractional Shares. No fractional shares of Common Stock
will be issued in connection with any exercise hereunder but in lieu of such
fractional shares, the Company shall make a cash payment therefor upon the basis
of the Current Market Value (as defined below) of the Common Stock.
5. Number of Shares Receivable Upon Exercise. The number of
shares of Common Stock receivable upon the exercise of this Warrant is subject
to adjustment upon the happening of certain events specified in this Section 5.
For the purposes of this Section 5, the "Warrant Price" referred to herein shall
initially be $20.00 and shall be adjusted and readjusted from time to time as
provided in this Section 5. The holder of this Warrant shall, upon exercise
hereof as provided in Section 2, be entitled to receive the number of shares of
Common Stock determined by multiplying the number of shares of Common Stock
which would otherwise (but for the provisions of this Section 5) be issuable
upon such exercise by a fraction of which (A) the numerator is $20.00 and (B)
the denominator is the Warrant Price in effect at the time of such exercise. The
price to be paid for each such share of Common Stock by the holder shall be the
Warrant Price as adjusted pursuant to this Section 5, provided that the price
paid by the holder for any shares of Common Stock upon exercise of this Warrant
shall never be less than $0.01 per share. The Warrant Price shall be subject to
adjustment as follows:
2
<PAGE>
(a) Stock Dividends, Stock Splits, Etc. If the Company
at any time or from time to time after the date hereof shall issue additional
shares of Common Stock as a result of the declaration or payment of a dividend
on the Common Stock payable in Common Stock, or as a distribution to holders of
Common Stock, or as a result of a subdivision of the outstanding shares of
Common Stock into a greater number of shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock), then, and in each such case, the Warrant Price then in effect shall be
reduced, concurrently with the issuance of such shares, to a price (calculated
to the nearest cent) determined by multiplying such Warrant Price by a fraction
(i) the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such issuance of additional shares of Common
Stock, and (ii) the denominator of which shall be the number of shares of Common
Stock outstanding immediately after such issuance, provided that, for purposes
of this Section 5(a), (x) additional shares of Common Stock shall be deemed to
have been issued (A) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the determination
of holders of any class of securities entitled to receive such dividend or
distribution or (B) in the case of any such subdivision, at the close of
business on the date immediately prior to the day upon which such corporate
action becomes effective, (y) immediately after any additional shares of Common
Stock are deemed to have been issued, such additional shares of Common Stock
shall be deemed to be outstanding, and (z) treasury shares shall be deemed not
to be outstanding.
(b) Extraordinary Dividends and Distributions. If the
Company shall distribute to all holders of its outstanding Common Stock
evidences of indebtedness of the Company, cash (other than a cash distribution
made as a dividend payable or to be payable at regularly scheduled intervals and
payable out of earnings or earned surplus legally available for the payment of
dividends under the laws of the State of Delaware, but only to the extent that
the aggregate of all such dividends paid or declared after the date hereof does
not exceed the consolidated net income of the Company earned subsegment to the
date hereof, as determined in accordance with generally accepted accounting
principles, consistently applied) or assets or securities other than its Common
Stock (including stock of a subsidiary or securities convertible into or
exercisable for such stock but excluding dividends or distributions referred to
in Section 5(a) above) (any such evidences of indebtedness, cash, assets or
securities, the "assets or securities"), then, in each case, the Warrant Price
shall be adjusted by subtracting from the Warrant Price then in effect the value
of the assets or securities that the holder would have been entitled to receive
as a result of such distribution had the Warrant been exercised and the relevant
shares of Common Stock issued in the name of the holder immediately prior to the
record date for such distribution; provided that if, after giving effect to such
adjustment, the Warrant Price would be less than the then par value of the
Common Stock, the Company shall distribute such assets or securities to the
holder as if the holder had exercised the Warrant and the shares of Common Stock
had been issued in the name of the holder immediately prior to the record date
for such distribution. Any adjustment required by this Section 5(b) shall be
made whenever any such distribution is made, and shall become effective on the
date of distribution
3
<PAGE>
retroactive to the record date for the determination of stockholders entitled to
receive such distribution.
(c) Combinations, Etc. If the Company at any time or
from time to time after the date hereof shall combine or consolidate the
outstanding shares of Common Stock, by reclassification or otherwise, into a
lesser number of shares of Common Stock, then, and in each such case, the
Warrant Price then in effect shall be increased, concurrently with the
effectiveness of such combination or consolidation, to a price (calculated to
the nearest one cent) determined by multiplying such Warrant Price by a fraction
(i) the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to the effectiveness of such combination or
consolidation and (ii) the denominator of which shall be the number of shares of
Common Stock outstanding immediately after such effectiveness.
(d) Issuance of Additional Shares of Common Stock. In
case the Company at any time or from time to time after the date hereof shall
issue or sell additional shares of Common Stock ("Additional Shares") for a
consideration per share less than the Current Market Value in effect on the
earlier of (i) the date on which the Company enters into a firm contract for the
issuance and sale of such Additional Shares (unless such contract specifies that
the price will be determined at a later date, then such later date shall apply
to this clause (i)) or (ii), the date of actual issuance or sale of such
Additional Shares, then, in each such case, the Warrant Price in effect
immediately prior to such date shall be reduced, concurrently with such issuance
or sale, to a price (calculated to the nearest one cent) determined by
multiplying such Warrant Price by a fraction (x) the numerator of which shall be
the sum of (A) the number of shares of Common Stock outstanding immediately
prior to such issue or sale, plus (B) the number of shares of Common Stock which
the aggregate consideration received by the Company for the total number of such
Additional Shares so issued or sold would purchase at such Current Market Value,
and (xi) the denominator of which shall be the number of shares of Common Stock
outstanding immediately after such issue or sale, provided that (a) treasury
shares shall not be deemed to be outstanding for purposes of this Section 5(d)
and (b) the shares of Common Stock then issuable pursuant to the terms of (i)
the Warrants dated February 3, 1994, (ii) this Warrant and (iii) the other
Warrant issued pursuant to the Management Agreement, dated as of March 31, 1999,
between the Company and Infinity, shall be deemed to be outstanding immediately
prior to and after such issue or sale. Notwithstanding anything contained herein
to the contrary, no adjustment to the Warrant Price shall be made pursuant to
this Section 5(d) following the issuance of Additional Shares pursuant to (xx)
Section 5(a) hereof, (xxi) the exercise of any options or issuance of any shares
under any options or purchase or other rights that are outstanding on or prior
to the date hereof and that were issued pursuant to any of the Company's
employee stock option, appreciation or purchase right plans, (xxii) the exercise
of any options or purchase or other rights or the issuance of any shares under
any options or rights that are granted after the date hereof, whether in
accordance with the terms of any of the Company's employee stock option,
appreciation or purchase right plans or otherwise, so long as the exercise price
of any such option, warrant, subscription
4
<PAGE>
or purchase right is not less than the Market Price on the date that such grant
is approved by the Company's Board of Directors or a duly authorized committee
thereof or, if later, the date that such exercise price is established, (xxiii)
the exercise of any other options, warrants or other subscription or purchase
rights outstanding on or prior to the date hereof, including without limitation,
(a) the Warrants dated February 3, 1994, (b) this Warrant and (c) the other
Warrant issued pursuant to the Management Agreement, dated as of March 31 1999,
between the Company and Infinity, (xxiv) the exercise of any conversion or
exchange rights outstanding on or prior to the date hereof issued by the
Company, (xxv) the exercise of any conversion or exchange rights issued by the
Company after the date hereof, so long as the conversion or exchange price is
not less than the Market Price on the date that such issuance is approved by the
Board of Directors or a duly authorized committee thereof or, if later, the date
that such conversion or exchange price is established or (xxvi) the issuance or
sale of Additional Shares pursuant to a firmly underwritten public offering of
such shares.
(e) Accountants' Report as to Adjustments. In each case
of any adjustment or readjustment in the Warrant Price, the Company at its
expense will promptly compute such adjustment or readjustment in accordance with
the terms hereof and, upon the reasonable request of the Holder, cause
independent public accountants of recognized national standing selected by the
Company (which may be the regular auditors of the Company) to verify such
computation and prepare a report setting forth such adjustment or readjustment
and showing in reasonable detail the method of calculation thereof and the facts
upon which such adjustment or readjustment is based, including a statement of
(i) the number of shares of Common Stock outstanding or deemed to be outstanding
and (ii) the Warrant Price in effect immediately prior to such adjustment or
readjustment and as adjusted and readjusted (if required by Section 5) on
account thereto. The Company will forthwith mail a copy of each such report to
the holder of this Warrant. The Company will also keep copies of all such
reports at its principal office, and will cause the same to be available for
inspection at such office during normal business hours by any holder of this
Warrant or any prospective purchaser of a Warrant designated in writing by the
holder thereof.
(f) No Dilution or Impairment. The Company will not, by
amendment of its certificate of incorporation or through any consolidation,
merger, reorganization, transfer of assets, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms hereof, but will at all times in good faith
assist in the carrying out of all such terms and in the taking of all such
action as may be necessary or appropriate in order to protect the rights of the
holder of this Warrant against dilution as provided herein. Without limiting the
generality of the foregoing, the Company (i) will not permit the par value of
any shares of Common Stock receivable upon the exercise of any Warrant to be
increased to an amount that exceeds the amount payable therefor upon such
exercise, (ii) will take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
nonassessable shares upon the exercise of this Warrant from time to time and
(iii) will not take any action which results in any adjustment of the
5
<PAGE>
Warrant Price if the total number of shares of Common Stock issuable after such
action upon the exercise of this Warrant would exceed the total number of shares
of Common Stock then authorized by the Company's certificate of incorporation
and available for the purpose of issue upon such exercise.
(g) Exercise of Warrant in the Event of a Consolidation,
Merger, Sale of Assets, Reorganization, Etc.
(i) In case at any time the Company shall be a
party to any Transaction pursuant to which the aggregate value of the cash,
securities and other consideration payable for a share of Common Stock is at
least $30.00, then (A) upon the consummation thereof this Warrant shall become
exercisable with respect to all shares of Common Stock covered hereby (whether
or not it has otherwise become exercisable with respect to such shares pursuant
to Section 1) and shall be deemed to have been exercised by the holder hereof
without any act on the part of such holder and without any obligation on the
part of such holder to pay the exercise price until presentation of this Warrant
pursuant to clause (B) below, and (B) this Warrant shall represent the right of
such holder to receive (upon presentation of this Warrant on or within thirty
(30) days after the date of such consummation together with payment of the
aggregate exercise price payable at the time of such consummation in accordance
with Section 2 for all shares of Common Stock issuable upon such exercise
immediately prior to such consummation), in lieu of the Common Stock issuable
upon exercise of this Warrant prior to such consummation, the cash, securities
and other property to which such holder would have been entitled upon the
consummation of the Transaction if such holder had exercised this Warrant
immediately prior thereto.
(ii) The Company will not effect any Transaction
unless, prior to the consummation thereof, each corporation or entity (other
than the Company) which may be required to deliver any cash, securities or other
property upon the exercise of this Warrant as provided herein shall assume, by
written instrument delivered to the holder of this Warrant, the obligation to
deliver to such holder such cash, securities or other property as, in accordance
with the foregoing provision, such holder may be entitled to receive.
(iii) In case the Company shall be a party to any
Transaction pursuant to which the aggregate value of the cash, securities and
other consideration payable for a share of Common Stock is less than $30.00,
this Warrant shall terminate upon the consummation thereof.
(h) Notices of Corporate Action. In the event of any
anticipated:
(i) taking by the Company of a record of the
holders of any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend or other distribution on such
securities, or
6
<PAGE>
(ii) Transaction, or
(iii) voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
the Company will mail to the holder of this Warrant a notice specifying (A) the
date or expected date on which any such record is to be taken for the purpose of
such dividend or distribution or (B) the date or expected date on which any such
Transaction, dissolution, liquidation or winding-up is to take place and the
time, if any such time is to be fixed, as of which the holders of record of
Common Stock shall be entitled to exchange their shares of Common Stock for the
securities or other property deliverable upon such Transaction, dissolution,
liquidation or winding-up. Such notice shall be mailed at least twenty (20) days
prior to the date therein specified, in the case of any date referred to in the
foregoing clause (A), and at least thirty (30) days prior to the date therein
specified, in the case of the date referred to in the foregoing clause (B).
6. Definitions. As used herein, the following terms have
the following respective meanings:
Common Stock: The Company's (a) Common Stock, par value
$0.01 per share, and (b) Class B Stock, par value $0.01 per share.
Current Market Value: The average of the daily Market Price
per share of Common Stock for the period of five (5) days, ending on the day
immediately prior to the date determined pursuant to Section 5(d)(i) or (ii),
during which the national securities exchanges were opened for trading, provided
that if an exercise of this Warrant occurs as a result of or in connection with
the consummation of a Transaction, Current Market Value shall be the aggregate
value of the cash, securities and other consideration payable for a share of
Common Stock in connection with such Transaction.
Market Price: Per share of Common Stock on any date
specified herein shall be (a) the last sale price, regular way, on such date or,
if no such sale takes place on such date, the average of the closing bid and
asked prices on such date, in each case as officially reported on the principal
national securities exchange on which the Common Stock is then listed or
admitted to trading, or (b) if such Common Stock is not then listed or admitted
to trading on any national securities exchange, but is designated as a national
market system security by the National Association of Securities Dealers, the
last trading price of the Common Stock on such date, or (c) if there shall have
been no trading on such date or if the Common Stock is not so designated, the
average of the reported closing bid and asked prices on such date as shown by
the National Association of Securities Dealers Automated Quotation System.
Registration Rights Agreement: The Registration Rights
Agreement, dated as of March 30, 1999, between the Company and the original
holder hereof.
7
<PAGE>
Transaction: A merger, consolidation, sale of all or
substantially all of the Company's assets, recapitalization of the Common Stock
or other similar transaction, in each case if the previously outstanding Common
Stock is acquired for cash or changed into or exchanged for different securities
of the Company or changed into or exchanged for common stock or other securities
of another corporation or interests in a non-corporate entity or other property
(including cash) or any combination of any of the foregoing.
Warrant Price: The meaning specified in Section 5.
7. Amendments and Waivers. Any term of this Warrant may be
amended or modified or the observance of any term of this Warrant may be waived
(either generally or in a particular instance) only with the written consent of
the Company and the holder of this Warrant.
8. Assignment. The provisions of this Warrant shall be
binding upon and inure to the benefit of the original holder hereof, its
successors and assigns by way of merger, consolidation or operation of law, and
each third party transferee of this Warrant, provided that, this Warrant may
only be transferred in accordance with the terms of the Registration Rights
Agreement and, in the case of any third party transferee, such transferee shall
have delivered to the Company a valid agreement of assumption of the restriction
on transfer specified in this Section 8.
9. Exchange of Warrant. Upon surrender for exchange of this
Warrant, properly endorsed, for registration of Transfer or for exchange at the
principal office of the Company, the Company, at its expense, will issue and
deliver to or upon the order of the holder hereof a new Warrant or Warrants of
like tenor, in the name of such holder or as such holder (upon payment by such
holder of any applicable transfer taxes) may direct, calling in the aggregate on
the face or faces thereof for the number of shares of Common Stock called for on
the face of this Warrant, provided that any such transfer of this Warrant is
made in accordance with the Registration Rights Agreement.
10. Replacement of Warrant. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of any Warrant and, in the case of any such loss, theft or
destruction of any Warrant, upon delivery of an indemnity bond in such
reasonable amount as the Company may determine (or, in the case of any Warrant
held by the original holder hereof or any affiliate thereof or an institutional
holder or any of their respective nominees, of an affidavit of an authorized
officer of such holder, setting forth the fact of such loss, theft or
destruction, which shall be satisfactory evidence thereof and no further
indemnity shall be required as a condition of the execution and delivery of a
new Warrant), or, in the case of any such mutilation, upon the surrender of such
Warrant for cancellation to the Company at its principal office, the Company at
its expense will execute and deliver, in lieu thereof, a new Warrant, of like
tenor. Any Warrant in lieu of which any such new Warrant has been so executed
and delivered by the Company shall not be deemed to be an outstanding Warrant
for any purpose.
8
<PAGE>
11. Remedies. The Company stipulates that the remedies at
law of the holder of this Warrant in the event of any default by the Company in
the performance of or in compliance with any of the terms of this Warrant are
not and will not be adequate, and that such terms may be specifically enforced
by a decree for the specific performance of any agreement contained herein or by
an injunction against a violation of any of the terms hereof or otherwise
without the requirement of the posting of a bond.
12. No Rights or Liabilities as Stockholder. Nothing
contained in this Warrant shall be construed as conferring upon the holder
hereof any rights as a stockholder of the Company (except to the extent that
shares of Common Stock are issued to such holder pursuant to this Warrant) or as
imposing any liabilities on such holder to purchase any securities or as a
stockholder of the Company, whether such liabilities are asserted by the Company
or by creditors or stockholders of the Company or otherwise.
13. Notices. All notices and other communications under
this Warrant shall be in writing and shall be mailed by registered or certified
mail, return receipt requested, or by facsimile transmission, addressed (a) if
to the holder, at the registered address or the facsimile number of such holder
as set forth in the register kept at the principal office of the Company, and
(b) if to the Company, to the attention of the Secretary at its principal
office, at 9540 Washington Boulevard, Culver City, California 90232, or to its
facsimile number, Attention: Secretary, provided that the exercise of any
Warrant shall be effected in the manner provided in Section 2.
14. Legends. The shares of Common Stock issuable pursuant
to the terms of this Warrant shall bear a legend in substantially the following
form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED, ASSIGNED OR OTHERWISE ENCUMBERED OR
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
9
<PAGE>
15. Miscellaneous. THIS WARRANT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
The headings in this Warrant are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
Dated as of March 30, 1999.
WESTWOOD ONE, INC.
By: /s/ Farid Suleman
--------------------------------------
Name: Farid Suleman
Title: Chief Financial Officer
10
<PAGE>
FORM OF SUBSCRIPTION
--------------------
[To be signed only upon exercise of the Warrant]
TO WESTWOOD ONE, INC.
The undersigned, the holder of the within Warrant, hereby
irrevocably elects to exercise the purchase right represented by
such Warrant for, and to purchase thereunder, __________* shares of Common Stock
of WESTWOOD ONE, INC. and herewith makes payment of $______ therefor, and
requests that the certificates for such shares be issued in the name of, and
delivered to, _______________________________, whose address is
________________________________________________________.
Dated: _______________________
--------------------------------------------------
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant)
--------------------------------------------------
(Address)
- --------
* Insert here the number of shares called for on the face of the Warrant
(or, in the case of a partial exercise, the portion thereof as to which
the Warrant is being exercised), in either case without making any
adjustment for additional shares of the Common Stock or any other stock
or other securities or property or cash which, pursuant to the
adjustment provisions referred to in the Warrant, may be deliverable
upon exercise. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised
portion of such Warrant, all as provided in the Warrant.
11
<PAGE>
FORM OF ASSIGNMENT
------------------
[To be signed only upon transfer of the Warrant]
For value received, the undersigned hereby sells, assigns
and transfers unto ______________________________________ the rights represented
by the within Warrant to purchase shares of Common Stock of WESTWOOD ONE, INC.
to which the within Warrant relates, and appoints ______________________________
Attorney to transfer such rights on the books of WESTWOOD ONE, INC. with full
power of substitution in the premises.
Dated: _______________________
--------------------------------------------------
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant)
--------------------------------------------------
(Address)
Signed in the presence of:
- ---------------------------------
Name:
12
EXECUTION COPY
--------------
Warrant to Purchase 1,000,000 Shares
of Common Stock at $25.00 per Share
INCORPORATED UNDER THE LAWS OF THE STATE
OF DELAWARE
WESTWOOD ONE, INC.
---------------------------------
THE SECURITIES EVIDENCED BY THIS WARRANT OR ISSUABLE UPON EXERCISE
HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED, ASSIGNED OR OTHERWISE ENCUMBERED
OR DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
WESTWOOD ONE, INC., a Delaware corporation (the "Company"),
certifies that, for value received, Infinity Broadcasting Corporation, a
Delaware corporation ("Infinity"), or a designated affiliated entity
(collectively, the "Holder"), is entitled to purchase, until the close of
business on the Termination Date (as defined in the next sentence), One Million
(1,000,000) shares of Common Stock, par value $0.01 per share, of the Company,
at a price of $25.00 per share; subject, however, to the provisions and upon the
terms and conditions hereinafter set forth. "Termination Date" shall mean March
31, 2009.
1. Exercisability of Warrant. This Warrant shall become
exercisable only if the Market Price (as defined below) per share of Common
Stock, par value $0.01 per share, of the Company is at least $40.00 on at least
twenty (20) out of thirty (30) consecutive days during which the national
securities exchanges are open for trading.
2. Method of Exercise; Payment; Issuance of New Warrant.
(a) This Warrant may be exercised by the holder hereof,
in whole or in part, by the surrender of this Warrant, properly endorsed, to the
Company at its principal office at 9540 Washington Boulevard, Culver City,
California 90232, Attention: Secretary, and by (i) the payment to the Company of
the then applicable Warrant Price of the Common Stock being purchased ("Warrant
Price" shall mean the price specified in the first paragraph of this Warrant and
such other prices as shall result from the adjustments specified in Section 5
hereof); and (ii) delivery to the Company of the form of subscription at the end
hereof (or a reasonable facsimile thereof).
<PAGE>
(b) Each exercise of this Warrant shall be deemed to
have been effected immediately prior to the close of business on the business
day on which this Warrant shall have been surrendered to the Company as provided
in this Section 2, and at such time the person or persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable
upon such exercise shall be deemed to have become the holder or holders of
record thereof.
(c) In the event of any exercise of the rights
represented by this Warrant, certificates for the shares of Common Stock so
purchased shall be delivered at the Company's expense (including the payment by
the Company of any applicable issuance taxes) to the holder hereof within five
(5) business days after the rights represented by this Warrant shall have been
so exercised, and unless this Warrant has expired, a new Warrant of like tenor
representing the number of shares of Common Stock, if any, with respect to which
this Warrant shall not then have been exercised, shall also be issued to the
holder hereof within such time.
3. Stock Fully Paid; Reservation of Shares. The Company
covenants and agrees that all shares which may be issued upon the exercise of
the rights represented by this Warrant will, upon issuance, be duly authorized,
validly issued, fully paid and nonassessable and free from all liens. The
Company further covenants and agrees that during the period within which the
rights represented by this Warrant may be exercised, the Company will at all
times have authorized, and reserved for the purpose of the issue upon exercise
of the purchase rights evidenced by this Warrant, at least the maximum number of
shares of its Common Stock as are issuable upon the exercise of the rights
represented by this Warrant.
4. Fractional Shares. No fractional shares of Common Stock
will be issued in connection with any exercise hereunder but in lieu of such
fractional shares, the Company shall make a cash payment therefor upon the basis
of the Current Market Value (as defined below) of the Common Stock.
5. Number of Shares Receivable Upon Exercise. The number of
shares of Common Stock receivable upon the exercise of this Warrant is subject
to adjustment upon the happening of certain events specified in this Section 5.
For the purposes of this Section 5, the "Warrant Price" referred to herein shall
initially be $25.00 and shall be adjusted and readjusted from time to time as
provided in this Section 5. The holder of this Warrant shall, upon exercise
hereof as provided in Section 2, be entitled to receive the number of shares of
Common Stock determined by multiplying the number of shares of Common Stock
which would otherwise (but for the provisions of this Section 5) be issuable
upon such exercise by a fraction of which (A) the numerator is $25.00 and (B)
the denominator is the Warrant Price in effect at the time of such exercise. The
price to be paid for each such share of Common Stock by the holder shall be the
Warrant Price as adjusted pursuant to this Section 5, provided that the price
paid by the holder for any shares of Common Stock upon exercise of this Warrant
shall never be less than $0.01 per share. The Warrant Price shall be subject to
adjustment as follows:
2
<PAGE>
(a) Stock Dividends, Stock Splits, Etc. If the Company
at any time or from time to time after the date hereof shall issue additional
shares of Common Stock as a result of the declaration or payment of a dividend
on the Common Stock payable in Common Stock, or as a distribution to holders of
Common Stock, or as a result of a subdivision of the outstanding shares of
Common Stock into a greater number of shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common
Stock), then, and in each such case, the Warrant Price then in effect shall be
reduced, concurrently with the issuance of such shares, to a price (calculated
to the nearest cent) determined by multiplying such Warrant Price by a fraction
(i) the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such issuance of additional shares of Common
Stock, and (ii) the denominator of which shall be the number of shares of Common
Stock outstanding immediately after such issuance, provided that, for purposes
of this Section 5(a), (x) additional shares of Common Stock shall be deemed to
have been issued (A) in the case of any such dividend or distribution,
immediately after the close of business on the record date for the determination
of holders of any class of securities entitled to receive such dividend or
distribution or (B) in the case of any such subdivision, at the close of
business on the date immediately prior to the day upon which such corporate
action becomes effective, (y) immediately after any additional shares of Common
Stock are deemed to have been issued, such additional shares of Common Stock
shall be deemed to be outstanding, and (z) treasury shares shall be deemed not
to be outstanding.
(b) Extraordinary Dividends and Distributions. If the
Company shall distribute to all holders of its outstanding Common Stock
evidences of indebtedness of the Company, cash (other than a cash distribution
made as a dividend payable or to be payable at regularly scheduled intervals and
payable out of earnings or earned surplus legally available for the payment of
dividends under the laws of the State of Delaware, but only to the extent that
the aggregate of all such dividends paid or declared after the date hereof does
not exceed the consolidated net income of the Company earned subsegment to the
date hereof, as determined in accordance with generally accepted accounting
principles, consistently applied) or assets or securities other than its Common
Stock (including stock of a subsidiary or securities convertible into or
exercisable for such stock but excluding dividends or distributions referred to
in Section 5(a) above) (any such evidences of indebtedness, cash, assets or
securities, the "assets or securities"), then, in each case, the Warrant Price
shall be adjusted by subtracting from the Warrant Price then in effect the value
of the assets or securities that the holder would have been entitled to receive
as a result of such distribution had the Warrant been exercised and the relevant
shares of Common Stock issued in the name of the holder immediately prior to the
record date for such distribution; provided that if, after giving effect to such
adjustment, the Warrant Price would be less than the then par value of the
Common Stock, the Company shall distribute such assets or securities to the
holder as if the holder had exercised the Warrant and the shares of Common Stock
had been issued in the name of the holder immediately prior to the record date
for such distribution. Any adjustment required by this Section 5(b) shall be
made whenever any such distribution is made, and shall become effective on the
date of distribution retroactive to the record date for the determination of
stockholders entitled to receive such distribution.
3
<PAGE>
(c) Combinations, Etc. If the Company at any time or
from time to time after the date hereof shall combine or consolidate the
outstanding shares of Common Stock, by reclassification or otherwise, into a
lesser number of shares of Common Stock, then, and in each such case, the
Warrant Price then in effect shall be increased, concurrently with the
effectiveness of such combination or consolidation, to a price (calculated to
the nearest one cent) determined by multiplying such Warrant Price by a fraction
(i) the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to the effectiveness of such combination or
consolidation and (ii) the denominator of which shall be the number of shares of
Common Stock outstanding immediately after such effectiveness.
(d) Issuance of Additional Shares of Common Stock. In
case the Company at any time or from time to time after the date hereof shall
issue or sell additional shares of Common Stock ("Additional Shares") for a
consideration per share less than the Current Market Value in effect on the
earlier of (i) the date on which the Company enters into a firm contract for the
issuance and sale of such Additional Shares (unless such contract specifies that
the price will be determined at a later date, then such later date shall apply
to this clause (i)) or (ii), the date of actual issuance or sale of such
Additional Shares, then, in each such case, the Warrant Price in effect
immediately prior to such date shall be reduced, concurrently with such issuance
or sale, to a price (calculated to the nearest one cent) determined by
multiplying such Warrant Price by a fraction (x) the numerator of which shall be
the sum of (A) the number of shares of Common Stock outstanding immediately
prior to such issue or sale, plus (B) the number of shares of Common Stock which
the aggregate consideration received by the Company for the total number of such
Additional Shares so issued or sold would purchase at such Current Market Value,
and (xi) the denominator of which shall be the number of shares of Common Stock
outstanding immediately after such issue or sale, provided that (a) treasury
shares shall not be deemed to be outstanding for purposes of this Section 5(d)
and (b) the shares of Common Stock then issuable pursuant to the terms of (i)
the Warrants dated February 3, 1994, (ii) this Warrant and (iii) the other
Warrant issued pursuant to the Management Agreement, dated as of March 31, 1999,
between the Company and Infinity, shall be deemed to be outstanding immediately
prior to and after such issue or sale. Notwithstanding anything contained herein
to the contrary, no adjustment to the Warrant Price shall be made pursuant to
this Section 5(d) following the issuance of Additional Shares pursuant to (xx)
Section 5(a) hereof, (xxi) the exercise of any options or issuance of any shares
under any options or purchase or other rights that are outstanding on or prior
to the date hereof and that were issued pursuant to any of the Company's
employee stock option, appreciation or purchase right plans, (xxii) the exercise
of any options or purchase or other rights or the issuance of any shares under
any options or rights that are granted after the date hereof, whether in
accordance with the terms of any of the Company's employee stock option,
appreciation or purchase right plans or otherwise, so long as the exercise price
of any such option, warrant, subscription
4
<PAGE>
or purchase right is not less than the Market Price on the date that such grant
is approved by the Company's Board of Directors or a duly authorized committee
thereof or, if later, the date that such exercise price is established, (xxiii)
the exercise of any other options, warrants or other subscription or purchase
rights outstanding on or prior to the date hereof, including without limitation,
(a) the Warrants dated February 3, 1994, (b) this Warrant and (c) the other
Warrant issued pursuant to the Management Agreement, dated as of March 31 1999,
between the Company and Infinity, (xxiv) the exercise of any conversion or
exchange rights outstanding on or prior to the date hereof issued by the
Company, (xxv) the exercise of any conversion or exchange rights issued by the
Company after the date hereof, so long as the conversion or exchange price is
not less than the Market Price on the date that such issuance is approved by the
Board of Directors or a duly authorized committee thereof or, if later, the date
that such conversion or exchange price is established or (xxvi) the issuance or
sale of Additional Shares pursuant to a firmly underwritten public offering of
such shares.
(e) Accountants' Report as to Adjustments. In each case
of any adjustment or readjustment in the Warrant Price, the Company at its
expense will promptly compute such adjustment or readjustment in accordance with
the terms hereof and, upon the reasonable request of the Holder, cause
independent public accountants of recognized national standing selected by the
Company (which may be the regular auditors of the Company) to verify such
computation and prepare a report setting forth such adjustment or readjustment
and showing in reasonable detail the method of calculation thereof and the facts
upon which such adjustment or readjustment is based, including a statement of
(i) the number of shares of Common Stock outstanding or deemed to be outstanding
and (ii) the Warrant Price in effect immediately prior to such adjustment or
readjustment and as adjusted and readjusted (if required by Section 5) on
account thereto. The Company will forthwith mail a copy of each such report to
the holder of this Warrant. The Company will also keep copies of all such
reports at its principal office, and will cause the same to be available for
inspection at such office during normal business hours by any holder of this
Warrant or any prospective purchaser of a Warrant designated in writing by the
holder thereof.
(f) No Dilution or Impairment. The Company will not, by
amendment of its certificate of incorporation or through any consolidation,
merger, reorganization, transfer of assets, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms hereof, but will at all times in good faith
assist in the carrying out of all such terms and in the taking of all such
action as may be necessary or appropriate in order to protect the rights of the
holder of this Warrant against dilution as provided herein. Without limiting the
generality of the foregoing, the Company (i) will not permit the par value of
any shares of Common Stock receivable upon the exercise of any Warrant to be
increased to an amount that exceeds the amount payable therefor upon such
exercise, (ii) will take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and
nonassessable shares upon the exercise of this Warrant from time to time and
(iii) will not take any action which results in any adjustment of the
5
<PAGE>
Warrant Price if the total number of shares of Common Stock issuable after such
action upon the exercise of this Warrant would exceed the total number of shares
of Common Stock then authorized by the Company's certificate of incorporation
and available for the purpose of issue upon such exercise.
(g) Exercise of Warrant in the Event of a Consolidation,
Merger, Sale of Assets, Reorganization, Etc.
(i) In case at any time the Company shall be a
party to any Transaction pursuant to which the aggregate value of the cash,
securities and other consideration payable for a share of Common Stock is at
least $30.00, then (A) upon the consummation thereof this Warrant shall become
exercisable with respect to all shares of Common Stock covered hereby (whether
or not it has otherwise become exercisable with respect to such shares pursuant
to Section 1) and shall be deemed to have been exercised by the holder hereof
without any act on the part of such holder and without any obligation on the
part of such holder to pay the exercise price until presentation of this Warrant
pursuant to clause (B) below, and (B) this Warrant shall represent the right of
such holder to receive (upon presentation of this Warrant on or within thirty
(30) days after the date of such consummation together with payment of the
aggregate exercise price payable at the time of such consummation in accordance
with Section 2 for all shares of Common Stock issuable upon such exercise
immediately prior to such consummation), in lieu of the Common Stock issuable
upon exercise of this Warrant prior to such consummation, the cash, securities
and other property to which such holder would have been entitled upon the
consummation of the Transaction if such holder had exercised this Warrant
immediately prior thereto.
(ii) The Company will not effect any Transaction
unless, prior to the consummation thereof, each corporation or entity (other
than the Company) which may be required to deliver any cash, securities or other
property upon the exercise of this Warrant as provided herein shall assume, by
written instrument delivered to the holder of this Warrant, the obligation to
deliver to such holder such cash, securities or other property as, in accordance
with the foregoing provision, such holder may be entitled to receive.
(iii) In case the Company shall be a party to any
Transaction pursuant to which the aggregate value of the cash, securities and
other consideration payable for a share of Common Stock is less than $40.00,
this Warrant shall terminate upon the consummation thereof.
(h) Notices of Corporate Action. In the event of any
anticipated:
(i) taking by the Company of a record of the
holders of any class of securities for the purpose of determining the holders
thereof who are entitled to receive any dividend or other distribution on such
securities, or
6
<PAGE>
(ii) Transaction, or
(iii) voluntary or involuntary dissolution,
liquidation or winding-up of the Company,
the Company will mail to the holder of this Warrant a notice specifying (A) the
date or expected date on which any such record is to be taken for the purpose of
such dividend or distribution or (B) the date or expected date on which any such
Transaction, dissolution, liquidation or winding-up is to take place and the
time, if any such time is to be fixed, as of which the holders of record of
Common Stock shall be entitled to exchange their shares of Common Stock for the
securities or other property deliverable upon such Transaction, dissolution,
liquidation or winding-up. Such notice shall be mailed at least twenty (20) days
prior to the date therein specified, in the case of any date referred to in the
foregoing clause (A), and at least thirty (30) days prior to the date therein
specified, in the case of the date referred to in the foregoing clause (B).
6. Definitions. As used herein, the following terms have
the following respective meanings:
Common Stock: The Company's (a) Common Stock, par value
$0.01 per share, and (b) Class B Stock, par value $0.01 per share.
Current Market Value: The average of the daily Market Price
per share of Common Stock for the period of five (5) days, ending on the day
immediately prior to the date determined pursuant to Section 5(d)(i) or (ii),
during which the national securities exchanges were opened for trading, provided
that if an exercise of this Warrant occurs as a result of or in connection with
the consummation of a Transaction, Current Market Value shall be the aggregate
value of the cash, securities and other consideration payable for a share of
Common Stock in connection with such Transaction.
Market Price: Per share of Common Stock on any date
specified herein shall be (a) the last sale price, regular way, on such date or,
if no such sale takes place on such date, the average of the closing bid and
asked prices on such date, in each case as officially reported on the principal
national securities exchange on which the Common Stock is then listed or
admitted to trading, or (b) if such Common Stock is not then listed or admitted
to trading on any national securities exchange, but is designated as a national
market system security by the National Association of Securities Dealers, the
last trading price of the Common Stock on such date, or (c) if there shall have
been no trading on such date or if the Common Stock is not so designated, the
average of the reported closing bid and asked prices on such date as shown by
the National Association of Securities Dealers Automated Quotation System.
Registration Rights Agreement: The Registration Rights
Agreement, dated as of March 30, 1999, between the Company and the original
holder hereof.
7
<PAGE>
Transaction: A merger, consolidation, sale of all or
substantially all of the Company's assets, recapitalization of the Common Stock
or other similar transaction, in each case if the previously outstanding Common
Stock is acquired for cash or changed into or exchanged for different securities
of the Company or changed into or exchanged for common stock or other securities
of another corporation or interests in a non-corporate entity or other property
(including cash) or any combination of any of the foregoing.
Warrant Price: The meaning specified in Section 5.
7. Amendments and Waivers. Any term of this Warrant may be
amended or modified or the observance of any term of this Warrant may be waived
(either generally or in a particular instance) only with the written consent of
the Company and the holder of this Warrant.
8. Assignment. The provisions of this Warrant shall be
binding upon and inure to the benefit of the original holder hereof, its
successors and assigns by way of merger, consolidation or operation of law, and
each third party transferee of this Warrant, provided that, this Warrant may
only be transferred in accordance with the terms of the Registration Rights
Agreement and, in the case of any third party transferee, such transferee shall
have delivered to the Company a valid agreement of assumption of the restriction
on transfer specified in this Section 8.
9. Exchange of Warrant. Upon surrender for exchange of this
Warrant, properly endorsed, for registration of Transfer or for exchange at the
principal office of the Company, the Company, at its expense, will issue and
deliver to or upon the order of the holder hereof a new Warrant or Warrants of
like tenor, in the name of such holder or as such holder (upon payment by such
holder of any applicable transfer taxes) may direct, calling in the aggregate on
the face or faces thereof for the number of shares of Common Stock called for on
the face of this Warrant, provided that any such transfer of this Warrant is
made in accordance with the Registration Rights Agreement.
10. Replacement of Warrant. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of any Warrant and, in the case of any such loss, theft or
destruction of any Warrant, upon delivery of an indemnity bond in such
reasonable amount as the Company may determine (or, in the case of any Warrant
held by the original holder hereof or any affiliate thereof or an institutional
holder or any of their respective nominees, of an affidavit of an authorized
officer of such holder, setting forth the fact of such loss, theft or
destruction, which shall be satisfactory evidence thereof and no further
indemnity shall be required as a condition of the execution and delivery of a
new Warrant), or, in the case of any such mutilation, upon the surrender of such
Warrant for cancellation to the Company at its principal office, the Company at
its expense will execute and deliver, in lieu thereof, a new Warrant, of like
tenor. Any Warrant in lieu of which any such new Warrant has been so executed
and delivered by the Company shall not be deemed to be an outstanding Warrant
for any purpose.
8
<PAGE>
11. Remedies. The Company stipulates that the remedies at
law of the holder of this Warrant in the event of any default by the Company in
the performance of or in compliance with any of the terms of this Warrant are
not and will not be adequate, and that such terms may be specifically enforced
by a decree for the specific performance of any agreement contained herein or by
an injunction against a violation of any of the terms hereof or otherwise
without the requirement of the posting of a bond.
12. No Rights or Liabilities as Stockholder. Nothing
contained in this Warrant shall be construed as conferring upon the holder
hereof any rights as a stockholder of the Company (except to the extent that
shares of Common Stock are issued to such holder pursuant to this Warrant) or as
imposing any liabilities on such holder to purchase any securities or as a
stockholder of the Company, whether such liabilities are asserted by the Company
or by creditors or stockholders of the Company or otherwise.
13. Notices. All notices and other communications under
this Warrant shall be in writing and shall be mailed by registered or certified
mail, return receipt requested, or by facsimile transmission, addressed (a) if
to the holder, at the registered address or the facsimile number of such holder
as set forth in the register kept at the principal office of the Company, and
(b) if to the Company, to the attention of the Secretary at its principal
office, at 9540 Washington Boulevard, Culver City, California 90232, or to its
facsimile number, Attention: Secretary, provided that the exercise of any
Warrant shall be effected in the manner provided in Section 2.
14. Legends. The shares of Common Stock issuable pursuant
to the terms of this Warrant shall bear a legend in substantially the following
form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES
LAWS. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED,
PLEDGED, HYPOTHECATED, ASSIGNED OR OTHERWISE ENCUMBERED OR
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS.
9
<PAGE>
15. Miscellaneous. THIS WARRANT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
The headings in this Warrant are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
Dated as of March 30, 1999.
WESTWOOD ONE, INC.
By: /s/ Farid Suleman
--------------------------------------
Name: Farid Suleman
Title: Chief Financial Officer
10
<PAGE>
FORM OF SUBSCRIPTION
--------------------
[To be signed only upon exercise of the Warrant]
TO WESTWOOD ONE, INC.
The undersigned, the holder of the within Warrant, hereby
irrevocably elects to exercise the purchase right represented by
such Warrant for, and to purchase thereunder, __________* shares of Common Stock
of WESTWOOD ONE, INC. and herewith makes payment of $______ therefor, and
requests that the certificates for such shares be issued in the name of, and
delivered to, _______________________________, whose address is
________________________________________________________.
Dated: _______________________
--------------------------------------------------
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant)
--------------------------------------------------
(Address)
11
<PAGE>
- --------
* Insert here the number of shares called for on the face of the Warrant
(or, in the case of a partial exercise, the portion thereof as to which
the Warrant is being exercised), in either case without making any
adjustment for additional shares of the Common Stock or any other stock
or other securities or property or cash which, pursuant to the
adjustment provisions referred to in the Warrant, may be deliverable
upon exercise. In the case of a partial exercise, a new Warrant or
Warrants will be issued and delivered, representing the unexercised
portion of such Warrant, all as provided in the Warrant.
FORM OF ASSIGNMENT
------------------
[To be signed only upon transfer of the Warrant]
For value received, the undersigned hereby sells, assigns
and transfers unto ______________________________________ the rights represented
by the within Warrant to purchase shares of Common Stock of WESTWOOD ONE, INC.
to which the within Warrant relates, and appoints ______________________________
Attorney to transfer such rights on the books of WESTWOOD ONE, INC. with full
power of substitution in the premises.
Dated: _______________________
--------------------------------------------------
(Signature must conform in all respects to name of
holder as specified on the face of the Warrant)
--------------------------------------------------
(Address)
Signed in the presence of:
/s/
- ---------------------------------
Name:
12
EXECUTION COPY
--------------
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights Agreement (this "Agreement") is
entered into as of March 30, 1999 by and between Westwood One,
Inc., a Delaware corporation (the "Company"), and Infinity Broadcasting
Corporation, a Delaware corporation ("Infinity").
W I T N E S S E T H :
---------------------
WHEREAS, pursuant to a Management Agreement, dated as of
March 30, 1999, between the Company and Infinity (the "Management
Agreement"), the Company has issued to Infinity two warrants (individually, a
"Management Warrant" and, collectively, the "Management Warrants") to purchase
an aggregate of an additional 2,000,000 shares of common stock of the Company
("Common Stock"), upon and subject to the terms and conditions set forth
therein; and
WHEREAS, the Company and Infinity desire in this Agreement
to provide for, with respect to Management Warrants, (i) the granting to
Infinity of the registration rights set forth herein, and (ii) certain
contractual restrictions on any sale or disposition thereof;
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 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 at the effectiveness of such
Registration Statement.
(b) The term "Registrable Securities" means any and all
shares of Common Stock hereafter issued upon exercise of the Management
Warrants. 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.
<PAGE>
1.2 Demand Registration. If the Company shall receive from
Infinity 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 Infinity,
provided (i) no Demand may be made by Infinity until on and after one year from
the date hereof, (ii) only one Demand may be made by Infinity (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 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 Infinity'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 Infinity 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
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(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 Infinity 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 Infinity as a part of the written notice given pursuant
to Section 1.3(a)(i). In such event the right of Infinity to registration
pursuant to this Section 1.3 shall be conditioned upon Infinity's participation
in such underwriting and the inclusion of Infinity's Registrable Securities in
the underwriting to the extent provided herein. Infinity, 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 Infinity 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
Infinity to include all or any allocable portion of such Registrable Securities
shall be subject to the priority (prior to any allocation to Infinity 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 1.3(b) hereof) and of other holders of
demand registration rights permitted pursuant to the proviso to Section 1.10
hereof. No securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration. If
Infinity 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) Infinity 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 Infinity 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
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qualification fees (including SEC, securities exchange, 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
Infinity (if Infinity 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 Infinity) and use its diligent best efforts to
cause such Registration Statement to become effective, and, upon the request of
Infinity, 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
Infinity 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 Infinity copies of all documents proposed to be
filed, which documents will be subject to the comments of Infinity and its
counsel;
(c) furnish to Infinity 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
Infinity may reasonably request in order to facilitate the disposition of
Registrable Securities owned by Infinity;
(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
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<PAGE>
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 Infinity 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; Infinity
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, usual and customary in form, from the Company's independent
public accountants and covering matters of the type customarily covered by "cold
comfort" letters as Infinity shall reasonably request;
(i) notify Infinity 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 Infinity, prepare and furnish to Infinity 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 Infinity, by any underwriter participating in any disposition
to be effected pursuant to
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such Registration Statement and by any attorney, accountant or other agent
retained by Infinity 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.
Infinity agrees that, upon receipt of any notice from the
Company of the happening of any event described in Section 1.5(i),
Infinity will forthwith discontinue disposition of such securities pursuant to
such Registration Statement until Infinity's receipt of the copies of the
supplemental or amended prospectus contemplated by Section 1.5(i), and, as so
directed by the Company, Infinity will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies then in Infinity'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 Infinity pursuant to Section 1.2,
Infinity shall have the exclusive right to designate the managing underwriter or
underwriters with 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 Infinity, each of Infinity's officers, directors and
affiliates, and each person controlling Infinity, 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 Infinity, 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
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<PAGE>
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, Infinity, 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 Infinity 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
Infinity or any other indemnified party and shall survive the transfer of such
securities by Infinity.
(b) Infinity 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 Infinity
and stated to be specifically for use therein; provided, however, that the
liability of Infinity hereunder shall be limited to the net proceeds received by
Infinity 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
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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, except to the extent that such 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
Infinity 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), Infinity
will not be obligated to make contributions which, in the aggregate, exceed 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 Infinity. Infinity shall furnish to the
Company such information regarding Infinity and the distribution proposed by
Infinity 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 conveyed to a transferee or assignee of
Registrable Securities, provided that such transferee or assignee (or, if such
transferee or assignee is a wholly-owned subsidiary of Infinity, together with
Infinity and other wholly-owned subsidiaries
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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 Infinity, 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 Infinity'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 Infinity and other holders possessing "piggyback"
registration rights, but not prior to Infinity's Demand rights under Section 1.2
hereof).
1.11 Rule 144 Reporting. With a view to making available to
Infinity 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 Infinity owns any Registrable Securities,
furnish to Infinity forthwith upon request: (i) a written statement by the
Company as to its compliance with the reporting requirements of (A) said Rule
144 of the 1933 Act, (B) the 1993 Act and (C) the 1934 Act; (ii) a copy of the
most recent annual or quarterly report of the Company; and (iii) such other
reports and documents as Infinity may reasonably request in availing itself of
any rule or regulation of the SEC allowing it to sell any such securities
without registration.
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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 Management Warrants.
Infinity and the Company agree that, subject to compliance with all applicable
securities laws, Infinity may Transfer either Management Warrant, or any portion
thereof, (a) to 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 such Management Warrant, 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 such Management
Warrant as if such transferee were the "Holder" referred to therein.
2.3 Restrictions on Transfer of Registrable Securities.
Infinity 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) Infinity 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 Sections 3.2(a) or (b) thereof, there shall be no
restrictions on Transfer of the Registrable Securities except the one-year
restriction set forth in (a) above;
(c) If Infinity, as Manager under the Management
Agreement, terminates the Management Agreement, or if the Company terminates the
Management Agreement pursuant to Sections 3.2(a) or (b) thereof, Infinity may
Transfer without contractual restriction such of the Registrable Securities as
Infinity 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, Infinity may sell in the
aggregate twenty-five percent (25%) of the sum of (i) the Registrable Securities
then held by Infinity plus (ii) any Registrable Securities which, at the time of
calculating such percentage amount, could then be acquired by Infinity upon
exercise of the Management Warrants; and such percentage amount shall be
increased by twenty-five percent (25%) on each subsequent
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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 Management
Agreement and the Management Warrants 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.
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
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with a copy to: Skadden, Arps, Slate,
Meagher & Flom 300 South
Grand Avenue Los
Angeles, California
90071 Attention: Brian
J. McCarthy, Esq.
Facsimile: (213)
687-5600
If to Infinity: Infinity Broadcasting
Corporation 40 West 57th
Street New York, New
York 10019 Attention:
Mr. Farid Suleman
Facsimile: (212)
314-9336
with a copy to: Weil, Gotshal & Manges
LLP 767 Fifth Avenue New
York, New York 10153
Attention: Howard
Chatzinoff, Esq.
Facsimile: (212)
310-8007
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 Infinity.
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.
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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 Infinity and (b) Infinity 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.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, the parties have caused this
Registration Rights 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/ David I. Saperstein
------------------------------------------
Name: David I. Saperstein
Title: Chief Executive Officer
INFINITY BROADCASTING CORPORATION
By: /s/ Farid Suleman
------------------------------------------
Name: Farid Suleman
Title: Senior Vice President and
Chief Financial Officer
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Schedule 1.3(b)
---------------
1. Registration Rights Agreement, dated as of February 3, 1994, by and
between Westwood One, Inc. and Infinity Network Inc.
