As filed with the Securities and Exchange Commission on Septemter 25, 1995
Registration No. 33-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
_____________________
WESTWOOD ONE, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-3980449
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
9540 Washington Boulevard
Culver City, California 90232
Telephone: (310) 204-5000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
FARID SULEMAN
Chief Financial Officer
9540 Washington Boulevard
Culver City, California 90232
Telephone: (310) 204-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this registration statement as exercise
notices are received.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. __
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. X
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. __
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. __
If delivery of the Prospectus is expected to be made pursuant to Rule 434,
please check the following box. __
CALCULATION OF REGISTRATION FEE
<TABLE>
Proposed Proposed
Title of each class maximum maximum Amount of
of securities Amount to be offering price aggregate registration
to be registered registered per unit offering price fee
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------
Common Stock 2,549,398 $17.25 $43,977,115 $15,165
=============================================================================================
</TABLE>
<PAGE>
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
WESTWOOD ONE, INC.
______
Cross-Reference Sheet
(Between Items of Form S-3 and Prospectus)
______
<TABLE>
Form S-3 Item and Caption Prospectus Captions
- ------------------------- -------------------
<C> <C>
1. Forepart of Registration Statement Front Cover Page
and Outside Front Cover Page of
Prospectus
2. Inside Front and Outside Back Available Information;
Cover Pages of Prospectus Incorporation of Certain Documents
by Reference; Table of Contents
3. Summary Information, Risk Factors and Prospectus Summary
Ratio of Earnings to Fixed Charges
4. Use of Proceeds Use of Proceeds
5. Determination of Offering Price Not Applicable
6. Dilution Not Applicable
7. Selling Security Holders Not Applicable
8. Plan of Distribution Front Cover Page
9. Description of Securities to be Description of Capital Stock
Registered
10. Interests of Named Experts Legal Matters
and Counsel
11. Material Changes Not Applicable
12. Incorporation of Certain Incorporation of Certain
Information by Reference Documents by Reference
13. Disclosure of Commission Not Applicable
Position on Indemnification
for Securities Act Liabilities
</TABLE>
<PAGE>
PROSPECTUS
2,549,398 Shares of Common Stock
WESTWOOD ONE, INC
This Prospectus relates to the issuance and sale by Westwood One, Inc. (the
"Company"), from the date hereof through and including September 4, 1997, of up
to 2,549,398 shares of its Common Stock, par value of $ .01, (the "Common
Stock") from time to time upon the exercise of its currently outstanding Seven
Year Common Stock Purchase Warrants (the "Warrants"), (CUSIP 961815-11-5;
symbol: WONEW). The Warrants are exercisable for the purchase of an equal number
of shares of Common Stock at $17.25 per share (the "Warrant Price") and expire
on September 4, 1997. The Warrant Price is subject to adjustment if certain
events occur, as more fully described herein.
The Common Stock is traded on the NASDAQ National Market System. The last
sales price of the Common Stock on September 22, 1995 was $16.625 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THE PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
<TABLE>
Underwriting
Price to Discounts and Proceeds
Public Commission to Company (1)
<S> <C> <C> <C>
Per Share..................................... $17.25 N/A $17.25
Total (1)..................................... $43,977,115 N/A $43,997,115
</TABLE>
(1) Before deducting expenses payable by the Company estimated at $ 50,000:
The date of this Prospectus is September ______, 1995
<PAGE>
PROSPECTUS
TABLE OF CONTENTS
Available Information.........................................................3
Incorporation of Certain Documents by Reference...............................3
Prospectus Summary
The Company...................................................................4
Risk Factors..................................................................5
Capitalization................................................................6
Selected Financial Data.......................................................7
Use of Proceeds...............................................................8
Price Range of Common Stock...................................................8
Description of Warrants.......................................................9
Description of Capital Stock..................................................10
Legal Matters.................................................................11
2
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT
BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR BY ANY AGENT. NEITHER
THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL
UNDER ANY CIRCUMSTANCES CREATE AN IMPLICATION THAT THERE HAS BEEN NO CHANGE IN
THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR THAT THE
INFORMATION CONTAINED HEREIN OR THEREIN IS CORRECT AT ANY TIME SUBSEQUENT TO THE
DATE HEREOF OR THEREOF. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER OR
SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION
IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING SUCH OFFER OR SOLICITATION IS
NOT QUALIFIED TO DO SO OR TO ANYONE TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports and other
information may be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549
and at the following regional offices of the Commission: Seven World Trade
Center, 13th Floor, New York, New York 10048 and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such materials
may be obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed with the Commission pursuant to
the Exchange Act and are incorporated by reference into this Prospectus and made
a part hereof:
(i) the Company's Annual Report on Form 10-K for the year ended
December 31, 1994, and,
(ii) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1995 and June 30, 1995.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Prospectus and prior to the
termination of the offering of the Securities offered hereby shall be deemed to
be a part hereof and thereof from the respective dates of filing of such
documents, provided, however, that the Report of the Compensation Committee and
the Performance Graph contained in any Proxy Statement of the Company shall not
be so deemed incorporated by reference. Any statement contained in a document
incorporated or deemed incorporated by reference in this Prospectus shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein, therein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference in
this Prospectus modifies or supersedes such statement. Any statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request, a copy of any or all of
the foregoing documents incorporated herein by reference (other than exhibits to
such documents, unless such exhibits are specifically incorporated by reference
into such documents). Requests for such documents should be directed to Westwood
One, Inc., 9540 Washington Boulevard, Culver City, CA 90232, Attention: Investor
Relations (telephone (310) 840-4313).
3
<PAGE>
PROSPECTUS SUMMARY
This summary is qualified in its entirety by the detailed information and
financial statements and notes thereto appearing elsewhere or incorporated by
reference in this Prospectus.
THE COMPANY
Westwood One, Inc. (the "Company" or "Westwood One") is the leading
producer and distributor of nationally sponsored radio programs and is the
nation's second largest radio network.
The Company's principal source of revenue is selling radio time to
advertisers through one of its two operating divisions: Westwood One Radio
Networks and Westwood One Entertainment (the "Divisions"). The Company generates
revenue principally by its Divisions entering into radio station affiliation
agreements to obtain audience and commercial spots and then selling the spots to
national advertisers. The Company is strategically positioned to provide a broad
range of programming and services which both deliver audience to advertisers and
news, talk, sports, and entertainment programs to radio stations.
Westwood One Radio Networks offers radio stations three traditional news
services, CNN Radio, NBC Radio Network and the Mutual Broadcasting System, plus
youth-oriented network news and entertainment programming from The Source, in
addition to eight 24-hour satellite-delivered continuous play music formats and
weekday and weekend news and entertainment features and programs.
Westwood One Entertainment produces music, sports, talk and special event
programming. These programs include: countdown shows; music and interview
programs; live concert broadcasts; major sporting events (principally covering
the NFL, Notre Dame football and other college football and basketball games);
live, personality intensive talk shows; and exclusive satellite simulcasts with
HBO and other cable networks.
The Company's programs are broadcast in every radio market in the United
States measured by The Arbitron Ratings Company ("Arbitron"), the leading rating
service, as well as being broadcast internationally.
Westwood One, through its Divisions, enables national advertisers to
purchase advertising time and to have their commercial messages broadcast on
radio stations throughout the United States, reaching demographically defined
listening audiences. The Company delivers both of the major demographic groups
targeted by national advertisers: the 25 to 54-year-old adult market and the 12
to 34-year-old youth market. The Company currently sells advertising time to
over 300 national advertisers, including each of the 25 largest network radio
advertisers. Radio stations are able to obtain quality programming from Westwood
One to meet their objective of attracting larger listening audiences and
increasing local advertising revenue. Westwood One, through the development of
internal programming as well as through acquisitions, has developed an extensive
tape library of previously aired programs, interviews, live concert
performances, news, and special events. The Company uses its library as a major
source of new programming, enhancing the Company's future programming and
revenue generating capabilities.
Westwood One was originally incorporated in California in 1974 and,
pursuant to a reorganization approved by its stockholders, was reincorporated in
Delaware on July 10, 1985. The Company's principal offices are located at 9540
Washington Blvd., Culver City, California 90232 and its telephone number is
(310) 204-5000.
4
<PAGE>
RISK FACTORS
IN ADDITION TO THE OTHER INFORMATION PROVIDED IN THIS
PROSPECTUS AND IN THE DOCUMENTS INCORPORATED BY REFERENCE HEREIN, THE FOLLOWING
FACTORS SHOULD BE CAREFULLY CONSIDERED IN EVALUATING THE COMPANY BEFORE
PURCHASING THE COMMON STOCK OFFERED BY THIS PROSPECTUS.
RISKS ASSOCIATED WITH THE MANAGEMENT AGREEMENT. Mel Karmazin
and Farid Suleman serve as the Chief Executive Officer and Chief Financial
Officer, respectively, of the Company pursuant to the Company's Management
Agreement with Infinity Broadcasting Corporation ("Infinity"). The agreement
expires in February 1999 and there can be no assurance that the parties will
agree to an extension. Moreover, termination of the agreement by the Company for
other than Cause (which is narrowly defined in the agreement) could have a
material adverse impact on the financial condition of the Company in that the
Company would remain liable for payment of the annual base management fee of
$2,000,000 for the five-year term of the agreement and the cash incentive
compensation, if any, payable in the fiscal year of termination, and certain
warrants to purchase Common Stock held by a subsidiary of Infinity would
immediately vest. Also, under the agreement, if Mr. Karmazin ceases to hold a
senior managerial position with Infinity or any affiliate during the term of the
agreement, he will cease to be the Company's Chief Executive Officer, and if Mr.
Suleman ceases to be Chief Financial Officer of Infinity, he will cease to be
Chief Financial Officer of the Company. There can be no assurance that Messrs.
Karmazin or Suleman will remain in such positions during the term of the
agreement, and the foregoing would not constitute grounds for termination of the
agreement for "Cause" and thus would not permit the Company to terminate the
agreement without remaining liable for the termination fees.
RISKS ASSOCIATED WITH THE NATIONAL RADIO ADVERTISING MARKET.
Although the Company has experienced revenue growth since its acquisition of
Unistar in February 1994, continued revenue growth depends in part on growth of
the national radio advertising market, of which there can be no assurance.
5
<PAGE>
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Company at June 30, 1995 and as adjusted to reflect the issuance of 2,549,398
shares of Common Stock as a result of this offering:
($ in thousands, except per share amounts)
<TABLE>
Actual
------
<S> <C>
Long-term Debt (1) ................................................................. $107,943
--------
Shareholders' equity:
Preferred Stock, $.01 par value, 10,000,000
shares authorized; no shares outstanding .................................. --
Common Stock, $.01 par value, 117,000,000
shares authorized; 31,206,402 shares
outstanding (2) (3) ....................................................... 312
Class B Stock, $.01 par value, 3,000,000
shares authorized; 351,733 outstanding .................................... 4
Additional paid in capital ................................................... 161,093
Accumulated deficit .......................................................... (62,841)
--------
98,568
Less treasury stock, at cost; 101,500 share .................................. (1,447)
--------
Total shareholders' equity ................................................ 97,121
--------
Total capitalization ............................................... $205,064
========
<FN>
________
(1) - Includes $15,443 principal amount of 6 3/4% Convertible Subordinated
Debentures due 2011, convertible into shares of the Company's Common
Stock at a conversion price of $24.583 per share, subject to adjustment
under certain circumstances.
(2) - An aggregate of 4,800,000 shares are reserved for issuance under
the Company's stock option plan. Options to acquire 3,162,250 shares
have been granted, of which options to acquire 396,625 shares are
currently exercisable and options to acquire 1,772,875 shares have
been exercised. Shares outstanding do not include 75,000 shares
issuable upon the exercise of options granted pursuant to an
employment agreement with the Company's Chairman of the Board.
(3) - Does not include 4,500,000 shares issuable upon exercise of warrants
held by a subsidiary of Infinity. Warrants covering 2,000,000 of such
shares are currently exercisable.
</FN>
</TABLE>
6
<PAGE>
SELECTED FINANCIAL DATA
The following selected financial information should be read in
conjunction with the consolidated financial statements and financial information
incorporated by reference in this Prospectus.
<TABLE>
FISCAL YEAR ENDED
Unaudited --------------------------------------------------------------------
November 30,
Six Months Ended June 30, Dec 31, ---------------------------------------------------------
-------------------------
1995 1994 1994 1993 1992 1991 1990
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
NET REVENUES $68,979 $62,203 $136,340 $84,014 $86,376 $93,170 $92,389
DEPRECIATION & AMORTIZATION 6,751 8,960 18,160 16,384 19,661 22,055 22,856
OPERATING INCOME (LOSS) 6,783 (1,281) 5,982 (2,191) (18,700) (5,931) (9,309)
INCOME (LOSS) FROM 1,743 (5,233) (2,730) (8,682) (21,397) (10,004) (12,915)
CONTINUING OPERATIONS
(LOSS) FROM DISCONTINUED -- -- -- (15,227) (2,721) (6,778) (5,260)
OPERATIONS
INCOME (LOSS) BEFORE EXTRA- 1,743 (5,233) (2,730) (23,909) (24,118) (16,782) (18,175)
ORDINARY ITEM
EXTRAORDINARY GAIN (LOSS) -- (590) (590) -- -- 25,618 --
NET INCOME (LOSS) $1,743 ($5,823) ($3,320) ($23,909) ($24,118) $8,836 ($18,175)
INCOME (LOSS) PER SHARE
Primary:
Continuing Operations $ .05 ($ .19) ($ .09) ($ .57) ($1.44) ($ .67) ($ .89)
Discontinued Operations -- -- -- ( 1.01) ( .18) ( .46) ( .36)
-------- -------- -------- -------- -------- -------- --------
Income (Loss) Before Extraordinary
Item .05 ( .19) ( .09) ( 1.58) ( 1.62) ( 1.13) ( 1.25)
Extraordinary Item -- ( .02) ( .02) -- -- 1.73 --
-------- -------- -------- -------- -------- -------- --------
Net Income (Loss) $ .05 ($ .21) ($ .11) ($ 1.58) ($ 1.62) $ .60 ($ 1.25)
Fully diluted:
Continuing Operations $ .05 ($ .19) ($ .09) ($ .57) ($1.44) ($ .30) ($ .89)
Discontinued Operations -- -- -- ( 1.01) ( .18) ( .28) ( .36)
-------- -------- -------- -------- -------- -------- --------
(Loss) Before Extraordinary Item .05 ( .19) ( .09) ( 1.58) ( 1.62) ( .58) ( 1.25)
Extraordinary Item -- ( .02) ( .02) -- -- 1.06 --
-------- -------- -------- -------- -------- -------- --------
Net Income Loss $ .05 ($ .21) ($ .11) ($ 1.58) ($ 1.62) $ .48 ($ 1.25)
======== ======== ======== ======== ======== ======== =========
BALANCE SHEET DATA AT:
November 30,
June 30, 1995 Dec 31, --------------------------------------------------------------
(Unaudited) 1994 1993 1992 1991 1990
------------- ------- ---- ---- ---- ----
CURRENT ASSETS $41,499 $46,157 $32,987 $51,091 $46,126 $54,312
WORKING CAPITAL 6,701 7,685 (1,503) (11,942) 10,200 28,676
TOTAL ASSETS 249,528 260,112 152,067 295,740 322,561 343,783
LONG-TERM DEBT 107,943 115,443 51,943 146,622 169,083 214,342
TOTAL SHAREHOLDERS' EQUITY 97,121 95,454 55,151 75,204 98,765 89,496
</TABLE>
_________________________________
Effective December 1, 1993, the Company changed its method of accounting for
capitalized station affiliation agreements to expense the costs as
incurred. The effect of this change in accounting method does not
materially affect the comparability of the information reflected herein.
Results for the year ended December 31, 1994 include Unistar Radio Networks,
Inc. from the time it was acquired in February 1994.
No cash dividend was paid on the Company's common stock during the periods
presented above.
7
<PAGE>
USE OF PROCEEDS
The maximum net proceeds to be received by the Company from the Common
Stock offered hereby are estimated to be approximately $43,977,000. The Company
currently intends to use such proceeds for general corporate purposes, repayment
of debt or Common Stock repurchases. As there is no assurance that any or all of
the Warrants will be exercised, the Company is unable to predict the amount to
be used for each such purpose.
PRICE RANGE OF COMMON STOCK
The Company's Common Stock has been traded in the over-the-counter market
under the NASDAQ symbol WONE since the Company's initial public offering on
April 24, 1984. The following table sets forth the range of high and low last
sales prices on the NASDAQ /National Market System, as reported by NASDAQ, for
the Common Stock for the calendar quarters indicated.
1993 High Low
First Quarter...........................2 5/8 1 19/32
Second Quarter..........................3 1/16 2 3/8
Third Quarter...........................3 1/8 2 3/8
Fourth Quarter..........................9 1/4 2 9/16
1994
First Quarter...........................10 1/2 7 5/8
Second Quarter.......................... 8 7/8 7 1/8
Third Quarter...........................1 13/8 7 11/16
Fourth Quarter..........................11 1/4 7 5/8
1995
First Quarter...........................13 1/8 9 3/4
Second Quarter..........................15 1/8 12 1/8
Third Quarter (thru 9/22)...............19 3/8 14 3/4
On September 22, 1995 the last sale price of the Common Stock as reported
on the NASDAQ National Market System was $16.625 per share. The current policy
of the Company's Board of Directors is to retain earnings for expansion and
development of the Company's business.
8
<PAGE>
DESCRIPTION OF WARRANTS
Warrants
The Company currently has 2,549,398 Seven Year Common Stock Purchase
Warrants (the "Warrants") outstanding. The Warrants are exercisable for the
purchase of an equal number of shares of Common Stock. The Warrants are
exercisable at $17.25 per share and expire at 5:00 PM Los Angeles time on
September 4, 1997. Under the terms of the Warrant, if, during any twenty-day
trading period, occuring between September 5, 1995 and September 4, 1997, the
average volume weighted closing price of the Common Stock is below $5 per share,
then each Warrant then outstanding shall be redeemed from its then current owner
by the Company at a price of $1 in cash per Warrant. Within the term of the
exercisability of the Warrants, upon an acquisition, merger, buy-out or similar
transaction in which the Company is not the surviving entity, or upon a "going
private" transaction by the Company within that period, the surviving entity
shall be required to redeem all of the Warrants at a price of $1 in cash per
Warrant. Said Redemption shall be completed within 45 days of the occurrence of
the requiring redemption event, after which redemption, the Warrants shall be
canceled. The Warrant Price is subject to adjustment based on (a) dividends or
distributions in Common Stock or subdivisions, reclassifications or combinations
of the outstanding shares of Common Stock; (b) the issuance of warrants or
rights to all holders of Common Stock to purchase Common Stock at less than 85%
of Current Market Price (as defined); or (c) the distribution by the Company to
all holders of its Common Stock of shares of (i) another class of stock, (ii)
evidences of its indebtedness, (iii) assets (other than cash distributions and
distributions described in (a) above), or (iv) rights or warrants to acquire
securities of the Company (other than those described in (b) above).
Transfer Agent and Registrar
The transfer agent and registrar for the Company's Warrants is the
Registrar and Transfer Company.
9
<PAGE>
DESCRIPTION OF CAPITAL STOCK
Common Stock
The Company is authorized to issue 117,000,000 shares of Common Stock, par
value $.01 per share, of which 31,253,027 shares were outstanding at September
22,1995. Each holder of Common Stock is entitled to one vote for each share
held of record on each matter submitted to a vote of stockholders. Holders of
Common Stock voting separately as a class are entitled to elect one-fifth of the
members of the Board of Directors. Holders of Common Stock have no preemptive or
subscription rights; they are entitled to receive such dividends, if any, as may
be declared by the Board of Directors out of funds legally available therefor
(surplus and certain net profits). Cash dividends per share on Common Stock, if
paid, must be at least 25% greater than any cash dividend paid at the same time
on Class B Stock, and no cash dividend may be paid on Class B Stock unless
Common Stock also is paid a cash dividend. In the event of liquidation,
dissolution or winding up of the Company, holders of Common Stock and holders of
Class B Stock are entitled to share equally and ratably in the assets, if any,
remaining after payment of all debts and liabilities. These rights may be
subject to superior rights of the holders of any series of Preferred Stock that
may be issued. All of the shares of Common Stock issued and outstanding at the
date of this Prospectus are fully paid and non-assessable.
Class B Stock
The Company is authorized to issue 3,000,000 shares of Class B Stock, par
value $.01 per share, of which 351,733 shares were outstanding at
September 22, 1995. Each holder of Class B Stock is entitled to 50 votes for
each share held of record on each matter submitted to a vote of stockholders,
provided that one-fifth of the members of the Board of Directors are elected by
holders of Common Stock voting separately as a class without participation by
holders of Class B Stock. Class B Stock is not transferable, except to certain
family members and related entities, but Class B Stock is convertible at any
time on a share-for-share basis into Common Stock. Holders of Class B Stock have
no preemptive or subscription rights. They are entitled to receive such
dividends, if any, as may be declared by the Board of Directors out of funds
legally available therefor (surplus and certain net profits), provided that no
cash dividends may be paid on Class B Stock unless a per share cash dividend at
least 25% greater is paid at the same time on the Common Stock. In the event of
liquidation, dissolution or winding up of the Company, holders of Class B Stock
and holders of Common Stock are entitled to share equally and ratably in the
assets, if any, remaining after payment of all debts and liabilities. These
rights may be subject to superior rights of the holders of any series of
Preferred Stock that may be issued. All of the shares of Class B Stock issued
and outstanding at the date of this Prospectus are fully paid and
non-assessable.
Preferred Stock
The Company is authorized to issue 10,000,000 shares of Preferred Stock,
par value $.01 per share. The Board of Directors is authorized, without further
stockholder approval, to establish from time to time one or more series of
Preferred Stock and to determine the rights, preferences and privileges of any
such series, including dividend rights, dividend rates, conversion rights,
voting rights, terms of redemption, liquidation preferences, sinking fund terms
and the name, description and number of shares constituting any such series. The
Board of Directors, without stockholder approval, can issue Preferred Stock with
voting and/or conversion rights which could adversely affect the voting power of
the holders of Common Stock. As of the date of this Prospectus, no shares of
Preferred Stock have been issued.
10
<PAGE>
Transfer Agent and Registrar
The transfer agent and registrar for the Company's Common Stock is Bank of
Boston, Canton, Massachusetts.
LEGAL MATTERS
Certain legal matters with respect to the shares of Common Stock offered
by this Prospectus will be passed upon for the Company by Bryan Cave, LLP.
11
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses estimated to be incurred in connection with the offering, all
of which will be borne by the Registrant, are as follows:
Registration Fee.....................................$15,164.52
NASD Filing Fee...................................... 17,500.00
Printing............................................. 5,000.00
Legal Fees and Expenses.............................. 3,000.00
(Other than Blue Sky)
Accounting Fees and Expenses......................... 3,000.00
Miscellaneous........................................ 6,335.48
---------
Total..................................$50,000.00
==========
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of the State of Delaware
provides:
145. Indemnification of officers, directors, employees and agents; insurance
(a) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorney's
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending, or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
I - 1
<PAGE>
(c) To the extent that a director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made (1) by the board of directors by a
majority vote of a quorum consisting of directors who were not parties to such
action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even
if obtainable a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
(e) Expenses incurred by an officer or director in defending a civil or
criminal action, suit, or proceeding may be paid by the corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the corporation as authorized in this section. Such expenses incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided by or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his official capacity
and as to action in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise shall stand in the same
position under this section with respect to the resulting or surviving
corporation as he would have with respect to such constituent corporation if its
separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to " serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries, and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or
granted pursuant to, this section shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such person.
I - 2
<PAGE>
Article Twentieth of the Company's Certificate of Incorporation provides:
TWENTIETH: Liability of Directors
No director of this Corporation shall have personal liability to the
Corporation or any of its stockholders for monetary damages for breach of
fiduciary duty as a director. The foregoing provision shall not eliminate or
limit the liability of a director (i) for any breach of director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for
any transaction from which the director derived an improper personal benefit.
Article V of the Company's Bylaws provides:
INDEMNIFICATION OF DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER CORPORATE AGENTS
To the fullest extent authorized by the Delaware General Corporation Law,
as the same exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than said law permitted the Corporation
to provide prior to such amendment), the Corporation shall indemnify and hold
harmless against all expenses, liability and loss (including without limitation,
attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts
paid or to be paid in settlement) reasonably incurred or suffered by each person
who was or is a party to, or is threatened to be made a party to, any
threatened, pending or completed action, suit or proceeding, whether or not by
or in the right of the Corporation and whether civil, criminal, administrative,
investigative or otherwise (any such action, suit, or proceeding being
hereinafter in this Article referred to as a "proceeding"), by reason of the
fact that such person is or was a director, officer, employee or agent of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, including service with respect to employee benefit
plans, or was a director, officer, employee or agent of a foreign or domestic
corporation which was a predecessor corporation of the Corporation or of another
enterprise at the request of such predecessor corporation (any such person being
hereafter in this Article referred to as an "indemnifiable party"). The right of
indemnification conferred by this Article shall be a contract right. Where
required by law, the indemnification provided for in this Article shall be made
only as authorized in the specific case upon a determination, in the manner
provided by law, that the indemnification of the indemnifiable party is proper
in the circumstances. The Corporation shall advance the indemnifiable parties
expenses incurred in defending any proceeding prior to the final disposition
thereof subject to the receipt of such undertakings from such indemnifiable
party as shall be required by the applicable law. This Article shall create a
right of indemnification for each such indemnifiable party whether or not the
proceeding to which the indemnification relates arose in whole or in part prior
to adoption of this Article (or the adoption of the comparable provisions of the
Bylaws of the Corporation's predecessor corporation) and, in the event of the
death of an indemnifiable party, such right shall extend to such indemnifiable
party's heirs and legal representatives.
If a claim under this Article is not paid in full by the Corporation
within thirty days after a written claim has been received by the Corporation,
the indemnifiable party may at any time thereafter bring suit against the
Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the indemnifiable party shall be entitled to be paid also the
expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any is required, has been tendered to the Corporation) that the
indemnifiable party has not met the standards of conduct which make it
permissible under the Delaware General Corporation Law for the Corporation to
indemnify the claimant for the amount claimed, but the burden of proving such
defense shall be on the Corporation. Neither the failure of the Corporation
(including its Board of Directors, independent legal counsel or its
stockholders) to have made a determination prior to the commencement of such
action that indemnification of the claimant is proper in the circumstances
because he or she has met the applicable standard of conduct set forth in the
Delaware General Corporation Law
I - 3
<PAGE>
nor an actual determination by the Corporation (including its Board Directors,
independent legal counsel or its stockholders) that the claimant has not met
such applicable standard of conduct, shall be a defense to the action or create
a presumption that the claimant has not met the applicable standard of conduct.
The right of indemnification hereby given shall not be exclusive of any
right such indemnifiable party may have, whether by law or under any agreement,
insurance policy, vote of the Board of Directors or stockholders, or otherwise.
The Corporation shall have power to purchase and maintain insurance on
behalf of any indemnifiable party against any liability asserted against or
incurred by the indemnifiable party in such capacity or arising out of the
indemnifiable party's status as such whether or not the Corporation would have
the power to indemnify the indemnifiable party against such liability.
* * * *
The stockholders of the Company have approved, and the Company has entered
into, written agreements with each of its directors and executive officers which
provide them with contractual indemnification to the fullest extent permitted by
Delaware law.
Item 16. Exhibits
5 Opinion of Bryan Cave, LLP
23.3 Consent of Bryan Cave, LLP--included as part of the opinion as Exhibit 5.
23.4 Consent of Price Waterhouse, LLP
24 Power of Attorney--included in Part II.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement.
(i) Not applicable.
(ii) Not applicable.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(4) Not applicable.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein and the offering of such securities at
that time shall be deemed to be the initial bona fide offering hereof.
I - 4
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers, and controlling persons of
the registrant pursuant to the provisions described in Item 15 or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be a part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
I - 5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on September 25, 1995.
WESTWOOD ONE, INC.
By: /s/FARID SULEMAN
-----------------------
(Farid Suleman)
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints each of Mel Karmazin,
Farid Suleman and Gary J. Yusko, his agent and attorney in fact, with full power
of substitution, to execute for him and in his name, in any and all capacities,
all amendments (including post-effective amendments) to this Registration
Statement to which this power of attorney is attached.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
Signature Title Date
<C> <C> <C>
Principal Executive Officer:
/s/MEL A. KARMAZIN Director, President and September 25, 1995
- ------------------- Chief Executive Officer
Mel A. Karmazin
Principal Financial Officer and
Chief Accounting Officer:
/s/FARID SULEMAN Director, Secretary and September 25, 1995
- ----------------- Chief Financial Officer
Farid Suleman
Additional Directors:
/s/NORMAN J. PATTIZ Chairman of the Board September 25, 1995
- ------------------- of Directors
Norman J. Pattiz
- ----------------- Director
David L. Dennis
/s/GERALD GREENBERG Director September 25, 1995
- --------------------
Gerald Greenberg
/s/STEVE LERMAN Director September 25, 1995
- -----------------
Steve Lerman
/s/PAUL G. KRASNOW Director September 25, 1995
- ------------------
Paul G. Krasnow
/s/ARTHUR E. LEVINE Director September 25, 1995
- -------------------
Arthur E. Levine
- ----------------- Director
Joseph B. Smith
</TABLE>
I - 6
September 19, 1995
Westwood One, Inc.
9540 Washington Boulevard
Culver City, California 90232
Gentlemen:
We have acted as counsel to Westwood One, Inc. (the "Company") in
connection with the sale by the Company from time to time of up to 2,549,398
shares (the "Shares") of the Company's Common Stock, par value $.01 per share,
upon the exercise of the Company's Seven Year Common Stock Purchase Warrants,
which sale is being registered pursuant to the Company's Registration Statement
on Form S-3 under the Securities Act of 1933 (the "Registration Statement"). In
that capacity, we are familiar with the proceedings, corporate and other,
relating to the authorization and issuance of the Shares.
Based on the foregoing, and such other examination of law and fact as
we have deemed necessary, we are of the opinion that, when issued as described
in the Registration Statement, the Shares will be legally issued, fully paid and
non-assessable.
We consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the caption "Legal
Matters" in the Prospectus which is a part of the Registration Statement.
Very truly yours,
BRYAN CAVE, LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 24, 1995 appearing on page F-2 of Westwood One, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1994.
PRICE WATERHOUSE, LLP
Century City, CA
September 25, 1995
