As filed with the Securities and Exchange Commission on September 22, 1999
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
POST-EFFECTIVE AMENDMENT NO. 1 ON FORM S-8
TO
FORM S-4 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 Identification No.)
of incorporation or organization)
9540 WASHINGTON BOULEVARD
CULVER CITY, CALIFORNIA 90232
(310) 840-4000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
METRO NETWORKS, INC. 1996 INCENTIVE STOCK OPTION PLAN
METRO NETWORKS, INC. 1997 STOCK OPTION PLAN
METRO NETWORKS, INC. NONQUALIFIED STOCK OPTION AGREEMENTS
(Full Title of Plan)
FARID SULEMAN
CHIEF FINANCIAL OFFICER
WESTWOOD ONE, INC.
9540 WASHINGTON BOULEVARD
CULVER CITY, CALIFORNIA 90232
(212) 314-9215
(Name and address, including zip code,
and telephone number, including area code, of agent for service)
Copies to:
HOWARD CHATZINOFF, ESQ. NEIL A. TORPEY, ESQ.
WEIL, GOTSHAL & MANGES LLP PAUL, HASTINGS, JANOFSKY & WALKER LLP
767 FIFTH AVENUE 399 PARK AVENUE
NEW YORK, NY 10153 NEW YORK, NY 10022
(212) 310-8000 (212) 318-6000
*This Post-Effective Amendment No. 1 covers 3,062,729 shares of the
Registrant's common stock, all of which shares were originally registered on the
Registration Statement on Form S-4, Registration No. 333-85609 (the "Form S-4
Registration Statement"), to which this is an amendment. The registration fee
with respect to the 28,174,979 shares of the Registrant's common stock
originally registered on the Form S-4 Registration Statement was paid at the
time of the original filing of the Form S-4 Registration Statement. Accordingly,
there is no registration fee to be paid in connection with the filing of this
Post-Effective Amendment No. 1.
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NY2:\811482\05\H#5605!.DOC\80764.0005
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INTRODUCTORY STATEMENT
Westwood One, Inc., a Delaware corporation ("Westwood"),
amends its registration statement on Form S-4 (Registration No. 333-85609) by
filing this Post-Effective Amendment No. 1 on Form S-8 relating to the sale of
up to 3,062,729 shares of Westwood common stock issuable upon the exercise of
options granted under the following stock option plans of Metro Networks, Inc.
("Metro"):
o 1996 Incentive Stock Option Plan;
o 1997 Stock Option Plan; and
o Nonqualified Stock Option Agreements.
On September 22, 1999, Copter Acquisition Corp., a Delaware
corporation and a direct, wholly-owned subsidiary of Westwood ("Copter"), merged
with and into Metro (the "Merger"), and Metro was the surviving corporation in
the Merger. As a result of the Merger, each outstanding share of Metro common
stock, with certain exceptions, was converted into the right to receive 1.5
shares of Westwood common stock. In addition, each outstanding option issued
pursuant to the Metro stock option plans is no longer exercisable for shares of
Metro common stock, but instead, constitutes an option to acquire, on the same
terms and conditions as the option would have been exercisable for Metro common
stock immediately prior to the consummation of the Merger, subject to certain
exceptions, including that the non-employee director nonqualified stock options,
which aggregate 70,000 shares, will immediately accelerate, that number of
shares of Westwood common stock equal to the product of (x) the aggregate number
of shares of Metro common stock for which such Metro stock option was
exercisable and (y) 1.5, rounded down to the nearest whole share, if necessary.
The exercise price for each Metro option is equal to the exercise price
immediately prior to the effective time of the Merger divided by 1.5, rounded up
to the nearest whole cent, if necessary.
This Post-Effective Amendment No. 1 relates only to the
shares of Westwood common stock issuable upon the exercise of options under the
Metro stock option plans. This is the first post-effective amendment on the Form
S-4 Registration Statement filed with respect to these shares.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part
I of Form S-8 and the statement of availability of information required by Item
2 of Form S-8 and information relating to the Metro stock option plans and other
information required by Item 2 of Form S-8 have previously been, or will be,
sent or given to plan participants as specified by Rule 428(b)(1) of the
Securities Act of 1933, as amended. Such documents are not required to be and
are not filed with the Securities and Exchange Commission either as part of this
registration statement or as prospectuses or prospectus supplements pursuant to
Rule 424. These documents and the documents incorporated by reference in this
registration statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section 10(a)
of the Securities Act.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and
Exchange Commission by Westwood pursuant to the Securities Exchange Act of 1934,
as amended, are incorporated by reference in this document:
o Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
o Quarterly Reports on Form 10-Q for the quarters ended
June 30, 1999 and March 31, 1999;
o Form 8-K filed on June 4, 1999; and
o The description of Westwood's common stock set forth
in its registration statement on Form S-3/A, filed by
Westwood with the Securities and Exchange Commission
(the "SEC") on May 5, 1996.
All documents subsequently filed by Westwood with the
Securities and Exchange Commission pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act, prior to the filing of a post-effective amendment to
this registration statement which indicates that all securities covered by this
registration statement have been sold or which deregisters all of the securities
then remaining unsold, will be deemed to be incorporated by reference in this
registration statement and to be a part of this document from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference in this document will be deemed to be modified
or superseded for purposes of this Post-Effective Amendment No. 1 to the Form
S-4 Registration Statement to the extent that a statement contained in this
document or in any other subsequently filed document which also is or is deemed
to be incorporated by reference in this document modifies or supersedes such
statement. Any such statement so modified or superseded will not be deemed,
except as so modified or superseded, to constitute a part of this Post-Effective
Amendment No. 1.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant is incorporated under the laws of the State
of Delaware. Section 145 of the General Corporation Law of the State of Delaware
("DGCL") provides that a Delaware corporation may indemnify any person who is,
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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 such corporation), by
reason of the fact that such person is or was an officer, director, employee or
agent of such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation or
enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided such
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or
her conduct was illegal. A Delaware corporation may indemnify any person who was
or is, 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 by reason of the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorney's fees) actually and
reasonably incurred by such person in connection with the defense or settlement
of such action or suit, provided such person acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the corporation's best
interests except that no indemnification is permitted without judicial approval
if such person is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him or her against the
expenses (including attorneys' fees) which such officer or director has actually
and reasonably incurred.
Section 145 further provides that the indemnification
provisions of Section 145 shall not be deemed exclusive of any other rights to
which those seeking indemnification may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as to action
in such person's official capacity and as to action in another capacity while
holding such office. The Registrant's Certificate of Incorporation contains a
provision eliminating the liability of a director to the Registrant and its
stockholders for monetary damages for breaches of fiduciary duty as a director.
However, neither the DGCL nor the Registrant's Certificate of Incorporation
currently allows such provision to limit the liability of a director for: (i)
any breach of the director's duty of loyalty to the Registrant or its
stockholders; (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law; (iii) payment of
dividends, stock purchases or redemptions that violate the DGCL; or (iv) any
transaction from which the director derived an improper personal benefit. Such
limitation of liability also does not affect the availability of equitable
remedies such as injunctive relief or rescission.
The Registrant's By-Laws provide that, to the fullest
extent permitted by the DGCL as it exists or may in the future be amended, the
Registrant will indemnify and hold harmless any officer or director who is or
was made a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
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or investigative, by reason of the fact that such person is or was a director or
officer of the Registrant or a director or officer of a predecessor corporation
of the Registrant, and may indemnify any employee or agent of the Registrant and
any person serving at the request of the Registrant as an officer, director,
employee or agent of another corporation, partnership, joint venture, trust, or
other enterprise. The Registrant's By-Laws also state that such indemnification
is not exclusive of any other rights of the indemnified party, including rights
under any indemnification agreements, insurance policy, vote of the directors or
stockholders of the Registrant, or otherwise.
Section 145 further authorizes a corporation 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 or enterprise, against any liability asserted against him or her and
incurred by him or her in any such capacity, arising out of his or her status as
such, whether or not the corporation would otherwise have the power to indemnify
him or her under Section 145.
The Registrant has entered into indemnification agreements
with each of Joel Hollander and Farid Suleman, each dated as of March 30, 1999.
Each indemnification agreement terminates upon the earlier of (i) the
effectiveness of the indemnified party's voluntary resignation as a director or
an officer of the Registrant, (ii) the effective date of the indemnified party's
involuntary removal from office or termination as an officer, (iii) if the
indemnified party is a director, the election and qualification of his duly
nominated successor, or (iv) the indemnified party's death. Pursuant to each
indemnification agreement, the Registrant will purchase and maintain in effect,
subject to certain limitations set forth therein, for the benefit of each
indemnified party, one or more insurance policies for its officers and directors
providing the broadest coverage generally available to directors and officers of
publicly held corporations in an amount of at least $10,000,000. Pursuant to
each indemnification agreement, the Registrant also will indemnify the
indemnified party to the fullest extent provided by Section 145 of the DGCL and
Article V of the Registrant's By-Laws, as well as for expenses in any proceeding
involving the Registrant (whether or not brought by or in the Registrant's
right) subject to certain conditions and limitations depending on the
circumstances of the proceeding and the conduct of such indemnified party. In
addition, each indemnified party is entitled to be advanced expenses in
connection with any such proceeding upon request by such indemnified party,
subject to certain conditions.
Pursuant to an employment agreement, dated as of April 29,
1998, between the Registrant and Norman Pattiz, the Registrant will indemnify
Mr. Pattiz to the fullest extent provided by Section 145 of the DGCL and Article
V of the Registrant's By-Laws, as well as for expenses in any proceeding
involving the Registrant (whether or not brought by or in the Registrant's name)
subject to certain conditions and limitations depending on the circumstances of
the proceeding and the conduct of Mr. Pattiz. In addition, Mr. Pattiz is
entitled to be advanced expenses in connection with any such proceeding upon his
request, subject to certain conditions.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description
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4.1 The Registration Statement on Form S-3/A of Westwood, filed
with the SEC on May 5, 1996, is incorporated herein by
reference.
4.2 The Metro 1996 Incentive Stock Option Plan is incorporated
herein by reference to Form S-1, originally filed by Metro
with the SEC on June 19, 1996, as subsequently amended, and
declared effective on October 16, 1996.
4.3 The Metro 1997 Stock Option Plan is incorporated herein by
reference to Exhibit 10.26 to Metro's Form 10-K for the fiscal
year ended December 31, 1997.
4.4 The Metro Nonqualified Stock Option Agreements are
incorporated herein by reference to Exhibit 4.7 to Form S-8,
filed by Metro with the SEC on March 18, 1997.
* 5.1 Opinion of Weil, Gotshal & Manges LLP, as to the legality of
the securities being registered.
* 23.1 Consent of PricewaterhouseCoopers LLP.
** 24.1 Powers of Attorney.
- --------------------------------
* Filed herewith.
** Previously filed.
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ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement 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; and
(2) that, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) to remove from registration by means of a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) The undersigned registrant hereby undertakes that insofar as
indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, Westwood certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
post-effective amendment to the registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of New York,
State of New York, as of September 22, 1999.
WESTWOOD ONE, INC.
By: /s/ Farid Suleman
------------------------------
Farid Suleman
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this post-effective amendment to the registration statement has been signed by
the following persons in the capacities indicated as of the date set forth
above.
SIGNATURE TITLE
--------- -----
/s/ Norman J. Pattiz Chairman of the Board and Director
- ------------------------------
Norman J. Pattiz
/s/ Farid Suleman Executive Vice President, Chief
- ------------------------------ Financial Officer, Secretary and Director
Farid Suleman
/s/ Mel Karmazin Director
- ------------------------------
Mel Karmazin
/s/ David L. Dennis Director
- ------------------------------
David L. Dennis
/s/ Paul G. Krasnow Director
- ------------------------------
Paul G. Krasnow
/s/ Joseph B. Smith Director
- ------------------------------
Joseph B. Smith
/s/ Gerald Greenberg Director
- ------------------------------
Gerald Greenberg
/s/ Steven A. Lerman Director
- ------------------------------
Steven A. Lerman
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Exhibits
Exhibit
Number Description
------ -----------
4.1 The Registration Statement on Form S-3/A of Westwood, filed
with the SEC on May 5, 1996, is incorporated herein by
reference.
4.2 The Metro 1996 Incentive Stock Option Plan is incorporated
herein by reference to Form S-1, originally filed by Metro
with the SEC on June 19, 1996, as subsequently amended, and
declared effective on October 16, 1996.
4.3 The Metro 1997 Stock Option Plan is incorporated herein by
reference to Exhibit 10.26 to Metro's Form 10-K for the fiscal
year ended December 31, 1997.
4.4 The Metro Nonqualified Stock Option Agreements are
incorporated herein by reference to Exhibit 4.7 to Form S-8,
filed by Metro with the SEC on March 18, 1997.
* 5.1 Opinion of Weil, Gotshal & Manges LLP, as to the legality of
the securities being registered.
* 23.1 Consent of PricewaterhouseCoopers LLP.
** 24.1 Powers of Attorney.
- --------------------------------
* Filed herewith.
** Previously filed.
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Exhibit 5.1
[Weil, Gotshal & Manges, LLP Letterhead]
September 22, 1999
Westwood One, Inc.
9540 Washington Boulevard
Culver City, California 90232
Ladies and Gentlemen:
We have acted as counsel to Westwood One, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing of
the Post-Effective Amendment on Form S-8 ("Amendment No. 1") to the Company's
Registration Statement on Form S-4 (File No. 333-85609) (together, the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the assumption by Westwood of the obligations of
Metro Networks, Inc. ("Metro") under options to purchase Metro common stock
issued pursuant to the following Metro stock option plans: (i) the Metro
Networks, Inc. 1996 Incentive Stock Option Plan; (ii) Metro Networks, Inc. 1997
Incentive Stock Option Plan; and (iii) certain non-employee director
non-qualified stock option agreements (such option plans and agreements referred
to in clauses (i), (ii) and (iii) being collectively referred to as the "Option
Plans"). Terms defined in the Registration Statement and not otherwise defined
herein are used herein with the meanings as so defined.
In so acting, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Registration
Statement, including the joint proxy statement/prospectus contained therein (the
"Proxy Statement"), the Merger Agreement and such corporate records, agreements,
documents and other instruments, and such certificates or comparable documents
of public officials and of officers and representatives of the Company, and have
made such inquiries of such officers and representatives, as we have deemed
relevant and necessary as a basis for the opinion hereinafter set forth.
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to all questions
of fact material to this opinion that have not been independently established,
we have relied upon certificates or comparable documents of officers and
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representatives of the Company and upon the representations and warranties of
the Company contained in the Merger Agreement.
Based on the foregoing, and subject to the qualifications
stated herein, we are of the opinion that the shares of Westwood Common Stock to
be issued by the Company as contemplated by the Amendment No. 1 have been duly
authorized and, when issued as contemplated by the Amendment No. 1 and in
accordance with the terms of the Option Plans, against payment of the exercise
price therefor, will be validly issued, fully paid and nonassessable.
The opinion expressed herein is limited to the corporate
laws of the State of Delaware, and we express no opinion as to the effect on the
matters covered by this letter of the laws of any other jurisdiction.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ Weil, Gotshal & Manges LLP
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 17, 1999 relating to the
financial statements and financial statement schedules, which appears in
Westwood One, Inc.'s Annual Report on Form 10-K for the year ended December 31,
1998.
/s/ PricewaterhouseCoopers LLP
Century City, California
September 20, 1999
