EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
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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 :
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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
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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.
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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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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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 0000 Xxx) 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 0000 Xxx 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
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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
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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. 0000
Xxxxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxxxx
00000 Attention: Xx.
Xxxxxx X. Xxxxxx
Facsimile: (310)
840-0834
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with a copy to: Skadden, Arps, Slate,
Xxxxxxx & Xxxx 000 Xxxxx
Xxxxx Xxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx
00000 Attention: Xxxxx
X. XxXxxxxx, Esq.
Facsimile: (213)
687-5600
If to Infinity: Infinity Broadcasting
Corporation 00 Xxxx 00xx
Xxxxxx Xxx Xxxx, Xxx
Xxxx 00000 Attention:
Xx. Xxxxx Xxxxxxx
Facsimile: (212)
314-9336
with a copy to: Weil, Gotshal & Xxxxxx
LLP 000 Xxxxx Xxxxxx Xxx
Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx
Xxxxxxxxxx, 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.
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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/ Xxxxx X. Xxxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
INFINITY BROADCASTING CORPORATION
By: /s/ Xxxxx Xxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxx
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.
