-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D49cfQCoEJ1NZAdm9TuyyNwoKSc/BhYNAF+uKt0r04BGituHYcjmgOFrQexJbf0T QB74yr4ZVktfoMY7+TLoEg== 0000950129-99-004352.txt : 19991018 0000950129-99-004352.hdr.sgml : 19991018 ACCESSION NUMBER: 0000950129-99-004352 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991005 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: WESTWOOD ONE INC /DE/ CENTRAL INDEX KEY: 0000771950 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-AMUSEMENT & RECREATION SERVICES [7900] IRS NUMBER: 953980449 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-35899 FILM NUMBER: 99722922 BUSINESS ADDRESS: STREET 1: 9540 WASHINGTON BLVD CITY: CULVER CITY STATE: CA ZIP: 90232 BUSINESS PHONE: 3012045000 MAIL ADDRESS: STREET 1: 9540 WASHINGTON BLVD CITY: CULVER CITY STATE: CA ZIP: 90232 FORMER COMPANY: FORMER CONFORMED NAME: WESTWOOD ONE DELAWARE INC /CA/ DATE OF NAME CHANGE: 19860408 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SAPERSTEIN DAVID I CENTRAL INDEX KEY: 0001025882 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 2800 POST OAK BLVD STREET 2: SUITE 4000 CITY: HOUSTON STATE: TX ZIP: 77056 BUSINESS PHONE: 7134076000 MAIL ADDRESS: STREET 1: 2800 POST OAK BLVD STREET 2: SUITE 4000 CITY: HOUSTON STATE: TX ZIP: 77056 SC 13D 1 DAVID I. SAPERSTEIN FOR WESTWOOD ONE, INC. 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 WESTWOOD ONE, INC. ------------------ (Name of Issuer) Common Stock, par value $.01 per share -------------------------------------- (Title of Class of Securities) 961815 10 7 -------------------- (CUSIP Number) Neil A. Torpey, Esq. Paul, Hastings, Janofsky & Walker LLP 399 Park Avenue New York, New York 10022 (212) 318-6000 ------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) September 22, 1999 ------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ] Page 1 of 8 pages Exhibit Index on page 8 2 SCHEDULE 13D - ----------------------------- -------------------------- CUSIP No. 961815 10 7 Page 2 of 8 Pages - ----------------------------- -------------------------- - -------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NO. OF ABOVE PERSON (ENTITIES ONLY) David I. Saperstein - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS 00 - -------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [ ] - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION U.S.A. - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 11,723,413 -------------------------------------------------------------- NUMBER OF 8 SHARED VOTING POWER SHARES BENEFICIALLY NONE OWNED -------------------------------------------------------------- BY EACH 9 SOLE DISPOSITIVE POWER REPORTING PERSON WITH 11,723,413 -------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER NONE - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11,723,413 - -------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [X] - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 20.9% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON IN - -------------------------------------------------------------------------------- 2 3 SCHEDULE 13D ITEM 1. SECURITY AND ISSUER. The class of equity securities to which this statement on Schedule 13D relates is the common stock, $.01 par value (the "Issuer Common Stock"), of Westwood One, Inc., a Delaware corporation (the "Issuer"). The principal executive offices of the Issuer are located at 9540 Washington Boulevard, Culver City, California 90232. ITEM 2. IDENTITY AND BACKGROUND. (a) David I. Saperstein (the "Reporting Person"). (b) The Reporting Person's principal business address is c/o Weinstein, Spira & Company, 2200 Five Greenway Plaza, Houston, Texas 77047. (c) The present principal occupation of the Reporting Person is providing consulting services to the Issuer. (d), (e) During the last five years, the Reporting Person has neither been convicted in a criminal proceeding nor been a party to a civil proceeding as a result of which it or he is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws. (f) The Reporting Person is a United States citizen. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. The Reporting Person acquired 11,423,413 shares of Issuer Common Stock in exchange for 7,615,609 shares of the common stock of Metro Networks, Inc. ("Metro"), par value $.001 ("Metro Common Stock"), pursuant to the Agreement and Plan of Merger, dated as of June 1, 1999, as amended as of August 20, 1999, among the Issuer, Copter Acquisition Corp. and Metro (the "Merger Agreement"). In addition, under the transactions contemplated by the Merger Agreement (the "Merger"), the Reporting Person received options to purchase 450,000 shares of Issuer Common Stock in exchange for the Reporting Person's options to purchase 300,000 shares of Metro Common Stock pursuant to certain Metro employee stock option plans. The Reporting Person has beneficial ownership of 300,000 of these shares of Issuer Common Stock. On October 16, 1996, the Reporting Person entered into a Stock Loan and Pledge Agreement (the "Metro Loan Agreement") with Metro, pursuant to which the Reporting Person borrowed 2,549,750 shares of Metro Common Stock from Metro (the "Metro Stock Loan"). As 3 4 consideration for the Metro Stock Loan, the Reporting Person pledged all 2,549,750 shares of his Metro Series A Convertible Preferred Stock (the "Metro Preferred Stock"), paid an upfront loan transaction fee of $2,550 and agreed to pay an annual fee over the term of the loan of 0.1% of the average fair market value of such loaned shares during the five day period following Metro's initial public offering (the "IPO") which commenced on October 17, 1996. All 2,549,750 of such borrowed shares were sold in the IPO for $16.00 per share. On September 22, 1999, Metro, the Issuer and the Reporting Person entered into an Assignment, Assumption and Amendment Agreement (the "Assignment Agreement") wherein Metro assigned all of its right, title and interest in the Metro Loan Agreement to the Issuer. Pursuant to the Merger Agreement, the 2,549,750 shares of Metro Preferred Stock pledged to Metro (the "Metro Pledged Stock") were exchanged for 3,824,652 shares of Issuer's Series A Convertible Preferred Stock (the "Issuer Preferred Stock"), which shares have been pledged to secure the Metro Stock Loan. On October 16, 1996, the Reporting Person entered into five Stock Loan and Pledge Agreements (the "Trust Loan Agreements") with, respectively, the Michelle Joy Coppola 1994 Trust, the Jennifer Beth Saperstein 1994 Trust, the Jonathan Alexander Saperstein 1994 Trust, the Alexis Daniella Saperstein 1994 Trust and the Stefanie Nicole Saperstein 1994 Trust (such Trusts, collectively, the "Trusts"), pursuant to which the Reporting Person borrowed an aggregate of 1,050,250 shares of Metro Common Stock from the Trusts (the "Trust Stock Loans"). As consideration for the Trust Stock Loans, the Reporting Person pledged an aggregate of 1,050,250 shares of Metro Common Stock and agreed to pay an annual fee over the term of the loan of 0.1% of the average fair market value of such loaned shares during the preceding twelve month period. All 1,050,250 of such borrowed shares were sold by the Reporting Person in the IPO for $16.00 per share. Upon consummation of the Merger Agreement, the shares of Metro Common Stock pledged to the Trusts were converted into the right to receive 1,575,375 shares of Issuer Common Stock. ITEM 4. PURPOSE OF TRANSACTION. The Reporting Person acquired the shares of Issuer Common Stock reported herein solely for investment purposes. (a), (e) Pursuant to the Merger Agreement, the Reporting Person received 3,824,625 shares of Issuer Preferred Stock in exchange for 2,549,750 shares of Metro Preferred Stock. By its terms, each share of Issuer Preferred Stock is convertible with no premium into one share of Issuer Common Stock at the option of the holder. However, under the Metro Loan Agreement and the Assignment Agreement, the Reporting Person may not convert the Issuer Preferred Stock into Issuer Common Stock prior to repaying the Metro Stock Loan. The Metro Stock Loan may be repaid only by delivering to the Issuer either the Issuer Preferred Stock or 3,824,625 shares of Issuer Common Stock. See Items 3 and 5. (d) Pursuant to the Merger Agreement, the Issuer agreed to add the Reporting Person and one additional person designated by the Reporting Person to its Board of Directors. In connection therewith, on September 22, 1999, the Reporting Person and Infinity Broadcasting Corporation ("Infinity") entered into a voting agreement (the "Voting Agreement"). Pursuant to the 4 5 Voting Agreement, (1) Infinity agreed to vote all shares of capital stock of the Issuer which Infinity owns or controls and which is entitled to vote thereon in favor of the election of the Reporting Person and a designee appointed by the Reporting Person to the Board of Directors of the Issuer, and (2) the Reporting Person agreed to vote all shares of capital stock of the Issuer which the Reporting Person owns or controls and which is entitled to vote thereon in favor of the election of the person or persons selected by Infinity for election to the Board of Directors of the Issuer. The Voting Agreement will terminate no later than the fourth anniversary of the date thereof. (b), (c), (f), (g), (h), (i) and (j) Not applicable. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) The Reporting Person beneficially owns an aggregate of 11,723,413 shares of Issuer Common Stock, constituting 20.9% of the total class. The shares of Issuer Common Stock reported herein as beneficially owned by the Reporting Person do not include an aggregate of 1,575,375 shares of Issuer Common Stock held by the Trusts, the beneficiaries of which are the children of the Reporting Person. The Reporting Person disclaims beneficial ownership of such shares. In addition, the shares of Issuer Common Stock reported herein as beneficially owned by the Reporting Person do not include the Issuer Preferred Stock owned by the Reporting Person and pledged to the Issuer pursuant to the Metro Loan Agreement and the Assignment Agreement. The Issuer Preferred Stock has not been included among the shares beneficially owned by the Reporting Person because it can only be converted into Issuer Common Stock upon repayment of the Metro Stock Loan. The Reporting Person has no plans at this time to repay the Metro Stock Loan and convert the Issuer Preferred Stock. See Items 3 and 4. (b) Except as specified in the Voting Agreement, the Reporting Person has sole voting and dispositive power as to 11,423,413 shares of Issuer Common Stock. See Items 4 and 5(a). (c) Other than as provided herein, no transactions in the Issuer Common Stock were effected during the past sixty days by the Reporting Person. See Item 3. (d) Under the terms of the Metro Loan Agreement, so long as the Metro Stock Loan is outstanding, the Issuer (as assignee of Metro) is entitled to receive distributions, if any, from the 3,824,625 shares of Issuer Common Stock loaned to the Reporting Person. Under the terms of each of the Trust Loan Agreements between the Reporting Person and the Trusts, so long as the Trust Stock Loans are outstanding, the Trusts are entitled to receive distributions, if any, from the 1,575,375 shares of Issuer Common Stock loaned, in the aggregate, to the Reporting Person. 5 6 (e) Not applicable. ITEM 6. CONTRACTS ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. 350,000 shares of Metro Common Stock held by Goldman, Sachs & Co. ("Goldman Sachs") are pledged to secure a loan of $5,000,000 made by Goldman Sachs to an entity controlled by the Reporting Person. Pursuant to the Merger Agreement, these shares were converted into the right to receive 525,000 shares of Issuer Common Stock. See Items 3, 4(a), (d) and (e) and 5(a) and (d). ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. (i) Stock Loan and Pledge Agreement, dated as of October 16, 1996, between Metro Networks, Inc. and David I. Saperstein. (ii) Assignment, Assumption and Amendment Agreement dated as of September 22, 1999, among Westwood One, Inc., Metro Networks, Inc. and David I. Saperstein. (iii) Stock Loan and Pledge Agreement, dated as of October 16, 1996, between Michelle Joy Coppola 1994 Trust and David I. Saperstein.(1) (iv) Merger Agreement, dated as of June 1, 1999, as amended, among Westwood One, Inc., Copter Acquisition Corp. and Metro Networks, Inc. Incorporated by reference to Exhibit 2.1 to the Issuer's Registration Statement on Form S-4 (Registration Number 333-85609) filed on August 20, 1999. (v) Voting Agreement, dated as of September 22, 1999, between David I. Saperstein and Infinity Broadcasting Corporation. - --------------- (1) Except for the names of the parties, the four other Trust Loan Agreements are identical to the Trust Loan Agreement filed herewith and accordingly are not being filed. 6 7 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: September 30, 1999 /s/ David I. Saperstein ---------------------------------- David I. Saperstein 8 EXHIBIT INDEX (i) Stock Loan and Pledge Agreement, dated as of October 16, 1996, between Metro Networks, Inc. and David I. Saperstein (incorporated by reference to Exhibit 99.(I) to Metro's Schedule 13D filed with the Securities and Exchange Commission on October 29, 1996). (ii) Assignment, Assumption and Amendment Agreement dated as of September 22, 1999, among Westwood One, Inc., Metro Networks, Inc. and David I. Saperstein. (iii) Stock Loan and Pledge Agreement, dated as of October 16, 1996, between Michelle Joy Coppola 1994 Trust and David I. Saperstein (incorporated by reference to Exhibit 99.(II) to Metro's Schedule 13D filed with the Securities and Exchange Commission on October 29, 1996). (iv) Merger Agreement, dated as of June 1, 1999, as amended, among Westwood One, Inc., Copter Acquisition Corp. and Metro Networks, Inc. (incorporated by reference to Exhibit 2.1 to the Issuer's Registration Statement on Form S-4 filed with the Securities and Exchange commission on August 20, 1999). (v) Voting Agreement, dated as of September 22, 1999, between David I. Saperstein and Infinity Broadcasting Corporation. EX-99.II 2 ASSIGNMENT, ASSUMPTION & AMENDMENT AGREEMENT 1 ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT THIS ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT (the "Agreement") is made as of the 22nd day of September, 1999 by and among Metro Networks, Inc., a Delaware corporation ("Assignor"), Westwood One, Inc., a Delaware corporation ("Assignee"), and David Saperstein ("Saperstein"). W I T N E S S E T H: WHEREAS, Assignor and Saperstein have entered into that certain Stock Loan and Pledge Agreement, dated as of October 16, 1996 (the "Agreement"); WHEREAS, Assignor desires to assign the Agreement to Assignee and Assignee desires to assume the Agreement as more fully provided below; WHEREAS, Saperstein has consented to such assignment and assumption; and WHEREAS, Assignee and Saperstein desire to amend certain provisions of the Agreement as more fully provided below. NOW THEREFORE, in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows: ARTICLE I ASSIGNMENT, ASSUMPTION AND CONSENT 1.1 Assignor does hereby assign all of its right, title and interest and obligations in and to the Agreement. 1.2 Assignee hereby accepts the foregoing assignment, assumes all of Assignor's obligations pursuant to the Agreement and agrees to perform all the terms of the Agreement on and after the date hereof. 1.3 Saperstein hereby consents to the assignment and assumption referred to in Section 1.1 and 1.2 above. ARTICLE II AMENDMENTS Assignee and Saperstein hereby agree that the Agreement shall be amended as follows: 2 2.1 The term "Pledged Shares" in the Agreement shall be amended to mean the 3,824,625 shares of Series A Convertible Preferred Stock of the Assignee represented by Stock Certificate Number 1. 2.2 Notwithstanding Section 4.1 of the Agreement, the Assignee agrees that it shall not exercise its right to terminate the Agreement prior to September 22, 2004. ARTICLE III MISCELLANEOUS 3.1 This Agreement shall be binding upon and shall inure to the benefit of Assignor, Assignee and Saperstein and their respective successors and assigns. 3.2 All notices, requests and other communications hereunder shall be in writing and shall be delivered in person or mailed by first class certified or registered mail, return receipt requested, postage prepaid, by reputable overnight mail or courier or by telecopier, in either case, with receipt confirmed, addressed as follows: If to Assignor or Assignee: c/o Westwood One, Inc. 9450 Washington Boulevard Culver City, California 90232 Attn: Joel Hollander If to the Saperstein: David Saperstein c/o Weinstein, Spira & Company 2200 Five Greenway Plaza Houston, Texas 77046 with a copy to: Paul, Hastings, Janofsky & Walker LLP 399 Park Avenue New York, New York 10022 Attn: Neil A. Torpey, Esq. 3.3 This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the principles of conflicts of laws thereof. 3.4 This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which shall constitute one agreement. -2- 3 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written. METRO NETWORKS, INC. By: /s/ SHANE E. COPPOLA ----------------------------------- Name: Shane E. Coppola Title: Executive Vice President WESTWOOD ONE, INC. By: /s/ GARY YUSKO ------------------------------------- Name: Gary Yusko Title: Vice President /s/ DAVID SAPERSTEIN -------------------------------------- David Saperstein EX-99.V 3 VOTING AGREEMENT - DATED SEPTEMBER 22, 1999 1 VOTING AGREEMENT This Voting Agreement (the "Agreement") is entered into as of September 22, 1999 by and between David I. Saperstein ("Saperstein") and Infinity Broadcasting Corporation, a Delaware corporation ("Infinity"), as shareholders of Westwood One, Inc., a Delaware corporation (the "Company"). Saperstein and Infinity are sometimes referred to herein individually as a "Stockholder" and collectively as the "Stockholders." WHEREAS, the Company, Copter Acquisition Corp., a wholly owned subsidiary of the Company ("Merger Sub"), and Metro Networks, Inc. ("Metro") entered into an Agreement and Plan of Merger, dated as of June 1, 1999 (as amended, the "Merger Agreement"; capitalized terms used without definition herein have the meanings ascribed thereto in the Merger Agreement); WHEREAS, the Merger Agreement provides, among other things, for the merger of Merger Sub with and into Metro and, in connection with such merger, the stockholders of Metro would receive shares of the Company in exchange for their shares of Metro; WHEREAS, pursuant to the terms of the Merger Agreement, the Company agreed to take all necessary action to cause Saperstein and a designee selected by Saperstein (the "Saperstein Designee") to serve on the Board of Directors of the Company; WHEREAS, Saperstein, Charles I. Bortnick, Shane E. Coppola and the Company have entered into the Company Stockholders Voting Agreement, pursuant to which Saperstein has agreed, inter alia, to enter into this Agreement; and WHEREAS, Infinity and Metro have entered into the Parent Stockholder Voting Agreement, pursuant to which Infinity has agreed, inter alia, to enter into this Agreement. NOW, THEREFORE, in consideration of the of the foregoing recitals and the mutual covenants and agreement contained herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows: 2 1. ELECTION OF DIRECTORS. (a) To the extent not prohibited by applicable law and the rules of any securities exchange on which the Company's voting capital stock is then traded, at each annual or special meeting of the stockholders of the Company occurring on or after the date of this Agreement at which directors of the Company are to be elected, or by a consent in writing of such stockholders in lieu thereof, Infinity agrees to vote (or cause to be voted) all shares of capital stock of the Company then owned or the voting of which is controlled by it or its Affiliates (as defined below) that are entitled to vote for the election of directors of the Company, whether now owned or controlled or if ownership or control is hereafter acquired, in favor of the election of Saperstein and the Saperstein Designee, to the extent Saperstein and/or the Saperstein Designee has been nominated by the Company's Board of Directors or a committee thereof, as directors of the Company. (b) To the extent not prohibited by applicable law and the rules of any securities exchange on which the Company's voting capital stock is then traded, at each annual or special meeting of the stockholders of the Company occurring on or after the date of this Agreement at which directors of the Company are to be elected, or by a consent in writing of such stockholders in lieu thereof, Saperstein agrees to vote (or cause to be voted) all shares of capital stock of the Company then owned or the voting of which is controlled by him or his Affiliates that are entitled to vote for the election of directors of the Company, whether now owned or controlled or if ownership or control is hereafter acquired, in favor of the election of such persons Infinity shall have selected as designees for election to the Board of Directors of the Company (collectively, "Infinity Designees"), to the extent the Infinity Designees have been nominated by the Company's Board of Directors or a committee thereof, as directors of the Company. (c) Each of the Stockholders agrees that he or it (as applicable) shall vote (i) in favor of (A) the removal from the Company's Board of Directors of the Saperstein Designee or an Infinity Designee, as the case may be, when such removal is demanded by Saperstein or Infinity, as the case may be, and (B) the election of a successor designee of Saperstein or Infinity, as the case may be, to fill any vacancy caused by such removal or by the resignation, death or disability of the applicable designee and (ii) in opposition to any attempt to remove (other than for cause) Saperstein or the Saperstein Designee or Infinity Designees, as the case may be, without the written consent of the Stockholder who designated the director that is the subject of such attempt to remove. -2- 3 (d) As used herein, "Affiliate" shall mean, with respect to a Stockholder, any person or entity that such Stockholder directly or indirectly controls. 2. OTHER MATTERS. (a) Except as expressly provided in Section 1, this Agreement shall not extend to voting upon questions and matters upon which stockholders of the Company have a right to vote under the Certificate of Incorporation or Bylaws of the Company, or otherwise. (b) Nothing in this Voting Agreement, express or implied, shall relieve any director of the Company of any fiduciary or other duties or obligations he or she may have to the Company's stockholders. (c) Nothing in this Voting Agreement shall be deemed to restrict or limit in any manner whatsoever the right of a Stockholder to sell, transfer or otherwise dispose of any shares of capital stock of the Company. For greater certainty, except to the extent a Stockholder or its Affiliates own or control the voting of any shares that are sold, transferred or otherwise disposed of, the voting obligations set forth in Section 1 of this Agreement shall not apply to any such shares after such sale, transfer or other disposition. 3. TERMINATION. This Agreement shall terminate and be of no further force or effect upon the earliest to occur of the following: (a) the fourth anniversary of the date of this Agreement; (b) the date as of which a Stockholder, including his or its Affiliates, owns or controls less than 50% of the number of shares of capital stock of the Company entitled to vote for the directors of the Company owned by such Stockholders (and his or its Affiliates) on the date hereof (after giving effect to the Merger), as adjusted for stock dividends, stock splits, recapitalizations or similar type transactions; and (c) the written agreement of each of the parties hereto agreeing to terminate this Agreement. 4. REPRESENTATIONS AND WARRANTIES. Each Stockholder represents and warrants to the other Stockholder as follows: (a) Schedule I set forth, opposite such Stockholder's name, the number and type of shares of each class of capital stock of the Company (the "Shares") owned or the voting of which is controlled by such Stockholder. Such Stockholder is the -3- 4 lawful owner of such Shares, free and clear of all liens, charges, options, rights, encumbrances, stockholders agreements, voting agreements, agreements to transfer or otherwise dispose of such Shares and commitments of every kind, other than this Agreement and as disclosed in Schedule II and has the sole power to vote (or cause to be voted) the Shares as set forth in this Agreement. Except as set forth on such Schedule I, neither such Stockholder nor any of his or its Affiliates owns or holds any rights to acquire any additional shares of any class of capital stock or other securities of the Company or any interest therein or any voting rights with respect to any additional shares of any class of capital stock or any other securities of the Company. (b) This Agreement has been duly executed and delivered by a duly authorized officer of such Stockholder or, if the Stockholder is a natural person, the Stockholder has the legal capacity to execute this Agreement. (c) This Agreement constitutes the valid and binding agreement of such Stockholder, enforceable against such Stockholder in accordance with its terms. (d) The execution and delivery of this Agreement by such Stockholder do not violate or breach, and will not give rise to any violation or breach, of such Stockholder's charter or by-laws, to the extent applicable, or, except as will not materially impair the ability of such Stockholder to effectuate, carry out or comply with all of the terms of this Agreement, any order, writ, injunction, decree, law, statute, rule or regulation, third party consent, approval, filing, registration or similar requirement of any court or tribunal or administrative, governmental or regulatory body, agency or authority or any agreement or contract by which such Stockholder or his or its assets or properties are bound. 5. SPECIFIC PERFORMANCE. It is agreed and understood that monetary damages would not adequately compensate an injured party for the breach of this Agreement by any party, that this Agreement shall be specifically enforceable, and that any breach or threatened breach of this Agreement shall be the proper subject of a temporary or permanent injunction or restraining order. Each party hereto waives any claim or defense that there is an inadequate remedy at law for such breach or threatened breach. -4- 5 6. GOVERNING LAW. This Agreement and all amendments hereof shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws rules or provisions. 7. AMENDMENTS AND WAIVERS. Any term hereof may be amended and the observance of any term hereof may be waived only with the written consent of each party hereto. Any amendment or waivers so effected shall be binding upon the Stockholders and any assignee or transferee thereof. 8. SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. 9. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 10. MANNER OF VOTING. The voting of shares pursuant to this Agreement may be effected in person, by proxy, by written consent, or in any other manner permitted by applicable law. 11. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This Agreement contains the entire understanding of the Stockholders, and there are no further or other agreements or understandings, written or oral, in effect between the Stockholders relating to the subject matter hereof. This Agreement shall be binding upon and inure solely to the benefit of each party hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. -5- 6 12. NOTICES. Any notice required or permitted by this Agreement shall be in writing and shall be delivered personally or by facsimile or sent prepaid registered or certified mail, return receipt requested, addressed to the other party at the address set forth on the signature page to this Agreement or at such other address for which such party gives notice hereunder. Notices sent by mail shall be deemed to have been given three (3) days after deposit in the mail. 13. HEADINGS. The captions, headings and arrangements contained herein are for convenience only and do not intend to limit or define the terms and provisions hereof. 14. COOPERATION. Each party hereto shall take such further action and shall execute and deliver such further documents as may be reasonably requested by any other party in order to carry out the provisions and purposes of this Agreement. -6- 7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written. INFINITY BROADCASTING CORPORATION By:/s/ Farid Suleman ----------------------------------- Name: Farid Suleman Title: Executive Vice President Address: 40 West 57th Street New York, New York 10019 Attention: Farid Suleman /s/ David Saperstein ----------------------------------- David Saperstein Address: c/o Weinstein, Spira & Company 2200 Five Greenway Plaza Houston, Texas 77046 -7- 8 Schedule I Ownership of Shares
- --------------------------------------------------------------------------------------------- Name of Stockholder Class and Series Number of Shares of Capital Stock Beneficially Owned - --------------------------------------------------------------------------------------------- David I. Saperstein Common Stock 11,573,413 - --------------------------------------------------------------------------------------------- Series A Convertible 3,824,625 Preferred Stock - --------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------------------------- Infinity Broadcasting Common Stock 8,000,000 Corporation (Shares are owned by Infinity Network, Inc., an indirect wholly-owned subsidiary of Infinity Broadcasting Corporation) - ---------------------------------------------------------------------------------------------
9 Schedule II Liens on Shares 3,824,625 shares of Series A Convertible Preferred Stock and 1,575,375 shares of common stock are pledged under the stock loan agreements between David Saperstein and the Company (as assignee of Metro Networks, Inc.) or David Saperstein and certain trusts for the benefit of his children. 525,000 shares of common stock held by Goldman Sachs & Co. are pledged to secure a loan of $5,000,000 made by Goldman Sachs & Co. to an entity controlled by Mr. Saperstein. -----END PRIVACY-ENHANCED MESSAGE-----