Exhibit 4.10
RADIO ONE, INC.
UP TO 310,000 HIGH TIDES(SM)
6 1/2% Convertible Preferred Securities
Remarketable Term Income Deferrable Equity Securities (HIGH TIDES)(SM)
(Liquidation Preference $1,000 per HIGH TIDES)
convertible into
Class D Common Stock of
Radio One, Inc.
REGISTRATION RIGHTS AGREEMENT
July 14, 2000
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Morgan Stanley & Co. Incorporated
Bank of America Securities LLC
First Union Securities, Inc.
Acting on behalf of itself and
the several Purchasers
pursuant to the Purchase Agreement
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Dear Sirs:
Radio One, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell (the "Initial Placement") to Credit Suisse First Boston Corporation and
the other initial purchasers (collectively, the "Purchasers") named in Schedule
A to the Purchase Agreement dated July 10, 2000 (the "Purchase Agreement"),
among the Purchasers and the Company, upon the terms set forth in the Purchase
Agreement, up to 260,000 (or up to 310,000 to the extent the option granted by
the Company to the
Purchasers pursuant to the Purchase Agreement is exercised in full) of its
6 1/2% Convertible Preferred Securities Remarketable Term Income Deferrable
Equity Securities (HIGH TIDES)(SM), liquidation preference $1000 per security
(the "Preferred Securities"). As an inducement to you to enter into the
Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Company agrees with you, (i) for the benefit of the Purchasers
and (ii) for the benefit of the registered holders, including the Purchasers
(each of the foregoing a "Holder" and together the "Holders"), from time to time
of the Preferred Securities and the class D common stock of Radio One, Inc.,
par value $.001 per share (such class D common stock being referred to as the
"Common Stock"), issuable upon conversion of the Preferred Securities, as
follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in or pursuant to the Purchase
Agreement or, if not defined therein, in the Confidential Offering Circular
dated July 10, 2000 prepared by the Company in connection with the HIGH TIDES
offering. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" or "Securities Act" means the Securities Act of 1933, as
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amended, and the rules and regulations of the Commission promulgated thereunder.
"Additional Dividends" has the meaning given to such term in Section
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7(a) hereof.
"Affiliate" of any specified person means any other person which,
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directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified person. For purposes of this definition, control
of a person means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether by contract or
otherwise; the terms "controlling" and "controlled" have meanings correlative to
the foregoing.
"Applicable Rate" means the rate at which the Preferred Securities
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accrue dividends. The Applicable Rate shall be 6 1/2% per annum from the date
of original issuance of the Preferred Securities to (but excluding) the Reset
Date. From the Reset Date, the Applicable Rate will be the Term Rate
established by the Remarketing Agent to be effective on the Reset Date. The
Applicable Rate will be increased upon the occurrence of a Registration Default,
as set forth in Section 7(a) hereof.
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"Business Day" means any day other than (i) a Saturday or Sunday, (ii)
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a day on which banking institutions in The City of New York are authorized or
required by law to close or (iii) a day on which the Remarketing Agent is closed
for business.
"Closing Date" has the meaning given to the term "First Closing Date"
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in the Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
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"Common Stock" has the meaning set forth in the first paragraph to
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this Agreement.
"Company" has the meaning set forth in the first paragraph to this
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Agreement.
"Effectiveness Deadline" means the 150/th/ day following the Closing
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Date.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations promulgated thereunder.
"Filing Deadline" means the 90/th/ day following the Closing Date.
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"Holder" and "Holders" each has the meaning set forth in the first
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paragraph to this Agreement.
"Initial Placement" has the meaning set forth in the first paragraph
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to this Agreement.
"Managing Underwriters" means the investment banker or investment
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bankers and manager or managers that shall administer an underwritten offering,
if any, as set forth in Section 6 hereof.
"Preferred Securities" has the meaning set forth in the first
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paragraph to this Agreement.
"Prospectus" means the prospectus included in any Shelf Registration
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Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), with respect
to the terms of the
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offering of any portion of the Securities covered by such Shelf Registration
Statement, as amended or supplemented by all amendments (including post-
effective amendments) and supplements to the Prospectus.
"Purchase Agreement" has the meaning set forth in the first paragraph
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to this Agreement.
"Purchasers" has the meaning set forth in the first paragraph to this
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Agreement.
"Registration Default" has the meaning given to such term in Section
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7(a) hereof.
"Remarketing Agent" has the meaning specified in the Remarketing
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Agreement.
"Remarketing Agreement" means the Remarketing Agreement, dated as of
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the date hereof, by and among the Company, Credit Suisse First Boston
Corporation, as Remarketing Agent and American Stock Transfer & Trust Co., as
Tender Agent.
"Reset Date" means any date not later than July 15, 2005 (or, if such
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day is not a Business Day, the next succeeding Business Day), and not earlier
than 80 Business Days prior to July 15, 2005, as may be determined by the
Remarketing Agent, in its sole discretion, for settlement of a successful
remarketing.
"Securities" means the Preferred Securities and the Common Stock,
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individually and collectively.
"Shelf Registration" means a registration effected pursuant to Section
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2 hereof.
"Shelf Registration Period" has the meaning set forth in Section 2(b)
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hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
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statement filed under the Securities Act on an appropriate form providing for
the registration of, and the sale on a continuous or delayed basis by the
Holders of, all of the Securities pursuant to Rule 415 under the Securities Act
and/or any similar rule that may be adopted by the Commission, filed by the
Company pursuant to the provisions of Section 2 of this Agreement, including the
Prospectus contained
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therein, any amendments and supplements to such registration statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such registration statement.
"Suspension Period" has the meaning set forth in Section 7(b) hereof.
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"Term Rate" means the rate established by the Remarketing Agent in
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connection with the remarketing of the Preferred Securities at which dividends
will accrue on the Preferred Securities on and after the Reset Date.
2. Shelf Registration. (a) The Company shall as promptly as practicable
prepare and, not later than the Filing Deadline, shall file with the Commission
and thereafter shall use its best efforts to cause to be declared effective
under the Act as soon as practicable, but in no event later than the
Effectiveness Deadline, a Shelf Registration Statement relating to the offer and
sale of the Securities by the Holders from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that no Holder (other than a
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Purchaser) shall be entitled to have the Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be bound by
all the provisions of this Agreement applicable to such Holder.
(b) The Company shall use its best efforts
(i) to keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus included therein to be
lawfully delivered by the Holders of the relevant Securities, for a
period of two years (or for such other period as shall be required
under Rule 144(k) of the Securities Act or any successor rule thereto)
from the date of its effectiveness or such shorter period that will
terminate upon the earlier of the following (in any such case, such
period being called the "Shelf Registration Period"):
(A) when all the Preferred Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement, or
(B) when all shares of Common Stock issued upon conversion of any
such Preferred Securities that had not been sold pursuant to the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement and
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(ii) during the Shelf Registration Period, promptly upon the
request of any Holder to take any action reasonably necessary to
register the sale of any Securities of such Holder and to identify
such Holder as a selling securityholder.
The Company shall be deemed not to have used its best efforts to keep
the Shelf Registration Statement effective during the Shelf Registration Period
if it voluntarily takes any action that would result in Holders of Securities
covered thereby not being able to offer and sell such Securities during such
period, unless such action is required by applicable law.
(c) Notwithstanding any provisions of this Agreement to the contrary,
the Company shall cause the Shelf Registration Statement and the related
Prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided that
failure by the Company to comply with this Section 2(c) shall not be deemed a
breach of this provision if such failure results from inclusion of any untrue
statement or materials provided by Holders, in writing, specifically for
inclusion in such Shelf Registration Statement, related Prospectus or amendment
or supplement thereto.
3. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall furnish to (i) the Purchasers, and (ii) any
other Holders who so request, and their respective counsel and accountants,
prior to the filing thereof with the Commission, a copy of any Shelf
Registration Statement, and each amendment thereof and each amendment or
supplement, if any, to the Prospectus included therein and shall use its
reasonable efforts to reflect in each such document, when so filed with the
Commission, such comments as the Purchasers and such other Holders reasonably
may propose.
(b) The Company shall give written notice to the Purchasers and the
Holders:
(i) when the Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the
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Shelf Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any written request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information.
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Securities
included therein for sale in any state or the initiation or
threatening of any proceeding for such purpose; and
(v) of the happening, during the Shelf Registration Period, of
any event that requires the making of any changes in the Shelf
Registration Statement or the Prospectus so that, as of such date, the
Registration Statement and the Prospectus do not contain an untrue
statement of a material fact and do not omit to state a material fact
required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in light of the circumstances
under which they were made) not misleading (which advice shall be
accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made).
(c) The Company shall use its best efforts to prevent the issuance,
and if issued to obtain the withdrawal, of any order suspending the
effectiveness of any Shelf Registration Statement at the earliest possible time.
(d) The Company shall furnish to each Purchaser and each requesting
Holder of Securities included within the coverage of any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto (including, to any such
Purchaser or Holder who so requests, any reports or other documents incorporated
therein by reference), including financial statements and schedules included
therein, and, if such Holder so requests, all exhibits (including those
incorporated by reference).
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(e) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request; and the Company consents to the use, in accordance with the terms of
this Agreement, of the Prospectus or any amendment or supplement thereto by each
of the selling Holders of Securities in connection with the offering and sale of
the Securities covered by the Prospectus or any amendment or supplement thereto
during the Shelf Registration Period.
(f) Prior to any offering of Securities pursuant to any Shelf
Registration Statement, the Company shall register or qualify, or shall
cooperate with the Holders of Securities included therein and their respective
counsel in connection with the registration or qualification of, such Securities
for offer and sale under the securities or blue sky laws of such states as any
such Holders reasonably request in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such states of the
Securities covered by such Shelf Registration Statement; provided, however, that
the Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action which would
subject it to general service of process or to taxation in any such jurisdiction
where it is not then so subject.
(g) Unless the applicable Securities shall be in book-entry only form,
the Company shall cooperate with the Holders of Securities to facilitate the
timely preparation and delivery of certificates representing Securities to be
sold pursuant to any Shelf Registration Statement free of any restrictive
legends and in such permitted denominations and registered in such names as
Holders may request in connection with the sale of Securities pursuant to such
Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 3(b) above (other than a request by the Commission solely
for additional information as referred to in Section 3(b)(ii) and unless
directed otherwise by the Commission), the Company shall promptly prepare and
file a post-effective amendment to any Shelf Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to Holders or purchasers of the
Securities included therein, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not
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misleading. If the Company notifies the Purchasers or the Holders of the
Securities in accordance with paragraphs (ii) through (v) of Section 3(b) above
to suspend the use of the Prospectus until the requisite changes to the
Prospectus have been made, then the Purchasers and the Holders of the Securities
shall suspend use of the Prospectus for such time.
(i) Not later than the effective date of any Shelf Registration
Statement hereunder, the Company shall provide a CUSIP number for the Preferred
Securities registered under such Shelf Registration Statement, and provide the
applicable transfer agent with certificates for such Securities, in a form
eligible for deposit with The Depository Trust Company.
(j) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make generally
available to its security holders (or otherwise provide in accordance with
Section 11(a) of the Securities Act) as soon as practicable after the effective
date of the applicable Shelf Registration Statement an earning statement
satisfying the provisions of Section 11(a) of the Securities Act, but in no
event later than 45 days after the end of a 12-month period (or 90 days, if such
period is a fiscal year) beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
(k) The Company may require each Holder of Securities to be sold
pursuant to any Shelf Registration Statement as a condition to the registration
of such Holder's Securities thereunder to furnish to the Company such
information regarding the Holder and the distribution of such Securities as the
Company may from time to time reasonably require for inclusion in such Shelf
Registration Statement. Each Holder who offers and sells Securities by means of
the Shelf Registration Statement shall do so in accordance with the terms
thereof and the requirements of the Securities Act.
(l) The Company shall, if requested, promptly incorporate in a
Prospectus supplement or post-effective amendment to a Shelf Registration
Statement, such information as the Managing Underwriters, if any, reasonably
agree should be included therein and to which the Company does not reasonably
object and shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after it is notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment.
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(m) The Company shall enter into such customary agreements (including
underwriting agreements in customary form) and take all other appropriate
actions in order to expedite or facilitate the registration or the disposition
of the Securities, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures substantially identical to those set forth in Section 5 hereof (or
such other customary provisions and procedures acceptable to the Managing
Underwriters, if any) with respect to all parties to be indemnified pursuant to
Section 5 hereof.
(n) The Company shall (i) make reasonably available for inspection by
the Holders of Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Shelf Registration Statement,
and any attorney, accountant or other agent retained by such Holders or any such
underwriter, all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries as shall reasonably
be requested in connection with the discharge of their due diligence
obligations; (ii) cause the Company's officers, directors, employees and
independent public accountants and to supply at the Company's expense all
relevant information reasonably requested by such Holders or any such
underwriter, attorney, accountant or agent in connection with any such Shelf
Registration Statement as is customary for similar due diligence examinations;
provided, however, that any information that is designated in writing by the
Company in good faith as confidential at the time of delivery of such
information shall be kept confidential by such Holders or any such underwriter,
attorney, accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law, or such information becomes available to
the public generally or through a third party without an accompanying obligation
of confidentiality; and provided further that the foregoing inspection and
information gathering shall be coordinated on behalf of the Holders and the
other parties entitled thereto by one counsel who shall be Skadden, Arps, Slate,
Meagher & Flom LLP unless another nationally-recognized law firm with
specialization in securities laws shall be chosen by the Company; (iii) make
such representations and warranties to the Holders of Securities registered
thereunder and the underwriters, if any, in form, substance and scope as are
customarily made by the issuers to underwriters in primary underwritten
offerings and covering matters as are customarily covered in representations and
warranties requested in primary underwritten offerings including, but not
limited to, those set forth in the Purchase Agreement; (iv) obtain opinions of
counsel to the Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the underwriters, if
any, thereof and dated, in the case of the initial opinion, the effective date
of such Shelf Registration Statement (it being agreed that the matters to be
covered by such opinion shall
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include, without limitation, the due incorporation and good standing of the
Company and its subsidiaries; the due authorization, execution and delivery of
the relevant agreement of the type referred to in Section 3(m) hereof; the due
authorization, execution, authentication and issuance, and the validity and
enforceability, of the applicable Securities; the absence of material legal or
governmental proceedings involving the Company and its Subsidiaries; the absence
of governmental approvals required to be obtained in connection with the Shelf
Registration Statement, the offering and sale of the applicable Securities, or
any agreement of the type referred to in Section 3(m) hereof; the compliance as
to form of such Shelf Registration Statement and any documents incorporated by
reference therein with the requirements of the Securities Act; and, as of the
date of the opinion and as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case may be,
that such counsel does not believe that such Shelf Registration Statement and
the Prospectus included therein, as then amended or supplemented, and any
documents incorporated by reference therein contain an untrue statement of a
material fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading (in the case
of any such documents, in the light of the circumstances existing at the time
that such documents were filed with the Commission under the Exchange Act); (v)
cause its officers to execute and deliver all customary documents and
certificates and updates thereof requested by such Holders and any underwriters
of the applicable Securities and (vi) cause its independent public accountants
and the independent public accountants with respect to any other entity for
which financial information is provided in the Shelf Registration Statement to
provide to the Holders of the applicable Securities and any underwriter therefor
a comfort letter in customary form and covering matters of the type customarily
covered in comfort letters in connection with primary underwritten offerings,
subject to receipt of appropriate documentation as contemplated, and only if
permitted, by Statement of Auditing Standards No. 72. The foregoing actions set
forth in clauses (iii), (iv), (v) and (vi) of this Section 3(n) shall be
performed at (A) the effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto and (B) each closing under any underwritten
offering of the Securities to the extent required under any related underwriting
or similar agreement.
(o) The Company will use its best efforts to cause the Common Stock
relating to such Shelf Registration Statement to be listed on each securities
exchange, over-the-counter market, or respective counterpart if any, on which
any shares of Common Stock are then listed.
(p) The Company shall, in the event that any broker-dealer registered
under the Exchange Act shall underwrite any Securities or participate as a
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member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and the By-Laws
of the National Association of Securities Dealers, Inc. ("NASD")) thereof,
whether as a Holder of such Securities or as an underwriter, a placement or
sales agent or a broker or dealer in respect thereof, or otherwise, assist such
broker-dealer in complying with the requirements of such Rules and By-Laws,
including, without limitation, by (A) if such Rules or By-Laws, including Rule
2720, shall so require, engaging a "qualified independent underwriter" (as
defined in Rule 2720) to participate in the preparation of the Shelf
Registration Statement relating to such Securities, to exercise usual standards
of due diligence in respect thereto and, if any portion of the offering
contemplated by such Shelf Registration Statement is an underwritten offering or
is made through a placement or sales agent, to recommend the yield of such
Securities, (B) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 5 hereof and
(C) providing such information to such broker-dealer as may be required in order
for such broker-dealer to comply with the requirements of the Rules of Fair
Practice of the NASD.
(q) The Company shall use its best efforts to take all other steps
necessary to effect the registration, offering and sale of the Securities
covered by the Shelf Registration Statement contemplated hereby.
4. Registration Expenses. (a) All expenses incident to the Company's
performance of and compliance with this Agreement will be borne by the Company,
regardless of whether a Shelf Registration Statement is ever filed or becomes
effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities
and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing certificates
for the Securities without the Restrictive Legend to be issued and
printing of Prospectuses), messenger and delivery services and
telephone;
(iv) all fees and disbursements of counsel for the Company;
(v) all application and filing fees in connection with listing
the Securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and
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(vi) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special
audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any person, including special experts, retained by the Company.
(b) In connection with any Shelf Registration Statement required by
this Agreement, the Company will reimburse the Purchasers and the Holders who
are selling or reselling Securities pursuant to the Shelf Registration Statement
for the reasonable fees and disbursements of not more than one counsel, who
shall be Skadden, Arps, Slate, Meagher & Flom LLP unless another nationally-
recognized law firm with specialization in securities laws shall be chosen by
the Company; provided that such fees and disbursements do not exceed $35,000.
5. Indemnification and Contribution. (a) In connection with any Shelf
Registration Statement, the Company agrees to indemnify and hold harmless the
Purchasers, each Holder of Securities covered thereby (including the
Purchasers), their respective partners, directors, and officers and each
person, if any, who controls the Purchasers or any such Holder within the
meaning of Section 15 of the Securities Act (each Purchaser, Holder and such
controlling persons are referred to collectively as the "Indemnified Parties")
against any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Shelf Registration Statement as originally filed or in any amendment or
supplement thereof, or in any preliminary Prospectus or Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
the light of the circumstances under which they were made, and shall reimburse
each such Indemnified Party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided,
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however, that (i) the Company will not be liable in any case to the extent that
any such loss, claim, damage or liability arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Purchasers or any
such Holder specifically for inclusion therein and (ii) the foregoing indemnity,
with respect to any untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary Prospectus relating to a Shelf
Registration Statement, shall not inure to the benefit of any Holder (or any
person controlling such Holder) from whom the person asserting any such losses,
claims, damages or liabilities purchased the Securities concerned, to the extent
that a Prospectus relating to such Securities was required to be delivered by
such Holder under the Securities Act in connection with such purchase and any
such loss, claim, damage or liability of such Holder results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of the final
Prospectus if the Company had previously furnished copies thereof to such Holder
at or prior to the written confirmation of the sale of such Securities to such
person and the untrue statement or alleged untrue statement or omission or
alleged omission contained in the preliminary Prospectus was corrected in the
final Prospectus (or the final prospectus as supplemented). This indemnity
agreement will be in addition to any liability which the Company may otherwise
have.
The Company shall also indemnify underwriters, their officers,
directors and each person who controls such underwriters within the meaning of
the Securities Act or the Exchange Act to the same extent as provided above with
respect to the indemnification of the Holders of the Securities and shall, if
requested by any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 3(m) and Section 6 hereof.
(b) Each Holder of Securities covered by a Shelf Registration
Statement (including the Purchasers) severally, and not jointly, agrees to
indemnify and hold harmless (i) the Company, (ii) each of the directors of the
Company, (iii) each of its officers who signs such Shelf Registration Statement
and (iv) each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act to the same extent as the foregoing indemnity
from the Company, but only in respect of written information relating to such
Holder furnished to the Company by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
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(c) Promptly after receipt by an indemnified party under this Section
5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve the indemnifying party from
any liability it may have to any indemnified party otherwise than under
paragraph (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of such
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 5 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action and does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the Initial Placement and the
Shelf Registration Statement or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the indemnifying party or parties on the
one hand and the indemnified party on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether
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the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or such Holder or such other indemnified party, as the
case may be, on the other, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (d). Notwithstanding any other
provision of this Section 5(d), the Holders of the Securities shall not be
required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Securities pursuant to
the Shelf Registration Statement exceeds the amount of damages which such
Holders have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this paragraph (d), each person,
if any, who controls such indemnified party within the meaning of the Securities
Act or the Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company within the
meaning of the Securities Act or the Exchange Act shall have the same rights to
contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the sale
of the Securities pursuant to a Registration Statement and shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
6. Underwritten Offering. If, pursuant to written notice delivered to
the Company by the Holders of a majority in aggregate liquidation amount of the
Preferred Securities or a majority of holders of the Common Stock, as the case
may be, registered pursuant to a Shelf Registration, such Holders so elect, the
offer and sale of any such Preferred Securities and/or Common Stock may be
effected in the form of an underwritten offering. In any such underwritten
offering, the investment banker or bankers and manager or managers that will
administer the offering will be selected by, and the underwriting arrangements
with respect thereto will be approved by, the Company; provided, however, that
such investment bankers and managers and underwriting arrangements must be
reasonably satisfactory to the Holders of a majority of the Securities to be
included in such offering. No Holder may participate in any underwritten
offering contemplated hereby unless such Holder (a) agrees to
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sell such Holder's Securities in accordance with any approved underwriting
arrangements, and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such approved underwriting
arrangements.
7. Changes to the Applicable Rate Under Certain Circumstances. (a) The
Applicable Rate at which dividends are paid on the Preferred Securities shall be
adjusted as follows, if any of the following events occur (each such event in
clauses (i) through (iii) below, a "Registration Default"):
(i) if a Shelf Registration Statement is not filed with the
Commission on or prior to the Filing Deadline;
(ii) if the Shelf Registration Statement is not declared
effective by the Commission on or prior to the Effectiveness Deadline;
(iii) if (A) after the Shelf Registration Statement is declared
effective, such Shelf Registration Statement ceases to be effective
prior to the end of the Shelf Registration Period or (B) such Shelf
Registration Statement or the related Prospectus ceases to be usable
in connection with resales of Securities covered by such Shelf
Registration Statement prior to the end of the Shelf Registration
Period because either (1) any event occurs as a result of which the
related Prospectus forming part of such Shelf Registration Statement
would include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein in the
light of the circumstances in which they were made not misleading or
(2) it shall be necessary to amend such Shelf Registration Statement,
or supplement the related Prospectus, to comply with the Securities
Act or the Exchange Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever
the reason for any such event and whether it is voluntary or involuntary or is
beyond the control of the Company or pursuant to operation of law or as a result
of any action or inaction by the Commission.
Additional dividends (the "Additional Dividends") shall accrue on the
Securities over and above the rate set forth in the title of the Securities from
and including the date on which any such Registration Default shall occur to
but excluding the date on which all such Registration Defaults have been cured,
at a rate
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of 0.50% per annum (the "Additional Dividend Rate"). The increase in the
Applicable Rate attributable to any Registration Default shall cease to be
effective from the date such Registration Default is cured, and the Applicable
Rate shall be reduced at such time to the Applicable Rate in effect immediately
prior to such Registration Default; provided, however, in the event a
Registration Default occurs prior to the Reset Date and is cured on or after the
Reset Date, the Applicable Rate shall be the Term Rate from the date such
Registration Default is cured.
(b) A Registration Default referred to in Section 7(a)(iii) shall be
deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related Prospectus or (y) the occurrence of other material
events or developments with respect to the Company that would need to be
described in such Registration Statement or the related Prospectus and (ii) in
the case of clause (y), the Company is proceeding promptly and in good faith to
amend or supplement such Registration Statement and related Prospectus to
describe such events; provided, however, that in any case if such Registration
-------- -------
Default occurs for a continuous period in excess of 30 days, Additional
Dividends shall be payable in accordance with the above paragraph from the day
such Registration Default occurred until such Registration Default is cured.
(c) Any amounts of Additional Dividends due pursuant to Section 7(a)
will be payable in cash on the regular dividend payment dates with respect to
the Securities. The amount of Additional Dividend will be determined by
multiplying the applicable Additional Dividend Rate by the principal amount of
the Securities and further multiplied by a fraction, the numerator of which is
the number of days such Additional Dividend Rate was applicable during such
period (determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
8. Rules 144 and 144A. The Company shall use its best efforts to file
the reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time the Company is not required to file
such reports, it will, upon the request of any Holder of Securities, make
publicly available other information so long as necessary to permit sales of its
securities pursuant to Rules 144 and 144A of the Securities Act, or any
successor regulation or statute thereto. The Company covenants that it will
take such further action as any Holder
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of Securities may reasonably request, all to the extent required from time to
time to enable such Holder to sell Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A (including the requirements of Rule 144A(d)(4)). The Company will provide a
copy of this Agreement to prospective purchasers of Securities identified to the
Company by the Purchasers upon request. Upon the request of any Holder of
Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 8 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by
--------
it to comply with its obligations under Section 2 hereof may result in material
irreparable injury to the Purchasers or the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, the Purchasers or
any Holder may obtain such relief as may be required to specifically enforce the
Company's obligations under Section 2 hereof. The Company further agrees to
waive the defense in any action for specific performance of Section 2 hereof
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not, as of the date
--------------------------
hereof, entered into, nor shall it on or after the date hereof, enter into, any
agreement with respect to its securities or otherwise that is inconsistent with
the rights granted to the Holders herein or otherwise conflicts with the
provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of a majority in principal amount, liquidation preference or voting
rights (as applicable ) of the Securities affected by such amendment,
qualification, modification, supplement, waiver or consent.
(d) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing and shall be mailed, delivered,
telegraphed and confirmed or faxed and confirmed:
(1) if to a Holder, at the most current address given by such
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Holder to the Company in accordance with the provisions of this Section
9(d), which address initially is, with respect to each Holder, the address
of such Holder maintained by the Registrar; with a copy in a like manner to
Credit Suisse First Boston Corporation;
(2) if to the Purchasers, c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment
Banking Department--Transactions Advisory Group; and
(3) if to the Company, to Radio One, Inc., 5900 Princess Garden
Parkway, 8/th/ Floor, Lanham, Maryland 20706, Attention: General Counsel.
The Purchaser or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(e) Third Party Beneficiaries. The Holders shall be third party
-------------------------
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Purchasers, on the other hand, and shall have the right to enforce
such agreements directly to the extent they may deem such enforcement necessary
or advisable to protect their rights or the rights of Holders hereunder.
(f) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the successors and assigns of each of the parties and the
Holders, including, without the need for an express assignment or any consent by
the Company thereto, subsequent Holders of Securities. The Company hereby
agrees to extend the benefits of this Agreement to any Holder of Securities and
any such Holder may specifically enforce the provisions of this Agreement as if
an original party hereto.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF
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CONFLICTS OF LAWS.
(j) Securities Held by the Company. Whenever the consent or approval
------------------------------
of Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
considered to be outstanding and shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
(k) Severability. In the event that any one of more of the provisions
------------
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(Signature page follows.)
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
RADIO ONE, INC.
By: /s/ Alfred C. Liggins
------------------------------
Name: Alfred C. Liggins
Title: President & CEO
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
DEUTSCHE BANK SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
FIRST UNION SECURITIES, INC.
Acting on behalf of itself and
the several Purchasers
pursuant to the Purchase Agreement
By: /s/ Kristin M. Allen
------------------------------
Name: Kristin M. Allen
Title: Managing Director
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