Exhibit 4.1
EXECUTION COPY
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REGISTRATION RIGHTS AGREEMENT
By and Between
RADIO ONE, INC.
as "Company"
and
▇. ▇▇▇▇ LOVE
▇▇▇▇▇▇ ▇. LOVE
LRC LOVE LIMITED PARTNERSHIP
LOVE FAMILY LIMITED PARTNERSHIP
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
WINDINGS LANE PARTNERSHIP, LTD.
▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ FAMILY LIMITED PARTNERSHIP
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, III
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇. LOVE
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
R. ▇▇▇▇ ▇▇▇▇▇▇▇
EGI-FUND (99) INVESTORS, L.L.C.
TORCHSTAR COMMUNICATIONS, LLC
BLUE CHIP VENTURE FUNDS PARTNERSHIP
TREBUCHET CORPORATION
and
QUETZAL/▇. ▇. ▇▇▇▇▇▇ PARTNERS, L.P.
as "Stockholders"
February 7, 2001
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REGISTRATION RIGHTS AGREEMENT
This Agreement (this "Agreement") is entered into on February 7, 2001, by
and between Radio One, Inc., a Delaware corporation (the "Company"), and ▇. ▇▇▇▇
Love, ▇▇▇▇▇▇ ▇. Love, LRC Love Limited Partnership, Love Family Limited
Partnership, J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Windings Lane Partnership, Ltd., ▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ Family Limited Partnership, C. ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, III, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇. Love, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇., R. ▇▇▇▇ ▇▇▇▇▇▇▇ (each, a "Series A Stockholder"), EGI-Fund (99)
Investors, L.L.C., Torchstar Communications, LLC, Blue Chip Venture Funds
Partnership, Trebuchet Corporation (each, a "Series B Stockholder"), and
Quetzal/▇. ▇. ▇▇▇▇▇▇ Partners, L.P. (the "Series D Stockholder" and, together
with the Series A Stockholders and the Series B Stockholders, the
"Stockholders"). The Company and the Stockholders are referred to collectively
herein as the "Parties" and each individually as a "Party".
WHEREAS, the Company, Blue Chip Merger Subsidiary, Inc. ("Merger Sub"),
Blue Chip Broadcasting, Inc. ("BCI"), and the Stockholders are parties to that
certain Merger Agreement of even date herewith (the "Merger Agreement"),
pursuant to which, among other things, BCI will be merged with and into Merger
Sub (the "Blue Chip Acquisition") and, as a result of such Blue Chip
Acquisition, the Stockholders will receive shares of the Company's class D
common stock (such shares of class D common stock, the "Blue Chip Acquisition
Stock").
WHEREAS, the Stockholders desire certain registration rights in connection
with the Blue Chip Acquisition Stock and the Company has agreed to provide such
rights to the Stockholders.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter set forth, the Parties agree as follows.
1. Definitions.
"Agreement" has the meaning set forth in the preface above.
"BCI" has the meaning set forth in the recitals above.
"Blue Chip Acquisition" has the meaning set forth in the recitals
above.
"Blue Chip Acquisition Stock" has the meaning set forth in the
recitals above.
"Blue Chip Investors" means those Stockholders holding Registrable
Securities.
"Board" means the Board of Directors of the Company.
"Closing Date" has the meaning set forth in the Merger Agreement.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means the class D common stock, par value $.001 per
share, of the Company.
"Company" has the meaning set forth in the preface above.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Merger Agreement" has the meaning set forth in the recitals above.
"Merger Sub" has the meaning set forth in the recitals above.
"Parties" has the meaning set forth in the preface above.
"Person" means any individual, corporation, partnership, joint
venture, limited liability company, business trust, joint stock company, trust
or unincorporated organization or any government or any agency or political
subdivision thereof.
"Registrable Securities" means (a) the Blue Chip Acquisition Stock
being acquired by the Stockholders and (b) any Common Stock issued or issuable
with respect to any of the shares of Blue Chip Acquisition Stock referred to in
clause (a) above by way of a stock dividend or stock split or in connection with
a combination of shares, recapitalization, merger, consolidation or other
reorganization. Shares of Common Stock will cease to be Registrable Securities
(i) when effectively registered under the Securities Act and disposed of in
accordance with the registration statement covering such shares, or (ii) when
they may be resold by the Person holding such shares without restriction or
limitation under Rule 144(k).
"Registration Expenses" has the meaning set forth in Section 2.8
hereof.
"Rule 144" means Rule 144 under the Securities Act (or any successor
or similar exemptive rules hereafter in effect).
"Rule 145" means Rule 145 under the Securities Act (or any successor
or similar rules hereafter in effect).
"Rule 415" means Rule 415 under the Securities Act (or any successor
or similar rules hereafter in effect).
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Stockholders" has the meaning set forth in the preface
above.
"Series B Stockholders" has the meaning set forth in the preface
above.
"Series D Stockholder" has the meaning set forth in the preface above.
"Shelf Registration" means the registration effected pursuant to
Section 2.1 hereof.
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"Shelf Registration Holders" means those Stockholders holding the
Shelf Registration Securities.
"Shelf Registration Period" has the meaning set forth in Section
2.1(b)(i) hereof.
"Shelf Registration Securities" means up to Two Million One Hundred
and Forty-Three Thousand (2,143,000) shares of Registrable Securities held by
the Series A Stockholders and the Series B Stockholders.
"Shelf Registration Statement" means the shelf registration 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 Shelf
Registration Holders of, all of the Shelf Registration Securities pursuant to
Rule 415, filed by the Company pursuant to the provisions of Section 2.1 of this
Agreement, including the prospectus contained 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.
"Short-Form Registration" has the meaning set forth in Section 2.2(a)
hereof.
"Stockholders" has the meaning set forth in the preface above.
2. Registration Rights.
2.1 Shelf Registration.
(a) The Company shall as promptly as practicable prepare and, not
later than sixty (60) days after the date of this Agreement, file with the
Commission and thereafter shall use its best efforts to cause to be declared
effective under the Act on the Closing Date or as soon as practicable
thereafter, a Shelf Registration Statement relating to the offer and sale of the
Shelf Registration Securities by the Shelf Registration Holders from time to
time in accordance with the methods of distribution elected by such Shelf
Registration Holders and set forth in such Shelf Registration Statement. The
Shelf Registration Securities to be included in the Shelf Registration Statement
shall be determined as follows: first, each Series B Stockholder shall include
all shares of Blue Chip Acquisition Stock issued to such Series B Stockholder
pursuant to the Merger Agreement, other than any such shares which are held in
the post-Closing escrow account established pursuant to Section 2.6 of the
Merger Agreement; and second, each Series A Stockholder shall be permitted to
include such number of shares of Blue Chip Acquisition Stock acquired by such
Series A Stockholder pursuant to the Merger Agreement, other than any such
shares which are held in the post-Closing escrow account established pursuant to
Section 2.6 of the Merger Agreement, as requested by such Series A Stockholder;
provided, however, that the total number of shares of Blue Chip Acquisition
Stock to be included by all Series A Stockholders, taken as a whole, may not
exceed the amount by which 2,143,000 shares exceeds the number of Shelf
Registration Securities being provided by the Series B Stockholders. In the
event that the aggregate number of shares of Blue Chip Acquisition Stock
requested to be included in the Shelf Registration Statement exceeds the maximum
number of shares available for inclusion by the Series A Stockholders, as
calculated pursuant to the preceding sentence, unless otherwise agreed in
writing by all Series A Stockholders who have indicated a desire to participate
in the Shelf Registration Statement, then the shares to be
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included in the Shelf Registration Statement by each participating Series A
Stockholder shall be reduced, on a pro rata basis, in proportion to the number
of Registrable Securities held by each such Series A Stockholder; provided
further, however, that ▇. ▇▇▇▇ Love shall not be permitted to include more than
1,500,000 shares of Registrable Securities in the Shelf Registration Statement.
(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 Shelf Registration Holders of the relevant Shelf
Registration Securities, for a period of one year from the date of its
effectiveness or such shorter period that will terminate when all the Shelf
Registration Securities covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement (in any such case,
such period being called the "Shelf Registration Period"); and
(ii) during the Shelf Registration Period, promptly upon the
request of any Shelf Registration Holder to take any action reasonably
necessary to register the sale of any Shelf Registration Securities of such
Shelf Registration Holder and to identify such Shelf Registration Holder as
a selling securityholder.
(c) The Company may require each Shelf Registration Holder as a
condition to the registration of such Shelf Registration Holder's Shelf
Registration Securities thereunder to furnish to the Company such information
regarding the Shelf Registration Holder and the distribution of the Shelf
Registration Securities as the Company may from time to time reasonably require
for inclusion in such Shelf Registration Statement. Each Shelf Registration
Holder who offers and sells Shelf Registration Securities by means of the Shelf
Registration Statement shall do so in accordance with the terms thereof and the
requirements of the Securities Act.
(d) 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 2.1(d) shall not be deemed a
breach of this provision if such failure results from inclusion of any untrue
statement or materials provided by Shelf Registration Holders, in writing,
specifically for inclusion in such Shelf Registration Statement, related
prospectus or amendment or supplement thereto.
2.2 Demand Registrations.
(a) Requests for Registration. At any time one hundred eighty (180)
days or more after the Closing Date, the holders of at least 30% of the
Registrable Securities may request one registration under the Securities Act of
all or any portion of their Registrable Securities on Form S-3 or any similar
short-form registration statement ("Short-Form Registrations") if available, and
at any time eighteen (18) months or more after the Closing Date, the holders of
at least 30% of the
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Registrable Securities may request one additional Short-Form Registration. Both
Short-Form Registrations shall be underwritten registrations. Each request for a
Short-Form Registration shall specify the approximate number of Registrable
Securities requested to be registered and the anticipated per share price range
for such offering. Within ten days after receipt of any such request, the
Company shall give written notice of such requested registration to all other
holders of Registrable Securities and, subject to the terms of Section 2.2(b)
hereof, shall include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion therein
within 15 days after the receipt of the Company's notice; provided, however,
that the Company shall not be required to include in any such registration the
Registrable Securities of a Blue Chip Investor that does not accept the standard
and customary terms of the underwriting as reasonably agreed upon between the
Company and the managing underwriter(s) for such offering. A registration shall
not count as one of the permitted Short-Form Registrations until it has become
effective (unless such Short-Form Registration has not become effective due
solely to the fault of the holders requesting such registration), and neither
the first, the second nor any subsequent Short-Form Registration shall count as
one of the permitted Short-Form Registrations unless the holders of Registrable
Securities are able to register and sell at least 75% of the Registrable
Securities requested to be included in such registration.
(b) Priority on Short-Form Registrations. If the managing
underwriters of a Short-Form Registration advise the Company in writing that in
their opinion the number of Registrable Securities and other securities
requested to be included in such offering exceeds the number of Registrable
Securities and other securities, if any, which can be sold therein without
adversely affecting the marketability of the offering, the Company shall include
in such registration the number of securities requested to be included which in
the opinion of such underwriters can be sold without adversely affecting the
marketability of the offering pro rata among the respective holders thereof on
the basis of the amount of securities that each such holder requested for
inclusion in such Short-Form Registration.
(c) Restrictions on Short-Form Registrations. The Company shall not
be obligated to effect any Short-Form Registration within 90 days after (i) the
effective date of a previous Short-Form Registration (including any registration
that would have constituted a Short-Form Registration but for the fact that the
holders of Registrable Securities were not able to register and sell at least
75% of the Registrable Securities requested to be included in such registration)
or a previous registration in which the holders of Registrable Securities were
given piggyback rights pursuant to Section 2.3 hereof and (ii the filing date of
a Short-Form Registration that does not become effective due solely to the fault
of the holders relinquishing such registration. The Company may postpone for up
to 180 days the filing or the effectiveness of a registration statement for a
Short-Form Registration if the Board determines in its reasonable good faith
judgment that such Short-Form Registration would reasonably be expected to have
a material adverse effect on any proposal or plan by the Company or any of its
Subsidiaries to engage in any acquisition of assets (other than in the ordinary
course of business) or any merger, consolidation, tender offer, reorganization
or similar material transaction; provided that in such event, the holders of
Registrable Securities initially requesting such Short-Form Registration shall
be entitled to withdraw such request and, if such request is withdrawn, such
Short-Form Registration shall not count as one of the permitted Short-Form
Registrations hereunder. The Company may delay a Short-Form Registration
hereunder only once in any twelve-month period.
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(d) Selection of Underwriters. The Company shall have the right to
select the investment banker(s) and manager(s) to administer any Short-Term
Registration, subject to the approval of the holders of a majority of the
Registrable Securities initially requesting registration hereunder which shall
not be unreasonably withheld or delayed.
2.3 "Piggy-Back" Registration Rights. If at any time or times after the
Closing Date, the Company shall determine or be required to register any shares
of its Common Stock for sale under the Securities Act (whether in connection
with a public offering of securities by the Company, a public offering of
securities by stockholders of the Company, or both, but not in connection with a
registration effected solely to implement an employee benefit plan or a
transaction to which Rule 145 or any other similar rule of the Commission under
the Securities Act is applicable), the Company will promptly give written notice
thereof to the Blue Chip Investors that hold Registrable Securities at that
time. In connection with any such registration, if within 10 days after the
receipt of such notice, one or more Blue Chip Investors request the inclusion of
some or all of the Registrable Securities (but not any other shares) held by
them in such registration, the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which such
Blue Chip Investors request to be registered. In the case of the registration
of shares of Common Stock by the Company in connection with an underwritten
public offering, (a) the Company shall not be required to include any
Registrable Securities in such underwriting which are held by a Blue Chip
Investor that does not accept the standard and customary terms of the
underwriting as reasonably agreed upon between the Company and the managing
underwriter(s) for such offering, and (b) if the managing underwriter(s)
reasonably determine(s) in writing that marketing factors require a limitation
on the number of Registrable Securities to be offered, the Company shall not be
required to register Registrable Securities in excess of the amount, if any, of
shares of capital stock which the managing underwriter(s) for such offering
shall reasonably and in good faith agree to include in such offering in excess
of any amount to be registered for the Company and/or for the stockholder(s)
requiring such registration.
2.4 Further Obligations of the Company. Whenever the Company is required
under this Section 2 to register any Registrable Securities, it agrees that it
shall also do the following:
(a) except as provided in Section 2.1 hereof, use its best efforts
(with due regard to the management of the ongoing business of the Company) to
diligently prepare and file with the Commission a registration statement and
such amendments and supplements to said registration statement and the
prospectus used in connection therewith as may be necessary to keep said
registration statement effective and to comply with the provisions of the
Securities Act with respect to the sale of the securities covered by said
registration statement for the lesser of: (i) 180 days or (ii) the period
necessary to complete the proposed public offering; provided that the Company
shall not be obligated to file, cause to become effective or maintain the
effectiveness of any such registration statement if the Board determines in its
reasonable good faith judgment that such filing or effectiveness would
reasonably be expected to have a material adverse effect on any proposal or plan
by the Company or any of its Subsidiaries to engage in any acquisition of assets
(other than in the ordinary course of business) or any merger, consolidation,
tender offer, reorganization or similar material transaction;
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(b) furnish to each selling Blue Chip Investor such copies of each
preliminary and final prospectus and such other documents as such Blue Chip
Investor may reasonably request to facilitate the public offering of its
Registrable Securities;
(c) use its best efforts to register or qualify the Registrable
Securities covered by said registration statement under the securities or "blue-
sky" laws of such jurisdictions as any selling Blue Chip Investors may
reasonably request, provided that the Company shall not be required to register
to qualify the Registrable Securities in any jurisdictions which require it to
qualify to do business or subject itself to general service of process therein;
(d) immediately notify each selling Blue Chip Investor, at any time
when a prospectus relating to its Registrable Securities is required to be
delivered under the Securities Act, of the happening of any event as a result of
which such prospectus contains an untrue statement of a material fact or omits
any material fact necessary to make the statements therein not misleading, and,
at the request of any such selling Blue Chip Investor, prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading;
(e) cause all such Registrable Securities to be listed on each
securities exchange or quoted in each quotation system on which similar
securities issued by the Company are then listed or quoted; and
(f) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission and make generally available to each selling
Blue Chip Investor, in each case as soon as practicable, but not later than 45
days after the close of the period covered thereby (or 90 days in case the
period covered corresponds to a fiscal year of the Company), an earnings
statement of the Company which will satisfy the provisions of Section 11(a) of
the Securities Act.
2.5 Indemnification and Contribution.
(a) Incident to any registration statement referred to in this Section
2, and subject to applicable law, the Company will indemnify and hold harmless
each underwriter, each Blue Chip Investor who holds any Registrable Securities
(including its respective directors or partners, officers, employees and agents)
so registered, and each Person who controls any of them within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, expenses and liabilities, joint or
several (including any investigation, legal or other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they, or any of them, 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 arise out of or are based on (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration (including any related preliminary or definitive prospectus, or any
amendment or supplement to such registration statement or prospectus), and (ii
any omission or alleged omission to state in such document a material fact
required to be stated in it or necessary to make the statements in it not
misleading, or (ii any violation by the Company of the Securities Act, any state
securities or "blue
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sky" laws or any rule or regulation thereunder in connection with such
registration, provided, however, that the Company will not be liable to the
extent that such loss, claim, damage, expense or liability arises from and is
based on an untrue statement or omission or alleged untrue statement or omission
made in reliance on and in conformity with information furnished in writing to
the Company by such underwriter, Blue Chip Investor or controlling Person
expressly for use in such registration statement. With respect to such untrue
statement or omission or alleged untrue statement or omission in the information
furnished in writing to the Company by such Blue Chip Investor expressly for use
in such registration statement, such Blue Chip Investor will indemnify and hold
harmless each underwriter, the Company (including its directors, officers,
employees and agents), each other Blue Chip Investor holding Registrable
Securities (including its respective directors or partners, officers, employees
and agents) and each other person whose securities are so registered, and each
Person who controls any of them within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages, expenses and liabilities, joint or several, to which
they, or any of them, may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise to the same extent provided in the immediately preceding sentence.
(b) If the indemnification provided for in Section 2.5(a) above for
any reason is held by a court of competent jurisdiction to be unavailable to an
indemnified party in respect of any losses, claims, damages, expenses or
liabilities referred to therein, then each indemnifying party under this Section
2.5, in lieu of indemnifying such indemnified party thereunder, shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, expenses or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits, if any, received by the Company,
the other selling Blue Chip Investors and the underwriters from the offering of
the Registrable Securities or (ii if the allocation provided by clause (i) above
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 Company, the other selling Blue Chip Investors and the
underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, expenses or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, the selling Blue Chip Investors and the underwriters shall be deemed to
be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Company and the selling Blue Chip
Investors and the underwriting discount received by the underwriters, in each
case as set forth in the table on the cover page of the applicable prospectus,
bear to the aggregate public offering price of the Registrable Securities. The
relative fault of the Company, the selling Blue Chip Investors and the
underwriters shall be determined by reference to, among other things, whether
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, the selling Blue Chip Investors or the underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Blue Chip Investors, and
the underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 2.5(b) were determined by pro rata or per capita
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding sentence.
In no event, however, shall a Blue Chip Investor be required to contribute any
amount under this Section 2.5(b) in excess of the lesser of (A) that proportion
of the total of such losses, claims, damages or liabilities indemnified against
equal to the proportion of the total Registrable Securities sold under such
registration statement which is being sold by such Blue Chip
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Investor or (B) the proceeds received by such Blue Chip Investor from its sale
of Registrable Securities under such registration statement. No Person found
guilty of fraudulent misrepresentation (within the meaning of Section 9(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(c) The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referenced to in this Section 2.5
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. The
indemnification and contribution provided for in this Section 2.5 will remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified parties or any director or partner, officer, employee, agent or
controlling Person of the indemnified parties.
2.6 Rule 144 Requirements. The Company shall use its best efforts to
take all actions as may be required as a condition to the availability, and
shall furnish to any Blue Chip Investor upon request a written statement
executed by the Company as to the steps it has taken to comply with the current
public information requirement, of Rule 144 under the Securities Act (or any
successor or similar exemptive rules hereafter in effect). Further, the Company
shall cause all Registrable Securities to be listed on each securities exchange
or quoted in each quotation system on which similar securities issued by the
Company are then listed or quoted to the extent necessary or appropriate to
permit the Blue Chip Investors to transfer such securities pursuant to Rule 144.
2.7 Registration Expenses.
(a) All expenses incident to the registration and offering of
Registrable Securities pursuant to this Agreement, including without limitation
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws, printing expenses, messenger and delivery expenses,
fees and disbursements of custodians, and fees and disbursements of counsel for
the Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "Registration Expenses"), shall be borne
by the Company, except that the Blue Chip Investors shall bear underwriting and
selling commissions attributable to their Registrable Securities being
registered, any transfer taxes on shares being sold by such Blue Chip Investors
and any fees and expenses of legal counsel for such Blue Chip Investors;
provided, however, that the Blue Chip Investors shall bear all Registration
Expenses with respect to any Short-Form Registration that has not become
effective due solely to the fault of the holders requesting such registration,
except that the Company shall, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or on
the NASD automated quotation system.
(b) To the extent Registration Expenses are not required to be paid by
the Company, each holder of securities included in any registration hereunder
shall pay those Registration Expenses allocable to the registration of such
holder's securities so included, and any Registration Expenses not so allocable
shall be borne by all sellers of securities included in such registration in
proportion to the aggregate selling price of the securities to be so registered.
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3. Miscellaneous Provisions.
3.1 No Assignment; No Third-Party Beneficiaries. Neither the Company, on
the one hand, nor any Stockholder, on the other hand, may assign its respective
rights or obligations hereunder without the prior written consent of each
Stockholder, in the case of any proposed assignment by the Company, or the
Company, in the case of any proposed assignment by any Stockholder other than
assignments to persons or entities who are affiliates of the Stockholder within
the meaning set forth in Rule 12b-2 of the regulations promulgated under the
Securities Exchange Act of 1934, as amended. This Agreement shall not confer
any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
3.2 Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement among the Parties and supersedes any
prior negotiations, understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they related in any way to the
subject matter hereof.
3.3 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
3.4 Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
3.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Delaware without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Delaware or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Delaware.
3.6 Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Company and the holders of two-thirds of the then-outstanding Registrable
Securities. No waiver by any Party of any default, misrepresentation, or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
3.7 Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
[END OF DOCUMENT]
[SIGNATURE PAGE FOLLOWS]
-10-
IN WITNESS WHEREOF, the Parties have executed this Agreement on the date
first above written.
Radio One, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Title: President
Series A Stockholders:
/s/ ▇. ▇▇▇▇ Love
--------------------------------------
▇. ▇▇▇▇ Love
/s/ ▇▇▇▇▇▇ ▇. Love
--------------------------------------
▇▇▇▇▇▇ ▇. Love
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
LRC Love Limited Partnership
By: /s/ ▇. ▇▇▇▇ Love
----------------------------------
Name: ▇. ▇▇▇▇ Love
Title: General Partner
Love Family Limited Partnership
By: /s/ ▇. ▇▇▇▇ Love
----------------------------------
Name: ▇. ▇▇▇▇ Love
Title: General Partner
Windings Lane Partnership, LTD
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: General Partner
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ FAMILY Limited Partnership
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, III
--------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, III
/s/ C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇
--------------------------------------
▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇ ▇. Love
--------------------------------------
▇▇▇▇▇▇ ▇. Love
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
R. ▇▇▇▇ ▇▇▇▇▇▇▇
Series B Stockholders:
Trebuchet Corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
Torchstar Communications, LLC
By: /s/ ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇. ▇▇▇▇▇
Title: Manager
Blue Chip Venture Funds Partnership
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
EGI-Fund (99) Investors, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Series D Stockholders:
Quetzal/▇. ▇. ▇▇▇▇▇▇ Partners, L.P.
By: Quetzal/▇. ▇. ▇▇▇▇▇▇ Partner (GP), LLC,
its general partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Member