As
filed with the Securities and Exchange Commission on January 15,
2010
Registration
No. 333-_______
UNITED
STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C.
20549
________________________________________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
________________________________
RADIO ONE, INC.
(Exact
name of Company as specified in its charter)
|
Delaware
(State
or other jurisdiction of
incorporation
or organization)
|
52-1166660
(I.R.S.
Employer Identification No.)
|
5900
Princess Garden Parkway
7th
Floor
Lanham,
Maryland 20706
(Address,
including zip code of Company’s principal executive offices)
________________________________
2009
Stock Option and Restricted Stock Plan
(Full
title of the plan)
________________________________
Michael
Plantamura, Esq.
Radio
One, Inc.
5900
Princess Garden Parkway
7th
Floor
Lanham,
Maryland 20706
(301)
306-1111
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
________________________________
Copies
to:
C.
Kristopher Simpson, Esq.
5900
Princess Garden Parkway
7th
Floor
Lanham,
Maryland 20706
(301)
306-1111
________________________________
Indicate
by check mark whether the Company is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the
definitions of “large accelerated filer, “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
|
Large accelerated filer
o
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Accelerated filer o
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Non-accelerated filer x
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Smaller reporting company
o
|
||
|
(Do not check if a smaller reporting
company)
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|||||
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities to be Registered
|
Amount
to
be
Registered
(1)
|
Proposed
Maximum
Offering Price
Per
Share
|
Proposed
Maximum
Aggregate
Offering Price (2)
|
Amount
of
Registration
Fee
|
||||
|
Class
D Common Stock $0.001 par value per share, to be issued under the 2009
Stock Option and Restricted Stock Plan
|
8,250,000 shares
|
$3.27
|
$26,977,500.00
|
$1,923.50
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||||
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(1)
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Pursuant
to Rule 416(c) under the Securities Act of 1933, as amended (the
“Securities Act”), there is also being registered such additional shares
of Class D Common Stock that become available under the foregoing plans in
connection with changes in the number of outstanding Class D Common Stock
because of events such as recapitalizations, stock dividends, stock splits
and reverse stock splits, and any other securities with respect to which
the outstanding shares are converted or
exchanged.
|
|
(2)
|
Estimated
in accordance with Rule 457(c) and 457(h) of the Securities Act solely for
the purpose of calculating the filing fee on the basis of $3.27 per share,
which represents the average of the high and low prices of the Common
Stock as reported on the NASDAQ Global Select Market on January 13,
2010.
|
This
Registration Statement shall become effective upon filing in accordance with
Section 8(a) of the Securities Act of 1933 and 17 C.F.R. §
230.462.
2
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Items
1 and 2. Plan Information and Company Information and Employee Plan Annual
Information
The
documents containing the information specified in Part I and II of this
Registration Statement on Form S-8 have been or will be sent or given to
participants in the 2009 Stock Option and Restricted Stock Plan (the “2009
Plan”) as specified by Rule 428(b)(1) promulgated by the United Stated
Securities and Exchange Commission (the “Commission”) under the Securities Act
of 1933, as amended (the “Securities Act”).
Such
documents are not being filed with the Commission, but constitute (along with
the documents incorporated by reference into this Registration Statement on Form
S-8 pursuant to Item 3 of Part II hereof) a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
Unless
otherwise noted, the terms “Radio One,” “the Company,” “we,” “our” and “us”
refer to Radio One, Inc.
3
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
|
Item 3.
|
Incorporation
of Documents by Reference.
|
We
incorporate by reference information into this Registration Statement, which
means that we disclose important information to you by referring you to another
document filed separately with the Commission. The information incorporated by
reference is deemed to be part of this document, except for any information
superseded by information contained directly in this document. This Registration
Statement incorporates by reference the documents set forth below that we have
previously filed with the Commission. These documents contain important
information about us and our financial condition.
(a) The
description of our Class D Common Stock, par value $.001 per share, contained in
a registration statement on Form 8-A under the Exchange Act filed by the Company
on May 17, 2000 and any amendments or reports filed for the purpose of updating
such description.
(b) Radio
One’s annual report on Form 10-K for the year ended December 31, 2008, filed
with the Commission on March 16, 2009, as amended by Forms 10-K/A filed April
30, 2009 and November 18, 2009.
(c) Radio
One’s quarterly report on Form 10-Q for the period ended March 31, 2009, filed
with the Commission on May 11, 2009.
(d) Radio
One’s quarterly report on Form 10-Q for the period ended June 30, 2009, filed
with the Commission on August 7, 2009.
(e) Radio
One’s quarterly report on Form 10-Q for the period ended September 30, 2009,
filed with the Commission on November 9, 2009.
(f) Radio
One’s current reports on Form 8-K, filed with the Commission on February 24,
2009; May 14, 2009; June 10, 2009; August 11, 2009; August 21, 2009; September
2, 2009; October 19, 2009; October 30, 2009; and December 22, 2009.
In addition,
all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and made a part hereof from their respective dates of filing (such documents,
and the documents listed above, being hereinafter referred to as “Incorporated
Documents”); provided, however, that the documents listed above or subsequently
filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act in each year during which the offering made by this Registration
Statement is in effect prior to the filing with the Commission of the Company’s
Annual Report on Form 10-K covering such year shall cease to be Incorporated
Documents or be incorporated by reference in this Registration Statement from
and after the filing of such Annual Report.
Any
statement contained in an Incorporated Document shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed Incorporated
Document modifies or supersedes such statement. Any statement contained herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained in any subsequently filed
Incorporated Document modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
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Item 4.
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Description
of Securities.
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Not
applicable (the Company’s Class D Common Stock is registered under Section
12 of the Exchange Act).
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Item 5.
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Interests
of Named Experts and Counsel.
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The
opinion of counsel as to the legality of the securities that may be issued under
the 2009 Plan is given by C. Kristopher Simpson, Associate General Counsel for
Radio One, Inc. Mr. Simpson is employed by the Company and has
been awarded shares under the 2009 Plan.
4
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Item 6.
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Indemnification
of Directors and Officers.
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Section
145 of the General Corporation Law of the State of Delaware (the “DGCL”)
provides generally that a person sued (other than in a derivative suit) as a
director, officer, employee or agent of a corporation may be indemnified by the
corporation for reasonable expenses, including counsel fees, if the person acted
in good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that the
person’s conduct was unlawful. In the case of a derivative suit, a director,
officer, employee or agent of the corporation may be indemnified by the
corporation for reasonable expenses, including attorneys’ fees, if the person
has acted in good faith and in a manner the person reasonably believed to be in
or not opposed to the best interests of the corporation, except that no
indemnification shall be made in the case of a derivative suit in respect of any
claim as to which such director, officer, employee or agent has been adjudged to
be liable to the corporation unless the Delaware Court of Chancery or the court
in which such action or suit was brought shall determine that such person is
fairly and reasonably entitled to indemnity for proper expenses. Indemnification
is mandatory under section 145 of the DGCL in the case of a director or officer
who is successful on the merits in defense of a suit against him.
The
Company’s Amended and Restated Certificate of Incorporation provides that the
Company shall indemnify (including indemnification for expenses incurred in
defending or otherwise participating in any proceeding) its directors and
officers to the fullest extent authorized or permitted by the DGCL, as it may be
amended, and that such right to indemnification shall continue as to a person
who has ceased to be a director or officer of the Company and shall inure to the
benefit of his or her heirs, executors and administrators except that such right
shall not apply to proceedings initiated by such indemnified person unless it is
a successful proceeding to enforce indemnification or such proceeding was
authorized or consented to by the board of directors. Radio One’s certificate of
incorporation also specifically provides for the elimination of the personal
liability of a director to the corporation and its stockholders for monetary
damages for breach of fiduciary duty as director. The provision is limited to
monetary damages, applies only to a director’s actions while acting within his
or her capacity as a director, and does not entitle the Company to limit
director liability for any judgment resulting from (a) any breach of the
director’s duty of loyalty to the Company or its stockholders; (b) acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of the law; (c) paying an illegal dividend or approving an illegal
stock repurchase; or (d) any transaction from which the director derived an
improper benefit.
The
Company’s Amended and Restated Bylaws incorporate substantially the provisions
of the DGCL in providing for indemnification of directors and officers against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred in connection with any proceeding arising by reason of the
fact that such person is or was an officer or director of the Company. In
addition, the Company is authorized to indemnify employees and agents of the
Company and may enter into indemnification agreements with its directors and
officers providing mandatory indemnification to them to the maximum extent
permissible under Delaware law.
The
Company maintains directors and officers liability insurance for the benefit of
its directors and certain of its officers.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Company under
the foregoing provisions, or otherwise, the Company understands that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act is, therefore, unenforceable.
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Item 7.
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Exemption
from Registration Claimed.
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Not
applicable.
5
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Item 8.
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Exhibits.
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Unless
otherwise indicated below as being incorporated by reference to another filing
of the Company with the Commission, each of the following exhibits is filed
herewith:
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Exhibit
Number
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Description of Exhibit
|
|
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4.1
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2009
Stock Option and Restricted Stock Plan (incorporated by reference
from the Registrant’s Definitive Proxy Statement on Schedule 14A filed
with the Commission on November 6, 2009.)
|
|
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5.1
|
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Opinion
of C. Kristopher Simpson, Associate General Counsel.
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23.1
|
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Consent
of Ernst & Young LLP, Independent Registered Public Accounting
Firm.
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23.2
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Consent
of C. Kristopher Simpson, Associate General Counsel (included
in Exhibit 5.1).
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24.1
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Power
of Attorney (included on the signature page).
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Item 9.
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Undertakings.
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(1) The
undersigned Company hereby undertakes:
(a) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective Registration Statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; provided,
however, that paragraphs (1)(a)(i) and (1)(a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed or furnished to the Commission by the
Company pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement.
(b) That,
for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(2) The
undersigned Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company’s annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3)
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Company of expenses incurred or paid by a director, officer
or controlling person of the Company in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Company will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
[SIGNATURES
ON THE NEXT PAGE]
6
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Lanham, State of Maryland on this 14th day of
January, 2010.
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RADIO ONE, INC.
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|||
|
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By: |
/S/ ALFRED
C. LIGGINS, III
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|
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Alfred
C. Liggins, III
Chief
Executive Officer and President
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|||
POWER
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Alfred C. Liggins,
III and Peter D. Thompson as his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for such person and in his
name, place and stead, in any and all capacities, to sign any or all further
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities
indicated.
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Signature
|
|
Title
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Date
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|||
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/S/ ALFRED
C. LIGGINS, III
|
|
Chairman,
Chief Executive Officer, President and Director (Principal Executive
Officer)
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January
14, 2010
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|||
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Alfred
C. Liggins, III
|
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|||||
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/S/ PETER
D. THOMPSON
|
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Executive
Vice President and Chief Financial Officer (Principal Financial and
Accounting Officer)
|
January
14, 2010
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|||
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Peter
D. Thompson
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|||||
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/S/ CATHERINE
H. HUGHES
|
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Director
|
January
14, 2010
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|||
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Catherine
H. Hughes
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|||||
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/S/ D.
GEOFFREY ARMSTRONG
|
|
Director
|
January
14, 2010
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|||
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D.
Geoffrey Armstrong
|
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|||||
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/S/ TERRY
L. JONES
|
|
Director
|
January
14, 2010
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|||
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Terry
L. Jones
|
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|||||
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/S/ BRIAN
W. MCNEILL
|
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Director
|
January
14, 2010
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|||
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Brian
W. McNeill
|
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|||||
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/S/ RONALD
E. BLAYLOCK
|
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Director
|
January
14, 2010
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|||
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Ronald
E. Blaylock
|
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|||||
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/S/ B.
DOYLE MITCHELL, JR.
|
|
Director
|
January
14, 2010
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|||
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B.
Doyle Mitchell, Jr.
|
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|||||
7
EXHIBIT
INDEX
|
Exhibit
Number
|
Description of Exhibit
|
|
|
4.1
|
2009
Stock Option and Restricted Stock Plan (incorporated by reference from the
Registrant’s Definitive Proxy Statement on Schedule 14A filed with the
Commission on November 6, 2009.)
|
|
|
5.1
|
|
Opinion
of C. Kristopher Simpson, Associate General Counsel.
|
|
23.1
|
|
Consent
of Ernst & Young LLP, Independent Registered Public Accounting
Firm.
|
|
23.2
|
|
Consent
of C. Kristopher Simpson, Associate General Counsel (included
in Exhibit 5.1).
|
|
24.1
|
|
Power
of Attorney (included on the signature page).
|
8
Exhibit
5.1
January
14, 2010
Radio
One, Inc.
5900
Princess Garden Parkway
5th
Floor
Lanham,
Maryland 20706
|
Re:
|
Registration Statement on Form S-8 for Shares of
Class D Common Stock Issuable Under Radio One, Inc. 2009 Stock
Option and Restricted Stock
Plan
|
Ladies
and Gentlemen:
I am
Associate General Counsel of Radio One, Inc., a Delaware corporation (the
“Company”), and I have acted as counsel in connection with the Registration
Statement on Form S-8 (the “Registration Statement”) with respect to the
registration under the Securities Act of 1933, as amended, of a total of
8,250,000 shares (the “Shares”) of the Company’s Class D Common Stock, par value
$0.001 per share (the “Class D Common Stock”), issuable from time to time
pursuant to awards granted under the Radio One, Inc. 2009 Stock Option and
Restricted Stock Plan (the “Plan”).
In
connection therewith, I, or attorneys under my direction, have examined, and
relied upon the accuracy of factual matters contained in, the Plan and such
other agreements, documents, corporate records and instruments as I have deemed
necessary for the purposes of the opinion expressed below. In giving this
opinion, I am assuming that the Shares will continue to be duly and validly
authorized on the dates that the Shares are issued to participants pursuant to
the terms of the Plan, and, upon the issuance of any of the Shares, the total
number of shares of Class D Common Stock issued and outstanding, after giving
effect to such issuance of such Shares, will not exceed the total number of
shares of Class D Common Stock that the Company is then authorized to issue
under its articles of incorporation.
Based
upon the foregoing, I am of the opinion that the Shares, when issued pursuant to
awards granted in accordance with the terms of the Plan and in the manner
contemplated by the Plan, will be legally issued, fully paid and
non-assessable.
This
opinion is limited to the matters expressly stated herein. No implied
opinion may be inferred to extend this opinion beyond the matters expressly
stated herein. I do not undertake to advise you of any changes in the opinion
expressed herein resulting from changes in law, changes in facts or any other
matters that might occur or be brought to my attention after the date
hereof. In addition, I consent to the attachment of this opinion to
the Registration Statement and further consent to the use of my name wherever it
may appear in the Registration Statement, including any prospectus constituting
a part thereof, and any amendments thereto.
Very
truly yours,
/s/ C. Kristopher
Simpson
C.
Kristopher Simpson
Associate
General Counsel
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 2009 Stock Option and Restricted Stock Plan of Radio
One, Inc. of our reports dated March 10, 2009, with respect to the consolidated
financial statements and schedule and the effectiveness of internal control over
financial reporting, included in Radio One, Inc.'s Annual Report
(Form 10-K/A) for the year ended December 31, 2008, filed with the
Securities and Exchange Commission.
/s/
Ernst & Young LLP
Baltimore,
Maryland
January
14, 2010