UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
APRIL 18, 2002
VIACOM INC.
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(Exact name of registrant as
specified in its charter)
Delaware 1-9553 04-2949533
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(State or other Commission (IRS Employer
jurisdiction File Number Identification
of incorporation) Number)
1515 Broadway, New York, NY 10036
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(Address of principal executive offices) (Zip Code)
(212) 258-6000
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(Registrant's telephone number, including area code)
Item 5. Other Events
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On April 18, 2002, Viacom Inc. ("Viacom" or, the
"Registrant") and Viacom International Inc. ("Viacom
International") entered into an underwriting agreement (the
"Underwriting Agreement", a copy of which is attached hereto
as Exhibit 1.1) with Banc of America Securities LLC, J.P.
Morgan Securities Inc., on behalf of themselves and as
representatives for the other underwriters named therein
(collectively, the "Underwriters").
On April 25, 2002, pursuant to the Underwriting Agreement,
Viacom issued and sold and the Underwriters purchased
$700,000,000 aggregate principal amount of Viacom's 5.625%
Senior Notes due 2007 (the "Senior Notes") at an initial
public offering price of 100% of the principal amount of the
Senior Notes, which yielded aggregate proceeds to Viacom of
$696,486,000, after payment of the underwriting discount, but
before payment of expenses related to the offering.
A form of the Senior Notes, including the guarantee endorsed
thereon, is attached hereto as Exhibit 4.1. The Senior Notes
were (i) registered under the Securities Act of 1933, as
amended, pursuant to a Registration Statement on Form S-3
(Registration No. 333-52728) filed on December 26, 2000 and a
Registration Statement on Form S-3 (Registration No. 333-
62052) filed on May 31, 2001, which Registration Statement
also constitutes Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3 (Registration No. 333-
52728), and the amendment thereto filed on June 13, 2001, and
(ii) issued under an Indenture, dated as of June 22, 2001
(the "Indenture") among Viacom, Viacom International, as
guarantor, and The Bank of New York, as trustee (the
"Trustee"). The Indenture has been previously filed as
Exhibit 4.2 to Viacom's Current Report on Form 8-K filed on
July 3, 2001.
Item 7. Financial Statements and Exhibits.
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(c) The following exhibits are filed as part of this report
on Form 8- K:
1.1 Underwriting Agreement, dated April 18,
2002, among Viacom and Viacom International and Banc of
America Securities LLC, and J.P. Morgan Securities Inc., on
behalf of themselves and as representatives for the other
underwriters named therein.
4.1 Form of 5.625% Senior Notes due 2007,
including the form of guarantee endorsed thereon.
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
VIACOM INC.
(Registrant)
By: /s/ Michael D. Fricklas
------------------------
Michael D. Fricklas
Executive Vice President,
General Counsel
and Secretary
Date: April 26, 2002
EXHIBIT INDEX
Exhibit No. Description
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1.1 Underwriting Agreement, dated June
22, 2001, among Viacom and Viacom International and Banc of
America Securities LLC, and J.P. Morgan Securities Inc., on
behalf of themselves and as representatives for the other
underwriters named therein (filed herewith).
4.1 Form of 5.625% Senior Notes due 2007, including the
form of guarantee endorsed thereon (filed herewith).
VIACOM INC.
VIACOM INTERNATIONAL INC.
5.625% SENIOR NOTES DUE 2007
UNDERWRITING AGREEMENT
New York, New York
April 18, 2002
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
- -and-
J.P. Morgan Securities Inc.
270 Park Avenue
New York, NY 10017
As Representatives of the
several Underwriters
Ladies and Gentlemen:
Viacom Inc., a Delaware corporation (the "Company"),
confirms its agreement, subject to the terms and conditions
stated herein, with Banc of America Securities LLC ("Banc of
America") and J.P. Morgan Securities Inc. ("JPMorgan"), and each
of the other underwriters named in Schedule I hereto
(collectively, the "Underwriters," which term shall also include
any underwriter substituted hereinafter as provided in Section 10
hereof), for whom Banc of America and JPMorgan are acting as
representatives (in such capacity, the "Representatives"), with
respect to the issue and sale by the Company and the purchase by
the Underwriters, acting severally and not jointly, of the
respective principal amount set forth in Schedule I of
$700,000,000 aggregate principal amount of 5.625% Senior Notes
due 2007 (the "Notes") guaranteed on an unsecured basis (the
"Guarantee") by Viacom International Inc., a Delaware corporation
(the "Guarantor"). The Notes and the Guarantee are hereinafter
collectively referred to as the "Securities". The Securities are
to be issued under an indenture dated as of June 22, 2001 among
the Company, the Guarantor and The Bank of New York, as trustee
(the "Trustee"), as supplemented by resolutions adopted by the
Company to be dated April 18, 2002 pursuant to Section 301 of
such indenture (as so amended and supplemented from time to time,
the "Indenture").
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company
and the Guarantor jointly and severally represent and warrant to
the Underwriters, as of the date hereof and as of the Closing
Time (as defined below), as follows:
(a) REGISTRATION STATEMENT AND THE PROSPECTUS. The Company
has filed with the Securities and Exchange Commission (the
"Commission") a (i) registration statement on Form S-3 (No. 333-
52728) under the Securities Act of 1933, as amended (the "1933
Act"), and (ii) registration statement on Form S-3 (No. 333-
62052), which also constitutes Post-Effective Amendment No. 1 to
the Registration Statement on Form S-3 (No. 333-52728) under the
1933 Act (together, the "Registration Statement") in respect of,
among other things, the Securities. The Company meets the
requirements for use of Form S-3 under the 1933 Act. If the
Company files a registration statement with the Commission
pursuant to Rule 462(b) of the rules and regulations under the
1933 Act, then all references to the Registration Statement shall
also be deemed to include that Rule 462(b) registration
statement. The Registration Statement has been declared
effective by the Commission, and the Indenture has been qualified
under the Trust Indenture Act of 1939, as amended (the "1939
Act"). The prospectus included in the Registration Statement is
hereinafter referred to as the "Base Prospectus." The Base
Prospectus, as it is to be supplemented by a prospectus
supplement specifically relating to the Securities pursuant to
Rule 424 under the 1933 Act ("Rule 424") is hereinafter referred
to as the "Prospectus." The term "Registration Statement" and
"Prospectus" shall be deemed to include all amendments to the
date hereof and all documents incorporated by reference therein.
Any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Base
Prospectus and the Prospectus shall be deemed to refer to and
include the filing of any document under the Securities Exchange
Act of 1934, as amended (the "1934 Act"), after the date of this
Underwriting Agreement, or the issue date of the Base Prospectus
or the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
The Registration Statement and the Indenture, at the time
and date the Registration Statement was declared effective by the
Commission, complied, in all material respects, with the
applicable provisions of the 1933 Act and the 1939 Act,
respectively, and the applicable rules and regulations of the
Commission thereunder. The Registration Statement, at the time
and date it was declared effective by the Commission, did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus, at the
date it is filed with, or transmitted for filing to, the
Commission pursuant to Rule 424 and at the Closing Time, will
comply, in all material respects, with the applicable provisions
of the 1933 Act and will not contain an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however,
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that the Company makes no representations or warranties as to (i)
that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification (Form T-1) of the
Trustee under the 1939 Act or (ii) the information contained in
or omitted from the Registration Statement or the Prospectus or
any amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished to the Company in
writing by or on behalf of any Underwriter through the
Representatives specifically for use in the Registration
Statement or the Prospectus.
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(b) INCORPORATED DOCUMENTS. The documents incorporated or
deemed to be incorporated by reference in the Registration
Statement and the Prospectus, when they became effective or at
the time they were or hereafter are filed with the Commission,
complied and will comply, as the case may be, in all material
respects with the requirements of the 1934 Act and the rules and
regulations of the Commission thereunder (the "1934 Act
Regulations").
(c) INDEPENDENT ACCOUNTANTS. The accountants who certified
the financial statements and any supporting schedules thereto
included in the Registration Statement and the Prospectus are
independent public accountants as required by the 1933 Act and
the applicable rules and regulations of the Commission thereunder
(the "1933 Act Regulations").
(d) FINANCIAL STATEMENTS. The financial statements of the
Company and CBS Corporation included in the Registration
Statement and the Prospectus, together with the related schedules
and notes, as well as those financial statements, schedules and
notes of any other entity included therein, present fairly the
financial position of the Company and CBS Corporation at the
dates indicated, and the statement of operations, stockholders'
equity and cash flows of the Company and CBS Corporation for the
periods specified. Such financial statements have been prepared
in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the
Registration Statement and the Prospectus present fairly in
accordance with GAAP the information required to be stated
therein. The capitalization table and the ratio of earnings to
fixed charges included in the Prospectus present fairly the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included
in the Registration Statement and Prospectus. In addition, any
pro forma financial statements of the Company and CBS Corporation
and their subsidiaries and the related notes thereto included in
the Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation
thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances
referred to therein.
(e) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in
the financial condition, results of operations or business
affairs of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), and (B) there have been
no material transactions entered into by the Company other than
transactions contemplated by the Registration Statement and
Prospectus or transactions arising in the ordinary course of
business.
(f) GOOD STANDING. The Company and the Guarantor have been
duly organized and are validly existing as corporations in good
standing under the laws of the State of Delaware and have
corporate power and authority to own, lease and operate their
respective properties and to conduct their respective businesses
as described in the Prospectus and to enter into and perform
their respective obligations under, or as contemplated under,
this Underwriting Agreement. The Company and the Guarantor are
duly qualified as foreign corporations to transact business and
are in good standing in each other jurisdiction in which such
qualification is required, whether by
3
reason of the ownership or leasing of property or the conduct of
business, except where the failures to so qualify or be in good
standing would not in the aggregate result in a Material Adverse
Effect.
(g) GOOD STANDING OF DESIGNATED SUBSIDIARIES. Each
"significant subsidiary" of the Company (as such term is defined
in Rule 1-02 of Regulation S-X promulgated under the 1933 Act),
if any, has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction
of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failures to so qualify or be in good
standing would not in the aggregate result in a Material Adverse
Effect.
(h) CAPITALIZATION. All of the outstanding shares of
capital stock of the Guarantor have been duly authorized and
validly issued, are fully paid and non-assessable, and are wholly
owned by the Company, free and clear of any lien, adverse claim,
security interest, equity or other encumbrance except as
described in the Prospectus and except for such liens, adverse
claims, security interests, equity or other encumbrances that are
immaterial to the Company and its subsidiaries taken as a whole.
(i) AUTHORIZATION OF AGREEMENTS. This Underwriting
Agreement has been duly authorized, executed and delivered by the
Company and the Guarantor.
(j) AUTHORIZATION OF THE SECURITIES. The Securities have
been duly authorized by the Company and the Guarantor, as the
case may be, for issuance and sale pursuant to this Underwriting
Agreement. The Securities, when issued and authenticated in the
manner provided for in the Indenture and delivered against
payment of the consideration therefor specified in this
Underwriting Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company and the Guarantor, as
the case may be, entitled to the benefits of the Indenture,
enforceable against the Company and the Guarantor, as the case
may be, in accordance with their terms, except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (ii)
rights of acceleration, if any, and the availability of equitable
remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding
in equity or at law).
(k) AUTHORIZATION OF THE INDENTURE. The Indenture has been
duly authorized, executed and delivered by the Company and the
Guarantor and, assuming the due authorization, execution and
delivery of the Trustee thereunder, constitutes a valid and
binding agreement of the Company and the Guarantor, enforceable
against the Company and the Guarantor in accordance with its
terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights
generally and (ii) rights of acceleration, if any, and the
availability of equitable remedies may be limited by
4
equitable principles of general applicability (regardless of
whether considered in a proceeding in equity or at law).
(l) DESCRIPTION OF THE SECURITIES AND THE INDENTURE. The
Securities and the Indenture conform in all material respects to
the statements relating thereto contained in the Prospectus.
(m) ABSENCE OF DEFAULTS AND CONFLICTS. The issue and sale
of the Securities and compliance by the Company and the Guarantor
with all of the provisions of the Securities, the Indenture and
this Underwriting Agreement and the consummation of the
transactions contemplated herein and therein do not and will not,
whether with or without the giving of notice or passage of time
or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, any obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the
Company, the Guarantor or any of their respective subsidiaries is
a party or by which it or any of them may be bound, or to which
any of the assets, properties or operations of the Company, the
Guarantor or any of their respective subsidiaries is subject, nor
will such action result in any violation of the provisions of the
charter or by-laws of the Company, the Guarantor or any of their
respective subsidiaries or any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company, the Guarantor or any of their
respective subsidiaries or any of their assets, properties or
operations, except, in any such case, for such conflicts,
breaches or violations as would not individually or in the
aggregate result in a Material Adverse Effect. As used herein, a
"Repayment Event" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company, the Guarantor or any
of their respective subsidiaries.
(n) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any
court or governmental agency or body, domestic or foreign, now
pending, or to the knowledge of the Company or the Guarantor
threatened, against or affecting the Company, the Guarantor or
any of their respective subsidiaries which is required to be
disclosed in the Registration Statement and the Prospectus (other
than as stated therein), or which individually or in the
aggregate would result in a Material Adverse Effect, or which
would materially and adversely affect the consummation of the
transactions contemplated under the Prospectus, this Underwriting
Agreement or the Indenture or the performance by the Company or
the Guarantor of their respective obligations hereunder and
thereunder.
(o) DISCLOSURE. There are no contracts or documents which
are required to be described in the Registration Statement, the
Prospectus or the documents incorporated by reference therein or
to be filed as exhibits thereto which have not been so described
and filed as required.
(p) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority
or agency, domestic or foreign, is necessary or required for the
due authorization, execution and delivery by the Company or the
Guarantor of this Underwriting Agreement or for
5
the performance by the Company or the Guarantor of the
transactions contemplated under the Prospectus, this Underwriting
Agreement or the Indenture, except as set forth herein and except
such as have been already made, obtained or rendered, as
applicable, and as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Securities by the Underwriters and except where the failure to
obtain any such filing, authorization, approval, consent,
license, order, registration, qualification or decree will not
individually or in the aggregate result in a Material Adverse
Effect.
(q) INVESTMENT COMPANY ACT. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated
and the application of the net proceeds therefrom as described in
the Prospectus will not be, an "investment company" within the
meaning of the Investment Company Act of 1940, as amended (the
"1940 Act").
(r) OFFICER'S CERTIFICATES. Any certificate signed by any
officer of the Company, the Guarantor or any of their
subsidiaries delivered to the Representatives or to counsel for
the Underwriters shall be deemed a representation and warranty by
the Company or the Guarantor, as the case may be, to each
Underwriter as to matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) SECURITIES. Subject to the terms and conditions set
forth herein, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at a purchase price of
99.498% of the principal amount thereof, the aggregate principal
amount of the Securities set forth opposite such Underwriter's
name on Schedule I hereto plus any additional principal amount of
the Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) PAYMENT. Payment of the purchase price for, and
delivery of, the Securities shall be made at the offices of the
Company, 1515 Broadway, New York, New York 10036 or at such other
place as shall be agreed upon by the Representatives and the
Company, at 9:00 A.M. (Eastern time) on April 25, 2002, (unless
postponed in accordance with the provisions of Section 10) or
such other time not later than ten business days after such date
as shall be agreed upon by the Representatives and the Company
(such time and date of payment and delivery being herein called
the "Closing Time").
Payment shall be made to the Company by wire transfer of
immediately available funds to a bank account designated by the
Company, against delivery to the Representatives for the
respective accounts of the Underwriters of the Securities to be
purchased by them. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept
delivery of, receipt for, and make payment of the purchase price
for, the Securities which it has severally agreed to purchase.
The Representatives, individually and not as representatives of
the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased
by any Underwriter whose funds have not been received by the
Closing Time, but such payment shall not relieve such Underwriter
from its obligations hereunder. Delivery of the Securities shall
be made through the facilities of the Depository Trust Company
("DTC"), Clearstream Banking Luxembourg, societe anonyme,
("Clearstream
6
Luxembourg") or EuroclearBank S.A./N.V. ("Euroclear") unless the
Representatives shall otherwise instruct.
(c) Restrictions on Resale. Each Underwriter represents
and agrees that (i) it has not offered or sold any Securities to
persons in the United Kingdom and until six months after the
Closing Time, it will not offer or sell any Securities to persons
in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes
of their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the
United Kingdom, within the meaning of the Public Offers of
Securities Regulations 1995, (ii) it has only communicated or
caused to be communicated and will only communicate or cause to
be communicated any invitation or inducement to engage in
investment activity (within the meaning of section 21 of the
Financial Services and Markets Act 2000 (the "FSMA")) received by
it in connection with the issue or sale of any Securities in
circumstances which section 21(1) of the FSMA does not apply to
the Company, and (iii) it has complied with and will comply with
all applicable provisions of the FSMA with respect to anything
done by it in relation to the Securities in, from or otherwise
involving the United Kingdom.
Each Underwriter acknowledges that offers and sales of the
Securities in Germany are subject to the restrictions provided in
the German Securities Prospectus Act (Wertpapier-
Verkaufsprospektgesetz) with respect to Euro-securities (Euro-
Wertpapiere); in particular, the Securities may not be offered in
Germany by way of public promotion.
Each Underwriter represents and agrees that it has not,
directly or indirectly, offered or sold and will not, directly or
indirectly, offer or sell in The Netherlands any Securities other
than to persons who trade or invest in securities in the conduct
of a profession or business (which include banks, stockbrokers,
insurance companies, pension funds, other institutional investors
and finance companies and treasury departments of large
enterprises) or otherwise in compliance with any other applicable
laws or regulations of The Netherlands.
Each Underwriter agrees that it has not directly or
indirectly offered or sold, and it will not directly or
indirectly offer or sell, any Securities in Japan or for the
benefit of any resident of Japan (which term as used in this
paragraph means any person resident in Japan, including any
corporation or other entity organized under the laws of Japan) or
to others for re-offering or re-sale, directly or indirectly, in
Japan or for the benefit of a resident of Japan, except pursuant
to an exemption from the registration requirements of, and in
compliance with, the Securities and Exchange Law of Japan and any
other applicable laws, regulations and guidelines of Japan.
SECTION 3. COVENANTS OF THE COMPANY AND THE GUARANTOR.
The Company and the Guarantor jointly and severally covenant with
each Underwriter, as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION
REQUESTS. The Company and the Guarantor, subject to Section
3(b), will comply with the requirements of Rule 430A of the 1933
Act Regulations, Rule 434 of the 1933 Act Regulations and Rule
462(b) of the 1933 Act Regulations, if and as applicable, and
will notify the Representatives immediately, and confirm the
notice in writing, of (i) the effectiveness of any post-effective
amendment to the Registration Statement or the filing of any
supplement or amendment to the Prospectus, (ii) the
7
receipt of any comments from the Commission, (iii) any request by
the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for additional
information, and (iv) the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of the
Prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceedings for any of such
purposes. The Company and the Guarantor will promptly effect the
filings necessary pursuant to Rule 424 and will take such steps
as it deems necessary to ascertain promptly whether the
Prospectus transmitted for filing under Rule 424 was received for
filing by the Commission and, in the event that it was not, it
will promptly file the Prospectus. The Company and the Guarantor
will make every reasonable effort to prevent the issuance of any
stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. Until the Closing Time, the
Company and the Guarantor will advise the Representatives
promptly of their intention to file or prepare any amendment to
the Registration Statement or any amendment, supplement or
revision to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Representatives with
copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not
file or use any such document to which the Representatives or
counsel for the Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company and
the Guarantor has furnished or, if requested in writing by the
Representatives, will deliver to the Representatives and counsel
for the Underwriters, without charge, signed copies of the
Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be
incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to
the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment
thereto (without exhibits) for each of the Underwriters. The
Registration Statement and each amendment thereto furnished to
the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company and the
Guarantor will furnish to each Underwriter, without charge,
during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus as such Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to any electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company
and the Guarantor will comply with the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations so as
to permit the completion of the distribution of the Securities as
contemplated in this Underwriting Agreement and in the
Registration Statement and the Prospectus. If at any time when
the Prospectus is required by the 1933 Act or the 1934 Act to be
delivered in connection with sales of the Securities, any event
shall occur or condition shall exist as a result
8
of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company or the Guarantor, to amend the
Registration Statement in order that the Registration Statement
will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or to
amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the
statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the
Company and the Guarantor will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such statement or omission or to
make the Registration Statement or the Prospectus comply with
such requirements, and the Company and the Guarantor will furnish
to the Underwriters, without charge, such number of copies of
such amendment or supplement as the Underwriters may reasonably
request.
(f) BLUE SKY QUALIFICATIONS. The Company and the Guarantor
will use their best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale
under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Representatives may
designate and to maintain such qualifications in effect for a
period of not less than one year from the date hereof; provided,
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however, that the Company and the Guarantor shall not be
- -------
obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the
Company and the Guarantor will file such statements and reports
as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one
year from the date hereof.
(g) EARNINGS STATEMENT. The Company and the Guarantor will
timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for
the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(h) DTC, CLEARSTREAM LUXEMBOURG AND EUROCLEAR. The Company
will cooperate with the Representatives and use its reasonable
best efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of DTC,
Clearstream Luxembourg and Euroclear.
(i) USE OF PROCEEDS. The Company and the Guarantor will
use the net proceeds received by it from the sale of the
Securities in the manner specified in the Prospectus under "Use
of Proceeds".
(j) LISTING. The Company and the Guarantor will use their
reasonable best efforts to effect the listing of the Securities
on the Luxembourg Stock Exchange by the Closing Time or as soon
as practicable thereafter.
9
(k) RESTRICTION ON SALE OF SECURITIES. Between the date of
this Underwriting Agreement and the Closing Time, neither the
Company nor the Guarantor will, without the prior written consent
of the Representatives, directly or indirectly, issue, sell,
offer or contract to sell, grant any option for the sale of, any
securities of the Company or the Guarantor substantially similar
to the Securities.
(l) REPORTING REQUIREMENTS. The Company and the Guarantor,
during the period when the Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act
within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. PAYMENT OF EXPENSES.
The Company and the Guarantor will pay all expenses incident
to the performance of its obligations under this Underwriting
Agreement, including (i) the preparation, printing and filing of
the Registration Statement (including financial statements and
any schedules or exhibits and any document incorporated therein
by reference) as originally filed and of each amendment or
supplement thereto, (ii) the preparation, printing and delivery
to the Underwriters of this Underwriting Agreement, any agreement
among Underwriters, the Indenture and such other documents as may
be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation,
issuance and delivery of the Securities and any certificates for
the Securities to the Underwriters, including any transfer taxes
and any stamp or other duties payable upon the sale, issuance or
delivery of the Securities to the Underwriters and any charges of
DTC, Clearstream Luxembourg and Euroclear in connection
therewith, (iv) the fees and disbursements of the Company's
counsel, accountants and other advisors or agents (including
transfer agents and registrars), as well as the fees and
disbursements of the Trustee and its counsel, (v) the
qualification of the Securities under state securities laws in
accordance with the provisions of Section 3(f) hereof, including
filing fees and the reasonable fees and disbursements of counsel
for the Underwriters in connection therewith and in connection
with the preparation, printing and delivery of the Blue Sky
Survey, and any amendment thereto, (vi) the printing and delivery
to the Underwriters of copies of the Prospectus and any
amendments or supplements thereto, (vii) the fees charged by
nationally recognized statistical rating organizations for the
rating of the Securities, (viii) any fees and expenses payable in
connection with the initial and continued listing of the
Securities on any securities exchange, including the Luxembourg
Stock Exchange, and (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters
in connection with, the review, if any, by NASD Regulation, Inc.
(the "NASD") of the terms of the sale of the Securities.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase and pay for the
Securities under this Underwriting Agreement are subject to the
accuracy of the representations and warranties of the Company and
the Guarantor contained in Section 1 hereof or in certificates of
any officer of the Company, the Guarantor or any of their
respective subsidiaries delivered pursuant to the provisions
hereof, to the performance by the Company and the Guarantor of
their respective covenants and other obligations hereunder, and
to the following further conditions:
10
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. No stop order
suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or be pending or threatened by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A
prospectus containing information relating to the description of
the Securities, the specific method of distribution and similar
matters shall have been filed with the Commission in accordance
with Rule 424.
(b) OPINION OF COUNSEL FOR COMPANY AND THE GUARANTOR. At
the Closing Time, the Representatives shall have received the
favorable opinions, dated as of the Closing Time, of Shearman &
Sterling, outside counsel for the Company and the Guarantor, and
the general counsel to the Company and the Guarantor (or, if such
general counsel is not available, an associate or deputy general
counsel to the Company and the Guarantor that practices in the
area of corporate and securities laws) in form and substance
satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other
Underwriters, with respect to such matters as the Underwriters
may reasonably request.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At the Closing
Time, the Representatives shall have received the favorable
opinion, dated as of the Closing Time, of Hughes Hubbard & Reed
LLP, counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other
Underwriters, with respect to such matters as the Underwriters
may reasonably request.
(d) OFFICERS' CERTIFICATE. At the Closing Time, there
shall not have been, since the respective dates as of which
information is given in the Prospectus, any material adverse
change in the financial condition, results of operations or
business affairs of the Company, the Guarantor and their
respective subsidiaries considered as one enterprise, whether or
not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the
President or a Vice President of the Company and the Guarantor
and of the chief financial officer or chief accounting officer of
the Company and the Guarantor, dated as of the Closing Time, to
the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1 are
true and correct with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Company
and the Guarantor have complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or
prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted, are pending
or, to the best of such officer's knowledge, are threatened by
the Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the
execution of this Underwriting Agreement, the Representatives
shall have received from PricewaterhouseCoopers LLP a letter
dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of
such letter for each of the other Underwriters, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to
the financial statements and certain financial information
contained or incorporated by reference in the Registration
Statement and the Prospectus.
11
(f) BRING-DOWN COMFORT LETTER. At the Closing Time, the
Representatives shall have received from PricewaterhouseCoopers
LLP a letter, dated as of the Closing Time, to the effect that
they reaffirm the statements made in the letter furnished
pursuant to subsection (e) of this Section 5, except that the
specified date referred to shall be a date not more than three
business days prior to the Closing Time.
(g) RATINGS. On the date hereof and prior to the Closing
Time, there shall not have occurred any downgrading in the rating
of any debt securities of the Company or the Guarantor by any
"nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the 1933 Act), or any
public announcement that any such organization has under
surveillance or review its rating of any debt securities of the
Company or the Guarantor (other than an announcement with
positive implications of a possible upgrading, and no implication
of a possible downgrading, of such rating).
(h) APPROVAL OF LISTING. At the Closing Time, an
application to have the Securities approved for listing on the
Luxembourg Exchange, shall have been filed by the Company.
(i) NO OBJECTION. If the Registration Statement for the
offering of the Securities has been filed with the NASD for
review, the NASD shall not have raised any objection with respect
to the fairness and reasonableness of the underwriting terms and
arrangements.
(j) ADDITIONAL DOCUMENTS. At the Closing Time, counsel for
the Underwriters shall have been furnished with such documents
and opinions as they may require for the purpose of enabling them
to pass upon the issuance and sale of the Securities as herein
contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the
Company and the Guarantor in connection with the issuance and
sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company and the
Guarantor jointly and severally agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or any
amendment thereto) or the omission or alleged omission
therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue
statement of a material fact included in the Base Prospectus
or the Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation,
or any
12
investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject
to Section 6(d) below) any such settlement is effected with
the written consent of the Company and the Guarantor; and
(iii) against any and all expense as reasonably
incurred (including the fees and disbursements of counsel
chosen by the Representatives), in investigating, preparing
or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense
is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply
- -----------------
to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the
Registration Statement (or any amendment thereto) or the Base
Prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) INDEMNIFICATION OF COMPANY AND THE GUARANTOR, DIRECTORS
AND OFFICERS. Each Underwriter severally agrees to indemnify and
hold harmless the Company and the Guarantor, their directors,
each of their officers who signed the Registration Statement, and
each person, if any, who controls the Company or the Guarantor
within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or
any amendment thereto) or the Base Prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company or
the Guarantor by such Underwriter through the Representatives
expressly for use in the Registration Statement (or any amendment
thereto) or such Base Prospectus or the Prospectus (or any
amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each
indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder,
but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in
any event shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. In
the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the
Representatives, and, in the case of parties indemnified pursuant
to Section 6(b) above, counsel to the indemnified parties shall
be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall
- -----------------
not (except with the consent of the indemnified party) also be
counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than
one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with
any
13
one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise
or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 6 or Section 7
hereof (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) 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) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If
at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees
and expenses of counsel, such indemnifying party agrees that it
shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such
settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
SECTION 7. CONTRIBUTION. If the indemnification
provided for in Section 6 hereof is for any reason unavailable to
or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred
to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in
such proportion as is appropriate to reflect the relative
benefits received by the Company and the Guarantor, on the one
hand, and the Underwriters, on the other hand, from the offering
of the Securities pursuant to this Underwriting Agreement or (ii)
if the allocation provided by 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 Company and the Guarantor, on
the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company and the
Guarantor, on the one hand, and the Underwriters, on the other
hand, in connection with the offering of the Securities under
this Underwriting Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the
offering of such Securities (before deducting expenses) received
by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus.
The relative fault of the Company and the Guarantor, on the
one hand, and the Underwriters, on the other hand, shall be
determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to
information supplied by the Company, the Guarantor
14
or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Guarantor and the Underwriters agree that
it would not be just and equitable if contribution pursuant to
this Section 7 were determined by pro rata allocation (even if
the Underwriters were treated as one entity for such purpose) or
by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above
in this Section 7 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or
any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon
any such untrue or alleged untrue statement or omission or
alleged omission.
Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any
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 1933 Act) shall be entitled to
contribution from any person who was not guilty of such
fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights
to contribution as such Underwriter, and each director of the
Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as the
Company. The Underwriters' respective obligations to contribute
pursuant to this Section 7 are several in proportion to the
aggregate principal amount of Securities set forth opposite their
respective names in Schedule I hereto, and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO
SURVIVE DELIVERY. All representations, warranties and agreements
contained in this Underwriting Agreement or in certificates of
officers of the Company, the Guarantor or any of their respective
subsidiaries submitted pursuant hereto shall remain operative and
in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or
on behalf of the Company, and shall survive delivery of and
payment for the Securities.
SECTION 9. TERMINATION.
(a) UNDERWRITING AGREEMENT. The Representatives may
terminate this Underwriting Agreement, by notice to the Company,
at any time at or prior to the Closing Time, if (i) there has
been, since the time of execution of this Underwriting Agreement
or since the respective dates as of which information is given in
the Prospectus, any material adverse change in the financial
condition, results of operations or business affairs of the
Company and its subsidiaries
15
considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) there has occurred any
material adverse change in the financial markets in the United
States or, if the Securities include securities denominated or
payable in, or indexed to, one or more foreign or composite
currencies, in the international financial markets, or any new
outbreak of hostilities or escalation thereof or other calamity
or crisis or any material change in national or international
political, financial or economic conditions, in each case the
effect of which is such as to make it, in the reasonable judgment
of the Representatives, impracticable to proceed with the
offering, sale or delivery of the Securities, or (iii) trading in
any securities of the Company has been suspended or materially
limited by the Commission or the New York Stock Exchange or the
American Stock Exchange, or if trading generally on the New York
Stock Exchange or the American Stock Exchange has been suspended
or materially limited, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required,
by either of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc.
or any other governmental authority, or (iv) a banking moratorium
has been declared by either Federal or New York authorities or,
if the Securities include securities denominated or payable in,
or indexed to, one or more foreign or composite currencies, by
the relevant authorities in the related foreign country or
countries.
(b) LIABILITIES. If this Underwriting Agreement is
terminated pursuant to this Section 9, such termination shall be
without liability of any party to any other party except as
provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 and this paragraph 9(b) shall survive such
termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS.
If one or more of the Underwriters shall fail at the Closing Time
to purchase the Securities which it or they are obligated to
purchase under this Underwriting Agreement (the "Defaulted
Securities"), then the Representatives shall have the right,
within 24 hours thereafter, to make arrangements for one or more
of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities
in such amounts as may be agreed upon and upon the terms herein
set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as
the case may be, of Defaulted Securities does not exceed 10%
of the aggregate principal amount of Securities set forth on
Schedule I hereto, the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full
amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as
the case may be, of Defaulted Securities exceeds 10% of the
aggregate principal amount of Securities set forth on
Schedule I hereto, the non-defaulting Underwriters shall
have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such
non-defaulting Underwriters do not purchase all the
Securities, this Underwriting Agreement will terminate
without liability to any non-defaulting Underwriter or the
Company.
16
No action taken pursuant to this Section 10 shall relieve
any defaulting Underwriter from liability in respect of its
default.
In the event of any such default which does not result in a
termination of this Underwriting Agreement, either the
Representatives or the Company shall have the right to postpone
the Closing Time for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
SECTION 11. NOTICES. All notices and other
communications hereunder shall be in writing and shall be deemed
to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriters shall be
directed to Banc of America Securities LLC, Bank of America
Corporate Center, 100 North Tryon Street, NC1-007-08-17,
Charlotte, North Carolina 28255, Attention: High Grade Capital
Markets Transaction Management and J.P. Morgan Securities Inc. at
270 Park Avenue, 7th Floor, New York, New York 10017, attention
of Transaction Execution Group, fax: 212-834-6702; and notices to
the Company shall be directed to it at Viacom Inc., 1515
Broadway, New York, New York 10036, attention of General Counsel.
SECTION 12. PARTIES. This Underwriting Agreement shall
inure to the benefit of and be binding upon the Company, the
Representatives and the other Underwriters and their respective
successors. Nothing expressed or mentioned in this Underwriting
Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters and the Company
and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their
heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Underwriting
Agreement or any provision herein contained. This Underwriting
Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties hereto
and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS UNDERWRITING AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF.
SECTION 14. EFFECT OF HEADINGS. The Article and Section
headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
SECTION 15. COUNTERPARTS. This Underwriting Agreement
may be executed in two or more counterparts, each of which shall
be an original, with the same effect as if the signatures thereto
and hereto were on the same instrument.
17
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a
counterpart hereof, whereupon this Underwriting Agreement, along
with all counterparts, will become a binding agreement among each
of the Underwriters, the Company and the Guarantor in accordance
with its terms.
Very truly yours,
VIACOM INC.
By: /s/ MICHAEL D. FRICKLAS
---------------------------
Name: Michael D. Fricklas
Title: Executive Vice President
General Counsel and
Secretary
VIACOM INTERNATIONAL INC.
By: /s/ MICHAEL D. FRICKLAS
---------------------------
Name: Michael D. Fricklas
Title: Executive Vice President
General Counsel and Secretary
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By: /s/ LILY CHANG
----------------
Name: Lily Chang
Title: Principal
J.P. MORGAN SECURITIES INC.
By: /s/ MELANIE SHUGART
------------------------
Name: Melanie Shugart
Title: Managing Director
For themselves and the other several
Underwriters named in Schedule I to the
foregoing Underwriting Agreement.
Underwriter Principal
----------------------------- Amount
--------------
J.P. Morgan Securities Inc. $280,000,000
Banc of America Securities LLC 280,000,000
Fleet Securities, Inc. 46,667,000
Daiwa Securities SMBC Europe Limited 46,667,000
Tokyo-Mitsubishi International plc 46,666,000
--------------
Total $700,000,000
==============
FORM OF NOTE
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company (as defined below) or its
agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or
such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL, since the registered owner
hereof, Cede & Co., has an interest herein.
This Security is a global Security within the meaning of the
Indenture (as defined below) and is registered in the name of the
Depositary or a nominee of the Depositary. This Security is
exchangeable for Securities registered in the name of a person
other than the Depositary or its nominee only in the limited
circumstances described in the Indenture. Unless and until this
certificate is exchanged in whole or in part for Securities in
definitive registered form in accordance with the provisions of
the Indenture applicable to such exchange, this certificate may
not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a
nominee of such successor Depositary.
VIACOM INC.
5.625% Senior Notes due 2007
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
$700,000,000
CUSIP: 925524AS9
Viacom Inc., a Delaware corporation (herein called the
"Company", which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the
principal sum of $700,000,000 on May 1, 2007 at the office or
agency of the Company referred to below, and to pay interest
thereon on November 1, 2002 and semi-annually in arrears
thereafter, on May 1 and November 1 of each year (each, an
"Interest Payment Date"), from April 25, 2002, or from the most
recent Interest Payment Date to which interest has been paid or
duly provided for, at the rate of 5.625% per annum, until the
principal hereof is paid or duly provided for.
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid, in immediately available funds, to the
Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the April 15 and
October 15, as the case may be, preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided
for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and such Defaulted Interest, may be paid to
the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on
a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to
Holders of Securities not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful
manner, all as more fully provided in said Indenture.
Payment of the principal of and interest on this
Security will be made at the Corporate Trust Office of the
Trustee or such other office or agency of the Company as may be
designated for such purpose, in such coin or currency of the
United States of America as at the time of payment is legal
tender for payment of public and private debts; provided however,
that each installment of interest and principal on this Security
may at the Company's option be paid by check to the payee or in
immediately available funds by transfer to an account maintained
by the payee located in the United States.
Any payment of principal or interest required to be
made on a day that is not a Business Day need not be made on such
day, but may be made on the next succeeding Business Day and no
interest shall accrue as a result of such delayed payment. For
purposes of this Security, "Business Day" means any day that is
not a Saturday or Sunday and that, in The City of New York, is
not a day on which banking institutions are generally authorized
or obligated by law or executive order to close.
GENERAL. This Security is one of a duly authorized
issue of securities of the Company (herein called the
"Securities"), unlimited in aggregate principal amount, issued and
to be issued in one or more series under an indenture dated as of
June 22, 2001 among the Company, Viacom International Inc., as
guarantor (the "Guarantor") and The Bank of New York, as trustee
(herein called the "Trustee", which term includes any successor
trustee under the Indenture) (the "Indenture"), to which Indenture
and the respective resolutions of the Company's board of directors
or resolutions pursuant to the authority of the board of
directors, an Officer's Certificate and/or indentures supplemental
thereto, as the case may be, reference is hereby made for a
statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee
and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This
Security is one of a series designated as 5.625% Senior Notes due
2007, initially limited in aggregate principal amount to
$700,000,000. This Security is a global Security representing
$700,000,000 of the Securities.
AUTHORIZED DENOMINATIONS. The Securities of this series
are issuable only in registered form without coupons in
denominations of not less than $1,000 and any integral multiple
thereof.
BOOK-ENTRY SECURITY. This Security is a "book-entry"
Security and is being registered in the name of Cede & Co., as
nominee of The Depository Trust Company ("DTC"). Subject to the
terms of the Indenture, this Security will be held by DTC or its
nominee, and beneficial interests will be held by beneficial
owners through the book-entry facilities of DTC or its nominee in
denominations of not less than $1,000 and integral multiples
thereof. As long as this Security is registered in the name of
DTC or its nominee, the Trustee will make payments of principal of
and interest on this Security by wire transfer of immediately
available funds to DTC or its nominee. Notwithstanding the above,
upon the maturity of this Security, the principal, together with
accrued interest thereon, will be paid in immediately available
funds upon surrender of this Security at the Corporate Trust
Office of the Trustee or such other offices or agencies appointed
by the Trustee for that purpose or such other locations provided
in the Indenture.
EVENT OF DEFAULT. If an Event of Default with respect
to Securities of this series shall occur and be continuing, the
principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the
Indenture.
SINKING FUND. The Securities of this series are not
subject to any sinking fund.
DEFEASANCE AND COVENANT DEFEASANCE. The Indenture
contains provisions for defeasance at any time of (a) the entire
indebtedness of the Company on this Security and (b) certain
restrictive covenants and the related Defaults and Events of
Default, upon compliance by the Company with certain conditions
set forth therein, which provisions apply to this Security.
MODIFICATION AND WAIVERS; OBLIGATIONS OF THE COMPANY
ABSOLUTE. The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series. Such amendment may be
effected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of not
less than a majority in aggregate principal amount of the
Outstanding Securities of each series affected thereby. The
Indenture also contains provisions permitting the Holders of not
less than specified percentages in aggregate principal amount of
the Outstanding Securities of each series, on behalf of the
Holders of all the Securities of such series, to waive compliance
by the Company and the Guarantor with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver shall be conclusive and
binding upon the Holders of this Security and upon all future
Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu
hereof whether or not notation of such consent or waiver is made
upon this Security.
As set forth in, and subject to, the provisions of the
Indenture, no Holder of any Security of this series will have any
right to institute any proceeding with respect to the Indenture
or for any remedy thereunder, unless such Holder shall have
previously given to the Trustee written notice of a continuing
Event of Default with respect to this series, the Holders of not
less than 25% in principal amount of the Outstanding Securities
of this series shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding
as trustee, and the Trustee shall not have received from the
Holders of a majority in principal amount of the Outstanding
Securities of this series a direction inconsistent with such
request and shall have failed to institute such proceeding within
60 days; provided, however, that such limitations do not apply to
a suit instituted by the Holder hereof for the enforcement of
payment of the principal of or interest on this Security on or
after the respective due dates expressed herein.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and interest on this Security at the
times, place, and rate, and in the coin or currency, herein
prescribed.
REGISTRATION OF TRANSFER OR EXCHANGE. As provided in
the Indenture and subject to certain limitations therein set
forth, the transfer of this Security will be registered on the
Security Register of the Company upon surrender of this Security
for registration of transfer at the office or agency of the
Company maintained for such purpose in New York, New York or at
such other office or agency as the Company may designate, duly
endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities
of this series of authorized denominations and for the same
aggregate principal amount, will be issued to the designated
transferee or transferees.
As provided in the Indenture and subject to certain
limitations therein set forth, the Securities of this series are
exchangeable for a like aggregate principal amount of Securities
of this series and of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to the time of due presentment of this Security
for registration of transfer, the Company, the Guarantor, the
Trustee and any agent of the Company, the Guarantor or the
Trustee may treat the Person in whose name this Security is
registered as the absolute owner hereof for all purposes, whether
or not this Security be overdue, and none of the Company, the
Guarantor, the Trustee or any agent of the Company, the Guarantor
or the Trustee shall be affected by notice to the contrary.
This Security is a global Security. If at any time, a
Depositary is at any time unwilling or unable to continue as
Depositary and a successor Depositary is not appointed by the
Company within 90 days, then the Company will execute and the
Trustee will authenticate and deliver Securities in definitive
registered form, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of this Security
in exchange for this Security. Such Securities in definitive
registered form shall be registered in such names and issued in
such authorized denominations as the Depositary, pursuant to
instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee. The Trustee shall deliver
such Securities to the Persons in whose names such Securities are
so registered.
DEFINED TERMS. All terms used in this Security that
are defined in the Indenture and are not otherwise defined herein
shall have the meanings assigned to them in the Indenture.
GOVERNING LAW. This Security shall be governed by, and
construed in accordance with, the laws of the State of New York.
Unless the certificate of authentication hereon has
been duly executed by or on behalf of The Bank of New York, as
Trustee under the Indenture, or its successor thereunder, by the
manual signature of one of its authorized officers, this Security
shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed.
Dated: April 25, 2002 VIACOM INC.,
as Issuer
By:
--------------------------
Attest:
- ----------------------------
Authorized Signature
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------
Authorized Signatory
Dated: April 25, 2002
GUARANTEE OF VIACOM INTERNATIONAL INC.
FOR VALUE RECEIVED, VIACOM INTERNATIONAL INC., a
corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Guarantor", which term
includes any successor corporation under the Indenture referred
to in the Security upon which this Guarantee is endorsed), hereby
fully and unconditionally guarantees to the holder of the
Security upon which this Guarantee is endorsed the due and
punctual payment of the principal of and interest (including, in
case of default, interest on principal and, to the extent
permitted by applicable law, on overdue interest), if any, on
this Security, when and as the same shall become due and payable,
whether at Stated Maturity, upon redemption, upon declaration of
acceleration or otherwise, according to the terms thereof and of
the Indenture referred to therein. In case of the failure of
Viacom Inc. or any successor thereto (herein called the
"Company") punctually to pay any such principal or interest, the
Guarantor hereby agrees to cause any such payment to be made
punctually when and as the same shall become due and payable,
whether at Stated Maturity, upon redemption, upon declaration of
acceleration or otherwise, as if such payment were made by the
Company.
The Guarantor hereby agrees that its obligations
hereunder shall be as if it were principal debtor and not merely
surety, and shall be absolute and unconditional, irrespective of
the identity of the Company, the validity, regularity or
enforceability of this Security or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the
Holder of this Security with respect to any provisions thereof,
the recovery of any judgment against the Company or any action to
enforce the same, or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest, notice and all
demands whatsoever and covenants that this Guarantee will not be
discharged except by complete performance of the obligations
contained in this Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the
Holder of this Security against the Company in respect of any
amounts paid by the Guarantor pursuant to the provisions of this
Guarantee or the Indenture referred to in this Security;
provided, however, that the Guarantor shall not be entitled to
enforce or to receive any payment arising out of, or based upon,
such right of subrogation until the principal of and interest on
all Securities of the series of which the Security upon which
this Guarantee is endorsed constitutes a part shall have been
indefeasibly paid in full.
The Indenture provides that in the event that this
Guarantee would constitute or result in a fraudulent transfer or
conveyance for purposes of, or result in a violation of, any
United States federal, or applicable United States state,
fraudulent transfer or conveyance or similar law, then the
liability of the Guarantor hereunder shall be reduced to the
extent necessary to eliminate such fraudulent transfer or
conveyance or violation under the applicable fraudulent transfer
or conveyance or similar law.
If the Trustee or the Holder of the Security upon which
this Guarantee is endorsed is required by any court or otherwise
to return to the Company or the Guarantor, or any custodian,
receiver, liquidator, assignee, trustee, sequestrator or other
similar official acting in relation to the Company or the
Guarantor, any amount paid to the Trustee or such Holder in
respect of the Security upon which this Guarantee is endorsed,
this Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect. The Guarantor further
agrees, to the fullest extent that it may lawfully do so, that,
as between the Guarantor, on the one hand, and the Holders and
the Trustee, on the other hand, the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article Five
of the Indenture for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition extant
under any applicable bankruptcy law preventing such acceleration
in respect of the obligations guaranteed hereby.
All terms used in this Guarantee that are defined in
the Indenture and are not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
This Guarantee shall be governed by, and construed in
accordance with, the laws of the State of New York.
Subject to the next following paragraph, the Guarantor
hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened
precedent to the creation and issuance of this Guarantee and to
constitute the same valid obligation of the Guarantor have been
done and performed and have happened in due compliance with all
applicable laws.
This Guarantee shall not be valid or become obligatory
for any purpose until the certificate of authentication on the
Security upon which this Guarantee is endorsed has been signed by
the Trustee under the Indenture referred to in this Security.
IN WITNESS WHEREOF, the Guarantor has caused this instrument
to be duly executed.
Dated: April 25, 2002 VIACOM INTERNATIONAL INC.,
as Guarantor
By:
--------------------------
Attest:
- -------------------------------
Authorized Signature