S&S DRAFT
01/11/01
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934 (Amendment No. 3)
Infinity Broadcasting Corporation
---------------------------------
(Name of Issuer)
Class A Common Stock, Par Value $.01 per share
----------------------------------------------
(Title of Class of Securities)
456-62S-10-2
(CUSIP Number)
Sumner M. Redstone
National Amusements, Inc.
200 Elm Street
Dedham, Massachusetts 02026
Telephone: (781) 461-1600
with a copy to:
Michael D. Fricklas, Esq.
Viacom Inc.
1515 Broadway
New York, New York 10036
Telephone: (212) 258-6000
(Name, Address and Telephone Number
of Person Authorized to Receive Notices and Communications)
January 4, 2001
---------------
(Date of Event which requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of ss. 240.13d-1(e), ss. 240.13d-1(f) or ss. 240.13d-1(g),
check the following box. [__]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 456-62S-10-2 Page 2 of 20 Pages
SCHEDULE 13D/A
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
SUMNER M. REDSTONE
S.S. NO.
- --------------------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group:
(a) [__]
(b) [__]
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds (See Instructions): OO(1)
- --------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e): [__]
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization: United States
- --------------------------------------------------------------------------------
NUMBER OF 7 Sole Voting Power: 0
SHARES -------------------------------------------------
BENEFICIALLY 8 Shared Voting Power: 777,088,654(2)
OWNED BY -------------------------------------------------
EACH 9 Sole Dispositive Power: 0
REPORTING -------------------------------------------------
PERSON 10 Shared Dispositive Power: 700,000,000
WITH
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person:
777,088,654(2)
- --------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions): [__]
- --------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11):
71.3%(3)
- --------------------------------------------------------------------------------
14 Type of Reporting Person (See Instructions): IN
- --------------------------------------------------------------------------------
- -----------------------
1 Pursuant to the Merger (as defined in Item 4), subject to the conditions
specified in the Merger Agreement (as defined in Item 4), Viacom Inc. will
acquire all of the outstanding Class A Shares (as defined in Item 1), in
exchange for shares of Class B Common Stock, par value $.01 per share, of
Viacom Inc.
2 Includes 700,000,000 Class B Shares (as defined in Item 1) beneficially
owned by the Reporting Persons and 77,088,654 Class A Shares which may be
deemed to be beneficially owned by the Reporting Persons as a result of the
Voting Agreement (as defined in Item 4).
3 64.2% is attributable to the 700,000,000 Class B Shares beneficially owned
by the Reporting Persons and 7.1% is attributable to the 77,088,654 Class A
Shares which may be deemed to be beneficially owned by the Reporting
Persons as a result of the Voting Agreement. As the Class B Shares carry
five votes per share, the Reporting Persons effectively have 90.0% of the
voting power with respect to matters other than those governed by the
Voting Agreement.
CUSIP No. 456-62S-10-2 Page 3 of 20 Pages
SCHEDULE 13D/A
- --------------------------------------------------------------------------------
1 Name of Reporting Person
S.S. or I.R.S. Identification No. of Above Person
CBS Broadcasting Inc.
I.R.S. No. 13-0590730
- --------------------------------------------------------------------------------
2 Check the Appropriate Box if a Member of a Group:
(a) [__]
(b) [__]
- --------------------------------------------------------------------------------
3 SEC Use Only
- --------------------------------------------------------------------------------
4 Source of Funds (See Instructions): OO(1)
- --------------------------------------------------------------------------------
5 Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e): [__]
- --------------------------------------------------------------------------------
6 Citizenship or Place of Organization: New York
- --------------------------------------------------------------------------------
NUMBER OF 7 Sole Voting Power: 0
SHARES -------------------------------------------------
BENEFICIALLY 8 Shared Voting Power: 777,088,654(2)
OWNED BY -------------------------------------------------
EACH 9 Sole Dispositive Power: 0
REPORTING -------------------------------------------------
PERSON 10 Shared Dispositive Power: 700,000,000
WITH
- --------------------------------------------------------------------------------
11 Aggregate Amount Beneficially Owned by Each Reporting Person:
777,088,654(2)
- --------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions): [__]
- --------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11):
71.3%(3)
- --------------------------------------------------------------------------------
14 Type of Reporting Person (See Instructions): CO
- --------------------------------------------------------------------------------
- -----------------------
1 Pursuant to the Merger (as defined in Item 4), subject to the conditions
specified in the Merger Agreement (as defined in Item 4), Viacom Inc. will
acquire all of the outstanding Class A Shares (as defined in Item 1), in
exchange for shares of Class B Common Stock, par value $.01 per share, of
Viacom Inc.
2 Includes 700,000,000 Class B Shares (as defined in Item 1) beneficially
owned by the Reporting Persons and 77,088,654 Class A Shares which may be
deemed to be beneficially owned by the Reporting Persons as a result of the
Voting Agreement (as defined in Item 4).
3 64.2% is attributable to the 700,000,000 Class B Shares beneficially owned
by the Reporting Persons and 7.1% is attributable to the 77,088,654 Class A
Shares which may be deemed to be beneficially owned by the Reporting
Persons as a result of the Voting Agreement. As the Class B Shares carry
five votes per share, the Reporting Persons effectively have 90.0% of the
voting power with respect to matters other than those governed by the
Voting Agreement.
Page 4 of 20 Pages
This Amendment No. 3 (this "Amendment") amends the Statement
on Schedule 13D filed with the Securities and Exchange Commission on May 15,
2000, as amended by Amendment No. 1 and Amendment No. 2 thereto (as so amended,
the "Schedule 13D"), by Mr. Sumner M. Redstone, National Amusements, Inc.
("NAI"), NAIRI, Inc. ("NAIRI"), Viacom Inc. ("Viacom"), Westinghouse CBS Holding
Company, Inc. ("W/CBS HCI") and CBS Broadcasting Inc. ("CBSBI") (collectively,
the "Reporting Persons"). This Amendment is filed with respect to the Class A
Common Stock, $.01 par value per share (the "Class A Shares"), of Infinity
Broadcasting Corporation, a Delaware corporation (the "Issuer"). Capitalized
terms used in this Amendment and not otherwise defined herein have the meanings
ascribed to such terms in the Schedule 13D.
Item 1. Security and Issuer
Item 1 is hereby amended and restated in its entirety to read
as follows:
"The class of equity securities to which this Statement on
Schedule 13D relates is the Class A Common Stock, par value $.01 per share (the
"Class A Shares"), of Infinity Broadcasting Corporation (the "Issuer"), a
Delaware corporation, with its principal executive office located at 40 West
57th Street, New York, NY 10019, by virtue of (1) the Reporting Persons' (as
defined in Item 2) ownership of the Issuer's Class B Common Stock, par value
$.01 per share (the "Class B Shares"; together with the Class A Shares, the
"Common Shares"), which are convertible into Class A Shares on a one-for-one
basis under certain circumstances, and (2) the Voting Agreement (as defined in
Item 4), pursuant to which the Reporting Persons may be deemed to be the
beneficial owners of the Class A Shares subject to such agreement. The Class A
Shares carry one vote per share and the Class B Shares carry five votes per
share."
Item 2. Identity and Background
Item 2 is hereby amended and restated in its entirety to read
as follows:
"This Statement is filed by Mr. Sumner M. Redstone, National
Amusements, Inc. ("NAI"), NAIRI, Inc. ("NAIRI"), Viacom Inc. ("Viacom"),
Westinghouse CBS Holding Company, Inc. ("W/CBS HCI") and CBS Broadcasting Inc.
("CBSBI") (collectively, the "Reporting Persons").
CBSBI, a New York corporation, has its principal executive
offices at 51 West 52nd Street, New York, New York 10019. CBSBI's principal
business is the CBS television network, radio and television broadcasting, and
outdoor advertising. 100% of the issued and outstanding stock of CBSBI is owned
by W/CBS HCI.
W/CBS HCI, a Delaware corporation, has its principal office at
51 West 52nd Street, New York, New York 10019. W/CBS HCI's principal business is
cable television transmission and production services. 100% of the issued and
outstanding stock of W/CBS HCI is owned by Viacom.
Viacom, a Delaware corporation, has its principal executive
offices at 1515 Broadway, New York, New York 10036 and is a diversified
entertainment and communications company. At December 29, 2000, approximately
68.1% of Viacom's voting Class A Common
Page 5 of 20 Pages
Stock, par value $.01 per share, and approximately 13.2% (on a combined basis)
of Viacom's Class A Common Stock and non-voting Class B Common Stock, par value
$.01 per share, was owned by NAIRI.
NAIRI, a Delaware corporation, has its principal office at 200
Elm Street, Dedham, Massachusetts 02026 and is a company owning and operating
movie theaters in the United States whose main asset is its shares of Viacom
Class A Common Stock and Class B Common Stock.
NAI, a Maryland corporation, has its principal office at 200
Elm Street, Dedham, Massachusetts 02026. NAI's principal businesses are owning
and operating movie theaters in the United States, the United Kingdom and South
America and holding the common stock of NAIRI. 66-2/3% of the issued and
outstanding shares of capital stock of NAI are beneficially owned by Mr. Sumner
M. Redstone, as trustee of a trust owning such shares.
Sumner M. Redstone is an individual whose business address is
c/o National Amusements, Inc., 200 Elm Street, Dedham, Massachusetts 02026. Mr.
Redstone's principal occupation is Chairman of the Board and Chief Executive
Officer of NAI, Chairman and President of NAIRI, and Chairman of the Board and
Chief Executive Officer of Viacom Inc. Mr. Redstone is also a director of the
Issuer.
The executive officers and directors of CBSBI, W/CBS HCI,
Viacom, NAIRI and NAI are set forth on Schedules I through V attached hereto,
containing the following information with respect to each such person:
(a) Name;
(b) Residence or business address; and
(c) Present principal occupation or employment and the name,
principal business and address of any corporation or
other organization in which such employment is
conducted.
During the last five years, neither of the Reporting Persons
nor any person named in any of Schedules I through V attached hereto has been
(a) convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (b) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws.
Except for Jan Leschly, who is a Danish citizen, all of the
directors of CBSBI, W/CBS HCI, Viacom, NAIRI and NAI, including Mr. Sumner M.
Redstone, are citizens of the United States."
Item 4. Purpose of Transaction
Item 4 is hereby amended and restated in its entirety to read
as follows:
Page 6 of 20 Pages
"The Issuer's Class B Shares were acquired by the Reporting
Persons, other than CBSBI and W/CBS HCI which previously owned the subject
shares, pursuant to the merger of CBS, of which CBSBI and W/CBS HCI were,
respectively, indirect and direct wholly owned subsidiaries, with and into
Viacom on May 4, 2000. The Reporting Persons may, at any time and from time to
time, purchase additional Common Shares of the Issuer and may dispose of any and
all Common Shares of the Issuer held by them.
On October 30, 2000, Viacom, IBC Merger Corp., a Delaware
corporation and a direct wholly owned subsidiary of Viacom ("Merger Sub"), and
the Issuer entered into a definitive agreement and plan of merger (the "Merger
Agreement") pursuant to which the Issuer will merge with and into Merger Sub
(the "Merger") and Viacom will acquire all the issued and outstanding Class A
Shares not currently owned by Viacom. In the Merger, each outstanding Class A
Share will be converted into the right to receive 0.592 of a share of Viacom
Class B Common Stock, par value $.01 per share.
On January 5, 2001, Viacom and the Issuer announced that
Infinity would hold a meeting of its stockholders to seek approval of the Merger
by the Issuer's minority stockholders, and that Viacom had entered into a voting
agreement dated as of January 4, 2001 (the "Voting Agreement") with two
stockholders of the Issuer, William S. Levine and Arturo Moreno. Pursuant to the
Voting Agreement, Messrs. Levine and Moreno have agreed to vote their Class A
Shares in favor of the Merger Agreement, the Merger and any actions required in
furtherance thereof. At its stockholders meeting, Infinity will seek approval of
the Merger by holders of 66 2/3% of the outstanding Common Shares, other than
those owned by Viacom or subject to the Voting Agreement.
Viacom anticipates that upon completion of the Merger, Viacom
will seek to cause the Class A Shares to be delisted from trading on the New
York Stock Exchange and to cause the termination of registration of the Class A
Shares pursuant to Section 12 of the Securities and Exchange Act of 1934, as
amended (the "Act").
A copy of the Merger Agreement is attached hereto as Exhibit
99.1 and is incorporated by reference herein. A copy of the press release issued
by Viacom and the Issuer on October 31, 2000 is attached hereto as Exhibit 99.2.
A copy of the Voting Agreement is attached hereto as Exhibit 99.3 and is
incorporated by reference herein. A copy of the press release issued by Viacom
and the Issuer on January 5, 2001 is attached hereto as Exhibit 99.4.
Other than as set forth herein, the Reporting Persons have no
current plan or proposal which relates to, or would result in, any of the
actions enumerated in subparagraphs (a) through (j) of Item 4 of Schedule 13D."
Item 5. Interest in Securities of the Issuer
Item 5 of the Schedule 13D is hereby amended and restated in
its entirety to read as follows:
"(a) and (b) CBSBI is the owner, with shared dispositive and
voting power, of 700,000,000 Class B Shares, or approximately 64.2% of the
Issuer's issued and outstanding Common Shares and 90.0% of the voting power
(based on the number of Common Shares that were reported by the Issuer to be
issued and outstanding as of September 30, 2000).
Page 7 of 20 Pages
W/CBS HCI is currently the beneficial owner, with shared
dispositive and voting power of 700,000,000 Class B Shares, or approximately
64.2% of the Issuer's issued and outstanding Common Shares and 90.0% of the
voting power (based on the number of Common Shares that were reported by the
Issuer to be issued and outstanding as of September 30, 2000).
Viacom is currently the beneficial owner, with shared
dispositive and voting power, of 700,000,000 Class B Shares, or approximately
64.2% of the Issuer's issued and outstanding Common Shares and 90.0% of the
voting power (based on the number of Common Shares that were reported by the
Issuer to be issued and outstanding as of September 30, 2000).
NAIRI is currently the beneficial owner, with shared
dispositive and voting power, of 700,000,000 Class B Shares, or approximately
64.2% of the Issuer's issued and outstanding Common Shares and 90.0% of the
voting power (based on the number of Common Shares that were reported by the
Issuer to be issued and outstanding as of September 30, 2000).
NAI is currently the beneficial owner, with shared dispositive
and voting power, of 700,000,000 Class B Shares, or approximately 64.2% of the
Issuer's issued and outstanding Common Shares and 90.0% of the voting power
(based on the number of Common Shares that were reported by the Issuer to be
issued and outstanding as of September 30, 2000).
As a result of his stock ownership in NAI, Mr. Sumner M.
Redstone is deemed the beneficial owner of 700,000,000 Class B Shares of the
Issuer, or approximately 64.2% of the Issuer's issued and outstanding Common
Shares and 90.0% of the voting power (based on the number of Common Shares that
were reported by the Issuer to be issued and outstanding as of September 30,
2000).
In addition to the foregoing, as a result of the Voting
Agreement, each of the Reporting Persons may be deemed the beneficial owner of
up to 77,088,654 Class A Shares of the Issuer, or approximately 7.1% of the
Issuer's issued and outstanding Common Shares and 2.0% of the voting power
(based on the number of Common Shares that were reported by the Issuer to be
issued and outstanding as of September 30, 2000).
Mel Karmazin, Chairman, President and Chief Executive Officer
of the Issuer and President and Chief Operating Officer of Viacom, beneficially
owns, and has sole voting and dispositive power over, 389,100 shares (less than
1%) of the Issuer's Class A Shares, including 338,888 shares underlying stock
options exercisable within 60 days of January 4, 2001.
Fredric G. Reynolds, Executive Vice President and Chief
Financial Officer of Viacom, beneficially owns 48,506 shares (less than 1%) of
the Issuer's Class A Shares, including (i) 45,000 shares held by The Reynolds
LAJADESH Foundation, of which Mr. Reynolds is co-trustee with his wife, over
which Mr. Reynolds and his wife share voting and dispositive power, but have no
pecuniary interest, and (ii) 3,506 shares over which Mr. Reynolds has sole
voting and dispositive power.
Leslie Moonves, President and Chief Executive Officer of CBS
Television, beneficially owns, and has sole voting and dispositive power over,
30,000 shares (less than 1%) of the Issuer's Class A Shares.
Page 8 of 20 Pages
Martin D. Franks, Senior Vice President of Viacom Inc. and
Executive Vice President of CBS Television, beneficially owns, and has sole
voting and dispositive power over, 14,500 shares (less than 1%) of the Issuer's
Class A Shares.
Robert G. Freedline, Vice President, Treasurer of Viacom Inc.,
beneficially owns, and has shared voting and dispositive power with his wife
over, 1,000 shares (less than 1%) of the Issuer's Class A Shares.
George H. Conrades, a Director of Viacom and the Issuer,
beneficially owns, and has sole voting and dispositive power over, 23,537 shares
(less than 1%) of the Issuer's Class A Shares, including 3,537 shares underlying
stock options exercisable within 60 days of January 4, 2001.
William H. Gray III, a Director of Viacom, beneficially owns,
and has sole voting and dispositive power over, 1,000 shares (less than 1%) of
the Issuer's Class A Shares.
Jan Leschly, a Director of Viacom, beneficially owns, and has
sole voting and dispositive power over, 15,000 shares (less than 1%) of the
Issuer's Class A Shares.
David T. McLaughlin, a Director of Viacom and the Issuer,
beneficially owns, and has sole voting and dispositive power over, 1,835 shares
(less than 1%) of the Issuer's Class A Shares, including 385 shares underlying
stock options exercisable within 60 days of January 4, 2001.
Robert Walter, a Director of Viacom and the Issuer,
beneficially owns, and has sole voting and dispositive power over, 23,537 shares
(less than 1%) of the Issuer's Class A Shares, including 3,357 shares underlying
stock options exercisable within 60 days of January 4, 2001.
(c) On December 27, 2000, Fredric Reynolds gifted 45,000
shares of directly held Class A Shares to The Reynolds LAJADESH Foundation. The
closing price for the Issuer's Class A Shares on December 27, 2000 was $27.25
per share.
(d) None.
(e) N/A"
Item 7. Material to be filed as Exhibits
99.3 Voting Agreement between Viacom Inc. and the individuals set
forth on Schedule I thereto, dated as of January 4, 2001.
99.4 Press Release issued by Viacom Inc. and Infinity Broadcasting
Corporation on January 5, 2001.
Page 9 of 20 Pages
SIGNATURES
After reasonable inquiry and to the best of our knowledge and
belief, we certify that the information set forth in this statement is true,
complete and correct. Pursuant to Rule 13d-1(k)(1), each of the undersigned
agrees that this statement is filed on behalf of each of us.
Dated: January 12, 2001
/s/ Sumner M. Redstone
----------------------------
Sumner M. Redstone,
Individually
National Amusements, Inc.
By: /s/ Sumner M. Redstone
----------------------------
Name: Sumner M. Redstone
Title: Chairman and Chief
Executive Officer
NAIRI, Inc.
By: /s/ Sumner M. Redstone
----------------------------
Name: Sumner M. Redstone
Title: Chairman and President
Viacom Inc.
By: /s/ Michael D. Fricklas
----------------------------
Name: Michael D. Fricklas
Title: Executive Vice President,
General Counsel and
Secretary
Westinghouse/CBS Holding
Company, Inc.
By: /s/ Angeline C. Straka
----------------------------
Name: Angeline C. Straka
Title: Vice President and Secretary
CBS Broadcasting Inc.
By: /s/ Angeline C. Straka
----------------------------
Name: Angeline C. Straka
Title: Vice President and Secretary
Page 10 of 20 Pages
Exhibit Index
- -------------
Exhibit No. Description
- ----------- -----------
99.3 Voting Agreement between Viacom Inc. and the individuals set
forth on Schedule I thereto, dated as of January 4, 2001.
99.4 Press Release issued by Viacom Inc. and Infinity Broadcasting
Corporation on January 5, 2001.
Page 11 of 20 Pages
SCHEDULE I
CBS BROADCASTING INC.
----------------------------------------------------------------------
EXECUTIVE OFFICERS
----------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Name Business or Principal Occupation or Name and Address of
Residence Address Employment Corporation or Other
Organization in which
Employed
- ----------------------------------------------------------------------------------------------------------------------
Mel Karmazin Viacom Inc. President and Chief Viacom Inc.
1515 Broadway Operating Officer of 1515 Broadway
New York, NY 10036 Viacom Inc.; Chairman, New York, NY 10036
President and Chief
Executive Officer of Infinity Broadcasting
Infinity Broadcasting Corporation
Corporation 40 West 57th Street New
York, NY 10019
- ----------------------------------------------------------------------------------------------------------------------
Louis J. Briskman* CBS Broadcasting Inc. Executive Vice President CBS Broadcasting Inc.
51 W. 52nd Street and General Counsel of CBS 51 W. 52nd Street
New York, NY 10019 Television New York, NY 10019
- ----------------------------------------------------------------------------------------------------------------------
Leslie Moonves CBS Television President and Chief CBS Television
7800 Beverly Blvd. Executive Officer of CBS 7800 Beverly Blvd.
Suite 343 Television Los Angeles, CA 90036
Los Angeles, CA 90036
- ----------------------------------------------------------------------------------------------------------------------
Fredric G. Reynolds* Viacom Inc. Executive Vice President Viacom Inc.
1515 Broadway and Chief Financial 1515 Broadway
New York, NY 10036 Officer of Viacom Inc. New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
Michael D. Fricklas* Viacom Inc. Executive Vice President, Viacom Inc.
1515 Broadway General Counsel and 1515 Broadway
New York, NY 10036 Secretary of Viacom Inc. New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
*Also a Director
Page 12 of 20 Pages
SCHEDULE II
WESTINGHOUSE CBS HOLDING COMPANY, INC.
----------------------------------------------------------------------
EXECUTIVE OFFICERS
----------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Name Business or Residence Principal Occupation or Name and Address of
Address Employment Corporation or Other
Organization in which
Employed
- ----------------------------------------------------------------------------------------------------------------------
Mel Karmazin Viacom Inc. President and Chief Viacom Inc.
1515 Broadway Operating Officer of 1515 Broadway
New York, NY 10036 Viacom Inc.; Chairman, New York, NY 10036
President and Chief
Executive Officer of Infinity Broadcasting
Infinity Broadcasting Corporation
Corporation 40 West 57th Street
New York, NY 10019
- ----------------------------------------------------------------------------------------------------------------------
Louis J. Briskman* CBS Broadcasting Inc. Executive Vice President CBS Broadcasting Inc.
51 W. 52nd Street and General Counsel of CBS 51 W. 52nd Street
New York, NY 10019 Television New York, NY 10019
- ----------------------------------------------------------------------------------------------------------------------
Leslie Moonves CBS Television President and Chief CBS Television
7800 Beverly Blvd. Executive Officer of CBS 7800 Beverly Blvd.
Suite 343 Television Los Angeles, CA 90036
Los Angeles, CA 90036
- ----------------------------------------------------------------------------------------------------------------------
Fredric G. Reynolds* Viacom Inc. Executive Vice President Viacom Inc.
1515 Broadway and Chief Financial 1515 Broadway
New York, NY 10036 Officer of Viacom Inc. New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
Michael D. Fricklas* Viacom Inc. Executive Vice President, Viacom Inc.
1515 Broadway General Counsel and 1515 Broadway
New York, NY 10036 Secretary of Viacom Inc. New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
*Also a Director
Page 13 of 20 Pages
SCHEDULE III
VIACOM INC.
----------------------------------------------------------------------
EXECUTIVE OFFICERS
----------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Name Business or Residence Principal Occupation or Name and Address of
Address Employment Corporation or Other
Organization in Which
Employed
- ----------------------------------------------------------------------------------------------------------------------
Sumner M. Redstone* National Amusements, Inc. Chairman of the Board and National Amusements, Inc.
200 Elm Street Chief Executive Officer of 200 Elm Street
Dedham, MA 02026 National Amusements, Inc.; Dedham, MA 02026
Chairman and President of
NAIRI, Inc.; Chairman of Viacom Inc.
the Board and Chief 1515 Broadway
Executive Officer of New York, NY l0036
Viacom Inc.
- ----------------------------------------------------------------------------------------------------------------------
Mel Karmazin* Viacom Inc. President and Chief Viacom Inc.
1515 Broadway Operating Officer of 1515 Broadway
New York, NY 10036 Viacom Inc.; Chairman, New York, NY 10036
President and Chief
Executive Officer of Infinity Broadcasting
Infinity Broadcasting Corporation
Corporation 40 West 57th Street
New York, NY 10019
- ----------------------------------------------------------------------------------------------------------------------
Michael D. Fricklas Viacom Inc. Executive Vice President, Viacom Inc.
1515 Broadway General Counsel and 1515 Broadway
New York, NY 10036 Secretary of Viacom Inc. New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
Susan C. Gordon Viacom Inc. Vice President, Viacom Inc.
1515 Broadway Controller, Chief 1515 Broadway
New York, NY 10036 Accounting Officer of New York, NY 10036
Viacom Inc.
Page 14 of 20 Pages
- ----------------------------------------------------------------------------------------------------------------------
Carl D. Folta Viacom Inc. Senior Vice President, Viacom Inc.
1515 Broadway Corporate Relations of 1515 Broadway
New York, NY 10036 Viacom Inc. New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
Martin D. Franks Viacom Inc. Senior Vice President of Viacom Inc.
1515 Broadway Viacom Inc.; Executive 1515 Broadway
New York, NY 10036 Vice President of CBS New York, NY 10036
Television
- ----------------------------------------------------------------------------------------------------------------------
Robert G. Freedline Viacom Inc. Vice President, Treasurer Viacom Inc.
1515 Broadway of Viacom Inc. 1515 Broadway
New York, NY 10036 New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
Carol A. Melton Viacom Inc. Senior Vice President, Viacom Inc.
1515 Broadway Government Affairs, of 1515 Broadway
New York, NY 10036 Viacom Inc. New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
William A. Roskin Viacom Inc. Senior Vice President, Viacom Inc.
1515 Broadway Human Resources and 1515 Broadway
New York, NY 10036 Administration of Viacom New York, NY 10036
Inc.
- ----------------------------------------------------------------------------------------------------------------------
Fredric G. Reynolds Viacom Inc. Executive Vice President, Viacom Inc.
1515 Broadway Chief Financial Officer of 1515 Broadway
New York, NY 10036 Viacom Inc. New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
Martin Shea Viacom Inc. Senior Vice President, Viacom Inc.
1515 Broadway Investor Relations of 1515 Broadway
New York, NY 10036 Viacom Inc. New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
*Also a Director
Page 15 of 20 Pages
SCHEDULE III (continued)
----------------------------------------------------------------------
DIRECTORS
----------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Name Business or Residence Principal Occupation or Name and Address of
Address Employment Corporation or Other
Organization in Which
Employed
- ----------------------------------------------------------------------------------------------------------------------
George S. Abrams Winer & Abrams Attorney Winer & Abrams
60 State Street 60 State Street
Boston, MA 02109 Boston, MA 02109
- ----------------------------------------------------------------------------------------------------------------------
David R. Andelman Lourie & Cutler PC Attorney Lourie & Cutler PC
60 State Street 60 State Street
Boston, MA 02109 Boston, MA 02109
- ----------------------------------------------------------------------------------------------------------------------
George H. Conrades AKAMAI Technologies Chairman and Chief AKAMAI Technologies
500 Technology Square, 5th Executive Officer of AKAMAI 500 Technology Square, 5th
Floor Technologies Floor
Cambridge, MA 02139 Cambridge, MA 02139
- ----------------------------------------------------------------------------------------------------------------------
Philippe P. Dauman DND Capital Partners, LLC Director of Viacom Inc. DND Capital Partners, LLC
9 West 57th Street, Suite and Co-Chairman and CEO of 9 West 57th Street, Suite
4615 DND Capital Partners, LLC 4615
New York, NY 10019 New York, NY 10019
- ----------------------------------------------------------------------------------------------------------------------
William H. Gray III The College Fund/UNCF President and Chief The College Fund/UNCF
8260 Willow Oaks Corporate Executive Officer of The 8260 Willow Oaks
Drive College Fund/UNCF Corporate Drive
Fairfax, VA 22031 Fairfax, VA 22031
- ----------------------------------------------------------------------------------------------------------------------
Jan Leschly Care Capital LLC Chairman and CEO of Care Care Capital LLC
Princeton Overlook Capital LLC Princeton Overlook
100 Overlook Center and 100 Overlook Center and
Route 1, Suite 102 Route 1
Princeton, NJ 08542 Princeton, NJ 08542
- ----------------------------------------------------------------------------------------------------------------------
Page 16 of 20 Pages
- ----------------------------------------------------------------------------------------------------------------------
David T. McLaughlin Orion Safety Products Chairman and Chief Orion Safety Products
The Gallery, Suite 205 Executive Officer of Orion The Gallery
46 Newport Road Safety Products 46 Newport Road
New London, NH 03257 New London, NH 03257
- ----------------------------------------------------------------------------------------------------------------------
Ken Miller Credit Suisse First Boston Vice Chairman of C.S. Credit Suisse First Boston
Corporation First Boston Corporation
11 Madison Avenue - 25th 11 Madison Avenue 25th
Floor Floor
New York, NY 10010 New York, NY 10010
- ----------------------------------------------------------------------------------------------------------------------
Leslie Moonves CBS Television President and Chief CBS Television
7800 Beverly Blvd. Executive Officer of CBS 7800 Beverly Blvd.
Suite 343 Television Los Angeles, CA 90036
Los Angeles, CA 90036
- ----------------------------------------------------------------------------------------------------------------------
Brent D. Redstone c/o Showtime Networks Inc. Director of National National Amusements, Inc.
1633 Broadway Amusements, Inc. 200 Elm Street
New York, NY 10019 Dedham, MA 02026
- ----------------------------------------------------------------------------------------------------------------------
Shari Redstone National Amusements, Inc. President of National National Amusements, Inc.
200 Elm Street Amusements, Inc. and 200 Elm Street
Dedham, MA 02026 Executive Vice President Dedham, MA 02026
of NAIRI, Inc.
- ----------------------------------------------------------------------------------------------------------------------
Fredric V. Salerno Verizon Communications Inc. Vice Chairman and CFO of Verizon Communications Inc.
1095 Avenue of the Verizon Communications Inc. 1095 Avenue of the Americas
Americas, 39th Floor New York, NY 10036
New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
William Schwartz Cadwalader, Wickersham & Attorney Cadwalader, Wickersham &
Taft Taft
100 Maiden Lane, Suite 1222 100 Maiden Lane, Suite 1222
New York, NY 10038 New York, NY 10038
- ----------------------------------------------------------------------------------------------------------------------
Ivan Seidenberg Verizon Communications Inc. President and Co-CEO Verizon Communications Inc.
1095 Avenue of the 1095 Avenue of the
Americas, 39th Floor Americas, 39th Floor
New York, NY 10036 New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
Page 17 of 20 Pages
- ----------------------------------------------------------------------------------------------------------------------
Patty Stonesifer Bill and Melinda Gates Co-Chair and President of Bill and Melinda Gates
Foundation Bill and Melinda Gates Foundation
1551 Eastlake Ave. East Foundation 1551 Eastlake Ave. East
Seattle, WA 98102 Seattle, WA 98102
- ----------------------------------------------------------------------------------------------------------------------
Robert D. Walter Cardinal Health, Inc. Chairman and Chief Cardinal Health, Inc.
7000 Cardinal Place Executive Officer of 7000 Cardinal Place
Dublin, OH 43017 Cardinal Health, Inc. Dublin, OH 43017
- ----------------------------------------------------------------------------------------------------------------------
Page 18 of 20 Pages
SCHEDULE IV
NAIRI, INC.
----------------------------------------------------------------------
EXECUTIVE OFFICERS
----------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Name Business or Residence Principal Occupation or Name and Address of
Address Employment Corporation or Other
Organization in Which
Employed
- ----------------------------------------------------------------------------------------------------------------------
Sumner M. Redstone* National Amusements, Inc. Chairman of the Board and National Amusements, Inc.
200 Elm Street Chief Executive Officer of 200 Elm Street
Dedham, MA 02026 National Amusements, Inc.; Dedham, MA 02026
Chairman and President of
NAIRI, Inc.; Chairman of Viacom Inc.
the Board and Chief 1515 Broadway
Executive Officer of New York, NY l0036
Viacom Inc.
- ----------------------------------------------------------------------------------------------------------------------
Shari Redstone* National Amusements, Inc. President of National National Amusements, Inc.
200 Elm Street Amusements, Inc. and 200 Elm Street
Dedham, MA 02026 Executive Vice President Dedham, MA 02026
of NAIRI, Inc.
- ----------------------------------------------------------------------------------------------------------------------
Jerome Magner National Amusements, Inc. Vice President and National Amusements, Inc.
200 Elm Street Treasurer of National 200 Elm Street
Dedham, MA 02026 Amusements, Inc. and Dedham, MA 02026
NAIRI, Inc.
- ----------------------------------------------------------------------------------------------------------------------
Richard Sherman National Amusements, Inc. Vice President of National National Amusements, Inc.
200 Elm Street Amusements, Inc. and 200 Elm Street
Dedham, MA 02026 NAIRI, Inc. Dedham, MA 02026
- ----------------------------------------------------------------------------------------------------------------------
*Also a Director
Page 19 of 20 Pages
SCHEDULE V
NATIONAL AMUSEMENTS, INC.
----------------------------------------------------------------------
EXECUTIVE OFFICERS
----------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Name Business or Residence Principal Occupation or Name and Address of
Address Employment Corporation or Other
Organization in Which
Employed
- ----------------------------------------------------------------------------------------------------------------------
Sumner M. Redstone* National Amusements, Inc. Chairman of the Board and National Amusements, Inc.
200 Elm Street Chief Executive Officer of 200 Elm Street
Dedham, MA 02026 National Amusements, Inc.; Dedham, MA 02026
Chairman and President of
NAIRI, Inc.; Chairman of Viacom Inc.
the Board and Chief 1515 Broadway
Executive Officer of New York, NY l0036
Viacom Inc.
- ----------------------------------------------------------------------------------------------------------------------
Shari Redstone* National Amusements, Inc. President of National National Amusements, Inc.
200 Elm Street Amusements, Inc. and 200 Elm Street
Dedham, MA 02026 Executive Vice President Dedham, MA 02026
of NAIRI, Inc.
- ----------------------------------------------------------------------------------------------------------------------
Jerome Magner National Amusements, Inc. VP and Treasurer of National Amusements, Inc.
200 Elm Street National Amusements, Inc., 200 Elm Street
Dedham, MA 02026 and NAIRI, Inc. Dedham, MA 02026
- ----------------------------------------------------------------------------------------------------------------------
Richard Sherman National Amusements, Inc. Vice President of National National Amusements, Inc.
200 Elm Street Amusements, Inc. and 200 Elm Street
Dedham, MA 02026 NAIRI, Inc. Dedham, MA 02026
- ----------------------------------------------------------------------------------------------------------------------
*Also a Director
Page 20 of 20 Pages
SCHEDULE V (continued)
----------------------------------------------------------------------
DIRECTORS
----------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
Name Business or Residence Principal Occupation or Name and Address of
Address Employment Corporation or Other
Organization in Which
Employed
- ----------------------------------------------------------------------------------------------------------------------
George S. Abrams Winer & Abrams Attorney Winer & Abrams
60 State Street 60 State Street
Boston, MA 02109 Boston, MA 02109
- ----------------------------------------------------------------------------------------------------------------------
David R. Andelman Lourie and Cutler Attorney Lourie and Cutler
60 State Street 60 State Street
Boston, MA 02109 Boston, MA 02109
- ----------------------------------------------------------------------------------------------------------------------
Michael D. Fricklas Viacom Inc. Executive Vice President, Viacom Inc.
1515 Broadway General Counsel and 1515 Broadway
New York, NY 10036 Secretary of Viacom Inc. New York, NY 10036
- ----------------------------------------------------------------------------------------------------------------------
Brent D. Redstone c/o Showtime Networks Inc. Director of National National Amusements, Inc.
1633 Broadway Amusements, Inc. 200 Elm Street
New York, NY 10019 Dedham, MA 02026
- ----------------------------------------------------------------------------------------------------------------------
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement"), dated as of January 4, 2001,
is entered into by and between VIACOM INC., a Delaware corporation ("Parent"),
and the individuals set forth on Schedule I attached hereto (each, a
"Stockholder", and together, the "Stockholders").
WHEREAS, Infinity Broadcasting Corporation, a Delaware corporation (the
"Company"), Parent and IBC Merger Corp., a Delaware corporation and a wholly
owned subsidiary of Parent ("Merger Sub"), have entered into an Agreement and
Plan of Merger dated as of October 30, 2000 (the "Merger Agreement"; capitalized
terms used and not defined herein shall have the respective meanings assigned to
them in the Merger Agreement), pursuant to which the parties thereto have
agreed, upon the terms and subject to the conditions set forth therein, to merge
the Company with and into Merger Sub (the "Merger");
WHEREAS, Parent and the Company have agreed that the Company will hold
a special meeting of its stockholders to seek the approval of the Merger and the
Merger Agreement by holders of two-thirds of the Company's outstanding voting
shares, other than shares owned by Parent or subject to this Agreement;
WHEREAS, as of the date hereof, each Stockholder is the record or
beneficial owner of, or has the right to vote, or direct the voting and
disposition of, the number of shares of Class A common stock, par value $.01 per
share (the "Class A Shares"), of the Company set forth opposite such
Stockholder's name on Schedule I attached hereto; and
WHEREAS, Parent has requested the Stockholders to agree, and in order
to facilitate the Merger, the Stockholders are willing to agree, to vote in
favor of adopting the Merger Agreement and approving the Merger, upon the terms
and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth below and in the Merger Agreement, the
parties hereto agree as follows:
SECTION 1. Voting of Shares. (a) Voting Agreement. For so long as this
Agreement is in effect, each Stockholder hereby agrees to appear in person or by
proxy, or cause the holder of record on any applicable record date (the "Record
Holder") to appear in person or by proxy, for the purpose of obtaining a quorum
at any annual, special or other meeting of the stockholders of the Company, and
at any adjournment or adjournments thereof, or pursuant to any consent in lieu
of a meeting or otherwise at which matters relating to the Merger, the Merger
Agreement or any transaction contemplated by the Merger Agreement are considered
and to vote (or cause a Record Holder to vote) all of the Class A Shares, at any
annual, special or other meeting of the stockholders of the Company, and at any
adjournment or adjournments thereof, or pursuant to any consent in lieu of a
meeting or otherwise, at which matters relating to the Merger, the Merger
Agreement and the transactions contemplated by the Merger Agreement are
considered and which such Stockholder has the right to so vote:
2
(i) in favor of the Merger Agreement, the Merger and any actions
required in furtherance thereof;
(ii) against any action or agreement that would result in a breach
in any material respect of any covenant, representation or warranty or
any other obligation of the Company under the Merger Agreement or which
would result in any of the conditions to the Merger set forth in the
Merger Agreement not being fulfilled; and
(iii) against (A) any extraordinary corporate transaction, such as
a merger, rights offering, reorganization, recapitalization or
liquidation involving the Company or any of its subsidiaries other than
the Merger, (B) a sale or transfer of a material amount of assets of
the Company or any of its subsidiaries or (C) any action that is
intended, or could reasonably be expected, to impede, interfere with,
delay, postpone or adversely affect the Merger and the other
transactions contemplated by the Merger Agreement.
(b) Evaluation of Investment. Each Stockholder is capable of
evaluating the merits and risks of its investment in Parent as a result of the
Merger Agreement, and has the capacity to protect his own interest in making its
investment in Parent. Each Stockholder (i) is acquiring shares of Class B common
stock, par value $.01 per share, of Parent (the "Parent Shares") to be issued to
it under the Merger Agreement solely for its own account for investment
purposes, and not with a view to the distribution thereof, (ii) is a
sophisticated investor with knowledge and experience in business and financial
matters, (iii) has received all information concerning Parent and the Merger,
including, but not limited to, the Merger Agreement, as desired in order to
evaluate the merits and the risks inherent in holding Parent Shares, (iv) is
able to bear the economic risk inherent in holding Parent Shares and (v) is an
Accredited Investor (as defined in Regulation D promulgated under the Securities
Act).
(c) No Inconsistent Agreements. Each Stockholder hereby represents,
warrants and covenants that, except as contemplated by this Agreement and the
Merger Agreement, such Stockholder (i) has not entered, and will not enter into,
any agreement with respect to the voting of such Stockholder's Class A Shares
and (ii) has not granted, and will not grant, any proxy or power of attorney
which is inconsistent with this Agreement.
SECTION 2. Representations and Warranties of each Stockholder. Each
Stockholder represents and warrants, individually and not jointly, to Parent as
follows:
(a) Binding Agreement. Such Stockholder has the capacity to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
Such Stockholder has duly and validly executed and delivered this Agreement and
this Agreement constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting creditors' rights
generally and by general equitable principles.
(b) No Conflict. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, or the performance of such
Stockholder's obligations hereunder will not (i) require any consent, approval,
authorization or permit of, registration,
3
declaration or filing (except for such filings as may be required under the
federal securities laws) with, or notification to, any Governmental Entity, (ii)
result in a violation or breach of, or constitute (with or without due notice or
lapse of time or both) a default (or give rise to any right of termination,
cancellation, or acceleration) under, any contract, agreement, instrument,
commitment, arrangement or understanding, or result in the creation of a
security interest, lien, charge, encumbrance, equity or claim with respect to
any of such Stockholder's Class A Shares, (iii) require any material consent,
authorization or approval of any Governmental Entity, or (iv) assuming any
consents, approvals and authorizations necessary to enter into this Agreement
have been received, and any condition precedent to such consent, approval,
authorization, or waiver has been satisfied, violate or conflict with any Laws
applicable to such Stockholder, such Stockholder's Class A Shares or by which
any property or asset of such Stockholder is bound or affected, except for such
exceptions to the foregoing as (A) are not reasonably likely to have an adverse
effect on the valid performance by such Stockholder of its obligations hereunder
or (B) become applicable as a result of the business or activities in which
Parent or any of its respective affiliates is or proposes to be engaged or any
acts or omissions by, or facts pertaining to, Parent.
(c) Ownership of Shares. Such Stockholder is the record or beneficial
owner of the Class A Shares set forth opposite such Stockholder's name on
Schedule I attached hereto free of any limitation or restriction on the right to
vote or direct the vote of the Shares, and there are no outstanding options or
other rights to acquire from such Stockholder, or obligations of such
Stockholder to sell or to dispose of, any Class A Shares. Such Stockholder holds
exclusive power to vote the Class A Shares set forth opposite such Stockholder's
name on Schedule I attached hereto. As of the date of this Agreement, the Class
A Shares set forth opposite such Stockholder's name on Schedule I attached
hereto represent all of the shares of capital stock of the Company beneficially
owned by the Stockholder (except for 164,250 Class A Shares held by the William
S. and Ina Levine Foundation and 62,500 Class A Shares held by the Moreno Family
Foundation and which Messrs. Levine and Moreno, respectively, may have voting
power but as to which Messrs. Levine and Moreno, respectively, disclaim
beneficial ownership and which shares are not made subject to this Agreement).
SECTION 3. Representations and Warranties of Parent. Parent represents
and warrants to each Stockholder as follows:
(a) No Conflict. None of the execution and delivery of this Agreement,
the consummation by Parent of the transactions contemplated hereby, or the
compliance by Parent with any of the provisions hereof will (i) conflict with or
result in a breach of any provision of its Restated Certificate of Incorporation
or Amended and Restated By-laws, (ii) require any consent, approval,
authorization or permit of, registration, declaration or filing (except for such
filings as may be required under the federal securities laws) with, or
notification to, any Governmental Entity, (iii) result in a violation or breach
of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation, or
acceleration) under any contract, agreement, instrument, commitment, arrangement
or understanding, (iv) require any material consent, authorization or approval
of any person other than a Governmental Entity, or (v) violate or conflict with
any Laws applicable to Parent, except for such exceptions to each of the
foregoing as are not reasonably likely to have an adverse effect on the valid
performance by Parent of its obligations hereunder.
4
(b) Registration of Parent Shares. (i) The Parent Shares to be issued
to the Stockholders in the Merger have been registered under the Securities Act
pursuant to a Registration Statement on Form S-4 and, upon issuance thereof as
contemplated by the Merger Agreement, shall not be subject to any restriction on
transfer under or imposed by the Securities Act except for such limitations, if
any, as may be applicable to a Stockholder pursuant to Rule 144 (as a result of
such Stockholder being deemed to be an "affiliate", as defined in Rule 144(a)
under the Securities Act, of Parent following the Effective Time) or Rule 145
under the Securities Act.
(ii) If the Parent Shares issued to the Stockholders in the
Merger shall not have been registered under the Securities Act pursuant
to a Registration Statement on Form S-4, then Parent shall use all
reasonable efforts following the Effective Time and upon the written
request of the Stockholders, to register under the Securities Act the
Parent Shares issued to the Stockholders. Each Stockholder acknowledges
and agrees that Parent will not be deemed to be in breach of the
representation and warranty set forth in clause (i) of this Section
3(b) from and after the effective time of a registration statement
filed under the Securities Act by Parent pursuant to the first sentence
of this clause (ii).
SECTION 4. Covenants of the Stockholders. For so long as this Agreement
is in effect:
(a) Efforts. Each Stockholder agrees not to take any action which would
make any representation or warranty of such Stockholder herein untrue or
incorrect in any material respect or take any action that would have the effect
of preventing, impairing or disabling such Stockholder from performing its
obligations under this Agreement, other than any action permitted to be taken
pursuant to the Merger Agreement.
(b) Additional Shares. Without limiting the provisions of the Merger
Agreement, in the event (i) of any stock dividend, stock split,
recapitalization, reclassification, combination or exchange of shares of capital
stock of the Company on, of or affecting any Stockholder's Class A Shares or
(ii) any Stockholder shall become the beneficial owner of any additional shares
of capital stock of the Company or other securities entitling the holder thereof
to vote or give consent with respect to the matters set forth in Section 1
hereof, then the terms of this Agreement shall apply to the shares of capital
stock or other securities of the Company held by such Stockholder immediately
following the effectiveness of the events described in clause (i) or such
Stockholder becoming the beneficial owner thereof, as described in clause (ii),
as though they were Class A Shares of such Stockholder hereunder. Each
Stockholder hereby agrees, while this Agreement is in effect, to notify Parent
of the number of any new Class A Shares acquired by such Stockholder, if any,
after the date hereof.
SECTION 5. Termination. This Agreement shall terminate on the earlier
of (i) the termination of the Merger Agreement in accordance with its terms and
(ii) the Effective Time. Termination of this Agreement shall not relieve any
party from liability for any intentional breach of its obligations hereunder
committed prior to such termination.
SECTION 6. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly
5
given or made upon receipt) by delivery in person, by facsimile, by courier
service or by registered or certified mail (postage prepaid, return receipt
requested) to the respective parties at the following addresses (or at such
other address for a party as shall be specified in a notice given in accordance
with this Section 6):
If to Parent, to:
Viacom Inc.
1515 Broadway
New York, New York 10036
Telecopier No.: (212) 258-6099
Attention: General Counsel
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Telecopier No.: (212) 848-7179
Attention: Creighton O'M. Condon, Esq.
If to any Stockholder, to:
The address set forth opposite such
Stockholder's name on Schedule I hereto,
with a copy to:
Powell, Goldstein, Frazer & Murphy LLP
16th Floor
191 Peachtree Street, N.E.
Atlanta, GA 30303
Telecopier: (404) 572-6999
Attention: William B. Shearer, Jr., Esq.
SECTION 7. Amendment; Release. This Agreement may not be amended or
modified except by an instrument in writing signed by, or on behalf of, each of
the parties hereto, provided that, with respect to the obligations of any
Stockholder under this Agreement, this Agreement may be amended with the
approval of such Stockholder and Parent notwithstanding the failure to obtain
the approval of any other Stockholder.
SECTION 8. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of Law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect as long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in
6
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
transactions contemplated hereby be consummated as originally contemplated to
the fullest extent possible.
SECTION 9. Entire Agreement; Assignment. This Agreement (including
Schedule I) constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements and undertakings,
both written and oral, between the parties, with respect to the subject matter
hereof. This Agreement shall not be assigned by operation of law or otherwise,
except that Parent may assign all or any of its rights and obligations hereunder
to any direct wholly owned subsidiary of Parent, provided that no such
assignment shall relieve Parent of its obligations hereunder.
SECTION 10. Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
SECTION 11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware (without giving
effect to conflicts of law principles) as to all matters, including validity,
construction, effect, performance and remedies.
SECTION 12. Headings. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 13. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by each
party hereto in separate counterparts, each of which when executed and delivered
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
SECTION 14. Consent to Jurisdiction. (a) Each party hereto irrevocably
submits to the exclusive jurisdiction of the courts of the State of Delaware
sitting in the County of New Castle and the United States District Court for the
State of Delaware, and the appellate courts having jurisdiction of appeals in
such courts, for the purpose of any action or proceeding arising out of or
relating to this Agreement and each party hereto hereby irrevocably agrees that
all claims in respect to such action or proceeding may be heard and determined
exclusively in any such court. Each party hereto agrees that a final judgment in
any action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Each party hereto irrevocably consents to the service of the
summons and complaint and any other process in any other action or proceeding
relating to the transactions contemplated by this Agreement, on behalf of itself
or its property, by personal delivery of copies of such process to such party.
Nothing in this Section 14 shall affect the right of either party to serve legal
process in any other manner permitted by law.
7
SECTION 15. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
SECTION 16. Expenses. Except as otherwise specified in this Agreement,
all costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
SECTION 17. Further Assurances. Parent and each Stockholder will
execute and deliver all such further documents and instruments and take all such
further action as may be necessary in order to consummate the transactions
contemplated hereby.
SECTION 18. Indemnification. Parent hereby agrees, to the fullest
extent permitted under applicable law, to indemnify and hold harmless each
Stockholder against all costs and expenses (including attorneys' fees),
judgments, fines, losses, claims, damages, liabilities and settlement amounts
paid by such Stockholder (a) in connection with any claim, action, suit,
proceeding or investigation based upon such Stockholder being a party to this
Agreement or performing his obligations hereunder and (b) arising out of the
breach of any representation or warranty made by Parent in this Agreement (and
shall reimburse each Stockholder for all reasonable and documented out-of-pocket
expenses incurred in connection with any matter which Parent is obligated to
indemnify the Stockholders pursuant hereto). In the event a Stockholder seeks
indemnification from Parent for any such claim, action, suit, proceeding or
investigation, (i) Parent shall pay the reasonable fees and expenses of counsel
selected by the Stockholders in connection therewith, which counsel shall be
reasonably satisfactory to Parent, promptly after statements therefor are
received and (ii) Parent shall cooperate in the defense of any such matter;
provided, however, that Parent shall not be liable for any settlement effected
without its written consent (which consent shall not be unreasonably withheld);
provided further that the Stockholders may, collectively, retain only one
counsel with respect to any matter subject to the indemnification provided for
in this Section 18 except to the extent, as determined by counsel to the
Stockholders, that the two Stockholders shall have conflicting interests in the
outcome of such matter.
[Remainder of this page left intentionally blank]
8
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by each of the parties hereto on the day and year first written above.
VIACOM INC.
By: /s/ Michael D. Fricklas
-------------------------------------
Name: Michael D. Fricklas
Title: Executive Vice President,
General Counsel and
Secretary
/s/ William S. Levine
------------------------------------------
WILLIAM S. LEVINE
/s/ Arturo R. Moreno
------------------------------------------
ARTURO R. MORENO
SCHEDULE I
Name and Address of Stockholder Number of Class A Shares
- ------------------------------- ------------------------
William S. Levine 37,244,806 (1)
1702 East Highland Avenue
Suite 310
Phoenix, Arizona 85016
Arturo R. Moreno 39,843,848 (2)
2398 East Camelback Road
Suite 610
Phoenix, Arizona 85016
- --------
(1) Includes the following Class A Shares: (a) 1,923,077 shares held in a Rabbi
Trust for the benefit of Mr. Moreno, as to which Mr. Levine has sole voting
power but not investment power and as to which he disclaims beneficial
ownership; and (b) 35,319,948 Class A Shares held by Levine Investments Limited
Partnership as to which Mr. Levine disclaims beneficial ownership except to the
extent of his partnership interest. Excludes 164,250 Class A Shares owned by the
William S. and Ina Levine Foundation, as to which Mr. Levine has shared voting
and investment power and as to which he disclaims beneficial ownership, which
shares are not covered by this Agreement.
(2) Includes the following Class A Shares: (a) 4,291,745 Class A Shares which
Mr. Moreno holds jointly with his spouse; and (b) 5,151,582 Class A Shares held
by BRN Properties Limited Partnership as to which Mr. Moreno disclaims
beneficial ownership except to the extent of his interest in the Partnership.
Excludes (a) 62,500 Class A Shares held by the Moreno Family Foundation as to
which Mr. Moreno disclaims beneficial ownership, which shares are not covered by
this Agreement and (b) 1,923,077 Class A Shares held in the Rabbi Trust referred
to in footnote (1) above.
INFINITY ANNOUNCES MEETING OF STOCKHOLDERS
TO VOTE ON MERGER WITH VIACOM
Companies Continue To Expect Completion of Merger
In First Quarter of 2001
New York, New York, January 5, 2001 - Infinity Broadcasting Corporation (NYSE:
INF) and Viacom Inc. (NYSE: VIA and VIA.B) announced today that Infinity will
hold a meeting of its stockholders to seek approval on the merger of the two
companies. The companies decided to seek stockholder approval after a recent
Delaware Chancery Court decision involving another corporation (Digex, Inc.
Shareholders Litigation) created uncertainty about whether such a vote might be
required for Delaware corporations, such as Infinity. The stockholder meeting is
expected to occur in the first quarter of 2001. The closing of the merger is
expected to occur promptly following the meeting.
The companies also announced that in a show of support for the merger,
Infinity's two largest stockholders other than Viacom, Arturo R. Moreno and
William S. Levine, have agreed to vote their shares in favor of the transaction.
Mel Karmazin, President and Chief Operating Officer of Viacom, said, "Our
stockholders have been overwhelmingly enthusiastic about the transaction, which
is a win-win for Viacom and Infinity. In light of the Delaware decision, we
decided to seek a shareholder vote to eliminate any uncertainty created by the
ruling."
Stockholders of record on January 16, 2001 will be entitled to vote on the
proposed merger. Infinity will seek approval of two-thirds of the outstanding
voting shares, other than shares owned by Viacom or subject to the voting
agreement.
As previously announced, Infinity and Viacom have entered into a definitive
agreement under which Viacom will acquire all of the issued and outstanding
shares of Infinity Common Stock that it does not currently own for 0.592 of a
share of Viacom Class B Common Stock per share of Infinity Class A Common Stock.
Viacom currently holds 100% of the Infinity Class B Common Stock, which
represents approximately 64.2% of the total outstanding shares of the Infinity
Class A and Class B Common Stock and approximately 90% of the combined voting
power of the Infinity Class A and Class B Common Stock. Viacom does not
currently hold any of the Infinity Class A Common Stock.
The Infinity Board of Directors approved the merger agreement after receiving
the unanimous recommendation of a special committee of independent directors,
which was advised by separate legal and financial advisors. The transaction was
also unanimously approved by the Board of Directors of Viacom.
Conference Call
Viacom will hold a conference call for investors and financial analysts on
Friday, January 5, at 8:30 a.m. (EST). The Chief Financial Officer and General
Counsel of Viacom and the Chief Financial Officer of Infinity will be available
to answer questions. The call is open to the general public. The conference call
number is 800-810-0924. Please call five minutes in advance to ensure that you
are connected prior to the presentation.
Investors are urged to read the proxy statement/prospectus that will be filed
with the Securities and Exchange Commission by Viacom and Infinity in connection
with the merger because it will contain important information, including the
identities of the participants in the solicitation of proxies from Infinity
stockholders and a description of such participants' interests in such
solicitation. You will be able to obtain a free copy of the proxy
statement/prospectus and other relevant documents filed with the Commission by
Viacom and Infinity at the Commission's website, http://www.sec.gov. Viacom and
Infinity investors will also be able to obtain a free copy of the relevant
documents by contacting Investor Relations at Viacom at: 800-516-4399, 1515
Broadway, New York, New York 10036 or www.viacom.com.
Note: a registration statement relating to the Viacom Class B common stock to be
issued in the above transaction has been filed with the Securities and Exchange
Commission, but has not yet become effective. These securities may not be sold
nor may offers to buy be accepted prior to the time the registration statement
becomes effective. This press release shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of any
such State.
Contacts:
Media Carl Folta Susan Duffy
- ----- 212-258-6352 212-258-6347
Investors Marty Shea Jim Bombassei
- --------- 212-846-6515 212-258-6377