As filed with the Securities and Exchange Commission on January 30, 2001
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------------
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------
VIACOM INC. VIACOM INTERNATIONAL INC.
(Exact name of registrant as specified in its charter) (Exact name of registrant as specified in its charter)
Delaware Delaware
(State or other jurisdiction of incorporation or organization) (State or other jurisdiction of incorporation or organization)
04-2949533 13-3844753
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
1515 Broadway 1515 Broadway
New York, NY 10036 New York, NY 10036
(212) 258-6000 (212) 258-6000
(Address, including zip code, and telephone number, including (Address, including zip code, and telephone number, including
area code, of Registrants' principal executive offices) area code, of Registrants' principal executive offices)
--------------------------
Michael D. Fricklas, Esq.
Executive Vice President,
General Counsel and Secretary
Viacom Inc.
1515 Broadway
New York, New York 10036
(212) 258-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------
Copies to:
Stephen T. Giove, Esq.
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
--------------------------
Approximate date of commencement of proposed sale to the public: Upon
consummation of the Exchange Offer described herein.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. |_|
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Amount to Offering Price Aggregate Registration Fee(2)
Title of Each Class of be Per Security Offering Price(1)
Securities to be Registered registered
- ---------------------------------------------------------------------------------------------------------------------
6.40% Senior Notes due 2006 $400,000,000 100% $400,000,000
- ---------------------------------------------------------------------------------------------------------------------
7.70% Senior Notes due 2010 $500,000,000 100% $500,000,000 $412,500
- ---------------------------------------------------------------------------------------------------------------------
7.875% Senior Debentures due 2030 $750,000,000 100% $750,000,000
=====================================================================================================================
(1) Estimated solely for the purposes of calculating the registration fee
in accordance with Rule 457(f) under the Securities Act of 1933, as
amended.
(2) Calculated based upon the market value of the securities to be received
by the registrants in the exchange in accordance with Rule 457(f).
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to completion dated January 30, 2001
VIACOM INC.
OFFER TO EXCHANGE
6.40% Senior Notes due 2006
7.70% Senior Notes due 2010
7.875% Senior Debentures due 2030
Unconditionally guaranteed as to payment of principal
and interest by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
for all outstanding unregistered
6.40% Senior Notes due 2006
7.70% Senior Notes due 2010
7.875% Senior Debentures due 2030
Unconditionally guaranteed as to payment of principal
and interest by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
TERMS OF EXCHANGE OFFER
This prospectus and accompanying letter of transmittal relate to the
proposed offer by Viacom Inc. to exchange up to $400,000,000 aggregate principal
amount of new 6.40% senior notes due 2006, which are registered under the
Securities Act of 1933, for any and all of its unregistered 6.40% senior notes
due 2006 issued on January 17, 2001, $500,000,000 aggregate principal amount of
new 7.70% senior notes due 2010, which are registered under the Securities Act
of 1933, for any and all of its unregistered 7.70% senior notes due 2010 issued
on January 17, 2001 and $750,000,000 aggregate principal amount of new 7.875%
senior debentures due 2030, which are registered under the Securities Act of
1933, for any and all of its unregistered 7.875% senior debentures due 2030
issued on January 17, 2001. The senior securities are unconditionally guaranteed
as to payment of principal and interest by Viacom International Inc., a wholly
owned subsidiary of Viacom. The unregistered senior notes due 2010 will, upon
their exchange for new senior notes due 2010 registered under the Securities Act
of 1933, be a further issuance of our 7.70% Senior Notes due 2010,
$1,150,000,000 of which were issued on August 1, 2000. The unregistered senior
debentures due 2030 will, upon their exchange for senior debentures due 2030
registered under the Securities Act of 1933, be a further issuance of our 7.875%
Senior Debentures due 2030, $500,000,000 of which were issued on August 1, 2000.
The unregistered senior securities have certain transfer restrictions. The
exchange senior securities will be freely transferable.
o The exchange offer expires at 5:00 p.m., New York City time, on
February , 2001, unless extended.
o The exchange offer is not subject to any conditions other than
that:
o the exchange offer, or the making of any exchange by a senior
security holder, does not violate applicable law or any
applicable interpretation of the staff of the Securities and
Exchange Commission (the "SEC"),
o no action or proceeding shall have been instituted or
threatened with respect to the exchange offer which, in our
judgment or the judgment of the guarantor, would impair our
ability to proceed with the exchange offer, and
o no law, rule or regulation or applicable interpretations of
the staff of the SEC has been issued or promulgated which, in
our good faith determination or the good faith determination
of the guarantor, does not permit us to effect the exchange
offer.
o All outstanding unregistered senior securities that are validly
tendered and not validly withdrawn will be exchanged.
o Tenders of outstanding unregistered senior securities may be
withdrawn at any time before 5:00 p.m. on the date of expiration
of the exchange offer.
o The exchange of senior securities will not be a taxable exchange
for U.S. federal income tax purposes.
o We will not receive any proceeds from the exchange offer.
o Application has been made to list the exchange senior securities
on the Luxembourg Stock Exchange.
o The terms of the exchange senior securities to be issued are
substantially similar to the unregistered senior securities,
except for being registered under the Securities Act, not having
any transfer restrictions and not having registration rights or
rights to additional interest.
---------------
Each holder of an unregistered senior security wishing to accept the
exchange offer must deliver the unregistered senior securities to be exchanged,
together with the letter of transmittal that accompanies this prospectus and any
other required documentation, to the exchange agent identified in this
prospectus. Alternatively, you may effect a tender of unregistered senior
securities by book-entry transfer into the exchange agent's account at Morgan
Guaranty Trust Company of New York, Brussels Office, as operator of the
Euroclear System ("Euroclear"), Clearstream Banking, societe anonyme, Luxembourg
("Clearstream Luxembourg") or the Depositary Trust Company ("DTC"). All
deliveries are at the risk of the holder. You can find detailed instructions
concerning delivery in the section called "The Exchange Offer" in this
prospectus and in the accompanying letter of transmittal.
---------------
If you are a broker-dealer that receives exchange senior securities for
your own account you must acknowledge that you will deliver a prospectus in
connection with any resale of the exchange senior securities. The letter of
transmittal accompanying this prospectus states that by so acknowledging and by
delivering a prospectus, you will not be deemed to admit that you are an
"underwriter" within the meaning of the Securities Act. You may use this
prospectus, as we may amend or supplement it in the future, for your resales of
exchange senior securities. We will make this prospectus available to any
broker-dealer for use in connection with any such resale for a period of 180
days after the date of expiration of this exchange offer.
---------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the senior securities to be
distributed in the exchange offer, nor have any of these organizations
determined that this prospectus is truthful or complete. Any representation to
the contrary is a criminal offense.
The date of this prospectus is , 2001.
You should rely only on the information contained or incorporated by reference
in this prospectus. We have not authorized any other person to provide you with
different or additional information. If anyone provides you with different or
additional information, you should not rely on it. You should assume that the
information contained or incorporated by reference in this prospectus is
accurate as of the date on the front cover of this prospectus or the date of the
document incorporated by reference. Our business, financial condition, results
of operations and prospects may have changed since then. We are not making an
offer to sell the senior securities in any jurisdiction where the offer or sale
is not permitted.
TABLE OF CONTENTS
Page
----
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS..................ii
WHERE YOU CAN FIND MORE INFORMATION........................................iii
PROSPECTUS SUMMARY...........................................................1
RECENT DEVELOPMENTS..........................................................2
DESCRIPTION OF THE EXCHANGE SENIOR SECURITIES................................9
SELECTED FINANCIAL DATA FOR VIACOM..........................................11
SELECTED FINANCIAL DATA FOR CBS.............................................12
SUMMARY UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION..................13
RATIO OF EARNINGS TO FIXED CHARGES..........................................14
RISK FACTORS................................................................15
USE OF PROCEEDS.............................................................15
CAPITALIZATION..............................................................16
THE EXCHANGE OFFER..........................................................17
DESCRIPTION OF SENIOR SECURITIES............................................31
UNITED STATES TAX CONSIDERATIONS............................................46
PLAN OF DISTRIBUTION........................................................51
LEGAL MATTERS...............................................................52
EXPERTS.....................................................................52
---------------
References to "Viacom," "we," "us" and "our" in this prospectus are
references to Viacom Inc. References to "Viacom International" are references to
Viacom International Inc. Whenever we refer in this prospectus to the senior
notes due 2006 issued on January 17, 2001, the senior notes due 2010 issued on
January 17, 2001, or the senior debentures due 2030 issued on January 17, 2001,
we will refer to them as the "unregistered 2006 senior notes", the "unregistered
2010 senior notes", or the "unregistered senior debentures", respectively.
Whenever we refer collectively in this prospectus to the unregistered 2006
senior notes, the unregistered 2010 senior notes and the unregistered senior
debentures, we will refer to them as the "unregistered senior securities".
Whenever we refer in this prospectus to the new senior notes due 2006, the new
senior notes due 2010 or the new senior debentures due 2030, we will refer to
them as the "exchange 2006 senior notes", the "exchange 2010 senior notes" or
the "exchange senior debentures", respectively. Whenever we refer collectively
in this prospectus to the exchange 2006 senior securities, the exchange 2010
senior securities and the exchange senior debentures, we will refer to them as
the "exchange senior securities". The unregistered 2006 senior notes and the
exchange 2006 senior notes are collectively referred to as the "2006 senior
notes"; the unregistered 2010 senior notes and the exchange 2010 senior notes
are collectively referred to as the "2010 senior notes"; the unregistered senior
debentures and the exchange senior debentures are collectively referred to as
the "senior debentures"; and the unregistered senior securities and the exchange
senior securities are collectively referred to as the "senior securities".
References to "$" and "dollars" are to United States dollars.
i
CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference into this
prospectus contain both historical and forward-looking statements. All
statements other than statements of historical fact are, or may be deemed to be,
forward-looking statements within the meaning of section 27A of the Securities
Act and section 21E of the Securities Exchange Act of 1934. These
forward-looking statements are not based on historical facts, but rather reflect
our current expectations concerning future results and events. These
forward-looking statements generally can be identified by use of statements that
include phrases such as "believe," "expect," "anticipate," "intend," "plan,"
"foresee," "likely," "will" or other similar words or phrases. Similarly,
statements that describe our objectives, plans or goals are or may be
forward-looking statements. These forward-looking statements involve known and
unknown risks, uncertainties and other factors which may cause our actual
results, performance or achievements to be different from any future results,
performance and achievements expressed or implied by these statements. You
should review carefully all information, including the financial statements and
the notes to the financial statements, included or incorporated by reference
into this prospectus.
In addition to the risk factors described below under "Risk Factors,"
the following important factors could affect future results, causing these
results to differ materially from those expressed in our forward-looking
statements:
o the timing, impact and other uncertainties related to pending and
future acquisitions and dispositions by Viacom;
o the ability of Viacom to renew existing programming, licensing and
distribution agreements and to enter into new agreements;
o the impact of new technologies, including the magnitude of equity
losses and other uncertainties related to Viacom's Internet-based
investments;
o changes in tax requirements, including tax rate changes, new tax
laws and revised tax law interpretations; and
o interest rate fluctuations and other capital market conditions.
These factors and the other risk factors described in this prospectus
or incorporated by reference are not necessarily all of the important factors
that could cause actual results to differ materially from those expressed in any
of our forward-looking statements. Other unknown or unpredictable factors also
could have material adverse effects on our future results. The forward-looking
statements included in this prospectus are made only as of the date of this
prospectus and under section 27A of the Securities Act and section 21E of the
Exchange Act and we do not have any obligation to publicly update any
forward-looking statements to reflect subsequent events or circumstances. We
cannot assure you that projected results or events will be achieved.
ii
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
the SEC's public reference rooms at 450 Fifth Street, N.W., Washington, D.C.
20549; 7 World Trade Center, Suite 1300, New York, New York 10048; and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public from the SEC's web site at
http://www.sec.gov. Our Class A common stock and Class B common stock are listed
on the New York Stock Exchange. Information about us also is available at the
New York Stock Exchange. In accordance with U.S. securities laws, the SEC has
granted Viacom International relief from its obligations to file annual,
quarterly and current reports, proxy statements and other information with the
SEC. Accordingly, Viacom International does not file separate financial
statements with the SEC and does not independently publish its financial
statements. Viacom International's financial condition, results of operations
and cash flows are consolidated into the financial statements of Viacom.
We are "incorporating by reference" specified documents that we file
with the SEC, which means that we can disclose important information to you by
referring you to those documents that are considered part of this prospectus.
Later information that we file with the SEC will automatically update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 by us until the exchange offer is
completed.
o Our Registration Statement on Form S-4, dated November 24, 1999.
o Our Annual Report on Form 10-K for the year ended December 31,
1999, as amended on April 28, 2000.
o Our Quarterly Reports on Form 10-Q for the quarters ended March
31, 2000, June 30, 2000 and September 30, 2000.
o Our Current Report on Form 8-K dated May 4, 2000, as amended on
July 17, 2000, and our Current Reports on Form 8-K dated August 3,
2000, August 15, 2000, October 31, 2000, November 3, 2000, January
5, 2001 and January 8, 2001.
o Our definitive Proxy Statement dated June 5, 2000.
o CBS Annual Report on Form 10-K for the year ended December 31,
1999, as amended on April 28, 2000.
o The financial statements of Infinity Broadcasting Corporation, as
set forth in Item 8 to Infinity's Annual Report on Form 10-K for
the year ended December 31, 1999.
o The financial statements of Infinity Broadcasting Corporation, as
set forth in Item 1 to Infinity's Quarterly Report on Form 10-Q
for the quarter ended September 30, 2000.
o Our Registration Statement on Form S-4, dated November 22, 2000,
as amended by Form S-4/A dated December 7, 2000, by Form S-4/A
dated January 9, 2001 and by Form S-4/A dated January 12, 2001.
iii
You may obtain a copy of these filings at no cost, by writing or
telephoning us at the following address:
Viacom Inc.
1515 Broadway
52nd Floor
New York, New York 10036
Attn: Investor Relations
Phone Number: (212) 258-6000
In addition, copies of all documents that we incorporated into this
prospectus by reference may be obtained free of charge at the offices of
Kredietbank S.A. Luxembourgeoise, 43, Boulevard Royal, L-2955 Luxembourg, our
Luxembourg paying and transfer agent.
iv
PROSPECTUS SUMMARY
The following summary highlights selected information from this
prospectus and does not contain all of the information that you should consider
before participating in this exchange offer. You should read the entire
prospectus, accompanying letter of transmittal and documents incorporated by
reference carefully.
THE COMPANY
We are a diversified entertainment company with operations in seven
segments: Cable Networks, Television, Entertainment, Video, Publishing, Online
and Infinity. The Cable Networks segment operates MTV: MUSIC TELEVISION(R),
SHOWTIME(R), NICKELODEON(R)/NICK AT NITE(R), VH1 MUSIC FIRST(R), TV LAND(R),
TNN: THE NATIONAL NETWORK (formerly, The Nashville Network) and COUNTRY MUSIC
TELEVISION, among other program services. The Television segment consists of
CBS(R) and UPN(R) television networks, our 39 broadcast television stations, and
production and distribution of television programming through PARAMOUNT
TELEVISION(R), VIACOM(R) PRODUCTIONS, SPELLING TELEVISION(R), BIG TICKET
TELEVISION(R) and CBS(R) ENTERPRISES (including KING WORLD(R) PRODUCTIONS). The
Entertainment segment produces and distributes theatrical motion pictures
through PARAMOUNT PICTURES(R), operates movie theater and music publishing
operations and, through PARAMOUNT PARKS(R), owns and operates five theme parks
and a themed attraction in the United States and Canada. The Video segment
consists of an approximately 82% equity interest in BLOCKBUSTER(R) INC., which
operates and franchises video stores worldwide, primarily under the
BLOCKBUSTER(R) brand. The remainder of Blockbuster's common stock was sold to
the public in August 1999. The Publishing segment publishes and distributes
consumer books and related multimedia products, under such imprints as SIMON &
SCHUSTER(R), POCKET BOOKS(R), SCRIBNER(R) and THE FREE PRESS. The Online segment
provides online music and children's destinations featuring entertainment,
information, community tools and e-commerce, through SonicNet.com and Internet
sites currently related to MTV: MUSIC TELEVISION(R), NICKELODEON/NICK AT
NITE(R), VH1 MUSIC FIRST(R) and COUNTRY MUSIC TELEVISION. The Online segment
also includes other Internet businesses, which consist primarily of the
operation of the Internet site CBS.com, and the investment in iWon.com. We also
have investments in other Internet based companies such as MarketWatch.com,
Inc., SportsLine.com, Inc. and Hollywood.com, Inc. The Infinity segment consists
of an approximately 64.2% equity interest in Infinity Broadcasting Corporation
which operates radio stations and outdoor advertising properties, including
INFINITY BROADCASTING(R), INFINITY OUTDOOR and TDI(R). As described in more
detail under "Recent Developments" below, we and Infinity have entered into a
merger agreement under which we will acquire the approximately 35.8% equity
interest in Infinity that we do not currently own. On January 23, 2001, we
acquired the Black Entertainment Television cable network pursuant to an
agreement with BET Holding II, Inc. We were incorporated in 1986 under the laws
of the State of Delaware. Our principal offices are located at 1515 Broadway,
New York, New York 10036 and our telephone number is (212) 258-6000.
THE GUARANTOR
Viacom International, the guarantor of the senior securities, was
incorporated under the laws of the State of Delaware on May 19, 1995 and has its
corporate headquarters at 1515 Broadway, New York, New York 10036. Viacom
International has 100 shares of common stock outstanding, all of which are held
by Viacom. The operating assets of Viacom International and its subsidiaries
include MTV: MUSIC TELEVISION(R), SHOWTIME(R), NICKELODEON(R)/NICK AT NITE, VH1
MUSIC FIRST(R), TV LAND(R), approximately 18 broadcast television stations,
BLOCKBUSTER INC., publishing imprints
1
such as SIMON & SCHUSTER(R) and THE FREE PRESS, the businesses of Paramount and
certain related Internet sites. In accordance with U.S. securities laws, the SEC
has granted Viacom International relief from its obligations to file annual,
quarterly and current reports, proxy statements and other information with the
SEC. Accordingly, Viacom International does not file separate financial
statements with the SEC and does not independently publish its financial
statements. Viacom International's financial condition, results of operations
and cash flows are consolidated into the financial statements of Viacom.
CERTAIN SUBSIDIARIES
Viacom has two subsidiaries which are subject to the reporting
requirements of the Exchange Act. These subsidiaries are Blockbuster Inc. and
Infinity Broadcasting Corporation.
Blockbuster, incorporated under the laws of the State of Delaware in
1989, has its corporate headquarters at 1201 Elm Street, Dallas, Texas 75270. As
of December 31, 2000, Blockbuster had 31,011,114 shares of Class A common stock
and 144,000,000 shares of Class B common stock outstanding. Blockbuster is a
retailer of rentable home videocassettes, DVDs and video games, and has stores
throughout the United States and in many other countries. Blockbuster operates
primarily under the Blockbuster brand name. Blockbuster's financial condition,
results of operations and cash flows are consolidated into the financial
statements of Viacom. We own an approximately 82% equity interest in
Blockbuster.
Infinity, incorporated under the laws of the State of Delaware in 1998,
has its corporate headquarters at 40 West 57th Street, New York, New York 10019.
As of December 31, 2000, Infinity had 390,913,206 shares of Class A common stock
and 700,000,000 shares of Class B common stock outstanding. Infinity operates
radio stations and outdoor advertising properties. Infinity's financial
condition, results of operations and cash flows are consolidated into the
financial statements of Viacom. We own an approximately 64.2% equity interest in
Infinity and have entered into an agreement to acquire the approximately 35.8%
equity interest that we do not currently own. See "Recent Developments."
RECENT DEVELOPMENTS
On May 4, 2000, CBS Corporation merged with and into Viacom. The total
purchase price of approximately $39.8 billion represents the issuance of
approximately 825.5 million shares of Viacom non-voting Class B common stock and
11,004 shares of Viacom Series C convertible preferred stock (which were
subsequently converted into shares of Viacom non-voting Class B common stock),
the estimated fair value of CBS stock options which were assumed by Viacom, and
estimated transaction costs. The merger was accounted for by the purchase method
of accounting and the purchase price was allocated to the tangible and
identifiable intangible assets acquired and liabilities assumed, according to
their respective fair values, with the excess purchase price being allocated to
goodwill. In addition, Viacom assumed approximately $3.7 billion of CBS debt.
On October 30, 2000, Viacom and Infinity entered into a merger
agreement under which Viacom will acquire all of the approximately 35.8% of the
issued and outstanding shares of Infinity common stock that it does not
currently own. Pursuant to the merger agreement, Viacom will exchange 0.592 of a
share of Viacom non-voting Class B common stock for each share of Infinity Class
A common stock. Viacom's Board of Directors and Infinity's Board of Directors
approved the merger agreement after approval by a special committee of
Infinity's independent directors. The special committee was advised by separate
legal and financial advisors. In light of a recent Delaware Chancery Court
decision unrelated to Viacom or Infinity which created uncertainty regarding the
vote required to approve the merger, Viacom and Infinity have decided to seek
the approval of Infinity's minority stockholders. A special
2
meeting of Infinity's stockholders will be held on February 21, 2001 to consider
the merger. Viacom expects the merger to be completed immediately following the
stockholders' meeting. As of December 31, 2000, there were approximately 390.9
million shares of Infinity Class A common stock outstanding held by shareholders
other than Viacom.
On January 23, 2001, Viacom acquired Black Entertainment Television for
approximately $2.3 billion of Viacom non-voting Class B common stock plus the
assumption of approximately $575 million of debt. The final exchange ratio was
based on the trading prices of Viacom non-voting Class B common stock during a
measurement period immediately before the closing of the transaction.
3
Summary of the Terms of the Exchange Offer
On January 17, 2001, we issued $400 million aggregate principal amount
of unregistered 6.40% senior notes due 2006, $500 million aggregate principal
amount of unregistered 7.70% senior notes due 2010 and $750 million aggregate
principal amount of unregistered 7.875% senior debentures due 2030. The
unregistered senior securities are unconditionally guaranteed as to payment of
principal and interest by Viacom International. On the same day, we and the
initial purchasers of the unregistered senior securities entered into a
registration rights agreement in which we agreed that you, as a holder of
unregistered senior securities, would be entitled to exchange your unregistered
senior securities for exchange senior securities registered under the Securities
Act but otherwise having substantially identical terms to the unregistered
senior securities. This exchange offer is intended to satisfy these rights.
After the exchange offer is completed, you will no longer be entitled to any
exchange or registration rights with respect to your senior securities. All of
the exchange senior securities will be our obligations and will be entitled to
the benefits of the indenture and supplemental indentures relating to the
unregistered senior securities. The exchange senior securities will also be
unconditionally guaranteed as to payment of principal and interest by Viacom
International. The form and terms of the exchange senior securities are
identical in all material respects to the form and terms of unregistered senior
securities, except:
o the exchange senior securities have been registered under the
Securities Act, and therefore, the exchange senior securities will
contain no restrictive legends;
o the exchange senior securities will not have registration rights;
and
o the exchange senior securities will not have rights to additional
interest.
The Exchange Offer............ We are offering to exchange $1,000 principal
amount of:
o 6.40% senior notes due 2006 which have been
registered under the Securities Act of 1933
for each $1,000 principal amount of our
unregistered 2006 senior notes. As of the
date of the prospectus, $400 million in
aggregate principal amount of unregistered
2006 senior notes are outstanding,
o 7.70% senior notes due 2010 which have been
registered under the Securities Act of 1933
for each $1,000 principal amount of our
unregistered 2010 senior notes. As of the
date of this prospectus, $500 million in
aggregate principal amount of unregistered
2010 senior notes are outstanding, and
o 7.875% senior debentures due 2030 which have
been registered under the Securities Act of
1933 for each $1,000 principal amount of our
unregistered 2030 senior debentures. As of
the date of this prospectus, $750 million in
aggregate principal amount of unregistered
2030 senior debentures are outstanding.
4
Expiration of Exchange Offer.. The exchange offer will expire at 5:00 p.m., New
York City time, on February , 2001, unless we
decide to extend the expiration date.
Resale of the Exchange
Senior Securities........... Based on interpretative letters of the SEC staff
to third parties unrelated to us, we believe
that you can resell and transfer the exchange
senior securities you receive pursuant to this
exchange offer, without compliance with the
registration and prospectus delivery provisions
of the Securities Act, provided that:
o any exchange senior securities to be received
by you will be acquired in the ordinary
course of your business;
o you are not engaged in, do not intend to
engage in or have any arrangement or
understanding with any person to participate
in the distribution of the unregistered
senior securities or exchange senior
securities;
o you are not an "affiliate" (as defined in
Rule 405 under the Securities Act) of Viacom
or Viacom International or, if you are such
an affiliate, you will comply with the
registration and prospectus delivery
requirements of the Securities Act to the
extent applicable;
o if you are a broker-dealer, you are not
engaged in, and do not intend to engage in,
the distribution of exchange senior
securities;
o if you are a broker-dealer, you will receive
exchange senior securities for your own
account in exchange for unregistered senior
securities that were acquired as a result of
market-making activities or other trading
activities and that you will deliver a
prospectus in connection with any resale of
such exchange senior securities; and
o you are not acting on behalf of any person
who could not truthfully make the foregoing
representations.
If you wish to accept the exchange offer, you
must represent to us that these conditions have
been met.
If our belief is inaccurate and you transfer any
exchange senior security without delivering a
prospectus meeting the requirements of the
Securities Act or without an exemption from
registration under the Securities Act, you may
incur
5
liability under the Securities Act. We do not
assume or indemnify you against such liability,
but we do not believe that any such liability
should exist.
Accrued Interest on the
Exchange Senior Securities
and Unregistered Senior
Securities.................. The exchange senior securities will accrue
interest from the date interest was last paid on
the unregistered senior securities. If no
interest was paid on your unregistered senior
securities, your exchange senior securities will
accrue interest from and including January 17,
2001. Interest will be paid on the exchange
senior securities semi-annually on January 30
and July 30 of each year, except that there will
be no January 30, 2001 interest payment date for
any exchange 2006 senior notes. Holders of
unregistered senior securities that are accepted
for exchange will be deemed to have waived the
right to receive any payment in respect of
interest accrued from the date of the last
interest payment date that was made in respect
of the unregistered senior securities until the
date of the issuance of the exchange senior
securities. Consequently, holders who exchange
their unregistered senior securities will
receive the same interest payments that they
would have received had they not accepted the
exchange offer.
Termination of the Exchange
Offer....................... We may terminate the exchange offer if we
determine that our ability to proceed with the
exchange offer could be materially impaired due
to any legal or governmental action, new law,
statute, rule or regulation or any
interpretation of the staff of the SEC of any
existing law, statute, rule or regulation. We do
not expect any of the foregoing conditions to
occur, although we cannot assure you that such
conditions will not occur. You will have certain
rights against our company under the
registration rights agreement should we fail to
consummate the exchange offer.
Procedures for Tendering
Unregistered Senior
Securities.................. If you wish to participate in the exchange
offer, you must transmit a properly completed
and signed letter of transmittal, and all other
documents required by the letter of transmittal,
to the exchange agent at the address set forth
in the letter of transmittal. These materials
must be received by the exchange agent before
5:00 p.m., New York City time, on February ,
2001, the expiration date of the exchange offer.
You must also provide:
o a confirmation of any book-entry transfer of
unregistered senior securities tendered
electronically into the exchange agent's
account with DTC, Euroclear or Clearstream.
You must comply with DTC, Euroclear or
Clearstream's respective standard operating
procedures for electronic
6
tenders, by which you will agree to be bound
in the letter of transmittal; or
o physical delivery of your unregistered senior
securities to the exchange agent's address as
set forth in the letter of transmittal.
The letter of transmittal must also contain the
representations you must make to us as described
under "The Exchange Offer--Procedures for
Tendering."
Special Procedures for
Beneficial Owners........ If your unregistered senior securities are held
through a broker, dealer, commercial bank, trust
company or other nominee and you wish to tender
such senior notes, you should contact such
entity promptly and instruct it to tender your
unregistered senior securities on your behalf.
Guaranteed Delivery
Procedures for Unregistered
Senior Securities........... If you cannot meet the expiration deadline, or
you cannot deliver your unregistered senior
securities, the letter of transmittal or any
other documentation or comply with the
applicable procedures under DTC, Euroclear or
Clearstream standard operating procedures for
electronic tenders on time, you may tender your
unregistered senior securities according to the
guaranteed delivery procedures set forth under
"The Exchange Offer - Guaranteed Delivery
Procedures."
Withdrawal Rights............. You may withdraw the tender of your unregistered
senior securities at any time prior to 5:00
p.m., New York City time, on February , 2001,
the expiration date.
Consequences of Failure to
Exchange.................... If you are eligible to participate in this
exchange offer and you do not tender your
unregistered senior securities as described in
this prospectus, you will not have any further
registration rights or exchange rights. In that
case, your unregistered senior securities will
continue to be subject to restrictions on
transfer. As a result of such restrictions and
the availability of exchange senior securities,
the unregistered senior securities are likely to
be much less liquid securities than before. The
unregistered senior securities will, following
consummation of the exchange offer, bear
interest at the same rate as the exchange senior
securities.
Certain U.S. Federal Income
Tax Consequences............ The exchange of the unregistered senior
securities for exchange senior securities
pursuant to the exchange offer will not be a
taxable exchange for United States federal
income tax purposes. We believe that you will
not recognize any taxable
7
gain or loss solely as a result of the exchange.
Use of Proceeds............... We will not receive any proceeds from the
issuance of exchange senior securities pursuant
to the exchange offer.
Exchange Agents for
Unregistered Senior
Securities.................. Citibank, N.A., the trustee under the indenture
for the unregistered senior securities, is
serving as the principal exchange agent in
connection with the exchange offer. Citibank can
be reached at 111 Wall Street, 5th Floor, New
York, New York 10005; its telephone number is
(800) 422-2066 and its facsimile number is (212)
825-3483. Kredietbank S.A. Luxembourgeoise, our
Luxembourg listing, paying and transfer agent,
will also act as Luxembourg exchange agent. In
its capacity as Luxembourg exchange agent,
Kredietbank will act solely as an intermediary
between holders of unregistered senior
securities wishing to accept the exchange offer
and the principal exchange agent. Kredietbank
will forward the tenders it receives to the
principal exchange agent. Kredietbank can be
reached at 43, Boulevard Royal, L-2955
Luxembourg; its telephone number is (352) 47 97
3933 and its facsimile number is (352) 47 97 73
951.
8
DESCRIPTION OF THE EXCHANGE SENIOR SECURITIES
The following summarized provisions are subject to a number of
important exceptions and qualifications, which are described under the heading
"Description of the Senior Securities" in this prospectus.
Exchange Senior
Securities.............. $400,000,000 principal amount of 6.40% senior notes
due 2006. $500,000,000 principal amount of 7.70%
senior notes due 2010. $750,000,000 principal amount
of 7.875% senior debentures due 2030.
Maturity Dates............ January 30, 2006 for the exchange 2006 senior notes.
July 30, 2010 for the exchange 2010 senior notes.
July 30, 2030 for the exchange senior debentures.
Interest Payment Dates.... January 30 and July 30 of each year, beginning on
the interest payment date immediately following the
last interest payment date for which interest was
paid on unregistered senior securities which were
exchanged pursuant to the exchange offer, except
that there will be no January 30, 2001 interest
payment date for any exchange 2006 notes.
Optional Redemption....... The exchange 2010 senior notes and the exchange
senior debentures are redeemable at our option, in
whole or in part, at any time. The redemption price
is the principal amount of the exchange senior
securities redeemed, plus accrued and unpaid
interest, plus a make-whole premium based on a
discount rate of 25 basis points, in the case of the
exchange 2010 senior notes, and 35 basis points, in
the case of the exchange senior debentures, over an
appropriate treasury rate.
Covenants................. The indenture governing the exchange senior
securities contains covenants that, among other
things, limit our ability to:
o create certain liens;
o enter into certain sale and leaseback
transactions; and
o consolidate, merge or sell all or substantially
all of our assets.
Events of Default......... The indenture provides for events of default,
subject to applicable cure periods, including:
o we do not pay interest on a senior security
within 30 days of its due date;
o we do not pay the principal of or any premium on
a senior security on its due date;
o we remain in breach of a covenant or warranty in
respect of the indenture for 60 days after we
receive a written notice of default. The notice
must be sent by either the trustee or holders of
at least
9
25% in principal amount of a series of
outstanding senior securities;
o we are in default under agreements under which we
have indebtedness outstanding in excess of $250
million in the aggregate and which indebtedness
is due either at maturity or has been declared
due prior to maturity and remains unpaid;
o we fail to pay a money judgment in excess of $250
million for a period of 60 days after it becomes
final and not subject to further appeal; or
o we or Viacom International file for bankruptcy,
or other specified events of bankruptcy,
insolvency or reorganization occur.
Trustee................... Citibank, N.A.
Listing................... Application has been made to list the exchange
senior securities on the Luxembourg Stock Exchange.
10
SELECTED FINANCIAL DATA FOR VIACOM
The selected financial data presented below have been derived from, and
should be read together with, our audited consolidated financial statements and
the accompanying notes included in our annual report on Form 10-K for the year
ended December 31, 1999 and the unaudited interim consolidated financial
statements and the accompanying notes included in our quarterly report on Form
10-Q for the quarter ended September 30, 2000, both of which are incorporated by
reference into this prospectus.
Nine Months
Ended September 30,
(Unaudited) Year Ended December 31,
2000(a) 1999 1999 1998 1997 1996 1995
------- ---- ---- ---- ---- ---- ----
(in millions, except per share amounts)
Statement of Operations Data:
Revenues ............................. $13,900 $9,286 $12,859 $12,096 $10,685 $9,684 $8,700
Depreciation.......................... 528 367 497 442 447 331 244
Amortization of intangibles .......... 932 249 348 336 325 323 316
Operating income...................... 722 881 1,247 752 685 1,197 1,247
Earnings (loss) from continuing
operations ........................ (394) 239 372 (44) 374 152 88
Net earnings (loss) .................. (847) 201 334 (122) 794 1,248 223
Net earnings (loss) attributable to
common stock ...................... (847) 189 322 (150) 734 1,188 163
Earnings (loss) per common share:
Basic:
Earnings (loss) from continuing
operations ................... $ (.35) $ .33 $ .52 $ (.10) $ .44 $ .13 $ .04
Net earnings (loss).............. $ (.75) $ .27 $ .46 $ (.21) $ 1.04 $ 1.63 $ .22
Diluted:
Earnings (loss) from continuing
operations ................... $ (.35) $ .32 $ .51 $ (.10) $ .44 $ .13 $ .04
Net earnings (loss) ............. $ (.75) $ .27 $ .45 $ (.21) $ 1.04 $ 1.62 $ .22
Weighted average shares outstanding:
Basic............................ 1,134 695 695 709 706 728 725
Diluted.......................... 1,134 709 710 709 709 735 750
Other Data:
EBITDA (b)............................ $ 2,182 $1,497 $ 2,092 $ 1,530 $ 1,457 $1,851 $1,807
At September 30,
2000 (a) At December 31,
(Unaudited) 1999 1998 1997 1996 1995
----------- ---- ---- ---- ---- ----
(in millions)
Balance Sheet Data:
Cash and cash equivalents............ $ 993 $ 681 $ 767 $ 292 $ 209 $ 464
Intangibles, net..................... 61,643 11,479 11,557 14,700 14,894 16,153
Total assets......................... 82,423 24,486 23,613 28,289 28,834 28,991
Long-term debt, net of current
portion ........................... 12,639 5,698 3,813 7,423 9,856 10,712
Stockholders' equity ................ 48,195 11,132 12,050 13,384 12,587 12,094
(a) Includes financial information for CBS Corporation from May 4, 2000, the
date of its merger with and into Viacom. Accordingly, operating results and
financial position are not necessarily comparable on a year-to-year basis.
(b) We define EBITDA as operating income before depreciation and amortization,
principally of goodwill related to business combinations. While many in the
financial community consider EBITDA to be an important measure of
comparative operating performance, you should consider it in addition to,
but not as a substitute for or superior to, operating income, net earnings,
cash flow and other measures of financial performance prepared in
accordance with generally accepted accounting principles.
11
SELECTED FINANCIAL DATA FOR CBS
The merger of CBS Corporation with and into Viacom was completed on May
4, 2000. Accordingly, relevant financial information for CBS is not reflected in
our historical financial statements for the periods set forth below. The
selected financial data presented below have been derived from, and should be
read together with, the audited consolidated financial statements of CBS and the
accompanying notes included in CBS' Annual Report on Form 10-K for the year
ended December 31, 1999 and the unaudited interim consolidated financial
statements and the accompanying notes for the quarter ended March 31, 2000
included in our Current Report on Form 8-K dated May 4, 2000, as amended on July
17, 2000, each of which is incorporated by reference into this prospectus.
Three Months
Ended March 31,
(Unaudited) Year Ended December 31,
2000 1999(a) 1999(a) 1998(a) 1997(a) 1996(a) 1995(a)
------- -------- -------- -------- -------- -------- --------
(in millions, except per share amounts)
Statement of Operations Data:
Revenues ............................. $2,406 $1,769 $7,373 $6,805 $5,367 $4,143 $1,074
Depreciation.......................... 69 33 148 137 120 105 32
Amortization of intangibles .......... 228 116 521 434 325 174 25
Operating income...................... 222 123 956 482 253 54 160
Net earnings (loss) .................. (38) 387 780 (21) 549 95 (10)
Net earnings (loss) per common share:
Basic:........................... $ (.05) $ .56 $ 1.10 $ (.03) $ .84 $ .12 $ (.25)
Diluted:......................... $ (.05) $ .55 $ 1.08 $ (.03) .84 $ .12 $ (.25)
Weighted average shares outstanding:
Basic............................ 752 693 702 696 629 401 370
Diluted.......................... 752 708 721 696 629 401 370
Other Data:
EBITDA (unaudited)(b)................. $ 519 $ 272 $ 1,625 $ 1,053 $ 698 $ 333 $ 217
At March 31,
2001 At December 31,
-------------------------------------------------------
(Unaudited) 1999(a) 1998(a) 1997(a) 1996(a) 1995(a)
----------- ------- ------- ------- ------- -------
(in millions)
Balance Sheet Data:
Cash and cash equivalents (c)........ $ 381 $ 249 $ 825 $ 67 $ 233 $ 226
Total assets(c)..................... 33,093 33,738 22,058 20,604 21,116 18,548
Intangibles, net..................... 24,548 24,917 15,463 12,727 11,320 6,638
Long-term debt, net of current
portion (c) ....................... 4,072 4,158 2,888 3,676 5,566 7,383
Stockholders' equity ................ 15,790 16,147 9,054 8,080 5,731 1,453
(a) Includes financial information for the following acquired entities from
their respective dates of acquistion: the outdoor advertising operations of
Outdoor Systems, Inc. as of December 7, 1999; King World Productions, Inc.
on November 15, 1999; the radio operations of American Radio on June 4,
1998; The Nashville Network and the remaining interest of Country Music
Television on September 30, 1997; Infinity Media Corporation on December
31, 1996; and CBS Inc. on November 24, 1995. Accordingly, operating results
are not necessarily comparable on a year-to-year basis.
(b) We define EBITDA as operating income before depreciation and amortization,
principally of goodwill related to business combinations. While many in the
financial community consider EBITDA to be an important measure of
comparative operating performance, you should consider it in addition to,
but not as a substitute for or superior to, operating income, net earnings,
cash flow and other measures of financial performance prepared in
accordance with generally accepted accounting principles.
(c) Financial information for all periods presented includes amounts for both
continuing and discontinued operations.
12
SUMMARY UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
The following summary unaudited pro forma combined financial
information is based upon the historical financial statements of Viacom,
adjusted for the Viacom/CBS merger, certain other transactions and the
contemplated Viacom/Infinity merger. The unaudited pro forma combined condensed
statement of operations data for the nine months ended September 30, 2000 and
the year ended December 31, 1999 is presented as if the Viacom/CBS merger,
certain other transactions and the contemplated Viacom/Infinity merger had
occurred on January 1, 1999. The unaudited pro forma combined balance sheet data
at September 30, 2000 is presented as if the Viacom/Infinity merger had occurred
on September 30, 2000.
The summary unaudited pro forma combined condensed financial data is
for illustrative purposes only and does not necessarily indicate the operating
results or financial position that would have been achieved had the Viacom/CBS
merger, certain other transactions and the contemplated Viacom/Infinity merger
been completed as of the dates indicated or of the results that may be obtained
in the future. In addition, the data does not reflect synergies that might be
achieved from combining these operations.
Unaudited Pro Forma Combined Statement of Operations Data
Viacom/CBS Merger and
Viacom/CBS Merger Viacom/Infinity Merger
Nine Months Ended Year Ended Nine Months Ended Year Ended
September 30, 2000 December 31, 1999 September 30, 2000 December 31, 1999
(in millions, except per share amounts)
Statement of Operations Data:
Revenues ............................. $17,354 $22,157 $17,354 $22,157
Operating income...................... 863 1,513 707 1,304
Earnings (loss) from continuing
operations before income taxes ... 140 670 (16) 461
Loss from continuing operations....... (643) (284) (702) (435)
Loss from continuing operations
attributable to common stock ..... (643) (297) (702) (448)
Basic and diluted loss from
continuing operations per share.... $ (.43) $ (.20) $ (.40) $ (.26)
Basic and diluted weighted average
shares outstanding................. 1,508 1,506 1,739 1,737
Other Data:
EBITDA (a) ........................... $ 2,954 $ 4,209 $ 2,943 $ 4,194
Unaudited Pro Forma Combined Balance Sheet Data
(in millions)
Viacom/Infinity Merger
At September 30,
2000
----
Cash and cash equivalents.................................. $ 993
Total assets .............................................. 90,181
Long-term debt, net of current portion .................... 12,639
Stockholders' equity....................................... 61,605
(a) We define EBITDA as operating income before depreciation and amortization,
principally of goodwill related to business combinations. While many in the
financial community consider EBITDA to be an important measure of
comparative operating performance, you should consider it in addition to,
but not as a substitute for or superior to, operating income, net earnings,
cash flow and other measures of financial performance prepared in
accordance with generally accepted accounting principles.
13
RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
The ratio of earnings to fixed charges for Viacom are set forth below,
on a pro forma basis, for the nine months ended September 30, 2000 and the year
ended December 31, 1999 to give effect to the Viacom/CBS merger, certain other
transactions and the contemplated Viacom/Infinity merger, as if the mergers each
occurred on January 1, 1999, and on a historical basis for the nine months ended
September 30, 2000 and for each year in the five-year period ended December 31,
1999.
For purposes of computing the following ratios, earnings represents
income from continuing operations before fixed charges and taxes. Fixed charges
represent interest expense, amortization of capitalized interest and such
portion of rental expense which represents an appropriate interest factor.
Nine Months Year Ended December 31,
Ended ---------------------------------------------------------------
September 30, 2000 1999 Viacom Historical
----------------------------------------------- ------------------------------- ------------------------------
Pro Forma for Pro Forma for
Viacom/CBS Viacom/CBS
Pro Forma for Merger and Pro Forma for Merger and
Viacom Viacom/CBS Viacom/Infinity Viacom/CBS Viacom/Infinity
Historical Merger Merger Merger Merger 1999 1998 1997 1996 1995
---------- ------ ------ ------ ------ ---- ---- ---- ---- ----
Ratio of
Earnings to
Fixed Charges.... 1.3x 1.2x 1.0x 1.5x 1.4x 2.2x 1.1x 2.0x 1.4x 1.5x
14
RISK FACTORS
An investment in the exchange senior securities is subject to numerous
risks, including, but not limited to those set forth below. In addition to the
information contained elsewhere in this prospectus, you should carefully
consider the following risk factors before deciding to exchange your
unregistered senior securities for exchange senior securities.
Fraudulent Conveyance Considerations
Our obligations under the exchange senior securities will be guaranteed
to the extent described in this prospectus by Viacom International. See
"Description of Senior Securities--Guarantees." Various federal and state
fraudulent conveyance laws have been enacted for the protection of creditors and
may be utilized by a court of competent jurisdiction to subordinate or avoid all
or part of any guarantee issued by Viacom International.
To the extent that a court were to find that (x) a guarantee was
incurred by Viacom International with the intent to hinder, delay or defraud any
present or future creditor or (y) Viacom International did not receive fair
consideration or reasonably equivalent value for issuing its guarantee and
Viacom International (i) was insolvent or rendered insolvent by reason for the
issuance of the guarantee, (ii) was engaged or about to engage in a business or
transaction for which the remaining assets of Viacom International constituted
unreasonably small capital to carry on its business or (iii) intended to incur,
or believed that it would incur, debts beyond its ability to pay such debts as
they matured, the court could subordinate or avoid all or part of such guarantee
in favor of Viacom International's other creditors. To the extent any guarantee
issued by Viacom International was voided as a fraudulent conveyance or held
unenforceable for any other reason, the holders of exchange senior securities
guaranteed by Viacom International could cease to have any claim against Viacom
International and would be creditors solely of Viacom.
We and Viacom International believe that the issuances of the
guarantees by Viacom International are not fraudulent conveyances. There can be
no assurance, however, that a court passing on such questions would reach the
same conclusions. In rendering their opinions on the validity of the exchange
senior securities and, if applicable, the related guarantees, neither our
counsel nor counsel for Viacom International will express any opinion as to
federal or state laws relating to fraudulent transfers.
USE OF PROCEEDS
We will not receive any proceeds from the exchange offer. In
consideration for issuing the exchange senior securities contemplated by this
prospectus, we will receive unregistered senior securities from you in like
principal amount. The unregistered senior securities surrendered in exchange for
the exchange senior securities will be retired and canceled and cannot be
reissued. Accordingly, issuance of the exchange senior securities will not
result in any change in our indebtedness.
15
CAPITALIZATION
The following table sets forth our capitalization as of September 30,
2000 on a historical basis, as reported by Viacom and on a pro forma basis to
reflect the contemplated Viacom/Infinity merger, the issuance and sale of the
senior securities and the repayment of notes payable to banks from the proceeds
of the issuance and sale of the senior securities.
At September 30, 2000(1)
(Unaudited)
---------------
Pro Forma for
Viacom/Infinity
Viacom Merger and
Historical this Offering
---------- -------------
(in millions, except per share
amounts)
Long-term debt:
Continuing operations:
Notes payable to banks (including commercial paper)........................ $ 6,046 $ 4,342
Senior notes and debentures (5.875%-9.75%, due 2000-2023).................. 3,879 3,879
Senior subordinated notes (8.875%-10.25%, due 2001-2007)................... 705 705
Subordinated exchange debentures (11.375%, due 2009)....................... 45 45
Obligations under capital leases........................................... 553 553
6.40% Senior notes due 2006................................................ -- 399
7.70% Senior notes due 2010................................................ 1,149 1,679
7.875% Senior debentures due 2030.......................................... 500 1,285
------- -------
Total debt............................................................. 12,877 12,887
------- -------
Stockholders' equity:
Class A common stock, par value $.01 per share; 500 shares authorized; 139
shares issued ................................................................. 1 1
Class B common stock, par value $.01 per share; 3,000 shares authorized; 1,454
shares issued, and 1,685 shares on a pro forma basis for the Infinity Merger. 15 17
Additional paid-in capital...................................................... 49,975 63,383
Retained earnings .............................................................. 1,401 1,401
Accumulated other comprehensive loss............................................ (126) (126)
Less: Treasury stock .......................................................... (3,071) (3,071)
--------- --------
Total stockholders' equity............................................. 48,195 61,605
-------- --------
Total capitalization................................................... $61,072 $74,492
======= =======
- --------------
(1) Except as set forth above and except as otherwise disclosed in any documents
incorporated herein by reference, there has been no material change in the total
capitalization of Viacom since September 30, 2000.
16
THE EXCHANGE OFFER
Purpose and Effect of Exchange Offer; Registration Rights
We sold the unregistered senior securities to Merrill Lynch, Pierce,
Fenner & Smith Incorporated and Salomon Smith Barney Inc., as representatives of
the initial purchasers, on January 17, 2001. The initial purchasers then resold
the unregistered senior securities under an offering memorandum dated January 9,
2001 in reliance on Rule 144A and Regulation S under the Securities Act. On
January 17, 2001, we entered into a registration rights agreement with the
initial purchasers. Under the registration rights agreement, we agreed:
o to file with the SEC a registration statement relating to the exchange
offer under the Securities Act no later than March 18, 2001;
o to use our reasonable best efforts to cause the exchange offer
registration statement to be declared effective under the Securities
Act on or before July 16, 2001; and
o to use our reasonable best efforts to cause the exchange offer to be
consummated not later than 45 days following the date of effectiveness
of the exchange offer registration statement.
If you participate in the exchange offer, you will, with limited
exceptions, receive senior securities that are freely tradable and not subject
to restrictions on transfer. You should read the information in this prospectus
under the heading "Resales of Exchange Senior Securities" for more information
relating to your ability to transfer exchange senior securities.
If you wish to exchange unregistered senior securities for exchange
senior securities in the exchange offer, you will be required to make certain
representations in the letter of transmittal. These include representations
that:
o any exchange senior securities to be received by you will be acquired
in the ordinary course of your business;
o you are not engaged in, do not intend to engage in or have any
arrangement or understanding with any person to participate in the
distribution of the unregistered senior securities or exchange senior
securities;
o you are not an "affiliate" (as defined in Rule 405 under the
Securities Act) of Viacom or Viacom International or, if you are such
an affiliate, you will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable;
o if you are a broker-dealer, you are not engaged in, and do not intend
to engage in, the distribution of exchange senior securities;
o if you are a broker-dealer, you will receive exchange senior
securities for your own account in exchange for unregistered senior
securities that were acquired as a result of market-making activities
or other trading activities and that you will deliver a prospectus in
connection with any resale of such exchange senior securities; and
17
o you are not acting on behalf of any person who could not truthfully
make the foregoing representations.
The exchange offer is not being made to, nor will we accept tenders for
exchange from, holders of unregistered senior securities in any jurisdiction in
which the exchange offer or the acceptance of the exchange offer would not be in
compliance with the securities laws or blue sky laws of such jurisdiction.
If you are eligible to participate in the exchange offer and do not
tender your unregistered senior securities, you will hold the untendered
unregistered senior securities which will continue to be subject to restrictions
on transfer under the Securities Act.
Shelf Registration
In the registration rights agreement, we agreed to file a shelf
registration statement only if:
o after January 17, 2001, there is a change in law or applicable
interpretations of the law by the staff of the SEC, and as a result we
are not permitted to complete the exchange offer as contemplated by
the registration rights agreement;
o any holder of unregistered senior securities is not able to
participate in the exchange offer;
o any holder of unregistered senior securities does not receive fully
transferable exchange senior securities;
o the exchange offer registration statement is not declared effective by
July 16, 2001 or the exchange offer is not consummated within 45 days
after the exchange offer registration statement is declared effective,
although we may terminate such shelf registration statement at any
time, without penalty, if the exchange offer registration statement is
declared effective or the exchange offer is consummated; or
o upon the request of any of the initial purchasers made within 90 days
after the consummation of the exchange offer with respect to
unregistered senior securities not eligible to be exchanged in the
exchange offer and held by it following the consummation of the
exchange offer.
The shelf registration statement will permit only certain holders to
resell their unregistered senior securities from time to time. In addition, such
holders must:
o provide specified information in connection with the shelf
registration statement; and
o agree in writing to be bound by all provisions of the registration
rights agreement (including the applicable indemnification
obligations).
A holder who sells unregistered senior securities pursuant to the shelf
registration statement will be required to be named as a selling securityholder
in the prospectus and to deliver a copy of the prospectus to purchasers. If we
are required to file a shelf registration statement, we will provide to each
holder of unregistered senior securities copies of the prospectus that is a part
of the shelf registration statement and notify each such holder when the shelf
registration statement becomes effective. Such holder will be subject to certain
of the civil liability provisions under the Securities Act in connection with
such sales, and will be bound by the provisions of the registration rights
agreement which are applicable to such a holder (including the applicable
indemnification obligations).
18
If a shelf registration statement is required, we will use our
reasonable best efforts to:
o file the shelf registration statement with the SEC no later than (a)
August 15, 2001 or (b) the 60th day after such filing obligation
arises, whichever is later;
o use our reasonable efforts to cause the shelf registration statement
to be declared effective by the SEC no later than September 14, 2001;
and
o use our reasonable efforts to keep the shelf registration statement
effective until January 17, 2003, or if earlier until all of the
unregistered senior securities covered by the shelf registration
statement are sold thereunder or are already freely tradable.
During any 365-day period, we will have the ability to suspend the
availability of the shelf registration statement for up to 4 periods of up to 45
consecutive days (except for the consecutive 45-day period immediately prior to
the maturity of the notes), but no more than an aggregate of 90 days during any
365-day period, if our board of directors determines in good faith that there is
a valid purpose for the suspension.
Additional Interest
If a registration default (as defined below) occurs, we will be
required to pay additional interest to each holder of unregistered senior
securities. During the first 90-day period that a registration default occurs,
we will pay additional interest equal to 0.25% per annum. At the beginning of
the second and any subsequent 90-day period that a registration default is
continuing, the amount of additional interest will increase by an additional
0.25% per annum until all registration defaults have been cured. However, in no
event will the rate of additional interest exceed 0.50% per annum. Such
additional interest will accrue only for those days that a registration default
occurs and is continuing. All accrued additional interest will be paid to the
holders of the unregistered senior securities in the same manner as interest
payments on the unregistered senior securities are made, with payments being
made on the interest payment dates for the senior securities. Following the cure
of all registration defaults, no more additional interest will accrue. You will
not be entitled to receive any additional interest if you were, at any time
while the exchange offer was pending, eligible to exchange, and did not validly
tender, your unregistered senior securities for exchange senior securities in
the exchange offer.
A "registration default" includes any of the following:
o we fail to file any of the registration statements required by the
registration rights agreement on or before March 18, 2001;
o any of such registration statements is not declared effective by the
SEC on or before July 16, 2001;
o we fail to complete the exchange offer no later than 45 days following
the date of effectiveness of the exchange offer registration
statement; or
o the shelf registration statement or the exchange offer registration
statement is declared effective but thereafter ceases to be effective
or usable in connection with resales of the senior securities during
the period specified in the registration rights agreement, subject to
certain exceptions for limited periods of time with respect to the
shelf registration statement.
19
The exchange offer is intended to satisfy our exchange offer
obligations under the registration rights agreement. The above summary of the
registration rights agreement is not complete and is subject to, and qualified
by reference to, all the provisions of the registration rights agreement. A copy
of the registration rights agreement is filed as an exhibit to the registration
statement that includes this prospectus.
Terms of the Exchange Offer
Upon the terms and subject to the conditions set forth in this
prospectus and in the accompanying letter of transmittal, we are offering to
exchange $1,000 principal amount of exchange senior securities for each $1,000
principal amount of unregistered senior securities. You may tender some or all
of your unregistered senior securities only in integral multiples of $1,000. As
of the date of this prospectus, $400 million aggregate principal amount of the
unregistered 2006 senior notes, $500 million aggregate principal amount of the
unregistered 2010 senior notes and $750 million aggregate principal amount of
the unregistered senior debentures are outstanding.
The terms of the exchange senior securities to be issued are
substantially similar to the unregistered senior securities, except that the
exchange senior securities have been registered under the Securities Act and,
therefore, the certificates for the exchange senior securities will not bear
legends restricting their transfer. The exchange senior securities will be
issued under and be entitled to the benefits of the Indenture, dated as of May
15, 1995, among us, our wholly owned subsidiary, Viacom International, as
guarantor, and Citibank, N.A., as successor to State Street Bank and Trust
Company and The First National Bank of Boston, Trustee. The Indenture was
supplemented by the First Supplemental Indenture, dated as of May 24, 1995, was
supplemented and amended by the Second Supplemental Indenture and Amendment No.
1, dated as of December 15, 1995, was supplemented by the Third Supplemental
Indenture, dated as of July 22, 1996, was supplemented by the Fourth
Supplemental Indenture, dated as of August 1, 2000, and, in connection with the
unregistered senior securities, was supplemented by a Fifth Supplemental
Indenture, dated January 17, 2001. We refer to the Indenture, as so supplemented
and amended, as the "Indenture."
In connection with the issuance of the unregistered senior securities,
we arranged for the unregistered senior securities to be issued and transferable
in book-entry form through the facilities of Euroclear, Clearstream Luxembourg
and DTC, acting as a depositary. The exchange senior securities will also be
issuable and transferable in book-entry form through Euroclear, Clearstream
Luxembourg and DTC.
There will be no fixed record date for determining the eligible holders
of the unregistered senior securities that are entitled to participate in the
exchange offer. We will be deemed to have accepted for exchange validly tendered
unregistered senior securities when and if we have given oral (promptly
confirmed in writing) or written notice of acceptance to the exchange agent. The
exchange agent will act as agent for the tendering holders of unregistered
senior securities for the purpose of receiving exchange senior securities from
us and delivering them to such holders.
If any tendered unregistered senior securities are not accepted for
exchange because of an invalid tender or the occurrence of certain other events
described herein, certificates for any such unaccepted unregistered senior
securities will be returned, without expenses, to the tendering holder thereof
as promptly as practicable after the expiration of the exchange offer.
Holders of unregistered senior securities who tender in the exchange
offer will not be required to pay brokerage commissions or fees or, subject to
the instructions in the letter of transmittal, transfer taxes
20
with respect to the exchange of unregistered senior securities for exchange
senior securities pursuant to the exchange offer. We will pay all charges and
expenses, other than certain applicable taxes, in connection with the exchange
offer. It is important that you read the section "Fees and Expenses" below for
more details regarding fees and expenses incurred in the exchange offer.
If we successfully complete this exchange offer, any unregistered
senior securities which holders do not tender or which we do not accept in the
exchange offer will remain outstanding and continue to accrue interest, but the
holders of unregistered senior securities after the exchange offer in general
will not have further rights under the registration rights agreement and we will
not have any further obligation to register the unregistered senior securities
under the Securities Act. In that case, holders wishing to transfer unregistered
senior securities would have to rely on exemptions from the registration
requirements of the Securities Act.
Conditions of the Exchange Offer
You must tender your unregistered senior securities in accordance with
the requirements of this prospectus and the letter of transmittal in order to
participate in the exchange offer. Notwithstanding any other provision of the
exchange offer, or any extension of the exchange offer, we will not be required
to accept for exchange any unregistered senior securities, and may terminate or
amend the exchange offer if:
o the exchange offer, or the making of any exchange by a senior security
holder, violates applicable law or any applicable interpretation of
the staff of the SEC,
o any action or proceeding shall have been instituted or threatened with
respect to the exchange offer which, in our judgment or the judgment
of the guarantor, would impair our ability to proceed with the
exchange offer, and
o any law, rule or regulation or applicable interpretations of the staff
of the SEC have been issued or promulgated which, in our good faith
determination or the good faith determination of the guarantor, does
not permit us to effect the exchange offer.
If we determine in our sole discretion that any of the above events or
conditions has occurred, we may, subject to applicable law, terminate the
exchange offer and return all unregistered senior securities tendered for
exchange, or we may waive any condition or amend the terms of the exchange
offer. Any determination by us concerning the events described above will be
final and binding upon parties.
Expiration Date; Extensions; Amendment; Termination
The exchange offer will expire 5:00 p.m., New York City time, on
February , 2001, unless, in our sole discretion, we extend it.
We reserve the right:
o to delay accepting any unregistered senior security;
o to amend the terms of the exchange offer in any manner;
o to extend the exchange offer; or
o to terminate the exchange offer, if any of the conditions set forth
above occur and we do not waive them.
21
We will give oral or written notice of any amendment, non-acceptance or
termination to registered holders of the unregistered senior securities as
promptly as practicable. In the case of any extension, we will notify the
exchange agent orally (promptly confirmed in writing) or in writing of any
extension. We will also notify the registered holders of unregistered senior
securities of the extension no later than 9:00 a.m., New York City time, on the
business day after the previously scheduled expiration of the exchange offer.
If we consider an amendment to the exchange offer to be material, we
will promptly inform the holders of unregistered senior securities of such
amendment in a reasonable manner.
If we decide to terminate the exchange offer, as set forth above, we
may
o refuse to accept any unregistered senior securities and return any
unregistered senior securities that have been tendered to the holders;
o extend the exchange offer and retain all unregistered senior
securities tendered prior to the expiration of the exchange offer,
subject to the rights of such holders of tendered unregistered senior
securities to withdraw their tendered unregistered senior securities,
or
o waive such termination event with respect to the exchange offer and
accept all properly tendered unregistered senior securities that have
not been withdrawn. If such waiver constitutes a material change in
the exchange offer, we will disclose such change by means of a
supplement to this prospectus that will be distributed to each
registered holder of unregistered senior securities, and we will
extend the exchange offer for a period of five to ten business days,
depending upon the significance of the waiver and the manner of
disclosure to the registered holders of the unregistered senior
securities, if the exchange offer would otherwise expire during such
period.
Without limiting the manner by which we may choose to make public
announcements of any delay in acceptance, extension, termination or amendment of
the exchange offer, we will have no obligation to publish, advertise, or
otherwise communicate any such public announcement, other than by making a
timely release to a financial news service.
Interest on the Exchange Senior Securities
The exchange senior securities will accrue interest from the date
interest was last paid on the unregistered senior securities. If no interest was
paid on your unregistered senior securities, your exchange senior securities
will accrue interest from and including January 17, 2001. Interest will be paid
on the exchange senior securities semi-annually on January 30 and July 30 of
each year, except that there will be no January 30, 2001 interest payment date
for any exchange 2006 senior notes. Holders of unregistered senior securities
that are accepted for exchange will be deemed to have waived the right to
receive any payment in respect of interest accrued from the date of the last
interest payment date that was made in respect of the unregistered senior
securities until the date of the issuance of the exchange senior securities.
Consequently, holders who exchange their unregistered senior securities will
receive the same interest payments they would have received had they not
accepted the exchange offer.
Resale of Exchange Senior Securities
Based upon existing interpretations of the staff of the SEC set forth
in several no-action letters issued to third parties, we believe that the
exchange senior securities issued pursuant to the exchange offer in exchange for
the unregistered senior securities may be offered for resale, resold and
otherwise
22
transferred by their holders, without complying with the registration and
prospectus delivery provisions of the Securities Act, provided that:
o any exchange senior securities to be received by you will be acquired
in the ordinary course of your business;
o you are not engaged in, do not intend to engage in or have any
arrangement or understanding with any person to participate in the
distribution of the unregistered senior securities or exchange senior
securities;
o you are not an "affiliate" (as defined in Rule 405 under the
Securities Act) of Viacom or Viacom International or, if you are such
an affiliate, you will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent applicable;
o if you are a broker-dealer, you are not engaged in, and do not intend
to engage in, the distribution of exchange senior securities;
o if you are a broker-dealer, you will receive exchange senior
securities for your own account in exchange for unregistered senior
securities that were acquired as a result of market-making activities
or other trading activities and that you will deliver a prospectus in
connection with any resale of such exchange senior securities; and
o you are not acting on behalf of any person who could not truthfully
make the foregoing representations.
Holders of unregistered senior securities wishing to accept the
exchange offer must represent to us that such conditions have been met.
Each broker-dealer that receives exchange senior securities in exchange
for unregistered senior securities held for its own account, as a result of
market-making or other trading activities, must acknowledge that it will deliver
a prospectus in connection with any resale of the exchange senior securities.
The letter of transmittal states that by so acknowledging and by delivering a
prospectus, such broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. The prospectus, as it
may be amended or supplemented from time to time, may be used by such
broker-dealer in connection with resales of exchange senior securities received
in exchange for unregistered senior securities. We have agreed that, for a
period of 180 days after the expiration of the exchange offer, we will make this
prospectus and any amendment or supplement to this prospectus available to any
such broker-dealer for use in connection with any such resale.
Clearing of the Exchange Senior Securities
Upon consummation of the exchange offer, the exchange 2006 senior
securities will have different CUSIP numbers, different Common Codes and
different ISINs from those under which the Rule 144A securities have traded
(and, to the extent not tendered, will continue to trade). Upon consummation of
the exchange offer, the exchange 2010 senior securities and the exchange
debentures will have the same CUSIP numbers, Common Codes and ISINs given to our
7.70% senior notes due 2010 and our 7.875% senior debentures due 2030,
respectively, which were issued on August 1, 2000.
Regulation S senior securities not tendered for exchange will continue
to clear through Euroclear and Clearstream Luxembourg under their original
Common Codes and their ISINs will remain the same. Regulation S senior
securities (unless acquired by a manager as part of their original distribution)
may
23
now be sold in the United States or to U.S. persons and, upon any such transfer,
a beneficial interest in the Regulation S global senior securities will be able
to be exchanged for an interest in the exchange global senior security in
accordance with procedures established by Euroclear or Clearstream Luxembourg
and DTC.
Beneficial interests in the restricted Regulation S global senior
securities may be transferred to a person who takes delivery in the form of an
interest in the Regulation S global senior securities upon receipt by the
trustee of a written certification from the transferor, in the form provided in
the Indenture, to the effect that the transfer is being made in accordance with
Rule 903 or 904 of Regulation S.
We cannot predict the extent to which beneficial owners of an interest
in the Regulation S global senior securities will participate in the exchange
offer. Beneficial owners should consult their own financial advisors as to the
benefits to be obtained from exchange.
Procedures for Tendering
The term "holder" with respect to the exchange offer means any person
in whose name unregistered senior securities are registered on our books or any
other person who has obtained a properly completed bond power from the
registered holder, or any person whose unregistered senior securities are held
of record by DTC, Euroclear or Clearstream Luxembourg who desires to deliver
such unregistered senior securities by book-entry transfer at DTC, Euroclear or
Clearstream Luxembourg as the case may be.
Except in limited circumstances, only a Euroclear participant,
Clearstream Luxembourg participant or a DTC participant listed on a DTC
securities position listing with respect to the unregistered senior securities
may tender its unregistered senior securities in the exchange offer. To tender
unregistered senior securities in the exchange offer:
o holders of unregistered senior securities that are DTC participants
may follow the procedures for book-entry transfer as provided for
below under "Book-Entry Transfer" and in the letter of transmittal.
o Euroclear participants and Clearstream Luxembourg participants on
behalf of the beneficial owners of senior securities are required to
use book-entry transfer pursuant to the standard operating procedures
of Euroclear or Clearstream Luxembourg, as the case may be, which
include transmission of a computer-generated message to Euroclear or
Clearstream Luxembourg, as the case may be, in lieu of a letter of
transmittal. See the term "agent's message" under "Book-Entry
Transfer."
In addition, either:
o the exchange agent must receive any corresponding certificate or
certificates representing unregistered senior securities along with
the letter of transmittal;
o the exchange agent must receive, before expiration of the exchange
offer, a timely confirmation of book-entry transfer of unregistered
senior securities into the exchange agent's account at DTC, Euroclear
or Clearstream Luxembourg according to their respective standard
operating procedures for electronic tenders described below and a
properly transmitted agent's message described below; or
o the holder must comply with the guaranteed delivery procedures
described below.
24
The tender by a holder of unregistered senior securities will
constitute an agreement between such holder and us in accordance with the terms
and subject to the conditions set forth in this prospectus and in the letter of
transmittal. If less than all the unregistered senior securities held by a
holder of unregistered senior securities are tendered, a tendering holder should
fill in the amount of unregistered senior securities being tendered in the
specified box on the letter of transmittal. The entire amount of unregistered
senior securities delivered to the exchange agent will be deemed to have been
tendered unless otherwise indicated.
The method of delivery of unregistered senior securities, the letter of
transmittal and all other required documents or transmission of an agent's
message, as described under "Book Entry Transfer," to the exchange agent is at
the election and risk of the holder. Instead of delivery by mail, we recommend
that holders use an overnight or hand delivery service. In all cases, sufficient
time should be allowed to assure timely delivery prior to the expiration of the
exchange offer. No letter of transmittal or unregistered senior securities
should be sent to us. Delivery of documents to DTC, Euroclear or Clearstream
Luxembourg in accordance with their respective procedures will not constitute
delivery to the exchange agent.
Any beneficial holder whose unregistered senior securities are
registered in the name of his broker, dealer, commercial bank, trust company or
other nominee and who wishes to tender should contact such registered holder
promptly and instruct such registered holder to tender on his behalf. If such
beneficial holder wishes to tender on his own behalf, such beneficial holder
must, prior to completing and executing the letter of transmittal and delivering
his or her unregistered senior securities, either:
o make appropriate arrangements to register ownership of the
unregistered senior securities in such holder's name, or
o obtain a properly completed bond power from the registered holder.
The transfer of record ownership may take considerable time and may not
be completed prior to the expiration date.
Signatures on a letter of transmittal or a notice of withdrawal as
described in "-- Withdrawal of Tenders" below, as the case may be, must be
guaranteed by a member firm of a registered national securities exchange or of
the National Association of Securities Dealers, Inc., a commercial bank or trust
company having an office or correspondent in the United States or an "eligible
guarantor institution" within the meaning of Rule 17Ad-15 under the Exchange
Act, unless the unregistered senior securities tendered pursuant thereto are
tendered:
o by a registered holder who has not completed the box entitled "Special
Registration Instructions" or "Special Delivery Instructions" on the
letter of transmittal; or
o for the account of an eligible institution.
If the letter of transmittal is signed by a person other than the
registered holder of any unregistered senior securities listed therein, the
unregistered senior securities must be endorsed or accompanied by appropriate
bond powers which authorize the person to tender the unregistered senior
securities on behalf of the registered holder, in either case signed as the name
of the registered holder or holders appears on the unregistered senior
securities. If the letter of transmittal or any unregistered senior securities
or bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so
25
indicate when signing and, unless waived by us, evidence satisfactory to us of
their authority to so act must be submitted with the letter of transmittal.
We will determine in our sole discretion all the questions as to the
validity, form, eligibility (including time of receipt), acceptance and
withdrawal of the tendered unregistered senior securities. Our determinations
will be final and binding. We reserve the absolute right to reject any and all
unregistered senior securities not validly tendered or any unregistered senior
securities our acceptance of which would, in the opinion of our counsel, be
unlawful. We also reserve the absolute right to waive any irregularities or
conditions of tender as to particular unregistered senior securities. Our
interpretation of the terms and conditions of the exchange offer (including the
instructions in the letter of transmittal) will be final and binding on all
parties. Unless waived, any defects or irregularities in connection with tenders
of unregistered senior securities must be cured within such time as we will
determine. Neither we, the exchange agent nor any other person shall be under
any duty to give notification of defects or irregularities with respect to
tenders of unregistered senior securities nor shall any of them incur any
liability for failure to give such notification. Tenders of unregistered senior
securities will not be deemed to have been made until such irregularities have
been cured or waived. Any unregistered senior securities received by the
exchange agent that are not properly tendered and as to which the defects or
irregularities have not been cured or waived will be returned without cost by
the exchange agent to the tendering holder of such unregistered senior
securities unless otherwise provided in the letter of transmittal, as soon as
practicable following the expiration date of the exchange offer.
In addition, we reserve the right in our sole discretion to (a)
purchase or make offers for any unregistered senior securities that remain
outstanding subsequent to the expiration date, and (b) to the extent permitted
by applicable law, purchase unregistered senior securities in the open market,
in privately negotiated transactions or otherwise. The terms of any such
purchases or offers may differ from the terms of the exchange offer.
By signing the letter of transmittal, each tendering holder of
unregistered senior securities will represent to us that, among other things:
o any exchange senior securities to be received by the holder will be
acquired in the ordinary course of the holder's business;
o the holder is not engaged in, does not intend to engage in or have any
arrangement or understanding with any person to participate in the
distribution of the unregistered senior securities or exchange senior
securities;
o the holder is not an "affiliate" (as defined in Rule 405 under the
Securities Act) of Viacom or Viacom International or, if the holder is
such an affiliate, the holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent
applicable;
o if the holder is a broker-dealer, the holder is not engaged in, and
does not intend to engage in, the distribution of exchange senior
securities;
o if the holder is a broker-dealer, the holder will receive exchange
senior securities for the holder's own account in exchange for
unregistered senior securities that were acquired as a result of
market-making activities or other trading activities and that the
holder will deliver a prospectus in connection with any resale of such
exchange senior securities (see "Plan of Distribution" below); and
26
o the holder is not acting on behalf of any person who could not
truthfully make the foregoing representations.
Book-Entry Transfer
We understand that the exchange agent will make a request promptly
after the date of this document to establish accounts with respect to the
unregistered senior securities at DTC, Euroclear or Clearstream Luxembourg for
the purpose of facilitating the exchange offer. Any financial institution that
is a participant in DTC's system may make book-entry delivery of unregistered
senior securities by causing DTC to transfer such unregistered senior securities
into the exchange agent's DTC account in accordance with DTC's Automated Tender
Offer Program procedures for such transfer. Any participant in Euroclear or
Clearstream Luxembourg may make book-entry delivery of Regulation S unregistered
senior securities by causing Euroclear or Clearstream Luxembourg to transfer
such senior securities into the exchange agent's account in accordance with
established Euroclear or Clearstream Luxembourg procedures for transfer. The
exchange for tendered unregistered senior securities will only be made after a
timely confirmation of a book-entry transfer of the unregistered senior
securities into the exchange agent's account, and timely receipt by the exchange
agent of an agent's message.
The term "agent's message" means a message, transmitted by DTC,
Euroclear or Clearstream Luxembourg, as the case may be, and received by the
exchange agent and forming part of the confirmation of a book-entry transfer,
which states that DTC, Euroclear or Clearstream Luxembourg, as the case may be,
has received an express acknowledgment from a participant tendering unregistered
senior securities and that such participant has received an appropriate letter
of transmittal and agrees to be bound by the terms of the letter of transmittal,
and we may enforce such agreement against the participant. Delivery of an
agent's message will also constitute an acknowledgment from the tendering DTC,
Euroclear or Clearstream Luxembourg participant, as the case may be, that the
representations contained in the appropriate letter of transmittal and described
above are true and correct.
Guaranteed Delivery Procedures
Holders who wish to tender their unregistered senior securities and (i)
whose unregistered senior securities are not immediately available, or (ii) who
cannot deliver their unregistered senior securities, the letter of transmittal,
or any other required documents to the exchange agent prior to the expiration
date, or if such holder cannot complete the procedure under the respective DTC,
Euroclear or Clearstream Luxembourg standard operating procedures for electronic
tenders before expiration of the exchange offer, may tender their unregistered
senior securities if:
o the tender is made through an eligible institution;
o before expiration of the exchange offer, the exchange agent receives
from the eligible institution either a properly completed and duly
executed notice of guaranteed delivery in the form accompanying this
prospectus, by facsimile transmission, mail or hand delivery, or a
properly transmitted agent's message in lieu of notice of guaranteed
delivery:
o setting forth the name and address of the holder and the
registered number(s), the certificate number or numbers of the
unregistered senior securities tendered and the principal amount
of unregistered senior securities tendered;
o stating that the tender offer is being made by guaranteed
delivery; and
27
o guaranteeing that, within five business days after expiration of
the exchange offer, the letter of transmittal, or facsimile of
the letter of transmittal, together with the unregistered senior
securities tendered or a book-entry confirmation, and any other
documents required by the letter of transmittal will be deposited
by the eligible institution with the exchange agent; and
o the exchange agent receives the properly completed and executed letter
of transmittal, or facsimile of the letter of transmittal, as well as
all tendered unregistered senior securities in proper form for
transfer or a book-entry confirmation, and all other documents
required by the letter of transmittal, within five business days after
expiration of the exchange offer.
Upon request to the exchange agent, a notice of guaranteed delivery
will be sent to holders who wish to tender their unregistered senior securities
according to the guaranteed delivery procedures set forth above.
Withdrawal of Tenders
Except as otherwise provided herein, tenders of unregistered senior
securities may be withdrawn at any time prior to 5:00 p.m., New York City time,
on the expiration date of the exchange offer.
For a withdrawal to be effective:
o the exchange agent must receive a written notice, which may be by
telegram, telex, facsimile transmission or letter, of withdrawal at
the address set forth below under "Exchange Agent"; or
o for DTC, Euroclear or Clearstream Luxembourg participants, holders
must comply with their respective standard operating procedures for
electronic tenders and the exchange agent must receive an electronic
notice of withdrawal from DTC, Euroclear or Clearstream Luxembourg.
Any notice of withdrawal must:
o specify the name of the person who tendered the unregistered senior
securities to be withdrawn;
o identify the unregistered senior securities to be withdrawn, including
the certificate number or numbers and principal amount of the
unregistered senior securities to be withdrawn;
o be signed by the person who tendered the unregistered senior
securities in the same manner as the original signature on the letter
of transmittal, including any required signature guarantees; and
o specify the name in which the unregistered senior securities are to be
re-registered, if different from that of the withdrawing holder.
If unregistered senior securities have been tendered pursuant to the
procedure for book-entry transfer described above, any notice of withdrawal must
specify the name and number of the account at DTC, Euroclear or Clearstream
Luxembourg to be credited with the withdrawn unregistered senior
28
securities and otherwise comply with the procedures of the facility. We will
determine all questions as to the validity, form and eligibility (including time
of receipt) for such withdrawal notices, and our determination shall be final
and binding on all parties. Any unregistered senior securities so withdrawn will
be deemed not to have been validly tendered for purposes of the exchange offer
and no exchange senior securities will be issued with respect thereto unless the
unregistered senior securities so withdrawn are validly tendered. Any
unregistered senior securities which have been tendered but which are not
accepted for exchange will be returned to the holder without cost to such holder
as soon as practicable after withdrawal, rejection of tender or termination of
the exchange offer. Properly withdrawn unregistered senior securities may be
re-tendered by following the procedures described above under "Procedures for
Tendering" at any time prior to the expiration date.
Consequences of Failure to Exchange
Unregistered senior securities that are not exchanged will remain
"restricted securities" within the meaning of Rule 144(a)(3) of the Securities
Act. Accordingly, they may not be offered, sold, pledged or otherwise
transferred, except:
o to us or to any of our subsidiaries,
o inside the United States to a qualified institutional buyer in
compliance with Rule 144A,
o inside the United States to an institutional accredited investor that,
prior to such transfer, furnishes to the trustee a signed letter
containing certain representations and agreements relating to the
restrictions on transfer of the unregistered senior securities, the
form of which you can obtain from the trustee, and, at our request, an
opinion of counsel acceptable to us that the transfer complies with
the Securities Act,
o outside the United States in compliance with Rule 904 under the
Securities Act,
o pursuant to the exemption from registration provided by Rule 144 under
the Securities Act, if available, or
o pursuant to an effective registration statement under the Securities
Act.
The liquidity of the unregistered senior securities could be adversely
affected by the exchange offer. Following the consummation of the exchange
offer, holders of unregistered senior securities will have no further
registration rights under the registration rights agreement.
Exchange Agent
Citibank, N.A. has been appointed as the principal exchange agent and
Kredietbank S.A. Luxembourgeoise has been appointed as the Luxembourg exchange
agent for the exchange of the unregistered senior securities. In its capacity as
Luxembourg exchange agent, Kredietbank will act solely as an intermediary
between holders of unregistered senior securities wishing to accept the exchange
offer and the principal exchange agent. Kredietbank will forward the tenders it
receives to the principal exchange agent. Questions and requests for assistance
relating to the exchange of the unregistered senior securities should be
directed to the exchange agents addressed as follows:
By Mail or Hand Delivery:
Citibank N.A. Kredietbank S.A. Luxembourgeoise
29
111 Wall Street, 5th Floor 43, Boulevard Royal
New York, New York 10005 L-2955 Luxembourg
Facsimile Transmission: Facsimile Transmission:
(212) 825-3483 (352) 47 97 73 951
Confirm by Telephone: Confirm by Telephone:
(800) 422-2066 (352) 47 97 3933
Fees and Expenses
We will bear the expenses of soliciting tenders pursuant to the
exchange offer. The principal solicitation for tenders pursuant to the exchange
offer is being made by mail. Additional solicitations may be made by our
officers and regular employees and our affiliates in person, by telegraph or
telephone.
We will not make any payments to brokers, dealers or other persons
soliciting acceptances of the exchange offer. We, however, will pay the exchange
agent reasonable and customary fees for its services and will reimburse the
exchange agent for its related reasonable out-of-pocket expenses and accounting
and legal fees. We may also pay brokerage houses and other custodians, nominees
and fiduciaries the reasonable out-of-pocket expenses incurred by them in
forwarding copies of this prospectus, letters of transmittal and related
documents to the beneficial owners of the unregistered senior securities and in
handling or forwarding tenders for exchange.
We will pay all transfer taxes, if any, applicable to the exchange of
unregistered senior securities pursuant to the exchange offer. The tendering
holder, however, will be required to pay any transfer taxes whether imposed on
the registered holder or any other person, if:
o certificates representing exchange senior securities or unregistered
senior securities for principal amounts not tendered or accepted for
exchange are to be delivered to, or are to be registered or issued in
the name of, any person other than the registered holder of
unregistered senior securities tendered;
o tendered unregistered senior securities are registered in the name of
any person other than the person signing the letter of transmittal; or
o a transfer tax is imposed for any reason other than the exchange of
unregistered senior securities under the exchange offer.
If satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the letter of transmittal, the amount of such
transfer taxes will be billed directly to such tendering holder.
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DESCRIPTION OF SENIOR SECURITIES
Whenever we refer in this prospectus to the senior notes due 2006
issued on January 17, 2001, the senior notes due 2010 issued on January 17,
2001, or the senior debentures due 2030 issued on January 17, 2001, we will
refer to them as the "unregistered 2006 senior notes", the "unregistered 2010
senior notes", or the "unregistered senior debentures", respectively. Whenever
we refer collectively in this prospectus to the unregistered 2006 senior notes,
the unregistered 2010 senior notes and the unregistered senior debentures, we
will refer to them as the "unregistered senior securities". Whenever we refer in
this prospectus to the new senior notes due 2006, the new senior notes due 2010
or the new senior debentures due 2030, we will refer to them as the "exchange
2006 senior notes", the "exchange 2010 senior notes" or the "exchange senior
debentures", respectively. Whenever we refer collectively in this prospectus to
the exchange 2006 senior securities, the exchange 2010 senior securities and the
exchange senior debentures, we will refer to them as the "exchange senior
securities". The unregistered 2006 senior notes and the exchange 2006 senior
notes are collectively referred to as the "2006 senior notes"; the unregistered
2010 senior notes and the exchange 2010 senior notes are collectively referred
to as the "2010 senior notes"; the unregistered senior debentures and the
exchange senior debentures are collectively referred to as the "senior
debentures"; and the unregistered senior securities and the exchange senior
securities are collectively referred to as the "senior securities".
General
We issued the unregistered senior securities and will issue the
exchange senior securities under the Indenture, dated as of May 15, 1995, among
us, our wholly owned subsidiary, Viacom International, as guarantor, and
Citibank, N.A., as successor to State Street Bank and Trust Company and The
First National Bank of Boston, Trustee. The Indenture was supplemented by the
First Supplemental Indenture, dated as of May 24, 1995, was supplemented and
amended by the Second Supplemental Indenture and Amendment No. 1, dated as of
December 15, 1995, was supplemented by the Third Supplemental Indenture, dated
as of July 22, 1996, was supplemented by the Fourth Supplemental Indenture,
dated as of August 1, 2000, and, in connection with the unregistered senior
securities, was supplemented by a Fifth Supplemental Indenture, dated January
17, 2001. We refer to the Indenture, as so supplemented and amended, as the
"Indenture".
The terms of the exchange senior securities to be issued are
substantially similar to the unregistered senior securities, except that the
exchange senior securities have been registered under the Securities Act of
1933, the certificates for the exchange senior securities will not bear legends
restricting their transfer and the exchange senior securities will not have
registration rights or any rights to additional interest.
The senior securities initially are limited to $1,650,000,000 principal
amount, consisting of $400,000,000 principal amount of senior notes due 2006,
$500,000,000 principal amount of senior notes due 2010 and $750,000,000
principal amount of senior debentures due 2030. The unregistered 2010 senior
notes and the unregistered senior debentures will be, upon their exchange for
exchange 2010 senior notes or exchange senior debentures registered under the
Securities Act, further issuances of our 7.70% senior notes due 2010,
$1,150,000,000 of which were issued on August 1, 2000, and our 7.875% senior
debentures due 2030, $500,000,000 of which were issued on August 1, 2000.
Each exchange senior security will bear interest at the applicable
annual rate noted on the cover page of this prospectus. Interest will be payable
on the exchange senior securities on January 30 and July 30 of each year
beginning January 30, 2001, except that there will be no January 30, 2001
interest payment date for any exchange 2006 senior notes. Holders of
unregistered senior securities that are
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accepted for exchange will be deemed to have waived the right to receive any
payment in respect of interest accrued from the date of the last interest
payment date that was made in respect of the unregistered senior securities
until the date of the issuance of the exchange senior securities. Interest will
be computed on the basis of a 360-day year of 30-day months. Consequently,
holders who exchange their unregistered senior securities will receive the same
interest payments they would have received had they not accepted the exchange
offer. Interest on the exchange senior securities will accrue from and including
the settlement date and will be paid to holders of record on the July 15 or
January 15 immediately before the interest payment date.
The 2006 senior notes will mature on January 30, 2006. The 2010 senior
notes will mature on July 30, 2010. The senior debentures will mature on July
30, 2030. On the maturity dates of the senior securities, the holders will be
entitled to receive 100% of the principal amount of the applicable exchange
senior securities. We may redeem the 2010 senior notes and the senior debentures
at any time at their principal amount, plus the applicable premium and accrued
interest. The senior securities do not provide for any sinking fund.
The senior securities are issued in denominations of not less than
$1,000 and integral multiples thereof.
The senior securities are unsecured obligations of Viacom. The senior
securities rank senior to debt of Viacom that is subordinated to the exchange
senior securities and rank equally with debt of Viacom that is not subordinated
to the senior securities. The guarantees are unsecured obligations of Viacom
International. The guarantees rank senior to debt of Viacom International that
is subordinated to the guarantees and rank equally with debt of Viacom
International that is not subordinated to the guarantees. The senior securities
effectively will be junior to all liabilities of Viacom's subsidiaries except
Viacom International and all secured debt of Viacom and its subsidiaries.
As of September 30, 2000, our subsidiaries, other than Viacom
International, had approximately $12.0 billion of indebtedness outstanding. This
indebtedness was primarily incurred by Infinity and its subsidiaries and
Blockbuster. Viacom, the issuer of the senior securities, owns several operating
subsidiaries, including Viacom International, the guarantor of the senior
securities, Infinity and Blockbuster. Viacom International is a wholly owned
subsidiary of Viacom, with approximately $840 million of indebtedness
outstanding as of September 30, 2000.
Guarantees
Viacom International will unconditionally guarantee the due and
punctual payment of the principal of, premium, if any, and any interest on the
senior securities when and as the same shall become due and payable, whether at
maturity, upon redemption, upon acceleration or otherwise. The guarantees of the
senior securities will be endorsed on the senior securities.
The Indenture provides that in the event that the guarantees 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
Viacom International under the guarantees 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. Application of
this clause could limit the amount which holders of senior securities may be
entitled to collect under the guarantees. Holders, by their acceptance of the
senior securities, will have agreed to such limitations. See "Risk Factors --
Fraudulent Conveyance Considerations."
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The guarantees represent unsecured obligations of Viacom International
and rank equal to the other unsecured obligations of Viacom International which
are not subordinated to the guarantees.
Optional Redemption
Prior to maturity, we may redeem the 2010 senior notes and the senior
debentures at any time, at our option, in whole or in part, on not less than 30
nor more than 60 days' prior notice, prior to their maturity at a redemption
price equal to the sum of their principal amount, the Make-Whole Amount
described below and any accrued and unpaid interest to the date of redemption.
Holders of record on a record date that is on or prior to a redemption date will
be entitled to receive interest due on the interest payment date.
The term "Make-Whole Amount" means, the excess, if any, of (i) the
aggregate present value as of the date of the redemption of principal being
redeemed and the amount of interest (exclusive of interest accrued to the date
of redemption) that would have been payable if redemption had not been made,
determined by discounting, on a semiannual basis, the remaining principal and
interest at the Reinvestment Rate described below (determined on the third
business day preceding the date notice of redemption is given) from the dates on
which the principal and interest would have been payable if the redemption had
not been made, to the date of redemption, over (ii) the aggregate principal
amount of the exchange 2010 senior notes or the exchange senior debentures being
redeemed.
The term "Reinvestment Rate" means 0.25% for the exchange 2010 senior
notes and 0.35% for the exchange senior debentures, in each case plus the
arithmetic mean of the yields under the heading" Week Ending" published in the
most recent Federal Reserve Statistical Release H.15 under the caption "Treasury
Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity, as of the payment date of the
principal being redeemed or paid. If no maturity exactly corresponds to the
maturity, yields for the two published maturities most closely corresponding to
the maturity would be so calculated and the Reinvestment Rate would be
interpolated or extrapolated on a straight-line basis, rounding to the nearest
month. The most recent Federal Reserve Statistical Release H.15 published prior
to the date of determination of the Make-Whole Amount will be used for purposes
of calculating the Reinvestment Rate.
The Make-Whole Amount will be calculated by an independent investment
banking institution of national standing appointed by us. If we fail to make the
appointment at least 45 business days prior to the date of redemption, or if the
institution is unwilling or unable to make the calculation, the calculation will
be made by an independent investment banking institution of national standing
appointed by the Trustee. If the Reinvestment Rate is not available as described
above, the Reinvestment Rate will be calculated by interpolation or
extrapolation of comparable rates selected by the independent investment banking
institution.
In the case of any partial redemption, selection of the 2010 senior
notes or the senior debentures for redemption will be made by the Trustee in
compliance with the requirements of the principal U.S. national securities
exchange, if any, on which the 2010 senior notes or the exchange senior
debentures are listed or, if they are not listed on a U.S. national securities
exchange, by lot or by such other method as the Trustee in its sole discretion
deems to be fair and appropriate. The Luxembourg Stock Exchange has no such
requirements.
Further Issues
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We may from time to time without notice to, or the consent of, the
holders of a series of senior securities, create and issue further senior
securities of the same series, equal in rank to the senior securities in all
respects (or in all respects except for the payment of interest accruing prior
to the issue date of the new securities or except for the first payment of
interest following the issue date of the new securities) so that the new
securities may be consolidated and form a single series with the relevant series
of senior securities and have the same terms as to status, redemption or
otherwise as the relevant series of senior securities. In the event that we
issue additional senior securities of the same series, we will prepare a new
prospectus and make a new application to list such securities on the Luxembourg
Stock Exchange.
Payment of Additional Amounts
We will, subject to the exceptions and limitations set forth below, pay
as additional interest on the senior securities, such additional amounts as are
necessary in order that the net payment by us or a paying agent of the principal
of and interest on the senior securities to a holder who is a non-United States
person (as defined under this heading below), after deduction for any present or
future tax, assessment or other governmental charge of the United States or a
political subdivision or taxing authority thereof or therein, imposed by
withholding with respect to the payment, will not be less than the amount
provided in the series of senior securities to be then due and payable;
provided, however, that the foregoing obligation to pay additional amounts shall
not apply:
(1) to any tax, assessment or other governmental charge that is
imposed or withheld solely by reason of the holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the holder if the holder is
an estate, trust, partnership or corporation, or a person holding a power
over an estate or trust administered by a fiduciary holder, being
considered as:
(a) being or having been present or engaged in a trade or
business in the United States or having or having had a permanent
establishment in the United States;
(b) having a current or former relationship with the United
States, including a relationship as a citizen or resident thereof;
(c) being or having been a foreign or domestic personal holding
company, a passive foreign investment company or a controlled foreign
corporation with respect to the United States or a corporation that
has accumulated earnings to avoid United States federal income tax;
(d) being or having been a "10-percent shareholder" of ours as
defined in Section 871(h)(3) of the Code (as defined in "United States
Tax Considerations") or any successor provision; or
(e) being a bank receiving payments on an extension of credit
made pursuant to a loan agreement entered into in the ordinary course
of its trade or business;
(2) to any holder that is not the sole beneficial owner of a senior
security, or a portion thereof, or that is a fiduciary or partnership, but
only to the extent that a beneficiary or settlor with respect to the
fiduciary, a beneficial owner or member of the partnership would not have
been entitled to the payment of an additional amount had the beneficiary,
settlor, beneficial owner or member received directly its beneficial or
distributive share of the payment;
(3) to any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure of the holder or any other
person to comply with certification, identification or information
reporting requirements concerning the nationality, residence, identity or
connection with the United States, or otherwise with respect to the status,
of the holder
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or beneficial owner of such senior security (or any beneficiary, settlor,
beneficial owner or member thereof), if compliance is required by statute,
by regulation of the United States Treasury Department or by an applicable
income tax treaty to which the United States is a party, or by any official
interpretation or ruling promulgated pursuant to any of the foregoing, as a
precondition to exemption from such tax, assessment or other governmental
charge;
(4) to any tax, assessment or other governmental charge that is
imposed otherwise than by withholding by us or a paying agent from the
payment;
(5) to any tax, assessment or other governmental charge that is
imposed or withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes effective more than
15 days after the payment becomes due or is duly provided for, whichever
occurs later;
(6) to any estate, inheritance, gift, sales, excise, transfer, wealth
or personal property tax or similar tax, assessment or other governmental
charge;
(7) to any tax, assessment or other governmental charge required to be
withheld by any paying agent from any payment of principal of or interest
on any senior security, if such payment can be made without such
withholding by any other paying agent; or
(8) in the case of any combination of items (1), (2), (3), (4), (5),
(6) and (7).
The senior securities are subject in all cases to any tax, fiscal or
other law or regulation or administrative or judicial interpretation applicable
thereto. Except as specifically provided under this heading "-- Payment of
Additional Amounts" and under the heading "-- Redemption for Tax Reasons," we
shall not be required to make any payment with respect to any tax, assessment or
other governmental charge imposed by any government or a political subdivision
or taxing authority thereof or therein.
As used under this heading, "--Payment of Additional Amounts," and
under the headings, "--Redemption for Tax Reasons" and "United States Tax
Considerations," the terms "United States" and "U.S." mean the United States of
America (including the States thereof and the District of Columbia) and its
territories, its possessions and other areas subject to its jurisdiction, and
the term "United States person" means any individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States, any State
thereof or the District of Columbia (other than a partnership that is not
treated as a United States person under any applicable United States Treasury
regulations), any estate the income of which is subject to United States federal
income taxation regardless of its source, or any trust if a court within the
United States is able to exercise primary supervision over the administration of
the trust and one or more United States persons have the authority to control
all substantial decisions of the trust. Notwithstanding the preceding sentence,
to the extent provided in the Treasury regulations, certain trusts in existence
on August 20, 1996, and treated as United States persons prior to such date that
elect to continue to be treated as United States persons, will also be United
States persons. A "non-United States person" means a person who is not a United
States person.
Redemption for Tax Reasons
If, as a result of any change in, or amendment to, the laws (or any
regulations or rulings promulgated thereunder) of the United States (or any
political subdivision or taxing authority thereof or therein), or any change in,
or amendments to, an official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
is announced or becomes
35
effective on or after the date of this prospectus, we become or, based upon a
written opinion of independent counsel selected by us, will become obligated to
pay additional amounts as described herein under the heading "Payment of
Additional Amounts" with respect to a series of senior securities, we may, at
our option, redeem, as a whole, but not in part, the relevant series of senior
securities on not less than 30 nor more than 60 days' prior notice, at a
redemption price equal to 100% of their principal amount together with interest
accrued but unpaid thereon to the date fixed for redemption.
Merger, Consolidation or Sale of Assets
Under the terms of the Indenture, we and Viacom International generally
would be permitted to consolidate or merge with another corporation. We and
Viacom International would also be permitted to sell all or substantially all of
our assets to another person. However, neither we nor Viacom International may
take any of these actions unless all the following conditions are met:
(1) the merger, consolidation or sale of assets must not cause an
Event of Default. See "-- Defaults and Remedies" below. An Event of Default
for this purpose would also include any event that would be an Event of
Default if the notice or time requirements were disregarded;
(2) the person we would merge or consolidate with or sell all or
substantially all of our assets to must be organized under the laws of the
United States or any state thereof;
(3) the person we would merge or consolidate with or sell all or
substantially all of our assets to must agree to be legally responsible for
the outstanding securities issued under the Indenture; and
(4) we or Viacom International must deliver specified certificates and
documents to the trustee.
We and Viacom International may merge or consolidate with, or sell all
or substantially all of our assets to each other or any of our Subsidiaries.
When we make reference in this section to the sale of " all or substantially all
of our assets," we mean property and assets generating revenues representing, in
the aggregate, at least 80% of our total consolidated revenues.
Limitations on Liens
We covenant in the Indenture that we will not create, assume or permit
any Lien on any of our properties or assets, unless we secure the senior
securities at least equally and ratably to the secured Indebtedness. The
foregoing only applies to Liens that in the aggregate exceed 15% of our total
consolidated assets, reduced by the Attributable Debt related to any permitted
sale leaseback arrangement. See "-- Limitations on Sale and Leaseback
Transactions" below. The restrictions do not apply to Capitalized Leases or
Indebtedness that is secured by:
(1) Liens existing, in the case of the unregistered 2006 senior notes
and the exchange 2006 senior notes, on the date the unregistered 2006
senior notes are issued, and in the case of the unregistered 2010 senior
notes, the exchange 2010 senior notes, and the unregistered senior
debentures and the exchange senior debentures, on August 1, 2000;
(2) Liens on any property or any Indebtedness of a person existing at
the time the person becomes a Subsidiary (whether by acquisition, merger or
consolidation);
(3) Liens in favor of us or our Subsidiaries; and
(4) Liens existing at the time of acquisition of the assets secured
thereby and purchase money Liens.
The restrictions do not apply to extensions, renewals or replacements
of any of the foregoing types of Liens.
Limitations on Sale and Leaseback Transactions
We covenant in the Indenture that neither we nor any Restricted
Subsidiary will enter into any arrangement with any person to lease a Principal
Property (except for any arrangements that exist, in the case of the 2006 senior
notes, on the date the senior notes are issued, and in the case of the 2010
senior notes and the senior debentures, on August 1, 2000; or that exist at the
time any person that owns a Principal Property becomes a Restricted Subsidiary)
which has been or is to be sold by us or the Restricted Subsidiary to the Person
unless:
(1) the sale and leaseback arrangement involves a lease for a term of
not more than three years;
(2) the sale and leaseback arrangement is entered into between us and
any Subsidiary or between our Subsidiaries;
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(3) we or the Restricted Subsidiary would be entitled to incur
indebtedness secured by a Lien on the Principal Property at least equal in
amount to the Attributable Debt permitted pursuant to the first paragraph
under "Limitations on Liens" without having to secure equally and ratably
the senior securities;
(4) the proceeds of the sale and leaseback arrangement are at least
equal to the fair market value (as determined by our Board of Directors in
good faith) of the property and we apply within 180 days after the sale an
amount equal to the greater of the net proceeds of the sale or the
Attributable Debt associated with the property to (i) the retirement of
long-term debt for borrowed money that is not subordinated to the senior
securities and that is not debt to us or a Subsidiary, or (ii) the purchase
or development of other comparable property; or
(5) the sale and leaseback arrangement is entered into within 180 days
after the initial acquisition of the Principal Property subject to the sale
and leaseback arrangement.
The term "Attributable Debt," with regard to a sale and leaseback
arrangement of a Principal Property, is defined in the Indenture as an amount
equal to the lesser of: (a) the fair market value of the property (as determined
in good faith by our Board of Directors); and (b) the present value of the total
net amount of rent payments to be made under the lease during its remaining
term, discounted at the rate of interest set forth or implicit in the terms of
the lease, compounded semi-annually. The calculation of the present value of the
total net amount of rent payments is subject to adjustments specified in the
Indenture.
The term "Principal Property" is defined in the Indenture to include
any parcel of our or our Restricted Subsidiaries' real property and related
fixtures or improvements located in the United States, the aggregate book value
of which on the date of determination exceeds $1.0 billion. The term "Principal
Property" does not include any telecommunications equipment or parcels of real
property and related fixtures or improvements which are determined in good faith
by our Board of Directors, not to be of
37
material importance to our and our Subsidiaries' total business. As of the date
of this prospectus, neither we nor any of our Subsidiaries own any Principal
Property.
Defaults and Remedies
You have specified rights if an Event of Default occurs in respect of
the senior securities of your series, as described below.
The term "Event of Default" in respect of the senior securities of your
series means any of the following:
(1) we do not pay interest on a senior security of such series within
30 days of its due date;
(2) we do not pay the principal of or any premium on a senior security
of such series on its due date;
(3) we remain in breach of a covenant or warranty in respect of the
Indenture for 60 days after we receive a written notice of default. The
notice must be sent by either the trustee or holders of at least 25% in
principal amount of a series of outstanding senior securities;
(4) we are in default under agreements under which we have
Indebtedness outstanding in excess of $250 million in the aggregate and
which Indebtedness is due either at maturity or has been declared due prior
to maturity and remains unpaid;
(5) we fail to pay a money judgment in excess of $250 million for a
period of 60 days after it becomes final and not subject to further appeal;
or
(6) we or Viacom International file for bankruptcy, or other specified
events of bankruptcy, insolvency or reorganization occur.
If an Event of Default has occurred, the trustee or the holders of at
least 25% in principal amount of the senior securities of the affected series
may declare the entire principal amount and premium, if any, and all the accrued
interest on, the senior securities of that series to be due and immediately
payable. This is called a declaration of acceleration of maturity. There is no
action on the part of the trustee or any holder of senior securities required
for such declaration if the Event of Default is a bankruptcy, insolvency or
reorganization.
Holders of a majority in principal amount of the senior securities of a
series may also waive certain past defaults under the Indenture on behalf of all
of the holders of such series of senior securities. A declaration of
acceleration of maturity may be canceled, under specified circumstances, by the
holders of at least a majority in principal amount of a series of senior
securities.
Except in cases of default, where the trustee has special duties, the
trustee is not required to take any action under the Indenture at the request of
holders unless the holders offer the trustee reasonable protection from expenses
and liability satisfactory to the trustee. If a reasonable indemnity is
provided, the holders of a majority in principal amount of a series of senior
securities may direct the time, method and place of conducting any lawsuit or
other formal legal action seeking any remedy available to the trustee. The
trustee may refuse to follow those directions in specified circumstances. No
delay or omission in exercising any right or remedy will be treated as a waiver
of the right, remedy or Event of Default.
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Before holders are allowed to bypass the trustee and bring a lawsuit or
other formal legal action or take other steps to enforce their rights or protect
their interests relating to the senior securities, the following must occur:
o holders must give the trustee written notice that an Event of Default
has occurred and remains uncured;
o holders of at least 25% in principal amount of the outstanding senior
securities of a series must make a written request that the trustee
take action because of the default and must offer the trustee
indemnity satisfactory to the trustee against the cost and other
liabilities of taking that action;
o The trustee must have failed to take action for 60 days after receipt
of the notice and offer of indemnity; and
o holders of a majority in principal amount of the senior securities of
a series must not have given the trustee a direction inconsistent with
the above notice.
However, you are entitled at any time to bring a lawsuit for the
payment of money due on your senior securities on or after the due date.
We are required to furnish to the trustee an annual statement as to our
performance of our obligations under the Indenture and as to any default in such
performance. We are also required to notify the trustee of any event that is, or
after notice or lapse of time or both would become, an Event of Default.
Book Entry, Delivery and Form
Each series of senior securities will be issued in one or more fully
registered global securities which will be deposited with, or on behalf of, The
Depository Trust Company, New York, New York (the "Depository") and registered
in the name of Cede & Co., the Depository's nominee. We will not issue senior
securities in certificated form. Beneficial interests in the global securities
will be represented through book-entry accounts of financial institutions acting
on behalf of beneficial owners as direct and indirect participants in the
Depository (the "Depository Participants"). Investors may elect to hold
interests in the global securities through either the Depository (in the United
States), or Clearstream Luxembourg or Euroclear (in Europe) if they are
participants of those systems, or, indirectly, through organizations that are
participants in those systems. Clearstream Luxembourg and Euroclear will hold
interests on behalf of their participants through customers' securities accounts
in Clearstream Luxembourg's and Euroclear's names on the books of their
respective depositaries, which in turn will hold such interests in customers'
securities accounts in the depositaries' names on the books of the Depository.
At the present time, Citibank, N.A. acts as U.S. depositary for Clearstream
Luxembourg and The Chase Manhattan Bank acts as U.S. depositary for Euroclear
(the "U.S. Depositaries"). Beneficial interests in the global securities will be
held in denominations of $1,000 and integral multiples thereof. Except as set
forth below, the global securities may be transferred, in whole but not in part,
only to another nominee of the Depository or to a successor of the Depository or
its nominee. Clearstream Luxembourg has advised us that it is incorporated under
the laws of Luxembourg as a professional depositary. Clearstream Luxembourg
holds securities for its participating organizations ("Clearstream Luxembourg
Participants") and facilitates the clearance and settlement of securities
transactions between Clearstream Luxembourg Participants through electronic
book-entry changes in accounts of Clearstream Luxembourg Participants, thereby
eliminating the need for physical movement of certificates.
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Clearstream Luxembourg provides to Clearstream Luxembourg Participants,
among other things, services for safekeeping, administration, clearance and
settlement of internationally traded securities and securities lending and
borrowing. Clearstream Luxembourg interfaces with domestic markets in several
countries. As a professional depositary, Clearstream Luxembourg is subject to
regulation by the Luxembourg Monetary Institute. Clearstream Luxembourg
Participants are recognized financial institutions around the world, including
underwriters, securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations and may include the initial
purchasers or their affiliates. Indirect access to Clearstream Luxembourg is
also available to others, such as banks, brokers, dealers and trust companies
that clear through, or maintain a custodial relationship with, a Clearstream
Luxembourg Participant either directly or indirectly.
Distributions with respect to each series of senior securities held
beneficially through Clearstream Luxembourg will be credited to cash accounts of
Clearstream Luxembourg Participants in accordance with its rules and procedures,
to the extent received by the U.S. Depositary for Clearstream Luxembourg.
Euroclear has advised us that it was created in 1968 to hold securities
for participants of Euroclear ("Euroclear Participants") and to clear and settle
transactions between Euroclear Participants through simultaneous electronic
book-entry delivery against payment, thereby eliminating the need for physical
movement of certificates and any risk from lack of simultaneous transfers of
securities and cash. Euroclear includes various other services, including
securities lending and borrowing and interfaces with domestic markets in several
countries. Euroclear is operated by the Brussels, Belgium office of Morgan
Guaranty Trust Company of New York (the "Euroclear Operator"), under contract
with Euroclear Clearance Systems S.C., a Belgian cooperative corporation (the
"Cooperative"). All operations are conducted by the Euroclear Operator, and all
Euroclear securities clearance accounts and Euroclear cash accounts are accounts
with the Euroclear Operator, not the Cooperative. The Cooperative establishes
policy for Euroclear on behalf of Euroclear Participants. Euroclear Participants
include banks (including central banks), securities brokers and dealers and
other professional financial intermediaries and may include the initial
purchasers or their affiliates. Indirect access to Euroclear is also available
to other firms that clear through or maintain a custodial relationship with a
Euroclear Participant, either directly or indirectly. The Euroclear Operator is
the Belgian branch of a New York banking corporation, which is a member bank of
the Federal Reserve System. As such, it is regulated and examined by the Board
of Governors of the Federal Reserve System, the New York State Banking
Department and the Belgian Banking Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear System, and applicable Belgian
law (the "Terms and Conditions"). The Terms and Conditions govern transfers of
securities and cash within Euroclear, withdrawals of securities and cash from
Euroclear, and receipts of payments with respect to securities in Euroclear. All
securities in Euroclear are held on a fungible basis without attribution of
specific certificates to specific securities clearance accounts. The Euroclear
Operator acts under the Terms and Conditions only on behalf of Euroclear
Participants, and has no record of, or relationship with, persons holding
through Euroclear Participants.
Distributions with respect to each series of senior securities held
beneficially through Euroclear will be credited to the cash accounts of
Euroclear Participants in accordance with the Terms and Conditions, to the
extent received by the U.S. Depositary for Euroclear.
Global Clearance and Settlement Procedures
Secondary market trading between Depository Participants will occur in
the ordinary way in accordance with the Depository's rules and will be settled
in immediately available funds using the
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Depository's Same-Day Funds Settlement System. Secondary market trading between
Clearstream Luxembourg Participants and Euroclear Participants will occur in the
ordinary way in accordance with the applicable rules and operating procedures of
Clearstream Luxembourg and Euroclear and will be settled using the procedures
applicable to conventional eurobonds in immediately available funds.
Cross-market transfers between persons holding directly or indirectly
through the Depository on the one hand, and directly or indirectly through
Clearstream Luxembourg or Euroclear Participants, on the other, will be effected
within the Depository in accordance with the Depository's rules on behalf of the
relevant European international clearing system by its U.S. Depository; however,
such cross-market transactions will require delivery of instructions to the
relevant European international clearing system by the counterparty in such
system in accordance with its rules and procedures and within its established
deadlines (European time).
The relevant European international clearing system will, if the
transaction meets its settlement requirements, deliver instructions to its U.S.
Depositary to take action to effect final settlement on its behalf by delivering
or receiving senior securities in the Depository, and making or receiving
payment in accordance with normal procedures for same-day funds settlement
applicable to the Depository. Clearstream Luxembourg Participants and Euroclear
Participants may not deliver instructions directly to their respective U.S.
Depositaries.
Because of time-zone differences, credits of senior securities received
in Clearstream Luxembourg or Euroclear as a result of a transaction with a
Depository Participants will be made during subsequent securities settlement
processing and dated the business day following the Depository settlement date.
Such credits, or any transactions in the senior securities settled during such
processing, will be reported to the relevant Euroclear Participants or
Clearstream Luxembourg Participants on that business day. Cash received in
Clearstream Luxembourg or Euroclear as a result of sales of senior securities by
or through a Clearstream Luxembourg Participant or a Euroclear Participant to a
Depository Participant will be received with value on the business day of
settlement in the Depository but will be available in the relevant Clearstream
Luxembourg or Euroclear cash account only as of the business day following
settlement in the Depository.
Although the Depository, Clearstream Luxembourg and Euroclear have
agreed to the foregoing procedures in order to facilitate transfers of
securities among participants of the Depository, Clearstream Luxembourg and
Euroclear, they are under no obligation to perform or continue to perform such
procedures and they may discontinue the procedures at any time.
Payment and Paying Agents
Principal of, premium, if any, and interest on the senior securities
will be payable, subject to any applicable laws and regulations, at the office
of our paying agent or paying agents that we may designate from time to time,
except that at our option, payment of interest may be made by check mailed to
the address of the person entitled thereto at the address in the security
register. We will pay interest on the senior securities on any interest payment
date to the person in whose name the senior security (or predecessor senior
security) is registered at the close of business on the regular record date for
such interest.
The corporate trust office of the trustee will be designated as our
paying agent for payments with respect to the senior securities of each series.
We may at any time designate additional paying agents or rescind the designation
of any paying agent or approve a change in the office through which any paying
agent acts, except that we will be required to maintain a paying agent in each
place of payment for the series.
41
Any money paid by us or Viacom International, as guarantor, to a paying
agent for the payment of the principal of, premium, if any, or interest on any
senior security of any series that remains unclaimed at the end of two years
after such principal, premium or interest has become due and payable will be
repaid to us or Viacom International, as guarantor, as the case may be, and the
holder of such senior security may thereafter look only to us and Viacom
International for that payment.
Meetings, Modification and Waiver
Modifications and amendments of the Indenture may be made by us, Viacom
International, as guarantor, and the trustee with the consent of the holders of
not less than a majority in aggregate principal amount of the outstanding senior
securities of each series affected by such modification or amendment; provided,
however, that no such modification or amendment may, without the consent of the
holders of each outstanding senior security affected thereby, (a) change the
stated maturity of the principal of, or any installment of principal of or
interest on, any senior security or the terms of any sinking fund or analogous
payment with respect to any senior security, (b) reduce the principal amount of,
or premium or interest on, any senior security, (c) change our obligation to pay
additional amounts, (d) reduce the amount of principal of an original issue
discount senior security payable upon acceleration of the maturity thereof or
provable in bankruptcy, (e) change the place of payment where, or the coin or
currency in which, any senior security or any premium or interest thereon is
payable, (f) impair the right to institute suit for the enforcement of any
payment on or with respect to any senior security, (g) reduce the percentage in
principal amount of outstanding senior securities of any series, the consent of
whose holders is required for modification or amendment of the Indenture or for
waiver of compliance with certain provisions of the Indenture or for waiver of
certain defaults, (h) reduce the requirements contained in the Indenture for
quorum or voting, (i) change our obligation to maintain an office or agency in
the places and for the purposes required by the Indenture, or (j) reduce the
obligations of Viacom International, if any, in respect of the due and punctual
payment of any principal of, premium or interest on any senior security or any
additional amounts in respect thereof.
The holders of at least a majority in aggregate principal amount of the
outstanding senior securities of a series may, on behalf of the holders of all
the senior securities of that series, waive, insofar as that series is
concerned, our compliance with specified provisions of the Indenture. The
holders of not less than a majority in aggregate principal amount of the
outstanding senior securities of a series may, on behalf of all holders of
senior securities of that series, waive any past default under the Indenture
with respect to senior securities of that series, except a default (a) in the
payment of principal of or any premium or interest on any senior security of
such series or (b) in respect of any other provision of the Indenture that
cannot be modified or amended without the consent of the holder of each
outstanding senior security of such series affected thereby.
The Indenture provides that, in determining whether the holders of the
requisite principal amount of the outstanding senior securities have given any
request, demand, authorization, direction, notice, consent or waiver thereunder
or are present at a meeting of holders of senior securities for quorum purposes,
the principal amount of an original issue discount senior security that shall be
deemed to be outstanding shall be the amount that would be due and payable as of
the date of such determination upon acceleration of the maturity thereof.
The Indenture contains provisions for convening meetings of the holders
of senior securities of any or all series. A meeting may be called at any time
by the trustee, and also, upon request, by us or the holders of at least 33 1/3%
in aggregate principal amount of the outstanding senior securities of such
series, in any such case upon notice given in accordance with "Notices" below.
Except for any consent that must be given by the holder of each outstanding
senior security affected thereby, as described above, any resolution presented
at a meeting or adjourned meeting at which a quorum is present may be adopted
42
by the affirmative vote of the holders of a majority in principal amount of the
outstanding senior securities of that series; provided, however, that, except
for any consent that must be given by the holder of each outstanding senior
security affected thereby, as described above, any resolution with respect to
any consent, waiver, request, demand, notice, authorization, direction or other
action that may be made, given or taken by the holders of not less than a
specified percentage in principal amount of the outstanding senior securities of
a series may be adopted at a meeting or an adjourned meeting at which a quorum
is present only by the affirmative vote of the holders of not less than such
specified percentage in principal amount of the outstanding senior securities of
that series.
Any resolution passed or decision taken at any meeting of holders of
senior securities of any series duly held in accordance with the Indenture will
be binding on all holders of senior securities of that series. The quorum at any
meeting called to adopt a resolution, and at any adjourned meeting, will be
persons holding or representing a majority in principal amount of the
outstanding senior securities of a series; provided, however, that, if any
action is to be taken at such meeting with respect to a consent, waiver,
request, demand, notice, authorization, direction or other action that may be
given by the holders of not less than a specified percentage in principal amount
of the outstanding senior securities of a series, the persons holding or
representing such specified percentage in principal amount of the outstanding
senior securities of such series will constitute a quorum.
Defeasance and Covenant Defeasance
We may elect either (i) to defease and be discharged (and, if
applicable, to have Viacom International defeased and discharged) from any and
all obligations with respect to the senior securities (except as otherwise
provided in the Indenture) ("defeasance") or (ii) to be released from its
obligations with respect to certain covenants that are described in the
Indenture ("covenant defeasance"), upon the deposit with the trustee, in trust
for such purpose, of money and/or specified government obligations that through
the payment of principal and interest in accordance with their terms will
provide money in an amount sufficient, without reinvestment, to pay the
principal of, premium, if any and interest on the senior securities of such
series to maturity or redemption, as the case may be, and any mandatory sinking
fund or analogous senior payments thereon. As a condition to defeasance or
covenant defeasance, we must deliver to the trustee an opinion of counsel to the
effect that the holders of the senior securities of such series will not
recognize income, gain or loss for United States federal income tax purposes as
a result of such defeasance or covenant defeasance and will be subject to United
States federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance or covenant defeasance
had not occurred. Such opinion of counsel, in the case of defeasance under
clause (i) above, must refer to and be based upon a ruling of the Internal
Revenue Service or a change in applicable United States federal income tax law
occurring after the date of the Indenture.
We may exercise our defeasance option with respect to the senior
securities of any series notwithstanding its prior exercise of our covenant
defeasance option. If we exercise our defeasance option, payment of the senior
securities of such series may not be accelerated because of an event of default
and the guarantees relating to such senior securities will cease to exist. If we
exercise our covenant defeasance option, payment of the senior securities of
such series may not be accelerated by reference to any covenant from which we
are released as described under clause (ii) above. However, if acceleration were
to occur for other reasons, the realizable value at the acceleration date of the
money and government obligations in the defeasance trust could be less than the
principal and interest then due on the senior securities of such series, in that
the required deposit in the defeasance trust is based upon scheduled cash flows
rather than market value, which will vary depending upon interest rates and
other factors.
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Notices
Notices to holders of senior securities will be given by mail to the
addresses of such holders as they appear in the security register.
Title
We, Viacom International, as guarantor, the trustee and any agent of
us, Viacom International, as guarantor, or the trustee may treat the registered
owner of any registered senior security as the absolute owner thereof (whether
or not the senior security shall be overdue and notwithstanding any notice to
the contrary) for the purpose of making payment and for all other purposes.
Replacement of Senior Securities
We will replace any mutilated senior security at the expense of the
holders upon surrender to the trustee. We will replace senior securities that
become destroyed, lost or stolen at the expense of the holder upon delivery to
the trustee of satisfactory evidence of the destruction, loss or theft thereof.
In the event of a destroyed, lost or stolen senior security, an indemnity
satisfactory to us and the trustee may be required at the expense of the holder
of the senior security before a replacement senior security will be issued.
Governing Law
The Indenture, the senior securities and the guarantees will be
governed by, and construed in accordance with, the laws of the State of New
York.
Regarding the Trustee
We and Viacom International maintain deposit accounts and banking and
borrowing relations with Citibank, NA, the trustee under the Indenture, and such
trustee is currently a lender to us and Viacom International and certain of our
other subsidiaries. We may remove the trustee at any time with respect to the
senior securities of any series, provided that we immediately appoint a
successor trustee meeting the requirements for trustees specified in the
Indenture and provided further that no default with respect to such senior
securities has occurred and is continuing.
Certain Definitions
The following definitions are applicable to the Indenture:
"Capitalized Lease" means any obligation of a person to pay rent or
other amounts incurred with respect to real property or equipment acquired or
leased by such person and used in its business that is required to be recorded
as a capital lease in accordance with generally accepted accounting principles
consistently applied as in effect from time to time.
"Indebtedness" of any person means, without duplication (i) any
obligation of such person for money borrowed, (ii) any obligation of such person
evidenced by bonds, debentures, notes or other similar instruments, (iii) any
reimbursement obligation of such person in respect of letters of credit or other
similar instruments which support financial obligations which would otherwise
become Indebtedness, (iv) any obligation of such person under Capitalized Leases
(other than in respect of (x) telecommunications equipment including, without
limitation, satellite transponders, and (y) theme park equipment and
attractions), and (v) any obligation of any third party to the extent secured by
a Lien
44
on the assets of such person; provided, however, that "Indebtedness" of
such person shall not include any obligation of such person (a) to any
Subsidiary of such person or to any person with respect to which such person is
a Subsidiary or (b) specifically with respect to the production, distribution or
acquisition of motion pictures or other programming rights, talent or publishing
rights. When used with respect to Viacom, the term "Indebtedness" also includes
any obligation of Viacom International specified in clauses (i) through (v)
above to the extent that said Indebtedness is guaranteed by Viacom.
"Lien" means any pledge, mortgage, lien, encumbrance or other security
interest.
"Restricted Subsidiary" means a corporation all of the outstanding
voting stock of which is owned, directly or indirectly, by Viacom or by one or
more of its Subsidiaries, or by Viacom and one or more of its Subsidiaries,
which is incorporated under the laws of a State of the United States, and which
owns a Principal Property.
"Subsidiary" of any person means (i) a corporation a majority of the
outstanding voting stock of which is at the time, directly or indirectly, owned
by such person, by one or more Subsidiaries of such person, or by such person
and one or more Subsidiaries thereof or (ii) any other person (other than a
corporation), including, without limitation, a partnership or joint venture, in
which such person, one or more Subsidiaries thereof, or such person and one or
more Subsidiaries thereof, directly or indirectly, at the date of determination
thereof, has at least majority ownership interest entitled to vote in the
election of directors, managers or trustees thereof (or other persons performing
similar functions).
45
UNITED STATES TAX CONSIDERATIONS
This description is based on the Internal Revenue Code of 1986, as
amended to the date hereof (the "Code"), administrative pronouncements, judicial
decisions and existing and proposed Treasury Regulations, and interpretations of
the foregoing, changes to any of which subsequent to the date of this prospectus
may affect the tax consequences described herein. These statements address only
the tax consequences to initial holders holding senior securities as capital
assets within the meaning of Section 1221 of the Code. They do not discuss all
of the tax consequences that may be relevant to holders in light of their
particular circumstances or to holders subject to special rules, such as certain
financial institutions, insurance companies, dealers in securities or foreign
currencies, United States Holders (as defined below) whose functional currency
(as defined in Code Section 985) is not the U.S. dollar, persons holding senior
securities in connection with a hedging transaction, "straddle", conversion
transaction or other integrated transaction, traders in securities that elect to
mark to market, holders liable for alternative minimum tax or persons who have
ceased to be United States citizens or to be taxed as resident aliens. Persons
considering the purchase of the senior securities should consult their tax
advisors concerning the application of United States federal income tax laws, as
well as the laws of any state, local or foreign taxing jurisdictions, to their
particular situations.
As used in this section, a "United States Holder" means a beneficial
owner of senior securities that is for United States federal income tax purposes
a holder that is a United States person (as defined in "Description of Senior
Securities--Payment of Additional Amounts").
As used in this section, the term "United States Alien Holder" means a
beneficial owner of senior securities that is, for United States federal income
tax purposes:
o a nonresident alien individual;
o a foreign corporation;
o a nonresident alien fiduciary of a foreign estate or trust; or
o a foreign partnership one or more of the members of which is a
nonresident alien individual, a foreign corporation or a nonresident
alien fiduciary of a foreign estate or trust.
Exchange Offer
The exchange of unregistered senior securities for exchange senior
securities pursuant to the exchange offer will not be a taxable event for United
States federal income tax purposes. Accordingly, a holder will not recognize
taxable gain or loss as a result of such exchange and will have the same
adjusted tax basis and holding period in the exchange senior securities as such
holder had in the unregistered senior securities immediately before the
exchange.
Tax Consequences to United States Holders
Payments of Interest
Interest on senior securities will generally be taxable to a United
States Holder as ordinary interest income at the time it accrues or is received
in accordance with the United States Holder's method of accounting for federal
income tax purposes.
46
Amortizable Bond Premium
In general, if a United States Holder purchases a senior security at a
premium (that is, for an amount in excess of the amount payable upon the
maturity thereof), such Holder will be considered to have purchased such senior
security with "amortizable bond premium" equal to the amount of such excess.
Such Holder may elect to amortize such bond premium as an offset to interest
income, and not as a separate deduction item, as it accrues under a
constant-yield method over the remaining term of the senior security. Such
Holder's tax basis in the senior security will be reduced by the amount of the
amortized bond premium. Any such election shall apply to all debt instruments
(other than instruments the interest on which is excludible from gross income)
held by the United States Holder at the beginning of the first taxable year for
which the election applies or thereafter acquired and is irrevocable without the
consent of the Internal Revenue Service. Bond premium on senior securities held
by a United States Holder who does not elect to amortize the premium will
decrease the gain or increase the loss otherwise recognized on the disposition
of the senior securities.
Market Discount
If a United States Holder purchases a senior security for less than its
principal amount, the difference will be treated as a "market discount" for U.S.
federal income tax purposes subject to a de minimus exception.
Under the market discount rules, a United States Holder will be
required to treat any payment on a senior security, or any gain on its sale,
exchange, retirement or other disposition, as ordinary income to the extent of
the accrued market discount which was not previously included in gross income.
If the senior security is disposed of in a non-taxable transaction (other than a
nonrecognition transaction described in section 1276(c) of the Code), accrued
market discount will be taxable to the United States Holder as ordinary income
as if the United States Holder had sold the senior security at ifs fair market
value. In addition, a United States Holder may be required to defer, until the
maturity of a senior security or its earlier disposition (including a
non-taxable transaction other than a transaction other than a transaction
described in section 1276(c) of the Code), the deduction of all or a portion of
the interest expense in respect of any indebtedness incurred or continued to
purchase or carry the senior security. Market discount will be considered to
accrue on a straight-line basis during the period from the date of acquisition
to the maturity date of the senior security, unless the United States Holder
elects to accrue on a constant-yield basis.
A United States Holder may elect to include market discount in income
as it accrues --on either a ratable or constant-yield basis. If a United States
Holder makes this election, the rules regarding the treatment of gain upon the
disposition of the senior security and upon the receipt of certain cash payments
as ordinary income and regarding the deferral of interest deductions will not
apply. If a United States Holder elects to include market discount in income as
it accrues, the election will apply to all market discount obligations acquired
during or after the first taxable year to which the election applies. This
election may not be revoked without the consent of the Internal Revenue Service.
Sale, Exchange or Retirement
Upon the sale, exchange or retirement of senior securities, a United
States Holder will recognize gain or loss equal to the difference between the
amount realized on the sale, exchange or retirement of the senior securities and
such Holder's adjusted tax basis in the senior securities. A United States
Holder's adjusted tax basis in senior securities will equal the cost of the
senior securities to such Holder, subject to possible reduction by amortized
bond premium. The amount realized excludes any amounts attributable to unpaid
interest accrued between interest payment dates and not previously included in
income, which will
47
be taxable as ordinary income. Such gain or loss will be capital gain or loss
and will be long-term capital gain or loss if at the time of the sale, exchange
or retirement the senior securities have been held for more than one year. Under
current laws, the excess of the taxpayer's net long-term capital gains over net
short-term capital losses is taxed at a lower rate than ordinary income for
certain non-corporate taxpayers. The distinction between capital gain or loss
and ordinary income or loss is also relevant for purposes of, among other
things, the limitations on the deductibility of capital losses.
Tax Consequences to United States Alien Holders
Under present United States federal tax law, and subject to the
discussion below concerning backup withholding:
(a) payments of principal, interest and premium on the senior securities by
Viacom or its paying agent to any United States Alien Holder will be exempt
from the 30% United States federal withholding tax, provided that (i) such
Holder does not own, actually or constructively, 10% or more of the total
combined voting power of all classes of stock of Viacom entitled to vote,
(ii) such Holder is not a controlled foreign corporation related, directly
or indirectly, to Viacom through stock ownership, and (iii) the requirement
to certify such Holder's non-U.S. status, as set forth in section 871(h) or
section 881(c) of the Code, has been fulfilled with respect to the
beneficial owner, as discussed below;
(b) a United States Alien Holder of senior securities will not be subject
to United States federal income tax on gain realized on the sale, exchange
or retirement of such senior securities, unless (i) such Holder is an
individual who is present in the United States for 183 days or more in the
taxable year of the disposition, and either the gain is attributable to an
office or other fixed place of business maintained by such individual in
the United States or, generally, such individual has a "tax home" in the
United States or (ii) such gain is effectively connected with the Holders'
conduct of a trade or business in the United States (and, if an income tax
treaty applies, generally is attributable to a U.S. "permanent
establishment" maintained by such Holder); and
(c) senior securities held by an individual who is not, for United States
estate tax purposes, a resident or citizen of the United States at the time
of his death will not be subject to United States federal estate tax,
provided that the individual does not own, actually or constructively, 10%
or more of the total combined voting power of all classes of stock of
Viacom entitled to vote and, at the time of such individual's death,
payments with respect to such senior securities would not have been
effectively connected with the conduct by such individual of a trade or
business in the United States.
The certification requirement referred to in subparagraph (a) will be
fulfilled if the beneficial owner of senior securities certifies on Internal
Revenue Service Form W-8BEN or successor form under penalties of perjury, that
it is not a United States person and provides its name and address, and (i) such
beneficial owner files such Form W-8BEN or successor form with the withholding
agent or (ii) in the case of senior securities held on behalf of the beneficial
owners by a securities clearing organization, bank or other financial
institution holding customers' securities in the ordinary course of its trade or
business, such financial institution files with the withholding agent a
statement that it has received the Form W-8BEN or successor form from the United
States Alien Holder, furnishes the withholding agent with a copy thereof and
otherwise complies with the applicable Internal Revenue Service requirements.
Alternatively, these certification requirements will not apply if the
beneficial owner of the senior securities holds those securities directly
through a "qualified intermediary"(which is a non-U.S. office of a
48
bank, securities dealer or similar intermediary that has signed an agreement
with the Internal Revenue Service concerning withholding tax procedures), the
qualified intermediary has sufficient information in its files to indicate that
the holder is a United States Alien Holder and the intermediary complies with
Internal Revenue Service requirements. Special rules may apply with respect to
senior securities held by a foreign partnership. Prospective investors,
including foreign partnerships and their partners and Holders who hold their
senior securities through a qualified intermediary, should consult their tax
advisers regarding possible reporting requirements.
If a United States Alien Holder of senior securities is engaged in a
trade or business in the United States, and if interest on the senior securities
(or gain realized on their sale, exchange or other disposition) is effectively
connected with the conduct of such trade or business (and, if an income tax
treaty applies, generally is attributable to a U.S. "permanent establishment"
maintained by such Holder), the United States Alien Holder, although exempt from
the withholding tax discussed in the preceding paragraphs, will be subject to
regular United States income tax on such effectively connected income, generally
in the same manner as if it were a United States Holder. See "Tax Consequences
to United States Holders" above. In lieu of the certificate described in the
preceding paragraph, such a Holder will be required to provide to the
withholding agent a properly executed Internal Revenue Service Form W-8ECI or
successor form, as appropriate, to claim an exemption from withholding tax. In
addition, if such United States Alien Holder is a foreign corporation, it may be
subject to a 30% branch profits tax (unless reduced or eliminated by an
applicable treaty) on its earnings and profits for the taxable year attributable
to such effectively connected income, subject to certain adjustments.
Interest payments made to a United States Alien Holder will generally
be reported to the Holder and to the Internal Revenue Service on Form 1042-S.
However, this reporting does not apply if the Holder holds the senior securities
directly through a qualified intermediary.
Backup Withholding and Information Reporting
Under current United States federal income tax law, information
reporting requirements apply to certain payments of principal, premium and
interest made to, and to the proceeds of sales before maturity by, non-corporate
United States Holders. In addition, a 31% backup withholding tax will apply if
the noncorporate United States Holder (i) fails to furnish its Taxpayer
Identification Number ("TIN") which, for an individual, is his Social Security
Number, (ii) furnishes an incorrect TIN, (iii) is notified by the Internal
Revenue Service that it is subject to backup withholding for failure to report
interest and dividend payments, or (iv) under certain circumstances fails to
certify, under penalties of perjury, that it has furnished a correct TIN and has
not been notified by the Internal Revenue Service that it is subject to backup
withholding for failure to report interest and dividend payments. Holders should
consult their tax advisers regarding their qualification for exemption from
backup withholding and the procedure for obtaining such an exemption if
applicable.
Backup withholding will not apply to payments made on senior securities
if the certifications required by Sections 871(h) and 881(c) as described above
are received or if the exemption for qualified intermediaries discussed above
applies, provided that Viacom or its paying agent or the qualified intermediary,
as the case may be, does not have actual knowledge or reason to know that the
payee is a United States person.
Under current Treasury Regulations, payments on the sale, exchange or
other disposition of senior securities made to or through a foreign office of a
broker generally will not be subject to backup withholding. However, if such
broker is:
o a United States person;
49
o a controlled foreign corporation for United States federal income tax
purposes;
o a foreign person 50% or more of whose gross income for certain periods
is effectively connected with a United States trade or business; or
o a foreign partnership with certain connections to the United States;
then information reporting will be required unless the broker has in its records
documentary evidence that the beneficial owner is not a United States person and
certain other conditions are met or the beneficial owner otherwise establishes
an exemption. Backup withholding may apply to any payment that such broker is
required to report if the broker has actual knowledge or reason to know that the
payee is a United States person. Payments to or through the United States office
of a broker will be subject to backup withholding and information reporting
unless the Holder certifies, under penalties of perjury, that it is not a United
States person and the payor does not have actual knowledge or reason to know
that the Holder is a United States person, or the Holder otherwise establishes
an exemption.
United States Alien Holders of senior securities should consult their
tax advisers regarding the application of information reporting and backup
withholding in their particular situations, the availability of an exemption
therefrom, and the procedure for obtaining such an exemption, if available. Any
amounts withheld from a payment to a United States Alien Holder under the backup
withholding rules will be allowed as a credit against such Holder's United
States federal income tax liability and may entitle such Holder to a refund,
provided that the Holder files a United States income tax return and the
required information is furnished to the Internal Revenue Service.
50
PLAN OF DISTRIBUTION
Each broker-dealer that receives exchange senior securities for its own
account pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such exchange senior securities.
This prospectus, as it may be amended or supplemented from time to time, may be
used by a broker-dealer in connection with resales of exchange senior securities
received in exchange for unregistered senior securities where such unregistered
senior securities were acquired as a result of market-making activities or other
trading activities. We have agreed that, for a period of 180 days after the
expiration of the exchange offer, we will make this prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such
resale. In addition, until 90 days after the date of this prospectus, all
dealers effecting transactions in the exchange senior securities may be required
to deliver a prospectus.
We will not receive any proceeds from any sale of exchange senior
securities by broker-dealers. Exchange senior securities received by
broker-dealers for their own account pursuant to the exchange offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the exchange senior
securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such broker-dealer or the
purchasers of any such exchange senior securities. Any broker-dealer that
resells exchange senior securities that were received by it for its own account
pursuant to the exchange offer and any broker or dealer that participates in a
distribution of such exchange senior securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of exchange senior securities and any commission or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The letter of transmittal states that, by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
For a period of 180 days after the expiration of the exchange offer we
will promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the letter of transmittal. We have agreed to pay all expenses incident to the
exchange offer (including the expenses of one counsel for the holders of the
unregistered senior securities) other than commissions, discounts or concessions
of any broker-dealers and will indemnify the holders of the unregistered senior
securities (including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
51
LEGAL MATTERS
The validity of the exchange senior securities will be passed upon for
Viacom and Viacom International by Shearman & Sterling, New York, New York.
EXPERTS
Our financial statements incorporated by reference in this prospectus
from our Annual Report on Form 10-K for the year ended December 31, 1999, as
amended on April 28, 2000, have been audited by PricewaterhouseCoopers LLP,
independent accountants, as stated in their report, which is incorporated herein
by reference.
The consolidated financial statements of CBS as of December 31, 1999
and 1998, and for each of the years in the three-year period ended December 31,
1999, incorporated by reference in this prospectus from the CBS Annual Report on
Form 10-K for the year ended December 31, 1999, as amended on April 28, 2000,
have been audited by KPMG LLP, independent accountants as stated in their
report, which is incorporated herein by reference, and upon the authority of
said firm as experts in accounting and auditing.
The financial statements of Infinity as of December 31, 1999 and 1998
and for each of the years in the three-year period ended December 31, 1999,
incorporated by reference in this prospectus from Item 8 of Infinity's Annual
Report on Form 10-K for the year ended December 31, 1999, have been audited by
KPMG LLP, independent accountants as stated in their report, which is
incorporated herein by reference, and upon the authority of said firm as experts
in accounting and auditing.
52
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law permits a
corporation to indemnify any of its directors or officers who was or is a party,
or is threatened to be made a party, to any third party proceeding by reason of
the fact that such person is or was a director or officer of the corporation,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reason to believe that such person's conduct was unlawful. In
a derivative action, i.e., one by or in the right of a corporation, the
corporation is permitted to indemnify directors and officers against expenses
(including attorneys' fees) actually and reasonably incurred by them in
connection with the defense or settlement of an action or suit if they acted in
good faith and in a manner that they reasonably believed to be in or not opposed
to the best interests of the corporation, except that no indemnification shall
be made if such person shall have been adjudged liable to the corporation,
unless and only to the extent that the court in which the action or suit was
brought shall determine upon application that the defendant directors or
officers are fairly and reasonably entitled to indemnity for such expenses
despite such adjudication of liability.
Expenses, including attorneys' fees, incurred by any such person in
defending any such action, suit or proceeding may be paid or reimbursed by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt by it of an undertaking of such person to repay such
expenses if it shall ultimately be determined that such person is not entitled
to be indemnified by the corporation.
Delaware law does not permit a corporation to indemnify persons against
judgments in actions brought by or in the right of the corporation unless the
Delaware Court of Chancery approves the indemnification.
Viacom's restated certificate of incorporation provides that each
person who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed action or proceeding, whether civil, criminal,
administrative or investigative, because that person is or was a Viacom director
or officer or is or was serving at Viacom's request as a director or officer of
another entity, shall be indemnified and held harmless by Viacom to the fullest
extent permitted by Delaware law. This right to indemnification also includes
the right to be paid by Viacom the expenses incurred in connection with that
proceeding in advance of its final disposition to the fullest extent authorized
by Delaware law. This right to indemnification is a contract right. Viacom's
restated certificate of incorporation authorizes its Board of Directors to
indemnify any of Viacom's employees or agents to the extent approved by the
Board of Directors and authorized under Delaware law.
Viacom intends to purchase and maintain insurance on behalf of any
person who is or was one of its directors, officers, employees or agents, or is
or was serving at the request of Viacom as a director, officer, employee or
agent of another entity against any liability asserted against him or her and
incurred by him or her in that capacity, or arising out of his or her status as
such, whether or not Viacom would have the power or the obligation to indemnify
him or her against that liability under the provisions of the restated
certificate of incorporation of Viacom.
II-i
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits
See the index to exhibits that appears immediately following the
signature pages of this Registration Statement.
(b) Financial Statement Schedules
Not applicable.
Item 22. Undertakings
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(4) That for purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this Registration Statement shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
II-ii
(5) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant, pursuant to the provisions described in Item 20, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Act and is, therefore, unenforceable. In the event that the claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(6) To respond to requests for information that is incorporated by reference
into the Prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form within one
business day of receipt of such request, and to send the incorporated documents
by first class mail or other equally prompt means. This includes information
contained in documents filed after the effective date of this Registration
Statement through the date of responding to the request.
(7) To supply by means of a post-effective amendment all information concerning
a transaction, and the company being acquired involved therein, that was not the
subject of and included in this Registration Statement when it became effective.
II-iii
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned Registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of New
York, State of New York, on this 30th day of January, 2001.
VIACOM INC.
By: /s/ SUMNER M. REDSTONE
----------------------------------
Name: Sumner M. Redstone
Title: Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated.
Signatures Title Date
---------- ----- ----
/s/ SUMNER M. REDSTONE Chairman of the Board of Directors, January 30, 2001
- ----------------------------------- Chief Executive Officer and
Sumner M. Redstone Director (Principal Executive Officer)
/s/ FREDRIC G. REYNOLDS Executive Vice President and January 30, 2001
- ---------------------------------- Chief Financial Officer
Fredric G. Reynolds (Principal Financial Officer)
/s/ SUSAN C. GORDON Vice President, Controller and January 30, 2001
- ---------------------------------- Chief Accounting Officer
Susan C. Gordon (Principal Accounting Officer)
* Director
- ----------------------------------
George S. Abrams
* Director
- ----------------------------------
David R. Andelman
* Director
- ----------------------------------
George H. Conrades
* Director
- ----------------------------------
Philippe P. Dauman
* Director
- ----------------------------------
William H. Gray III
Signatures Title Date
---------- ----- ----
* Director
- ----------------------------------
Mel Karmazin
* Director
- ----------------------------------
Jan Leschly
* Director
- ----------------------------------
David T. McLaughlin
* Director
- ----------------------------------
Leslie Moonves
* Director
- ----------------------------------
Brent D. Redstone
* Director
- ----------------------------------
Shari Redstone
* Director
- ----------------------------------
Frederick V. Salerno
* Director
- ----------------------------------
William Schwartz
* Director
- ----------------------------------
Ivan Seidenberg
* Director
- ----------------------------------
Patty Stonesifer
* Director
- ----------------------------------
Robert D. Walter
By: /s/ MICHAEL D. FRICKLAS January 30, 2001
--------------------------------
Michael D. Fricklas,
Attorney-in-Fact
For the Directors
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
undersigned Registrant certifies that it has reasonable grounds to believe that
it meets all the requirements for filing on Form S-4 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of New York, State of New York, on this 30th day of
January, 2001.
VIACOM INTERNATIONAL INC.
By: /s/ MEL KARMAZIN
-----------------------------------------------
Name: Mel Karmazin
Title: Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated.
Signatures Title Date
---------- ----- ----
/s/ MEL KARMAZIN Chief Executive Officer January 30, 2001
- ----------------------------------------
Mel Karmazin
/s/ FREDRIC G. REYNOLDS Executive Vice President, January 30, 2001
- ---------------------------------------- Chief Financial Officer
Fredric G. Reynolds and Director
/s/ MICHAEL D. FRICKLAS Executive Vice President and Director January 30, 2001
- ----------------------------------------
Michael D. Fricklas
/s/ SUSAN C. GORDON Vice President, Controller and Chief January 30, 2001
- ---------------------------------------- Accounting Officer
Susan C. Gordon
INDEX TO EXHIBITS
Exhibit
Number Description
1.1* Purchase Agreement, dated January 9, 2001, by and among Viacom Inc.
("Viacom"), Viacom International Inc. ("Viacom International"),
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Salomon Smith
Barney Inc., as representatives of the several initial purchasers (the
"Initial Purchasers").
4.1 Indenture, dated as of May 15, 1995, among Viacom, Viacom
International, as guarantor, and Citibank, N.A., as successor to State
Street Bank and Trust Company and The First National Bank of Boston,
Trustee (incorporated herein by reference to Exhibit 4.3 of Viacom's
Current Report on Form 8-K dated December 15, 1995).
4.2 First Supplemental Indenture, dated as of May 24, 1995 (incorporated
herein by reference to Exhibit 4.4 of Viacom's Current Report on Form
8-K dated December 15, 1995).
4.3 Second Supplemental Indenture and Amendment No. 1, dated as of
December 15, 1995 (incorporated herein by reference to Exhibit 4.5 of
Viacom's Current Report on Form 8-K dated December 15, 1995).
4.4 Third Supplemental Indenture, dated as of July 22, 1996 (incorporated
herein by reference to Exhibit 99.2 of Viacom's Current Report on Form
8-K dated August 1, 1996).
4.5 Fourth Supplemental Indenture, dated as of August 1, 2000
(incorporated herein by reference to Exhibit 4.3 of Viacom's Current
Report on Form 8-K dated July 25, 2000).
4.6* Fifth Supplemental Indenture, dated January 17, 2001.
4.7* Form of Exchange Note due 2006.
4.8* Form of Exchange Note due 2010.
4.9* Form of Exchange Debenture due 2030.
4.10* Registration Rights Agreement dated as of January 17, 2001 among
Viacom Inc., Viacom International Inc. and the Initial Purchasers.
5.1* Opinion and Consent of Shearman & Sterling regarding validity of the
exchange senior securities.
12.1 Statements regarding computation of ratios (incorporated herein by
reference to Exhibit 12.1 of Viacom's Registration Statement on Form
S-3 (Reg. No. 333-52728) dated December 26, 2000).
23.1* Consent of PricewaterhouseCoopers LLP, independent accountants
of the Registrant.
23.2* Consent of KPMG LLP, independent accountants of CBS Corporation.
23.3* Consent of KPMG LLP, independent accountants of Infinity Broadcasting
Corporation.
23.4 Consent of Shearman & Sterling (included in Exhibit 5.1).
24.1 Power of Attorney (included in signature pages to Registration
Statement).
25.1* Statement of Eligibility of the Trustee, on Form T-1.
99.1* Form of Letter of Transmittal.
99.2* Form of Notice of Guaranteed Delivery.
99.3* Form of Exchange Agent Agreement.
* Filed herewith.
VIACOM INC.
VIACOM INTERNATIONAL INC.
6.40% SENIOR NOTES DUE 2006
7.70% SENIOR NOTES DUE 2010
7.875% SENIOR DEBENTURES DUE 2030
PURCHASE AGREEMENT
New York, New York
January 9, 2001
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Salomon Smith Barney Inc.
As Representatives of the
several Initial Purchasers
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower
250 Vesey Street
New York, New York 10281
Ladies and Gentlemen:
Viacom Inc. a Delaware corporation (the "Company"), confirms its agreement
with Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch"),
Salomon Smith Barney Inc. ("Salomon Smith Barney"), and each of the other
Initial Purchasers named in Schedule A hereto (collectively, the "Initial
Purchasers", which term shall also include any initial purchaser substituted as
hereinafter provided in Section 12 hereof), for whom Merrill Lynch and Salomon
Smith Barney are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Initial Purchasers, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $400,000,000
aggregate principal amount of the Company's 6.40% Senior Notes due 2006,
$500,000,000 aggregate principal amount of the Company's 7.70% Senior Notes due
2010 (collectively, the "Notes") and $750,000,000 aggregate principal amount of
the Company's 7.875% Senior
Debentures due 2030 (the "Debentures") each of which is guaranteed on an
unsecured basis (the "Guarantee") by Viacom International Inc., a Delaware
corporation (the "Guarantor"). The Senior Notes due 2006, the Senior Notes due
2010 and the Senior Debentures due 2030 together with the Guarantees are
referred to collectively as the "Securities". The Securities are to be issued
under an indenture dated as of May 15, 1995 among the Company, the Guarantor and
Citibank, N.A., as successor to State Street Bank and Trust Company, as
successor to The First National Bank of Boston, as trustee (the "Trustee"), as
supplemented by the First Supplemental Indenture thereto, dated as of May 24,
1995, the Second Supplemental Indenture and Amendment No. 1, dated as of
December 15, 1995, the Third Supplemental Indenture, dated as of July 22, 1996,
the Fourth Supplemental Indenture, dated as of August 1, 2000 and the Fifth
Supplemental Indenture to be dated as of January 17, 2001 (as so supplemented
and amended, the "Indenture").
The Company understands that the Initial Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth herein and
agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers ("Subsequent
Purchasers") at any time after this Agreement has been executed and delivered.
The Securities are to be offered and sold through the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "1933 Act"),
in reliance upon exemptions therefrom. Pursuant to the terms of the Securities
and the Indenture, Subsequent Purchasers may only resell or otherwise transfer
such Securities if such Securities are hereafter registered under the 1933 Act
or if an exemption from the registration requirements of the 1933 Act is
available (including the exemption afforded by Rule 144A ("Rule 144A") or
Regulation S ("Regulation S") of the rules and regulations promulgated under the
1933 Act by the Securities and Exchange Commission (the "Commission")).
The Company will prepare and will deliver to each Initial Purchaser, on
or about January 9, 2001 copies of a final offering memorandum dated January 9,
2001 (the "Offering Memorandum"), for use by such Initial Purchaser in
connection with its solicitation of purchases of, or offering of, the
Securities. "Offering Memorandum" means, with respect to any date or time
referred to in this Agreement, the most recent offering memorandum (the Offering
Memorandum, and any amendment or supplement thereto), including exhibits thereto
and any documents incorporated therein by reference, which has been prepared and
delivered by the Company to the Initial Purchasers in connection with their
solicitation of purchases of, or offering of, the Securities, and including any
supplement relating to the Securities distributed to the Luxembourg Stock
Exchange.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the Offering
Memorandum (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
are incorporated by reference in the Offering Memorandum; and all references in
this Agreement to amendments or supplements to the Offering Memorandum shall be
deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934 (the "1934 Act") which is incorporated by reference in the
Offering Memorandum.
-2-
Holders of the Securities (including subsequent transferees) will have the
registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be executed on and dated as of the Closing
Time (as defined below). Pursuant to the Registration Rights Agreement, the
Company and the guarantor will agree, among other things, to file with the
Commission (i) a registration statement under the 1933 Act relating to, among
other things, exchange notes and exchange debentures identical in all material
respects to the Senior Notes due 2006, the Senior Notes due 2010 and the Senior
Debentures due 2030 (except that the exchange notes and exchange debentures
shall have been registered pursuant to such registration statement, will not
provide for any increase in the interest rate in connection with the failure to
file such registration statement, and will be issuable in denominations of
$1,000 and integral multiples thereof) to be offered in exchange for the Senior
Notes due 2006, the Senior Notes due 2010 and the Senior Debentures due 2030,
respectively (collectively, the "Exchange Securities") and, (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the
1933 Act relating to the resale by certain holders of the Senior Notes due 2006,
the Senior Notes due 2010 and the Senior Debentures due 2030.
SECTION 1. Representations and Warranties by the Company and the
Guarantor.
(a) Representations and Warranties. The Company and the Guarantor, jointly
and severally, represent and warrant to each Initial Purchaser as of the date
hereof and as of the Closing Time referred to in Section 2(b) hereof, and agrees
with each Initial Purchaser, as follows:
(i) Offering Memorandum. The Offering Memorandum does not, and at the
Closing Time 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, that the Company makes no representations or
warranties as to the information contained in or omitted from the Offering
Memorandum in reliance upon and in conformity with information furnished to
the Company in writing by or on behalf of any Initial Purchaser through the
Representatives specifically for use in the Offering Memorandum.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Offering Memorandum 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").
(iii) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules included in the Offering
Memorandum are independent public accountants as required by the 1933 Act
and the applicable rules and regulations of the Commission thereunder (the
"1933 Act Regulations").
(iv) Financial Statements. The financial statements of the Company,
CBS Corporation and Infinity Broadcasting Corporation included in the
Offering Memorandum, 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
-3-
financial position of the Company at the dates indicated, and the statement
of operations, stockholders' equity and cash flows of the Company, CBS
Corporation and Infinity Broadcasting 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 Offering Memorandum present fairly in accordance with GAAP
the information required to be stated therein. The capitalization table,
the summary financial data for the Company, the summary historical
financial data for CBS Corporation, the summary unaudited pro forma
combined financial data and the ratio of earnings to fixed charges included
in the Offering Memorandum present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements included in the Offering Memorandum. In addition, any pro forma
financial statements of the Company, CBS Corporation, Infinity Broadcasting
Corporation and their subsidiaries and the related notes thereto included
in the Offering Memorandum 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.
(v) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Offering Memorandum, 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 Offering Memorandum or
transactions arising in the ordinary course of business.
(vi) 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 Offering Memorandum and to enter
into and perform their respective obligations under, or as contemplated
under, this 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
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.
(vii) 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 Offering Memorandum and is duly qualified as a
foreign
-4-
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.
(viii) 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, and are free
and clear of any lien, adverse claim, security interest, equity or other
encumbrance except as described in the Offering Memorandum 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.
(ix) Authorization of Agreements. This Agreement has been duly
authorized, executed and delivered by the Company and the Guarantor, and
the Registration Rights Agreement has been duly authorized by the Company
and the Guarantor and will have been duly executed and delivered at the
Closing Time.
(x) Authorization of the Securities and the Exchange Securities. The
Securities and the Exchange Securities have been duly authorized by the
Company and the Guarantor, as the case may be, for issuance and sale
pursuant to this Agreement. The Securities and the Exchange Securities,
when issued and authenticated in the manner provided for in the Indenture
and delivered against payment of the consideration therefor specified in
this 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).
(xi) Authorization of the Indenture. The Indenture has been duly
authorized, executed and delivered by the Company and the Guarantor and,
upon such authorization, execution and delivery, will constitute 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 equitable
principles of general applicability (regardless of whether considered in a
proceeding in equity or at law).
-5-
(xii) Description of the Securities, the Exchange Securities and the
Indenture. The Securities, the Exchange Securities and the Indenture
conform in all material respects to the statements relating thereto
contained in the Offering Memorandum.
(xiii) Absence of Defaults and Conflicts. The issue and sale of the
Securities and the Exchange Securities and compliance by the Company and
the Guarantor with all of the provisions of the Securities, the Exchange
Securities, the Indenture, this Agreement and the Registration Rights
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.
(xiv) 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 Offering Memorandum (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 Offering Memorandum, this
Agreement, the Registration Rights Agreement or the Indenture or the
performance by the Company or the Guarantor of their respective obligations
hereunder and thereunder.
(xv) 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 Agreement,
the Registration Rights Agreement or for the performance by the Company or
the Guarantor of the transactions contemplated under the Offering
Memorandum, this Agreement, the Registration Rights Agreement or the
Indenture, except such as have been already made, obtained or rendered, as
applicable, and as may be required under
-6-
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Initial Purchasers or as may be
required in connection with any registration statement required pursuant to
the terms of the Registration Rights Agreement 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.
(xvi) 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 Offering
Memorandum will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(xvii) Similar Offerings. Neither the Company nor the Guarantor nor
any of their affiliates, as such term is defined in Rule 501(b) under the
1933 Act (each, an "Affiliate"), has, directly or indirectly, solicited any
offer to buy, sold or offered to sell or otherwise negotiated in respect
of, or will solicit any offer to buy, sell or offer to sell or otherwise
negotiate in respect of, in the United States or to any United States
citizen or resident, any security which is or would be integrated with the
sale of the Securities in a manner that would require the Securities to be
registered under the 1933 Act.
(xviii) Rule 144A Eligibility. The Securities are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Time, of the same
class as securities listed on a national securities exchange registered
under Section 6 of the 1934 Act, or quoted in a U.S. automated interdealer
quotation system.
(xix) No General Solicitation. None of the Company, the Guarantor,
their Affiliates or any person acting on any of their behalf (other than
the Initial Purchasers, as to whom the Company and the Guarantor make no
representation) has engaged or will engage, in connection with the offering
of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the 1933 Act.
(xx) No Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in this
Section 1 and the procedures set forth in Section 6 hereof, it is not
necessary in connection with the offer, sale and delivery of the Securities
to the Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register the
Securities under the 1933 Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended (the "1939 Act").
(xxi) Reporting Company. The Company is subject to the reporting
requirements of Section 13 or Section 15(d) of the 1934 Act.
(xxii) No Directed Selling Efforts. With respect to those Securities
sold in reliance on Regulation S, (A) none of the Company, the Guarantor,
their Affiliates or any person acting on any of their behalf (other than
the Initial Purchasers, as to whom the Company makes no representation) has
engaged or will engage in any directed selling
-7-
efforts within the meaning of Regulation S and (B) each of the Company, the
Guarantor and their Affiliates and any person acting on any of their behalf
(other than the Initial Purchasers, as to whom the Company and the
Guarantor make no representation) has complied and will comply with the
offering restrictions requirement of Regulation S.
(b) 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 Initial Purchasers shall be deemed a
representation and warranty by the Company or the Guarantor, as the case may be,
to each Initial Purchaser as to the matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) Securities. Subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each of the Initial Purchasers and each of
the Initial Purchasers agrees, severally and not jointly, to purchase from the
Company, at the price set forth in Schedule B, the aggregate principal amount of
Securities set forth in Schedule A opposite the name of such Initial Purchaser,
plus any additional principal amount of Securities which such Initial Purchaser
may become obligated to purchase pursuant to the provisions of Section 12
hereof.
(b) Payment. Payment of the purchase price for, and delivery of the
Securities shall be made at the offices of Salomon Smith Barney, 388 Greenwich
Street, New York, New York 10013, or at such other place as shall be agreed upon
by the Representatives and the Company, at 9:00 A.M. (Eastern time) on January
17, 2001 (unless postponed in accordance with the provisions of Section 12), 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 Initial Purchasers of the
Securities to be purchased by them. It is understood that each Initial Purchaser
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 Initial Purchasers, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Initial Purchaser whose funds have not been received by the Closing Time, but
such payment shall not relieve such Initial Purchaser from its obligations
hereunder. Delivery of the Securities shall be made through the facilities of
the Depository Trust Company ("DTC"), Clearstream Luxembourg or Euroclear unless
the Representatives shall otherwise instruct.
SECTION 3. Covenants of the Company and the Guarantor. The Company and the
Guarantor jointly and severally covenant with each Initial Purchaser as follows:
(a) Offering Memorandum. The Company and the Guarantor, as promptly as
possible, will furnish to each Initial Purchaser, without charge, such number of
copies of the Offering Memorandum as such Initial Purchaser may reasonably
request.
-8-
(b) Notice and Effect of Material Events. The Company and the Guarantor
will immediately notify each Initial Purchaser, and confirm such notice in
writing, of (x) any filing made by the Company or the Guarantor of information
relating to the offering of the Securities with any securities exchange or any
other regulatory body in the United States or any other jurisdiction, and (y)
prior to the completion of the placement of the Securities by the Initial
Purchasers as evidenced by a notice in writing from the Initial Purchasers to
the Company, any material changes in or affecting the condition, financial or
otherwise, or the earnings or business affairs of the Company and its
subsidiaries considered as one enterprise which (i) make any statement in the
Offering Memorandum false or misleading or (ii) are not disclosed in the
Offering Memorandum as a result of which the Offering Memorandum omits to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. In such event or if
during such time any event shall occur as a result of which it is necessary, in
the reasonable opinion of any of the Company, its counsel, the Initial
Purchasers or counsel for the Initial Purchasers, to amend or supplement the
Offering Memorandum in order that the Offering Memorandum not include any 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
then existing, the Company will forthwith amend or supplement the Offering
Memorandum by preparing and furnishing to each Initial Purchaser an amendment or
amendments of, or a supplement or supplements to, the Offering Memorandum (in
form and substance satisfactory in the reasonable opinion of counsel for the
Initial Purchasers) so that, as so amended or supplemented, the Offering
Memorandum 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, in the
light of the circumstances existing at the time it is delivered to a Subsequent
Purchaser, not misleading.
(c) Amendment to Offering Memorandum and Supplements. Until the Closing
Time, the Company and the Guarantor will advise the Representatives promptly of
their intention to amend or supplement the Offering Memorandum, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to their use, and will not use any such document to which the
Representatives or counsel to the Representatives shall reasonably object.
(d) Blue Sky Qualifications. The Company and the Guarantor will use their
best efforts, in cooperation with the Initial Purchasers, 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, 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.
(e) DTC. 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.
-9-
(f) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Offering
Memorandum under "Use of Proceeds".
(g) Listing on Securities Exchange. The Company has caused the Securities,
and will use its best efforts to cause the Exchange Securities, to be listed or
admitted to trading on the Luxembourg Stock Exchange.
(h) Restriction on Sale of Securities. Between the date of this 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.
(i) Reporting Requirements. Until the Closing Time, the Company and the
Guarantor, , 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 Agreement,
including (i) the preparation, printing, delivery to the Initial Purchasers of
the Offering Memorandum (including financial statements and any schedules or
exhibits and any document incorporated therein by reference) and of each
amendment or supplement thereto, (ii) the preparation, printing and delivery to
the Initial Purchasers of this Agreement, any Agreement among Initial
Purchasers, 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 certificates for
the Securities to the Initial Purchasers, including any transfer taxes, any
stamp or other duties payable upon the sale, issuance and delivery of the
Securities to the Initial Purchasers and any charges of DTC 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 respective counsel, (v) the
qualification of the Securities under state securities laws in accordance with
the provisions of Section 3(d) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Initial Purchasers in connection
therewith and in connection with the preparation, printing and delivery of the
Blue Sky Survey, and any amendment thereto, (vi) the fees charged by nationally
recognized statistical rating organizations for the rating of the Securities,
(vii) any fees and expenses payable in connection with the initial and continued
designation, if any, of the Securities as PORTAL securities under the PORTAL
Market Rules pursuant to NASD Rule 5322, and (viii) any fees and expenses
payable in connection with the initial and continued listing of the securities
on any non-U.S. securities exchange including the Luxembourg Stock Exchange, and
(ix) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Initial Purchasers in connection with, the review, if any, by the
National Association of Securities Dealers, Inc. (the "NASD") of the terms of
the sale of the Securities.
SECTION 5. Conditions of Initial Purchasers' Obligations. The obligations
of the several Initial Purchasers hereunder 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
-10-
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:
(a) Opinion of Counsel for Company. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Shearman & Sterling, counsel for the Company and the Guarantor,
in form and substance satisfactory to counsel for the Initial Purchasers,
together with signed or reproduced copies of such letter for each of the other
Initial Purchasers with respect to such matters as the Initial Purchasers may
reasonably request.
(b) Opinion of Counsel for Initial Purchasers. 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 Initial Purchasers,
together with signed or reproduced copies of such letter for each of the other
Initial Purchasers with respect to such matters as the Initial Purchasers may
reasonably request.
(c) Officers' Certificate. At Closing Time, there shall not have been,
since the respective dates as of which information is given in the Offering
Memorandum, 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 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, and (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.
(d) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from PricewaterhouseCoopers
LLP (and, with respect to the financial statements of CBS Corporation and
Infinity Broadcasting Corporation for the year ended December 31, 1999, KPMG
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 Initial Purchasers, 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 Offering Memorandum.
(e) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from PricewaterhouseCoopers LLP (and, with respect to the
financial statements of CBS Corporation and Infinity Broadcasting Corporation
for the quarter ended March 31, 2000, KPMG LLP) a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) 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.
(f) Ratings. On the date hereof or 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
-11-
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).
(g) Approval of Listing. At the Closing Time, the Securities and the
Exchange Securities shall have been approved for listing, subject only to
official notice of issuance, on the Luxembourg Stock Exchange.
(h) No Objection. If the Offering Memorandum 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 terms and arrangements relating to the
distribution of the securities by the Initial Purchasers.
(i) Registration Rights Agreement. At or prior to the Closing Time, the
Company and the Guarantor shall have entered into the Registration Rights
Agreement.
(j) Additional Documents. At the Closing Time, counsel for the Initial
Purchasers 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 Initial Purchasers.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures. Each of the Initial Purchasers, the Company
and the Guarantor hereby establish and agree to observe the following procedures
in connection with the offer and sale of the Securities:
(i) Offers and Sales only to Qualified Institutional Buyers. Offers
and sales of the Securities shall only be made (A) to persons whom the
offeror or seller reasonably believes to be qualified institutional buyers,
as defined in Rule 144A under the 1933 Act ("Qualified Institutional
Buyers"), or (B) non-U.S. persons outside the United States, as defined in
Regulation S under the 1933 Act, to whom the offeror or seller reasonably
believes offers and sales of the Securities may be made in reliance upon
Regulation S under the 1933 Act. Each Initial Purchaser severally agrees
that it will not offer, sell or deliver any of the Securities in any
jurisdiction outside the United States except under circumstances that will
result in compliance with the applicable laws thereof, and that it will
take at its own expense whatever action is required to permit its purchase
and resale of the Securities in such jurisdictions.
(ii) No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the 1933 Act) will be
used in the United States in connection with the offering or sale of the
Securities.
-12-
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of a Security acting as a fiduciary for one or more
third parties, each third party shall, in the judgment of the applicable
Initial Purchaser, be a Qualified Institutional Buyer or a non-U.S. person
outside the United States.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
take reasonable steps to inform, and cause each of its U.S. affiliates to
take reasonable steps to inform, persons acquiring Securities from such
Initial Purchaser or affiliate, as the case may be, in the United States
that the Securities (A) have not been and will not be registered under the
1933 Act, (B) are being sold to them without registration under the 1933
Act in reliance on Rule 144A or in accordance with another exemption from
registration under the 1933 Act, as the case may be, and (C) may not be
offered, sold or otherwise transferred except (1) to the Company, (2)
outside the United States in accordance with Regulation S, or (3) inside
the United States in accordance with (x) Rule 144A to a person whom the
seller reasonably believes is a Qualified Institutional Buyer that is
purchasing such Securities for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the offer, sale
or transfer is being made in reliance on Rule 144A or (y) pursuant to
another available exemption from registration under the 1933 Act.
(v) Minimum Principal Amount. No sale of the Securities to any one
Subsequent Purchaser will be for less than U.S. $1,000 principal amount and
no Security will be issued in a smaller principal amount. If the Subsequent
Purchaser is a non-bank fiduciary acting on behalf of others, each person
for whom it is acting must purchase at least U.S. $1,000 principal amount
of the Securities.
(vi) Restrictions on Transfer. The transfer restrictions and the other
provisions set forth in the Offering Memorandum under the heading "Notice
to Investors", including the legend required thereby, shall apply to the
Securities except as otherwise agreed by the Company and the Initial
Purchasers.
(vii) Delivery of Offering Memorandum. Each Initial Purchaser will
deliver to each U.S. purchaser (or otherwise as may be required by
applicable law) of the Securities from such Initial Purchaser, in
connection with its original distribution of the Securities, a copy of the
Offering Memorandum, as amended and supplemented at the date of such
delivery.
(b) Covenants of the Company and the Guarantor. The Company and the
Guarantor jointly and severally covenant with each Initial Purchaser as follows:
(i) Integration. The Company and the Guarantor agree that they will
not and will cause their Affiliates not to, directly or indirectly, solicit
any offer to buy, sell or make any offer or sale of, or otherwise negotiate
in respect of, securities of the Company or the Guarantor of any class if,
as a result of the doctrine of "integration" referred to in Rule 502 under
the 1933 Act, such offer or sale would render invalid (for the purpose of
(i) the sale of the Securities by the Company to the Initial Purchasers,
(ii) the resale of the Securities by the Initial Purchasers to Subsequent
Purchasers or (iii) the resale of the
-13-
Securities by such Subsequent Purchasers to others) the exemption from the
registration requirements of the 1933 Act provided by Section 4(2) thereof
or by Rule 144A or by Regulation S thereunder or otherwise.
(ii) Rule 144A Information. The Company and the Guarantor agree that,
in order to render the Securities eligible for resale pursuant to Rule 144A
under the 1933 Act, while any of the Securities remain outstanding, they
will make available, upon request, to any holder of Securities or
prospective purchasers of Securities the information specified in Rule
144A(d)(4), unless the Company furnishes information to the Commission
pursuant to Section 13 or 15(d) of the 1934 Act.
(iii) Restriction on Resales. Until the expiration of two years after
the original issuance of the Securities, the Company and the Guarantor will
not, and will cause their Affiliates not to, resell any Securities which
are "restricted securities" (as such term is defined under Rule 144(a)(3)
under the 1933 Act), whether as beneficial owner or otherwise (except as
agent acting as a securities broker on behalf of and for the account of
customers in the ordinary course of business in unsolicited broker's
transactions).
(c) Qualified Institutional Buyer. Each Initial Purchaser severally and not
jointly represents and warrants to, and agrees with, the Company that it is a
"qualified institutional buyer" within the meaning of Rule 144A under the 1933
Act (a "Qualified Institutional Buyer") and an "accredited investor" within the
meaning of Rule 501(a) under the 1933 Act.
(d) Resale Pursuant to Rule 903 of Regulation S or Rule 144A. Each Initial
Purchaser understands that the Securities have not been and will not be
registered under the 1933 Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the 1933 Act or pursuant to an exemption from
the registration requirements of the 1933 Act. Each Initial Purchaser severally
represents and agrees, that, except as permitted by Section 6(a) above, it has
offered and sold Securities and will offer and sell Securities (i) as part of
their distribution at any time and (ii) otherwise until forty days after the
later of the date upon which the offering of the Securities commences and the
Closing Time, only in accordance with Rule 903 of Regulation S, Rule 144A under
the 1933 Act or another applicable exemption from the registration requirements
of the 1933 Act. Accordingly, neither the Initial Purchasers, their affiliates
nor any persons acting on their behalf have engaged or will engage in any
directed selling efforts with respect to Securities sold hereunder pursuant to
Regulation S, and the Initial Purchasers, their affiliates and any person acting
on their behalf have complied and will comply with the offering restriction
requirements of Regulation S. Each Initial Purchaser severally agrees that, at
or prior to confirmation of a sale of Securities pursuant to Regulation S it
will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it or
through it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the United
States Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to or for the account or
benefit of U.S. persons (i) as part of their
-14-
distribution at any time and (ii) otherwise until forty days after the
later of the date upon which the offering of the Securities commenced and
the date of closing, except in either case in accordance with Regulation
S or Rule 144A under the Securities Act. Terms used above have the
meaning given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by
Regulation S.
(e) Additional Representations and Warranties of Initial Purchasers. Each
Initial Purchaser severally represents and agrees that it has not entered and
will not enter into any contractual arrangements with respect to the
distribution of the Securities, except with its affiliates or with the prior
written consent of the Company.
SECTION 7. Indemnification.
(a) Indemnification of Initial Purchasers. The Company and the Guarantor
jointly and severally agree to indemnify and hold harmless each Initial
Purchaser and each person, if any, who controls any Initial Purchaser 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 Offering Memorandum,
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not 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 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
7(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
Initial Purchaser through the Representatives expressly for use in the Offering
Memorandum (or any amendment thereto).
-15-
(b) Indemnification of Company. Each Initial Purchaser severally agrees to
indemnify and hold harmless the Company 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 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 Offering Memorandum in reliance upon
and in conformity with written information furnished to the Company by such
Initial Purchaser through the Representatives expressly for use in the Offering
Memorandum.
(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 7(a) above,
counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 7(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 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 or Section 8
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 7(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 8. Contribution. If the indemnification provided for in Section 7
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any
-16-
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 on the one hand and the Initial Purchasers on
the other hand from the offering of the Securities pursuant to this 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 on the one hand and of the Initial Purchasers 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 on the one hand and the
Initial Purchasers on the other hand, in connection with the offering of the
Securities under this 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 received by the Initial Purchasers.
The relative fault of the Company on the one hand and the Initial
Purchasers 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 or by the Initial Purchasers 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 Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation (even if the Initial Purchasers 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. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
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, no Initial Purchaser shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities purchased and sold by it hereunder exceeds the
amount of any damages which such Initial Purchaser has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an Initial
Purchaser within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same
-17-
rights to contribution as such Initial Purchaser, 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 Initial Purchasers' respective obligations to contribute pursuant to this
Section are several in proportion to the principal amount of Securities set
forth opposite their respective names in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Covenants of the Initial
Purchasers.
(a) United Kingdom Selling Restrictions. Each Initial Purchaser agrees
that:
(i) it has not offered or sold and, prior to the expiry of the period
of six months from the issue date of the Securities, will not offer to 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
business 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 issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with the
issuance of the Securities to a person who is of a kind described in
Article 11(3) of the Financial Services Act of 1986 (Investment
Advertisements) (Exemptions) Order of 1996 as amended, or is a person to
whom such document may otherwise lawfully be issued or pass on; and
(iii) it has complied and will comply with all applicable provisions
of the Financial Services Act with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United
Kingdom
(b) The Netherlands Selling Restrictions. Each Initial Purchaser 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.)
SECTION 10. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Initial Purchaser or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Initial Purchasers.
SECTION 11. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this 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 Agreement or since the
respective dates as of which information is given in the Offering Memorandum,
any material adverse change in the financial condition, results of
-18-
operations or business affairs of the Company and its subsidiaries 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 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 judgment of the Representatives,
impracticable to market the Securities or to enforce contracts for the sale 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 NASD 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 Agreement is terminated pursuant to this Section,
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, 7,
8 and 10 shall survive such termination and remain in full force and effect.
SECTION 12. Default by One or More of the Initial Purchasers. If one or
more of the Initial Purchasers shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other Initial Purchasers, 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:
(i) 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 the Securities set forth on Schedule A hereto, the non-defaulting
Initial Purchasers 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 Initial Purchasers, or
(ii) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the aggregate principal amount of
the Securities set forth on Schedule A hereto, the non-defaulting Initial
Purchasers 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
Initial Purchasers do not purchase all the Securities, this Agreement will
terminate without liability on the part of any non-defaulting Initial
Purchaser or the Company.
-19-
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination of
this 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 Offering Memorandum or in any other documents
or arrangements.
SECTION 13. 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 Initial
Purchasers shall be directed to the Representatives c/o Merrill Lynch, Pierce,
Fenner & Smith Incorporated, World Financial Center, North Tower, 250 Vesey
Street, New York, New York 10281, attention of Peter Ross; and notices to the
Company and the Guarantor shall be directed to it at Viacom Inc., 1515 Broadway,
New York, New York 10036, attention of General Counsel.
SECTION 14. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company, the Guarantor, the Initial Purchasers and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Initial Purchasers and the Company and their respective successors and
the controlling persons and officers and directors referred to in Sections 7 and
8 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This 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 Initial
Purchaser shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW. THIS 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.
SECTION 16. 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.
-20-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement
between each of the Initial Purchasers, the Company and the Guarantor in
accordance with its terms.
Very truly yours,
VIACOM INC.
By: /s/ Robert G. Freedline
----------------------------------------
Name: Robert G. Freedline
Title: Vice President and Treasurer
VIACOM INTERNATIONAL INC.
By: /s/ Robert G. Freedline
----------------------------------------
Name: Robert G. Freedline
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Sabina Ceddia
----------------------------------------
Name: Sabina Ceddia
Title: Authorized Signatory
For themselves and the other several Initial Purchasers named in Schedule A to
the foregoing Agreement.
-21-
SCHEDULE A
Principal
Principal Principal Amount of
Amount of Amount of Senior
Senior Notes Senior Notes Debentures
due 2006 to be due 2010 to due 2030 to be
Initial Purchaser Purchased be Purchased Purchased
- -------------------------------------- -------------- ------------ --------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated $160,000,000 $200,000,000 $300,000,000
Salomon Smith Barney Inc. 160,000,000 200,000,000 300,000,000
BNY Capital Markets, Inc. 20,000,000 25,000,000 37,500,000
Fleet Securities, Inc. 16,000,000 20,000,000 30,000,000
Mizuho International plc 16,000,000 20,000,000 30,000,000
Scotia Capital (USA) Inc. 8,000,000 10,000,000 15,000,000
Daiwa Securities SB Capital Markets Europe
Limited 6,666,667 8,333,333 12,500,000
Sanwa International plc 6,666,667 8,333,333 12,500,000
Tokyo-Mitsubishi International plc 6,666,666 8,333,334 12,500,000
------------ ------------ ------------
Total $400,000,000 $500,000,000 $750,000,000
============ ============ ============
Sch A-1
SCHEDULE B
1. The initial offering price for each of the Securities shall be as
follows:
Senior Notes due 2006: 99.797% of the principal amount thereof, plus
accrued interest, if any, from the date of issuance
Senior Notes due 2010: 106.014% of the principal amount thereof, plus
accrued interest, if any, from the date of issuance
Senior Debentures due 2030: 104.731% of the principal amount thereof,
plus accrued interest, if any, from the date of issuance
2. The purchase price to be paid by the Initial Purchasers for the
Securities shall be a percentage of the principal amount thereof as follows:
99.447% for the Senior Notes due 2006
105.564% for the Senior Notes due 2010
103.856% for the Senior Debentures due 2030
3. The interest rate on the Securities shall be as follows:
6.400% per annum for the Senior Notes due 2006
7.700% per annum for the Senior Notes due 2010
7.875% per annum for the Senior Debentures due 2030
Sch B-1
VIACOM INC.,
VIACOM INTERNATIONAL INC.
AND
CITIBANK, N.A.,
Trustee
------------------------------------------
FIFTH SUPPLEMENTAL INDENTURE
Dated as of January 17, 2001
To Indenture dated as of May 15, 1995
among
VIACOM INC.,
VIACOM INTERNATIONAL INC.
and
CITIBANK, N.A.,
Trustee
------------------------------------------
Senior Debt Securities
FIFTH SUPPLEMENTAL INDENTURE, dated as of January 17, 2001, among VIACOM
INC., a Delaware corporation (the "Company"), VIACOM INTERNATIONAL INC., a
Delaware corporation (the "Guarantor") and CITIBANK, N.A., a national banking
association, as successor in interest to State Street Bank and Trust Company and
The First National Bank of Boston, trustee (the "Trustee") to the Indenture,
dated as of May 15, 1995, among the Company, the Guarantor and the trustee party
thereto, as supplemented by the First Supplemental Indenture, dated as of May
24, 1995, among the Company, the Guarantor and the trustee party thereto, as
supplemented and amended by the Second Supplemental Indenture and Amendment No.
1, dated as of December 15, 1995, among the Company, the Guarantor and the
trustee party thereto, as supplemented by the Third Supplemental Indenture,
dated as of July 22, 1996, among the Company, the Guarantor and the trustee
party thereto and as further supplemented by the Fourth Supplemental Indenture
(the "Fourth Supplemental Indenture"), dated as of August 1, 2000, among the
Company, the Guarantor and the Trustee (as so amended, the "Indenture").
RECITALS OF THE COMPANY
WHEREAS, Section 901(1) of the Indenture permits supplements thereto
without the consent of Holders of Securities to add to the covenants of the
Company for the benefit of all or any series of Securities;
WHEREAS, Section 901(4) of the Indenture permits supplements thereto
without the consent of Holders of Securities to change any provisions of the
Indenture with respect to a series of Securities, where there are no Securities
Outstanding which are entitled to the benefit of such provision;
WHEREAS, Section 901(8) of the Indenture permits supplements thereto
without the consent of Holders of Securities to make provisions with respect to
matters or questions arising under the Indenture, provided that the interests of
the Holders of Securities of any series or any related coupons are not adversely
affected thereby in any material respect;
WHEREAS, as contemplated by Section 301 of the Indenture, the Company
intends to issue and the Guarantor intends to guarantee from time to time a new
series of Securities, consisting of the 6.40% Senior Notes due 2006 (the "2006
Senior Notes") under the Indenture;
WHEREAS, as contemplated by Section 901(8) of the Indenture, the Company is
re-opening the two series of Securities established pursuant to the Fourth
Supplemental Indenture (such re-opened Securities to be referred to herein as
the 7.70% Senior Notes due 2010 (the "2010 Senior Notes") and the 7.875% Senior
Debentures due 2030 (the "Senior Debentures")) for further issuances of
additional Securities of such series;
WHEREAS, as contemplated by Section 301 of the Indenture, the Company
wishes to add to the covenants of the Company for the sole benefit of the
Holders of the 2006 Senior Notes and to make certain changes to other provisions
of the Indenture,; and
WHEREAS, as contemplated by Section 901(8) of the Indenture, the Company
wishes to amend the Fourth Supplemental Indenture to supplement the terms of the
2010 Senior Notes and the Senior Debentures by including provisions allowing for
the issuance of the 2010
Senior Notes and the Senior Debentures in reliance on Rule 144A and Regulation S
and for their subsequent exchange for Exchange Notes or Exchange Debentures, as
applicable.
NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH:
For consideration, the adequacy and sufficiency of which are hereby
acknowledged by the parties hereto, each party agrees as follows, for the
benefit of the other party and for the equal and proportionate benefit of all
Holders of the 2006 Senior Notes, the 2010 Senior Notes and the Senior
Debentures, as follows:
SECTION 1. For the purpose of this Fifth Supplemental Indenture, all terms used
herein, unless otherwise defined, shall have the meaning assigned to them in the
Indenture, as amended hereby.
SECTION 2. The Company shall issue from time to time, and the Guarantor shall
guarantee from time to time, (a) 2006 Senior Notes in an aggregate principal
amount of $400,000,000, (b) 2010 Senior Notes in an aggregate principal amount
of $500,000,000 and (c) Senior Debentures in an aggregate principal amount of
$750,000,000. The form of the 2006 Senior Notes is set forth in Exhibit A
hereto. The forms of the 2010 Senior Notes and the Senior Debentures are set
forth in Exhibit B and Exhibit C hereto, respectively, which forms hereby
replace the forms of the 2010 Senior Notes and the Senior Debentures set forth
in Exhibit A and Exhibit B, respectively, to the Fourth Supplemental Indenture.
The 2006 Senior Notes, 2010 Senior Notes and Senior Debentures shall include the
legends set forth on the face of Exhibit A, Exhibit B and Exhibit C hereto,
respectively (substantially in the form so set forth), so long as such
Securities are Restricted Securities.
SECTION 3. The 2006 Senior Notes, 2010 Senior Notes and Senior Debentures
offered and sold in reliance on Rule 144A shall be issued initially in the form
of one or more permanent global 2006 Senior Notes, permanent global 2010 Senior
Notes or permanent global Senior Debentures in registered form, substantially in
the form set forth in Exhibit A, Exhibit B and Exhibit C hereto, respectively,
(the "U.S. Global 2006 Senior Notes", the "U.S. Global 2010 Senior Notes" and
the "U.S. Global Senior Debentures," and, collectively, the "U.S. Global
Securities"), registered in the name of the nominee of the Depositary, deposited
with the Trustee, as custodian for the Depositary, duly executed by the Company
and authenticated by the Trustee as provided in Section 303 of the Indenture.
The aggregate principal amount of the U.S. Global Securities may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depositary or its nominee, in accordance with the
instructions given by the Holder thereof, as hereinafter provided.
The 2006 Senior Notes, 2010 Senior Notes and Senior Debentures offered and
sold in offshore transactions in reliance on Regulation S shall be issued
initially in the form of one or more permanent global 2006 Senior Notes,
permanent global 2010 Senior Notes or permanent global Senior Debentures, as the
case may be, in registered form, substantially in the forms set forth in Exhibit
A, Exhibit B and Exhibit C hereto, respectively, (the "Offshore Global 2006
Senior Notes", "Offshore Global 2010 Senior Notes" and the "Offshore Global
Senior
2
Debentures," collectively, the "Offshore Global Securities"), registered in the
name of the nominee of the Depositary, deposited with the Trustee, as custodian
for the Depositary, duly executed by the Company and authenticated by the
Trustee as provided in Section 303 of the Indenture. The aggregate principal
amount of the Offshore Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
The U.S. Global Securities and the Offshore Global Securities are sometimes
referred to herein as the "Global Securities."
SECTION 4. For the sole benefit of the Holders of the 2006 Senior Notes, Section
101 of the Indenture shall be amended by deleting the definitions of "Authorized
Newspaper," "Corporate Trust Office," "Principal Property," "Sale and Leaseback
Transaction" and "United States Person" and replacing such definitions with the
following definitions:
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in the place in connection
with which the term is used or in the financial community of such place;
provided, however, that so long as a series of Securities is listed on the
Luxembourg Stock Exchange, Authorized Newspaper solely with respect to such
series of Securities shall mean a leading newspaper having general
circulation in Luxembourg (which is expected to be the Luxembourg Wort) or,
if publication in such newspaper is not practicable, a leading English
language daily newspaper with general circulation in Europe, that is
published each Business Day in morning editions, whether or not published
in Saturday, Sunday or holiday editions. Where successive publications are
required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting
the foregoing requirements and in each case on any Business Day.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at Citibank, N.A., 111 Wall Street, 14th Floor, New York, New York,
10005; Attention: Citibank Agency and Trust Services.
"Principal Property" means any parcel of real property and related
fixtures or improvements (other than telecommunications equipment,
including, without limitation, satellite transponders) owned by the Company
or any Restricted Subsidiary and located in the United States, the
aggregate book value of which on the date of determination exceeds $1.0
billion, other than any such real property and related fixtures or
improvements which, as determined in good faith by the Board of Directors
of the Company, is not of material importance to the total business
conducted by the Company and its Subsidiaries, taken as a whole.
3
"Sale and Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary of
any Principal Property which has been or is to be sold or transferred by
the Company or such Person; provided, however, that "Sale and Leaseback
Transaction" shall not include such arrangements that were existing on
January 17, 2001, or at the time any Person owning a Principal Property
becomes a Restricted Subsidiary (whether by acquisition or otherwise,
including through merger or consolidation).
"United States Person" means any individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States, any state
thereof or the District of Columbia (other than a partnership that is not
treated as a United States Person under any applicable Treasury
regulations), any estate the income of which is subject to United States
federal income taxation regardless of its source, or any trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States Persons have the
authority to control all substantial decisions of the trust.
Notwithstanding the preceding sentence, to the extent provided in the
Treasury regulations, certain trusts in existence on August 20, 1996, and
treated as United States Persons prior to such date that elect to continue
to be treated as United States Persons, will also be United States Persons.
SECTION 5. For the sole benefit of the Holders of the 2006 Senior Notes, Section
101 of the Indenture shall be amended by adding the following definitions, each
in appropriate alphabetical order:
"Agent" means any Transfer Agent, Registrar, co-Registrar, Paying
Agent or Authenticating Agent.
"Closing Date" means January 17, 2001.
"Depositary" means, as applicable, either the U.S. Depositary or the
Common Depositary.
"Exchange Notes" means any securities of the Company containing terms
identical to the 2006 Senior Notes (except that such Exchange Notes shall
be registered under the Securities Act and shall not include the
restrictions on transfer or any increase in the interest rate) that are
issued and exchanged for the 2006 Senior Notes pursuant to the Registration
Rights Agreement and the Indenture.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"non-United States Person" means a Person who is not a United States
Person.
4
"Participant" means a Person who has an account with a Depositary.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated January 17, 2001, between the Company, the Guarantor,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Salomon Smith
Barney, Inc. and certain permitted assigns specified therein.
"Registration Statement" means the Registration Statement as defined
and described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Non-U.S. Person" means a person who is not a "U.S.
Person" as defined in Regulation S.
"Regulation S U.S. Person" has the meaning assigned thereto in
Regulation S.
"Restricted Security" means any 2006 Senior Note that has not been
sold in connection with an effective Registration Statement.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Shelf Registration Statement" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
SECTION 6. For the sole benefit of the Holders of the Senior Notes due 2010 and
the Senior Debentures, Section 1 of the Fourth Supplemental Indenture is hereby
amended by adding the following definitions, each in appropriate alphabetical
order:
"Closing Date" means January 17, 2001.
"Exchange Notes" or "Exchange Debentures" means any securities of the
Company containing terms identical to the 2010 Senior Notes or Senior
Debentures, as the case may be, (except that such Exchange Notes or Exchange
Debentures shall be registered under the Securities Act and shall not include
the restrictions on transfer or any increase in the interest rate) that are
issued and exchanged for the 2010 Senior Notes or Senior Debentures, as the case
may be, pursuant to the Registration Rights Agreement and the Indenture.
"Exchange Offer Registration Statement" means the Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
5
"Registration Rights Agreement" means the Registration Rights Agreement,
dated January 17, 2001, between the Company, the Guarantor, Merrill Lynch,
Pierce, Fenner & Smith Incorporated and Salomon Smith Barney, Inc. and certain
permitted assigns specified therein.
"Registration Statement" means the Registration Statement as defined and
described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Non-U.S. Person" means a person who is not a "U.S. Person" as
defined in Regulation S.
"Regulation S U.S. Person" has the meaning assigned thereto in Regulation
S.
"Restricted Security" means any 2010 Senior Note or Senior Debenture that
has not been sold in connection with an effective Registration Statement.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Shelf Registration Statement" means the Shelf Registration Statement as
defined in the Registration Rights Agreement.
SECTION 7. For the sole benefit of the Holders of the Senior Notes due 2006,
Section 106 shall be amended by deleting clause (1) thereof and replacing such
clause (1) in its entirety with the following:
(1) such notice shall be sufficiently given to Holders of Registered
Securities (unless otherwise herein expressly provided) (a) if in writing
and mailed, first-class postage prepaid, to each such Holder affected by
such event, at the address of such Holder as it appears in the Security
Register, not earlier than the earliest date, and not later than the latest
date, prescribed for the giving of such notice, and (b) for so long as a
series of Registered Securities is listed on the Luxembourg Stock Exchange
and it is required by rules of the Luxembourg Stock Exchange, publication
shall have been made of such notice with regard to such series of
Securities in the English language in an Authorized Newspaper.
SECTION 8. For the sole benefit of the holders of (i) the 2006 Senior Notes,
Sections 305, 305A and 305B of the Indenture are hereby deleted in their
entirety and replaced by the following Sections 305, 305A, 305B, 305C, 305D and
305E (the "New Provisions"); and (ii) the 2010 Senior Notes and the Senior
Debentures, Section 6 of the Fourth Supplemental Indenture is hereby deleted in
its entirety and replaced with the following; provided that references to the
2010 Senior Notes and the Senior Debentures (or any other similar term)
contained in the New Provisions shall be deleted from the version of the New
Provisions which applies to the 2006 Senior Notes; and provided further, that
references to the 2006 Senior Notes (or any other similar
6
term) contained in the New Provisions shall be deleted from the version of the
New Provisions which applies to the 2010 Senior Notes and the Senior Debentures:
SECTION 305. Registrar and Paying Agent. The Company shall maintain an
office or agency in the City of New York where Securities may be presented
for transfer or for exchange (the "Transfer Agent") and for the
registration of such transfer or exchange (the "Registrar", which term
shall include acting in the capacity of Transfer Agent), an office or
agency in the City of New York where Securities may be presented for
payment (the "Paying Agent") and an office or agency where notices and
demands to or upon the Company in respect of the Securities and this
Indenture may be served, which shall be in the Borough of Manhattan, The
City of New York and, in the event any series of Securities is listed on
the Luxembourg Stock Exchange, in Luxembourg with respect to such series.
The Company shall cause the Registrar to keep a register of the Securities
and of their transfer and exchange (the "Security Register"). The Security
Register shall be in written form or any other form capable of being
converted into written form within a reasonable time. The Company may have
one or more co-Registrars and one or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
give prompt written notice to the Trustee of the name and address of any
such Agent and any change in the address of such Agent. If the Company
fails to maintain a Registrar, Paying Agent and/or agent for service of
notices and demands, the Trustee shall act as such Registrar, Paying Agent
and/or agent for service of notices and demands. The Company may remove any
Agent upon written notice to such Agent and the Trustee; provided that no
such removal shall become effective until (i) the acceptance of an
appointment by a successor Agent to such Agent as evidenced by an
appropriate agency agreement entered into by the Company and such successor
Agent and delivered to the Trustee or (ii) notification to the Trustee that
the Trustee shall serve as such Agent until the appointment of a successor
Agent in accordance with clause (i) of this proviso. The Company, any
Subsidiary of the Company, or any Affiliate of any of them may act as
Paying Agent, Registrar or co-Registrar, and/or agent for service of notice
and demands.
The Company initially appoints the Trustee as Registrar, Paying Agent,
Authenticating Agent and agent for service of notice and demands and
Kredietbank S.A. Luxembourgeoise as Transfer Agent, Paying Agent and agent
for service of notice and demands in Luxembourg, at Kredietbank S.A.
Luxembourgeoise, 43, Boulevard Royal, L-2955 Luxembourg; Attention:
Corporate Trust Department. The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the
names and addresses of Holders and shall otherwise comply with TIA ss.
312(a). If the Trustee is not the Registrar, the Company shall furnish to
the Trustee as of each Regular Record Date and at such other times as the
Trustee may reasonably request the names and addresses of Holders as they
appear in the Security
7
Register, including the aggregate principal amount of Securities held by
each Holder.
SECTION 305A. Transfer and Exchange. A Holder may transfer a Security
only by written application to the Registrar stating the name of the
proposed transferee and otherwise complying with the terms of this
Indenture. No such transfer shall be effected until, and such transferee
shall succeed to the rights of a Holder only upon, final acceptance and
registration of the transfer by the Registrar in the Security Register.
Prior to the registration of any transfer by a Holder as provided herein,
the Company, the Trustee, and any agent of the Company shall treat the
person in whose name the Security is registered as the owner thereof for
all purposes whether or not the Security shall be overdue, and neither the
Company, the Trustee, nor any such agent shall be affected by notice to the
contrary. Furthermore, any Holder of a Global Security shall, by acceptance
of such Global Security, agree that transfers of beneficial interests in
such Global Securities may be effected only through a book-entry system
maintained by the Holder of such Global Security (or its agent) and that
ownership of a beneficial interest in the Security shall be required to be
reflected in a book-entry. When Securities are presented to the Registrar
or a co-Registrar with a request to register the transfer or to exchange
them for an equal principal amount of Securities of other authorized
denominations; provided that (i) the Registrar shall register the transfer
or make the exchange as requested if its requirements for such transactions
are met (including that such Securities are duly endorsed or accompanied by
a written instrument of transfer in form satisfactory to the Trustee and
Registrar duly executed by the Holder thereof or by an attorney who is
authorized in writing to act on behalf of the Holder) and (ii) the
requirements of Section 305D herein are met. To permit registrations of
transfers and exchanges, the Company shall execute and the Trustee shall
authenticate Securities at the Registrar's request. No service charge shall
be made for any registration of transfer or exchange or redemption of the
Securities, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith. Securities presented to Kredietbank S.A. Luxembourgeoise with a
request to register the transfer or exchange of such Securities will be
forwarded, along with such request, by Kredietbank S.A. Luxembourgeoise to
the Registrar.
The Registrar shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities selected for redemption under Article Eleven and
ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so selected for
redemption in whole or in part, except the unredeemed portion of any
Security being redeemed in part.
SECTION 305B. Legend on Restricted Securities. Unless and until a 2006
Senior Note, a 2010 Senior Note or a Senior Debenture is exchanged for an
Exchange Note or Exchange Debenture, as the case may be, or sold in
connection with an effective
8
Shelf Registration Statement pursuant to the Registration Rights Agreement,
(i) the U.S. Global 2006 Senior Notes, the U.S. Global 2010 Senior Notes
and U.S. Global Senior Debentures shall bear the legend set forth on the
face of Exhibit A, Exhibit B and Exhibit C hereto, respectively, and (ii)
the Offshore Global 2006 Senior Notes, the Offshore 2010 Senior Notes and
Offshore Global Senior Debentures shall bear the legend set forth on the
face of Exhibit A, Exhibit B and Exhibit C hereto respectively, until (A)
at least the 41st day after the Closing Date and (B) receipt by the Company
and the Trustee of a certificate substantially in the form of Appendix I
hereto.
Except as provided in Section 305D, the Trustee shall not issue any
unlegended 2006 Senior Notes, 2010 Senior Notes or Senior Debentures until
it has received an Officers' Certificate from the Company directing it to
do so.
SECTION 305C. Book-Entry Provisions for U.S. Global Securities and
Offshore Global Securities. (a) Each U.S. Global Security and Offshore
Global Security initially shall (i) be registered in the name of the
Depositary for such U.S. Global Security or Offshore Global Security or the
nominee of such Depositary, (ii) be delivered, as applicable, either to the
Trustee, as U.S. Depositary, or to the Common Depositary and (iii) bear
legends as set forth on the face of the form of the 2006 Senior Note, 2010
Senior Note or Senior Debenture, as the case may be.
Members of, or Participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary, or the Trustee as its custodian or
the Common Depositary, as applicable, or under such Global Security, and
the Depositary may be treated by the Company, the Trustee and any agent of
the Company or the Trustee as the absolute owner of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or impair, as between the
Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a holder of any Security.
(b) Transfers of a Global Security shall be limited to transfers of
such Global Security in whole, but not in part, to the Depositary, its
successors or their respective nominees, and as further specified in
Section 305D. Transfers of interests in one Global Security to parties who
will hold the interests through the same Global Security will be effected
in the ordinary way in accordance with the respective rules and operating
procedures of the applicable Depositaries and the provisions of Section
305D. The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" of Euro-clear and the
"General Terms and Conditions of Clearstream" and "Customer Handbook" of
Cedel S.A. shall be applicable to interests in the Global Securities that
are held by Agent Members through Euro-clear and Cedel S.A.
9
(c) Any beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an interest in
another Global Security will, upon transfer, cease to be an interest in
such Global Security and become an interest in such other Global Security
and, accordingly, will thereafter be subject to all transfer restrictions,
if any, and other procedures applicable to beneficial interests in such
other Global Security for so long as it remains such an interest.
(d) In connection with any transfer of a portion of the interests in a
Global Security to beneficial owners pursuant to paragraph (b) of this
Section 305C, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of such Global Security in an amount
equal to the principal amount of the interest in such Global Security to be
transferred.
(e) In connection with the transfer of the U.S. Global Securities or
the Offshore Global Securities, in whole, to beneficial owners pursuant to
paragraph (b) of this Section 305C, the U.S. Global Securities or Offshore
Global Securities, as the case may be, shall be deemed to be surrendered to
the Trustee for cancellation.
(f) The registered holder of a Global Security may grant proxies and
otherwise authorize any person, including Agent Members and persons that
may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Securities.
(g) The Securities are initially solely issuable as Global Securities.
Registered Securities shall only be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Security, if (i) the
Depositary with respect to such Global Securities notifies the Company that
it is unwilling or unable to continue as Depositary for such Global
Security, as the case may be, and a successor Depositary is not appointed
by the Company within 90 days of such notice or (ii) an Event of Default
has occurred and is continuing and the Registrar has received a request to
the foregoing effect from the Depositary or the Trustee.
(h) All Securities issued upon any transfer or exchange of Securities
shall be valid, legally enforceable obligations of the Company, evidencing
the same debt, and entitled to the same benefits under this Indenture, as
the Securities surrendered upon such transfer or exchange.
SECTION 305D. (a) Transfers to QIBs. The following provisions shall
apply with respect to the registration of any proposed transfer of 2006
Senior Notes, 2010 Senior Notes or Senior Debentures constituting a
Restricted Security to a qualified institutional buyer as defined in Rule
144A (a "QIB"):
(i) if the 2006 Senior Notes, 2010 Senior Notes or Senior
Debentures to be transferred consist of an interest in the U.S. Global
10
Securities, the transfer of such interest may be effected through the
book-entry system maintained by the Depositary; and
(ii) (A) if the proposed transferor is an Agent Member holding a
beneficial interest in the Offshore Global 2006 Senior Notes, Offshore
Global 2010 Senior Notes or Offshore Global Senior Debentures, upon
receipt by the Registrar of instructions in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and a decrease in the
principal amount of the Offshore Global 2006 Senior Notes, Offshore
Global 2010 Senior Notes or Offshore Global Senior Debentures, as the
case may be, in an amount equal to the principal amount of the
beneficial interest in the Offshore Global 2006 Senior Notes, Offshore
Global 2010 Senior Notes or Offshore Global Senior Debentures to be
transferred, and (B) if the proposed transferee is an Agent Member,
upon receipt by the Registrar of instructions given in accordance with
the Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and an increase in the
principal amount of the U.S. Global 2006 Senior Notes, U.S. Global
2010 Senior Notes or U.S. Global Senior Debentures, as the case may
be, in an amount equal to the principal amount of the Offshore Global
2006 Senior Notes, Offshore Global 2010 Senior Notes or Offshore
Global Senior Debentures to be transferred and the Trustee shall
decrease the amount of the Offshore Global 2006 Senior Notes, Offshore
Global 2010 Senior Notes or Offshore Global Senior Debentures.
(b) Transfers of Interests in the Offshore Global Securities. The
following provisions shall apply with respect to any transfer of interests
in Offshore Global Securities:
(i) until the expiration of the 40-day distribution compliance
period within the meaning of Rule 903 of Regulation S, any offer or
sale of interests in the Offshore Global Securities shall be made (a)
outside the United States (1) in compliance with Rule 903 or 904 under
the Securities Act or (2) to a QIB in compliance with Rule 144A and
(b) in accordance with all applicable securities laws of the states of
the United States or any other applicable jurisdiction;
(ii) prior to the removal of the legend from the Offshore Global
Securities pursuant to Section 305B, the Registrar shall refuse to
register such transfer unless such transfer complies with this Section
305D, and
(iii) after such removal, the Registrar shall register the
transfer of any such 2006 Senior Note, 2010 Senior Note or Senior
Debenture without requiring any additional certification.
11
(c) Transfers to Regulation S Non-U.S. Persons at Any Time. The
following provisions shall apply with respect to any transfer of a
Restricted Security to a Regulation S Non-U.S. Person:
(i) The Registrar shall register any proposed transfer to any
Regulation S Non-U.S. Person if (A) the Security to be transferred is
an interest in U.S. Global Securities, (B) the proposed transferor has
delivered to the Registrar a certificate substantially in the form of
Appendix I hereto and (C) if requested by the Company, the proposed
transferee has delivered to the Registrar an opinion of counsel
acceptable to the Company that such transfer is in compliance with the
Securities Act.
(ii) (A) If the proposed transferor is an Agent Member holding a
beneficial interest in U.S. Global 2006 Senior Notes, U.S. Global 2010
Senior Notes or U.S. Global Senior Debentures, as the case may be,
upon receipt by the Registrar of (x) the documents, if any, required
by paragraph (i) and (y) instructions in accordance with the
Depositary's and the Registrar's procedures, the Registrar shall
reflect on its books and records the date and a decrease in the
principal amount of the U.S. Global 2006 Senior Notes, U.S. Global
2010 Senior Notes or U.S. Global Senior Debentures, as the case may
be, in an amount equal to the principal amount of the beneficial
interest in the U.S. Global Security to be transferred, and (B) if the
proposed transferee is an Agent Member, upon receipt by the Registrar
of instructions given in accordance with the Depositary's and the
Registrar's procedures, the Registrar shall reflect on its books and
records the date and an increase in the principal amount of the
Offshore Global 2006 Senior Notes, Offshore Global 2010 Senior Notes
or Offshore Global Senior Debentures, as the case may be, in an amount
equal to the principal amount of the U.S. Global Securities to be
transferred, and the Trustee shall decrease the amount of the U.S.
Global Securities.
SECTION 305E. General. By its acceptance of any 2006 Senior
Notes, 2010 Senior Notes or Senior Debentures bearing the legends set
forth on the face of the form of the 2006 Senior Note, 2010 Senior Note
or Senior Debenture, as the case may be, each Holder of such a 2006
Senior Note, 2010 Senior Note or Senior Debenture acknowledges the
restrictions on transfer of such 2006 Senior Note, 2010 Senior Note or
Senior Debenture set forth in the Indenture and in such legends and
agrees that it will transfer such 2006 Senior Note, 2010 Senior Note or
Senior Debenture only as provided in the Indenture.
The Registrar shall retain, in accordance with its customary
procedures, copies of all letters, notices and other written
communications received pursuant to this Section 305E. The Company
shall have the right to inspect and make copies of all such letters,
notices or other written communications at any reasonable time upon the
giving of reasonable written notice to the Registrar.
12
SECTION 9. For the sole benefit of the Holders of the 2006 Senior Notes, Section
307 shall be amended by deleting the first paragraph thereof and replacing such
paragraph in its entirety with the following:
(a) Interest on any Registered Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid, in immediately available funds, to the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 1002;
provided, however, that each installment of interest on any Registered
Security may at the Company's option be paid in immediately available funds
by transfer to an account maintained by the payee located in the United
States.
SECTION 10. For the sole benefit of the Holders of the 2006 Senior Notes,
Section 501 shall be amended by deleting in subparagraphs (4) and (5)
thereunder, the references to the amount $100 million, and replacing such
references with the amount $250 million.
SECTION 11. For the sole benefit of the Holders of the 2006 Senior Notes, the
first paragraph of Section 1007 of the Indenture is hereby deleted and replaced
by the following paragraphs:
The Company shall, subject to the exceptions and limitations set forth
below, pay as additional interest on the Securities of any series, such
additional amounts (the "Additional Amounts") as are necessary in order
that the net payment to be made by the Company or by a Paying Agent on
behalf of the Company, of the principal of and interest on a series of
Securities to a Holder who is a non-United States Person, after deduction
for any present or future tax, assessment or other governmental charge of
the United States or a political subdivision or taxing authority thereof or
therein, imposed by withholding with respect to such payment, will not be
less than the amount provided in the Securities to be then due and payable;
provided, however, that the foregoing obligation to pay Additional Amounts
shall not apply:
(1) to any tax, assessment or other governmental charge that is
imposed or withheld solely by reason of the Holder, or a fiduciary,
settlor, beneficiary, member or shareholder of the Holder, if the Holder is
an estate, trust, partnership or corporation, or a Person holding a power
over an estate or trust administered by a fiduciary Holder, being
considered as:
(a) being or having been present or engaged in a trade or
business in the United States or having had a permanent establishment
in the United States;
(b) having a current or former relationship with the United
States, including a relationship as a citizen or resident thereof;
13
(c) being or having been a foreign or domestic personal holding
company, a passive foreign investment company or a controlled foreign
corporation with respect to the United States or a corporation that
has accumulated earnings to avoid United States federal income tax;
(d) being or having a "10-percent shareholder" of the Company, as
defined in Section 871(h)(3) of the United States Internal Revenue
Code or any successor provision thereof; or
(e) being a bank receiving payments on an extension of credit
made pursuant to a loan agreement entered into in the ordinary course
of its trade or business;
(2) to any Holder that is not the sole beneficial owner of a Security,
or a portion thereof, or that is a fiduciary or partnership, but only to
the extent that a beneficiary or settlor with respect to the fiduciary, a
beneficial owner or member of the partnership would not have been entitled
to the payment of any Additional Amount had the beneficiary, settlor,
beneficial owner or member received directly its beneficial or distributive
share of the payment;
(3) to any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure of the Holder or any other
person to comply with certification, identification or information
reporting requirements concerning the nationality, residence, identity or
connection with the United States, or otherwise with respect to the status,
of the Holder or beneficial owner of such Security (or any beneficiary,
settlor, beneficial owner or member thereof), if compliance is required by
statute, by regulation of the United States Treasury Department or by an
applicable income tax treaty to which the United States is a party, or by
any official interpretation or ruling promulgated pursuant to any of the
foregoing, as a precondition to exemption from such tax, assessment or
other governmental charge;
(4) to any tax, assessment or other governmental charge that is
imposed otherwise than by withholding by the Company or by a Paying Agent
on its behalf from the payment;
(5) to any tax, assessment or other governmental charge that is
imposed or withheld solely by reason of a change in law, regulation, or
administrative or judicial interpretation that becomes effective more than
15 days after the payment becomes due or is duly provided for, whichever
occurs later;
(6) to any estate, inheritance, gift, sales, excise, transfer, wealth
or personal property tax or similar tax, assessment or other governmental
charge;
(7) to any tax, assessment or other governmental charge required to be
withheld by any Paying Agent from any payment of principal of or interest
on any Security, if such payment can be made without such withholding by
any other Paying Agent on behalf of the Company; or
14
(8) in the case of any combination of items (1), (2), (3), (4), (5),
(6) and (7).
The Securities are subject in all cases to any tax, fiscal or
other law or regulation or administrative or judicial interpretation
applicable thereto. Except as otherwise provided for in this Section 1007
and Section 1101, the Company shall not be required to make any payments
with respect to any tax, assessment or other governmental charge imposed by
any government or a political subdivision or taxing authority thereof or
therein.
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of (or premium, if any, on) or interest on, or in
respect of, any Security of a series or payment of any related coupon or
the net proceeds received on the sale or exchange of a Security of a
series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for by the terms of such series established
pursuant to Section 301 to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to such
terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is
not made.
SECTION 12. For the sole benefit of the Holders of the 2006 Senior Notes,
Section 1010 of the Indenture is hereby deleted in its entirety and replaced by
the following Section 1010:
Section 1010. Limitations on Liens.
The Company shall not create, assume or suffer to exist any Lien on
any of its property or assets, without securing the Securities of any
applicable series equally and ratably with (or prior to) such secured
Indebtedness; provided, however, that the foregoing shall apply only to
Liens which in the aggregate exceed 15% of the Company's total consolidated
assets as of the end of the Company's most recent accounting period
preceding the creation or assumption of any such Lien (reduced by any
Attributable Debt with respect to any Sale and Leaseback Transaction
permitted under Section 1011 below). This restriction will not apply to
Capitalized Leases or to Indebtedness secured by (a) Liens existing on
January 17, 2001, and Liens on property of, or Indebtedness of, any Person
at the time such Person becomes a Subsidiary (whether by acquisition or
otherwise, including through merger or consolidation), (b) Liens in favor
of the Company or a Subsidiary of the Company, (c) Liens existing at the
time of acquisition of the assets secured thereby (including acquisition
through merger or consolidation) and purchase money Liens, and (d) any
extension, renewal or refunding of any Lien referred to in the foregoing
clauses (a) through (c), inclusive.
SECTION 13. For the sole benefit of the Holders of the 2006 Senior Notes,
Section 1101 of the Indenture is hereby deleted in its entirety and replaced by
the following Section 1101:
15
Section 1101. Optional Redemption.
In the event that as a result of any change in, or amendments to, any
laws (or any regulations or rulings promulgated thereunder) of the United
States (or any political subdivision or taxing authority thereof or
therein) or any change in, or amendments to, an official position regarding
the application of such laws, regulations or rulings, which change or
amendment is announced or becomes effective thereunder after January 9,
2001, the Company has become or, based upon a written opinion of
independent counsel selected by the Company, will become obligated to pay,
with respect to a series of Securities, any Additional Amounts, the Company
may redeem, in accordance with this Article Eleven, all, but not less than
all, the Securities of such series at any time at 100% of the principal
amount thereof, together with accrued interest thereon, if any, to the
Redemption Date (subject to the rights of holders of record on the relevant
Regular Record Date that is prior to the Redemption Date to receive
interest on the relevant Interest Payment Date).
SECTION 14. For the sole benefit of the Holders of the 2006 Senior Notes, a new
Section 1108 shall be added to the Indenture and, for the sole benefit of the
Holders of the 2010 Senior Notes and Senior Debentures, the Fourth Supplemental
Indenture shall be amended to add a new Section 11A which shall add a new
Section 1108 to the Indenture as follows:
(a) Exchange Notes or Exchange Debentures may from time to time be
executed by the Company and delivered to the Trustee for authentication and
the Trustee shall thereupon authenticate and deliver said Exchange Notes or
Exchange Debentures, upon cancellation of an equal amount of Restricted
Securities tendered in exchange, upon a Company Order without further
action by the Company.
(b) No exchange of 2006 Senior Notes, 2010 Senior Notes or Senior
Debentures for Exchange Notes or Exchange Debentures, as the case may be,
shall occur until a Registration Statement shall have been declared
effective by the Commission and any 2006 Senior Notes, 2010 Senior Notes or
Senior Debentures that are exchanged for Exchange Notes or Exchange
Debentures shall be cancelled by the Trustee.
SECTION 15. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS FIFTH
SUPPLEMENTAL INDENTURE.
SECTION 16. This Fifth Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but such counterparts shall together constitute but one and the same instrument.
SECTION 17. Except as herein amended with respect to the 2006 Senior Notes, 2010
Senior Notes and the Senior Debentures, all applicable terms, conditions and
provisions of the Indenture, as supplemented, shall continue in full force and
effect and shall remain binding and enforceable in accordance with their
respective terms.
16
IN WITNESS WHEREOF, the parties have caused this Fifth Supplemental
Indenture to be duly executed and attested, all as of the day and year first
written above.
VIACOM INC.
By: /s/ Robert G. Freedline
-------------------------------------
Name: Robert G. Freedline
Title: Vice President and Treasurer
ATTEST
By: /s/ Angeline C. Straka
------------------------------
Name: Angeline C. Straka
Title:
VIACOM INTERNATIONAL INC.
By: /s/ Robert G. Freedline
-------------------------------------
Name: Robert G. Freedline
Title: Vice President and Treasurer
ATTEST
By: /s/ Angeline C. Straka
------------------------------
Name: Angeline C. Straka
Title:
CITIBANK, N.A.
By: /s/ Pat DeFelice
-------------------------------------
Name: Pat DeFelice
Title: Vice President
ATTEST
By: /s/ Nancy Forte
-------------------------------------
Name: Nancy Forte
Title: Senior Trust Officer
17
EXHIBIT A TO FIFTH SUPPLEMENTAL INDENTURE
Unless and until a Security is exchanged for an Exchange Note or sold in
connection with an effective Registration Statement pursuant to the Registration
Rights Agreement, (i) the U.S. Global Notes shall bear the legend set forth
below on the face thereof and (ii) the Offshore Global Notes shall bear the
legend set forth below on the face thereof until at least the 41st day after the
Closing Date and receipt by the Company and the Trustee of a certificate
substantially in the form of Appendix I hereto: THIS NOTE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT" ),
OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT (" RULE 144A" )), OR (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN " OFFSHORE TRANSACTION" PURSUANT TO RULE
903 OR 904 OF REGULATION S, (2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER
SUCH SECURITY PRIOR TO THE DATE WHICH IS THE LATER OF (X) TWO YEARS (OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS
SECURITY) AND THE LAST DATE ON WHICH VIACOM OR ANY AFFILIATE OF VIACOM WAS THE
OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF
ANY, AS MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION
DATE" ) EXCEPT (A) TO VIACOM OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A INSIDE THE UNITED STATES, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS
OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE
IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE
THE UNITED STATES PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN
OFFSHORE TRANSACTION WITHIN THE MEANING AND CONSISTENT WITH THE TERMS AND
CONDITIONS OF REGULATION S UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
(3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT VIACOM, THE
TRUSTEE, THE TRANSFER AGENT AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO
A-1
CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION REASONABLY SATISFACTORY TO EACH OF THEM,
AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO VIACOM AND THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE. AS USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE TRANSACTION," AND
"U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
Each Offshore Global Note shall bear the following legend: PRIOR TO
EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S, THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO A U.S. PERSON OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON.
Each Global Security shall bear the following legend: 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 inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Any Global Security issued hereunder shall bear a legend in substantially
the following form: This Security is a Global Security within the meaning of the
Indenture hereinafter referred to 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, and may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary by a nominee of the Depositary, 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 a successor Depositary.
Unless and until it is exchanged in whole or in part for Securities in
definitive registered form in accordance with the provisions of the Indenture
(as defined below) applicable to such exchange, this certificate may not be
transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC or by DTC or any such nominee to a successor
Depository or a nominee of such successor Depository.
A-2
VIACOM INC.
6.40% Senior Notes due 2006
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
No. $
CUSIP: [ ]
CINS: [ ]
ISIN: [ ]
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 $[_________] on January 30, 2006 at the office or agency of
the Company referred to below, and to pay interest thereon on July 30, 2001 and
semi-annually thereafter, on January 30 and July 30 in each year, from January
17, 2001, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, at the rate of 6.40% 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 January 15 or July 15, as the case may be, next
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 not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, 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 in immediately available funds by transfer to an account
maintained by the payee located in the United States.
The statements set forth in the restrictive legends above are an integral
part of the terms of this Note and by acceptance hereof each holder of this Note
agrees to be subject to and bound by terms and provisions set forth in such
legend.
A-3
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 May 15, 1995 among the Company, Viacom +International Inc., as guarantor
(the "Guarantor") and Citibank, N.A., as successor to State Street Bank and
Trust Company and The First National Bank of Boston, trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), as
supplemented by the First Supplemental Indenture dated as of May 24, 1995 among
the Company, the Guarantor and the trustee party thereto, as supplemented and
amended by the Second Supplemental Indenture and Amendment No. 1 dated as of
December 15, 1995 among the Company, the Guarantor and the trustee party
thereto, as supplemented by the Third Supplemental Indenture dated as of July
22, 1996, among the Company, the Guarantor and the trustee party thereto, as
supplemented by the Fourth Supplemental Indenture dated as of August 1, 2000
among the Company, the Guarantor and the Trustee and as further supplemented by
the Fifth Supplemental Indenture dated as of January 17, 2001 among the Company,
the Guarantor and the Trustee (as so supplemented and amended, the "Indenture"),
to which Indenture and all indentures supplemental thereto 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 6.40% Senior Notes due 2006, initially limited in aggregate
principal amount to $400,000,000. This Security is a global Security
representing $[___________] of the Securities.
INCLUDE IF SECURITY IS A GLOBAL NOTE - This Note is a "book-entry" Note and
is being registered in the name of Cede & Co. as nominee of The Depository Trust
Company ("DTC"), a clearing agency. Subject to the terms of the Indenture, this
Note will be held by a clearing agency or its nominee, and beneficial interest
will be held by beneficial owners through the book-entry facilities of such
clearing agency or its nominee in minimum denominations of $1,000 and integral
multiples thereof. As long as this Note is registered in the name of DTC or its
nominee, the Trustee will make payments of principal of and interest on this
Note by wire transfer of immediately available funds to DTC or its nominee.
Notwithstanding the above, the final payment on this Note will be made after due
notice by the Trustee of the pendency of such payment and only upon presentation
and surrender of this Note at its principal corporate trust office or such other
offices or agencies appointed by the Trustee for that purpose and such other
locations provided in the Indenture.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement, dated as of January 17, 2001. In the event that (i) the
Company fails to file an Exchange Offer Registration Statement with respect to
the Notes with the Commission on or prior to the 60th calendar day following the
Closing Date, (ii) the Commission does not declare such Exchange Offer
Registration Statement effective on or prior to the 180th calendar day following
the Closing Date, (iii) the Exchange Offer is not consummated on or prior to the
45th calendar day following the effective date of the Exchange Offer
Registration Statement or (iv) if required, a Shelf Registration Statement with
respect to the Notes is not declared effective by the Commission on or prior to
the 240th calendar day following the Closing Date or ceases to be effective or
usable during the periods specified in the Registration Rights Agreement (each,
a "Registration Default"), the per annum interest rate borne by the Notes shall
be increased by one-quarter of one percent (0.25%) per annum from the end of the
applicable period giving rise
A-4
to such Registration Default. The interest rate borne by the Notes will be
increased by an additional one-quarter of one percent (0.25%) per annum for each
subsequent 90-day period during which any such Registration Default continues;
provided that the aggregate increase in such annual interest rate may in no
event exceed one-half of one percent (0.50%) per annum. Following the cure of
all Registration Defaults, the interest rate borne by the Notes shall be reduced
to the original interest rate borne by the Notes. No increase in the rate shall
be payable for any period during which a Shelf Registration is effective. All
accrued additional interest shall be paid to Holders by the Company in the same
manner as interest is paid pursuant to the Indenture. All terms used in this
Note that are defined in the Registration Rights Agreement shall have the
meanings assigned to them in the Registration Rights Agreement.
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.
The Securities of this series are not subject to any sinking fund and are
subject to redemption prior to maturity as set forth below.
In the event that as a result of any change in, or amendments to, any laws
(or any regulations or rulings promulgated thereunder) of the United States (or
any political subdivision or taxing authority thereof or therein) or any change
in, or amendments to, an official position regarding the application of such
laws, regulations or rulings, which change or amendment is announced or becomes
effective thereunder after July 25, 2000, the Company has become or, based upon
a written opinion of independent counsel selected by the Company, will become
obligated to pay, with respect to this series of Securities, any Additional
Amounts, the Company may redeem all, but not less than all, the Securities of
such series at any time at 100% of the principal amount thereof, together with
accrued interest thereon, if any, to the Redemption Date (subject to the rights
of holders of record on the relevant Regular Record Date that is prior to the
Redemption Date to receive interest on the relevant Interest Payment Date).
INCLUDE IF SECURITY IS A GLOBAL SECURITY-In the event of a deposit or
withdrawal of an interest in this Note, including an exchange, transfer,
repurchase or conversion of this Note in part only, the Trustee, as custodian of
the Depository, shall make an adjustment on its records to reflect such deposit
or withdrawal in accordance with the rules and procedures of the Depositary.
INCLUDE IF SECURITY IS A RESTRICTED SECURITY - Subject to certain
limitations in the Indenture, at any time when the Company is not subject to
Section 13 or 15(d) of the U.S. Securities Exchange Act of 1934, as amended,
upon the request of a Holder of a Restricted Security, the Company will promptly
furnish or cause to be furnished Rule 144A Information (as defined below) to
such Holder of Restricted Securities, or to a prospective purchaser of any such
security designated by any such Holder, to the extent required to permit
compliance by any such Holder with Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act"). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto).
A-5
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.
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 to be
affected 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 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 by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder 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.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registerable 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.
A-6
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. 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.
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.
Unless the certificate of authentication hereon has been duly executed by
or on behalf of Citibank, N.A., the 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.
This Security shall be governed by, and construed in accordance with, the
laws of the State of New York.
A-7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: January 17, 2001 VIACOM INC.,
as Issuer
By
------------------------------
Attest:
- ----------------------------
Authorized Signature
A-8
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series referred to in the within-
mentioned Indenture.
CITIBANK, N.A., as Trustee
By
-----------------------------
Authorized Signatory
Dated: January 17, 2001
A-9
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.
A-10
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.
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.
A-11
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be signed by
its Chairman of the Board, or its Vice Chairman of the Board, or its President,
or one of its Executive Vice Presidents or Vice Presidents, or by its Treasurer
or one of its Assistant Treasurers and attested by its Secretary or one of its
Assistant Secretaries, manually or in facsimile.
Dated: January 17, 2001 VIACOM INTERNATIONAL INC.
By
-----------------------
ATTEST:
----------------------------
A-12
EXHIBIT B TO FIFTH SUPPLEMENTAL INDENTURE
Unless and until a Security is exchanged for an Exchange Note or sold in
connection with an effective Registration Statement pursuant to the Registration
Rights Agreement, (i) the U.S. Global Notes shall bear the legend set forth
below on the face thereof and (ii) the Offshore Global Notes shall bear the
legend set forth below on the face thereof until at least the 41st day after the
Closing Date and receipt by the Company and the Trustee of a certificate
substantially in the form of Appendix I hereto: THIS NOTE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT" ),
OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT ("RULE 144A" )), OR (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903
OR 904 OF REGULATION S, (2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY PRIOR TO THE DATE WHICH IS THE LATER OF (X) TWO YEARS (OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY)
AND THE LAST DATE ON WHICH VIACOM OR ANY AFFILIATE OF VIACOM WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS
MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE" )
EXCEPT (A) TO VIACOM OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A INSIDE THE
UNITED STATES, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION
WITHIN THE MEANING AND CONSISTENT WITH THE TERMS AND CONDITIONS OF REGULATION S
UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND; PROVIDED THAT VIACOM, THE TRUSTEE, THE TRANSFER AGENT
AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
(I) PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL,
B-1
CERTIFICATION AND/OR OTHER INFORMATION REASONABLY SATISFACTORY TO EACH OF THEM,
AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A CERTIFICATE OF
TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS COMPLETED AND
DELIVERED BY THE TRANSFEROR TO VIACOM AND THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE. AS USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE TRANSACTION," AND
"U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S UNDER
THE SECURITIES ACT.
Each Offshore Global Note shall bear the following legend: PRIOR TO
EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S, THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO A U.S. PERSON OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON.
Each Global Security shall bear the following legend: 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 inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Any Global Security issued hereunder shall bear a legend in substantially
the following form: This Security is a Global Security within the meaning of the
Indenture hereinafter referred to 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, and may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary by a nominee of the Depositary, 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 a successor Depositary.
Unless and until it is exchanged in whole or in part for Securities in
definitive registered form in accordance with the provisions of the Indenture
(as defined below) applicable to such exchange, this certificate may not be
transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC or by DTC or any such nominee to a successor
Depository or a nominee of such successor Depository.
B-2
VIACOM INC.
7.70% Senior Notes due 2010
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
No. [_] $[______________]
CUSIP: [ ]
CINS: [ ]
ISIN: [ ]
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 $[_________] on July 30, 2010 at the office or agency of
the Company referred to below, and to pay interest thereon on January 30, 2001
and semi-annually thereafter, on January 30 and July 30 in each year, from
January 17, 2001, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 7.70% 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, in the case of the payment of interest on January 30,
2001, be January 17, 2001, and thereafter be the January 15 or July 15, as the
case may be, next 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 not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, 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 in immediately available funds by
transfer to an account maintained by the payee located in the United States.
The statements set forth in the restrictive legends above are an integral
part of the terms of this Note and by acceptance hereof each holder of this Note
agrees to be subject to and bound by terms and provisions set forth in such
legend.
B-3
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 May 15, 1995 among the Company, Viacom +International Inc., as guarantor
(the "Guarantor") and Citibank, N.A., as successor to State Street Bank and
Trust Company and The First National Bank of Boston, trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), as
supplemented by the First Supplemental Indenture dated as of May 24, 1995 among
the Company, the Guarantor and the trustee party thereto, as supplemented and
amended by the Second Supplemental Indenture and Amendment No. 1 dated as of
December 15, 1995 among the Company, the Guarantor and the trustee party
thereto, as supplemented by the Third Supplemental Indenture dated as of July
22, 1996, among the Company, the Guarantor and the trustee party thereto, as
supplemented by the Fourth Supplemental Indenture dated as of August 1, 2000
among the Company, the Guarantor and the Trustee and as further supplemented by
the Fifth Supplemental Indenture dated as of January 17, 2001 among the Company,
the Guarantor and the Trustee (as so supplemented and amended, the "Indenture"),
to which Indenture and all indentures supplemental thereto 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 7.70% Senior Notes due 2010, initially limited in aggregate
principal amount to $500,000,000. This Security is a global Security
representing $[___________] of the Securities.
INCLUDE IF SECURITY IS A GLOBAL NOTE - This Note is a "book-entry" Note and
is being registered in the name of Cede & Co. as nominee of The Depository Trust
Company ("DTC"), a clearing agency. Subject to the terms of the Indenture, this
Note will be held by a clearing agency or its nominee, and beneficial interest
will be held by beneficial owners through the book-entry facilities of such
clearing agency or its nominee in minimum denominations of $1,000 and integral
multiples thereof. As long as this Note is registered in the name of DTC or its
nominee, the Trustee will make payments of principal of and interest on this
Note by wire transfer of immediately available funds to DTC or its nominee.
Notwithstanding the above, the final payment on this Note will be made after due
notice by the Trustee of the pendency of such payment and only upon presentation
and surrender of this Note at its principal corporate trust office or such other
offices or agencies appointed by the Trustee for that purpose and such other
locations provided in the Indenture.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement, dated as of January 17, 2001. In the event that (i) the
Company fails to file an Exchange Offer Registration Statement with respect to
the Notes with the Commission on or prior to the 60th calendar day following the
Closing Date, (ii) the Commission does not declare such Exchange Offer
Registration Statement effective on or prior to the 180th calendar day following
the Closing Date, (iii) the Exchange Offer is not consummated on or prior to the
45th calendar day following the effective date of the Exchange Offer
Registration Statement or (iv) if required, a Shelf Registration Statement with
respect to the Notes is not declared effective by the Commission on or prior to
the 240th calendar day following the Closing Date or ceases to be effective or
usable during the periods specified in the Registration Rights Agreement (each,
a "Registration Default"), the per annum interest rate borne by the Notes shall
be increased by one-quarter of one percent (0.25%) per annum from the end of the
applicable period giving rise
B-4
to such Registration Default. The interest rate borne by the Notes will be
increased by an additional one-quarter of one percent (0.25%) per annum for each
subsequent 90-day period during which any such Registration Default continues;
provided that the aggregate increase in such annual interest rate may in no
event exceed one-half of one percent (0.50%) per annum. Following the cure of
all Registration Defaults, the interest rate borne by the Notes shall be reduced
to the original interest rate borne by the Notes. No increase in the rate shall
be payable for any period during which a Shelf Registration is effective. All
accrued additional interest shall be paid to Holders by the Company in the same
manner as interest is paid pursuant to the Indenture. All terms used in this
Note that are defined in the Registration Rights Agreement shall have the
meanings assigned to them in the Registration Rights Agreement.
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.
The Securities of this series are not subject to any sinking fund and are
subject to redemption prior to maturity as set forth below.
In the event that as a result of any change in, or amendments to, any laws
(or any regulations or rulings promulgated thereunder) of the United States (or
any political subdivision or taxing authority thereof or therein) or any change
in, or amendments to, an official position regarding the application of such
laws, regulations or rulings, which change or amendment is announced or becomes
effective thereunder after July 25, 2000, the Company has become or, based upon
a written opinion of independent counsel selected by the Company, will become
obligated to pay, with respect to this series of Securities, any Additional
Amounts, the Company may redeem all, but not less than all, the Securities of
such series at any time at 100% of the principal amount thereof, together with
accrued interest thereon, if any, to the Redemption Date (subject to the rights
of holders of record on the relevant Regular Record Date that is prior to the
Redemption Date to receive interest on the relevant Interest Payment Date).
The Securities of this series will be redeemable at any time, at the option
of the Company, in whole or from time to time in part, upon not less than 30 nor
more than 60 days' prior notice, on any date prior to their maturity at a
Redemption Price equal to the sum of 100% of the principal amount thereof and
the Make-Whole Amount and any accrued and unpaid interest, to the Redemption
Date (subject to the rights of holders of record on the relevant Regular Record
Date that is on or prior to the Redemption Date to receive interest due on the
relevant Interest Payment Date).
In the case of any partial redemption, selection of the Securities of this
series for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities of this series are listed or, if the Securities of this series are
not listed on a national securities exchange, by lot or by such other method as
the Trustee in its sole discretion shall deem to be fair and appropriate;
provided that no Securities of this series of $1,000 in principal amount or less
shall be redeemed in part. If any Note is to be redeemed in part only, the
notice of redemption relating to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in principal amount
B-5
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security.
INCLUDE IF SECURITY IS A GLOBAL SECURITY-In the event of a deposit or
withdrawal of an interest in this Note, including an exchange, transfer,
repurchase or conversion of this Note in part only, the Trustee, as custodian of
the Depository, shall make an adjustment on its records to reflect such deposit
or withdrawal in accordance with the rules and procedures of the Depositary.
INCLUDE IF SECURITY IS A RESTRICTED SECURITY - Subject to certain
limitations in the Indenture, at any time when the Company is not subject to
Section 13 or 15(d) of the U.S. Securities Exchange Act of 1934, as amended,
upon the request of a Holder of a Restricted Security, the Company will promptly
furnish or cause to be furnished Rule 144A Information (as defined below) to
such Holder of Restricted Securities, or to a prospective purchaser of any such
security designated by any such Holder, to the extent required to permit
compliance by any such Holder with Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act"). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto).
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.
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 to be
affected 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 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 by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder 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
B-6
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.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registerable 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.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. 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.
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.
B-7
Unless the certificate of authentication hereon has been duly executed by
or on behalf of Citibank, N.A., the 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.
This Security shall be governed by, and construed in accordance with, the
laws of the State of New York.
B-8
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: January 17, 2001 VIACOM INC.,
as Issuer
By
----------------------------------
Attest:
- ----------------------------------
Authorized Signature
B-9
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series referred to in the
within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By
--------------------------
Authorized Signatory
Dated: January 17, 2001
B-10
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.
B-11
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.
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.
B-12
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be signed by
its Chairman of the Board, or its Vice Chairman of the Board, or its President,
or one of its Executive Vice Presidents or Vice Presidents, or by its Treasurer
or one of its Assistant Treasurers and attested by its Secretary or one of its
Assistant Secretaries, manually or in facsimile.
Dated: January 17, 2001 VIACOM INTERNATIONAL INC.
By
--------------------------
ATTEST:
-------------------------
B-13
EXHIBIT C TO FIFTH SUPPLEMENTAL INDENTURE
Unless and until a Security is exchanged for an Exchange Note or sold in
connection with an effective Registration Statement pursuant to the Registration
Rights Agreement, (i) the U.S. Global Notes shall bear the legend set forth
below on the face thereof and (ii) the Offshore Global Notes shall bear the
legend set forth below on the face thereof until at least the 41st day after the
Closing Date and receipt by the Company and the Trustee of a certificate
substantially in the form of Appendix I hereto: THIS NOTE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT" ),
OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER THIS NOTE NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT ("RULE 144A" )), OR (B) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 903
OR 904 OF REGULATION S, (2) AGREES NOT TO OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY PRIOR TO THE DATE WHICH IS THE LATER OF (X) TWO YEARS (OR SUCH SHORTER
PERIOD OF TIME AS PERMITTED BY RULE 144(k) OF THE SECURITIES ACT) AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY)
AND THE LAST DATE ON WHICH VIACOM OR ANY AFFILIATE OF VIACOM WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE) AND (Y) SUCH LATER DATE, IF ANY, AS
MAY BE REQUIRED BY APPLICABLE LAW (THE "RESALE RESTRICTION TERMINATION DATE" )
EXCEPT (A) TO VIACOM OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A INSIDE THE
UNITED STATES, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) OUTSIDE THE UNITED STATES
PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN AN OFFSHORE TRANSACTION
WITHIN THE MEANING AND CONSISTENT WITH THE TERMS AND CONDITIONS OF REGULATION S
UNDER THE SECURITIES ACT, OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND; PROVIDED THAT VIACOM, THE TRUSTEE, THE TRANSFER AGENT
AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
(I) PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION REASONABLY SATISFACTORY TO
C-1
EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS NOTE IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO VIACOM AND THE TRUSTEE. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. AS USED HEREIN, THE TERMS "UNITED STATES," "OFFSHORE
TRANSACTION," AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
Each Offshore Global Note shall bear the following legend: PRIOR TO
EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD WITHIN THE MEANING OF
REGULATION S, THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO A U.S. PERSON OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON.
Each Global Security shall bear the following legend: 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 inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Any Global Security issued hereunder shall bear a legend in substantially
the following form: This Security is a Global Security within the meaning of the
Indenture hereinafter referred to 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, and may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary by a nominee of the Depositary, 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 a successor Depositary.
Unless and until it is exchanged in whole or in part for Securities in
definitive registered form in accordance with the provisions of the Indenture
(as defined below) applicable to such exchange, this certificate may not be
transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC or by DTC or any such nominee to a successor
Depository or a nominee of such successor Depository.
C-2
VIACOM INC.
7.875% Senior Debentures due 2030
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
No. [_] $[____________]
CUSIP: [ ]
CINS: [ ]
ISIN: [ ]
CUSIP: [ ] 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 $[_________] on July 30, 2030,
at the office or agency of the Company referred to below, and to pay interest
thereon on January 30, 2001 and semi-annually thereafter, on January 30 and July
30 in each year, from January 17, 2001, or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, at the rate of 7.875%
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, in the case of the payment of interest on
January 30, 2001, be January 17, 2001, and thereafter be the January 15 or July
15, as the case may be, next 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 not inconsistent with the requirements of any securities exchange
on which the Securities may be listed, and upon such notice as may be required
by such exchange, 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 in immediately available
funds by transfer to an account maintained by the payee located in the United
States.
The statements set forth in the restrictive legends above are an integral
part of the terms of this Note and by acceptance hereof each holder of this Note
agrees to be subject to and bound by terms and provisions set forth in such
legend.
C-3
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 May 15, 1995 among the Company, Viacom International Inc., as guarantor
(the "Guarantor") and Citibank, N.A., as successor to State Street Bank and
Trust Company and The First National Bank of Boston, trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), as
supplemented by the First Supplemental Indenture dated as of May 24, 1995 among
the Company, the Guarantor and the trustee party thereto, as supplemented and
amended by the Second Supplemental Indenture and Amendment No. 1 dated as of
December 15, 1995 among the Company, the Guarantor and the trustee party
thereto, as supplemented by the Third Supplemental Indenture dated as of July
22, 1996, among the Company, the Guarantor and the trustee party thereto, as
supplemented by the Fourth Supplemental Indenture dated as of August 1, 2000
among the Company, the Guarantor and the Trustee and as further supplemented by
the Fifth Supplemental Indenture dated as of January 17, 2001 among the Company,
the Guarantor and the Trustee (as so supplemented and amended, the "Indenture"),
to which Indenture and all indentures supplemental thereto 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 7.875% Senior Debentures due 2030, initially limited in aggregate
principal amount to $750,000,000. This Security is a global Security
representing $[____________] of the Securities.
INCLUDE IF SECURITY IS A GLOBAL NOTE - This Note is a "book-entry" Note and
is being registered in the name of Cede & Co. as nominee of The Depository Trust
Company ("DTC"), a clearing agency. Subject to the terms of the Indenture, this
Note will be held by a clearing agency or its nominee, and beneficial interest
will be held by beneficial owners through the book-entry facilities of such
clearing agency or its nominee in minimum denominations of $1,000 and integral
multiples thereof. As long as this Note is registered in the name of DTC or its
nominee, the Trustee will make payments of principal of and interest on this
Note by wire transfer of immediately available funds to DTC or its nominee.
Notwithstanding the above, the final payment on this Note will be made after due
notice by the Trustee of the pendency of such payment and only upon presentation
and surrender of this Note at its principal corporate trust office or such other
offices or agencies appointed by the Trustee for that purpose and such other
locations provided in the Indenture.
The Holder of this Note is entitled to the benefits of the Registration
Rights Agreement, dated as of January 17, 2001. In the event that (i) the
Company fails to file an Exchange Offer Registration Statement with respect to
the Notes with the Commission on or prior to the 60th calendar day following the
Closing Date, (ii) the Commission does not declare such Exchange Offer
Registration Statement effective on or prior to the 180th calendar day following
the Closing Date, (iii) the Exchange Offer is not consummated on or prior to the
45th calendar day following the effective date of the Exchange Offer
Registration Statement or (iv) if required, a Shelf Registration Statement with
respect to the Notes is not declared effective by the Commission on or prior to
the 240th calendar day following the Closing Date or ceases to be effective or
usable during the periods specified in the Registration Rights Agreement (each,
a "Registration Default"), the per annum interest rate borne by the Notes shall
be increased by one-quarter of one percent (0.25%) per annum from the end of the
applicable period giving rise
C-4
to such Registration Default. The interest rate borne by the Notes will be
increased by an additional one-quarter of one percent (0.25%) per annum for each
subsequent 90-day period during which any such Registration Default continues;
provided that the aggregate increase in such annual interest rate may in no
event exceed one-half of one percent (0.50%) per annum. Following the cure of
all Registration Defaults, the interest rate borne by the Notes shall be reduced
to the original interest rate borne by the Notes. No increase in the rate shall
be payable for any period during which a Shelf Registration is effective. All
accrued additional interest shall be paid to Holders by the Company in the same
manner as interest is paid pursuant to the Indenture. All terms used in this
Note that are defined in the Registration Rights Agreement shall have the
meanings assigned to them in the Registration Rights Agreement.
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.
The Securities of this series are not subject to any sinking fund and are
subject to redemption prior to maturity as set forth below.
In the event that as a result of any change in, or amendments to, any laws
(or any regulations or rulings promulgated thereunder) of the United States (or
any political subdivision or taxing authority thereof or therein) or any change
in, or amendments to, an official position regarding the application of such
laws, regulations or rulings, which change or amendment is announced or becomes
effective thereunder after July 25, 2000, the Company has become or, based upon
a written opinion of independent counsel selected by the Company, will become
obligated to pay, with respect to this series of Securities, any Additional
Amounts, the Company may redeem all, but not less than all, the Securities of
such series at any time at 100% of the principal amount thereof, together with
accrued interest thereon, if any, to the Redemption Date (subject to the rights
of holders of record on the relevant Regular Record Date that is prior to the
Redemption Date to receive interest on the relevant Interest Payment Date).
The Securities of this series will be redeemable at any time, at the option
of the Company, in whole or from time to time in part, upon not less than 30 nor
more than 60 days' prior notice, on any date prior to their maturity at a
Redemption Price equal to the sum of 100% of the principal amount thereof and
the Make-Whole Amount and any accrued and unpaid interest, to the Redemption
Date (subject to the rights of holders of record on the relevant Regular Record
Date that is on or prior to the Redemption Date to receive interest due on the
relevant Interest Payment Date).
In the case of any partial redemption, selection of the Securities of this
series for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities of this series are listed or, if the Securities of this series are
not listed on a national securities exchange, by lot or by such other method as
the Trustee in its sole discretion shall deem to be fair and appropriate;
provided that no Securities of this series of $1,000 in principal amount or less
shall be redeemed in part. If any Note is to be redeemed in part only, the
notice of redemption relating to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in principal amount
C-5
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security.
INCLUDE IF SECURITY IS A GLOBAL SECURITY-In the event of a deposit or
withdrawal of an interest in this Note, including an exchange, transfer,
repurchase or conversion of this Note in part only, the Trustee, as custodian of
the Depository, shall make an adjustment on its records to reflect such deposit
or withdrawal in accordance with the rules and procedures of the Depositary.
INCLUDE IF SECURITY IS A RESTRICTED SECURITY - Subject to certain
limitations in the Indenture, at any time when the Company is not subject to
Section 13 or 15(d) of the U.S. Securities Exchange Act of 1934, as amended,
upon the request of a Holder of a Restricted Security, the Company will promptly
furnish or cause to be furnished Rule 144A Information (as defined below) to
such Holder of Restricted Securities, or to a prospective purchaser of any such
security designated by any such Holder, to the extent required to permit
compliance by any such Holder with Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act"). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto).
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.
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 to be
affected 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 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 by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder 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
C-6
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.
C-7
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registerable 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.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. 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.
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.
Unless the certificate of authentication hereon has been duly executed by
or on behalf of Citibank, N.A., the 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.
This Security shall be governed by, and construed in accordance with, the
laws of the State of New York.
C-8
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: January 17, 2001 VIACOM INC.,
as Issuer
By
----------------------------------
Attest:
- --------------------------
Authorized Signature
C-9
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series referred to in the
within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By
--------------------------
Authorized Signatory
Dated: January 17, 2001
C-10
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.
C-11
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.
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.
C-12
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be signed by
its Chairman of the Board, or its Vice Chairman of the Board, or its President,
or one of its Executive Vice Presidents or Vice Presidents, or by its Treasurer
or one of its Assistant Treasurers and attested by its Secretary or one of its
Assistant Secretaries, manually or in facsimile.
Dated: January 17, 2001 VIACOM INTERNATIONAL INC.
By
-----------------------
ATTEST:
-----------------------------
C-13
APPENDIX I TO FIFTH SUPPLEMENTAL INDENTURE
EXCHANGE CERTIFICATE
VIACOM INC.
6.40% Senior Notes due 2006
7.70% Senior Notes due 2010
7.875% Senior Debentures due 2030
To: Viacom Inc.
1515 Broadway
New York, NY 10036
Citibank N.A.
111 Wall Street, 14th Floor
New York, NY 10005
We, as the seller of the Notes ("Seller"), are requesting a transfer (tick
one of the following) of:
- - our beneficial interest in the [Offshore Global 2006 Senior Notes /
Offshore Global 2010 Senior Notes / Offshore Global Senior Debentures] to a
purchaser wanting to receive a beneficial interest in the [U.S. Global 2006
Senior Notes / U.S. Global 2010 Senior Notes / U.S. Global Senior
Debentures].
- - our beneficial interest in the [Offshore Global 2006 Senior Notes /
Offshore Global 2010 Senior Notes / Offshore Global Senior Debentures] to a
purchaser wanting to receive a definitive restricted [2006 Senior Note /
2010 Senior Note / Senior Debenture].
- - our beneficial interest in the [Offshore Global 2006 Senior Notes /
Offshore Global 2010 Senior Notes / Offshore Global Senior Debentures] to a
purchaser wanting to receive a definitive [2006 Senior Note / 2010 Senior
Note / Senior Debenture].
- - our unrestricted definitive [2006 Senior Note / 2010 Senior Note / Senior
Debenture]to a purchaser wanting to receive a beneficial interest in the
[U.S. Global 2006 Senior Notes / U.S. Global 2010 Senior Notes / U.S.
Global Senior Debentures].
- - our unrestricted definitive [2006 Senior Note / 2010 Senior Note / Senior
Debenture] to a purchaser wanting to receive a restricted definitive [2006
Senior Note / 2010 Senior Note / Senior Debenture].
- - our unrestricted definitive [2006 Senior Note / 2010 Senior Note / Senior
Debenture] to a purchaser wanting to receive a beneficial interest in the
[Offshore Global 2006 Senior Notes / Offshore Global 2010 Senior Notes /
Offshore Global Senior Debentures].
- - our unrestricted definitive [2006 Senior Note / 2010 Senior Note / Senior
Debenture] to a purchaser wanting to receive an unrestricted definitive
[2006 Senior Note / 2010 Senior Note / Senior Debenture].
- - our restricted definitive [2006 Senior Note / 2010 Senior Note / Senior
Debenture] to a purchaser wanting to receive a beneficial interest in the
[Offshore Global 2006 Senior Notes / Offshore Global 2010 Senior Notes /
Offshore Global Senior Debentures].
- - our restricted definitive [2006 Senior Note / 2010 Senior Note / Senior
Debenture] to a purchaser wanting to receive a beneficial interest in the
[U.S. Global 2006 Senior Notes / U.S. Global 2010 Senior Notes / U.S.
Global Senior Debentures].
- - our restricted definitive [2006 Senior Note / 2010 Senior Note / Senior
Debenture] to a purchaser wanting to receive an unrestricted definitive
[2006 Senior Note / 2010 Senior Note / Senior Debenture].
- - our restricted definitive [2006 Senior Note / 2010 Senior Note / Senior
Debenture] to a purchaser wanting to receive a restricted definitive [2006
Senior Note / 2010 Senior Note / Senior Debenture].
- - our beneficial interest in the [U.S. Global 2006 Senior Notes / U.S. Global
2011 Senior Notes / U.S. Global Senior Debentures] to a purchaser wanting
to receive a beneficial interest in the [Offshore Global 2006 Senior Notes
/ Offshore Global 2011 Senior Notes / Offshore Global Senior Debentures].
- - our beneficial interest in the [Offshore Global 2006 Senior Notes /
Offshore Global 2011 Senior Notes / Offshore Global Senior Debentures] to a
purchaser wanting to receive a restricted definitive [2006 Senior Note /
2010 Senior Note / Senior Debenture].
- - our beneficial interest in the [U.S. Global 2006 Senior Notes / U.S. Global
2011 Senior Notes / U.S. Global Senior Debentures] to a purchaser wanting
to receive an unrestricted definitive [2006 Senior Note / 2010 Senior Note
/ Senior Debenture].
In connection with such request, and in respect of such Securities, we, as
the Seller do hereby certify that such Securities are being transferred in
accordance with the transfer restrictions set forth in the offering memorandum
prepared in connection with the issuance of the Securities and the Securities
and that we are transferring such Securities (tick one of the following):
- - to a person who the Seller reasonably believes is purchasing for its own
account or accounts as to which it exercises sole investment discretion;
such person and each such
I-ii
account is a "qualified institutional buyer" (as defined in Rule 144A of
the United States Securities Act of 1933, as amended (the "Securities
Act")); the purchaser is aware that the sale to it is being made in
reliance upon Rule 144A; and such transaction meets the requirements of
Rule 144A and is in accordance with any applicable securities laws of any
state of the United States or any other jurisdiction, or
- - in accordance with Regulation S under the Securities Act, and accordingly
the Seller does hereby certify that:
(i) the offer of the Securities was not made to a person in the
United States;
[(ii) at the time the buy order was originated, the Buyer was
outside of the United States or the Seller or any person acting on its
behalf reasonably believed that the Buyer was outside the United
States;](1)
[(ii) the transaction was executed in, or on or through the
facilities of a designated offshore securities market and neither the
Seller nor any person acting on its behalf knows that the transaction
was prearranged with a Buyer in the United States;](1)
(iii) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable;
(iv) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(v) with regard to transfers occurring within the 40-Day
Restricted Period, any beneficial interest in [Offshore Global 2006
Senior Notes / Offshore Global 2011 Senior Notes / Offshore Global
Senior Debentures] shall be held through either Euroclear or
Clearstream, Luxembourg.
- - other than in accordance with the above and documents are being furnished
to the Company and the Registrar which comply with the conditions of
transfer set forth in the [2006 Senior Note / 2010 Senior Note / Senior
Debenture] and the relevant agreements.
If none of the foregoing boxes are ticked, the Registrar shall not be obliged to
register the transfer of the [2006 Senior Note / 2010 Senior Note / Senior
Debenture].
Reference is hereby made to the Fifth Supplemental Indenture dated as of January
17, 2001, among Viacom Inc.(the "Company"), Viacom International Inc. (the
"Guarantor") and Citibank, N.A. to the Indenture dated as of May 15, 1995, among
the Company, the Guarantor and the trustee party thereto, as supplemented by the
First Supplemental Indenture, dated as of May 24, 1995, among the Company, the
Guarantor and the trustee party thereto, as supplemented and amended by the
Second Supplemental Indenture and Amendment No. 1, dated as of December 15,
1995, among the Company, the Guarantor and the trustee party thereto, as
supplemented by the Third Supplemental Indenture, dated as of July 22, 1996,
among the Company, the Guarantor
I-iii
and the trustee party thereto and as further supplemented by the Fourth
Supplemental Indenture, dated as of August 1, 2000 among the Company, the
Guarantor and the Trustee (as so amended, the "Indenture"). Terms used but not
defined herein shall have the meanings given to them in the Indenture. Other
terms shall have the meanings given to them in Regulation S.
[NAME OF SELLER]
By:
--------------------------------
Name of Seller
Dated:
------------------------------
- ------------------------------
(1) Include only one of alternative paragraphs (ii) as appropriate.
I-iv
FORM OF TRANSFER
FOR VALUE RECEIVED, the undersigned hereby transfers to
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(PRINT NAME AND ADDRESS OF TRANSFEREE)
U.S.$_______ principal amount of this Security, and all rights with respect
thereto, and irrevocably constitutes and appoints __________________ as attorney
to transfer this Security on the books kept for registration thereof, with full
power of substitution.
Dated
--------------------------- ------------------------------
Certifying Signature
Signed
---------------------------
Note:
(i) The signature on this transfer form must correspond to the name as it
appears on the face of this Security.
(ii) A representative of the holder of this Security should state the
capacity in which he or she signs (e.g., executor).
(iii) The signature of the person effecting the transfer shall conform to
any list of duly authorized specimen signatures supplied by the registered
holder or shall be certified by a recognized bank, notary public or in such
other manner as the paying agent, acting in its capacity as transfer agent
or the Trustee, acting in its capacity as registrar, may require.
I-v
EXHIBIT 4.7
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 inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to 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, and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
by a nominee of the Depositary, 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 a successor Depositary.
Unless and until it is exchanged in whole or in part for Securities in
definitive registered form in accordance with the provisions of the Indenture
(as defined below) applicable to such exchange, this certificate may not be
transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC or by DTC or any such nominee to a successor
Depository or a nominee of such successor Depository.
VIACOM INC.
6.40% Senior Notes due 2006
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
No. $
CUSIP: [ ]
CINS: [ ]
ISIN: [ ]
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 $[ ] on January 30, 2006 at the office or agency of the
Company referred to below, and to pay interest thereon on July 30, 2001 and
semi-annually thereafter, on January 30 and July 30 in each year, from January
17, 2001, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, at the rate of 6.40% 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 January 15 or July 15, as the case may be, next
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 not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, 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 in immediately available funds by transfer to an account
maintained by the payee located in the United States.
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 May 15, 1995 among the Company, Viacom International Inc., as guarantor
(the "Guarantor") and Citibank, N.A., as successor to State Street
2
Bank and Trust Company and The First National Bank of Boston, trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), as supplemented by the First Supplemental Indenture dated as of May
24, 1995 among the Company, the Guarantor and the trustee party thereto, as
supplemented and amended by the Second Supplemental Indenture and Amendment No.
1 dated as of December 15, 1995 among the Company, the Guarantor and the trustee
party thereto, as supplemented by the Third Supplemental Indenture dated as of
July 22, 1996, among the Company, the Guarantor and the trustee party thereto,
as supplemented by the Fourth Supplemental Indenture dated as of August 1, 2000
among the Company, the Guarantor and the Trustee and as further supplemented by
the Fifth Supplemental Indenture dated as of January 17, 2001 among the Company,
the Guarantor and the Trustee (as so supplemented and amended, the "Indenture"),
to which Indenture and all indentures supplemental thereto 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 6.40% Senior Notes due 2006, initially limited in aggregate
principal amount to $400,000,000. This Security is a global Security
representing $[ ] of the Securities.
This Note is a "book-entry" Note and is being registered in the name of
Cede & Co. as nominee of The Depository Trust Company ("DTC"), a clearing
agency. Subject to the terms of the Indenture, this Note will be held by a
clearing agency or its nominee, and beneficial interest will be held by
beneficial owners through the book-entry facilities of such clearing agency or
its nominee in minimum denominations of $1,000 and integral multiples thereof.
As long as this Note is registered in the name of DTC or its nominee, the
Trustee will make payments of principal of and interest on this Note by wire
transfer of immediately available funds to DTC or its nominee. Notwithstanding
the above, the final payment on this Note will be made after due notice by the
Trustee of the pendency of such payment and only upon presentation and surrender
of this Note at its principal corporate trust office or such other offices or
agencies appointed by the Trustee for that purpose and such other locations
provided in the Indenture.
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.
The Securities of this series are not subject to any sinking fund and
are subject to redemption prior to maturity as set forth below.
In the event that as a result of any change in, or amendments to, any
laws (or any regulations or rulings promulgated thereunder) of the United States
(or any political subdivision or taxing authority thereof or therein) or any
change in, or amendments to, an official position regarding the application of
such laws, regulations or rulings, which change or amendment is announced or
becomes effective thereunder after July 25, 2000, the Company has become or,
based upon a written opinion of independent counsel selected by the Company,
will become obligated to pay, with respect to this series of Securities, any
Additional Amounts, the Company may redeem all, but not less than all, the
Securities of such series at any time at 100% of the principal amount thereof,
together with accrued interest thereon, if any, to the Redemption Date
3
(subject to the rights of holders of record on the relevant Regular Record Date
that is prior to the Redemption Date to receive interest on the relevant
Interest Payment Date).
In the event of a deposit or withdrawal of an interest in this Note,
including an exchange, transfer, repurchase or conversion of this Note in part
only, the Trustee, as custodian of the Depository, shall make an adjustment on
its records to reflect such deposit or withdrawal in accordance with the rules
and procedures of the Depositary.
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.
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 to be
affected 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 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 by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder 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.
4
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable 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.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. 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.
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.
Unless the certificate of authentication hereon has been duly executed
by or on behalf of Citibank, N.A., the 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.
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York.
5
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: [ ], 2001 VIACOM INC.,
as Issuer
By______________________
Attest:
- --------------------------------
Authorized Signature
6
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series referred to in the
within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By ______________________
Authorized Signatory
Dated: [ ], 2001
7
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.
8
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.
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.
9
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
signed by its Chairman of the Board, or its Vice Chairman of the Board, or its
President, or one of its Executive Vice Presidents or Vice Presidents, or by its
Treasurer or one of its Assistant Treasurers and attested by its Secretary or
one of its Assistant Secretaries, manually or in facsimile.
Dated: [ ], 2001 VIACOM INTERNATIONAL INC.
By___________________________
ATTEST:___
EXHIBIT 4.8
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 inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to 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, and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
by a nominee of the Depositary, 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 a successor Depositary.
Unless and until it is exchanged in whole or in part for Securities in
definitive registered form in accordance with the provisions of the Indenture
(as defined below) applicable to such exchange, this certificate may not be
transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC or by DTC or any such nominee to a successor
Depository or a nominee of such successor Depository.
VIACOM INC.
7.70% Senior Notes due 2010
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
No. $
CUSIP: [ ]
CINS: [ ]
ISIN: [ ]
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 $[ ] on July 30, 2010 at the office or
agency of the Company referred to below, and to pay interest thereon on January
30, 2001 and semi-annually thereafter, on January 30 and July 30 in each year,
from January 17, 2001, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, at the rate of 7.70% 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, in the case of the payment of interest on January 30,
2001, be January 17, 2001, and thereafter be the January 15 or July 15, as the
case may be, next 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 not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, 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 in immediately available funds by
transfer to an account maintained by the payee located in the United States.
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 May 15, 1995 among the Company, Viacom International Inc., as guarantor
(the "Guarantor") and Citibank, N.A., as successor to State Street
2
Bank and Trust Company and The First National Bank of Boston, trustee (herein
called the "Trustee", which term includes any successor trustee under the
Indenture), as supplemented by the First Supplemental Indenture dated as of May
24, 1995 among the Company, the Guarantor and the trustee party thereto, as
supplemented and amended by the Second Supplemental Indenture and Amendment No.
1 dated as of December 15, 1995 among the Company, the Guarantor and the trustee
party thereto, as supplemented by the Third Supplemental Indenture dated as of
July 22, 1996, among the Company, the Guarantor and the trustee party thereto,
as supplemented by the Fourth Supplemental Indenture dated as of August 1, 2000
among the Company, the Guarantor and the Trustee and as further supplemented by
the Fifth Supplemental Indenture dated as of January 17, 2001 among the Company,
the Guarantor and the Trustee (as so supplemented and amended, the "Indenture"),
to which Indenture and all indentures supplemental thereto 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 7.70% Senior Notes due 2010, initially limited in aggregate
principal amount to $500,000,000. This Security is a global Security
representing $[ ] of the Securities.
This Note is a "book-entry" Note and is being registered in the name
of Cede & Co. as nominee of The Depository Trust Company ("DTC"), a clearing
agency. Subject to the terms of the Indenture, this Note will be held by a
clearing agency or its nominee, and beneficial interest will be held by
beneficial owners through the book-entry facilities of such clearing agency or
its nominee in minimum denominations of $1,000 and integral multiples thereof.
As long as this Note is registered in the name of DTC or its nominee, the
Trustee will make payments of principal of and interest on this Note by wire
transfer of immediately available funds to DTC or its nominee. Notwithstanding
the above, the final payment on this Note will be made after due notice by the
Trustee of the pendency of such payment and only upon presentation and surrender
of this Note at its principal corporate trust office or such other offices or
agencies appointed by the Trustee for that purpose and such other locations
provided in the Indenture.
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.
The Securities of this series are not subject to any sinking fund and
are subject to redemption prior to maturity as set forth below.
In the event that as a result of any change in, or amendments to, any
laws (or any regulations or rulings promulgated thereunder) of the United States
(or any political subdivision or taxing authority thereof or therein) or any
change in, or amendments to, an official position regarding the application of
such laws, regulations or rulings, which change or amendment is announced or
becomes effective thereunder after July 25, 2000, the Company has become or,
based upon a written opinion of independent counsel selected by the Company,
will become obligated to pay, with respect to this series of Securities, any
Additional Amounts, the Company may redeem all, but not less than all, the
Securities of such series at any time at 100% of the principal amount thereof,
together with accrued interest thereon, if any, to the Redemption Date
3
(subject to the rights of holders of record on the relevant Regular Record Date
that is prior to the Redemption Date to receive interest on the relevant
Interest Payment Date).
The Securities of this series will be redeemable at any time, at the
option of the Company, in whole or from time to time in part, upon not less than
30 nor more than 60 days' prior notice, on any date prior to their maturity at a
Redemption Price equal to the sum of 100% of the principal amount thereof and
the Make-Whole Amount and any accrued and unpaid interest, to the Redemption
Date (subject to the rights of holders of record on the relevant Regular Record
Date that is on or prior to the Redemption Date to receive interest due on the
relevant Interest Payment Date).
In the case of any partial redemption, selection of the Securities of
this series for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities of this series are listed or, if the Securities of this series are
not listed on a national securities exchange, by lot or by such other method as
the Trustee in its sole discretion shall deem to be fair and appropriate;
provided that no Securities of this series of $1,000 in principal amount or less
shall be redeemed in part. If any Note is to be redeemed in part only, the
notice of redemption relating to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security.
In the event of a deposit or withdrawal of an interest in this Note,
including an exchange, transfer, repurchase or conversion of this Note in part
only, the Trustee, as custodian of the Depository, shall make an adjustment on
its records to reflect such deposit or withdrawal in accordance with the rules
and procedures of the Depositary.
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.
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 to be
affected 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 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 by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder 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.
4
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.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable 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.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. 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.
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
5
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.
Unless the certificate of authentication hereon has been duly executed
by or on behalf of Citibank, N.A., the 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.
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York.
6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: [ ], 2001 VIACOM INC.,
as Issuer
By______________________
Attest:
- -------------------------------
Authorized Signature
7
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series referred to in the
within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By ______________________
Authorized Signatory
Dated: [ ], 2001
8
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.
9
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.
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.
10
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
signed by its Chairman of the Board, or its Vice Chairman of the Board, or its
President, or one of its Executive Vice Presidents or Vice Presidents, or by its
Treasurer or one of its Assistant Treasurers and attested by its Secretary or
one of its Assistant Secretaries, manually or in facsimile.
Dated: [ ], 2001 VIACOM INTERNATIONAL INC.
By___________________________
ATTEST:______________________
EXHIBIT 4.9
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 inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
Any Global Security issued hereunder shall bear a legend in
substantially the following form: This Security is a Global Security within the
meaning of the Indenture hereinafter referred to 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, and
may not be transferred except as a whole by the Depositary to a nominee of the
Depositary by a nominee of the Depositary, 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 a successor Depositary.
Unless and until it is exchanged in whole or in part for Securities in
definitive registered form in accordance with the provisions of the Indenture
(as defined below) applicable to such exchange, this certificate may not be
transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC or by DTC or any such nominee to a successor
Depository or a nominee of such successor Depository.
2
VIACOM INC.
7.875% Senior Debentures due 2030
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
No. $
CUSIP: [ ]
CINS: [ ]
ISIN: [ ]
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 $[ ] on July 30, 2030, at the office or agency of the
Company referred to below, and to pay interest thereon on January 30, 2001 and
semi-annually thereafter, on January 30 and July 30 in each year, from January
17, 2001, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, at the rate of 7.875% 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, in the case of the payment of interest on January 30,
2001, be January 17, 2001, and thereafter be the January 15 or July 15, as the
case may be, next 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 not
inconsistent with the requirements of any securities exchange on which the
Securities may be listed, and upon such notice as may be required by such
exchange, 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 in immediately available funds by
transfer to an account maintained by the payee located in the United States.
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 May 15, 1995 among the Company, Viacom
3
International Inc., as guarantor (the "Guarantor") and Citibank, N.A., as
successor to State Street Bank and Trust Company and The First National Bank of
Boston, trustee (herein called the "Trustee", which term includes any successor
trustee under the Indenture), as supplemented by the First Supplemental
Indenture dated as of May 24, 1995 among the Company, the Guarantor and the
trustee party thereto, as supplemented and amended by the Second Supplemental
Indenture and Amendment No. 1 dated as of December 15, 1995 among the Company,
the Guarantor and the trustee party thereto, as supplemented by the Third
Supplemental Indenture dated as of July 22, 1996, among the Company, the
Guarantor and the trustee party thereto, as supplemented by the Fourth
Supplemental Indenture dated as of August 1, 2000 among the Company, the
Guarantor and the Trustee and as further supplemented by the Fifth Supplemental
Indenture dated as of January 17, 2001 among the Company, the Guarantor and the
Trustee (as so supplemented and amended, the "Indenture"), to which Indenture
and all indentures supplemental thereto 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
7.875% Senior Debentures due 2030, initially limited in aggregate principal
amount to $750,000,000. This Security is a global Security representing $[ ] of
the Securities.
This Note is a "book-entry" Note and is being registered in the name of
Cede & Co. as nominee of The Depository Trust Company ("DTC"), a clearing
agency. Subject to the terms of the Indenture, this Note will be held by a
clearing agency or its nominee, and beneficial interest will be held by
beneficial owners through the book-entry facilities of such clearing agency or
its nominee in minimum denominations of $1,000 and integral multiples thereof.
As long as this Note is registered in the name of DTC or its nominee, the
Trustee will make payments of principal of and interest on this Note by wire
transfer of immediately available funds to DTC or its nominee. Notwithstanding
the above, the final payment on this Note will be made after due notice by the
Trustee of the pendency of such payment and only upon presentation and surrender
of this Note at its principal corporate trust office or such other offices or
agencies appointed by the Trustee for that purpose and such other locations
provided in the Indenture.
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.
The Securities of this series are not subject to any sinking fund and
are subject to redemption prior to maturity as set forth below.
In the event that as a result of any change in, or amendments to, any
laws (or any regulations or rulings promulgated thereunder) of the United States
(or any political subdivision or taxing authority thereof or therein) or any
change in, or amendments to, an official position regarding the application of
such laws, regulations or rulings, which change or amendment is announced or
becomes effective thereunder after July 25, 2000, the Company has become or,
based upon a written opinion of independent counsel selected by the Company,
will become obligated to pay, with respect to this series of Securities, any
Additional Amounts, the Company may redeem all, but not less than all, the
Securities of such series at any time at 100% of the principal amount thereof,
together with accrued interest thereon, if any, to the Redemption Date
4
(subject to the rights of holders of record on the relevant Regular Record Date
that is prior to the Redemption Date to receive interest on the relevant
Interest Payment Date).
The Securities of this series will be redeemable at any time, at the
option of the Company, in whole or from time to time in part, upon not less than
30 nor more than 60 days' prior notice, on any date prior to their maturity at a
Redemption Price equal to the sum of 100% of the principal amount thereof and
the Make-Whole Amount and any accrued and unpaid interest, to the Redemption
Date (subject to the rights of holders of record on the relevant Regular Record
Date that is on or prior to the Redemption Date to receive interest due on the
relevant Interest Payment Date).
In the case of any partial redemption, selection of the Securities of
this series for redemption will be made by the Trustee in compliance with the
requirements of the principal national securities exchange, if any, on which the
Securities of this series are listed or, if the Securities of this series are
not listed on a national securities exchange, by lot or by such other method as
the Trustee in its sole discretion shall deem to be fair and appropriate;
provided that no Securities of this series of $1,000 in principal amount or less
shall be redeemed in part. If any Note is to be redeemed in part only, the
notice of redemption relating to such Security shall state the portion of the
principal amount thereof to be redeemed. A new Security in principal amount
equal to the unredeemed portion thereof will be issued in the name of the Holder
thereof upon cancellation of the original Security.
In the event of a deposit or withdrawal of an interest in this Note,
including an exchange, transfer, repurchase or conversion of this Note in part
only, the Trustee, as custodian of the Depository, shall make an adjustment on
its records to reflect such deposit or withdrawal in accordance with the rules
and procedures of the Depositary.
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.
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 to be
affected 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 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 by or on behalf of the Holder of
this Security shall be conclusive and binding upon such Holder 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.
5
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.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registerable 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.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. 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.
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
6
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.
Unless the certificate of authentication hereon has been duly executed
by or on behalf of Citibank, N.A., the 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.
This Security shall be governed by, and construed in accordance with,
the laws of the State of New York.
7
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: [ ], 2001 VIACOM INC.,
as Issuer
By______________________
Attest:
- --------------------------
Authorized Signature
8
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series referred to in the
within-mentioned Indenture.
CITIBANK, N.A., as Trustee
By __________________________
Authorized Signatory
Dated: [ ], 2001
9
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.
10
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.
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.
11
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
signed by its Chairman of the Board, or its Vice Chairman of the Board, or its
President, or one of its Executive Vice Presidents or Vice Presidents, or by its
Treasurer or one of its Assistant Treasurers and attested by its Secretary or
one of its Assistant Secretaries, manually or in facsimile.
Dated: [ ], 2001 VIACOM INTERNATIONAL INC.
By___________________________
ATTEST:________________________
REGISTRATION RIGHTS AGREEMENT
Dated as of January 17, 2001
among
VIACOM INC.,
VIACOM INTERNATIONAL INC.,
as Guarantor
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
SALOMON SMITH BARNEY, INC.
as the Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of January 17, 2001, by and among VIACOM INC., a Delaware
corporation (the "Company"), Viacom International Inc., a Delaware corporation
(the "Guarantor") and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and
SALOMON SMITH BARNEY, INC., in their respective capacities as initial purchasers
and as representatives of the each of the other initial purchasers named in
Schedule A hereto (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated
January 9, 2001, by and among the Company, the Guarantor and the Initial
Purchasers (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers and the guarantee by the Guarantor of
$400,000,000 aggregate principal amount of the Company's 6.40% senior notes due
2006 (the "2006 Senior Notes"), $500,000,000 aggregate principal amount of the
Company's 7.70% senior notes due 2010 (the "2010 Senior Notes", and together
with the 2006 Senior Notes, the "Senior Notes"; references to Senior Notes,
Exchange Notes and Registrable Senior Notes will be identically applicable to
both 2006 Senior Notes and 2010 Senior Notes unless otherwise indicated herein)
and $750,000,000 aggregate principal amount of the Company's 7.875% senior
debentures due 2030 (the "Senior Debentures", and together with the Senior
Notes, the "Senior Securities"). In order to induce the Initial Purchasers to
enter into the Purchase Agreement and in satisfaction of a condition to the
Initial Purchasers' obligations thereunder, the Company has agreed to provide to
the Initial Purchasers and their respective direct and indirect transferees and
assigns the registration rights set forth in this Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from
time to time, and the rules and regulations of the SEC promulgated
thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and
also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, including any agent thereof;
provided, however, that any such depositary must at all times have an
address in the Borough of Manhattan, in The City of New York.
"Exchange Notes" or "Exchange Debentures" shall mean the Senior
Notes and Senior Debentures, respectively, issued by the Company under
the Indenture, and their respective guarantees by the Guarantor,
containing terms identical to the Senior Notes and Senior Debentures
(except that (i) interest thereon shall accrue from the last date on
which interest was paid on the Senior Notes and Senior Debentures or,
if no such interest has been paid, from the Closing Time, (ii) the
transfer restrictions thereon shall be eliminated and (iii) certain
provisions relating to an increase in the stated rate of interest
thereon shall be eliminated) to be offered to Holders of Registrable
Senior Notes or Registrable Senior Debentures in exchange for
Registrable Senior Notes or Registrable Senior Debentures pursuant to
the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company and
the Guarantor of Exchange Notes or Exchange Debentures for Registrable
Senior Notes or Registrable Senior Debentures pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the
1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 covering the Registrable
Securities (or, if applicable, on another appropriate form), and all
amendments and supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Exchange Securities" shall mean the Exchange Notes and the
Exchange Debentures, collectively.
"Holders" shall mean the Initial Purchasers, for so long as they
own any Registrable Securities, and each of their respective
successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities under the Indenture.
"Indenture" shall mean the Indenture dated as of May 15, 1995, as
supplemented by the First Supplemental Indenture, dated as of May 24,
1995, as supplemented and amended by the Second Supplemental Indenture
and Amendment No. 1, dated as of December 15, 1995, as supplemented by
the Third Supplemental Indenture, dated as of July 22, 1996, as
supplemented by the Fourth Supplemental Indenture, dated as of August
1, 2000 and as further supplemented by the Fifth Supplemental
Indenture, dated January 17, 2001, among the Company, the Guarantor and
Citibank N.A., a national banking association, as successor in interest
to State Street Bank and Trust Company and The First National Bank of
Boston, as Trustee, in each case relating to the Senior Notes and
Senior Debentures and the Exchange Notes and Exchange Debentures and as
the same may be amended and supplemented from time to time in
accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
preamble of this Agreement.
2
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Senior Notes and Registrable
Senior Debentures outstanding; provided that whenever the consent or
approval of Holders of a specified percentage of Registrable Senior
Notes and Registrable Senior Debentures is required hereunder,
Registrable Senior Notes and Registrable Senior Debentures held by the
Company, the Guarantor or any of their affiliates (as such term is
defined in Rule 405 under the 1933 Act) (other than the Initial
Purchasers or subsequent holders of Registrable Senior Notes and
Registrable Senior Debentures), if such subsequent holders are deemed
to be such affiliates solely by reason of their holding of such
Registrable Senior Notes and Registrable Senior Debentures, shall be
disregarded in determining whether such consent or approval was given
by the Holders of such required percentage or amount.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(f).
"Person" shall mean an individual, partnership, joint venture,
limited liability company, corporation, trust or unincorporated
organization, or a government or agency or political subdivision
thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such
prospectus as amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the terms of the
offering of any portion of the Registrable Senior Notes and Registrable
Senior Debentures covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble of this Agreement.
"Registrable Senior Notes" and "Registrable Senior Debentures"
shall mean the Senior Notes and Senior Debentures; provided, however,
that the Senior Notes and Senior Debentures shall cease to be
Registrable Senior Notes and Registrable Senior Debentures when (i) a
Registration Statement with respect to such Senior Notes and Senior
Debentures shall have been declared effective under the 1933 Act and
such Senior Notes and Senior Debentures shall have been disposed of
pursuant to such Registration Statement, (ii) such Senior Notes and
Senior Debentures shall have been sold to the public pursuant to Rule
144 (or any similar provision then in force, but not Rule 144A) under
the 1933 Act, (iii) such Senior Notes and Senior Debentures shall have
ceased to be outstanding or (iv) such Senior Notes and Senior
Debentures have been exchanged for Exchange Notes and Exchange
Debentures upon consummation of the Exchange Offer.
"Registrable Securities" shall mean the Registrable Senior Notes
and Registrable Senior Debentures, collectively.
3
"Registration Expenses" shall mean any and all expenses incident
to performance of or compliance by the Company and the Guarantor with
this Agreement, including without limitation: (i) all SEC, stock
exchange or NASD registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state or other
securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with state or other securities or
blue sky qualification of any of the Exchange Securities or Registrable
Securities), (iii) all expenses of any Persons in preparing, printing
and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements,
securities sales agreements, certificates representing the Exchange
Securities and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all
fees and expenses incurred in connection with the listing, if any, of
any of the Exchange Securities or such Registrable Securities, covered
by a Shelf Registration Statement, as applicable, on any securities
exchange or exchanges, (vi) all fees and disbursements relating to the
qualification of the Indenture under applicable securities laws, (vii)
the fees and disbursements of counsel for the Company and the Guarantor
and the fees and expenses of the independent public accountants of the
Company and the Guarantor, including the expenses of any special audits
or "cold comfort" letters required by or incident to such performance
and compliance, (viii) the fees and expenses of a "qualified
independent underwriter" as defined by Conduct Rule 2720 of the NASD
(if required by the NASD rules) in connection with the offering of the
Registrable Securities and the reasonable fees and expenses of its
counsel, (ix) the reasonable fees and expenses of the Trustee, any
registrar, any depositary and paying agent, including their respective
counsel, and any escrow agent or custodian, (x) the reasonable fees and
expenses of the Initial Purchasers in connection with the Exchange
Offer, including the reasonable fees and expenses of counsel to the
Initial Purchasers, (xi) the reasonable fees and expenses of one
counsel to the Holders which shall be Hughes, Hubbard & Reed LLP in
connection with the Shelf Registration Statement, and (xii) in the case
of an underwritten offering, any reasonable fees and disbursements of
the underwriters customarily required to be paid by issuers or sellers
of such securities, including the reasonable fees and expenses of
counsel to the underwriters, and the fees and expenses of any special
experts retained by the Company and the Guarantor in connection with
any Registration Statement but excluding (except as otherwise provided
herein) fees of counsel to the underwriters or the Holders and
underwriting discounts and commissions and any transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a
Holder.
"Registration Statement" shall mean any registration statement of
the Company and the Guarantor relating to any offering of the Exchange
Securities or Registrable Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission.
4
"Shelf Registration" shall mean a registration effected pursuant
to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company and the Guarantor pursuant to the provisions
of Section 2(b) of this Agreement which covers all of the Registrable
Securities on an appropriate form under Rule 415 under the 1933 Act, or
any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
"Trustee" shall mean the trustee under the Indenture.
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. To the extent not prohibited by
any applicable law or applicable interpretation of the staff of the SEC, the
Company and the Guarantor shall (A) file with the SEC within 60 calendar days
after the Closing Time an Exchange Offer Registration Statement covering the
offer by the Company to the Holders to exchange all of the Registrable Senior
Notes and Registrable Senior Debentures for Exchange Notes and Exchange
Debentures, (B) use its reasonable best efforts to cause such Exchange Offer
Registration Statement to be declared effective by the SEC within 180 calendar
days after the Closing Time, (C) use its reasonable best efforts to cause such
Registration Statement to remain effective until the closing of the Exchange
Offer and (D) use its reasonable best efforts to consummate the Exchange Offer
within 45 calendar days after the effective date of the Exchange Offer
Registration Statement. The Exchange Notes and Exchange Debentures will be
issued under the Indenture. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantor shall promptly commence
the Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder (other than Participating Broker-Dealers (as defined in Section 3(f))
eligible and electing to exchange Registrable Senior Notes and Registrable
Senior Debentures for Exchange Notes and Exchange Debentures (assuming that such
Holder is not an affiliate of the Company or the Guarantor within the meaning of
Rule 405 under the 1933 Act, acquires the Exchange Notes and Exchange Debentures
in the ordinary course of such Holder's business and has no arrangements or
understandings with any person to participate in the Exchange Offer for the
purpose of distributing the Exchange Notes and Exchange Debentures) to trade
such Exchange Notes and Exchange Debentures from and after their receipt without
any limitations or restrictions under the 1933 Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
In connection with the Exchange Offer, the Company and the
Guarantor shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
5
(ii) keep the Exchange Offer open for not less than 20 business
days (or longer if required by applicable federal and state securities
laws) after the date notice thereof is mailed to the Holders;
(iii) use the services of the Depositary for the Exchange Offer
with respect to Senior Notes and Senior Debentures evidenced by global
certificates;
(iv) permit Holders to withdraw tendered Registrable Senior Notes
and Registrable Senior Debentures at any time prior to the close of
business, New York City time, on the last business day on which the
Exchange Offer shall remain open, by sending to the institution
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Registrable Senior Notes and Registrable Senior Debentures delivered
for exchange, and a statement that such Holder is withdrawing its
election to have such Senior Notes and Senior Debentures exchanged; and
(v) otherwise comply in all material respects with all applicable
federal and state securities laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer, the
Company and the Guarantor shall:
(i) accept for exchange Registrable Senior Notes and Registrable
Senior Debentures duly tendered and not validly withdrawn pursuant to
the Exchange Offer in accordance with the terms of the Exchange Offer
Registration Statement and the letter of transmittal which is an
exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Senior Notes and Registrable Senior
Debentures so accepted for exchange by the Company and the Guarantor;
and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Notes and Exchange Debentures to each Holder of Registrable
Senior Notes and Registrable Senior Debentures equal in principal
amount to the principal amount of the Registrable Senior Notes and
Registrable Senior Debentures of such Holder so accepted for exchange.
Interest on each Exchange Note will accrue from the last date on
which interest was paid on the Registrable Senior Notes and Registrable Senior
Debentures surrendered in exchange therefor or, if no interest has been paid on
the Registrable Senior Notes and Registrable Senior Debentures, from the Closing
Time. The Exchange Offer shall not be subject to any conditions, other than (i)
that the Exchange Offer, or the making of any exchange by a Holder, does not
violate applicable law or any applicable interpretation of the staff of the SEC,
(ii) that no action or proceeding shall have been instituted or threatened in
any court or before any governmental agency with respect to the Exchange Offer
which, in the Company's or the Guarantor's judgment, would impair the ability of
the Company and the Guarantor to proceed with the Exchange Offer, (iii) that no
law, rule or regulation or applicable interpretations of the staff of the SEC
has been issued or promulgated which, in the good faith determination of the
6
Company or the Guarantor, does not permit the Company and the Guarantor to
effect the Exchange Offer and (iv) that the Holders tender the Registrable
Senior Notes and Registrable Senior Debentures to the Company in accordance with
the Exchange Offer.
Each Holder of Registrable Senior Notes and Registrable Senior
Debentures (other than Participating Broker-Dealers) who wishes to exchange such
Registrable Senior Notes and Registrable Senior Debentures for Exchange Notes
and Exchange Debentures in the Exchange Offer shall have represented that (i) it
is not an affiliate (as defined in Rule 405 under the 1933 Act) of the Company
or the Guarantor or, if it is an affiliate, it will comply with the registration
and prospectus delivery requirements of the 1933 Act, to the extent applicable,
(ii) any Exchange Notes or Exchange Debentures to be received by it will be
acquired in the ordinary course of business, (iii) at the time of the
commencement of the Exchange Offer, it has no arrangement with any Person to
participate in the distribution (within the meaning of the 1933 Act) of the
Senior Notes and Senior Debentures or the Exchange Notes and Exchange
Debentures, (iv) it is not acting on behalf of any person who could not
truthfully make the foregoing representations and (v) it shall have made such
other representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or another
appropriate form under the 1933 Act available or for the Exchange Offer
Registration Statement to be declared effective. To the extent permitted by law,
the Company shall inform the Initial Purchasers of the names and addresses of
the Holders to whom the Exchange Offer is made, and the Initial Purchasers shall
have the right to contact such Holders and otherwise facilitate the tender of
Registrable Senior Notes and Registrable Senior Debentures in the Exchange
Offer.
(b) Shelf Registration.
(i) If, because of any change in law or applicable interpretations
thereof by the Staff of the SEC, the Company and the Guarantor are not permitted
to effect the Exchange Offer as contemplated by Section 2(a) hereof, (ii) if for
any other reason the Exchange Offer Registration Statement is not declared
effective within 180 calendar days following the Closing Time or the Exchange
Offer is not consummated within 45 days after effectiveness of the Exchange
Offer Registration Statement (provided that, if the Exchange Offer Registration
Statement shall be declared effective after such 180-day period or if the
Exchange Offer shall be consummated after such 45-day period, then the Company's
and the Guarantor's obligations under this clause (ii) arising from the failure
of the Exchange Offer Registration Statement to be declared effective within
such 180-day period or the failure of the Exchange Offer to be consummated
within such 45-day period, respectively, shall terminate), (iii) if any Holder
(other than an Initial Purchaser) is not eligible to participate in the Exchange
Offer or elects to participate in the Exchange Offer but does not receive fully
tradeable Exchange Notes or Exchange Debentures pursuant to the Exchange Offer
or (iv) upon the written request of any of the Initial Purchasers within 90 days
following the consummation of the Exchange Offer; provided that such Initial
Purchaser shall hold Registrable Senior Notes and Registrable Senior Debentures
that it acquired directly from the Company and if such Initial Purchaser is not
permitted, in the reasonable opinion of counsel to such Initial Purchaser,
pursuant to applicable law or applicable interpretation of the staff of the SEC,
to participate in the Exchange Offer, the Company and the Guarantor shall, at
their cost:
7
(A) as promptly as practicable, but no later than (a) the 210th
day after the Closing Time or (b) the 60th day after such filing
obligations arises, whichever is later, file with the SEC a Shelf
Registration Statement relating to the offer and sale of the
Registrable Senior Notes and Registrable Senior Debentures by the
Holders from time to time in accordance with the methods of
distribution elected by the Majority Holders of such Registrable Senior
Notes and Registrable Senior Debentures and set forth in such Shelf
Registration Statement;
(B) use their reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as promptly
as practicable, but in no event later than the 240th day after the
Closing Time (or within 30 days of a request of any Initial Purchaser);
provided that, with respect to Exchange Notes and Exchange Debentures
received by a broker-dealer in exchange for any securities that were
acquired by such broker-dealer as a result of market-making or other
trading activities, the Company and the Guarantor may, if permitted by
current interpretations by the staff of the SEC, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as
applicable, in satisfaction of its obligations under paragraph (A)
solely with respect to broker-dealers who acquired their Securities as
a result of market-making or other trading activities, and any such
Exchange Offer Registration Statement, as so amended, shall be referred
to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement. In the event that the Company and the
Guarantor are required to file a Shelf Registration Statement upon the
request of any Holder (other than an Initial Purchaser) not eligible to
participate in the Exchange Offer pursuant to clause (iii) above or
upon the request of any Initial Purchaser pursuant to clause (iv)
above, the Company and the Guarantor shall file and use their
reasonable best efforts to have declared effective by the SEC both an
Exchange Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Senior Notes and Registrable Senior
Debentures and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement)
with respect to offers and sales of Registrable Senior Notes and
Registrable Senior Debentures held by such Holder or such Initial
Purchaser, as applicable, after completion of the Exchange Offer;
(C) use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended
as required, in order to permit the Prospectus forming part thereof to
be usable by Holders for a period of two years, plus any extensions as
provided in Section 2(d)(iii) below, after its effective date or such
shorter period which will terminate when all of the Registrable Senior
Notes and Registrable Senior Debentures covered by the Shelf
Registration Statement (i) have been sold pursuant to the Shelf
Registration Statement, (ii) cease to be outstanding or (iii) become
eligible for resale pursuant to Rule 144 under the 1934 Act without
volume restrictions; and
(D) notwithstanding any other provisions hereof, ensure that (i)
any Shelf Registration Statement and any amendment thereto and any
Prospectus forming a part thereof and any supplement thereto complies
in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any
8
amendment thereto does not, when it becomes effective, 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 and (iii) any Prospectus forming part of any
Shelf Registration Statement, and any supplement to such Prospectus (as
amended or supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements, in light of the circumstances under
which they were made, not misleading; provided, however, clauses (ii)
and (iii) shall not apply to any information relating to any Initial
Purchaser or any Holder furnished to the Company in writing by such
Initial Purchaser or Holder expressly for use in the Shelf Registration
Statement.
The Company and the Guarantor shall not permit any securities
other than the Registrable Securities to be included in the Shelf Registration
Statement.
The Company and the Guarantor further agree, if necessary, to
supplement or amend the Shelf Registration Statement if reasonably requested by
the Majority Holders with respect to information relating to the Holders and
otherwise as required by Section 3(b) below, to use their reasonable best
efforts to cause any such amendment to become effective and such Shelf
Registration Statement to become usable as soon as practicable thereafter and to
furnish to the Holders of Registrable Senior Notes and Registrable Senior
Debentures copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(c) Expenses. The Company and the Guarantor shall pay all
Registration Expenses in connection with the registration pursuant to Sections
2(a) and 2(b) and, in the case of any Shelf Registration Statement, will
reimburse the Holders or the Initial Purchasers for the reasonable fees and
disbursements of one counsel designated in writing by the Majority Holders to
act as counsel for the Holders of the Registrable Securities in connection
therewith. Each Holder shall pay all expenses of its counsel other than as set
forth in the preceding sentence, underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to a Shelf Registration Statement.
(d) Effective Registration Statement.
(i) The Company and the Guarantor shall be deemed not to have used
their respective reasonable best efforts to cause the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
to become, or to remain, effective during the requisite periods set forth herein
if the Company or the Guarantor voluntarily takes any action that could
reasonably be expected to result in any such Registration Statement not being
declared effective or remaining effective or in the Holders of Registrable
Senior Notes or Registrable Senior Debentures covered thereby not being able to
exchange or offer and sell such Registrable Senior Notes or Registrable Senior
Debentures during that period unless (A) such action is required by applicable
law or (B) such action is taken by the Company or the Guarantor in good faith
and for valid business reasons (but not including avoidance of the Company's or
the Guarantor's obligations hereunder), including the acquisition or divestiture
of assets or a material corporate transaction or event so long as the Company
and the Guarantor promptly comply with the requirements of Section 3(k) hereof,
if applicable.
9
(ii) An Exchange Offer Registration Statement pursuant to Section
2(a) hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
shall not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been declared
effective, the offering of Registrable Senior Notes and Registrable Senior
Debentures pursuant to a Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement shall be deemed not to
have been effective during the period of such interference, until the offering
of Registrable Senior Notes and Registrable Senior Debentures pursuant to such
Registration Statement may legally resume.
(iii) During any 365-day period, the Company and the Guarantor may
suspend the availability of a Shelf Registration Statement and the use of the
related Prospectus, as provided in Section 3(e)(vi) and the last paragraph of
Section 3 hereof, for up to four periods of up to 45 consecutive days (except
for the consecutive 45-day period immediately prior to maturity of the Senior
Notes and Senior Debentures), but no more than an aggregate 90 days during any
365-day period, if any event shall occur (A) as set forth in Section 2(d)(i) or
(B) as a result of which it shall be necessary, in the good faith determination
of the board of directors of the Company or the Guarantor, to amend the Shelf
Registration Statement or amend or supplement any prospectus or prospectus
supplement thereunder in order that each such document not include any untrue
statement of fact or omit to state a material fact necessary to make the
statements therein not misleading in light of the circumstances under which they
were made, provided that any period during which the Company requires Holders to
refrain from disposing of their Registrable Securities due to a Material Event
Election (an "Election Period") shall be deemed to trigger the obligation of the
Company to pay Additional Interest in accordance with Section 2(e) to the extent
that such Election Period, together with all other days that the Shelf
Registration Statement has become unusable in any consecutive twelve-month
period, exceeds 90 days in the aggregate. The Two-Year Period provided for in
Section 2(b)(B) above shall be extended by an amount of time equal to all such
Election Periods.
(e) Increase in Interest Rate. In the event that (i) the Exchange
Offer Registration Statement is not filed with the SEC on or prior to the 60th
calendar day after the Closing Time, (ii) the Exchange Offer Registration
Statement is not declared effective on or prior to the 180th calendar day after
the Closing Time, (iii) the Exchange Offer is not consummated on or prior to the
45th calendar day following the effective date of the Exchange Offer
Registration Statement, or (iv) if required, a Shelf Registration Statement with
respect to the Registrable Senior Notes and Registrable Senior Debentures is not
declared effective on or prior to the 240th calendar day after the Closing Time,
or (v) the Election Periods exceed, in the aggregate, 90 days during any 365-day
period the per annum interest rate borne by the Registrable Senior Notes and
Registrable Senior Debentures shall be increased by one-quarter of one percent
(0.25%) per annum following such 60-day period in the case of clause (i) above,
following such 180-day period in the case of clause (ii) above, following such
45-day period in the case of clause (iii) above, or following such 240-day
period in the case of (iv) above or 90-day period in the case of (v) above,
which rate will be increased by an additional quarter of one percent (0.25%) per
annum for each 90-day period during which noncompliance continues; provided that
the aggregate increase in such annual interest rate may in no event exceed
one-half of one percent (0.50%) per annum. Upon (w) the filing of the Exchange
Offer Registration Statement after the 60-day period described in clause (i)
above, (x) the effectiveness of the
10
Exchange Offer Registration Statement after the 180-day period described in
clause (ii) above, (y) the consummation of the Exchange Offer after the 45-day
period described in clause (iii) above, or (z) the effectiveness of a Shelf
Registration Statement, after the 240-day period described in clause (iv) above,
the interest rate borne by the Senior Notes and Senior Debentures from the date
of such filing, effectiveness or consummation, as the case may be, shall be
reduced to the original interest rate if the Company and the Guarantor are
otherwise in compliance with this paragraph; provided, however, that, if after
any such reduction in interest rate, a different event specified in clause (i),
(ii), (iii), (iv) or (v) above occurs, the interest rate shall again be
increased pursuant to the foregoing provisions. No increase in the rate under
clause (i), (ii) or (iii) above shall be payable for any period during which a
Shelf Registration is effective.
(f) Specific Enforcement. Without limiting the remedies available
to the Initial Purchasers and the Holders, the Company and the Guarantor
acknowledge that any failure by the Company and the Guarantor to comply with its
obligations under Sections 2(a) and 2(b) hereof may result in material
irreparable injury to the Initial Purchasers or the Holders for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Guarantor's obligations under
Sections 2(a) and 2(b).
3. Registration Procedures. In connection with the obligations of
the Company and the Guarantor with respect to the Registration Statements
pursuant to Sections 2(a) and 2(b) hereof, the Company and the Guarantor shall:
(a) prepare and file with the SEC a Registration Statement, within
the time periods specified in Section 2, on the appropriate form under
the 1933 Act, which form (i) shall be selected by the Company, (ii)
shall, in the case of a Shelf Registration Statement, be available for
the sale of the Registrable Senior Notes and Registrable Senior
Debentures by the selling Holders thereof and (iii) shall comply as to
form in all material respects with the requirements of the applicable
form and include or incorporate by reference all financial statements
required by the SEC to be filed therewith, and use its reasonable best
efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the applicable period; cause each Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the 1933 Act; and
comply with the provisions of the 1933 Act with respect to the
disposition of all Senior Notes and Senior Debentures covered by each
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the selling Holders
thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Senior Notes and Registrable Senior Debentures, at least 15
days business days prior to filing, that a Shelf Registration Statement
with respect to the Registrable Senior Notes
11
and Registrable Senior Debentures is being filed and advising such
Holders that the distribution of Registrable Senior Notes and
Registrable Senior Debentures will be made in accordance with the
method elected by the Majority Holders; (ii) furnish to each Holder of
Registrable Senior Notes and Registrable Senior Debentures, to counsel
for the Initial Purchasers, to counsel for the Holders and to each
underwriter of an underwritten offering of Registrable Senior Notes and
Registrable Senior Debentures, if any, without charge, as many copies
of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder
or underwriter, or their counsel, may reasonably request, including
financial statements and schedules and, if the Holder so reasonably
requests, all exhibits (including those incorporated by reference) in
order to facilitate the public sale or other disposition of the
Registrable Senior Notes and Registrable Senior Debentures; and (iii)
subject to the last paragraph of this Section 3, hereby consent to the
use of the Prospectus, including each preliminary Prospectus, or any
amendment or supplement thereto by each of the selling Holders of
Registrable Senior Notes and Registrable Senior Debentures in
connection with the offering and sale of the Registrable Senior Notes
and Registrable Senior Debentures covered by the Prospectus or any
amendment or supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Registrable Senior Notes and Registrable Senior Debentures under all
applicable state securities or "blue sky" laws of such jurisdictions as
any Holder of Registrable Senior Notes and Registrable Senior
Debentures covered by a Registration Statement and each underwriter of
an underwritten offering of Registrable Senior Notes and Registrable
Senior Debentures shall reasonably request by the time the applicable
Registration Statement is declared effective by the SEC, to cooperate
with the Holders in connection with any filings required to be made
with the NASD, keep each such registration or qualification effective
during the period such Registration Statement is required to be
effective and do any and all other acts and things which may be
reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Senior
Notes and Registrable Senior Debentures owned by such Holder; provided,
however, that neither the Company nor the Guarantor shall be required
to (i) qualify as a foreign corporation or as a dealer in securities in
any jurisdiction where it would not otherwise be required to qualify
but for this Section 3(d) or (ii) take any action which would subject
it to general service of process or taxation in any such jurisdiction;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Senior Notes and Registrable Senior Debentures and counsel
for such Holders promptly and, if requested by such Holder or counsel,
confirm such advice in writing promptly (i) when a Registration
Statement has become effective and when any post-effective amendments
and supplements thereto become effective, (ii) of any request by the
SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for
additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Senior Notes and
Registrable Senior Debentures covered thereby, the representations and
warranties of the
12
Company and the Guarantor contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating
to such offering cease to be true and correct in all material respects,
(v) of the receipt by the Company or the Guarantor of any notification
with respect to the suspension of the qualification of the Registrable
Senior Notes and Registrable Senior Debentures for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, (vi) of the happening of any event or the discovery of
any facts during the period a Shelf Registration Statement is effective
(including as contemplated in Section 2(d)(iii) hereof) which (A) is
contemplated in Section 2(d)(i) or (B) makes any statement made in such
Shelf Registration Statement or the related Prospectus untrue in any
material respect or which requires the making of any changes in such
Shelf Registration Statement or Prospectus in order to make the
statements therein not misleading and (vii) of any determination by the
Company or the Guarantor that a post-effective amendment to a
Registration Statement would be appropriate;
(f) (A) in the case of an Exchange Offer, (i) include in the
Exchange Offer Registration Statement a "Plan of Distribution" section
covering the use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who have exchanged their
Registrable Senior Notes and Registrable Senior Debentures for Exchange
Notes and Exchange Debentures for the resale of such Exchange Notes and
Exchange Debentures, (ii) furnish to each broker-dealer who desires to
participate in the Exchange Offer, without charge, as many copies of
each Prospectus included in the Exchange Offer Registration Statement,
including any preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (iii) include in
the Exchange Offer Registration Statement a statement that any
broker-dealer who holds Registrable Senior Notes and Registrable Senior
Debentures acquired for its own account as a result of market-making
activities or other trading activities (a "Participating
Broker-Dealer"), and who receives Exchange Notes and Exchange
Debentures for Registrable Senior Notes and Registrable Senior
Debentures pursuant to the Exchange Offer, may be a statutory
underwriter and must deliver a prospectus meeting the requirements of
the 1933 Act in connection with any resale of such Exchange Notes and
Exchange Debentures, (iv) subject to the last paragraph of this Section
3, hereby consent to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement
thereto, by any broker-dealer in connection with the sale or transfer
of the Exchange Notes and Exchange Debentures covered by the Prospectus
or any amendment or supplement thereto, and (v) include in the
transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer the
following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of Exchange Notes and Exchange
Debentures. If the undersigned is a broker-dealer that will
receive Exchange Notes and Exchange Debentures for its own account
in exchange for Registrable Senior Notes and Registrable Senior
Debentures, it represents that the Registrable Senior Notes and
Registrable Senior Debentures to be exchanged for Exchange Notes
and Exchange
13
Debentures were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it
will deliver a prospectus meeting the requirements of the 1933 Act
in connection with any resale of such Exchange Notes and Exchange
Debentures pursuant to the Exchange Offer; however, by so
acknowledging and by delivering a prospectus, the undersigned will
not be deemed to admit that it is an "underwriter" within the
meaning of the 1933 Act;"
(B) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company and the Guarantor shall
use their reasonable best efforts to cause to be delivered at the
request of an entity representing the Participating Broker-Dealers
(which entity shall be Merrill Lynch, Pierce, Fenner & Smith
Incorporated, unless it elects not to act as such representative) any
"cold comfort" letters with respect to the Prospectus in the form
existing on the last date for which exchanges are accepted pursuant to
the Exchange Offer and with respect to each subsequent amendment or
supplement, if any, effected during the period specified in clause (C)
below;
(C) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company and the Guarantor shall
use their reasonable best efforts to maintain the effectiveness of the
Exchange Offer Registration Statement for a period of 180 days
following the closing of the Exchange Offer or such shorter period
which will terminate when the Participating Broker-Dealers have
completed all resales subject to applicable prospectus delivery
requirements; and
(D) the Company and the Guarantor shall not be required to
amend or supplement the Prospectus contained in the Exchange Offer
Registration Statement as would otherwise be contemplated by Section
3(b) hereof, or take any other action as a result of this Section 3(f),
for a period exceeding 180 days after the last date for which exchanges
are accepted pursuant to the Exchange Offer (as such period may be
extended by the Company and the Guarantor) and Participating
Broker-Dealers shall not be authorized by the Company and the Guarantor
to, and shall not, deliver such Prospectus after such period in
connection with resales contemplated by this Section 3;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration,
furnish counsel for the Holders of Registrable Senior Notes and
Registrable Senior Debentures copies of any request by the SEC or any
state securities authority for amendments or supplements to a
Registration Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon
as practicable and provide immediate notice to each Holder of the
withdrawal of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Senior Notes and Registrable Senior Debentures, without
charge, at least one conformed
14
copy of each Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Senior Notes and Registrable Senior
Debentures to facilitate the timely preparation and delivery of
certificates representing Registrable Senior Notes and Registrable
Senior Debentures to be sold and not bearing any restrictive legends;
and cause such Registrable Senior Notes and Registrable Senior
Debentures to be in such denominations (consistent with the provisions
of the Indenture) in a form eligible for deposit with the Depositary
and registered in such names as the selling Holders or the
underwriters, if any, may reasonably request in writing at least one
business day prior to the closing of any sale of Registrable Senior
Notes and Registrable Senior Debentures;
(k) in the case of a Shelf Registration, upon the occurrence of
any event or the discovery of any facts, each as contemplated by
Section 3(e)(vi) hereof, use its reasonable best efforts to prepare a
supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Senior Notes and
Registrable Senior Debentures, such Prospectus will not contain at the
time of such delivery any untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
The Company and the Guarantor agree to notify each Holder to suspend
use of the Prospectus as promptly as practicable after the occurrence
of such an event, and each Holder hereby agrees to suspend use of the
Prospectus until the Company and the Guarantor have amended or
supplemented the Prospectus to correct such misstatement or omission.
At such time as such public disclosure is otherwise made or the Company
and the Guarantor determine that such disclosure is not necessary, in
each case to correct any misstatement of a material fact or to include
any omitted material fact, the Company and the Guarantor agree promptly
to notify each Holder of such determination and to furnish each Holder
such numbers of copies of the Prospectus, as amended or supplemented,
as such Holder may reasonably request;
(l) obtain CUSIP numbers, ISINs and common codes for all Exchange
Notes and Exchange Debentures, or Registrable Senior Notes and
Registrable Senior Debentures, as the case may be (which CUSIP numbers,
ISINs and common codes, in the case of the Exchange Notes to be issued
in relation to the 2010 Senior Notes and the Exchange Debentures, are
to be identical to those CUSIP numbers, ISINs and common codes then
being used by the Company's 7.70% Senior Notes due 2010 issued on
August 1, 2000 and 7.875% Senior Debentures due 2030 issued on August
1, 2000), not later than the effective date of a Registration
Statement, and provide the Trustee with printed certificates for the
Exchange Notes and Exchange Debentures or Registrable Senior Notes and
Registrable Senior Debentures, as the case may be, in a form eligible
for deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Exchange Notes
15
and Exchange Debentures, or Registrable Senior Notes and Registrable
Senior Debentures, as the case may be, (ii) cooperate with the Trustee
and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the
terms of the TIA and (iii) execute, and use its reasonable best efforts
to cause the Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so qualified in a
timely manner;
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions (including those reasonably requested by the
Majority Holders of the Registrable Senior Notes and Registrable Senior
Debentures being sold) in order to expedite or facilitate the
disposition of such Registrable Senior Notes and Registrable Senior
Debentures and in such connection, whether or not an underwriting
agreement is entered into and whether or not the registration is an
underwritten registration, in a manner that is reasonable and
customary:
(i) make such representations and warranties to the Holders
of such Registrable Senior Notes and Registrable Senior Debentures
and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar
underwritten offerings as may be reasonably requested by such
Holders and underwriters;
(ii) obtain opinions of counsel to the Company and the
Guarantor and updates thereof (which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and the Holders of a majority in
principal amount of the Registrable Senior Notes and Registrable
Senior Debentures being sold) addressed to each selling Holder and
the underwriters, if any, covering the matters customarily covered
in opinions requested in sales of securities or underwritten
offerings and such other matters as may be reasonably requested by
such Holders and underwriters;
(iii) obtain "cold comfort" letters and updates thereof from
the Company's and the Guarantor's independent certified public
accountants addressed to the underwriters, if any, and will use
reasonable best efforts to have such letters addressed to the
selling Holders of Registrable Senior Notes and Registrable Senior
Debentures, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters
to underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders
and an agent of the Holders providing for, among other things, the
appointment of such agent for the selling Holders for the purpose
of soliciting purchases of Registrable Senior Notes and
Registrable Senior Debentures, which agreement shall be in form,
substance and scope customary for similar offerings;
16
(v) if an underwriting agreement is entered into in the case
of an underwritten offering, cause the same to set forth
indemnification provisions and procedures substantially equivalent
to the indemnification provisions and procedures set forth in
Section 5 hereof with respect to the underwriters and all other
parties to be indemnified pursuant to Section 5 hereof; and
(vi) deliver such documents and certificates as may be
reasonably requested by the underwriters or the Holders and as are
customarily delivered in similar offerings.
The above shall be done at (i) the effectiveness of such
Registration Statement (and, if appropriate, each post-effective
amendment thereto) and (ii) each closing under any underwriting or
similar agreement as and to the extent required thereunder. In the case
of any underwritten offering, the Company and the Guarantor shall
provide written notice to the Holders of all Registrable Senior Notes
and Registrable Senior Debentures of such underwritten offering at
least thirty days prior to the filing of a prospectus supplement for
such underwritten offering. Such notice shall (x) offer each such
Holder the right to participate in such underwritten offering, (y)
specify a date, which shall be no earlier than ten business days
following the date of such notice, by which such Holder must inform the
Company of its intent to participate in such underwritten offering and
(z) include the instructions such Holder must follow in order to
participate in such underwritten offering;
(o) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable Senior
Notes or Registrable Senior Debentures and any underwriters
participating in any disposition pursuant to a Shelf Registration
Statement and any U.S. counsel or accountant retained by such Holders
or underwriters, all financial and other records, pertinent corporate
documents and properties of the Company and the Guarantor reasonably
requested by any such Persons, and cause the respective officers,
directors, employees, and any other agents of the Company and the
Guarantor to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in
connection with a Registration Statement; provided that any such
records, documents, properties and such information that is designated
in writing by the Company and the Guarantor, in good faith, as
confidential at the time of delivery of such records, documents,
properties or information shall be kept confidential by any such
representative, underwriter, counsel or accountant and shall be used
only in connection with such Shelf Registration Statement, unless such
information has become available (not in violation of this Agreement)
to the public generally or through a third party without an
accompanying obligation of confidentiality, and except that such
representative, underwriter, counsel or accountant shall have no
liability, and shall not be in breach of this provision, if disclosure
of such confidential information is made in connection with a court
proceeding or required by law, and the Company and the Guarantor shall
be entitled to request that such representative, underwriter, counsel
or accountant sign a confidentiality agreement to the foregoing effect.
Each such person will be required to agree that information obtained by
it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Company unless and until
17
such is made generally available to the public through no fault or
action of such person. Each selling Holder of such Registrable Senior
Notes or Registrable Senior Debentures will be required to further
agree that it will, upon learning that disclosure of confidential
information is necessary, give notice to the Company to allow the
Company at its expense to undertake appropriate action to prevent
disclosure of the confidential information;
(p) (i) in the case of an Exchange Offer, a reasonable time prior
to the filing of any Exchange Offer Registration Statement, any
Prospectus forming a part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to a Prospectus,
provide copies of such document to the Initial Purchasers, and make
such changes in any such document prior to the filing thereof as the
Initial Purchasers or their counsel may reasonably request; (ii) in the
case of a Shelf Registration, a reasonable time prior to filing any
Shelf Registration Statement, any Prospectus forming a part thereof,
any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such document to the
Holders of Registrable Senior Notes and Registrable Senior Debentures,
to the Initial Purchasers, to counsel on behalf of the Holders and to
the underwriter or underwriters of an underwritten offering of
Registrable Senior Notes and Registrable Senior Debentures, if any, and
make such changes in any such document prior to the filing thereof as
counsel to the Initial Purchasers, the Holders or any underwriter may
reasonably request; and (iii) cause the representatives of the Company
and the Guarantor to be available for discussion of such document as
shall be reasonably requested by the Holders of Registrable Senior
Notes and Registrable Senior Debentures, the Initial Purchasers on
behalf of such Holders or any underwriter, and shall not at any time
make any filing of any such document of which such Holders, the Initial
Purchasers on behalf of such Holders, their counsel or any underwriter
shall not have previously been advised and furnished a copy or to which
such Holders, the Initial Purchasers on behalf of such Holders, their
counsel or any underwriter shall reasonably object within a reasonable
time period;
(q) in the case of a Shelf Registration, use their reasonable best
efforts to cause all Registrable Senior Notes and Registrable Senior
Debentures to be listed on The Luxembourg Stock Exchange and any other
securities exchange on which similar debt securities issued by the
Company and the Guarantor are then listed, if requested by the Majority
Holders or by the underwriter or underwriters of an underwritten
offering of Registrable Senior Notes and Registrable Senior Debentures,
if any;
(r) in the case of a Shelf Registration, use their reasonable best
efforts to cause the Registrable Senior Notes and Registrable Senior
Debentures to be rated with the appropriate rating agencies, if so
requested by the Majority Holders or by the underwriter or underwriters
of an underwritten offering, unless the Registrable Senior Notes and
Registrable Senior Debentures are already so rated;
(s) otherwise use their reasonable best efforts to comply with all
applicable rules and regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an earnings
statement covering at least twelve months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder;
and
18
(t) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by
any underwriter and its counsel.
In the case of a Shelf Registration Statement, the Company and the
Guarantor may (as a condition to such Holder's participation in the Shelf
Registration) require each Holder of Registrable Senior Notes and Registrable
Senior Debentures to furnish to the Company and the Guarantor or their counsel
such information regarding such Holder and the proposed distribution by such
Holder of such Registrable Senior Notes and Registrable Senior Debentures, as
the Company or the Guarantor may from time to time reasonably request, and agree
in writing to be bound by the Agreement, including the indemnification
provisions.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company or the Guarantor of the
happening of any event or the discovery of any facts, each of the kind described
in Sections 2(d)(i) and 3(e)(ii)-(vii) hereof, such Holder will forthwith
discontinue disposition of Registrable Senior Notes and Registrable Senior
Debentures pursuant to a Registration Statement until such Holder's receipt of
(i) the copies of the supplemented or amended Prospectus contemplated by Section
3(k) hereof or (ii) written notice from the Company or the Guarantor that the
Shelf Registration Statement is once again effective and that no supplement or
amendment is required. If so directed by the Company or the Guarantor, such
Holder will deliver to the Company (at the Company's expense) all copies in its
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Senior Notes and Registrable Senior
Debentures current at the time of receipt of such notice.
If the Company or the Guarantor shall give any such notice to
suspend the disposition of Registrable Senior Notes and Registrable Senior
Debentures pursuant to a Shelf Registration Statement as a result of the
happening of any event or the discovery of any facts, each of the kind described
in Sections 2(d)(i) and 3(e)(vi) hereof, the Company and the Guarantor shall be
deemed to have used their reasonable best efforts to keep the Shelf Registration
Statement effective during such period of suspension; provided that (i) such
period of suspension shall not exceed the time periods provided in Section
2(d)(iii) hereof and (ii) the Company and the Guarantor shall, if necessary, use
their reasonable best efforts to file and have declared effective (if an
amendment) as soon as practicable an amendment or supplement to the Shelf
Registration Statement and shall extend the period during which the Registration
Statement shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of such
notice to and including the date when the Holders shall have received copies of
the supplemented or amended Prospectus necessary to resume such dispositions.
4. Underwritten Registrations. If any of the Registrable Senior
Notes or Registrable Senior Debentures covered by any Shelf Registration are to
be sold in an underwritten offering, the investment banker or investment bankers
and manager or managers that will manage the offering will be selected by the
Majority Holders of such Registrable Senior Notes or Registrable Senior
Debentures included in such offering and shall be reasonably acceptable to the
Company.
19
No Holder of Registrable Senior Notes or Registrable Senior
Debentures may participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holder's Registrable Senior Notes or
Registrable Senior Debentures on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
5. Indemnification and Contribution.
(a) The Company and the Guarantor, jointly and severally, agree to
indemnify and hold harmless each Initial Purchaser, each Holder, including
Participating Broker-Dealers, each underwriter who participates in an offering
of Registrable Senior Notes or Registrable Senior Debentures, their respective
affiliates, and their respective directors, officers, employees, agents, and
each Person, if any, who controls any Initial Purchaser or any Holder within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from
and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred by the
Initial Purchaser, any Holder or any such controlling or affiliated Person in
connection with defending or investigating any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or any amendment thereof, pursuant to which Exchange
Notes and Exchange Debentures or Registrable Senior Notes and Registrable Senior
Debentures were registered under the 1933 Act, including all documents
incorporated therein by reference, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or caused by any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus (as
amended or supplemented if the Company and the Guarantor shall have furnished
any amendments or supplements thereto), or caused by any omission or alleged
omission to state therein a material fact necessary to make the statements
therein in light of the circumstances under which they were made not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Initial Purchaser or any Holder furnished to
the Company and the Guarantor in writing by such Initial Purchaser or by or
relating to any Holder or underwriter who participates in an offering of
Registrable Senior Notes and Registrable Senior Debentures, in each case
expressly for use therein.
(b) Each Holder agrees, severally and not jointly, to indemnify
and hold harmless the Company, the Guarantor, each Initial Purchaser, each
underwriter who participates in an offering of Registrable Senior Notes and
Registrable Senior Debentures, and the other selling Holders, and each of their
respective directors and officers (including each director and officer of the
Company and the Guarantor who signed the Registration Statement) and each
Person, if any, who controls the Company or the Guarantor, any Initial
Purchaser, any underwriter or any other selling Holder within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses described in the indemnity contained in
Section 5(a), as incurred), but only with reference to information relating to
such Holder furnished to the Company in writing by such Holder expressly for use
in any Registration
20
Statement or any amendment thereof or any Prospectus or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any Person in respect of which
indemnity may be sought pursuant to either paragraph (a) or paragraph (b) above,
such Person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing (but the
failure to so notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party except to the extent it is
materially prejudiced or harmed) and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Initial Purchasers and all Persons, if
any, who control any Initial Purchaser within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act, (b) the fees and expenses of more
than one separate firm (in addition to any local counsel) for the Company and
the Guarantor, their respective directors, their respective officers who sign
the Registration Statement and all Persons, if any, who control the Company or
the Guarantor within the meaning of either such Section and (c) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Holders and all Persons, if any, who control any Holders within the meaning
of either such Section, and that all such fees and expenses shall be reimbursed
as they are incurred. In the case of any such separate firm for the Initial
Purchasers and such control Persons of the Initial Purchasers, such firm shall
be designated in writing by Merrill Lynch. In the case of any such separate firm
for the Holders and such Persons who control Holders, such firm shall be
designated in writing by the Majority Holders. In all other cases, such firm
shall be designated in writing by the Company. The indemnifying party shall not
be liable for any settlement of any proceeding affected without its written
consent, but if settled with such consent or if there is a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, which consent shall not be
unreasonably withheld, effect any settlement of any pending or
21
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding and (ii) does not include a statement as to an admission of
fault, culpability or failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in paragraph (a) or
paragraph (b) of this Section 5 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of such
indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or parties or such indemnified party or
parties, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, the
Guarantor, the Initial Purchasers, and the Holders of Registrable Senior Notes
and Registrable Senior Debentures respective obligations to contribute pursuant
to this Section 5 are several in proportion to the respective number of Senior
Notes and Senior Debentures they have purchased hereunder, and not joint.
(e) The Company, the Guarantor, the Initial Purchasers, and each
Holder of Registrable Senior Notes and Registrable Senior Debentures agree that
it would not be just or equitable if contribution pursuant to this Section 5
were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no Holder shall be required to
indemnify or contribute any amount in excess of the amount by which the total
price at which Registrable Senior Notes and Registrable Senior Debentures were
sold by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5, each Person, if any, who
controls an Initial Purchaser or Holder within the
22
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser or Holder, and each
director of the Company or the Guarantor, each officer of the Company or the
Guarantor 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 shall have the same rights to
contribution as the Company and the Guarantor. The remedies provided for in this
Section 5 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Initial Purchaser or any Holder, or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company or the Guarantor,
their officers or directors or any Person controlling the Company or the
Guarantor, (iii) acceptance of any of the Exchange Notes or Exchange Debentures
and (iv) any sale of Registrable Senior Notes or Registrable Senior Debentures
pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject
to the reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file the reports required to be filed by it under Section
13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by the SEC
thereunder, that if it ceases to be so required to file such reports, it will
upon the request of any Holder of Registrable Senior Notes and Registrable
Senior Debentures (i) make publicly available or cause to be made publicly
available such information as is necessary to permit sales pursuant to Rule 144
under the 1933 Act, (ii) deliver or cause to be delivered such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the 1933 Act and it will take such further action as any Holder of
Registrable Senior Notes and Registrable Senior Debentures may reasonably
request, and (iii) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Senior Notes and Registrable Senior
Debentures without registration under the 1933 Act within the limitation of the
exemptions provided by (x) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (y) Rule 144A under the 1933 Act, as such Rule may be
amended from time to time, or (z) any similar rules or regulations hereafter
adopted by the SEC. Upon the written request of any Holder of Registrable Senior
Notes and Registrable Senior Debentures, the Company will deliver to such Holder
a written statement as to whether it has complied with such requirements.
(b) No Inconsistent Agreements. Neither the Company nor the
Guarantor has entered into nor will the Company or the Guarantor on or after the
date of this Agreement enter into any agreement which is inconsistent with the
rights granted to the Holders of Registrable Senior Notes and Registrable Senior
Debentures in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's or
the Guarantor's other issued and outstanding securities under any such
agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the material provisions
hereof may not be given unless the Company
23
has obtained the written consent of the Majority Holders of the outstanding
Registrable Senior Notes and Registrable Senior Debentures affected by such
amendment, modification, supplement, waiver or departure.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery (i)
if to a Holder (other than an Initial Purchaser), at the most current address
set forth on the records of the Registrar under the Indenture, (ii) if to an
Initial Purchaser, at the most current address given by such Initial Purchaser
to the Company by means of a notice given in accordance with the provisions of
this Section 6(d), which address initially is the address set forth in the
Purchase Agreement; and (iii) if to the Company and the Guarantor, initially at
the address set forth in the Purchase Agreement and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 6(d).
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged, if telecopied; and on the next business day if
timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications shall
be concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Senior Notes and Registrable Senior Debentures in violation of the terms hereof
or of the Purchase Agreement or the Indenture. If any transferee of any Holder
shall acquire Registrable Senior Notes and Registrable Senior Debentures, in any
manner, whether by operation of law or otherwise, such Registrable Senior Notes
and Registrable Senior Debentures shall be held subject to all of the terms of
this Agreement, and by taking and holding such Registrable Senior Notes and
Registrable Senior Debentures, such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement and,
if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantor on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
24
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE CONFLICTS OF LAW PROVISIONS THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
VIACOM INC.
By: /s/ Robert G. Freedline
----------------------------------------
Name: Robert G. Freedline
Title: Vice Present and Treasurer
VIACOM INTERNATIONAL INC., as Guarantor
By: /s/ Robert G. Freedline
----------------------------------------
Name: Robert G. Freedline
Title: Vice Present and Treasurer
Confirmed and Accepted, as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
SALOMON SMITH BARNEY, INC.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
By: /s/ Sabina Ceddia
--------------------------------------------
Name: Sabina Ceddia
Title: Authorized Signatory
26
SCHEDULE A
INITIAL PURCHASERS
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Salomon Smith Barney Inc.
BNY Capital Markets, Inc.
Fleet Securities, Inc.
Mizuho International plc
Scotia Capital (USA) Inc.
Daiwa Securities SB Capital Markets Europe Limited
Sanwa International plc
Tokyo-Mitsubishi International plc
EXHIBIT 5.1
January 30, 2001
Board of Directors
Viacom Inc.
1515 Broadway
New York, NY 10036
Viacom Inc. and Viacom International Inc.
Ladies and Gentlemen:
We have acted as counsel for Viacom Inc. (the "Company") and
Viacom International Inc. (the "Guarantor") in connection with the preparation
of a registration statement on Form S-4 (the "Registration Statement") being
filed with the Securities and Exchange Commission relating to the registration
of the Company's 6.40% Senior Notes due 2006 (the "2006 Senior Notes"), its
7.70% Senior Notes due 2010 (the "2010 Senior Notes") and its 7.875% Senior
Debentures due 2030 (the "Senior Debentures", and together with the 2006 Senior
Notes and the 2010 Senior Notes, the "Senior Securities") and the unconditional
guarantees as to the payment of principal and interest on the Senior Securities
by the Guarantor (the "Senior Guarantees"). Pursuant to the Registration
Statement, the Company is offering to exchange (the "Exchange Offer") up to
$400,000,000 aggregate principal amount of 2006 Senior Notes for a like amount
of its outstanding 6.40% Senior Notes due 2006 (the "Original 2006 Notes"), up
to $500,000,000 aggregate principal amount of its 2010 Senior Notes for a like
amount of its outstanding 7.70% Senior Notes due 2010 (the "Original 2010
Notes") and up to $750,000,000 aggregate principal amount of Senior Debentures
for a like amount of its outstanding 7.875% Senior Debentures due 2030 (the
"Original Senior Debentures," and together with the Original 2006 Notes and the
Original 2010 Notes, the "Original Senior Securities") and to exchange the
Senior Guarantees for the unconditional guarantees as to the payment of
principal and interest on the Original Senior Securities by the Guarantor (the
"Original Senior Guarantees"). The Senior Securities and the Senior Guarantees
will be, issued upon consummation of the Exchange Offer. The Original Senior
Securities and Original Senior Guarantees were, and the Senior Securities and
the Senior Guarantees will be issued pursuant to an indenture, dated as of May
15, 1995, as supplemented by the First Supplemental Indenture dated as of May
24, 1995, as supplemented and amended by the Second Supplemental Indenture and
Amendment No. 1 dated as of December 15, 1995, as supplemented by Third
Supplemental Indenture dated as of July 22, 1996, as supplemented by the Fourth
Supplemental Indenture dated as of August 1, 2000 and as further supplemented by
the Fifth Supplemental Indenture dated as of January 17, 2001 (as so
supplemented and amended, the "Indenture") among the Company, the Guarantor and
Citibank N.A., as successor to State Street Bank and Trust Company and The First
National Bank of Boston, trustee.
In our capacity as counsel to the Company and the Guarantor we
have examined (i) the Registration Statement, (ii) the Indenture and (iii) the
originals, or copies identified to our satisfaction, of such corporate records
of the Company and the Guarantor, certificates of public officials, officers of
the Company and the Guarantor, and other persons, and such other documents,
agreements and instruments as we have deemed necessary as a basis for the
opinions hereinafter expressed.
January 30, 2001
Page 2
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified, conformed or photostatic copies and
the authenticity of the originals of such latter documents. As to any facts
material to the opinions expressed herein which were not independently
established or verified, we have relied upon oral or written statements and
representations of officers and other representatives of the Company and the
Guarantor and others.
Our opinion set forth below is limited to the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States and we do not express any opinion herein
concerning any other laws.
Based on the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that when the
Senior Securities and the Senior Guarantees have been duly authorized and
executed by the Company and the Guarantor, respectively, the Senior Securities
(to which the Senior Guarantees will be affixed) have been authenticated by the
Trustee in accordance with the provisions of the Indenture and delivered to
holders tendering into the Exchange Offer in accordance with the terms of the
Exchange Offer as set forth in the Registration Statement, the Senior Securities
and the Senior Guarantees will be legally issued and will constitute valid and
binding obligations of the Company and the Guarantor, respectively, enforceable
against the Company and the Guarantor, respectively, in accordance
with their terms.
The opinion set forth above is subject, as to enforcement, to
(i) bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws relating
to or affecting the enforcement of creditors' rights generally, (ii) general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (iii) provisions of law that require that a
judgment for money damages rendered by a court in the United States be expressed
only in United States dollars.
We hereby consent to the use of this opinion letter as an
exhibit to the Registration Statement and to the use of our name under the
heading "Legal Matters" in the prospectus included as part of the Registration
Statement.
Very truly yours,
SHEARMAN & STERLING
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-4 of Viacom Inc. of our report dated February 10, 2000,
except for the second and third paragraphs of note 2, which are as of March 21,
2000 relating to the financial statements and financial statement schedules,
which appears in Viacom Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1999. We also consent to the references to us under the headings
"Experts" in such Registration Statement.
PricewaterhouseCoopers LLP
New York, New York
January 29, 2001
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use of our report dated January 25, 2000, except as to note
20, which is as of March 21, 2000, appearing on page 30 of CBS Corporation's
Form 10-K for the year ended December 31, 1999; and our report dated March 21,
2000, appearing on page 67 of CBS Corporation's Form 10-K for the year ended
December 31, 1999; incorporated by reference in this Registration Statement of
Viacom Inc. and the reference to our firm under the heading "Experts" in this
Registration Statement.
KPMG LLP
New York, New York
January 29, 2001
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the use of our report dated January 25, 2000, except as to note
17, which is as of March 21, 2000, appearing on page 26 of Infinity Broadcasting
Corporation's Form 10-K for the year ended December 31, 1999; and our report
dated March 21, 2000, appearing on page 51 of Infinity Broadcasting
Corporation's Form 10-K for the year ended December 31, 1999; incorporated by
reference in this Registration Statement of Viacom Inc. and the reference to our
firm under the heading "Experts" in this Registration Statement.
KPMG LLP
New York, New York
January 29, 2001
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an application to determine eligibility of a Trustee
pursuant to Section 305 (b)(2) ____
------------------------
CITIBANK, N.A.
(Exact name of trustee as specified in its charter)
13-5266470
(I.R.S. employer
identification no.)
399 Park Avenue, New York, New York 10043
(Address of principal executive office) (Zip Code)
-----------------------
Viacom Inc.
(Exact name of obligor as specified in its charter)
Delaware 04-2949533
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1515 Broadway
New York, New York 10036
(Address of principal executive offices) (Zip Code)
-------------------------
Debt Securities
(Title of the indenture securities)
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Name Address
---- -------
Comptroller of the Currency Washington, D.C.
Federal Reserve Bank of New York New York, NY
33 Liberty Street
New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation.
None.
Item 16. List of Exhibits.
List below all exhibits filed as a part of this Statement of
Eligibility.
Exhibits identified in parentheses below, on file with the
Commission, are incorporated herein by reference as exhibits
hereto.
Exhibit 1 - Copy of Articles of Association of the Trustee, as
now in effect. (Exhibit 1 to T-1 to Registration Statement No.
2-79983)
Exhibit 2 - Copy of certificate of authority of the Trustee to
commence business. (Exhibit 2 to T-1 to Registration Statement
No. 2-29577).
Exhibit 3 - Copy of authorization of the Trustee to exercise
corporate trust powers. (Exhibit 3 to T-1 to Registration
Statement No. 2-55519)
Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4
to T-1 to Registration Statement No. 33-34988)
Exhibit 5 - Not applicable.
Exhibit 6 - The consent of the Trustee required by Section
321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to
Registration Statement No. 33-19227.)
Exhibit 7 - Copy of the latest Report of Condition of Citibank,
N.A. (as of September 30, 2000 - attached)
Exhibit 8 - Not applicable.
Exhibit 9 - Not applicable.
------------------
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
Trustee, Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York and State of New York, on the 29th day
of January, 2001.
CITIBANK, N.A.
By /s/P. DeFelice
-----------------------------------
P. DeFelice
Vice President
Charter No. 1461
Comptroller of the Currency
Northeastern District
REPORT OF CONDITION
CONSOLIDATING
DOMESTIC AND FOREIGN
SUBSIDIARIES OF
Citibank, N.A.
of New York in the State of New York,
at the close of business on September 30, 2000,
published in response to call made by
Comptroller of the Currency, under Title 12,
United States Code, Section 161. Charter Number 1461
Comptroller of the Currency Northeastern District.
Thousands of dollars
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin $ 8,554,000
Interest-bearing balances 15,678,000
Held-to-maturity securities 0
Available-for-sale securities 38,563,000
Federal funds sold and securities purchased under
agreements to resell 5,150,000
Loans and lease financing receivables:
Loans and Leases, net of unearned income $244,199,000
LESS: Allowance for loan and lease losses 4,655,000
Loans and leases, net of unearned income,
allowance, and reserve 239,544,000
Trading assets 34,918,000
Premises and fixed assets (including
capitalized leases) 3,875,000
Other real estate owned 305,000
Investments in unconsolidated subsidiaries
and associated companies 1,214,000
Customers' liability to this bank
on acceptances outstanding 1,364,000
Intangible assets 5,935,000
Other assets 13,898,000
------------
TOTAL ASSETS $ $368,998,000
============
LIABILITIES
Deposits:
In domestic offices $ 48,906,000
Noninterest-bearing 14,055,000
Interest-bearing 34,851,000
In foreign offices, Edge and Agreement subsidiaries,
and IBFs 214,027,000
Noninterest-bearing 13,763,000
Interest-bearing 200,264,000
Federal funds purchased and securities sold under
agreements to repurchase 11,479,000
Demand notes issued to the U.S. Treasury 0 Trading liabilities 24,753,000 Other
borrowed money (includes mortgage indebtedness and obligations under capitalized
leases):
With a remaining maturity of one year or less 12,574,000
With a remaining maturity of more than one year
through three years 4,281,000
With a remaining maturity of more than three years 2,544,000
Bank's liability on acceptances executed and outstanding 1,404,000
Subordinated notes and debentures 8,200,000
Other liabilities 14,355,000
------------
TOTAL LIABILITIES $342,523,000
============
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock $ 751,000
Surplus 11,254,000
Undivided profits and capital reserves 15,349,000
Net unrealized holding gains (losses)
on available-for-sale securities (8,000)
Accumulated net gains (losses) on cash flow hedges 0
Cumulative foreign currency translation adjustments (871,000)
-----------
TOTAL EQUITY CAPITAL $ 26,475,000
------------
TOTAL LIABILITIES AND EQUITY CAPITAL $368,998,000
============
I, Roger W. Trupin, Controller of the above-named bank do hereby declare
that this Report of Condition is true and correct to the best of my knowledge
and belief.
ROGER W. TRUPIN
CONTROLLER
We, the undersigned directors, attest to the correctness of this Report
of Condition. We declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions and
is true and correct.
ALAN S. MacDonald
WILLIAM R. RHODES
VICTOR J. MENEZES
DIRECTORS
EXHIBIT 99.1
FORM OF LETTER OF TRANSMITTAL
6.40% Senior Notes due 2006
7.70% Senior Notes due 2010
7.875% Senior Debentures due 2030
of
Viacom Inc.
Unconditionally guaranteed as to payment of principal and interest
by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
pursuant to the Exchange Offer in respect of
All of its outstanding unregistered 6.40% Senior Notes due 2006
for 6.40% Senior Notes due 2006
All of its outstanding unregistered 7.70% Senior Notes due 2010
for 7.70% Senior Notes due 2010
and
All of its outstanding unregistered 7.875% Senior Debentures due 2030
for 7.875% Senior Debentures due 2030
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FEBRUARY ,
2001 (THE "EXPIRATION DATE") UNLESS THE EXCHANGE OFFER IS EXTENDED BY VIACOM OR
VIACOM INTERNATIONAL IN THEIR SOLE DISCRETION.
TENDERS OF UNREGISTERED SENIOR SECURITIES MAY BE WITHDRAWN AT ANY TIME PRIOR TO
5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
To Citibank N.A. Kredietbank S.A. Luxembourgeoise
Principal Exchange Agent Luxembourg Exchange Agent
Citibank, N.A. Kredietbank S.A. Luxembourgeoise
111 Wall Street, 5th Floor 43, Boulevard Royal
New York, New York 10005 L-2955 Luxembourg
Attn: Global Agency & Trust Services Attn: Corporate Trust and Agencies
By: Telephone: (800) 422-2066 By Telephone: (00352) 47 97 3933
Facsimile: (212) 825-3483 Facsimile: (00352) 47 97 73 951
Delivery of this letter of transmittal to an address, or transmission via
telegram, telex or facsimile, other than as set forth above will not constitute
a valid delivery. The method of delivery of all documents, including
certificates, is at the risk of the holder. If delivery is by mail, we recommend
the use of registered mail with return receipt requested, properly insured. You
should read the instructions accompanying this letter of transmittal carefully
before you complete this letter of transmittal.
The undersigned acknowledges that he or she has received the prospectus,
dated __________, 2001 (the "Prospectus"), of Viacom Inc. ("Viacom"), and this
letter of transmittal and the instructions hereto (the "Letter of Transmittal"),
which together constitute Viacom's offer (the "Exchange Offer") to exchange up
to $400,000,000 aggregate principal amount of new 6.40% senior notes due 2006,
which are registered under the Securities Act of 1933, for any and all of its
unregistered 6.40% senior notes due 2006 issued on January 17, 2001,
$500,000,000 aggregate principal amount of new 7.70% senior notes due 2010,
which are registered under the Securities Act of 1933, for any and all of its
unregistered 7.70% senior notes due 2010 issued on January 17, 2001 and
$750,000,000 aggregate principal amount of new 7.875% senior debentures due
2030, which are registered under the Securities Act of 1933, for any and all of
its unregistered 7.875% senior debentures due 2030 issued on January 17, 2001,
pursuant to a Registration Statement of which the Prospectus is a part. The
unregistered senior securities are unconditionally guaranteed as to payment of
principal and interest by Viacom International Inc., a wholly owned subsidiary
of Viacom. The term "Expiration Date" shall mean 5:00 p.m. New York City time on
___________, 2001, unless Viacom or Viacom International, in their sole
discretion, extends the Exchange Offer, in which case the term shall mean the
latest date and time to which the Exchange Offer is extended. Whenever we refer
to the unregistered senior notes due 2006, the unregistered senior notes due
2010 and the unregistered senior debentures, we will refer to them as the
"unregistered senior securities." Whenever we refer to the exchange senior notes
due 2006, the exchange senior notes due 2010 and the exchange senior debentures,
we will refer to them as the "exchange senior securities." All other terms used
but not defined herein have the meaning given to them in the Prospectus.
This Letter of Transmittal is to be used if (1) certificates representing
unregistered senior securities are to be physically delivered to the Exchange
Agent by Holders (as defined below), (2) the unregistered senior securities are
to be tendered by book-entry transfer pursuant to the procedures set forth in
the Prospectus under "The Exchange Offer--Book-Entry Transfer" or (3) if tender
of the unregistered senior securities is to be made by Holders according to the
guaranteed delivery procedures set forth in the Prospectus under "Exchange
Offer--Guaranteed Delivery Procedures." Delivery of this Letter of Transmittal
and any other required documents must be made to the Exchange Agent.
DELIVERY OF DOCUMENTS TO DTC, EUROCLEAR OR CLEARSTREAM LUXEMBOURG DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
The term "Holder" as used herein means any person in whose name
unregistered senior securities are registered on the books of Viacom or any
other person who has obtained a properly completed bond power from the
registered holder.
Any Holder of unregistered senior securities who wishes to tender his, her
or its unregistered senior securities must, prior to the Expiration Date,
either: (a) complete, sign and deliver this Letter of Transmittal, or a
facsimile thereof, to the Exchange Agent, in person or to the address or
facsimile number set forth above and tender (and not withdraw) his, her or its
unregistered senior securities, or (b) if a tender of unregistered senior
securities is to be made by book-entry transfer to the account maintained by the
Exchange Agent at DTC, Euroclear or Clearstream Luxembourg, confirm such
book-entry transfer, including the delivery of an Agent's Message (a "Book-Entry
Confirmation"), in each case in accordance with the procedures for tendering
described in the Instructions to this Letter of Transmittal.
Holders of unregistered senior securities whose certificates are not
immediately available or who are unable to deliver their certificates or
Book-Entry Confirmation and all other documents required by this Letter of
Transmittal to be delivered to the Exchange Agent on or prior to the Expiration
Date, must tender their unregistered senior securities according to the
guaranteed delivery procedures set forth under the caption "The Exchange
Offer--Guaranteed Delivery Procedures" in the Prospectus. (See Instruction 1.)
2
Upon the terms and subject to the conditions of the Exchange Offer, the
acceptance for exchange of the unregistered senior securities validly tendered
and not withdrawn and the issuance of the exchange senior securities will be
made promptly following the Expiration Date. For the purposes of the Exchange
Offer, Viacom shall be deemed to have accepted for exchange validly tendered
unregistered senior securities when, as and if Viacom has given written notice
thereof to the Exchange Agent.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Exchange Offer.
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL AND THE PROSPECTUS CAREFULLY
BEFORE CHECKING ANY BOX BELOW. THE INSTRUCTIONS INCLUDED IN THIS LETTER OF
TRANSMITTAL MUST BE FOLLOWED. QUESTIONS AND REQUESTS FOR ASSISTANCE OR FOR
ADDITIONAL COPIES OF THE PROSPECTUS, THIS LETTER OF TRANSMITTAL AND THE NOTICE
OF GUARANTEED DELIVERY MAY BE DIRECTED TO THE EXCHANGE AGENT. SEE INSTRUCTION
11.
HOLDERS WHO WISH TO ACCEPT THE EXCHANGE OFFER AND TENDER THEIR UNREGISTERED
SENIOR SECURITIES MUST COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY AND
COMPLY WITH ALL OF ITS TERMS.
3
Please list below the unregistered senior securities to which this letter
of transmittal relates. If the space provided below is inadequate, the
Certificate Numbers and Principal Amounts should be listed on a separate signed
schedule, attached hereto. The minimum permitted tender is $1,000 in principal
amount. All other tenders must be in integral multiples of $1,000.
- -----------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF UNREGISTERED SENIOR SECURITIES
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
Name(s) and Address(es)
of Holder(s) Certificate Number(s) Aggregate Principal
(Please fill in, if blank) Type of Security Tendered (Attach signed list if necessary) Amount Tendered
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------
TOTAL PRINCIPAL AMOUNT OF UNREGISTERED
SENIOR SECURITIES TENDERED:
- ----------------------------------------------------------------------------------------------------------------------
[ ] CHECK HERE IF TENDERED UNREGISTERED SENIOR SECURITIES ARE BEING
DELIVERED BY DTC, EUROCLEAR OR CLEARSTREAM LUXEMBOURG TO THE EXCHANGE
AGENT'S ACCOUNT AT DTC, EUROCLEAR OR CLEARSTREAM LUXEMBOURG AND COMPLETE
THE FOLLOWING:
Name of Tendering Institution: _________________________________________
DTC, Euroclear or Clearstream Luxembourg Book-Entry Account: ___________
Transaction Code No.: __________________________________________________
Holders who wish to tender their unregistered senior securities and (i)
whose unregistered senior securities are not immediately available, or (ii) who
cannot deliver their unregistered senior securities the Letter of Transmittal or
any other required documents to the applicable Exchange Agent prior to the
Expiration Date, or cannot complete the procedure for book-entry transfer on a
timely basis, may effect a tender according to the guaranteed delivery
procedures set forth in the Prospectus under the caption "Terms of the Exchange
Offer--Guaranteed Delivery Procedures."
[ ] CHECK HERE IF TENDERED UNREGISTERED SENIOR SECURITIES ARE BEING
DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY
DELIVERED TO THE APPLICABLE EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name(s) of Holder(s) of unregistered senior securities: ________________
Window Ticket No. (if any): ____________________________________________
Date of Execution of Notice of Guaranteed Delivery: ____________________
4
DTC, Euroclear or Clearstream Luxembourg Book-Entry Account: ___________
If Delivered by Book-Entry Transfer: ___________________________________
Name of Tendering Institution: _________________________________
Transaction Code No.: __________________________________________
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name: __________________________________________________________
Address: _______________________________________________________
5
Ladies and Gentlemen:
Subject to the terms and conditions of the Exchange Offer, the undersigned
hereby tenders to Viacom the principle amount of unregistered senior securities
indicated above. Subject to and effective upon the acceptance for exchange of
the principal amount of unregistered senior securities tendered hereby in
accordance with this Letter of Transmittal and the accompanying instructions,
the undersigned sells, assigns and transfers to, or upon the order of, Viacom
all right, title and interest in and to the unregistered senior securities
tendered hereby. The undersigned hereby irrevocably constitutes and appoints the
Exchange Agents its agent and attorney-in-fact (with full knowledge that the
Exchange Agents also act as agents of Viacom and the Principal Exchange Agent
acts as Trustee under the Indentures for the unregistered senior securities and
the exchange senior securities) with respect to the tendered unregistered senior
securities with full power of substitution to (i) deliver certificates for such
unregistered senior securities to Viacom, or transfer ownership of such
unregistered senior securities on the account books maintained by DTC, Euroclear
or Clearstream Luxembourg, as the case may be, together, in any such case, with
all accompanying evidences of transfer and authenticity to, or upon the order
of, Viacom and (ii) present such unregistered senior securities for transfer on
the books of Viacom and receive all benefits and otherwise exercise all rights
of beneficial ownership of such unregistered senior securities, all in
accordance with the terms of the Exchange Offer. The power of attorney granted
in this paragraph shall be deemed irrevocable and coupled with an interest.
The undersigned hereby represents and warrants that he or she has full
power and authority to tender, exchange, sell, assign and transfer the
unregistered senior securities tendered hereby and to acquire the exchange
senior securities issuable upon the exchange of the unregistered senior
securities, and that Viacom will acquire good and unencumbered title thereto,
free and clear of all liens, restrictions, charges and encumbrances and not
subject to any adverse claim, when the same are acquired by Viacom. The
undersigned also acknowledges that this Exchange Offer is being made in reliance
upon an interpretation by the staff of the Securities and Exchange Commission
that the exchange senior securities issued in exchange for the unregistered
senior securities pursuant to the Exchange Offer may be offered for sale, resold
and otherwise transferred by holders thereof (other than a broker-dealer who
purchased such unregistered senior securities directly from Viacom for resale
pursuant to Rule 144A, Regulation S or any other available exemption under the
Securities Act or a holder that is an "affiliate" of Viacom or Viacom
International within the meaning of Rule 405 under the Securities Act) without
compliance with the registration and prospectus delivery provisions of the
Securities Act, provided that such exchange senior securities are acquired by a
non-affiliate in the ordinary course of such holder's business and such holders
have no arrangement or understanding with any person to participate in the
distribution of such exchange senior securities.
The undersigned Holder represents and warrants that (i) the exchange senior
securities acquired pursuant to the Exchange Offer are being acquired in the
ordinary course of business of the person receiving the exchange senior
securities, whether or not the person is the Holder, (ii) neither the
undersigned Holder nor any other recipient of the exchange senior securities (if
different than the Holder) is engaged in, intends to engage in or has any
arrangement or understanding with any person to participate in the distribution
of the exchange senior securities, (iii) the Holder is not a broker-dealer, or
is a broker-dealer but will not receive exchange senior securities for its own
account and (iv) neither the Holder nor any other recipient is an "affiliate" of
Viacom or Viacom International within the meaning of Rule 405 of the Securities
Act or, if such Holder is an affiliate, that such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable.
If the undersigned is a broker-dealer, the undersigned further represents
and warrants that (1) it acquired unregistered senior securities for the
undersigned's own account as a result of market-making activities or other
trading activities, (2) it has not entered into any arrangement or understanding
with Viacom or Viacom International or any "affiliate" of Viacom or Viacom
International (within the meaning of Rule 405 under the Securities Act) to
distribute the exchange senior securities to be received
6
in the Exchange Offer and (3) it will deliver a prospectus meeting the
requirements of the Securities Act (for which purposes, the delivery of the
Prospectus, as the same may be hereafter supplemented or amended, shall be
sufficient) in connection with any resale of exchange senior securities received
in the Exchange Offer. Such a broker-dealer will not be deemed, solely by reason
of such acknowledgment and prospectus delivery, to admit that it is an
"underwriter" within the meaning of the Securities Act.
The undersigned will, upon request, execute and delivery any additional
documents deemed by the Exchange Agents or Viacom to be necessary or desirable
to complete the exchange, assignment and transfer of the unregistered senior
securities tendered hereby or transfer of ownership of such unregistered senior
securities on the account books maintained by a book-entry transfer facility.
The undersigned understands and agrees that Viacom reserves the right not
to accept tendered unregistered senior securities from any tendering Holder if
Viacom or Viacom International determines, in their sole and absolute
discretion, that their ability to proceed with the Exchange Offer would be
impaired by a pending or threatened action or proceeding with respect to the
Exchange Offer or that such acceptance could result in a violation of applicable
securities laws.
For purposes of the Exchange Offer, Viacom shall be deemed to have accepted
validly tendered unregistered senior securities when, as and if Viacom has given
oral or written notice thereof to the applicable Exchange Agent. If any tendered
unregistered senior securities are not accepted for exchange pursuant to the
Exchange Offer for any reason, such unaccepted or non-exchanged unregistered
senior securities will be returned at the address shown below or at a different
address as may be indicated herein under "Special Delivery Instructions,"
without expense to the tendering Holder thereof, (or, in the case of tender by
book-entry transfer into the Exchange Agent's account at the book-entry transfer
facility pursuant to the book-entry transfer procedures described in the
Prospectus under the "The Exchange Offer--Book-Entry Transfer," such
non-exchanged senior securities will be credited to an account maintained with
such book-entry transfer facility) as promptly as practicable after the
expiration or termination of the Exchange Offer.
The undersigned understands and acknowledges that Viacom reserves the right
in its sole discretion to purchase or make offers for any unregistered senior
securities that remain outstanding subsequent to the Expiration Date or, as set
forth in the Prospectus under the caption "Exchange Offer--Expiration Date;
Extensions; Amendment; Termination" to terminate the Exchange Offer and, to the
extent permitted by applicable law, purchase unregistered senior securities in
the open market, in privately negotiated transactions or otherwise. The terms of
any such purchases or offers could differ from the terms of the Exchange Offer.
The undersigned understands that tenders of unregistered senior securities
pursuant to the procedures described under the caption "Terms of the Exchange
Offer --Procedures for Tendering" in the Prospectus and in the instructions
hereto will constitute a binding agreement between the undersigned and Viacom
upon the terms and subject to the conditions of the Exchange Offer. The
undersigned also agrees that acceptance of any tendered unregistered senior
securities by Viacom and the issuance of exchange senior securities in exchange
therefor shall constitute performance in full by Viacom and Viacom International
of their respective obligations under the Exchange Offer and Registration Rights
Agreement and that, upon the issuance of the exchange senior securities, Viacom
and Viacom International will have no further obligations or liabilities
thereunder (except in certain limited circumstances).
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death, incapacity or dissolution of the
undersigned and every obligation under this Letter of Transmittal shall be
binding upon the undersigned's heirs, personal representatives, successors and
assigns. This tender may be withdrawn only in accordance with the procedures set
forth in the Prospectus and in this Letter of Transmittal.
7
By acceptance of the Exchange Offer, each broker-dealer that receives
exchange senior securities pursuant to the Exchange Offer hereby acknowledges
and agrees that upon the receipt of notice by Viacom of the happening of any
event that makes any statement in the Prospectus untrue in any material respect
or that requires the making of any changes in the Prospectus in order to make
the statements therein not misleading (which notice Viacom agrees to deliver
promptly to such broker-dealer), such broker-dealer will suspend use of the
Prospectus until Viacom has amended or supplemented the Prospectus to correct
such misstatement or omission and has furnished copies of the amended or
supplemented prospectus to such broker-dealer.
Unless otherwise indicated under "Special Registration Instructions,"
please issue the certificates representing the exchange senior securities issued
in exchange for the unregistered senior securities accepted for exchange and
return any unregistered senior securities not tendered or not exchanged, in the
name(s) of the undersigned (or in either such event in the case of unregistered
senior securities tendered by DTC, Euroclear or Clearstream Luxembourg, by
credit to the respective account at DTC, Euroclear or Clearstream Luxembourg).
Similarly, unless otherwise indicated under "Special Delivery Instructions,"
please send the certificates representing the exchange senior securities issued
in exchange for the unregistered senior securities accepted for exchange and
return any unregistered senior securities not tendered or not exchanged (and
accompanying documents, as appropriate) to the undersigned at the address shown
below the undersigned's signatures, unless, in either event, tender is being
made through DTC, Euroclear or Clearstream Luxembourg. In the event that both
"Special Registration Instructions" and "Special Delivery Instructions" are
completed, please issue the certificates representing the exchange senior
securities issued in exchange for the unregistered senior securities accepted
for exchange and return any unregistered senior securities not tendered or not
exchanged in the name(s) of, and send said certificates to, the person(s) so
indicated. The undersigned recognizes that Viacom has no obligations pursuant to
the "Special Registration Instructions" and "Special Delivery Instructions" to
transfer any unregistered senior securities from the name of the registered
holder(s) thereof if Viacom does not accept for exchange any of the unregistered
senior securities so tendered.
Holders who wish to tender the unregistered senior securities and (1) whose
unregistered senior securities are not immediately available or (2) who cannot
deliver their unregistered senior securities, this Letter of Transmittal or any
other documents required hereby to the Exchange Agents prior to the Expiration
Date, may tender their Restricted Noted according to the guaranteed delivery
procedures set forth in the Prospectus under the caption "The Exchange
Offer--Guaranteed Delivery Procedures." (See Instruction 1.)
8
PLEASE SIGN HERE WHETHER OR NOT TENDER IS TO BE MADE PURSUANT TO
THE GUARANTEED DELIVERY PROCEDURES.
(To Be Completed by All Tendering Holders of Unregistered Senior Securities
Regardless of Whether Unregistered Senior Securities Are
Being Physically Delivered Herewith)
This Letter of Transmittal must be signed by the registered Holder(s) of
unregistered senior securities exactly as its (their) name(s) appear(s) on
certificate(s) of unregistered senior securities or, if tendered by a
participant in DTC, Euroclear or Clearstream Luxembourg, exactly as such
participant's name appears on its security position listing it as the owner of
unregistered senior securities, or by person(s) authorized to become registered
Holder(s) by endorsements and documents transmitted with this Letter of
Transmittal. If the unregistered senior securities to which this Letter of
Transmittal relates are held of record by two or more joint Holders, then all
such Holders must sign this Letter of Transmittal. If signature is by a trustee,
executor, administrator, guardian, attorney-in-fact, officer of a corporation or
other person acting in a fiduciary or representative capacity, then such person
must set forth is or her full title below under "Capacity" and submit evidence
satisfactory to Viacom of such person's authority to so act. (See Instruction
6.) If the signature appearing below is not the registered Holder(s) of the
unregistered senior securities, then the registered Holder(s) must sign a valid
proxy.
x_________________________________ Date: ________________________
x_________________________________ Date: ________________________
Signature(s) of Holder(s) or
Authorized Signatory
Name(s): ______________________________ Address: _____________________
------------------------------
(Please Print) (Including Zip Code)
Capacity(ies): Area Code and Telephone No.:
Tax Identification or Social Security Number(s).:
[Complete Substitute Form W-9 below.]
9
SIGNATURE GUARANTEE
(See Instruction 1 herein)
Certain Signatures Must Be Guaranteed by an Eligible Institution
--------------------------------------------------------------------------
(Name of Eligible Institution Guaranteeing Signatures)
--------------------------------------------------------------------------
(Address (including zip code) and Telephone Number
(including area code) of Firm)
--------------------------------------------------------------------------
(Authorized Signatures)
--------------------------------------------------------------------------
(Printed Name)
--------------------------------------------------------------------------
(Title)
Date:
10
- --------------------------------------------------------------------------------
SPECIAL REGISTRATION INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instruction 7 herein) (See Instruction 7 herein)
To be completed ONLY if certificates To be completed ONLY if certificates
for unregistered senior securities in for unregistered senior securities in
a principal amount not tendered or a principal amount not tendered or
not accepted for exchange are to be not accepted for exchange are to be
issued in the name of, or the sent to, or the exchange senior
exchange senior securities issued securities issued pursuant to the
pursuant to the Exchange Offer are to Exchange Offer are to be sent to
be issued to the order of, someone someone other than the person or
other than the person or persons persons whose signature(s) appear(s)
whose signature(s) appear(s) within within this Letter of Transmittal, or
this Letter of Transmittal or issued to an address different from, that
to an address different from, that shown in the box entitled
shown in the box entitled "Description of unregistered senior
"Description of unregistered senior securities" within this Letter of
securities" within this Letter of Transmittal, or to be credited to an
Transmittal, or if exchange senior account maintained at DTC, Euroclear
securities tendered by book-entry or Clearstream Luxembourg other than
transfer that are not accepted for the account indicated above.
purchase are to be credited to an
account maintained at DTC, Euroclear
or Clearstream Luxembourg other than
the account indicated above.
Name:_______________________________ Name:_______________________________
(Please Print) (Please Print)
Address:____________________________ Address:____________________________
(Please Print) (Please Print)
- ------------------------------------ ------------------------------------
(Zip Code) (Zip Code)
- ------------------------------------ ------------------------------------
Tax Identification or Social Tax Identification or Social
Security Number Security Number
(See Substitute Form W-9 herein) (See Substitute Form W-9 herein)
- --------------------------------------------------------------------------------
INSTRUCTIONS
Forming Part of the Terms and Conditions
of the Exchange Offer and the Solicitation
1. Guarantee of Signatures. Signatures on this Letter of Transmittal (or
copy hereof) or a notice of withdrawal, as the case may be, must be guaranteed
by a member firm of a registered national securities exchange or of the National
Association of Securities Dealers, Inc., a commercial bank or trust company
having an office or correspondent in the United States or an "eligible guarantor
institution" within the meaning of Rule 17Ad-15 under the Exchange Act (an
"Eligible Institution") unless the unregistered senior securities tendered
pursuant thereto are tendered (i) by a registered Holder (including any
participant in DTC, Euroclear or Clearstream Luxembourg whose name appears on a
security position listing as the owner of unregistered senior securities) who
has not completed the box set forth herein entitled "Special Registration
Instructions" or "Special Delivery Instructions" of this Letter of Transmittal
or (ii) for the account of an Eligible Institution.
11
2. Delivery of this Letter of Transmittal and Unregistered Senior
Securities. Certificates for the physically tendered unregistered senior
securities (or a confirmation of a book-entry transfer to the Exchange Agent at
DTC, Euroclear or Clearstream Luxembourg of all unregistered senior securities
tendered electronically), as well as, in the case of physical delivery of
unregistered senior securities, a properly completed and duly executed copy of
this Letter of Transmittal or facsimile hereof and any other documents required
by this Letter of Transmittal must be received by the applicable Exchange Agent
at its address set forth herein prior to 5:00 P.M. New York City time, on the
Expiration Date. The method of delivery of the tendered unregistered senior
securities, this Letter of Transmittal and all other required documents, or
book-entry transfer and transmission of an Agent's Message by a DTC, Euroclear
or Clearstream Luxembourg participant, to the applicable Exchange Agent are at
the election and risk of the Holder and, except as otherwise provided below, the
delivery will be deemed made only when actually received by the applicable
Exchange Agent. Instead of delivery by mail, it is recommended that the Holder
use an overnight or hand delivery service. In all cases, sufficient time should
be allowed to assure timely delivery. No Letter of Transmittal or unregistered
senior securities should be sent to Viacom, DTC, Euroclear or Clearstream
Luxembourg.
The Exchange Agent will make a request to establish an account with respect
to the unregistered senior securities at DTC, Euroclear or Clearstream
Luxembourg for purposes of the Exchange Offer promptly after receipt of the
Prospectus, and any financial institution that is a participant in DTC,
Euroclear or Clearstream Luxembourg may make book-entry delivery of unregistered
senior securities by causing DTC, Euroclear or Clearstream, Luxembourg, as the
case may be, to transfer such unregistered senior securities into the Exchange
Agent's account at DTC, Euroclear or Clearstream Luxembourg, as the case may be,
in accordance with the relevant entity's procedures for transfer. However,
although delivery of unregistered senior securities may be affected through
book-entry transfer at DTC, Euroclear or Clearstream Luxembourg, an Agent's
Message (as defined in the next paragraph) in connection with a book-entry
transfer and any other required documents, must, in any case, be transmitted to
and received by the Exchange Agent at the address specified on the cover page of
the Letter of Transmittal on or prior to the Expiration Date or the guaranteed
delivery procedures described below must be complied with.
A Holder may tender unregistered senior securities that are held through
DTC by transmitting its acceptance through DTC's Automatic Tender Offer Program,
for which the transaction will be eligible, and DTC will then edit and verify
the acceptance and send an Agent's Message to the Exchange Agent for its
acceptance. The term "Agent's Message" means a message transmitted by DTC to,
and received by, the Exchange Agent and forming part of the Book-Entry
Confirmation, which states that DTC has received an express acknowledgment from
each participant in DTC tendering the unregistered senior securities and that
such participant has received the Letter of Transmittal and agrees to be bound
by the terms of the Letter of Transmittal and the Company may enforce such
agreement against such participant. Delivery of an Agent's Message will also
constitute an acknowledgment from the tendering DTC participant that the
representations and warranties set forth on page 6 of this Letter of Transmittal
are true and correct.
Holders of unregistered senior securities held through Euroclear or
Clearstream Luxembourg, are required to use book-entry transfer pursuant to the
standard operating procedures of Euroclear or Clearstream Luxembourg, as the
case may be, to accept the Exchange Offer and to tender their A
computer-generated message must be transmitted to Euroclear or Clearstream
Luxembourg, as the case may be, in lieu of a Letter of Transmittal, in order to
tender the unregistered senior securities in the Exchange Offer.
Holders who wish to tender their unregistered senior securities and (i)
whose unregistered senior securities are not immediately available or (ii) who
cannot deliver their unregistered senior securities, this Letter of Transmittal
or any other documents required hereby to the applicable Exchange Agent prior to
the Expiration Date, or who cannot complete the procedure for book-entry
transfer on a timely basis must
12
tender their unregistered senior securities and follow the guaranteed delivery
procedures set forth in the Prospectus. Pursuant to such procedures: (i) such
tender must be made by or through an Eligible Institution (as defined above) or
pursuant to the DTC, Euroclear or Clearstream Luxembourg standard operating
procedures; (ii) prior to the Expiration Date, the applicable Exchange Agent
must have received from the Eligible Institution a properly completed and duly
executed Notice of Guaranteed Delivery (by facsimile transmission, mail or hand
delivery) setting forth the name and address of the Holder of the unregistered
senior securities, the certificate number or numbers of such unregistered senior
securities and the principal amount of unregistered senior securities tendered,
stating that the tender is being made thereby and guaranteeing that within five
Business Days after the Expiration Date, this Letter of Transmittal (or copy
thereof) together with the certificate(s) representing the unregistered senior
securities (or a confirmation of electronic mail delivery of book-entry delivery
into the Exchange Agent's account at DTC, Euroclear or Clearstream Luxembourg)
and any of the required documents will be deposited by the Eligible Institution
with the applicable Exchange Agent and (iii) such properly completed and
executed Letter of Transmittal (or copy thereof), as well as all other documents
required by this Letter of Transmittal and the certificate(s) representing all
tendered unregistered senior securities in proper form for transfer or a
confirmation of electronic mail delivery of book-entry delivery into the
Exchange Agent's account at DTC, Euroclear or Clearstream Luxembourg, must be
received by the applicable Exchange Agent within five Business Days after the
Expiration Date, all as provided in the Prospectus under the caption "Terms of
the Exchange Offer-Guaranteed Delivery Procedures." Any Holder of unregistered
senior securities who wishes to tender his unregistered senior securities
pursuant to the guaranteed delivery procedures described above must ensure that
the applicable Exchange Agent receives the Notice of Guaranteed Delivery prior
to 5:00 P.M., New York City time, on the Expiration Date. Upon request to the
Exchange Agent, a Notice of Guaranteed Delivery will be sent to Holders who wish
to tender their unregistered senior securities according to the guaranteed
delivery procedures set forth above.
All questions as to the validity, form, eligibility (including time of
receipt), acceptance and withdrawal of tendered unregistered senior securities
or this Letter of Transmittal will be determined by Viacom in its sole
discretion, which determination will be final and binding. All tendering
Holders, by execution of this Letter of Transmittal (of copy hereof), shall
waive any right to receive notice of the acceptance of the unregistered senior
securities for exchange. Viacom reserves the absolute right to reject any and
all unregistered senior securities or Letter of Transmittal not properly
tendered or any tenders Viacom's acceptance of which would, in the opinion of
counsel for Viacom, be unlawful. Viacom also reserves the absolute right to
waive any defects, irregularities or conditions of tender as to particular
unregistered senior securities. Viacom's interpretation of the terms and
conditions of the Exchange Offer (including the instructions in this Letter of
Transmittal) will be final and binding on all parties. Unless waived, any
defects or irregularities in connection with tenders of unregistered senior
securities must be cured within such time as Viacom shall determine. Although
Viacom intends to notify Holders of defects or irregularities with respect to
tenders of unregistered senior securities, neither Viacom, the Exchange Agents
nor any other person shall be under any duty to give notification of defects or
irregularities with respect to tenders of unregistered senior securities, nor
shall any of them incur any liability for failure to give such notification.
Tenders of unregistered senior securities will not be deemed to have been made
until such defects or irregularities have been cured or waived. Any unregistered
senior securities received by the Exchange Agents that are not properly tendered
and as to which the defects or irregularities have not been cured or waived will
be returned by the Exchange Agents to the tendering Holders of unregistered
senior securities, unless otherwise provided in this Letter of Transmittal, as
soon as practicable following the Expiration Date.
3. Inadequate Space. If the space provided is inadequate, the
certificate numbers and/or the number of the unregistered senior securities
should be listed on a separate signed schedule attached hereto.
13
4. Tender by Holder. Except in limited circumstances, only a registered
Holder of unregistered senior securities or a Euroclear, Clearstream Luxembourg,
or DTC participant listed on a securities position listing furnished by
Euroclear, Clearstream Luxembourg, or DTC with respect to the unregistered
senior securities may tender its unregistered senior securities in the Exchange
Offer. Any beneficial owner of unregistered senior securities who is not the
registered Holder and is not a Euroclear, Clearstream Luxembourg, or DTC
participant and who wishes to tender should arrange with such registered holder
to execute and deliver this Letter of Transmittal on such beneficial owner's
behalf or must, prior to completing and executing this Letter of Transmittal and
delivering his, her or its unregistered senior securities, either make
appropriate arrangements to register ownership of the unregistered senior
securities in such beneficial owner's name or obtain a properly completed bond
power from the registered holder or properly endorsed certificates representing
such unregistered senior securities.
5. Partial Tenders; Withdrawals. Tenders of unregistered senior
securities will be accepted only in integral multiples of $1,000. If less than
the entire principal amount of any unregistered senior securities is tendered,
the tendering Holder should fill in the principal amount tendered in the third
column of the chart entitled "Description of Unregistered Senior Securities."
The entire principal amount of unregistered senior securities delivered to the
Exchange Agents will be deemed to have been tendered unless otherwise indicated.
If the entire principal amount of all unregistered senior securities is not
tendered, unregistered senior securities for the principal amount of
unregistered senior securities not tendered and a certificate or certificates
representing exchange senior securities issued in exchange of any unregistered
senior securities accepted will be sent to the Holder at his or her registered
address, unless a different address is provided in the appropriate box on this
Letter of Transmittal or unless tender is made through DTC, Euroclear or
Clearstream Luxembourg, promptly after the unregistered senior securities are
accepted for exchange.
Except as otherwise provided herein, tenders of unregistered senior
securities may be withdrawn at any time prior to the Expiration Date. To
withdraw a tender of unregistered senior securities in the Exchange Offer, a
written or facsimile transmission notice of withdrawal must be received by the
Exchange Agent at its address set forth herein prior to the Expiration Date. Any
such notice of withdrawal must (1) specify the name of the person having
deposited the unregistered senior securities to be withdrawn (the "Depositor"),
(2) identify the unregistered senior securities to be withdrawn (including the
certificate number or numbers and principal amount of such unregistered senior
securities, or, in the case of unregistered senior securities transferred by
book-entry transfer the name and number of the account at Euroclear, Clearstream
Luxembourg, or DTC to be credited), (3) be signed by the Depositor in the same
manner as the original signature on the Letter of Transmittal by which such
unregistered senior securities were tendered (including any required signature
guarantees) or be accompanied by documents of transfer sufficient to have the
Registrar with respect to the unregistered senior securities register the
transfer of such unregistered senior securities into the name of the person
withdrawing the tender and (4) specify the name in which any such unregistered
senior securities are to be registered, if different from that of the Depositor.
All questions as to the validity, form and eligibility (including time of
receipt) of such notices will be determined by Viacom, whose determination shall
be final and binding on all parties. Any unregistered senior securities so
withdrawn will be deemed not to have been validly tendered for purposes of the
Exchange Offer and no exchange senior securities will be issued with respect
thereto unless the unregistered senior securities so withdrawn are validly
re-tendered. Any unregistered senior securities which have been tendered but
which are not accepted for exchange by Viacom will be returned to the Holder
thereof without cost to such Holder as soon as practicable after withdrawal,
rejection of tender or termination of the Exchange Offer. Properly withdrawn
unregistered senior securities may be re-tendered by following one of the
procedures described in the Prospectus under "The Exchange Offer--Procedures for
Tendering" at any time prior to the Expiration Date.
14
6. Signatures on the Letter of Transmittal; Bond Powers and
Endorsements. If this Letter of Transmittal (or copy hereof) is signed by the
registered Holder(s) of the unregistered senior securities tendered hereby, the
signature must correspond with the name(s) as written on the face of the
unregistered senior securities without alteration, enlargement or any change
whatsoever.
If any of the unregistered senior securities tendered hereby are owned
of record by two or more joint owners, all such owners must sign this Letter of
Transmittal.
If a number of unregistered senior securities registered in different
names are tendered, it will be necessary to complete, sign and submit as many
copies of this Letter of Transmittal as there are different registrations of
unregistered senior securities.
If this Letter of Transmittal (or copy hereof) is signed by the
registered Holder(s) (which term, for the purposes described herein, shall
include a book-entry transfer facility whose name appears on the security
listing as the owner of the unregistered senior securities) of unregistered
senior securities tendered and the certificate(s) for exchange senior securities
issued in exchange therefor is to be issued (or any untendered principal amount
of unregistered senior securities is to be reissued) to the registered Holder,
such Holder need not and should not endorse any tendered Outstanding Note, nor
provide a separate bond power. In any other case, such Holder must either
properly endorse the unregistered senior securities tendered or transmit a
properly completed separate bond power with this Letter of Transmittal, with the
signatures on the endorsement or bond power guaranteed by an Eligible
Institution.
If this Letter of Transmittal (or copy hereof) is signed by a person
other than the registered Holder(s) of unregistered senior securities listed
therein, such unregistered senior securities must be endorsed or accompanied by
properly completed bond powers which authorize such person to tender the
unregistered senior securities on behalf of the registered Holder, in either
case signed as the name of the registered Holder or Holders appears on the
unregistered senior securities.
If this Letter of Transmittal (or copy hereof) or any unregistered
senior securities or bond powers are signed by trustees, executors,
administrators, guardians, attorneys-in-fact, or officers of corporations or
others acting in a fiduciary or representative capacity, such persons should so
indicate when signing, and unless waived by Viacom, evidence satisfactory to
Viacom of their authority to so act must be submitted with this Letter of
Transmittal.
Endorsements on unregistered senior securities or signatures on bond
powers required by this Instruction 6 must be guaranteed by an Eligible
Institution.
7. Special Registration and Delivery Instructions. Tendering Holders
should indicate, in the applicable spaces, the name and address to which
exchange senior securities or substitute unregistered senior securities for
principal amounts not tendered or not accepted for exchange are to be issued or
sent, if different from the name and address of the person signing this Letter
of Transmittal (or in the case of tender of the unregistered senior securities
through DTC, Euroclear or Clearstream Luxembourg, if different from the account
maintained at DTC, Euroclear or Clearstream Luxembourg indicated above). In the
case of issuance in a different name, the taxpayer identification or social
security number of the person named must also be indicated.
8. Transfer Taxes. Viacom will pay all transfer taxes, if any,
applicable to the exchange of unregistered senior securities pursuant to the
Exchange Offer. If, however, certificates representing exchange senior
securities or unregistered senior securities for principal amounts not tendered
or accepted for exchange are to be delivered to, or are to be registered or
issued in the name of, any person other than the registered Holder of the
unregistered senior securities tendered hereby, or if tendered unregistered
senior securities are registered in the name of any person other than the person
signing this Letter of
15
Transmittal, or if a transfer tax is imposed for any reasons other than the
exchange of unregistered senior securities pursuant to the Exchange Offer, then
the amount of any such transfer taxes (whether imposed on the registered Holder
or any other person) will be payable by the tendering Holder. If satisfactory
evidence of payment of such taxes or exemption therefrom is not submitted with
this Letter of Transmittal, the amount of such transfer taxes will be billed
directly to such tendering Holder.
Except as provided in this Instruction 8, it will not be necessary for
transfer tax stamps to be affixed to the unregistered senior securities listed
in this Letter of Transmittal.
9. Waiver of Conditions. Viacom reserves the right, in its sole
discretion, to amend, waive or modify specified conditions in the Exchange Offer
in the case of any unregistered senior securities tendered.
10. Mutilated, Lost, Stolen or Destroyed Unregistered Senior Securities.
Any tendering Holder whose unregistered senior securities have been mutilated,
lost, stolen or destroyed should contact the applicable Exchange Agent at the
address indicated herein for further instruction.
11. Requests for Assistance or Additional Copies. Questions and requests
for assistance and requests for additional copies of the Prospectus or this
Letter of Transmittal may be directed to the applicable Exchange Agent at the
address specified in the Prospectus. Holders may also contact their broker,
dealer, commercial bank, trust company or other nominee for assistance
concerning the Exchange Offer.
16
IMPORTANT TAX INFORMATION
The Holder is required to give the applicable Exchange Agent the social
security number or employer identification number of the Holder of the
unregistered senior securities. If the unregistered senior securities are in
more than one name or are not in the name of the actual owner, consult the
enclosed Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 for additional guidance on which number to report.
TO BE COMPLETED BY ALL TENDERING HOLDERS
- ---------------------------------------------------------------------------------------------------------------------
PAYOR'S NAME: VIACOM INC.
- ---------------------------------------------------------------------------------------------------------------------
SUBSTITUTE Part 1-PLEASE PROVIDE YOUR TIN IN Social Security Number
Form W-9 THE BOX AT RIGHT AND CERTIFY BY or
SIGNING AND DATING Employer Identification Number
BELOW __________________
- ---------------------------------------------------------------------------------------------------------------------
Part 2-Check the box if you are NOT
subject to back-up withholding under
the provisions of Section 3406(a)(1)(C)
of the Internal Revenue Code because
Department of the Treasury 1. you have not been notified that you are subject to back-up
Internal Revenue Service withholding as a result of failure to report all interest or dividends,
2. the Internal Revenue Service has notified you that you are no
Payor's Request for Taxpayer longer subject to back-up withholding or
Identification Number (TIN) 3. you are exempt.
CERTIFICATION-UNDER PENALTY OF PERJURY, I CERTIFY THAT THE INFORMATION
PROVIDED ON THIS FORM IS TRUE, CORRECT AND COMPLETE
- ---------------------------------------------------------------------------------------------------------------------
Sign Here > SIGNATURE: Part 3-
DATE: Check if Awaiting TIN [ ]
- ---------------------------------------------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31 PERCENT OF ANY PAYMENTS MADE TO YOU UNDER THE SENIOR
SECURITES. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION
OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR
ADDITIONAL DETAILS.
17
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
o Payments of interest on obligations
issued by individuals. Note: You
may be subject to backup
withholding if this interest if
$600 or more and is paid in the
course of the payer's trade or
business and you have not provided
your correct taxpayer
identification number to the payee.
o Payments of tax-exempt interest
(including exempt- interest
dividends in section 852).
Obtain a Number: o Payments described in
section 6049(b)(5) to non-
If you don't have a taxpayer resident alien.
identification number or you don't o Payments on tax-free covenant
know your number, obtain Form SS-5, bonds under section 1451.
Application for a Social Security o Payments made by certain
Number Card, or Form SS-4, foreign organizations.
Application for Employer o Payments made to a nominee.
Identification Number, at the local
office of the Social Security Exempt payees described above
Administration or the Internal should file Form W-9 to avoid
Revenue Service and apply for a possible erroneous backup
number. withholding.
FILE THIS FORM WITH
THE PAYER, FURNISH YOUR TAXPAYER
Payees Exempt from Backup IDENTIFICATION NUMBER, WRITE
Withholding: "EXEMPT" ON THE FACE OF THE FORM,
AND RETURN IT TO THE PAYER. IF THE
Payees specifically exempted PAYMENTS ARE INTEREST, DIVIDENDS,
from backup withholding on ALL OR PATRONAGE DIVIDENDS, ALSO SIGN
payments include the following: AND DATE THE FORM.
o A corporation Certain payments other than
o A financial institution. interest, dividends and patronage
o An organization exempt from dividends that are not subject to
tax under section 501(a), or information reporting are also not
an individual retirement subject to backup withholding. For
plan. details, see the regulations under
o The United States or any sections 6041, 6041A(a), 6045 and
agency or instrumentality 6050A.
thereof.
o A State, the District of Privacy Act Notice. Section 6109
Columbia, a possession of the requires most recipients of
United States, or any dividend, interest, or other
subdivision or payments to give taxpayer
instrumentality thereof. identification numbers to payers
o A foreign government, a who must report the payments to the
political subdivision of a IRS. IRS uses the numbers for
foreign government, or any identification purposes. Payers
agency or instrumentality must be given the numbers whether
thereof. or not recipients are required to
o An international file tax returns. Payers must
organization or any agency generally withhold 31% of taxable
of or instrumentality interest, dividend, and certain
thereof. other payments to a payee who does
o A registered dealer in not furnish a taxpayer
securities or commodities identification number to a payee.
registered in the U.S. or a Certain penalties may also apply.
possession of the U.S.
o A real estate investment Penalties:
trust.
o A common trust fund operated (1) Penalty for Failure to Furnish
by a bank under section Taxpayer Identification Number. If
584(a). you fail to furnish your taxpayer
o An exempt charitable identification number to a payer,
remainder trust, or a you are subject to a penalty of $50
non-exempt trust described for each such failure unless your
in section 4947(a)(1). failure is due to reasonable cause
o An entity registered at all and not to willful neglect.
times under the Investment
Company Act of 1940. (2) Civil Penalty for False
o A foreign central bank of Information with Respect to
issue. Withholding. If you make a false
statement with no reasonable basis
Payments of dividends and patronage which results in no imposition of
dividends not generally subject to backup withholding, you are subject
backup withholding include the to a penalty of $500.
following:
(3) Criminal penalty for Falsifying
o Payments to nonresident Information. Falsifying
aliens subject to withholding certifications or affirmations may
under section 1441. subject you to criminal penalties
o Payments to partnerships not including fines and/or
engaged in a trade or imprisonment.
business in the U.S. and
which have at least one FOR ADDITIONAL INFORMATION CONTACT
nonresident partner. YOUR TAX CONSULTANT OR THE INTERNAL
o Payments of patronage REVENUE SERVICE.
dividends where the amount
renewed is not paid in money.
o Payments made by certain
foreign nations.
o Payments made to a nominee.
Payments of interest not generally
subject to backup withholding
include the following:
18
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
Guidelines for Determining the Proper Identification Number to Give the Payer.
Social Security numbers have nine digits separated by two hyphens: i.e.,
000-00-0000. Employee identification numbers have nine digits separated by only
one hyphen: i.e., 00-0000000. The table below will help determine the number to
give the payer.
- -----------------------------------------------------------------------------------------------------------------------
For this type of account: Give the SOCIAL For this type of account: Give the SOCIAL
SECURITY number of-- SECURITY number of--
- -----------------------------------------------------------------------------------------------------------------------
1. An individual's The individual 8. Sole proprietorship The owner/4
account account
- -----------------------------------------------------------------------------------------------------------------------
2. Two or more The actual owner of the 9. A valid trust, The legal entity (Do not
individuals (joint account or, if combined estate, or pension furnish the identifying
account) funds, any one of the trust number of the personal
individuals/1 representatives or trustee
unless the legal entity
itself is not designated in
the account title.)/5
- -----------------------------------------------------------------------------------------------------------------------
3. Husband and wife The actual owner of the 10. Corporate The corporation
(joint account) account or, if joint account
funds, either person/1
- -----------------------------------------------------------------------------------------------------------------------
4. Custodian account The minor/2 11. Religious, The organization
of a minor (Uniform charitable, or
Gift to Minors Act) educational
organization account
- -----------------------------------------------------------------------------------------------------------------------
5. Adult and minor The adult or, if the minor 12. Partnership The partnership
(joint account) is the only contributor, account held in the
the minor/1 name of the business
- -----------------------------------------------------------------------------------------------------------------------
6. Account in the The ward, minor or 13. Association, The organization
name of guardian or incompetent person/3 club or other
committee for a tax-exempt
designated ward, organization
minor, or incompetent
person
- -----------------------------------------------------------------------------------------------------------------------
a. The usual The grantor-trustee/1 14. A Broker or The broker or nominee
revocable savings registered nominee
trust account (grantor
is also trustee)
- -----------------------------------------------------------------------------------------------------------------------
b. So-called trust The actual owner/1 15. Account with The public entity
account that is the Department of
not a legal or Agriculture in the
valid trust under name of a public
State law entity (such as a
State or local
government,
school
district, or
prison) that
receives
agricultural
program
payments.
- -----------------------------------------------------------------------------------------------------------------------
1 List first and circle the name of the person whose number you finish.
2 Circle the minor's name and furnish the minor's Social Security number.
3 Circle the ward's, minor's or incompetent person's name and furnish such person's Social Security number.
4. Show the name of the Owner.
5. List first and circle the name of the legal trust, estate or pension trust.
NOTE: If no name is circled when there is more than one name, the number will be considered to be that of the first name
listed.
19
(DO NOT WRITE IN SPACE BELOW)
- --------------------------------------------------------------------------------
Certificate Surrendered Unregistered Senior Securities Unregistered Senior
Tendered Securities Accepted
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Delivery Prepared
by _____________ Checked by ______________ Date _____________
- --------------------------------------------------------------------------------
The Exchange Agents for the Exchange Offer are:
Citibank, N.A. Kredietbank S.A. Luxembourgeoise
111 Wall Street, 5th Floor 43, Boulevard Royal
New York, NY 10005 L-2955 Luxembourg
Attn: Global Agency & Trust Services Attn: Corporate Trust and Agencies
By: Telephone: (800) 422-2066 By: Telephone: (00 352) 47 97 3933
Facsimile: (212) 825-3483 Facsimile: (00 352) 47 97 73 951
FOR ANY QUESTIONS REGARDING THIS LETTER OF TRANSMITTAL OR FOR ANY ADDITIONAL
INFORMATION, YOU MAY CONTACT THE PRINCIPAL EXCHANGE AGENT BY TELEPHONE AT (800)
422-2066 OR BY FACSIMILE AT (212) 825-3483 OR THE LUXEMBOURG EXCHANGE AGENT BY
TELEPHONE AT (00 352) 47 97 3933, OR BY FACSIMILE AT (00 352) 47 97 3951.
ALL UNREGISTERED SENIOR SECURITIES MUST BE TENDERED BY BOOK-ENTRY TRANSFER IN
ACCORDANCE WITH THE STANDARD OPERATING PROCEDURES OF DTC, EUROCLEAR OR
CLEARSTREAM LUXEMBOURG. HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE EXCHANGE
SENIOR SECURITIES FOR THEIR UNREGISTERED SENIOR SECURITIES PURSUANT TO THE
EXCHANGE OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR UNREGISTERED SENIOR
SECURITIES TO DTC, EUROCLEAR OR CLEARSTREAM LUXEMBOURG, AS THE CASE MAY BE,
PRIOR TO THE EXPIRATION DATE OR PROVIDE NOTICE OF GUARANTEED DELIVERY TO THE
APPLICABLE EXCHANGE AGENT AS DESCRIBED HEREIN.
20
VIACOM INC.
EXCHANGE OFFER IN RESPECT OF
6.40% Senior Notes due 2006
7.70% Senior Notes due 2010
7.875% Senior Debentures due 2030
of
Viacom Inc.
Unconditionally guaranteed as to payment of principal and interest
by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
To Registered Holders:
We are enclosing herewith the material listed below relating to the
offer (the "Exchange Offer") by Viacom Inc. (the "Company") and Viacom
International Inc. (the "Guarantor") to exchange $400 million aggregate
principal amount of 6.40% Senior Notes due 2006, $500 million aggregate
principal amount of 7.70% Senior Notes due 2010 and $750 million aggregate
principal amount of 7.875% Senior Debentures due 2030 (the "exchange senior
securities"), which have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), for the outstanding unregistered $400 million
aggregate principal amount of 6.40% Senior Notes due 2006, $500 million
aggregate principal amount of 7.70% Senior Notes due 2010 and $750 million
aggregate principal amount of 7.875% Senior Debentures due 2030, respectively
(the "unregistered senior securities"), upon the terms and subject to the
conditions set forth in the Prospectus dated February , 2001 and the related
Letter of Transmittal.
Enclosed herewith are copies of the following documents:
1. Prospectus dated February , 2001;
2. Letter of Transmittal;
3. Instruction to Registered Holder from Beneficial Owner;
4. Guidelines for Certification of Taxpayer Identification; and
5. Letter which may be sent to your clients for whose account you
hold unregistered senior securities in your name or in the name of your nominee,
to accompany the instruction form referred to above, for obtaining such client's
instruction with regard to the Exchange Offer.
We urge you to contact your clients promptly. Please note that the
Exchange Offer will expire at 5:00 p.m., New York City time, on , 2001 unless
extended by Viacom in its sole discretion.
The Exchange offer is not conditioned upon any minimum number of
unregistered senior securities being tendered.
Pursuant to the Letter of Transmittal, each holder of unregistered
senior securities (a "Holder") will represent to Viacom that (i) any exchange
senior securities acquired pursuant to the Exchange Offer will be obtained in
the ordinary course of business of the person receiving such exchange senior
securities, whether or not such person is such Holder, (ii) neither the Holder
of unregistered senior securities nor any other person has an arrangement or
understanding with any person to participate in the
1
distribution of such exchange senior securities, (iii) if the Holder is not a
broker-dealer, or is a broker-dealer but will not receive exchange senior
securities for its own account in exchange for unregistered senior securities,
neither the Holder nor any such other person is engaged in or intends to
participate in the distribution of such exchange senior securities and (iv)
neither the Holder nor any such other person is an "affiliate" of the Company or
the Guarantor within the meaning of Rule 405 of the Securities Act or, if such
Holder is an affiliate, that such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
By so acknowledging that it will deliver and by delivering a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
exchange senior securities, the undersigned is not deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
The enclosed Instruction to Registered Holders from Beneficial Owner
contains an authorization by the beneficial owners of the unregistered senior
securities for you to make the foregoing representations.
Viacom will not pay any fee or commission to any broker or dealer or to
any other person (other than the exchange agents for the Exchange Offer. Viacom
will pay all transfer taxes, if any, applicable to the exchange of unregistered
senior securities pursuant to the Exchange Offer, on the transfer of
unregistered senior securities to it, except as otherwise provided in
Instruction 8 of the enclosed Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer may be
addressed to, and additional copies of the enclosed materials may be obtained
from, the Principal Exchange Agent, Citibank N.A., or the Luxembourg Exchange
Agent, Kredietbank S.A. Luxembourgeoise, in the manner set forth below.
Citibank, N.A. Kredietbank S.A. Luxembourgeoise
111 Wall Street, 5th Floor 43, Boulevard Royal
New York, NY 10005 L-2955 Luxembourg
Attn: Global Agency & Trust Services Attn: Corporate Trust and Agencies
By: Telephone: (800) 422-2066 By: Telephone: (00 352) 47 97 3933
Facsimile: (212) 825-3483 Facsimile: (00 352) 47 97 73 951
Very truly yours,
VIACOM INC.
VIACOM INTERNATIONAL INC.
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR
ANY OTHER PERSON AS AN AGENT OF VIACOM, VIACOM INTERNATIONAL INC. OR THE
EXCHANGE AGENTS, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR
MAKE ANY STATEMENT ON BEHALF OF VIACOM, VIACOM INTERNATIONAL INC. OR THE
EXCHANGE AGENTS IN CONNECTION WITH THE EXCHANGE OFFER OTHER THAN THE DOCUMENTS
ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED HEREIN.
2
VIACOM INC.
Pursuant to the Exchange Offer in Respect of
6.40% Senior Notes due 2006
7.70% Senior Notes due 2010
7.875% Senior Debentures due 2030
of
Viacom Inc.
Unconditionally guaranteed as to payment of principal and interest
by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
To Our Clients:
We are enclosing herewith a Prospectus dated February , 2001 of Viacom
Inc. (the "Company") and Viacom International Inc. (the "Guarantor") and the
related Letter of Transmittal (which together constitute the "Exchange Offer")
relating to the offer by the Company and the Guarantor to exchange $400 million
aggregate principal amount of 6.40% Senior Notes due 2006, $500 million
aggregate principal amount of 7.70% Senior Notes due 2010 and $750 million
aggregate principal amount of 7.875% Senior Debentures due 2030 (the "exchange
senior securities"), which have been registered under the Securities Act of
1933, as amended (the "Securities Act"), for the outstanding unregistered $400
million aggregate principal amount of 6.40% Senior Notes due 2006, $500 million
aggregate principal amount of 7.70% Senior Notes due 2010 and $750 million
aggregate principal amount of 7.875% Senior Debentures due 2030, respectively
(the "unregistered senior securities"), upon the terms and subject to the
conditions set forth in the Exchange Offer.
Please note that the Exchange Offer will expire at 5:00 p.m., New York
City time, on 2001 unless extended by Viacom in its sole discretion.
The Exchange Offer is not conditioned upon any minimum number of
unregistered senior securities being tendered.
We are the holder of record of unregistered senior securities held by
us for your account. A tender of such unregistered senior securities can be made
only by us as the record holder and pursuant to your instructions. The Letter of
Transmittal is furnished to you for your information only and cannot be used by
you to tender unregistered senior securities held by us for your account.
We request instructions as to whether you wish to tender any or all of
the unregistered senior securities held by us for your account pursuant to the
terms and conditions of the Exchange Offer. We also request that you confirm
that we may on your behalf make the representations contained in the Letter of
Transmittal.
Pursuant to the Letter of Transmittal, each holder of unregistered
senior securities (a "Holder") will represent to Viacom that (i) any exchange
senior securities acquired pursuant to the Exchange Offer will be obtained in
the ordinary course of business of the person receiving such exchange senior
securities, whether or not such person is such Holder, (ii) neither the Holder
of unregistered senior securities nor any other person has an arrangement or
understanding with any person to participate in the distribution of such
exchange senior securities, (iii) if the Holder is not a broker-dealer, or is a
broker-dealer but will not receive exchange senior securities for its own
account in exchange for unregistered senior securities, neither the Holder nor
any such other person is engaged in or intends to
3
participate in the distribution of such exchange senior securities and (iv)
neither the Holder nor any such other person is an "affiliate" of the Company or
the Guarantor within the meaning of Rule 405 of the Securities Act or, if such
Holder is an affiliate, that such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
By so acknowledging that it will deliver and by delivering a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
exchange senior securities, the undersigned is not deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
Very truly yours,
4
VIACOM INC.
FROM BENEFICIAL OWNER
of
6.40% Senior Notes due 2006
7.70% Senior Notes due 2010
7.875% Senior Debentures due 2030
of
Viacom Inc.
Unconditionally guaranteed as to payment of principal and interest
by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
To Registered Holder:
The undersigned hereby acknowledges receipt of the Prospectus dated
February , 2001 (the "Prospectus") of Viacom Inc. (the "Company") and Viacom
International Inc. (the "Guarantor"), and the related Letter of Transmittal (the
"Letter of Transmittal") that together constitute the offer of the Company and
the Guarantor (the "Exchange Offer") to exchange $1,000 principal amount of
6.40% Senior Notes due 2006, $1,000 principal amount of 7.70% Senior Notes due
2010 and $1,000 principal amount of 7.875% Senior Debentures due 2030 of Viacom
for each $1,000 principal amount of the outstanding unregistered 6.40% Senior
Notes due 2006, 7.70% Senior Notes due 2010 and 7.875% Senior Debentures due
2030, respectively, (the "unregistered senior securities") of Viacom.
Capitalized terms used but not defined herein have the meanings ascribed to them
in the Prospectus.
This will instruct you, the registered holder, as to the action to be
taken by you relating to the Exchange Offer with respect to the unregistered
senior securities held by you for the account of the undersigned.
The aggregate face amount of the unregistered senior securities held by
you for the account of the undersigned is (fill in amount):
[ ] $___________ of 6.40% Senior Notes due 2006.
[ ] $___________ of 7.70% Senior Notes due 2010.
[ ] $___________ of 7.875% Senior Notes due 2030.
With respect to the Exchange Offer, the undersigned hereby instructs
you (check appropriate box):
[ ] To TENDER the following unregistered senior securities held
by you for the account of the undersigned (insert principal amount of
unregistered senior securities to be tendered (if any)):
[ ] $___________ of 6.40% Senior Notes due 2006.
[ ] $___________ of 7.70% Senior Notes due 2010.
[ ] $___________ of 7.875% Senior Notes due 2030.
5
[ ] NOT to TENDER any unregistered senior securities held by you
for the account of the undersigned.
If the undersigned instructs you to render unregistered senior
securities held by you for the account of the undersigned, it is understood that
you are authorized to make, on behalf of the undersigned (and the undersigned,
by its signature below, hereby makes to you), the representations and warranties
contained in the Letter of Transmittal that are to be made with respect to the
undersigned as a beneficial owner, including but not limited to the
representations, that (i) any exchange senior securities acquired pursuant to
the Exchange Offer will be obtained in the ordinary course of business of the
person receiving such exchange senior securities, whether or not such person is
such Holder, (ii) neither the Holder of unregistered senior securities nor any
other person has an arrangement or understanding with any person to participate
in the distribution of such exchange senior securities, (iii) if the Holder is
not a broker-dealer, or is a broker-dealer but will not receive exchange senior
securities for its own account in exchange for unregistered senior securities,
neither the Holder nor any such other person is engaged in or intends to
participate in the distribution of such exchange senior securities and (iv)
neither the Holder nor any such other person is an "affiliate" of the Company or
the Guarantor within the meaning of Rule 405 of the Securities Act or, if such
Holder is an affiliate, that such Holder will comply with the registration and
prospectus delivery requirements of the Securities Act to the extent applicable.
By so acknowledging that it will deliver and by delivering a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
exchange senior securities, the undersigned is not deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
SIGN HERE
Name of beneficial owner(s) (please print):_____________________________________
Signature(s):___________________________________________________________________
Address: _______________________________________________________________________
Telephone Number: ______________________________________________________________
Taxpayer Identification or Social Security Number: _____________________________
Date: __________________________________________________________________________
6
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
for
6.40% Senior Notes due 2006
7.70% Senior Notes due 2010
7.875% Senior Debentures due 2030
of
VIACOM INC.
Unconditionally guaranteed as to payment of principal and interest
by Viacom International Inc.
(a wholly owned subsidiary of Viacom Inc.)
As set forth in the Prospectus dated February , 2001 (the "Prospectus") of
Viacom Inc. ("Viacom") and Viacom International Inc. (the "Guarantor"), in the
accompanying Letter of Transmittal and instructions thereto (the "Letter of
Transmittal"), this form or one substantially equivalent hereto must be used to
accept Viacom's exchange offer (the "Exchange Offer") to exchange all of its
outstanding unregistered 6.40% senior notes due 2006, 7.70% senior notes due
2010 and 7.875% senior debentures due 2030 (the "unregistered senior
securities") if (i) certificates representing the unregistered senior securities
to be tendered for exchange are not lost but are not immediately available, (ii)
time will not permit the Letter of Transmittal, certificates representing such
unregistered senior securities or other required documents to reach the Exchange
Agent prior to the Expiration Date or (iii) the procedures for book-entry
transfer cannot be completed prior to the Expiration Date. This form may be
delivered by an Eligible Institution (as defined in the Letter of Transmittal)
by mail or hand delivery or transmitted, via telegram, telex or facsimile, to
the Exchange Agent as set forth below. All capitalized terms used herein but not
defined herein shall have the meanings ascribed to them in the Prospectus.
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FEBRUARY ,
2001 UNLESS THE OFFER IS EXTENDED BY VIACOM (THE "EXPIRATION DATE"). TENDERS OF
UNREGISTERED SENIOR SECURITIES MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 P.M,.
NEW YORK CITY TIME, ON THE EXPIRATION DATE.
- --------------------------------------------------------------------------------
To: Citibank, N.A., Principal Exchange Agent
By Hand or Overnight Courier:
Citibank, N.A.
111 Wall Street, 5th Floor
New York, New York 10005
Attention: Global Agency & Trust Services
By Facsimile Transmission:
(212) 825-3483
Confirm By Telephone:
(800) 422-2066
To: Kredietbank S.A. Luxembourgeoise, Luxembourg Exchange Agent
By Hand or Overnight Courier:
Kredietbank, S.A. Luxembourgeoise
43, Boulevard Royal
L-2955 Luxembourg
Attention: Corporate Trust and Agencies
By Facsimile Transmission:
(00 352) 47 97 73 951
Confirm By Telephone:
(00 352) 47 97 3933
Delivery of this instrument to an address, or transmission via facsimile with
confirmation, other than as set forth above will not constitute a valid
delivery.
This form is not to be used to guarantee signatures. If a signature on the
Letter of Transmittal is required to be guaranteed by an "Eligible Institution"
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
Ladies and Gentlemen:
The undersigned hereby tender(s) to Viacom, upon the terms and subject to
the conditions set forth in the Exchange Offer and the Letter of Transmittal,
receipt of which is hereby acknowledged, the aggregate principal amounts of
unregistered senior securities set forth below pursuant to the guaranteed
delivery procedures set forth in the Prospectus.
The undersigned understands that tenders of unregistered senior securities
will be accepted only in authorized denominations. The undersigned understands
that tenders of unregistered senior securities pursuant to the Exchange Offer
may not be withdrawn after 5:00 p.m., New York City time on the Expiration Date.
Tenders of unregistered senior securities may be withdrawn if the Exchange Offer
is terminated or as otherwise provided in the Prospectus.
All authority herein conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall survive the death or incapacity of the undersigned and
every obligation of the undersigned under this Notice of Guaranteed Delivery
shall be binding upon the heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and other legal
representatives of the undersigned.
PLEASE SIGN AND COMPLETE
Signature(s) of Registered Owner(s) or Name(s) of Registered Holder(s):
Authorized Signatory: --------------- -------------------------------------
- ------------------------------------- -------------------------------------
- ------------------------------------- Address:-----------------------------
- ------------------------------------- -------------------------------------
Principal Amount of Unregistered
Senior Securities Tendered:---------
- ------------------------------------
- ------------------------------------- Area Code and Telephone No.:---------
If unregistered senior securities will
be delivered by book-entry transfer at
Certificate No(s). of Unregistered The Depository Trust Company,
Senior Securities (if available): Euroclear or Clearstream Luxembourg,
- ------------------------------------ insert Account No.:------------------
- ------------------------------------ -------------------------------------
Date: ------------------------------------
- --------------------------------------------------------------------------------
This Notice of Guaranteed Delivery must be signed by the registered Holder(s) of
unregistered senior securities exactly as its (their) name(s) appear on
Certificates for unregistered senior securities or on a security position
listing as the owner of unregistered senior securities, or by person(s)
authorized to become registered Holder(s) by endorsements and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must
provide the following information.
Please print name(s) and address(es)
Name: ------------------------------------------------------------------------
------------------------------------------------------------------------
Capacity:-----------------------------------------------------------------------
Address(es):--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
Do not send unregistered senior securities with this form. Unregistered senior
securities should be sent to the Exchange Agent, together with a properly
completed and duly executed Letter of Transmittal.
- --------------------------------------------------------------------------------
GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a member firm of a registered national securities exchange
or of the National Association of Securities Dealers, Inc. or a commercial bank
or trust company having an office or a correspondent in the United States or an
"eligible guarantor institution" as defined by Rule 17Ad-15 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), hereby (a) represents
that each Holder of unregistered senior securities on whose behalf this tender
is being made "own(s)" the unregistered senior securities covered hereby within
the meaning of Rule 14e-4 under the Exchange Act, (b) represents that such
tender of unregistered senior securities complies with such Rule 14e-4, and (c)
guarantees that, within five business days from the date of this Notice of
Guaranteed Delivery, a properly completed and duly executed Letter of
Transmittal (or a facsimile thereof), together with certificates representing
the unregistered senior securities covered hereby in proper form for transfer
(or confirmation of the book-entry transfer of such unregistered senior
securities into the Exchange Agent's account at The Depository Trust Company,
Euroclear or Clearstream Luxembourg, pursuant to the procedure for book-entry
transfer set forth in the Prospectus) and required documents will be deposited
by the undersigned with the Exchange Agent.
The undersigned acknowledges that it must deliver the Letter of Transmittal
and unregistered senior securities tendered hereby to the Exchange Agent within
the time period set forth and that failure to do so could result in financial
loss to the undersigned.
Name of Firm: --------------------------- Authorized Signature:--------------
Address:--------------------------------- Name:------------------------------
- ----------------------------------------- Title:-----------------------------
Area Code and Telephone No:--------------
EXHIBIT 99.3
February [ ], 2001
EXCHANGE AGENT AGREEMENT
------------------------
Citibank, N.A.
111 Wall Street, 5th Floor
New York, New York 10005
Attention: Global Agency & Trust Services
Kredietbank S.A. Luxembourgeoisie
43 Boulevard Royal
L-2955 Luxembourg
Attention: Corporate Trust Trustee Administration
Ladies and Gentlemen:
Viacom Inc., a Delaware corporation (the "Company"), proposes to make
an offer (the "Exchange Offer") to exchange all of its outstanding unregistered
6.40% Senior Notes due 2006 (the "Old Notes due 2006"), of which $400,000,000
aggregate principal amount is outstanding, its 7.70% Senior Notes due 2010 (the
"Old Notes due 2010"), of which $500,000,000 aggregate principal amount is
outstanding and its 7.875% Senior Debentures due 2030, of which $750,000,000
aggregate principal amount is outstanding, (the "Old Debentures" and, together
with the Old Notes due 2006 and the Old Notes due 2010, the "Old Securities")
for an equal principal amount of its 6.40% Senior Notes due 2006 (the "2006
Exchange Notes"), its 7.70% Senior Notes due 2010 (the "2010 Exchange Notes")
and its 7.875% Senior Debentures due 2030 (the "Exchange Debentures" and,
together with the 2006 Exchange Notes and the 2010 Exchange Notes, the "Exchange
Securities"). The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated February [ ], 2001 (the
"Prospectus"), proposed to be distributed to all record holders of the Old
Securities. The Old Securities and the Exchange Securities are collectively
referred to herein as the "Securities".
The Company hereby appoints Citibank, N.A. to act as the Principal
Exchange Agent and Kredietbank S.A. Luxembourgeoisie to act as Luxembourg
Exchange Agent (collectively the "Exchange Agents") in connection with the
Exchange Offer. Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed thereto in the Prospectus.
The Exchange Offer is expected to be commenced by the Company on or
about January [ ], 2001. The Letter of Transmittal accompanying the Prospectus
(or in the case of book-entry securities, the Automated Tender Offer Program
("ATOP") of the Book-Entry Transfer Facility (as defined below)) is to be used
by the holders of the Old Securities to accept the Exchange Offer and contains
instructions with respect to the delivery of certificates for Old Securities
tendered in connection therewith.
The Exchange Offer shall expire at 5:00 p.m., New York City time, on
February [ ], 2001 or on such subsequent date or time to which the Company may
extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (promptly confirmed in writing) or written notice to you before
9:00 a.m., New York City time, on the business day following the previously
scheduled Expiration Date.
The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange any Old Securities not
theretofore accepted for exchange, upon the occurrence of any of the conditions
of the Exchange Offer specified in the Prospectus under the caption "The
Exchange Offer -- Expiration Date; Extensions; Amendment; Termination." The
Company will give oral (promptly confirmed in writing) or written notice of any
amendment, termination or nonacceptance to you as promptly as practicable.
In carrying out your duties as Exchange Agent, you are to act in
accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned "The Exchange
Offer" or as specifically set forth herein; provided, however, that in no way
will your general duty to act in good faith be discharged by the foregoing.
2. You will establish a book-entry account with respect to the Old
Securities at The Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two business days after the date of
the Prospectus, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the Old
Securities by causing the Book-Entry Transfer Facility to transfer such Old
Securities into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
certificates for Old Securities (or confirmation of book-entry transfer into
your account at the
-2-
Book-Entry Transfer Facility) and any other documents delivered or mailed to you
by or for holders of the Old Securities to ascertain whether: (i) the Letters of
Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein; and (ii) the Old
Securities have otherwise been properly tendered. In each case where the Letter
of Transmittal or any other document has been improperly completed or executed
or any of the certificates for Old Securities are not in proper form for
transfer or some other irregularity in connection with the acceptance of the
Exchange Offer exists, you will endeavor to inform the presenters of the need
for fulfillment of all requirements and to take any other action as may be
reasonably necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the President or any Vice President of the
Company (such approval, if given orally, to be promptly confirmed in writing) or
any other party designated in writing, by such an officer, you are authorized to
waive any irregularities in connection with any tender of Old Securities
pursuant to the Exchange Offer.
5. Tenders of Old Securities may be made only as set forth in the
Letter of Transmittal and in the sections of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering", and "The Exchange Offer --
Guaranteed Delivery Procedures," and Old Securities shall be considered properly
tendered to you only when tendered in accordance with the procedures set forth
therein.
Notwithstanding the provisions of this Section 5, Old Securities which
the President, Senior Vice President, or any Vice President of the Company shall
approve as having been properly tendered shall be considered to be properly
tendered (such approval, if given orally, shall be promptly confirmed in
writing).
6. You shall advise the Company with respect to any Old Securities
received subsequent to the Expiration Date and accept its instructions with
respect to disposition of such Old Securities.
7. You shall accept tenders:
(a) in cases where the Old Securities are registered in two or more
names only if signed by all named holders;
(b) in cases where the signing person (as indicated on the Letter of
Transmittal) is acting in a fiduciary or a representative capacity only when
proper evidence of his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old Securities,
provided that customary transfer requirements, including payment of any
applicable transfer taxes, are fulfilled.
-3-
You shall accept partial tenders of Old Securities where so indicated
and as permitted in the Letter of Transmittal and deliver certificates for Old
Securities to the registrar for split-up and return any untendered Old
Securities to the holder (or such other person as may be designated in the
Letter of Transmittal) as promptly as practicable after expiration or
termination of the Exchange Offer.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice, if given orally, to be
promptly confirmed in writing) of its acceptance, promptly after the Expiration
Date, of all Old Securities properly tendered and you, on behalf of the Company,
will exchange such Old Securities for Exchange Securities and cause such Old
Securities to be cancelled. Delivery of Exchange Securities will be made on
behalf of the Company by you at the rate of $1,000 principal amount of Exchange
Securities for each $1,000 principal amount of the corresponding series of Old
Securities tendered promptly after notice (such notice if given orally, to be
promptly confirmed in writing) of acceptance of said Old Securities by the
Company; provided, however, that in all cases, Old Securities tendered pursuant
to the Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Old Securities (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility), a properly completed and
duly executed Letter of Transmittal (or manually signed facsimile thereof) with
any required signature guarantees and any other required documents. You shall
issue Exchange Securities only in denominations of $1,000 or any integral
multiple thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable, except
that, subject to the terms and upon the conditions set forth in the Prospectus
and the Letter of Transmittal, Old Securities tendered pursuant to the Exchange
Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old Securities
tendered if any of the conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company not to exchange any Old Securities
tendered shall be given (if given orally, to be promptly confirmed in writing)
by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not accept
for exchange all or part of the Old Securities tendered because of an invalid
tender, the occurrence of certain other events set forth in the Prospectus under
the caption "The Exchange Offer -- Expiration Date; Extensions; Amendment;
Termination" or otherwise, you shall as soon as practicable after the expiration
or termination of the Exchange Offer return those certificates for unaccepted
Old Securities (or effect appropriate book-entry transfer), together with any
related required documents and the Letters of Transmittal relating thereto that
are in your possession, to the persons who deposited them.
12. All certificates for reissued Old Securities, unaccepted Old
Securities or for Exchange Securities shall be forwarded by first-class mail.
-4-
13. You are not authorized to pay or offer to pay any concessions,
commissions or solicitation fees to any broker, dealer, bank or other persons or
to engage or utilize any person to solicit tenders.
14. As Exchange Agent hereunder you:
(a) shall not be liable for any action or omission to act unless the
same constitutes your own gross negligence, willful misconduct or bad faith, and
in no event shall you be liable to a securityholder, the Company or any third
party for special, indirect or consequential damages, or lost profits, arising
in connection with this Agreement.
(b) shall have no duties or obligations other than those specifically
set forth herein or as may be subsequently agreed to in writing between you and
the Company;
(c) will be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value or genuineness of any of
the certificates or the Old Securities represented thereby deposited with you
pursuant to the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange Offer;
(d) shall not be obligated to take any legal action hereunder which
might in your reasonable judgment involve any expense or liability, unless you
shall have been furnished with indemnity reasonably satisfactory to you;
(e) may reasonably rely on and shall be protected in acting in
reliance upon any certificate, instrument, opinion, notice, letter, telegram or
other document or security delivered to you and reasonably believed by you to be
genuine and to have been signed or presented by the proper person or persons;
(f) may reasonably act upon any tender, statement, request, document,
agreement, certificate or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as to the
truth and accuracy of any information contained therein, which you shall in good
faith believe to be genuine or to have been signed or presented by the proper
person or persons;
(g) may reasonably rely on and shall be protected in acting upon
written or oral instructions from any authorized officer of the Company;
(h) may consult with counsel of your selection with respect to any
questions relating to your duties and responsibilities and the advice or opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by you hereunder in
good faith and in accordance with the advice or opinion of such counsel; and
-5-
(i) shall not advise any person tendering Old Securities pursuant to
the Exchange Offer as to the wisdom of making such tender or as to the market
value or decline or appreciation in market value of any Old Securities.
15. You shall take such action as may from time to time be requested
by the Company or its counsel (and such other action as you may deem reasonably
appropriate) to furnish copies of the Prospectus, Letter of Transmittal and the
Notice of Guaranteed Delivery (as such terms are used in the Prospectus) or such
other forms as may be approved from time to time by the Company, to all persons
requesting such documents and to accept and comply with telephone requests for
information relating to the Exchange Offer, provided that such information shall
relate only to the procedures for accepting (or withdrawing from) the Exchange
Offer. The Company will furnish you with copies of such documents on your
request. All other requests for information relating to the Exchange Offer shall
be directed to the Company, Attention: [ ], Viacom Inc., 1515 Broadway, New
York, NY 10036.
16. You shall advise by facsimile transmission [ ], of the Company (at
the facsimile number (212) [ ]), and such other person or persons as the Company
may request, daily (and more frequently during the week immediately preceding
the Expiration Date if requested) up to and including the Expiration Date, as to
the number of Old Securities which have been tendered pursuant to the Exchange
Offer and the items received by you pursuant to this Agreement, separately
reporting and giving cumulative totals as to items properly received and items
improperly received. In addition, you will also inform, and cooperate in making
available to, the Company or any such other person or persons upon oral request
made from time to time prior to the Expiration Date of such other information as
they may reasonably request. Such cooperation shall include, without limitation,
the granting by you to the Company and such person as the Company may request of
access to those persons on your staff who are responsible for receiving tenders,
in order to ensure that immediately prior to the Expiration Date the Company
shall have received information in sufficient detail to enable it to decide
whether to extend the Exchange Offer. You shall prepare a final list of all
persons whose tenders were accepted, the aggregate principal amount of Old
Securities tendered, the aggregate principal amount of Old Securities accepted
and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed Delivery shall be
stamped by you as to the date and, after the expiration of the Exchange Offer,
the time, of receipt thereof and shall be preserved by you for a period of time
at least equal to the period of time you preserve other records pertaining to
the transfer of securities. You shall dispose of unused Letters of Transmittal
and other surplus materials by returning them to the Company.
18. For services rendered as Exchange Agent hereunder, you shall be
entitled to such compensation as set forth on Schedule I attached hereto. The
provisions of this section shall survive the termination of this Agreement.
-6-
19. You hereby acknowledge receipt of the Prospectus and the Letter of
Transmittal and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus and
the Letter of Transmittal (as they may be amended from time to time), on the
other hand, shall be resolved in favor of the latter two documents, except with
respect to your duties, liabilities and indemnification as Exchange Agent.
20. The Company covenants and agrees to fully indemnify and hold you
harmless in your capacity as Exchange Agent hereunder against any and all loss,
liability, cost or expense, including attorneys' fees and expenses, incurred
without gross negligence or willful misconduct on your part, arising out of or
in connection with any act, omission, delay or refusal made by you in reliance
upon any signature, endorsement, assignment, certificate, order, request,
notice, instruction or other instrument or document resonably believed by you to
be valid, genuine and sufficient and in accepting any tender or effecting any
transfer of Old Securities reasonably believed by you in good faith to be
authorized, and in delaying or refusing in good faith to accept any tenders or
effect any transfer of Old Securities. In each case, the Company shall be
notified by you, by letter or facsimile transmission, of the written assertion
of a claim against you or of any other action commenced against you, promptly
after you shall have received any such written assertion or shall have been
served with a summons in connection therewith. The Company shall be entitled to
participate at its own expense in the defense of any such claim or other action
and, if the Company so elects, the Company shall assume the defense of any suit
brought to enforce any such claim. In the event that the Company shall assume
the defense of any such suit, the Company shall not be liable for the fees and
expenses of any additional counsel thereafter retained by you, so long as the
Company shall retain counsel satisfactory to you to defend such suit, and so
long as you have not determined, in your reasonable judgment, that a conflict of
interest exists between you and the Company. The provisions of this section
shall survive the termination of this Agreement.
21. You shall arrange to comply with all requirements under the tax
laws of the United States, including those relating to missing Tax
Identification Numbers, and shall file any appropriate reports with the Internal
Revenue Service.
22. You shall deliver or cause to be delivered, in a timely manner to
each governmental authority to which any transfer taxes are payable in respect
of the exchange of Old Securities, the Company's check in the amount of all
transfer taxes so payable; provided, however, that you shall reimburse the
Company for amounts refunded to you in respect of your payment of any such
transfer taxes, at such time as such refund is received by you.
23. This Agreement and your appointment as Exchange Agent hereunder
shall be construed and enforced in accordance with the laws of the State of New
York applicable to agreements made and to be performed entirely within such
state, and
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without regard to conflicts of law principles, and shall inure to the benefit
of, and the obligations created hereby shall be binding upon, the successors and
assigns of each of the parties hereto.
24. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which together shall
constitute one and the same agreement.
25. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
26. This Agreement shall not be deemed or construed to be modified,
amended, rescinded, cancelled or waived, in whole or in part, except by a
written instrument signed by a duly authorized representative of the party to be
charged. This Agreement may not be modified orally.
27. Unless otherwise provided herein, all notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given to such party, addressed to it, at its
address or telecopy number set forth below:
If to the Company:
Viacom Inc.
1515 Broadway
New York, NY 10036
Facsimile: (212) 258-
Attention: General Counsel
Copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Facsimile: (212) 848-7179
Attention: Stephen T. Giove, Esq.
If to the Exchange Agent:
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Citibank, N.A.
111 Wall Street, 5th Floor
New York, New York 10005
Facsimile: (212) 825-3483
Attention: Global Agency & Trust
Services
28. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 18 and 20 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Company any certificates for Securities, funds or property then held by you as
Exchange Agent under this Agreement.
29. This Agreement shall be binding and effective as of the date
hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the enclosed copy.
VIACOM INC.
By:_________________________________
Name:
Title:
Accepted as of the date first above written:
CITIBANK, N.A., as Exchange Agent
By:___________________________________
Name:
Title:
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SCHEDULE I
COMPENSATION OF EXCHANGE AGENT: