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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (date of earliest event reported): May 9, 2003
VIACOM INC.
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(Exact name of registrant as specified in its charter)
Delaware 1-9553 04-2949533
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(State or other (Commission File Number) (I.R.S. Employer
jurisdiction of incorporation) Identification Number)
1515 Broadway, New York, New York 10036
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 258-6000
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Item 5. Other Events.
On May 9, 2003, Viacom Inc. ("Viacom" or the "Registrant") and Viacom
International Inc. ("Viacom International") entered into an underwriting
agreement (the "Underwriting Agreement," a copy of which is attached hereto as
Exhibit 1.1) with Banc of America Securities LLC, Citigroup Global Markets Inc.
and each of the other underwriters named in Schedule I thereto (collectively,
the "Underwriters").
On May 14, 2003, pursuant to the Underwriting Agreement, Viacom issued
and sold and the Underwriters purchased $300,000,000 aggregate principal amount
of Viacom's 4.625% Senior Notes due 2018 (the "Senior Notes") and $450,000,000
aggregate principal amount of Viacom's 5.50% Senior Debentures due 2033 (the
"Senior Debentures" and, together with the Senior Notes, the "Senior
Securities"), at public offering prices of 99.273% and 99.201% of the principal
amount of the Senior Notes and the Senior Debentures, respectively. The offering
yielded aggregate proceeds to Viacom of $738,486,000, after payment of the
underwriting discount, but before payment of expenses related to the offering.
Forms of the Senior Notes and the Senior Debentures, including the
guarantees endorsed thereon, are attached hereto as Exhibits 4.1 and 4.2,
respectively. The Senior Securities were (i) registered under the Securities Act
of 1933, as amended, pursuant to a Registration Statement on Form S-3
(Registration No. 333-52728) filed on December 26, 2000, and a Registration
Statement on Form S-3 (Registration No. 333-62052) filed on May 31, 2001, which
Registration Statement also constituted Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3 (Registration No. 333-52728), and the
amendment to such Registration Statements filed on June 13, 2001, and (ii)
issued under an Indenture, dated as of June 22, 2001 (the "Indenture") among
Viacom, Viacom International, as guarantor, and The Bank of New York, as
trustee. The Indenture has been previously filed as Exhibit 4.2 to Viacom's
Current Report on Form 8-K filed on July 3, 2001.
Item 7. Financial Statements and Exhibits.
(c) Exhibits
1.1 Underwriting Agreement, dated May 9, 2003, among Viacom, Viacom
International, Banc of America Securities LLC, Citigroup Global
Markets Inc. and each of the underwriters named in Schedule I
thereto.
4.1 Form of 4.625% Senior Notes due 2018, including the form of
guarantee endorsed thereon.
4.2 Form of 5.50% Senior Debentures due 2033, including the form of
guarantee endorsed thereon.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
VIACOM INC.
Date: May 15, 2003 By: /s/ Michael D. Fricklas
---------------------------------
Name: Michael D. Fricklas
Title: Executive Vice President, General Counsel
and Secretary
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
1.1 Underwriting Agreement, dated May 9, 2003, among Viacom, Viacom
International, Banc of America Securities LLC, Citigroup Global
Markets Inc. and each of the underwriters named in Schedule I
thereto.
4.1 Form of 4.625% Senior Notes due 2018, including the form of
guarantee endorsed thereon.
4.2 Form of 5.50% Senior Debentures due 2033, including the form of
guarantee endorsed thereon.
Exhibit 1.1
VIACOM INC.
VIACOM INTERNATIONAL INC.
4.625% SENIOR NOTES DUE 2018
5.50% SENIOR DEBENTURES DUE 2033
UNDERWRITING AGREEMENT
New York, New York
May 9, 2003
Banc of America Securities LLC
Bank of America Corporate Center
100 North Tryon Street
Charlotte, North Carolina 28255
- -and-
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
As Representatives of the
several Underwriters
Ladies and Gentlemen:
Viacom Inc., a Delaware corporation (the "Company"), confirms its
agreement, subject to the terms and conditions stated herein, with Banc of
America Securities LLC ("Banc of America") and Citigroup Global Markets Inc.
("Citigroup") and each of the other underwriters named in Schedule I hereto
(collectively, the "Underwriters," which term shall also include any underwriter
substituted hereinafter as provided in Section 10 hereof), for whom Banc of
America and Citigroup are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the
respective principal amount set forth in Schedule I of $300,000,000 aggregate
principal amount of 4.625% Senior Notes due 2018 (the "Notes") and $450,000,000
aggregate principal amount of 5.50% Senior Debentures due 2033 (the
"Debentures"), both guaranteed on an unsecured basis (the "Guarantees") by
Viacom International Inc., a Delaware corporation (the "Guarantor"). The Notes,
the Debentures and the Guarantees are hereinafter collectively referred to as
the "Securities". The Securities are to be issued under an indenture dated as of
June 22, 2001 among the Company, the Guarantor and The Bank of New York, as
trustee (the "Trustee") (as so amended and supplemented from time to time, the
"Indenture"). Certain terms of the
Securities will be established pursuant to resolutions adopted by the Company
dated May 9, 2003 pursuant to Section 301 of the Indenture.
SECTION 1. Representations and Warranties. The Company and the
Guarantor jointly and severally represent and warrant to the Underwriters, as of
the date hereof and as of the Closing Time (as defined below), as follows:
(a) Registration Statement and the Prospectus. The Company has filed
with the Securities and Exchange Commission (the "Commission") a (i)
registration statement on Form S-3 (No. 333-52728) under the Securities Act of
1933, as amended (the "1933 Act"), and (ii) registration statement on Form S-3
(No. 333-62052), which also constitutes Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3 (No. 333-52728) under the 1933 Act (together,
the "Registration Statement"), in respect of, among other things, the
Securities. The Company meets the requirements for use of Form S-3 under the
1933 Act. If the Company files a registration statement with the Commission
pursuant to Rule 462(b) of the rules and regulations under the 1933 Act, then
all references to the Registration Statement shall also be deemed to include
that Rule 462(b) registration statement. The Registration Statement has been
declared effective by the Commission, and the Indenture has been qualified under
the Trust Indenture Act of 1939, as amended (the "1939 Act"). The prospectus
included in the Registration Statement is hereinafter referred to as the "Base
Prospectus." The Base Prospectus, as it is to be supplemented by a prospectus
supplement specifically relating to the Securities pursuant to Rule 424 under
the 1933 Act ("Rule 424") is hereinafter referred to as the "Prospectus." The
term "Registration Statement" and "Prospectus" shall be deemed to include all
amendments to the date hereof and all documents incorporated by reference
therein. Any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, the Base Prospectus and the
Prospectus shall be deemed to refer to and include the filing of any document
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), after
the date of this Underwriting Agreement, or the issue date of the Base
Prospectus or the Prospectus, as the case may be, deemed to be incorporated
therein by reference.
The Registration Statement and the Indenture, at the time and date the
Registration Statement was declared effective by the Commission, complied, in
all material respects, with the applicable provisions of the 1933 Act and the
1939 Act, respectively, and the applicable rules and regulations of the
Commission thereunder. The Registration Statement, at the time and date it was
declared effective by the Commission, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus, at the
date it is filed with, or transmitted for filing to, the Commission pursuant to
Rule 424 and at the Closing Time, will comply, in all material respects, with
the applicable provisions of the 1933 Act and will not contain an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
of the Trustee under the 1939 Act or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with
information furnished to the
Company in writing by or on behalf of any Underwriter through the
Representatives specifically for use in the Registration Statement or the
Prospectus.
(b) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Registration Statement and the Prospectus,
when they became effective or at the time they were or hereafter are filed with
the Commission, complied and will comply, as the case may be, in all material
respects with the requirements of the 1934 Act and the rules and regulations of
the Commission thereunder (the "1934 Act Regulations").
(c) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules thereto included in the
Registration Statement and the Prospectus are independent public accountants as
required by the 1933 Act and the applicable rules and regulations of the
Commission thereunder (the "1933 Act Regulations").
(d) Financial Statements. The financial statements of the Company
and CBS Corporation included in the Registration Statement and the Prospectus,
together with the related schedules and notes, as well as those financial
statements, schedules and notes of any other entity included therein, present
fairly the financial position of the Company and CBS Corporation at the dates
indicated, and the statement of operations, stockholders' equity and cash flows
of the Company and CBS Corporation for the periods specified. Such financial
statements have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, included in the Registration
Statement and the Prospectus present fairly in accordance with GAAP the
information required to be stated therein. The capitalization table and the
ratio of earnings to fixed charges included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with that
of the audited financial statements included in the Registration Statement and
Prospectus. In addition, any pro forma financial statements of the Company and
CBS Corporation and their subsidiaries and the related notes thereto included in
the Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein.
(e) No Material Adverse Change in Business. Since the respective
dates as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no material
adverse change in the financial condition, results of operations or business
affairs of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business (a "Material Adverse
Effect"), and (B) there have been no material transactions entered into by the
Company other than transactions contemplated by the Registration Statement and
Prospectus or transactions arising in the ordinary course of business.
(f) Good Standing. The Company and the Guarantor have been duly
organized and are validly existing as corporations in good standing under the
laws of the State of Delaware and have corporate power and authority to own,
lease and operate their respective properties and to conduct their respective
businesses as described in the Prospectus and to enter into and perform
their respective obligations under, or as contemplated under, this Underwriting
Agreement. The Company and the Guarantor are duly qualified as foreign
corporations to transact business and are in good standing in each other
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failures to so qualify or be in good standing would not in the aggregate result
in a Material Adverse Effect.
(g) Good Standing of Designated Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of Regulation
S-X promulgated under the 1933 Act), if any, has been duly organized and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failures to so qualify or be in good
standing would not in the aggregate result in a Material Adverse Effect.
(h) Capitalization. All of the outstanding shares of capital stock
of the Guarantor have been duly authorized and validly issued, are fully paid
and non-assessable, and are wholly owned by the Company, free and clear of any
lien, adverse claim, security interest, equity or other encumbrance except as
described in the Prospectus and except for such liens, adverse claims, security
interests, equity or other encumbrances that are immaterial to the Company and
its subsidiaries taken as a whole.
(i) Authorization of Agreements. This Underwriting Agreement has
been duly authorized, executed and delivered by the Company and the Guarantor.
(j) Authorization of the Securities. The Securities have been duly
authorized by the Company and the Guarantor, as the case may be, for issuance
and sale pursuant to this Underwriting Agreement. The Securities, when issued
and authenticated in the manner provided for in the Indenture and delivered
against payment of the consideration therefor specified in this Underwriting
Agreement, will have been duly executed, authenticated, issued and delivered and
will constitute valid and legally binding obligations of the Company and the
Guarantor, as the case may be, entitled to the benefits of the Indenture,
enforceable against the Company and the Guarantor, as the case may be, in
accordance with their terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and (ii) rights of
acceleration, if any, and the availability of equitable remedies may be limited
by equitable principles of general applicability (regardless of whether
considered in a proceeding in equity or at law).
(k) Authorization of the Indenture. The Indenture has been duly
authorized, executed and delivered by the Company and the Guarantor and,
assuming the due authorization, execution and delivery of the Trustee
thereunder, constitutes a valid and binding agreement of the Company and the
Guarantor, enforceable against the Company and the Guarantor in accordance with
its terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and (ii) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability (regardless of whether considered in a proceeding in equity or at
law).
(l) Description of the Securities and the Indenture. The Securities
and the Indenture conform in all material respects to the statements relating
thereto contained in the Prospectus.
(m) Absence of Defaults and Conflicts. The issue and sale of the
Securities and compliance by the Company and the Guarantor with all of the
provisions of the Securities, the Indenture and this Underwriting Agreement and
the consummation of the transactions contemplated herein and therein do not and
will not, whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which the Company, the Guarantor
or any of their respective subsidiaries is a party or by which it or any of them
may be bound, or to which any of the assets, properties or operations of the
Company, the Guarantor or any of their respective subsidiaries is subject, nor
will such action result in any violation of the provisions of the charter or
by-laws of the Company, the Guarantor or any of their respective subsidiaries or
any applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company, the Guarantor or any of their respective
subsidiaries or any of their assets, properties or operations, except, in any
such case, for such conflicts, breaches or violations as would not individually
or in the aggregate result in a Material Adverse Effect. As used herein, a
"Repayment Event" means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or repayment of
all or a portion of such indebtedness by the Company, the Guarantor or any of
their respective subsidiaries.
(n) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or to the knowledge of the Company or
the Guarantor threatened, against or affecting the Company, the Guarantor or any
of their respective subsidiaries which is required to be disclosed in the
Registration Statement and the Prospectus (other than as stated therein), or
which individually or in the aggregate would result in a Material Adverse
Effect, or which would materially and adversely affect the consummation of the
transactions contemplated under the Prospectus, this Underwriting Agreement or
the Indenture or the performance by the Company or the Guarantor of their
respective obligations hereunder and thereunder.
(o) Disclosure. There are no contracts or documents which are
required to be described in the Registration Statement, the Prospectus or the
documents incorporated by reference therein or to be filed as exhibits thereto
which have not been so described and filed as required.
(p) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company or the Guarantor of this
Underwriting Agreement or for the performance by the Company or the Guarantor of
the transactions contemplated under the Prospectus, this Underwriting Agreement
or the Indenture, except as set forth herein and except such as have been
already made, obtained or rendered, as applicable, and as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters and except where the failure
to obtain any such filing, authorization, approval, consent, license, order,
registration, qualification or decree will not individually or in the aggregate
result in a Material Adverse Effect.
(q) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the "1940 Act").
(r) Officer's Certificates. Any certificate signed by any officer of
the Company, the Guarantor or any of their subsidiaries delivered to the
Representatives or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company or the Guarantor, as the case may be,
to each Underwriter as to matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. Subject to the terms and conditions set forth
herein, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price of 98.673% of the principal amount thereof in the
case of the Notes and 98.326% of the principal amount thereof in the case of the
Debentures, the aggregate principal amount of the Securities set forth opposite
such Underwriter's name on Schedule I hereto plus any additional principal
amount of the Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of, the
Securities shall be made at the offices of the Company, 1515 Broadway, New York,
New York 10036 or at such other place as shall be agreed upon by the
Representatives and the Company, at 10:00 A.M. (Eastern time) on May 14, 2003,
(unless postponed in accordance with the provisions of Section 10) or such other
time not later than ten business days after such date as shall be agreed upon by
the Representatives and the Company (such time and date of payment and delivery
being herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of the
Securities to be purchased by them. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Securities which it has
severally agreed to purchase. Each of the Representatives, individually and not
as representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been
received by the Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder. Delivery of the Securities shall be
made through the facilities of the Depository Trust Company ("DTC"), Clearstream
Banking Luxembourg, societe anonyme, ("Clearstream Luxembourg") or EuroclearBank
S.A./N.V. ("Euroclear") unless the Representatives shall otherwise instruct.
(c) Restrictions on Resale. Each Underwriter agrees that it will not
offer, sell or deliver any of the Securities, directly or indirectly, or
distribute the Prospectus or any other offering material relating to the
Securities, in or from any jurisdiction except under circumstances that will, to
the best knowledge and belief of such Underwriter after reasonable
investigation, result in compliance with the applicable laws and regulations
thereof and which will not impose any obligations on the Company except as set
forth in this Underwriting Agreement.
Each Underwriter represents and agrees that (i) it has not offered or
sold any Securities to persons in the United Kingdom and until six months after
the Closing Time, it will not offer or sell any Securities to persons in the
United Kingdom, except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal or agent)
for the purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the United
Kingdom, within the meaning of the Public Offers of Securities Regulations 1995,
(ii) it has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to engage
in investment activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 (the "FSMA")) received by it in connection with
the issue or sale of any Securities in circumstances which section 21(1) of the
FSMA does not apply to the Company, and (iii) it has complied with and will
comply with all applicable provisions of the FSMA with respect to anything done
by it in relation to the Securities in, from or otherwise involving the United
Kingdom.
Each Underwriter acknowledges that offers and sales of the Securities
in Germany are subject to the restrictions provided in the German Securities
Prospectus Act (Wertpapier-Verkaufsprospektgesetz) with respect to
Euro-securities (Euro-Wertpapiere); in particular, the Securities may not be
offered in Germany by way of public promotion.
Each Underwriter represents and agrees that it has not, directly or
indirectly, offered or sold and will not, directly or indirectly, offer or sell
in The Netherlands any Securities other than to persons who trade or invest in
securities in the conduct of a profession or business (which include banks,
stockbrokers, insurance companies, pension funds, other institutional investors
and finance companies and treasury departments of large enterprises) or
otherwise in compliance with any other applicable laws or regulations of The
Netherlands.
Each Underwriter agrees that it has not directly or indirectly offered
or sold, and it will not directly or indirectly offer or sell, any Securities in
Japan or for the benefit of any resident of Japan (which term as used in this
paragraph means any person resident in Japan, including any corporation or other
entity organized under the laws of Japan) or to others for re-offering or
re-sale, directly or indirectly, in Japan or for the benefit of a resident of
Japan, except pursuant to an
exemption from the registration requirements of, and in compliance with, the
Securities and Exchange Law of Japan and any other applicable laws, regulations
and guidelines of Japan.
SECTION 3. Covenants of the Company and the Guarantor. The Company and
the Guarantor jointly and severally covenant with each Underwriter, as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company and the Guarantor, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations, Rule 434 of the 1933 Act
Regulations and Rule 462(b) of the 1933 Act Regulations, if and as applicable,
and will notify the Representatives immediately, and confirm the notice in
writing, of (i) the effectiveness of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the receipt of any comments from the Commission, (iii) any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of the Prospectus, or of the suspension of the qualification
of the Securities for offering or sale in any jurisdiction, or of the initiation
or threatening of any proceedings for any of such purposes. The Company and the
Guarantor will promptly effect the filings necessary pursuant to Rule 424 and
will take such steps as it deems necessary to ascertain promptly whether the
Prospectus transmitted for filing under Rule 424 was received for filing by the
Commission and, in the event that it was not, it will promptly file the
Prospectus. The Company and the Guarantor will make every reasonable effort to
prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. Until the Closing Time, the Company and
the Guarantor will advise the Representatives promptly of their intention to
file or prepare any amendment to the Registration Statement or any amendment,
supplement or revision to the Prospectus, whether pursuant to the 1933 Act, the
1934 Act or otherwise, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company and the
Guarantor have furnished or, if requested in writing by the Representatives,
will deliver to the Representatives and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein and documents incorporated or deemed to be incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the Representatives, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The
Registration Statement and each amendment thereto furnished to the Underwriters
will be identical to any electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company and the Guarantor will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered
under the 1933 Act or the 1934 Act, such number of copies of the Prospectus as
such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the
Guarantor will comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Underwriting Agreement
and in the Registration Statement and the Prospectus. If at any time when the
Prospectus is required by the 1933 Act or the 1934 Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company or the Guarantor, to amend the Registration
Statement in order that the Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or to
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company and the Guarantor will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company and the Guarantor will
furnish to the Underwriters, without charge, such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company and the Guarantor will use
their best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representatives may
designate and to maintain such qualifications in effect for a period of not less
than one year from the date hereof; provided, however, that the Company and the
Guarantor shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Securities have been so
qualified, the Company and the Guarantor will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date
hereof.
(g) Earnings Statement. The Company and the Guarantor will timely
file such reports pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(h) DTC, Clearstream Luxembourg and Euroclear. The Company and the
Guarantor will cooperate with the Representatives and use their reasonable best
efforts to permit the Securities to be eligible for clearance and settlement
through the facilities of DTC, Clearstream Luxembourg and Euroclear.
(i) Use of Proceeds. The Company and the Guarantor will use the net
proceeds received by it from the sale of the Securities in the manner specified
in the Prospectus under "Use of Proceeds".
(j) Listing. The Company and the Guarantor will use their reasonable
best efforts to effect the listing of the Securities on the Luxembourg Stock
Exchange by the Closing Time or as soon as practicable thereafter.
(k) Restriction on Sale of Securities. Between the date of this
Underwriting Agreement and the Closing Time, neither the Company nor the
Guarantor will, without the prior written consent of the Representatives,
directly or indirectly, issue, sell, offer or contract to sell, grant any option
for the sale of, any securities of the Company or the Guarantor substantially
similar to the Securities.
(l) Reporting Requirements. The Company and the Guarantor, during
the period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
The Company and the Guarantor will pay all expenses incident to the
performance of its obligations under this Underwriting Agreement, including (i)
the preparation, printing and filing of the Registration Statement (including
financial statements and any schedules or exhibits and any document incorporated
therein by reference) as originally filed and of each amendment or supplement
thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Underwriting Agreement, any agreement among Underwriters, the Indenture and such
other documents as may be required in connection with the offering, purchase,
sale, issuance or delivery of the Securities, (iii) the preparation, issuance
and delivery of the Securities and any certificates for the Securities to the
Underwriters, including any transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Securities to the Underwriters and
any charges of DTC, Clearstream Luxembourg and Euroclear in connection
therewith, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors or agents (including transfer agents and registrars), as well
as the fees and disbursements of the Trustee and its counsel, (v) the
qualification of the Securities under state securities laws in accordance with
the provisions of Section 3(f) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation, printing and delivery of the Blue Sky
Survey, and any amendment thereto, (vi) the printing and delivery to the
Underwriters of copies of the Prospectus and any amendments or supplements
thereto, (vii) the fees charged by nationally recognized statistical rating
organizations for the rating of the Securities, (viii) any fees and expenses
payable in connection with the initial and continued listing of the Securities
on any securities exchange, including the
Luxembourg Stock Exchange, and (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by NASD Regulation, Inc. (the "NASD") of the terms of
the sale of the Securities.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the Underwriters to purchase and pay for the Securities under this Underwriting
Agreement are subject to the accuracy of the representations and warranties of
the Company and the Guarantor contained in Section 1 hereof or in certificates
of any officer of the Company, the Guarantor or any of their respective
subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company and the Guarantor of their respective covenants and other
obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. No stop order
suspending the effectiveness of the Registration Statement shall have been
issued under the 1933 Act and no proceedings for that purpose shall have been
instituted or be pending or threatened by the Commission, and any request on the
part of the Commission for additional information shall have been complied with
to the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing information relating to the description of the Securities, the
specific method of distribution and similar matters shall have been filed with
the Commission in accordance with Rule 424.
(b) Opinion of Counsel for Company and the Guarantor. At the Closing
Time, the Representatives shall have received the favorable opinions, dated as
of the Closing Time, of Shearman & Sterling, outside counsel for the Company and
the Guarantor, and the general counsel to the Company and the Guarantor (or, if
such general counsel is not available, an associate or deputy general counsel to
the Company and the Guarantor that practices in the area of corporate and
securities laws) in form and substance satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, with respect to such matters as the Underwriters may
reasonably request.
(c) Opinion of Counsel for Underwriters. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Hughes Hubbard & Reed LLP, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters, with respect to such matters as the Underwriters may reasonably
request.
(d) Officers' Certificate. At the Closing Time, there shall not have
been, since the respective dates as of which information is given in the
Prospectus, any material adverse change in the financial condition, results of
operations or business affairs of the Company, the Guarantor and their
respective subsidiaries considered as one enterprise, whether or not arising in
the ordinary course of business, and the Representatives shall have received a
certificate of the President, an Executive Vice President, a Senior Vice
President or a Vice President of the Company and the Guarantor and of the chief
financial officer or chief accounting officer of the Company and the Guarantor,
dated as of the Closing Time, to the effect that (i) there has been no such
material adverse change, (ii) the representations and warranties in Section 1
are true and correct with the same force and effect as though expressly made at
and as of the Closing Time, (iii) the Company and the Guarantor have complied
with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted, are pending or, to the best of such officer's knowledge, are
threatened by the Commission.
(e) Accountant's Comfort Letter. At the time of the execution of
this Underwriting Agreement, the Representatives shall have received from
PricewaterhouseCoopers LLP a letter dated such date, in form and substance
satisfactory to the Representatives, together with signed or reproduced copies
of such letter for each of the other Underwriters, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained or incorporated by reference in the Registration Statement
and the Prospectus.
(f) Bring-down Comfort Letter. At the Closing Time, the
Representatives shall have received from PricewaterhouseCoopers LLP a letter,
dated as of the Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (e) of this Section 5,
except that the specified date referred to shall be a date not more than three
business days prior to the Closing Time.
(g) Ratings. On the date hereof and prior to the Closing Time, there
shall not have occurred any downgrading in the rating of any debt securities of
the Company or the Guarantor by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the 1933 Act), or
any public announcement that any such organization has under surveillance or
review its rating of any debt securities of the Company or the Guarantor (other
than an announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating).
(h) Approval of Listing. At the Closing Time, an application to have
the Securities approved for listing on the Luxembourg Exchange, shall have been
filed by the Company.
(i) No Objection. If the Registration Statement for the offering of
the Securities has been filed with the NASD for review, the NASD shall not have
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(j) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to evidence the accuracy
of any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company and the
Guarantor in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Representatives
and counsel for the Underwriters.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Guarantor
jointly and severally agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in the Base Prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d) below) any such settlement is effected
with the written consent of the Company and the Guarantor; and
(iii) against any and all expense as reasonably incurred
(including the fees and disbursements of counsel chosen by the
Representatives), in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or the Base Prospectus or the Prospectus
(or any amendment or supplement thereto).
(b) Indemnification of Company and the Guarantor, Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless the
Company and the Guarantor, their directors, each of their officers who signed
the Registration Statement, and each person, if any, who controls the Company or
the Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or the Base Prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company or the Guarantor by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such Base Prospectus or the Prospectus (or any amendment
or supplement thereto).
(c) Actions Against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against
it in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a result
thereof and in any event shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the indemnified
parties shall be selected by the Representatives, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at its
own expense in the defense of any such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Settlement Without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantor, on the one hand, and the Underwriters, on the other hand, from the
offering of the Securities pursuant to this Underwriting Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Guarantor, on the one hand, and of the Underwriters, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company and the Guarantor, on the
one hand, and the Underwriters, on the other hand, in connection with the
offering of the Securities under this Underwriting Agreement shall be deemed to
be in the same respective proportions as the total net proceeds from the
offering of such Securities (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus.
The relative fault of the Company and the Guarantor, on the one hand,
and the Underwriters, on the other hand, shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Guarantor or by the Underwriters and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Guarantor and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the aggregate principal amount of Securities set forth opposite
their respective names in Schedule I hereto, and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Underwriting Agreement or in certificates of officers of the Company, the
Guarantor or any of their respective subsidiaries
submitted pursuant hereto shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the Company, and shall survive
delivery of and payment for the Securities.
SECTION 9. Termination.
(a) Underwriting Agreement. The Representatives may terminate this
Underwriting Agreement, by notice to the Company, at any time at or prior to the
Closing Time, if (i) there has been, since the time of execution of this
Underwriting Agreement or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the financial condition,
results of operations or business affairs of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) there has occurred any material adverse change in the
financial markets in the United States or, if the Securities include securities
denominated or payable in, or indexed to, one or more foreign or composite
currencies, in the international financial markets, or any new outbreak of
hostilities or escalation thereof or other calamity or crisis or any material
change in national or international political, financial or economic conditions,
in each case the effect of which is such as to make it, in the reasonable
judgment of the Representatives, impracticable to proceed with the offering,
sale or delivery of the Securities, or (iii) trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange or the American Stock Exchange, or if trading generally on
the New York Stock Exchange or the American Stock Exchange has been suspended or
materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by either of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) a banking
moratorium has been declared by either Federal or New York authorities or, if
the Securities include securities denominated or payable in, or indexed to, one
or more foreign or composite currencies, by the relevant authorities in the
related foreign country or countries.
(b) Liabilities. If this Underwriting Agreement is terminated
pursuant to this Section 9, such termination shall be without liability of any
party to any other party except as provided in Section 4 hereof, and provided
further that Sections 1, 6, 7 and 8 and this paragraph 9(b) shall survive such
termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at the Closing Time to purchase the Securities
which it or they are obligated to purchase under this Underwriting Agreement
(the "Defaulted Securities"), then the Representatives shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other underwriters, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representatives shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities does not exceed 10% of the aggregate
principal amount of Securities set forth on Schedule I hereto, the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective
underwriting obligations hereunder bear to the underwriting obligations
of all non-defaulting Underwriters, or
(b) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities exceeds 10% of the aggregate principal
amount of Securities set forth on Schedule I hereto, the non-defaulting
Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
non-defaulting Underwriters do not purchase all the Securities, this
Underwriting Agreement will terminate without liability to any
non-defaulting Underwriter or the Company.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Underwriting Agreement, either the Representatives or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Banc of America Securities LLC, Bank of
America Corporate Center, 100 North Tryon Street, NC1-007-08-17, Charlotte,
North Carolina 28255, Attention: High Grade Capital Markets Transaction
Management and Citigroup Global Markets Inc., 388 Greenwich Street, New York,
New York 10013, Attention: Tristram Collins; and notices to the Company shall be
directed to it at Viacom Inc., 1515 Broadway, New York, New York 10036,
attention of General Counsel.
SECTION 12. Parties. This Underwriting Agreement shall inure to the
benefit of and be binding upon the Company, the Representatives and the other
Underwriters and their respective successors. Nothing expressed or mentioned in
this Underwriting Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters and the Company and
their respective successors and the controlling persons and officers and
directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Underwriting Agreement or any provision herein contained. This
Underwriting Agreement and all conditions and provisions hereof are intended to
be for the sole and exclusive benefit of the parties hereto and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. THIS UNDERWRITING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 15. Counterparts. This Underwriting Agreement may be executed
in two or more counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were on the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Underwriting Agreement, along with all counterparts, will become a binding
agreement among each of the Underwriters, the Company and the Guarantor in
accordance with its terms.
Very truly yours,
VIACOM INC.
By: /s/ Robert G. Freedline
-----------------------
Name: Robert G. Freedline
Title: Senior Vice President and Treasuer
VIACOM INTERNATIONAL INC.
By: /s/ Robert G. Freedline
-----------------------
Name: Robert G. Freedline
Title: Vice President and Treasuer
CONFIRMED AND ACCEPTED,
as of the date first above written:
BANC OF AMERICA SECURITIES LLC
By: /s/ Peter J. Carbone
--------------------
Name: Peter J. Carbone
Title: Vice President
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Tristram Collins
--------------------
Name: Tristram Collins
Title: Managing Director
For itself and the other several
Underwriters named in Schedule I to the
foregoing Underwriting Agreement.
Schedule I
Principal Amount Principal Amount
of Notes to be of Debentures to be
Underwriter Purchased Purchased
- ----------- ---------------- -------------------
Banc of America Securities LLC $105,000,000 $157,500,000
Citigroup Global Markets Inc. 105,000,000 157,500,000
Tokyo-Mitsubishi Securities (USA), Inc. 10,500,000 15,750,000
Scotia Capital (USA) Inc. 10,500,000 15,750,000
Daiwa Securities SMBC Europe Limited 10,500,000 15,750,000
Mizuho International plc 10,500,000 15,750,000
Dresdner Kleinwort Wasserstein-Grantchester, Inc. 9,000,000 13,500,000
Deutsche Bank Securities Inc. 9,000,000 13,500,000
Credit Suisse First Boston LLC 8,250,000 12,375,000
Merrill Lynch, Pierce, Fenner & Smith 8,250,000 12,375,000
Incorporated
UBS Warburg LLC 6,750,000 10,125,000
National Australia Bank, Limited 6,750,000 10,125,000
Total $300,000,000 $450,000,000
Exhibit 4.1NOTE Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the Company (as defined below) or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the registered owner hereof, Cede & Co., has an interest herein. This Security is a global Security within the meaning of the Indenture (as defined below) and is registered in the name of the Depositary or a nominee of the Depositary. This Security is exchangeable for Securities registered in the name of a person other than the Depositary or its nominee only in the limited circumstances described in the Indenture. Unless and until this certificate is exchanged in whole or in part for Securities in definitive registered form in accordance with the provisions of the Indenture applicable to such exchange, this certificate may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary. VIACOM INC. 4.625% Senior Notes due 2018 Unconditionally guaranteed as to payment of principal of and interest by VIACOM INTERNATIONAL INC. (a wholly owned subsidiary of Viacom Inc.) $300,000,000 CUSIP: 925524 AU 4 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 $300,000,000 on May 15, 2018 at the office or agency of the Company referred to below, and to pay interest thereon on November 15, 2003 and semi-annually in arrears thereafter, on May 15 and November 15 of each year (each, an "Interest Payment Date"), from May 14, 2003, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, at the rate of 4.625% per annum, until the principal hereof is paid or duly provided for. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid, in immediately available funds, to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be May 1 and November 1, as the case may be, preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date, and such Defaulted Interest, may be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner, all as more fully provided in said Indenture. Payment of the principal of and interest on this Security will be made at the Corporate Trust Office of the Trustee or such other office or agency of the Company as may be designated for such purpose, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided however, that each installment of interest and principal on this Security may at the Company's option be paid by check to the payee or in immediately available funds by transfer to an account maintained by the payee located in the United States. Any payment of principal or interest required to be made on a day that is not a Business Day need not be made on such day, but may be made on the next succeeding Business Day and no interest shall accrue as a result of such delayed payment. For purposes of this Security, "Business Day" means any day that is not a Saturday or Sunday and that, in The City of New York, is not a day on which banking institutions are generally authorized or obligated by law or executive order to close. General. This Security is one of a duly authorized issue of securities of the Company (herein called the "Securities"), unlimited in aggregate principal amount, issued and to be issued in one or more series under an indenture dated as of June 22, 2001 among the Company, Viacom International Inc., as guarantor (the "Guarantor") and The Bank of New York, as trustee (herein called the "Trustee", which term includes any successor trustee under the Indenture) (the "Indenture"), to which Indenture and the respective resolutions of the Company's board of directors or resolutions pursuant to the authority of the board of directors, an Officer's Certificate and/or indentures supplemental thereto, as the case may be, reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of a series designated as 4.625% Senior Notes due 2018, initially limited in aggregate principal amount to $300,000,000. This Security is a global Security representing $300,000,000 of the Securities. Authorized Denominations. The Securities of this series are issuable only in registered form without coupons in denominations of not less than $1,000 and any integral multiple thereof. Book-Entry Security. This Security is a "book-entry" Security and is being registered in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC"). Subject to the terms of the Indenture, this Security will be held by DTC or its nominee, and beneficial interests will be held by beneficial owners through the book-entry facilities of DTC or its nominee in denominations of not less than $1,000 and integral multiples thereof. As long as this Security is registered in the name of DTC or its nominee, the Trustee will make payments of principal of and interest on this Security by wire transfer of immediately available funds to DTC or its nominee. Notwithstanding the above, upon the maturity of this Security, the principal, together with accrued interest thereon, will be paid in immediately available funds upon surrender of this Security at the Corporate Trust Office of the Trustee or such other offices or agencies appointed by the Trustee for that purpose or such other locations provided in the Indenture. Event of Default. If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided in the Indenture. Sinking Fund. The Securities of this series are not subject to any sinking fund. Optional Redemption. 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). The term "Make-Whole Amount" means, the excess, if any, of (i) the aggregate present value as of the Redemption Date of principal being redeemed and the amount of interest (exclusive of interest accrued to the Redemption Date) 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 (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 Redemption Date, over (ii) the aggregate principal amount of the Securities being redeemed. The term "Reinvestment Rate" means 0.20% plus the arithmetic mean of the yields under the heading "Week Ending" published in the most recent Federal Reserve Statistical Release H.15 (or any comparable successor publication) under the caption "Treasury Constant Maturities" for the maturity (rounded to the nearest month) corresponding to the remaining life to maturity, as of the maturity 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 will be so calculated and the Reinvestment Rate will 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 2 Rate. The Make-Whole Amount will be calculated by an independent investment banking institution of national standing appointed by the Company. If the Company fails 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 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 Security 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. Defeasance and Covenant Defeasance. The Indenture contains provisions for defeasance at any time of (a) the entire indebtedness of the Company on this Security and (b) certain restrictive covenants and the related Defaults and Events of Default, upon compliance by the Company with certain conditions set forth therein, which provisions apply to this Security. Modification and Waivers; Obligations of the Company Absolute. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities of each series. Such amendment may be effected under the Indenture at any time by the Company, the Guarantor and the Trustee with the consent of the Holders of not less than a majority in aggregate principal amount of the Outstanding Securities of each series affected thereby. The Indenture also contains provisions permitting the Holders of not less than specified percentages in aggregate principal amount of the Outstanding Securities of each series, on behalf of the Holders of all the Securities of such series, to waive compliance by the Company and the Guarantor with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver shall be conclusive and binding upon the Holders of this Security and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof whether or not notation of such consent or waiver is made upon this Security. As set forth in, and subject to, the provisions of the Indenture, no Holder of any Security of this series will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless such Holder shall have previously given to the Trustee written notice of a continuing Event of Default with respect to this series, the Holders of not less than 25% in principal amount of the Outstanding Securities of this series shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, and the Trustee shall not have received from the Holders of a majority in principal amount of the Outstanding Securities of this series a direction inconsistent with such request and shall have failed to institute such proceeding within 60 days; provided, however, that such limitations do not apply to a suit instituted by the Holder hereof for the enforcement of payment of the principal of or interest on this Security on or after the respective due dates expressed herein. 3 No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Security at the times, place, and rate, and in the coin or currency, herein prescribed. Registration of Transfer or Exchange. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security will be registered on the Security Register of the Company upon surrender of this Security for registration of transfer at the office or agency of the Company maintained for such purpose in New York, New York or at such other office or agency as the Company may designate, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. As provided in the Indenture and subject to certain limitations therein set forth, the Securities of this series are exchangeable for a like aggregate principal amount of Securities of this series and of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. Prior to the time of due presentment of this Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this Security is registered as the absolute owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Guarantor, the Trustee or any agent of the Company, the Guarantor or the Trustee shall be affected by notice to the contrary. This Security is a global Security. If at any time, a Depositary is at any time unwilling or unable to continue as Depositary and a successor Depositary is not appointed by the Company within 90 days, then the Company will execute and the Trustee will authenticate and deliver Securities in definitive registered form, in authorized denominations, and in an aggregate principal amount equal to the principal amount of this Security in exchange for this Security. Such Securities in definitive registered form shall be registered in such names and issued in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are so registered. Defined Terms. All terms used in this Security that are defined in the Indenture and are not otherwise defined herein shall have the meanings assigned to them in the Indenture. Governing Law. This Security shall be governed by, and construed in accordance with, the laws of the State of New York. Unless the certificate of authentication hereon has been duly executed by or on behalf of The Bank of New York, as Trustee under the Indenture, or its successor thereunder, by the manual signature of one of its authorized officers, this Security shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose. 4 IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed. Dated: May 14, 2003 VIACOM INC., as Issuer By: /s/ Richard J. Bressler ________________________ Attest: /s/ George Nelson ___________________________ Authorized Signature 5 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities of a series referred to in the within-mentioned Indenture. THE BANK OF NEW YORK, as Trustee By: /s/ Julie Salovitch-Miller _________________________ Authorized Signatory Dated: May 14, 2003 GUARANTEE OF VIACOM INTERNATIONAL INC. FOR VALUE RECEIVED, VIACOM INTERNATIONAL INC., a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Guarantor", which term includes any successor corporation under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby fully and unconditionally guarantees to the holder of the Security upon which this Guarantee is endorsed the due and punctual payment of the principal of and interest (including, in case of default, interest on principal and, to the extent permitted by applicable law, on overdue interest), if any, on this Security, when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon declaration of acceleration or otherwise, according to the terms thereof and of the Indenture referred to therein. In case of the failure of Viacom Inc. or any successor thereto (herein called the "Company") punctually to pay any such principal or interest, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable, whether at Stated Maturity, upon redemption, upon declaration of acceleration or otherwise, as if such payment were made by the Company. The Guarantor hereby agrees that its obligations hereunder shall be as if it were principal debtor and not merely surety, and shall be absolute and unconditional, irrespective of the identity of the Company, the validity, regularity or enforceability of this Security or said Indenture, the absence of any action to enforce the same, any waiver or consent by the Holder of this Security with respect to any provisions thereof, the recovery of any judgment against the Company or any action to enforce the same, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Guarantee will not be discharged except by complete performance of the obligations contained in this Security and in this Guarantee. The Guarantor shall be subrogated to all rights of the Holder of this Security against the Company in respect of any amounts paid by the Guarantor pursuant to the provisions of this Guarantee or the Indenture referred to in this Security; provided, however, that the Guarantor shall not be entitled to enforce or to receive any payment arising out of, or based upon, such right of subrogation until the principal of and interest on all Securities of the series of which the Security upon which this Guarantee is endorsed constitutes a part shall have been indefeasibly paid in full. The Indenture provides that in the event that this Guarantee would constitute or result in a fraudulent transfer or conveyance for purposes of, or result in a violation of, any United States federal, or applicable United States state, fraudulent transfer or conveyance or similar law, then the liability of the Guarantor hereunder shall be reduced to the extent necessary to eliminate such fraudulent transfer or conveyance or violation under the applicable fraudulent transfer or conveyance or similar law. If the Trustee or the Holder of the Security upon which this Guarantee is endorsed is required by any court or otherwise to return to the Company or the Guarantor, or any custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official acting in relation to the Company or the Guarantor, any amount paid to the Trustee or such Holder in respect of the Security upon which this Guarantee is endorsed, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. The Guarantor further agrees, to the fullest extent that it may lawfully do so, that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five of the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition extant under any applicable bankruptcy law preventing such acceleration in respect of the obligations guaranteed hereby. All terms used in this Guarantee that are defined in the Indenture and are not otherwise defined herein shall have the meanings assigned to them in the Indenture. This Guarantee shall be governed by, and construed in accordance with, the laws of the State of New York. Subject to the next following paragraph, the Guarantor hereby certifies and warrants that all acts, conditions and things required to be done and performed and to have happened precedent to the creation and issuance of this Guarantee and to constitute the same valid obligation of the Guarantor have been done and performed and have happened in due compliance with all applicable laws. This Guarantee shall not be valid or become obligatory for any purpose until the certificate of authentication on the Security upon which this Guarantee is endorsed has been signed by the Trustee under the Indenture referred to in this Security. 2 IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed. Dated: May 14, 2003 VIACOM INTERNATIONAL INC., as Guarantor By: /s/ Richard J. Bressler __________________________ Attest: /s/ George Nelson _________________________ Authorized Signature 3
Exhibit 4.2
DEBENTURE
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Company
(as defined below) or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, since the registered owner
hereof, Cede & Co., has an interest herein.
This Security is a global Security within the meaning of the Indenture
(as defined below) and is registered in the name of the Depositary or a nominee
of the Depositary. This Security is exchangeable for Securities registered in
the name of a person other than the Depositary or its nominee only in the
limited circumstances described in the Indenture. Unless and until this
certificate is exchanged in whole or in part for Securities in definitive
registered form in accordance with the provisions of the Indenture applicable to
such exchange, this certificate may not be transferred except as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
VIACOM INC.
5.50% Senior Debentures due 2033
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
$450,000,000
CUSIP: 925524 AV 2
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 $450,000,000 on May 15, 2033 at the
office or agency of the Company referred to below, and to pay interest thereon
on November 15, 2003 and semi-annually in arrears thereafter, on May 15 and
November 15 of each year (each, an "Interest Payment Date"), from May 14, 2003,
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, at the rate of 5.50% 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 May 1 and November 1, as
the case may be, preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date, and such Defaulted Interest, may be paid to
the Person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as more
fully provided in said Indenture.
Payment of the principal of and interest on this Security will be made
at the Corporate Trust Office of the Trustee or such other office or agency of
the Company as may be designated for such purpose, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided however, that each installment of
interest and principal on this Security may at the Company's option be paid by
check to the payee or in immediately available funds by transfer to an account
maintained by the payee located in the United States.
Any payment of principal or interest required to be made on a day that
is not a Business Day need not be made on such day, but may be made on the next
succeeding Business Day and no interest shall accrue as a result of such delayed
payment. For purposes of this Security, "Business Day" means any day that is not
a Saturday or Sunday and that, in The City of New York, is not a day on which
banking institutions are generally authorized or obligated by law or executive
order to close.
General. This Security is one of a duly authorized issue of securities
of the Company (herein called the "Securities"), unlimited in aggregate
principal amount, issued and to be issued in one or more series under an
indenture dated as of June 22, 2001 among the Company, Viacom International
Inc., as guarantor (the "Guarantor") and The Bank of New York, as trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture) (the "Indenture"), to which Indenture and the respective
resolutions of the Company's board of directors or resolutions pursuant to the
authority of the board of directors, an Officer's Certificate and/or indentures
supplemental thereto, as the case may be, reference is hereby made for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of a series designated as
5.50% Senior Debentures due 2033, initially limited in aggregate principal
amount to $450,000,000. This Security is a global Security representing
$450,000,000 of the Securities.
Authorized Denominations. The Securities of this series are issuable
only in registered form without coupons in denominations of not less than $1,000
and any integral multiple thereof.
Book-Entry Security. This Security is a "book-entry" Security and is
being registered in the name of Cede & Co., as nominee of The Depository Trust
Company ("DTC"). Subject to the terms of the Indenture, this Security will be
held by DTC or its nominee, and beneficial interests will be held by beneficial
owners through the book-entry facilities of DTC or its nominee in denominations
of not less than $1,000 and integral multiples thereof. As long as this Security
is registered in the name of DTC or its nominee, the Trustee will make payments
of principal of and interest on this Security by wire transfer of immediately
available funds to DTC or its nominee. Notwithstanding the above, upon the
maturity of this Security, the principal, together with accrued interest
thereon, will be paid in immediately available funds upon surrender of this
Security at the Corporate Trust Office of the Trustee or such other offices or
agencies appointed by the Trustee for that purpose or such other locations
provided in the Indenture.
Event of Default. If an Event of Default with respect to Securities of
this series shall occur and be continuing, the principal of the Securities of
this series may be declared due and payable in the manner and with the effect
provided in the Indenture.
Sinking Fund. The Securities of this series are not subject to any
sinking fund.
Optional Redemption. 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).
The term "Make-Whole Amount" means, the excess, if any, of (i) the
aggregate present value as of the Redemption Date of principal being redeemed
and the amount of interest (exclusive of interest accrued to the Redemption
Date) 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 (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
Redemption Date, over (ii) the aggregate principal amount of the Securities
being redeemed.
The term "Reinvestment Rate" means 0.20% plus the arithmetic mean of
the yields under the heading "Week Ending" published in the most recent Federal
Reserve Statistical Release H.15 (or any comparable successor publication) under
the caption "Treasury Constant Maturities" for the maturity (rounded to the
nearest month) corresponding to the remaining life to maturity, as of the
maturity 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 will be so calculated and the Reinvestment
Rate will 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
2
Rate.
The Make-Whole Amount will be calculated by an independent investment
banking institution of national standing appointed by the Company. If the
Company fails 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 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 Security 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.
Defeasance and Covenant Defeasance. The Indenture contains provisions
for defeasance at any time of (a) the entire indebtedness of the Company on this
Security and (b) certain restrictive covenants and the related Defaults and
Events of Default, upon compliance by the Company with certain conditions set
forth therein, which provisions apply to this Security.
Modification and Waivers; Obligations of the Company Absolute. The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series. Such amendment may
be effected under the Indenture at any time by the Company, the Guarantor and
the Trustee with the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities of each series affected
thereby. The Indenture also contains provisions permitting the Holders of not
less than specified percentages in aggregate principal amount of the Outstanding
Securities of each series, on behalf of the Holders of all the Securities of
such series, to waive compliance by the Company and the Guarantor with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver shall be conclusive and binding
upon the Holders of this Security and upon all future Holders of this Security
and of any Security issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security.
As set forth in, and subject to, the provisions of the Indenture, no
Holder of any Security of this series will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default with respect to this series, the Holders of not less
than 25% in principal amount of the Outstanding Securities of this series shall
have made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of the Outstanding Securities
of this series a direction inconsistent with such request and shall have failed
to institute such proceeding within 60 days; provided, however, that such
limitations do not apply to a suit instituted by the Holder hereof for the
enforcement of payment of the principal of or interest on this Security on or
after the respective due dates expressed herein.
3
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place, and rate, and in the coin or currency, herein
prescribed.
Registration of Transfer or Exchange. As provided in the Indenture and
subject to certain limitations therein set forth, the transfer of this Security
will be registered on the Security Register of the Company upon surrender of
this Security for registration of transfer at the office or agency of the
Company maintained for such purpose in New York, New York or at such other
office or agency as the Company may designate, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
As provided in the Indenture and subject to certain limitations
therein set forth, the Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series and of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to the time of due presentment of this Security for registration
of transfer, the Company, the Guarantor, the Trustee and any agent of the
Company, the Guarantor or the Trustee may treat the Person in whose name this
Security is registered as the absolute owner hereof for all purposes, whether or
not this Security be overdue, and none of the Company, the Guarantor, the
Trustee or any agent of the Company, the Guarantor or the Trustee shall be
affected by notice to the contrary.
This Security is a global Security. If at any time, a Depositary is at
any time unwilling or unable to continue as Depositary and a successor
Depositary is not appointed by the Company within 90 days, then the Company will
execute and the Trustee will authenticate and deliver Securities in definitive
registered form, in authorized denominations, and in an aggregate principal
amount equal to the principal amount of this Security in exchange for this
Security. Such Securities in definitive registered form shall be registered in
such names and issued in such authorized denominations as the Depositary,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.
Defined Terms. All terms used in this Security that are defined in the
Indenture and are not otherwise defined herein shall have the meanings assigned
to them in the Indenture.
Governing Law. This Security shall be governed by, and construed in
accordance with, the laws of the State of New York.
Unless the certificate of authentication hereon has been duly executed
by or on behalf of The Bank of New York, as Trustee under the Indenture, or its
successor thereunder, by the manual signature of one of its authorized officers,
this Security shall not be entitled to any benefit under the Indenture, or be
valid or obligatory for any purpose.
4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: May 14, 2003 VIACOM INC.,
as Issuer
By: /s/ Richard J. Bressler
________________________
Attest:
/s/ George Nelson
___________________________
Authorized Signature
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By: /s/ Julie Salovitch-Miller
_________________________
Authorized Signatory
Dated: May 14, 2003
GUARANTEE OF VIACOM INTERNATIONAL INC.
FOR VALUE RECEIVED, VIACOM INTERNATIONAL INC., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Guarantor", which term includes any successor corporation under the
Indenture referred to in the Security upon which this Guarantee is endorsed),
hereby fully and unconditionally guarantees to the holder of the Security upon
which this Guarantee is endorsed the due and punctual payment of the principal
of and interest (including, in case of default, interest on principal and, to
the extent permitted by applicable law, on overdue interest), if any, on this
Security, when and as the same shall become due and payable, whether at Stated
Maturity, upon redemption, upon declaration of acceleration or otherwise,
according to the terms thereof and of the Indenture referred to therein. In case
of the failure of Viacom Inc. or any successor thereto (herein called the
"Company") punctually to pay any such principal or interest, the Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at Stated Maturity, upon redemption,
upon declaration of acceleration or otherwise, as if such payment were made by
the Company.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of the identity of the Company, the validity,
regularity or enforceability of this Security or said Indenture, the absence of
any action to enforce the same, any waiver or consent by the Holder of this
Security with respect to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever and covenants that this Guarantee
will not be discharged except by complete performance of the obligations
contained in this Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of the Holder of this
Security against the Company in respect of any amounts paid by the Guarantor
pursuant to the provisions of this Guarantee or the Indenture referred to in
this Security; provided, however, that the Guarantor shall not be entitled to
enforce or to receive any payment arising out of, or based upon, such right of
subrogation until the principal of and interest on all Securities of the series
of which the Security upon which this Guarantee is endorsed constitutes a part
shall have been indefeasibly paid in full.
The Indenture provides that in the event that this Guarantee would
constitute or result in a fraudulent transfer or conveyance for purposes of, or
result in a violation of, any United States federal, or applicable United States
state, fraudulent transfer or conveyance or similar law, then the liability of
the Guarantor hereunder shall be reduced to the extent necessary to eliminate
such fraudulent transfer or conveyance or violation under the applicable
fraudulent transfer or conveyance or similar law.
If the Trustee or the Holder of the Security upon which this Guarantee
is endorsed is required by any court or otherwise to return to the Company or
the Guarantor, or any custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official acting in relation to the Company or the
Guarantor, any amount paid to the Trustee or such Holder in respect of the
Security upon which this Guarantee is endorsed, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. The
Guarantor further agrees, to the fullest extent that it may lawfully do so,
that, as between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article Five of the Indenture for the purposes
of this Guarantee, notwithstanding any stay, injunction or other prohibition
extant under any applicable bankruptcy law preventing such acceleration in
respect of the obligations guaranteed hereby.
All terms used in this Guarantee that are defined in the Indenture and
are not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
This Guarantee shall be governed by, and construed in accordance with,
the laws of the State of New York.
Subject to the next following paragraph, the Guarantor hereby
certifies and warrants that all acts, conditions and things required to be done
and performed and to have happened precedent to the creation and issuance of
this Guarantee and to constitute the same valid obligation of the Guarantor have
been done and performed and have happened in due compliance with all applicable
laws.
This Guarantee shall not be valid or become obligatory for any purpose
until the certificate of authentication on the Security upon which this
Guarantee is endorsed has been signed by the Trustee under the Indenture
referred to in this Security.
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IN WITNESS WHEREOF, the Guarantor has caused this instrument to be
duly executed.
Dated: May 14, 2003 VIACOM INTERNATIONAL INC.,
as Guarantor
By: /s/ Richard J. Bressler
__________________________
Attest:
/s/ George Nelson
________________________
Authorized Signature
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