UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549-1004
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
AUGUST 21, 2002
VIACOM INC.
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(Exact name of registrant as
specified in its charter)
Delaware 1-9553 04-2949533
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(State or other Commission (IRS Employer
jurisdiction File Number Identification
of Number)
incorporation)
1515 Broadway, New York, NY 10036
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(Address of principal executive offices) (Zip Code)
(212) 258-6000
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(Registrant's telephone number, including area code)
Item 5. Other Events
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On August 21, 2002, Viacom Inc. ("Viacom" or, the
"Registrant") and Viacom International Inc. ("Viacom
International") entered into an underwriting agreement (the
"Underwriting Agreement", a copy of which is attached hereto
as Exhibit 1.1) with Deutsche Bank Securities Inc. and each
of the other underwriters named therein in Schedule I thereto
(collectively, the "Underwriters").
On August 28, 2002, pursuant to the Underwriting Agreement,
Viacom issued and sold and the Underwriters purchased
$600,000,000 aggregate principal amount of Viacom's 5.625%
Senior Notes due 2012 (the "Senior Notes") at an initial
public offering price of 99.852% of the principal amount of the
Senior Notes, which yielded aggregate proceeds to Viacom of
$596,412,000, after payment of the underwriting discount, but
before payment of expenses related to the offering.
A form of the Senior Notes, including the guarantee endorsed
thereon, is attached hereto as Exhibit 4.1. The Senior Notes
were (i) registered under the Securities Act of 1933, as
amended, pursuant to a Registration Statement on Form S-3
(Registration No. 333-52728) filed on December 26, 2000 and a
Registration Statement on Form S-3 (Registration No. 333-
62052) filed on May 31, 2001, which Registration Statement
also constitutes Post-Effective Amendment No. 1 to the
Registration Statement on Form S-3 (Registration No. 333-
52728), and the amendment thereto filed on June 13, 2001, and
(ii) issued under an Indenture, dated as of June 22, 2001
(the "Indenture") among Viacom, Viacom International, as
guarantor, and The Bank of New York, as trustee (the
"Trustee"). The Indenture has been previously filed as
Exhibit 4.2 to Viacom's Current Report on Form 8-K filed on
July 3, 2001.
Item 7. Financial Statements and Exhibits.
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(c) The following exhibits are filed as part of this report
on Form 8- K:
1.1 Underwriting Agreement, dated August 21, 2002,
among Viacom, Viacom International, Deutsche Bank
Securities Inc. and each of the other underwriters
named therein in Schedule I thereto.
4.1 Form of 5.625% Senior Notes due 2012, including
the form of guarantee endorsed thereon.
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be
signed on its behalf by the undersigned hereunto duly
authorized.
VIACOM INC.
(Registrant)
By: /s/ Michael D. Fricklas
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Michael D. Fricklas
Executive Vice President,
General Counsel
and Secretary
Date: August 29, 2002
EXHIBIT INDEX
Exhibit No. Description
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1.1 Underwriting Agreement, dated August
21, 2002, among Viacom, Viacom International, Deutsche Bank
Securities Inc. and each of the other underwriters named
therein in Schedule I thereto (filed herewith).
4.1 Form of 5.625% Senior Notes due 2012, including
the form of guarantee endorsed thereon (filed herewith).
VIACOM INC.
VIACOM INTERNATIONAL INC.
5.625% SENIOR NOTES DUE 2012
UNDERWRITING AGREEMENT
New York, New York
August 21, 2002
Deutsche Bank Securities Inc.
31 West 52nd Street
New York, New York 10019
As Representative 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 Deutsche Bank Securities Inc. ("Deutsche
Bank"), 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 Deutsche Bank is acting as
representative (in such capacity, the "Representative"), 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
$600,000,000 aggregate principal amount of 5.625% Senior Notes
due 2012 (the "Notes") guaranteed on an unsecured basis (the
"Guarantees") by Viacom International Inc., a Delaware
corporation (the "Guarantor"). The Notes 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 August 21, 2002 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
Representative 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 Representative or to counsel for
the Underwriters shall be deemed a representation and warranty by
the Company or the Guarantor, as the case may be, to each
Underwriter as to matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) SECURITIES. Subject to the terms and conditions set
forth herein, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at a purchase price of
99.402% of the principal amount thereof, the aggregate principal
amount of the Securities set forth opposite such Underwriter's
name on Schedule I hereto plus any additional principal amount of
the Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) PAYMENT. Payment of the purchase price for, and
delivery of, the Securities shall be made at the offices of the
Company, 1515 Broadway, New York, New York 10036 or at such other
place as shall be agreed upon by the Representative and the
Company, at 10:00 A.M. (Eastern time) on August 28, 2002, (unless
postponed in accordance with the provisions of Section 10) or
such other time not later than ten business days after such date
as shall be agreed upon by the Representative 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 Representative for the
respective accounts of the Underwriters of the Securities to be
purchased by them. It is understood that each Underwriter has
authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price
for, the Securities which it has severally agreed to purchase.
The Representative, individually and not as representative 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 Representative 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.
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 Representative 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 Representative 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 Representative 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 Representative or counsel for the
Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company and
the Guarantor has furnished or, if requested in writing by the
Representative, will deliver to the Representative 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 Representative, 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 Representative 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
will cooperate with the Representative and use its reasonable
best efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of DTC,
Clearstream Luxembourg and Euroclear.
(i) USE OF PROCEEDS. The Company and the Guarantor will
use the net proceeds received by it from the sale of the
Securities in the manner specified in the Prospectus under "Use
of Proceeds".
(j) LISTING. The Company and the Guarantor will use their
reasonable best efforts to effect the listing of the Securities
on the Luxembourg Stock Exchange by the Closing Time or as soon
as practicable thereafter.
(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 Representative, 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 Representative 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 Representative 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
Representative 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 Representative
shall have received from PricewaterhouseCoopers LLP a letter
dated such date, in form and substance satisfactory to the
Representative, 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
Representative 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 Representative 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 Representative), 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 Representative 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 Representative
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
Representative, 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 Representative 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 Representative,
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 Representative 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 Representative 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
Representative 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 Deutsche Bank Securities Inc., 31 West 52nd Street,
New York, New York 10019, Attention: Scott Flieger; 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
Representative 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: Treasurer
VIACOM INTERNATIONAL INC.
By: /s/ Robert G. Freedline
------------------------
Name: Robert G. Freedline
Title: Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
DEUTSCHE BANK SECURITIES INC.
By: /s/ Dan Benton
-----------------------
Name: Dan Benton
Title: Managing Director
By: /s/ R. Scott Flieger
-----------------------
Name: R. Scott Flieger
Title: Managing Director
For itself and the other several
Underwriters named in Schedule I to the
foregoing Underwriting Agreement.
Schedule I
UNDERWRITER PRINCIPAL
----------- AMOUNT
--------------
---
Deutsche Bank Securities Inc. $180,000,000
Credit Suisse First Boston Corporation $150,000,000
Dresdner Kleinwort Wasserstein- $150,000,000
Grantchester, Inc.
BNY Capital Markets, Inc. $28,000,000
Mizuho International plc $28,000,000
Scotia Capital (USA) Inc. $28,000,000
The Royal Bank of Scotland plc $18,000,000
Wachovia Securities, Inc. $18,000,000
Total $600,000,000
============
FORM OF NOTE
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to the Company (as defined below) or its
agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co.
or such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co.
or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL,
since the registered owner hereof, Cede & Co., has an interest
herein.
This Security is a global Security within the meaning of
the Indenture (as defined below) and is registered in the name
of the Depositary or a nominee of the Depositary. This
Security is exchangeable for Securities registered in the name
of a person other than the Depositary or its nominee only in
the limited circumstances described in the Indenture. Unless
and until this certificate is exchanged in whole or in part
for Securities in definitive registered form in accordance
with the provisions of the Indenture applicable to such
exchange, this certificate may not be transferred except as a
whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee
of the Depositary or by the Depositary or any such nominee to
a successor Depositary or a nominee of such successor
Depositary.
VIACOM INC.
5.625% Senior Notes due 2012
Unconditionally guaranteed as to payment of
principal of and interest by
VIACOM INTERNATIONAL INC.
(a wholly owned subsidiary of Viacom Inc.)
$600,000,000
CUSIP: 925524AT7
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 $600,000,000 on August 15, 2012 at the
office or agency of the Company referred to below, and to pay
interest thereon on February 15, 2003 and semi-annually in
arrears thereafter, on February 15 and August 15 of each year
(each, an "Interest Payment Date"), from August 28, 2002, or
from the most recent Interest Payment Date to which interest
has been paid or duly provided for, at the rate of 5.625% per
annum, until the principal hereof is paid or duly provided
for.
The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided
in such Indenture, be paid, in immediately available funds, to
the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be
February 1 and August 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 5.625% Senior Notes due 2012,
initially limited in aggregate principal amount to $600,000,000.
This Security is a global Security representing $600,000,000 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 0.25% 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
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.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and
unconditional, to pay the principal of and interest on this
Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
REGISTRATION OF TRANSFER OR EXCHANGE. As provided
in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security will be registered on
the Security Register of the Company upon surrender of this
Security for registration of transfer at the office or agency
of the Company maintained for such purpose in New York, New
York or at such other office or agency as the Company may
designate, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or
more new Securities of this series of authorized denominations
and for the same aggregate principal amount, will be issued to
the designated transferee or transferees.
As provided in the Indenture and subject to certain
limitations therein set forth, the Securities of this series
are exchangeable for a like aggregate principal amount of
Securities of this series and of a different authorized
denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to the time of due presentment of this
Security for registration of transfer, the Company, the
Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee may treat the Person in whose name
this Security is registered as the absolute owner hereof for
all purposes, whether or not this Security be overdue, and
none of the Company, the Guarantor, the Trustee or any agent
of the Company, the Guarantor or the Trustee shall be affected
by notice to the contrary.
This Security is a global Security. If at any time,
a Depositary is at any time unwilling or unable to continue as
Depositary and a successor Depositary is not appointed by the
Company within 90 days, then the Company will execute and the
Trustee will authenticate and deliver Securities in definitive
registered form, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of
this Security in exchange for this Security. Such Securities
in definitive registered form shall be registered in such
names and issued in such authorized denominations as the
Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Securities to the
Persons in whose names such Securities are so registered.
DEFINED TERMS. All terms used in this Security that
are defined in the Indenture and are not otherwise defined
herein shall have the meanings assigned to them in the
Indenture.
GOVERNING LAW. This Security shall be governed by,
and construed in accordance with, the laws of the State of New
York.
Unless the certificate of authentication hereon has
been duly executed by or on behalf of The Bank of New York, as
Trustee under the Indenture, or its successor thereunder, by
the manual signature of one of its authorized officers, this
Security shall not be entitled to any benefit under the
Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated: August 28, 2002 VIACOM INC.,
as Issuer
By:
________________________
Attest:
__________________________
Authorized Signature
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of a series referred to in
the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
________________________
Authorized Signatory
Dated: August 28, 2002
GUARANTEE OF VIACOM INTERNATIONAL INC.
FOR VALUE RECEIVED, VIACOM INTERNATIONAL INC., a
corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Guarantor", which term
includes any successor corporation under the Indenture
referred to in the Security upon which this Guarantee is
endorsed), hereby fully and unconditionally guarantees to the
holder of the Security upon which this Guarantee is endorsed
the due and punctual payment of the principal of and interest
(including, in case of default, interest on principal and, to
the extent permitted by applicable law, on overdue interest),
if any, on this Security, when and as the same shall become
due and payable, whether at Stated Maturity, upon redemption,
upon declaration of acceleration or otherwise, according to
the terms thereof and of the Indenture referred to therein.
In case of the failure of Viacom Inc. or any successor thereto
(herein called the "Company") punctually to pay any such
principal or interest, the Guarantor hereby agrees to cause
any such payment to be made punctually when and as the same
shall become due and payable, whether at Stated Maturity, upon
redemption, upon declaration of acceleration or otherwise, as
if such payment were made by the Company.
The Guarantor hereby agrees that its obligations
hereunder shall be as if it were principal debtor and not
merely surety, and shall be absolute and unconditional,
irrespective of the identity of the Company, the validity,
regularity or enforceability of this Security or said
Indenture, the absence of any action to enforce the same, any
waiver or consent by the Holder of this Security with respect
to any provisions thereof, the recovery of any judgment
against the Company or any action to enforce the same, or any
other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. The Guarantor
hereby waives diligence, presentment, demand of payment,
filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding
first against the Company, protest, notice and all demands
whatsoever and covenants that this Guarantee will not be
discharged except by complete performance of the obligations
contained in this Security and in this Guarantee.
The Guarantor shall be subrogated to all rights of
the Holder of this Security against the Company in respect of
any amounts paid by the Guarantor pursuant to the provisions
of this Guarantee or the Indenture referred to in this
Security; provided, however, that the Guarantor shall not be
entitled to enforce or to receive any payment arising out of,
or based upon, such right of subrogation until the principal
of and interest on all Securities of the series of which the
Security upon which this Guarantee is endorsed constitutes a
part shall have been indefeasibly paid in full.
The Indenture provides that in the event that this
Guarantee would constitute or result in a fraudulent transfer
or conveyance for purposes of, or result in a violation of,
any United States federal, or applicable United States state,
fraudulent transfer or conveyance or similar law, then the
liability of the Guarantor hereunder shall be reduced to the
extent necessary to eliminate such fraudulent transfer or
conveyance or violation under the applicable fraudulent
transfer or conveyance or similar law.
If the Trustee or the Holder of the Security upon
which this Guarantee is endorsed is required by any court or
otherwise to return to the Company or the Guarantor, or any
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official acting in relation to
the Company or the Guarantor, any amount paid to the Trustee
or such Holder in respect of the Security upon which this
Guarantee is endorsed, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and
effect. The Guarantor further agrees, to the fullest extent
that it may lawfully do so, that, as between the Guarantor, on
the one hand, and the Holders and the Trustee, on the other
hand, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Five of the Indenture for
the purposes of this Guarantee, notwithstanding any stay,
injunction or other prohibition extant under any applicable
bankruptcy law preventing such acceleration in respect of the
obligations guaranteed hereby.
All terms used in this Guarantee that are defined in
the Indenture and are not otherwise defined herein shall have
the meanings assigned to them in the Indenture.
This Guarantee shall be governed by, and construed
in accordance with, the laws of the State of New York.
Subject to the next following paragraph, the
Guarantor hereby certifies and warrants that all acts,
conditions and things required to be done and performed and to
have happened precedent to the creation and issuance of this
Guarantee and to constitute the same valid obligation of the
Guarantor have been done and performed and have happened in
due compliance with all applicable laws.
This Guarantee shall not be valid or become
obligatory for any purpose until the certificate of
authentication on the Security upon which this Guarantee is
endorsed has been signed by the Trustee under the Indenture
referred to in this Security.
IN WITNESS WHEREOF, the Guarantor has caused this
instrument to be duly executed.
Dated: August 28, 2002 VIACOM INTERNATIONAL INC.,
as Guarantor
By:
__________________________
Attest:
- -----------------------
Authorized Signature