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): September 6, 1999
VIACOM INC.
(Exact name of Registrant as specified in its charter)
Delaware 1-9553 04-2949533
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(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification No.)
incorporation)
1515 Broadway, New York, New York 10036
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (212) 258-6000
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2
Item 5. Other Events.
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On September 6, 1999, Viacom Inc., a Delaware corporation
("Viacom"), and CBS Corporation, a Pennsylvania corporation ("CBS"), entered
into an Agreement and Plan of Merger (the "Merger Agreement") providing for the
merger of CBS with and into Viacom, with Viacom as the surviving corporation
(the "Merger"). Pursuant to the Merger Agreement, each share of common stock,
par value $1.00 per share, of CBS issued and outstanding immediately prior to
the effective time of the Merger will be converted into the right to receive
1.085 shares of Viacom Class B Common Stock. A copy of the Merger Agreement is
attached hereto as Exhibit 2.1.
Consummation of the Merger is subject to certain conditions,
including, among other things, (i) approval of the shareholders of CBS, (ii)
expiration or termination of the waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended and (iii) approval of the Federal
Communications Commission as may be required under the Communications Act of
1934, as amended, and the rules and regulations promulgated thereunder.
In addition, National Amusements, Inc. ("NAI"), the majority
stockholder of Viacom, and CBS have entered into (i) a Voting Agreement, dated
as of September 6, 1999, pursuant to which NAI has agreed to vote in favor of,
among other things, the Merger and the Merger Agreement, and (ii) a Stockholder
Agreement, dated as of September 6, 1999, pursuant to which NAI has agreed to
vote in favor of the election of certain directors designated by CBS and certain
other matters. Copies of each of the Voting Agreement and the Stockholder
Agreement are attached hereto as Exhibits 10.1 and 10.2.
In connection with the Merger, Viacom has also entered into
employment agreements with Sumner Redstone, who will remain as Chairman and
Chief Executive Officer of Viacom after the effective time of the Merger, and
Mel Karmazin, who will be President and Chief Operating Officer of Viacom after
the effective time of the Merger. In addition, Viacom entered into agreements
with Philippe Dauman and Thomas Dooley, Deputy Chairmen and Executive Vice
Presidents of Viacom, regarding the terms of the resignation of Messrs. Dauman
and Dooley from their executive officer positions with Viacom, which will become
effective as of the effective time of the Merger. Messrs. Dauman and Dooley will
remain members of the Board of Directors of Viacom following the Merger. Copies
of each of the agreements with Messrs. Redstone, Karmazin, Dauman and Dooley are
attached hereto as Exhibits 10.3, 10.4, 10.5 and 10.6.
A copy of the joint press release issued by Viacom and CBS on
September 7, 1999 is attached hereto as Exhibit 99.1 and is hereby incorporated
by reference in its entirety. The description of the Merger Agreement, the
Voting Agreement, the Stockholder Agreement,
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and the agreements with Messrs. Redstone, Karmazin, Dauman and Dooley is
qualified in its entirety by reference to the agreements, which are filed
herewith as Exhibits 2.1, 10.1, 10.2, 10.3, 10.4, 10.5 and 10.6, respectively,
and incorporated herein by reference in their entirety.
Item 7. Financial Statements and Exhibits
- ------------------------------------------
(a) Exhibits.
2.1. Agreement and Plan of Merger, dated September 6, 1999, between
Viacom Inc. and CBS Corporation.
10.1. Voting Agreement, dated September 6, 1999, between National
Amusements, Inc. and CBS Corporation.
10.2. Stockholder Agreement, dated September 6, 1999, between
National Amusements, Inc. and CBS Corporation.
10.3. Letter Agreement, dated as of September 6, 1999, between
Viacom Inc. and Sumner Redstone.
10.4. Letter Agreement, dated as of September 6, 1999, between
Viacom Inc. and Mel Karmazin.
10.5. Agreement, dated as of September 6, 1999, between Viacom Inc.
and Philippe Dauman.
10.6. Agreement, dated as of September 6, 1999, between Viacom Inc.
and Thomas Dooley.
99.1. Joint Press Release issued by Viacom Inc. and CBS Corporation
on September 7, 1999.
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EXHIBIT INDEX
-------------
Exhibit
No. Description
- ------- -----------
2.1. Agreement and Plan of Merger, dated September 6, 1999, between Viacom
Inc. and CBS Corporation.
10.1. Voting Agreement, dated September 6, 1999, between National
Amusements, Inc. and CBS Corporation.
10.2. Stockholder Agreement, dated September 6, 1999, between National
Amusements, Inc. and CBS Corporation.
10.3. Letter Agreement, dated as of September 6, 1999, between Viacom Inc.
and Sumner Redstone.
10.4. Letter Agreement, dated as of September 6, 1999, between Viacom Inc.
and Mel Karmazin.
10.5. Agreement, dated as of September 6, 1999, between Viacom Inc. and
Philippe Dauman.
10.6. Agreement, dated as of September 6, 1999, between Viacom Inc. and
Thomas Dooley.
99.1. Joint Press Release issued by Viacom Inc. and CBS Corporation on
September 7, 1999.
<PAGE>
SIGNATURES
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: September 7, 1999 /s/ MICHAEL D. FRICKLAS
----------------------------------------
Name: Michael D. Fricklas
Title: Senior Vice President, General
Counsel and Secretary
================================================================================
AGREEMENT AND PLAN OF MERGER
Between
VIACOM INC.
and
CBS CORPORATION
Dated as of September 6, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
Section Page
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ARTICLE I
THE MERGER
1.01. The Merger............................................................2
1.02. Effective Time; Closing...............................................2
1.03. Effect of the Merger..................................................2
1.04. Certificate of Incorporation and By-Laws..............................2
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
2.01. Conversion of Securities..............................................3
2.02. Exchange of Certificates..............................................4
2.03. Stock Transfer Books..................................................6
2.04. Stock Options and Other Stock Plans...................................7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CBS
3.01. Organization and Qualification; Subsidiaries..........................8
3.02. Certificate of Incorporation and By-Laws..............................8
3.03. Capitalization........................................................9
3.04. Authority Relative to Agreement.......................................9
3.05. No Conflict; Required Filings and Consents...........................10
3.06. Permits and Licenses; Contracts......................................11
3.07. SEC Filings; Financial Statements....................................12
3.08. Absence of Certain Changes or Events.................................13
3.09. Absence of Litigation................................................13
3.10. Employee Benefit Plans...............................................13
3.11. Labor Matters........................................................15
3.12. Environmental Matters................................................15
3.13. Trademarks, Patents and Copyrights...................................16
3.14. Taxes................................................................17
3.15. Tax Matters..........................................................17
3.16. Year 2000 Compliance.................................................17
3.17. Opinion of Financial Advisors........................................18
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Section Page
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3.18. Vote Required........................................................18
3.19. Brokers..............................................................18
3.20. Pennsylvania Law.....................................................18
3.21. Rights Agreement.....................................................19
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF VIACOM
4.01. Organization and Qualification; Subsidiaries.........................19
4.02. Certificate of Incorporation and By-Laws.............................20
4.03. Capitalization.......................................................20
4.04. Authority Relative to Agreement......................................21
4.05. No Conflict; Required Filings and Consents...........................21
4.06. Permits and Licenses; Contracts......................................22
4.07. SEC Filings; Financial Statements....................................23
4.08. Absence of Certain Changes or Events.................................24
4.09. Absence of Litigation................................................24
4.10. Employee Benefit Plans...............................................24
4.11. Labor Matters........................................................26
4.12. Environmental Matters................................................26
4.13. Trademarks, Patents and Copyrights...................................27
4.14. Taxes................................................................27
4.15. Tax Matters..........................................................28
4.16. Year 2000 Compliance.................................................28
4.17. Opinion of Financial Advisors........................................28
4.18. Vote Required........................................................29
4.19. Section 203 of Delaware Law..........................................29
4.20. Brokers..............................................................29
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
5.01. Conduct of Business by CBS Pending the Merger........................29
5.02. Conduct of Business by Viacom Pending the Merger.....................32
5.03. Other Actions........................................................35
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iii
Section Page
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ARTICLE VI
ADDITIONAL AGREEMENTS
6.01. Registration Statement; Joint Proxy Statement........................35
6.02. Stockholders' Meetings...............................................38
6.03. Appropriate Action; Consents; Filings................................38
6.04. Access to Information; Confidentiality...............................39
6.05. No Solicitation of Competing Transactions............................40
6.06. Directors' and Officers' Indemnification and Insurance...............41
6.07. Notification of Certain Matters......................................42
6.08. Tax Treatment........................................................42
6.09. Stock Exchange Listing...............................................42
6.10. Public Announcements.................................................43
6.11. Viacom's Directors...................................................43
6.12. Rights Agreement.....................................................43
6.13. Assumption of Debt and Leases........................................43
6.14. Affiliates of CBS....................................................44
6.15. Prior Service........................................................44
6.16. Employee Matters.....................................................44
ARTICLE VII
CONDITIONS TO THE MERGER
7.01. Conditions to the Obligations of Each Party..........................45
7.02. Conditions to the Obligations of Viacom..............................46
7.03. Conditions to the Obligations of CBS.................................46
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.01. Termination..........................................................47
8.02. Effect of Termination................................................48
8.03. Amendment............................................................48
8.04. Waiver...............................................................48
8.05. Expenses.............................................................49
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iv
Section Page
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ARTICLE IX
GENERAL PROVISIONS
9.01. Non-Survival of Representations, Warranties and Agreements...........50
9.02. Notices..............................................................50
9.03. Interpretation, Certain Definitions..................................51
9.04. Severability.........................................................53
9.05. Entire Agreement; Assignment.........................................53
9.06. Parties in Interest..................................................53
9.07. Specific Performance.................................................53
9.08. Governing Law........................................................54
9.09. Consent to Jurisdiction..............................................54
9.10. Counterparts.........................................................54
9.11. WAIVER OF JURY TRIAL.................................................54
EXHIBITS
Exhibit A-1 Restated Certificate of Incorporation
Exhibit A-2 By-laws
Exhibit 6.14. Form of CBS Affiliate Letter
<PAGE>
Index of Defined Terms
Defined Term Location of Definition
- ------------ ----------------------
affiliate.......................................................Section 9.03(a)
Agreement.......................................................Recitals
Articles of Merger..............................................Section 1.02
Blockbuster.....................................................Section 4.02
Blockbuster Options.............................................Section 4.03
beneficial owner................................................Section 9.03(b)
Blue Sky Laws...................................................Section 3.05(b)
business day....................................................Section 9.03(c)
CBS.............................................................Recitals
CBS Alternative Transaction Fee.................................Section 8.05(b)
CBS Benefit Plans...............................................Section 3.10(a)
CBS Common Stock................................................Section 2.01(a)
CBS Disclosure Schedule.........................................Article III
CBS FCC Licenses................................................Section 3.06(c)
CBS Financial Advisor...........................................Section 3.17
CBS Indentures..................................................Section 6.13(a)
CBS Licensed Facilities.........................................Section 3.06(c)
CBS Material Adverse Effect.....................................Section 3.01
CBS Options.....................................................Section 2.04(a)
CBS Permits.....................................................Section 3.06(a)
CBS Preferred Stock.............................................Section 3.03
CBS Rights Agreement............................................Section 3.03
CBS SEC Reports.................................................Section 3.07(a)
CBS Stock Option Plans..........................................Section 2.04(a)
CBS Superior Proposal...........................................Section 6.05(c)
CBS Systems.....................................................Section 3.16(b)
CBS Year 2000 Compliant.........................................Section 3.16(b)
CBS Year 2000 Plan..............................................Section 3.16(a)
CERCLA..........................................................Section 3.12(d)
Certificate of Merger...........................................Section 1.02
Certificates....................................................Section 2.02(b)
Closing.........................................................Section 1.02
Closing Date....................................................Section 1.02
Code............................................................Recitals
Communications Act..............................................Section 3.05(b)
Competing Transaction...........................................Section 6.05(b)
Confidentiality Agreement.......................................Section 6.04(c)
Continuing Employees............................................Section 6.15
control.........................................................Section 9.03(d)
controlled by...................................................Section 9.03(d)
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ii
Defined Term Location of Definition
- ------------ ----------------------
Delaware Law....................................................Recitals
Effective Time..................................................Section 1.02
Environmental Laws..............................................Section 3.12(d)
Environmental Permits...........................................Section 3.12(d)
ERISA...........................................................Section 3.10(a)
Exchange Act....................................................Section 2.04(c)
Exchange Agent..................................................Section 2.02(a)
Exchange Fund...................................................Section 2.02(a)
Exchange Ratio..................................................Section 2.01(a)
Expenses........................................................Section 8.05(a)
FCC.............................................................Section 3.05(b)
Governmental Authority..........................................Section 9.03(e)
Hazardous Materials.............................................Section 3.12(d)
HSR Act.........................................................Section 3.05(b)
Infinity........................................................Section 3.02
IRS.............................................................Section 3.10(a)
King World......................................................Section 3.03
knowledge.......................................................Section 9.03(f)
Laws............................................................Section 3.05(a)
Merger..........................................................Recitals
NYSE............................................................Section 3.03
Order...........................................................Section 6.03(b)
Parent..........................................................Recitals
Parent Stockholder Agreement....................................Recitals
Parent Voting Agreements........................................Recitals
Pending Transactions............................................Section 5.01
Pennsylvania Law................................................Recitals
person..........................................................Section 9.03(g)
Proxy Statement.................................................Section 6.01(a)
Registration Statement..........................................Section 6.01(a)
Representatives.................................................Section 6.04(a)
Rights..........................................................Section 3.03
SEC.............................................................Article III
Securities Act..................................................Section 3.05(b)
Shares..........................................................Section 2.01(a)
Split-off.......................................................Section 5.02
Stockholders' Meeting...........................................Section 6.02
subsidiaries....................................................Section 9.03(h)
subsidiary......................................................Section 9.03(h)
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iii
Defined Term Location of Definition
- ------------ ----------------------
Substituted Option..............................................Section 2.04(a)
Surviving Corporation...........................................Section 1.01
Tax.............................................................Section 3.14(a)
Taxes...........................................................Section 3.14(a)
Terminating CBS Breach..........................................Section 8.01(f)
Terminating Viacom Breach.......................................Section 8.01(e)
under common control with.......................................Section 9.03(d)
Viacom..........................................................Recitals
Viacom Benefit Plans............................................Section 4.10(a)
Viacom Class A Common Stock.....................................Recitals
Viacom Class B Common Stock.....................................Recitals
Viacom Disclosure Schedule......................................Article IV
Viacom Employee Arrangements....................................Section 6.16(a)
Viacom FCC Licenses.............................................Section 4.06(c)
Viacom Financial Advisor........................................Section 4.17
Viacom Licensed Facilities......................................Section 4.06(c)
Viacom Material Adverse Effect..................................Section 4.01
Viacom Options..................................................Section 4.03
Viacom Permits..................................................Section 4.06(a)
Viacom Preferred Stock..........................................Section 4.03
Viacom Proposals................................................Recitals
Viacom SEC Reports..............................................Section 4.07(a)
Viacom Stock Option Plans.......................................Section 4.03
Viacom Systems..................................................Section 4.16(b)
Viacom Year 2000 Compliant......................................Section 4.16(b)
Viacom Year 2000 Plan...........................................Section 4.16(a)
<PAGE>
AGREEMENT AND PLAN OF MERGER dated as of September 6, 1999
(this "Agreement") between VIACOM INC., a Delaware corporation ("Viacom"), and
CBS CORPORATION, a Pennsylvania corporation ("CBS").
WHEREAS, the Boards of Directors of CBS and Viacom have
determined that it is in the best interests of their respective companies and
stockholders to combine their respective businesses in a "merger of equals"
transaction to be effected as set forth in this Agreement;
WHEREAS, the Board of Directors of CBS has (i) determined that
the merger of CBS with and into Viacom on the terms set forth in this Agreement
(the "Merger") pursuant to the General Corporation Law of the State of Delaware
("Delaware Law") and the Business Corporation Law of the Commonwealth of
Pennsylvania ("Pennsylvania Law") is fair to CBS and the holders of Shares (as
defined in Section 2.01) and is in the best interests of CBS and (ii) approved
this Agreement, the Merger and the other transactions contemplated hereby and
has recommended that the shareholders of CBS adopt this Agreement;
WHEREAS, the Board of Directors of Viacom has determined that
the Merger is fair to, and in the best interests of, Viacom and its stockholders
and has approved and determined to be advisable this Agreement, the Merger and
the other transactions contemplated hereby and has recommended that the holders
of the Class A Common Stock, par value $.01 per share, of Viacom (the "Viacom
Class A Common Stock") (i) approve the issuance of Class B Common Stock, par
value $.01 per share, of Viacom (the "Viacom Class B Common Stock") in the
Merger and (ii) approve the amendment to the Restated Certificate of
Incorporation as set forth in this Agreement, (iii) approve the Merger and (iv)
adopt this Agreement (together, the "Viacom Proposals");
WHEREAS, concurrently with the execution of this Agreement and
as an inducement to CBS to enter into this Agreement, National Amusements, Inc.,
a Maryland corporation and the holder of a majority of the shares of Class A
Common Stock ("Parent"), and CBS have entered into (i) a Stockholder Agreement
(the "Parent Stockholder Agreement") pursuant to which Parent has agreed, among
other things, to cause the election of eight members of the Board of Directors
of Viacom designated by CBS for a period of three years following the Merger and
(ii) a Voting Agreement (together with the Parent Stockholder Agreement, the
"Parent Voting Agreements") pursuant to which Parent has agreed, among other
things, to vote its shares of Viacom Class A Common Stock in favor of adoption
of this Agreement and the other transactions contemplated by this Agreement and
to take certain other actions in support of the Merger;
WHEREAS, for Federal income tax purposes, it is intended that
the Merger shall qualify as a reorganization under the provisions of Section
368(a) of the United States Internal Revenue Code of 1986, as amended (the
"Code");
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2
WHEREAS, as an inducement to Viacom to enter into this
Agreement, concurrently with the execution and delivery of this Agreement, Mel
Karmazin is entering into an employment agreement with Viacom, to be effective
at the Effective Time (as defined below);
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained and intending to be legally
bound hereby, Viacom and CBS hereby agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01. The Merger. Upon the terms and subject to the
conditions set forth in Article VII, and in accordance with Section 252 of
Delaware Law and Section 1921 of Pennsylvania Law, at the Effective Time CBS
shall be merged with and into Viacom. As a result of the Merger, the separate
corporate existence of CBS shall cease and Viacom shall be the surviving
corporation of the Merger (the "Surviving Corporation").
SECTION 1.02. Effective Time; Closing. The closing of the
Merger (the "Closing") shall take place on the first business day after the
satisfaction or, if permissible, waiver of the conditions set forth in Article
VII (such date, the "Closing Date"). On the Closing Date, the parties hereto
shall cause the Merger to be consummated by filing (a) a certificate of merger
(the "Certificate of Merger") with the Secretary of State of the State of
Delaware, in such form as is required by, and executed and acknowledged in
accordance with, Section 252 of Delaware Law and (b) articles of merger (the
"Articles of Merger") with the Department of State of the Commonwealth of
Pennsylvania, in such form as is required by, and executed in accordance with,
Section 1927 of Pennsylvania Law. The term "Effective Time" means the date and
time of the filing of the Certificate of Merger with the Secretary of State of
the State of Delaware (or such later time as may be agreed by the parties hereto
and specified in the Certificate of Merger). The Closing will be held at the
offices of Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022
(or such other place as the parties may agree).
SECTION 1.03. Effect of the Merger. At the Effective Time, the
effect of the Merger shall be as provided in the applicable provisions of
Delaware Law and Pennsylvania Law. Without limiting the generality of the
foregoing, at the Effective Time all the property, rights, privileges, powers
and franchises of CBS shall vest in the Surviving Corporation and all debts,
liabilities, obligations, restrictions, disabilities and duties of CBS shall
become the debts, liabilities, obligations, restrictions, disabilities and
duties of the Surviving Corporation.
SECTION 1.04. Certificate of Incorporation and By-Laws. (a)
The Restated Certificate of Incorporation of Viacom, as in effect immediately
prior to the Effective Time, shall
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3
be amended as of the Effective Time to be and read in its entirety in the form
set forth as Exhibit A-1 and, as so amended, such Restated Certificate of
Incorporation shall be the certificate of incorporation of the Surviving
Corporation until thereafter changed or amended as provided therein or by
applicable law.
(b) The By-laws of Viacom, as in effect immediately prior to
the Effective Time, shall be amended as of the Effective Time so as to read in
their entirety in the form set forth as Exhibit A-2 and, as so amended, such
By-laws shall be the by-laws of the Surviving Corporation until thereafter
changed or amended as provided therein or by applicable law.
ARTICLE II
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
SECTION 2.01. Conversion of Securities. At the Effective Time,
by virtue of the Merger and without any action on the part of Viacom, CBS or the
holders of any of the following securities:
(a) Each share of common stock, par value $1.00 per share, of
CBS ("CBS Common Stock"; all issued and outstanding shares of CBS
Common Stock being hereinafter collectively referred to as the
"Shares") issued and outstanding immediately prior to the Effective
Time (other than any Shares to be cancelled or converted pursuant to
Section 2.01(b)) shall be converted, subject to Section 2.02(e), into
the right to receive 1.085 shares (the "Exchange Ratio") of Viacom
Class B Common Stock.
(b) Each Share held in the treasury of CBS and each Share
owned by Viacom immediately prior to the Effective Time shall be
cancelled and extinguished without any conversion thereof and no
payment shall be made with respect thereto, and each Share owned by any
direct or indirect wholly owned subsidiary of Viacom or CBS (other than
Shares held by benefit plans or trusts (including Rabbi trusts))
immediately prior to the Effective Time shall be converted into the
right to receive a number of shares of Viacom Class B Common Stock
equal to the Exchange Ratio.
(c) If, prior to the Effective Time (and as permitted by
Sections 5.01 and/or 5.02), the outstanding Shares or shares of Viacom
Class B Common Stock shall have been increased, decreased, changed into
or exchanged for a different number or class of shares or securities as
a result of a reorganization, recapitalization, reclassification, stock
dividend, stock split, reverse stock split, combination or exchange of
shares or other similar change in capitalization, then an appropriate
and proportionate adjustment shall be made to the Exchange Ratio.
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4
SECTION 2.02. Exchange of Certificates. (a) Exchange Agent.
Viacom shall deposit, or shall cause to be deposited, with such bank or trust
company designated by Viacom and reasonably acceptable to CBS (the "Exchange
Agent"), for the benefit of the holders of Shares, for exchange in accordance
with this Article II through the Exchange Agent, certificates representing the
shares of Viacom Class B Common Stock (such certificates for shares of Viacom
Class B Common Stock, together with any dividends or distributions with respect
thereto and any cash in lieu of fractional shares of Viacom Class B Common Stock
payable pursuant to Section 2.02(e), being hereinafter referred to as the
"Exchange Fund") issuable pursuant to Section 2.01 in exchange for outstanding
Shares. The Exchange Agent shall, pursuant to irrevocable instructions, deliver
the Viacom Class B Common Stock contemplated to be issued pursuant to Section
2.01 out of the Exchange Fund. Except as contemplated by Section 2.02(f) hereof,
the Exchange Fund shall not be used for any other purpose.
(b) Exchange Procedures. As promptly as practicable after the
Effective Time, Viacom shall cause the Exchange Agent to mail to each holder of
a certificate or certificates which immediately prior to the Effective Time
represented outstanding Shares (the "Certificates") (i) a letter of transmittal
(which shall specify that delivery shall be effected, and risk of loss and title
to the Certificates shall pass, only upon proper delivery of the Certificates to
the Exchange Agent, and shall be in customary form) and (ii) instructions for
use in effecting the surrender of the Certificates in exchange for certificates
representing whole shares of Viacom Class B Common Stock, together with any
dividends or distribution with respect thereto and any cash in lieu of
fractional shares. Upon surrender to the Exchange Agent of a Certificate for
exchange and cancellation, together with such letter of transmittal, duly
executed, and such other documents as may be required pursuant to such
instructions, the holder of such Certificate shall be entitled to receive in
exchange therefor a certificate representing that number of whole shares of
Viacom Class B Common Stock which such holder has the right to receive in
respect of the Shares formerly represented by such Certificate (after taking
into account all Shares then held by such holder), cash in lieu of fractional
shares of Viacom Class B Common Stock to which such holder is entitled pursuant
to Section 2.02(e) and any dividends or other distributions to which such holder
is entitled pursuant to Section 2.02(c), and the Certificate so surrendered
shall forthwith be cancelled. In the event of a transfer of ownership of Shares
that is not registered in the transfer records of CBS, a certificate
representing the proper number of shares of Viacom Class B Common Stock may be
issued to a transferee if the Certificate representing such Shares is presented
to the Exchange Agent, accompanied by all documents required to evidence and
effect such transfer and by evidence that any applicable stock transfer taxes
have been paid. Until surrendered as contemplated by this Section 2.02, each
Certificate shall be deemed at any time after the Effective Time to represent
only the right to receive upon such surrender the certificate representing
shares of Viacom Class B Common Stock, cash in lieu of any fractional shares of
Viacom Class B Common Stock to which such holder is entitled pursuant to Section
2.02(e) and any dividends or other distributions to which such holder is
entitled pursuant to Section 2.02(c).
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5
(c) Distributions with Respect to Unexchanged Shares of Viacom
Class B Common Stock. No dividends or other distributions with a record date
after the Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of Viacom Class B Common Stock
represented thereby, and no cash payment in lieu of fractional shares shall be
paid to any such holder pursuant to Section 2.02(e), until the holder of such
Certificate shall surrender such Certificate. Subject to the effect of escheat,
Tax (as defined in Section 3.14) or other applicable Laws (as defined in Section
3.05), following surrender of any such Certificate, there shall be paid to the
record holder thereof, without interest, (i) promptly, the amount of any cash
payable with respect to a fractional share of Viacom Class B Common Stock to
which such holder is entitled pursuant to Section 2.02(e) and the amount of
dividends or other distributions with a record date after the Effective Time and
theretofore paid with respect to such whole shares of Viacom Class B Common
Stock, and (ii) at the appropriate payment date, the amount of dividends or
other distributions with a record date after the Effective Time and a payment
date occurring after surrender, payable with respect to such whole shares of
Viacom Class B Common Stock.
(d) No Further Rights in CBS Common Stock. All shares of
Viacom Class B Common Stock issued upon conversion of the Shares in accordance
with the terms hereof (including any cash paid pursuant to Sections 2.02(c) or
(e)) shall be deemed to have been issued in full satisfaction of all rights
pertaining to such Shares.
(e) No Fractional Shares. No certificates or scrip
representing fractional shares of Viacom Class B Common Stock shall be issued
upon the surrender for exchange of Certificates, and such fractional share
interests will not entitle the owner thereof to vote or to any other rights of a
stockholder of Viacom. Each holder of a fractional share interest shall be paid
an amount in cash equal to the product obtained by multiplying (i) such
fractional share interest to which such holder (determined after taking into
account all fractional share interests then held by such holder) would otherwise
be entitled by (ii) the closing price for a share of Viacom Class B Common Stock
on the Consolidated Tape, Network A, as reported in The Wall Street Journal
(Northeast edition) or any other authoritative source on the first trading day
immediately following the Effective Time. From time to time after the Effective
Time, as promptly as practicable after the determination of the amount of cash,
if any, to be paid to any holders of fractional share interests who have
surrendered their Certificates to the Exchange Agent, the Exchange Agent shall
so notify Viacom, and Viacom shall deposit such amount with the Exchange Agent
and shall cause the Exchange Agent to forward payments to such holder of
fractional share interests subject to and in accordance with the terms of
Sections 2.02(b) and (c).
(f) Termination of Exchange Fund. Any portion of the Exchange
Fund which remains undistributed to the holders of CBS Common Stock for six (6)
months after the Effective Time shall be delivered to Viacom, upon demand, and
any holders of CBS Common Stock who have not theretofore complied with this
Article II shall thereafter look only to Viacom for the shares of Viacom Class B
Common Stock, any cash in lieu of fractional shares of Viacom Class
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6
B Common Stock to which they are entitled pursuant to Section 2.02(e) and any
dividends or other distributions with respect to Viacom Class B Common Stock to
which they are entitled pursuant to Section 2.02(c). Any portion of the Exchange
Fund remaining unclaimed by holders of Shares as of a date which is immediately
prior to such time as such amounts would otherwise escheat to or become property
of any government entity shall, to the extent permitted by applicable Law,
become the property of Viacom free and clear of any claims or interest of any
person previously entitled thereto.
(g) No Liability. Neither Viacom nor CBS shall be liable to
any holder of Shares for any such Shares (or dividends or distributions with
respect hereto) or cash delivered to a public official pursuant to any abandoned
property, escheat or similar Law.
(h) Lost, Stolen or Destroyed Certificates. In the event that
any Certificate has been lost, stolen or destroyed, upon the making of an
affidavit of that fact by the person claiming such Certificate to be lost,
stolen or destroyed and, if required by Viacom, the posting by such person of a
bond in such reasonable amount as Viacom may direct as indemnity against any
claim that may be made against it with respect to such Certificate, Viacom will,
in exchange for such lost, stolen or destroyed Certificate, issue or cause to be
issued the number of whole shares of Viacom Common Stock and pay or cause to be
paid the amounts deliverable in respect thereof pursuant to Section 2.02(e) and
2.02(c).
(i) Withholding Rights. Viacom shall be entitled to deduct and
withhold from the consideration otherwise payable pursuant to this Agreement to
any holder of Shares such amounts as it is required to deduct and withhold with
respect to the making of such payment under the Code, or any provision of state,
local or foreign Tax Law. To the extent that amounts are so withheld by Viacom,
such withheld amounts shall be treated for all purposes of this Agreement as
having been paid to the holder of the Shares in respect of which such deduction
and withholding was made by Viacom.
SECTION 2.03. Stock Transfer Books. At the Effective Time, the
stock transfer books of CBS shall be closed and there shall be no further
registration of transfers of Shares thereafter on the records of CBS. From and
after the Effective Time, the holders of Certificates shall cease to have any
rights with respect to such Shares except as otherwise provided herein or by any
Laws. On or after the Effective Time, any Certificates presented to the Exchange
Agent or Viacom for any reason shall be converted into shares of Viacom Class B
Common Stock, any cash in lieu of fractional shares of Viacom Class B Common
Stock to which the holders thereof are entitled pursuant to Section 2.02(e) and
any dividends or other distributions to which the holders thereof are entitled
pursuant to Section 2.02(c).
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7
SECTION 2.04. Stock Options and Other Stock Plans. (a) Prior
to the Effective Time, Viacom and CBS shall take such action as may be necessary
to cause each unexpired and unexercised option or warrant to purchase Shares
which are outstanding immediately prior to the Effective Time (collectively,
"CBS Options"), whether granted under CBS's stock option plans set forth in
Section 2.04 of the CBS Disclosure Schedule (as defined below) or otherwise, to
be automatically converted at the Effective Time into an option or warrant
(collectively, a "Substituted Option") to purchase a number of shares of Viacom
Class B Common Stock equal to the number of Shares that could have been
purchased (assuming full vesting) under such CBS Option multiplied by the
Exchange Ratio (rounded to the nearest whole number of shares of Viacom Class B
Common Stock) at a price per share of Viacom Class B Common Stock equal to the
per-share option exercise price specified in the CBS Option divided by the
Exchange Ratio (rounded down to the nearest whole cent). Except as otherwise
provided in this Agreement, such Substituted Option shall otherwise be subject
to the same terms and conditions as such CBS Option (except that all vesting
periods with respect thereto shall, to the extent provided by the terms thereof,
accelerate, and be subject to any other rights which arise under the CBS Stock
Option Plans or the option agreements evidencing awards thereunder as a result
of the transactions contemplated by this Agreement). The date of grant of the
Substituted Option shall be the date on which the corresponding CBS Option was
granted. At the Effective Time, (i) all references in the related stock option
agreements to CBS shall be deemed to refer to Viacom and (ii) Viacom shall
assume all of CBS's obligations with respect to CBS Options as so amended. As
promptly as reasonably practicable after the Effective Time, Viacom shall issue
to each holder of an outstanding CBS Option a document evidencing the foregoing
assumption by Viacom. Employee and director deferrals and director common stock
equivalents and all other equity based compensation that references CBS Common
Stock will as of and after the Effective Time, be deemed to refer to Viacom
Class B Common Stock (as adjusted to reflect the Exchange Ratio).
(b) In respect of each CBS Option assumed by Viacom, and the
shares of Viacom Class B Common Stock underlying such CBS Option, Viacom shall,
no later than one Business Day after the Effective Time, file and keep current a
Form S-8 or other appropriate registration statement for as long as any
Substituted Options remain outstanding.
(c) Prior to the Effective Time, Viacom and CBS shall take all
steps reasonably necessary to cause the transactions contemplated hereby and any
other dispositions of equity securities of CBS (including derivative securities)
or acquisitions of Viacom equity securities (including derivative securities) in
connection with this Agreement by each individual who (a) is a director or
officer of Viacom or (b) at the Effective Time, will become a director or
officer of Viacom, to be exempt under Rule 16b-3 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
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8
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF CBS
Except as disclosed in the report on Form 10-K dated March 24,
1999 for the year ended December 31, 1998, the Reports on Form 10-K/A, Form
10-Q, Form 10-Q/A and Form 8-K since December 31, 1998 or the proxy statement
dated March 25, 1999, in each case in the form filed by CBS with the United
States Securities and Exchange Commission (the "SEC") or in a separate
disclosure schedule which has been delivered by CBS to Viacom prior to the
execution of this Agreement (the "CBS Disclosure Schedule") (each section of
which qualifies the correspondingly numbered representation and warranty or
covenant to the extent specified therein and such other representations and
warranties or covenants to the extent a matter in such section is disclosed in
such a way as to make its relevance to the information called for by such other
representation and warranty or covenant readily apparent), CBS hereby represents
and warrants to Viacom:
SECTION 3.01. Organization and Qualification; Subsidiaries.
Each of CBS and its subsidiaries is a corporation or entity duly incorporated or
formed, validly existing and in good standing under the laws of its jurisdiction
of incorporation or formation and has the requisite corporate power and
authority and all necessary governmental approvals to own, lease and operate its
properties and to carry on its business as it is now being conducted, except
where the failure to have such power, authority and governmental approvals would
not have a CBS Material Adverse Effect (as defined below). Each of CBS and its
subsidiaries is duly qualified or licensed as a foreign corporation to do
business, and is in good standing, in each jurisdiction where the character of
the properties owned, leased or operated by it or the nature of its business
makes such qualification or licensing necessary, except for such failures to be
so qualified or licensed and in good standing that would not have a CBS Material
Adverse Effect. The term "CBS Material Adverse Effect" means any change, effect
or circumstance that is or is reasonably likely to be materially adverse to the
business, results of operations or financial condition of CBS and its
subsidiaries taken as a whole, other than any change, effect or circumstance
relating to or resulting from (i) general changes in the media or entertainment
industries or the advertising markets, (ii) changes in general economic
conditions or securities markets in general or (iii) this Agreement or the
transactions contemplated hereby or the announcement thereof.
SECTION 3.02. Certificate of Incorporation and By-Laws. CBS
has made available to Viacom a complete and correct copy of the Articles of
Incorporation and the Bylaws, each as amended to date, of CBS and Infinity
Broadcasting Corporation, a Delaware corporation ("Infinity"). The Articles of
Incorporation and By-laws (or equivalent organizational documents) of CBS and
its subsidiaries are in full force and effect. Except as would not have a CBS
Material Adverse Effect, none of CBS or its subsidiaries is in violation of any
provision of its Articles of Incorporation or By-laws (or equivalent
organizational documents).
<PAGE>
9
SECTION 3.03. Capitalization. The authorized capital stock of
CBS consists of 1,100,000,000 Shares and 25,000,000 shares of preferred stock,
par value $1.00 per share (the "CBS Preferred Stock"). As of August 31, 1999,
(a) 705,119,425 Shares were issued and outstanding, all of which were validly
issued, fully paid and nonassessable, (b) 40,099,599 Shares were held in the
treasury of CBS, (c) 51,007,538 Shares were reserved for future issuance
pursuant to outstanding unexercised employee stock options granted pursuant to
the CBS stock option plans or otherwise and (d) 70,365,195 Shares were reserved
for future issuance in connection with the merger of a wholly owned subsidiary
of CBS with and into King World Productions, Inc. ("King World") and 9,910,600
(or some equivalent amount of CBS Preferred Stock, if appropriate), measured at
the September 3, 1999 New York Stock Exchange (the "NYSE") Closing Price, were
reserved for future issuance in connection with the acquisition from Gaylord
Entertainment Company of television station KVTV, Dallas/Fort Worth, Texas. As
of the date of this Agreement, no shares of CBS Preferred Stock are outstanding.
As of the date of this Agreement, except for the issuance of Shares pursuant to
the exercise of CBS Options and options to purchase 5,850,555 shares of Class A
Common Stock, par value $0.01 per share, of Infinity, outstanding prior to
August 31, 1999, no shares of capital stock of CBS or any of its subsidiaries
have been issued since August 31, 1999. Except as set forth in this Section
3.03, and except for the Series A participating preferred stock purchase rights
of CBS (the "Rights") issued pursuant to the Rights Agreement, dated as of
December 28, 1995, between CBS and First Chicago Trust Company of New York (the
"CBS Rights Agreement"), as of the date of this Agreement there are no options,
warrants or other rights, agreements (including registration rights agreements),
arrangements or commitments of any character relating to the issued or unissued
capital stock of CBS or any of its subsidiaries or obligating CBS or any of its
subsidiaries to issue or sell any shares of capital stock of, or other equity
interests in, CBS or any of its subsidiaries. All shares of capital stock of CBS
and its subsidiaries subject to issuance as aforesaid, upon issuance on the
terms and conditions specified in the instruments pursuant to which they are
issuable, will be duly authorized, validly issued, fully paid and nonassessable.
As of the date of this Agreement, there are no outstanding contractual material
obligations of CBS or any subsidiary to repurchase, redeem or otherwise acquire
any shares of capital stock of CBS or any of its subsidiaries or to provide
material funds to, or make any material investment (in the form of a loan
capital contribution or otherwise) in, any person.
SECTION 3.04. Authority Relative to Agreement. CBS has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the Merger and the other
transactions contemplated hereby. The execution and delivery of this Agreement
by CBS and the consummation by CBS of the Merger and the other transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of CBS are
necessary to authorize the execution and delivery of this Agreement or to
consummate the Merger and the other transactions contemplated hereby (other
than, with respect to the Merger, the adoption of this Agreement by the
affirmative vote of a majority of the votes cast by all shareholders entitled to
vote at the CBS Stockholders' Meeting (as defined in Section 6.02) and the
filing and
<PAGE>
10
recordation of appropriate merger documents as required by Pennsylvania Law).
This Agreement has been duly and validly executed and delivered by CBS and,
assuming the due authorization, execution and delivery by Viacom, this Agreement
constitutes a legal, valid and binding obligation of CBS, enforceable against
CBS in accordance with its terms.
SECTION 3.05. No Conflict; Required Filings and Consents. (a)
The execution and delivery of this Agreement by CBS does not, and the
performance of this Agreement by CBS will not, (i) conflict with or violate the
Articles of Incorporation or By-laws of (A) CBS or Infinity or (B) any of its
other subsidiaries, (ii) assuming the consents, approvals, authorizations and
waivers specified in Section 3.05(b) have been received and the waiting periods
referred to therein have expired, and any condition precedent to such consent,
approval, authorization, or waiver has been satisfied, conflict with or violate
any domestic (federal, state or local) or foreign law, rule, regulation, order,
judgment or decree (collectively, "Laws") applicable to CBS or any of its
subsidiaries or by which any property or asset of CBS or any of its subsidiaries
is bound or affected or (iii) result in any breach of or constitute a default
(or an event which with notice or lapse of time or both would become a default)
under, or give to others any right of termination, amendment, acceleration, or
cancellation of, or result in the creation of a lien or other encumbrance on any
property or asset of CBS or any of its subsidiaries pursuant to, any note, bond,
mortgage, indenture or credit agreement, or, to CBS's knowledge as of the date
of this Agreement, any other contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which CBS or any of its
subsidiaries is a party or by which CBS or any of its subsidiaries or any
property or asset of CBS or any of its subsidiaries is bound or affected,
except, in the case of clauses (i)(B), (ii) and (iii), for any such conflicts,
violations, breaches, defaults or other occurrences of the type referred to
above which would not have a CBS Material Adverse Effect or would not prevent or
materially delay the consummation of the Merger; provided, however, that for
purposes of this Section 3.05(a), the definition of CBS Material Adverse Effect
shall be read so as not to include clause (iii) of the definition thereof.
(b) The execution and delivery of this Agreement by CBS do
not, and the performance of this Agreement by CBS will not, require any consent,
approval, authorization, waiver or permit of, or filing with or notification to,
any governmental or regulatory authority, domestic, foreign or supranational,
except for applicable requirements of the Exchange Act, the Securities Act of
1933, as amended (the "Securities Act"), state securities or "blue sky" laws
("Blue Sky Laws"), the pre-merger notification arrangements of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules
and regulations thereunder (the "HSR Act"), such filings, approvals and waivers
of the Federal Communications Commission or any successor entity (the "FCC") as
may be required under the Communications Act of 1934, as amended, and the rules,
regulations and of the FCC thereunder (collectively, the "Communications Act"),
applicable requirements of the Investment Canada Act of 1985 and the Competition
Act (Canada), any other non-United States competition, antitrust and investment
law, filing and recordation of appropriate merger documents as required by
Delaware Law and Pennsylvania Law and the rules of the NYSE and except where
failure to obtain such consents,
<PAGE>
11
approvals, authorizations or permits, or to make such filings or notifications,
would not have a CBS Material Adverse Effect or would not prevent or materially
delay the consummation of the Merger; provided, however, that for purposes of
this Section 3.05(b), the definition of CBS Material Adverse Effect shall be
read so as not to include clause (iii) of the definition thereof.
SECTION 3.06. Permits and Licenses; Contracts. (a) Each of CBS
and its subsidiaries is in possession of all franchises, grants, authorizations,
licenses, permits, easements, variances, exceptions, consents, certificates,
approvals and orders necessary for CBS or any of its subsidiaries to own, lease
and operate the properties of CBS and its subsidiaries or to carry on their
business as it is now being conducted and contemplated to be conducted (the "CBS
Permits"), and no suspension or cancellation of any of the CBS Permits is
pending or, to the knowledge of CBS, threatened, except where the failure to
have, or the suspension or cancellation of, any of the CBS Permits would not
have a CBS Material Adverse Effect. None of CBS or any of its subsidiaries is in
conflict with, or in default or violation of, (i) any Laws applicable to CBS or
any of its subsidiaries or by which any property or asset of CBS or any of its
subsidiaries is bound or affected, (ii) any of the CBS Permits or (iii) any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which CBS or any of its
subsidiaries is a party or by which CBS or any of its subsidiaries or any
property or asset of CBS or any of its subsidiaries is bound or affected, except
for any such conflicts, defaults or violations that would not have a CBS
Material Adverse Effect.
(b) Except as would not have a CBS Material Adverse Effect,
and to the knowledge of CBS, except as would not have a material adverse effect
on the Surviving Corporation following the Effective Time, none of CBS or any of
its subsidiaries is a party to any contracts or agreements that limits the
ability of CBS or any of its subsidiaries or, after the Effective Time, Viacom
or any of its subsidiaries, to compete in any line of business or with any
person or engage in any business in any geographic area, in each case except for
competition in businesses that neither CBS nor Viacom are currently engaged in
or will reasonably foreseeably engage in.
(c) CBS and its subsidiaries have operated the radio and
television stations and associated facilities for which CBS or any of its
subsidiaries holds licenses from the FCC, in each case which are owned or
operated by CBS and its subsidiaries (the "CBS Licensed Facilities"), in
material compliance with the terms of the CBS Permits issued by the FCC to CBS
and its subsidiaries ("CBS FCC Licenses"), and in material compliance with the
Communications Act, and CBS and its subsidiaries have timely filed or made all
applications, reports and other disclosures required by the FCC to be filed or
made with respect to the CBS Licensed Facilities and have timely paid all FCC
regulatory fees with respect thereto, in each case except as would not have a
CBS Material Adverse Effect. As of the date hereof, to CBS's knowledge, there is
not now pending or threatened before the FCC any material investigation,
proceeding, notice of violation, order of forfeiture or complaint against CBS or
any of its subsidiaries, relating to any
<PAGE>
12
of the CBS Licensed Facilities or FCC regulated services conducted by CBS that,
if adversely decided, would have a CBS Material Adverse Effect.
SECTION 3.07. SEC Filings; Financial Statements. (a) CBS and
Infinity have filed all forms, reports and documents required to be filed by it
with the SEC from December 31, 1996 to the date of this Agreement, including:
(i) Annual Reports on Form 10-K, (ii) Quarterly Reports on Form 10-Q and (iii)
proxy statements relating to CBS's and Infinity's meetings of shareholders
(whether annual or special) (the forms, reports and other documents referred to
in clauses (i), (ii), (iii) and all other forms, reports and other registration
statements filed by CBS or Infinity with the SEC as of the date of this
Agreement, including all amendments and supplements thereto filed with the SEC
as of the date of this Agreement, above being referred to herein, collectively,
as the "CBS SEC Reports"). The CBS SEC Reports, as well as all forms, reports
and documents to be filed by CBS or Infinity with the SEC after the date hereof
and prior to the Effective Time, (i) were or will be prepared in accordance with
the requirements of the Securities Act, and the Exchange Act, as the case may
be, and the rules and regulations thereunder, (ii) did not at the time they were
filed, or will not at the time they are filed, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading, and (iii) did not at
the time they were filed, or will not at the time they are filed, omit any
documents required to be filed as exhibits thereto. No CBS subsidiary, except
Infinity, is subject to the periodic reporting requirements of the Exchange Act.
(b) Each of the financial statements (including, in each case,
any notes thereto) contained in the CBS SEC Reports and each of the financial
statements to be filed by CBS or Infinity with the SEC after the date hereof and
prior to the Effective Time was or will be prepared in accordance with United
States generally accepted accounting principles applied on a consistent basis
throughout the periods indicated (except as may be indicated in the notes
thereto) and each fairly presented in all material respects or will fairly
present in all material respects the consolidated financial position, results of
operations and cash flows of CBS and its subsidiaries as at the respective dates
thereof and for the respective periods indicated therein in accordance with
generally accepted accounting principles (subject, in the case of unaudited
statements, to normal and recurring year-end adjustments which were not and are
not expected to be material).
(c) Except as and to the extent set forth in the CBS SEC
Reports, CBS and its subsidiaries do not have any liability or obligation of any
nature (whether accrued, absolute, contingent or otherwise) other than
liabilities and obligations which, individually or in the aggregate, would not
have a CBS Material Adverse Effect.
(d) CBS has heretofore furnished to Viacom complete and
correct copies of all material amendments and modifications that have not been
filed by CBS or Infinity with the SEC to all agreements, documents and other
instruments that previously had been filed by CBS or Infinity with the SEC and
are currently in effect.
<PAGE>
13
SECTION 3.08. Absence of Certain Changes or Events. (a) Since
December 31, 1998, except as disclosed in any CBS SEC Report or as contemplated
by this Agreement, there has not been any change, event or circumstance which,
when taken individually or together with all other changes, events or
circumstances, has had or would have a CBS Material Adverse Effect, and (b)
since December 31, 1998 to the date of this Agreement, except as disclosed in
any CBS SEC Report (i) each of CBS and its subsidiaries has conducted its
businesses only in the ordinary course and in a manner consistent with past
practice and (ii) there has not been (A) any material change by CBS or any of
its subsidiaries in its material accounting policies, practices and procedures,
(B) any entry by CBS or any of its subsidiaries into any commitment or
transaction material to CBS and its subsidiaries taken as a whole other than in
the ordinary course of business consistent with past practice, (C) any
declaration, setting aside or payment of any dividend or distribution in respect
of any capital stock of CBS or any of its subsidiaries (other than cash
dividends payable by any wholly owned subsidiary to another subsidiary or CBS),
or (D) any increase in the compensation payable or to become payable to any
corporate officers or heads of divisions of CBS or any of its subsidiaries,
except in the ordinary course of business consistent with past practice.
SECTION 3.09. Absence of Litigation. Except as disclosed in
any CBS SEC Report, there is no claim, action, proceeding or investigation
pending or, to the knowledge of CBS, threatened against CBS or any of its
subsidiaries, or any property or asset of CBS or any of its subsidiaries, before
any court, arbitrator or Governmental Authority, in each case except as would
not have a CBS Material Adverse Effect. As of the date of this Agreement, none
of CBS, any of its subsidiaries nor any property or asset of CBS or any of its
subsidiaries is subject to any order, writ, judgment, injunction, decree,
determination or award imposed by any court, arbitration or Governmental
Authority, in each case except as would not have a CBS Material Adverse Effect.
SECTION 3.10. Employee Benefit Plans. (a) With respect to each
employee benefit plan, program, arrangement and contract (including, without
limitation, any "employee benefit plan", as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")),
maintained or contributed to by CBS or any of its subsidiaries, or with respect
to which CBS or any of its subsidiaries could incur liability under Section 4069
of ERISA, other than multiemployer plans within the meaning of Section 3(37) of
ERISA (the "CBS Benefit Plans"), CBS will provide to Viacom within 15 days of
the date of this Agreement a true and correct copy of (i) the most recent annual
report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ii)
such CBS Benefit Plan, (iii) each trust agreement relating to such CBS Benefit
Plan, (iv) the most recent summary plan description for each CBS Benefit Plan
for which a summary plan description is required, (v) the most recent actuarial
report or valuation relating to a CBS Benefit Plan subject to Title IV of ERISA,
if any, and (vi) the most recent determination letter, if any, issued by the IRS
with respect to any CBS Benefit Plan qualified under Section 401(a) of the Code.
CBS will, promptly following the date of this Agreement, request a copy of each
CBS Benefit Plan that is a multiemployer plan within the meaning of
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14
Section 3(37) of ERISA from the trustees of such multiemployer plan and CBS
shall deliver such copy of the plan to Viacom promptly upon its receipt thereof.
(b) Each CBS Benefit Plan has been administered in accordance
with its terms, and in compliance with applicable laws, except as would not have
a CBS Material Adverse Effect. CBS and its subsidiaries have performed all
obligations required to be performed by them under, are not in any respect in
default under or in violation of, and have no knowledge of any default or
violation by any party to, any CBS Benefit Plans, except as would not have a CBS
Material Adverse Effect. With respect to the CBS Benefit Plans, no event has
occurred and, to the knowledge of CBS, there exists no condition or set of
circumstances, in connection with which CBS or any of its subsidiaries is
reasonably likely to be subject to any liability under the terms of such CBS
Benefit Plans, ERISA, the Code or any other applicable Law except as would not,
individually or in the aggregate, have a CBS Material Adverse Effect. Neither
CBS nor any of its subsidiaries has any actual or contingent liability under
Title IV of ERISA (other than the payment of premiums to the Pension Benefit
Guaranty Corporation), including, without limitation, any liability in
connection with (i) the termination or reorganization of any employee benefit
plan subject to Title IV of ERISA or (ii) the withdrawal from any Multiemployer
Plan or Multiple Employer Plan, and no fact or event exists which is reasonably
likely to give rise to any such liability, in each case except as would not,
individually or in the aggregate, have a CBS Material Adverse Effect.
(c) CBS has made available to Viacom: (i) copies of all
employment agreements with the top five most highly compensated executive
officers of CBS and its subsidiaries; (ii) copies of all material severance
agreements, programs and policies of CBS or any of its subsidiaries with or
relating to its or its subsidiaries' employees; and (iii) copies of all material
plans, programs, agreements and other arrangements of CBS or any of its
subsidiaries with or relating to its or its subsidiaries' employees which
contain change in control provisions. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (i)
result in any payment (including, without limitation, severance, unemployment
compensation, "golden parachute" or otherwise) becoming due to any director,
officer or employee of CBS or any of its subsidiaries from CBS or any of its
affiliates under any CBS Benefit Plan or otherwise, which payment is material in
relation to the compensation previously provided to such individual (other than
payments resulting from a change in responsibilities or reporting obligations of
individual employees), (ii) materially increase any benefits otherwise payable
under any CBS Benefit Plan, which increase is material in relation to the
benefits previously provided or (iii) result in any acceleration of the time of
payment or vesting of any material benefits.
(d) Each CBS Benefit Plan that is intended to be qualified
under Section 401(a) of the Code or Section 401(k) of the Code has timely
received a favorable determination letter from the IRS covering all of the
provisions applicable to the Plan for which determination letters are currently
available that the CBS Benefit Plan is so qualified and each trust established
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15
in connection with any CBS Benefit Plan which is intended to be exempt from
federal income taxation under Section 501(a) of the Code has received a
determination letter from the IRS that it is so exempt, and no fact or event has
occurred since the date of such determination letter or letters from the IRS
which is reasonably likely to adversely affect the qualified status of any such
CBS Benefit Plan or the exempt status of any such trust.
SECTION 3.11. Labor Matters. There is no labor dispute, strike
or work stoppage against CBS or any of its subsidiaries pending or, to the
knowledge of CBS, threatened which would reasonably be expected to interfere
with the respective business activities of CBS or any of its subsidiaries,
except for such disputes, strikes or work stoppages which would not have a CBS
Material Adverse Effect. There is no charge or complaint against CBS or any of
its subsidiaries by the National Labor Relations Board or any comparable state
agency pending or threatened in writing, except for such charges or complaints
(or related unfair labor practices) which would not have a CBS Material Adverse
Effect.
SECTION 3.12. Environmental Matters. Except as would not,
individually or in the aggregate, have a CBS Material Adverse Effect:
(a) CBS and its subsidiaries (i) are in compliance with all,
and are not subject to any asserted liability or, to CBS's knowledge,
any liability (including liability with respect to current or former
subsidiaries or operations), in each case with respect to any,
Environmental Laws (as defined below), (ii) hold or have applied for
all Environmental Permits (as defined below) and (iii) are in
compliance with their respective Environmental Permits;
(b) neither CBS nor any CBS subsidiary has received any
written notice, demand, letter, claim or request for information
alleging that CBS or any of its subsidiaries is or may be in violation
of, or liable under, any Environmental Law;
(c) neither CBS nor any of its subsidiaries (i) has entered
into or agreed to any consent decree or order or is subject to any
judgment, decree or judicial order relating to compliance with
Environmental Laws, Environmental Permits or the investigation,
sampling, monitoring, treatment, remediation, removal or cleanup of
Hazardous Materials (as defined below) and, to the knowledge of CBS, no
investigation, litigation or other proceeding is pending or threatened
in writing with respect thereto, or (ii) is an indemnitor in connection
with any threatened or asserted claim by any third-party indemnitee for
any liability under any Environmental Law or relating to any Hazardous
Materials; and
(d) none of the real property owned or leased by CBS or any of
its subsidiaries is listed or, to the knowledge of CBS, proposed for
listing on the "National Priorities List"
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16
under CERCLA, as updated through the date hereof, or any similar state
or foreign list of sites requiring investigation or cleanup. For
purposes of this Agreement:
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended as of the date
hereof.
"Environmental Laws" means any applicable federal, state,
local or foreign statute, law, ordinance, regulation, rule, code,
treaty, writ or order and any enforceable judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent decree, judgment, stipulation, injunction, permit,
authorization, policy, opinion, or agency requirement, in each case
having the force and effect of law, relating to the pollution,
protection, investigation or restoration of the environment, health and
safety or natural resources, including those relating to the use,
handling, presence, transportation, treatment, storage, disposal,
release, threatened release or discharge of Hazardous Materials or
noise, odor, wetlands, pollution, contamination or any injury or threat
of injury to persons or property or to the siting, construction,
operation, closure and post- closure care of waste disposal, handling
and transfer facilities.
"Environmental Permits" means any permit, approval,
identification number, license and other authorization required under
any Environmental Law.
"Hazardous Materials" means (i) any petroleum, petroleum
products, by- products or breakdown products, radioactive materials,
asbestos-containing materials or polychlorinated biphenyls or (ii) any
chemical, material or other substance defined or regulated as toxic or
hazardous or as a pollutant or contaminant or waste under any
Environmental Law.
SECTION 3.13. Trademarks, Patents and Copyrights. Except as
would not have a CBS Material Adverse Effect, CBS and its subsidiaries own, or
possess adequate licenses or other valid rights to use, all material patents,
patent rights, trademarks, trademark rights, trade names, trade name rights,
copyrights, service marks, service mark rights, trade secrets, applications to
register, and registrations for, the foregoing trademarks, know-how and other
proprietary rights and information used in connection with the business of CBS
and its subsidiaries as currently conducted, and no assertion or claim has been
made in writing challenging the validity of any of the foregoing which would
have a CBS Material Adverse Effect. To the knowledge of CBS, the conduct of the
business of CBS and its subsidiaries as currently conducted does not conflict in
any way with any patent, patent right, license, trademark, trademark right,
trade name, trade name right, service mark or copyright of any third party,
except for such conflicts which would not have a CBS Material Adverse Effect.
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17
SECTION 3.14. Taxes. (a) For purposes of this Agreement, "Tax"
or "Taxes" means any and all taxes, fees, levies, duties, tariffs, imposts, and
other charges of any kind (together with any and all interest, penalties,
additions to tax and additional amounts imposed with respect thereto) imposed by
any governmental or taxing authority including, without limitation: taxes or
other charges on or with respect to income, franchises, windfall or other
profits, gross receipts, property, sales, use, capital stock, payroll,
employment, social security, workers' compensation, unemployment compensation,
or net worth; taxes or other charges in the nature of excise, withholding, ad
valorem, stamp, transfer, value added, or gains taxes; license, registration and
documentation fees; and customs' duties, tariffs, and similar charges.
(b) Except as would not have a CBS Material Adverse Effect:
(i) each of CBS and each of its subsidiaries has timely filed all federal,
state, local and foreign tax returns and reports (including extensions) required
to be filed by it and has paid and discharged all Taxes shown as due thereon and
has paid all of such other Taxes as are due, other than such payments as are
being contested in good faith by appropriate proceedings; (ii) neither the IRS
nor any other taxing authority or agency, domestic or foreign, is now asserting
or, to the knowledge of CBS after due inquiry, threatening to assert against CBS
or any of its subsidiaries any deficiency or claim for Taxes; (iii) no waiver of
any statute of limitations with respect to, or any extension of a period for the
assessment of, any Tax has been granted by CBS or any of its subsidiaries; (iv)
the accruals and reserves for Taxes reflected in the CBS 1998 Balance Sheet and
the most recent quarterly financial statements are adequate to cover all Taxes
accruable through the date thereof in accordance with generally accepted
accounting principles; (v) no election under Section 341(f) of the Code has been
made by CBS or any of its subsidiaries; (vi) CBS and each of its subsidiaries
has withheld or collected and paid over to the appropriate governmental
authorities or is properly holding for such payment all Taxes required by law to
be withheld or collected; (vii) there are no liens for Taxes upon the assets of
CBS or any of its subsidiaries, other than liens for Taxes that are being
contested in good faith by appropriate proceedings and (viii) CBS has not
constituted a "distributing corporation" (within the meaning of Section
355(a)(1)(A) of the Code) in a distribution of stock qualifying for tax-free
treatment under Section 355 of the Code in the two years prior to the date of
this Agreement.
SECTION 3.15. Tax Matters. None of CBS or any of its
affiliates has taken or agreed to take any action that would prevent the Merger
from constituting a transaction qualifying under Section 368(a) of the Code.
None of CBS or any of its affiliates or agents is aware of any agreement, plan
or other circumstance that would prevent the Merger from qualifying under
Section 368(a) of the Code, that could prevent them from providing
representations required in Sections 7.02(c) or 7.03(c), or that could prevent
the opinions described in such Sections from being given and to the knowledge of
CBS, the Merger will so qualify.
SECTION 3.16. Year 2000 Compliance. (a) CBS has adopted a plan
that it believes will cause CBS Systems (as defined
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18
below) to be CBS Year 2000 Compliant (as defined below) (such plan, as it may be
amended, modified or supplemented from time to time being, the "CBS Year 2000
Plan") in all material respects. CBS has taken, and between the date of this
Agreement and the Effective Time will continue to take, all reasonable steps to
implement the CBS Year 2000 Plan with respect to the CBS Systems.
Notwithstanding anything in this Section 3.16 to the contrary, CBS does not
represent or warrant that CBS Systems (or any other operations, systems,
equipment or software of CBS or its subsidiaries or any of their respective
affiliates) are or will be CBS Year 2000 Compliant at or prior to the Effective
Time, regardless of whether the CBS Year 2000 Plan has or has not been
implemented or complied with.
(b) For purposes of this Section 3.16, (i) "CBS Systems" shall
mean all computer, hardware, software, systems, and equipment (including
embedded microcontrollers in non-computer equipment) embedded within or required
to operate the current products of CBS and its subsidiaries, and/or material to
or necessary for CBS and its subsidiaries to carry on their respective
businesses as currently conducted; and (ii) "CBS Year 2000 Compliant" means that
CBS Systems will (A) manage, accept, process, store and output data involving
dates reasonably expected to be encountered in the foreseeable future and (B)
accurately process date data from, into and between the 20th and 21st centuries
and each date during the years 1999 and 2000.
SECTION 3.17. Opinion of Financial Advisors. CBS has received
the written opinion of Evercore Group Inc. (the "CBS Financial Advisor") on or
prior to the date of this Agreement, to the effect that, as of the date of such
opinion, the Exchange Ratio is fair to the shareholders of CBS from a financial
point of view, and CBS will deliver a copy of such opinion to Viacom promptly
after the date of this Agreement.
SECTION 3.18. Vote Required. The affirmative vote of a
majority of the votes cast by all shareholders entitled to vote at the CBS
Stockholders' Meeting is the only vote of the holders of any class or series of
capital stock of CBS necessary to adopt this Agreement.
SECTION 3.19. Brokers. No broker, finder or investment banker
(other than the CBS Financial Advisor) is entitled to any brokerage, finder's or
other fee or commission in connection with the Merger based upon arrangements
made by or on behalf of CBS.
SECTION 3.20. Pennsylvania Law. Pursuant to its By-laws, CBS
has opted out of anti-takeover provisions contained in the Pennsylvania Law
relating to (i) "control share acquisitions" (Sections 2561 through 2568 of the
Pennsylvania Law) and (ii) disgorgement of profits by certain controlling
shareholders following attempts to acquire control (Sections 2571 through 2576
of the Pennsylvania Law). Section 2538 of the Pennsylvania Law relating to
"interested shareholder transactions" and Sections 2551 through 2556 of the
Pennsylvania Law relating to "business combinations with interested
shareholders" are not applicable to this Agreement or the transactions
contemplated hereby.
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19
SECTION 3.21. Rights Agreement. As of the date of this
Agreement, the copy of the Rights Agreement, including all amendments and
exhibits thereto, that is set forth as an exhibit to CBS's Form 8-K, filed with
the SEC on January 9, 1996, is a complete and correct copy thereof. Neither the
execution of this Agreement nor the consummation of the Merger will (A) cause
the Rights issued pursuant to the Rights Agreement to become exercisable, (B)
cause Viacom to become an Acquiring Person or a Principal Party (as each term is
defined in the Rights Agreement) or (C) give rise to a Distribution Date (as
such term is defined in the Rights Agreement).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF VIACOM
Except as disclosed in the report on Form 10-K dated March 31,
1999 for the year ended December 31, 1998, the reports on Form 10-Q and Form 8-K
since December 31, 1998 or the proxy statement dated April 16, 1999, in each
case in the form filed by Viacom with the SEC or in a separate disclosure
schedule which has been delivered by Viacom to CBS prior to the execution of
this Agreement (the "Viacom Disclosure Schedule") (each section of which
qualifies the correspondingly numbered representation and warranty or covenant
to the extent specified therein and such other representations and warranties or
covenants to the extent a matter in such section is disclosed in such a way as
to make its relevance to the information called for by such other representation
and warranty or covenant readily apparent), Viacom hereby represents and
warrants to CBS that:
SECTION 4.01. Organization and Qualification; Subsidiaries.
Each of Viacom and its subsidiaries is a corporation or entity duly incorporated
or formed, validly existing and in good standing, under the laws of its
jurisdiction of incorporation or formation, and has the requisite corporate
power and authority and all necessary governmental approvals to own, lease and
operate its properties and to carry on its business as it is now being
conducted, except where the failure to have such power, authority and
governmental approvals would not have a Viacom Material Adverse Effect (as
defined below). Each of Viacom and its subsidiaries is duly qualified or
licensed as a foreign corporation to do business, and is in good standing, in
each jurisdiction where the character of the properties owned, leased or
operated by it or the nature of its business makes such qualification or
licensing necessary, except for such failures to be so qualified or licensed and
in good standing that would not have a Viacom Material Adverse Effect. The term
"Viacom Material Adverse Effect" means any change, effect or circumstance that
is or is reasonably likely to be materially adverse to the business, results of
operations or financial condition of Viacom and its subsidiaries taken as a
whole, other than any change, effect or circumstance relating to or resulting
from (i) general changes in the media or entertainment industries or the
advertising markets, (ii) changes in general economic conditions or securities
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20
markets in general or (iii) this Agreement or the transactions contemplated
hereby or the announcement thereof.
SECTION 4.02. Certificate of Incorporation and By-Laws. Viacom
has made available to CBS a complete and correct copy of the Certificate of
Incorporation and the By-laws, each as amended to date, of Viacom and
Blockbuster Corporation ("Blockbuster"). The Certificates of Incorporation and
By-laws (or equivalent organizational documents) of Viacom and its subsidiaries
are in full force and effect. Except as would not have a Viacom Material Adverse
Effect, none of Viacom or its subsidiaries is in violation of any provision of
its Certificate of Incorporation or By-laws (or equivalent organizational
documents).
SECTION 4.03. Capitalization. The authorized capital stock of
Viacom consists of 500,000,000 shares of Viacom Class A Common Stock,
3,000,000,000 shares of Viacom Class B Common Stock and 200,000,000 shares of
Preferred Stock, par value $.01 per share, of Viacom ("Viacom Preferred Stock").
As of September 3, 1999 (a) 139,923,921 shares of Viacom Class A Common Stock
and 605,085,135 shares of Viacom Class B Common Stock were issued and
outstanding, all of which were validly issued, fully paid and nonassessable, (b)
1,356,400 shares of Viacom Class A Common Stock and 47,101,300 shares of Viacom
B Common Stock were held in the treasury of Viacom, (c) no shares of Viacom
Class A Common Stock or Viacom Class B Common Stock were held by subsidiaries of
Viacom and (d) as of September 3, 1999, approximately 1,898,946 shares of Viacom
Class B Common Stock were reserved for future issuance pursuant to stock options
or stock incentive rights (collectively "Viacom Options") granted pursuant to
Viacom's stock option plans and arrangements (the "Viacom Stock Option Plans").
As of September 3, 1999, no shares of Viacom Preferred Stock were issued and
outstanding. As of the date of this Agreement, except for the issuance of Viacom
Class B Common Stock pursuant to the exercise of Viacom Options and options to
purchase 11,600,000 shares of Class A Common Stock, par value $.01 per share, of
Blockbuster (the "Blockbuster Options") outstanding prior to September 3, no
shares of capital stock of Viacom or any of its subsidiaries have been issued
since September 3, 1999. Except as set forth in this Section 4.03, as of the
date of this Agreement, there are no options, warrants or other rights,
agreements (including registration rights agreements), arrangements or
commitments of any character relating to the issued or unissued capital stock of
Viacom or any of its subsidiaries or obligating Viacom or any of its
subsidiaries to issue or sell any shares of capital stock of, or other equity
interests in, Viacom or any of its subsidiaries. All shares of capital stock of
Viacom and its subsidiaries subject to issuance as aforesaid, upon issuance on
the terms and conditions specified in the instruments pursuant to which they are
issuable, will be duly authorized, validly issued, fully paid and nonassessable.
As of the date of this Agreement, there are no outstanding contractual material
obligations of Viacom or any subsidiary to repurchase, redeem or otherwise
acquire any shares of capital stock of Viacom or any of its subsidiaries or to
provide material funds to, or make any material investment (in the form of a
loan capital contribution or otherwise) in, any person. The Stockholder (as
defined in the Parent Voting Agreements) is the holder of a majority of the
issued and outstanding shares of Viacom Class A Common Stock.
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21
SECTION 4.04. Authority Relative to Agreement. Viacom has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the Merger and the other
transactions contemplated hereby. The execution and delivery of this Agreement
by Viacom and the consummation by Viacom of the Merger and the other
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action and no other corporate proceedings on the part of
Viacom are necessary to authorize the execution and delivery of this Agreement
or to consummate the Merger and the other transactions contemplated hereby
(other than, with respect to the Merger, the approval of the Viacom Proposals by
the holders of a majority of the then outstanding shares of Viacom Class A
Common Stock and the filing and recordation of appropriate merger documents as
required by Delaware Law and Pennsylvania Law). This Agreement has been duly and
validly executed and delivered by Viacom and, assuming the due authorization,
execution and delivery by CBS, this Agreement constitutes a legal, valid and
binding obligation of Viacom, enforceable against Viacom in accordance with its
terms.
SECTION 4.05. No Conflict; Required Filings and Consents. (a)
The execution and delivery of this Agreement by Viacom does not, and the
performance of this Agreement by Viacom and the performance by Parent of the
Parent Voting Agreements will not, (i) conflict with or violate the Certificate
of Incorporation or By-laws (or similar organization documents) of (A) Viacom or
Blockbuster or (B) any of its other subsidiaries, (ii) assuming the consents,
approvals and authorizations specified in Section 4.05(b) have been received and
the waiting periods referred to therein have expired, and any condition
precedent to such consent, approval, authorization, or waiver has been
satisfied, conflict with or violate any Law applicable to Viacom or any of its
subsidiaries or by which any property or asset of Viacom or any of its
subsidiaries is bound or affected or (iii) result in any breach of or constitute
a default (or an event which with notice or lapse of time or both would become a
default) under, or give to others any right of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or other
encumbrance on any property or asset of Viacom or any of its subsidiaries
pursuant to, any note, bond, mortgage, indenture or credit agreement, or, to
Viacom's knowledge as of the date of this Agreement, any other, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which Viacom or any of its subsidiaries is a party or by which Viacom or any
of its subsidiaries or any property or asset of Viacom or any of its
subsidiaries is bound or affected, except, in the case of clauses (i)(B), (ii)
and (iii), for any such conflicts, violations, breaches, defaults or other
occurrences of the type referred to above which would not have a Viacom Material
Adverse Effect or would not prevent or materially delay the consummation of the
Merger; provided, however, that for purposes of this Section 4.05(a), the
definition of Viacom Material Adverse Effect shall be read so as not to include
clause (iii) of the definition thereof.
(b) The execution and delivery of this Agreement by Viacom do
not, the performance of this Agreement by Viacom and the performance by Parent
of the Parent Voting Agreements will not, require any consent, approval,
authorization, waiver or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic, foreign or
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22
supranational, except for applicable requirements of the Exchange Act, the
Securities Act, Blue Sky Laws, the HSR Act, such filings, approvals and waivers
as may be required by the Communications Act, applicable requirements of the
Investment Canada Act of 1985 and the Competition Act (Canada), any other
non-United States competition, antitrust and investment law, filing and
recordation of appropriate merger documents as required by Delaware Law and
Pennsylvania Law and the rules of the NYSE and except where failure to obtain
such consents, approvals, authorizations or permits, or to make such filings or
notifications, would not have a Viacom Material Adverse Effect or would not
prevent or materially delay the consummation of the Merger; provided, however,
that for purposes of this Section 4.05(b), the definition of Viacom Material
Adverse Effect shall be read so as not to include clause (iii) of the definition
thereof.
SECTION 4.06. Permits and Licenses; Contracts. (a) Each of
Viacom and its subsidiaries is in possession of all franchises, grants,
authorizations, licenses, permits, easements, variances, exceptions, consents,
certificates, approvals and orders necessary for Viacom or any of its
subsidiaries to own, lease and operate the properties of Viacom and its
subsidiaries or to carry on their business as it is now being conducted and
contemplated to be conducted (the "Viacom Permits"), and no suspension or
cancellation of any of the Viacom Permits is pending or, to the knowledge of
Viacom, threatened, except where the failure to have, or the suspension or
cancellation of, any of the Viacom Permits would not have a Viacom Material
Adverse Effect. None of Viacom or any of its subsidiaries is in conflict with,
or in default or violation of (i) any Laws applicable to Viacom or any of its
subsidiaries or by which any property or asset of Viacom or any of its
subsidiaries is bound or affected, (ii) any of the Viacom Permits, or (iii) any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Viacom or any of its
subsidiaries is a party or by which Viacom or any of its subsidiaries or any
property or asset of Viacom or any of its subsidiaries is bound or affected,
except for any such conflicts, defaults or violations that would not have a
Viacom Material Adverse Effect.
(b) Except as would not have a Viacom Material Adverse Effect,
and to the knowledge of Viacom, except as would not have a material adverse
effect on the Surviving Corporation following the Effective Time, none of Viacom
or any of its subsidiaries is a party to any contracts or agreements that limits
the ability of Viacom or any of its subsidiaries to compete in any line of
business or with any person or engage in any business in any geographic area, in
each case except for competition in businesses that neither CBS nor Viacom are
currently engaged in or will reasonably foreseeably engage in.
(c) Viacom and its subsidiaries have operated the radio and
television stations and associated facilities for which Viacom or any of its
subsidiaries holds licenses from the FCC, in each case which are owned or
operated by Viacom and its subsidiaries (the "Viacom Licensed Facilities"), in
material compliance with the terms of the Viacom Permits issued by the FCC to
Viacom and its subsidiaries ("Viacom FCC Licenses"), and in material compliance
with the
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23
Communications Act, and Viacom and its subsidiaries have timely filed
or made all applications, reports and other disclosures required by the FCC to
be filed or made with respect to the Viacom Licensed Facilities and have timely
paid all FCC regulatory fees with respect thereto, in each case except as would
not have a Viacom Material Adverse Effect. As of the date hereof, to Viacom's
knowledge, there is not now pending or threatened before the FCC any material
investigation, proceeding, notice of violation, order of forfeiture or complaint
against Viacom or any of its subsidiaries, relating to any of the Viacom
Licensed Facilities or FCC regulated services conducted by CBS that, if
adversely decided, would have a Viacom Material Adverse Effect.
SECTION 4.07. SEC Filings; Financial Statements. (a) Viacom
and Blockbuster have filed all forms, reports and documents required to be filed
by it with the SEC from December 31, 1996 to the date of this Agreement,
including: (i) Annual Reports on Form 10-K, (ii) Quarterly Reports on Form 10-Q
and (iii) proxy statements relating to Viacom's and Blockbuster's meetings of
stockholders (whether annual or special) (the forms, reports and other documents
referred to in clauses (i), (ii), (iii) and all other forms, reports and other
registration statements filed by Viacom or Blockbuster with the SEC as of the
date of this Agreement, including all amendments and supplements thereto filed
with the SEC as of the date of this Agreement, above being referred to herein,
collectively, as the "Viacom SEC Reports"). The Viacom SEC Reports, as well as
all forms, reports and documents to be filed by Viacom or Blockbuster with the
SEC after the date hereof and prior to the Effective Time, (i) were or will be
prepared in accordance with the requirements of the Securities Act, and the
Exchange Act, as the case may be, and the rules and regulations thereunder, (ii)
did not at the time they were filed, or will not at the time they are filed,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading, and (iii) did not at the time they were filed, or will not at the
time they are filed, omit any documents required to be filed as exhibits
thereto. No Viacom subsidiary, except Blockbuster, is subject to the periodic
reporting requirements of the Exchange Act.
(b) Each of the financial statements (including, in each case,
any notes thereto) contained in the Viacom SEC Reports and each of the financial
statements to be filed by Viacom or Blockbuster with the SEC after the date
hereof and prior to the Effective Time was or will be prepared in accordance
with United States generally accepted accounting principles applied on a
consistent basis throughout the periods indicated (except as may be indicated in
the notes thereto) and each fairly presented in all material respects or will
fairly present in all material respects the consolidated financial position,
results of operations and cash flows of Viacom and its subsidiaries as at the
respective dates thereof and for the respective periods indicated therein in
accordance with generally accepted accounting principles (subject, in the case
of unaudited statements, to normal and recurring year-end adjustments which were
not and are not expected to be material).
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24
(c) Except as and to the extent set forth in the Viacom SEC
Reports, Viacom and its subsidiaries do not have any liability or obligation of
any nature (whether accrued, absolute, contingent or otherwise) other than
liabilities and obligations which, individually or in the aggregate, would not
have a Viacom Material Adverse Effect.
(d) Viacom has heretofore furnished to CBS complete and
correct copies of all material amendments and modifications that have not been
filed by Viacom or Blockbuster with the SEC to all agreements, documents and
other instruments that previously had been filed by Viacom or Blockbuster with
the SEC and are currently in effect.
SECTION 4.08. Absence of Certain Changes or Events. (a) Since
December 31, 1998, except as disclosed in any Viacom SEC Report or as
contemplated by this Agreement, there has not been any change, event or
circumstance which, when taken individually or together with all other changes,
events or circumstances, has had or would have a Viacom Material Adverse Effect,
and (b) since December 31, 1998 to the date of this Agreement, except as
disclosed in any Viacom SEC Reports (i) each of Viacom and its subsidiaries has
conducted its businesses only in the ordinary course and in a manner consistent
with past practice and (ii) there has not been (A) any material change by Viacom
or any of its subsidiaries in its material accounting policies, practices and
procedures, (B) any entry by Viacom or any of its subsidiaries into any
commitment or transaction material to Viacom and its subsidiaries taken as a
whole other than in the ordinary course of business consistent with past
practice, (C) any declaration, setting aside or payment of any dividend or
distribution in respect of any capital stock of Viacom or any of its
subsidiaries (other than cash dividends payable by any wholly owned subsidiary
to another subsidiary or Viacom), or (D) any increase in the compensation
payable or to become payable to any corporate officers or heads of divisions of
Viacom or any of its subsidiaries, except in the ordinary course of business
consistent with past practice.
SECTION 4.09. Absence of Litigation. Except as disclosed in
any Viacom SEC Report, there is no claim, action, proceeding or investigation
pending or, to the knowledge of Viacom, threatened against Viacom or any of its
subsidiaries, or any property or asset of Viacom or any of its subsidiaries,
before any court, arbitrator or Governmental Authority, in each case except as
would not have a Viacom Material Adverse Effect. As of the date of this
Agreement, none of Viacom, any of its subsidiaries nor any property or asset of
Viacom or any of its subsidiaries is subject to any order, writ, judgment,
injunction, decree, determination or award imposed by any court, arbitration or
Governmental Authority, in each case except as would not have a Viacom Material
Adverse Effect.
SECTION 4.10. Employee Benefit Plans. (a) With respect to each
employee benefit plan, program, arrangement and contract (including, without
limitation, any "employee benefit plan", as defined in Section 3(3) of ERISA),
maintained or contributed to by Viacom or any of its subsidiaries, or with
respect to which Viacom or any of its subsidiaries could incur liability under
Section 4069 of ERISA, other than multiemployer plans within the meaning of
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Section 3(37) of ERISA (the "Viacom Benefit Plans"), Viacom will provide to CBS
within 15 days of this Agreement a true and correct copy of (i) the most recent
annual report (Form 5500) filed with the IRS, (ii) such Viacom Benefit Plan,
(iii) each trust agreement relating to such Viacom Benefit Plan, (iv) the most
recent summary plan description for each Viacom Benefit Plan for which a summary
plan description is required, (v) the most recent actuarial report or valuation
relating to a Viacom Benefit Plan subject to Title IV of ERISA, if any, and (vi)
the most recent determination letter, if any, issued by the IRS with respect to
any Viacom Benefit Plan qualified under Section 401(a) of the Code. Viacom will
promptly following the date of this Agreement request a copy of each Viacom
Benefit Plan that is a multiemployer plan within the meaning of Section 3(37) of
ERISA from the trustees of such multiemployer plan and Viacom shall deliver such
copy of the plan to CBS promptly upon its receipt thereof.
(b) Each Viacom Benefit Plan has been administered in
accordance with its terms, and in compliance with applicable laws, except as
would not have a Viacom Material Adverse Effect. Viacom and its subsidiaries
have performed all obligations required to be performed by them under, are not
in any respect in default under or in violation of, and have no knowledge of any
default or violation by any party to, any Viacom Benefit Plans, except as would
not have a Viacom Material Adverse Effect. With respect to the Viacom Benefit
Plans, no event has occurred and, to the knowledge of Viacom, there exists no
condition or set of circumstances, in connection with which Viacom or any of its
subsidiaries is reasonably likely to be subject to any liability under the terms
of such Viacom Benefit Plans, ERISA, the Code or any other applicable Law except
as would not have a Viacom Material Adverse Effect. Neither Viacom nor any of
its subsidiaries has any actual or contingent liability under Title IV of ERISA
(other than the payment of premiums to the Pension Benefit Guaranty Corporation)
except as would not have a Viacom Material Adverse Effect. Neither Viacom nor
any of its subsidiaries has any actual or contingent liability under Title IV of
ERISA (other than the payment of premiums to the Pension Benefit Guaranty
Corporation), including, without limitation, any liability in connection with
(i) the termination or reorganization of any employee benefit plan subject to
Title IV of ERISA or (ii) the withdrawal from any Multiemployer Plan or Multiple
Employer Plan, and no fact or event exists which is reasonably likely to give
rise to any such liability, except as would not, individually or in the
aggregate, have a Viacom Material Adverse Effect.
(c) Viacom has made available to CBS (i) copies of all
employment agreements with the top five most highly compensated executive
officers of Viacom or any of its subsidiaries; (ii) copies of all material
severance agreements, programs and policies of Viacom or any of its subsidiaries
with or relating to its or its subsidiaries' employees; and (iii) copies of all
material plans, programs, agreements and other arrangements of Viacom or any of
its subsidiaries with or relating to its or its subsidiaries' employees which
contain change in control provisions. Neither the execution and delivery of this
Agreement nor the consummation of the transactions contemplated hereby will (i)
result in any payment (including, without limitation, severance, unemployment
compensation, "golden parachute" or otherwise) becoming due to any director,
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26
officer or employee of Viacom or any of its subsidiaries from Viacom or any of
its affiliates under any Viacom Benefit Plan or otherwise, which payment is
material in relation to the compensation previously provided to such individual
(other than payments resulting from a change in responsibilities or reporting
obligations of individual employees), (ii) materially increase any benefits
otherwise payable under any Viacom Benefit Plan, which increase is material in
relation to the benefits previously provided or (iii) result in any acceleration
of the time of payment or vesting of any material benefits.
(d) Each Viacom Benefit Plan that is intended to be qualified
under Section 401(a) of the Code or Section 401(k) of the Code has timely
received a favorable determination letter from the IRS covering all of the
provisions applicable to the Plan for which determination letters are currently
available that the Viacom Benefit Plan is so qualified and each trust
established in connection with any Viacom Benefit Plan which is intended to be
exempt from federal income taxation under Section 501(a) of the Code has
received a determination letter from the IRS that it is so exempt, and no fact
or event has occurred since the date of such determination letter or letters
from the IRS which is reasonably likely to adversely affect the qualified status
of any such Viacom Benefit Plan or the exempt status of any such trust.
SECTION 4.11. Labor Matters. There is no labor dispute, strike
or work stoppage against Viacom or any of its subsidiaries pending or, to the
knowledge of Viacom, threatened which would reasonably be expected to interfere
with the respective business activities of Viacom or any of its subsidiaries,
except for such disputes, strikes or work stoppages which would not have a
Viacom Material Adverse Effect. There is no charge or complaint against Viacom
or any of its subsidiaries by the National Labor Relations Board or any
comparable state agency pending or threatened in writing, except for such
charges or complaints (or related unfair labor practices) which would not have a
Viacom Material Adverse Effect.
SECTION 4.12. Environmental Matters. Except as would not,
individually or in the aggregate, have a Viacom Material Adverse Effect:
(a) Viacom and its subsidiaries (i) are in compliance with
all, and are not subject to any asserted liability or, to Viacom's
knowledge, any liability (including liability with respect to current
or former subsidiaries or operations), in each case with respect to
any, Environmental Laws (as defined below), (ii) hold or have applied
for all Environmental Permits (as defined below) and (iii) are in
compliance with their respective Environmental Permits;
(b) neither Viacom nor any Viacom subsidiary has received any
written notice, demand, letter, claim or request for information
alleging that Viacom or any of its subsidiaries is or may be in
violation of, or liable under, any Environmental Law;
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27
(c) neither Viacom nor any of its subsidiaries (i) has entered
into or agreed to any consent decree or order or is subject to any
judgment, decree or judicial order relating to compliance with
Environmental Laws, Environmental Permits or the investigation,
sampling, monitoring, treatment, remediation, removal or cleanup of
Hazardous Materials (as defined below) and, to the knowledge of Viacom,
no investigation, litigation or other proceeding is pending or
threatened in writing with respect thereto, or (ii) is an indemnitor
in connection with any threatened or asserted claim by any third-party
indemnitee for any liability under any Environmental Law or relating to
any Hazardous Materials; and
(d) none of the real property owned or leased by Viacom or any
of its subsidiaries is listed or, to the knowledge of Viacom, proposed
for listing on the "National Priorities List" under CERCLA, as updated
through the date hereof, or any similar state or foreign list of sites
requiring investigation or cleanup.
SECTION 4.13. Trademarks, Patents and Copyrights. Except as
would not have a Viacom Material Adverse Effect, Viacom and its subsidiaries
own, or possess adequate licenses or other valid rights to use, all material
patents, patent rights, trademarks, trademark rights, trade names, trade name
rights, copyrights, service marks, service mark rights, trade secrets,
applications to register, and registrations for, the foregoing trademarks,
service marks, know-how and other proprietary rights and information used in
connection with the business of Viacom and its subsidiaries as currently
conducted, and no assertion or claim has been made in writing challenging the
validity of any of the foregoing which would have a Viacom Material Adverse
Effect. To the knowledge of Viacom, the conduct of the business of Viacom and
its subsidiaries as currently conducted does not conflict in any way with any
patent, patent right, license, trademark, trademark right, trade name, trade
name right, service mark or copyright of any third party, except for such
conflicts which would not have a Viacom Material Adverse Effect.
SECTION 4.14. Taxes. Except as would not have a Viacom
Material Adverse Effect, (a) each of Viacom and each of its subsidiaries has
timely filed all federal, state, local and foreign tax returns and reports
(including extensions) required to be filed by it and has paid and discharged
all Taxes shown as due thereon and has paid all of such other Taxes as are due,
other than such payments as are being contested in good faith by appropriate
proceedings, (b) neither the IRS nor any other taxing authority or agency,
domestic or foreign, is now asserting or, to the knowledge of Viacom after due
inquiry, threatening to assert against Viacom or any of its subsidiaries any
deficiency or claim for Taxes, (c) no waiver of any statute of limitations with
respect to, or any extension of a period for the assessment of, any Tax has been
granted by Viacom or any of its subsidiaries, (d) the accruals and reserves for
Taxes reflected in the Viacom 1998 Balance Sheet and the most recent quarterly
financial statements are adequate to cover all Taxes accruable through the date
thereof in accordance with generally accepted accounting principles, (e) no
election under Section 341(f) of the Code has been made by Viacom or any of its
subsidiaries, (f) Viacom and each of its subsidiaries has withheld or collected
and paid over to
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28
the appropriate governmental authorities or is properly holding for such payment
all Taxes required by law to be withheld or collected, (g) there are no liens
for Taxes upon the assets of Viacom or any of its subsidiaries, other than liens
for Taxes that are being contested in good faith by appropriate proceedings and
(h) Viacom has not constituted a "distributing corporation" (within the meaning
of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for
tax-free treatment under Section 355 of the Code in the two years prior to the
date of this Agreement.
SECTION 4.15. Tax Matters. None of Viacom or any of its
affiliates has taken or agreed to take any action that would prevent the Merger
from constituting a transaction qualifying under Section 368(a) of the Code.
None of Viacom or any of its affiliates or agents is aware of any agreement,
plan or other circumstance that would prevent the Merger from qualifying under
Section 368(a) of the Code, that could prevent them from providing
representations required in Sections 7.02(c) or 7.03(c), or that could prevent
the opinions described in such Sections from being given and to the knowledge of
Viacom the Merger will so qualify.
SECTION 4.16. Year 2000 Compliance. (a) Viacom has adopted a
plan that it believes will cause Viacom Systems (as defined below) to be Viacom
Year 2000 Compliant (as defined below) (such plan, as it may be amended,
modified or supplemented from time to time being, the "Viacom Year 2000 Plan")
in all material respects. Viacom has taken, and between the date of this
Agreement and the Effective Time will continue to take, all reasonable steps to
implement the Viacom Year 2000 Plan with respect to the Viacom Systems.
Notwithstanding anything in this Section 4.16 to the contrary, Viacom does not
represent or warrant that Viacom Systems (or any other operations, systems,
equipment or software of Viacom or its subsidiaries or any of their respective
affiliates) are or will be Viacom Year 2000 Compliant at or prior to the
Effective Time, regardless of whether the Viacom Year 2000 Plan has or has not
been implemented or complied with.
(b) For purposes of this Section 4.16, (i) "Viacom Systems"
shall mean all computer, hardware, software, systems, and equipment (including
embedded microcontrollers in non-computer equipment) embedded within or required
to operate the current products of Viacom and its subsidiaries, and/or material
to or necessary for Viacom and its subsidiaries to carry on their respective
businesses as currently conducted; and (ii) "Viacom Year 2000 Compliant" means
that Viacom Systems will (A) manage, accept, process, store and output data
involving dates reasonably expected to be encountered in the foreseeable future
and (B) accurately process date data from, into and between the 20th and 21st
centuries and each date during the years 1999 and 2000.
SECTION 4.17. Opinion of Financial Advisors. Viacom has
received the written opinion of Morgan Stanley Dean Witter & Co. (the "Viacom
Financial Advisor") on or prior to the date of this Agreement, to the effect
that, as of the date of such opinion, the Exchange Ratio
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29
is fair to the stockholders of Viacom, from a financial point of view, and
Viacom will deliver a copy of such opinion to CBS promptly after the date of
this Agreement.
SECTION 4.18. Vote Required. The affirmative vote of the
holders of a majority of the outstanding Viacom Class A Common Stock is the only
vote of the holders of any class or series of capital stock of Viacom necessary
to approve the transactions contemplated by this Agreement.
SECTION 4.19. Section 203 of Delaware Law. The Board of
Directors of Viacom has approved this Agreement and such Viacom approval is
sufficient to render inapplicable to this Agreement, the Parent Voting
Agreements and the transactions contemplated hereby and thereby the provisions
of Section 203 of Delaware Law.
SECTION 4.20. Brokers. No broker, finder or investment banker
(other than the Viacom Financial Advisor) is entitled to any brokerage, finder's
or other fee or commission in connection with the Merger based upon arrangements
made by or on behalf of Viacom.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.01. Conduct of Business by CBS Pending the Merger.
CBS covenants and agrees that, between the date of this Agreement and the
Effective Time, except (w) as contemplated by this Agreement or as set forth in
Section 5.01 of the CBS Disclosure Schedule, (x) as Viacom shall otherwise agree
in advance in writing, which agreement shall not be unreasonably withheld or
delayed, (y) for actions taken in connection with the consummation of the
acquisitions of King World, Outdoor Systems, Inc. and Gaylord Entertainment
Company (the "Pending Transactions") on substantially the same terms that have
heretofore been agreed between such parties or on such other terms and
conditions which would not be reasonably likely to have an impact that is both
material and detrimental to Circle and its subsidiaries, taken as a whole,
unless Viacom shall have consented thereto, such consent not to be unreasonably
withheld or delayed, and (z) for the exercise of options, warrants and similar
securities which would otherwise expire prior to the Effective Time, or the
exercise of any put rights, call rights, rights of first refusal and other
similar rights, in each case under agreements in existence on the date of this
Agreement and otherwise in accordance with the terms of this Agreement, the
business of CBS and its subsidiaries shall be conducted only in, and CBS and its
subsidiaries shall not take any action except in, the ordinary course of
business and in a manner consistent with past practice; and CBS and its
subsidiaries shall use their reasonable best efforts to preserve substantially
intact CBS's business organization, to keep available the services of the
current officers, employees and consultants of CBS and its subsidiaries
(provided that the foregoing covenant to use reasonable best efforts shall not
require CBS to offer retention bonuses to such
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30
individuals) and to preserve the current relationships of CBS and its
subsidiaries with customers, distributors, dealers, suppliers and other persons
with which CBS and its subsidiaries have significant business relations. By way
of amplification and not limitation, between the date of this Agreement and the
Effective Time, CBS will not do, and will not permit any of its subsidiaries to
do, directly or indirectly, any of the following except in compliance with the
exceptions listed above:
(a) amend or otherwise change the Articles of Incorporation or
By-laws of CBS or any CBS subsidiary other than Infinity if such
amendment or change would have a CBS Material Adverse Effect;
(b) issue, sell, pledge, dispose of, grant, encumber, or
authorize the issuance, sale, pledge, disposition, grant or encumbrance
of, (i) any shares of its or its subsidiaries' capital stock, or any
options, warrants, convertible securities or other rights of any kind
to acquire any shares of its or its subsidiaries' capital stock or any
other ownership interest (including any phantom interest), of CBS or
any of its subsidiaries (except (A) for the issuance of Shares issuable
pursuant to CBS Options or shares of Infinity common stock pursuant to
Infinity stock options outstanding on the date hereof, (B) for the
issuance of options, and other stock grants of CBS or Shares which do
not provide for accelerated vesting in connection with the Merger and
the other transactions contemplated by this Agreement (except as
permitted under any severance arrangement established by CBS in
accordance with Section 6.16 hereof or with respect to 1,200,000
options to be issued to two senior executives of Kingworld upon its
acquisition by CBS), (x) to purchase a maximum of 5,000,000 Shares, (y)
to purchase a maximum of 17,200,000 Shares as set forth in Section 5.01
of the CBS Disclosure Schedule and (z) to purchase a maximum of
12,500,000 shares of Infinity common stock as set forth in Section 5.01
of the CBS Disclosure Schedule, in each case in the ordinary course of
business consistent with past practice and allocated to persons who are
officers, employees, directors, independent contractors and production
company writers and talent of CBS or Infinity, as applicable, or any of
their respective subsidiaries (including past practice of any such
subsidiary before its acquisition by CBS) and (C) the issuance of
shares of CBS and Infinity stock in connection with the Pending
Transactions) or (ii) any assets material to CBS and its subsidiaries,
taken as a whole, except for sales in the ordinary course of business
and in a manner consistent with past practice;
(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with
respect to any of its or its subsidiaries' capital stock other than
cash dividends payable by any wholly owned CBS subsidiary to another
CBS subsidiary or CBS and other than dividends made or paid by
Infinity, so long as the aggregate amount of such dividends paid by
Infinity shall not exceed $500,000,000;
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(d) reclassify, combine, split, subdivide or redeem, purchase
or otherwise acquire, directly or indirectly, any of its or its
subsidiaries' capital stock;
(e) (i) except in connection with the Pending Transactions and
in connection with acquisitions which individually do not exceed
$200,000,000 and in the aggregate do not exceed $1,000,000,000 (A)
acquire (including by merger, consolidation, or acquisition of stock or
assets), or otherwise make any investment in, any corporation,
partnership, limited liability company, other business organization or
any division thereof, or any material amount of assets; or (B) incur
any indebtedness for borrowed money, issue any debt securities, assume,
guarantee or endorse, or otherwise as an accommodation become
responsible for, the obligations of any person, agree to amend or
otherwise modify in any manner any agreement or instrument pursuant to
which CBS has incurred indebtedness, or make any loans or advances,
except in the ordinary course of business and consistent with past
practice, except the refinancing of existing indebtedness, borrowings
under commercial paper programs in the ordinary course of business or
borrowings under existing bank lines of credit in the ordinary course
of business, (ii) enter into any material contract, agreement or
transaction, other than (X) in the ordinary course of business, and (Y)
which would not be reasonably likely to prevent or materially delay the
consummation of the Merger, (iii) authorize any capital expenditures
which are, in the aggregate, in excess of the amounts currently
budgeted for the fiscal year 1999 (including the applicable 1999
capital expenditures of the companies subject to the Pending
Transactions) and, with respect to fiscal year 2000, 10% in excess of
such amount, in each case for CBS and its subsidiaries taken as a whole
or (iv) enter into or amend any contract, agreement, commitment or
arrangement which would require CBS to take any action prohibited by
this subsection (e) and will, or will cause Infinity to, not amend in
any material respect, or waive any material right or condition under or
relating to the definitive agreements relating to the Pending
Transactions, in each case except for any such amendment or waiver the
impact of which would not be reasonably likely to be both material and
detrimental to CBS and its subsidiaries, taken as a whole;
(f) increase the compensation payable or to become payable to
its executive officers or employees, except as set forth in Section
6.16 or as required by Law or by the terms of any collective bargaining
agreement or other agreement currently in effect between CBS or any
subsidiary of CBS and any executive officer or employee thereof and
except for increases in the ordinary course of business in accordance
with past practices, or grant any severance or termination pay to, or
enter into any employment or severance agreement with, any director or
executive officer of it or any of its subsidiaries, or establish,
adopt, enter into or amend in any material respect or take action to
accelerate any rights or benefits under any collective bargaining,
bonus, profit sharing, thrift, compensation, stock option, restricted
stock, pension, retirement, deferred compensation, employment,
termination, severance or other plan, agreement, trust, fund, policy or
arrangement for the benefit of any director, executive officer or
employee, provided that
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this clause shall not prevent any CBS subsidiary from (i) entering into
employment contracts with newly-hired or promoted executive officers,
or from making severance payments, on terms substantially consistent
with the contractual arrangements currently existing at such subsidiary
or (ii) providing for the payment of severance to executive officers or
employees on terms substantially consistent with the past practices of
such subsidiary (including past practice preceding such subsidiaries'
acquisition by CBS);
(g) change in any material respect (except as required by the
SEC or changes in United States generally accepted accounting
principles which become effective after the date of this Agreement) any
accounting policies, practices or procedures;
(h) make any tax election that, individually or in the
aggregate, would have a CBS Material Adverse Effect or settle or
compromise any material Tax liability; or
(i) enter into any contract, agreement, lease, license,
permit, franchise or other instrument or obligation which if in
existence and known to CBS prior to the date of this Agreement would
have resulted in a breach of Section 3.05, except to the extent the
conflict, violation, breach, default or occurrence of the type referred
to therein giving rise to such breach would not have a CBS Material
Adverse Effect;
provided, that Infinity shall not be prohibited from taking any action under
this Section 5.01 which the Board of Directors of Infinity determines is
required to be taken in the exercise of the Board's fiduciary duties to the
stockholders of Infinity (other than CBS).
SECTION 5.02. Conduct of Business by Viacom Pending the
Merger. Viacom covenants and agrees that, between the date of this Agreement and
the Effective Time, except (w) as contemplated by this Agreement or as set forth
in Schedule 5.02 of the Viacom Disclosure Schedule, (x) as CBS shall otherwise
agree in advance in writing, which agreement shall not be unreasonably withheld
or delayed (y) for the exercise of options, warrants and similar securities
which would otherwise expire prior to the Effective Time, or the exercise of any
put rights, call rights, rights of first refusal and other similar rights, in
each case under agreements in existence on the date of this Agreement and
otherwise in accordance with the terms of this Agreement and (z) an exchange
offer of Blockbuster shares owned by Viacom for shares of Viacom Class B Common
Stock owned by the stockholders of Viacom (the "Split-off") in accordance with
the procedures set forth in Section 5.02 of the Viacom Disclosure Schedule, the
business of Viacom and its subsidiaries shall be conducted only in, and Viacom
and its subsidiaries shall not take any action except in, the ordinary course of
business and in a manner consistent with past practice; and Viacom and its
subsidiaries shall use their reasonable best efforts to preserve substantially
intact Viacom's business organization, to keep available the services of the
current officers, employees and consultants of Viacom and its subsidiaries
(provided that the foregoing covenant to use reasonable best efforts shall not
require Viacom to offer retention bonuses to such individuals) and to preserve
the current relationships of Viacom and its subsidiaries with
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33
customers, distributors, suppliers and other persons with which Viacom and its
subsidiaries have significant business relations. By way of amplification and
not limitation, between the date of this Agreement and the Effective Time,
Viacom will not do, and will not permit any of its subsidiaries to do, directly
or indirectly, any of the following except in compliance with the exceptions
listed above:
(a) amend or otherwise change the Certificate of Incorporation
or By-laws of Viacom or Blockbuster, or any other Viacom subsidiary if
such amendment or change would have a Viacom Material Adverse Effect;
(b) issue, sell, pledge, dispose of, grant, encumber, or
authorize the issuance, sale, pledge, disposition, grant or encumbrance
of, (i) any shares of its or its subsidiaries' capital stock, or any
options, warrants, convertible securities or other rights of any kind
to acquire any shares of its or its subsidiaries' capital stock or any
other ownership interest (including any phantom interest), of Viacom or
any of its subsidiaries (except (A) for the issuance of Shares issuable
pursuant to Viacom Options outstanding on the date hereof and (B) for
the issuance of options, which do not provide for accelerated vesting
or other consequences in connection with the Merger and the other
transactions contemplated by this Agreement, to purchase a maximum of
6,000,000 shares of Viacom Class B Common Stock in the ordinary course
of business consistent with past practice and allocated to persons who
are officers, employees, directors, independent contractors and
production company writers and talent of Viacom or any of its
subsidiaries on a basis substantially consistent with past practice),
or (ii) any assets material to Viacom and its subsidiaries, taken as a
whole, except for sales in the ordinary course of business and in a
manner consistent with past practice;
(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with
respect to any of its or its subsidiaries' capital stock other than
cash dividends payable by any wholly owned Viacom subsidiary to another
Viacom subsidiary or Viacom, other than dividends made or paid by
Blockbuster, so long as the aggregate amount of such dividends paid by
Blockbuster shall not exceed $50,000,000;
(d) reclassify, combine, split, subdivide or redeem, purchase
or otherwise acquire, directly or indirectly, any of its or its
subsidiaries' capital stock;
(e) (i) except in connection with acquisitions which
individually do not exceed $200,000,000 and in the aggregate do not
exceed $1,000,000,000 (A) acquire (including by merger, consolidation,
or acquisition of stock or assets), or otherwise make any investment
in, any corporation, partnership, limited liability company, other
business organization or any division thereof, or any material amount
of assets; or (B) incur any indebtedness for borrowed money, issue any
debt securities, assume, guarantee or
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34
endorse, or otherwise as an accommodation become responsible for, the
obligations of any person, agree to amend or otherwise modify in any
manner any agreement or instrument pursuant to which Viacom has
incurred indebtedness, or make any loans or advances, except in the
ordinary course of business and consistent with past practice, except
the refinancing of existing indebtedness, borrowings under commercial
paper programs in the ordinary course of business or borrowings under
existing bank lines of credit in the ordinary course of business, (ii)
enter into any contract, agreement or transaction, other than (X) in
the ordinary course of business, consistent with past practice and (Y)
which would not be reasonably likely to prevent or materially delay the
consummation of the Merger, (iii) authorize any capital expenditures
which are, in the aggregate, in excess of the amount currently budgeted
therefor (and previously disclosed to CBS) for the fiscal year ending
December 31, 1999, and, with respect to fiscal year December 31, 2000,
10% in excess of such amount, in each case for Viacom and its
subsidiaries taken as a whole or (iv) enter into or amend any contract,
agreement, commitment or arrangement which would require Viacom to take
any action prohibited by this subsection (e);
(f) increase the compensation payable or to become payable to
its executive officers or employees, except as required by Law or by
the terms of any collective bargaining agreement or other agreement
currently in effect between Viacom or any subsidiary of Viacom and any
executive officer or employee thereof and except for increases in the
ordinary course of business in accordance with past practices, or grant
any severance or termination pay to, or enter into any employment or
severance agreement with, any director or executive officer of it or
any of its subsidiaries, or establish, adopt, enter into or amend in
any material respect or take action to accelerate any rights or
benefits under any collective bargaining, bonus, profit sharing,
thrift, compensation, stock option, restricted stock, pension,
retirement, deferred compensation, employment, termination, severance
or other plan, agreement, trust, fund, policy or arrangement for the
benefit of any director, executive officer or employee, provided that
this clause shall not prevent any Viacom subsidiary from (i) entering
into employment contracts with newly- hired or promoted executive
officers on terms substantially consistent with the contractual
arrangements currently existing at such subsidiary or (ii) providing
for the payment of severance to executive officers or employees on
terms substantially consistent with the past practices of such
subsidiary;
(g) change in any material respect (except as required by the
SEC or changes in United States generally accepted accounting
principles which become effective after the date of this Agreement) any
accounting policies, practices or procedures;
(h) make any tax election that, individually or in the
aggregate, would have a Viacom Material Adverse Effect or settle or
compromise any material Tax liability; or
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(i) enter into any contract, agreement, lease, license,
permit, franchise or other instrument or obligation which if in
existence and known to Viacom prior to the date of this Agreement would
have resulted in a breach of Section 4.05, except to the extent the
conflict, violation breach, default or occurrence of the type referred
to therein giving rise to such breach would not have a Viacom Material
Adverse Effect;
provided, that Blockbuster shall not be prohibited from taking any action under
this Section 5.02 which the Board of Directors of Blockbuster determines is
required to be taken in the exercise of the Board's fiduciary duties to the
stockholders of Blockbuster (other than Viacom).
SECTION 5.03. Other Actions. Except as required by Law, CBS
and Viacom shall not, and shall not permit any of their respective subsidiaries
to, take any action that would, or that is reasonably likely to, result in any
of the conditions to the Merger set forth in Article VII not being satisfied.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01. Registration Statement; Joint Proxy Statement.
(a) As promptly as practicable after the execution of this Agreement, (i) Viacom
and CBS shall cooperate in preparing and each shall cause to be filed with the
SEC a joint proxy statement (together with any amendments thereof or supplements
thereto, the "Proxy Statement") relating to the meetings of Viacom's and CBS's
stockholders to be held to consider approval and adoption of this Agreement and
the Viacom Proposals and (ii) Viacom shall prepare and file with the SEC a
registration statement on Form S-4 (together with all amendments thereto, the
"Registration Statement") in which the Proxy Statement shall be included as a
prospectus, in connection with the registration under the Securities Act of the
shares of Viacom Class B Common Stock to be issued to the shareholders of CBS
pursuant to the Merger. Each of Viacom and CBS shall use its reasonable best
efforts to cause the Registration Statement to become effective as promptly as
practicable, and, prior to the effective date of the Registration Statement,
Viacom shall use reasonable best efforts to take all or any action required
under any applicable federal or state securities Laws in connection with the
issuance of shares of Viacom Class B Common Stock pursuant to the Merger. Each
of Viacom and CBS shall furnish all information concerning it as may reasonably
be requested by the other party in connection with such actions and the
preparation of the Registration Statement and Proxy Statement. As promptly as
practicable after the Registration Statement shall have become effective, each
of Viacom and CBS shall mail the Proxy Statement to its stockholders and to its
shareholders, respectively. Each of Viacom and CBS shall also promptly file, use
reasonable best efforts to cause to become effective as promptly as practicable
and, if required, mail to its stockholders and shareholders, respectively, any
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36
amendment to the Registration Statement or Proxy Statement which may become
necessary after the date the Registration Statement is declared effective.
(b) (i) The Proxy Statement shall include the recommendation
of the Board of Directors of Viacom to the stockholders of Viacom in favor of
approval of the Viacom Proposals; provided, however, that the Board of Directors
of Viacom may take or disclose to its stockholders a position contemplated by
Rule 14e-2(a) promulgated under the Exchange Act or make any disclosure required
under applicable Law and may, prior to the date of its Stockholders' Meeting,
withdraw, modify, or change any such recommendation to the extent that the Board
of Directors of Viacom determines in good faith that such withdrawal,
modification or change is required in order to comply with its fiduciary duties
to Viacom's stockholders under applicable Law after receiving advice from
independent legal counsel (who may be Viacom's regularly engaged outside legal
counsel).
(ii) The Proxy Statement shall include the recommendation of
the Board of Directors of CBS to the shareholders of CBS in favor of adoption of
this Agreement; provided, however, that the Board of Directors of CBS may take
or disclose to its shareholders a position contemplated by Rule 14e-2(a)
promulgated under the Exchange Act or make any disclosure required under
applicable Law and may, prior to the date of its Stockholders' Meeting,
withdraw, modify, or change any such recommendation to the extent that the Board
of Directors of CBS determines in good faith that such withdrawal, modification
or change is required in order to comply with its fiduciary duties under
applicable Law after receiving advice from independent legal counsel (who may be
CBS's regularly engaged outside legal counsel).
(c) Notwithstanding any withdrawal, modification or change in
any approval or recommendation of the Board of Directors of CBS or Viacom, as
the case may be, each of CBS and Viacom agree to hold their respective
Stockholders Meeting in accordance with the time period specified in Section
6.02.
(d) No amendment or supplement to the Proxy Statement or the
Registration Statement will be made by Viacom or CBS without the approval of the
other party, which shall not be unreasonably withheld or delayed. Each of Viacom
and CBS will advise the other, promptly after it receives notice thereof, of the
time when the Registration Statement has become effective or any supplement or
amendment has been filed, the issuance of any stop order, the suspension of the
qualification of the Viacom Class B Common Stock issuable in connection with the
Merger for offering or sale in any jurisdiction, or any request by the SEC for
amendment of the Proxy Statement or the Registration Statement or comments
thereon and responses thereto or requests by the SEC for additional information.
(e) The information supplied by CBS for inclusion in the
Registration Statement and the Proxy Statement (including by incorporation by
reference) shall not, at (i) the time the Registration Statement is declared
effective, (ii) the time the Proxy Statement (or any
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37
amendment thereof or supplement thereto) is first mailed to the stockholders and
shareholders of Viacom and CBS, respectively, (iii) the time of each of the
Stockholders' Meetings (as hereinafter defined), and (iv) the Effective Time,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading. If at any time prior to the Effective Time any event or
circumstance relating to CBS or any of its subsidiaries, or their respective
officers or directors, should be discovered by CBS which, pursuant to the
Securities Act or Exchange Act, should be set forth in an amendment or a
supplement to the Registration Statement or Proxy Statement, CBS shall promptly
inform Viacom. All documents that CBS is responsible for filing with the SEC in
connection with the Merger will comply as to form in all material respects with
the applicable requirements of the Securities Act and the Exchange Act.
(f) The information supplied by Viacom for inclusion in the
Registration Statement and the Proxy Statement (including by incorporation by
reference) shall not, at (i) the time the Registration Statement is declared
effective, (ii) the time the Proxy Statement (or any amendment thereof or
supplement thereto) is first mailed to the stockholders of Viacom and the
shareholders of CBS, (iii) the time of each of the Stockholders' Meetings, and
(iv) the Effective Time, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading. If at any time prior to the
Effective Time any event or circumstance relating to Viacom or any of its
subsidiaries, or their respective officers or directors, should be discovered by
Viacom which, pursuant to the Securities Act or Exchange Act, should be set
forth in an amendment or a supplement to the Registration Statement or Proxy
Statement, Viacom shall promptly inform CBS. All documents that Viacom is
responsible for filing with the SEC in connection with the Merger will comply as
to form in all material respects with the applicable requirements of the
Securities Act and the Exchange Act.
(g) Viacom and CBS each hereby (i) consents to the use of its
name and, on behalf of its subsidiaries and affiliates, the names of such
subsidiaries and affiliates and to the inclusion of financial statements and
business information relating to such party and its subsidiaries and affiliates
(in each case, to the extent required by applicable securities laws) in any
registration statement or proxy statement prepared by Viacom, CBS or any person
or entity with which Viacom or CBS, consistent with their obligations under this
Agreement, has entered into, or may prior to the Effective Time enter into, a
definitive acquisition agreement, (ii) agrees to use its reasonable best efforts
to obtain the written consent of any person or entity retained by it which may
be required to be named (as an expert or otherwise) in such registration
statement or proxy statement; provided, that such party shall not be required to
make any material payment to such person or entity in connection with such
party's efforts to obtain any such consent, and (iii) agrees to cooperate, and
agrees to use its reasonable best efforts to cause its subsidiaries and
affiliates to cooperate, with any legal counsel, investment banker, accountant
or other agent or representative retained by any of the parties specified in
clause (i) in connection with the preparation of any and all information
required, as determined after consultation with each party's
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38
counsel, to be disclosed by applicable securities laws in any such registration
statement or proxy statement.
(h) CBS and Viacom will use their best efforts to complete the
pro forma financial statements with respect to the Merger, in a form suitable
for filing in connection with a registration statement under the Securities Act,
as soon as possible, and in any event within 10 days after the execution of this
Agreement.
(i) CBS shall consult with Viacom, and provide Viacom
reasonable opportunity to review and comment on, and CBS and Viacom will use
their respective reasonable best efforts to agree on, CBS's and Infinity's
accounting for the Pending Transactions.
SECTION 6.02. Stockholders' Meetings. Each of Viacom and CBS
shall call and hold a meeting of its stockholders or shareholders, respectively
(collectively, the "Stockholders' Meetings"), as promptly as practicable for the
purpose of voting upon, in the case of Viacom, the Viacom Proposals, and, in the
case of CBS, the adoption of this Agreement, and CBS and Viacom shall hold the
Stockholders' Meeting as soon as practicable after the date on which the
Registration Statement becomes effective and will use reasonable best efforts to
hold the Stockholders' Meetings on the same day. Each of Viacom and CBS shall
use its reasonable best efforts to solicit from its stockholders proxies in
favor of the adoption of this Agreement, in the case of CBS, and the Viacom
Proposals, in the case of Viacom, and shall take all other action necessary or
advisable to secure the vote of its stockholders and shareholders, respectively,
required by the NYSE, Pennsylvania Law or Delaware Law, as applicable, to obtain
such approvals; provided, however, that Viacom or CBS, as applicable, shall not
be obligated to solicit proxies in favor of the adoption of this Agreement, in
the case of CBS, or in favor of the Viacom Proposals, in the case of Viacom, at
its Stockholders' Meeting to the extent that the Board of Directors of Viacom or
CBS, as applicable, determines in good faith that such failure to solicit
proxies is required in order to comply with its fiduciary duties under
applicable Law after receiving advice to such effect from independent legal
counsel (who may be such party's regularly engaged outside legal counsel);
provided, further, however, that notwithstanding anything to the contrary in the
foregoing, each of CBS and Viacom shall hold its Stockholders Meeting in
accordance with the time periods specified in the first sentence of this Section
6.02.
SECTION 6.03. Appropriate Action; Consents; Filings. (a) Each
of the parties hereto shall (i) make promptly its respective filings, and
thereafter make any other required submissions under the HSR Act with respect to
the transactions contemplated herein and (ii) make promptly filings with or
applications to the FCC with respect to the transactions contemplated herein.
The parties hereto will use their respective best efforts, and will take all
actions necessary, to consummate and make effective the transactions
contemplated herein and to cause the conditions to the Merger set forth in
Article VII to be satisfied, (including using best efforts, and taking all
actions necessary, to obtain all licenses, permits, consents, approvals,
authorizations, waivers, qualifications and orders of Governmental Authorities
as are necessary
<PAGE>
39
for the consummation of the transactions contemplated herein),
and will do so in a manner designed to obtain such regulatory clearance and the
satisfaction of such conditions as expeditiously as possible.
(b) CBS and Viacom each agree to take promptly any and all
steps necessary to avoid or eliminate each and every impediment and obtain all
consents or waivers under any antitrust, competition or communications or
broadcast Law that may be asserted by any U.S. federal, state and local and
non-United States antitrust or competition authority, or by the FCC or
similar authority, so as to enable the parties to close the transactions
contemplated by this Agreement as expeditiously as possible, including
committing to or effecting, by consent decree, hold separate orders, trust, or
otherwise, the sale or disposition of such of its assets or businesses as are
required to be divested in order to obtain the consent of the FCC to or avoid
the entry of, or to effect the dissolution of, any decree, order, judgment,
injunction, temporary restraining order or other order in any suit or
proceeding, that would otherwise have the effect of preventing or materially
delaying the consummation of the Merger and the other transactions contemplated
by this Agreement. In addition, each of CBS and Viacom agree to take promptly
any and all steps necessary to obtain any consent or to vacate or lift any
order, writ, judgment, injunction, decree, stipulation, determination or award
entered by or with any Governmental Authority (each, an "Order") relating to
antitrust or communications or broadcast matters that would have the effect of
making any of the transactions contemplated by this Agreement illegal or
otherwise prohibiting or materially delaying their consummation. The parties
will expeditiously agree on a complete plan for compliance with applicable FCC
ownership requirements for inclusion in the FCC filings and will expeditiously
make such filings (including such agreed plan) with the FCC following the date
of this Agreement.
(c) Each of Viacom and CBS shall give (or shall cause its
respective subsidiaries to give) any notices to third parties, and Viacom and
CBS shall use, and cause each of its subsidiaries to use, its reasonable best
efforts to obtain any third party consents, necessary, proper or advisable to
consummate the Merger. Each of the parties hereto will furnish to the other such
necessary information and reasonable assistance as the other may request in
connection with the preparation of any required governmental filings or
submissions and will cooperate in responding to any inquiry from a Governmental
Authority, including immediately informing the other party of such inquiry,
consulting in advance before making any presentations or submissions to a
Governmental Authority, and supplying each other with copies of all material
correspondence, filings or communications between either party and any
Governmental Authority with respect to this Agreement.
SECTION 6.04. Access to Information; Confidentiality. (a) From
the date hereof to the Effective Time, to the extent permitted by applicable Law
and contracts, Viacom will provide to CBS (and its officers, directors,
employees, accountants, consultants, legal counsel, agents and other
representatives, collectively, "Representatives") access to all
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40
information and documents which CBS may reasonably request regarding the
business, assets, liabilities, employees and other aspects of Viacom.
(b) From the date hereof to the Effective Time, to the extent
permitted by applicable Law and contracts, CBS will provide to Viacom and its
Representatives access to all information and documents which Viacom may
reasonably request regarding the business, assets, liabilities, employees and
other aspects of CBS.
(c) The parties shall comply with, and shall cause their
respective Representatives to comply with all of their respective obligations
under the Confidentiality Agreement dated August 27, 1999 (the "Confidentiality
Agreement") between CBS and Viacom.
(d) No investigation pursuant to this Section 6.04 shall
affect any representation or warranty in this Agreement of any party hereto or
any condition to the obligations of the parties hereto.
SECTION 6.05. No Solicitation of Competing Transactions. (a)
CBS shall not, directly or indirectly, through any officer, director, agent or
otherwise, initiate, solicit or knowingly encourage (including by way of
furnishing non-public information), or take any other action knowingly to
facilitate, any inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any Competing Transaction (as defined below),
or enter into or maintain or continue discussions or negotiate with any person
or entity in furtherance of such inquiries or to obtain a Competing Transaction,
or agree to or endorse any Competing Transaction, or authorize any of the
officers, directors or employees of CBS or any investment banker, financial
advisor, attorney, accountant or other agent or representative of CBS to take
any such action, and CBS shall notify Viacom as promptly as practicable of all
of the relevant material details relating to all inquiries and proposals which
CBS or any such officer, director, employee, investment banker, financial
advisor, attorney, accountant or other agent or representative may receive
relating to any of such matters, provided, however, that prior to the adoption
of this Agreement by the shareholders of CBS, nothing contained in this Section
6.05 shall prohibit the Board of Directors of CBS from (i) furnishing
information to, or entering into and engaging in discussions or negotiations
with, any person that makes a bona fide unsolicited written proposal that the
Board of Directors of CBS determines in good faith, after consultation with
CBS's financial advisors and independent legal counsel, can be reasonably
expected to result in a CBS Superior Proposal; provided, that prior to
furnishing such information to, or entering into discussions or negotiations
with, such person, CBS (1) provides notice to Viacom to the effect that it is
furnishing information to, or entering into discussions or negotiations with,
such person and provides in any such notice to Viacom in reasonable detail the
identity of the person making such proposal and the material terms and
conditions of such proposal, (2) provides Viacom with all information regarding
CBS provided or to be provided to such person which Viacom has not previously
been provided, and provided, further that CBS shall keep Viacom informed, on a
prompt basis, of the status and material terms of any such proposal and
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41
the status of any such discussions and negotiations and (3) receives from such
person or entity an executed confidentiality agreement containing customary
terms (which need not contain "standstill" or similar provisions), (ii)
complying with Rule 14e-2 promulgated under the Exchange Act with regard to a
tender or exchange offer or making any disclosure required under applicable Law
or (iii) failing to make or withdrawing or modifying its recommendation referred
to in Section 6.01 following the making of a CBS Superior Proposal if, solely in
the case of this clause (iii), the Board of Directors of CBS, after consultation
with and based upon the advice of independent legal counsel, determines in good
faith that such action is necessary for the Board of Directors of CBS to comply
with its fiduciary duties under applicable law.
(b) For purposes of this Agreement, "Competing Transaction"
shall mean any of the following involving CBS: (i) any merger, consolidation,
share exchange, business combination, issuance or purchase of securities or
other similar transaction other than transactions specifically permitted
pursuant to Section 5.01 of this Agreement; (ii) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition of the assets of CBS in a single
transaction or series of related transactions; (iii) any tender offer or
exchange offer for CBS securities or the filing of a registration statement
under the Securities Act in connection with any such exchange offer; in the case
of clauses (i), (ii) or (iii) above, which transaction would result in a third
party (or its shareholders) acquiring more than 35% of the voting power of the
Shares then outstanding or more than 35% of the assets of CBS and its
subsidiaries, taken as a whole; or (iv) any public announcement of an agreement,
proposal, plan or intention to do any of the foregoing, either during the
effectiveness of this Agreement or at any time thereafter.
(c) For purposes of this Agreement, a "CBS Superior Proposal"
means any proposal made by a third party which would result in such party (or in
the case of a parent-to- parent merger, its stockholders) acquiring, directly or
indirectly, including pursuant to a tender offer, exchange offer, merger,
consolidation, share exchange, business combination, share purchase, asset
purchase, recapitalization, liquidation, dissolution, joint venture or similar
transaction, more than 50% of the voting power of the Shares then outstanding or
all or substantially all the assets of CBS and its subsidiaries, taken as a
whole, for consideration which the Board of Directors of CBS determines in its
good faith judgment to be more favorable to CBS's shareholders than the Merger.
SECTION 6.06. Directors' and Officers' Indemnification and
Insurance. (a) The Certificate of Incorporation and By-Laws of the Surviving
Corporation shall contain the provisions with respect to indemnification set
forth in the Certificate of Incorporation and By-laws of Viacom on the date of
this Agreement, which provisions shall not be amended, repealed or otherwise
modified after the Effective Time in any manner that would adversely affect the
rights thereunder of individuals who at any time prior to the Effective Time
were directors or officers of CBS in respect of actions or omissions occurring
at or prior to the Effective Time (including, without limitation, the
transactions contemplated by this Agreement), unless such modification is
required by law.
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(b) The Surviving Corporation shall maintain in effect for six
years from the Effective Time directors' and officers' liability insurance
covering those persons who are currently covered by CBS's directors' and
officers' liability insurance policy on terms comparable to such existing
insurance coverage; provided, however, that in no event shall the Surviving
Corporation be required to expend pursuant to this Section 6.06 more than an
amount per year equal to 300% of current annual premiums paid by CBS for such
insurance and; provided, further that if the annual premiums exceed such amount,
Viacom shall be obligated to obtain a policy with the greatest coverage
available for an annual cost not exceeding such amount.
(c) This Section 6.06 shall survive the consummation of the
Merger, is intended to benefit each indemnified party, shall be binding, jointly
and severally, on all successors and assigns of the Surviving Corporation, and
shall be enforceable by the indemnified parties and their successors.
SECTION 6.07. Notification of Certain Matters. CBS shall give
prompt notice to Viacom, and Viacom shall give prompt notice to CBS, of (i) the
occurrence, or nonoccurrence, of any event the occurrence, or nonoccurrence, of
which would be likely to cause (x) any representation or warranty contained in
this Agreement to be untrue or inaccurate or (y) any covenant, condition or
agreement contained in this Agreement not to be complied with or satisfied and
(ii) any failure of CBS or Viacom, as the case may be, to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by it
hereunder; provided, however, that the delivery of any notice pursuant to this
Section 6.07 shall not limit or otherwise affect the remedies available
hereunder to the party receiving such notice.
SECTION 6.08. Tax Treatment. (a) The Agreement is intended to
constitute a "plan of reorganization" within the meaning of Section 1.368-2(g)
of the income tax regulations promulgated under the Code.
(b) Between the date of this Agreement and the Effective Time,
neither CBS nor Viacom nor their affiliates shall directly or indirectly take
any action that could prevent the Merger from qualifying as a reorganization
under Section 368(a) of the Code, that could prevent each of them from providing
representations required from them in Sections 7.02(c) or 7.03(c), or that could
prevent the opinions described in such Sections from being provided. Each of
them shall use all reasonable efforts to cause the opinions described in such
Sections to be provided, and to cause similar opinions to be provided at the
date of filing of the Registration Statement.
(c) Neither CBS nor Viacom shall (without the consent of the
other) take any action, except as specifically contemplated by this Agreement,
that could adversely affect the intended tax treatment of the Pending
Transactions.
SECTION 6.09. Stock Exchange Listing. Viacom shall as promptly
as reasonably practicable prepare and submit to NYSE a listing application
covering the shares of
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Viacom Class B Common Stock to be issued in the Merger and the shares of Viacom
Class B Common Stock underlying the CBS Options outstanding immediately prior to
the Effective Time and shall use its best efforts to cause such shares to be
approved for listing on the NYSE prior to the Effective Time.
SECTION 6.10. Public Announcements. Viacom and CBS shall
consult with each other before issuing any press release or otherwise making any
public statements with respect to this Agreement and shall not issue any such
press release or make any such public statement without the prior consent of the
other (which consent shall not be unreasonably withheld or delayed), except as
may be required by Law or any listing agreement with the NYSE to which Viacom or
CBS is a party. The parties have agreed on the text of a joint press release by
which Viacom and CBS will announce the execution of this Agreement.
SECTION 6.11. Viacom's Directors. The Board of Directors of
Viacom shall take all such action as may be necessary to cause the number of
directors on the Board of Directors of Viacom to be increased to eighteen as of
the Effective Time and to cause to be appointed to the Board of Directors of
Viacom as of the Effective Time eight designees of CBS, one of whom shall be Mel
Karmazin (unless Mel Karmazin shall no longer be available to serve in such
capacity) and the other seven of whom shall consist of CBS directors designated
in writing by CBS to Viacom prior to the mailing of the Proxy Statement as set
forth in Exhibit A-1 hereto.
SECTION 6.12. Rights Agreement. The Board of Directors of CBS
shall take such action as is necessary to render the Rights inapplicable to the
Merger and the other transactions contemplated by this Agreement.
SECTION 6.13. Assumption of Debt and Leases. (a) With respect
to debt issued by CBS under indentures qualified under the Trust Indenture Act
of 1939, and any other debt of CBS the terms of which require Viacom to assume
such debt in order to avoid default thereunder (collectively, the "CBS
Indentures"), Viacom shall execute and deliver to the trustees or other
representatives in accordance with the terms of the respective CBS Indentures,
Supplemental Indentures, in form satisfactory to the respective trustees or
other representatives, expressly assuming the obligations of CBS with respect to
the due and punctual payment of the principal of (and premium, if any) and
interest, if any, on all debt securities issued by CBS under the respective
Indentures and the due and punctual performance of all the terms, covenants and
conditions of the respective CBS Indentures to be kept or performed by CBS and
shall deliver such Supplemental Indentures to the respective trustees or other
representatives under the CBS Indentures.
(b) Viacom shall, promptly upon the reasonable request of CBS,
provide CBS with a letter which states that Viacom agrees that, as the Surviving
Corporation in the Merger, as
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of and following the Effective Time, it will succeed to, honor, and satisfy all
obligations and liabilities of CBS.
SECTION 6.14. Affiliates of CBS. CBS represents and warrants
to Viacom that prior to the date of the CBS Stockholders' Meeting CBS will
deliver to Viacom a letter identifying all persons who may be deemed affiliates
of CBS under Rule 145 of the Securities Act, including, without limitation, all
directors and executive officers of CBS, and CBS represents and warrants to
Viacom that CBS has advised the persons identified in such letter of the resale
restrictions imposed by applicable securities laws. CBS shall use its reasonable
best efforts to obtain from each person identified in such letter a written
agreement, substantially in the form of Exhibit 6.14. CBS shall use its
reasonable best efforts to obtain as soon as practicable from any person who may
be deemed to have become an affiliate of CBS after CBS's delivery of the letter
referred to above and prior to the Effective Time, a written agreement
substantially in the form of Exhibit 6.14.
SECTION 6.15. Prior Service. With respect to any medical and
dental benefits provided to Continuing Employees as of or following the
Effective Time under Viacom's benefit plans, Viacom agrees that it will waive
waiting periods and pre-existing condition requirements under such plans (to the
extent waived under CBS's plans), and will give Continuing Employees credit for
any co-payments and deductibles actually paid by such employees under CBS's
medical and dental plans during the calendar year in which the Effective Time
occurs. In addition, service with CBS shall be recognized for all purposes under
Viacom's compensation and benefit plans, programs, policies and arrangements,
except where crediting such service would result in a duplication of benefits.
Without limiting the generality of the foregoing, Viacom shall honor all
vacation, personal and sick days accrued by Continuing Employees under CBS's
plans, policies, programs and arrangements immediately prior to the Effective
Time.
SECTION 6.16. Employee Matters. (a) Viacom may establish
retention and severance arrangements for its officers or employees consistent
with the terms and conditions set forth in Section 6.16 of the Viacom Disclosure
Schedule (the "Viacom Employee Arrangements").
(b) CBS may establish retention and severance and similar
compensation arrangements for its officers and employees; provided that the
aggregate amount expended pursuant to such arrangements does not materially
exceed the estimated value of the Viacom Employee Arrangements.
(c) Each of CBS and Viacom shall consult with the other on the
design and implementation of the retention arrangements and the allocations of
the payments thereunder.
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ARTICLE VII
CONDITIONS TO THE MERGER
SECTION 7.01. Conditions to the Obligations of Each Party. The
obligations of CBS and Viacom to consummate the Merger are subject to the
satisfaction or waiver of the following conditions:
(a) (i) this Agreement shall have been adopted by the
affirmative vote of a majority of the votes cast by all shareholders
entitled to vote at the CBS Stockholders' Meeting in accordance with
Pennsylvania Law and CBS's Articles of Incorporation and (ii) the
Viacom Proposals shall have been approved by the affirmative vote of
the holders of a majority of the Viacom Class A Common Stock;
(b) any applicable waiting period under the HSR Act relating
to the Merger shall have expired or been terminated;
(c) no Governmental Authority or court of competent
jurisdiction shall have enacted, issued, promulgated, enforced or
entered any Law, rule, regulation, executive order or Order which is
then in effect and has the effect of making the Merger illegal or
otherwise prohibiting consummation of the Merger;
(d) the Registration Statement shall have been declared
effective, and no stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for such
purpose shall be pending before or threatened by the SEC;
(e) (i) all authorizations, consents, waivers, orders or
approvals for the Merger required to be obtained and all conditions
precedent to such authorizations, consents, waivers, orders or
approvals shall have been satisfied, and all filings, notices or
declarations required to be made, by Viacom and CBS prior to the
consummation of the Merger and the transactions contemplated hereunder,
shall have been obtained from, and made with, the FCC and competition
and antitrust Governmental Authorities in Canada and either the
European Union or the United Kingdom, as applicable, and (ii) all other
authorizations, consents, waivers, orders or approvals for the Merger
required to be obtained, and all other filings, notices or declarations
required to be made, by Viacom and CBS prior to the consummation of the
Merger and the transactions contemplated hereunder, shall have been
obtained from, and made with, all required Governmental Entities,
except for such authorizations, consents, waivers, orders, approvals,
filings, notices or declarations the failure to obtain or make which
would not have a material adverse effect, at or after the Effective
Time, on the business, results of operations or financial condition of
CBS and its subsidiaries and Viacom and its subsidiaries, collectively
taken as a whole; and
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(f) the shares of Viacom Class B Common Stock issuable to
CBS's shareholders in the Merger and to holders of CBS Options
outstanding immediately prior to the Effective Time shall have been
authorized for listing on the NYSE, subject to official notice of
issuance.
SECTION 7.02. Conditions to the Obligations of Viacom. The
obligations of Viacom to consummate the Merger are subject to the satisfaction
or waiver of the following further conditions:
(a) each of the representations and warranties of CBS
contained in this Agreement shall be true and correct as of the
Effective Time as though made on and as of the Effective Time (except
to the extent expressly made as of an earlier date, in which case as of
such date), except where the failure to be so true and correct would
not have, individually or in the aggregate, a CBS Material Adverse
Effect, and Viacom shall have received a certificate of an officer of
CBS to such effect;
(b) CBS shall have performed or complied in all material
respects with all material agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the
Effective Time, and Viacom shall have received a certificate of an
officer of CBS to that effect; and
(c) Viacom shall have received the opinion of Paul, Weiss,
Rifkind, Wharton & Garrison, in form and substance reasonably
satisfactory to Viacom, to the effect that the Merger will be treated
for federal income tax purposes as a reorganization qualifying under
the provisions of section 368(a) of the Code, and Viacom and CBS will
each be a party to the reorganization within the meaning of Section
368(b) of the Code. In rendering such opinion, counsel may require and
rely upon representations contained in certificates of officers of CBS
and Viacom.
SECTION 7.03. Conditions to the Obligations of CBS. The
obligations of CBS to consummate the Merger are subject to the satisfaction or
waiver of the following further conditions:
(a) each of the representations and warranties of Viacom
contained in this Agreement shall be true and correct as of the
Effective Time as though made on and as of the Effective Time (except
to the extent expressly made as of an earlier date, in which case as of
such date), except where failure to be so true and correct would not
have, individually or in the aggregate, a Viacom Material Adverse
Effect, and CBS shall have received a certificate of an officer of
Viacom to such effect;
(b) Viacom shall have performed or complied in all material
respects with all material agreements and covenants required by this
Agreement to be performed or
<PAGE>
47
complied with by it on or prior to the Effective Time, and CBS shall
have received a certificate of an officer of Viacom to that effect; and
(c) CBS shall have received the opinion of Cravath, Swaine &
Moore, in form and substance reasonably satisfactory to CBS, to the
effect that the Merger will be treated for federal income tax purposes
as a reorganization qualifying under the provisions of section 368(a)
of the Code, and Viacom and CBS will each be a party to such
reorganization within the meaning of Section 368(b) of the Code. In
rendering such opinion, counsel may require and rely upon
representations contained in certificates of officers of Viacom and
CBS.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01. Termination. This Agreement may be terminated
and the Merger may be abandoned at any time prior to the Effective Time,
notwithstanding any requisite approval and adoption of this Agreement, as
follows:
(a) by mutual written consent duly authorized by the Boards of
Directors of each of Viacom and CBS;
(b) by either Viacom or CBS, if the Effective Time shall not
have occurred on or before August 31, 2000; provided, however, that the
right to terminate this Agreement under this Section 8.01(b) shall not
be available to any party whose failure to fulfill any obligation under
this Agreement has been the cause of, or resulted in, the failure of
the Effective Time to occur by such time;
(c) by CBS upon delivery to Viacom of written notice that a
Competing Proposal constitutes a CBS Superior Proposal; provided,
however, that such termination pursuant to this subsection (c) shall
not be effective until two business days have elapsed following
delivery to Viacom of such written notice (which written notice will
inform Viacom of the material terms and conditions of the CBS Superior
Proposal); provided, further, however, that such termination under this
subsection (c) shall not be effective until CBS has made payment to
Viacom of the amounts required to be paid pursuant to Section 8.05;
(d) by either CBS or Viacom, if this Agreement shall fail to
receive the requisite vote for adoption at the CBS Stockholders'
Meeting;
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48
(e) by CBS, upon a breach of any representation, warranty,
covenant or agreement on the part of Viacom set forth in this
Agreement, or if any representation or warranty of Viacom shall have
become untrue, in either case such that the conditions set forth in
Section 7.03(a) or (b) are not capable of being satisfied on or before
August 31, 2000 (a "Terminating Viacom Breach");
(f) by Viacom, upon breach of any representation, warranty,
covenant or agreement on the part of CBS set forth in this Agreement,
or if any representation or warranty of CBS shall have become untrue,
in either case such that the conditions set forth in Sections 7.02(a)
or (b) are not capable of being satisfied on or before August 31, 2000
("Terminating CBS Breach"); or
(g) by either Viacom or CBS, if any Governmental Authority
shall have issued an Order or taken any other action permanently
restraining, enjoining or otherwise prohibiting the transactions
contemplated by this Agreement, and such Order or other action shall
have become final and nonappealable.
SECTION 8.02. Effect of Termination. Subject to Section 8.05
hereof, in the event of termination of this Agreement pursuant to Section 8.01,
this Agreement shall forthwith become void, there shall be no liability under
this Agreement on the part of Viacom or CBS or any of their respective officers
or directors and all rights and obligations of each party hereto shall cease;
provided, however, that nothing herein shall relieve any party from liability
for the willful breach of any of its representations, warranties, covenants or
agreements set forth in this Agreement.
SECTION 8.03. Amendment. This Agreement may be amended by the
parties hereto by action taken by or on behalf of their respective Boards of
Directors at any time prior to the Effective Time; provided, however, that,
after the approval and adoption of this Agreement by either the stockholders of
Viacom or shareholders of CBS, there shall not be any amendment that by Law
requires further approval by the stockholders of Viacom or shareholders of CBS
without the further approval of such stockholders or such shareholders. This
Agreement may not be amended except by an instrument in writing signed by the
parties hereto.
SECTION 8.04. Waiver. At any time prior to the Effective Time,
any party hereto may (a) extend the time for the performance of any obligation
or other act of any other party hereto, (b) waive any inaccuracy in the
representations and warranties contained herein or in any document delivered
pursuant hereto and (c) subject to the proviso of Section 8.03, waive compliance
with any agreement or condition contained herein. Any such extension or waiver
shall be valid if set forth in an instrument in writing signed by the party or
parties to be bound thereby.
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49
SECTION 8.05. Expenses. (a) Except as set forth in this
Section 8.05, all Expenses (as defined below) incurred in connection with this
Agreement and the transactions contemplated by this Agreement shall be paid by
the party incurring such expenses, whether or not the Merger or any other
transaction is consummated, except that CBS and Viacom each shall pay one-half
of all Expenses relating to (i) printing, filing and mailing the Registration
Statement and the Proxy Statement and all SEC and other regulatory filing fees
incurred in connection with the Registration Statement and the Proxy Statement,
(ii) any filing with the FCC or similar authority and (iii) any filing with
antitrust authorities. "Expenses" as used in this Agreement shall include all
reasonable out-of-pocket expenses (including all fees and expenses of counsel,
accountants, investment bankers, experts and consultants to a party hereto and
its affiliates) incurred by a party or on its behalf in connection with or
related to the authorization, preparation, negotiation, execution and
performance of this Agreement, the preparation, printing, filing and mailing of
the Registration Statement and the Proxy Statement, the solicitation of
stockholder and shareholder approvals, the filing of any required notices under
the HSR Act or other similar regulations and all other matters related to the
closing of the Merger and the other transactions contemplated by this Agreement.
(b) CBS agrees that:
(i) if CBS shall terminate this Agreement pursuant to
Section 8.01(c); or
(ii) if (A) Viacom or CBS shall terminate this Agreement
pursuant to Section 8.01(d) due to the failure of CBS's shareholders to
approve this Agreement, (B) at or prior to the time of such failure to
so approve this Agreement a Competing Transaction with respect to CBS
shall have been made public and (C) within twelve months after such
termination (i) a Competing Transaction is consummated or (ii) a
binding agreement to enter into a Competing Transaction is entered into
by CBS (solely for purposes of this Section 8.05(b)(ii), the term
"Competing Transaction" shall have the meaning assigned to such term in
Section 6.05(b) except that references to "35%" in the definition of
"Competing Transaction" in Section 6.05(b) shall be deemed to be
references to 50%),
then CBS shall pay to Viacom an amount equal to $1,000,000,000 (the "CBS
Alternative Transaction Fee").
(c) Each of CBS and Viacom agrees that the agreements
contained in Section 8.05(b) are an integral part of the transactions
contemplated by this Agreement.
(d) All payments to Viacom under this Section 8.05 shall be
made by wire transfer of immediately available funds to an account designated by
Viacom.
<PAGE>
50
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01. Non-Survival of Representations, Warranties and
Agreements. The representations, warranties and agreements in this Agreement and
any certificate delivered pursuant hereto by any person shall terminate at the
Effective Time or upon the termination of this Agreement pursuant to Section
8.01, as the case may be, except that this Section 9.01 shall not limit any
covenant or agreement of the parties which by its terms contemplates performance
after the Effective Time or after termination of this Agreement.
SECTION 9.02. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by facsimile, by courier service or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 9.02):
if to Viacom:
Viacom Inc.
1515 Broadway
New York, New York 10036
Telecopier: (212) 258-6134
Attention: Senior Vice President,
General Counsel
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Telecopier No.: (212) 848-7179
Attention: Creighton O'M. Condon, Esq. and
Stephen R. Volk, Esq.
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51
if to CBS:
CBS Corporation
51 West 52nd Street
35th Floor
New York, New York 10019
Telecopier No.: (212) 597-4031
Attention: Louis J. Briskman, Esq.
Executive Vice President and
General Counsel
with copies to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Telecopier No.: (212) 474-3700
Attention: Allen Finkelson, Esq. and
Scott A. Barshay, Esq.
SECTION 9.03. Interpretation, Certain Definitions. When a
reference is made in this Agreement to an Article, Section or Exhibit, such
reference shall be to an Article or Section of, or an Exhibit to, this Agreement
unless otherwise indicated. The table of contents and headings for this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include",
"includes" or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation". The words "hereof", "herein" and
"hereunder" and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not to any particular provision of this
Agreement. All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein. The definitions contained in this Agreement
are applicable to the singular as well as the plural forms of such terms and to
the masculine as well as to the feminine and neuter genders of such term. Any
statute defined or referred to herein or in any agreement or instrument that is
referred to herein means such statute as from time to time amended, modified or
supplemented, including (in the case of statutes) by succession of comparable
successor statutes. References to a person are also its permitted successors and
assigns.
For purposes of this Agreement, the term:
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52
(a) "affiliate" of a specified person means a person who
directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with, such specified person;
(b) "beneficial owner" with respect to any shares means a
person who shall be deemed to be the beneficial owner of such shares
(i) which such person or any of its affiliates or associates (as such
term is defined in Rule 12b-2 promulgated under the Exchange Act)
beneficially owns, directly or indirectly, (ii) which such person or
any of its affiliates or associates has, directly or indirectly, (A)
the right to acquire (whether such right is exercisable immediately or
subject only to the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of consideration
rights, exchange rights, warrants or options, or otherwise, or (B) the
right to vote pursuant to any agreement, arrangement or understanding
or (iii) which are beneficially owned, directly or indirectly, by any
other persons with whom such person or any of its affiliates or
associates or any person with whom such person or any of its affiliates
or associates has any agreement, arrangement or understanding for the
purpose of acquiring, holding, voting or disposing of any such shares;
(c) "business day" means any day on which the principal
offices of the SEC in Washington, D.C. are open to accept filings, or,
in the case of determining a date when any payment is due, any day on
which banks are not required or authorized to close in the City of New
York;
(d) "control" (including the terms "controlled by" and "under
common control with") means the possession, directly or indirectly or
as trustee or executor, of the power to direct or cause the direction
of the management and policies of a person, whether through the
ownership of voting securities, as trustee or executor, by contract or
credit arrangement or otherwise;
(e) "Governmental Authority" means any United States (federal,
state or local) or foreign government, or governmental, regulatory or
administrative authority, agency or commission;
(f) "knowledge" means the actual knowledge of the following
officers and employees of CBS and Viacom, without benefit of an
independent investigation of any matter, as to (i) CBS: Mel Karmazin,
Leslie Moonves, Louis Briskman and Robert Freedline, and (ii) Viacom:
Sumner Redstone, Philippe Dauman, Thomas Dooley, Michael Fricklas,
George Smith and Susan Gordon;
(g) "person" means an individual, corporation, limited
liability company, partnership, limited partnership, syndicate, person
(including, without limitation, a
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53
"person" as defined in Section 13(d)(3) of the Exchange Act), trust,
association or entity or government, political subdivision, agency or
instrumentality of a government; and
(h) "subsidiary" or "subsidiaries" of any person means any
corporation, partnership, joint venture or other legal entity of which
such person (either above or through or together with any other
subsidiary), owns, directly or indirectly, more than 50% of the stock
or other equity interests, the holders of which are generally entitled
to vote for the election of the board of directors or other governing
body of such corporation or other legal entity.
SECTION 9.04. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
Law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the Merger is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the Merger be consummated as originally contemplated to the fullest
extent possible.
SECTION 9.05. Entire Agreement; Assignment. This Agreement
(including the Exhibits, the CBS Disclosure Schedule and the Viacom Disclosure
Schedule which are hereby incorporated herein and made a part hereof for all
purposes as if fully set forth herein), the Parent Voting Agreements and the
Confidentiality Agreement constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. The parties agree to comply with all
covenants and agreements set forth on the CBS Disclosure Schedule and the Viacom
Disclosure Schedule as if such covenants and agreements were fully set forth in
this Agreement. This Agreement shall not be assigned by operation of law or
otherwise.
SECTION 9.06. Parties in Interest. This Agreement shall be
binding upon and inure solely to the benefit of each party hereto, and nothing
in this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement, other than Article II and Section 6.06 (which are
intended to be for the benefit of the persons covered thereby and may be
enforced by such persons).
SECTION 9.07. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or equity.
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54
SECTION 9.08. Governing Law. This Agreement shall be governed
by, and construed in accordance with the laws of the State of Delaware, except
for such provisions where Pennsylvania Law is mandatorily applicable, which
provisions shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania.
SECTION 9.09. Consent to Jurisdiction. (a) Each of Viacom and
CBS hereby irrevocably submits to the exclusive jurisdiction of the courts of
the State of Delaware and to the jurisdiction of the United States District
Court for the State of Delaware, for the purpose of any action or proceeding
arising out of or relating to this Agreement and each of Viacom and CBS hereby
irrevocably agrees that all claims in respect to such action or proceeding may
be heard and determined exclusively in any Delaware state or federal court. Each
of Viacom and CBS agrees that a final judgment in any action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.
(b) Each of Viacom and CBS irrevocably consents to the service
of the summons and complaint and any other process in any other action or
proceeding relating to the transactions contemplated by this Agreement, on
behalf of itself or its property, by personal delivery of copies of such process
to such party. Nothing in this Section 9.09 shall affect the right of any party
to serve legal process in any other manner permitted by law.
SECTION 9.10. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH OF VIACOM AND CBS
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE ACTIONS OF VIACOM OR CBS IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, Viacom and CBS have caused this Agreement
to be executed as of the date first written above by their respective officers
thereunto duly authorized.
VIACOM INC.
By:
------------------------------
Name:
Title:
CBS CORPORATION
By:
------------------------------
Name:
Title:
<PAGE>
EXHIBIT A-1
RESTATED CERTIFICATE OF INCORPORATION
OF
VIACOM INC.
(Originally incorporated on November 10, 1986 under the name Arsenal Holdings,
Inc.)
ARTICLE I
NAME
The name of this Corporation is Viacom Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT FOR SERVICE
The registered office of the Corporation in the State of Delaware is located
at 1013 Centre Road, City of Wilmington, County of New Castle. The name and
address of the Corporation's registered agent for service of process in Delaware
is:
Corporation Service Company
1013 Centre Road
Wilmington, Delaware 19805-1297
ARTICLE III
CORPORATE PURPOSES
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV
CAPITAL STOCK
(1) Shares, Classes and Series Authorized.
(a) The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is 3,700,000,000 shares. The
classes and the aggregate number of shares of stock of each class which the
Corporation shall have authority to issue are as follows:
(i) 500,000,000 shares of Class A Common Stock, $0.01 par value ("Class
A Common Stock").
(ii) 3,000,000,000 shares of Class B Common Stock, $0.01 par value
("Class B Common Stock").
<PAGE>
(iii) 200,000,000 shares of Preferred Stock, $0.01 par value
("Preferred Stock").
(b) The number of authorized shares of Class B Common Stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) from time to time by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote.
(2) Powers and Rights of the Class A Common Stock and the Class B Common
Stock.
Except as otherwise expressly provided in this Restated Certificate of
Incorporation, all issued and outstanding shares of Class A Common Stock and
Class B Common Stock shall be identical and shall entitle the holders thereof to
the same rights and privileges.
A. Voting Rights and Powers. Except as otherwise provided in this Restated
Certificate of Incorporation or required by law, with respect to all matters
upon which stockholders are entitled to vote, the holders of the outstanding
shares of Class A Common Stock shall vote together with the holders of any
other outstanding shares of capital stock of the Corporation entitled to
vote, without regard to class, and every holder of outstanding shares of
Class A Common Stock shall be entitled to cast thereon one vote in person or
by proxy for each share of Class A Common Stock standing in his name. The
holders of shares of Class A Common Stock shall have the relevant class
voting rights set forth in Article IX. Except as otherwise required by law,
the holders of outstanding shares of Class B Common Stock shall not be
entitled to any votes upon any questions presented to stockholders of the
Corporation, including but not limited to, whether to increase or decrease
(but not below the number of shares then outstanding) the number of
authorized shares of Class B Common Stock.
B. Dividends. Subject to the rights and preferences of the Preferred Stock
set forth in this Article IV and in any resolution or resolutions providing
for the issuance of such stock as set forth in Section (3) of this Article
IV, the holders of Class A Common Stock and Class B Common Stock shall be
entitled to receive ratably such dividends as may from time to time be
declared by the Board of Directors out of funds legally available therefor.
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<PAGE>
C. Distribution of Assets Upon Liquidation. In the event the Corporation
shall be liquidated, dissolved or wound up, whether voluntarily or
involuntarily, after there shall have been paid or set aside for the holders
of all shares of the Preferred Stock then outstanding the full preferential
amounts to which they are entitled under the resolutions authorizing the
issuance of such Preferred Stock, the net assets of the Corporation remaining
thereafter shall be divided ratably among the holders of Class A Common Stock
and Class B Common Stock.
D. Split, Subdivision or Combination. If the Corporation shall in any
manner split, subdivide or combine the outstanding shares of Class A Common
Stock or Class B Common Stock, the outstanding shares of the other class of
Common Stock shall be proportionally split, subdivided or combined in the
same manner and on the same basis as the outstanding shares of the other
class of Common Stock have been split, subdivided or combined.
E. Conversion. So long as there are 10,000 shares of Class A Common Stock
outstanding, each record holder of shares of Class A Common Stock or Class B
Common Stock may convert any or all of such shares into an equal number of
shares of Class B Common Stock by surrendering the certificates for such
shares, accompanied by payment of documentary, stamp or similar issue or
transfer taxes, if any, along with a written notice by such record holder to
the Corporation stating that such record holder desires to convert such
shares into the same number of shares of Class B Common Stock and requesting
that the Corporation issue all of such Class B Common Stock to the persons
named therein, setting forth the number of shares of Class B Common Stock to
be issued to each such person and the denominations in which the certificates
therefor are to be issued.
(3)Powers and Rights of the Preferred Stock.
Subject to Article XIII of this Restated Certificate of Incorporation, the
Preferred Stock may be issued from time to time in one or more series, with such
distinctive serial designations as may be stated or expressed in the resolution
or resolutions providing for the issue of such stock adopted from time to time
by the Board of Directors; and in such resolution or resolutions providing for
the issuance of shares of each particular series, the Board of Directors is also
expressly authorized to fix; the right to vote, if any; the consideration for
which the shares of such series are to be issued; the number of shares
constituting such series, which number may be increased (except as otherwise
fixed by the
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<PAGE>
Board of Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by action of the Board of Directors; the
rate of dividends upon which and the times at which dividends on shares of such
series shall be payable and the preference, if any, which such dividends shall
have relative to dividends on shares of any other class or classes or any other
series of stock of the Corporation; whether such dividends shall be cumulative
or noncumulative, and, if cumulative, the date or dates from which dividends on
shares of such series shall be cumulative; the rights, if any, which the holders
of shares of such series shall have in the event of any voluntary or involuntary
liquidation, merger, consolidation, distribution or sale of assets, dissolution
or winding up of the affairs of the Corporation; the rights, if any, which the
holders of shares of such series shall have to convert such shares into or
exchange such shares for shares of any other class or classes or any other
series of stock of the Corporation or for any debt securities of the Corporation
and the terms and conditions, including, without limitation, price and rate of
exchange, of such conversion or exchange, whether shares of such series shall be
subject to redemption, and the redemption price or prices and other terms of
redemption, if any, for shares of such series including, without limitation, a
redemption price or prices payable in shares of Class A Common Stock or Class B
Common Stock; the terms and amounts of any sinking fund for the purchase or
redemption of shares of such series; and any and all other powers, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof pertaining to shares of such
series permitted by law.
(4)Issuance of Class A Common Stock, Class B Common Stock and Preferred
Stock.
Subject to Article XIII of this Restated Certificate of Incorporation, the
Board of Directors of the Corporation may from time to time authorize by
resolution the issuance of any or all shares of Class A Common Stock, Class B
Common Stock and Preferred Stock herein authorized in accordance with the terms
and conditions set forth in this Restated Certificate of Incorporation for such
purposes, in such amounts, to such persons, corporations, or entities, for such
consideration, and in the case of the Preferred Stock, in one or more series,
all as the Board of Directors in its discretion may determine and without any
vote or other action by any of the stockholders of the Corporation, except as
otherwise required by law.
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<PAGE>
ARTICLE V
DIRECTORS
(1) Power of the Board of Directors. Subject to Article XIII of this Restated
Certificate of Incorporation, the property and business of the Corporation shall
be controlled and managed by or under the direction of its Board of Directors.
In furtherance, and not in limitation of the powers conferred by the laws of the
State of Delaware, the Board of Directors is expressly authorized, subject in
all cases to Article XIII of this Restated Certificate of Incorporation:
(a) To make, alter, amend or repeal the By-Laws of the Corporation;
provided that no By-Laws hereafter adopted shall invalidate any prior act of
the Directors that would have been valid if such By-Laws had not been
adopted;
(b) To determine the rights, powers, duties, rules and procedures that
affect the power of the Board of Directors to manage and direct the property,
business and affairs of the Corporation, including, without limitation, the
power to designate and empower committees of the Board of Directors, to
elect, appoint and empower the officers and other agents of the Corporation,
and to determine the time and place of, and the notice requirements for Board
meetings, as well as the manner of taking Board action; and
(c) To exercise all such powers and do all such acts as may be exercised
by the Corporation, subject to the provisions of the laws of the State of
Delaware, this Restated Certificate of Incorporation, and the By-Laws of the
Corporation.
(2) Number and Qualifications of Directors. The number of directors
constituting the entire Board of Directors shall be fixed from time to time by
resolution of the Board of Directors but shall not be less than three nor more
than twenty. Directors shall be elected to hold office for a term of one year.
As used in this Restated Certificate of Incorporation, the term "entire Board of
Directors" means the total number of Directors fixed in the manner provided in
this Article V Section (2) and in the By-Laws.
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<PAGE>
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS AND OTHERS
(1)Action Not By or on Behalf of Corporation. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent (including,
without limitation, a trustee) of another corporation, partnership, joint
venture, trust or other enterprise, against judgments, fines, amounts paid in
settlement and expenses (including, without limitation, attorneys' fees),
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interests of the Corporation, and with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(2)Action By or on Behalf of Corporation. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a Director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise against expenses (including, without limitation, attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the court in
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which such action or suit was brought shall determine upon application that,
despite the adjudication of liability and in view of all of the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
(3)Successful Defense. To the extent that a present or former Director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in Section
1 or 2 of this Article VI, or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including, without limitation,
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(4) Determination of Right to Indemnification in Certain Circumstances. Any
indemnification under Section 1 or 2 of this Article VI (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the present or former Director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 1 or 2 of this Article IV.
Such determination shall be made, with respect to a person who is a Director or
officer at the time of such determination, (1) by a majority vote of the
Directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) by a committee of such Directors designated by a
majority vote of such Directors, even though less than a quorum, or (3) if there
are no such Directors, or if such Directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders of the Corporation
entitled to vote thereon.
(5) Advance Payment of Expenses.
(a) Expenses (including attorneys' fees) incurred by a Director or officer
in defending any civil, criminal, administrative or investigative action, suit
or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Director or officer, to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article.
(b) Expenses (including attorneys' fees) incurred by any other employee or
agent in defending any civil, criminal, administrative or investigative action,
suit or proceeding may be paid by the Corporation in advance of the final
disposition
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of such action, suit or proceeding upon such terms and conditions, if any, as
the Corporation deems appropriate.
(6)Not Exclusive. The indemnification and advancement of expenses provided
by, or granted pursuant to, the other sections of this Article VI shall not be
deemed exclusive of any other rights to which a person seeking indemnification
or advancement of expenses may be entitled under any statute, by-law, agreement,
vote of stockholders or disinterested Directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office. Without limiting the foregoing, the Corporation is authorized to enter
into an agreement with any Director, officer, employee or agent of the
Corporation providing indemnification for such person against expenses,
including, without limitation, attorneys' fees, judgments, fines and amounts
paid in settlement that result from any threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
including, without limitation, any action by or in the right of the Corporation,
that arises by reason of the fact that such person is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, to the full
extent allowed by law, except that no such agreement shall provide for
indemnification for any actions that constitute fraud, actual dishonesty or
willful misconduct.
(7)Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a Director, officer, employee or agent of the
Corporation, or is or was serving as the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article VI.
(8)Certain Definitions. For the purposes of this Article VI, (A) any
Director, officer, employee or agent of the Corporation who shall serve as a
director, officer, employee or agent of any other corporation, joint venture,
trust or other enterprise of which the Corporation, directly or indirectly, is
or was a stockholder or creditor, or in which the Corporation is or was in any
way interested, or (B) any director, officer, employee or agent of any
subsidiary corporation, joint venture, trust or other enterprise wholly
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owned by the Corporation, shall be deemed to be serving as such director,
officer, employee or agent at the request of the Corporation, unless the Board
of Directors of the Corporation shall determine otherwise. In all other
instances where any person shall serve as a director, officer, employee or agent
of another corporation, joint venture, trust or other enterprise of which the
Corporation is or was a stockholder or creditor, or in which it is or was
otherwise interested, if it is not otherwise established that such person is or
was serving as such director, officer, employee or agent at the request of the
Corporation, the Board of Directors of the Corporation may determine whether
such service is or was at the request of the Corporation, and it shall not be
necessary to show any actual or prior request for such service. For purposes of
this Article VI, references to a corporation include all constituent
corporations absorbed in a consolidation or merger as well as the resulting or
surviving corporation so that any person who is or was a director, officer,
employee or agent of such a constituent corporation or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, joint venture, trust or other enterprise shall
stand in the same position under the provisions of this Article VI with respect
to the resulting or surviving corporation as he would if he had served the
resulting or surviving corporation in the same capacity. For purposes of this
Article VI, references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director, officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries, and a person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article VI.
(9)The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VI shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
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ARTICLE VII
DIRECTOR LIABILITY TO THE CORPORATION
(a)A Director's liability to the Corporation for breach of duty to the
Corporation or its stockholders shall be limited to the fullest extent permitted
by Delaware law as now in effect or hereafter amended. In particular no Director
of the Corporation shall be liable to the Corporation or any of its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, as the same exists or
hereafter may be amended, or (iv) for any transaction from which the Director
derived an improper personal benefit.
(b)Any repeal or modification of the foregoing paragraph (a) by the
stockholders of the Corporation entitled to vote thereon shall not adversely
affect any right or protection of a director of the Corporation existing at the
time of such repeal or modification.
(c)If the General Corporation Law of the State of Delaware is amended to
authorize corporate action further eliminating or limiting the liability of
directors, then a director of the Corporation, in addition to the circumstances
in which he is not now liable, shall be free of liability to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended.
ARTICLE VIII
RESERVATION OF RIGHT TO AMEND
CERTIFICATE OF INCORPORATION
Subject to Article XIII of this Restated Certificate of Incorporation, the
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Restated Certificate of Incorporation in the manner now or
hereafter prescribed by law, and all the provisions of this Restated Certificate
of Incorporation and all rights and powers conferred in this Restated
Certificate of Incorporation on stockholders, directors and officers are subject
to this reserved power.
Each reference in the Restated Certificate of Incorporation to "the Restated
Certificate of Incorporation", "hereunder", "hereof", or words of like import
and each reference to the
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Restated Certificate of Incorporation set forth in any amendment to the Restated
Certificate of Incorporation shall mean and be a reference to the Restated
Certificate of Incorporation as supplemented and amended through such amendment
to the Restated Certificate of Incorporation.
ARTICLE IX
VOTING RIGHTS
(1)Class A Common Stock. In addition to any other approval required by law or
by this Restated Certificate of Incorporation, the affirmative vote of a
majority of the then outstanding shares of Class A Common Stock, voted
separately as a class, shall be necessary to approve any consolidation of the
Corporation with another corporation, any merger of the Corporation into another
corporation or any merger of any other corporation into the Corporation pursuant
to which shares of Common Stock are converted into or exchanged for any
securities or any other consideration.
(2)Preferred Stock. Subject to Article XIII of this Restated Certificate of
Incorporation, in addition to any other approval required by law or by this
Restated Certificate of Incorporation, each particular series of any class of
Preferred Stock shall have such right to vote, if any, as shall be fixed in the
resolution or resolutions, adopted by the Board of Directors, providing for the
issuance of shares of such particular series.
ARTICLE X
STOCK OWNERSHIP
AND THE FEDERAL COMMUNICATIONS LAWS
(1)Requests for Information. So long as the Corporation or any of its
subsidiaries holds any authorization from the Federal Communications Commission
(or any successor thereto), if the Corporation has reason to believe that the
ownership, or proposed ownership, of shares of capital stock of the Corporation
by any stockholder or any person presenting any shares of capital stock of the
Corporation for transfer into his name (a "Proposed Transferee") may be
inconsistent with, or in violation of, any provision of the Federal
Communications Laws (as hereinafter defined), such stockholder or Proposed
Transferee, upon request of the Corporation, shall furnish promptly to the
Corporation such information (including, without limitation, information with
respect to citizenship, other ownership interests and affiliations) as the
Corporation shall reasonably request to determine whether the ownership of, or
the exercise of any rights with respect
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to, shares of capital stock of the Corporation by such stockholder or Proposed
Transferee is inconsistent with, or in violation of, the Federal Communications
Laws. For purposes of this Article X, the term "Federal Communications Laws"
shall mean any law of the United States now or hereafter in effect (and any
regulation thereunder) pertaining to the ownership of, or the exercise of the
rights of ownership with respect to, capital stock of corporations holding,
directly or indirectly, Federal Communications Commissions authorizations,
including, without limitation, the Communications Act of 1934, as amended (the
"Communications Act"), and regulations thereunder pertaining to the ownership,
or the exercise of the rights of ownership, of capital stock of corporations
holding, directly or indirectly, Federal Communications Commission
authorizations, by (i) aliens, as defined in or under the Communications Act, as
it may be amended from time to time, (ii) persons and entities having interests
in television or radio stations, daily newspapers and cable television systems
or (iii) persons or entities, unilaterally or otherwise, seeking direct or
indirect control of the Corporation, as construed under the Communications Act,
without having obtained any requisite prior Federal regulatory approval to such
control.
(2)Denial of Rights, Refusal to Transfer. If any stockholder or Proposed
Transferee from whom information is requested should fail to respond to such
request pursuant to Section (1) of this Article or the Corporation shall
conclude that the ownership of, or the exercise of any rights of ownership with
respect to, shares of capital stock of the Corporation, by such stockholder or
Proposed Transferee, could result in any inconsistency with, or violation of,
the Federal Communications Laws, the Corporation may refuse to permit the
transfer of shares of capital stock of the Corporation to such Proposed
Transferee, or may suspend those rights of stock ownership the exercise of which
would result in any inconsistency with, or violation of, the Federal
Communications Laws, such refusal of transfer or suspension to remain in effect
until the requested information has been received and the Corporation has
determined that such transfer, or the exercise of such suspended rights, as the
case may be, is permissible under the Federal Communications Laws, and the
Corporation may exercise any and all appropriate remedies, at law or in equity,
in any court of competent jurisdiction, against any such stockholder or Proposed
Transferee, with a view towards obtaining such information or preventing or
curing any situation which would cause any inconsistency with, or violation of,
any provision of the Federal Communications Laws.
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(3)Legends. The Corporation may note on the certificates of its capital stock
that the shares represented by such certificates are subject to the restrictions
set forth in this Article.
(4)Certain Definitions. For purposes of this Article, the word "person" shall
include not only natural persons but partnerships, associations, corporations,
joint ventures and other entities, and the word "regulation" shall include not
only regulations but rules, published policies and published controlling
interpretations by an administrative agency or body empowered to administer a
statutory provision of the Federal Communications Laws.
ARTICLE XI
TRANSACTIONS WITH DIRECTORS AND OFFICERS
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the board or
committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose if (a) the material
facts as to his relationship or interest and as to the contract or transaction
are disclosed or are known to the Board of Directors or the committee, and the
Board of Directors or the committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum, or (b)
the material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of such stockholders, or (c) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified by the
Board of Directors, a committee thereof, or the stockholders entitled to vote
thereon. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
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ARTICLE XII
COMPROMISE AND REORGANIZATION
Whenever a compromise or arrangement is proposed between this Corporation and
its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agrees to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE XIII
GOVERNANCE OF THE CORPORATION
DURING SPECIFIED PERIOD
(1) Definitions. As used in this Article XIII, the following terms shall have
the following meanings:
(a) "CBS" shall mean CBS Corporation, a Pennsylvania corporation, immediately
prior to the Effective Time.
(b) "CBS Directors" shall mean (i) eight (8) of those directors serving as
members of the Board of Directors of CBS on September 6, 1999 (or any
Independent Directors elected or appointed prior to the Effective Time to serve
as a CBS Director) who are designated as such by the Board of Directors of CBS
prior to the Effective Time and (ii) any Replacement CBS Director (as defined in
Section 2(b) of this Article XIII).
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(e) "CEO" shall mean the Chief Executive Officer.
(d) "COO" shall mean the President and Chief Operating Officer.
(e) "Effective Time" shall mean the time of filing of the Certificate of Merger
to which this Certificate of Incorporation is attached.
(f) "Independent Director" shall mean a disinterested, independent person
(determined in accordance with customary standards for independent directors
applicable to U.S. public companies).
(g) "NAI" shall mean National Amusements, Inc., a Maryland corporation, and its
successors or assigns.
(h) "Specified Independent Directors" shall mean the directors of
the Corporation first elected after 1993 and who are not management of the
Corporation or NAI (together with any replacements of such persons).
(i)"Specified Period" shall mean the period of three years commencing at the
Effective Time.
(j) "Stockholder Agreement" shall mean the Stockholder
Agreement dated as of September 6, 1999, by and between NAI and CBS, relating to
Corporation governance matters.
() "Viacom Directors" shall mean the ten (10) directors of the Corporation
serving as the Board of Directors of the Corporation immediately prior to the
Effective Time (including the Specified Independent Directors).
(2) Directors.
(3) (a) Effective immediately at the Effective Time, the Board of Directors
shall consist of eighteen (18) directors. The number of directors may be fixed
by resolution of the Board from time to time, provided, however, that the size
of the Board of Directors may not be changed during the Specified Period without
the approval of at least fourteen (14) directors. At the Effective Time, ten
(10) directors shall be Viacom Directors and eight (8) directors shall be CBS
Directors.
(b) Until the expiration of the Specified Period, the Board of Directors
(subject to the fiduciary duties of the directors) shall take all action
necessary to ensure that any seat on the Board of Directors held by (i) a CBS
Director which becomes vacant is filled promptly by a person qualifying
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as an Independent Director and designated to fill such seat by a majority of the
CBS Directors remaining on the Board of Directors (a "Replacement CBS Director")
and (ii) a Specified Independent Director which becomes vacant is filled
promptly by an Independent Director who is the chief executive officer, chief
operating officer or chief financial officer or former chief executive officer
of a Fortune 500 company or a non-U.S. public company of comparable size.
(c) During the Specified Period, all committees of the Board of Directors (other
than the Compensation Committee and the Officers Nominating Committee) shall
have such number of CBS Directors as equals the total number of members of the
Committee multiplied by a fraction, the numerator of which is eight (8) and the
denominator of which is eighteen (18), rounded to the closest whole number;
provided that in no event shall any committee have (x) fewer than one (1) CBS
Director or (y) less than a majority of Viacom Directors.
(d) During the Specified Period, the Board of Directors shall not take any
action or fail to take any action which would have the effect of eliminating,
limiting, restricting, avoiding or otherwise modifying the effect of the
provisions set forth in this Article XIII (e.g., by creating a holding company
structure if the certificate of incorporation or similar document of such
holding company does not contain equivalent provisions).
(3) Chairman and Chief Executive Officer.
(a) At the Effective Time, Sumner Redstone shall
remain the Chairman and CEO. In the event that Sumner Redstone is not the CEO at
the Effective Time or ceases to be the CEO at any time during the Specified
Period, then Mel Karmazin, if he is COO at such time, shall succeed to the
position of CEO for the remainder of the Specified Period. During any such
period of succession, Mel Karmazin shall continue to exercise the powers,
rights, functions and responsibilities of the COO in addition to exercising
those of the CEO.
(b) The Chairman shall chair all meetings of the Board of Directors and
stockholders at which he is present.
(c) The CEO shall be responsible, in consultation with the COO, for corporate
policy and strategy and the COO shall consult on all major decisions with, and
shall report directly to, the CEO, during the Specified Period; provided,
however, that the CEO shall not exercise any powers, rights, functions or
responsibilities of the COO unless Mel Karmazin is the CEO.
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(4) President and Chief Operating Officer.
(a) At the Effective Time, the President and Chief Operating Officer of the
Corporation shall be Mel Karmazin. During the Specified Period, Mel Karmazin may
not be terminated or demoted from the position of COO (or, in the event that
Sumner Redstone is not the CEO, from the position of CEO) and no COO Functions
(as defined below) may be changed without the affirmative vote of at least
fourteen (14) directors.
(b) Subject to the requirement that the COO consult with the CEO on all major
decisions, the powers, rights, functions and responsibilities of the COO
(collectively, the "COO Functions") shall include, without limitation, the
following:
(i) supervising, coordinating and managing the Corporation's business,
operations, activities, operating expenses and capital allocation;
(ii) matters relating to officers (other than the Chairman, CEO and COO)
and employees, including, without limitation, hiring (subject to (A) the
specific Board of Directors authority described below with respect to the
CFO, the General Counsel and the Controller and (B) Section 5 below),
terminating, changing positions and allocating responsibilities of such
officers and employees; and
(iii) substantially all of the powers, rights, functions and
responsibilities typically exercised by a chief operating officer.
All officers (other than the Chairman, CEO and COO) will report, directly
or indirectly, to the COO (this reporting relationship will be deemed a COO
Function).
(c) In the event that Mel Karmazin is not COO or CEO, the Board may terminate
the COO's employment, eliminate the COO position and the Officers Nominating
Committee and reallocate the COO Functions without regard to the other
provisions of this Article XVIII.
(5) Officers Nominating Committee; Compensation Committee.
(a) Subject to the powers of the Compensation Committee set forth below,
during the Specified Period, all powers of the Board of Directors, including,
without limitation, the right to hire, elect, terminate, change positions,
allocate responsibilities or determine non-equity compensation, with respect to
officers and employees, shall be exercised, subject
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to clauses (b) and (c) below, by, and delegated to, the Officers Nominating
Committee of the Board of Directors. The Officers Nominating Committee shall
consist solely of the member of the Board of Directors who is the COO, except
that in the event Mel Karmazin succeeds to the position of CEO, the sole member
of the Officers Nominating Committee shall be the member of the Board of
Directors who is the CEO.
(b) The Officers Nominating Committee shall have no powers with respect to the
Chairman, CEO and COO, and shall not have the power to fill the positions of
Chief Financial Officer, Controller or General Counsel of the Corporation
without the approval of the Board of Directors; provided that this provision
shall in no way affect the other powers and authorities of the Officers
Nominating Committee with respect to the Chief Financial Officer, Controller and
General Counsel positions, including, without limitation, the power to terminate
employment of persons holding such positions.
(c) The Compensation Committee shall not be required to, or have any power to,
approve the annual compensation of (i) any employee if the total value of such
employee's annual cash compensation (assuming for this purpose that the actual
bonus of each officer and employee is equal to his or her target bonus) is less
than $1 million or (ii) talent (as such term is commonly used in the media or
entertainment industries), in each such case which power shall be delegated to
the Officers Nominating Committee. The annual compensation of all other officers
and employees and any equity or equity-based compensation of any officer or
employee must be approved by the Compensation Committee.
(d) The Compensation Committee shall consist of three CBS Directors who are
Independent Directors and three non-CBS Directors, two of whom will be the
Specified Independent Directors and the other of whom will be an Independent
Director.
(e) Any decision or determination of the Officers Nominating
Committee may be reversed or overridden by (and only by) the affirmative vote of
at least fourteen (14) directors.
(6) Stockholder Agreement.
The Stockholder Agreement may not be amended, and no provision thereof may
be modified or waived, except with the approval of at least fourteen (14)
directors.
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(7) Issuance of Voting Stock.
During the Specified Period, in addition to any other approval required by
law or by this Restated Certificate of Incorporation, the Corporation may not
issue (i) additional shares of Class A Common Stock or (ii) any shares of
Preferred Stock or any other class or series of stock or securities, in each
case with, or convertible into or exchangeable or exercisable for stock or other
securities with, the right to vote on any matter on which stockholders are
entitled to vote if the result would be that parties bound by the Stockholder
Agreement could fail to own at least a majority of the outstanding shares of
voting stock of the Corporation.
(8) Voting
During the Specified Period, except for those actions set forth on Annex I
to this Restated Certificate of Incorporation, which shall require the approval
of the Board of Directors, all action by the Board of Directors shall require
the affirmative vote of at least fourteen (14) directors. At all meetings of the
Board of Directors a majority of the full Board of Directors shall constitute a
quorum for the transaction of business and the act of a majority of the
Directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
statute or this Restated Certificate of Incorporation. If a quorum shall not be
present at any meeting of the Board of Directors, the Directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
(9) Amendment.
Until the expiration of the Specified Period the provisions of any Article
of this Restated Certificate which refer to this Article XIII, the provisions of
this Article XIII, and the provisions of Article VIII of the by-laws of the
Corporation, may not be amended, altered, repealed or waived in any respect
without the approval of at least fourteen (14) directors.
(10) Successors.
During the Specified Period, the provisions of this Article XIII shall be
applicable to (i) any successor to the Corporation as the result of a merger,
consolidation or other business combination, whether or not the Corporation is
the surviving company in such transaction, or otherwise and (ii) any corporation
or other entity with respect to which the
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Corporation or its successor is or becomes a direct or indirect subsidiary, the
Board of Directors shall not permit the Corporation to be a party to any
transaction which would not comply with the foregoing without the approval of at
least fourteen (14) directors.
(11) Subsidiaries.
The Board of Directors shall have the right, following consultation with
the COO or, if Mel Karmazin is the CEO, the CEO, with respect to any public
company which is a subsidiary of the Corporation, to take such steps as the
Board of Directors reasonably determines are necessary to implement corporate
governance arrangements applicable to such subsidiary in a manner as consistent
as practicable with the provisions contained in this Restated Certificate of
Incorporation; provided that any such steps shall not vest in the Board of
Directors greater power or provide the COO with fewer rights than those provided
for in this Restated Certificate of Incorporation.
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ANNEX I
TO VIACOM INC. RESTATED
CERTIFICATE OF INCORPORATION
The provisions of this Annex I shall form a part of, and be incorporated
in all respects in, the Restated Certificate of Incorporation to which this
Annex I is attached. The following actions shall require the approval of a
majority of the directors:
A. Acquisitions, Divestitures, Joint Ventures, Guarantees
* Any acquisition, equity investment or joint venture (each an
"Acquisition") by the Corporation or any of its subsidiaries for more than
$25 million.
* Any divestiture or other sale of assets (each a "Divestiture") (not in the
ordinary course) by the Corporation or any of its subsidiaries for more
than $25 million (based on purchase price or net book value of assets).
* Any real estate purchase, sale or lease by the Corporation or any of
its subsidiaries for more than $25 million.
* Any guarantee by the Corporation or any of its subsidiaries of an
obligation of a third party where the obligation guaranteed is more than
$25 million.
* Notwithstanding the above, any Acquisition or Divestiture by the
Corporation or any of its subsidiaries of (a) internet or internet
related businesses for more than $25 million but less than $100
million, with the value thereof represented by multi-year commitments
for advertising, promotion and content licensing, is excluded, so long
as the aggregate of such Acquisitions or Divestitures, in each case,
does not exceed $550 million and (b) radio or outdoor advertising
businesses for more than $25 million but less than $100 million, is
excluded, so long as the aggregate of such Acquisitions or
Divestitures, in each case, does not exceed $300 million; provided
that (i) any Divestiture of shares of a publicly traded internet or
internet related business with a value of up to $75 million is
excluded and shall not be included in the calculation of any of the
threshold amounts set forth above, (ii) Board approval may be secured
(but is not required) for any transaction of more than $25 million but
less than $100 million where the regular meeting schedule of the Board
so permits (and shall not otherwise be required), (iii) the Board will
be provided with information about and a status report on such
transactions completed without Board approval and (iv) this limit of
authority will be reviewed in 12 months from the Effective Time (as
defined in Article XIII of the Restated Certificate) and may be
amended only with the approval of 14 members of the Board of Directors.
<PAGE>
* Any contract of the Corporation or any of its subsidiaries not in the
ordinary course with a value in excess of $25 million.
* Notwithstanding the above, any of the foregoing transactions that is
approved by the Board shall not be included in the calculation of any of
the threshold amounts set forth above.
B. Employee Matters
* Employee benefit plans (at the Corporation or a subsidiary):
(a) creating a new plan, (b) suspending or terminating an existing
plan, (c) any amendment that materially increases cost to the
Corporation or subsidiary
* Entering into any modifications or amendments to the employment
agreements with the CEO or the COO.
C. General
* The Annual Report on Form 10-K
* Proxy statement and notice of meeting (including annual or special
meeting date, location, record date for voting)
* Any issuance of Corporation stock, or options, warrants or other similar
rights (including stock appreciation rights) or debt or other securities
convertible into or exchangeable for Corporation stock
* Any issuance of debt unless such debt is short term and is within the
spending limits of the annual operating budget or is replacing
existing debt
* Annual capital expenditure and annual operating budgets and individual
capital expenditure transactions in excess of $25 million for the
Corporation or any of its subsidiaries
* Any Corporation or subsidiary pays a dividend or repurchases stock
from a third party
* Review and approve any action or transaction where Board action is
required by law (other than ss. 141(a) of the Delaware General Corporation
Law) or by the terms of the transaction (in all cases other than as
specifically set forth in the Restated Certificate of Incorporation)
* Review and approve Board minutes
* Subject to Article XIII of the Restated Certificate of Incorporation,
determine Board administration, including number of directors, meeting
schedule, nominees, committees, director compensation, D&O insurance
authorization, internal investigations and retention of advisors in
connection therewith, and decisions regarding indemnification of
individuals
2
<PAGE>
* Subject to Article XIII of the Restated Certificate of Incorporation,
amendments to the Restated Certificate of Incorporation and by-laws of
the Corporation
* Commencement and settlement of major litigation
* Selection of independent auditors
* All matters on which the Corporation Board of Directors has
historically taken action other than (1) matters relating to the subject
matters addressed in this Annex I and not requiring approval of the Board
of Directors hereunder and (2) those matters delegated to the COO,
including all of the COO Functions (as defined in Article XIII of this
Restated Certificate of Incorporation).
3
<PAGE>
EXHIBIT A-2 TO THE MERGER AGREEMENT
VIACOM INC.
AMENDED AND RESTATED
B Y - L A W S
ARTICLE I
OFFICES
Section 1. The registered office shall be in the City of
Wilmington, County of New Castle, State of Delaware.
Section 2. The Corporation may also have offices at such
other places both within and without the state of Delaware as the board of
directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Meetings of stockholders may be held at such time
and place, within or without the State of Delaware, as shall be stated in the
notice of the meeting or in a duly executed waiver of notice thereof. The annual
meeting of stockholders may be held at such place, within or without the State
of Delaware, as shall be designated by the board of directors and stated in the
notice of the meeting or in a duly executed waiver of notice thereof.
<PAGE>
2
Section 2. The annual meeting of stockholders for the purpose
of electing directors and for the transaction of such other business as may
properly come before the meeting shall be held at such date and hour as shall be
determined by the board of directors or, in the absence of such determination,
on the third Thursday of the ninth month after the month end most nearly
coinciding with the close of the fiscal year of the Corporation.
Section 3. Written notice of the annual meeting stating the
place, date and hour of the meeting shall be given to each stockholder entitled
to vote at such meeting not less than ten nor more than sixty days before the
date of the meeting.
Section 4. The officer who has charge of the stock ledger of
the Corporation shall prepare and make, at least ten days before every meeting
of stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
ten days prior to the meeting, either at a place within the city where the
meeting is to be held, which place shall be specified in the notice
<PAGE>
3
of the meeting, or, if not so specified, at the place where the meeting is to be
held. The list shall also be produced and kept open at the time and place of the
meeting during the whole time thereof, and may be inspected by any stockholder
who is present.
Section 5. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by statute or by the Restated
Certificate of Incorporation, may be called by the affirmative vote of a
majority of the board of directors, the Chairman of the Board, the Chief
Executive Officer, the Vice Chairman of the Board or the President and Chief
Operating Officer and shall be called by the Chairman of the Board, the Chief
Executive Officer, the Vice Chairman of the Board, the President and Chief
Operating Officer or Secretary at the request in writing of the holders of
record of at least 50.1% of the aggregate voting power of all outstanding shares
of capital stock of the Corporation entitled to vote generally in the election
of Directors, acting together as a single class. Such request shall state the
purpose or purposes of the proposed meeting.
Section 6. Written notice of a special meeting stating the
place, date and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be given not less than ten nor more than sixty days
before
<PAGE>
4
the date of the meeting to each stockholder of record entitled to vote at such
meeting.
Section 7. Business transacted at any special meeting of
stockholders shall be limited to the purposes stated in the notice.
Section 8. The holders of a majority of the aggregate voting
power of the shares of the capital stock issued and outstanding and entitled to
vote thereat, present in person or represented by proxy, shall constitute a
quorum at all meetings of the stockholders for the transaction of business
except as otherwise provided by statute or by the Restated Certificate of
Incorporation. If, however, such quorum shall not be present or represented at
any meeting of the stockholders, the stockholders entitled to vote thereat,
present in person or represented by proxy, shall have the power to adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
<PAGE>
5
Section 9. When a quorum is present at any meeting, the vote
of the holders of a majority of the aggregate voting power of the shares of the
capital stock having voting power present in person or represented by proxy
shall decide any question brought before such meeting, unless the question is
one upon which, by provision of applicable law or of the Restated Certificate of
Incorporation, a different vote is required in which case such express provision
shall govern and control the decision of such question.
Section 10. At every meeting of the stockholders, each
stockholder shall be entitled to vote, in person or by proxy executed in writing
by the stockholder or his duly authorized attorney-in-fact, each share of the
capital stock having voting power held by such stockholder in accordance with
the provisions of the Restated Certificate of Incorporation and, if applicable,
the certificate of designations relating thereto, but no proxy shall be voted or
acted upon after three years from its date, unless the proxy provides for a
longer period.
Section 11. Any action required to be taken at any annual or
special meeting of stockholders of the Corporation, or any action which may be
taken at any annual or special meeting of such stockholders, may be taken
<PAGE>
6
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by stockholders
representing not less than the minimum number of votes that would be necessary
to authorize or take such actions at a meeting at which all shares entitled to
vote thereon were present and voted. Prompt notice of the taking of such action
without a meeting by less than unanimous written consent shall be given to those
stockholders who have not consented in writing. The Secretary shall file such
consents with the minutes of the meetings of the stockholders.
Section 12. At all meetings of stockholders, the chairman of
the meeting shall have absolute authority over matters of procedure, and there
shall be no appeal from the ruling of the chairman.
Section 13. Attendance of a stockholder, in person or by
proxy, at any meeting shall constitute a waiver of notice of such meeting,
except where the stockholder, in person or by proxy, attends a meeting for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened.
<PAGE>
7
ARTICLE III
DIRECTORS
Section 1. The number of directors which shall constitute the
entire Board of Directors shall be fixed as set forth in Article XIII of the
Restated Certificate of Incorporation, and shall not be less than three nor more
than eighteen. Directors shall have such qualifications as may be prescribed by
these by-laws. Directors need not be stockholders. If required by regulations of
the Federal Communications Commission, each director shall be a citizen of the
United States of America
Section 2. Subject to the rights of the holders of any series
of Preferred Stock or any other class of capital stock of the corporation then
outstanding (other than the Common Stock), and subject to Article XIII of the
Restated Certificate of Incorporation, vacancies in the board of directors for
any reason, including by reason of an increase in the authorized number of
directors, shall, if occurring prior to the expiration of the term of office in
which the vacancy occurs, be filled by a majority of the directors then in
office, though less than a quorum, or by a sole remaining director, and the
directors so chosen shall hold office until the next annual meeting of
stockholders of the Corporation or until their successors are duly elected and
shall qualify, unless sooner displaced. Subject to
<PAGE>
8
Article XIII of the Restated Certificate of Incorporation, if there are no
directors in office, then an election of directors may be held in the manner
provided by statute.
Section 3. The property and business of the Corporation shall
be controlled and managed in accordance with the terms of the Restated
Certificate of Incorporation by its board of directors which may, subject to
Article XIII of the Restated Certificate of Incorporation, exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Restated Certificate of Incorporation or by these by-laws
directed or required to be exercised or done by the stockholders.
MEETINGS OF THE BOARD OF DIRECTORS
Section 4. The board of directors of the Corporation, or any
committees thereof, may hold meetings, both regular and special, either within
or without the State of Delaware.
Section 5. A regular annual meeting of the board of
directors, including newly elected directors, shall be held immediately after
each annual meeting of stockholders at the place of such stockholders' meeting,
and no notice of such meeting to the directors shall be necessary in order
legally to constitute the meeting, provided a quorum shall be present. If such
meeting is held at any other time or
<PAGE>
9
place, notice thereof must be given or waived as hereinafter provided for
special meetings of the board of directors.
Section 6. Additional regular meetings of the board of
directors shall be held on such dates and at such times and at such places as
shall from time to time be determined by the board of directors.
Section 7. The Chairman of the Board, the Chief Executive
Officer, Vice Chairman of the Board or the President and Chief Operating Officer
of the Corporation and the Secretary may call a special meeting of the board of
directors at any time by giving notice, specifying the business to be transacted
at and the purpose or purposes of the meeting, to each member of the board at
least twenty-four (24) hours before the time appointed.
Section 8. At all meetings of the board a majority of the
full board of directors shall constitute a quorum for the transaction of
business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the board of directors, except as
may be otherwise specifically provided by statute, the Restated Certificate of
Incorporation or these by-laws. If a quorum shall not be present at any meeting
of the board of directors, the directors present thereat may adjourn the meeting
from time to time, without
<PAGE>
10
notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Any action required or permitted to be taken at
any meeting of the board of directors or of any committee thereof may be taken
without a meeting if all members of the board or committee, as the case may be,
consent thereto in writing, setting forth the action so taken, and the writing
or writings are filed with the minutes of proceedings of the board or committee.
Section 10. Unless otherwise restricted by the Restated
Certificate of Incorporation or these by-laws, members of the board of
directors, or any committee thereof, may participate in a meeting of the board
of directors, or any committee, by means of conference telephone or similar
communications equipment whereby all persons participating in the meeting can
hear each other, and such participation in a meeting shall constitute presence
in person at the meeting.
COMMITTEES OF DIRECTORS
Section 11. Designation of Committees. Subject to Article
XIII of the Restated Certificate of Incorporation, the board of directors may,
by resolution passed by a majority of the whole board, designate one or more
committees, each committee to consist of one or more of
<PAGE>
11
the directors of the Corporation. Subject to Article XIII of the Restated
Certificate of Incorporation, the board of directors may designate one or more
directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee.
Section 12. Vacancies. Subject to Article XIII of the
Restated Certificate of Incorporation, in the absence or disqualification of a
member of a committee, the member or members thereof present at any meeting and
not disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the board of directors to act at the
meeting in the place of any such absent or disqualified member.
Section 13. Powers. Subject to Article XIII of the Restated
Certificate of Incorporation, any such committee, to the extent provided in the
resolution of the board of directors, shall have and may exercise all the powers
and authority of the board of directors to the extent provided by Section 141(c)
of the General Corporation Law of the State of Delaware as it exists now or may
hereafter be amended.
Section 14. Each committee of the board of directors shall
keep regular minutes of its meetings and report the same to the board of
directors when required.
<PAGE>
12
COMPENSATION OF DIRECTORS
Subject to Article XIII of the Restated Certificate of
Incorporation:
Section 15. Unless otherwise restricted by the Restated
Certificate of Incorporation or these by-laws, the board of directors shall have
the authority to fix the compensation of directors. All directors may be paid
their expenses, if any, of attendance at each meeting of the board of directors,
and directors who are not full-time employees of the Corporation may be paid a
fixed sum for attendance at each meeting of the board of directors and/or a
stated salary as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation and expenses for attending committee meetings.
REMOVAL OF DIRECTORS
Subject to Article XIII of the Restated Certificate of
Incorporation:
Section 16. Subject to the rights of the holders of any
series of Preferred Stock or any other class of capital stock of the Corporation
(other than the Common Stock) then outstanding, (a) any director, or the entire
<PAGE>
13
board of directors, may be removed from office at any time prior to the
expiration of his term of office, with or without cause, only by the affirmative
vote of the holders of record of outstanding shares representing at least a
majority of all of the aggregate voting power of outstanding shares of capital
stock of the Corporation then entitled to vote generally in the election of
directors, voting together as a single class at a special meeting of
stockholders called expressly for that purpose; provided that, any director may
be removed from office by the affirmative vote of a majority of the entire board
of directors, at any time prior to the expiration of his term of office, as
provided by law, in the event a director fails to meet the qualifications stated
in these by-laws for election as a director or in the event such director is in
breach of any agreement between such director and the Corporation relating to
such director's service as a director or employee of the Corporation.
INDEMNIFICATION OF DIRECTORS
Section 17. The Corporation shall have the right to indemnify
directors, officers and agents of the Corporation to the fullest extent
permitted by the General Corporation Law of Delaware and by the Restated
Certificate of Incorporation, as both may be amended from time to time.
<PAGE>
14
ARTICLE IV
NOTICES
Section 1. Whenever, under the provisions of applicable law
or of the Restated Certificate of Incorporation or of these by-laws, notice is
required to be given to any director or stockholder, it shall be construed to
mean written or printed notice given either personally or by mail or wire
addressed to such director or stockholder, at his address as it appears on the
records of the Corporation, with postage or other charges thereon prepaid, and
such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail or at the appropriate office for
transmission by wire. Notice to directors may also be given by telephone.
Section 2. Whenever any notice is required to be given under
the provisions of applicable law or of the Restated Certificate of Incorporation
or of these by-laws, a waiver thereof in writing, signed by the person or
persons entitled to said notice, whether before or after the time stated
therein, shall be deemed equivalent thereto.
Section 3. Attendance at a meeting shall constitute a waiver
of notice except where a director or shareholder attends a meeting for the
express purpose of
<PAGE>
15
objecting to the transaction of any business because the meeting is not lawfully
called or convened.
Section 4. Neither the business to be transacted at, nor the
purpose of, any regular meeting of the board of directors need be specified in
the notice or waiver of notice of such meeting.
ARTICLE V
OFFICERS
Subject to Article XIII of the Restated Certificate of
Incorporation:
Section 1. The officers of the Corporation shall be elected
by the board of directors at its first meeting after each annual meeting of the
stockholders and shall be a President and Chief Operating Officer, a Treasurer
and a Secretary. The board of directors may also elect a Chairman of the Board,
a Chief Executive Officer, one or more Vice Chairmen of the Board and Vice
Presidents and one or more Assistant Treasurers and Assistant Secretaries. Any
number of offices may be held by the same person, except that the offices of
President and Chief Operating Officer and Secretary shall not be held by the
same person. Vice Presidents may be given distinctive designations such as
Executive Vice President or Senior Vice President. Every officer shall be a
citizen of the United States of America.
<PAGE>
16
Section 2. The board of directors may elect such other
officers and agents as it shall deem necessary who shall hold their offices for
such terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board of directors.
Section 3. The officers of the Corporation shall hold office
until their successors are elected or appointed and qualify or until their
earlier resignation or removal. Any officer elected or appointed by the board of
directors may be removed at any time with or without cause by the affirmative
vote of a majority of the whole board of directors. Any vacancy occurring in any
office of the Corporation shall be filled by the board of directors.
CHAIRMAN OF THE BOARD
Section 4. The Chairman of the Board, if any shall be
elected, shall preside at all meetings of the board of directors and the
stockholders and shall have such other powers and perform such other duties as
may from time to time be assigned to him by the board of directors.
VICE CHAIRMAN OF THE BOARD
Section 5. The Vice Chairman of the Board, if any shall be
elected, or if there be more than one, the Vice Chairmen of the Board in order
of their election, shall, in
<PAGE>
17
the absence of the Chairman of the Board, or in the case the Chairman of the
Board shall resign, retire, become deceased or otherwise cease or be unable to
act, perform the duties and exercise the powers of the Chairman of the Board. In
addition, the Vice Chairman of the Board shall have such other powers and
perform such other duties as may from time to time be assigned to him by the
board of directors.
THE CHIEF EXECUTIVE OFFICER
Section 6. The Chief Executive Officer shall be responsible,
in consultation with the President and Chief Operating Officer, for corporate
policy and strategy. The President and Chief Operating Officer shall consult on
all major decisions with, and shall report directly to, the Chief Executive
Officer; provided, however, that the Chief Executive Officer shall not exercise
any powers, rights, functions or responsibilities of the President and Chief
Operating Officer unless Mel Karmazin is the Chief Executive Officer.
THE PRESIDENT AND CHIEF OPERATING OFFICER
Section 7. Subject to Article XIII of the Restated
Certificate of Incorporation and to the requirement that the President and Chief
Operating Officer consult with the Chief Executive Officer on all major
decisions, the
<PAGE>
18
President and Chief Operating Officer shall be responsible for:
(i) supervising, coordinating and managing
the Corporation's business, operations and
activities, operating expenses and capital
allocation;
(ii) matters relating to officers (other than the
Chairman, the Chief Executive Officer and the President and
Chief Operating Officer) and employees, including, without
limitation, hiring, terminating, changing positions and
allocation of responsibilities of such officers and
employees;
(iii) substantially all of the powers, rights,
functions and responsibilities typically exercised
by a chief operating officer; and
(iv) all officers (other than the Chairman, the
Chief Executive Officer and the President and Chief Operating
Officer) will report, directly or indirectly, to the
President and Chief Operating Officer.
THE VICE-PRESIDENTS
Section 8. The Vice-Presidents shall have such powers and
perform such duties as may from time to time be assigned to them by the board of
directors or the President and Chief Operating Officer.
<PAGE>
19
THE SECRETARY AND ASSISTANT SECRETARY
Section 9. The Secretary shall attend all meetings of the
board of directors and all meetings of the stockholders and record all the
proceedings of the meetings of the Corporation and of the board of directors in
a book to be kept for that purpose and shall perform like duties for the
standing committees of the board of directors when required. He shall give, or
cause to be given, notice of all meetings of the stockholders and special
meetings of the board of directors, and shall perform such other duties as may
be prescribed by the board of directors or the President and Chief Operating
Officer, under whose supervision he shall be. He shall have custody of the
corporate seal of the Corporation and he, or an Assistant Secretary, shall have
authority to affix the same to any instrument requiring it and when so affixed,
it may be attested by his signature or by the signature of such Assistant
Secretary. The board of directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by his
signature.
Section 10. The Assistant Secretary, if any shall be elected,
or if there be more than one, the Assistant
<PAGE>
20
Secretaries in the order determined by the board of directors (or if there be no
such determination, then in the order of their election), shall, in the absence
of the Secretary or in the event of his inability or refusal to act, perform the
duties and exercise the powers of the Secretary and shall have such other powers
and perform such other duties as may from time to time be assigned to them by
the board of directors or the President and Chief Operating Officer.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The Treasurer, under the supervision of the
President and Chief Operating Officer, shall have charge of the corporate funds
and securities and shall keep or cause to be kept full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositaries as may be designated by or at the direction
of the board of directors.
Section 12. The Treasurer shall disburse or cause to be
disbursed the funds of the Corporation as may be ordered by or at the direction
of the President and Chief Operating Officer or the board of directors, taking
proper vouchers for such disbursements, and subject to the
<PAGE>
21
supervision of the President and Chief Operating Officer, shall render to the
board of directors, when they or either of them so require, an account of his
transactions as Treasurer and of the financial condition of the Corporation.
Section 13. If required by the board of directors, the
Treasurer shall give the Corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the board of directors for the faithful
performance of the duties of his office and for the restoration to the
Corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the Corporation.
Section 14. The Assistant Treasurer, if any shall be elected,
or if there shall be more than one, the Assistant Treasurers in the order
determined by the board of directors (or if there be no such determination, then
in the order of their election), shall, in the absence of the Treasurer or in
the event of his inability or refusal to act, perform the duties and exercise
the powers of the Treasurer and shall have such other powers and perform such
other duties as may from time to time be assigned to them by the board of
directors.
<PAGE>
22
Section 15. In addition to the corporate officers elected by
the board of directors pursuant to this Article V, the President and Chief
Operating Officer may, from time to time, appoint one or more other persons as
appointed officers who shall not be deemed to be corporate officers, but may,
respectively, be designated with such titles as the President and Chief
Operating Officer may deem appropriate. The President and Chief Operating
Officer may prescribe the powers to be exercised and the duties to be performed
by each such appointed officer, may designate the term for which each such
appointment is made, and may, from time to time, terminate any or all of such
appointments. Such appointments and termination of appointments shall be
reported to the board of directors.
ARTICLE VI
CERTIFICATES Of STOCK
Section 1. Every holder of shares of capital stock in the
Corporation shall be entitled to have a certificate sealed with the seal of the
Corporation and signed by, or in the name of the Corporation by, the Chairman of
the Board, the Chief Executive Officer, Vice Chairman of the Board or the
President and Chief Operating Officer and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the Corporation,
certifying the number of shares owned by him in the
<PAGE>
23
Corporation. If the Corporation shall be authorized to issue more than one class
of stock or more than one series of any class, the designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the Corporation shall issue to represent such
class or series of stock, provided that, except as otherwise provided in section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Corporation shall issue to represent such class or series of stock, a
statement that the Corporation will furnish without charge to each stockholder
who so requests the designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualifications, limitations or restrictions of such preferences and/or
rights.
Section 2. Any or all of the signatures on the certificate
may be facsimile. In case any officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall
have ceased to be such officer, transfer agent or registrar
<PAGE>
24
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the person
claiming the certificate of capital stock to be lost, stolen or destroyed. When
authorizing such issue of a new certificate or certificates, the board of
directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate or
certificates, or his legal representative, to advertise the same in such manner
as it shall require and/or to give the Corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the Corporation
with respect to the certificate alleged to have been lost, stolen or destroyed.
TRANSFERS OF STOCK
Section 4. Upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for
shares duly endorsed or accompanied by proper evidence of
<PAGE>
25
succession, assignation or authority to transfer, it shall be the duty of the
Corporation to issue a new certificate to the person entitled thereto, cancel
the old certificate and record the transaction upon its books.
FIXING RECORD DATE
Section 5. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other
distribution, or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the board of directors may fix, in advance, a record date,
which shall not be more than sixty nor less than ten days before the date of
such meetings, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the board of directors may fix a new record date for the adjourned
meeting.
<PAGE>
26
REGISTERED STOCKHOLDERS
Section 6. The Corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Delaware.
ARTICLE VII
GENERAL PROVISIONS
DIVIDENDS
Section 1. Dividends upon the capital stock of the
Corporation, subject to the provisions of the certificate of incorporation, if
any, may be declared by the board of directors at any regular or special
meeting, pursuant to law. Dividends may be paid in cash, in property or in
shares of the capital stock, subject to the provisions of any statute, the
Restated Certificate of Incorporation and these by-laws.
Section 2. Before payment of any dividend, there may be set
aside out of any funds of the Corporation
<PAGE>
27
available for dividends such sum or sums as the directors from time to time, in
their absolute discretion, think proper as a reserve or reserves to meet
contingencies, or for equalizing dividends, or for repairing or maintaining any
property of the Corporation, or for such other purposes as the directors shall
think conducive to the interest of the Corporation, and the directors may modify
or abolish any such reserve in the manner in which it was created.
ANNUAL STATEMENT
Section 3. The board of directors shall present at each
annual meeting, and at any special meeting of the stockholders when called for
by vote of the stockholders, a full and clear statement of the business and
condition of the Corporation.
CHECKS
Section 4. All checks or demands for money of the Corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate.
FISCAL YEAR
Section 5. The fiscal year of the Corporation shall be as
specified by the board of directors.
<PAGE>
28
SEAL
Section 6. The corporate seal shall have inscribed thereon
the name of the Corporation, the year of its organization and the words
"Corporate Seal, Delaware". The seal may be used by causing it or a facsimile
thereof to be impressed or affixed or reproduced or otherwise.
CONTRACTS
Section 7. An Officer of the Corporation may sign any note,
bond, or mortgage of the Corporation in furtherance of the Corporation's
ordinary business and in order to implement any action authorized by these
by-laws.
ARTICLE VIII
RESTATED CERTIFICATE OF INCORPORATION
In addition to all other provisions of the Restated
Certificate of Incorporation, and notwithstanding that these by-laws may contain
any provision contrary thereto, these by-laws shall be subject in all respects
to Article XIII of the Restated Certificate of Incorporation.
ARTICLE IX
AMENDMENTS
In furtherance of and not in limitation of the powers
conferred by statute, the board of directors of the
<PAGE>
29
Corporation from time to time may make, amend, alter, change or repeal the
by-laws of the Corporation; provided, that any by-laws made, amended, altered,
changed or repealed by the board of directors or the stockholders of the
Corporation may be amended, altered, changed or repealed, and that any by-laws
may be made, by the stockholders of the Corporation. Notwithstanding any other
provisions of the Restated Certificate of Incorporation of the Corporation or
these by-laws (and notwithstanding the fact that a lesser percentage may be
specified by law, the Restated Certificate of Incorporation or these by-laws),
the affirmative vote of not less than a majority of the aggregate voting power
of all outstanding shares of capital stock of the Corporation then entitled to
vote generally in this election of Directors, voting together as a single class,
shall be required for the stockholders of the Corporation to amend, alter,
change, repeal or adopt any by-laws of the Corporation.
<PAGE>
EXHIBIT 6.14
FORM OF AFFILIATE LETTER
Viacom Inc.
1515 Broadway
New York, New York 10036
Ladies and Gentlemen:
I have been advised that as of the date of this letter I may
be deemed to be an "affiliate" of CBS Corporation, a Pennsylvania corporation
(the "Company"), as the term "affiliate" is defined for purposes of paragraphs
(c) and (d) of Rule 145 of the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, as amended (the "Act"). Pursuant to the terms of the
Agreement and Plan of Merger dated as of September , 1999 (the "Agreement"),
between Viacom Inc., a Delaware corporation ("Viacom"), and the Company, the
Company will be merged with and into Viacom (the "Merger").
As a result of the Merger, I may receive (i) shares of Class
B common stock, par value $.01 per share, of Viacom (the "Viacom Class B Common
Stock"), or (ii) an option (a "Substituted Option") to purchase a number of
shares of Viacom Class B Common Stock (the Viacom Class B Common Stock and the
Substituted Options collectively referred to as the "Viacom Securities"). In
respect of shares of Viacom Class B Common Stock, I would receive such shares in
exchange for shares owned by me of common stock, par value $1.00 per share, of
the Company (the "Company Common Stock"). In respect of the Substituted Options,
I would receive such options in exchange for options to purchase Company Common
Stock held by me under the CBS Stock Option Plans (as defined in the Agreement).
I represent, warrant and covenant to Viacom that in the event
I receive any Viacom Securities as a result of the merger:
A. I shall not make any sale, transfer or other disposition
of the Viacom Securities in violation of the Act or the Rules and
Regulations.
B. I have carefully read this letter and the Agreement and
discussed the requirements of such documents and other applicable
limitations upon my ability to sell, transfer or otherwise dispose of
Viacom Securities to the extent I felt necessary, with my counsel or
counsel for the Company.
C. I have been advised that the issuance of Viacom Securities
to me pursuant to the Merger has been registered with the Commission
under the Act on a Registration
<PAGE>
2
Statement Form S-4. However, I have also been advised that, because at
the time the Merger is submitted for a vote of the stockholders of the
Company, (a) I may be deemed to be an affiliate of the Company and (b)
the distribution by me of the Viacom Securities has not been
registered under the Act, I may not sell, transfer or otherwise
dispose of Viacom Securities issued to me in the Merger unless (i)
such sale, transfer or other disposition is made in conformity with
the volume and other limitations of Rule 145 promulgated by the
Commission under the Act, (ii) such sale, transfer or other
disposition has been registered under the Act or (iii) in the opinion
of counsel reasonably acceptable to Viacom, such sale, transfer or
other disposition is otherwise exempt from registration under the Act.
D. I understand that Viacom is under no obligation to
register the sale, transfer or other disposition of the Viacom
Securities by me or on my behalf under the Act or to take any other
action necessary in order to make compliance with an exemption from
such registration available solely as a result of the Merger.
E. I also understand that there will be placed on the
certificates for the Viacom Securities issued to me, or any
substitutions therefor, a legend stating in substance:
"THE [SHARES] [OPTIONS] REPRESENTED BY THIS CERTIFICATE WERE
ISSUED IN A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER
THE SECURITIES ACT OF 1933 APPLIES. THE [SHARES] [OPTIONS]
REPRESENTED BY THIS CERTIFICATE MAY ONLY BE TRANSFERRED IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT DATED __________
BETWEEN THE REGISTERED HOLDER HEREOF AND VIACOM, A COPY OF
WHICH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES OF
VIACOM."
F. I also understand that unless a sale or transfer is made
in conformity with the provisions of Rule 145, or pursuant to a
registration statement, Viacom reserves the right to put the following
legend on the certificates issued to my transferee:
"THE [SHARES] [OPTIONS] REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND WERE
ACQUIRED FROM A PERSON WHO RECEIVED SUCH SHARES IN A
TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE
SECURITIES ACT OF 1933 APPLIES. THE [SHARES] [OPTIONS] HAVE
BEEN ACQUIRED BY THE HOLDER NOT WITH A VIEW TO, OR FOR RESALE
IN
<PAGE>
3
CONNECTION WITH, ANY DISTRIBUTION THEREOF WITHIN THE MEANING
OF THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH AN EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OF
1933."
It is understood and agreed that the legends set forth in
paragraphs E and F above shall be removed by delivery of substitute certificates
without such legend if the undersigned shall have delivered to Viacom a copy of
a letter from the staff of the Commission, or an opinion of counsel reasonably
satisfactory to Viacom in form and substance reasonably satisfactory to Viacom,
to the effect that such legend is not required for purposes of the Act.
Execution of this letter should not be considered an
admission on my part that I am an "affiliate" of the Company as described in the
first paragraph of this letter, or as a waiver of any rights I may have to
object to any claim that I am such an affiliate on or after the date of this
letter.
Very truly yours,
------------------------------------
Name:
Accepted this ____ day of
__________, ____, by
VIACOM INC.
By:
-------------------------------------
Name:
Title:
EXHIBIT 10.1
CONFORMED COPY
================================================================================
VOTING AGREEMENT
By
NATIONAL AMUSEMENTS, INC.
(Stockholder)
and
CBS CORPORATION
Dated as of September 6, 1999
================================================================================
<PAGE>
VOTING AGREEMENT
VOTING AGREEMENT, dated as of September 6, 1999 (this
"Agreement"), by NATIONAL AMUSEMENTS, INC., a Maryland corporation (the
"Stockholder"), to and for the benefit of CBS CORPORATION, a Pennsylvania
corporation ("CBS").
WHEREAS, as of the date hereof, the Stockholder owns of
record and beneficially 93,658,988 shares of Class A Common Stock (the "Viacom
Class A Common Stock"; such shares, together with any shares of Viacom Class A
Common Stock and any other shares of voting stock of Viacom acquired by the
Stockholder prior to the termination of this Agreement being referred to herein
as the "Stockholder's Shares"), par value $.01 per share, of VIACOM, INC., a
Delaware corporation ("Viacom");
WHEREAS, concurrently with the execution of this Agreement,
CBS and Viacom are entering into an Agreement and Plan of Merger, dated as of
the date hereof (the "Merger Agreement"; capitalized terms used and not
otherwise defined herein shall have the respective meanings assigned to them in
the Merger Agreement), pursuant to which, upon the terms and subject to the
conditions thereof, CBS will be merged with and into Viacom (the "Merger"); and
WHEREAS, as a condition to the willingness of Viacom and CBS
to enter into the Merger Agreement, CBS has requested the Stockholder to agree,
and in order to induce CBS to enter into the Merger Agreement, the Stockholder
is willing to agree, to vote in favor of the Viacom Proposals (as defined in the
Merger Agreement), upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereby agree as follows:
Section 1. Voting of Stockholder's Shares. Until the
termination of this Agreement in accordance with the terms hereof, the
Stockholder hereby agrees that, at the Viacom Stockholders' Meeting or any other
meeting of the stockholders of Viacom, however called, and in any action by
written consent of the stockholders of Viacom, the Stockholder will vote all of
the Stockholder's Shares (i) in favor of the Viacom Proposals and (ii) against
any action, proposal or agreement that would or could reasonably be expected to
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of Viacom under the Merger Agreement or which would or
could reasonably be expected to result in any of the conditions to the Merger
Agreement not being fulfilled.
Section 2. No Inconsistent Agreements. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Merger Agreement, the Stockholder shall not enter into any voting agreement or
grant a proxy or power of attorney with respect to the Stockholder's Shares
which is inconsistent with this Agreement.
<PAGE>
2
Section 3. Transfer of Stockholder's Shares. The Stockholder
hereby covenants and agrees that the Stockholder shall not transfer record or
beneficial ownership of any of the Stockholder's Shares unless the transferee
unconditionally agrees in writing to be bound by the terms and conditions of
this Agreement.
Section 4. Representations and Warranties of Stockholder. The
Stockholder hereby represents and warrants to CBS as follows:
(a) Authority Relative to This Agreement. The Stockholder has
all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by the Stockholder and the consummation by the Stockholder
of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of the Stockholder, and no other
corporate proceedings on the part of the Stockholder are necessary to
authorize this Agreement or to consummate such transactions. This
Agreement has been duly and validly executed and delivered by the
Stockholder and, assuming the due authorization, execution and
delivery by CBS, constitutes a legal, valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance
with its terms.
(b) No Conflict. (i) The execution and delivery of this
Agreement by the Stockholder do not, and the performance of this
Agreement by the Stockholder shall not, (A) conflict with or violate
the Certificate of Incorporation or By-laws or equivalent
organizational documents of the Stockholder, (B) conflict with or
violate any law, rule, regulation, order, judgment or decree
applicable to the Stockholder or by which the Stockholder's Shares are
bound or affected or (C) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would
become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation
of a lien or encumbrance on any of the Stockholder's Shares pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which
the Stockholder is a party or by which the Stockholder or the
Stockholder's Shares are bound or affected, except, in the case of
clauses (B) and (C), for any such conflicts, violations, breaches,
defaults or other occurrences which would not prevent or delay the
performance by the Stockholder of its obligations under this
Agreement.
(ii) The execution and delivery of this Agreement by the
Stockholder do not, and the performance of this Agreement by the
Stockholder shall not, require any consent, approval, authorization or
permit of, or filing with or notification to, any Governmental Entity
except for applicable requirements, if any, of the Securities Exchange
Act of 1934, as amended, and except where the failure to obtain such
consents, approvals,
<PAGE>
3
authorizations or permits, or to make such filings or notifications,
would not prevent or delay the performance by the Stockholder of its
obligations under this Agreement.
(c) Title to the Shares. As of the date hereof, the
Stockholder is the record and beneficial owner of 93,658,988 shares of
Viacom Class A Common Stock. The Stockholder's Shares are all the
voting securities of Viacom owned, either of record or beneficially,
by the Stockholder. The Stockholder's Shares are owned free and clear
of all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on the Stockholder's voting
rights, charges and other encumbrances of any nature whatsoever. The
Stockholder has not appointed or granted any proxy, which appointment
or grant is still effective, with respect to the Stockholder's Shares.
Section 5. Termination. This Agreement shall terminate upon
the earlier to occur of (a) the Effective Time and (b) the termination of the
Merger Agreement in accordance with the terms thereof. No such termination of
this Agreement shall relieve any party hereto from any liability for any breach
of this Agreement prior to termination.
Section 6. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by facsimile, by courier service or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 6):
if to the Stockholder:
National Amusements, Inc.
200 Elm Street
Dedham, Massachusetts 02026
Telecopier No.: (781) 461-1412
Attention: General Counsel
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Telecopier No.: (212) 848-7179
Attention: Creighton O'M. Condon, Esq. and
Stephen R. Volk, Esq.
<PAGE>
4
if to CBS:
CBS Corporation
51 West 52nd Street
35th Floor
New York, New York 10019
Telecopier No.: (212) 597-4031
Attention: Louis J. Briskman, Esq.
Executive Vice President and
General Counsel
with copies to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Telecopier No.: (212) 474-3700
Attention: Allen Finkelson, Esq. and
Scott A. Barshay, Esq.
Section 7. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
Law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated by this Agreement be consummated as
originally contemplated to the fullest extent possible.
Section 8. Entire Agreement; Assignment. This Agreement and
the Merger Agreement constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by either of the parties
hereto without the prior written consent of the other party hereto. Any
purported assignment in violation of this Section 8 shall be void. Subject to
the preceding sentences of this Section 8, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties hereto and their
respective successors and assigns.
<PAGE>
5
Section 9. Parties in Interest; Certain Events. This
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement. The Stockholder agrees that
this Agreement and the obligations hereunder shall attach to the Stockholder's
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of the Stockholder's Shares shall pass, whether by
operation of law or otherwise. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of Viacom affecting the capital stock of Viacom, or the acquisition of
additional shares of Viacom Class A Common Stock or other voting securities of
Viacom by the Stockholder, the number of Stockholder's Shares shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Viacom Class A Common Stock or other voting securities
of Viacom issued to or acquired by the Stockholder.
Section 10. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or equity.
Section 11. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware, without
regard to any principles of conflicts of laws of such State.
Section 12. Consent to Jurisdiction. (a) Each of the
Stockholder and CBS hereby irrevocably submits to the exclusive jurisdiction of
the courts of the State of Delaware and to the jurisdiction of the United States
District Court for the State of Delaware, for the purpose of any action or
proceeding arising out of or relating to this Agreement and each of CBS and the
Stockholder hereby irrevocably agrees that all claims in respect to such action
or proceeding shall be heard and determined exclusively in any Delaware state or
federal court. Each of CBS and the Stockholder agrees that a final judgment in
any action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Each of CBS and the Stockholder irrevocably consents to
the service of the summons and complaint and any other process in any other
action or proceeding relating to the transactions contemplated by this
Agreement, on behalf of itself or its property, by personal delivery of copies
of such process to such party. Nothing in this Section 12 shall affect the right
of any party to serve legal process in any other manner permitted by law.
Section 13. Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
<PAGE>
6
Section 14. Amendments. This Agreement may be amended or
modified, and the terms and conditions hereof may be waived, only by a written
instrument signed by the parties hereto or, in the case of a waiver, by each
party waiving compliance.
Section 15. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
Section 16. WAIVER OF JURY TRIAL. EACH OF CBS AND THE
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF CBS AND THE
STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
THEREOF.
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
NATIONAL AMUSEMENTS, INC.
By /s/ Sumner M. Redstone
--------------------------------------
Name: Sumner M. Redstone
Title: Chairman, President
& Chief Executive Officer
CBS CORPORATION
By /s/ Fredric G. Reynolds
--------------------------------------
Name: Fredric G. Reynolds
Title: Executive Vice President,
Chief Financial Officer
CONFORMED COPY
VIACOM INC.
September 6, 1999
Sumner M. Redstone
The Carlyle Hotel
Suite 3201
35 East 76th Street
New York, New York 10021
Dear Mr. Redstone:
This is to confirm our agreement that, effective as of the
Effective Time (as defined in the Agreement and Plan of Merger (the "Merger
Agreement") between Viacom Inc. ("Viacom") and CBS Corporation ("CBS"), dated as
of the date hereof) (the "Effective Date"), you shall be paid the following
compensation by Viacom, in addition to any compensation, benefits and
perquisites you have heretofore received from Viacom.
As the sole compensation for services to be rendered by you in
all capacities to Viacom, its subsidiaries and affiliates, you will receive the
following compensation.
(a) Salary: For all the services rendered by you in any
capacity to Viacom, its subsidiaries and affiliates, Viacom agrees to pay you a
base salary at the rate of $1,000,000 per annum ("Salary"), payable in
accordance with Viacom's then effective payroll practices.
(b) Bonus Compensation: In addition to your Salary, you shall
be entitled to receive bonus compensation for each of the calendar years during
your employment with Viacom, determined and payable as follows ("Bonus"):
(i) Your Bonus for each of the calendar years during your
employment with Viacom will be based upon a
measurement of performance against objectives in
accordance with Viacom's Short-Term Incentive Plan
and its Senior Executive Short-Term Incentive Plan,
as the same may be amended from time to time
(collectively, the "STIP"), which objectives shall be
no less favorable to you than the objectives used to
determine the amount of bonus payable to any other
executive of Viacom whose bonus is based in
<PAGE>
Sumner M. Redstone 2 September 6, 1999
whole or in part on corporate performance and who
participates in the STIP.
(ii) Your Target Bonus and Maximum Bonus opportunity for
each calendar year (prorated for calendar year 2000
by multiplying such amount by a fraction, the
numerator of which is the number of days in 2000
following the Effective Date, and the denominator of
which is 365) during your employment with Viacom
shall be as follows:
Year Target Maximum
-------------- ---------------- -----------
2000 $5,000,000 $10,000,000
2001 $5,500,000 $11,000,000
2002 $6,050,000 $12,100,000
2003 and $6,655,000 $13,310,000
thereafter
(iii) Your Bonus for any calendar year shall be payable by
February 28 of the following year.
(c) Deferred Compensation: In addition to your Salary and
Bonus, you shall earn, in respect of calendar year 2000 and each calendar year
thereafter during your employment with Viacom, an additional amount ("Deferred
Compensation"), the payment of which (together with the return thereon as
provided in this paragraph (c)) shall be deferred until January of the first
calendar year following the year in which you cease to be an "executive officer"
of Viacom, as defined for purposes of the Securities Exchange Act of 1934, as
amended. The amount of Deferred Compensation for calendar year 2000 shall be
$2,000,000, prorated by multiplying such amount by a fraction, the numerator of
which is the number of days in 2000 following the Effective Date, and the
denominator of which is 365. The amount of Deferred Compensation for calendar
years 2001 through 2003 shall be subject to annual increases each January 1st,
commencing January 1, 2001, in an amount equal to 10% of the sum of your Salary
and Deferred Compensation for the preceding year. Deferred Compensation shall be
credited to a bookkeeping account maintained by Viacom on your behalf, the
balance of which account shall periodically be credited (or debited) with deemed
positive (or negative) return calculated in the same manner, and at the same
times, as the deemed return on your account under the excess 401(k) plan of
Viacom (as such plan may be amended from time to time) is determined or, if you
do not participate in such plan, with a return to be mutually agreed by the
Company and you. Viacom's obligation to pay the Deferred Compensation (including
the return thereon provided for in this paragraph (c)) shall be an unfunded
obligation to be satisfied from the general funds of Viacom.
<PAGE>
Sumner M. Redstone 3 September 6, 1999
(d) Grant: You will be awarded a grant (the "Grant") under
Viacom's 1997 Long-Term Management Incentive Plan (the "1997 LTMIP") of stock
options to purchase 2,000,000 shares of Viacom's Class B Common Stock, effective
as of the Effective Date, with an exercise price equal to the fair-market value
of Viacom's Class B Common Stock on the date of the Grant. The Grant shall vest
in three equal installments on the first, second and third anniversaries of the
Effective Date. Such stock options shall be subject to terms identical in all
material respects to those applicable to the grant to be made to Mr. Karmazin as
of the Effective Date.
If you agree with the foregoing terms, please execute this
letter in the space provided below and return a copy to the undersigned.
VIACOM INC.
By: /s/ Philippe P. Dauman
------------------------
Philippe P. Dauman
Deputy Chairman
ACCEPTED AND AGREED:
/s/ Sumner M. Redstone
- ------------------------
Sumner M. Redstone
September 6, 1999
EXHIBIT 10.4
CONFORMED COPY
VIACOM INC.
September 6, 1999
Mel Karmazin
1 Central Park West
New York, New York 10023
Dear Mel:
Viacom Inc. ("Viacom"), having an address at 1515 Broadway,
New York, New York 10036, agrees to employ you and you agree to accept such
employment upon the following terms and conditions:
1. Term. The term of your employment hereunder shall commence
on the Effective Time (as defined in the Agreement and Plan of Merger between
Viacom and CBS Corporation ("CBS"), dated as of the date hereof (the "Merger
Agreement"), pursuant to which CBS shall merge with and into Viacom) (the
"Effective Date") and, unless terminated by Viacom or you pursuant to paragraph
8 hereof, shall continue through and until December 31, 2003. The period from
the Effective Date through December 31, 2003 shall hereinafter be referred to as
the "Employment Term," notwithstanding any earlier termination pursuant to
paragraph 9. In the event that the Merger Agreement is terminated or otherwise
abandoned, this Agreement shall be void ab initio.
2. Duties. During the Employment Term, you agree to devote
your entire business time, attention and energies to the business of Viacom and
its subsidiaries. This is not intended to prevent you from engaging in other
activities that do not conflict with or interfere with the performance of your
duties and responsibilities hereunder. You will be President and Chief Operating
Officer of Viacom reporting directly and solely to Sumner M. Redstone, the
Chairman of the Board and Chief Executive Officer of Viacom (the "Chairman"),
and, upon the termination of the Chairman's service as Chief Executive Officer
during the Employment Term, you shall be appointed the Chief Executive Officer.
You will perform such duties and have such responsibilities set forth in Article
XIII of the Amended and Restated Certificate of Incorporation of Viacom to be
effective as of the Effective Date (the "Certificate of Incorporation"), a copy
of which is attached hereto as Exhibit A. You will have such authority as is
necessary for the performance of your obligations hereunder. You shall serve as
a member of the Boards of Directors of Viacom and Circular. Your principal place
of business shall be at Viacom's headquarters in the New York City metropolitan
area and you shall not be required to relocate
<PAGE>
2
outside of the New York City metropolitan area. You shall be entitled to
continue to serve on the corporate, charitable and educational boards of which
you are a member as of the date hereof.
3. Compensation. As the sole compensation for services to be
rendered by you during the Employment Term in all capacities to Viacom, its
subsidiaries and affiliates, you will receive the following compensation.
(a) Salary: For all the services rendered by you in any
capacity to Viacom, its subsidiaries and affiliates, Viacom agrees to pay you a
base salary at the rate of $1,000,000 per annum ("Salary"), payable in
accordance with Viacom's then effective payroll practices.
(b) Bonus Compensation: In addition to your Salary, you shall
be entitled to receive bonus compensation for each of the calendar years during
the Employment Term, determined and payable as follows ("Bonus"):
(i) Your Bonus for each of the calendar years during the
Employment Term will be based upon a measurement of
performance against objectives in accordance with
Viacom's Short-Term Incentive Plan and its Senior
Executive Short-Term Incentive Plan, as the same may be
amended from time to time (collectively, the "STIP"),
which objectives shall be no less favorable to you than
the objectives used to determine the amount of bonus
payable to any other executive of Viacom whose bonus is
based in whole or in part on corporate performance and
who participates in the STIP.
(ii) Your Target Bonus and Maximum Bonus opportunity for each
calendar year (prorated for calendar year 2000 by
multiplying such amount by a fraction, the numerator of
which is the number of days in 2000 following the
Effective Date, and the denominator of which is 365)
during the Employment Term shall be as follows:
Year Target Maximum
------------ -------------------- ------------
2000 $5,000,000 $10,000,000
2001 $5,500,000 $11,000,000
2002 $6,050,000 $12,100,000
2003 $6,655,000 $13,310,000
(iii) Your Bonus for any calendar year shall be payable by
February 28 of the following year (even if not during
the Employment Term).
<PAGE>
3
(c) Deferred Compensation: In addition to your Salary and
Bonus, you shall earn, in respect of calendar year 2000 and each calendar year
during the Employment Term after 2000, an additional amount ("Deferred
Compensation"), the payment of which (together with the return thereon as
provided in this paragraph 3(c)) shall be deferred until January of the first
calendar year following the year in which you cease to be an "executive officer"
of Viacom, as defined for purposes of the Securities Exchange Act of 1934, as
amended. The amount of Deferred Compensation for calendar year 2000 shall be
$2,000,000, prorated by multiplying such amount by a fraction, the numerator of
which is the number of days in 2000 following the Effective Date, and the
denominator of which is 365. The amount of Deferred Compensation for calendar
years 2001 through 2003 shall be subject to annual increases each January 1st,
commencing January 1, 2001, in an amount equal to 10% of the sum of your Salary
and Deferred Compensation for the preceding year. Deferred Compensation shall be
credited to a bookkeeping account maintained by Viacom on your behalf, the
balance of which account shall periodically be credited (or debited) with deemed
positive (or negative) return calculated in the same manner, and at the same
times, as the deemed return on your account under the excess 401(k) plan of
Viacom (as such plan may be amended from time to time) is determined (it being
understood and agreed that if at any time during which the Deferred Compensation
remains payable your excess 401(k) account balance is distributed in full to
you, your Deferred Compensation account shall continue to be credited or debited
with a deemed return based on the investment portfolio in which your excess
401(k) account was notionally invested immediately prior to its distribution).
Viacom's obligation to pay the Deferred Compensation (including the return
thereon provided for in this paragraph 3(c)) shall be an unfunded obligation to
be satisfied from the general funds of Viacom.
(d) Grant: You will be awarded a grant (the "Grant") under
Viacom's 1997 Long-Term Management Incentive Plan (the "1997 LTMIP") of stock
options to purchase 2,000,000 shares of Viacom's Class B Common Stock (such
number to be adjusted for any stock split, stock dividend or other similar
transaction that would result in an adjustment under the terms of the 1997 LTMIP
if such options were granted on the date hereof), effective as of the Effective
Date, with an exercise price equal to the fair-market value of Viacom's Class B
Common Stock on the Effective Date. Except as provided herein, the Grant shall
be made in accordance with the standard terms of stock option awards under the
1997 LTMIP (a copy of the standard form of such stock option awards is attached
hereto as Exhibit B), shall vest in three equal installments on the first,
second and third anniversaries of the Effective Date and shall be for a ten-year
term. In the event you cease to be employed by the Company for any reason upon
the expiration of the Employment Term, you shall be able to exercise the Grant
for two years following such termination.
<PAGE>
4
4. Benefits.
(a) You shall be entitled to participate in such medical,
dental and life insurance, 401(k), pension and other plans as Viacom may have or
establish from time to time and in which any other Viacom executives are
eligible to participate. The foregoing, however, shall not be construed to
require Viacom to establish any such plans or to prevent the modification or
termination of such plans once established, and no such action or failure
thereof shall affect this Agreement; provided, however, that no modification of
any plans in which you participate shall be made which results in treating you
less favorably than other senior executives of Viacom. It is further understood
and agreed that all benefits (including without limitation, Viacom's Pension and
Excess Pension Plans, short term disability program, Long-Term Disability
program and any supplement thereto, life insurance and any applicable death
benefit) you may be entitled to as an employee of Viacom shall be based upon
your Salary and, your Deferred Compensation, as set forth in paragraphs 3(a) and
(c) hereof, and not upon any bonus compensation due, payable or paid to you
hereunder, except where the benefit plan expressly provides otherwise. In
addition, it is hereby expressly agreed that you shall retain all benefits that
you have accrued under any compensation and benefit plans of CBS. You shall be
entitled to four (4) weeks vacation.
(b) Viacom shall provide you with no less than Five Million
Dollars ($5,000,000) of term life insurance during the Employment Term. You
shall have the right to assign the policy for such life insurance to your spouse
or issue or to a trust or trusts primarily for the benefit of your spouse and/or
issue.
(c) In addition to the benefits described in paragraphs 4(a)
and (b) hereof, Viacom agrees that you shall be credited for service accrued or
deemed accrued prior to the Effective Date with CBS or any of its subsidiaries
or predecessors for all purposes under any employee benefit plans, programs or
arrangement established or maintained by Viacom or any of its subsidiaries;
provided, however that such crediting of service shall not operate to duplicate
any benefit or the funding of any such benefit.
(d) Notwithstanding anything herein to the contrary, if it is
determined that any payment or benefit provided to you (whether hereunder or
otherwise, and including any payments or benefits resulting from the
transactions contemplated by the Merger Agreement) would be subject to the
excise tax imposed by Section 4999 of the Code or any interest or penalties with
respect to such excise tax (such excise tax, together with any interest or
penalties thereon, is herein referred to as an "Excise Tax"), then you shall be
entitled to an additional cash payment (a "Gross-Up Payment") in an amount that
will place you in the same after-tax economic position that you would have
enjoyed if the Excise Tax had not applied to the payment. The amount of the
Gross-Up Payment shall be determined by Viacom's regular independent auditors.
No Gross- Up Payments shall be payable hereunder if Viacom's auditors determine
that
<PAGE>
5
such payments are not subject to an Excise Tax. Viacom's auditors shall be
paid by Viacom for services performed hereunder.
5. Business Expenses. During the Employment Term, you shall be
reimbursed for such reasonable travel and other expenses incurred in the
performance of your duties hereunder as are customarily reimbursed to senior
executives of Viacom.
6. Perquisites. You shall be eligible for all perquisites made
available by Viacom from time to time during the Employment Term to other senior
executives of Viacom. Without limiting the generality of the foregoing, you
shall be entitled to (i) a car allowance and insurance in accordance with
Viacom's policy and (ii) use of a private airplane on a basis no less favorable
than as provided by CBS to you as of the date of execution of this Agreement,
or, if more beneficial to you, as provided by Viacom to any of its senior
executives.
7. Exclusive Employment, Confidential Information, Etc.
(a) Non-Competition. You agree that your employment hereunder
is on an exclusive basis, and that during the period of your employment
hereunder and, in the event during the Employment Term, of (x) a termination of
your employment pursuant to paragraph 9(a) hereof or (y) your resignation
without Good Reason, for a period of eighteen (18) months following the date of
such termination or resignation, as the case may be (the "Non-Compete Period"),
you will not engage in any other business activity which is in conflict with
your duties and obligations hereunder. You agree that during the Non-Compete
Period you shall not directly or indirectly engage in or participate as an
officer, employee, director, agent of or consultant for any business directly
competitive with that of Viacom, nor shall you make any investments in any
company or business competing with Viacom; provided, however, that nothing
herein shall prevent you from investing as less than a two (2%) percent
shareholder in the securities of any company listed on a national securities
exchange or quoted on an automated quotation system.
(b) Confidential Information. You agree that you shall not,
during the Employment Term or at any time thereafter, use for your own purposes,
or disclose to or for the benefit of any third party, any trade secret or other
confidential information of Viacom or any of its affiliates or predecessors
(except as may be required by law or in the performance of your duties hereunder
consistent with Viacom's policies) and that you will comply with any
confidentiality obligations of Viacom to a third party, whether under agreement
or otherwise. Notwithstanding the foregoing, confidential information shall be
deemed not to include information which (i) is or becomes generally available to
the public other than as a result of a disclosure by you or any other person who
directly or indirectly receives such information from you or at your direction
or (ii) is or becomes available to you on a non-confidential basis from a source
which is entitled to disclose it to you.
<PAGE>
6
(c) No Employee Solicitation. You agree that, during the
Employment Term and for one (1) year thereafter, you shall not, directly or
indirectly, engage, employ, or solicit the employment of any person who is then
or has been within six (6) months prior thereto, an employee of Viacom or any of
Viacom's affiliates or predecessors.
(d) Viacom Ownership. The results and proceeds of your
services hereunder, including, without limitation, any works of authorship
resulting from your services during your employment with Viacom and/or any of
its affiliates or predecessors and any works in progress, shall be
works-made-for-hire and Viacom shall be deemed the sole owner throughout the
universe of any and all rights of whatsoever nature therein, whether or not now
or hereafter known, existing, contemplated, recognized or developed, with the
right to use the same in perpetuity in any manner Viacom determines in its sole
discretion without any further payment to you whatsoever. If, for any reason,
any of such results and proceeds shall not legally be a work-for-hire and/or
there are any rights which do not accrue to Viacom under the preceding sentence,
then you hereby irrevocably assign and agree to assign any and all of your
right, title and interest thereto, including, without limitation, any and all
copyrights, patents, trade secrets, trademarks and/or other rights of whatsoever
nature therein, whether or not now or hereafter known, existing, contemplated,
recognized or developed to Viacom, and Viacom shall have the right to use the
same in perpetuity throughout the universe in any manner Viacom determines
without any further payment to you whatsoever. You shall, from time to time, as
may be requested by Viacom, do any and all things which Viacom may deem useful
or desirable to establish or document Viacom's exclusive ownership of any and
all rights in any such results and proceeds, including, without limitation, the
execution of appropriate copyright and/or patent applications or assignments. To
the extent you have any rights in the results and proceeds of your services that
cannot be assigned in the manner described above, you unconditionally and
irrevocably waive the enforcement of such rights. This paragraph 7(d) is subject
to, and shall not be deemed to limit, restrict, or constitute any waiver by
Viacom of any rights of ownership to which Viacom may be entitled by operation
of law by virtue of Viacom or any of its affiliates or predecessors being your
employer.
(e) Litigation. You agree that, during the Employment Term,
for one (1) year thereafter and, if longer, during the pendancy of any
litigation or other proceeding, (i) you shall not communicate with anyone (other
than your own attorneys and tax advisors and, except to the extent required by
law or necessary in the performance of your duties hereunder) with respect to
the facts or subject matter of any pending or potential litigation, or
regulatory or administrative proceeding involving any of Viacom's affiliates or
predecessors, other than any litigation or other proceeding in which you are a
party-in-opposition, without giving prior notice to Viacom or Viacom's counsel,
and (ii) in the event that any other party attempts to obtain information or
documents from you with respect to matters possibly related to such litigation
or other proceeding, you shall promptly so notify Viacom's counsel unless you
are prohibited from doing so under applicable law.
<PAGE>
7
(f) No Right to Write Books, Articles, Etc. During the
Employment Term, except as authorized by Viacom, you shall not prepare or assist
any person or entity in the preparation of any books, articles, television or
motion picture productions or other creations, concerning Viacom or any of
Viacom's affiliates or predecessors or any of their officers, directors, agents,
employees, suppliers or customers.
(g) Return of Property. All documents, data, recordings, or
other property, whether tangible or intangible, including all information stored
in electronic form, obtained or prepared by or for you and utilized by you in
the course of your employment with Viacom or any of its affiliates or
predecessors shall remain the exclusive property of Viacom. In the event of the
termination of your employment for any reason, Viacom reserves the right, to the
extent permitted by law and in addition to any other remedy Viacom may have, to
deduct from any monies otherwise payable to you the following: (i) the full
amount of any debt you owe to Viacom or any of its affiliates or predecessors at
the time of or subsequent to the termination of your employment with Viacom, and
(ii) the value of the Viacom property which you retain in your possession after
the termination of your employment with Viacom. In the event that the law of any
state or other jurisdiction requires the consent of an employee for such
deductions, this Agreement shall serve as such consent.
(h) Non-Disparagement. You and, to the extent set forth in the
next sentence, Viacom agree that each party shall not, during the Employment
Term and for one (1) year thereafter criticize, ridicule or make any statement
which disparages or is derogatory of the other party in any communications with
any customer or client. Viacom's obligations under the preceding sentence shall
be limited to communications by its senior corporate executives having the rank
of Senior Vice President or above.
(i) Injunctive Relief. Viacom has entered into this Agreement
in order to obtain the benefit of your unique skills, talent, and experience.
You acknowledge and agree that any violation of paragraphs 7(a) through (k)
hereof will result in irreparable damage to Viacom, and, accordingly, Viacom may
obtain injunctive and other equitable relief for any breach or threatened breach
of such paragraphs, in addition to any other remedies available to Viacom.
(j) Survival; Modification of Terms. Your obligations under
paragraphs 7(a) through (i) hereof shall remain in full force and effect for the
entire period provided therein notwithstanding the termination of the Employment
Term pursuant to paragraph 9 hereof or otherwise. You and Viacom agree that the
restrictions and remedies contained in paragraphs 7(a) through (k) are
reasonable and that it is your intention and the intention of Viacom that such
restrictions and remedies shall be enforceable to the fullest extent permissible
by law. If it shall be found by a court of competent jurisdiction that any such
restriction or remedy is unenforceable but would be enforceable if some part
thereof were deleted or the period or area of application reduced, then such
restriction or remedy shall apply with such modification as shall be necessary
to make it enforceable.
<PAGE>
8
(k) No Selling of Viacom Stock without Board Consent. In
consideration of your employment hereunder, you hereunder agree that, except as
otherwise provided herein, during the period commencing on the date hereof and
ending on the third anniversary of the Effective Date, you shall not sell or
dispose of (nor exercise any limited rights or stock appreciation rights with
respect to) any shares of capital stock of CBS or Viacom held by you, your
immediate family members (which does not include your former spouse), or trusts
or other entities in which you or your immediate family members have a
controlling interest or are beneficiaries (together, the "Family Affiliates" and
each, a "Family Affiliate") that you or any Family Affiliate now hold, or in the
future may acquire, including, without limitation, shares that you or any Family
Affiliate receive pursuant to the transactions contemplated by the Merger
Agreement (whether in exchange for shares of CBS common stock or otherwise),
under any stock options or other equity-based compensation awards made to you by
CBS or by Viacom under this Agreement or under any other agreement awarding you
shares of capital stock of Viacom, without first obtaining the consent of (i) if
prior to the Effective Date, the Chairman, or (ii) if on or following the
Effective Date, fourteen of the eighteen members of the Board of Viacom. This
restriction shall lapse in the event that, during the Employment Term, you are
terminated without Cause, resign for Good Reason, die or become disabled.
Notwithstanding the foregoing, between the first anniversary of the Effective
Date and the second anniversary of the Effective Date you and the Family
Affiliates collectively may sell or dispose of a number of shares equal to up to
10% of the shares held by you and the Family Affiliates on the Effective Date
(including, for this purpose, the shares underlying any equity-based
compensation awards held by you on the Effective Date, but not shares underlying
any equity-based compensation awards granted to you pursuant to paragraph 3(d)
or at any time after the Effective Date). Between the second anniversary of the
Effective Date and the third anniversary of the Effective Date, you and the
Family Affiliates collectively may sell or dispose of a number of shares equal
to up to 10% of the shares held by you and the Family Affiliates on the second
anniversary of the Effective Date (including, for this purpose, the shares
underlying any equity-based compensation awards held by you on the Effective
Date, but not shares underlying any equity-based compensation awards granted to
you pursuant to paragraph 3(d) or at any time after the Effective Date), plus
any shares that were not sold or disposed of by you and the Family Affiliates
collectively under the prior year's limits. Notwithstanding the foregoing, you
may transfer shares to Family Affiliates, but such shares shall remain subject
to the restrictions contained in this paragraph 7(k).
8. Incapacity. In the event you become totally medically
disabled at any time during the Employment Term and are not expected to be able
to substantially perform your duties for a six (6) consecutive month period, the
Chairman, at any time after such disability has in fact continued for 60
consecutive days, may determine that Viacom requires such duties and
responsibilities be performed by another executive. In the event you become
disabled, you will first receive benefits under Viacom's short-term disability
program for the first 26 weeks of consecutive absence. Thereafter, you will be
eligible to receive benefits under Viacom's Long-Term Disability ("LTD") program
or any supplement thereto, in accordance with its terms.
<PAGE>
9
Upon receipt of benefits under the LTD program you will also be entitled to
receive, subject to applicable withholding taxes:
(i) a Target Bonus prorated for the portion of calendar
year through the date on which you become eligible to
receive benefits under the LTD program, payable at
the time that the Bonus for such calendar year would
otherwise be paid;
(ii) prorated Deferred Compensation for the calendar year
in which such benefits commence and Deferred
Compensation attributable to prior calendar years,
payable, together with the return thereon as provided
in paragraph 3(c), prior to January 31 of the
calendar year following the calendar year in which
such benefits commence;
(iii) stock options granted to you under the 1997 LTMIP
which are exercisable on or prior to the date as of
which benefits commence under the LTD program or that
would have vested and become exercisable on or before
the last day of the Employment Term will be
exercisable for two (2) years after the date as of
which such benefits commence or, if later, until
December 31, 2003, but in no event may such stock
options be exercised following the expiration date of
such stock options; and
In the event that you thereafter become able to substantially perform your
duties, you will then be entitled to receive from Viacom your Salary and
Deferred Compensation at the rate being paid to you immediately prior to the
commencement of such disability, and your Bonus calculated pursuant to paragraph
3(b) hereof, through the remainder of the Employment Term reduced by any
employment compensation earned by you for any work or service performed for any
other person.
9. Termination.
(a) Termination for Cause. Viacom may, at its option,
terminate your employment under this Agreement forthwith for "cause", and Viacom
shall thereafter have no further obligations under this Agreement, including,
without limitation, any obligation to pay Salary or Bonus or provide benefits
under this Agreement; provided, however, that Viacom may terminate this
Agreement pursuant to this paragraph only with the affirmative vote of fourteen
of the eighteen members of the Board of Viacom at a meeting called for such
purpose at which you and a counsel of your choosing shall have an opportunity to
be heard. For purposes of this Agreement, termination of this Agreement for
"cause" shall mean termination for embezzlement, fraud or other conduct which
would constitute a felony, conviction of a felony, or willful unauthorized
disclosure of confidential information, or if you at any time materially breach
this Agreement (including, without limitation, your failure, neglect of or
refusal to substantially
<PAGE>
10
perform your obligations hereunder as set forth in paragraphs 2, 7(k) and 12
hereof), except in the event of your disability as set forth in paragraph 8.
Anything herein to the contrary notwithstanding, Viacom will give you written
notice prior to terminating this Agreement for your material breach setting
forth the exact nature of any alleged breach and the conduct required to cure
such breach. Except for a breach which by its nature cannot be cured, you shall
have ten (10) business days from the giving of such notice within which to cure
and within which period Viacom cannot terminate this Agreement for the stated
reasons.
(b) Good Reason Termination. You may terminate your employment
hereunder for "Good Reason" at any time during the Employment Term by written
notice to Viacom not more than thirty (30) days after the occurrence of the
event constituting "Good Reason". Such notice shall state an effective date no
earlier than thirty (30) business days after the date it is given. Viacom shall
have ten (10) business days from the giving of such notice within which to cure.
Good Reason shall mean any of the following, without your prior written consent,
other than in connection with the termination of your employment for "cause" (as
defined above) or in connection with your permanent disability:
(i) the assignment to you by Viacom of duties
substantially inconsistent with your positions,
duties, responsibilities, titles or offices, the
withdrawal of a material part of your
responsibilities or a change in your reporting
relationship, as set forth in paragraph 2 or in
Article XIII of the Certificate of Incorporation as
in effect on the Effective Date;
(ii) a reduction by Viacom in your Salary or Target Bonus
as in effect at the date hereof or as the same may be
increased from time to time during the Employment
Term;
(iii) Viacom's requiring you to be based anywhere other
than the New York City metropolitan area, except for
required travel on Viacom's business to any extent
substantially consistent with business travel
obligations of other senior executives of Viacom;
(iv) Viacom's violation of Article XIII of the Certificate
of Incorporation; or
(v) the material breach by Viacom of its obligations
hereunder.
(c) Termination Without Cause. Viacom may terminate your
employment under this Agreement without "cause" (as defined above) at any time
during the Employment Term by written notice to you; provided, however, that
Viacom may terminate your employment pursuant to this paragraph only with the
affirmative vote of fourteen of the eighteen members of the Board of Viacom.
<PAGE>
11
(d) Termination Payments, Etc. In the event that your
employment terminates pursuant to paragraph 9(b) or 9(c) hereof, you shall be
entitled to receive, subject to applicable withholding taxes:
(i) your Salary as provided in paragraph 3(a) until the
end of the Employment Term, payable in accordance
with Viacom's then effective payroll practices;
(ii) bonus compensation for each calendar year during the
Employment Term equal to your Target Bonus as set
forth in paragraph 3(b);
(iii) Deferred Compensation for each calendar year during
the Employment Term as set forth in paragraph 3(c);
Deferred Compensation attributable to the calendar
year in which the termination pursuant to paragraph
9(b) or 9(c) hereof occurs and to prior calendar
years shall be payable, together with the return
thereon as provided in paragraph 3(c), prior to
January 31 of the calendar year following such
termination; and Deferred Compensation attributable
to subsequent calendar years shall be payable,
together with the return thereon as provided in
paragraph 3(c), prior to January 31 of each such
following calendar year;
(iv) your perquisites as provided in paragraph 6 until the
end of the Employment Term, payable in accordance
with Viacom's then effective payroll practices;
(v) medical and dental insurance coverage until the end
of the Employment Term or, if earlier, the date on
which you become eligible for medical and dental
coverage from a third party employer; during this
period, Viacom will pay an amount equal to the
applicable COBRA premiums (or such other amounts as
may be required by applicable law) (which amount will
be included in your income for tax purposes to the
extent required by applicable law); at the end of
such period, you may elect to continue your medical
and dental insurance coverage at your own expense for
the balance, if any, of the period required by law;
(vi) life insurance coverage as set forth in paragraph
4(b) until the end of the Employment Term (the amount
of such insurance to be reduced by the amount of any
insurance provided by a new employer without cost to
you);
(vii) stock options granted to you under the 1997 LTMIP
which are exercisable on or prior to the date of the
termination of your employment under paragraph 9(b)
or 9(c) or that would have vested and become
exercisable
<PAGE>
12
on or before the last day of the Employment Term will
be exercisable for two (2) years after the date of
such termination or, if later, until December 31,
2003, but in no event may such stock options be
exercised following the expiration date of such stock
options;
(viii) a supplemental pension benefit calculated in
accordance with the terms of the Excess Pension Plan
and paragraph 4(c) as though you were employed
through the end of the Employment Term; and
(ix) provision of an appropriate office and secretarial
assistance for up to six (6) months after the
termination of your employment.
The payments provided for in (i) above are in lieu of any severance or income
continuation or protection under any Viacom plan that may now or hereafter
exist. The payments and benefits to be provided pursuant to this paragraph 9(d)
shall constitute liquidated damages, and shall be deemed to satisfy and be in
full and final settlement of all obligations of Viacom to you under this
Agreement.
(e) Termination of Benefits. Notwithstanding anything in this
Agreement to the contrary (except as otherwise provided in paragraph 9(d) with
respect to medical, dental and life insurance and Excess Pension Plan benefits
or in paragraphs 7 and 8 with respect to continued exercisability of options),
coverage under all Viacom benefit plans and programs (including, without
limitation, vacation, 401(k), excess 401(k) and pension plans, LTD and
accidental death and dismemberment and business travel and accident insurance)
will terminate upon the termination of your employment except to the extent
otherwise expressly provided in such plans or programs.
10. Death. If you die prior to the end of the Employment Term,
your beneficiary or estate shall be entitled to receive your Salary up to the
date on which the death occurs, a pro-rated Target Bonus and pro-rated Deferred
Compensation for the calendar year in which the death occurs and Deferred
Compensation attributable to prior calendar years payable, together with the
return thereon as provided in paragraph 3(c), prior to January 31 of the
following calendar year. In addition, the vesting of all stock options granted
under the 1997 LTMIP that are not exercisable as of the date on which the death
occurs shall be accelerated, and your beneficiary or estate shall be entitled to
exercise such stock options, together with all stock options that are
exercisable as of the date of your death, for two (2) years after the date of
death or, if later, until December 31, 2003, but in no event may such stock
options be exercised following the expiration date of such stock options.
11. Section 317 and 507 of the Federal Communications Act. You
represent that you have not accepted or given nor will you accept or give,
directly or indirectly, any money, services or other valuable consideration from
or to anyone other than Viacom for the inclusion of
<PAGE>
13
any matter as part of any film, television program or other production produced,
distributed and/or developed by Viacom and/or any of its affiliates or
predecessors.
12. Equal Opportunity Employer. You acknowledge that Viacom is
an equal opportunity employer. You agree that you will comply with Viacom
policies regarding employment practices and with applicable federal, state and
local laws prohibiting discrimination on the basis of race, color, creed,
national origin, age, sex or disability.
13. Indemnification.
(a) Viacom shall indemnify and hold you harmless, to the
maximum extent permitted by law and by the Certificate of Incorporation and/or
the Bylaws of Viacom, against judgments, fines, amounts paid in settlement of
and reasonable expenses incurred by you in connection with the defense of any
action or proceeding (or any appeal therefrom) in which you are a party by
reason of your position as President and Chief Operating Officer or any other
office you may hold with Viacom or its affiliates or by reason of any prior
positions held by you with Viacom or any of its affiliates or predecessors or
for any acts or omissions made by you in good faith in the performance of any of
your duties as an officer of Viacom.
(b) To the extent that Viacom maintains officers' and
directors' liability insurance, you will be covered under such policy.
14. Notices. All notices required to be given hereunder shall
be given in writing, by personal delivery or by mail at the respective addresses
of the parties hereto set forth above, or at such other address as may be
designated in writing by either party. Any notice given by mail shall be deemed
to have been given three days following such mailing.
15. Assignment. This is an Agreement for the performance of
personal services by you and may not be assigned by you or Viacom except that
Viacom may assign this Agreement to any affiliate of or any successor in
interest to Viacom.
16. New York Law, Etc. This Agreement and all matters or
issues collateral thereto shall be governed by the laws of the State of New York
applicable to contracts entered into and performed entirely therein. Any action
to enforce this Agreement shall be brought in the state or federal courts
located in the City of New York.
17. No Implied Contract. Nothing contained in this Agreement
shall be construed to impose any obligation on Viacom to renew this Agreement or
any portion thereof. The parties intend to be bound only upon execution of a
written agreement and no negotiation, exchange of draft or partial performance
shall be deemed to imply an agreement. Neither the continuation of employment
nor any other conduct shall be deemed to imply a continuing agreement upon the
expiration of this Agreement.
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14
18. Entire Understanding. This Agreement contains the entire
understanding of the parties hereto relating to the subject matter herein
contained, and can be changed only by a writing signed by both parties hereto.
19. Void Provisions. If any provision of this Agreement, as
applied to either party or to any circumstances, shall be adjudged by a court to
be void or unenforceable, the same shall be deemed stricken from this Agreement
and shall in no way affect any other provision of this Agreement or the validity
or enforceability of this Agreement.
20. Supersedes Previous Agreement. Effective as of the
Effective Date, this Agreement shall supersede and cancel all prior agreements
relating to your employment by Viacom or any of its affiliates and predecessors,
including, without limitation, the employment agreement with Westinghouse
Electric Corporation, dated as of June 20, 1996, and any amendments thereto.
Notwithstanding the preceding sentence, this Agreement is not intended, and
shall not be construed, to affect your rights in any compensation or benefits
that have been granted or accrued prior to the beginning of the Employment Term.
<PAGE>
15
If the foregoing correctly sets forth our understanding,
please sign one copy of this letter and return it to the undersigned, whereupon
this letter shall constitute a binding agreement between us.
Very truly yours,
VIACOM INC.
By: /s/ Michael D. Fricklas
-------------------------------
Michael D. Fricklas
Senior Vice President, General
Counsel and Secretary
ACCEPTED AND AGREED:
/s/ Mel Karmazin
- ----------------------
Mel Karmazin
<PAGE>
EXHIBIT A
Article XIII of the Amended and Restated Certificate of Incorporation
(attached)
<PAGE>
EXHIBIT B
Form of the Award Agreement
(attached)
<PAGE>
EXHIBIT A-1
RESTATED CERTIFICATE OF INCORPORATION
OF
VIACOM INC.
(Originally incorporated on November 10, 1986 under the name Arsenal Holdings,
Inc.)
ARTICLE I
NAME
The name of this Corporation is Viacom Inc.
ARTICLE II
REGISTERED OFFICE AND AGENT FOR SERVICE
The registered office of the Corporation in the State of Delaware is located
at 1013 Centre Road, City of Wilmington, County of New Castle. The name and
address of the Corporation's registered agent for service of process in Delaware
is:
Corporation Service Company
1013 Centre Road
Wilmington, Delaware 19805-1297
ARTICLE III
CORPORATE PURPOSES
The purpose of the Corporation is to engage in any lawful act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware.
ARTICLE IV
CAPITAL STOCK
(1) Shares, Classes and Series Authorized.
(a) The total number of shares of all classes of capital stock which the
Corporation shall have authority to issue is 3,700,000,000 shares. The
classes and the aggregate number of shares of stock of each class which the
Corporation shall have authority to issue are as follows:
(i) 500,000,000 shares of Class A Common Stock, $0.01 par value ("Class
A Common Stock").
(ii) 3,000,000,000 shares of Class B Common Stock, $0.01 par value
("Class B Common Stock").
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(iii) 200,000,000 shares of Preferred Stock, $0.01 par value
("Preferred Stock").
(b) The number of authorized shares of Class B Common Stock may be
increased or decreased (but not below the number of shares thereof then
outstanding) from time to time by the affirmative vote of the holders of a
majority of the stock of the Corporation entitled to vote.
(2) Powers and Rights of the Class A Common Stock and the Class B Common
Stock.
Except as otherwise expressly provided in this Restated Certificate of
Incorporation, all issued and outstanding shares of Class A Common Stock and
Class B Common Stock shall be identical and shall entitle the holders thereof to
the same rights and privileges.
A. Voting Rights and Powers. Except as otherwise provided in this Restated
Certificate of Incorporation or required by law, with respect to all matters
upon which stockholders are entitled to vote, the holders of the outstanding
shares of Class A Common Stock shall vote together with the holders of any
other outstanding shares of capital stock of the Corporation entitled to
vote, without regard to class, and every holder of outstanding shares of
Class A Common Stock shall be entitled to cast thereon one vote in person or
by proxy for each share of Class A Common Stock standing in his name. The
holders of shares of Class A Common Stock shall have the relevant class
voting rights set forth in Article IX. Except as otherwise required by law,
the holders of outstanding shares of Class B Common Stock shall not be
entitled to any votes upon any questions presented to stockholders of the
Corporation, including but not limited to, whether to increase or decrease
(but not below the number of shares then outstanding) the number of
authorized shares of Class B Common Stock.
B. Dividends. Subject to the rights and preferences of the Preferred Stock
set forth in this Article IV and in any resolution or resolutions providing
for the issuance of such stock as set forth in Section (3) of this Article
IV, the holders of Class A Common Stock and Class B Common Stock shall be
entitled to receive ratably such dividends as may from time to time be
declared by the Board of Directors out of funds legally available therefor.
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C. Distribution of Assets Upon Liquidation. In the event the Corporation
shall be liquidated, dissolved or wound up, whether voluntarily or
involuntarily, after there shall have been paid or set aside for the holders
of all shares of the Preferred Stock then outstanding the full preferential
amounts to which they are entitled under the resolutions authorizing the
issuance of such Preferred Stock, the net assets of the Corporation remaining
thereafter shall be divided ratably among the holders of Class A Common Stock
and Class B Common Stock.
D. Split, Subdivision or Combination. If the Corporation shall in any
manner split, subdivide or combine the outstanding shares of Class A Common
Stock or Class B Common Stock, the outstanding shares of the other class of
Common Stock shall be proportionally split, subdivided or combined in the
same manner and on the same basis as the outstanding shares of the other
class of Common Stock have been split, subdivided or combined.
E. Conversion. So long as there are 10,000 shares of Class A Common Stock
outstanding, each record holder of shares of Class A Common Stock or Class B
Common Stock may convert any or all of such shares into an equal number of
shares of Class B Common Stock by surrendering the certificates for such
shares, accompanied by payment of documentary, stamp or similar issue or
transfer taxes, if any, along with a written notice by such record holder to
the Corporation stating that such record holder desires to convert such
shares into the same number of shares of Class B Common Stock and requesting
that the Corporation issue all of such Class B Common Stock to the persons
named therein, setting forth the number of shares of Class B Common Stock to
be issued to each such person and the denominations in which the certificates
therefor are to be issued.
(3)Powers and Rights of the Preferred Stock.
Subject to Article XIII of this Restated Certificate of Incorporation, the
Preferred Stock may be issued from time to time in one or more series, with such
distinctive serial designations as may be stated or expressed in the resolution
or resolutions providing for the issue of such stock adopted from time to time
by the Board of Directors; and in such resolution or resolutions providing for
the issuance of shares of each particular series, the Board of Directors is also
expressly authorized to fix; the right to vote, if any; the consideration for
which the shares of such series are to be issued; the number of shares
constituting such series, which number may be increased (except as otherwise
fixed by the
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<PAGE>
Board of Directors) or decreased (but not below the number of shares thereof
then outstanding) from time to time by action of the Board of Directors; the
rate of dividends upon which and the times at which dividends on shares of such
series shall be payable and the preference, if any, which such dividends shall
have relative to dividends on shares of any other class or classes or any other
series of stock of the Corporation; whether such dividends shall be cumulative
or noncumulative, and, if cumulative, the date or dates from which dividends on
shares of such series shall be cumulative; the rights, if any, which the holders
of shares of such series shall have in the event of any voluntary or involuntary
liquidation, merger, consolidation, distribution or sale of assets, dissolution
or winding up of the affairs of the Corporation; the rights, if any, which the
holders of shares of such series shall have to convert such shares into or
exchange such shares for shares of any other class or classes or any other
series of stock of the Corporation or for any debt securities of the Corporation
and the terms and conditions, including, without limitation, price and rate of
exchange, of such conversion or exchange, whether shares of such series shall be
subject to redemption, and the redemption price or prices and other terms of
redemption, if any, for shares of such series including, without limitation, a
redemption price or prices payable in shares of Class A Common Stock or Class B
Common Stock; the terms and amounts of any sinking fund for the purchase or
redemption of shares of such series; and any and all other powers, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof pertaining to shares of such
series permitted by law.
(4)Issuance of Class A Common Stock, Class B Common Stock and Preferred
Stock.
Subject to Article XIII of this Restated Certificate of Incorporation, the
Board of Directors of the Corporation may from time to time authorize by
resolution the issuance of any or all shares of Class A Common Stock, Class B
Common Stock and Preferred Stock herein authorized in accordance with the terms
and conditions set forth in this Restated Certificate of Incorporation for such
purposes, in such amounts, to such persons, corporations, or entities, for such
consideration, and in the case of the Preferred Stock, in one or more series,
all as the Board of Directors in its discretion may determine and without any
vote or other action by any of the stockholders of the Corporation, except as
otherwise required by law.
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<PAGE>
ARTICLE V
DIRECTORS
(1) Power of the Board of Directors. Subject to Article XIII of this Restated
Certificate of Incorporation, the property and business of the Corporation shall
be controlled and managed by or under the direction of its Board of Directors.
In furtherance, and not in limitation of the powers conferred by the laws of the
State of Delaware, the Board of Directors is expressly authorized, subject in
all cases to Article XIII of this Restated Certificate of Incorporation:
(a) To make, alter, amend or repeal the By-Laws of the Corporation;
provided that no By-Laws hereafter adopted shall invalidate any prior act of
the Directors that would have been valid if such By-Laws had not been
adopted;
(b) To determine the rights, powers, duties, rules and procedures that
affect the power of the Board of Directors to manage and direct the property,
business and affairs of the Corporation, including, without limitation, the
power to designate and empower committees of the Board of Directors, to
elect, appoint and empower the officers and other agents of the Corporation,
and to determine the time and place of, and the notice requirements for Board
meetings, as well as the manner of taking Board action; and
(c) To exercise all such powers and do all such acts as may be exercised
by the Corporation, subject to the provisions of the laws of the State of
Delaware, this Restated Certificate of Incorporation, and the By-Laws of the
Corporation.
(2) Number and Qualifications of Directors. The number of directors
constituting the entire Board of Directors shall be fixed from time to time by
resolution of the Board of Directors but shall not be less than three nor more
than twenty. Directors shall be elected to hold office for a term of one year.
As used in this Restated Certificate of Incorporation, the term "entire Board of
Directors" means the total number of Directors fixed in the manner provided in
this Article V Section (2) and in the By-Laws.
5
<PAGE>
ARTICLE VI
INDEMNIFICATION OF DIRECTORS,
OFFICERS AND OTHERS
(1)Action Not By or on Behalf of Corporation. The Corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent (including,
without limitation, a trustee) of another corporation, partnership, joint
venture, trust or other enterprise, against judgments, fines, amounts paid in
settlement and expenses (including, without limitation, attorneys' fees),
actually and reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interests of the Corporation, and with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
(2)Action By or on Behalf of Corporation. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a Director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, or other
enterprise against expenses (including, without limitation, attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the Corporation unless and only to the extent that the court in
6
<PAGE>
which such action or suit was brought shall determine upon application that,
despite the adjudication of liability and in view of all of the circumstances of
the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the court shall deem proper.
(3)Successful Defense. To the extent that a present or former Director,
officer, employee or agent of the Corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred to in Section
1 or 2 of this Article VI, or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including, without limitation,
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(4) Determination of Right to Indemnification in Certain Circumstances. Any
indemnification under Section 1 or 2 of this Article VI (unless ordered by a
court) shall be made by the Corporation only as authorized in the specific case
upon a determination that indemnification of the present or former Director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Section 1 or 2 of this Article IV.
Such determination shall be made, with respect to a person who is a Director or
officer at the time of such determination, (1) by a majority vote of the
Directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) by a committee of such Directors designated by a
majority vote of such Directors, even though less than a quorum, or (3) if there
are no such Directors, or if such Directors so direct, by independent legal
counsel in a written opinion, or (4) by the stockholders of the Corporation
entitled to vote thereon.
(5) Advance Payment of Expenses.
(a) Expenses (including attorneys' fees) incurred by a Director or officer
in defending any civil, criminal, administrative or investigative action, suit
or proceeding shall be paid by the Corporation in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking by
or on behalf of such Director or officer, to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation as authorized in this Article.
(b) Expenses (including attorneys' fees) incurred by any other employee or
agent in defending any civil, criminal, administrative or investigative action,
suit or proceeding may be paid by the Corporation in advance of the final
disposition
7
<PAGE>
of such action, suit or proceeding upon such terms and conditions, if any, as
the Corporation deems appropriate.
(6)Not Exclusive. The indemnification and advancement of expenses provided
by, or granted pursuant to, the other sections of this Article VI shall not be
deemed exclusive of any other rights to which a person seeking indemnification
or advancement of expenses may be entitled under any statute, by-law, agreement,
vote of stockholders or disinterested Directors or otherwise, both as to action
in his official capacity and as to action in another capacity while holding such
office. Without limiting the foregoing, the Corporation is authorized to enter
into an agreement with any Director, officer, employee or agent of the
Corporation providing indemnification for such person against expenses,
including, without limitation, attorneys' fees, judgments, fines and amounts
paid in settlement that result from any threatened, pending or completed action,
suit, or proceeding, whether civil, criminal, administrative or investigative,
including, without limitation, any action by or in the right of the Corporation,
that arises by reason of the fact that such person is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, to the full
extent allowed by law, except that no such agreement shall provide for
indemnification for any actions that constitute fraud, actual dishonesty or
willful misconduct.
(7)Insurance. The Corporation may purchase and maintain insurance on behalf
of any person who is or was a Director, officer, employee or agent of the
Corporation, or is or was serving as the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not the Corporation would have the power to indemnify him against
such liability under the provisions of this Article VI.
(8)Certain Definitions. For the purposes of this Article VI, (A) any
Director, officer, employee or agent of the Corporation who shall serve as a
director, officer, employee or agent of any other corporation, joint venture,
trust or other enterprise of which the Corporation, directly or indirectly, is
or was a stockholder or creditor, or in which the Corporation is or was in any
way interested, or (B) any director, officer, employee or agent of any
subsidiary corporation, joint venture, trust or other enterprise wholly
8
<PAGE>
owned by the Corporation, shall be deemed to be serving as such director,
officer, employee or agent at the request of the Corporation, unless the Board
of Directors of the Corporation shall determine otherwise. In all other
instances where any person shall serve as a director, officer, employee or agent
of another corporation, joint venture, trust or other enterprise of which the
Corporation is or was a stockholder or creditor, or in which it is or was
otherwise interested, if it is not otherwise established that such person is or
was serving as such director, officer, employee or agent at the request of the
Corporation, the Board of Directors of the Corporation may determine whether
such service is or was at the request of the Corporation, and it shall not be
necessary to show any actual or prior request for such service. For purposes of
this Article VI, references to a corporation include all constituent
corporations absorbed in a consolidation or merger as well as the resulting or
surviving corporation so that any person who is or was a director, officer,
employee or agent of such a constituent corporation or is or was serving at the
request of such constituent corporation as a director, officer, employee or
agent of another corporation, joint venture, trust or other enterprise shall
stand in the same position under the provisions of this Article VI with respect
to the resulting or surviving corporation as he would if he had served the
resulting or surviving corporation in the same capacity. For purposes of this
Article VI, references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director, officer, employee, or agent with respect to an
employee benefit plan, its participants, or beneficiaries, and a person who
acted in good faith and in a manner he reasonably believed to be in the interest
of the participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article VI.
(9)The indemnification and advancement of expenses provided by, or granted
pursuant to, this Article VI shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
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ARTICLE VII
DIRECTOR LIABILITY TO THE CORPORATION
(a)A Director's liability to the Corporation for breach of duty to the
Corporation or its stockholders shall be limited to the fullest extent permitted
by Delaware law as now in effect or hereafter amended. In particular no Director
of the Corporation shall be liable to the Corporation or any of its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the Director's duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, as the same exists or
hereafter may be amended, or (iv) for any transaction from which the Director
derived an improper personal benefit.
(b)Any repeal or modification of the foregoing paragraph (a) by the
stockholders of the Corporation entitled to vote thereon shall not adversely
affect any right or protection of a director of the Corporation existing at the
time of such repeal or modification.
(c)If the General Corporation Law of the State of Delaware is amended to
authorize corporate action further eliminating or limiting the liability of
directors, then a director of the Corporation, in addition to the circumstances
in which he is not now liable, shall be free of liability to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as so
amended.
ARTICLE VIII
RESERVATION OF RIGHT TO AMEND
CERTIFICATE OF INCORPORATION
Subject to Article XIII of this Restated Certificate of Incorporation, the
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Restated Certificate of Incorporation in the manner now or
hereafter prescribed by law, and all the provisions of this Restated Certificate
of Incorporation and all rights and powers conferred in this Restated
Certificate of Incorporation on stockholders, directors and officers are subject
to this reserved power.
Each reference in the Restated Certificate of Incorporation to "the Restated
Certificate of Incorporation", "hereunder", "hereof", or words of like import
and each reference to the
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Restated Certificate of Incorporation set forth in any amendment to the Restated
Certificate of Incorporation shall mean and be a reference to the Restated
Certificate of Incorporation as supplemented and amended through such amendment
to the Restated Certificate of Incorporation.
ARTICLE IX
VOTING RIGHTS
(1)Class A Common Stock. In addition to any other approval required by law or
by this Restated Certificate of Incorporation, the affirmative vote of a
majority of the then outstanding shares of Class A Common Stock, voted
separately as a class, shall be necessary to approve any consolidation of the
Corporation with another corporation, any merger of the Corporation into another
corporation or any merger of any other corporation into the Corporation pursuant
to which shares of Common Stock are converted into or exchanged for any
securities or any other consideration.
(2)Preferred Stock. Subject to Article XIII of this Restated Certificate of
Incorporation, in addition to any other approval required by law or by this
Restated Certificate of Incorporation, each particular series of any class of
Preferred Stock shall have such right to vote, if any, as shall be fixed in the
resolution or resolutions, adopted by the Board of Directors, providing for the
issuance of shares of such particular series.
ARTICLE X
STOCK OWNERSHIP
AND THE FEDERAL COMMUNICATIONS LAWS
(1)Requests for Information. So long as the Corporation or any of its
subsidiaries holds any authorization from the Federal Communications Commission
(or any successor thereto), if the Corporation has reason to believe that the
ownership, or proposed ownership, of shares of capital stock of the Corporation
by any stockholder or any person presenting any shares of capital stock of the
Corporation for transfer into his name (a "Proposed Transferee") may be
inconsistent with, or in violation of, any provision of the Federal
Communications Laws (as hereinafter defined), such stockholder or Proposed
Transferee, upon request of the Corporation, shall furnish promptly to the
Corporation such information (including, without limitation, information with
respect to citizenship, other ownership interests and affiliations) as the
Corporation shall reasonably request to determine whether the ownership of, or
the exercise of any rights with respect
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to, shares of capital stock of the Corporation by such stockholder or Proposed
Transferee is inconsistent with, or in violation of, the Federal Communications
Laws. For purposes of this Article X, the term "Federal Communications Laws"
shall mean any law of the United States now or hereafter in effect (and any
regulation thereunder) pertaining to the ownership of, or the exercise of the
rights of ownership with respect to, capital stock of corporations holding,
directly or indirectly, Federal Communications Commissions authorizations,
including, without limitation, the Communications Act of 1934, as amended (the
"Communications Act"), and regulations thereunder pertaining to the ownership,
or the exercise of the rights of ownership, of capital stock of corporations
holding, directly or indirectly, Federal Communications Commission
authorizations, by (i) aliens, as defined in or under the Communications Act, as
it may be amended from time to time, (ii) persons and entities having interests
in television or radio stations, daily newspapers and cable television systems
or (iii) persons or entities, unilaterally or otherwise, seeking direct or
indirect control of the Corporation, as construed under the Communications Act,
without having obtained any requisite prior Federal regulatory approval to such
control.
(2)Denial of Rights, Refusal to Transfer. If any stockholder or Proposed
Transferee from whom information is requested should fail to respond to such
request pursuant to Section (1) of this Article or the Corporation shall
conclude that the ownership of, or the exercise of any rights of ownership with
respect to, shares of capital stock of the Corporation, by such stockholder or
Proposed Transferee, could result in any inconsistency with, or violation of,
the Federal Communications Laws, the Corporation may refuse to permit the
transfer of shares of capital stock of the Corporation to such Proposed
Transferee, or may suspend those rights of stock ownership the exercise of which
would result in any inconsistency with, or violation of, the Federal
Communications Laws, such refusal of transfer or suspension to remain in effect
until the requested information has been received and the Corporation has
determined that such transfer, or the exercise of such suspended rights, as the
case may be, is permissible under the Federal Communications Laws, and the
Corporation may exercise any and all appropriate remedies, at law or in equity,
in any court of competent jurisdiction, against any such stockholder or Proposed
Transferee, with a view towards obtaining such information or preventing or
curing any situation which would cause any inconsistency with, or violation of,
any provision of the Federal Communications Laws.
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(3)Legends. The Corporation may note on the certificates of its capital stock
that the shares represented by such certificates are subject to the restrictions
set forth in this Article.
(4)Certain Definitions. For purposes of this Article, the word "person" shall
include not only natural persons but partnerships, associations, corporations,
joint ventures and other entities, and the word "regulation" shall include not
only regulations but rules, published policies and published controlling
interpretations by an administrative agency or body empowered to administer a
statutory provision of the Federal Communications Laws.
ARTICLE XI
TRANSACTIONS WITH DIRECTORS AND OFFICERS
No contract or transaction between the Corporation and one or more of its
directors or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the board or
committee thereof which authorizes the contract or transaction, or solely
because his or their votes are counted for such purpose if (a) the material
facts as to his relationship or interest and as to the contract or transaction
are disclosed or are known to the Board of Directors or the committee, and the
Board of Directors or the committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum, or (b)
the material facts as to his relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good faith
by vote of such stockholders, or (c) the contract or transaction is fair as to
the Corporation as of the time it is authorized, approved or ratified by the
Board of Directors, a committee thereof, or the stockholders entitled to vote
thereon. Common or interested directors may be counted in determining the
presence of a quorum at a meeting of the Board of Directors or of a committee
which authorizes the contract or transaction.
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ARTICLE XII
COMPROMISE AND REORGANIZATION
Whenever a compromise or arrangement is proposed between this Corporation and
its creditors or any class of them and/or between this Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code order a meeting of
the creditors or class of creditors, and/or of the stockholders or class of
stockholders of this Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of this Corporation, as the case may be,
agrees to any compromise or arrangement and to any reorganization of the
Corporation as a consequence of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of this Corporation, as the case may be, and also on this
Corporation.
ARTICLE XIII
GOVERNANCE OF THE CORPORATION
DURING SPECIFIED PERIOD
(1) Definitions. As used in this Article XIII, the following terms shall have
the following meanings:
(a) "CBS" shall mean CBS Corporation, a Pennsylvania corporation, immediately
prior to the Effective Time.
(b) "CBS Directors" shall mean (i) eight (8) of those directors serving as
members of the Board of Directors of CBS on September 6, 1999 (or any
Independent Directors elected or appointed prior to the Effective Time to serve
as a CBS Director) who are designated as such by the Board of Directors of CBS
prior to the Effective Time and (ii) any Replacement CBS Director (as defined in
Section 2(b) of this Article XIII).
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(e) "CEO" shall mean the Chief Executive Officer.
(d) "COO" shall mean the President and Chief Operating Officer.
(e) "Effective Time" shall mean the time of filing of the Certificate of Merger
to which this Certificate of Incorporation is attached.
(f) "Independent Director" shall mean a disinterested, independent person
(determined in accordance with customary standards for independent directors
applicable to U.S. public companies).
(g) "NAI" shall mean National Amusements, Inc., a Maryland corporation, and its
successors or assigns.
(h) "Specified Independent Directors" shall mean the directors of
the Corporation first elected after 1993 and who are not management of the
Corporation or NAI (together with any replacements of such persons).
(i)"Specified Period" shall mean the period of three years commencing at the
Effective Time.
(j) "Stockholder Agreement" shall mean the Stockholder
Agreement dated as of September 6, 1999, by and between NAI and CBS, relating to
Corporation governance matters.
() "Viacom Directors" shall mean the ten (10) directors of the Corporation
serving as the Board of Directors of the Corporation immediately prior to the
Effective Time (including the Specified Independent Directors).
(2) Directors.
(3) (a) Effective immediately at the Effective Time, the Board of Directors
shall consist of eighteen (18) directors. The number of directors may be fixed
by resolution of the Board from time to time, provided, however, that the size
of the Board of Directors may not be changed during the Specified Period without
the approval of at least fourteen (14) directors. At the Effective Time, ten
(10) directors shall be Viacom Directors and eight (8) directors shall be CBS
Directors.
(b) Until the expiration of the Specified Period, the Board of Directors
(subject to the fiduciary duties of the directors) shall take all action
necessary to ensure that any seat on the Board of Directors held by (i) a CBS
Director which becomes vacant is filled promptly by a person qualifying
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as an Independent Director and designated to fill such seat by a majority of the
CBS Directors remaining on the Board of Directors (a "Replacement CBS Director")
and (ii) a Specified Independent Director which becomes vacant is filled
promptly by an Independent Director who is the chief executive officer, chief
operating officer or chief financial officer or former chief executive officer
of a Fortune 500 company or a non-U.S. public company of comparable size.
(c) During the Specified Period, all committees of the Board of Directors (other
than the Compensation Committee and the Officers Nominating Committee) shall
have such number of CBS Directors as equals the total number of members of the
Committee multiplied by a fraction, the numerator of which is eight (8) and the
denominator of which is eighteen (18), rounded to the closest whole number;
provided that in no event shall any committee have (x) fewer than one (1) CBS
Director or (y) less than a majority of Viacom Directors.
(d) During the Specified Period, the Board of Directors shall not take any
action or fail to take any action which would have the effect of eliminating,
limiting, restricting, avoiding or otherwise modifying the effect of the
provisions set forth in this Article XIII (e.g., by creating a holding company
structure if the certificate of incorporation or similar document of such
holding company does not contain equivalent provisions).
(3) Chairman and Chief Executive Officer.
(a) At the Effective Time, Sumner Redstone shall
remain the Chairman and CEO. In the event that Sumner Redstone is not the CEO at
the Effective Time or ceases to be the CEO at any time during the Specified
Period, then Mel Karmazin, if he is COO at such time, shall succeed to the
position of CEO for the remainder of the Specified Period. During any such
period of succession, Mel Karmazin shall continue to exercise the powers,
rights, functions and responsibilities of the COO in addition to exercising
those of the CEO.
(b) The Chairman shall chair all meetings of the Board of Directors and
stockholders at which he is present.
(c) The CEO shall be responsible, in consultation with the COO, for corporate
policy and strategy and the COO shall consult on all major decisions with, and
shall report directly to, the CEO, during the Specified Period; provided,
however, that the CEO shall not exercise any powers, rights, functions or
responsibilities of the COO unless Mel Karmazin is the CEO.
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(4) President and Chief Operating Officer.
(a) At the Effective Time, the President and Chief Operating Officer of the
Corporation shall be Mel Karmazin. During the Specified Period, Mel Karmazin may
not be terminated or demoted from the position of COO (or, in the event that
Sumner Redstone is not the CEO, from the position of CEO) and no COO Functions
(as defined below) may be changed without the affirmative vote of at least
fourteen (14) directors.
(b) Subject to the requirement that the COO consult with the CEO on all major
decisions, the powers, rights, functions and responsibilities of the COO
(collectively, the "COO Functions") shall include, without limitation, the
following:
(i) supervising, coordinating and managing the Corporation's business,
operations, activities, operating expenses and capital allocation;
(ii) matters relating to officers (other than the Chairman, CEO and COO)
and employees, including, without limitation, hiring (subject to (A) the
specific Board of Directors authority described below with respect to the
CFO, the General Counsel and the Controller and (B) Section 5 below),
terminating, changing positions and allocating responsibilities of such
officers and employees; and
(iii) substantially all of the powers, rights, functions and
responsibilities typically exercised by a chief operating officer.
All officers (other than the Chairman, CEO and COO) will report, directly
or indirectly, to the COO (this reporting relationship will be deemed a COO
Function).
(c) In the event that Mel Karmazin is not COO or CEO, the Board may terminate
the COO's employment, eliminate the COO position and the Officers Nominating
Committee and reallocate the COO Functions without regard to the other
provisions of this Article XVIII.
(5) Officers Nominating Committee; Compensation Committee.
(a) Subject to the powers of the Compensation Committee set forth below,
during the Specified Period, all powers of the Board of Directors, including,
without limitation, the right to hire, elect, terminate, change positions,
allocate responsibilities or determine non-equity compensation, with respect to
officers and employees, shall be exercised, subject
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to clauses (b) and (c) below, by, and delegated to, the Officers Nominating
Committee of the Board of Directors. The Officers Nominating Committee shall
consist solely of the member of the Board of Directors who is the COO, except
that in the event Mel Karmazin succeeds to the position of CEO, the sole member
of the Officers Nominating Committee shall be the member of the Board of
Directors who is the CEO.
(b) The Officers Nominating Committee shall have no powers with respect to the
Chairman, CEO and COO, and shall not have the power to fill the positions of
Chief Financial Officer, Controller or General Counsel of the Corporation
without the approval of the Board of Directors; provided that this provision
shall in no way affect the other powers and authorities of the Officers
Nominating Committee with respect to the Chief Financial Officer, Controller and
General Counsel positions, including, without limitation, the power to terminate
employment of persons holding such positions.
(c) The Compensation Committee shall not be required to, or have any power to,
approve the annual compensation of (i) any employee if the total value of such
employee's annual cash compensation (assuming for this purpose that the actual
bonus of each officer and employee is equal to his or her target bonus) is less
than $1 million or (ii) talent (as such term is commonly used in the media or
entertainment industries), in each such case which power shall be delegated to
the Officers Nominating Committee. The annual compensation of all other officers
and employees and any equity or equity-based compensation of any officer or
employee must be approved by the Compensation Committee.
(d) The Compensation Committee shall consist of three CBS Directors who are
Independent Directors and three non-CBS Directors, two of whom will be the
Specified Independent Directors and the other of whom will be an Independent
Director.
(e) Any decision or determination of the Officers Nominating
Committee may be reversed or overridden by (and only by) the affirmative vote of
at least fourteen (14) directors.
(6) Stockholder Agreement.
The Stockholder Agreement may not be amended, and no provision thereof may
be modified or waived, except with the approval of at least fourteen (14)
directors.
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(7) Issuance of Voting Stock.
During the Specified Period, in addition to any other approval required by
law or by this Restated Certificate of Incorporation, the Corporation may not
issue (i) additional shares of Class A Common Stock or (ii) any shares of
Preferred Stock or any other class or series of stock or securities, in each
case with, or convertible into or exchangeable or exercisable for stock or other
securities with, the right to vote on any matter on which stockholders are
entitled to vote if the result would be that parties bound by the Stockholder
Agreement could fail to own at least a majority of the outstanding shares of
voting stock of the Corporation.
(8) Voting
During the Specified Period, except for those actions set forth on Annex I
to this Restated Certificate of Incorporation, which shall require the approval
of the Board of Directors, all action by the Board of Directors shall require
the affirmative vote of at least fourteen (14) directors. At all meetings of the
Board of Directors a majority of the full Board of Directors shall constitute a
quorum for the transaction of business and the act of a majority of the
Directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors, except as may be otherwise specifically provided by
statute or this Restated Certificate of Incorporation. If a quorum shall not be
present at any meeting of the Board of Directors, the Directors present thereat
may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
(9) Amendment.
Until the expiration of the Specified Period the provisions of any Article
of this Restated Certificate which refer to this Article XIII, the provisions of
this Article XIII, and the provisions of Article VIII of the by-laws of the
Corporation, may not be amended, altered, repealed or waived in any respect
without the approval of at least fourteen (14) directors.
(10) Successors.
During the Specified Period, the provisions of this Article XIII shall be
applicable to (i) any successor to the Corporation as the result of a merger,
consolidation or other business combination, whether or not the Corporation is
the surviving company in such transaction, or otherwise and (ii) any corporation
or other entity with respect to which the
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Corporation or its successor is or becomes a direct or indirect subsidiary, the
Board of Directors shall not permit the Corporation to be a party to any
transaction which would not comply with the foregoing without the approval of at
least fourteen (14) directors.
(11) Subsidiaries.
The Board of Directors shall have the right, following consultation with
the COO or, if Mel Karmazin is the CEO, the CEO, with respect to any public
company which is a subsidiary of the Corporation, to take such steps as the
Board of Directors reasonably determines are necessary to implement corporate
governance arrangements applicable to such subsidiary in a manner as consistent
as practicable with the provisions contained in this Restated Certificate of
Incorporation; provided that any such steps shall not vest in the Board of
Directors greater power or provide the COO with fewer rights than those provided
for in this Restated Certificate of Incorporation.
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ANNEX I
TO VIACOM INC. RESTATED
CERTIFICATE OF INCORPORATION
The provisions of this Annex I shall form a part of, and be incorporated
in all respects in, the Restated Certificate of Incorporation to which this
Annex I is attached. The following actions shall require the approval of a
majority of the directors:
A. Acquisitions, Divestitures, Joint Ventures, Guarantees
* Any acquisition, equity investment or joint venture (each an
"Acquisition") by the Corporation or any of its subsidiaries for more than
$25 million.
* Any divestiture or other sale of assets (each a "Divestiture") (not in the
ordinary course) by the Corporation or any of its subsidiaries for more
than $25 million (based on purchase price or net book value of assets).
* Any real estate purchase, sale or lease by the Corporation or any of
its subsidiaries for more than $25 million.
* Any guarantee by the Corporation or any of its subsidiaries of an
obligation of a third party where the obligation guaranteed is more than
$25 million.
* Notwithstanding the above, any Acquisition or Divestiture by the
Corporation or any of its subsidiaries of (a) internet or internet
related businesses for more than $25 million but less than $100
million, with the value thereof represented by multi-year commitments
for advertising, promotion and content licensing, is excluded, so long
as the aggregate of such Acquisitions or Divestitures, in each case,
does not exceed $550 million and (b) radio or outdoor advertising
businesses for more than $25 million but less than $100 million, is
excluded, so long as the aggregate of such Acquisitions or
Divestitures, in each case, does not exceed $300 million; provided
that (i) any Divestiture of shares of a publicly traded internet or
internet related business with a value of up to $75 million is
excluded and shall not be included in the calculation of any of the
threshold amounts set forth above, (ii) Board approval may be secured
(but is not required) for any transaction of more than $25 million but
less than $100 million where the regular meeting schedule of the Board
so permits (and shall not otherwise be required), (iii) the Board will
be provided with information about and a status report on such
transactions completed without Board approval and (iv) this limit of
authority will be reviewed in 12 months from the Effective Time (as
defined in Article XIII of the Restated Certificate) and may be
amended only with the approval of 14 members of the Board of Directors.
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* Any contract of the Corporation or any of its subsidiaries not in the
ordinary course with a value in excess of $25 million.
* Notwithstanding the above, any of the foregoing transactions that is
approved by the Board shall not be included in the calculation of any of
the threshold amounts set forth above.
B. Employee Matters
* Employee benefit plans (at the Corporation or a subsidiary):
(a) creating a new plan, (b) suspending or terminating an existing
plan, (c) any amendment that materially increases cost to the
Corporation or subsidiary
* Entering into any modifications or amendments to the employment
agreements with the CEO or the COO.
C. General
* The Annual Report on Form 10-K
* Proxy statement and notice of meeting (including annual or special
meeting date, location, record date for voting)
* Any issuance of Corporation stock, or options, warrants or other similar
rights (including stock appreciation rights) or debt or other securities
convertible into or exchangeable for Corporation stock
* Any issuance of debt unless such debt is short term and is within the
spending limits of the annual operating budget or is replacing
existing debt
* Annual capital expenditure and annual operating budgets and individual
capital expenditure transactions in excess of $25 million for the
Corporation or any of its subsidiaries
* Any Corporation or subsidiary pays a dividend or repurchases stock
from a third party
* Review and approve any action or transaction where Board action is
required by law (other than ss. 141(a) of the Delaware General Corporation
Law) or by the terms of the transaction (in all cases other than as
specifically set forth in the Restated Certificate of Incorporation)
* Review and approve Board minutes
* Subject to Article XIII of the Restated Certificate of Incorporation,
determine Board administration, including number of directors, meeting
schedule, nominees, committees, director compensation, D&O insurance
authorization, internal investigations and retention of advisors in
connection therewith, and decisions regarding indemnification of
individuals
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* Subject to Article XIII of the Restated Certificate of Incorporation,
amendments to the Restated Certificate of Incorporation and by-laws of
the Corporation
* Commencement and settlement of major litigation
* Selection of independent auditors
* All matters on which the Corporation Board of Directors has
historically taken action other than (1) matters relating to the subject
matters addressed in this Annex I and not requiring approval of the Board
of Directors hereunder and (2) those matters delegated to the COO,
including all of the COO Functions (as defined in Article XIII of this
Restated Certificate of Incorporation).
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EXHIBIT B
Form of Agreement Under the
Viacom Inc.
1997 Long-Term Management Incentive Plan
------------------------------------------------------------
for the 1999 Stock Option Grant
AGREEMENT, dated as of , by and between Viacom Inc., a Delaware
corporation (the "Company"), and (the "Participant"), with respect to the 1999
grant of stock options under he Company's 1997 Long-Term Management Incentive
Plan, as amended (the "Plan").
This Agreement, together with the Memorandum dated and the agreements
delivered under the Plan in connection with each grant of stock options under
the Plan, constitutes the prospectus covering the shares of Class B Common Stock
subject to the Plan. The Participant can receive additional copies of his or her
Plan agreements and the Memorandum upon request to the Administrator, Long-Term
Incentive Plans, Viacom Inc., 1515 Broadway, New York, New York 10036.
WITNESSETH:
WHEREAS, the Participant is now employed by the Company or one of its
subsidiaries in a key capacity and the Company desires to reward the
Participant, in accordance with the terms hereof, for the Participant's
contributions to the financial success of the Company by awarding the
Participant stock options to purchase shares of Class B Common Stock;
NOW, THEREFORE, in consideration of the covenants and agreements
herein contained, the parties hereto hereby agree as follows:
ARTICLE I
TERMS OF STOCK OPTIONS
Section 1.1 Grant of Stock Options. Subject to the terms and
conditions contained herein and in the Plan, the terms of which are hereby
incorporated by reference, the Company hereby awards to the Participant,
effective as of ___________________ (the "Date of Grant"), a grant of stock
options (the "Stock Options") to purchase ______________ shares of Class B
Common Stock at an exercise price of $___________ for each share (the "Exercise
Price"). The capitalized terms used in this Agreement which are not otherwise
defined herein shall have the meanings assigned to
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them in Article III hereof. The Stock Options granted hereunder are not intended
to be, or qualify as, "Incentive Stock Options" within the meaning of Section
422 of the Code.
Section 1.2 Terms of Stock Options.
(a) Vesting. The Stock Options shall be exercisable only to
the extent the Participant is vested therein. The Stock Options shall
vest in one-third increments on ____________________ and
________________________.
(b) Option Period. Except as provided in Section 1.2(c)
hereof, the period during which the Stock Options may be exercised
shall expire on the tenth anniversary of the Date of Grant (the
"Expiration Date").
(c) Exercise in the Event of Termination of Employment,
Retirement, Death or Permanent Disability.
(i) Termination other than for Cause, Retirement,
Death or Permanent Disability. In the event that (A) the
Participant ceases to be an employee of the Company or any of
its subsidiaries by reason of the voluntary termination by
the Participant or the termination by the Company or any of
its subsidiaries other than for Cause, the Participant may
exercise his or her Outstanding Stock Options to the extent
then exercisable until the earlier of six months after the
date of such termination (or such longer period, not in
excess of the second anniversary of the Date of Grant of such
Stock Options, as may be determined by the Committee, in its
discretion) or the Expiration Date, (B) the Participant
ceases to be an employee of the Company or any of its
subsidiaries by reason of the Participant's Retirement, the
Participant may exercise his or her Outstanding Stock Options
to the extent then exercisable until the earlier of two years
after such date or the Expiration Date, (C) the Participant
dies during a period during which his or her Stock Options
could have been exercised by him or her, his or her
Outstanding Stock Options may be exercised to the extent
exercisable at the date of death by the person who acquired
the right to exercise such Stock Options by will or the laws
of descent and distribution until the earlier of one year
after such death (or such longer period as may be determined
by the Committee, in its discretion, prior to the expiration
of such one-year period) or the Expiration Date, or (D) the
Permanent Disability of the Participant occurs, the
Participant may exercise his or her Outstanding Stock Options
to the extent exercisable upon the onset of such Permanent
Disability until the earlier of one year after such date (or
such longer period not in excess of two years after such date
as may be determined by the Committee in its discretion) or
the Expiration Date. Upon the occurrence of an event
described in clauses (A), (B), (C) or (D) of this Section
1.2(c)(i), all rights with respect to Stock Options that are
not vested as of such event will be relinquished.
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(ii) Termination for Cause. If the Participant's
employment with the Company or any of its subsidiaries ends
because of a Termination for Cause, all Outstanding Stock
Options, whether or not then vested, shall terminate
effective as of the date of such termination.
Section 1.3 Exercise of Stock Options.
(a) Whole or Partial Exercise. Subject to the
restrictions of Section 1.2(b) hereof, the Participant may
exercise all vested Stock Options granted hereunder at one
time or in installments of 100 Stock Options (or in the whole
number of unexercised Stock Options in which the Participant
is vested, if such number is less than 100) by written notice
to the Administrator, Long-Term Incentive Plans, Viacom Inc.,
1515 Broadway, New York, New York 10036. Such notice shall
(i) state the number of full Stock Options being exercised
(ii) be signed by the person or persons so exercising the
Stock Options and, in the event the Stock Options are being
exercised (pursuant to Section 1.2(c)(i) hereof) by any
person or persons other than the Participant accompanied by
proof satisfactory to the Company's counsel of the right of
such person or persons to exercise the Stock Options, and
(iii) be accompanied by full payment as set forth in Section
1.3(b) hereof.
(b) Payment of Aggregate Option Price. The written
notice of exercise described above must be accompanied by
full payment of the aggregate Exercise Price which shall be
determined by multiplying the number of Stock Options being
exercised by the Exercise Price. Such Exercise Price shall be
paid in cash (e.g. personal bank check, certified check or
official bank check). In addition, in accordance with Section
4.3 hereof, the Participant shall make an arrangement
acceptable to the Company to pay to the Company an amount
sufficient to satisfy the combined Federal, state and local
withholding tax obligations which arise in connection with
the exercise of such Stock Options.
(c) Issuance of Share Certificates. Upon
satisfaction of the conditions set forth in Section 1.3(b)
hereof, the Company shall deliver (or cause to be delivered)
a certificate or certificates for the shares of Class B
Common Stock issued pursuant to the exercise of the Stock
Options to the Participant.
ARTICLE II
EFFECT OF CERTAIN CORPORATE CHANGES
In the event of a merger, consolidation, stock split,
dividend, distribution, combination, reclassification or recapitalization that
changes the character or amount of the Class B Common Stock, the Committee shall
make such adjustments to the number of shares of Class B
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Common Stock subject to the Stock Options or the exercise price of the Stock
Options, in each case, as it deems appropriate. Such determinations shall be
conclusive and binding for all purposes.
ARTICLE III
DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "Class B Common Stock" shall mean shares of
Class B Common Stock, par value $0.01 per share, of the Company.
(c) "Code" shall mean the Internal Revenue Code of
1986, as amended, including any successor law thereto.
(d) "Committee" shall mean the Senior Executive
Compensation Committee of the Board (or such other Committee as may be
appointed by the Board) except that (i) the number of directors on the
Committee shall not be less than two and (ii) each member of the
Committee shall be a "non-employee director" within the meaning of
Rule 16b-3 under the Exchange Act.
(e) "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended, including any successor law thereto.
(f) "Fair Market Value" of a share of Class B Common
Stock on a given date shall be the closing price of a share of Class B
Common Stock on the New York Stock Exchange or such other national
securities exchange as may be designated by the Committee or, in the
event that the Class B Common Stock is not listed for trading on a
national securities exchange but is quoted on an automated quotation
system, the average closing bid price per share of the Class B Common
Stock on such automated quotation system or, in the event that the
Class B Common Stock is not quoted on any such system, the average of
the closing bid prices per share of the Class B Common Stock as
furnished by a professional marketmaker making a market in the Class B
Common Stock designated by the Committee.
(g) "Outstanding Stock Option" shall mean a Stock
Option granted to the Participant which has not yet been exercised and
which has not yet expired in accordance with its terms.
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(h) "Permanent Disability" shall have the same
meaning as such term or a similar term has in the long-term disability
policy maintained by the Company or a subsidiary thereof for the
Participant and in effect on the date of the onset of the
Participant's Permanent Disability.
(i) "Retirement" shall mean the resignation or
termination of employment after attainment of an age and years of
service required for payment of an immediate pension pursuant to the
terms of any qualified retirement plan maintained by the Company or a
subsidiary in which the Participant participates; provided, however,
that no resignation or termination prior to a Participant's 60th
birthday shall be deemed a retirement unless the Committee so
determines in its sole discretion.
(j) "Termination for Cause" shall mean a termination
of employment with the Company or any of its subsidiaries which, as
determined by the Committee, is by reason of (i) "cause" as such term
or a similar term is defined in any employment agreement applicable to
the Participant, or (ii) if there is no such employment agreement or
if such employment agreement contains no such term, (x) dishonesty,
conviction of a felony, or willful unauthorized disclosure of
confidential information, (y) failure, neglect of or refusal by the
Participant to substantially perform the duties of the Participant's
employment, or (z) any other act or omission which is materially
injurious to the financial condition or business reputation of the
Company of any subsidiary thereof.
(k) To "vest" a Stock Option held by the Participant
shall mean to render such Stock Option exercisable, subject to the
terms of the Plan, except where the Participant's employment ends
because of a Termination for Cause.
ARTICLE IV
MISCELLANEOUS
Section 4.1 No Rights to Continued Employment. Neither this
Agreement, the Plan nor any action taken in accordance with such documents shall
be construed as giving the Participant any right to be retained by the Company
or any of its subsidiaries.
Section 4.2 Restriction on Transfer. The rights of the
Participant with respect to the Stock Options shall not be transferable by the
Participant except (i) by will or the laws of descent and distribution or (ii)
subject to the prior approval of the Committee, for transfers to members of the
Participant's immediate family or trusts whose beneficiaries are members of the
Participant's immediate family, in each case subject to the condition that the
Committee shall be satisfied that such transfer is being made for estate an/or
tax planning purposes without consideration being received therefor and subject
to such other conditions as the Committee may impose.
5
<PAGE>
Section 4.3 Tax Withholding. As a condition to the exercise
of the Stock Options, the Participant shall make a payment (or an arrangement
acceptable to the Company for the withholding of such payment) sufficient to
satisfy the combined Federal, state and local withholding tax obligations which
arise in connection with the exercise of such Stock Options.
Section 4.4 Stockholder Rights. The grant of Stock Options
under this Agreement shall not entitle the Participant or any permitted
transferee to any rights of a holder of shares of common stock of the Company,
other than when and until share certificates are delivered to the Participant
upon exercise of a Stock Option.
Section 4.5 No Restriction on Right of Company to Effect
Corporate Changes. This Agreement shall not affect in any way the right or power
of the Company or its stockholders to make or authorize any or all adjustments,
recapitalization, reorganization or other changes in the Company's capital
structure or its business, or any merger or consolidation of the Company, or any
issue of stock or of options, warrants or rights to purchase stock or of bonds,
debentures, preferred or prior preference stocks whose rights are superior to or
affect the Class B Common Stock or the rights thereof or which are convertible
into or exchangeable for Class B Common Stock, or the dissolution or liquidation
of the Company, or any sale or transfer of all or any part of its assets or
business, or any other corporate act or proceeding, whether of a similar
character or otherwise.
Section 4.6 Amendment. Other than as provided in Article II
hereof, this Agreement may not be modified, amended or waived in any manner
except by an instrument in writing signed by both parties hereto. The waiver by
either party of compliance with any provision of this Agreement by the other
party shall not operate or be construed as a waiver of any other provision of
this Agreement, or of any subsequent breach by such party of a provision of this
Agreement.
Section 4.7 Stockholder Approval. The grant of Stock Options
under this Agreement is subject to the approval of the stockholders of the
Company, at the next annual or special meeting of stockholders, to the extent
that the number of shares of Class B Common Stock subject to the Plan is
insufficient to cover the number of shares of Class B Common Stock subject to
Stock Options awarded under this Agreement.
Section 4.8 Notices. Every notice or other communication
relating to this Agreement shall be in writing, and shall be mailed to or
delivered to the party for whom it is intended at such address as may from time
to time be designated by such party in a notice mailed or delivered to the other
party as herein provided. If no such address has been specified by the
Participant, such notices or communications shall be sent to the Participant's
address as specified in the records of the Company.
Section 4.9 Headings. The headings of sections and
subsections herein are included solely for convenience of reference and shall
not affect the meaning of any of the provisions of this Agreement.
6
<PAGE>
Section 4.10 Receipt of Copy of Plan. By executing this
Agreement, the Participant acknowledges receipt of a copy of the Plan.
Section 4.11 Governing Law. This Agreement and all rights
hereunder shall be construed in accordance with and governed by the laws of the
State of Delaware.
VIACOM INC.
By:
----------------------------------------
Senior Vice President,
Human Resources and
Administration
----------------------------------------
Participant
7
EXHIBIT 10.5
CONFORMED COPY
AGREEMENT
THIS AGREEMENT, dated as of September 6, 1999 (the
"Agreement"), by and between Viacom Inc., a Delaware corporation (the
"Company"), and Philippe P. Dauman (the "Executive").
WHEREAS, the Company and the Executive have mutually agreed
that the Executive shall resign from service as Deputy Chairman, Executive Vice
President of the Company, and as an employee of the Company, as of the
Resignation Date (as defined below); and
WHEREAS, the parties intend that this Agreement shall set
forth the terms regarding the Executive's resignation.
NOW, THEREFORE, in consideration of the covenants and
agreements hereinafter set forth in this Agreement, the parties hereto hereby
agree as follows:
1. Resignation Date. The Executive shall resign from his
employment and service as Deputy Chairman and Executive Vice President of the
Company and as an officer and member of the boards of directors of the Company's
direct and indirect subsidiaries, effective as of the Effective Time (the
"Resignation Date") of the closing of the transactions contemplated by the
Agreement and Plan of Merger (the "Merger Agreement") between CBS Corporation
and the Company, dated as of September 6, 1999 (such date to be referred to
herein as the "Interim Effective Date"). The Executive shall continue to serve
in his capacity as Deputy Chairman and Executive Vice President of the Company
from the Interim Effective Date through the Resignation Date and agrees to use
his best efforts on a full-time basis to assist the Company in consummating the
transactions contemplated by the Merger Agreement. The employment agreement
between the Company and the Executive, dated January 1, 1996, as amended (the
"Prior Agreement"), shall continue to govern the terms of the Executive's
employment until the Resignation Date, on which date the Prior Agreement shall
become null and void; provided, however, that, following the Interim Effective
Date, (a) the Executive's duties shall be modified by the immediately preceding
sentence, (b) Section 2.1 (b) hereof shall govern payment of the Executive's
1999 bonus in lieu of paragraph 3(b) of the Prior Agreement and (c) Section 3
hereof shall replace paragraph 8 of the Prior Agreement. Notwithstanding
anything to the contrary in this Agreement, if the Executive's employment
terminates prior to the Resignation Date, the following shall be applicable:
(A) If his employment terminates due to disability or death,
he or his estate shall receive on and following the Resignation Date
(except in the case of the 1999 bonus, which shall be paid on the date
described in Section 2.1(b) hereof) the payments and
<PAGE>
2
benefits as set forth in Section 2, less any payments and benefits
under the Prior Agreement in respect of such termination. At that time
the Prior Agreement shall become null and void and this Agreement shall
become applicable, provided that if his employment terminated due to
disability, he shall continue to receive the disability benefits set
forth in paragraph 7 of the Prior Agreement.
(B) If the Executive is terminated without Cause or terminates
his employment for Good Reason, the Prior Agreement shall become null
and void and this Agreement shall become applicable.
The Executive shall continue to serve as a member of the Board of Directors of
the Company (the "Board") for the remainder of his current term in office as a
director. In the event the Merger Agreement is terminated or the transactions
contemplated by the Merger Agreement are otherwise abandoned, this Agreement
shall be null and void, except for clauses (A) and (B) of this Section 1, and
Section 2.1(b) hereof.
2. Payments and Benefits. In consideration of the foregoing
and the covenants set forth below, and (except with respect to the payment of
the 1999 bonus pursuant to Section 2.1(b) hereof) subject to the Executive's
execution, on the Resignation Date, of the release referred to in Section 6
below, the Executive shall receive the following payments and benefits:
2.1. (a) Cash Payments. The Executive shall be paid a cash
lump sum on or as soon as practicable following the Resignation Date equal to
the amounts that would have been payable under paragraph 8 of the Prior
Agreement had the Executive been terminated without Cause (as defined in the
Prior Agreement) on the Resignation Date. An illustrative example of such
calculation, determined as if the Resignation Date were January 1, 2000, is set
forth on Exhibit A attached hereto.
(b) 1999 Bonus. On the earlier to occur of (i) the
Resignation Date and (ii) the date on which the Company pays 1999 bonuses to its
executive officers generally, the Company shall pay the Executive an amount
equal to the greatest of (x) 110% of his bonus received for 1998, (y) an amount
which, when added to the Executive's salary and Deferred Compensation (as
defined in Section 3(c) of the Prior Agreement) that is payable for 1999
(together, "Total Cash Compensation"), would produce the highest 1999 Total Cash
Compensation paid to any other executive officer of the Company or any of its
affiliates or (z) such higher amount as the Board may determine is appropriate
to compensate the Executive for his contributions to the Company in 1999.
(c) Payout of Deferred Compensation Amounts. On or as soon
as practicable following the Resignation Date, the Company shall pay the
Executive (i) all Deferred Compensation (as defined in Section 3(c) of the Prior
Agreement) earned prior to the Resignation
<PAGE>
3
Date and (ii) the entire balance of the Executive's account under the Viacom
Investment Plan Excess Plan as of such date.
(d) Transaction Bonus. The Executive shall receive an
additional payment in an amount of $5,000,000 (the "Transaction Bonus"), which
will be payable as soon as practicable following the Resignation Date.
2.2. Treatment of Equity-Based Compensation. All
equity-based compensation awards previously granted or awarded to the Executive
in the form of stock options or otherwise under any equity-based compensation
plan of the Company, including, without limitation, the Company's long-term
management incentive plans, (together with the individual grant documents, the
"Equity Plans"), to the extent not yet vested, shall vest on the Resignation
Date and each stock option shall continue to be exercisable in accordance with
its terms until December 31, 2003, subject to the Executive's compliance in all
material respects with the provisions of Section 4 below, it being understood
and agreed that this Section 2.2 supersedes any conditions to the contrary as to
vesting or exercisability contained in the Equity Plans.
2.3. Other Benefits. (a) The Executive is a participant in
Company benefit plans, including, without limitation, the plans listed in
Exhibit B attached hereto and shall continue to participate in such plans
through the Resignation Date. This Agreement shall not change the terms of such
plans or the benefits earned by or due to the Executive thereunder for services
rendered to the Company through the Resignation Date. The benefits earned by or
due to the Executive in accordance with the terms of such plans shall be paid or
provided by the Company or such plans (as the case may be) when due (whether
such due date is on, before or after the Resignation Date), and full payments
and provision of benefits shall discharge fully all obligations of the Company
and such plans with respect to the Executive's benefits under such plans.
Following the Resignation Date and through the earlier of (i) December 31, 2003
and (ii) with respect to any individual type of benefit or benefit plan, the
date on which the Executive is entitled to a comparable benefit or to
participate in a comparable benefit plan through a subsequent employer, the
Company shall provide the Executive with benefits comparable to the Company
benefit plans, including those listed in Exhibit B, in the same manner and on
the same terms as if the Executive remained employed by the Company during such
period, and reflecting any enhancements or supplements to such benefits adopted
during such period. In the event that the Company is unable to provide the
Executive with participation in the relevant plans or in comparable
supplementary benefit plans, the Executive shall be entitled to receive a lump
sum cash payment equal to the cash equivalent of such benefits, plus an amount
sufficient to cover any income taxes payable on such lump sum payment to the
extent that the associated benefit would not have been taxable to the Executive
had he remained an employee of the Company.
(b) The Executive shall be credited with service for all
purposes through December 31, 2003 under the Company Investment Plan, the Viacom
Investment Plan Excess Plan, the Company Pension Plan, the Company Excess
Pension Plan and any and all other
<PAGE>
4
retirement plans of the Company in which he participates as of the Interim
Effective Date and, to the extent that any of the additional benefits that would
result from such additional credited service may not be provided pursuant to any
such plan, such benefits shall be provided pursuant to an existing supplementary
arrangement or a supplementary arrangement established for purposes of this
Agreement.
(c) On the Resignation Date, the Executive shall be
provided with any additional service credit necessary to provide him with 20
years of service credit for all purposes under any Company benefit plan in which
20 years of service credit would result in (i) any right to an unreduced
pension, (ii) eligibility for any additional form of benefit, or (iii) any other
material additional benefit.
(d) In addition to the foregoing, the Company agrees that,
beginning on the Resignation Date:
(i) The Company shall provide the Executive, through
December 31, 2003 (or, if earlier, until the Executive secures
full-time employment, other than self- employment (which shall mean
employment by himself or by an entity controlled by the Executive or
his family pursuant to which he provides services to no other single
person or entity on a full time basis), with a new employer), with an
office, comparable in both quality and size to the office the Executive
has had prior to the Interim Effective Date, at a location of the
Executive's choosing in midtown Manhattan, subject to the Company's
approval, which approval shall not unreasonably be withheld. The
Company shall bear the cost of relocating the Executive's office
effects to the new office and provide furniture and equipment
comparable to that in his present office. During the period in which
the company is providing the Executive with an office pursuant to this
Section 2(d)(i), the Company also shall provide the Executive with a
secretary, who may be his current secretary or another secretary of his
choosing.
(ii) The Company shall promptly reimburse the Executive for
legal fees and other expenses reasonably incurred by him in connection
with the preparation of this Agreement and advice related thereto.
3. Termination.
3.1 Termination for Cause. The Company may, at its option,
terminate the Executive's employment prior to the Resignation Date, by providing
written notice to the Executive, for "Cause" and the Company shall thereafter
have no further obligations under this Agreement, including, without limitation,
any obligation to pay any payments or benefits described in Section 2 of this
Agreement. For purposes of this Agreement, Cause shall mean the commission of a
felony, including fraud or embezzlement resulting in material harm to the
business or reputation of the Company. Anything herein to the contrary
notwithstanding, the
<PAGE>
5
Company shall give the Executive written notice prior to terminating the
Executive's employment for Cause setting forth the exact nature of any alleged
Cause. The Executive shall have ten (10) business days from the giving of such
notice within which to respond to such allegation of Cause and within which
period the Company cannot terminate his employment for the stated reasons.
3.2 Good Reason Termination. The Executive may terminate
his employment hereunder for "Good Reason" prior to the Resignation Date by
written notice to the Company not more than thirty (30) days after the
occurrence of the event constituting Good Reason. Such notice shall state an
effective date no later than thirty (30) business days after the date it is
given. The Company shall have ten (10) business days from the giving of such
notice within which to cure. Good Reason shall mean the occurrence of any of the
following, without the Executive's prior written consent, other than in
connection with the termination of the Executive's employment for Cause:
(i) the assignment to the Executive by the Company of
duties substantially inconsistent with his positions, duties,
responsibilities, titles or offices in effect immediately prior to the
Interim Effective Date or the withdrawal of a material part of the
Executive's responsibilities (including, without limitation removal
from the Board) or a change in his reporting relationship, in each case
as in effect immediately prior to the Interim Effective Date;
(ii) a reduction in his salary, bonus or other compensation
and benefit levels as in effect on the Interim Effective Date;
(iii) the Company's requiring the Executive to be based
anywhere other than the New York City metropolitan area, except for
required travel on the Company's business to any extent substantially
consistent with business travel obligations of other senior executives
of the Company; and
(iv) the material breach by the Company of its material
obligations under this Agreement or the Prior Agreement.
3.3 Termination Payments. In the event that the Executive
is terminated without Cause or terminates his employment for Good Reason prior
to the Resignation Date, he shall be entitled to receive the payments and
benefits set forth in Section 2 herein (other than the Transaction Bonus) as
promptly as practicable following the date of such termination, but shall only
receive the Transaction Bonus if and when the Effective Time occurs pursuant to
the Merger Agreement; provided, however, that, notwithstanding the foregoing, if
the Merger Agreement is terminated or the transactions contemplated by the
Merger Agreement are otherwise abandoned, the Board of Directors of the Company
shall promptly determine in its good faith discretion whether to pay the
Executive all or any portion of the Transaction Bonus, taking into account,
<PAGE>
6
among other things, the Executive's contributions to the Company's efforts to
consummate the transactions contemplated by the Merger Agreement.
4. Restrictive Covenants. Subject to and conditioned upon
the performance by the Company of its obligations set forth in this Agreement,
the Executive agrees to the covenants set forth in this Section 4. The
determination as to whether the Executive has breached the provisions of this
Section 4, or whether to waive any such breach, shall be made solely by a
majority of the Board of Directors of the Company, subject to the Executive's
right to challenge any such determination in arbitration in accordance with
Section 11.2 hereof. In the event of an alleged breach of this Section 4 by the
Executive, the Company shall provide the Executive with written notice of such
alleged breach, and no breach shall be deemed to exist until a determination of
breach has been made, no earlier than 30 calendar days following such written
notice, in accordance with the immediately preceding sentence.
4.1. Non-Competition. For a period commencing on the
date hereof and ending one year following the Resignation Date (the "Restricted
Period"), the Executive shall not directly or indirectly engage in or
participate as an officer, employee, director, agent of or consultant for any
business directly competitive with that of the Company, as conducted by the
Company immediately prior to the earlier of the Resignation Date or the
termination of the Executive's employment with the Company (the "Protected
Business"), nor shall the Executive make any investments in any company or
business competing with the Protected Business except as described in the
Executive's memorandum to Frank J. Biondi dated January 25, 1993; provided,
however, that nothing herein shall prevent the Executive from investing as less
than a two percent (2%) shareholder in the securities of any company listed on a
national securities exchange or quoted on an automated quotation system.
4.2. Confidential Information. The Executive covenants
and agrees that he shall not at any time, use for his own purposes, or disclose
to or for the benefit of any third party, any trade secret or other confidential
information of the Company or any of its affiliates (except as may be required
by law or in the performance of the Executive's duties hereunder consistent with
the Company's policies) and that the Executive shall comply with any
confidentiality obligations of the Company to a third party, whether under
agreement or otherwise. Notwithstanding the foregoing, confidential information
shall be deemed not to include information which (i) is or becomes generally
available to the public other than as a result of a disclosure by the Executive
or any other person who directly or indirectly receives such information from
the Executive or at the Executive's direction or (ii) is or becomes available to
the Executive on a non-confidential basis from a source which is entitled to
disclose it to the Executive.
4.3. No Employee Solicitation. The Executive agrees
that, through December 31, 2004, he shall not knowingly engage, employ, or
solicit the employment of any
<PAGE>
7
person who is then or has been within six (6) months prior thereto, an executive
of the Company or any of its affiliates.
4.4. Company Ownership. The Executive agrees that any
results and proceeds of his services to the Company, including, without
limitation, any works of authorship resulting from his services during the
Executive's employment with the Company and/or any of its affiliates and any
works in progress, shall be works-made-for-hire and the Company shall be deemed
the sole owner throughout the universe of any and all rights of whatsoever
nature therein, whether or not now or hereafter known, existing, contemplated,
recognized or developed, with the right to use the same in perpetuity in any
manner the Company determines in its sole discretion without any further payment
to the Executive whatsoever. If, for any reason, any of such results and
proceeds shall not legally be a work-for-hire and/or there are any rights which
do not accrue to the Company under the preceding sentence, then the Executive
irrevocably assigns and agrees to assign any and all of the Executive's right,
title and interest thereto, including, without limitation, any and all
copyrights, patents, trade secrets, trademarks and/or other rights of whatsoever
nature therein, whether or not now or hereafter known, existing, contemplated,
recognized or developed to the Company, and the Company shall have the right to
use the same in perpetuity throughout the universe in any manner the Company
determines without any further payment to the Executive whatsoever. The
Executive shall, as may be requested by the Company, do any and all things which
the Company may deem useful or desirable to establish or document the Company's
exclusive ownership of any and all rights in any such results and proceeds,
including, without limitation, the execution of appropriate copyright and/or
patent applications or assignments. To the extent the Executive has any rights
in the results and proceeds of the Executive's services that cannot be assigned
in the manner described above, the Executive unconditionally and irrevocably
waives the enforcement of such rights. This Section 4.4 is subject to, and shall
not be deemed to limit, restrict, or constitute any waiver by the Company of any
rights of ownership to which the Company may be entitled by operation of law by
virtue of the Company or any of its affiliates being the Executive's employer.
4.5. Litigation. The Executive agrees that, through
December 31, 2004, or, if longer, during the pendency of any litigation or other
proceeding, he shall not (i) communicate with anyone (other than the Executive's
own attorneys and tax advisors and except to the extent required by law or
necessary in the performance of the Executive's duties hereunder) with respect
to the facts or subject matter of any pending or potential litigation, or
regulatory or administrative proceeding involving any of the Company's
affiliates, other than any litigation or other proceeding in which the Executive
is a party-in-opposition, without giving prior notice to the Company or the
Company's counsel, and (ii) in the event that any other party attempts to obtain
information or documents from the Executive with respect to matters possibly
related to such litigation or other proceeding, the Executive shall promptly so
notify the Company's counsel unless the Executive is prohibited from doing so
under applicable law.
<PAGE>
8
4.6 No Right to Write Books, Articles, Etc. The
Executive agrees that, through December 31, 2004, except as authorized by the
Company, he shall not prepare or assist any person or entity in the preparation
of any books, articles, television or motion picture productions or other
creations, concerning the Company or any of the Company's affiliates or any of
their officers, directors, agents, employees, suppliers or customers.
4.7. Return of Property. The Executive shall, on the
Resignation Date, return all documents, data, recordings, or other property,
whether tangible or intangible, including all information stored in electronic
form, obtained or prepared by or for the Executive and utilized by the Executive
in the course of his employment with the Company or any of its affiliates. The
Company reserves the right, to the extent permitted by law and in addition to
any other remedy the Company may have, to deduct from any monies otherwise
payable to the Executive the value of the Company property which the Executive
retains in his possession after the Resignation Date. In the event that the law
of any state or other jurisdiction requires the consent of an employee for such
deductions, this Agreement shall serve as such consent.
4.8. Non-Disparagement. The Executive and, to the extent
set forth in the next sentence, the Company agree that each party shall not,
through December 31, 2004 criticize, ridicule or make any statement which
disparages or is derogatory of the other party in any communications with any
person, unless the relevant party reasonably believed that such communication
would not be disseminated publicly. The Company's obligations under the
preceding sentence shall be limited to communications by its senior corporate
executives having the rank of Senior Vice President or above.
4.9. Injunctive Relief. The Executive acknowledges and
agrees that any violation of this Section 4 will result in irreparable damage to
the Company, and, accordingly, the Company may obtain injunctive and other
equitable relief for any breach or threatened breach of such paragraphs, in
addition to any other remedies available to the Company.
4.10. Survival; Modification of Terms. The Executive and
the Company agree that the restrictions and remedies contained in this Section 4
are reasonable and that it is the Executive's intention and the intention of the
Company that such restrictions and remedies shall be enforceable to the fullest
extent permissible by law. If it shall be found by a court of competent
jurisdiction that any such restriction or remedy is unenforceable but would be
enforceable if some part thereof were deleted or the period or area of
application reduced, then such restriction or remedy shall apply with such
modification as shall be necessary to make it enforceable.
5. Successors. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean the
Company as
<PAGE>
9
defined above and any successor to its business and/or assets which by reason
hereof assumes and agrees to perform this Agreement by operation of law, or
otherwise.
6. Release by the Executive. In consideration of the
payments, covenants and benefits provided to the Executive by the Company
hereunder, the Executive hereby agrees to execute a release on the Resignation
Date, in the form attached as Exhibit B hereto.
7. Release by the Company. In consideration of the
Executive's execution of the release on the Resignation Date and the other
obligations of the Executive hereunder, the Company covenants that, at the
Resignation Date, it shall execute a release in favor of the Executive in the
form that follows:
"The Company, for itself, any of its affiliates and their
respective officers, directors, employees, and agents,
hereby releases and forever discharges the Executive, his
family, his estate, his agents, attorneys, his heirs,
executors, successors and assigns from and against any and
all claims relating to or arising out of, directly or
indirectly, the Executive's employment relationship with
and service as a director, employee or officer of the
Company or any of its affiliates and the termination of
such relationship or service that the Company, any of its
affiliates and their respective officers, directors,
employees and agents may have, or in the future, may
possess; provided, however, that this release shall not
apply to any of the obligations of the Executive under the
Agreement between the Executive and the Company, dated as
of September 6, 1999."
8. Indemnification.
(i) The Company agrees that if the Executive is made a
party, is threatened to be made a party to, or otherwise receives any other
legal process in, any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by reason of the fact that he
was a director, officer or employee of the Company or was serving at the request
of the Company as director, officer, member, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether or not the basis of such
Proceeding is the Executive's alleged action in an official capacity while
serving as director, officer, member, employee or agent, the Executive shall be
indemnified and held harmless by the Company to the fullest extent permitted or
authorized by the Company's certificate of incorporation and bylaws or, if
greater, by the laws of the State of Delaware, against all cost, expense,
liability and loss (including without limitation, attorney's fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement and any cost and fees incurred in enforcing his rights to
indemnification or contribution) reasonably incurred or suffered by the
Executive in connection therewith, and such indemnification shall continue as to
the Executive even though he has ceased to be a director, member, employee or
agent of the Company or other entity and shall inure to the benefit of the
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10
Executive's heirs, executors and administrators. The Company shall advance to
the Executive all reasonable costs and expenses incurred by him in connection
with a Proceeding within 20 days after receipt by the Company of a written
request for such advance. Such request shall include an undertaking by the
Executive to repay the amount of such advance if it shall ultimately be
determined that he is not entitled to be indemnified against such costs and
expenses.
(ii) Neither the failure of the Company (including its
board of directors, independent legal counsel or stockholders) to have made a
determination that indemnification of the Executive is proper because he has met
the applicable standard of conduct, nor a determination by the Company
(including its board of directors, independent legal counsel or stockholders)
that the Executive has not met such applicable standard of conduct, shall create
a presumption or inference that the Executive has not met the applicable
standard of conduct.
(iii) The Company agrees to continue and maintain a
directors' and officers' liability insurance policy covering the Executive on
terms no less favorable than the coverage the Company provides for its directors
and officers, until such time as suits against the Executive are no longer
permitted by law.
9. Certain Additional Payments by the Company. In the event
that the aggregate of all payments or benefits made or provided to the Executive
under this Agreement and under all other plans and programs of the Company (the
"Aggregate Payment") is determined to constitute a Parachute Payment, as such
term is defined in Section 280G(b)(2) of the Internal Revenue Code, the Company
shall pay to the Executive, prior to the time any excise tax imposed by Section
4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such
Aggregate Payment, an additional amount which, after the imposition of all
income and excise taxes thereon, is equal to the Excise Tax on the Aggregate
Payment. The determination of whether the Aggregate Payment constitutes a
Parachute Payment and, if so, the amount to be paid to the Executive and the
time of payment pursuant to this Section 9 shall be made by an independent
auditor (the "Auditor") jointly selected by the Company and the Executive and
paid by the Company. The Auditor shall be a nationally recognized United States
public accounting firm which has not, during the two years preceding the date of
its selection, acted in any way on behalf of the Company or any affiliate
thereof. If the Executive and the Company cannot agree on the firm to serve as
the Auditor, then the Executive and the Company shall each select one accounting
firm and those two firms shall jointly select the accounting firm to serve as
the Auditor.
10. Press Release; No Public Comment. The Company will issue a
press release on September 6, 1999, disclosing the fact of the Executive's
resignation. Consistent with their respective legal obligations, the Company and
the Executive shall treat the circumstances surrounding the Executive's
resignation as confidential and shall limit their comments to the press
regarding such resignation to statements consistent with, and not expanding the
scope of, the press release; provided, however, that nothing herein shall
prevent the Executive from responding to
<PAGE>
11
inaccurate or misleading statements for the limited purpose of correcting any
such inaccuracies or misrepresentations. The Executive may make disclosure of
this Agreement and the discussions associated with it to his legal counsel,
personal financial advisors and members of his family.
11. Miscellaneous.
11.1. Severability. Each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
11.2. Disputes. Any disputes between the parties to this
Agreement shall be settled by arbitration in New York, New York under the
auspices of the American Arbitration Association, before a panel of three (3)
arbitrators, in accordance with the National Rules for the Resolution of
Employment Disputes promulgated by the Association. Each party shall select an
arbitrator and the two (2) arbitrators shall select a third and these three
arbitrators shall form the panel. The decision in such arbitration shall be
final and conclusive on the parties and judgment upon such decision may be
entered into in any court having jurisdiction thereof. Costs of the arbitration
or litigation, including, without limitation, reasonable attorneys' fees of both
parties, shall be borne by the Company if the Executive prevails on at least one
of the issues that is the subject of the arbitration. Pending the resolution of
any arbitration or court proceeding, the Company shall continue payment of all
amounts due the Executive under this Agreement and all benefits to which the
Executive is entitled at the time the dispute arises. Nothing herein shall
prevent the Company from seeking equitable relief in court as provided for in
Section 4.9 or shall prevent either party from seeking equitable relief in court
in connection with any breach or threatened breach of the provisions of Section
4, or in aid of arbitration under applicable law.
11.3. Cooperation. Subject to the provisions of this
Section 11.3, the Executive agrees that, following the Resignation Date, he
shall make himself available to cooperate with the Company, and, if necessary,
provide depositions or testimony, in connection with any pending or future
governmental or regulatory investigation, civil or administrative proceeding,
litigation or arbitration related to the business of the Company or the
Executive's services as an officer, director or employee of the Company. The
Company shall promptly reimburse the Executive for, or promptly advance to the
Executive, all reasonable costs and expenses, incurred by the Executive in
connection with any such proceedings or arbitration, including without
limitation reasonable fees and disbursements for separate counsel for the
Executive, if the Executive reasonably determines that the litigation,
arbitration, proceeding or investigation is of a nature which indicates that he
should have separate representation. Such expenses shall be reimbursed or
advanced promptly after the Executive's submission to the Company of statements
of legal services in such reasonable detail as the Company may require. In any
event, (i) in any matter subject to this Section 11.3, the Executive shall not
be required to
<PAGE>
12
act against the best interests of any new employer and (ii) any request for such
cooperation shall take into account (A) the significance of the matters at issue
in the litigation, arbitration, proceeding or investigation and (B) the
Executive's other personal and business commitments.
11.4. Representations of the Company. The Company
represents and warrants to the Executive that the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized on behalf of the
Company by its Board and that all corporate action required to be taken by the
Company for the execution, delivery and performance of this Agreement including,
without limitation, the performance of Section 2 and any and all action required
to be taken by the Committees responsible for administering the Equity Plans
and/or the Board to amend, interpret or otherwise act with respect to such
plans, has been or promptly will be duly and effectively taken. The Company
acknowledges that Executive has relied upon such representations and warranties
in entering into this Agreement.
11.5. No Mitigation; No Offset. The Executive shall be
under no obligation to seek other employment and, except as provided in Sections
2.3(a) and 2.3(d)(i), there shall be no offset against amounts due the Executive
on account of any remuneration attributable to any subsequent employment that he
may obtain.
11.6. No Set-Off. The amounts payable to the Executive
hereunder shall not be subject to set-off by the Company by reason of any
obligation owing or alleged to be owing by the Executive to the Company pursuant
to any other agreement or legal obligation not set forth herein.
11.7. Notices. For the purpose of this Agreement, notices,
demands and all other communications provided for in this Agreement shall be in
writing and shall be sent by messenger, overnight courier, certified or
registered mail, postage prepaid and return receipt requested or by facsimile
transmission to the parties at their respective addresses and fax numbers set
forth below or to such other address or fax number as to which notice is given.
If to the Executive: Philippe P. Dauman
121 East 65th Street
New York, NY 10021
Telephone: (212) 988-1477
Fax: (212) 585-1426
If to the Company: Viacom Inc.
1515 Broadway
New York, NY 10036
Attention: General Counsel
Telephone: (212) 258-6000
Fax: (212) 258-6996
<PAGE>
13
Notices, demands and other communications shall he deemed given on delivery
thereof.
11.8. Entire Agreement. Except as expressly set forth
herein, this Agreement represents the entire agreement of the parties concerning
the subject matter hereof and, effective as of the Interim Effective Date, shall
supersede any and all previous contracts arrangements or understandings with
respect to such subject matter between the Company and the Executive.
11.9. Amendment. This Agreement may be amended at any time
by mutual written agreement of the parties hereto.
11.10. Withholding. The payment of any amount pursuant to
this Agreement shall be subject to applicable withholding and payroll taxes, and
such other deductions as may be required under the Company's employee benefit
plans, if any.
11.11. Governmental Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
giving effect to the conflicts of laws principles thereof.
11.12. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
VIACOM INC.
By: /s/ Sumner M. Redstone
-------------------------------------
Sumner M. Redstone
Chairman and Chief Executive Officer
/s/ Philippe P. Dauman
-------------------------------------
Philippe P. Dauman
<PAGE>
Exhibit A
SAMPLE CALCULATION OF SECTION 2.1(a) PAYMENT
Base Salary $1,000,000.00
2000 Deferred Compensation1 $1,069,100.00
Target Bonus (250% of Base and Deferred Salary) $5,172,750.00
$7,241,850.00
Monthly equivalent of the severance (/12) $603,487.50
Monthly car allowance $1,100.00
$604,587.50
Assuming that the Effective Time were to occur on January 1,
2000, 48 months of severance would be payable, or $29,020,200.
If the Effective Time occurs later during 2000, the above
amount will be reduced by (a) 2000 base salary and car
allowance amounts paid to the Executive prior to the Effective
Time and (b) Deferred Compensation accrued prior to the
Effective Time (which shall be payable in accordance with
Section 2.1(c) of the Agreement).
- --------
1 The Prior Agreement provides that the Deferred Compensation (as defined
therein) for years 2001 through 2003 will be no less than $1,069,100, and
subject to annual increases each January 1 in an amount determined by the
Company in its sole discretion.
<PAGE>
Exhibit B
LIST OF BENEFIT PLANS
1. Excess Pension Plan for Certain Key Employees of Viacom International Inc.
2. Viacom Inc. Excess Investment Plan
3. Viacom Pension Plan
4. Viacom Investment Plan
5. Viacom Medical Plan
6. Viacom Dental Plan
7. Viacom Retiree Medical Plan
8. Viacom Health Care and Dependent Care Flexible Spending Accounts
9. Viacom Life Insurance Program (includes supplemental employee-paid term
insurance)
13 Viacom Disability Income Program (includes STD and LTD)
14. Viacom Employee Assistance Programs (provides childcare assistance and
other EAP-type programs)
<PAGE>
Exhibit C
FORM OF RELEASE
In consideration of the payments, covenants and benefits
(collectively, the "Payments") provided to Philippe P. Dauman (the "Executive")
by Viacom Inc. (the "Company") in the Agreement, dated as of September 6, 1999,
between the Executive and the Company (the "Agreement"), the Executive hereby
releases and forever discharges the Company and any of its affiliates
(collectively, the "Group") and their respective officers, employees, directors
and agents from any and all claims, actions and causes of action (collectively,
"Claims"), including, without limitation, any Claims arising under any
applicable federal, state, local or foreign law, that the Executive may have, or
in the future may possess, arising out of the Executive's employment
relationship with and service as a director, employee or officer of any member
of the Group, and the termination of such relationship or service; provided,
however, that this release shall not apply to any of the obligations of the
Company under the Agreement, or under any agreements, plans, contracts,
documents or programs described or referenced in the Agreement, including the
Exhibits thereto; provided, further, that this release shall not apply to any
rights the Executive may have to obtain contribution or indemnity against the
Company or its representatives in any action or in future actions in which the
Executive is named a defendant. The Executive further agrees that the Payments
shall be in full satisfaction of any and all claims for payments or benefits,
whether express or implied, that the Executive may have against any member of
the Group arising out of the Executive's employment relationship, his service as
a director, employee or officer of any member of the Group and the termination
thereof, other than as provided by the Agreement.
/s/ Philippe P. Dauman
-------------------------
Philippe P. Dauman
EXHIBIT 10.6
CONFORMED COPY
AGREEMENT
THIS AGREEMENT, dated as of September 6, 1999 (the
"Agreement"), by and between Viacom Inc., a Delaware corporation (the
"Company"), and Thomas E. Dooley (the "Executive").
WHEREAS, the Company and the Executive have mutually agreed
that the Executive shall resign from service as Deputy Chairman, Executive Vice
President of the Company, and as an employee of the Company, as of the
Resignation Date (as defined below); and
WHEREAS, the parties intend that this Agreement shall set
forth the terms regarding the Executive's resignation.
NOW, THEREFORE, in consideration of the covenants and
agreements hereinafter set forth in this Agreement, the parties hereto hereby
agree as follows:
1. Resignation Date. The Executive shall resign from his
employment and service as Deputy Chairman and Executive Vice President of the
Company and as an officer and member of the boards of directors of the Company's
direct and indirect subsidiaries, effective as of the Effective Time (the
"Resignation Date") of the closing of the transactions contemplated by the
Agreement and Plan of Merger (the "Merger Agreement") between CBS Corporation
and the Company, dated as of September 6, 1999 (such date to be referred to
herein as the "Interim Effective Date"). The Executive shall continue to serve
in his capacity as Deputy Chairman and Executive Vice President of the Company
from the Interim Effective Date through the Resignation Date and agrees to use
his best efforts on a full-time basis to assist the Company in consummating the
transactions contemplated by the Merger Agreement. The employment agreement
between the Company and the Executive, dated January 1, 1996, as amended (the
"Prior Agreement"), shall continue to govern the terms of the Executive's
employment until the Resignation Date, on which date the Prior Agreement shall
become null and void; provided, however, that, following the Interim Effective
Date, (a) the Executive's duties shall be modified by the immediately preceding
sentence, (b) Section 2.1 (b) hereof shall govern payment of the Executive's
1999 bonus in lieu of paragraph 3(b) of the Prior Agreement and (c) Section 3
hereof shall replace paragraph 8 of the Prior Agreement. Notwithstanding
anything to the contrary in this Agreement, if the Executive's employment
terminates prior to the Resignation Date, the following shall be applicable:
(A) If his employment terminates due to disability or death,
he or his estate shall receive on and following the Resignation Date
(except in the case of the 1999 bonus, which shall be paid on the date
described in Section 2.1(b) hereof) the payments
<PAGE>
2
and benefits as set forth in Section 2, less any payments and benefits
under the Prior Agreement in respect of such termination. At that time
the Prior Agreement shall become null and void and this Agreement shall
become applicable, provided that if his employment terminated due to
disability, he shall continue to receive the disability benefits set
forth in paragraph 7 of the Prior Agreement.
(B) If the Executive is terminated without Cause or terminates
his employment for Good Reason, the Prior Agreement shall become null
and void and this Agreement shall become applicable.
The Executive shall continue to serve as a member of the Board of Directors of
the Company (the "Board") for the remainder of his current term in office as a
director. In the event the Merger Agreement is terminated or the transactions
contemplated by the Merger Agreement are otherwise abandoned, this Agreement
shall be null and void, except for clauses (A) and (B) of this Section 1, and
Section 2.1(b) hereof.
2. Payments and Benefits. In consideration of the foregoing
and the covenants set forth below, and (except with respect to the payment of
the 1999 bonus pursuant to Section 2.1(b) hereof) subject to the Executive's
execution, on the Resignation Date, of the release referred to in Section 6
below, the Executive shall receive the following payments and benefits:
2.1. (a) Cash Payments. The Executive shall be paid a cash
lump sum on or as soon as practicable following the Resignation Date equal to
the amounts that would have been payable under paragraph 8 of the Prior
Agreement had the Executive been terminated without Cause (as defined in the
Prior Agreement) on the Resignation Date. An illustrative example of such
calculation, determined as if the Resignation Date were January 1, 2000, is set
forth on Exhibit A attached hereto.
(b) 1999 Bonus. On the earlier to occur of (i) the
Resignation Date and (ii) the date on which the Company pays 1999 bonuses to its
executive officers generally, the Company shall pay the Executive an amount
equal to the greatest of (x) 110% of his bonus received for 1998, (y) an amount
which, when added to the Executive's salary and Deferred Compensation (as
defined in Section 3(c) of the Prior Agreement) that is payable for 1999
(together, "Total Cash Compensation"), would produce the highest 1999 Total Cash
Compensation paid to any other executive officer of the Company or any of its
affiliates or (z) such higher amount as the Board may determine is appropriate
to compensate the Executive for his contributions to the Company in 1999.
(c) Payout of Deferred Compensation Amounts. On or as soon
as practicable following the Resignation Date, the Company shall pay the
Executive (i) all Deferred Compensation (as defined in Section 3(c) of the Prior
Agreement) earned prior to the Resignation
<PAGE>
3
Date and (ii) the entire balance of the Executive's account under the Viacom
Investment Plan Excess Plan as of such date.
(d) Transaction Bonus. The Executive shall receive an
additional payment in an amount of $5,000,000 (the "Transaction Bonus"), which
will be payable as soon as practicable following the Resignation Date.
2.2. Treatment of Equity-Based Compensation. All
equity-based compensation awards previously granted or awarded to the Executive
in the form of stock options or otherwise under any equity-based compensation
plan of the Company, including, without limitation, the Company's long-term
management incentive plans, (together with the individual grant documents, the
"Equity Plans"), to the extent not yet vested, shall vest on the Resignation
Date and each stock option shall continue to be exercisable in accordance with
its terms until December 31, 2003, subject to the Executive's compliance in all
material respects with the provisions of Section 4 below, it being understood
and agreed that this Section 2.2 supersedes any conditions to the contrary as to
vesting or exercisability contained in the Equity Plans.
2.3. Other Benefits. (a) The Executive is a participant in
Company benefit plans, including, without limitation, the plans listed in
Exhibit B attached hereto and shall continue to participate in such plans
through the Resignation Date. This Agreement shall not change the terms of such
plans or the benefits earned by or due to the Executive thereunder for services
rendered to the Company through the Resignation Date. The benefits earned by or
due to the Executive in accordance with the terms of such plans shall be paid or
provided by the Company or such plans (as the case may be) when due (whether
such due date is on, before or after the Resignation Date), and full payments
and provision of benefits shall discharge fully all obligations of the Company
and such plans with respect to the Executive's benefits under such plans.
Following the Resignation Date and through the earlier of (i) December 31, 2003
and (ii) with respect to any individual type of benefit or benefit plan, the
date on which the Executive is entitled to a comparable benefit or to
participate in a comparable benefit plan through a subsequent employer, the
Company shall provide the Executive with benefits comparable to the Company
benefit plans, including those listed in Exhibit B, in the same manner and on
the same terms as if the Executive remained employed by the Company during such
period, and reflecting any enhancements or supplements to such benefits adopted
during such period. In the event that the Company is unable to provide the
Executive with participation in the relevant plans or in comparable
supplementary benefit plans, the Executive shall be entitled to receive a lump
sum cash payment equal to the cash equivalent of such benefits, plus an amount
sufficient to cover any income taxes payable on such lump sum payment to the
extent that the associated benefit would not have been taxable to the Executive
had he remained an employee of the Company.
(b) The Executive shall be credited with service for all
purposes through December 31, 2003 under the Company Investment Plan, the Viacom
Investment Plan
<PAGE>
4
Excess Plan, the Company Pension Plan, the Company Excess Pension Plan and any
and all other retirement plans of the Company in which he participates as of the
Interim Effective Date and, to the extent that any of the additional benefits
that would result from such additional credited service may not be provided
pursuant to any such plan, such benefits shall be provided pursuant to an
existing supplementary arrangement or a supplementary arrangement established
for purposes of this Agreement.
(c) In addition to the foregoing, the Company agrees that,
beginning on the Resignation Date:
(i) The Company shall provide the Executive, through
December 31, 2003 (or, if earlier, until the Executive secures
full-time employment, other than self-employment (which shall mean
employment by himself or by an entity controlled by the Executive or
his family pursuant to which he provides services to no other single
person or entity on a full time basis), with a new employer), with an
office, comparable in both quality and size to the office the Executive
has had prior to the Interim Effective Date, at a location of the
Executive's choosing in midtown Manhattan, subject to the Company's
approval, which approval shall not unreasonably be withheld. The
Company shall bear the cost of relocating the Executive's office
effects to the new office and provide furniture and equipment
comparable to that in his present office. During the period in which
the company is providing the Executive with an office pursuant to this
Section 2(c)(i), the Company also shall provide the Executive with a
secretary, who may be his current secretary or another secretary of his
choosing.
(ii) The Company shall promptly reimburse the Executive for
legal fees and other expenses reasonably incurred by him in connection
with the preparation of this Agreement and advice related thereto.
3. Termination.
3.1 Termination for Cause. The Company may, at its option,
terminate the Executive's employment prior to the Resignation Date, by providing
written notice to the Executive, for "Cause" and the Company shall thereafter
have no further obligations under this Agreement, including, without limitation,
any obligation to pay any payments or benefits described in Section 2 of this
Agreement. For purposes of this Agreement, Cause shall mean the commission of a
felony, including fraud or embezzlement resulting in material harm to the
business or reputation of the Company. Anything herein to the contrary
notwithstanding, the Company shall give the Executive written notice prior to
terminating the Executive's employment for Cause setting forth the exact nature
of any alleged Cause. The Executive shall have ten (10) business days from the
giving of such notice within which to respond to such allegation of Cause and
within which period the Company cannot terminate his employment for the stated
reasons.
<PAGE>
5
3.2 Good Reason Termination. The Executive may terminate
his employment hereunder for "Good Reason" prior to the Resignation Date by
written notice to the Company not more than thirty (30) days after the
occurrence of the event constituting Good Reason. Such notice shall state an
effective date no later than thirty (30) business days after the date it is
given. The Company shall have ten (10) business days from the giving of such
notice within which to cure. Good Reason shall mean the occurrence of any of the
following, without the Executive's prior written consent, other than in
connection with the termination of the Executive's employment for Cause:
(i) the assignment to the Executive by the Company of
duties substantially inconsistent with his positions, duties,
responsibilities, titles or offices in effect immediately prior to the
Interim Effective Date or the withdrawal of a material part of the
Executive's responsibilities (including, without limitation removal
from the Board) or a change in his reporting relationship, in each case
as in effect immediately prior to the Interim Effective Date;
(ii) a reduction in his salary, bonus or other compensation
and benefit levels as in effect on the Interim Effective Date;
(iii) the Company's requiring the Executive to be based
anywhere other than the New York City metropolitan area, except for
required travel on the Company's business to any extent substantially
consistent with business travel obligations of other senior executives
of the Company; and
(iv) the material breach by the Company of its material
obligations under this Agreement or the Prior Agreement.
3.3 Termination Payments. In the event that the Executive
is terminated without Cause or terminates his employment for Good Reason prior
to the Resignation Date, he shall be entitled to receive the payments and
benefits set forth in Section 2 herein (other than the Transaction Bonus) as
promptly as practicable following the date of such termination, but shall only
receive the Transaction Bonus if and when the Effective Time occurs pursuant to
the Merger Agreement; provided, however, that, notwithstanding the foregoing, if
the Merger Agreement is terminated or the transactions contemplated by the
Merger Agreement are otherwise abandoned, the Board of Directors of the Company
shall promptly determine in its good faith discretion whether to pay the
Executive all or any portion of the Transaction Bonus, taking into account,
among other things, the Executive's contributions to the Company's efforts to
consummate the transactions contemplated by the Merger Agreement.
4. Restrictive Covenants. Subject to and conditioned upon the
performance by the Company of its obligations set forth in this Agreement, the
Executive agrees to the covenants set forth in this Section 4. The determination
as to whether the Executive has
<PAGE>
6
breached the provisions of this Section 4, or whether to waive any such breach,
shall be made solely by a majority of the Board of Directors of the Company,
subject to the Executive's right to challenge any such determination in
arbitration in accordance with Section 11.2 hereof. In the event of an alleged
breach of this Section 4 by the Executive, the Company shall provide the
Executive with written notice of such alleged breach, and no breach shall be
deemed to exist until a determination of breach has been made, no earlier than
30 calendar days following such written notice, in accordance with the
immediately preceding sentence.
4.1. Non-Competition. For a period commencing on the date
hereof and ending one year following the Resignation Date (the "Restricted
Period"), the Executive shall not directly or indirectly engage in or
participate as an officer, employee, director, agent of or consultant for any
business directly competitive with that of the Company, as conducted by the
Company immediately prior to the earlier of the Resignation Date or the
termination of the Executive's employment with the Company (the "Protected
Business"), nor shall the Executive make any investments in any company or
business competing with the Protected Business; provided, however, that nothing
herein shall prevent the Executive from investing as less than a two percent
(2%) shareholder in the securities of any company listed on a national
securities exchange or quoted on an automated quotation system.
4.2. Confidential Information. The Executive covenants and
agrees that he shall not at any time, use for his own purposes, or disclose to
or for the benefit of any third party, any trade secret or other confidential
information of the Company or any of its affiliates (except as may be required
by law or in the performance of the Executive's duties hereunder consistent with
the Company's policies) and that the Executive shall comply with any
confidentiality obligations of the Company to a third party, whether under
agreement or otherwise. Notwithstanding the foregoing, confidential information
shall be deemed not to include information which (i) is or becomes generally
available to the public other than as a result of a disclosure by the Executive
or any other person who directly or indirectly receives such information from
the Executive or at the Executive's direction or (ii) is or becomes available to
the Executive on a non-confidential basis from a source which is entitled to
disclose it to the Executive.
4.3. No Employee Solicitation. The Executive agrees that,
through December 31, 2004, he shall not knowingly engage, employ, or solicit the
employment of any person who is then or has been within six (6) months prior
thereto, an executive of the Company or any of its affiliates.
4.4. Company Ownership. The Executive agrees that any
results and proceeds of his services to the Company, including, without
limitation, any works of authorship resulting from his services during the
Executive's employment with the Company and/or any of its affiliates and any
works in progress, shall be works-made-for-hire and the Company shall be deemed
the sole owner throughout the universe of any and all rights of whatsoever
nature
<PAGE>
7
therein, whether or not now or hereafter known, existing, contemplated,
recognized or developed, with the right to use the same in perpetuity in any
manner the Company determines in its sole discretion without any further payment
to the Executive whatsoever. If, for any reason, any of such results and
proceeds shall not legally be a work-for-hire and/or there are any rights which
do not accrue to the Company under the preceding sentence, then the Executive
irrevocably assigns and agrees to assign any and all of the Executive's right,
title and interest thereto, including, without limitation, any and all
copyrights, patents, trade secrets, trademarks and/or other rights of whatsoever
nature therein, whether or not now or hereafter known, existing, contemplated,
recognized or developed to the Company, and the Company shall have the right to
use the same in perpetuity throughout the universe in any manner the Company
determines without any further payment to the Executive whatsoever. The
Executive shall, as may be requested by the Company, do any and all things which
the Company may deem useful or desirable to establish or document the Company's
exclusive ownership of any and all rights in any such results and proceeds,
including, without limitation, the execution of appropriate copyright and/or
patent applications or assignments. To the extent the Executive has any rights
in the results and proceeds of the Executive's services that cannot be assigned
in the manner described above, the Executive unconditionally and irrevocably
waives the enforcement of such rights. This Section 4.4 is subject to, and shall
not be deemed to limit, restrict, or constitute any waiver by the Company of any
rights of ownership to which the Company may be entitled by operation of law by
virtue of the Company or any of its affiliates being the Executive's employer.
4.5. Litigation. The Executive agrees that, through
December 31, 2004, or, if longer, during the pendency of any litigation or other
proceeding, he shall not (i) communicate with anyone (other than the Executive's
own attorneys and tax advisors and except to the extent required by law or
necessary in the performance of the Executive's duties hereunder) with respect
to the facts or subject matter of any pending or potential litigation, or
regulatory or administrative proceeding involving any of the Company's
affiliates, other than any litigation or other proceeding in which the Executive
is a party-in-opposition, without giving prior notice to the Company or the
Company's counsel, and (ii) in the event that any other party attempts to obtain
information or documents from the Executive with respect to matters possibly
related to such litigation or other proceeding, the Executive shall promptly so
notify the Company's counsel unless the Executive is prohibited from doing so
under applicable law.
4.6 No Right to Write Books, Articles, Etc. The Executive
agrees that, through December 31, 2004, except as authorized by the Company, he
shall not prepare or assist any person or entity in the preparation of any
books, articles, television or motion picture productions or other creations,
concerning the Company or any of the Company's affiliates or any of their
officers, directors, agents, employees, suppliers or customers.
4.7. Return of Property. The Executive shall, on the
Resignation Date, return all documents, data, recordings, or other property,
whether tangible or intangible, including all information stored in electronic
form, obtained or prepared by or for the Executive
NYDOCS02/480817 1
<PAGE>
8
and utilized by the Executive in the course of his employment with the Company
or any of its affiliates. The Company reserves the right, to the extent
permitted by law and in addition to any other remedy the Company may have, to
deduct from any monies otherwise payable to the Executive the value of the
Company property which the Executive retains in his possession after the
Resignation Date. In the event that the law of any state or other jurisdiction
requires the consent of an employee for such deductions, this Agreement shall
serve as such consent.
4.8. Non-Disparagement. The Executive and, to the extent
set forth in the next sentence, the Company agree that each party shall not,
through December 31, 2004 criticize, ridicule or make any statement which
disparages or is derogatory of the other party in any communications with any
person, unless the relevant party reasonably believed that such communication
would not be disseminated publicly. The Company's obligations under the
preceding sentence shall be limited to communications by its senior corporate
executives having the rank of Senior Vice President or above.
4.9. Injunctive Relief. The Executive acknowledges and
agrees that any violation of this Section 4 will result in irreparable damage to
the Company, and, accordingly, the Company may obtain injunctive and other
equitable relief for any breach or threatened breach of such paragraphs, in
addition to any other remedies available to the Company.
4.10. Survival; Modification of Terms. The Executive and
the Company agree that the restrictions and remedies contained in this Section 4
are reasonable and that it is the Executive's intention and the intention of the
Company that such restrictions and remedies shall be enforceable to the fullest
extent permissible by law. If it shall be found by a court of competent
jurisdiction that any such restriction or remedy is unenforceable but would be
enforceable if some part thereof were deleted or the period or area of
application reduced, then such restriction or remedy shall apply with such
modification as shall be necessary to make it enforceable.
5. Successors. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business and/or assets of the Company to
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform it if no such
succession had taken place. As used in this Agreement, "Company" shall mean the
Company as defined above and any successor to its business and/or assets which
by reason hereof assumes and agrees to perform this Agreement by operation of
law, or otherwise.
6. Release by the Executive. In consideration of the payments,
covenants and benefits provided to the Executive by the Company hereunder, the
Executive hereby agrees to execute a release on the Resignation Date, in the
form attached as Exhibit B hereto.
<PAGE>
9
7. Release by the Company. In consideration of the Executive's
execution of the release on the Resignation Date and the other obligations of
the Executive hereunder, the Company covenants that, at the Resignation Date, it
shall execute a release in favor of the Executive in the form that follows:
"The Company, for itself, any of its affiliates and their
respective officers, directors, employees, and agents, hereby
releases and forever discharges the Executive, his family, his
estate, his agents, attorneys, his heirs, executors,
successors and assigns from and against any and all claims
relating to or arising out of, directly or indirectly, the
Executive's employment relationship with and service as a
director, employee or officer of the Company or any of its
affiliates and the termination of such relationship or service
that the Company, any of its affiliates and their respective
officers, directors, employees and agents may have, or in the
future, may possess; provided, however, that this release
shall not apply to any of the obligations of the Executive
under the Agreement between the Executive and the Company,
dated as of September 6, 1999."
8. Indemnification.
(i) The Company agrees that if the Executive is made a
party, is threatened to be made a party to, or otherwise receives any other
legal process in, any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "Proceeding"), by reason of the fact that he
was a director, officer or employee of the Company or was serving at the request
of the Company as director, officer, member, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether or not the basis of such
Proceeding is the Executive's alleged action in an official capacity while
serving as director, officer, member, employee or agent, the Executive shall be
indemnified and held harmless by the Company to the fullest extent permitted or
authorized by the Company's certificate of incorporation and bylaws or, if
greater, by the laws of the State of Delaware, against all cost, expense,
liability and loss (including without limitation, attorney's fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid or to be paid in
settlement and any cost and fees incurred in enforcing his rights to
indemnification or contribution) reasonably incurred or suffered by the
Executive in connection therewith, and such indemnification shall continue as to
the Executive even though he has ceased to be a director, member, employee or
agent of the Company or other entity and shall inure to the benefit of the
Executive's heirs, executors and administrators. The Company shall advance to
the Executive all reasonable costs and expenses incurred by him in connection
with a Proceeding within 20 days after receipt by the Company of a written
request for such advance. Such request shall include an undertaking by the
Executive to repay the amount of such advance if it shall ultimately be
determined that he is not entitled to be indemnified against such costs and
expenses.
<PAGE>
10
(ii) Neither the failure of the Company (including its
board of directors, independent legal counsel or stockholders) to have made a
determination that indemnification of the Executive is proper because he has met
the applicable standard of conduct, nor a determination by the Company
(including its board of directors, independent legal counsel or stockholders)
that the Executive has not met such applicable standard of conduct, shall create
a presumption or inference that the Executive has not met the applicable
standard of conduct.
(iii) The Company agrees to continue and maintain a
directors' and officers' liability insurance policy covering the Executive on
terms no less favorable than the coverage the Company provides for its directors
and officers, until such time as suits against the Executive are no longer
permitted by law.
9. Certain Additional Payments by the Company. In the event
that the aggregate of all payments or benefits made or provided to the Executive
under this Agreement and under all other plans and programs of the Company (the
"Aggregate Payment") is determined to constitute a Parachute Payment, as such
term is defined in Section 280G(b)(2) of the Internal Revenue Code, the Company
shall pay to the Executive, prior to the time any excise tax imposed by Section
4999 of the Internal Revenue Code ("Excise Tax") is payable with respect to such
Aggregate Payment, an additional amount which, after the imposition of all
income and excise taxes thereon, is equal to the Excise Tax on the Aggregate
Payment. The determination of whether the Aggregate Payment constitutes a
Parachute Payment and, if so, the amount to be paid to the Executive and the
time of payment pursuant to this Section 9 shall be made by an independent
auditor (the "Auditor") jointly selected by the Company and the Executive and
paid by the Company. The Auditor shall be a nationally recognized United States
public accounting firm which has not, during the two years preceding the date of
its selection, acted in any way on behalf of the Company or any affiliate
thereof. If the Executive and the Company cannot agree on the firm to serve as
the Auditor, then the Executive and the Company shall each select one accounting
firm and those two firms shall jointly select the accounting firm to serve as
the Auditor.
10. Press Release; No Public Comment. The Company will issue a
press release on September 6, 1999, disclosing the fact of the Executive's
resignation. Consistent with their respective legal obligations, the Company and
the Executive shall treat the circumstances surrounding the Executive's
resignation as confidential and shall limit their comments to the press
regarding such resignation to statements consistent with, and not expanding the
scope of, the press release; provided, however, that nothing herein shall
prevent the Executive from responding to inaccurate or misleading statements for
the limited purpose of correcting any such inaccuracies or misrepresentations.
The Executive may make disclosure of this Agreement and the discussions
associated with it to his legal counsel, personal financial advisors and members
of his family.
<PAGE>
11
11. Miscellaneous.
11.1. Severability. Each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
11.2. Disputes. Any disputes between the parties to this
Agreement shall be settled by arbitration in New York, New York under the
auspices of the American Arbitration Association, before a panel of three (3)
arbitrators, in accordance with the National Rules for the Resolution of
Employment Disputes promulgated by the Association. Each party shall select an
arbitrator and the two (2) arbitrators shall select a third and these three
arbitrators shall form the panel. The decision in such arbitration shall be
final and conclusive on the parties and judgment upon such decision may be
entered into in any court having jurisdiction thereof. Costs of the arbitration
or litigation, including, without limitation, reasonable attorneys' fees of both
parties, shall be borne by the Company if the Executive prevails on at least one
of the issues that is the subject of the arbitration. Pending the resolution of
any arbitration or court proceeding, the Company shall continue payment of all
amounts due the Executive under this Agreement and all benefits to which the
Executive is entitled at the time the dispute arises. Nothing herein shall
prevent the Company from seeking equitable relief in court as provided for in
Section 4.9 or shall prevent either party from seeking equitable relief in court
in connection with any breach or threatened breach of the provisions of Section
4, or in aid of arbitration under applicable law.
11.3. Cooperation. Subject to the provisions of this
Section 11.3, the Executive agrees that, following the Resignation Date, he
shall make himself available to cooperate with the Company, and, if necessary,
provide depositions or testimony, in connection with any pending or future
governmental or regulatory investigation, civil or administrative proceeding,
litigation or arbitration related to the business of the Company or the
Executive's services as an officer, director or employee of the Company. The
Company shall promptly reimburse the Executive for, or promptly advance to the
Executive, all reasonable costs and expenses, incurred by the Executive in
connection with any such proceedings or arbitration, including without
limitation reasonable fees and disbursements for separate counsel for the
Executive, if the Executive reasonably determines that the litigation,
arbitration, proceeding or investigation is of a nature which indicates that he
should have separate representation. Such expenses shall be reimbursed or
advanced promptly after the Executive's submission to the Company of statements
of legal services in such reasonable detail as the Company may require. In any
event, (i) in any matter subject to this Section 11.3, the Executive shall not
be required to act against the best interests of any new employer and (ii) any
request for such cooperation shall take into account (A) the significance of the
matters at issue in the litigation, arbitration, proceeding or investigation and
(B) the Executive's other personal and business commitments.
<PAGE>
12
11.4. Representations of the Company. The Company
represents and warrants to the Executive that the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized on behalf of the
Company by its Board and that all corporate action required to be taken by the
Company for the execution, delivery and performance of this Agreement including,
without limitation, the performance of Section 2 and any and all action required
to be taken by the Committees responsible for administering the Equity Plans
and/or the Board to amend, interpret or otherwise act with respect to such
plans, has been or promptly will be duly and effectively taken. The Company
acknowledges that Executive has relied upon such representations and warranties
in entering into this Agreement.
11.5. No Mitigation; No Offset. The Executive shall be
under no obligation to seek other employment and, except as provided in Sections
2.3(a) and 2.3(c)(i), there shall be no offset against amounts due the Executive
on account of any remuneration attributable to any subsequent employment that he
may obtain.
11.6. No Set-Off. The amounts payable to the Executive
hereunder shall not be subject to set-off by the Company by reason of any
obligation owing or alleged to be owing by the Executive to the Company pursuant
to any other agreement or legal obligation not set forth herein.
11.7. Notices. For the purpose of this Agreement, notices,
demands and all other communications provided for in this Agreement shall be in
writing and shall be sent by messenger, overnight courier, certified or
registered mail, postage prepaid and return receipt requested or by facsimile
transmission to the parties at their respective addresses and fax numbers set
forth below or to such other address or fax number as to which notice is given.
If to the Executive: Thomas E. Dooley
243 Cleft Road
Mill Neck, NY 11765
Telephone: (516) 624-8168
Fax: (516) 624-8169
If to the Company: Viacom Inc.
1515 Broadway
New York, NY 10036
Attention: General Counsel
Telephone: (212) 258-6000
Fax: (212) 258-6996
Notices, demands and other communications shall he deemed given on delivery
thereof.
<PAGE>
13
11.8. Entire Agreement. Except as expressly set forth
herein, this Agreement represents the entire agreement of the parties concerning
the subject matter hereof and, effective as of the Interim Effective Date, shall
supersede any and all previous contracts arrangements or understandings with
respect to such subject matter between the Company and the Executive.
11.9. Amendment. This Agreement may be amended at any time
by mutual written agreement of the parties hereto.
11.10. Withholding. The payment of any amount pursuant to
this Agreement shall be subject to applicable withholding and payroll taxes, and
such other deductions as may be required under the Company's employee benefit
plans, if any.
11.11. Governmental Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
giving effect to the conflicts of laws principles thereof.
11.12. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
VIACOM INC.
By: /s/ Sumner M. Redstone
------------------------------------
Sumner M. Redstone
Chairman and Chief Executive Officer
/s/ Thomas E. Dooley
------------------------------------
Thomas E. Dooley
<PAGE>
Exhibit A
SAMPLE CALCULATION OF SECTION 2.1(a) PAYMENT
Base Salary $1,000,000.00
2000 Deferred Compensation1 $1,069,100.00
Target Bonus (250% of Base and Deferred Salary) $5,172,750.00
-------------
$7,241,850.00
Monthly equivalent of the severance ((divided by) 12) $603,487.50
Monthly car allowance $1,100.00
-------------
$604,587.50
Assuming that the Effective Time were to occur on January 1,
2000, 48 months of severance would be payable, or $29,020,200.
If the Effective Time occurs later during 2000, the above
amount will be reduced by (a) 2000 base salary and car
allowance amounts paid to the Executive prior to the Effective
Time and (b) Deferred Compensation accrued prior to the
Effective Time (which shall be payable in accordance with
Section 2.1(c) of the Agreement).
- --------
1 The Prior Agreement provides that the Deferred Compensation (as defined
therein) for years 2001 through 2003 will be no less than $1,069,100, and
subject to annual increases each January 1 in an amount determined by the
Company in its sole discretion.
<PAGE>
Exhibit B
LIST OF BENEFIT PLANS
1. Excess Pension Plan for Certain Key Employees of Viacom International Inc.
2. Viacom Inc. Excess Investment Plan
3. Viacom Pension Plan
4. Viacom Investment Plan
5. Viacom Medical Plan
6. Viacom Dental Plan
7. Viacom Retiree Medical Plan
8. Viacom Health Care and Dependent Care Flexible Spending Accounts
9. Viacom Life Insurance Program (includes supplemental employee-paid term
insurance)
13 Viacom Disability Income Program (includes STD and LTD)
14. Viacom Employee Assistance Programs (provides childcare assistance and other
EAP-type programs)
<PAGE>
Exhibit C
FORM OF RELEASE
In consideration of the payments, covenants and benefits
(collectively, the "Payments") provided to Thomas E. Dooley (the "Executive") by
Viacom Inc. (the "Company") in the Agreement, dated as of September 6, 1999,
between the Executive and the Company (the "Agreement"), the Executive hereby
releases and forever discharges the Company and any of its affiliates
(collectively, the "Group") and their respective officers, employees, directors
and agents from any and all claims, actions and causes of action (collectively,
"Claims"), including, without limitation, any Claims arising under any
applicable federal, state, local or foreign law, that the Executive may have, or
in the future may possess, arising out of the Executive's employment
relationship with and service as a director, employee or officer of any member
of the Group, and the termination of such relationship or service; provided,
however, that this release shall not apply to any of the obligations of the
Company under the Agreement, or under any agreements, plans, contracts,
documents or programs described or referenced in the Agreement, including the
Exhibits thereto; provided, further, that this release shall not apply to any
rights the Executive may have to obtain contribution or indemnity against the
Company or its representatives in any action or in future actions in which the
Executive is named a defendant. The Executive further agrees that the Payments
shall be in full satisfaction of any and all claims for payments or benefits,
whether express or implied, that the Executive may have against any member of
the Group arising out of the Executive's employment relationship, his service as
a director, employee or officer of any member of the Group and the termination
thereof, other than as provided by the Agreement.
/s/ Thomas E. Dooley
---------------------------
Thomas E. Dooley
VIACOM AND CBS TO MERGE IN LARGEST MEDIA TRANSACTION EVER
$80 Billion Merger Creates the World's Premier
Entertainment and Media Company
New York, New York, September 7, 1999 - Viacom Inc. (NYSE: VIA and VIAB) and CBS
Corporation (NYSE: CBS) today announced that their respective boards of
directors have unanimously approved a definitive agreement to merge the two
companies in the largest media transaction ever. The merger was announced by
Sumner Redstone, Chairman and Chief Executive Officer, Viacom Inc., and Mel
Karmazin, President and Chief Executive Officer, CBS Corporation.
The new company, which will be called Viacom, will be led by Sumner Redstone,
who will remain Chairman and CEO of Viacom. Mel Karmazin will become President
and Chief Operating Officer. All operations of the combined company will report
to Mr. Karmazin.
The new Viacom will be the world's leading company in the production, promotion
and distribution of entertainment, news, sports and music with unmatched content
and a portfolio of the world's most powerful brands. Extraordinary assets in
broadcast and cable television, a pre-eminent motion picture studio, the leading
radio and outdoor media company and a growing portfolio of Internet ventures
will create the largest seller of advertising across the media landscape. The
merger should also serve the public interest by helping to sustain the continued
vitality of free and universal broadcasting.
Mr. Redstone said: "This exciting merger creates the industry-leading
media company for today and a dynamic growth vehicle that will benefit
shareholders well into the future. Our union will be king - not just in content,
but in its distribution, marketing, and packaging. We will be global leaders in
every facet of the media and entertainment industry, financially strong from day
one, with an enviable stable of global brands. With Viacom and CBS performing at
the top of their games, the timing for this could not be better. Mel Karmazin is
an excellent manager and a gifted leader who shares my focus on building value
for shareholders. Together, with all the employees of Viacom and CBS, we will
create an even brighter future. Indeed, the creation of this formidable media
giant marks the beginning of a new era of explosive growth domestically and
around the world."
Mr. Karmazin said: "The new Viacom will be the first 21st Century media company,
with strong brands that lead the industry in all aspects of our operations, a
wealth of world-class content in film, television, radio, publishing and the
Internet, and the best distribution system in the business in both the
established and new media. It has been noted before that the fit between our two
companies is extraordinary. Each of us brings unique and complementary strengths
to the business mix, and opportunities for creative synergy and revenue
generation are many and exciting. I look forward to working with Sumner and the
great teams of people at both CBS and Viacom to build this new enterprise into
all it is capable of being, for the benefit of our shareholders, advertisers,
audiences and employees.
The future is virtually unlimited for this new and exciting company."
-more-
<PAGE>
-2-
Under the terms of the agreement, CBS shareholders will receive for each share
of CBS 1.085 shares of Viacom Class B shares, which at the September 3, 1999
closing price of $45.06 per Viacom Class B share, is valued at $48.89 per CBS
share. This transaction, which has an enterprise value of $80 billion, will be
tax free for shareholders of CBS and Viacom. On a pro forma basis, the new
Viacom would have generated approximately $21 billion in 1998 revenues and
approximately $4.0 billion in EBITDA. Mr. Redstone remains majority shareholder
of Viacom's Class A voting shares and will continue to control the company.
The union of the two companies offers a dramatic opportunity to drive revenues
and enhance shareholder value. Reaching the greatest number of viewers and
listeners of any media enterprise, spanning all ages and demographics, the new
Viacom will be the premier outlet for advertisers in the world. Content will be
driven and promoted across virtually all media segments, including broadcast and
cable television, radio and outdoor advertising, and new media. The company will
also be a pivotal player in the world of music. Through its Infinity Radio
stations and the branded promotional power of MTV, MTV2, VH1, CMT, TNN and over
the Internet, Viacom will reach more music fans than any other entity worldwide.
The scale of the enterprise will also enable the company to acquire programming
more efficiently and maximize the effectiveness of its sales force.
Subject to actions taken to obtain regulatory clearances, the merged company
will include:
o Industry-leading cable networks, each uniquely powerful in its own
target demographic, including MTV, Nickelodeon, VH1, TNN, CMT, MTV2, TV
Land, Home Team Sports and Midwest Sports Channel; pay channels
Showtime, The Movie Channel and FLIX, and interests in Comedy Central,
Noggin and Sundance Channel, and significant cable programming
operations worldwide;
o A majority interest in Infinity Broadcasting Corporation (NYSE: INF),
the premier radio and outdoor media company in the world;
o The largest television group in the nation, including the CBS
Television Network, the #1 broadcast network in the industry for the
1998-1999 television season, and stations in all top ten markets and 18
of the top 20 markets in the nation; with the potential for strong TV
duopolies in Philadelphia, Boston, Dallas and other top U.S. markets;
o Paramount Pictures, a leader in theatrical motion pictures since
1912, with more than 2,500 titles in its library, including such Oscar
winners as Forrest Gump, Braveheart and Titanic (the highest grossing
motion picture of all time);
-more-
<PAGE>
-3-
o Preeminent production and syndication operations, with CBS
Productions, Paramount Television, Eyemark Entertainment, Viacom
Productions, Spelling Television, and, subject to the completion of
CBS's pending acquisition, King
World Productions, Inc., among others, all contributing content, sales
and distribution capability;
o Simon & Schuster, a leading consumer book publisher, which, during
the last year, placed 64 titles on The New York Times Best Sellers
list;
o Blockbuster Video, the world's leading retailer of rentable home
videocassettes, DVDs and video games, with over 6,000 stores in 27
countries;
o Five theme parks, which entertain more than 13 million visitors
annually, and create another distribution channel for the company's
entertainment content;
o A significant and growing Internet presence, with brands on some of
the best-known sites on the Web, including cbs.sportsline.com,
cbs.marketwatch.com, mtv.com, SonicNet.com, vh1.com, and Nick.com.
Mr. Karmazin added: "The new company's opportunities for growth over the
Internet are also excellent. As you know, we have been dynamically expanding in
new media for the past year or so, adding the CBS brand to some of the most
visible sites on the Web in financial news, sports, entertainment and
e-commerce, among others. Viacom has its own growing Internet presence in a
variety of successful Web sites, most notably mtv.com and Nick.com, which will
join with our growing portfolio of Internet concerns. Here again, the powerful
brands of our two companies - from the CBS Television Network, CBS News and CBS
Sports to MTV, VH1, Nickelodeon and Paramount - will enable us to establish and
maintain the most dynamic and visible Internet strategy in the media business."
Viacom Deputy Chairmen Tom Dooley and Philippe Dauman, who will continue to
serve on the Board of Directors of the combined company, will leave the Company
on the effective date of the merger.
Mr. Redstone stated: "Viacom would be no more than a dream today if not for the
intelligence, persistence and insight of my two Deputy Chairmen, Philippe Dauman
and Tom Dooley. My thanks to both of them for their immeasurable contributions
over the last decade and beyond. We wouldn't be here if not for them. They will
continue to be my trusted friends and advisors on the Viacom Board."
The Board of Directors of the new company will consist of the current ten
members of the Viacom Board and eight members of the CBS Board as designated by
CBS.
The transaction is subject to certain closing conditions, including FCC
approval, expiration of the Hart-Scott-Rodino waiting period and the approval of
CBS Corporation shareholders, and is expected to close in the first half of
2000. CBS's pending acquisition of King World Productions Inc. was scheduled to
be voted on by its shareholders today. The King World shareholders meeting will
be postponed for what is expected to be a short period. The contemplated
split-off of Blockbuster is subject to the receipt of a revised IRS ruling.
-more-
<PAGE>
-4-
Morgan Stanley Dean Witter and Co. acted as financial advisor and Shearman &
Sterling acted as legal advisor to Viacom. Evercore Partners Inc. acted as
financial advisor and Cravath, Swaine & Moore acted as legal advisor to CBS.
Viacom Inc. is one of the world's largest entertainment companies and a leading
force in nearly every segment of the international media marketplace. The
operations of Viacom include Blockbuster, MTV Networks, Paramount Pictures,
Paramount Television, Spelling Television, Paramount Parks, Showtime Networks,
Simon & Schuster, 19 television stations, and international theatrical
exhibition operations. Viacom also owns half-interests in the Comedy Central
cable channel, the UPN television network and UCI, an international theatrical
exhibition chain. National Amusements, Inc., a closely held corporation which
operates approximately 1,300 motion picture screens in the U.S., the U.K. and
South America, is the parent company of Viacom.
CBS Corporation, the world's largest pure-play media company, is composed of CBS
Television, Cable and a majority stake in Infinity Broadcasting Corporation, its
radio and outdoor business. CBS Television is comprised of the CBS Television
Network and 15 CBS owned television stations, seven of which are in the Top 10
markets. CBS Cable consists of two country networks and regional sports
operations. Infinity Broadcasting Corporation operates 163 radio stations and
TDI, the Company's outdoor business. Infinity recently entered into an agreement
to acquire Outdoor Systems, Inc.
NOTE: CERTAIN STATEMENTS IN THIS PRESS RELEASE CONSTITUTE "FORWARD-LOOKING
STATEMENTS" WITHIN THE MEANING OF THE PRIVATE SECURITIES LITIGATION REFORM ACT
OF 1995. SUCH FORWARD-LOOKING STATEMENTS INVOLVE KNOWN AND UNKNOWN RISKS,
UNCERTAINTIES AND OTHER FACTORS WHICH MAY CAUSE THE ACTUAL RESULTS, PERFORMANCE
OR ACHIEVEMENTS OF CBS, VIACOM, OR THE COMBINED COMPANIES TO BE MATERIALLY
DIFFERENT FROM ANY FUTURE RESULTS, PERFORMANCE OR ACHIEVEMENTS EXPRESSED OR
IMPLIED BY SUCH FORWARD-LOOKING STATEMENTS. REFERENCE IS MADE TO THE COMPANIES'
ANNUAL REPORTS ON FORM 10-K FOR THE 1998 YEAR AND SUBSEQUENT REPORTS FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION FOR ADDITIONAL INFORMATION CONCERNING
SUCH RISKS AND UNCERTAINTIES.
* * *
Viacom Inc. CBS Corporation
----------- ---------------
Press Contacts: Carl Folta Gil Schwartz
212-258-6352 212-975-2121
Susan Duffy Dana McClintock
212-258-6347 212-975-1077
Analyst Contacts: Marty Shea Fred Reynolds
212-258-6515 212-975-4334
Rich Clark Farid Suleman
212-258-6350 212-314-9215
