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Exhibit 1.1
VIACOM INC.
VIACOM INTERNATIONAL INC.
7.700% SENIOR NOTES DUE 2010
7.875% SENIOR DEBENTURES DUE 2030
UNDERWRITING AGREEMENT
New York, New York
July 25, 2000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Salomon Smith Barney Inc.
As Representatives of the
several Underwriters
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Viacom Inc., a Delaware corporation (the "Company"), proposes to issue
and sell, subject to the terms and conditions stated herein, to Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch"), Salomon Smith Barney Inc.
("Salomon Smith Barney"), and the other underwriters named in Schedule I hereto
(the "Underwriters"), for whom Merrill Lynch and Salomon Smith Barney are acting
as representatives (the "Representatives"), $1,150,000,000 aggregate principal
amount of 7.700% Senior Notes due 2010 (the "Notes") and $500,000,000 aggregate
principal amount of 7.875% Senior Debentures due 2030 (the "Debentures"), both
guaranteed on an unsecured basis (the "Guarantee") by Viacom International Inc.,
a Delaware corporation (the "Guarantor"). The Notes and Debentures together with
the Guarantee are referred to collectively as the "Securities". The Securities
are to be issued under an indenture dated as of May 15, 1995 among the Company,
the Guarantor and Citibank, N.A., as successor to State Street Bank and Trust
Company, as successor to The First National Bank of Boston, as trustee (the
"Trustee"), as supplemented by the First Supplemental Indenture thereto, dated
as of May 24, 1995, the Second Supplemental Indenture and Amendment No. 1, dated
as of December 15, 1995, the Third Supplemental Indenture, dated as of July 22,
1996, and the Fourth Supplemental Indenture to be dated as of August 1, 2000 (as
so supplemented and amended, the "Indenture").
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1. REPRESENTATIONS AND WARRANTIES. The Company and the Guarantor
jointly and severally represent and warrant to the Underwriters, as of the date
hereof and as of the Closing Time (as defined below), as follows:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 33-53485) (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"1933 Act"), in respect of, among other things, the Securities. The Company
meets the requirements for use of Form S-3 under the 1933 Act. If the Company
files a registration statement with the Commission pursuant to Rule 462(b) of
the rules and regulations under the 1933 Act, then all references to the
Registration Statement shall also be deemed to include that Rule 462(b)
registration statement. The Registration Statement has been declared effective
by the Commission, and the Indenture has been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). The prospectus included in
the Registration Statement is hereinafter referred to as the "Base Prospectus."
The Base Prospectus, as it is to be supplemented by a prospectus supplement
specifically relating to the Securities pursuant to Rule 424 under the 1933 Act
("Rule 424") is hereinafter to referred to as the "Prospectus." The term
"Registration Statement" and "Prospectus" shall be deemed to include all
amendments to the date hereof and all documents incorporated by reference
therein. Any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, the Base Prospectus and the
Prospectus shall be deemed to refer to and include the filing of any document
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), after
the date of this Agreement, or the issue date of the Base Prospectus or the
Prospectus, as the case may be, deemed to be incorporated therein by reference.
The Registration Statement and the Indenture, at the time and date the
Registration Statement was declared effective by the Commission, complied, in
all material respects, with the applicable provisions of the 1933 Act and the
1939 Act, respectively, and the applicable rules and regulations of the
Commission thereunder. The Registration Statement, at the time and date it was
declared effective by the Commission, did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading. The Prospectus, at the
date it is filed with, or transmitted for filing to, the Commission pursuant to
Rule 424 and at Closing Time, will comply, in all material respects, with the
applicable provisions of the 1933 Act and will not contain an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to (i) that part of the Registration Statement
which shall constitute the Statement of Eligibility and Qualification (Form T-1)
of the Trustee under the 1939 Act or (ii) the information contained in or
omitted from the Registration Statement or the Prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with
information furnished to the Company in writing by or on behalf of any
Underwriter through the Representatives specifically for use in the Registration
Statement or the Prospectus.
(b) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, when they became
effective or at the time they were
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or hereafter are filed with the Commission, complied and will comply, as the
case may be, in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations").
(c) The accountants who certified the financial statements and any
supporting schedules thereto included in the Registration Statement and the
Prospectus are independent public accountants as required by the 1933 Act and
the applicable rules and regulations of the Commission thereunder (the "1933 Act
Regulations").
(d) The financial statements of the Company and CBS Corporation
included in the Registration Statement and the Prospectus, together with the
related schedules and notes, as well as those financial statements, schedules
and notes of any other entity included therein, present fairly the financial
position of the Company at the dates indicated, and the statement of operations,
stockholders' equity and cash flows of the Company and CBS Corporation for the
periods specified. Such financial statements have been prepared in conformity
with generally accepted accounting principles ("GAAP") applied on a consistent
basis throughout the periods involved. The supporting schedules, if any,
included in the Registration Statement and the Prospectus present fairly in
accordance with GAAP the information required to be stated therein. The
capitalization table, the summary financial data for Viacom, the summary
financial data for CBS, the summary unaudited pro forma financial data and the
ratio of earnings to fixed charges included in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with that
of the audited financial statements included in the Registration Statement and
the Prospectus. In addition, any pro forma financial statements of the Company,
CBS Corporation and their subsidiaries and the related notes thereto included in
the Registration Statement and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's rules and
guidelines with respect to pro forma financial statements and have been properly
compiled on the bases described therein, and the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions and circumstances referred to
therein.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
(A) there has been no material adverse change in the financial condition,
results of operations or business affairs of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), and (B) there have been no material
transactions entered into by the Company other than transactions contemplated by
the Registration Statement and Prospectus or transactions arising in the
ordinary course of business.
(f) The Company and the Guarantor have been duly organized and are
validly existing as corporations in good standing under the laws of the State of
Delaware and have corporate power and authority to own, lease and operate their
respective properties and to conduct their respective businesses as described in
the Prospectus and to enter into and perform their respective obligations under,
or as contemplated under, this Underwriting Agreement. The Company and the
Guarantor are duly qualified as foreign corporations to transact business and
are in good standing in each other jurisdiction in which such qualification is
required, whether by
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reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify or be in good standing would not result
in a Material Adverse Effect.
(g) Each "significant subsidiary" of the Company (as such term is
defined in Rule 1-02 of Regulation S-X promulgated under the 1933 Act), if any,
has been duly organized and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the failure to so
qualify or be in good standing would not result in a Material Adverse Effect.
(h) All of the outstanding shares of capital stock of the Guarantor
have been duly authorized and validly issued, are fully paid and non-assessable,
and are wholly owned by the Company, free and clear of any lien, adverse claim,
security interest, equity or other encumbrance except as described in the
Prospectus and except for such liens, adverse claims, security interests, equity
or other encumbrances that are immaterial to the Company and its subsidiaries
taken as a whole.
(i) This Underwriting Agreement has been duly authorized, executed and
delivered by the Company and the Guarantor.
(j) The Securities have been duly authorized by the Company and the
Guarantor, as the case may be, for issuance and sale pursuant to this
Underwriting Agreement. The Securities, when issued and authenticated in the
manner provided for in the Indenture and delivered against payment of the
consideration therefor specified in this Underwriting Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company and the Guarantor, as the case may
be, entitled to the benefits of the Indenture, enforceable against the Company
and the Guarantor, as the case may be, in accordance with their terms, except as
(i) the enforceability thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and (ii) rights of acceleration, if any, and the
availability of equitable remedies may be limited by equitable principles of
general applicability (regardless of whether considered in a proceeding in
equity or at law).
(k) The Indenture has been duly authorized, executed and delivered by
the Company and the Guarantor and, upon such authorization, execution and
delivery, will constitute a valid and binding agreement of the Company and the
Guarantor, enforceable against the Company and the Guarantor in accordance with
its terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and (ii) rights of
acceleration, if any, and the availability of equitable remedies may be limited
by equitable principles of general applicability (regardless of whether
considered in a proceeding in equity or at law).
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(l) The Securities conform in all material respects to the statements
relating thereto contained in the Prospectus.
(m) The issue and sale of the Securities and compliance by the Company
and the Guarantor with all of the provisions of the Securities, the Indenture
and this Underwriting Agreement and the consummation of the transactions
contemplated herein and therein do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company, the Guarantor or any of
their respective subsidiaries is a party or by which it or any of them may be
bound, or to which any of the assets, properties or operations of the Company,
the Guarantor or any of their respective subsidiaries is subject, nor will such
action result in any violation of the provisions of the charter or by-laws of
the Company, the Guarantor or any of their respective subsidiaries or any
applicable law, statute, rule, regulation, judgment, order, writ or decree of
any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company, the Guarantor or any of their respective
subsidiaries or any of their assets, properties or operations, except, in any
such case, for such conflicts, breaches or violations as would not result in a
Material Adverse Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company, the Guarantor or any of their respective subsidiaries.
(n) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or to the knowledge of the Company or the Guarantor
threatened, against or affecting the Company, the Guarantor or any of their
respective subsidiaries which is required to be disclosed in the Registration
Statement and the Prospectus (other than as stated therein), or which would
result in a Material Adverse Effect, or which would materially and adversely
affect the consummation of the transactions contemplated under the Prospectus,
this Underwriting Agreement or the Indenture or the performance by the Company
or the Guarantor of their respective obligations hereunder and thereunder.
(o) There are no contracts or documents which are required to be
described in the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto which have
not been so described and filed as required.
(p) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the due
authorization, execution and delivery by the Company or the Guarantor of this
Underwriting Agreement or for the performance by the Company or the Guarantor of
the transactions contemplated under the Prospectus, this Underwriting Agreement
or the Indenture, except such as have been already made, obtained or rendered,
as applicable, and as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters and except where the failure to obtain any such
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filing, authorization, approval, consent, license, order, registration,
qualification or decree will not result in a Material Adverse Effect.
(q) The Company is not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment company"
within the meaning of the Investment Company Act of 1940, as amended (the "1940
Act").
2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) SECURITIES. Subject to the terms and conditions set forth herein,
the Company agrees to issue and sell to each of the Underwriters, and each of
the Underwriters agrees, severally and not jointly, to purchase from the
Company, at a purchase price of 99.433% of the principal amount thereof in the
case of the Notes and 99.103% of the principal amount thereof in the case of the
Debentures, the principal amount of the Securities set forth opposite such
Underwriter's name on Schedule I hereto.
(b) PAYMENT. Payment of the purchase price for, and delivery of, the
Securities shall be made at the offices of Salomon Smith Barney, 388 Greenwich
Street, New York, New York 10013, or at such other place as shall be agreed upon
by the Representatives and the Company, at 9:00 A.M. (Eastern time) on August 1,
2000, or such other time not later than ten business days after such date as
shall be agreed upon by the Representatives and the Company (such time and date
of payment and delivery being herein called the "Closing Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the Representatives for the respective accounts of the Underwriters of the
Securities to be purchased by them. It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Securities which it has
severally agreed to purchase. The Representatives, individually and not as
representatives of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Securities to be purchased by any
Underwriter whose funds have not been received by the Closing Time but such
payment shall not relieve such Underwriter from its obligations hereunder.
Delivery of the Securities shall be made through the facilities of the
Depository Trust Company, Clearstream Luxembourg or Euroclear unless the
representatives shall otherwise instruct.
3. COVENANTS OF THE COMPANY AND THE GUARANTOR. The Company and the
Guarantor jointly and severally covenant with each Underwriter, as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company and the Guarantor, subject to Section 3(b), will comply with the
requirements of Rule 430A of the 1933 Act Regulations, Rule 434 of the 1933 Act
Regulations and Rule 462(b) of the 1933 Act Regulations, if and as applicable,
and will notify the Representatives immediately, and confirm the notice in
writing, of (i) the effectiveness of any post-effective amendment to the
Registration Statement or the filing of any supplement or amendment to the
Prospectus, (ii) the
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receipt of any comments from the Commission, (iii) any request by the Commission
for any amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information, and (iv) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of the Prospectus, or
of the suspension of the qualification of the Securities for offering or sale in
any jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes. The Company and the Guarantor will promptly effect the filings
necessary pursuant to Rule 424 and will take such steps as it deems necessary to
ascertain promptly whether the Prospectus transmitted for filing under Rule 424
was received for filing by the Commission and, in the event that it was not, it
will promptly file the Prospectus. The Company and the Guarantor will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. Until the Closing Time, the Company and the
Guarantor will give the Representatives notice of their intention to file or
prepare any amendment to the Registration Statement or any amendment, supplement
or revision to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or
otherwise, will furnish the Representatives with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Representatives or
counsel for the Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company and the Guarantor
has furnished or, if requested in writing by the Representatives, will deliver
to the Representatives and counsel for the Underwriters, without charge, signed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein
and documents incorporated or deemed to be incorporated by reference therein)
and signed copies of all consents and certificates of experts, and will also
deliver to the Representatives, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The Registration Statement and
each amendment thereto furnished to the Underwriters will be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
EDGAR, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company and the Guarantor will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus as such Underwriter may reasonably request.
The Prospectus and any amendments or supplements thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted by
Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company and the
Guarantor will comply with the 1933 Act and the 1933 Act Regulations and the
1934 Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Underwriting Agreement
and in the Registration Statement and the Prospectus. If at any time when the
Prospectus is required by the 1933 Act or the 1934 Act to be delivered in
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connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel for
the Underwriters or for the Company or the Guarantor, to amend the Registration
Statement in order that the Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or to
amend or supplement the Prospectus in order that the Prospectus will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company and the Guarantor will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements, and the Company and the Guarantor will
furnish to the Underwriters, without charge, such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company and the Guarantor will use
their best efforts, in cooperation with the Underwriters, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Representatives may
designate and to maintain such qualifications in effect for a period of not less
than one year from the date hereof; PROVIDED, HOWEVER, that the Company and the
Guarantor shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Securities have been so
qualified, the Company and the Guarantor will file such statements and reports
as may be required by the laws of such jurisdiction to continue such
qualification in effect for a period of not less than one year from the date
hereof.
(g) EARNINGS STATEMENT. The Company and the Guarantor will timely file
such reports pursuant to the 1934 Act as are necessary in order to make
generally available to its securityholders as soon as practicable an earnings
statement for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company and the Guarantor will use the net
proceeds received by it from the sale of the Securities in the manner specified
in the Prospectus under "Use of Proceeds".
(i) LISTING. The Company and the Guarantor will use their best efforts
to effect the listing of the Securities, prior to the Closing Time, on the
Luxembourg Stock Exchange.
(j) RESTRICTION ON SALE OF SECURITIES. Between the date of this
Underwriting Agreement and the Closing Time, neither the Company nor the
Guarantor will, without the prior written consent of the Representatives,
directly or indirectly, issue, sell, offer or contract to sell,
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grant any option for the sale of, any securities of the Company or the Guarantor
substantially similar to the Securities.
(k) REPORTING REQUIREMENTS. The Company and the Guarantor, during the
period when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company and the Guarantor will pay all expenses
incident to the performance of its obligations under this Underwriting
Agreement, including (i) the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits) as
originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Underwriting Agreement, any agreement
among Underwriters, the Indenture and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the Securities and
any certificates for the Securities to the Underwriters, including any transfer
taxes and any stamp or other duties payable upon the sale, issuance or delivery
of the Securities to the Underwriters, (iv) the fees and disbursements of the
Company's counsel, accountants and other advisors or agents (including transfer
agents and registrars), as well as the fees and disbursements of the Trustee and
its respective counsel, (v) the qualification of the Securities under state
securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation,
printing and delivery of the Blue Sky Survey, and any amendment thereto, (vi)
the printing and delivery to the Underwriters of copies of the Prospectus and
any amendments or supplements thereto, (vii) the fees charged by nationally
recognized statistical rating organizations for the rating of the Securities,
(viii) the fees and expenses incurred with respect to the listing of the
Securities, and (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review, if
any, by the National Association of Securities Dealers, Inc.
(the "NASD") of the terms of the sale of the Securities.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
Underwriters to purchase and pay for the Securities under this Underwriting
Agreement are subject to the accuracy of the representations and warranties of
the Company and the Guarantor contained in Section 1 hereof or in certificates
of any officer of the Company, the Guarantor or any of their respective
subsidiaries delivered pursuant to the provisions hereof, to the performance by
the Company and the Guarantor of their respective covenants and other
obligations hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. No stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act and no proceedings for that purpose shall have been instituted or be
pending or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A
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prospectus containing information relating to the description of the Securities,
the specific method of distribution and similar matters shall have been filed
with the Commission in accordance with Rule 424.
(b) OPINION OF COUNSEL FOR COMPANY. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Shearman & Sterling, counsel for the Company and the Guarantor, in form
and substance satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters, with
respect to such matters as the Underwriters may reasonably request.
(c) OPINION OF COUNSEL FOR UNDERWRITERS. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Hughes Hubbard & Reed LLP, counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters,
with respect to such matters as the Underwriters may reasonably request.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the financial condition, results of operations or
business affairs of the Company, the Guarantor and their respective subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, and the Representatives shall have received a certificate of the
President or a Vice President of the Company and the Guarantor and of the chief
financial officer or chief accounting officer of the Company and the Guarantor,
dated as of Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 are true
and correct with the same force and effect as though expressly made at and as of
the Closing Time, (iii) the Company and the Guarantor have complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Time, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted, are pending or, to the best of such
officer's knowledge, are threatened by the Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Underwriting Agreement, the Representatives shall have received from
PricewaterhouseCoopers LLP (and, with respect to the unaudited financial
statements of CBS Corporation for the quarter ended March 31, 2000, KPMG LLP) a
letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for
each of the other Underwriters, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
or incorporated by reference in the Registration Statement and the Prospectus.
(f) BRING-DOWN COMFORT LETTER. At Closing Time, the Representatives
shall have received from PricewaterhouseCoopers LLP (and, with respect to the
unaudited financial statements of CBS Corporation for the quarter ended March
31, 2000, KPMG LLP) a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (e)
of this Section 5, except that the specified date referred to shall be a date
not more than three business days prior to the Closing Time.
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(g) RATINGS. On or after the date hereof, there shall not have occurred
any downgrading in the rating of any debt securities of the Company or the
Guarantor by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the 1933 Act), or any public
announcement that any such organization has under surveillance or review its
rating of any debt securities of the Company or the Guarantor (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating).
(h) APPROVAL OF LISTING. At Closing Time, the Securities shall have
been approved for listing, subject only to official notice of issuance, on the
Luxembourg Stock Exchange.
(i) NO OBJECTION. If the Registration Statement for the offering of the
Securities has been filed with the NASD for review, the NASD shall not have
raised any objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(j) ADDITIONAL DOCUMENTS. At Closing Time, counsel for the Underwriters
shall have been furnished with such documents and opinions as they may require
for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of any
of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company and the
Guarantor in connection with the issuance and sale of the Securities as herein
contemplated shall be satisfactory in form and substance to the Representatives
and counsel for the Underwriters.
6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Company and the Guarantor
jointly and severally agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto) or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in the Base Prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d)
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below) any such settlement is effected with the written consent of the
Company and the Guarantor; and
(3) against any and all expense as reasonably incurred
(including the fees and disbursements of counsel chosen by the
Representatives), in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (1) or (2) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration
Statement (or any amendment thereto) or the Base Prospectus or the Prospectus
(or any amendment or supplement thereto).
(b) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter severally agrees to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto) or the Base Prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representatives expressly for use in the Registration Statement (or any
amendment thereto) or such Base Prospectus or the Prospectus (or any amendment
or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 6(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
PROVIDED, HOWEVER, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any
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<PAGE>
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(2) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
7. CONTRIBUTION. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, from the offering of the
Securities under this Underwriting Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the offering of the
Securities under this Underwriting Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of such
Securities (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus.
The relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
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<PAGE>
The Company, the Guarantor and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the aggregate principal amount of Securities set forth opposite
their respective names in Schedule I hereto, and not joint.
8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties and agreements contained in this Underwriting
Agreement or in certificates of officers of the Company, the Guarantor or any of
their respective subsidiaries submitted pursuant hereto shall remain operative
and in full force and effect, regardless of any investigation made by or on
behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of and payment for the Securities.
9. TERMINATION.
(a) UNDERWRITING AGREEMENT. The Representatives may terminate this
Underwriting Agreement, by notice to the Company, at any time at or prior to the
Closing Time, if (i) there has been, since the time of execution of this
Underwriting Agreement or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the financial condition,
results of operations or business affairs of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) there has occurred any material adverse change in the
financial markets in the United States or, if the
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Securities include securities denominated or payable in, or indexed to, one or
more foreign or composite currencies, in the international financial markets, or
any outbreak of hostilities or escalation thereof or other calamity or crisis or
any material change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make it, in
the judgment of the Representatives, impracticable to market the Securities or
to enforce contracts for the sale of the Securities, or (iii) trading in any
securities of the Company has been suspended or materially limited by the
Commission or the New York Stock Exchange or the American Stock Exchange, or if
trading generally on the New York Stock Exchange or the American Stock Exchange
has been suspended or materially limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by
either of said exchanges or by such system or by order of the Commission, the
NASD or any other governmental authority, or (iv) a banking moratorium has been
declared by either Federal or New York authorities or, if the Securities include
securities denominated or payable in, or indexed to, one or more foreign or
composite currencies, by the relevant authorities in the related foreign country
or countries.
(b) LIABILITIES. If this Underwriting Agreement is terminated pursuant
to this Section 9, such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof, and provided further
that Sections 1, 6, 7 and 8 shall survive such termination and remain in full
force and effect.
10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more of the
Underwriters shall fail at the Closing Time to purchase the Securities which it
or they are obligated to purchase under this Underwriting Agreement (the
"Defaulted Securities"), then the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representatives shall not have
completed such arrangements within such 24-hour period, then:
(a) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities does not exceed 10% of the aggregate
principal amount of Securities set forth on Schedule I hereto, the
non-defaulting Underwriters shall be obligated, severally and not
jointly, to purchase the full amount thereof in the proportions that
their respective underwriting obligations under this Underwriting
Agreement bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the number or aggregate principal amount, as the case
may be, of Defaulted Securities exceeds 10% of the aggregate principal
amount of Securities set forth on Schedule I hereto, the non-defaulting
Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
non-defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any non-defaulting
Underwriter or the Company.
No action taken pursuant to this Section 10 shall relieve any
defaulting Underwriter from liability in respect of its default.
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In the event of any such default which does not result in a termination
of this Underwriting Agreement, either the Representatives or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
the Prospectus or in any other documents or arrangements.
11. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representatives c/o Salomon Smith Barney at 388 Greenwich
Street, New York, New York 10013, attention of Tristram Collins; and notices to
the Company shall be directed to it at Viacom Inc., 1515 Broadway, New York, New
York 10036, attention of General Counsel.
12. PARTIES. This Underwriting Agreement shall inure to the benefit of
and be binding upon the Company, the Representatives and the other Underwriters
and their respective successors. Nothing expressed or mentioned in this
Underwriting Agreement is intended or shall be construed to give any person,
firm or corporation, other than the Underwriters and the Company and their
respective successors and the controlling persons and officers and directors
referred to in Sections 6 and 7 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this
Underwriting Agreement or any provision herein contained. This Underwriting
Agreement and all conditions and provisions hereof are intended to be for the
sole and exclusive benefit of the parties hereto and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
13. GOVERNING LAW AND TIME. THIS UNDERWRITING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
14. EFFECT OF HEADINGS. The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction
hereof.
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If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
Underwriting Agreement, along with all counterparts, will become a binding
agreement between each of the Underwriters and the Company in accordance with
its terms.
Very truly yours,
VIACOM INC.
By: /s/ Robert G. Freedline
-------------------------------------
Name: Robert G. Freedline
Title: Vice President and Treasurer
VIACOM INTERNATIONAL INC.
By: /s/ Robert G. Freedline
-------------------------------------
Name: Robert G. Freedline
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
SALOMON SMITH BARNEY INC.
By: SALOMON SMITH BARNEY INC.
By: /s/ Tristram Collins
-------------------------------------
Name: Tristram Collins
Title: Director
For themselves and the other several
Underwriters named in Schedule I to the
foregoing Agreement.
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Schedule I
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT PRINCIPAL AMOUNT
OF NOTES TO BE OF DEBENTURES TO BE
UNDERWRITER PURCHASED PURCHASED
----------- ---------------- -------------------
<S> <C> <C>
Merrill Lynch, Pierce, Fenner and Smith
Incorporated $460,000,000 $200,000,000
Salomon Smith Barney Inc. 460,000,000 200,000,000
Banc of America Securities LLC 63,250,000 27,500,000
Chase Securities Inc. 63,250,000 27,500,000
Deutsche Bank Securities Inc. 63,250,000 27,500,000
BNY Capital Markets, Inc. 20,125,000 8,750,000
FleetBoston Robertson Stephens Inc. 20,125,000 8,750,000
-------------- ------------
Total $1,150,000,000 $500,000,000
============== ============
</TABLE>
