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VOTING AGREEMENT
By
NATIONAL AMUSEMENTS, INC.
(Stockholder)
and
CBS CORPORATION
Dated as of September 6, 1999
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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
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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.
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
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(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,
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.
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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.
000 Xxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: General Counsel
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxxx O'X. Xxxxxx, Esq. and
Xxxxxxx X. Xxxx, Esq.
if to CBS:
CBS Corporation
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Executive Vice President and
General Counsel
with copies to:
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx, Esq. and
Xxxxx X. Xxxxxxx, 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
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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.
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.
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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.
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
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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.
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/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Chairman, President &
Chief Executive Officer
CBS CORPORATION
By /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President,
Chief Financial Officer