VIACOM INC.
VIACOM INTERNATIONAL INC.
6.40% SENIOR NOTES DUE 2006
7.70% SENIOR NOTES DUE 2010
7.875% SENIOR DEBENTURES DUE 2030
PURCHASE AGREEMENT
New York, New York
January 9, 2001
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx Xxxxxx Inc.
As Representatives of the
several Initial Purchasers
c/x Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
World Financial Center
North Tower
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Viacom Inc. a Delaware corporation (the "Company"), confirms its agreement
with Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"),
Xxxxxxx Xxxxx Xxxxxx Inc. ("Xxxxxxx Xxxxx Xxxxxx"), and each of the other
Initial Purchasers named in Schedule A hereto (collectively, the "Initial
Purchasers", which term shall also include any initial purchaser substituted as
hereinafter provided in Section 12 hereof), for whom Xxxxxxx Xxxxx and Xxxxxxx
Xxxxx Xxxxxx are acting as representatives (in such capacity, the
"Representatives"), with respect to the issue and sale by the Company and the
purchase by the Initial Purchasers, acting severally and not jointly, of the
respective principal amounts set forth in said Schedule A of $400,000,000
aggregate principal amount of the Company's 6.40% Senior Notes due 2006,
$500,000,000 aggregate principal amount of the Company's 7.70% Senior Notes due
2010 (collectively, the "Notes") and $750,000,000 aggregate principal amount of
the Company's 7.875% Senior
Debentures due 2030 (the "Debentures") each of which is guaranteed on an
unsecured basis (the "Guarantee") by Viacom International Inc., a Delaware
corporation (the "Guarantor"). The Senior Notes due 2006, the Senior Notes due
2010 and the Senior Debentures due 2030 together with the Guarantees 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,
the Fourth Supplemental Indenture, dated as of August 1, 2000 and the Fifth
Supplemental Indenture to be dated as of January 17, 2001 (as so supplemented
and amended, the "Indenture").
The Company understands that the Initial Purchasers propose to make an
offering of the Securities on the terms and in the manner set forth herein and
agrees that the Initial Purchasers may resell, subject to the conditions set
forth herein, all or a portion of the Securities to purchasers ("Subsequent
Purchasers") at any time after this Agreement has been executed and delivered.
The Securities are to be offered and sold through the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "1933 Act"),
in reliance upon exemptions therefrom. Pursuant to the terms of the Securities
and the Indenture, Subsequent Purchasers may only resell or otherwise transfer
such Securities if such Securities are hereafter registered under the 1933 Act
or if an exemption from the registration requirements of the 1933 Act is
available (including the exemption afforded by Rule 144A ("Rule 144A") or
Regulation S ("Regulation S") of the rules and regulations promulgated under the
1933 Act by the Securities and Exchange Commission (the "Commission")).
The Company will prepare and will deliver to each Initial Purchaser, on
or about January 9, 2001 copies of a final offering memorandum dated January 9,
2001 (the "Offering Memorandum"), for use by such Initial Purchaser in
connection with its solicitation of purchases of, or offering of, the
Securities. "Offering Memorandum" means, with respect to any date or time
referred to in this Agreement, the most recent offering memorandum (the Offering
Memorandum, and any amendment or supplement thereto), including exhibits thereto
and any documents incorporated therein by reference, which has been prepared and
delivered by the Company to the Initial Purchasers in connection with their
solicitation of purchases of, or offering of, the Securities, and including any
supplement relating to the Securities distributed to the Luxembourg Stock
Exchange.
All references in this Agreement to financial statements and schedules and
other information which is "contained," "included" or "stated" in the Offering
Memorandum (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which
are incorporated by reference in the Offering Memorandum; and all references in
this Agreement to amendments or supplements to the Offering Memorandum shall be
deemed to mean and include the filing of any document under the Securities
Exchange Act of 1934 (the "1934 Act") which is incorporated by reference in the
Offering Memorandum.
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Holders of the Securities (including subsequent transferees) will have the
registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be executed on and dated as of the Closing
Time (as defined below). Pursuant to the Registration Rights Agreement, the
Company and the guarantor will agree, among other things, to file with the
Commission (i) a registration statement under the 1933 Act relating to, among
other things, exchange notes and exchange debentures identical in all material
respects to the Senior Notes due 2006, the Senior Notes due 2010 and the Senior
Debentures due 2030 (except that the exchange notes and exchange debentures
shall have been registered pursuant to such registration statement, will not
provide for any increase in the interest rate in connection with the failure to
file such registration statement, and will be issuable in denominations of
$1,000 and integral multiples thereof) to be offered in exchange for the Senior
Notes due 2006, the Senior Notes due 2010 and the Senior Debentures due 2030,
respectively (collectively, the "Exchange Securities") and, (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the
1933 Act relating to the resale by certain holders of the Senior Notes due 2006,
the Senior Notes due 2010 and the Senior Debentures due 2030.
SECTION 1. Representations and Warranties by the Company and the
Guarantor.
(a) Representations and Warranties. The Company and the Guarantor, jointly
and severally, represent and warrant to each Initial Purchaser as of the date
hereof and as of the Closing Time referred to in Section 2(b) hereof, and agrees
with each Initial Purchaser, as follows:
(i) Offering Memorandum. The Offering Memorandum does not, and at the
Closing Time 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 the information contained in or omitted from the Offering
Memorandum in reliance upon and in conformity with information furnished to
the Company in writing by or on behalf of any Initial Purchaser through the
Representatives specifically for use in the Offering Memorandum.
(ii) Incorporated Documents. The documents incorporated or deemed to
be incorporated by reference in the Offering Memorandum at the time they
were or hereafter are filed with the Commission complied and will comply,
as the case may be, in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations").
(iii) Independent Accountants. The accountants who certified the
financial statements and any supporting schedules included in the Offering
Memorandum are independent public accountants as required by the 1933 Act
and the applicable rules and regulations of the Commission thereunder (the
"1933 Act Regulations").
(iv) Financial Statements. The financial statements of the Company,
CBS Corporation and Infinity Broadcasting Corporation included in the
Offering Memorandum, 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
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financial position of the Company at the dates indicated, and the statement
of operations, stockholders' equity and cash flows of the Company, CBS
Corporation and Infinity Broadcasting 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 Offering Memorandum present fairly in accordance with GAAP
the information required to be stated therein. The capitalization table,
the summary financial data for the Company, the summary historical
financial data for CBS Corporation, the summary unaudited pro forma
combined financial data and the ratio of earnings to fixed charges included
in the Offering Memorandum present fairly the information shown therein and
have been compiled on a basis consistent with that of the audited financial
statements included in the Offering Memorandum. In addition, any pro forma
financial statements of the Company, CBS Corporation, Infinity Broadcasting
Corporation and their subsidiaries and the related notes thereto included
in the Offering Memorandum 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.
(v) No Material Adverse Change in Business. Since the respective dates
as of which information is given in the Offering Memorandum, 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 Offering Memorandum or
transactions arising in the ordinary course of business.
(vi) Good Standing. The Company and the Guarantor have been duly
organized and are validly existing as corporations in good standing under
the laws of the State of Delaware and have corporate power and authority to
own, lease and operate their respective properties and to conduct their
respective businesses as described in the Offering Memorandum and to enter
into and perform their respective obligations under, or as contemplated
under, this Agreement. The Company and the Guarantor are duly qualified as
foreign corporations to transact business and are in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failures to so qualify or be in good standing would not in
the aggregate result in a Material Adverse Effect.
(vii) Good Standing of Designated Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X promulgated under the 1933 Act), if any, has been duly
organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum and is duly qualified as a
foreign
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corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failures to so qualify or be in good standing would not in the
aggregate result in a Material Adverse Effect.
(viii) Capitalization. All of the outstanding shares of capital stock
of the Guarantor have been duly authorized and validly issued, are fully
paid and non-assessable, and are wholly owned by the Company, and are free
and clear of any lien, adverse claim, security interest, equity or other
encumbrance except as described in the Offering Memorandum 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.
(ix) Authorization of Agreements. This Agreement has been duly
authorized, executed and delivered by the Company and the Guarantor, and
the Registration Rights Agreement has been duly authorized by the Company
and the Guarantor and will have been duly executed and delivered at the
Closing Time.
(x) Authorization of the Securities and the Exchange Securities. The
Securities and the Exchange Securities have been duly authorized by the
Company and the Guarantor, as the case may be, for issuance and sale
pursuant to this Agreement. The Securities and the Exchange Securities,
when issued and authenticated in the manner provided for in the Indenture
and delivered against payment of the consideration therefor specified in
this 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).
(xi) Authorization of the Indenture. 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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(xii) Description of the Securities, the Exchange Securities and the
Indenture. The Securities, the Exchange Securities and the Indenture
conform in all material respects to the statements relating thereto
contained in the Offering Memorandum.
(xiii) Absence of Defaults and Conflicts. The issue and sale of the
Securities and the Exchange Securities and compliance by the Company and
the Guarantor with all of the provisions of the Securities, the Exchange
Securities, the Indenture, this Agreement and the Registration Rights
Agreement and the consummation of the transactions contemplated herein and
therein do not and will not, whether with or without the giving of notice
or passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company, the Guarantor or any of their
respective subsidiaries is a party or by which it or any of them may be
bound, or to which any of the assets, properties or operations of the
Company, the Guarantor or any of their respective subsidiaries is subject,
nor will such action result in any violation of the provisions of the
charter or by-laws of the Company, the Guarantor or any of their respective
subsidiaries or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company, the
Guarantor or any of their respective subsidiaries or any of their assets,
properties or operations, except, in any such case, for such conflicts,
breaches or violations as would not individually or in the aggregate result
in a Material Adverse Effect. As used herein, a "Repayment Event" means any
event or condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company, the Guarantor or any of their
respective subsidiaries.
(xiv) Absence of Proceedings. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or to the knowledge of
the Company or the Guarantor threatened, against or affecting the Company,
the Guarantor or any of their respective subsidiaries which is required to
be disclosed in the Offering Memorandum (other than as stated therein), or
which individually or in the aggregate would result in a Material Adverse
Effect, or which would materially and adversely affect the consummation of
the transactions contemplated under the Offering Memorandum, this
Agreement, the Registration Rights Agreement or the Indenture or the
performance by the Company or the Guarantor of their respective obligations
hereunder and thereunder.
(xv) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency,
domestic or foreign, is necessary or required for the due authorization,
execution and delivery by the Company or the Guarantor of this Agreement,
the Registration Rights Agreement or for the performance by the Company or
the Guarantor of the transactions contemplated under the Offering
Memorandum, this Agreement, the Registration Rights Agreement or the
Indenture, except such as have been already made, obtained or rendered, as
applicable, and as may be required under
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state securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Initial Purchasers or as may be
required in connection with any registration statement required pursuant to
the terms of the Registration Rights Agreement and except where the failure
to obtain any such filing, authorization, approval, consent, license,
order, registration, qualification or decree will not individually or in
the aggregate result in a Material Adverse Effect.
(xvi) Investment Company Act. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Offering
Memorandum will not be, an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 Act").
(xvii) Similar Offerings. Neither the Company nor the Guarantor nor
any of their affiliates, as such term is defined in Rule 501(b) under the
1933 Act (each, an "Affiliate"), has, directly or indirectly, solicited any
offer to buy, sold or offered to sell or otherwise negotiated in respect
of, or will solicit any offer to buy, sell or offer to sell or otherwise
negotiate in respect of, in the United States or to any United States
citizen or resident, any security which is or would be integrated with the
sale of the Securities in a manner that would require the Securities to be
registered under the 1933 Act.
(xviii) Rule 144A Eligibility. The Securities are eligible for resale
pursuant to Rule 144A and will not be, at the Closing Time, of the same
class as securities listed on a national securities exchange registered
under Section 6 of the 1934 Act, or quoted in a U.S. automated interdealer
quotation system.
(xix) No General Solicitation. None of the Company, the Guarantor,
their Affiliates or any person acting on any of their behalf (other than
the Initial Purchasers, as to whom the Company and the Guarantor make no
representation) has engaged or will engage, in connection with the offering
of the Securities, in any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the 1933 Act.
(xx) No Registration Required. Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in this
Section 1 and the procedures set forth in Section 6 hereof, it is not
necessary in connection with the offer, sale and delivery of the Securities
to the Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register the
Securities under the 1933 Act or to qualify the Indenture under the Trust
Indenture Act of 1939, as amended (the "1939 Act").
(xxi) Reporting Company. The Company is subject to the reporting
requirements of Section 13 or Section 15(d) of the 1934 Act.
(xxii) No Directed Selling Efforts. With respect to those Securities
sold in reliance on Regulation S, (A) none of the Company, the Guarantor,
their Affiliates or any person acting on any of their behalf (other than
the Initial Purchasers, as to whom the Company makes no representation) has
engaged or will engage in any directed selling
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efforts within the meaning of Regulation S and (B) each of the Company, the
Guarantor and their Affiliates and any person acting on any of their behalf
(other than the Initial Purchasers, as to whom the Company and the
Guarantor make no representation) has complied and will comply with the
offering restrictions requirement of Regulation S.
(b) Officer's Certificates. Any certificate signed by any officer of the
Company, the Guarantor or any of their subsidiaries delivered to the
Representatives or to counsel for the Initial Purchasers shall be deemed a
representation and warranty by the Company or the Guarantor, as the case may be,
to each Initial Purchaser as to the matters covered thereby.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
(a) Securities. Subject to the terms and conditions herein set forth, the
Company agrees to issue and sell to each of the Initial Purchasers and each of
the Initial Purchasers agrees, severally and not jointly, to purchase from the
Company, at the price set forth in Schedule B, the aggregate principal amount of
Securities set forth in Schedule A opposite the name of such Initial Purchaser,
plus any additional principal amount of Securities which such Initial Purchaser
may become obligated to purchase pursuant to the provisions of Section 12
hereof.
(b) Payment. Payment of the purchase price for, and delivery of the
Securities shall be made at the offices of Xxxxxxx Xxxxx Xxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall be agreed upon
by the Representatives and the Company, at 9:00 A.M. (Eastern time) on January
17, 2001 (unless postponed in accordance with the provisions of Section 12), 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 Initial Purchasers of the
Securities to be purchased by them. It is understood that each Initial Purchaser
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 Initial Purchasers, may (but shall not be obligated to)
make payment of the purchase price for the Securities to be purchased by any
Initial Purchaser whose funds have not been received by the Closing Time, but
such payment shall not relieve such Initial Purchaser from its obligations
hereunder. Delivery of the Securities shall be made through the facilities of
the Depository Trust Company ("DTC"), Clearstream Luxembourg or Euroclear unless
the Representatives shall otherwise instruct.
SECTION 3. Covenants of the Company and the Guarantor. The Company and the
Guarantor jointly and severally covenant with each Initial Purchaser as follows:
(a) Offering Memorandum. The Company and the Guarantor, as promptly as
possible, will furnish to each Initial Purchaser, without charge, such number of
copies of the Offering Memorandum as such Initial Purchaser may reasonably
request.
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(b) Notice and Effect of Material Events. The Company and the Guarantor
will immediately notify each Initial Purchaser, and confirm such notice in
writing, of (x) any filing made by the Company or the Guarantor of information
relating to the offering of the Securities with any securities exchange or any
other regulatory body in the United States or any other jurisdiction, and (y)
prior to the completion of the placement of the Securities by the Initial
Purchasers as evidenced by a notice in writing from the Initial Purchasers to
the Company, any material changes in or affecting the condition, financial or
otherwise, or the earnings or business affairs of the Company and its
subsidiaries considered as one enterprise which (i) make any statement in the
Offering Memorandum false or misleading or (ii) are not disclosed in the
Offering Memorandum as a result of which the Offering Memorandum omits to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. In such event or if
during such time any event shall occur as a result of which it is necessary, in
the reasonable opinion of any of the Company, its counsel, the Initial
Purchasers or counsel for the Initial Purchasers, to amend or supplement the
Offering Memorandum in order that the Offering Memorandum not include any 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
then existing, the Company will forthwith amend or supplement the Offering
Memorandum by preparing and furnishing to each Initial Purchaser an amendment or
amendments of, or a supplement or supplements to, the Offering Memorandum (in
form and substance satisfactory in the reasonable opinion of counsel for the
Initial Purchasers) so that, as so amended or supplemented, the Offering
Memorandum 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, in the
light of the circumstances existing at the time it is delivered to a Subsequent
Purchaser, not misleading.
(c) Amendment to Offering Memorandum and Supplements. Until the Closing
Time, the Company and the Guarantor will advise the Representatives promptly of
their intention to amend or supplement the Offering Memorandum, will furnish the
Representatives with copies of any such documents a reasonable amount of time
prior to their use, and will not use any such document to which the
Representatives or counsel to the Representatives shall reasonably object.
(d) Blue Sky Qualifications. The Company and the Guarantor will use their
best efforts, in cooperation with the Initial Purchasers, 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.
(e) DTC. The Company will cooperate with the Representatives and use its
reasonable best efforts to permit the Securities to be eligible for clearance
and settlement through the facilities of DTC.
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(f) Use of Proceeds. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Offering
Memorandum under "Use of Proceeds".
(g) Listing on Securities Exchange. The Company has caused the Securities,
and will use its best efforts to cause the Exchange Securities, to be listed or
admitted to trading on the Luxembourg Stock Exchange.
(h) Restriction on Sale of Securities. Between the date of this Agreement
and the Closing Time, neither the Company nor the Guarantor will, without the
prior written consent of the Representatives, directly or indirectly, issue,
sell, offer or contract to sell, grant any option for the sale of, any
securities of the Company or the Guarantor substantially similar to the
Securities.
(i) Reporting Requirements. Until the Closing Time, the Company and the
Guarantor, , will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
SECTION 4. Payment of Expenses. The Company and the Guarantor will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing, delivery to the Initial Purchasers of
the Offering Memorandum (including financial statements and any schedules or
exhibits and any document incorporated therein by reference) and of each
amendment or supplement thereto, (ii) the preparation, printing and delivery to
the Initial Purchasers of this Agreement, any Agreement among Initial
Purchasers, 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 certificates for
the Securities to the Initial Purchasers, including any transfer taxes, any
stamp or other duties payable upon the sale, issuance and delivery of the
Securities to the Initial Purchasers and any charges of DTC in connection
therewith, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors or agents (including transfer agents and registrars), as well
as the fees and disbursements of the Trustee and its respective counsel, (v) the
qualification of the Securities under state securities laws in accordance with
the provisions of Section 3(d) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Initial Purchasers in connection
therewith and in connection with the preparation, printing and delivery of the
Blue Sky Survey, and any amendment thereto, (vi) the fees charged by nationally
recognized statistical rating organizations for the rating of the Securities,
(vii) any fees and expenses payable in connection with the initial and continued
designation, if any, of the Securities as PORTAL securities under the PORTAL
Market Rules pursuant to NASD Rule 5322, and (viii) any fees and expenses
payable in connection with the initial and continued listing of the securities
on any non-U.S. securities exchange including the Luxembourg Stock Exchange, and
(ix) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Initial Purchasers 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.
SECTION 5. Conditions of Initial Purchasers' Obligations. The obligations
of the several Initial Purchasers hereunder 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
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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) Opinion of Counsel for Company. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxxxxx & Xxxxxxxx, counsel for the Company and the Guarantor,
in form and substance satisfactory to counsel for the Initial Purchasers,
together with signed or reproduced copies of such letter for each of the other
Initial Purchasers with respect to such matters as the Initial Purchasers may
reasonably request.
(b) Opinion of Counsel for Initial Purchasers. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the
Closing Time, of Xxxxxx Xxxxxxx & Xxxx LLP, counsel for the Initial Purchasers,
together with signed or reproduced copies of such letter for each of the other
Initial Purchasers with respect to such matters as the Initial Purchasers may
reasonably request.
(c) Officers' Certificate. At Closing Time, there shall not have been,
since the respective dates as of which information is given in the Offering
Memorandum, 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, and (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.
(d) Accountants' Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from PricewaterhouseCoopers
LLP (and, with respect to the financial statements of CBS Corporation and
Infinity Broadcasting Corporation for the year ended December 31, 1999, 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 Initial Purchasers, 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 Offering Memorandum.
(e) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from PricewaterhouseCoopers LLP (and, with respect to the
financial statements of CBS Corporation and Infinity Broadcasting 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 (d) 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.
(f) Ratings. On the date hereof or prior to the Closing Time, there shall
not have occurred any downgrading in the rating of any debt securities of the
Company or the Guarantor
-11-
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).
(g) Approval of Listing. At the Closing Time, the Securities and the
Exchange Securities shall have been approved for listing, subject only to
official notice of issuance, on the Luxembourg Stock Exchange.
(h) No Objection. If the Offering Memorandum 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 terms and arrangements relating to the
distribution of the securities by the Initial Purchasers.
(i) Registration Rights Agreement. At or prior to the Closing Time, the
Company and the Guarantor shall have entered into the Registration Rights
Agreement.
(j) Additional Documents. At the Closing Time, counsel for the Initial
Purchasers 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 Initial Purchasers.
SECTION 6. Subsequent Offers and Resales of the Securities.
(a) Offer and Sale Procedures. Each of the Initial Purchasers, the Company
and the Guarantor hereby establish and agree to observe the following procedures
in connection with the offer and sale of the Securities:
(i) Offers and Sales only to Qualified Institutional Buyers. Offers
and sales of the Securities shall only be made (A) to persons whom the
offeror or seller reasonably believes to be qualified institutional buyers,
as defined in Rule 144A under the 1933 Act ("Qualified Institutional
Buyers"), or (B) non-U.S. persons outside the United States, as defined in
Regulation S under the 1933 Act, to whom the offeror or seller reasonably
believes offers and sales of the Securities may be made in reliance upon
Regulation S under the 1933 Act. Each Initial Purchaser severally agrees
that it will not offer, sell or deliver any of the Securities in any
jurisdiction outside the United States except under circumstances that will
result in compliance with the applicable laws thereof, and that it will
take at its own expense whatever action is required to permit its purchase
and resale of the Securities in such jurisdictions.
(ii) No General Solicitation. No general solicitation or general
advertising (within the meaning of Rule 502(c) under the 1933 Act) will be
used in the United States in connection with the offering or sale of the
Securities.
-12-
(iii) Purchases by Non-Bank Fiduciaries. In the case of a non-bank
Subsequent Purchaser of a Security acting as a fiduciary for one or more
third parties, each third party shall, in the judgment of the applicable
Initial Purchaser, be a Qualified Institutional Buyer or a non-U.S. person
outside the United States.
(iv) Subsequent Purchaser Notification. Each Initial Purchaser will
take reasonable steps to inform, and cause each of its U.S. affiliates to
take reasonable steps to inform, persons acquiring Securities from such
Initial Purchaser or affiliate, as the case may be, in the United States
that the Securities (A) have not been and will not be registered under the
1933 Act, (B) are being sold to them without registration under the 1933
Act in reliance on Rule 144A or in accordance with another exemption from
registration under the 1933 Act, as the case may be, and (C) may not be
offered, sold or otherwise transferred except (1) to the Company, (2)
outside the United States in accordance with Regulation S, or (3) inside
the United States in accordance with (x) Rule 144A to a person whom the
seller reasonably believes is a Qualified Institutional Buyer that is
purchasing such Securities for its own account or for the account of a
Qualified Institutional Buyer to whom notice is given that the offer, sale
or transfer is being made in reliance on Rule 144A or (y) pursuant to
another available exemption from registration under the 1933 Act.
(v) Minimum Principal Amount. No sale of the Securities to any one
Subsequent Purchaser will be for less than U.S. $1,000 principal amount and
no Security will be issued in a smaller principal amount. If the Subsequent
Purchaser is a non-bank fiduciary acting on behalf of others, each person
for whom it is acting must purchase at least U.S. $1,000 principal amount
of the Securities.
(vi) Restrictions on Transfer. The transfer restrictions and the other
provisions set forth in the Offering Memorandum under the heading "Notice
to Investors", including the legend required thereby, shall apply to the
Securities except as otherwise agreed by the Company and the Initial
Purchasers.
(vii) Delivery of Offering Memorandum. Each Initial Purchaser will
deliver to each U.S. purchaser (or otherwise as may be required by
applicable law) of the Securities from such Initial Purchaser, in
connection with its original distribution of the Securities, a copy of the
Offering Memorandum, as amended and supplemented at the date of such
delivery.
(b) Covenants of the Company and the Guarantor. The Company and the
Guarantor jointly and severally covenant with each Initial Purchaser as follows:
(i) Integration. The Company and the Guarantor agree that they will
not and will cause their Affiliates not to, directly or indirectly, solicit
any offer to buy, sell or make any offer or sale of, or otherwise negotiate
in respect of, securities of the Company or the Guarantor of any class if,
as a result of the doctrine of "integration" referred to in Rule 502 under
the 1933 Act, such offer or sale would render invalid (for the purpose of
(i) the sale of the Securities by the Company to the Initial Purchasers,
(ii) the resale of the Securities by the Initial Purchasers to Subsequent
Purchasers or (iii) the resale of the
-13-
Securities by such Subsequent Purchasers to others) the exemption from the
registration requirements of the 1933 Act provided by Section 4(2) thereof
or by Rule 144A or by Regulation S thereunder or otherwise.
(ii) Rule 144A Information. The Company and the Guarantor agree that,
in order to render the Securities eligible for resale pursuant to Rule 144A
under the 1933 Act, while any of the Securities remain outstanding, they
will make available, upon request, to any holder of Securities or
prospective purchasers of Securities the information specified in Rule
144A(d)(4), unless the Company furnishes information to the Commission
pursuant to Section 13 or 15(d) of the 1934 Act.
(iii) Restriction on Resales. Until the expiration of two years after
the original issuance of the Securities, the Company and the Guarantor will
not, and will cause their Affiliates not to, resell any Securities which
are "restricted securities" (as such term is defined under Rule 144(a)(3)
under the 1933 Act), whether as beneficial owner or otherwise (except as
agent acting as a securities broker on behalf of and for the account of
customers in the ordinary course of business in unsolicited broker's
transactions).
(c) Qualified Institutional Buyer. Each Initial Purchaser severally and not
jointly represents and warrants to, and agrees with, the Company that it is a
"qualified institutional buyer" within the meaning of Rule 144A under the 1933
Act (a "Qualified Institutional Buyer") and an "accredited investor" within the
meaning of Rule 501(a) under the 1933 Act.
(d) Resale Pursuant to Rule 903 of Regulation S or Rule 144A. Each Initial
Purchaser understands that the Securities have not been and will not be
registered under the 1933 Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the 1933 Act or pursuant to an exemption from
the registration requirements of the 1933 Act. Each Initial Purchaser severally
represents and agrees, that, except as permitted by Section 6(a) above, it has
offered and sold Securities and will offer and sell Securities (i) as part of
their distribution at any time and (ii) otherwise until forty days after the
later of the date upon which the offering of the Securities commences and the
Closing Time, only in accordance with Rule 903 of Regulation S, Rule 144A under
the 1933 Act or another applicable exemption from the registration requirements
of the 1933 Act. Accordingly, neither the Initial Purchasers, their affiliates
nor any persons acting on their behalf have engaged or will engage in any
directed selling efforts with respect to Securities sold hereunder pursuant to
Regulation S, and the Initial Purchasers, their affiliates and any person acting
on their behalf have complied and will comply with the offering restriction
requirements of Regulation S. Each Initial Purchaser severally agrees that, at
or prior to confirmation of a sale of Securities pursuant to Regulation S it
will have sent to each distributor, dealer or person receiving a selling
concession, fee or other remuneration that purchases Securities from it or
through it during the restricted period a confirmation or notice to
substantially the following effect:
"The Securities covered hereby have not been registered under the United
States Securities Act of 1933 (the "Securities Act") and may not be
offered or sold within the United States or to or for the account or
benefit of U.S. persons (i) as part of their
-14-
distribution at any time and (ii) otherwise until forty days after the
later of the date upon which the offering of the Securities commenced and
the date of closing, except in either case in accordance with Regulation
S or Rule 144A under the Securities Act. Terms used above have the
meaning given to them by Regulation S."
Terms used in the above paragraph have the meanings given to them by
Regulation S.
(e) Additional Representations and Warranties of Initial Purchasers. Each
Initial Purchaser severally represents and agrees that it has not entered and
will not enter into any contractual arrangements with respect to the
distribution of the Securities, except with its affiliates or with the prior
written consent of the Company.
SECTION 7. Indemnification.
(a) Indemnification of Initial Purchasers. The Company and the Guarantor
jointly and severally agree to indemnify and hold harmless each Initial
Purchaser and each person, if any, who controls any Initial Purchaser within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Offering Memorandum,
or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section
7(d) below) any such settlement is effected with the written consent of the
Company and the Guarantor; and
(iii) against any and all expense as reasonably incurred (including
the fees and disbursements of counsel chosen by the Representatives), in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser through the Representatives expressly for use in the Offering
Memorandum (or any amendment thereto).
-15-
(b) Indemnification of Company. Each Initial Purchaser severally agrees to
indemnify and hold harmless the Company 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 Offering Memorandum in reliance upon
and in conformity with written information furnished to the Company by such
Initial Purchaser through the Representatives expressly for use in the Offering
Memorandum.
(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 7(a) above,
counsel to the indemnified parties shall be selected by the Representatives,
and, in the case of parties indemnified pursuant to Section 7(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section or Section 8
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 7(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
SECTION 8. Contribution. If the indemnification provided for in Section 7
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any
-16-
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 Initial Purchasers on
the other hand from the offering of the Securities pursuant to this 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 of the Initial Purchasers 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
Initial Purchasers on the other hand, in connection with the offering of the
Securities under this 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 received by the Initial Purchasers.
The relative fault of the Company on the one hand and the Initial
Purchasers 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 Initial Purchasers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, the Guarantor and the Initial Purchasers agree that it would
not be just and equitable if contribution pursuant to this Section were
determined by pro rata allocation (even if the Initial Purchasers 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. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
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, no Initial Purchaser shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities purchased and sold by it hereunder exceeds the
amount of any damages which such Initial Purchaser has otherwise been required
to pay by reason of 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, each person, if any, who controls an Initial
Purchaser within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same
-17-
rights to contribution as such Initial Purchaser, 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 Initial Purchasers' respective obligations to contribute pursuant to this
Section are several in proportion to the principal amount of Securities set
forth opposite their respective names in Schedule A hereto and not joint.
SECTION 9. Representations, Warranties and Covenants of the Initial
Purchasers.
(a) United Kingdom Selling Restrictions. Each Initial Purchaser agrees
that:
(i) it has not offered or sold and, prior to the expiry of the period
of six months from the issue date of the Securities, will not offer to sell
any Securities to persons in the United Kingdom, except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of their
business or otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the meaning
of the Public Offers of Securities Regulations 1995;
(ii) it has only issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with the
issuance of the Securities to a person who is of a kind described in
Article 11(3) of the Financial Services Act of 1986 (Investment
Advertisements) (Exemptions) Order of 1996 as amended, or is a person to
whom such document may otherwise lawfully be issued or pass on; and
(iii) it has complied and will comply with all applicable provisions
of the Financial Services Act with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United
Kingdom
(b) The Netherlands Selling Restrictions. Each Initial Purchaser represents
and agrees that it has not, directly or indirectly, offered or sold and will not
directly or indirectly offer or sell in the Netherlands any Securities other
than to persons who trade or invest in securities in the conduct of a profession
or business (which include banks, stockbrokers, insurance companies, pension
funds, other institutional investors and finance companies and treasury
departments of large enterprises.)
SECTION 10. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or any of its subsidiaries submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Initial Purchaser or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the Initial Purchasers.
SECTION 11. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this 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 Agreement or since the
respective dates as of which information is given in the Offering Memorandum,
any material adverse change in the financial condition, results of
-18-
operations or business affairs of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) there has occurred any material adverse change in the financial markets in
the United States or, if the Securities include securities denominated or
payable in, or indexed to, one or more foreign or composite currencies, in the
international financial markets, or any 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 Agreement is terminated pursuant to this Section,
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, 7,
8 and 10 shall survive such termination and remain in full force and effect.
SECTION 12. Default by One or More of the Initial Purchasers. If one or
more of the Initial Purchasers shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other Initial Purchasers, 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:
(i) 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 the Securities set forth on Schedule A hereto, the non-defaulting
Initial Purchasers shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Initial Purchasers, or
(ii) if the number or aggregate principal amount, as the case may be,
of Defaulted Securities exceeds 10% of the aggregate principal amount of
the Securities set forth on Schedule A hereto, the non-defaulting Initial
Purchasers 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
Initial Purchasers do not purchase all the Securities, this Agreement will
terminate without liability on the part of any non-defaulting Initial
Purchaser or the Company.
-19-
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a termination of
this 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 Offering Memorandum or in any other documents
or arrangements.
SECTION 13. 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 Initial
Purchasers shall be directed to the Representatives c/x Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, World Financial Center, North Tower, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of Xxxxx Xxxx; and notices to the
Company and the Guarantor shall be directed to it at Viacom Inc., 0000 Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, xxxxxxxxx of General Counsel.
SECTION 14. Parties. This Agreement shall inure to the benefit of and be
binding upon the Company, the Guarantor, the Initial Purchasers and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Initial Purchasers and the Company and their respective successors and
the controlling persons and officers and directors referred to in Sections 7 and
8 and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This 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 Initial
Purchaser shall be deemed to be a successor by reason merely of such purchase.
SECTION 15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 16. 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.
-20-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this Agreement, along with all counterparts, will become a binding agreement
between each of the Initial Purchasers, the Company and the Guarantor in
accordance with its terms.
Very truly yours,
VIACOM INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
VIACOM INTERNATIONAL INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Vice President and Treasurer
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
XXXXXXX XXXXX XXXXXX INC.
By: XXXXXXX XXXXX, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
Title: Authorized Signatory
For themselves and the other several Initial Purchasers named in Schedule A to
the foregoing Agreement.
-21-
SCHEDULE A
Principal
Principal Principal Amount of
Amount of Amount of Senior
Senior Notes Senior Notes Debentures
due 2006 to be due 2010 to due 2030 to be
Initial Purchaser Purchased be Purchased Purchased
-------------------------------------- -------------- ------------ --------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated $160,000,000 $200,000,000 $300,000,000
Xxxxxxx Xxxxx Xxxxxx Inc. 160,000,000 200,000,000 300,000,000
BNY Capital Markets, Inc. 20,000,000 25,000,000 37,500,000
Fleet Securities, Inc. 16,000,000 20,000,000 30,000,000
Mizuho International plc 16,000,000 20,000,000 30,000,000
Scotia Capital (USA) Inc. 8,000,000 10,000,000 15,000,000
Daiwa Securities SB Capital Markets Europe
Limited 6,666,667 8,333,333 12,500,000
Sanwa International plc 6,666,667 8,333,333 12,500,000
Tokyo-Mitsubishi International plc 6,666,666 8,333,334 12,500,000
------------ ------------ ------------
Total $400,000,000 $500,000,000 $750,000,000
============ ============ ============
Sch A-1
SCHEDULE B
1. The initial offering price for each of the Securities shall be as
follows:
Senior Notes due 2006: 99.797% of the principal amount thereof, plus
accrued interest, if any, from the date of issuance
Senior Notes due 2010: 106.014% of the principal amount thereof, plus
accrued interest, if any, from the date of issuance
Senior Debentures due 2030: 104.731% of the principal amount thereof,
plus accrued interest, if any, from the date of issuance
2. The purchase price to be paid by the Initial Purchasers for the
Securities shall be a percentage of the principal amount thereof as follows:
99.447% for the Senior Notes due 2006
105.564% for the Senior Notes due 2010
103.856% for the Senior Debentures due 2030
3. The interest rate on the Securities shall be as follows:
6.400% per annum for the Senior Notes due 2006
7.700% per annum for the Senior Notes due 2010
7.875% per annum for the Senior Debentures due 2030
Sch B-1