Exhibit 1.1
VIACOM INC.
VIACOM INTERNATIONAL INC.
6.40% SENIOR NOTES DUE 2006
6.625% SENIOR NOTES DUE 2011
PURCHASE AGREEMENT
New York, New York
May 10, 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 and
$1,000,000,000 aggregate principal amount of the Company's 6.625% Senior Notes
due 2011 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 and the Senior Notes due 2011
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, the Fifth Supplemental Indenture dated as of January 17,
2001 and the Sixth Supplemental Indenture to be dated as of May 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 May 10, 2001 copies of a final offering memorandum dated May 10, 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.
Holders of the Securities (including subsequent transferees) will have
the registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement") substantially in the same form as the
Registration Rights Agreement dated January 17, 2001, to be executed on and
dated as of the Closing Time (as defined below). Pursuant to the
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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 identical in all
material respects to the Senior Notes due 2006 and the Senior Notes due 2011
(except that the exchange notes 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 and the Senior Notes due 2011,
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
and the Senior Notes due 2011.
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 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
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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 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.
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(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).
(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
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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 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.
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(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 procedures and the representations and
warranties 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
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
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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 May 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.
(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
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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.
(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.
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(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 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.
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(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 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 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 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
- 11 -
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.
(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
12
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 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.
13
(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 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
14
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).
(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.
15
(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 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
16
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 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:
17
(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
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
18
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.
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.
19
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/ Xxxxx Xxxx
----------------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
For themselves and the other several Initial
Purchasers named in Schedule A to
the foregoing Agreement.
21
SCHEDULE A
Principal Amount of Senior
Notes due 2006 to be Principal Amount of Senior
Initial Purchaser Purchased Notes due 2011 to be Purchased
------------------------------------------- --------------------------- ------------------------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated $160,000,000 $400,000,000
Xxxxxxx Xxxxx Xxxxxx Inc. 160,000,000 400,000,000
Credit Suisse First Boston Corporation 16,000,000 40,000,000
Barclays Capital Inc. 16,000,000 40,000,000
Bear, Xxxxxxx & Co. Inc. 16,000,000 40,000,000
UBS Warburg LLC 16,000,000 40,000,000
Scotia Capital (USA) Inc. 8,000,000 20,000,000
Xxxxxxxx Capital Partners, L.P. 8,000,000 20,000,000
--------------------------- ------------------------------
Total $400,000,000 $1,000,000,000
=========================== ==============================
Sch A-1
SCHEDULE B
1. The initial offering price for each of the Securities shall be
as follows:
Senior Notes due 2006: 101.450% of the principal amount
thereof, plus accrued interest, if any, from the date of issuance
Senior Notes due 2011: 99.288% 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:
101.100% for the Senior Notes due 2006
98.838% for the Senior Notes due 2011
3. The interest rate on the Securities shall be as follows:
6.400% per annum for the Senior Notes due 2006
6.625% per annum for the Senior Notes due 2011
Sch B-1
