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EXHIBIT 4.13
FORM OF
VIACOM INTERNATIONAL INC.
PREFERRED STOCK GUARANTEE AGREEMENT
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Dated as of __________, 20__
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Table of Contents
Page
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.......................................................1
ARTICLE II
WAIVER OF EVENTS OF DEFAULT
SECTION 2.1 Events of Default; Waiver.........................................3
ARTICLE III
GUARANTEE
SECTION 3.1 Guarantee.........................................................3
SECTION 3.2 Waiver of Notice..................................................4
SECTION 3.3 Obligations Not Affected..........................................4
SECTION 3.4 Enforcement of Guarantee..........................................4
SECTION 3.5 Guarantee of Payment..............................................4
SECTION 3.6 Subrogation.......................................................5
SECTION 3.7 Reinstatement of Obligations......................................5
SECTION 3.8 Limitation of Guarantor's Liability...............................5
SECTION 3.9 Form of Guarantee.................................................5
ARTICLE IV
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 4.1 Limitation of Transactions........................................6
SECTION 4.2 Subordination.....................................................6
ARTICLE V
TERMINATION
SECTION 5.1 Termination.......................................................6
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Successors and Assigns............................................7
SECTION 6.2 Amendments........................................................7
SECTION 6.3 Notices...........................................................7
SECTION 6.4 Benefit...........................................................8
SECTION 6.5 Governing Law.....................................................8
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PREFERRED STOCK GUARANTEE AGREEMENT
This PREFERRED STOCK GUARANTEE AGREEMENT, dated as of , 20__ , (the
"Guarantee Agreement") is executed and delivered by Viacom International Inc., a
Delaware corporation (the "Guarantor"), for the benefit of the Holders (as
defined herein) from time to time of the Preferred Stock (as defined herein) of
Viacom Inc., a Delaware corporation (the "Issuer").
WHEREAS, pursuant to its Amended and Restated Certificate of
Incorporation (the "Certificate of Incorporation"), dated as of , 20__, the
Issuer is authorized to issue up to ____________ shares of [Series ____]
preferred stock (the "Preferred Stock"), of which ______ shares of Preferred
stock are being issued as of the date hereof.
WHEREAS, as incentive for the Holders to purchase Preferred Stock, the
Guarantor desires to irrevocably and unconditionally agree, to the extent set
forth herein, to pay to the Holders of the Preferred Stock the Guarantee
Payments (as defined herein) and to make certain other payments on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the purchase by the initial
purchasers thereof of Preferred Stock, which purchase the Guarantor hereby
agrees shall benefit the Guarantor, the Guarantor executes and delivers this
Guarantee Agreement for the benefit of the Holders from time to time of the
Preferred Stock.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
(a) Capitalized terms used in this Guarantee Agreement but not defined
in the preamble above have the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Guarantee Agreement has the same
meaning throughout;
(c) all references to "the Guarantee Agreement" or "this Guarantee
Agreement" are to this Guarantee Agreement as modified, supplemented or amended
from time to time;
(d) all references in this Guarantee Agreement to Articles and Sections
are to Articles and Sections of this Guarantee Agreement unless otherwise
specified;
(e) the masculine, feminine and neuter genders used herein shall
include the masculine, feminine and neuter genders; and
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(f) a reference to the singular includes the plural and vice versa.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Certificate of Designation" refers to the certificate filed by Viacom
Inc. with the Delaware Secretary of State with sets forth the designation,
rights and privileges of the applicable series of Preferred Stock with respect
to which a guarantee is granted hereunder.
"Common Stock" means the common stock of Viacom Inc., a Delaware
corporation.
"Covered Person" means any Holder of Preferred stock.
"Dividends" means the periodic dividends and other payments payable to
Holders of Preferred stock in accordance with the terms of the Preferred Stock
set forth in the applicable Certificate of Designation.
"Event of Default" means a default by the Guarantor on any of its
payment or other obligations under this Guarantee Agreement.
"Guarantees" means the guarantees relating to the Preferred Stock to be
issued by Viacom International Inc. as provided in this Guarantee Agreement.
"Guarantee Payments" shall mean the following payments or
distributions, without duplication, with respect to the Preferred Stock, to the
extent not paid or made by the Issuer: (i) the redemption price, including all
accrued and unpaid Dividends to the date of redemption (the "Redemption Price"),
with respect to the Preferred Stock called for redemption by the Issuer and (ii)
upon a voluntary or involuntary dissolution, winding-up or termination of the
Issuer, the aggregate of the liquidation amount and all accrued and unpaid
Dividends on the Preferred Stock to the date of payment, to the extent the
Issuer has funds available therefor (the "Liquidation Distribution").
"Holder" shall mean any holder, as registered on the books and records
of the Issuer, of any Preferred Stock with respect to which a guarantee is
issued hereunder; provided, however, that in determining whether the holders of
the requisite percentage of Preferred Stock have given any request, notice,
consent or waiver hereunder, "Holder" shall not include the Guarantor or any
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Guarantor.
"Majority of the Preferred Stock" means, Holder(s) of outstanding
Preferred Stock voting together as a single class, who are the record owners of
Preferred Stock, whose amount of shares of Preferred Stock represents more than
50% of the amount of all outstanding Preferred Stock.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated
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association, or government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"Preferred Stock" has the meaning set forth in the first WHEREAS clause
above.
"Redemption Price" means the amount payable on redemption of the
Preferred Stock in accordance with the terms set forth in the Certificate of
Designation establishing the terms of the Preferred Stock.
"66-2/3% of the Preferred Stock" means, Holder(s) of outstanding
Preferred Stock voting together as a single class who are the record owners of
Preferred Stock whose amount of shares of Preferred Stock represents 66-2/3% or
more of the amount of all outstanding Preferred Stock.
ARTICLE II
WAIVER OF EVENTS OF DEFAULT
SECTION 2.1 Events of Default; Waiver.
(a) Holders of Preferred Stock may by vote of at least a Majority of
the Preferred Stock, on behalf of the Holders of all Preferred Stock waive any
past Event of Default and its consequences. Upon such waiver, any such default
shall cease to exist, and any Event of Default arising therefrom shall be deemed
to have been cured, for every purpose of this Guarantee Agreement, but no such
waiver shall extend to any subsequent or other default or Event of Default or
impair any right consequent thereon.
(b) The right of any Holder of Preferred Stock to receive payment of
the Guarantee Payments in accordance with this Guarantee Agreement, or to
institute suit for the enforcement of any such payment, shall not be impaired
without the consent of each such Holder.
ARTICLE III
GUARANTEE
SECTION 3.1 Guarantee.
The Guarantor hereby fully and unconditionally guarantees to each
Holder the due and punctual payment of the Redemption Price or Liquidation
Distribution, as applicable, (without duplication of amounts theretofore paid by
the Issuer) when and as the same shall become due and payable, according to the
terms of the Preferred Stock, as set forth in the Certificate of Designation,
regardless of any defense, right of set-off or counterclaim which the Issuer may
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have or assert. In case of the failure of the Issuer or any successor thereto
punctually to pay any such Redemption Price or Liquidation Distribution, as
applicable, the Guarantor hereby agrees to cause any such payment to be made
punctually when and as the same shall become due and payable, as if such payment
were made by the Issuer. The Guarantor's obligation to make a Guarantee Payment
may be satisfied by direct payment of the required amounts by the Guarantor to
the Holders or by payment by the Issuer of such amounts to the Holders.
SECTION 3.2 Waiver of Notice.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
SECTION 3.3 Obligations Not Affected.
The Guarantor hereby agrees that its obligations under this Guarantee
Agreement shall be as if it were principal debtor and not merely surety and
shall be absolute and unconditional, irrespective of the identity of the
Company, the validity, regularity or enforceability of any Preferred Stock, the
absence of any action to enforce the same, any waiver or consent by the Holder
of any shares of Preferred Stock with respect to any terms thereof, the recovery
of any judgment against the Issuer or any action to enforce the same, or any
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Issuer with respect to the
Preferred Stock and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee Agreement notwithstanding the occurrence of any event referred to in
this Section 3.3.
SECTION 3.4 Enforcement of Guarantee.
Any Holder of Preferred Stock may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee Agreement,
without first instituting a legal proceeding against the Issuer or any other
Person.
SECTION 3.5 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and not merely
of collection. This Guarantee Agreement will not be discharged except by payment
of the: (i) Redemption Price or Liquidation Amount, as applicable, in full by
the Issuer, or (ii) Guarantee Payments in full (without duplication of amounts
theretofore paid by the Issuer) by the Guarantor.
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SECTION 3.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid by the Guarantor to the
Holders by the Guarantor under this Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at the time of
any such payment, any amounts are due and unpaid under this Guarantee Agreement.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
SECTION 3.7 Reinstatement of Obligations.
If any Holder of Preferred Stock is required by any court or otherwise
to return to the Issuer or the Guarantor, or any custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official acting in
relation to the Issuer or the Guarantor, any amount paid to such Holder in
respect of such Preferred Stock, the guarantee issued under this Guarantee
Agreement, to the extend theretofore discharged, shall be reinstated in full
force and effect.
SECTION 3.8 Limitation of Guarantor's Liability.
The Guarantor, and by its acceptance of the Preferred Stock each
Holder, hereby confirms that it is the intention of all such parties that in no
event shall any obligations of the Guarantor under the Preferred Stock
Guarantees constitute or result in a fraudulent transfer or conveyance for
purposes of, or result in a violation of, any Unites States federal, or
applicable United States state, fraudulent transfer or conveyance or similar
law. To effectuate the foregoing intention, in the event that the obligations of
the Guarantor under this Guarantee Agreement, would, but for this sentence,
constitute a fraudulent transfer or conveyance or violation, then the liability
of the Guarantor under this Guarantee Agreement shall be reduced to the extent
necessary to eliminate such fraudulent transfer or conveyance or violation under
the applicable fraudulent transfer or conveyance or similar law.
SECTION 3.9 Form of Guarantee.
The Guarantees to be endorsed upon the Preferred Stock shall be in
substantially the form set forth in Exhibit A attached hereto, with such
appropriate insertions, omissions, substitutions, and other variations as are
required or permitted hereby, and may include such letters, numbers or other
marks of identification and legends as may be required to comply with the rules
of any securities exchange or as may, consistently herewith, be determined by
the officers executing such Guarantees, as evidenced by their execution of such
Guarantees.
The definitive Guarantees to be endorsed upon the Preferred Stock shall
be printed,
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lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner provided that such
manner is permitted by the rules of any securities exchange on which the
Preferred Stock may be listed, all as determined by the officers executing the
Guarantees, as evidenced by their execution of such Guarantees.
ARTICLE IV
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 4.1 Limitation of Transactions.
So long as any shares of Preferred Stock remain outstanding, the
Guarantor will not declare or pay dividends on, or redeem, purchase, acquire or
make a distribution or liquidation payment with respect to, any of its common
stock or preferred stock or make any guarantee payment with respect thereto if
at such time the Guarantor shall be in default with respect to its Guarantee
Payments or other payment obligations hereunder; provided that (a) the Guarantor
will be permitted to pay accrued dividends (and cash in lieu of fractional
shares) upon the conversion of any preferred stock of the Guarantor as may be
outstanding from time to time, in each case in accordance with the terms of such
stock and (b) the foregoing will not apply to any stock dividends paid by the
Guarantor.
SECTION 4.2 Subordination.
This Guarantee Agreement will constitute an unsecured obligation of the
Guarantor and will rank (i) subordinate and junior in right of payment to all
other liabilities of the Guarantor, except those made pari passu or subordinate
by their terms, and (ii) senior to all capital stock now or hereafter issued by
the Guarantor and to any guarantee now or hereafter entered into by the
Guarantor in respect of any of its capital stock. The Guarantor's obligations
under this Guarantee Agreement will rank pari passu with respect to obligations
under other guarantee agreements which it may enter into from time to time to
the extent that such agreements shall be entered into in substantially the form
hereof and provide for comparable guarantees by the Guarantor of payment on
preferred stock issued by Viacom or any of its Affiliates.
ARTICLE V
TERMINATION
SECTION 5.1 Termination.
This Guarantee Agreement shall terminate and be of no further force and
effect upon full payment of the Redemption Price of all Preferred stock, or upon
the distribution of Common
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Stock in exchange for all of the Preferred Stock, or upon full payment of the
amounts payable in accordance with the Certificate of Designation upon
liquidation of the Issuer. Notwithstanding the foregoing, this Guarantee
Agreement will continue to be effective or will be reinstated, as the case may
be, if at any time any Holder must restore payment of any sums paid with respect
to the Preferred Stock or this Guarantee Agreement.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee Agreement
shall bind the successors, assignees, receivers, trustees and representatives of
the Guarantor and shall inure to the benefit of the Holders of shares of the
Preferred Stock then outstanding. Except in connection with a consolidation,
merger or sale involving the Guarantor in which the resulting entity agrees in
writing to be legally responsible for the guarantees issued under this Guarantee
Agreement, the Guarantor shall not assign its obligations hereunder.
SECTION 6.2 Amendments.
Except with respect to any changes which do not adversely affect the
rights of Holders (in which case no consent of Holders will be required), this
Guarantee Agreement may only be amended with the prior approval of the Holders
of not less than 66-2/3% of the Preferred Stock. The provisions of the
Certificate of Designation concerning meetings of Holders shall apply to the
giving of such approval.
SECTION 6.3 Notices.
Any notice, request or other communication required or permitted to be
given hereunder shall be in writing, duly signed by the party giving such
notice, and delivered, telecopied or mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below or such
other address as the Guarantor may give notice of to the Holders:
Viacom International Inc.
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Fax Number:
Attention: General Counsel and Secretary
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(b) if given to any Holder of Preferred Stock, at the address set forth
on the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in person, telecopied with receipt confirmed, or mailed by first class mail,
postage prepaid except that if a notice or other document is refused delivery or
cannot be delivered because of a changed address of which no notice was given,
such notice or other document shall be deemed to have been delivered on the date
of such refusal or inability to deliver.
SECTION 6.4 Benefit.
This Guarantee Agreement is solely for the benefit of the Holders and
is not separately transferable from the Preferred Stock.
SECTION 6.5 Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS).
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THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
VIACOM INTERNATIONAL INC.
By:
------------------------
Name:
Title:
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
BEFORE ME, the undersigned authority, on this day of , 20__, personally
appeared _________of Viacom International Inc. known to me (or proved to me by
introduction upon the oath of a person known to me) to be the person and officer
whose name is subscribed to the foregoing instrument, and acknowledged to me
that he/she executed the same as the act of such corporation for the purposes
and consideration herein expressed and in the capacity therein stated.
GIVEN UNDER MY HAND AND SEAL THIS DAY OF , 20__.
[SEAL]
--------------------------------
NOTARY PUBLIC, STATE OF NEW YORK
Print Name: ____________________
Commission Expires:_____________
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EXHIBIT A
FORM OF GUARANTEE
For value received, Viacom International Inc., a Delaware corporation
(the "Guarantor") hereby fully and unconditionally guarantees to each Holder the
due and punctual payment of the Redemption Price or Liquidation Distribution, as
applicable, (without duplication of amounts theretofore paid by the Issuer) when
and as the same shall become due and payable, according to the terms of the
Preferred Stock, as set forth in the Certificate of Designation, regardless of
any defense, right of set-off or counterclaim which the Issuer may have or
assert. In case of the failure of the Issuer or any successor thereto punctually
to pay any such Redemption Price or Liquidation Distribution, as applicable, the
Guarantor hereby agrees to cause any such payment to be made punctually when and
as the same shall become due and payable, as if such payment were made by the
Issuer. The Guarantor's obligation to make a Guarantee Payment may be satisfied
by direct payment of the required amounts by the Guarantor to the Holders or by
payment by the Issuer of such amounts to the Holders.
The Guarantor hereby waives notice of acceptance of this Guarantee
Agreement and of any liability to which it applies or may apply, presentment,
demand for payment, any right to require a proceeding first against the Issuer
or any other Person before proceeding against the Guarantor, protest, notice of
nonpayment, notice of dishonor, notice of redemption and all other notices and
demands.
The Guarantor hereby agrees that its obligations under this Guarantee
Agreement shall be as if it were principal debtor and not merely surety and
shall be absolute and unconditional, irrespective of the identity of the
Company, the validity, regularity or enforceability of any Preferred Stock, the
absence of any action to enforce the same, any waiver or consent by the Holder
of any shares of Preferred Stock with respect to any terms thereof, the recovery
of any judgment against the Issuer or any action to enforce the same, or any
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor. The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Issuer with respect to the
Preferred Stock and that the Guarantor shall be liable as principal and as
debtor hereunder to make Guarantee Payments pursuant to the terms of this
Guarantee Agreement notwithstanding the occurrence of any event referred to in
this Section 3.3.
Any Holder of Preferred Stock may institute a legal proceeding directly
against the Guarantor to enforce its rights under this Guarantee Agreement,
without first instituting a legal proceeding against the Issuer or any other
Person.
This Guarantee Agreement creates a guarantee of payment and not merely
of collection. This Guarantee Agreement will not be discharged except by payment
of the: (i) Redemption Price or Liquidation Amount, as applicable, in full by
the Issuer, or (ii) Guarantee Payments in full (without duplication of amounts
theretofore paid by the Issuer) by the Guarantor.
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The Guarantor shall be subrogated to all (if any) rights of the Holders
against the Issuer in respect of any amounts paid by the Guarantor to the
Holders by the Guarantor under this Guarantee Agreement; provided, however, that
the Guarantor shall not (except to the extent required by mandatory provisions
of law) be entitled to enforce or exercise any rights which it may acquire by
way of subrogation or any indemnity, reimbursement or other agreement, in all
cases as a result of payment under this Guarantee Agreement, if, at the time of
any such payment, any amounts are due and unpaid under this Guarantee Agreement.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders.
If any Holder of Preferred Stock is required by any court or otherwise
to return to the Issuer or the Guarantor, or any custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official acting in
relation to the Issuer or the Guarantor, any amount paid to such Holder in
respect of such Preferred Stock, the guarantee issued under this Guarantee
Agreement, to the extend theretofore discharged, shall be reinstated in full
force and effect.
The Guarantor, and by its acceptance of the Preferred Stock each
Holder, hereby confirms that it is the intention of all such parties that in no
event shall any obligations of the Guarantor under the Preferred Stock
Guarantees constitute or result in a fraudulent transfer or conveyance for
purposes of, or result in a violation of, any Unites States federal, or
applicable United States state, fraudulent transfer or conveyance or similar
law. To effectuate the foregoing intention, in the event that the obligations of
the Guarantor under this Guarantee Agreement, would, but for this sentence,
constitute a fraudulent transfer or conveyance or violation, then the liability
of the Guarantor under this Guarantee Agreement shall be reduced to the extent
necessary to eliminate such fraudulent transfer or conveyance or violation under
the applicable fraudulent transfer or conveyance or similar law.
All terms used in this Guarantee that are defined in the Preferred
Stock Guarantee Agreement to which this Guarantee relates shall have the
meanings assigned to them in such Preferred Stock Guarantee Agreement.
This Guarantee shall not be valid or obligatory for any purpose unless
and until the Preferred Stock to which this Guarantee relates is duly
authorized, issued and outstanding.
Reference is made to the Preferred Stock Guarantee Agreement for
further provisions with respect to this Guarantee.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS).
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