EXHIBIT 10.1
CONFORMED COPY
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VOTING AGREEMENT
By
NATIONAL AMUSEMENTS, INC.
(Stockholder)
and
CBS CORPORATION
Dated as of September 6, 1999
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VOTING AGREEMENT
VOTING AGREEMENT, dated as of September 6, 1999 (this
"Agreement"), by NATIONAL AMUSEMENTS, INC., a Maryland corporation (the
"Stockholder"), to and for the benefit of CBS CORPORATION, a Pennsylvania
corporation ("CBS").
WHEREAS, as of the date hereof, the Stockholder owns of
record and beneficially 93,658,988 shares of Class A Common Stock (the "Viacom
Class A Common Stock"; such shares, together with any shares of Viacom Class A
Common Stock and any other shares of voting stock of Viacom acquired by the
Stockholder prior to the termination of this Agreement being referred to herein
as the "Stockholder's Shares"), par value $.01 per share, of VIACOM, INC., a
Delaware corporation ("Viacom");
WHEREAS, concurrently with the execution of this Agreement,
CBS and Viacom are entering into an Agreement and Plan of Merger, dated as of
the date hereof (the "Merger Agreement"; capitalized terms used and not
otherwise defined herein shall have the respective meanings assigned to them in
the Merger Agreement), pursuant to which, upon the terms and subject to the
conditions thereof, CBS will be merged with and into Viacom (the "Merger"); and
WHEREAS, as a condition to the willingness of Viacom and CBS
to enter into the Merger Agreement, CBS has requested the Stockholder to agree,
and in order to induce CBS to enter into the Merger Agreement, the Stockholder
is willing to agree, to vote in favor of the Viacom Proposals (as defined in the
Merger Agreement), upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereby agree as follows:
Section 1. Voting of Stockholder's Shares. Until the
termination of this Agreement in accordance with the terms hereof, the
Stockholder hereby agrees that, at the Viacom Stockholders' Meeting or any other
meeting of the stockholders of Viacom, however called, and in any action by
written consent of the stockholders of Viacom, the Stockholder will vote all of
the Stockholder's Shares (i) in favor of the Viacom Proposals and (ii) against
any action, proposal or agreement that would or could reasonably be expected to
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of Viacom under the Merger Agreement or which would or
could reasonably be expected to result in any of the conditions to the Merger
Agreement not being fulfilled.
Section 2. No Inconsistent Agreements. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Merger Agreement, the Stockholder shall not enter into any voting agreement or
grant a proxy or power of attorney with respect to the Stockholder's Shares
which is inconsistent with this Agreement.
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Section 3. Transfer of Stockholder's Shares. The Stockholder
hereby covenants and agrees that the Stockholder shall not transfer record or
beneficial ownership of any of the Stockholder's Shares unless the transferee
unconditionally agrees in writing to be bound by the terms and conditions of
this Agreement.
Section 4. Representations and Warranties of Stockholder. The
Stockholder hereby represents and warrants to CBS as follows:
(a) Authority Relative to This Agreement. The Stockholder has
all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this
Agreement by the Stockholder and the consummation by the Stockholder
of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of the Stockholder, and no other
corporate proceedings on the part of the Stockholder are necessary to
authorize this Agreement or to consummate such transactions. This
Agreement has been duly and validly executed and delivered by the
Stockholder and, assuming the due authorization, execution and
delivery by CBS, constitutes a legal, valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance
with its terms.
(b) No Conflict. (i) The execution and delivery of this
Agreement by the Stockholder do not, and the performance of this
Agreement by the Stockholder shall not, (A) conflict with or violate
the Certificate of Incorporation or By-laws or equivalent
organizational documents of the Stockholder, (B) conflict with or
violate any law, rule, regulation, order, judgment or decree
applicable to the Stockholder or by which the Stockholder's Shares are
bound or affected or (C) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would
become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation
of a lien or encumbrance on any of the Stockholder's Shares pursuant
to, any note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which
the Stockholder is a party or by which the Stockholder or the
Stockholder's Shares are bound or affected, except, in the case of
clauses (B) and (C), for any such conflicts, violations, breaches,
defaults or other occurrences which would not prevent or delay the
performance by the Stockholder of its obligations under this
Agreement.
(ii) The execution and delivery of this Agreement by the
Stockholder do not, and the performance of this Agreement by the
Stockholder shall not, require any consent, approval, authorization or
permit of, or filing with or notification to, any Governmental Entity
except for applicable requirements, if any, of the Securities Exchange
Act of 1934, as amended, and except where the failure to obtain such
consents, approvals,
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authorizations or permits, or to make such filings or notifications,
would not prevent or delay the performance by the Stockholder of its
obligations under this Agreement.
(c) Title to the Shares. As of the date hereof, the
Stockholder is the record and beneficial owner of 93,658,988 shares of
Viacom Class A Common Stock. The Stockholder's Shares are all the
voting securities of Viacom owned, either of record or beneficially,
by the Stockholder. The Stockholder's Shares are owned free and clear
of all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, limitations on the Stockholder's voting
rights, charges and other encumbrances of any nature whatsoever. The
Stockholder has not appointed or granted any proxy, which appointment
or grant is still effective, with respect to the Stockholder's Shares.
Section 5. Termination. This Agreement shall terminate upon
the earlier to occur of (a) the Effective Time and (b) the termination of the
Merger Agreement in accordance with the terms thereof. No such termination of
this Agreement shall relieve any party hereto from any liability for any breach
of this Agreement prior to termination.
Section 6. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given or
made (and shall be deemed to have been duly given or made upon receipt) by
delivery in person, by facsimile, by courier service or by registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 6):
if to the Stockholder:
National Amusements, Inc.
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with a copy to:
Shearman & Sterling
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ O'▇. ▇▇▇▇▇▇, Esq. and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
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if to CBS:
CBS Corporation
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Executive Vice President and
General Counsel
with copies to:
Cravath, Swaine & ▇▇▇▇▇
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq. and
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Section 7. Severability. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
Law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated by this Agreement be consummated as
originally contemplated to the fullest extent possible.
Section 8. Entire Agreement; Assignment. This Agreement and
the Merger Agreement constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements and
undertakings, both written and oral, among the parties, or any of them, with
respect to the subject matter hereof. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise, by either of the parties
hereto without the prior written consent of the other party hereto. Any
purported assignment in violation of this Section 8 shall be void. Subject to
the preceding sentences of this Section 8, this Agreement will be binding upon,
inure to the benefit of, and be enforceable by, the parties hereto and their
respective successors and assigns.
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Section 9. Parties in Interest; Certain Events. This
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is intended to or
shall confer upon any other person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement. The Stockholder agrees that
this Agreement and the obligations hereunder shall attach to the Stockholder's
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of the Stockholder's Shares shall pass, whether by
operation of law or otherwise. In the event of any stock split, stock dividend,
merger, reorganization, recapitalization or other change in the capital
structure of Viacom affecting the capital stock of Viacom, or the acquisition of
additional shares of Viacom Class A Common Stock or other voting securities of
Viacom by the Stockholder, the number of Stockholder's Shares shall be adjusted
appropriately and this Agreement and the obligations hereunder shall attach to
any additional shares of Viacom Class A Common Stock or other voting securities
of Viacom issued to or acquired by the Stockholder.
Section 10. Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or equity.
Section 11. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Delaware, without
regard to any principles of conflicts of laws of such State.
Section 12. Consent to Jurisdiction. (a) Each of the
Stockholder and CBS hereby irrevocably submits to the exclusive jurisdiction of
the courts of the State of Delaware and to the jurisdiction of the United States
District Court for the State of Delaware, for the purpose of any action or
proceeding arising out of or relating to this Agreement and each of CBS and the
Stockholder hereby irrevocably agrees that all claims in respect to such action
or proceeding shall be heard and determined exclusively in any Delaware state or
federal court. Each of CBS and the Stockholder agrees that a final judgment in
any action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
(b) Each of CBS and the Stockholder irrevocably consents to
the service of the summons and complaint and any other process in any other
action or proceeding relating to the transactions contemplated by this
Agreement, on behalf of itself or its property, by personal delivery of copies
of such process to such party. Nothing in this Section 12 shall affect the right
of any party to serve legal process in any other manner permitted by law.
Section 13. Headings. The descriptive headings contained in
this Agreement are included for convenience of reference only and shall not
affect in any way the meaning or interpretation of this Agreement.
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Section 14. Amendments. This Agreement may be amended or
modified, and the terms and conditions hereof may be waived, only by a written
instrument signed by the parties hereto or, in the case of a waiver, by each
party waiving compliance.
Section 15. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
Section 16. WAIVER OF JURY TRIAL. EACH OF CBS AND THE
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF CBS AND THE
STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
THEREOF.
IN WITNESS WHEREOF, each of the parties hereto has caused
this Agreement to be executed as of the date first written above by their
respective officers thereunto duly authorized.
NATIONAL AMUSEMENTS, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman, President
& Chief Executive Officer
CBS CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer