Exhibit 4.1
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VIACOM INC.
AND
THE BANK OF NEW YORK MELLON
Trustee
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FIFTH SUPPLEMENTAL
INDENTURE
Dated as of August 26, 2009
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To Indenture dated as of April 12,
2006
between
VIACOM INC.
and
THE BANK OF NEW YORK MELLON
Trustee
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4.375% Senior Notes due
2014
5.625% Senior Notes due 2019
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FIFTH SUPPLEMENTAL INDENTURE, dated
as of August 26, 2009, between VIACOM INC., a Delaware corporation
(the “ Company ”), and THE BANK OF NEW YORK
MELLON, a New York banking corporation, as trustee (the “
Trustee ”) to the Indenture, dated as of April 12,
2006, between the Company and the Trustee, as supplemented by the
First Supplemental Indenture, dated as of April 12, 2006, between
the Company and the Trustee, as further supplemented by the Second
Supplemental Indenture, dated as of June 16, 2006, between the
Company and the Trustee, as further supplemented by the Third
Supplemental Indenture, dated as of December 13, 2006, between the
Company and the Trustee, and as further supplemented by the Fourth
Supplemental Indenture, dated as of October 5, 2007, between the
Company and the Trustee (as so supplemented and as supplemented
hereby, the “ Indenture ”).
RECITALS OF THE COMPANY
WHEREAS, Section 901(5) of the
Indenture permits supplements thereto without the consent of
Holders of Securities to change any provisions of the Indenture
with respect to a series of Securities, where there are no
Securities Outstanding which are entitled to the benefit of such
provision; and
WHEREAS, as contemplated by Section
301 of the Indenture, the Company intends to issue from time to
time two new series of Securities, consisting of 4.375% Senior
Notes due 2014 (the “ 2014 Senior Notes ”) and
5.625% Senior Notes due 2019 (the “ 2019 Senior Notes
” and together with the 2014 Senior Notes, the “
Senior Notes ”) under the Indenture;
NOW, THEREFORE, THIS FIFTH
SUPPLEMENTAL INDENTURE WITNESSETH:
For consideration, the adequacy and
sufficiency of which are hereby acknowledged by the parties hereto,
each party agrees as follows, for the benefit of the other party
and for the equal and proportionate benefit of all Holders of the
Senior Notes:
SECTION
1. For the purpose of this Fifth
Supplemental Indenture, all terms used herein, unless otherwise
defined, shall have the meaning assigned to them in the Indenture,
as supplemented hereby.
SECTION
2. The Company shall issue the 2014 Senior
Notes in an aggregate principal amount of $600,000,000 and the 2019
Senior Notes in an aggregate principal amount of $250,000,000. The
forms of the 2014 Senior Notes and the 2019 Senior Notes are set
forth in Exhibit A and Exhibit B hereto, respectively. The 2014
Senior Notes and the 2019 Senior Notes shall include the legends
set forth on the face of Exhibit A and Exhibit B hereto,
respectively, substantially in the form so set forth, except to the
extent otherwise provided herein.
SECTION
3. The 2014 Senior Notes and the 2019 Senior
Notes shall each be issued initially in the form of one or more
permanent global Senior Notes, in registered form substantially in
the form set forth in Exhibit A and Exhibit B hereto, respectively
(respectively, the “ Global Securities ”),
registered in the name of the nominee of The Depository Trust
Company, as U.S. Depositary, deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as provided in Section 303 of the
Indenture. The aggregate principal amount of the Global Securities
may from time to time be increased or decreased by adjustments made
on the records of the Trustee, as custodian for the Depositary or
its nominee, in accordance with the instructions given by the
Holder thereof, as hereinafter provided.
SECTION 4. For the
sole benefit of the holders of the 2014 Senior Notes and the 2019
Senior Notes, Section 1101 of the Indenture is hereby deleted in
its entirety and replaced by the following Section 1101:
SECTION 1101. Optional Redemption
of Senior Notes . The Senior Notes will be redeemable, in
accordance with this Article Eleven, at any time, at the option of
the Company, in whole or from time to time in part, upon not less
than 30 nor more than 60 days’ prior notice, on any date
prior to their maturity at a Redemption Price equal to the sum of
100% of the principal amount thereof and the Make-Whole Amount and
any accrued and unpaid interest, to the Redemption Date (subject to
the rights of holders of record on the relevant Regular Record Date
that is on or prior to the Redemption Date to receive interest due
on the relevant Interest Payment Date). The Make-Whole Amount with
respect to such a redemption shall be calculated by an independent
investment banking institution of national standing appointed by
the Company. If the Company fails to so appoint an independent
investment banking institution at least 30 Business Days prior to
the Redemption Date, or if such institution is unwilling or unable
to calculate the Make-Whole Amount, the calculation of such
Make-Whole Amount shall be made by an independent investment
banking institution of national standing appointed by the Trustee.
If, for purposes of calculating the Make-Whole Amount, the
Reinvestment Rate shall not be available as set forth in the
definition thereof, the Reinvestment Rate shall be calculated by
interpolation or extrapolation of comparable rates selected by the
independent investment banking institution.
For purposes of this Section 1101,
the term “Make-Whole Amount” means the excess, if any,
of (i) the aggregate present value as of the Redemption Date of the
principal being redeemed and the amount of interest (exclusive of
interest accrued to the Redemption Date) that would have been
payable if redemption had not been made, determined by discounting,
on a semiannual basis, the remaining principal and interest at the
Reinvestment Rate described below (determined on the third business
day preceding the Redemption Date) from the dates on which the
principal and interest would have been payable if the redemption
had not been made, to the Redemption Date, over (ii) the aggregate
principal amount of such Senior Notes.
For purposes of this Section 1101,
the term “Reinvestment Rate” means (i) the arithmetic
mean of the yields under the heading “Week Ending”
published in the most recent Federal Reserve Statistical Release
H.15 (or any comparable successor
publication) under the caption
“Treasury Constant Maturities” for the maturity
(rounded to the nearest month) corresponding to the remaining life
to Maturity, as of the payment date of the principal being redeemed
or paid, plus (ii) 0.35%. If no maturity exactly corresponds to the
Maturity, yields for the two published maturities most closely
corresponding to the Maturity shall be so calculated and the
Reinvestment Rate shall be interpolated or extrapolated on a
straight-line basis, rounding to the nearest month. The most recent
Federal Reserve Statistical Release H.15 published prior to the
date of determination of the Make-Whole Amount shall be used for
purposes of calculating the Reinvestment Rate.
SECTION 5. For the
sole benefit of the holders of the Senior Notes, Section 101 of the
Indenture is hereby amended by adding the following definitions,
each in appropriate alphabetical order:
“Below Investment Grade Rating
Event” with respect to the 2014 Senior Notes or the 2019
Senior Notes means that such respective series of Senior Notes
become rated below Investment Grade by all of the Rating Agencies
on any date from the date of the public notice of an arrangement
that results in a Change of Control until the end of the 60-day
period following public notice of the occurrence of a Change of
Control (which period shall be extended so long as the rating of
such series of Senior Notes is under publicly announced
consideration for possible downgrade by any of the Rating
Agencies); provided that a Below Investment Grade Rating Event
otherwise arising by virtue of a particular reduction in rating
shall not be deemed to have occurred in respect of a particular
Change of Control (and thus shall not be deemed a Below Investment
Grade Rating Event for purposes of the definition of Change of
Control Repurchase Event hereunder) if the Rating Agencies making
the reduction in rating to which this definition would otherwise
apply do not announce or publicly confirm or inform the Trustee in
writing at its request that the reduction was the result, in whole
or in part, of any event or circumstance comprised of or arising as
a result of, or in respect of, the applicable Change of Control
(whether or not the applicable Change of Control shall have
occurred at the time of the Below Investment Grade Rating
Event).
“Change of Control”
means the occurrence of any of the following:
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(1)
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the direct or indirect sale, transfer,
conveyance or other disposition (other than by way of merger or
consolidation), in one or a series of related transactions, of all
or substantially all of the properties or assets of the Company and
those of the subsidiaries of the Company, taken as a whole, to any
“person” (individually and as that term is used in
Section 13(d)(3) and Section 14(d)(2) of the Exchange Act), other
than the Company or one of its Affiliates;
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(2)
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the first day on which a majority of the members
of the Board of Directors of the Company are not Continuing
Directors;
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(3)
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the consummation of any transaction or series of
related transactions (including, without limitation, any merger or
consolidation) the result of
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which is that any
“person” (individually and as that term is used in
Section 13(d)(3) and Section 14(d)(2) of the Exchange Act), other
than the Company, one of its subsidiaries or Redstone Family
Members, becomes the beneficial owner, directly or indirectly, of
more than 50% of the Voting Stock of the Company, and following
such transaction or transactions, Redstone Family Members
beneficially own less than 50% of the Voting Stock of the Company,
in each case, measured by voting power rather than number of
shares; or
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(4)
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the consummation of a so-called “going
private/Rule 13e-3 Transaction” that results in any of the
effects described in paragraph (a)(3)(ii) of Rule 13e-3 under the
Exchange Act (or any successor provision) with respect to each
class of the Company’s common stock, following which Redstone
Family Members beneficially own, directly or indirectly, more than
50% of the Voting Stock of the Company, measured by voting power
rather than the number of shares.
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As used in this definition of
“Change of Control,” an “Affiliate” of the
Company means any Person directly or indirectly controlling,
controlled by or under direct or indirect common control with the
Company, or directly or indirectly controlled by a Redstone Family
Member, and “Voting Stock,” as applied to stock of any
Person, means shares, interests, participations or other
equivalents in the equity interest (however designated) in such
Person having ordinary voting power for the election of a majority
of the directors (or the equivalent) of such Person, other than
shares, interests, participations or other equivalents having such
power only by reason of the occurrence of a contingency.
“Change of Control
Offer” has the meaning assigned in Section 1108.
“Change of Control
Price” has the meaning assigned in Section 1108.
“Change of Control Repurchase
Event” in respect of the 2014 Senior Notes or the 2019 Senior
Notes means the occurrence of both a Change of Control and a Below
Investment Grade Rating Event in respect of such series of Senior
Notes.
“Continuing Directors”
means, as of any date of determination, any member of the Board of
Directors of the Company who:
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(1)
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was a member of such Board of Directors on the
first date that any of the Senior Notes were issued; or
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(2)
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was nominated for election or elected to the
Board of Directors of the Company (i) with the approval of Redstone
Family Members representing not less than 50% of the Voting Stock
of the Company, measured by voting power rather than number of
shares, or (ii) with the approval of a majority of the Continuing
Directors who were members of the Board of Directors of the Company
at the time of such nomination or election.
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“Investment Grade” means
a rating of Baa3 or better by Moody’s (or its equivalent
under any successor rating categories of Moody’s), BBB- or
better by S&P (or its equivalent under any successor rating
categories of S&P) or BBB- or better by Fitch (or its
equivalent under any successor rating categories of Fitch) (or, in
each case, if such Rating Agency ceases to rate the 2014 Senior
Notes or the 2019 Senior Notes, as the case may be, for reasons
outside of the Company’s control, the equivalent investment
grade credit rating from any Rating Agency selected by the Company
as a replacement Rating Agency).
“Redstone Family
Members” includes only the following persons: (i) Mr. Sumner
Redstone, (ii) the estate of Mr. Redstone; (iii) each descendant of
Mr. Redstone or spouse or former spouse of Mr. Redstone and their
respective estates, guardians, conservators or committees; (iv) any
spouse or former spouse of Mr. Redstone; (v) each “Family
Controlled Entity” (as defined below); and (vi) the trustees,
in their respective capacities as such, of each “Family
Controlled Trust” (as defined below). The term “Family
Controlled Entity” means (i) any not-for-profit corporation
if more than 50% of its board of directors is composed of Redstone
Family Members; (ii) any other corporation if more than 50% of the
value of its outstanding equity is owned by Redstone Family
Members; (iii) any partnership if more than 50% of the value of its
partnership interests are owned by Redstone Family Members; and
(iv) any limited liability or similar company if more than 50% of
the value of the company is owned by Redstone Family Members. The
term “Family Controlled Trust” includes certain trusts
existing on August 19, 2009 and any other trusts the primary
beneficiaries of which are Redstone Family Members, spouses of
Redstone Family Members and/or charitable organizations, provided
that if the trust is a wholly charitable trust, more than 50% of
the trustees of such trust consist of Redstone Family
Members.
“Fitch” means Fitch
Ratings, Ltd.
“Moody’s” means
Moody’s Investors Service, Inc.
“Rating Agency”
means:
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(1)
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each of Moody’s, S&P and Fitch;
and
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(2)
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if any of Moody’s, S&P or Fitch ceases
to rate the 2014 Senior Notes or 2019 Senior Notes, as the case may
be, or fails to make a rating of the 2014 Senior Notes or the 2019
Senior Notes, as the case may be, publicly available for reasons
outside of the Company’s control, a “nationally
recognized statistical rating organization” within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected
by the Company as a replacement agency for any or all of
Moody’s, S&P or Fitch, as the case may be.
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“S&P” means Standard
& Poor’s Ratings Services, a division of The McGraw-Hill
Companies, Inc.
SECTION 6. For the
sole benefit of the holders of the Senior Notes, the following
Section 1108 is hereby added to the Indenture:
SECTION 1108. Change of
Control . (a) Upon the occurrence of a Change of Control
Repurchase Event in respect of the 2014 Senior Notes or the 2019
Senior Notes, the Company shall make an offer to each holder of
2014 Senior Notes or 2019 Senior Notes to repurchase all or any
part (equal to $2,000 or an integral multiple of $1,000 in excess
thereof) of such holder’s 2014 Senior Notes or 2019 Senior
Notes pursuant to the offer described in this Section 1108 (the
“Change of Control Offer”) at a purchase price equal to
101% of the aggregate principal amount thereof plus accrued and
unpaid interest, if any, to the date of purchase (the “Change
of Control Price”). Within 30 days following any Change of
Control Repurchase Event in respect of the 2014 Senior Notes or the
2019 Senior Notes, at the option of the Company, prior to any
Change of Control, but after the public announcement of the Change
of Control, the Company shall mail a notice to each holder
describing the transaction or transactions that constitute or may
constitute the Change of Control Repurchase Event and offering to
repurchase the 2014 Senior Notes or the 2019 Senior Notes, as the
case may be, on the payment date specified in the notice, which
date will be no earlier than 30 days and no later than 60 days from
the date such notice is mailed. The notice shall, if mailed prior
to the date of consummation of the Change of Control, state that
the offer to repurchase is conditioned on the Change of Control
Repurchase Event occurring on or prior to the payment date
specified in the notice.
(b) The
Company shall comply with the requirements of Rule 14e-1 under the
Exchange Act and any other securities laws and regulations to the
extent those laws and regulations are applicable in connection with
the repurchase of the 2014 Senior Notes or the 2019 Senior Notes as
a result of a Change of Control Repurchase Event. To the extent
that the provisions of any securities laws or regulations conflict
with the Change of Control Repurchase Event provisions of the
Senior Notes, the Company shall comply with the applicable
securities laws and regulations and shall not be deemed to have
breached its obligations under the Change of Control Repurchase
Event provisions of the Senior Notes by virtue of such
conflict.
(c) On
the Change of Control Repurchase Event payment date, the Company
shall, to the extent lawful:
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(1)
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accept for payment all 2014 Senior Notes and
2019 Senior Notes or portions of 2014 Senior Notes and 2019 Senior
Notes properly tendered pursuant to the Company’s
offer;
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(2)
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deposit with the paying agent an amount equal to
the aggregate purchase price in respect of all 2014 Senior Notes
and 2019 Senior Notes or portions of 2014 Senior Notes and 2019
Senior Notes properly tendered; and
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(3)
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deliver or cause to be delivered to the Trustee
the 2014 Senior Notes and 2019 Senior Notes properly accepted,
together with an officers’ certificate
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stating the aggregate principal
amount of the 2014 Senior Notes and 2019 Senior Notes being
purchased by the Company.
(d) The
Paying Agent shall promptly pay, from funds deposited by the
Company for such purpose, to each holder of 2014 Senior Notes or
2019 Senior Notes properly tendered the purchase price for the 2014
Senior Notes or the 2019 Senior Notes, and the Trustee shall
promptly authenticate and mail (or cause to be transferred by
book-entry) to each holder a new note equal in principal amount to
any unpurchased portion of 2014 Senior Notes or 2019 Senior Notes
surrendered.
(e) The
Company shall not be required to make an offer to repurchase the
2014 Senior Notes or 2019 Senior Notes upon a Change of Control
Repurchase Event if a third party makes an offer in the manner, at
the times and otherwise in compliance with the requirements for an
offer made by the Company and such third party purchases all 2014
Senior Notes and 2019 Senior Notes properly tendered and not
withdrawn under its offer.
SECTION 7. For the
sole benefit of the holders of the Senior Notes, the following
Section 305A is hereby added to the Indenture:
SECTION 305A. Book-Entry
Provisions for Global Securities . (a) Each Global
Security initially shall (i) be registered in the name of the
Depositary for such Global Security or the nominee of such
Depositary, (ii) be delivered to the Trustee, as custodian for such
Depositary, and (iii) bear legends as set forth on the face of the
form of the 2014 Senior Note or of the form of the 2019 Senior
Note, as applicable.
Members of, or Participants in, the
Depositary (“ Agent Members ”) shall have no
rights under this Indenture with respect to any Global Security
held on their behalf by the Depositary, or the Trustee as its
custodian, or under such Global Security, and the Depositary may be
treated by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company
or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair,
as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a
holder of any Security.
(b) Transfers
of a Global Security shall be limited to transfers of such Global
Security in whole, but not in part, to the Depositary, its
successors or their respective nominees. Transfers of interests in
one Global Security to parties who will hold the interests through
the same Global Security will be effected in the ordinary way in
accordance with the rules and operating procedures of the
applicable Depositary. The provisions of the “Operating
Procedures of the Euroclear System” and “Terms and
Conditions Governing Use of Euroclear” of Euroclear and the
“General Terms and Conditions of Clearstream” and
“Customer Handbook” of Clearstream shall be applicable
to interests in the Global Securities that are held by Agent
Members through Euroclear and Clearstream.
(c) Any
beneficial interest in one of the Global Securities that is
transferred to a person who takes delivery in the form of an
interest in another Global Security will, upon transfer, cease to
be an interest in such Global Security and become an interest in
such other Global Security and, accordingly, will thereafter be
subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Security
for so long as it remains such an interest.
(d) In
connection with any transfer of a portion of the interests in a
Global Security to beneficial owners pursuant to paragraph (c)
of this Section 305A, the Registrar shall reflect on its books
and records the date and a decrease in the principal amount of
such Global Security in an amount equal to the principal
amount of the interest in such Global Security to be
transferred.
(e) In
connection with the transfer of the Global Securities, in
whole
