$250,000,000 8.875% Senior Notes due
2019
Banc of America
Securities LLC
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
UBS Securities LLC
As
Representatives of the
several Underwriters listed
in Schedule 1 hereto
c/o Banc of
America Securities LLC
One Bryant Park,
New York, New York 10036
CBS Corporation, a
Delaware corporation (the “Company”), proposes to issue
and sell to the several Underwriters listed in Schedule 1
hereto (the “Underwriters,” which term shall include
any underwriter substituted hereinafter as provided in
Section 10 hereof), for whom you are acting as representatives
(the “Representatives”), $250,000,000 principal amount
of its 8.875% Senior Notes due May 15, 2019 (the
“Notes”). The Notes are guaranteed on an unsecured
basis (the “Guarantees”) by CBS Operations Inc., a
Delaware corporation (the “Guarantor”). The Notes and
the Guarantees are hereinafter collectively referred to as the
“Securities.” The Securities will be issued pursuant to
an Amended and Restated Senior Indenture dated as of
November 3, 2008 (as so amended and supplemented from time to
time, the “Indenture”), among the Company, the
Guarantor and The Bank of New York Mellon, as trustee (the
“Trustee”). Certain terms of the Securities were or
will be established pursuant to resolutions adopted by the Company
dated May 28, 2009 pursuant to Section 301 of the
Indenture.
1.
Representations and Warranties . The Company and the
Guarantor jointly and severally represent and warrant to the
Underwriters, as of the date hereof, as follows:
(a)
Registration Statement and the Prospectus . The
Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3
(No. 333-154962) under the Securities Act of 1933, as amended (the
“1933 Act”) (including the information (if any) deemed
to be part of the registration statement pursuant to
Rule 430A, Rule 430B or Rule 430C under the 1933
Act, the “Registration Statement”) in respect of, among
other things, the Securities. The Company meets the requirements
for use of Form S-3 under the 1933 Act. The Registration Statement
is an “automatic shelf registration statement”, as
defined
in
Rule 405 of the 1933 Act, that initially became effective not
earlier than three years prior to the date hereof, and the
Indenture has been qualified under the Trust Indenture Act of 1939,
as amended (the “1939 Act”). The prospectus included in
the Registration Statement is hereinafter referred to as the
“Base Prospectus.” The Base Prospectus, as supplemented
by the prospectus supplement specifically relating to the
Securities in the form first used to confirm sales of the
Securities (or in the form first made available to the Underwriters
by the Company to meet requests of purchasers pursuant to
Rule 173 under the 1933 Act) is hereinafter referred to as the
“Prospectus,” and the term “Preliminary
Prospectus” means the preliminary form of the Prospectus
dated May 28, 2009. For purposes of this Agreement,
“free writing prospectus” has the meaning set forth in
Rule 405 under the 1933 Act, and “Time of Sale
Prospectus” means the Preliminary Prospectus together with
the free writing prospectuses, if any, each identified in Annex A
hereto. As used herein, the terms “Registration
Statement,” “Base Prospectus,” “Preliminary
Prospectus,” “Time of Sale Prospectus” and
“Prospectus” shall include the documents, if any,
incorporated by reference therein. Any reference herein to the
terms “amend,” “amendment” or
“supplement” with respect to the Registration
Statement, the Base Prospectus, the Preliminary Prospectus, the
Time of Sale Prospectus and the Prospectus shall be deemed to refer
to and include the filing of any document under the Securities
Exchange Act of 1934, as amended (the “1934 Act”),
after the date of this Underwriting Agreement, or the issue date of
the Base Prospectus, the Preliminary Prospectus, the Time of Sale
Prospectus or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
The Registration
Statement, as of the most recent effective date, and the Indenture
complied, in all material respects, with the applicable provisions
of the 1933 Act and the 1939 Act, respectively, and the applicable
rules and regulations of the Commission thereunder. The
Registration Statement, as of the most recent effective date, did
not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading. The Time of Sale Prospectus,
at May 28, 2009, did not, and at the Closing Time, will not,
contain any 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. The Prospectus, as of its date and on the Closing Time,
will comply, in all material respects, with the applicable
provisions of the 1933 Act and 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 (i) that part of the
Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) of the Trustee under the
1939 Act or (ii) the information contained in or omitted from
the Registration Statement, the Time of Sale Prospectus or the
Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished to the
Company in writing by or on behalf of any Underwriter through the
Representatives specifically for use in the Registration Statement,
the Time of Sale Prospectus or the Prospectus or any amendment
thereof or supplement thereto.
(b)
Issuer Free Writing Prospectus . Other than the
Preliminary Prospectus and the Prospectus, the Company (including
its agents and representatives, other than the Underwriters in
their capacity as such) has not made, used, prepared, authorized,
approved or referred to and
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will not
prepare, make, use, authorize, approve or refer to any free writing
prospectus other than the documents listed on Annex A hereto and
other written communications approved in writing in advance by the
Representatives.
The documents
listed on Annex A hereto do not include any information that
conflicts with the information contained in the Registration
Statement, including any document incorporated therein by reference
and any prospectus supplement deemed to be a part thereof that has
not been superseded or modified. The foregoing sentence does not
apply to statements in or omissions from any documents listed on
Annex A based upon and in conformity with written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(c)
Incorporated Documents . The documents incorporated
by reference in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, at the time they were or hereafter
are, until the Closing Time, 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”).
(d)
Independent Accountants . To the best of the
Company’s knowledge, the accountants who certified the
financial statements and any supporting schedules thereto included
in the Registration Statement, the Time of Sale Prospectus and the
Prospectus are independent public accountants as required by the
1933 Act and the applicable rules and regulations of the Commission
thereunder (the “1933 Act Regulations”).
(e)
Financial Statements . The financial statements of
the Company included in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, 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 for the periods specified.
Such financial statements have been prepared in conformity with
generally accepted accounting principles (“GAAP”)
applied on a consistent basis throughout the periods involved,
except as otherwise noted therein and subject, in the case of
interim financial statements, to normal year-end audit adjustments.
The supporting schedules, if any, included in the Registration
Statement, the Time of Sale Prospectus and the Prospectus present
fairly in accordance with GAAP the information required to be
stated therein.
(f) No
Material Adverse Change in Business . Since the date of the
most recent consolidated financial statements included or
incorporated by reference in the Registration Statement, the Time
of Sale Prospectus and the Prospectus, except as otherwise stated
therein, 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 (a
“Material Adverse Effect”).
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(g)
Good Standing . The Company and the Guarantor 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 Time of Sale
Prospectus and the Prospectus and to enter into and perform their
respective obligations under, or as contemplated under, this
Underwriting 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.
(h)
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, 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 Time of Sale Prospectus and the Prospectus 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.
(i)
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, free and clear of any lien, adverse claim,
security interest, equity or other encumbrance except as described
in the Prospectus and except where the existence of such liens,
adverse claims, security interests, equity or other encumbrances
would not, in the aggregate, result in a Material Adverse
Effect.
(j)
Authorization of Agreements . This Underwriting
Agreement has been duly authorized, executed and delivered by the
Company and the Guarantor.
(k)
Authorization of the Securities . The Securities have
been duly authorized by the Company and the Guarantor, as the case
may be, for issuance and sale pursuant to this Underwriting
Agreement. The Securities, when issued and authenticated in the
manner provided for in the Indenture and delivered against payment
of the consideration therefor specified in this Underwriting
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).
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(l)
Authorization of the Indenture . The Indenture has
been duly authorized, executed and delivered by the Company and the
Guarantor and, assuming the due authorization, execution and
delivery by the trustee thereunder, constitutes 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).
(m)
Description of the Securities and the Indenture . The
Securities and the Indenture conform in all material respects to
the statements relating thereto contained in the Time of Sale
Prospectus and the Prospectus.
(n)
Absence of Defaults and Conflicts . The issue and
sale of the Securities and compliance by the Company and the
Guarantor with all of the provisions of the Securities, the
Indenture and this Underwriting 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.
(o)
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
Registration Statement, the Time of Sale Prospectus and the
Prospectus (other than as stated therein).
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(p)
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
authorization, issuance, sale and delivery of the Securities by the
Company and the Guarantor or for the performance by the Company or
the Guarantor of the transactions contemplated under this
Underwriting Agreement, except as otherwise set forth herein, and
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 Underwriters and except where the failure to
obtain any such filing, authorization, approval, consent, license,
order, registration, qualification or decree would not individually
or in the aggregate result in a Material Adverse Effect.
(q)
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
Time of Sale Prospectus and the Prospectus will not be, an
“investment company” within the meaning of the
Investment Company Act of 1940, as amended (the “1940
Act”).
(r)
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
Underwriters shall be deemed a representation and warranty by the
Company or the Guarantor, as the case may be, to each Underwriter
as to matters covered thereby.
(s)
Disclosure Controls . The Company maintains effective
disclosure controls and procedures (as defined in
Rule 13a-15(e) of the 1934 Act) that are designed to ensure
that information required to be disclosed by the Company in reports
that it files or submits under the 1934 Act is recorded, processed,
summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and
procedures designed to ensure that such information is accumulated
and communicated to the Company’s management as appropriate
to allow timely decisions regarding required disclosure. The
Company has carried out evaluations of the effectiveness of its
disclosure controls and procedures as required by Rule 13a-15
of the 1934 Act.
(t)
Accounting Controls . The Company maintains processes
of internal control over financial reporting (as defined in
Rule 13a-15(f) of the 1934 Act) designed by, or under the
supervision of, its principal executive and principal financial
officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. Except as disclosed in the Registration Statement, the
Time of Sale Prospectus and the Prospectus, there are no material
weaknesses in the design or operation of internal control over
financial reporting which are reasonably likely to adversely affect
the Company’s ability to record, process, summarize and
report financial information.
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(u)
Sarbanes-Oxley Act . There is and has been no failure
in any material respect on the part of the Company or, to the
Company’s knowledge, any of the Company’s directors or
officers, in their capacities as such, to comply with any provision
of the Sarbanes-Oxley Act of 2002 and the rules and regulations
promulgated in connection therewith (the “Sarbanes-Oxley
Act”), including Section 402 related to loans and
Sections 302 and 906 related to certifications by the
Company’s Chief Executive Officer and Chief Financial
Officer.
(v)
Status under the 1933 Act . The Company is not an
“ineligible issuer” and is a “well-known seasoned
issuer”, in each case, as defined under the 1933 Act, at the
times specified in the 1933 Act in connection with the offering of
the Securities.
(w)
Broadcasting Operations . Except as disclosed in the
Registration Statement, the Time of Sale Prospectus and Prospectus
or as would not individually or in the aggregate result in a
Material Adverse Effect: the Company and its subsidiaries hold all
material Federal Communications Commission (the “FCC”)
permits, licenses, authorizations and approvals for its broadcast
stations (collectively, the “Authorizations”) that are
necessary to conduct their respective businesses in the manner in
which they are currently being conducted; the Authorizations are in
full force and effect; the operations of the stations owned or
operated by the Company or any of its subsidiaries (the
“Stations”) are in all material respects in compliance
with the Communications Act of 1934, as amended, and the rules,
regulations, written policies and decisions of the FCC thereunder
(collectively, the “Communications Act”); and all
reports and documents that are required by the Communications Act
to be filed with respect to the ownership, management or operation
of the Stations have been duly and timely filed.
2. Sale
and Delivery to Underwriters; Closing .
(a)
Securities . Subject to the terms and conditions set
forth herein, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the price set forth
in Schedule 2 hereto, the aggregate principal amount of the
Securities set forth in Schedule 1 hereto opposite the name of
such Underwriter plus any additional principal amount of the
Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b)
Payment . Payment of the purchase price for, and
delivery of, the Securities shall be made at the offices of the
Company, 51 West 52 nd Street, New York, New York 10019, or
at such other place as shall be agreed upon by the Representatives
and the Company, at 9:00 A.M. (Eastern time) on June 2, 2009
(unless postponed in accordance with the provisions of
Section 10), 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
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respective
accounts of the Underwriters of the Securities to be purchased by
them. It is understood that each Underwriter 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 Underwriters, may
(but shall not be obligated to) make payment of the purchase price
for the Securities to be purchased by any Underwriter whose funds
have not been received by the Closing Time, but such payment shall
not relieve such Underwriter from its obligations hereunder.
Delivery of the Securities shall be made through the facilities of
the Depository Trust Company (“DTC”), Clearstream
Luxembourg Banking, société anonyme, or Euroclear
Bank S.A./N.V., as operator of the Euroclear System, unless the
Representatives shall otherwise instruct.
(c)
Restrictions on Resale . Each Underwriter agrees that
it will not offer, sell or deliver any of the Securities, directly
or indirectly, or distribute the Time of Sale Prospectus or the
Prospectus or any other offering material relating to the
Securities, in or from any jurisdiction except under circumstances
that will, to the best knowledge and belief of such Underwriter
after reasonable investigation, result in compliance with the
applicable laws and regulations thereof and which will not impose
any obligations on the Company except as set forth in this
Underwriting Agreement.
Each Underwriter
represents and agrees that (i) it has only communicated or
caused to be communicated and will only communicate or cause to be
communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial
Services and Markets Act 2000 (“FSMA”)) received by it
in connection with the issue or sale of any Securities in
circumstances in which section 21(1) of the FSMA does not apply to
any Company or the Guarantor, and (ii) it has complied with
and will comply with all applicable provisions of the FSMA with
respect to anything done by it in relation to the Securities in,
from or otherwise involving the United Kingdom.
In relation to
each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant
Member State”) each Underwriter represents and agrees that it
has not made and will not make an offer to the public of any
Securities in that Relevant Member State prior to the publication
of a prospectus in relation to the Securities which has been
approved by the competent authority in that Relevant Member State
or, where appropriate, approved in another Relevant Member State
and notified to the competent authority in that Relevant Member
State, all in accordance with the Prospectus Directive, except that
it may make an offer to the public in that Relevant Member State of
any Securities at any time under the following exemptions under the
Prospectus Directive, if they have been implemented in that
Relevant Member State at any time:
(i) to legal
entities which are authorized or regulated to operate in the
financial markets or, if not so authorized or regulated, whose
corporate purpose is solely to invest in securities;
(ii) to any legal
entity which has two or more of (1) an average of at least 250
employees during the last fiscal year; (2) a total balance
sheet of more than €43,000,000
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and (3) an
annual net turnover of more than €50,000,000, as shown in its
last annual or consolidated accounts;
(iii) to fewer
than 100 natural or legal persons (other than qualified investors
as defined in the Prospectus Directive) subject to obtaining the
prior consent of the Representatives for any such offer;
or
(iv) in any other
circumstances falling within Article 3(2) of the Prospectus
Directive,
provided that no such offer of Securities shall result in
a requirement for the publication by the Company, any Guarantor or
any of the Underwriters of a prospectus pursuant to Article 3
of the Prospectus Directive.
For the purposes
of this provision, the expression an “offer to the
public” in relation to any Securities in any Relevant Member
State means the communication in any form and by any means of
sufficient information on the terms of the offer and any Securities
to be offered so as to enable an investor to decide to purchase or
subscribe for any Securities, as the same may be varied in that
Member State by any measure implementing the Prospectus Directive
in that Member State and the expression “Prospectus
Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member
State.
Each Underwriter
represents and agrees that: (i) it has not offered or sold and
will not offer or sell in Hong Kong, by means of any document, any
senior notes other than (a) to “professional
investors” as defined in the Securities and Futures Ordinance
(Cap.571, Laws of Hong Kong) (the “Securities and Futures
Ordinance”) and any rules made thereunder; or (b) in
other circumstances which do not result in the document being a
“prospectus” as defined in the Companies Ordinance of
Hong Kong (Cap.32, Laws of Hong Kong) (the “Companies
Ordinance”) or which do not constitute an offer to the public
within the meaning of the Companies Ordinance; and (ii) it has
not issued or had in its possession for the purposes of issue, and
will not issue or have in its possession for the purposes of issue,
whether in Hong Kong or elsewhere, any advertisement, invitation or
document relating to the senior notes, which is directed at, or the
contents of which are likely to be accessed or read by, the public
of Hong Kong (except if permitted to do so under the securities
laws of Hong Kong) other than with respect to senior notes which
are or are intended to be disposed of only to persons outside Hong
Kong or only to “professional investors” as defined in
the Securities and Futures Ordinance and any rules made
thereunder.
The Securities
have not been and will not be registered under the Securities and
Exchange Law of Japan (the “SEL”), and each Underwriter
represents and agrees, and each Underwriter further appointed will
be required to represent and agree, that the Securities being
purchased by it will be purchased by it as principal, an
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