As filed with the Securities and Exchange Commission on January 6, 2006
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
VIACOM INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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20-3515052 |
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(State or other
jurisdiction of |
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(I.R.S. Employer Identification No.) |
1515 Broadway, New York, New York 10036
(212) 258-6000
(Address and phone number of principal executive offices, including zip code)
Viacom Inc. 401(k) Plan
(Full title of the plan)
Michael D. Fricklas, Esq.
Executive Vice President, General Counsel and Secretary
Viacom Inc., 1515 Broadway, New York, New York 10036
(212) 258-6000
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Title of securities |
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Amount to be |
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Proposed maximum |
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Proposed maximum |
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Amount of |
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Class B Common Stock, par value $0.001 per share |
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7,500,000 |
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$40.38 |
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$302,850,000 |
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$32,405 |
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 (this “Registration Statement”) shall also cover any additional shares of Class B Common Stock, par value $0.001 per share (the “Class B Common Stock”), of Viacom Inc. (the “Registrant”) that become issuable under the Viacom Inc. 401(k) Plan (the “Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of outstanding shares of Class B Common Stock of the Registrant. Pursuant to Rule 416(c) under the Securities Act, this Registration Statement shall also cover an indeterminate amount of interests to be offered or sold pursuant to the Plan.
(2) Pursuant to Rules 457(c) and 457(h) under the Securities Act, the proposed maximum offering price per share as to the 7,500,000 shares of Class B Common Stock of the Registrant registered with respect to the Plan is based on the average of the high and low prices of the Class B Common Stock reported on the New York Stock Exchange on January 3, 2005 and is estimated solely for the purpose of calculating the registration fee.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the “Note” to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Securities and Exchange Commission (the “Commission”) by the Registrant, are incorporated herein by reference into this Registration Statement:
(a) The sections of the Registrant’s Prospectus-Information Statement that relate to the Registrant (the “Prospectus”), which Prospectus forms a part of the Registrant’s Registration Statement on Form S-4 (Registration No. 333-128821) first filed with the Commission on October 5, 2005, as subsequently amended on November 23, 2005 (the “Form S-4”), which contains audited combined financial statements of the Registrant for the most recent fiscal year for which such statements have been filed;
(b) The Registrant’s Current Reports on Form 8-K filed December 12, 2005, December 14, 2005, December 21, 2005, December 23, 2005, December 30, 2005 and January 5, 2005; and
(c) The description of the Class B Common Stock included under the caption “Description of New Viacom Capital Stock” in the Prospectus forming part of the Registrant’s Form S-4, which description has been incorporated by reference in Item 1 of the Company’s Registration Statement on Form 8-A, filed pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), on November 23, 2005 (Registration No. 001-32686).
In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the effective date of this Registration Statement, but prior to the filing of a post-effective amendment to this Registration Statement indicating that all securities offered hereby have been sold or deregistering all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents. Any statement contained herein or in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part of this Registration Statement, except as so modified or superseded.
Item 4. Description of Securities.
Not Applicable.
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Item 5. Interests of Named Experts and Counsel.
Michael D. Fricklas, Esq., Executive Vice President, General Counsel and Secretary of the Registrant, has rendered an opinion stating that under applicable state law the shares of Class B Common Stock to which the Registration Statement relates will be, when issued, delivered and paid for in full, validly and legally issued, fully paid and non-assessable under the laws of the State of Delaware. As of January 3, 2006, Mr. Fricklas held 729 shares of Class B Common Stock of Viacom Inc. and held exercisable options to acquire approximately 636,866 shares of Class B Common Stock of Viacom Inc. and non-exercisable options to acquire approximately 79,230 shares of Class B Common Stock of Viacom Inc.
Item 6. Indemnification of Directors and Officers.
Section 102(b)(7) of the Delaware General Corporation Law (“DGCL”) allows a corporation to include in its certificate of incorporation a provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except in cases where the director breached his duty of loyalty to the corporation or its stockholders, failed to act in good faith, engaged in intentional misconduct or a knowing violation of the law, willfully or negligently authorized the unlawful payment of a dividend or approved an unlawful stock redemption or repurchase or obtained an improper personal benefit. The Registrant’s Amended and Restated Certificate of Incorporation (the “Viacom Charter”) contains provisions that eliminate directors’ personal liability, in certain circumstances.
Pursuant to the Viacom Charter and the Registrant’s Amended and Restated Bylaws (the “Viacom Bylaws”), the Registrant shall indemnify any person who was or is involved in or is threatened to be involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he is or was a director, officer or employee of the Registrant, or is or was serving at the request of the Registrant as a director, officer or employee (including a trustee) of another corporation, partnership, joint venture, trust or other enterprise (such person, an “indemnitee”), to the fullest extent authorized by the DGCL, as the same exists or may hereafter be amended, against judgments, fines, amounts paid in settlement and expenses (including attorneys’ fees), actually and reasonably incurred by him in connection with such action, suit or proceeding. Notwithstanding the foregoing, except with respect to proceedings to enforce rights to indemnification and advancement of expenses, the Registrant shall indemnify an indemnitee in connection with a proceeding (or part thereof) initiated by the indemnitee, if and only if the Board of Directors of the Registrant authorized the bringing of the action, suit or proceeding (or part thereof) in advance of the commencement of the proceeding.
Pursuant to the Viacom Charter and the Viacom Bylaws, to the extent that an indemnitee has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to above, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith.
The indemnification and advancement of expenses provided by, or granted pursuant to, the indemnification provisions of the Viacom Charter and the Viacom Bylaws shall not be deemed exclusive of any other rights to which a person seeking indemnification or advancement of expenses may be entitled under any statute, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. Without limiting the foregoing, the Registrant is authorized to enter into an agreement with any director, officer or employee of the Registrant providing indemnification for such person against expenses, including attorneys’ fees,
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judgments, fines and amounts paid in settlement that result from any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative or investigative, including any action, suit or proceeding by or in the right of the Registrant, that arises by reason of the fact that such person is or was a director, officer or employee of the Registrant, or is or was serving at the request of the Registrant as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise, to the fullest extent allowed by law, except that no such agreement shall provide for indemnification for any actions that constitute fraud, actual dishonesty or willful misconduct.
The Registrant may purchase and maintain insurance on behalf of any person who is or was a director, officer or employee of the Registrant, or is or was serving at the request of the Registrant as a director, officer or employee of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the Registrant would have the power to indemnify him against such liability under the provisions of the Viacom Charter.
The Registrant has purchased certain liability insurance for its officers and directors as permitted by Section 145(g) of the DGCL.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
See Exhibit Index.
The Registrant will submit the Plan and any amendments thereto to the Internal Revenue Service (the “IRS”) in a timely manner for a determination as to the qualification of the Plan under Section 401(a) of the Internal Revenue Code of 1986, as amended, and will cause all changes required by the IRS to be made to maintain the qualification of the Plan.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement;
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in the Registration Statement;
provided, however, that the undertakings set forth in paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those
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paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on this 6th day of January, 2006.
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VIACOM INC. |
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By: |
/s/ Michael D. Fricklas |
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Name: |
Michael D. Fricklas |
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Title: |
Executive Vice President, General |
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Counsel and Secretary |
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Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed by the following persons in the capacities indicated on the 6th day of January, 2006.
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Signature |
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Title |
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Director, President and |
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Thomas E. Freston |
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Chief Executive Officer |
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/s/ Michael J. Dolan |
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Executive Vice President |
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Michael J. Dolan |
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and Chief
Financial Officer |
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/s/ Jacques Tortoroli |
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Senior Vice President, Controller and Chief |
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Jacques Tortoroli |
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Accounting Officer |
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Director |
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George S. Abrams |
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Director |
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Philippe P. Dauman |
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Director |
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Thomas E. Dooley |
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Director |
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Ellen V. Futter |
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Director |
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Alan C. Greenberg |
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Director |
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Robert K. Kraft |
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Director |
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Charles E. Phillips, Jr. |
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Vice Chair |
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Shari Redstone |
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Executive Chairman |
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Sumner M. Redstone |
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Director |
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Frederic V. Salerno |
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Director |
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William Schwartz |
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*By: |
/s/ Michael D. Fricklas, Attorney-in-Fact |
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Michael D. Fricklas, Attorney-in-Fact |
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January 6, 2006 |
Viacom Inc. 401(k) Plan. Pursuant to the requirements of the Securities Act, the trustee (or other persons who administer the employee benefit plan) has duly caused this Registration Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on this 6th day of January, 2006.
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VIACOM INC. 401(k) PLAN |
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By: |
/s/ JoAnne Adams Griffith |
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Name: |
JoAnne Adams Griffith |
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Title: |
Executive Vice President,
Human |
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Viacom Inc. |
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Exhibit Index
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Exhibit No. |
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Description of Document |
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4.1 |
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Form of Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.5.2 to the Registrant’s Registration Statement on Form S-4 as amended (File No. 333-128821) filed on November 23, 2005). |
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4.2 |
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Form of Amended and Restated By-laws of the Registrant (incorporated by reference to Exhibit 3.6.2 to the Registrant’s Registration Statement on Form S-4 as amended (File No. 333-128821) filed on November 23, 2005). |
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4.3* |
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Description of the Viacom Inc. 401(k) Plan. |
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5.1* |
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Opinion of Michael D. Fricklas, Executive Vice President, General Counsel and Secretary of the Registrant, as to the legality of the securities being registered. |
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23.1* |
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Consent of PricewaterhouseCoopers LLP. |
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23.2* |
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Consent of Michael D. Fricklas, Executive Vice President, General Counsel and Secretary of the Registrant (included in Exhibit 5.1) |
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24* |
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Powers of Attorney. |
* Filed herewith.