As filed with the Securities and Exchange Commission on April 19, 2005
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8 REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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VIACOM INC.
(Exact name of registrant as specified in its charter)
Delaware 04-2949533
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1515 Broadway, New York, New York 10036
(212) 258-6000
(Address and phone number of principal executive offices, including zip code)
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Viacom Inc. 2004 Long-Term Management Incentive 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 of agent for service)
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CALCULATION OF REGISTRATION FEE
------------------------- ------------------------ ------------------------ ------------------------- -------------------------
Title of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per aggregate offering price registration fee
share
------------------------- ------------------------ ------------------------ ------------------------- -------------------------
Class B Common Stock, 117,094,902 $34.28(2) $4,014,013,241 $ 472,449
par value $.01 per share 14,500,000 $37.38(3) $ 542,010,000 $ 63,795
4,550,000 $35.51(3) $ 161,570,500 $ 19,017
3,400,000 $34.87(3) $ 118,558,000 $ 13,954
245,098 $33.87(3) $ 8,301,469 $ 977
150,000 $33.67(3) $ 5,050,500 $ 594
50,000 $36.80(3) $ 1,840,000 $ 217
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Total: 139,990,000(1) Total: $4,851,343,710 Total: $571,003(4)
------------------------- ------------------------ ------------------------ ------------------------- -------------------------
(1) Represents an aggregate of 139,990,000 shares of Class B Common Stock, par
value $.01 per share (the "Class B Common Stock"), of Viacom Inc. (the
"Registrant") available for issuance under the Viacom Inc. 2004 Long-Term
Management Incentive Plan (the "2004 LTMIP"). In addition, this Registration
Statement shall also cover any additional shares of Class B Common Stock
which become issuable under the 2004 LTMIP being registered pursuant to this
Registration Statement by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Registrant's outstanding shares of Class B Common Stock.
(2) Pursuant to Rules 457(h) and 457(c) of the Securities Act of 1933, as
amended (the "Securities Act"), the proposed maximum offering price per
share is based on the average of the high and low prices of the Registrant's
Class B Common Stock on the New York Stock Exchange consolidated reporting
system on April 15, 2005 and is estimated solely for the purpose of
calculating the registration fee.
(3) Pursuant to Rule 457(h) of the Securities Act, the proposed maximum offering
price per share is based on the average weighted exercise price of (i)
14,500,000 shares of Class B Common Stock subject to outstanding but
unexercised options granted under the 2004 LTMIP on January 26, 2005, (ii)
4,550,000 shares of Class B Common Stock subject to outstanding but
unexercised options granted under the 2004 LTMIP on July 1, 2004, (iii)
3,400,000 shares of Class B Common Stock subject to outstanding but
unexercised options granted under the 2004 LTMIP on April 1, 2005, (iv)
245,098 shares of Class B Common Stock subject to outstanding but
unexercised options granted under the 2004 LTMIP on March 15, 2005, (v)
150,000 shares of Class B Common Stock subject to outstanding but
unexercised options granted under the 2004 LTMIP on July 19, 2004, and (vi)
50,000 shares of Class B Common Stock subject to outstanding but unexercised
options granted under the 2004 LTMIP on June 2, 2004, for a total of
22,895,098 shares of Class B Common Stock subject to currently outstanding
options and is estimated solely for the purposes of calculating the
registration fee.
(4) Pursuant to Rule 457(p) of the Securities Act, the aggregate amount of the
registration fee (i.e., $571,003) is being offset by $200,812, representing
the dollar amount of the registration fee previously paid by the Registrant
in respect of 15,000,000 unissued shares previously registered on Form S-8,
filed February 9, 2001 (Registration No. 333-55346). Accordingly, the
adjusted registration fee for this Form S-8 is $370,191.
Page 1 of 9
Exhibit Index Appears on Page 9
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* 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.
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 Registrant's Annual Report on Form 10-K for the year ended December
31, 2004;
(b) The Registrant's Report on Schedule 14A filed April 15, 2005;
(c) The Registrant's Current Report on Form 8-K filed April 15, 2005; and
(d) The description of the Class B Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on May 4, 2000
pursuant to Section 12(g) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and any amendment or report filed for the
purpose of updating this description.
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.
Item 5. Interests of Named Experts and Counsel.
Michael D. Fricklas, Esq., Executive Vice President, General Counsel
and Secretary of the Registrant, who 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 December 31, 2004, Mr. Fricklas held 46 shares
of Class A Common Stock and 1,406 shares of Class B Common Stock and held
exercisable options to acquire 592,500 shares of Class B Common Stock and
non-exercisable options to acquire 177,500 shares of Class B Common Stock.
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.
Section 1 of Article VI of the Viacom Charter provides that 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, employee or agent of the
Registrant, or is or was serving at the request of the Registrant as a director,
officer, employee or agent (including trustee) of another corporation,
partnership, joint venture, trust or other enterprise, 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.
The Viacom Charter provides that to the extent that a present or former
director, officer, employee or agent of the Registrant has been successful on
the merits or otherwise in defense of any action, suit or proceeding referred
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 that person in connection therewith. The indemnification and
advancement of expenses provided by, or granted pursuant to, the indemnification
provisions of the Viacom Charter 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, by-law, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in that person's
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, employee or agent of the
Registrant providing indemnification for such person against expenses, including
attorneys' fees, 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 by or in
the right of the Registrant, that arises by reason of the fact that such person
is or was a director, officer, employee or agent of the Registrant, or is or was
serving at the request of the Registrant as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, to the full 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, employee or agent of the Registrant,
or is or was serving at the request of the Registrant as a director, officer,
employee or agent 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 Article VI of the Viacom Charter.
Pursuant to Section 5 of Article VI 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.
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 the 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 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.
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 19th day of
April, 2005.
VIACOM INC.
By: /s/ Michael D. Fricklas
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Name: Michael D. Fricklas
Title: Executive Vice President, General
Counsel and Secretary
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 19th day of April, 2005.
Signature Title
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/s/ Sumner M. Redstone Director, Chairman of the Board
---------------------------- and Chief Executive Officer
Sumner M. Redstone (Principal Executive Officer)
/s/ Richard J. Bressler Senior Executive Vice President
---------------------------- and Chief Financial Officer
Richard J. Bressler (Principal Financial Officer)
/s/ Susan C. Gordon Senior Vice President, Controller
---------------------------- and Chief Accounting Officer
Susan C. Gordon (Principal Accounting Officer)
* Director
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George S. Abrams
* Director
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David R. Andelman
* Director
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Joseph A. Califano, Jr.
* Director
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William S. Cohen
* Director
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Philippe P. Dauman
* Director
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Alan C. Greenberg
* Director
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Jan Leschly
* Director
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Charles E. Phillips, Jr.
* Director
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Shari Redstone
* Director
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Frederic V. Salerno
* Director
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William Schwartz
* Director
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Patty Stonesifer
* Director
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Robert D. Walter
*By: /s/ Michael D. Fricklas
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Michael D. Fricklas, Attorney-in-Fact April 19, 2005
Exhibit Index
Exhibit No. Description of Document
4.1 Amended and Restated Certificate of Incorporation of Viacom Inc.
effective December 9, 2004 (incorporated by reference to Exhibit
3(a) to the Annual Report on Form 10-K of Viacom Inc. for the
fiscal year ended December 31, 2004) (File No. 001-09553).
4.2 Amended and Restated By-laws of Viacom Inc. adopted June 1, 2004
(incorporated by reference to Exhibit 3.1 to the Current Report on
Form 8-K of Viacom Inc. filed on June 1, 2004) (File No.
001-09553).
4.3 Specimen certificate representing Viacom Inc. Class B Common Stock
(incorporated by reference to Exhibit 4(b) to the Annual Report on
Form 10-K of Viacom Inc. for the fiscal year ended December 31,
2002) (File No. 001-09553).
4.4 Viacom Inc. 2004 Long-Term Management Incentive Plan (incorporated
by reference to Annex B to the Definitive Proxy Statement on
Schedule 14A of Viacom Inc. filed on April 15, 2004) (File No.
001-09553).
5* Opinion of Michael D. Fricklas, Executive Vice President, General
Counsel and Secretary of the Registrant, as to the legality of the
securities being registered.
23.1* Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Michael D. Fricklas, Executive Vice President, General
Counsel and Secretary of the Registrant (included in Exhibit 5).
24* Powers of Attorney.
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* Filed herewith.