|
Item 6.
|
Indemnification of Directors and Officers.
|
ViacomCBS is incorporated in the State
of Delaware. Section 102(b)(7) of the Delaware General Corporation Law (the “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 or her 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. ViacomCBS’ Amended and Restated Certificate of Incorporation
(the “ViacomCBS Charter”) contains provisions that eliminate directors’ personal liability, in certain circumstances.
Pursuant to the ViacomCBS Charter and
ViacomCBS’ Amended and Restated Bylaws (the “ViacomCBS Bylaws”), ViacomCBS 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 or officer of ViacomCBS, or is or
was serving at the request of ViacomCBS as a director or officer (including, without limitation, a trustee) of another corporation,
limited liability company, 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 (but, in the case of any such amendment
and unless applicable law otherwise requires, only to the extent that such amendment permits ViacomCBS to provide broader indemnification
rights than such law permitted ViacomCBS to provide prior to such amendment), against judgments, fines, amounts paid in settlement
and expenses (including, without limitation, 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, ViacomCBS 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 ViacomCBS authorized the bringing of the action, suit or proceeding
(or part thereof) in advance of the commencement of the proceeding.
Pursuant to the ViacomCBS Charter and
the ViacomCBS 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 attorney’s 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 ViacomCBS Charter and the ViacomCBS 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 or
her official capacity and as to action in another capacity while holding office. Without limiting the foregoing, ViacomCBS is authorized
to enter into an agreement with any director, officer or employee of ViacomCBS providing indemnification for such person against
expenses, including attorney’s 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, suit or
proceeding by or in the right of ViacomCBS, that arises by reason of the fact that such person is or was a director or officer
of ViacomCBS, or is or was serving at the request of ViacomCBS as a director or officer of another corporation, limited liability
company, 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. ViacomCBS has
entered into indemnification agreements with each of its directors and anticipates that it will enter into similar agreements with
future directors.
ViacomCBS may purchase and maintain insurance
on behalf of any person who is or was a director or officer of ViacomCBS, or is or was serving at the request of ViacomCBS as a
director or officer of another corporation, limited liability company, partnership, joint venture, trust or other enterprise against
any liability asserted against him or her and incurred by him in any such capacity, or arising out of his status as such, whether
or not ViacomCBS would have the power to indemnify him against such liability under the provisions of the ViacomCBS Charter. ViacomCBS
has purchased certain liability insurance for its officers and directors as permitted by Section 145(g) of the DGCL.
(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 the 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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i)
and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the 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 herein, 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 any 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 (and, where applicable,
each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated
by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered
herein, 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
SEC, 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.