Exhibit 10A
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CREDIT AGREEMENT
BETWEEN
INTERPUBLIC GROUP OF COMPANIES, INC.
AND
HSBC BANK USA
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US$25,000,000
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Dated as of May 1, 1999
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TABLE OF CONTENTS
SECTION PAGE
SECTION 1
INTERPRETATIONS AND DEFINITIONS
1.1 Definitions..................................................... ..1
1.2 Accounting Terms and Determinations............................. ..7
SECTION 2
THE LOANS
2.1 Commitment...................................................... ..8
2.2 Method of Borrowing............................................ ...8
2.3 The Note....................................................... ...9
2.4 Maturity of Loans............................................. ....9
2.5 Interest Rates............................................... .....9
2.6 Fees..............................................................13
2.7 Optional Termination or Reduction of Commitment...................13
2.8 Mandatory Termination or Reduction of Commitment..................13
2.9 Optional Prepayments..............................................13
2.10 General Provisions as to Payments.................................14
2.11 Computation of Interest and Fees..................................14
2.12 Funding Losses....................................................14
2.13 Extension of Commitment...........................................14
SECTION 3
CONDITIONS OF LENDING
3.1 All Loans.........................................................16
3.2 Initial Loan......................................................16
SECTION 4
CHANGE IN CIRCUMSTANCES AFFECTING LOANS
4.1 Basis for Determining Interest Rate Inadequate....................18
4.2 Illegality........................................................18
4.3 Increased Costs and Reduced Returns...............................18
SECTION 5
REPRESENTATIONS AND WARRANTIES
5.1 Corporate Existence and Power.....................................21
5.2 Corporate and Governmental Authorization; Contravention...........21
5.3 Binding Effect....................................................21
5.4 Financial Information.............................................21
5.5 Litigation........................................................22
5.6 Compliance with ERISA.............................................22
5.7 Taxes.............................................................22
5.8 Subsidiaries......................................................22
SECTION 6
COVENANTS
6.1 Information.......................................................23
6.2 Maintenance of Property; Insurance................................25
6.3 Conduct of Business and Maintenance of Existence..................25
6.4 Compliance with Laws..............................................25
6.5 Inspection of Property, Books and Records.........................26
6.6 Cash Flow to Total Borrowed Funds.................................26
6.7 Total Borrowed Funds to Consolidated Net Worth....................26
6.8 Minimum Consolidated Net Worth....................................26
6.9 Negative Pledge...................................................27
6.10 Consolidations, Mergers and Sales of Assets.......................28
6.11 Use of Proceeds...................................................28
SECTION 7
EVENTS OF DEFAULT
7.1 Events of Default.................................................29
SECTION 8
MISCELLANEOUS
8.1 Notices...........................................................32
8.2 Amendments and Waivers; Cumulative Remedies.......................32
8.3 Successors and Assigns............................................32
8.4 Expenses; Documentary Taxes; Indemnification......................33
8.5 Counterparts......................................................34
8.6 Headings; Table of Contents.......................................34
8.7 Governing Law.....................................................34
CREDIT AGREEMENT
AGREEMENT dated as of May 1, 1999 between THE INTERPUBLIC GROUP OF
COMPANIES, INC., a Delaware corporation (the "Borrower"), and HSBC BANK USA, a
banking institution organized under the laws of New York State (the "Bank").
SECTION 1
INTERPRETATIONS AND DEFINITIONS
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1.1 Definitions. The following terms, as used herein, shall have the
following respective meanings:
"Adjusted CD Rate" has the meaning set forth in Section 2.5(b)
hereof.
"Adjusted London Interbank Offered Rate" has the meaning set
forth in Section 2.5(C) hereof.
"Applicable Lending Office" means, with respect to the Bank, (i)
in the case of Domestic Loans, its Domestic Lending Office and (ii) in
the case of Eurodollar Loans, its EuroDollar Lending Office.
"Assessment Rate" has the meaning set forth in Section 2.5(b)
hereof.
"Base Rate" means, for any day, a rate per annum equal to the
higher of (i) the rate of interest announced publicly by the Bank in
New York, New York, from time to time, as the Bank's prime rate and
(ii) the Federal Funds Rate for such day plus 1%.
"Base Rate Loan" means a Loan which the Borrower specifies
pursuant to Section 2.2 hereof shall be a Base Rate Loan.
"Benefit Arrangement" means, at any time, an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan
or a Multiemployer Plan and which is maintained or otherwise
contributed to by any member of the ERISA Group.
"Cash Flow" means the sum of net income of the Borrower and its
Consolidated Subsidiaries (plus any amount by which net income has
been reduced by reason of the recognition of post-retirement and
post-employment benefit costs prior to the period in which such
benefits are paid), depreciation expenses, amortization costs and
changes in deferred taxes, provided that such sum shall not be
adjusted for any increase or decrease in deferred taxes resulting from
Quest & Associates, Inc., a Subsidiary of the Borrower, investing in a
portfolio of computer equipment leases (it being further understood
that such increase or decrease in deferred taxes relating to such
investment shall not exceed $25,000,000).
"CD Base Rate" has the meaning set forth in Section 2.5(b)
hereof.
"CD Loan" means a Loan which the Borrower specifies pursuant to
Section 2.2 hereof shall be a CD Loan.
"CD Margin" has the meaning set forth in Section 2.5(b) hereof.
"Code" means the Internal Revenue Code of 1986, as amended, and
any successor statute thereto.
"Commitment" means the obligation of the Bank to lend the amount
set forth in Section 2.1 hereof, as such amount may be reduced from
time to time pursuant to Section 2.7 hereof.
"Consolidated Subsidiary" means at any date any Subsidiary or
other entity the accounts of which would be consolidated with those of
the Borrower in its consolidated financial statements as of such date.
"Consolidated Net Worth" means at any date the consolidated
stockholders' equity of the Borrower and its Consolidated Subsidiaries
as such appear on the financial statements of the Borrower determined
in accordance with generally accepted accounting principles (plus any
amount by which retained earnings has been reduced by reason of the
recognition of post-retirement and post-employment benefit costs prior
to the period in which such benefits are paid and without taking into
account the effect of cumulative currency translation adjustments).
"Debt" of any Person means at any date, without duplication, (i)
all obligations of such Person for borrowed money, including
reimbursement obligations for letters of credit, (ii) all obligations
of such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (iv) all obligations of
such Person as lessee under capital leases, (v) all Debt of others
secured by a Lien on any asset of such Person, whether or not such
Debt is assumed by such Person, and (vi) all Debt of others Guaranteed
by such Person, but in each case specified in (i) through (vi)
excludes obligations arising in connection with securities repurchase
transactions.
"Default" means any condition or event which constitutes an Event
of Default or which with the giving of notice or lapse of time, or
both, would become an Event of Default.
"Dollars" and the sign "$" mean lawful money of the United States
of America.
"Domestic Business Day" means any day except a Saturday, Sunday
or other day on which commercial banks in New York, New York are
authorized by law to close.
"Domestic Lending Office" means the principal office of the Bank
located at 140 Broadway, New York, New York, 10005, or such other
branch (or affiliate) located within the United States as the Bank may
hereafter designate as its Domestic Lending Office.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in
Section 2.5(b) hereof.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Group" means the Borrower and all members of a controlled
group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower,
are treated as a single employer under Section 414(b) or (c) of the
Code.
"Eurodollar Business Day" means any Domestic Business Day on
which commercial Banks in London are open for international business
(including dealings in Dollar deposits).
"Eurodollar Lending Office" means the office of the Bank located
at 140 Broadway, New York, New York, 10005, or such other branch (or
affiliate) of the Bank as it may hereafter designate as its Eurodollar
Lending Office.
"Eurodollar Loan" means a Loan which the Borrower specifies
pursuant to Section 2.2 hereof shall be a Eurodollar Loan.
"Eurodollar Margin" has the meaning set forth in Section 2.5(C)
hereof.
"Eurodollar Reserve Percentage" has the meaning set forth in
Section 2.5(C) hereof.
"Event of Default" has the meaning set forth in Section 7 hereof.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest l/100th of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Domestic Business Day next succeeding such
day, provided that (i) if such day is not a Domestic Business Day, the
Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Domestic Business Day as so
published on the next succeeding Domestic Business Day, and (ii) if no
such rate is so published on such next succeeding Domestic Business
Day, the Federal Funds Rate for such day shall be the average rate
quoted to the Bank on such day on such transactions as determined by
the Bank in a reasonable manner.
"Fixed CD Rate" has the meaning set forth in Section 2.5(b)
hereof.
"Fixed Rate Loans" means CD Loans, Eurodollar Loans or Money
Market Rate Loans.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt
or other obligation of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Debt or
other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep-well, to purchase assets, goods,
securities or services, to take-or-pay, to maintain financial
statement conditions or otherwise) or (ii) entered into for the
purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part), provided that
the term Guarantee shall not include endorsements for collection or
deposit in the ordinary course of business. The term "Guarantee" used
as a verb has a corresponding meaning.
"Interest Period" means: (1) with respect to each CD Loan, at the
Borrower's option, the period commencing on the date of such Loan and
ending 30, 60, 90 or 180 days thereafter, (2) with respect to each
Eurodollar Loan, at the Borrower's option, the period commencing on
the date of such Loan and ending one, two, three or six months
thereafter and (3) with respect to each Base Rate Loan the period
commencing on the date of such Loan and ending 30 days thereafter
provided, that:
(a) any Interest Period which would otherwise end on a day
which is not a Eurodollar Business Day shall be extended to the
next succeeding Eurodollar Business Day unless with respect to a
Eurodollar Loan such Eurodollar Business Day falls in another
calendar month, in which case such Interest Period shall end on
the next preceding EuroDollar Business Day;
(b) with respect to a Eurodollar Loan, any Interest Period
which begins on the last Eurodollar Business Day of the calendar
month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall, subject to clause (c) below, end on the
last Eurodollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date;
provided further, however, that if any such Interest Period
shall be less than 30 days, the Loan for such Interest Period
shall be a Base Rate Loan.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or other encumbrance of any kind in
respect of such asset. For purposes of this Agreement, the Borrower or
any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or
lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
"Loan" and "Loans" means a Domestic Loan, a Eurodollar Loan, or a
Money Market Rate Loan, as the context may require.
"London Interbank Offered Rate" has the meaning set forth in
Section 2.5(C) hereof.
"Material Plan" means at any time a Plan or Plans having
aggregate unfunded benefit liabilities (within the meaning of Section
4001(a)(18) of ERISA) in excess of $25,000,000.
"Money Market Rate Loan" means a Loan made by the Bank to the
Borrower pursuant to Section 2.5(D) hereof.
"Multiemployer Plan" means at any time an employee pension
benefit plan that is a "multiemployer plan" within the meaning of
Section 4001(a)(3) of ERISA to which any member of the ERISA Group is
then making or accruing an obligation to make contributions or has
within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA
Group during such five year period.
"Note or Notes" means the promissory note of the Borrower,
substantially in the form of Exhibits A and B hereto evidencing the
obligation of the Borrower to repay the Loans.
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Participant" has the meaning set forth in Section 8.3.
"Person" means an individual, a corporation, a partnership, an
association, a business trust or any other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time a defined benefit pension plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or
subject to the minimum funding standards-under Section 412 of the Code
and either (i) is maintained, or contributed to, by any member of the
ERISA Group for employees of any member of the ERISA Group or (ii) has
at any time within the preceding five years been maintained, or
contributed to, by any Person which was at such time a member of the
ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Significant Subsidiary" or "Significant Group of Subsidiaries"
at any time of determination means any Consolidated Subsidiary or
group of Consolidated Subsidiaries, respectively, which, individually
or in the aggregate, together with its or their Subsidiaries, accounts
or account for more than 10% of the consolidated gross revenues of the
Borrower and its Consolidated Subsidiaries for the most recently ended
fiscal year or for more than 10% of the total assets of the Borrower
and its Consolidated Subsidiaries as of the end of such fiscal year;
provided that in connection with any determination with respect to a
Significant Group of Subsidiaries under (x) Section 7(e), there shall
be a payment default, failure or other event (of the type described
therein but without regard to the principal amount of such obligation)
of each Consolidated Subsidiary included in such group, (y) Sections
7(f) and (g) and the last sentence of Section 6.10, the condition or
event described therein shall exist with respect to each Consolidated
Subsidiary included in such group or (z) Section 7(i), there shall be
a final judgment (of the type specified therein but without regard to
the amount of such judgment) rendered against each Consolidated
Subsidiary included in such group.
"Subsidiary" means any corporation or other entity of which
securities or other ownership interests having ordinary voting power
to elect a majority of the board of directors or other persons
performing similar functions is at the time directly or indirectly
owned by the Borrower.
"Termination Date" means April 30, 2002 or such later date to
which the Commitment is extended in accordance with Section 2.13
hereof.
"Total Borrowed Funds" means at any date, without duplication,
(i) all outstanding obligations of the Borrower and its Consolidated
Subsidiaries for borrowed money, (ii) all outstanding obligations of
the Borrower and its Consolidated Subsidiaries evidenced by bonds,
debentures, notes or similar instruments and (iii) any outstanding
obligations of the type set forth in (i) or (ii) of any other Person
Guaranteed by the Borrower and its Consolidated Subsidiaries, it being
understood that the obligation to repurchase securities transferred
pursuant to a securities repurchase agreement shall not be deemed to
give rise to any amount of Total Borrowed Funds pursuant to this
definition.
1.2 Accounting Terms and Determinations. Unless otherwise specified herein,
all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time, applied on a basis
consistent (except for changes concurred in by the Borrower's independent public
accountants) with the most recent audited consolidated financial statements of
the Borrower and its Consolidated Subsidiaries delivered to the Bank.
SECTION 2
THE LOANS
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2.1 Commitment. At any time prior to the Termination Date the Bank agrees,
on the terms and conditions set forth in this Agreement, to lend to the Borrower
from time to time amounts not exceeding in the aggregate at any one time
outstanding the principal amount of $25,000,000 (the "Commitment"). Each Loan
under this Section 2.1 shall be in the principal amount of $1,000,000 (except
that any such Loan may be in the amount of the unused Commitment) or any larger
multiple thereof. During such period and within the foregoing limits, the
Borrower may borrow under this Section 2.1, repay or to the extent permitted by
Section 2.9 hereof prepay Loans and reborrow under this Section 2.1.
2.2 Method of Borrowing.
(a) With respect to each Loan made pursuant to Section 2.1 hereof, the
Borrower shall give the Bank notice prior to 11:00 a.m. on the drawdown
date in the case of a Base Rate Loan, at least one Domestic Business Day's
notice in the case of a CD Loan, or at least three Eurodollar Business
Days' notice in the case of a Eurodollar Loan, specifying:
(i) the date of such Loan, which shall be a Domestic Business Day
in the case of a Domestic Loan and a EuroDollar Business Day in the
case of a Eurodollar Loan;
(ii) the principal amount of such Loan;
(iii) whether the Loan is to be a Base Rate Loan, a CD Loan or a
Eurodollar Loan; and
(iv) in the case of a Fixed Rate Loan, the duration of the
Interest Period applicable thereto, subject to the definition of
Interest Period.
(b) On the date of each Loan the Bank will make the proceeds thereof
available to the Borrower at the Domestic Lending Office.
(c) If the Bank makes a new Loan hereunder on a day which the Borrower
is to repay all or any part of an outstanding Loan, the Bank shall apply
the proceeds of its new Loan to make such repayment and only an amount
equal to the difference (if any) between the amount being borrowed and the
amount being repaid shall be made available by the Bank to the Borrower as
provided in subsection (b) of this
Section or remitted by the Borrower to the Bank as provided in Section
2.10 hereof, as the case may be.
2.3 The Note.
(a) The Loans shall be evidenced by a single Note payable to the order
of the Bank for the account of its Applicable Lending Office in an amount
equal to the aggregate unpaid principal amount of the Loans. The Money
Market Rate Loans shall be evidenced by the Money Market Rate Note, a form
of which is attached hereto as Exhibit B.
(b) The Bank shall record and prior to any transfer, if permitted, of
its Note, shall endorse on the schedule forming a part thereof appropriate
notations evidencing the date, the type, the amount and the maturity of
each Loan to be evidenced by the Note and the date and amount of each
payment of principal made by the Borrower with respect thereto; provided
that the failure of the Bank to make any such recordation or endorsement
shall not affect the obligations of the Borrower hereunder or under the
Note and, further provided, the Bank shall make such additions and
deletions as the Borrower may request in order to correct any mistakes. The
Bank is hereby irrevocably authorized by the Borrower so to endorse the
Note and to attach to and make a part of the Note a continuation of any
such schedule as and when required.
2.4 Maturity of Loans. Each Loan shall mature, and the principal amount
thereof shall be due and payable, on the last day of the Interest Period
applicable to such Loan. Each Money Market Rate Loan shall mature at such time
as may be agreed to by the Bank and the Borrower.
2.5 Interest Rates.
(a) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Loan is made
until it becomes due, at a rate per annum equal to the Base Rate. Such
interest shall be payable for each Interest Period on the last day thereof.
Any overdue principal of and, to the extent permitted by law, overdue
interest on the Base Rate Loans shall bear interest during such overdue
period for each day until paid at a rate per annum equal to the sum of 1%
plus the otherwise applicable rate for such day, payable on demand of the
Bank.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each Interest Period applicable thereto, at a rate per
annum equal to the applicable Fixed CD Rate; provided that if any CD Loan
or any portion thereof shall, as a result of clause (c) of the definition
of Interest Period, have an Interest Period of less than 30 days, such
portion shall bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such Period. Such interest shall be
payable for each Interest Period on the last day thereof and, if such
Interest Period is longer than 90 days, at intervals of 90 days after the
first day thereof. Any overdue principal of and, to the extent permitted by
law, overdue interest on the CD Loans shall bear interest during such
overdue period for each day until paid at a rate per annum equal to the sum
of 1% plus the higher of (i) the Fixed CD Rate applicable to such Loan and
(ii) the rate applicable to Base Rate Loans for such day, payable on demand
of the Bank.
The "Fixed CD Rate" applicable to any CD Loan for any Interest
Period means a rate per annum equal to the sum of the CD Margin plus
the applicable Adjusted CD Rate.
The "CD Margin" means (i) .4250%, if at the end of each of the
two most recently completed fiscal quarters the Borrower's ratio of
Total Borrowed Funds to Consolidated Net Worth was equal to or less
than .40 to 1 and the Borrower's ratio to Cash Flow to Total Borrowed
Funds was equal to or greater than .50 to 1; or (ii) .5250%, if (a)
the conditions of clause (i) have not been satisfied and (b) at the
end of each of the two most recently completed fiscal quarters the
Borrower's ratio of Total Borrowed Funds to Consolidated Net Worth was
equal to or less than .70 to 1 and the Borrower's ratio of Cash Flow
to Total Borrowed Funds was equal to or greater than .35 to 1; or
(iii) .6250%, if the conditions set forth in both clauses (i) and (ii)
are not satisfied.
The "Adjusted CD Rate" applicable to any Interest Period means a
rate per annum determined pursuant to the following formula:
( CDBR )
ACDR = (---------) + AR
( 1 - DRP )
ACDR = Adjusted CD Rate for such Interest Period
CDBR = CD Base Rate for such Interest Period
AR = Assessment Rate
DRP = Domestic Reserve Percentage
The "CD Base Rate" means for any Interest Period the prevailing
per annum rate of interest as reasonably determined by the Bank
(rounded upward, if necessary, to the next higher 1/100 of 1%) bid at
11:00 a.m. (New York time) (or as soon thereafter as practicable) on
the first day of such Interest Period by two or more certificate of
deposit dealers of recognized standing selected by the Bank for the
purchase at face value of US dollar certificates of deposit issued by
major New York banks in an amount comparable to the principal amount
of the CD Loan to which such Interest Period applies and with a
maturity comparable to such Interest Period.
The "Domestic Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement
(including, without limitation, any basic, supplemental or emergency
reserves) for a member bank of the Federal Reserve System with
deposits exceeding five billion Dollars in respect of new non-personal
time deposits in Dollars having a maturity comparable to the related
Interest Period and in an amount of $100,000 or more. The Fixed CD
Rate shall be adjusted automatically on and as of the effective date
of any change in the Domestic Reserve Percentage.
"Assessment Rate" means for any Interest Period the net annual
assessment rate (rounded upwards, if necessary, to the next higher
1/100 of 1%) actually incurred by the Bank to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or
such successor's) insuring time deposits at offices of the Bank in the
United States during the most recent period for which such rate has
been determined prior to the commencement of such Interest Period.
(c) Each Eurodollar Loan shall bear interest on the unpaid principal
amount thereof, for the Interest Period applicable thereto, at a rate per
annum equal to the sum of the Eurodollar Margin plus the applicable
Adjusted London Interbank Offered Rate. Such interest shall be payable for
each Interest Period on the last day thereof and, if such Interest Period
is longer than three months, at intervals of three months after the first
day thereof. Any overdue principal of and, to the extent permitted by law,
overdue interest on the Eurodollar Loans shall bear interest for each day
until paid at a rate per annum equal to the sum of 1% plus the higher of
(i) the rate of interest applicable to such Loan and (ii) the rate
applicable to Base Rate Loans for such day, payable on demand of the Bank.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained
(rounded upwards, if necessary, to the next higher 1/100 of 1%) by
dividing (i) the applicable London Interbank Offered Rate by (ii) 1.00
minus the Eurodollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest
Period means the rate per annum at which deposits in Dollars are
offered to the Bank in the London interbank market at approximately
11:00 a.m. (London time) two Eurodollar Business Days prior to the
first day of such Interest Period in an amount approximately equal to
the principal amount of the Eurodollar Loan to which such Interest
Period is to apply and for a period of time comparable to such
Interest Period.
The "Eurodollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement for a
member bank of the Federal Reserve System with deposits exceeding five
billion dollars in respect of "Eurocurrency liabilities" (or in
respect of any other category of liabilities which includes deposits
by reference to which the interest rate on Eurodollar Loans is
determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of the Bank to
United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any
change in the Eurodollar Reserve Percentage.
The "Eurodollar Margin" means (i) .30%, if at the end of each of
the two most recently completed fiscal quarters the Borrower's ratio
of Total Borrowed Funds to Consolidated Net Worth was equal to or less
than .40 to 1 and the Borrower's ratio of Cash Flow to Total Borrowed
Funds was equal to or greater than .50 to 1; or (ii) .40%, if (a) the
conditions of clause (i) have not been satisfied and (b) at the end of
each of the two most recently completed fiscal quarters the Borrower's
ratio of Total Borrowed Funds to Consolidated Net Worth was equal to
or less than .70 to 1 and the Borrower's ratio of Cash Flow to Total
Borrowed Funds was equal to or greater than .35 to 1; or (iii) .50%,
if the conditions set forth in both clauses (i) and (ii) are not
satisfied.
(d) Each Money Market Rate Loan shall be made by the Bank to the
Borrower upon such terms and conditions and in such amounts as may be
agreed upon from time to time by the Bank and the Borrower. Each Money
Market Rate Loan shall be evidenced by a Note in the form of Exhibit B
hereto.
2.6 Fees. The Borrower shall pay to the Bank a commitment fee computed on
the unused portion of the Commitment. The per annum commitment fee shall be on
any date from and after the date hereof (i) .125% of the unused portion of the
Commitment, if at the end of each of the two most recently completed fiscal
quarters the Borrower's ratio of Total Borrowed Funds to Consolidated Net Worth
was equal to or less than .40 to 1 and the Borrower's ratio of Cash Flow to
Total Borrowed Funds was equal to or greater than .50 to 1; or (ii) .15% of the
unused portion of the Commitment, if (a) the conditions of clause (i) have not
been satisfied and (b) at the end of each of the two most recently completed
fiscal quarters the Borrower's ratio of Total Borrowed Funds to Consolidated Net
Worth was equal to or less than .70 to 1 and the Borrower's ratio of Cash Flow
to Total Borrowed Funds was equal to or greater than .35 to 1; or (iii) .180% of
the unused portion of the Commitment, if the conditions set forth in clauses (i)
and (ii) are not satisfied. Such fees shall accrue from the date hereof to and
including the Termination Date and shall be payable quarterly in arrears on the
last day of each June, September, December and March and on any date on which
the Commitment is terminated or otherwise reduced.
2.7 Optional Termination or Reduction of Commitment. The Borrower may, upon
at least three Domestic Business Days' notice to the Bank, terminate at any
time, or reduce from time to time the unused portion of the Commitment. Any such
reduction of the Commitment shall be in the amount of $1,000,000 or any larger
multiple thereof. If the Commitment is terminated in its entirety, the accrued
commitment fee shall be payable on the effective date of such termination.
2.8 Mandatory Termination or Reduction of Commitment. If not previously
terminated by the Borrower pursuant to Section 2.7, the Commitment shall
terminate on the Termination Date, and any Loans then outstanding (together with
accrued interest thereon) shall be due and payable on such date.
2.9 Optional Prepayments.
(a) The Borrower may, upon at least one Domestic Business Day's
notice to the Bank, prepay the Base Rate Loans without premium or
penalty in whole at any time or from time to time in part in an amount
equal to $1,000,000 or any multiple of $1,000,000 in excess thereof
(or such lesser amount as applicable if less than $1,000,000 is
outstanding) by paying the principal amount being prepaid together
with accrued interest thereon to the date of prepayment.
(b) Except as provided in Section 4.2 hereof, the Borrower may
not prepay all or any portion of the principal amount of any Fixed
Rate Loan prior to the maturity thereof.
2.10 General Provisions as to Payments. The Borrower shall make each
payment of principal of, and interest on, the Loans and of commitment fees
hereunder not later than 11:00 a.m. (New York City time) on the date when due in
funds immediately available at the office of the Bank in New York, New York for
the account of (i) the Domestic Lending Office in the case of Domestic Loans and
Money Market Rate Loans or (ii) the Eurodollar Lending Office in the case of
Eurodollar Loans. Whenever any payment of principal of, or interest on, the
Domestic Loans, the Money Market Rate Loans, the commitment fee shall be due on
a day which is not a Domestic Business Day, the date for payment thereof shall
be extended to the next succeeding Domestic Business Day. Whenever any payment
of principal of, or interest on, the Eurodollar Loans shall be due on a day
which is not a Eurodollar Business Day, the date for payment thereof shall be
extended to the next succeeding Eurodollar Business Day unless as a result
thereof it would fall in the next calendar month, in which case it shall be
advanced to the next preceding EuroDollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
shall be payable for such extended time.
2.11 Computation of Interest and Fees. Interest on the Loans bearing
interest based on clause (i) of the definition of Base Rate shall be computed on
the basis of a year of 365 or 366 days, as the case may be, and paid for actual
days elapsed. Interest on Loans bearing interest based on clause (ii) of the
definition of Base Rate, the CD Loans, the Eurodollar Loans and the calculation
of the commitment fee shall be computed on the basis of a year of 360 days and
paid for actual days elapsed.
2.12 Funding Losses. If the Borrower makes any payment of principal with
respect to any Fixed Rate Loan (pursuant to Section 4 or Section 7 or otherwise)
on any day other than the last day of an Interest Period applicable to such
Loan, or if the Borrower fails to borrow any Fixed Rate Loan after notice has
been given to the Bank in accordance with Section 2.2 hereof, the Borrower shall
reimburse the Bank on demand for any resulting loss or expense incurred by it
(or by any existing or prospective Participant in the related Loan) including
(without limitation) any loss incurred in obtaining, liquidating or employing
deposits from third parties; provided that the Bank shall have delivered to the
Borrower a certificate by a Bank officer as to the amount of such loss.
2.13 Extension of Commitment. Not more than 60 nor less than 45 days prior
to each date which is either the second or third anniversary of this Agreement,
the Borrower may request in writing that the Bank extend the Commitment for an
additional period of one year from the then current Termination Date. If the
Bank, in its sole discretion, decides to grant such request, it shall so notify
the Borrower not less than 30 days before the then current Termination Date in
writing, whereupon the Commitment shall be extended for an additional period of
one year from the then current Termination Date, and the term "Termination Date"
shall thereafter refer to the date that the Commitment, as so extended, will
terminate. If not extended as provided in this Section 2.13, the Commitment will
automatically terminate on the then current Termination Date without further
action by the Borrower or the Bank.
SECTION 3
CONDITIONS OF LENDING
---------------------
The obligation of the Bank to make each Loan hereunder is subject to the
performance by the Borrower of all its obligations under this Agreement and to
the satisfaction of the following further conditions:
3.1 All Loans. In the case of each Loan hereunder, including the initial
Loan:
(a) receipt by the Bank of the notice from the Borrower required by
Section 2.2 hereof;
(b) the fact that immediately after the making of the Loan no Default
with respect to Sections 6.1(d), 6.6, 6.7, 6.8, 6.9 or 6.10 or Event of
Default shall have occurred and be continuing, except that in the case of
any Loan which, after the application of proceeds thereof, results in no
net increase in the outstanding principal amount of Loans made by the Bank,
the fact that immediately after the making of the Loan, no Event of Default
shall have occurred and be continuing;
(c) the fact that the representations and warranties contained in this
Agreement shall be true on and as of the date of the Loan (except, in the
case of any Loan which, after the application of the proceeds thereof,
results in no net increase in the outstanding principal amount of Loans
made by the Bank, the representations and warranties set forth in Sections
5.4(B) and 5.5 so long as the Borrower has disclosed to the Bank any matter
which would cause any such representation to be untrue on the date of such
Loan); and
(d) receipt by the Bank of such other documents, evidence, materials
and information with respect to the matters contemplated hereby as the Bank
may reasonably request.
Each borrowing hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Loan as to the facts specified in
(b) and (c) of this Section.
3.2 Initial Loan. In the case of the initial Loan:
(a) receipt by the Bank of a duly executed Note;
(b) receipt by the Bank of an opinion of counsel to the Borrower as to
the matters referred to in Sections 5.1, 5.2, 5.3, 5.5 and 5.8 hereof, and
covering such other matters as the Bank may reasonably request, dated the
date of such Loan, satisfactory in form and substance to the Bank;
(c) receipt by the Bank of certified copies of all corporate action
taken by the Borrower to authorize the execution, delivery and performance
of this Agreement and the Note, and the Loans hereunder and such other
corporate documents and other papers as the Bank may reasonably request;
(d) receipt by the Bank of a certificate of a duly authorized officer
of the Borrower as to the incumbency, and setting forth a specimen
signature, of each of the persons (i) who has signed this Agreement on
behalf of the Borrower; (ii) who will sign the Note on behalf of the
Borrower; and (iii) who will, until replaced by other persons duly
authorized for that purpose, act as the representatives of the Borrower for
the purpose of signing documents in connection with this Agreement and the
transactions contemplated hereby; and
(e) receipt by the Bank of a certificate of a duly authorized officer
of the Borrower to the effect set forth in Sections 3.1(b) and 3.1(c)
hereof.
SECTION 4
CHANGE IN CIRCUMSTANCES AFFECTING LOANS
---------------------------------------
4.1 Basis for Determining Interest Rate Inadequate. If on or prior to the
first day of any Interest Period deposits in Dollars (in the applicable amounts)
are not being offered to the Bank in the relevant market for such Interest
Period, the Bank shall forthwith give notice thereof to the Borrower, whereupon
the obligations of the Bank to make CD Loans or Eurodollar Loans, as the case
may be, shall be suspended until the Bank notifies the Borrower that the
circumstances giving rise to such suspension no longer exist. Unless the
Borrower notifies the Bank at least two Domestic Business Days before the date
of any Fixed Rate Loan for which a notice of borrowing has previously been given
that it elects not to borrow on such date, such Loan shall instead be made as a
Base Rate Loan or the notice of borrowing may be withdrawn.
4.2 Illegality. If, after the date of this Agreement, the adoption of any
applicable law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by the Bank (or its EuroDollar Lending Office) with any
request or directive (whether or not having the force of law) of any such
authority, central bank or comparable agency shall make it unlawful or
impossible for the Bank (or its Eurodollar Lending Office) to make, maintain or
fund its Eurodollar Loans, the Bank shall forthwith so notify the Borrower,
whereupon the Bank's obligation to make Eurodollar Loans shall be suspended.
Before giving any notice to the Borrower pursuant to this Section 4.2, the Bank
will designate a different Eurodollar Lending Office if such designation will
avoid the need for giving such notice and will not, in the judgment of the Bank,
be otherwise disadvantageous to the Bank. If the Bank shall determine that it
may not lawfully continue to maintain and fund any of its outstanding Eurodollar
Loans to maturity and shall so specify in such notice, the Borrower shall
immediately prepay in full the then outstanding principal amount of each such
Eurodollar Loan, together with accrued interest thereon.
4.3 Increased Costs and Reduced Returns.
(a) If, after the date hereof, the adoption of any applicable law,
rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof or compliance by the Bank (or its Applicable Lending
Office) with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency:
(i) shall subject the Bank (or its Applicable Lending Office) to
any tax, duty or other charge with respect to its obligation to make
Fixed Rate Loans, its Fixed Rate Loans, or its Note, or shall change
the basis of taxation of payments to the Bank (or its Applicable
Lending Office) of the principal of or interest on its Fixed Rate
Loans or in respect of any other amounts due under this Agreement, in
respect of its Fixed Rate Loans or its obligation to make Fixed Rate
Loans, (except for changes in the rate of tax on the overall net
income of the Bank or its Applicable Lending Office imposed by the
jurisdiction in which the Bank's principal executive office or
Applicable Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve System, but
excluding (A) with respect to any CD Loan any such requirement
included in an applicable Domestic Reserve Percentage and (B) with
respect to any Eurodollar Loan any such requirement included in an
applicable Eurodollar Reserve Percentage) against assets of, deposits
with or for the account of, or credit extended by, the Bank (or its
Applicable Lending Office) or shall impose on the Bank (or its
Applicable Lending Office) or on the United States market for
certificates of deposit or the London interbank market any other
condition affecting its obligation to make Fixed Rate Loans, its Fixed
Rate Loans or its Note;
and the result of any of the foregoing is to increase the cost to
the Bank (or its Applicable Lending Office) of making or maintaining
any Fixed Rate Loan, or to reduce the amount of any sum received or
receivable by the Bank (or its Applicable Lending Office) under this
Agreement or under its Note with respect thereto, by an amount deemed
by the Bank to be material, then, within 15 days after demand by the
Bank, the Borrower agrees to pay to the Bank such additional amount or
amounts as will compensate the Bank for such increased cost or
reduction.
(b) If the Bank shall have determined that the adoption, after the
date hereof, of any applicable law, rule or regulation regarding capital
adequacy, or any change therein, or any change in the interpretation or
administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration
thereof, or compliance by the Bank (or its Applicable Lending Office) with
any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on the Bank's
capital as a consequence of its obligations hereunder to a level below that
which the Bank could have achieved but for such adoption, change or
compliance (taking into consideration the Bank's policies with respect to
capital adequacy) by an amount deemed by the Bank to be material, then from
time to time, within 15 days after demand by the Bank, the Borrower shall
pay to such Bank such additional amount or amounts as will compensate the
Bank for such reduction.
(c) The Bank will promptly notify the Borrower of any event of which
it has knowledge, occurring after the date hereof, which will entitle the
Bank to compensation pursuant to this Section and will designate a
different Applicable Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the
judgment of the Bank, be otherwise disadvantageous to the Bank. A
certificate by an officer of the Bank claiming compensation under this
Section and setting forth the additional amount or amounts to be paid to it
hereunder shall, in the absence of manifest error, constitute prima facie
evidence of such amount. In determining such amount, the Bank may use any
reasonable averaging and attribution methods.
SECTION 5
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower hereby represents and warrants to the Bank that:
5.1 Corporate Existence and Power. The Borrower is a corporation duly
organized, incorporated, validly existing and in good standing under the laws of
the State of its incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
5.2 Corporate and Governmental Authorization: Contravention. The execution,
delivery and performance by the Borrower of this Agreement and the Note are
within the Borrower's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Borrower or of any judgment,
injunction, order, decree, material agreement or other instrument binding upon
the Borrower or result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Consolidated Subsidiaries.
5.3 Binding Effect. This Agreement constitutes a valid and binding
agreement of the Borrower and the Notes, when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of the Borrower.
5.4 Financial Information.
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as at December 31, 1998 and the related
consolidated statements of income and retained earnings and cash flows of
the Borrower and its Consolidated Subsidiaries for the fiscal year then
ended, certified by PricewaterhouseCoopers, certified public accountants,
and set forth in the Borrower's most recent Annual Report on Form 10-K, a
copy of which has been delivered to the Bank, fairly present in conformity
with generally accepted accounting principles, the consolidated financial
position of the Borrower and its Consolidated Subsidiaries at such date and
the consolidated results of operations for such fiscal year;
(b) Since December 31, 1998 there has been no material adverse change
in the business, financial position or results of operations of the
Borrower and its Consolidated Subsidiaries, considered as a whole, other
than as a result of the recognition of post-employment costs prior to the
period in which such benefits are paid.
5.5 Litigation. There is no action, suit or proceeding pending against, or
to the knowledge of the Borrower threatened against, the Borrower or any of its
Consolidated Subsidiaries before any court or arbitrator or any governmental
body, agency or official in which there is a significant probability of an
adverse decision which would materially adversely affect the business,
consolidated financial position or consolidated results of operations of the
Borrower and its Consolidated Subsidiaries taken as a whole or which in any
manner draws into question the validity of this Agreement or the Notes.
5.6 Compliance with ERISA. Each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code except where the failure
to comply would not have a material adverse effect on the Borrower and its
Consolidated Subsidiaries taken as a whole. No member of the ERISA Group has
incurred any unsatisfied material liability to the PBGC or a Plan under Title IV
of ERISA other than a liability to the PBGC for premiums under Section 4007 of
ERISA.
5.7 Taxes. United States Federal income tax returns of the Borrower and its
Consolidated Subsidiaries have been examined and closed through the fiscal year
ended December 31, 1993. The Borrower and its Consolidated Subsidiaries have
filed all United States Federal income tax returns and all other material tax
returns which are required to be filed by them and have paid all taxes due
reported on such returns or pursuant to any assessment received by the Borrower
or any Consolidated Subsidiary, to the extent that such assessment has become
due. The charges, accruals and reserves on the books of the Borrower and its
Consolidated Subsidiaries in respect of taxes or other governmental charges are,
in the opinion of the Borrower, adequate except for those which are being
contested in good faith by the Borrower.
5.8 Subsidiaries. Each of the Borrower's Consolidated Subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted, all to the extent material to the
Borrower and its Subsidiaries taken as a whole.
SECTION 6
COVENANTS
---------
So long as the Commitment shall be in effect or the Note is outstanding,
the Borrower agrees that:
6.1 Information. The Borrower will deliver to the Bank:
(a) as soon as available and in any event within 95 days after the end
of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as at the end of such year, and
consolidated statements of income and retained earnings and statement of
cash flows of the Borrower and its Consolidated Subsidiaries for such year,
setting forth in each case in comparative form the figures for the
preceding fiscal year, all reported on by PricewaterhouseCoopers or other
independent certified public accountants of nationally recognized standing;
(b) as soon as available and in any event within 50 days after the end
of each of the first three quarters of each fiscal year of the Borrower, an
unaudited consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as at the end of such quarter and the related unaudited
consolidated statements of income and retained earnings and statement of
cash flows of the Borrower and its Consolidated Subsidiaries for such
quarter and for the portion of the Borrower's fiscal year ended at the end
of such quarter setting forth in each case in comparative form the figures
for the corresponding quarter and the corresponding portion of the
Borrower's previous fiscal year, all certified (subject to changes
resulting from year-end adjustments) as to fairness of presentation, in
conformity with generally accepted accounting principles (other than as to
footnotes) and consistency except to the extent of any changes described
therein and permitted by generally accepted accounting principles) by the
chief financial officer or the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the chief accounting officer of the Borrower (i)
setting forth in reasonable detail the calculations required to establish
whether the Borrower was in compliance with the requirements of Sections
6.6 to 6.8, inclusive, on the date of such financial statements and (ii)
stating whether any Default has occurred and is continuing on the date of
such certificate and, if any Default then has occurred and is continuing,
setting forth the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d) within 10 days of the chief executive officer, chief operating
officer, principal financial officer or principal accounting officer of the
Borrower obtaining knowledge of any event or circumstance known by such
person to constitute a Default, if such Default is then continuing, a
certificate of the principal financial officer or the principal accounting
officer of the Borrower setting forth the details thereof and within five
days thereafter, a certificate of either of such officers setting forth the
action which the Borrower is taking or proposes to take with respect
thereto;
(e) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and annual, quarterly or monthly reports
which the Borrower shall have filed with the Securities and Exchange
Commission;
(g) if and when the chief executive officer, chief operating officer,
principal financial officer or principal accounting officer of the Borrower
obtains knowledge that any member of the ERISA Group (i) has given or is
required to give notice to the PBGC of any "reportable event" (as defined
in Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give
notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC; (ii) has
received notice of complete or partial withdrawal liability under Title IV
of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; or (iii) has
received notice from the PBGC under Title IV of ERISA of an intent to
terminate, impose liability other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy
of such notice;
(h) if at any time the value of all "margin stock" (as defined in
Regulation U) owned by the Borrower and its Consolidated Subsidiaries
exceeds (or would, following application of the proceeds of an intended
Loan hereunder, exceed) 25% of the value of the total assets of the
Borrower and its Consolidated Subsidiaries, in each case as reasonably
determined by the Borrower, prompt notice of such fact; and
(i) from time to time such additional information regarding the
financial position or business of the Borrower as the Bank may reasonably
request; provided, however, that the Borrower shall be deemed to have
satisfied its obligations under clauses (a) and (b) above if and to the
extent that the Borrower has provided to the Bank pursuant to clause (f)
the periodic reports on Forms 10-Q and 10-K required to be filed by the
Borrower with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, for the quarterly and annual
periods described in such clauses (a) and (b).
6.2 Maintenance of Property; Insurance.
(a) The Borrower will maintain or cause to be maintained in good
repair, working order and condition all properties used and useful in the
business of the Borrower and each Consolidated Subsidiary and from time to
time will make or cause to be made all appropriate repairs, renewals and
replacement thereof, except where the failure to do so would not have a
material adverse effect on the Borrower and its Consolidated Subsidiaries
taken as a whole.
(b) The Borrower will maintain or cause to be maintained, for itself
and its Consolidated Subsidiaries, all to the extent material to the
Borrower and its Consolidated Subsidiaries taken as a whole, physical
damage insurance on all real and personal property on an all risks basis,
covering the repair and replacement cost of all such property and
consequential loss coverage for business interruption and extra expense,
public liability insurance in an amount not less than $10,000,000 and such
other insurance of the kinds customarily insured against by corporations of
established reputation engaged in the same or similar business and
similarly situated, of such type and in such amounts as are customarily
carried under similar circumstances.
6.3 Conduct of Business and Maintenance of Existence. The Borrower will
continue, and will cause each Consolidated Subsidiary to continue, to engage
predominantly in business of the same general type as now conducted by the
Borrower and its Consolidated Subsidiaries, and, except as otherwise permitted
by Section 6.10 hereof, will preserve, renew and keep in full force and effect,
and will cause each Consolidated Subsidiary to preserve, renew and keep in full
force and effect their respective corporate existence and their respective
rights and franchises necessary in the normal conduct of business, all to the
extent material to the Borrower and its Consolidated Subsidiaries taken as a
whole.
6.4 Compliance with Laws. The Borrower will comply, and cause each
Consolidated Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and requirements of governmental
authorities (including, without limitation, ERISA and the rules and regulations
thereunder and all federal, state and local statutes laws or regulations or
other governmental restrictions relating to environmental protection, hazardous
substances or the cleanup or other remediation thereof) except where the
necessity of compliance therewith is contested in good faith by appropriate
proceedings or where the failure to comply would not have a material adverse
effect on the Borrower and its Consolidated Subsidiaries taken as a whole.
6.5 Inspection of Property, Books and Records.
(a) The Borrower will keep, and will cause each Consolidated
Subsidiary to keep, proper books of record and account in accordance with
sound business practice so as to permit its financial statements to be
prepared in accordance with generally accepted accounting principles; and
will permit representatives of the Bank at the Bank's expense to visit and
inspect any of the Borrower's properties, to examine and make abstracts
from any of the Borrower's corporate books and financial records and to
discuss the Borrower's affairs, finances and accounts with the principal
officers of the Borrower and its independent public accountants, all at
such reasonable times and as often as may reasonably be necessary to ensure
compliance by the Borrower with its obligations hereunder.
(b) With the consent of the Borrower (which consent will not be
unreasonably withheld) or, if an Event of Default has occurred and is
continuing, without the requirement of any such consent, the Borrower will
permit representatives of the Bank, at the Bank's expense, to visit and
inspect any of the properties of and to examine the corporate books and
financial records of any Consolidated Subsidiary and make copies thereof or
extracts therefrom and to discuss the affairs, finances and accounts of
such Consolidated Subsidiary with its and the Borrower's principal officers
and the Borrower's independent public accountants, all at such reasonable
times and as often as the Bank may reasonably request.
6.6 Cash Flow to Total Borrowed Funds. The ratio of Cash Flow to Total
Borrowed Funds shall not be less than .30 for any consecutive four quarters,
such ratio to be calculated at the end of each quarter on a trailing four
quarter basis.
6.7 Total Borrowed Funds to Consolidated Net Worth. Total Borrowed Funds
will not exceed 85% of Consolidated Net Worth at end of any quarter of any
fiscal year.
6.8 Minimum Consolidated Net Worth. Consolidated Net Worth will at no time
be less than $550,000,000 plus 25% of the consolidated net income of the
Borrower at the end of each fiscal quarter for each fiscal year commencing after
the fiscal year ending December 31, 1994.
6.9 Negative Pledge. Neither the Borrower nor any Consolidated Subsidiary
will create, assume or suffer to exist any Lien on any asset now owned or
hereafter acquired by it, except for:
(a) Liens existing on the date hereof;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Consolidated Subsidiary and not created in
contemplation of such event;
(c) any Lien on any asset securing Debt incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that such Lien attaches to such asset concurrently with or within
90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged into or consolidated with the Borrower or a
Consolidated Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition thereof by
the Borrower or a Consolidated Subsidiary and not created in contemplation
of such acquisition;
(f) any Lien created in connection with capitalized lease obligations,
but only to the extent that such Lien encumbers property financed by such
capital lease obligation and the principal component of such capitalized
lease obligation is not increased;
(g) Liens arising in the ordinary course of its business which (i) do
not secure Debt and (ii) do not in the aggregate materially impair the
operation of the business of the Borrower and its Consolidated
Subsidiaries, taken as a whole;
(h) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the foregoing
clauses of this Section, provided that such Debt is not increased and is
not secured by any additional assets;
(i) Liens securing taxes, assessments, fees or other governmental
charges or levies, Liens securing the claims of materialmen, mechanics,
carriers, landlords, warehousemen and similar Persons, Liens incurred in
the ordinary course of business in connection with workmen's compensation,
unemployment insurance and other similar laws, Liens to secure surety,
appeal and performance bonds and other similar obligations not incurred in
connection with the borrowing of money, and attachment, judgment and other
similar Liens arising in connection with court proceedings so long as the
enforcement of such Liens is effectively stayed and the claims secured
thereby are being contested in good faith by appropriate proceedings;
(j) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal amount at any time
outstanding not to exceed 10% of Consolidated Net Worth; and
(k) any Liens on property arising in connection with a securities
repurchase transaction.
6.10 Consolidations, Mergers and Sales of Assets. The Borrower will not (i)
consolidate or merge with or into any other Person (other than a Subsidiary of
the Borrower) unless the Borrower's shareholders immediately before the merger
or consolidation are to own more than 70% of the combined voting power of the
resulting entity's voting securities or (ii) sell, lease or otherwise transfer
all or substantially all of the Borrower's business or assets to any other
Person (other than a Subsidiary of the Borrower). The Borrower will not permit
any Significant Subsidiary or (in a series of related transactions) any
Significant Group of Subsidiaries to consolidate with, merge with or into or
transfer all of any substantial part of its assets to any Person other than the
Borrower or a Subsidiary of the Borrower.
6.11 Use of Proceeds. The proceeds of the Loans will be used for general
corporate purposes, including the making of acquisitions. No part of the
proceeds of any Loan hereunder will be used, directly or indirectly, for the
purpose, whether immediate, incidental or ultimate of buying or carrying any
"margin stock" in violation of Regulation U. If requested by the Bank, the
Borrower will furnish to the Bank in connection with any Loan hereunder a
statement in conformity with the requirements of Federal Reserve Form U-l
referred to in Regulation U.
SECTION 7
EVENTS OF DEFAULT
-----------------
7.1 Events of Default. If any one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay (i) any principal of any Loan when
due or (ii) interest on any Loan or any commitment fee within four days
after the same has become due; or
(b) the Borrower shall fail to observe or perform any covenant
contained in Section 6.1(d) or Sections 6.6 to 6.8 or 6.10 hereof; or
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for 30 days after written notice thereof has been given
to the Borrower by the Bank; or
(d) any representation, warranty or certification made by the Borrower
in this Agreement or in any certificate, financial statement or other
document delivered pursuant to this Agreement shall prove to have been
incorrect in any material respect upon the date when made or deemed made;
or
(e) (1) the Borrower or any Significant Subsidiary or Significant
Group of Subsidiaries defaults in any payment at any stated maturity of
principal of or interest on any other obligation for money borrowed (or any
capitalized lease obligation, any obligation under a purchase money
mortgage, conditional sale or other title retention agreement or any
obligation under notes payable or drafts accepted representing extensions
of credit) beyond any period of grace provided with respect thereto or (2)
the Borrower or any Significant Subsidiary or Significant Group of
Subsidiaries defaults in any payment other than at any stated maturity of
principal of or interest on any other obligation for money borrowed (or any
capitalized lease obligation, any obligation under a purchase money
mortgage, conditional sale or other title retention agreement or any
obligation under notes payable or drafts accepted representing extensions
of credit) beyond any period of grace provided with respect thereto, or the
Borrower or any Significant Subsidiary or Significant Group of Subsidiaries
fails to perform or observe any other agreement, term or condition
contained in any agreement under which any such obligation is created (or
if any other event thereunder or under any such agreement shall occur and
be continuing), and the effect of such default with respect to a payment
other than at any stated maturity, failure or other event is to cause, or
to permit the holder or holders of such obligation (or a trustee on behalf
of such holder or holders) to cause, such obligation to become due or to
require the purchase thereof prior to any stated maturity; Provided that
the aggregate amount of all obligations as to which any such payment
defaults (whether or not at stated maturity), failures or other events
shall have occurred and be continuing exceeds $10,000,000 and provided,
further, that it is understood that the obligations referred to herein
exclude those obligations arising in connection with securities repurchase
transactions; or
(f) the Borrower or any Significant Subsidiary or Significant Group of
Subsidiaries shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial
part of its property, or shall consent to any such relief or to the
appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any corporate action to authorize
any of the foregoing; or
(g) an involuntary case or other proceeding shall be commenced against
the Borrower or any Significant Subsidiary or Significant Group of
Subsidiaries seeking liquidation, reorganization or other relief with
respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or other
proceeding shall remain undismissed and unstayed for a period of 60 days;
or an order for relief shall be entered against the Borrower or any
Significant Subsidiary or Significant Group of Subsidiaries under the
federal bankruptcy laws as now or hereafter in effect; or
(h) any member of the ERISA Group shall fail to pay when due any
amount or amounts aggregating in excess of $1,000,000 which it shall have
become liable to pay to the PBGC or to a Plan under Title IV of ERISA
(except where such liability is contested in good faith by appropriate
proceedings as permitted under Section 6.4); or notice of intent to
terminate a Material Plan (other than any multiple employer plan within the
meaning of Section 4063 of ERISA) shall be filed under Title IV of ERISA by
any member of the ERISA Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in respect of, or to cause a trustee to be appointed
to administer any such Material Plan; or
(i) judgments or orders for the payment of money in excess of
$10,000,000 in the aggregate shall be rendered against the Borrower or any
Significant Subsidiary or Significant Group of Subsidiaries and such
judgments or orders shall continue unsatisfied and unstayed for a period of
60 days; or
(j) any person or group of persons (within the meaning of Section
13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the
"1934 Act")), other than the Borrower or any of its Subsidiaries, becomes
the beneficial owner (within the meaning of Rule 13d-3 under the 1934 Act)
of 30% or more of the combined voting power of the Borrower's then
outstanding voting securities; or a tender offer or exchange offer (other
than an offer by the Borrower or a Subsidiary) pursuant to which 30% or
more of the combined voting power of the Borrower's then outstanding voting
securities was purchased, expires; or during any period of two consecutive
years, individuals who, at the beginning of such period, constituted the
Board of Directors of the Borrower cease for any reason to constitute at
least a majority thereof, unless the election or the nomination for the
election by the Borrower's stockholders of each new director was approved
by a vote of at least two-thirds of the directors then still in office who
were directors at the beginning of the period;
then, and in every such event, (1) in the case of any of the Events of
Default specified in paragraphs (f) or (g) above, the Commitment shall
thereupon automatically be terminated and the principal of and accrued
interest on the Note shall automatically become due and payable without
presentment, demand, protest or other notice or formality of any kind, all
of which are hereby expressly waived and (2) in the case of any other Event
of Default specified above, the Bank may, by notice in writing to the
Borrower, terminate the Commitment hereunder, if still in existence, and it
shall thereupon be terminated, and the Bank may, by notice in writing to
the Borrower, declare the Note and all other sums payable under this
Agreement to be, and the same shall thereupon forthwith become, due and
payable without presentment, demand, protest or other notice or formality
of any kind, all of which are hereby expressly waived.
SECTION 8
MISCELLANEOUS
-------------
8.1 Notices. Unless otherwise specified herein all notices, requests,
demands or other communications to or from the parties hereto shall be sent by
United States mail, certified, return receipt requested, telegram, telex or
facsimile, and shall be deemed to have been duly given upon receipt thereof. In
the case of a telex, receipt of such communication shall be deemed to occur when
the sender receives its answer back. In the case of a facsimile, receipt of such
communication shall be deemed to occur when the sender confirms such receipt by
telephone. Any such notice, request, demand or communication shall be delivered
or addressed as follows:
(a) if to the Borrower, to it at 1271 Avenue of the Americas, New
York, New York 10020; Attention: Vice President and Treasurer (with a copy
at the same address to the Senior Vice President and General Counsel);
(b) if to the Bank, communications relating to its Eurodollar Loans
shall be delivered or addressed to the address or telex number set forth on
the signature pages hereof for its Eurodollar Lending Office and all other
communications shall be delivered or addressed to the address or telex
number set forth on the signature pages hereof for its Domestic Lending
Office;
or at such other address or telex number as any party hereto may
designate by written notice to the other party hereto.
8.2 Amendments and Waivers; Cumulative Remedies.
(a) None of the terms of this Agreement may be waived, altered or
amended except by an instrument in writing duly executed by the Borrower
and the Bank.
(b) No failure or delay by the Bank in exercising any right, power or
privilege hereunder or under the Note shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies provided herein shall be cumulative and
not exclusive of any rights or remedies provided by law.
8.3 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and shall
inure to the benefit of the Borrower and the Bank, except that the Borrower
may not assign or otherwise transfer any of its rights and obligations
under this Agreement except as provided in Section 6.10 hereof, without the
prior written consent of the Bank which the Bank shall not unreasonably
delay or withhold.
(b) The Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its
Commitment or any or all of its Loans. In the event of any such grant by
the Bank of a participating interest to a Participant, whether or not upon
notice to the Borrower the Bank shall remain responsible for the
performance of its obligations hereunder, and the Borrower shall continue
to deal solely and directly with the Bank in connection with the Bank's
rights and obligations under this Agreement. Any agreement pursuant to
which the Bank may grant such a participating interest shall provide that
the Bank shall retain the sole right and responsibility to enforce the
obligations of the Borrower hereunder including, without limitation, the
right to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such participation agreement may provide that
the Bank will not agree to any modification, amendment or waiver of this
Agreement (i) which increases or decreases the Commitment of the Bank (ii)
reduces the principal of or rate of interest on any Loan or fees hereunder
or (iii) postpones the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder without the consent of the
Participant. The Borrower agrees that each Participant shall be entitled to
the benefits of Sections 2.12 and 4 with respect to its participating
interest.
(c) The Bank may at any time assign all or any portion of its rights
under this Agreement and the Note or Notes to a Federal Reserve Bank. No
such assignment shall release the Bank from its obligations hereunder.
(d) No Participant or other transferee of the Bank's rights shall be
entitled to receive any greater payment under Sections 2.12 and 4.1 through
4.3 than the Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 4.3(c) requiring
the Bank to designate a different Applicable Lending Office under certain
circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
8.4 Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all out-of-pocket expenses and internal
charges of the Bank (including reasonable fees and disbursements of
counsel) in connection with any Default hereunder and (ii) if there is an
Event of Default, all out-of-pocket expenses incurred by the Bank
(including reasonable fees and disbursements of counsel) in connection with
such Event of Default and collection and other enforcement proceedings
resulting therefrom. The Borrower shall indemnify the Bank against any
transfer taxes, documentary taxes, assessments or charges made by any
governmental authority by reason of the execution and delivery of this
Agreement or the Note.
(b) The Borrower agrees to indemnify the Bank and hold the Bank
harmless from and against any and all liabilities, losses, damages, costs
and expenses of any kind (including, without limitation, the reasonable
fees and disbursements of counsel for the Bank in connection with any
investigative, administrative or judicial proceeding, whether or not the
Bank shall be designated a party thereto) which may be incurred by the Bank
relating to or arising out of any actual or proposed use of proceeds of
Loans hereunder or any merger or acquisition involving the Borrower;
provided, that the Bank shall not have the right to be indemnified
hereunder for its own gross negligence or willful misconduct as determined
by a court of competent jurisdiction.
8.5 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
8.6 Headings; Table of Contents. The section and subsection headings used
herein and the Table of Contents have been inserted for convenience of reference
only and do not constitute matters to be considered in interpreting this
Agreement.
8.7 Governing Law. This Agreement and the Note shall be construed in
accordance with and governed by the law of the State of New York.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered by their proper and duly authorized officers as of May 1,
1999.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By: /s/ Alan Forster
-------------------------------------
VP & Treasurer
-------------------------------------
HSBC BANK USA
By: /s/ Jeremy P. Bollington
-------------------------------------
Title: Vice President
----------------------------------
Domestic & Eurodollar Lending Office
HSBC Bank USA
140 Broadway
New York, New York 10005-1196
Attn: Mr. Jeremy P. Bollington
VP, Multinationals
Tel #(212) 658-1830
Fax #(212) 658-5109
Fed Wire: ABA Number: 021-001-088
Account Number: 002-600-102
Account Name: Commercial Loans
Reference: The Interpublic Group of
Companies, Inc.
Attention: Lydia Rivera
Loan Administrator
EXHIBIT A
NOTE
----
US $25,000,000 May 1, 1999
New York, New York
FOR VALUE RECEIVED, THE INTERPUBLIC GROUP OF COMPANIES, INC.,
a Delaware corporation (the "Borrower"), hereby promises to pay to the order of
HSBC BANK USA (the "Bank"), for the account of its Applicable Lending Office,
the unpaid principal amount of each Loan made by the Bank to the Borrower
pursuant to the Credit Agreement referred to below on the last day of the
Interest Period relating to such Loan. The Borrower promises to pay interest on
the unpaid principal amount of each such Loan on the dates and at the rate or
rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in
lawful money of the United States of America in Federal or other immediately
available funds at the office of the Bank located at 140 Broadway, New York, New
York 10005.
All Loans made by the Bank, the respective maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This note is the Note referred to in the Credit Agreement
dated as of May 1, 1999 between the Borrower and the Bank (as the same may be
amended from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment hereof and the acceleration
of the maturity hereof.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By:
-------------------------------------
Title:
----------------------------------
LOANS AND PAYMENTS OF PRINCIPAL
- ---------------------------------------------------------------------------------------
Amount of
Amount of Principal Maturity Notation
Date Loan Type of Loan Repaid Date Made By
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
EXHIBIT B
MONEY MARKET NOTE
-----------------
May 1, 1999
New York, New York
FOR VALUE RECEIVED, THE INTERPUBLIC GROUP OF COMPANIES, INC.,
a Delaware corporation (the "Borrower"), hereby promises to pay to the order of
HSBC BANK USA (the "Bank"), for the account of its Domestic Lending Office,
Money Market Rate Loans made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below upon such terms and conditions as may be agreed upon
pursuant to said Credit Agreement. The Borrower promises to pay interest on the
unpaid principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement.
All such payments of principal and interest shall be made in
lawful money of the United States of America in Federal or other immediately
available funds at the office of the Bank located at 140 Broadway, New York, New
York, 10005.
All Money Market Loans made by the Bank, the respective
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, prior to any transfer hereof, endorsed by the Bank on the
schedule attached hereto, or on a continuation of such schedule attached to and
made a part hereof; provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Money Market Notes referred to in the
Credit Agreement dated as of May 1, 1999 between the Borrower and the Bank (as
the same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By:
-------------------------------------
Title:
----------------------------------
LOANS AND PAYMENTS OF PRINCIPAL
- ---------------------------------------------------------------------------------------
Amount of
Amount of Principal Maturity Notation
Date Loan Type of Loan Repaid Date Made By
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
EXHIBIT 10B
NOTE
----
US $25,000,000 May 1, 1999
New York, New York
FOR VALUE RECEIVED, THE INTERPUBLIC GROUP OF COMPANIES, INC.,
a Delaware corporation (the "Borrower"), hereby promises to pay to the order of
HSBC BANK USA (the "Bank"), for the account of its Applicable Lending Office,
the unpaid principal amount of each Loan made by the Bank to the Borrower
pursuant to the Credit Agreement referred to below on the last day of the
Interest Period relating to such Loan. The Borrower promises to pay interest on
the unpaid principal amount of each such Loan on the dates and at the rate or
rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in
lawful money of the United States of America in Federal or other immediately
available funds at the office of the Bank located at 140 Broadway, New York, New
York 10005.
All Loans made by the Bank, the respective maturities thereof
and all repayments of the principal thereof shall be recorded by the Bank and,
prior to any transfer hereof, endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that the failure of the Bank to make any such recordation or
endorsement shall not affect the obligations of the Borrower hereunder or under
the Credit Agreement.
This note is the Note referred to in the Credit Agreement
dated as of May 1, 1999 between the Borrower and the Bank (as the same may be
amended from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment hereof and the acceleration
of the maturity hereof.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: /s/ Alan Forster
-------------------------------------
Title: VP & Treasurer
----------------------------------
LOANS AND PAYMENTS OF PRINCIPAL
- ---------------------------------------------------------------------------------------
Amount of
Amount of Principal Maturity Notation
Date Loan Type of Loan Repaid Date Made By
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
EXHIBIT 10C
MONEY MARKET NOTE
-----------------
May 1, 1999
New York, New York
FOR VALUE RECEIVED, THE INTERPUBLIC GROUP OF COMPANIES, INC.,
a Delaware corporation (the "Borrower"), hereby promises to pay to the order of
HSBC BANK USA (the "Bank"), for the account of its Domestic Lending Office,
Money Market Rate Loans made by the Bank to the Borrower pursuant to the Credit
Agreement referred to below upon such terms and conditions as may be agreed upon
pursuant to said Credit Agreement. The Borrower promises to pay interest on the
unpaid principal amount of each such Loan on the dates and at the rate or rates
provided for in the Credit Agreement.
All such payments of principal and interest shall be made in
lawful money of the United States of America in Federal or other immediately
available funds at the office of the Bank located at 140 Broadway, New York, New
York, 10005.
All Money Market Loans made by the Bank, the respective
maturities thereof and all repayments of the principal thereof shall be recorded
by the Bank and, prior to any transfer hereof, endorsed by the Bank on the
schedule attached hereto, or on a continuation of such schedule attached to and
made a part hereof; provided that the failure of the Bank to make any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This note is one of the Money Market Notes referred to in the
Credit Agreement dated as of May 1, 1999 between the Borrower and the Bank (as
the same may be amended from time to time, the "Credit Agreement"). Terms
defined in the Credit Agreement are used herein with the same meanings.
Reference is made to the Credit Agreement for provisions for the prepayment
hereof and the acceleration of the maturity hereof.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: /s/ Alan M. Forster
-------------------------------------
Alan M. Forster
Title: Vice President & Treasurer
----------------------------------
LOANS AND PAYMENTS OF PRINCIPAL
- ---------------------------------------------------------------------------------------
Amount of
Amount of Principal Maturity Notation
Date Loan Type of Loan Repaid Date Made By
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
- ------------ ------------ ------------ ------------ ------------ ------------
EX 10-D
$361,000,000
THE INTERPUBLIC GROUP OF COMPANIES, INC.
1.87% CONVERTIBLE SUBORDINATED NOTES DUE 2006
PURCHASE AGREEMENT
May 26, 1999
May 26, 1999
Morgan Stanley & Co. Incorporated
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Sirs and Mesdames:
The Interpublic Group of Companies, Inc., a Delaware corporation (the
"COMPANY"), proposes to issue and sell to the several purchasers named in
Schedule I hereto (the "INITIAL PURCHASERS") $313,000,000 aggregate principal
amount at maturity of its 1.87% Convertible Subordinated Notes due 2006 (the
"FIRM SECURITIES") to be issued pursuant to the provisions of an Indenture dated
as of June 1, 1999 (the "INDENTURE") between the Company and The Bank of New
York, as Trustee (the "TRUSTEE"). The Company also proposes to issue and sell to
the Initial Purchasers not more than an additional $48,000,000 aggregate
principal amount at maturity of its 1.87% Convertible Subordinated Notes due
2006 (the "Additional Securities") if and to the extent that you, as Managers of
the offering, shall have determined to exercise, on behalf of the Initial
Purchasers, the right to purchase such 1.87% Convertible Subordinated Notes due
2006 granted to the Initial Purchasers in Section 2 hereof. The Firm Securities
and the Additional Securities are hereinafter collectively referred to as the
"SECURITIES". The Securities will be convertible into shares of Common Plan of
the Company, par value $0.10 per share (the "COMMON STOCK" and such reserved
convertible shares into which the Securities are convertible, the "UNDERLYING
SECURITIES"), together with the rights (the "RIGHTS") evidenced by such
Underlying Securities to the extent provided in the Preferred Share Rights Plan
(the "RIGHTS PLAN") dated as of August 1, 1989, between the Company and First
Chicago Trust Company of New York.
The Securities will be offered without being registered under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), to qualified
institutional buyers in compliance with the exemption from registration provided
by Rule 144A under the Securities Act, and to institutional accredited investors
(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that
deliver a letter in the form annexed to the Final Memorandum (as defined below).
The Initial Purchasers and their direct and indirect transferees will
be entitled to the benefits of a Registration Rights Agreement dated the date
hereof between the Company and the Initial Purchasers (the "REGISTRATION RIGHTS
AGREEMENT").
In connection with the sale of the Securities, the Company has prepared
a preliminary offering memorandum (the "PRELIMINARY MEMORANDUM") and will
prepare a final offering memorandum (the "FINAL MEMORANDUM" and, with the
Preliminary Memorandum, each a "MEMORANDUM") including or incorporating by
reference a description of the terms of the Securities and the Underlying
Securities, the terms of the offering and a description of the Company. As used
herein, the term "Memorandum" shall include in each case the documents
incorporated by reference therein. The terms "SUPPLEMENT", "AMENDMENT" and
"AMEND" as used herein with respect to a Memorandum shall include all documents
deemed to be incorporated by reference in the Preliminary Memorandum or Final
Memorandum that are filed subsequent to the date of such Memorandum with the
Securities and Exchange Commission (the "COMMISSION") pursuant to the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT").
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, you that:
(a) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act that is incorporated by reference in either
Memorandum complied or will comply when so filed in all material
respects with the Exchange Act and the applicable rules and regulations
of the Commission thereunder and (ii) the Preliminary Memorandum does
not contain and the Final Memorandum, in the form used by the Initial
Purchasers to confirm sales and on the Closing Date (as defined in
Section 4), will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in either
Memorandum based upon information relating to any Initial Purchaser
furnished to the Company in writing by such Initial Purchaser through
you expressly for use therein.
(b) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in each Memorandum and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(c) Each wholly-owned subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its
business as described in each Memorandum and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so incorporated or qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims, except to the
extent that the failure to be so authorized, issued and fully paid and
non-assessable and so owned would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
(e) The Final Memorandum describes accurately as to legal
matters in all material respects the authorized capital stock of the
Company.
(f) The shares of Common Plan outstanding on the date hereof
have been duly authorized and are validly issued, fully paid and
non-assessable.
(g) The Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Initial Purchasers in
accordance with the terms of this Agreement, will be valid and binding
obligations of the Company, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and general principles of equity, and will
be entitled to the benefits of the Indenture pursuant to which such
Securities are to be issued and the Registration Rights Agreement.
(h) (1) The Underlying Securities issuable upon conversion of
the Securities have been duly authorized and reserved and, when issued
upon conversion of the Securities in accordance with the terms of the
Securities, will be validly issued, fully paid and non-assessable, and
the issuance of the Underlying Securities will not be subject to any
preemptive or similar rights and (2) the Rights, if any, issuable upon
conversion of the Securities have been duly authorized and, when and if
issued upon conversion in accordance with the terms of the Indenture
and the Rights Plan, will have been validly issued.
(i) Each of the Indenture and the Registration Rights
Agreement will be, as of the Closing Date, duly authorized, executed
and delivered by, and will be, as of the Closing Date, a valid and
binding agreement of, the Company, enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally and general
principles of equity and except as rights to indemnification and
contribution under the Registration Rights Agreement may be limited
under applicable law.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Registration Rights Agreement and the Securities
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, the Indenture, the
Registration Rights Agreement or the Securities, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Securities and by Federal and
state securities laws with respect to the Company's obligations under
the Registration Rights Agreement.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Final Memorandum.
(l) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of the
Company or any of its subsidiaries is subject other than proceedings
accurately described in all material respects in each Memorandum and
proceedings that would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, or on the power or
ability of the Company to perform its obligations under this Agreement,
the Indenture, the Registration Rights Agreement or the Securities or
to consummate the transactions contemplated by the Final Memorandum.
(m) The Company is not, and after giving effect to the
offering and sale of the Securities and the application of the proceeds
thereof as described in the Final Memorandum, will not be an
"investment company" as such term is defined in the Investment Company
Act of 1940, as amended.
(n) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act, an "AFFILIATE") of the
Company has directly, or through any agent (other than the Initial
Purchasers or any Affiliate of any Initial Purchasers, as to which no
representation is made), (i) sold, offered for sale, solicited offers
to buy or otherwise negotiated in respect of, any security (as defined
in the Securities Act) which is or will be integrated with the sale of
the Securities in a manner that would require the registration under
the Securities Act of the Securities or (ii) engaged in any form of
general solicitation or general advertising in connection with the
offering of the Securities, (as those terms are used in Regulation D
under the Securities Act) or in any manner involving a public offering
within the meaning of Section 4(2) of the Securities Act.
(o) It is not necessary in connection with the offer, sale and
delivery of the Securities to the Initial Purchasers in the manner
contemplated by this Agreement to register the Securities under the
Securities Act or to qualify the Indenture under the Trust Indenture
Act of 1939, as amended.
(p) The Securities satisfy the requirements set forth in Rule
144A(d)(3) under the Securities Act.
(q) The Company has reviewed and is continuing to review its
operations and that of its subsidiaries to evaluate the extent to which
the business or operations of the Company or any of its subsidiaries
will be affected by the Year 2000 Problem (that is, any significant
risk that computer hardware or software applications used by the
Company and its subsidiaries will not, in the case of dates or time
periods occurring after December 31, 1999, function at least as
effectively as in the case of dates or time periods occurring prior to
January 1, 2000); as a result of such review, (i) the Company has no
reason to believe, and does not believe, that (A) there are any issues
related to the Company's preparedness to address the Year 2000 Problem
that are of a character required to be described or referred to in the
Preliminary Memorandum or Final Memorandum which have not been
accurately described in the Preliminary Memorandum or Final Memorandum
and (B) the Year 2000 Problem will have a material adverse effect on
the condition, financial or otherwise, or on the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, or
result in any material loss or interference with the business or
operations of the Company and its subsidiaries, taken as a whole; and
(ii) the Company reasonably believes, after due inquiry, that the
critical suppliers, vendors, customers or other material third parties
used or served by the Company and such subsidiaries are addressing or
will address the Year 2000 Problem in a timely manner (or that the
Company has a reasonable belief that its contingency plans for such
third parties' failure to address the Year 2000 Problem will be in
place) except to the extent that a failure to address the Year 2000
Problem by any such critical supplier, vendor, customer or other
material third party would not have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business or
operations of the Company and its subsidiaries, taken as a whole.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Initial Purchasers, and each Initial Purchaser, upon the basis of
the representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective aggregate principal amount at maturity of Firm
Securities set forth in Schedule I hereto opposite its name at a purchase price
of 81.218% of the aggregate principal amount thereof at maturity (the "PURCHASE
PRICE") plus accrued interest, if any, to the Closing Date.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Initial Purchasers the Additional Securities, and the Initial Purchasers
shall have a one-time right to purchase, severally and not jointly, up to
$48,000,000 aggregate principal amount at maturity of Additional Securities at
the Purchase Price plus accrued interest, if any, to the date of payment and
delivery. If Morgan Stanley & Co. Incorporated, on behalf of the Initial
Purchasers, elects to exercise such option, Morgan Stanley & Co. Incorporated
shall so notify the Company in writing not later than 30 days after the date of
this Agreement, which notice shall specify the aggregate principal amount at
maturity of Additional Securities to be purchased by the Initial Purchasers and
the date on which such Additional Securities are to be purchased. Such date may
be the same as the Closing Date but not earlier than the Closing Date nor later
than ten business days after the date of such notice. Additional Securities may
be purchased as provided in Section 4 solely for the purpose of covering
over-allotments made in connection with the offering of the Firm Securities. If
any Additional Securities are to be purchased, each Initial Purchaser agrees,
severally and not jointly, to purchase the aggregate principal amount at
maturity of Additional Securities (subject to such adjustments to eliminate
fractional Securities as you may determine) that bears the same proportion to
the total aggregate principal amount at maturity of Additional Securities to be
purchased as the aggregate principal amount at maturity of Firm Securities set
forth in Schedule I opposite the name of such Initial Purchaser bears to the
total aggregate principal amount at maturity of Firm Securities.
The Company hereby agrees that, without the prior written consent of
Morgan Stanley & Co. Incorporated on behalf of the Initial Purchasers, it will
not, during the period ending 90 days after the date of the Final Memorandum,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any shares of common stock or any securities convertible into or
exercisable or exchangeable for common stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the common stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of common stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the sale of the Securities under this Agreement,
(B) the issuance of Common Plan upon conversion of the Securities or other
debentures outstanding on the date hereof, (C) the grant of any option or the
issuance by the Company of any shares of common stock upon the exercise of an
option outstanding on the date hereof pursuant to the Company stock option
plans, (D) the issuance of any shares of restricted stock pursuant to the
Company's employees incentive plan or (E) the issuance of Common Plan as
consideration for acquisitions or the contracting to do so; provided however
that in no event shall the amount of Common Plan issued pursuant to clause (E)
exceed 2% of the total number of shares of Common Plan outstanding as at the
date hereof.
3. Terms of Offering. You have advised the Company that the Initial
Purchasers will make an offering of the Securities purchased by the Initial
Purchasers hereunder on the terms to be set forth in the Final Memorandum, as
soon as practicable after this Agreement is entered into as in your judgment is
advisable.
4. Payment and Delivery. Payment for the Firm Securities shall be
made to the Company in Federal or other funds immediately available in New York
City against delivery of such Firm Securities for the respective accounts of the
several Initial Purchasers at 10:00 a.m., New York City time, on June 1, 1999,
or at such other time on the same or such other date, not later than June 8,
1999, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "CLOSING DATE."
Payment for any Additional Securities shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Securities for the respective accounts of the several Initial
Purchasers at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than July 9,1999, as shall be designated in writing
by you. The time and date of such payment are hereinafter referred to as the
"Option Closing Date."
Certificates for the Firm Securities and Additional Securities shall be
in definitive form or global form, as specified by you and as required under the
terms of the Indenture, and registered in such names and in such denominations
as you shall request in writing not later than one full business day prior to
the Closing Date or the Option Closing Date, as the case may be. The
certificates evidencing the Firm Securities and Additional Securities shall be
delivered to you on the Closing Date or the Option Closing Date, as the case may
be, for the respective accounts of the several Initial Purchasers, with any
transfer taxes payable in connection with the transfer of the Securities to the
Initial Purchasers duly paid, against payment of the Purchase Price therefor
plus accrued interest, if any, to the date of payment and delivery.
5. Conditions to the Initial Purchasers' Obligations. The several
obligations of the Initial Purchasers to purchase and pay for the Firm
Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any
change, or any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Final Memorandum (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement) that, in
your judgment, is material and adverse and that makes it, in your
judgment, impracticable to market the Securities on the terms and in
the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive
officer of the Company, to the effect that the representations and
warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied hereunder on or before the Closing Date.
(c) The Initial Purchasers shall have received on the Closing
Date an opinion of Cleary, Gottlieb, Steen & Hamilton, outside counsel
for the Company, dated the Closing Date, to the effect set forth in
Exhibit A.
(d) The Initial Purchasers shall receive on the Closing Date
an opinion of Nicholas J. Camera, General Counsel to the Company, to
the effect set forth in Exhibit B.
(e) The Initial Purchasers shall have received on the Closing
Date an opinion of Davis Polk & Wardwell, counsel for the Initial
Purchasers, dated the Closing Date, to the effect set forth in Exhibit
C.
(f) The Initial Purchasers shall have received on each of the
date hereof and the Closing Date a letter, dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Initial Purchasers, from PricewaterhouseCoopers LLP., independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into each
Memorandum; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(g) The "lock-up" agreements, each substantially in the form
of Exhibit D hereto, between you and Philip H. Geier, Jr., Eugene P.
Beard, John J. Dooner, Jr., Frank B. Lowe and Martin F. Puris of the
Company relating to sales and certain other dispositions of shares of
common stock or certain other securities, delivered to you on or before
the date hereof, shall be in full force and effect on the Closing Date.
The several obligations of the Initial Purchasers to purchase
Additional Securities hereunder are subject to the delivery to you on the Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization, execution and
authentication and issuance of the Additional Securities and other matters
related to the execution, authentication and issuance of the Additional
Securities.
6. Covenants of the Company. In further consideration of the
agreements of the Initial Purchasers contained in this Agreement, the Company
covenants with each Initial Purchaser as follows:
(a) To furnish to you in New York City, without charge, prior
to 5:00 p.m. New York City time on the business day next succeeding the
date of this Agreement and during the period mentioned in Section 6(c),
as many copies of the Final Memorandum, any documents incorporated by
reference therein and any supplements and amendments thereto as you may
reasonably request.
(b) Before amending or supplementing either Memorandum, to
furnish to you a copy of each such proposed amendment or supplement.
(c) If, during such period after the date hereof and prior to
the date on which all of the Securities shall have been sold by the
Initial Purchasers, any event shall occur or condition exist as a
result of which it is necessary to amend or supplement the Final
Memorandum in order to make the statements therein, in the light of the
circumstances when the Final Memorandum is delivered to a purchaser,
not misleading, or if, in the opinion of counsel for the Initial
Purchasers, it is necessary to amend or supplement the Final Memorandum
to comply with applicable law, forthwith to prepare and furnish, at its
own expense, to the Initial Purchasers, either amendments or
supplements to the Final Memorandum so that the statements in the Final
Memorandum as so amended or supplemented will not, in the light of the
circumstances when the Final Memorandum is delivered to a purchaser, be
misleading or so that the Final Memorandum, as amended or supplemented,
will comply with applicable law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request.
(e) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the issuance and sale of the Securities
and all other fees or expenses in connection with the preparation of
each Memorandum and all amendments and supplements thereto, including
all printing costs associated therewith, and the delivering of copies
thereof to the Initial Purchasers, in the quantities herein above
specified, (ii) all costs and expenses related to the transfer and
delivery of the Securities to the Initial Purchasers, including any
transfer or other taxes payable thereon, (iii) the cost of printing or
producing any Blue Sky or legal investment memorandum in connection
with the offer and sale of the Securities under state securities laws
and all expenses in connection with the qualification of the Securities
for offer and sale under state securities laws as provided in Section
6(d) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Initial Purchasers in connection with
such qualification and in connection with the Blue Sky or legal
investment memorandum, (iv) any fees charged by rating agencies for the
rating of the Securities, (v) the fees and expenses, if any, incurred
in connection with the admission of the Securities for trading in
PORTAL or any appropriate market system, (vi) the costs and charges of
the Trustee and any transfer agent, registrar or depositary, (vii) the
cost of the preparation, issuance and delivery of the Securities,
(viii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the
marketing of the offering of the Securities, including, without
limitation, expenses associated with the production of road show slides
and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of
the Company, travel and lodging expenses of the representatives and
officers of the Company (for the avoidance of doubt, excluding
transportation and lodging expenses of the representatives of the
Initial Purchasers) and any such consultants, and the cost of any
aircraft chartered in connection with the road show and (ix) all other
cost and expenses of the Company incident to the performance of the
obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except
as provided in this Section 8, and the last paragraph of Section 10,
the Initial Purchasers will pay all of their costs and expenses,
including fees and disbursements of their counsel, transfer taxes
payable on resale of any of the Securities by them and any advertising
expenses connected with any offers they may make.
(f) Neither the Company nor any Affiliate will sell, offer for
sale or solicit offers to buy or otherwise negotiate in respect of any
security (as defined in the Securities Act) which could be integrated
with the sale of the Securities in a manner which would require the
registration under the Securities Act of the Securities.
(g) Not to solicit any offer to buy or offer or sell the
Securities or the Underlying Securities by means of any form of general
solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities
Act.
(h) While any of the Securities or the Underlying Securities
remain "restricted securities" within the meaning of the Securities
Act, to make available, upon request, to any seller of such Securities
the information specified in Rule 144A(d)(4) under the Securities Act,
unless the Company is then subject to Section 13 or 15(d) of the
Exchange Act.
(i) If requested by you, to use its best efforts to permit the
Securities to be designated PORTAL securities in accordance with the
rules and regulations adopted by the National Association of Securities
Dealers, Inc. relating to trading in the PORTAL Market.
(j) During the period of two years after the Closing Date or
the Option Closing Date, if later, the Company will not, and will not
permit any of its affiliates (as defined in Rule 144A under the
Securities Act) to resell any of the Securities or the Underlying
Securities which constitute "restricted securities" under Rule 144A
that have been reacquired by any of them.
7. Offering of Securities; Restrictions on Transfer. Each Initial
Purchaser, severally and not jointly, represents and warrants that such Initial
Purchaser is a qualified institutional buyer as defined in Rule 144A under the
Securities Act (a "QIB"). Each Initial Purchaser, severally and not jointly,
agrees with the Company that (i) it will not solicit offers for, or offer or
sell, such Securities by any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the
Securities Act and (ii) it will solicit offers for such Securities only from,
and will offer such Securities only to, persons that it reasonably believes to
be (1) QIBs or (2) other institutional accredited investors (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act ("INSTITUTIONAL ACCREDITED
INVESTORS") that, prior to their purchase of the Securities, deliver to such
Initial Purchaser a letter containing the representations and agreements set
forth in Annex A to the Memorandum that, in each case, in purchasing such
Securities are deemed to have represented and agreed as provided in the Final
Memorandum under the caption "Transfer Restrictions".
8. Indemnity and Contribution. (a) The Company agrees to indemnify
and hold harmless each Initial Purchaser and each person, if any, who controls
any Initial Purchaser within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in either Memorandum (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to any Initial Purchaser furnished to the Company in writing by such
Initial Purchaser through you expressly for use therein; provided, however, that
the indemnification contained in this paragraph (a) with respect to the
Preliminary Memorandum shall not inure to the benefit of any Initial Purchaser
(or to the benefit of any person controlling such Initial Purchaser) on account
of any such loss, claim, damage, judgment, liability or expense arising from the
sale of the Notes by such Initial Purchaser to any person if the untrue
statement or alleged untrue statement or omission or alleged omission of a
material fact contained in the Preliminary Memorandum was corrected in the Final
Memorandum and such Initial Purchaser sold Notes to that person without sending
or giving at or prior to the written confirmation of such sale, a copy of the
Final Memorandum (as then amended or supplemented) if the Company has previously
furnished sufficient copies thereof to such Initial Purchaser on a timely basis.
(b) Each Initial Purchaser agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers and each
person, if any, who controls the Company within the meaning of either Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Initial Purchaser, but only
with reference to information relating to such Initial Purchaser furnished to
the Company in writing by such Initial Purchaser through you expressly for use
in either Memorandum or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a) or 8(b), such person (the "INDEMNIFIED PARTY")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PARTY") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Morgan Stanley & Co. Incorporated, in the case of
parties indemnified pursuant to Section 8(a), and by the Company, in the case of
parties indemnified pursuant to Section 8(b). The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent the indemnification provided for in Section 8(a) or
8(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Initial Purchasers on
the other hand from the offering of the Securities or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company on the one
hand and of the Initial Purchasers on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Initial
Purchasers on the other hand in connection with the offering of the Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Securities (before deducting expenses) received by the
Company and the total discounts and commissions received by the Initial
Purchasers, in each case as set forth in the Final Memorandum, bear to the
aggregate offering price of the Securities. The relative fault of the Company on
the one hand and of the Initial Purchasers on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Initial
Purchasers' respective obligations to contribute pursuant to this Section 8 are
several in proportion to the respective aggregate principal amount at maturity
of Securities they have purchased hereunder, and not joint.
(e) The Company and the Initial Purchasers agree that it would not be
just or equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation (even if the Initial Purchasers were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 8(d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in Section 8(d) shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8, no Initial Purchaser shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities resold by
it in the initial placement of such Securities were offered to investors exceeds
the amount of any damages that such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 8 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of the
Company contained in this Agreement shall remain operative and in full force and
effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Initial Purchaser or any person
controlling any Initial Purchaser or by or on behalf of the Company, its
officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Securities.
9. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Plan Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board of Options Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses 9(a)(i) through 9(a)(iv),
such event, singly or together with any other such event, makes it, in your
judgment, impracticable to market the Securities on the terms and in the manner
contemplated in the Final Memorandum.
10. Effectiveness; Defaulting Initial Purchasers. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date, or the Option Closing Date, as the case may
be, any one or more of the Initial Purchasers shall fail or refuse to purchase
Securities that it or they have agreed to purchase hereunder on such date, and
the aggregate principal amount at maturity of Securities which such defaulting
Initial Purchaser or Initial Purchasers agreed but failed or refused to purchase
is not more than one-tenth of the aggregate principal amount at maturity of
Securities to be purchased on such date, the other Initial Purchasers shall be
obligated severally in the proportions that the aggregate principal amount at
maturity of Firm Securities set forth opposite their respective names in
Schedule I bears to the aggregate principal amount at maturity of Firm
Securities set forth opposite the names of all such non-defaulting Initial
Purchasers, or in such other proportions as you may specify, to purchase the
Securities which such defaulting Initial Purchaser or Initial Purchasers agreed
but failed or refused to purchase on such date; provided that in no event shall
the aggregate principal amount at maturity of Securities that any Initial
Purchaser has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 10 by an amount in excess of one-ninth of such
aggregate principal amount at maturity of Securities without the written consent
of such Initial Purchaser. If, on the Closing Date any Initial Purchaser or
Initial Purchasers shall fail or refuse to purchase Firm Securities which it or
they have agreed to purchase hereunder on such date and the aggregate principal
amount at maturity of Securities with respect to which such default occurs is
more than one-tenth of the aggregate principal amount at maturity of Firm
Securities to be purchased on such date, and arrangements satisfactory to you
and the Company for the purchase of such Firm Securities are not made within 36
hours after such default, this Agreement shall terminate without liability on
the part of any non-defaulting Initial Purchaser or of the Company. In any such
case either you or the Company shall have the right to postpone the Closing
Date, but in no event for longer than seven days, in order that the required
changes, if any, in the Final Memorandum or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Initial
Purchaser or Initial Purchasers shall fail or refuse to purchase Additional
Securities and the aggregate principal amount at maturity of Additional
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount at maturity of Additional Securities to be
purchased, the non-defaulting Initial Purchasers shall have the option to (a)
terminate their obligation hereunder to purchase Additional Securities or (b)
purchase not less than the aggregate principal amount at maturity of Additional
Securities that such non-defaulting Initial Purchasers would have been obligated
to purchase in the absence of such default. Any action taken under this
paragraph shall not relieve any defaulting Initial Purchaser from liability in
respect of any default of such Initial Purchaser under this Agreement.
If this Agreement shall be terminated by the Initial Purchasers, or any
of them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Initial Purchasers or such Initial
Purchasers as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and disbursements
of their counsel) reasonably incurred by such Initial Purchasers in connection
with this Agreement or the offering contemplated hereunder.
11. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
Very truly yours,
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By:
---------------------------------
Name:
Title:
Accepted as of the date hereof
Morgan Stanley & Co. Incorporated
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
Acting severally on behalf of themselves and the several Initial Purchasers
named in Schedule I hereto.
By: Morgan Stanley & Co. Incorporated
By:
-----------------------------------
Name:
Title:
SCHEDULE I
AGGREGATE PRINCIPAL
AMOUNT AT MATURITY OF
FIRM SECURITIES TO BE
INITIAL PURCHASER PURCHASED
- --------------------------------------------------------------------------
Morgan Stanley & Co. Incorporated.......... $219,100,000
Goldman, Sachs & Co........................ 46,950,000
Salomon Smith Barney Inc................... 46,950,000
-----------------------
Total:............................ $313,000,000
=======================
EXHIBIT A
OPINION OF CLEARY, GOTTLIEB, STEEN & HAMILTON
The opinion of Cleary, Gottlieb, Steen & Hamilton, outside counsel for
the Company, to be delivered pursuant to Section 5(c) of the Purchase Agreement
shall be to the effect that, subject to such counsel's standard qualifications
and assumptions:
A. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
B. The Securities have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Initial Purchasers in accordance with the
terms of the Purchase Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
general principles of equity, and will be entitled to the benefits of the
Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued.
C. Each of the Indenture and Registration Rights Agreement has been
duly authorized, executed and delivered by, and is a valid and binding agreement
of, the Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
general principles of equity and except as rights to indemnification and
contribution under the Registration Rights Agreement may be limited under
applicable law.
D. The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described
in the Final Memorandum, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended.
E. The statements in the Final Memorandum under the captions
"Description of the Notes", "Description of Capital Plan -- Rights" and
"Transfer Restrictions", insofar as such statements purport to summarize the
legal matters, documents or proceedings referred to therein, fairly summarize
the matters referred to therein.
F. The statements in the Final Memorandum under the caption "Certain
Federal Income Tax Considerations," insofar as such statements purport to
summarize federal laws of the United States referred to therein, constitute a
fair summary of the principal United States federal income tax considerations
relating to a purchase of the Notes.
G. Such counsel (i) is of the opinion that each document incorporated
by reference in the Final Memorandum (except for financial statements and
schedules and other financial and statistical data included therein as to which
such counsel need not express any opinion), complied as to form when filed with
the Commission in all material respects with the Exchange Act and the rules and
regulations of the Commission thereunder and (ii) has no reason to believe that
(except for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief) the Final
Memorandum when issued contained, or as of the date such opinion is delivered
contains, any untrue statement of a material fact or omitted or omits 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.
H. Based upon the representations, warranties and agreements of the
Company in Sections 1(n), 1(p), 6(f), and 6(g) of the Purchase Agreement and of
the Initial Purchasers in Section 7 of the Purchase Agreement, it is not
necessary in connection with the offer, sale and delivery of the Securities to
the Initial Purchasers under the Purchase Agreement or in connection with the
initial resale of such Securities by the Initial Purchasers in accordance with
Section 7 of the Purchase Agreement to register the Securities under the
Securities Act of 1933 or to qualify the Indenture under the Trust Indenture Act
of 1939, it being understood that no opinion is expressed as to any subsequent
resale of any Security or Underlying Security.
With respect to paragraph G above, counsel may state that his or her
opinion and belief are based upon his or her participation in the preparation of
the Final Memorandum (and any amendments or supplements thereto) and review and
discussion of the contents thereof and review of the documents incorporated by
reference therein, but are without independent check or verification except as
specified.
A-2
EXHIBIT B
OPINION OF GENERAL COUNSEL OF THE COMPANY
The opinion of Nicholas J. Camera, General Counsel for the Company, to
be delivered pursuant to Section 5(d) of the Purchase Agreement shall be to the
effect, subject to such counsel's standard qualifications and assumptions that:
A. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Final Memorandum and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
B. Each wholly-owned subsidiary of the Company has been duly
incorporated, is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described in the
Final Memorandum and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so incorporated or qualified or be in good
standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; all of the issued shares of capital stock of
each subsidiary of the Company have been duly and validly authorized and issued,
are fully paid and non-assessable, and are owned directly by the Company, free
and clear of all liens, encumbrances, equities or claims.
C. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
D. The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Final Memorandum.
E. The shares of common stock outstanding on the Closing Date have
been duly authorized and are validly issued, fully paid and non-assessable.
F. The Securities have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Initial Purchasers in accordance with the
terms of the Purchase Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
general principles of equity, and will be entitled to the benefits of the
Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued.
G. (1) The Underlying Securities reserved for issuance upon
conversion of the Securities have been duly authorized and reserved and, when
issued upon conversion of the Securities in accordance with the terms of the
Securities, will be validly issued, fully paid and non-assessable and the
issuance of the Underlying Securities will not be subject to any preemptive or
similar rights and (2) the Rights, if any, issuable upon conversion of the
Securities have been duly authorized and, when and if issued upon conversion in
accordance with the terms of the Indenture and the Rights Plan, will have been
validly issued.
H. Each of the Indenture and Registration Rights Agreement has been
duly authorized, executed and delivered by, and is a valid and binding agreement
of, the Company, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
general principles of equity and except as rights to indemnification and
contribution under the Registration Rights Agreement may be limited under
applicable law.
I. The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Purchase Agreement, the Indenture,
the Registration Rights Agreement and the Securities will not contravene any
provision of applicable law or the certificate of incorporation or by-laws of
the Company or, to the best of such counsel's knowledge, any agreement or other
instrument binding upon the Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, or, to the best of such
counsel's knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company of
its obligations under the Purchase Agreement, the Indenture, the Registration
Rights Agreement or the Securities, except such as may be required by the
securities or Blue Sky laws of the various states in connection with the offer
and sale of the Securities and by Federal and state securities laws with respect
to the Company's obligations under the Registration Rights Agreement.
B-2
J. After due inquiry, such counsel does not know of any legal or
governmental proceedings pending or threatened to which the Company or any of
its subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject other than proceedings fairly summarized in
all material respects in the Final Memorandum and proceedings which such counsel
believes are not likely to have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or on the power or ability of the Company to
perform its obligations under the Purchase Agreement, the Indenture, the
Registration Rights Agreement or the Securities or to consummate the
transactions contemplated by the Final Memorandum.
K. Such counsel (i) is of the opinion that each document incorporated
by reference in the Final Memorandum (except for financial statements and
schedules and other financial and statistical data included therein as to which
such counsel need not express any opinion), complied as to form when filed with
the Commission in all material respects with the Exchange Act and the rules and
regulations of the Commission thereunder and (ii) has no reason to believe that
(except for financial statements and schedules and other financial and
statistical data as to which such counsel need not express any belief) the Final
Memorandum when issued contained, or as of the date such opinion is delivered
contains, any untrue statement of a material fact or omitted or omits 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.
With respect to paragraph K above, counsel may state that his or her
opinion and belief are based upon his or her participation in the preparation of
the Final Memorandum (and any amendments or supplements thereto) and review and
discussion of the contents thereof and review of the documents incorporated by
reference therein, but are without independent check or verification except as
specified.
B-3
EXHIBIT C
OPINION OF DAVIS POLK & WARDWELL
The opinion of Davis Polk & Wardwell to be delivered pursuant to
Section 5(e) of the Purchase Agreement shall be to the effect that:
A. The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
B. The Securities have been duly authorized by the Company and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Initial Purchasers in accordance with the
terms of the Purchase Agreement, will be valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
general principles of equity, and will be entitled to the benefits of the
Indenture and the Registration Rights Agreement pursuant to which such
Securities are to be issued.
C. The Underlying Securities reserved for issuance upon conversion of
the Securities have been duly authorized and reserved and, when issued upon
conversion of the Securities in accordance with the terms of the Securities,
will be validly issued, fully paid and non-assessable, and the issuance of the
Underlying Securities will not be subject to any preemptive or similar rights
and the Rights, if any, issuable upon conversion of the Securities have been
duly authorized and, when and if issued upon conversion in accordance with the
terms of the Indenture and the Rights Plan, will have been validly issued.
D. Each of the Indenture and the Registration Rights Agreement has
been duly authorized, executed and delivered by, and is a valid and binding
agreement of, the Company, enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency or similar laws affecting creditors' rights
generally and general principles of equity and except as rights to
indemnification and contribution under the Registration Rights Agreement may be
limited under applicable law.
E. The statements in the Final Memorandum under the captions
"Description of the Notes", "Plan of Distribution" and "Transfer Restrictions",
insofar as such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, fairly summarize the matters referred to
therein.
F. Such counsel has no reason to believe that (except for financial
statements and other financial and statistical data as to which such counsel
need not express any belief) the Final Memorandum when issued contained, or as
of the date such opinion is delivered contains, any untrue statement of a
material fact or omitted or omits 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.
G. Based upon the representations, warranties and agreements of the
Company in Sections 1(n), 1(p), 6(f), and 6(g) of the Purchase Agreement and of
the Initial Purchasers in Section 7 of the Purchase Agreement, it is not
necessary in connection with the offer, sale and delivery of the Securities to
the Initial Purchasers under the Purchase Agreement or in connection with the
initial resale of such Securities by the Initial Purchasers in accordance with
Section 7 of the Purchase Agreement to register the Securities under the
Securities Act of 1933 or to qualify the Indenture under the Trust Indenture Act
of 1939, it being understood that no opinion is expressed as to any subsequent
resale of any Security or Underlying Security.
With respect to paragraph F above, Davis Polk & Wardwell may state that
their opinion and belief are based upon their participation in the preparation
of the Final Memorandum (and any amendments or supplements thereto) and review
and discussion of the contents thereof (including the review of, but not
participation in the preparation of, the incorporated documents), but are
without independent check or verification except as specified.
C-2
EXHIBIT D
[FORM OF LOCK-UP LETTER]
, 1999
Morgan Stanley & Co. Incorporated
Goldman, Sachs & Co.
Salomon Smith Barney Inc.
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, NY 10036
Dear Sirs and Mesdames:
The undersigned understands that Morgan Stanley & Co. Incorporated
("MORGAN STANLEY") proposes to enter into a Purchase Agreement (the "PURCHASE
AGREEMENT") with The Interpublic Group of Companies, Inc., a Delaware
corporation (the "COMPANY"), providing for the offering (the "OFFERING") by the
several Initial Purchasers, including Morgan Stanley (the "INITIAL PURCHASERS"),
of $313,000,000 aggregate principal amount at maturity of 1.87% Convertible
Subordinated Notes due 2006 of the Company (the "SECURITIES"). The Securities
will be convertible into shares of Common Plan of the Company, par value $0.10
per share of the Company (the "COMMON STOCK").
To induce the Initial Purchasers that may participate in the Offering
to continue their efforts in connection with the Offering, the undersigned
hereby agrees that, without the prior written consent of Morgan Stanley on
behalf of the Initial Purchasers, it will not, during the period commencing on
the date hereof and ending 90 days after the date of the final offering
memorandum relating to the Offering (the "FINAL MEMORANDUM"), (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any shares of
Common Plan or any securities convertible into or exercisable or exchangeable
for Common Plan or (2) enter into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequences of ownership
of the Common Plan, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Plan or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to (1) transactions
relating to shares of Common Plan or other securities acquired in open market
transactions after the completion of the Offering, (2) sales of shares of Common
Plan, or options with respect thereto, to the Company, (3) the exercise of any
options with respect to the Common Plan and (4) the sale of shares of Common
Plan in order to pay any taxes arising from any gains from the exercise of any
options with respect to the Common Plan; provided that in no event shall the
aggregate amount of shares of Common Plan sold pursuant to clause (4) hereof by
the undersigned and the other officers and directors of the Company who have
signed similar "lock-up" agreements on the date hereof shall exceed 75,000. In
addition, the undersigned agrees that, without the prior written consent of
Morgan Stanley on behalf of the Initial Purchasers, it will not, during the
period commencing on the date hereof and ending 90 days after the date of the
Final Memorandum, make any demand for or exercise any right with respect to, the
registration of any shares of Common Plan or any security convertible into or
exercisable or exchangeable for Common Plan.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will be made only pursuant to
a Purchase Agreement, the terms of which are subject to negotiation between the
Company and the Initial Purchasers.
Very truly yours,
------------------------------------
(Name)
------------------------------------
(Address)
Exhibit 10(e)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
THE INTERPUBLIC OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN
("the Plan")
PLAN OPTION CERTIFICATE
THIS DOCUMENT IS IMPORTANT AND SHOULD BE KEPT IN A SAFE PLACE
-------------------------------------------------------------
THIS IS TO CERTIFY that, on the date shown below, an Option was granted, subject
to the Rules of the above-mentioned Plan, to the under-mentioned to subscribe at
the Exercise Price stated below the number of shares of Common Plan of The
Interpublic Group of Companies, Inc. specified below.
Grantee: Name: Frank J. Borelli
Date of Grant: June 4, 1999
Number of shares of Common Plan subject to the Option: 2,000
Exercise Price per share: $78.6563
Option Expiration Date: June 4, 2009
The Option may not be exercised in any part until June 4, 2002. Thereafter the
Option shall be exercisable in its entirety.
IN WITNESS WHEREOF this Certificate was duly executed this 4th day of June, 1999
by THE INTERPUBLIC GROUP OF COMPANIES, INC. by the affixing of its common seal
in the presence of : -
Senior Vice President /s/ C. Kent Kroeber
--------------------------
C. Kent Kroeber
Secretary /s/ Nicholas J. Camera
--------------------------
Nicholas J. Camera
Grantee:
-----------------------
(Signature)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
The Interpublic Outside Directors' Plan Incentive Plan
EXHIBIT A
OPTION CERTIFICATE between The Interpublic Group of Companies,
Inc. (hereinafter called "the Corporation"), and the individual whose name
appears on the document to which this Option Certificate is attached
(hereinafter called the "Cover Document"), such individual being an Outside
Director of the Corporation (hereinafter called "the Grantee");
PURSUANT TO and under all the terms and conditions of THE
INTERPUBLIC OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN (hereinafter called "the
Plan"), the Corporation offers the Grantee an opportunity to purchase shares of
the Common Plan of the Corporation on the following terms and conditions:
l. The Corporation hereby irrevocably grants to the Grantee
the right and option (hereinafter called "the Option") to purchase from the
Corporation an aggregate of that number of shares of the Common Plan of the
Corporation shown on the Cover Document in accordance with all the terms and
conditions of the Plan and this Agreement.
2. The purchase price of said shares is shown in the Cover
Document. All issue and transfer taxes upon the sale of shares pursuant to the
exercise of all or any part of the Option and all fees and expenses incident
thereto shall be paid by the Corporation.
3. The term of the Option shall be for a period of ten years
from the date as of which the Option is granted, subject to earlier termination
as provided herein.
4. The Option may not be exercised in any part until the date
on the Cover Document.
5. The Option when exercisable may be exercised at one time or
from time to time except that such partial exercise of the Option shall be for
50 shares or a multiple thereof, or for all the remaining shares thereunder,
whichever is the lesser.
6. The purchase price of the shares as to which the Option
shall be exercised shall be paid in full in cash at the time of the exercise. If
payment is made by check or draft, such check or draft must be drawn on a bank
located in the United States of America.
7. This Option is not transferable otherwise than by will or
by the laws of descent and distribution. During the lifetime of the Grantee,
this Option may be exercised only by the Grantee.
8. (a) Upon Grantee's cessation of service as an Outside
Director for any reason (including death) the Option, if exercisable upon the
date of cessation of service, shall continue to be exercisable by the Grantee or
the Grantee's legal representatives, heirs or beneficiaries for thirty-six
months following cessation of service, but in no event shall the Option be
exercisable more than ten years from the date it was granted.
(b) If the Option is not exercisable on the date on which
the Grantee ceases to serve as an Outside Director, then the Option shall be
forfeited. If the Option is exercisable and is not exercised in full before it
ceases to be exercisable in accordance with paragraph 3 hereof and the preceding
provisions of this paragraph 8, the Option shall, to the extent not previously
exercised, thereupon be forfeited.
9. The Grantee shall not have voting or dividend rights or any
other rights of a stockholder in respect of any shares of Common Plan covered
by this Option prior to the time that his or her name is recorded on the
stockholder ledger of the Corporation as the holder of record of such shares
acquired pursuant to an exercise of the Option.
10. Subject to the terms and conditions of the Plan and of this
Agreement, any exercise of this Option shall be by written notice delivered to
the Chief Executive Officer or the Secretary of the Corporation, at its
principal office, which is now located at 1271 Avenue of the Americas,
Rockefeller Center, New York, New York 10020. Such written notice shall state
the election to exercise the Option and the number of shares in respect of which
it is being exercised and shall be signed by the person or persons so exercising
the Option. Such notice shall be accompanied by payment of the full purchase
price of said shares, whereupon the Corporation shall deliver a certificate or
certificates representing said shares as soon as practicable. Unless there has
been an effective registration of the securities offered under the Plan pursuant
to the Securities Act of 1933, upon exercise of the Option the Grantee shall
also furnish a statement in writing that the shares are being acquired for
investment purposes and not with a view to their sale or distribution.
11. This Option shall not be treated as an incentive stock plan for
purposes of Section 422 of the Internal Revenue Code of 1986, as amended from
time to time or any successor provision.
12. All words and phrases used herein shall have the same meaning
as in the Plan, and all provisions, terms and conditions of the Plan not herein
specifically set forth are incorporated herein by reference.
(6/4/99)
Exhibit 10(f)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
THE INTERPUBLIC OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN
("the Plan")
PLAN OPTION CERTIFICATE
THIS DOCUMENT IS IMPORTANT AND SHOULD BE KEPT IN A SAFE PLACE
THIS IS TO CERTIFY that, on the date shown below, an Option was granted, subject
to the Rules of the above-mentioned Plan, to the under-mentioned to subscribe at
the Exercise Price stated below the number of shares of Common Plan of The
Interpublic Group of Companies, Inc. specified below.
Grantee: Name: Reginald K. Brack
Date of Grant: June 4, 1999
Number of shares of Common Plan subject to the Option: 2,000
Exercise Price per share: $78.6563
Option Expiration Date: June 4, 2009
The Option may not be exercised in any part until June 4, 2002. Thereafter the
Option shall be exercisable in its entirety.
IN WITNESS WHEREOF this Certificate was duly executed this 4th day of June, 1999
by THE INTERPUBLIC GROUP OF COMPANIES, INC. by the affixing of its common seal
in the presence of : -
Senior Vice President /s/ C. Kent Kroeber
--------------------------
C. Kent Kroeber
Secretary /s/ Nicholas J. Camera
--------------------------
Nicholas J. Camera
Grantee:
-----------------------
(Signature)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
The Interpublic Outside Directors' Plan Incentive Plan
EXHIBIT A
OPTION CERTIFICATE between The Interpublic Group of Companies,
Inc. (hereinafter called "the Corporation"), and the individual whose name
appears on the document to which this Option Certificate is attached
(hereinafter called the "Cover Document"), such individual being an Outside
Director of the Corporation (hereinafter called "the Grantee");
PURSUANT TO and under all the terms and conditions of THE
INTERPUBLIC OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN (hereinafter called "the
Plan"), the Corporation offers the Grantee an opportunity to purchase shares of
the Common Plan of the Corporation on the following terms and conditions:
l. The Corporation hereby irrevocably grants to the Grantee
the right and option (hereinafter called "the Option") to purchase from the
Corporation an aggregate of that number of shares of the Common Plan of the
Corporation shown on the Cover Document in accordance with all the terms and
conditions of the Plan and this Agreement.
2. The purchase price of said shares is shown in the Cover
Document. All issue and transfer taxes upon the sale of shares pursuant to the
exercise of all or any part of the Option and all fees and expenses incident
thereto shall be paid by the Corporation.
3. The term of the Option shall be for a period of ten years
from the date as of which the Option is granted, subject to earlier termination
as provided herein.
4. The Option may not be exercised in any part until the date
on the Cover Document.
5. The Option when exercisable may be exercised at one time or
from time to time except that such partial exercise of the Option shall be for
50 shares or a multiple thereof, or for all the remaining shares thereunder,
whichever is the lesser.
6. The purchase price of the shares as to which the Option
shall be exercised shall be paid in full in cash at the time of the exercise. If
payment is made by check or draft, such check or draft must be drawn on a bank
located in the United States of America.
7. This Option is not transferable otherwise than by will or
by the laws of descent and distribution. During the lifetime of the Grantee,
this Option may be exercised only by the Grantee.
8. (a) Upon Grantee's cessation of service as an Outside
Director for any reason (including death) the Option, if exercisable upon the
date of cessation of service, shall continue to be exercisable by the Grantee or
the Grantee's legal representatives, heirs or beneficiaries for thirty-six
months following cessation of service, but in no event shall the Option be
exercisable more than ten years from the date it was granted.
(b) If the Option is not exercisable on the date on which
the Grantee ceases to serve as an Outside Director, then the Option shall be
forfeited. If the Option is exercisable and is not exercised in full before it
ceases to be exercisable in accordance with paragraph 3 hereof and the
preceding provisions of this paragraph 8, the Option shall, to the extent not
previously exercised, thereupon be forfeited.
9. The Grantee shall not have voting or dividend rights or any
other rights of a stockholder in respect of any shares of Common Plan covered
by this Option prior to the time that his or her name is recorded on the
stockholder ledger of the Corporation as the holder of record of such shares
acquired pursuant to an exercise of the Option.
10. Subject to the terms and conditions of the Plan and of this
Agreement, any exercise of this Option shall be by written notice delivered to
the Chief Executive Officer or the Secretary of the Corporation, at its
principal office, which is now located at 1271 Avenue of the Americas,
Rockefeller Center, New York, New York 10020. Such written notice shall state
the election to exercise the Option and the number of shares in respect of which
it is being exercised and shall be signed by the person or persons so exercising
the Option. Such notice shall be accompanied by payment of the full purchase
price of said shares, whereupon the Corporation shall deliver a certificate or
certificates representing said shares as soon as practicable. Unless there has
been an effective registration of the securities offered under the Plan pursuant
to the Securities Act of 1933, upon exercise of the Option the Grantee shall
also furnish a statement in writing that the shares are being acquired for
investment purposes and not with a view to their sale or distribution.
11. This Option shall not be treated as an incentive stock plan for
purposes of Section 422 of the Internal Revenue Code of 1986, as amended from
time to time or any successor provision.
12. All words and phrases used herein shall have the same meaning
as in the Plan, and all provisions, terms and conditions of the Plan not herein
specifically set forth are incorporated herein by reference.
(6/4/99)
Exhibit 10(g)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
THE INTERPUBLIC OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN
("the Plan")
PLAN OPTION CERTIFICATE
THIS DOCUMENT IS IMPORTANT AND SHOULD BE KEPT IN A SAFE PLACE
THIS IS TO CERTIFY that, on the date shown below, an Option was granted, subject
to the Rules of the above-mentioned Plan, to the under-mentioned to subscribe at
the Exercise Price stated below the number of shares of Common Plan of The
Interpublic Group of Companies, Inc. specified below.
Grantee: Name: Jill M. Considine
Date of Grant: June 4, 1999
Number of shares of Common Plan subject to the Option: 2,000
Exercise Price per share: $78.6563
Option Expiration Date: June 4, 2009
The Option may not be exercised in any part until June 4, 2002. Thereafter the
Option shall be exercisable in its entirety.
IN WITNESS WHEREOF this Certificate was duly executed this 4th day of June, 1999
by THE INTERPUBLIC GROUP OF COMPANIES, INC. by the affixing of its common seal
in the presence of : -
Senior Vice President /s/ C. Kent Kroeber
--------------------------
C. Kent Kroeber
Secretary /s/ Nicholas J. Camera
--------------------------
Nicholas J. Camera
Grantee:
-----------------------
(Signature)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
The Interpublic Outside Directors' Plan Incentive Plan
EXHIBIT A
OPTION CERTIFICATE between The Interpublic Group of Companies,
Inc. (hereinafter called "the Corporation"), and the individual whose name
appears on the document to which this Option Certificate is attached
(hereinafter called the "Cover Document"), such individual being an Outside
Director of the Corporation (hereinafter called "the Grantee");
PURSUANT TO and under all the terms and conditions of THE
INTERPUBLIC OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN (hereinafter called "the
Plan"), the Corporation offers the Grantee an opportunity to purchase shares of
the Common Plan of the Corporation on the following terms and conditions:
l. The Corporation hereby irrevocably grants to the Grantee
the right and option (hereinafter called "the Option") to purchase from the
Corporation an aggregate of that number of shares of the Common Plan of the
Corporation shown on the Cover Document in accordance with all the terms and
conditions of the Plan and this Agreement.
2. The purchase price of said shares is shown in the Cover
Document. All issue and transfer taxes upon the sale of shares pursuant to the
exercise of all or any part of the Option and all fees and expenses incident
thereto shall be paid by the Corporation.
3. The term of the Option shall be for a period of ten years
from the date as of which the Option is granted, subject to earlier termination
as provided herein.
4. The Option may not be exercised in any part until the date
on the Cover Document.
5. The Option when exercisable may be exercised at one time or
from time to time except that such partial exercise of the Option shall be for
50 shares or a multiple thereof, or for all the remaining shares thereunder,
whichever is the lesser.
6. The purchase price of the shares as to which the Option
shall be exercised shall be paid in full in cash at the time of the exercise. If
payment is made by check or draft, such check or draft must be drawn on a bank
located in the United States of America.
7. This Option is not transferable otherwise than by will or
by the laws of descent and distribution. During the lifetime of the Grantee,
this Option may be exercised only by the Grantee.
8. (a) Upon Grantee's cessation of service as an Outside
Director for any reason (including death) the Option, if exercisable upon the
date of cessation of service, shall continue to be exercisable by the Grantee or
the Grantee's legal representatives, heirs or beneficiaries for thirty-six
months following cessation of service, but in no event shall the Option be
exercisable more than ten years from the date it was granted.
(b) If the Option is not exercisable on the date on which
the Grantee ceases to serve as an Outside Director, then the Option shall be
forfeited. If the Option is exercisable and is not exercised in full before it
ceases to be exercisable in accordance with paragraph 3 hereof and the preceding
provisions of this paragraph 8, the Option shall, to the extent not previously
exercised, thereupon be forfeited.
9. The Grantee shall not have voting or dividend rights or any
other rights of a stockholder in respect of any shares of Common Plan covered
by this Option prior to the time that his or her name is recorded on the
stockholder ledger of the Corporation as the holder of record of such shares
acquired pursuant to an exercise of the Option.
10. Subject to the terms and conditions of the Plan and of this
Agreement, any exercise of this Option shall be by written notice delivered to
the Chief Executive Officer or the Secretary of the Corporation, at its
principal office, which is now located at 1271 Avenue of the Americas,
Rockefeller Center, New York, New York 10020. Such written notice shall state
the election to exercise the Option and the number of shares in respect of which
it is being exercised and shall be signed by the person or persons so exercising
the Option. Such notice shall be accompanied by payment of the full purchase
price of said shares, whereupon the Corporation shall deliver a certificate or
certificates representing said shares as soon as practicable. Unless there has
been an effective registration of the securities offered under the Plan pursuant
to the Securities Act of 1933, upon exercise of the Option the Grantee shall
also furnish a statement in writing that the shares are being acquired for
investment purposes and not with a view to their sale or distribution.
11. This Option shall not be treated as an incentive stock plan for
purposes of Section 422 of the Internal Revenue Code of 1986, as amended from
time to time or any successor provision.
12. All words and phrases used herein shall have the same meaning
as in the Plan, and all provisions, terms and conditions of the Plan not herein
specifically set forth are incorporated herein by reference.
(6/4/99)
Exhibit 10(h)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
THE INTERPUBLIC OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN
("the Plan")
PLAN OPTION CERTIFICATE
THIS DOCUMENT IS IMPORTANT AND SHOULD BE KEPT IN A SAFE PLACE
THIS IS TO CERTIFY that, on the date shown below, an Option was granted, subject
to the Rules of the above-mentioned Plan, to the under-mentioned to subscribe at
the Exercise Price stated below the number of shares of Common Plan of The
Interpublic Group of Companies, Inc. specified below.
Grantee: Name: Leif H. Olsen
Date of Grant: June 4, 1999
Number of shares of Common Plan subject to the Option: 2,000
Exercise Price per share: $78.6563
Option Expiration Date: June 4, 2009
The Option may not be exercised in any part until June 4, 2002. Thereafter the
Option shall be exercisable in its entirety.
IN WITNESS WHEREOF this Certificate was duly executed this 4th day of June, 1999
by THE INTERPUBLIC GROUP OF COMPANIES, INC. by the affixing of its common seal
in the presence of : -
Senior Vice President /s/ C. Kent Kroeber
--------------------------
C. Kent Kroeber
Secretary /s/ Nicholas J. Camera
--------------------------
Nicholas J. Camera
Grantee:
-----------------------
(Signature)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
The Interpublic Outside Directors' Plan Incentive Plan
EXHIBIT A
OPTION CERTIFICATE between The Interpublic Group of Companies,
Inc. (hereinafter called "the Corporation"), and the individual whose name
appears on the document to which this Option Certificate is attached
(hereinafter called the "Cover Document"), such individual being an Outside
Director of the Corporation (hereinafter called "the Grantee");
PURSUANT TO and under all the terms and conditions of THE
INTERPUBLIC OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN (hereinafter called "the
Plan"), the Corporation offers the Grantee an opportunity to purchase shares of
the Common Plan of the Corporation on the following terms and conditions:
l. The Corporation hereby irrevocably grants to the Grantee
the right and option (hereinafter called "the Option") to purchase from the
Corporation an aggregate of that number of shares of the Common Plan of the
Corporation shown on the Cover Document in accordance with all the terms and
conditions of the Plan and this Agreement.
2. The purchase price of said shares is shown in the Cover
Document. All issue and transfer taxes upon the sale of shares pursuant to the
exercise of all or any part of the Option and all fees and expenses incident
thereto shall be paid by the Corporation.
3. The term of the Option shall be for a period of ten years
from the date as of which the Option is granted, subject to earlier termination
as provided herein.
4. The Option may not be exercised in any part until the date
on the Cover Document.
5. The Option when exercisable may be exercised at one time or
from time to time except that such partial exercise of the Option shall be for
50 shares or a multiple thereof, or for all the remaining shares thereunder,
whichever is the lesser.
6. The purchase price of the shares as to which the Option
shall be exercised shall be paid in full in cash at the time of the exercise. If
payment is made by check or draft, such check or draft must be drawn on a bank
located in the United States of America.
7. This Option is not transferable otherwise than by will or
by the laws of descent and distribution. During the lifetime of the Grantee,
this Option may be exercised only by the Grantee.
8. (a) Upon Grantee's cessation of service as an Outside
Director for any reason (including death) the Option, if exercisable upon the
date of cessation of service, shall continue to be exercisable by the Grantee or
the Grantee's legal representatives, heirs or beneficiaries for thirty-six
months following cessation of service, but in no event shall the Option be
exercisable more than ten years from the date it was granted.
(b) If the Option is not exercisable on the date on which
the Grantee ceases to serve as an Outside Director, then the Option shall be
forfeited. If the Option is exercisable and is not exercised in full before it
ceases to be exercisable in accordance with paragraph 3 hereof and the preceding
provisions of this paragraph 8, the Option shall, to the extent not previously
exercised, thereupon be forfeited.
9. The Grantee shall not have voting or dividend rights or any
other rights of a stockholder in respect of any shares of Common Plan covered
by this Option prior to the time that his or her name is recorded on the
stockholder ledger of the Corporation as the holder of record of such shares
acquired pursuant to an exercise of the Option.
10. Subject to the terms and conditions of the Plan and of this
Agreement, any exercise of this Option shall be by written notice delivered to
the Chief Executive Officer or the Secretary of the Corporation, at its
principal office, which is now located at 1271 Avenue of the Americas,
Rockefeller Center, New York, New York 10020. Such written notice shall state
the election to exercise the Option and the number of shares in respect of which
it is being exercised and shall be signed by the person or persons so exercising
the Option. Such notice shall be accompanied by payment of the full purchase
price of said shares, whereupon the Corporation shall deliver a certificate or
certificates representing said shares as soon as practicable. Unless there has
been an effective registration of the securities offered under the Plan pursuant
to the Securities Act of 1933, upon exercise of the Option the Grantee shall
also furnish a statement in writing that the shares are being acquired for
investment purposes and not with a view to their sale or distribution.
11. This Option shall not be treated as an incentive stock plan for
purposes of Section 422 of the Internal Revenue Code of 1986, as amended from
time to time or any successor provision.
12. All words and phrases used herein shall have the same meaning
as in the Plan, and all provisions, terms and conditions of the Plan not herein
specifically set forth are incorporated herein by reference.
(6/4/99)
EXHIBIT 10(i)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
THE INTERPUBLIC OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN
("the Plan")
PLAN OPTION CERTIFICATE
THIS DOCUMENT IS IMPORTANT AND SHOULD BE KEPT IN A SAFE PLACE
THIS IS TO CERTIFY that, on the date shown below, an Option was granted, subject
to the Rules of the above-mentioned Plan, to the under-mentioned to subscribe at
the Exercise Price stated below the number of shares of Common Plan of The
Interpublic Group of Companies, Inc. specified below.
Grantee: Name: Allen Questrom
Date of Grant: June 4, 1999
Number of shares of Common Plan subject to the Option: 2,000
Exercise Price per share: $78.6563
Option Expiration Date: June 4, 2009
The Option may not be exercised in any part until June 4, 2002. Thereafter the
Option shall be exercisable in its entirety.
IN WITNESS WHEREOF this Certificate was duly executed this 4th day of June, 1999
by THE INTERPUBLIC GROUP OF COMPANIES, INC. by the affixing of its common seal
in the presence of : -
Senior Vice President /s/ C. Kent Kroeber
--------------------------
C. Kent Kroeber
Secretary /s/ Nicholas J. Camera
--------------------------
Nicholas J. Camera
Grantee:
-----------------------
(Signature)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
The Interpublic Outside Directors' Plan Incentive Plan
EXHIBIT A
OPTION CERTIFICATE between The Interpublic Group of Companies,
Inc. (hereinafter called "the Corporation"), and the individual whose name
appears on the document to which this Option Certificate is attached
(hereinafter called the "Cover Document"), such individual being an Outside
Director of the Corporation (hereinafter called "the Grantee");
PURSUANT TO and under all the terms and conditions of THE
INTERPUBLIC OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN (hereinafter called "the
Plan"), the Corporation offers the Grantee an opportunity to purchase shares of
the Common Plan of the Corporation on the following terms and conditions:
l. The Corporation hereby irrevocably grants to the Grantee
the right and option (hereinafter called "the Option") to purchase from the
Corporation an aggregate of that number of shares of the Common Plan of the
Corporation shown on the Cover Document in accordance with all the terms and
conditions of the Plan and this Agreement.
2. The purchase price of said shares is shown in the Cover
Document. All issue and transfer taxes upon the sale of shares pursuant to the
exercise of all or any part of the Option and all fees and expenses incident
thereto shall be paid by the Corporation.
3. The term of the Option shall be for a period of ten years
from the date as of which the Option is granted, subject to earlier termination
as provided herein.
4. The Option may not be exercised in any part until the date
on the Cover Document.
5. The Option when exercisable may be exercised at one time or
from time to time except that such partial exercise of the Option shall be for
50 shares or a multiple thereof, or for all the remaining shares thereunder,
whichever is the lesser.
6. The purchase price of the shares as to which the Option
shall be exercised shall be paid in full in cash at the time of the exercise. If
payment is made by check or draft, such check or draft must be drawn on a bank
located in the United States of America.
7. This Option is not transferable otherwise than by will or
by the laws of descent and distribution. During the lifetime of the Grantee,
this Option may be exercised only by the Grantee.
8. (a) Upon Grantee's cessation of service as an Outside
Director for any reason (including death) the Option, if exercisable upon the
date of cessation of service, shall continue to be exercisable by the Grantee or
the Grantee's legal representatives, heirs or beneficiaries for thirty-six
months following cessation of service, but in no event shall the Option be
exercisable more than ten years from the date it was granted.
(b) If the Option is not exercisable on the date on which
the Grantee ceases to serve as an Outside Director,
then the Option shall be forfeited. If the Option is exercisable and is not
exercised in full before it ceases to be exercisable in accordance with
paragraph 3 hereof and the preceding provisions of this paragraph 8, the Option
shall, to the extent not previously exercised, thereupon be forfeited.
9. The Grantee shall not have voting or dividend rights or any
other rights of a stockholder in respect of any shares of Common Plan covered
by this Option prior to the time that his or her name is recorded on the
stockholder ledger of the Corporation as the holder of record of such shares
acquired pursuant to an exercise of the Option.
10. Subject to the terms and conditions of the Plan and of this
Agreement, any exercise of this Option shall be by written notice delivered to
the Chief Executive Officer or the Secretary of the Corporation, at its
principal office, which is now located at 1271 Avenue of the Americas,
Rockefeller Center, New York, New York 10020. Such written notice shall state
the election to exercise the Option and the number of shares in respect of which
it is being exercised and shall be signed by the person or persons so exercising
the Option. Such notice shall be accompanied by payment of the full purchase
price of said shares, whereupon the Corporation shall deliver a certificate or
certificates representing said shares as soon as practicable. Unless there has
been an effective registration of the securities offered under the Plan pursuant
to the Securities Act of 1933, upon exercise of the Option the Grantee shall
also furnish a statement in writing that the shares are being acquired for
investment purposes and not with a view to their sale or distribution.
11. This Option shall not be treated as an incentive stock plan for
purposes of Section 422 of the Internal Revenue Code of 1986, as amended from
time to time or any successor provision.
12. All words and phrases used herein shall have the same meaning
as in the Plan, and all provisions, terms and conditions of the Plan not herein
specifically set forth are incorporated herein by reference.
(6/4/99)
Exhibit 10(j)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
THE INTERPUBLIC OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN
("the Plan")
PLAN OPTION CERTIFICATE
THIS DOCUMENT IS IMPORTANT AND SHOULD BE KEPT IN A SAFE PLACE
THIS IS TO CERTIFY that, on the date shown below, an Option was granted, subject
to the Rules of the above-mentioned Plan, to the under-mentioned to subscribe at
the Exercise Price stated below the number of shares of Common Plan of The
Interpublic Group of Companies, Inc. specified below.
Grantee: Name: J. Phillip Samper
Date of Grant: June 4, 1999
Number of shares of Common Plan subject to the Option: 2,000
Exercise Price per share: $78.6563
Option Expiration Date: June 4, 2009
The Option may not be exercised in any part until June 4, 2002. Thereafter the
Option shall be exercisable in its entirety.
IN WITNESS WHEREOF this Certificate was duly executed this 4th day of June, 1999
by THE INTERPUBLIC GROUP OF COMPANIES, INC. by the affixing of its common seal
in the presence of : -
Senior Vice President /s/ C. Kent Kroeber
--------------------------
C. Kent Kroeber
Secretary /s/ Nicholas J. Camera
--------------------------
Nicholas J. Camera
Grantee:
-----------------------
(Signature)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
The Interpublic Outside Directors' Plan Incentive Plan
EXHIBIT A
OPTION CERTIFICATE between The Interpublic Group of Companies,
Inc. (hereinafter called "the Corporation"), and the individual whose name
appears on the document to which this Option Certificate is attached
(hereinafter called the "Cover Document"), such individual being an Outside
Director of the Corporation (hereinafter called "the Grantee");
PURSUANT TO and under all the terms and conditions of THE
INTERPUBLIC OUTSIDE DIRECTORS' STOCK INCENTIVE PLAN (hereinafter called "the
Plan"), the Corporation offers the Grantee an opportunity to purchase shares of
the Common Plan of the Corporation on the following terms and conditions:
l. The Corporation hereby irrevocably grants to the Grantee
the right and option (hereinafter called "the Option") to purchase from the
Corporation an aggregate of that number of shares of the Common Plan of the
Corporation shown on the Cover Document in accordance with all the terms and
conditions of the Plan and this Agreement.
2. The purchase price of said shares is shown in the Cover
Document. All issue and transfer taxes upon the sale of shares pursuant to the
exercise of all or any part of the Option and all fees and expenses incident
thereto shall be paid by the Corporation.
3. The term of the Option shall be for a period of ten years
from the date as of which the Option is granted, subject to earlier termination
as provided herein.
4. The Option may not be exercised in any part until the date
on the Cover Document.
5. The Option when exercisable may be exercised at one time or
from time to time except that such partial exercise of the Option shall be for
50 shares or a multiple thereof, or for all the remaining shares thereunder,
whichever is the lesser.
6. The purchase price of the shares as to which the Option
shall be exercised shall be paid in full in cash at the time of the exercise. If
payment is made by check or draft, such check or draft must be drawn on a bank
located in the United States of America.
7. This Option is not transferable otherwise than by will or
by the laws of descent and distribution. During the lifetime of the Grantee,
this Option may be exercised only by the Grantee.
8. (a) Upon Grantee's cessation of service as an Outside
Director for any reason (including death) the Option, if exercisable upon the
date of cessation of service, shall continue to be exercisable by the Grantee or
the Grantee's legal representatives, heirs or beneficiaries for thirty-six
months following cessation of service, but in no event shall the Option be
exercisable more than ten years from the date it was granted.
(b) If the Option is not exercisable on the date on which
the Grantee ceases to serve as an Outside Director, then the Option shall be
forfeited. If the Option is exercisable and is not exercised in full before it
ceases to be exercisable in accordance with paragraph 3 hereof and the preceding
provisions of this paragraph 8, the Option shall, to the extent not previously
exercised, thereupon be forfeited.
9. The Grantee shall not have voting or dividend rights or any
other rights of a stockholder in respect of any shares of Common Plan covered
by this Option prior to the time that his or her name is recorded on the
stockholder ledger of the Corporation as the holder of record of such shares
acquired pursuant to an exercise of the Option.
10. Subject to the terms and conditions of the Plan and of this
Agreement, any exercise of this Option shall be by written notice delivered to
the Chief Executive Officer or the Secretary of the Corporation, at its
principal office, which is now located at 1271 Avenue of the Americas,
Rockefeller Center, New York, New York 10020. Such written notice shall state
the election to exercise the Option and the number of shares in respect of which
it is being exercised and shall be signed by the person or persons so exercising
the Option. Such notice shall be accompanied by payment of the full purchase
price of said shares, whereupon the Corporation shall deliver a certificate or
certificates representing said shares as soon as practicable. Unless there has
been an effective registration of the securities offered under the Plan pursuant
to the Securities Act of 1933, upon exercise of the Option the Grantee shall
also furnish a statement in writing that the shares are being acquired for
investment purposes and not with a view to their sale or distribution.
11. This Option shall not be treated as an incentive stock plan for
purposes of Section 422 of the Internal Revenue Code of 1986, as amended from
time to time or any successor provision.
12. All words and phrases used herein shall have the same meaning
as in the Plan, and all provisions, terms and conditions of the Plan not herein
specifically set forth are incorporated herein by reference.
(6/4/99)