CONFORMED COPY
OMNICOM GROUP INC.
FRF 1,000,000,000
5.20 per cent. Notes due 2005
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FISCAL AGENCY AGREEMENT
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24 June 1998
Clifford Chance
London
CONTENTS
Clause Page
1. Interpretation........................................................... 1
2. Appointment of the Paying Agents......................................... 3
3. The Notes................................................................ 3
4. Delivery of Temporary Global Note, Permanent
Global Note and Definitive Notes...................................... 5
5. Replacement Notes and Coupons............................................ 6
6. Payments to the Fiscal Agent............................................. 6
7. Payments to Noteholders.................................................. 8
8. Miscellaneous Duties of the Paying Agents................................ 10
9. Fees and Expenses........................................................ 12
10. Terms of Appointment..................................................... 13
11. Changes in Paying Agents................................................. 14
12. Notices.................................................................. 16
13. Law and Jurisdiction..................................................... 17
14. Modification............................................................. 18
15. Counterparts............................................................. 18
THE FIRST SCHEDULE........................................................... 19
Form of Temporary Global Note............................................ 19
THE SECOND SCHEDULE.......................................................... 28
Form of Permanent Global Note............................................ 28
THE THIRD SCHEDULE........................................................... 34
Form of Definitive Note and Coupon....................................... 34
THE FOURTH SCHEDULE.......................................................... 39
Terms and Conditions of the Notes........................................ 39
THE FIFTH SCHEDULE........................................................... 45
Provisions for Meetings of the Noteholders............................... 45
THE SIXTH SCHEDULE........................................................... 52
Specified Offices of the Agents.......................................... 52
THIS AGREEMENT is made on 24 June 1998
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BETWEEN
(1) OMNICOM GROUP INC. (the "Issuer");
(2) SOCIETE GENERALE BANK & TRUST S.A., LUXEMBOURG as fiscal agent (together
with any successor appointed as fiscal agent in accordance with Clause 11
(Changes in Paying Agents), the "Fiscal Agent") and as common depositary
of the Global Notes referred to below and the Notes, if any, in definitive
form delivered for exchange hereunder (the "Common Depositary"); and
(3) SOCIETE GENERALE as paying agent (together with the Fiscal Agent and any
successor to any paying agent appointed from time to time in accordance
with Clause 11 (Changes in Paying Agents), the "Paying Agents").
WHEREAS
(A) The Issuer has authorised the creation and issue of FRF1,000,000,000 in
aggregate principal amount of 5.20 per cent. Notes due 2005 (the "Notes").
(B) The Notes will be in bearer form and in the denominations of FRF10,000 and
FRF100,000. The Notes will initially be in the form of a temporary global Note
(the "Temporary Global Note"), interests in which will be exchangeable for
interests in a permanent global Note (the "Permanent Global Note" and, together
with the Temporary Global Note, the "Global Notes") in the circumstances
specified in the Temporary Global Note. The Permanent Global Note will, in turn,
be exchangeable for Notes in definitive form ("Definitive Notes"), with interest
coupons ("Coupons") attached in the circumstances specified in the Permanent
Global Note. The Issuer will, in relation to the Notes insofar as represented by
the Permanent Global Note, enter into a deed of covenant dated 24 June 1998 (as
amended or supplemented from time to time, the "Deed of Covenant").
(C) The Issuer and the Paying Agents wish to record certain arrangements which
they have made in relation to the Notes.
IT IS AGREED as follows:
1. Interpretation
1.01 Definitions: In this Agreement the following expressions have the
following meanings:
"Business Day" means a day on which commercial banks are open for business
and foreign exchange settlements in Paris and Luxembourg;
"Cedel Bank" means Cedel Bank, societe anonyme;
"Closing Date" means 24 June 1998;
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"Conditions" means the Terms and Conditions of the Notes (as scheduled to
this Agreement and as modified from time to time in accordance with the
Terms and Conditions of the Notes), and any reference to a numbered
"Condition" is to the correspondingly numbered provision thereof;
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System;
"Exchange Date" means the first day following the expiry of 40 days after
the issue of the Notes;
"FRF" and "French Francs" denote the lawful currency for the time being of
France;
"Local Banking Day" means a day (other than a Saturday or a Sunday) on
which commercial banks are open for business (including dealings in
foreign exchange and foreign currency deposits) in the city in which the
Fiscal Agent has its Specified Office;
"Local Time" means the time in the city in which the Fiscal Agent has its
Specified Office;
"Noteholders" means the holders of the Notes for the time being;
"Pre-Closing Date" means the last day preceding the Closing Date on which
banks are open for business and on which dealings in foreign currency may
be carried on in Luxembourg;
"Replacement Agents" means the Fiscal Agent and the Paying Agent having
its Specified Office in Paris;
"Required Paying Agent" means any Paying Agent (which may be the Fiscal
Agent) which is the sole remaining Paying Agent with its Specified Office
in any city where a stock exchange on which the Notes are listed requires
there to be a Paying Agent; and
"SICOVAM" means SICOVAM S.A.;
"Specified Office" means, in relation to any Paying Agent:
(a) the office specified against its name in the Sixth Schedule
(Specified Offices of the Paying Agents); or
(b) such other office as such Paying Agent may specify in
accordance with Clause 11.08 (Changes in Specified Offices).
1.02 Meaning of outstanding: For the purposes of this Agreement and the Notes
(but without prejudice to its status for any other purpose), a Note shall be
considered to be "outstanding" unless one or more of the following events has
occurred:
(a) it has been redeemed in full, or purchased under Condition 5
(Redemption and Purchase - Purchase), and in either case has been
cancelled;
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(b) the due date for its redemption in full has occurred and all sums
due in respect of such Note (including all accrued interest) have
been received by the Fiscal Agent and remain available for payment
against presentation and surrender of such Note or (as the case may
be) the relevant Coupons;
(c) all claims for principal and interest in respect of such Note have
become void under Condition 9 (Prescription);
(d) it has been mutilated or defaced, or is alleged to have been lost,
stolen or destroyed, and has been replaced pursuant to Condition 10
(Replacement of Notes and Coupons); or
(e) for the purposes of the Fifth Schedule (Provisions for Meetings of
the Noteholders) only, it is held by, or by any person for the
benefit of, the Issuer.
1.03 Clauses and Schedules: Any reference in this Agreement to a Clause or a
Schedule is, unless otherwise stated, to a clause hereof or a schedule hereto.
1.04 Principal and interest: In this Agreement, any reference to principal or
interest includes any additional amounts payable in relation thereto under the
Conditions.
1.05 Terms defined in the Conditions: Terms and expressions used but not defined
herein have the respective meanings given to them in the Conditions.
1.06 Statutes: Any reference in this Agreement to a statute, any provision
thereof or to any statutory instrument, order or regulation made thereunder
shall be construed as a reference to such statute, provision, statutory
instrument, order or regulation as the same may have been, or may from time to
time be, amended or re-enacted.
1.07 Headings: Headings and sub-headings are for ease of reference only and
shall not affect the construction of this Agreement.
2. Appointment of the Paying Agents
2.01 Appointment: The Issuer appoints each Paying Agent as its agent in relation
to the Notes for the purposes specified in this Agreement and in the Conditions.
2.02 Acceptance of appointment: Each Paying Agent accepts its appointment as
agent of the Issuer in relation to the Notes and agrees to comply with the
provisions of this Agreement.
3. The Notes
3.01 Temporary Global Note: The Temporary Global Note shall:
(a) be in substantially the form set out in the First Schedule (Form of
Temporary Global Note); and
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(b) be executed manually or in facsimile by or on behalf of the Issuer
and authenticated manually by or on behalf of the Fiscal Agent.
3.02 Permanent Global Note: The Permanent Global Note shall:
(a) be in substantially the form set out in the Second Schedule (Form of
Permanent Global Note); and
(b) be executed manually or in facsimile by or on behalf of the Issuer
and authenticated manually by or on behalf of the Fiscal Agent.
3.03 Definitive Notes: Each Definitive Note shall:
(a) be in substantially the form set out in the Third Schedule (Form of
Definitive Note) and have attached to it Coupons in substantially
the forms set out therein;
(b) be security printed in accordance with all applicable legal
requirements;
(c) have a unique certificate number printed thereon; and
(d) be executed manually or in facsimile by or on behalf of the Issuer
and authenticated manually by or on behalf of the Fiscal Agent.
3.04 Signatures: Any signature on a Note shall be that of a person who is at the
time of the signature an authorised signatory for such purpose of the Issuer
notwithstanding that such person has for any reason (including death) ceased to
be such an authorised signatory at the time at which such Note is delivered.
3.05 Availability: The Issuer shall arrange for the unauthenticated Permanent
Global Note to be made available to or to the order of the Fiscal Agent not
later than 10 days before the Exchange Date. If the Issuer is required to
deliver Definitive Notes pursuant to the terms of the Permanent Global Note, the
Issuer shall arrange for FRF1,000,000,000 in aggregate principal amount of
unauthenticated Definitive Notes to be made available to or to the order of the
Fiscal Agent as soon as practicable and in any event not later than 30 days
after the bearer of the Permanent Global Note has requested its exchange for
Definitive Notes and the Fiscal Agent has given the Issuer notice of the
request. The Issuer shall also arrange for such unauthenticated Temporary Global
Notes, Permanent Global Notes, Definitive Notes, and Coupons as are required to
enable the Replacement Agents to perform their obligations under Clause 5
(Replacement Notes and Coupons) to be made available to or to the order of the
Replacement Agents from time to time after request.
3.06 Duties of Fiscal Agent and Replacement Agents: Each of the Fiscal Agent and
the Replacement Agents shall hold in safe custody all unauthenticated Temporary
Global Notes, Permanent Global Notes, Definitive Notes, and Coupons delivered to
it in accordance with Clause 3.05 (Availability) and shall ensure that they are
authenticated (in the case of Temporary Global Notes, Permanent Global Notes and
Definitive Notes) and delivered only in accordance with the terms hereof, of the
Conditions and of the Temporary Global Note or (as the case may be) the
Permanent Global Note.
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3.07 Authority to authenticate: The Fiscal Agent is authorised by the Issuer to
authenticate the Temporary Global Note, the Permanent Global Note and each
Definitive Note delivered pursuant to Clause 4 and the Replacement Agent is
authorised by the Issuer to authenticate each replacement Note delivered
pursuant to Clause 5, in each case by the signature of any of its officers or
any other person duly authorised for the purpose by the Fiscal Agent or (as the
case may be) such Replacement Agent.
4. Delivery of Temporary Global Note, Permanent Global Note and Definitive Notes
4.01 Delivery of Temporary Global Note and Permanent Global Note: Subject to
receipt by the Fiscal Agent of the Temporary Global Note and upon receipt by the
Fiscal Agent of written instructions from the Issuer, the Fiscal Agent shall on
the Pre-Closing Date authenticate and deliver to Societe Generale Bank & Trust
S.A., Luxembourg, as common depositary for Euroclear and Cedel Bank, the
Temporary Global Note. The Temporary Global Note will be held in escrow by the
Common Depositary until notification has been received by the Common Depositary
that payment for the Notes has been received by the Issuer. Subject to receipt
by the Fiscal Agent of the Permanent Global Note in accordance with Clause 3.05
(Availability), the Fiscal Agent shall, against presentation or (as the case may
be) surrender to it of the Temporary Global Note and in accordance with the
terms thereof, authenticate and deliver to the bearer of the Temporary Global
Note the Permanent Global Note in the aggregate principal amount required by the
terms of the Temporary Global Note or, if the Permanent Global Note has already
been issued in exchange for part only of the Temporary Global Note, procure that
such aggregate principal amount is noted in the schedule to the Permanent Global
Note and procure the signature of such notation on its behalf.
4.02 Annotation of Temporary Global Note and Permanent Global Note: On each
occasion on which the Permanent Global Note is delivered pursuant to Clause 4.01
(Delivery of Permanent Global Note) or a further exchange of interests in the
Temporary Global Note for interests in the Permanent Global Note is made, the
Fiscal Agent shall procure that there is noted in the respective schedules to
the Temporary Global Note and the Permanent Global Note the aggregate principal
amount of interests in the Permanent Global Note so delivered (the "relevant
principal amount"), the new aggregate principal amount of the Permanent Global
Note (which shall be the previous principal amount thereof plus the relevant
principal amount) and the remaining principal amount of the Temporary Global
Note (which shall be the previous principal amount thereof less the relevant
principal amount) and shall procure the signature of each such notation on its
behalf. The Fiscal Agent shall cancel or procure the cancellation of the
Temporary Global Note when and if it has made full exchange thereof for
interests in the Permanent Global Note.
4.03 Delivery of Definitive Notes: Subject to receipt by the Fiscal Agent of
Definitive Notes in accordance with Clause 3.05 (Availability), the Fiscal Agent
shall, against presentation or (as the case may be) surrender to it of the
Permanent Global Note and in accordance with the terms thereof, authenticate and
deliver Definitive Notes in the required aggregate principal amount to the
bearer of the Permanent Global Note; provided, however, that each Definitive
Note shall at the time of its delivery have attached thereto only such Coupons
as shall ensure that neither loss nor gain accrues to the bearer thereof.
Societe Generale, in its capacity as common depositary, undertakes with the
Issuer that it shall hold in safe custody all Definitive Notes delivered to it
as bearer of the Permanent Global Note and make arrangements for collection of
such Definitive Notes by investors entitled thereto.
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4.04 Annotation of Permanent Global Note upon exchange for Definitive Notes: On
such occasion as Definitive Notes are delivered in exchange for the Permanent
Global Note, the Fiscal Agent shall procure that there is noted in the schedule
to the Permanent Global Note the aggregate principal amount of Definitive Notes
so delivered (the "relevant principal amount") and shall procure the signature
of such notation on its behalf. The Fiscal Agent shall cancel or procure the
cancellation of the Permanent Global Note when it has made full exchange thereof
for Definitive Notes.
5. Replacement Notes and Coupons
5.01 Delivery of Replacements: Subject to receipt of sufficient replacement
Temporary Global Notes, Permanent Global Notes, Definitive Notes and Coupons in
accordance with Clause 3.05 (Availability), each Replacement Agent shall, upon
and in accordance with the instructions of the Issuer (which instructions may,
without limitation, include terms as to the payment of expenses and as to
evidence, security and indemnity), authenticate (if necessary) and deliver a
Temporary Global Note, Permanent Global Note, Definitive Note or Coupon as a
replacement for any Temporary Global Note, Permanent Global Note, Definitive
Note or Coupon which has been mutilated or defaced or which is alleged to have
been destroyed, stolen or lost; provided, however, that the Replacement Agents
shall not deliver any Temporary Global Note, Permanent Global Note, Definitive
Note or Coupon as a replacement for any Temporary Global Note, Permanent Global
Note, Definitive Note or Coupon which has been mutilated or defaced otherwise
than against surrender of the same and shall not issue any replacement Temporary
Global Note, Permanent Global Note, Definitive Note or Coupon until the
applicant has furnished the Replacement Agent with such evidence and indemnity
as the Issuer and the Replacement Agent may reasonably require and has paid such
costs and expenses as may be incurred in connection with such replacement.
5.02 Replacements to be numbered: Each replacement Temporary Global Note,
Permanent Global Note, Definitive Note or Coupon delivered under this Agreement
shall bear a unique certificate or (as the case may be) serial number.
5.03 Cancellation of mutilated or defaced Notes: Each Replacement Agent shall
cancel each mutilated or defaced Temporary Global Note, Permanent Global Note,
Definitive Note or Coupon surrendered to it in respect of which a replacement
has been delivered.
5.04 Notification: Each Replacement Agent shall notify the Issuer and each other
Paying Agent of the delivery by it of any replacement Temporary Global Note,
Permanent Global Note, Definitive Note or Coupon specifying the certificate or
serial number thereof and the certificate or serial number (if any and if known)
of the Temporary Global Note, Permanent Global Note, Definitive Note or Coupon
which it replaces and confirming that the Temporary Global Note, Permanent
Global Note, Definitive Note or Coupon which it replaces has been cancelled.
6. Payments to the Fiscal Agent
6.01 Issuer to pay Fiscal Agent: In order to provide for the payment of
principal and interest in respect of the Notes as the same becomes due and
payable, not later than the day on which such payment becomes due, the Issuer
shall pay to the Fiscal Agent, to the account of the Fiscal Agent maintained
with Societe Generale, 29 boulevard Haussmann, 75009 Paris (or to such other
account as may be designated by the Fiscal Agent by notice given hereunder to
the Issuer from time to time),
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an amount equal to the amount of principal and/or (as the case may be) interest
falling due in respect of the Notes on such date, for value on such date, unless
a Credit Event (as defined below) has occurred and is continuing on the Business
Day before the date on which the final payment is due under the Notes, in which
case, the Issuer shall make such payment to the Fiscal Agent as provided above
on the Business Day before such final payment is due. For this purpose, "Credit
Event" means the rating of the long term unsecured unsubordinated debt of the
Issuer at a level below A (or the equivalent) by Standard & Poor's Ratings
Services ("Standard & Poor's"); provided however, that in the event Standard &
Poor's does not provide a rating of such debt of the Issuer, "Credit Event"
shall mean the rating of the long term unsecured unsubordinated debt of the
Issuer at a level below A3 by Moody's Investors Service Inc. The Issuer shall
give the Fiscal Agent notice of the ratings of such debt of the Issuer on the
thirtieth day before the date on which the final payment under the Notes is
scheduled to be paid and shall also give the Fiscal Agent notice of any change
in such ratings after such thirtieth day and before the date such final payment
is due.
6.02 Manner and time of payment: Each amount payable under Clause 6.01 (Issuer
to pay Fiscal Agent) shall be paid unconditionally by credit transfer in French
Francs and in immediately available, freely transferable, cleared funds not
later than 10.00 a.m. (Paris time) on the relevant day specified in Clause 6.01.
The Issuer shall, before 10.00 a.m. (Local Time) on the second Business Day
before the due date of each payment by it under Clause 6.01 (Issuer to pay
Fiscal Agent), procure that the bank effecting payment for it confirms by
authenticated SWIFT message MT100 to the Fiscal Agent the payment instructions
relating to such payment indicating that they provide for payment for value on
the relevant date.
6.03 Exclusion of liens and interest: The Fiscal Agent shall be entitled to deal
with each amount paid to it under this Clause 6 (Payments to the Fiscal Agent)
in the same manner as other amounts paid to it as a banker by its customers;
provided, however, that:
(a) it shall not exercise against the Issuer any lien, right of set-off
or similar claim in respect thereof; and
(b) it shall not be liable to any person for interest thereon.
6.04 Application by Fiscal Agent: The Fiscal Agent shall apply each amount paid
to it hereunder in accordance with Clause 7 (Payments to Noteholders) and shall
not be obliged to repay any such amount unless the claim for the relevant
payment becomes void under Condition 9 (Prescription), in which event it shall
refund at the written request of the Issuer such portion of such amount as
relates to such payment by paying the same by credit transfer in immediately
available funds in French Francs to such account with such bank in Paris as the
Issuer has by notice to the Fiscal Agent specified for the purpose.
6.05 Failure to confirm payment instructions: If the Fiscal Agent has not, by
12.00 noon (Local Time) on the second Business Day before the due date of any
payment to it under Clause 6.01 (Issuer to pay Fiscal Agent), received
confirmation by Swift message MT100 of the relevant payment instructions
referred to in Clause 6.02 (Manner and time of payment), it shall forthwith
notify the Issuer and the other Paying Agents. If the Fiscal Agent subsequently
receives confirmation of such payment instructions, it shall forthwith notify
the Issuer and the other Paying Agents.
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7. Payments to Noteholders
7.01 Payments by Paying Agents: Each Paying Agent acting through its Specified
Office shall make payments of principal and interest in respect of the Notes in
accordance with the Conditions (and, in the case of the Temporary Global Note or
the Permanent Global Note, the terms thereof); provided, however, that:
(a) if any Definitive Note or Coupon is presented or surrendered for
payment to any Paying Agent and such Paying Agent has delivered a
replacement therefor or has been notified that the same has been
replaced, such Paying Agent shall forthwith notify the Issuer of
such presentation or surrender and shall not make payment against
the same until it is so instructed by the Issuer and has received
the amount to be so paid;
(b) a Paying Agent shall not be obliged (but shall be entitled) to make
payments of principal or interest in respect of the Notes, if:
(i) in the case of the Fiscal Agent, it has not been able to
ascertain that it has received the full amount of any payment
due to it under Clause 6.01 (Issuer to pay Fiscal Agent); or
(ii) in the case of any other Paying Agent:
(1) it has been notified in accordance with Clause 6.05
(Failure to confirm payment instructions) that
confirmation of the relevant payment instructions has
not been received, unless it is subsequently notified
that confirmation of such payment instructions has been
received; or
(2) it is not able to establish that the Fiscal Agent has
received (whether or not at the due time) the full
amount of any payment due to it under Clause 6.01
(Issuer to pay Fiscal Agent);
(c) each Paying Agent shall cancel each Definitive Note or Coupon
against surrender of which it has made full payment and shall, in
the case of a Paying Agent other than the Fiscal Agent, deliver each
Definitive Note or Coupon so cancelled by it to, or to the order of,
the Fiscal Agent;
(d) in the case of payment of principal or interest against presentation
of the Temporary Global Note or the Permanent Global Note, the
relevant Paying Agent shall procure that there is noted in the
schedule to the Temporary Global Note or (as the case may be) the
Permanent Global Note the amount of such payment and, in the case of
payment of principal, the remaining principal amount of the
Temporary Global Note or (as the case may be) the Permanent Global
Note (which shall be the previous principal amount thereof less the
amount of principal then paid) and shall procure the signature of
such notation on its behalf; and
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(e) notwithstanding any other provision of this Agreement, each Paying
Agent shall be entitled to make a deduction or withholding from any
payment which it makes under this Agreement for or on account of any
present or future taxes, duties or charges if and to the extent so
required by applicable law, in which event such Paying Agent shall
make such payment after such withholding or deduction has been made
and shall account to the relevant authorities for the amount so
withheld or deducted; provided that each Paying Agent shall promptly
inform the Issuer in the event that it becomes aware that such
withholding or deduction shall be required with respect to any
payment hereunder.
7.02 Exclusion of liens and commissions: No Paying Agent shall exercise any
lien, right of set-off or similar claim against any person to whom it makes any
payment under Clause 7.01 (Payments by Paying Agents) in respect thereof, nor
shall any commission or expense be charged by it to any such person in respect
thereof.
7.03 Reimbursement by Fiscal Agent: If a Paying Agent other than the Fiscal
Agent makes any payment in accordance with Clause 7.01 (Payments by Paying
Agents):
(a) it shall notify the Fiscal Agent of the amount so paid by it, the
certificate or serial number (if any) of the Temporary Global Note,
Permanent Global Note, Definitive Note or Coupon against
presentation or surrender of which payment of principal was made, or
of the Temporary Global Note, Permanent Global Note or Definitive
Note against presentation or surrender of which payment of interest
was made, and the number of Coupons by maturity against presentation
or surrender of which payment of interest was made; and
(b) subject to and to the extent of compliance by the Issuer with Clause
6.01 (Issuer to pay Fiscal Agent) (whether or not at the due time),
the Fiscal Agent shall pay to such Paying Agent out of the funds
received by it under Clause 6.01 (Issuer to pay Fiscal Agent), by
credit transfer in French Francs and in immediately available,
freely transferable, cleared funds to such account with such bank in
Paris as such Paying Agent has by notice to the Fiscal Agent
specified for the purpose, an amount equal to the amount so paid by
such Paying Agent.
7.04 Appropriation by Fiscal Agent: If the Fiscal Agent makes any payment in
accordance with Clause 7.01 (Payments by Paying Agents), it shall be entitled to
appropriate for its own account out of the funds received by it under Clause
6.01 (Issuer to pay Fiscal Agent) an amount equal to the amount so paid by it.
7.05 Reimbursement by Issuer: Subject to Clauses 7.01(a) and (b) (Payments by
Paying Agents), if a Paying Agent makes a payment in respect of Notes on or
after the due date for such payment under the Conditions at a time at which the
Fiscal Agent has not received the full amount of the relevant payment due to it
under Clause 6.01 (Issuer to pay Fiscal Agent) and the Fiscal Agent is not able
out of funds received by it under Clause 6.01 (Issuer to pay Fiscal Agent) to
reimburse such Paying Agent therefor (whether by payment under Clause 7.03
(Reimbursement by the Fiscal Agent) or appropriation under Clause 7.04
(Appropriation by the Fiscal Agent)), the Issuer shall from time to time on
demand pay to the Fiscal Agent for account of such Paying Agent:
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(a) the amount so paid out by such Paying Agent and not so reimbursed to
it; and
(b) interest on such amount from the date on which such Paying Agent
made such payment until the date of reimbursement of such amount;
provided, however, that any payment made under paragraph (a) above shall satisfy
pro tanto the obligations of the Issuer under Clause 6.01 (Issuer to pay Fiscal
Agent).
7.06 Interest: Interest shall accrue for the purpose of paragraph (b) of Clause
7.05 (Reimbursement by Issuer) (as well after as before judgment) on the basis
of a year of 360 days and the actual number of days elapsed from, and including,
the day they are advanced by the relevant Paying Agent and to, but excluding,
the day of reimbursement by the Issuer as provided in Clause 7.05 and at the
rate per annum which is charged by such Paying Agent at the time in respect of
overdraft facilities extended to prime borrowers.
7.07 Partial payments: If at any time and for any reason a Paying Agent makes a
partial payment in respect of the Temporary Global Note, the Permanent Global
Note or any Definitive Note or Coupon presented for payment to it, such Paying
Agent shall enface thereon a statement indicating the amount and date of such
payment.
8. Miscellaneous Duties of the Paying Agents
8.01 Records: The Fiscal Agent shall:
(a) maintain a record of the Temporary Global Note and the Permanent
Global Note and all Definitive Notes and Coupons delivered hereunder
and of their redemption, payment, cancellation, mutilation,
defacement, alleged destruction, theft, loss or replacement (and, in
the case of the Temporary Global Note, exchange of interests thereof
for interests in the Permanent Global Note and, in the case of the
Permanent Global Note, exchange thereof for Definitive Notes);
provided, however, that no record need be maintained of the serial
numbers of Coupons, save for the serial numbers of Coupons for which
replacements have been issued under Clause 5 (Replacement Notes and
Coupons) and unmatured Coupons missing at the time of redemption or
other cancellation of the relevant Definitive Notes and for any
subsequent payments against such Coupons;
(b) maintain a record of all certifications received by it in accordance
with Clause 8.03 (Certifications) or the provisions of the Temporary
Global Note for the period specified in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(3)(i) and all confirmations
received by it in accordance with Clause 8.04 (Cancellation); and
(c) make such records available for inspection at all reasonable times
by the Issuer and the other Paying Agents.
8.02 Information from Paying Agents: The Paying Agents and the Common Depositary
if it is involved in an exchange of Definitive Notes for interests in the
Permanent Global Note shall make available to the Fiscal Agent such information
as is reasonably required for the maintenance of the records referred to in
Clause 8.01 (Records).
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8.03 Certifications: Each Paying Agent shall promptly copy to the Issuer and, in
the case of a Paying Agent other than the Fiscal Agent, the Fiscal Agent any
certification received by it in accordance with the provisions of the Temporary
Global Note.
8.04 Cancellation: The Issuer may from time to time deliver to the Fiscal Agent
Definitive Notes and unmatured Coupons relating thereto for cancellation,
whereupon the Fiscal Agent shall cancel such Definitive Notes and Coupons. In
addition, the Issuer may from time to time procure the delivery to the Fiscal
Agent of the Temporary Global Note or the Permanent Global Note with
instructions to cancel a specified aggregate principal amount of Notes
represented by it (which instructions shall be accompanied by confirmation from
Euroclear or Cedel Bank that Notes having such aggregate principal amount may be
cancelled), whereupon the Fiscal Agent shall procure that there is noted on the
schedule to the Temporary Global Note or (as the case may be) the Permanent
Global Note the aggregate principal amount of Notes so cancelled and the
remaining principal amount of the Temporary Global Note or (as the case may be)
the Permanent Global Note (which shall be the previous principal amount thereof
less the aggregate principal amount of the Notes so cancelled) and shall procure
the signature of such notation on its behalf.
8.05 Definitive Notes and Coupons in issue: As soon as practicable (and in any
event within three months) after each interest payment date in relation to the
Notes, after each date on which Notes are cancelled in accordance with Clause
8.04 (Cancellation) and after any date on which the Notes fall due for
redemption in accordance with the Conditions, the Fiscal Agent shall notify the
Issuer and the other Paying Agents (on the basis of the information available to
it) of the number of any Definitive Notes or Coupons against surrender of which
payment has been made and of the number of any Definitive Notes or (as the case
may be) Coupons which have not yet been surrendered for payment.
8.06 Forwarding of communications: The Fiscal Agent shall promptly forward to
the Issuer a copy of any notice or communication addressed to the Issuer by any
Noteholder which is received by the Fiscal Agent.
8.07 Publication of notices: The Fiscal Agent shall, upon and in accordance with
instructions of the Issuer received at least 10 Local Banking Days before the
proposed publication date, arrange for the publication of any notice which is to
be given to the Noteholders and shall supply a copy thereof to each other Paying
Agent, Euroclear, Cedel Bank and any stock exchange on which the Notes are
listed.
8.08 Destruction: The Fiscal Agent shall destroy the Temporary Global Note
following its cancellation in accordance with Clause 4.02 (Annotation of
Temporary Global Note and Permanent Global Note) and the Permanent Global Note
following its cancellation in accordance with Clause 4.04 (Annotation of
Permanent Global Note upon exchange for Definitive Notes) and the Temporary
Global Note and the Permanent Global Note and each Definitive Note or Coupon
delivered to or cancelled by it in accordance with Clause 7.01(c) (Payments by
Paying Agents) or cancelled by it in accordance with Clause 5.03 (Cancellation
of mutilated or defaced Notes) or Clause 8.04 (Cancellation), in which case it
shall furnish the Issuer with a certificate of destruction specifying the
certificate or serial numbers (if any) of the Temporary Global Note or (as the
case may be) the Permanent Global Note or Definitive Notes and the number of
Coupons so destroyed.
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8.09 Documents available for inspection: The Issuer shall provide to each Paying
Agent:
(a) conformed copies of this Agreement and the Deed of Covenant;
(b) if the provisions of Condition 5(b) (Redemption for taxation
reasons) become relevant in relation to the Notes, the documents
contemplated under Condition 5(b) (Redemption for taxation reasons);
and
(c) such other documents as may from time to time be required by any
stock exchange on which the Notes are listed to be made available at
the Specified Office of the Paying Agent having its Specified Office
in such cities as required by the relevant stock exchange.
Each of the Paying Agents shall make available for inspection during normal
business hours at its Specified Office the documents referred to above and, upon
reasonable request, will allow copies of such documents to be taken.
8.10 Voting Certificates and Block Voting Instructions: Each Paying Agent shall,
at the request of any Noteholder, issue Voting Certificates and Block Voting
Instructions in a form and manner which comply with the provisions of the Fifth
Schedule (Provisions for Meetings of the Noteholders) (except that it shall not
be required to issue the same less than 48 hours before the time fixed for any
Meeting provided for therein). Each Paying Agent shall keep a full record of
Voting Certificates and Block Voting Instructions issued by it and shall give to
the Issuer, not less than 24 hours before the time appointed for any Meeting,
full particulars of all Voting Certificates and Block Voting Instructions issued
by it in respect of such Meeting.
9. Fees and Expenses
9.01 Fees: The Issuer shall pay to the Fiscal Agent for the account of the
Paying Agents such fees as have been agreed between the Issuer and the Fiscal
Agent in respect of the services of the Paying Agents hereunder (plus any
applicable value added tax).
9.02 Front-end expenses: The Issuer shall on demand reimburse the Fiscal Agent
for all expenses incurred by it in the negotiation, preparation and execution of
this Agreement, and shall on demand reimburse each Paying Agent for all expenses
(including, without limitation, legal fees and any publication, communication,
courier, postage and other out-of-pocket expenses) properly incurred in
connection with its services hereunder (plus any applicable value added tax).
9.03 Taxes: The Issuer shall pay all stamp, registration and other taxes and
duties (including any interest and penalties thereon or in connection therewith)
which are payable in the United States of America and the United Kingdom upon or
in connection with the execution and delivery of this Agreement, and the Issuer
shall indemnify each Paying Agent on demand against any claim, demand, action,
liability, damages, cost, loss or expense (including, without limitation, legal
fees and any applicable value added tax) which it incurs as a result or arising
out of or in relation to any failure of the Issuer to pay or delay by the Issuer
in paying any of the same. All payments by the Issuer under this Clause 9 (Fees
and Expenses) or Clause 10.04 (Indemnity in favour of the Paying Agents) shall
be made free and clear of, and without withholding or deduction for, any taxes,
duties, assessments or governmental charges of whatsoever nature imposed,
levied, collected, withheld or
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assessed by the United States of America or any political subdivision or any
authority thereof or therein having power to tax, unless such withholding or
deduction is required by law. In that event, the Issuer shall pay such
additional amounts as will result in the receipt by the relevant Paying Agent of
such amounts as would have been received by it if no such withholding or
deduction had been required except that the Issuer shall not be required to pay
such additional amounts (i) if the withholding or deduction would not have been
imposed but for a past or present connection between the relevant Paying Agent
and the United States of America, the Commonwealth of Puerto Rico or any
territory or possession of the United States or subject to its jurisdiction or
(ii) in respect of taxes that would not have been imposed but for the relevant
Paying Agent's failure to deliver to the Issuer a tax form requested and
furnished by it and necessary to enable the Issuer to make the relevant payment
free of withholding or deduction or subject to withholding or deduction at a
reduced rate.
10. Terms of Appointment
10.01 Rights and powers: Each Paying Agent may, in connection with its services
hereunder:
(a) except as ordered by a court of competent jurisdiction or otherwise
required by law and regardless of any notice of ownership, trust or
any other interest therein, any writing thereon or any notice of any
previous loss or theft thereof, but subject to Clause 7.01(a)
(Payments by Paying Agents), treat the bearer of any Temporary
Global Note, Permanent Global Note, Definitive Note or Coupon as its
absolute owner for all purposes and make payments thereon
accordingly;
(b) assume that the terms of the Temporary Global Note, the Permanent
Global Note and each Definitive Note and Coupon as issued are
correct;
(c) refer any question relating to the ownership of the Temporary Global
Note, the Permanent Global Note or any Definitive Note or Coupon or
the adequacy or sufficiency of any evidence supplied in connection
with the replacement of the Temporary Global Note, the Permanent
Global Note or any Definitive Note or Coupon to the Issuer for
determination by the Issuer and rely upon any determination so made;
(d) rely upon the terms of any notice, communication or other document
believed by it to be genuine; and
(e) engage and pay for the advice or services of any lawyers or other
experts whose advice or services it considers necessary and rely
upon any advice so obtained (and such Paying Agent shall be
protected and shall incur no liability as against the Issuer in
respect of any action taken, or permitted to be taken, in accordance
with such advice and in good faith).
10.02 Extent of duties: Each Paying Agent shall only be obliged to perform the
duties set out herein and such other duties as are necessarily incidental
thereto. No Paying Agent shall:
(a) be under any fiduciary duty or other obligation towards or have any
relationship of agency or trust for or with any person other than
the Issuer, or
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(b) be responsible for or liable in respect of the legality, validity or
enforceability of the Temporary Global Note, the Permanent Global
Note or any Definitive Note or Coupon or any act or omission of any
other person (including, without limitation, any other Paying
Agent).
10.03 Freedom to transact: Each Paying Agent may purchase, hold and dispose of
Notes and Coupons and may enter into any transaction (including, without
limitation, any depository, trust or agency transaction) with any holders of
Notes or Coupons or with any other person in the same manner as if it had not
been appointed as the agent of the Issuer in relation to the Notes.
10.04 Indemnity in favour of the Paying Agents: The Issuer shall indemnify each
Paying Agent against any claim, demand, action, liability, damages, cost, loss
or reasonable expense (including, without limitation, reasonable legal fees and
any applicable value added tax) which it incurs, other than such costs and
expenses as are separately agreed to be reimbursed out of the fees payable under
Clause 9.01 (Fees) and otherwise than by reason of its own gross negligence or
wilful misconduct, default or bad faith or violation of its obligations under
this Agreement, as a result or arising out of or in relation to its acting as
the agent of the Issuer in relation to the Notes.
11. Changes in Paying Agents
11.01 Resignation: Any Paying Agent may resign its appointment upon not less
than 30 days' notice to the Issuer (with a copy, in the case of a Paying Agent
other than the Fiscal Agent, to the Fiscal Agent); provided, however, that:
(a) if such resignation would otherwise take effect less than 30 days
before or after the maturity date or other date for redemption of
the Notes or any interest payment date in relation to the Notes, it
shall not take effect until the thirtieth day following such date;
and
(b) in the case of the Fiscal Agent or a Required Paying Agent, such
resignation shall not take effect until a successor has been duly
appointed consistently with Clause 11.04 (Additional and successor
agents) or Clause 11.05 (Paying Agents may appoint successors) and
notice of such appointment has been given to the Noteholders.
11.02 Revocation: The Issuer may revoke its appointment of any Paying Agent by
not less than 30 days' notice to such Paying Agent (with a copy, in the case of
a Paying Agent other than the Fiscal Agent, to the Fiscal Agent); provided,
however, that, in the case of the Fiscal Agent or any Required Paying Agent,
such revocation shall not take effect until a successor has been duly appointed
consistently with Clause 11.04 (Additional and successor agents) or Clause 11.05
(Paying Agents may appoint successors) and notice of such appointment has been
given to the Noteholders.
11.03 Automatic termination: The appointment of any Paying Agent shall terminate
forthwith if (a) such Paying Agent becomes incapable of acting, (b) a secured
party takes possession, or a receiver, manager or other similar officer is
appointed, of the whole or any part of the undertaking, assets and revenues of
such Paying Agent, (c) such Paying Agent admits in writing its insolvency or
inability to pay its debts as they fall due, (d) an administrator or liquidator
of such Paying Agent or the whole or any part of the undertaking, assets and
revenues of such Paying Agent is appointed (or application for any such
appointment is made), (e) such Paying Agent takes any action for a
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readjustment or deferment of any of its obligations or makes a general
assignment or an arrangement or composition with or for the benefit of its
creditors or declares a moratorium in respect of any of its indebtedness, (f) an
order is made or an effective resolution is passed for the winding-up of such
Paying Agent or (g) any event occurs which has an analogous effect to any of the
foregoing. If the appointment of the Fiscal Agent or any Required Paying Agent
is terminated in accordance with the preceding sentence, the Issuer shall
forthwith appoint a successor in accordance with Clause 11.04 (Additional and
successor agents).
11.04 Additional and successor agents: The Issuer may appoint a successor fiscal
agent and additional or successor paying agents and shall forthwith give notice
of any such appointment to the continuing Paying Agents and the Noteholders,
whereupon the Issuer, the continuing Paying Agents and the additional or
successor fiscal agent or paying agent shall acquire and become subject to the
same rights and obligations between themselves as if they had entered into an
agreement in the form mutatis mutandis of this Agreement.
11.05 Paying Agents may appoint successors: If the Fiscal Agent or any Required
Paying Agent gives notice of its resignation in accordance with Clause 11.01
(Resignation) and by the tenth day before the expiry of such notice a successor
has not been duly appointed in accordance with Clause 11.04 (Additional and
successor agents), the Fiscal Agent or (as the case may be) Required Paying
Agent may itself, following such consultation with the Issuer as is practicable
in the circumstances, appoint as its successor any reputable and experienced
financial institution and give notice of such appointment to the Issuer, the
remaining Paying Agents and the Noteholders, whereupon the Issuer, the remaining
Paying Agents and such successor shall acquire and become subject to the same
rights and obligations between themselves as if they had entered into an
agreement in the form mutatis mutandis of this Agreement.
11.06 Release: Upon any resignation or revocation taking effect under Clause
11.01 (Resignation) or 11.02 (Revocation) or any termination taking effect under
Clause 11.03 (Automatic termination), the relevant Paying Agent shall:
(a) be released and discharged from its obligations under this Agreement
(save that it shall remain entitled to the benefit of and subject to
Clause 9.03 (Taxes), Clause 10 (Terms of Appointment) and Clause 11
(Changes in Paying Agents));
(b) in the case of the Fiscal Agent, deliver to the Issuer and to its
successor a copy, certified as true and up-to-date by an officer or
authorised signatory of the Fiscal Agent, of the records maintained
by it in accordance with Clause 8.01 (Records); and
(c) forthwith (upon payment to it of any amount due to it in accordance
with Clause 9 (Fees and Expenses) or Clause 10.04 (Indemnity in
favour of the Paying Agents) transfer all moneys and papers
(including any unissued Notes held by it hereunder and any documents
held by it pursuant to Clause 8.09 (Documents available for
inspection)) to its successor and, upon appropriate notice, provide
reasonable assistance to its successor for the discharge of its
duties and responsibilities hereunder.
11.07 Merger: Any legal entity into which any Paying Agent is merged or
converted or any legal entity resulting from any merger or conversion to which
such Paying Agent is a party shall, to the
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extent permitted by applicable law, be the successor to such Paying Agent
without any further formality, whereupon the Issuer, the other Paying Agents and
such successor shall acquire and become subject to the same rights and
obligations between themselves as if they had entered into an agreement in the
form mutatis mutandis of this Agreement. Notice of any such merger or conversion
shall forthwith be given by such successor to the Issuer, the other Paying
Agents and the Noteholders.
11.08 Changes in Specified Offices: If any Paying Agent decides to change its
Specified Office (which may only be effected within the same city unless the
prior written approval of the Issuer has been obtained), it shall give notice to
the Issuer (with a copy to the other Paying Agents) of the address of the new
Specified Office stating the date on which such change is to take effect, which
date shall be not less than 30 days after the date of such notice. The Issuer
shall at its own expense not less than 14 days prior to the date on which such
change is to take effect (unless the appointment of the relevant Paying Agent is
to terminate pursuant to any of the foregoing provisions of this Clause 11
(Changes in Paying Agents) on or prior to the date of such change) give notice
thereof to the Noteholders.
12. Notices
12.01 Addresses for notices: All notices and communications hereunder shall be
made in writing (by letter, telex or fax) and shall be sent as follows:
(a) if to the Issuer, to it at:
437 Madison Avenue
New York, New York 10022
USA
Fax: +212 415 3530
Attention: Treasurer
(b) if to a Paying Agent, to it at the address, telex number or fax
number specified against its name in the Sixth Schedule (Specified
Offices of the Paying Agents) (or, in the case of a Paying Agent not
originally a party hereto, specified by notice to the parties hereto
at the time of its appointment) for the attention of the person or
department specified therein;
or, in any case, to such other address, telex number or fax number or for the
attention of such other person or department as the addressee has by prior
notice to the sender specified for the purpose.
12.02 Effectiveness: Every notice or communication sent in accordance with
Clause 12.01 (Addresses for notices) shall be effective as follows:
(a) if sent by letter or fax, upon receipt by the addressee; and
(b) if sent by telex, upon receipt by the sender of the addressee's
answerback at the end of transmission;
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provided, however, that any such notice or communication which would otherwise
take effect after 4.00 p.m. (local time in the city designated by the addressee
for notices to it hereunder) on any particular day shall not take effect until
10.00 a.m. (local time in that city) on the immediately succeeding business day
in the place of the addressee.
12.03 Notices to Noteholders: Any notice required to be given to Noteholders
under this Agreement shall be given in accordance with the Conditions; provided,
however, that, so long as all the Notes are represented by the Temporary Global
Note or the Permanent Global Note, notices to Noteholders shall be given in
accordance with the terms of the Temporary Global Note or the Permanent Global
Note and, so long as any of the Notes is represented by the Temporary Global
Note, notices to Noteholders of the Notes so represented shall be given in
accordance with the terms of the Temporary Global Note.
12.04 Notices in English: All notices and other communications hereunder shall
be made in the English language or shall be accompanied by a certified English
translation thereof. Any certified English translation delivered hereunder shall
be certified a true and accurate translation by a professionally qualified
translator or by some other person competent to do so.
13. Law and Jurisdiction
13.01 Governing law: This Agreement is governed by, and shall be construed in
accordance with, English law.
13.02 Jurisdiction: The Issuer agrees for the benefit of the Paying Agents that
the courts of England shall have jurisdiction to hear and determine any suit,
action or proceedings, and to settle any disputes, which may arise out of or in
connection with this Agreement (respectively, "Proceedings" and "Disputes") and,
for such purposes, irrevocably submits to the jurisdiction of such courts.
13.03 Appropriate forum: The Issuer irrevocably waives any objection which it
might now or hereafter have to the courts of England being nominated as the
forum to hear and determine any Proceedings and to settle any Disputes, and
agrees not to claim that any such court is not a convenient or appropriate
forum.
13.04 Process agent: The Issuer agrees that the process by which any Proceedings
in England are begun may be served on it by being delivered to Omnicom Finance
Limited of 239 Old Marylebone Road, London NW1 5QT or if different, its
registered office for the time being or at any other address at which process
may be served on it in accordance with Part XXIII of the Companies Act 1985. If
such person is not or ceases to be effectively appointed to accept service of
process on the Issuer's behalf, the Issuer shall, on the written demand of any
Paying Agent addressed to the Issuer and delivered to the Issuer or to the
Specified Office of the Fiscal Agent, appoint a further person in England to
accept service of process on its behalf. Nothing in this paragraph shall affect
the right of any Paying Agent to serve process in any other manner permitted by
law.
13.05 Non-exclusivity: The submission to the jurisdiction of the courts of
England shall not (and shall not be construed so as to) limit the right of any
Paying Agent to take Proceedings in any other court of competent jurisdiction,
nor shall the taking of Proceedings in any one or more jurisdictions
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preclude the taking of Proceedings in any other jurisdiction (whether
concurrently or not) if and to the extent permitted by law.
14. Modification
This Agreement may be amended by further agreement among the parties hereto and
without the consent of the Noteholders.
15. Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original. Any party may enter into this Agreement by signing
any such counterpart.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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THE FIRST SCHEDULE
Form of Temporary Global Note
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
OMNICOM GROUP INC.
(incorporated with limited liability under
the laws of the State of New York)
FRF1,000,000,000 5.20 per cent.
Notes due 2005
TEMPORARY GLOBAL NOTE
1. Introduction: This Temporary Global Note is issued in respect of the
FRF1,000,000,000 5.20 per cent. Notes due 2005 (the "Notes") of Omnicom Group
Inc. (the "Issuer"). The Notes are the subject of a fiscal agency agreement
dated 24 June 1998 (as amended or supplemented from time to time, the "Fiscal
Agency Agreement") and made between the Issuer, Societe Generale Bank & Trust
S.A., Luxembourg as fiscal agent (the "Fiscal Agent", which expression includes
any successor fiscal agent appointed from time to time in connection with the
Notes) and the other paying agents named therein (together with the Fiscal
Agent, the "Paying Agents", which expression includes any additional or
successor paying agents appointed from time to time in connection with the
Notes).
2. References to Conditions: Any reference herein to the "Conditions" is to the
terms and conditions of the Notes scheduled to the Fiscal Agency Agreement and
any reference to a numbered "Condition" is to the correspondingly numbered
provision thereof.
3. Promise to pay: The Issuer, for value received, promises to pay to the bearer
of this Temporary Global Note the principal sum of
FRF1,000,000,000
(ONE THOUSAND MILLION FRENCH FRANCS)
on 24 June 2005 or on such earlier date or dates as the same may become payable
in accordance with the Conditions, and to pay interest on such principal sum in
arrear on the dates and at the rate specified in the Conditions, together with
any additional amounts payable in accordance with the Conditions, all subject to
and in accordance with the Conditions; provided, however, that such interest
shall be payable:
(a) in the case of interest falling due before the Exchange Date (as
defined below), only to the extent that a certificate or
certificates issued by Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System
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("Euroclear") and/or Cedel Bank, societe anonyme ("Cedel Bank")
dated not earlier than the date on which such interest falls due and
in substantially the form set out in Schedule III hereto is/are
delivered to the Specified Office (as defined in the Conditions) of
the Fiscal Agent; or
(b) in the case of interest falling due at any time on or after the
Exchange Date in respect of any portion of this Temporary Global
Note in respect of which such a certificate has been delivered, only
to the extent that the Issuer has failed to procure the exchange for
a permanent global Note of that portion of this Temporary Global
Note.
4. Negotiability: This Temporary Global Note is negotiable and, accordingly,
title to this Temporary Global Note shall pass by delivery.
5. Exchange: On or after the day following the expiry of 40 days after the date
of issue of this Global Note (the "Exchange Date"), the Issuer shall procure (in
the case of first exchange) the delivery of a permanent global Note (the
"Permanent Global Note") in substantially the form set out in the Second
Schedule (Form of Permanent Global Note) to the Fiscal Agency Agreement to the
bearer of this Temporary Global Note or (in the case of any subsequent exchange)
an increase in the principal amount of the Permanent Global Note in accordance
with its terms against:
(a) presentation and (in the case of final exchange) surrender of this
Global Note at the Specified Office of the Fiscal Agent; and
(b) receipt by the Fiscal Agent of a certificate or certificates issued
by Euroclear and/or Cedel Bank dated not earlier than the Exchange
Date and in substantially the form set out in Schedule III hereto
with respect to the Temporary Global Note or portions thereof being
exchanged, which certificate or certificates shall be based upon a
written certification or certifications in substantially the form
set forth in Schedule II hereto received by Euroclear or Cedel Bank,
as the case may be, by tested telex or electronic transmission from
the persons appearing in its records as being the owner of the
Temporary Global Note or portions thereof being exchanged (the
"Member Organisations"). The delivery to the Fiscal Agent by
Euroclear or Cedel Bank of any certificate referred to above may be
relied upon by the Issuer and the Fiscal Agent as conclusive
evidence that a corresponding certification or certifications has or
have been delivered to Euroclear or Cedel Bank by the Member
Organisations.
The principal amount of the Permanent Global Note shall be equal to the
aggregate of the principal amounts specified in the certificates issued by
Euroclear and/or Cedel Bank and received by the Fiscal Agent; provided, however,
that in no circumstances shall the principal amount of the Permanent Global Note
exceed the initial principal amount of this Temporary Global Note.
6. Writing down: On each occasion on which:
(a) the Permanent Global Note is delivered or the principal amount
thereof is increased in accordance with its terms in exchange for a
further portion of this Global Note; or
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(b) Notes represented by this Temporary Global Note are to be cancelled
in accordance with Condition 5(e) (Redemption and Purchase -
Cancellation),
the Issuer shall procure that (i) the principal amount of the Permanent Global
Note, the principal amount of such increase or (as the case may be) the
aggregate principal amount of such Notes and (ii) the remaining principal amount
of this Temporary Global Note (which shall be the previous principal amount
hereof less the aggregate of the amounts referred to in (i) above) are noted in
Schedule I hereto, whereupon the principal amount of this Temporary Global Note
shall for all purposes be as most recently so noted.
7. Payments: All payments in respect of this Temporary Global Note shall be made
in accordance with the Conditions against presentation and (in the case of
payment of principal in full with all interest accrued thereon) surrender of
this Temporary Global Note at the Specified Office of any Paying Agent and shall
be effective to satisfy and discharge the corresponding liabilities of the
Issuer in respect of the Notes. On each occasion on which a payment of interest
is made in respect of this Temporary Global Note, the Issuer shall procure that
the same is noted in Schedule I hereto.
8. Conditions apply: Until this Temporary Global Note has been exchanged as
provided herein or cancelled in accordance with the Fiscal Agency Agreement, the
bearer of this Temporary Global Note shall be subject to the Conditions and,
subject as otherwise provided herein, shall be entitled to the same rights and
benefits under the Conditions as if the bearer were the holder of Notes in
definitive form in substantially the form set out in the Third Schedule (Form of
Definitive Note) to the Fiscal Agency Agreement and the related interest coupons
in the denomination of FRF10,000 and in an aggregate principal amount equal to
the principal amount of this Global Note.
9. Notices: Notwithstanding Condition 14 (Notices), while all the Notes are
represented by this Temporary Global Note (or by this Temporary Global Note and
the Permanent Global Note) and this Temporary Global Note is (or this Temporary
Global Note and the Permanent Global Note are) deposited with a common
depositary for the relevant clearing systems, notices to Noteholders may be
given by delivery of the relevant notice to the relevant clearing systems and,
in any case, such notices shall be deemed to have been given to the Noteholders
in accordance with the Condition 14 (Notices) on the date of delivery to the
relevant clearing systems.
10. Authentication: This Temporary Global Note shall not be valid for any
purpose until it has been authenticated for and on behalf of Societe Generale
Bank & Trust S.A., Luxembourg as fiscal agent.
11. Governing law: This Temporary Global Note is governed by, and shall be
construed in accordance with, English law.
AS WITNESS the manual signature of a duly authorised person on behalf of the
Issuer.
OMNICOM GROUP INC.
By: ..............................
(duly authorised)
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ISSUED on 24 June 1998
AUTHENTICATED for and on behalf of
SOCIETE GENERALE BANK & TRUST S.A., LUXEMBOURG
as fiscal agent without recourse, warranty or liability
By: ..............................
manual signature
(duly authorised)
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Schedule I
Payments, Exchange for Permanent Global Note and Cancellation of Notes
==================================================================================================================
Date of Amount of Principal Aggregate Remaining Authorised
payment, interest then amount of principal principal Signature
delivery or paid Permanent amount of Notes amount of this
cancellation Global Note then cancelled Temporary
then delivered Global Note
or by which
Permanent
Global Note
then increased
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Schedule II
Form of Accountholder's Certification
OMNICOM GROUP INC.
(incorporated with limited liability under
the laws of the State of New York)
FRF1,000,000,000 5.20 per cent.
Notes due 2005
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations, any estate the income of which is subject
to United States Federal income taxation regardless of its source, a trust if a
court within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust and any other person
whose income or gain with respect to a Note is effectively connected with the
conduct of a United States trade or business ("United States Persons"), (ii) are
owned by United States Person(s) that (a) are foreign branches of a United
States financial institution (as defined in United States Treasury Regulations
Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own
account or for resale, or (b) acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise the issuer or the issuer's
agent that it will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in
addition if the owner of the Securities is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)) this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly to
a United States Person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section 230.903(c)(3) of
Regulation S under the Securities Act of 1933, as amended (the "Act"), then this
is also to certify that, except as set forth below, the Securities are
beneficially owned by (a) non-U.S. person(s) or (b) U.S. person(s) who purchased
the Securities in transactions which did not require registration under the Act.
As used in this paragraph the term "U.S. person" has the meaning given to it by
Regulation S under the Act.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the Securities held by
you for our account in accordance with
-24-
your operating procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certification excepts and does not relate to [currency] [amount] of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Dated: [ ]
[name of account holder]
as, or as agent for,
the beneficial owner(s) of the Securities
to which this certificate relates.
By: ....................................
Authorised signatory
-25-
Schedule III
Form of Euroclear/Cedel Bank Certification
OMNICOM GROUP INC.
(incorporated with limited liability under
the laws of the State of New York)
FRF1,000,000,000 5.20 per cent.
Notes due 2005
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the temporary global note issued in respect of the securities, as
of the date hereof, [currency] [amount] principal amount of the above-captioned
Securities (i) is owned by persons that are not citizens or residents of the
United States, domestic partnerships, domestic corporations, any estate the
income of which is subject to United States Federal income taxation regardless
of its source, a trust if a court within the United States is able to exercise
primary supervision over the administration of the trust and one or more United
States persons have the authority to control all substantial decisions of the
trust and any other person whose income or gain with respect to a Note is
effectively connected with the conduct of a United States trade or business
("United States Persons"), (ii) is owned by United States Persons that (a) are
foreign branches of United States financial institutions (as defined in United
States Treasury Regulations Section 1.165- 12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b) acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution has agreed, on its own behalf or through its agent, that
we may advise the Issuer or the Issuer's agent that it will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of
1986, as amended, and the regulations thereunder), or (iii) is owned by United
States or foreign financial institutions for purposes of resale during the
restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and to the further effect that United States or foreign
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
Person or to a person within the United States or its possessions. Any such
certification by electronic transmission satisfies the requirements set forth in
U.S. Treasury Regulations Section 1.163- 5(c)(2)(i)(D)(3)(ii). We will retain
all certifications from our Member Organisations for the period specified in
United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(3)(i).
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global security excepted in
-26-
such certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organisations to the effect that the
statements made by such Member Organisations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any rights or
collection of any interest) are no longer true and cannot be relied upon as of
the date hereof.
We understand that this certification is required in connection with certain tax
laws and, if applicable, certain securities laws of the United States. In
connection therewith, if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or would be relevant,
we irrevocably authorise you to produce this certification to any interested
party in such proceedings.
Dated: [ ]
Morgan Guaranty Trust Company of New York,
Brussels Office,
as operator of the Euroclear System
or
Cedel Bank, societe anonyme
By: ....................................
Authorised signatory
or
SICOVAM S.A.
By: ....................................
Authorised signatory
-27-
THE SECOND SCHEDULE
Form of Permanent Global Note
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
OMNICOM GROUP INC.
(incorporated with limited liability under
the laws of the State of New York)
FRF1,000,000,000 5.20 per cent.
Notes due 2005
PERMANENT GLOBAL NOTE
1. Introduction: This Global Note is issued in respect of the FRF1,000,000,000
5.20 per cent. Notes due 2005 (the "Notes") of Omnicom Group Inc. (the
"Issuer"). The Notes (insofar as they are represented by this Global Note) have
the benefit of a deed of covenant dated 24 June 1998 (as amended or supplemented
from time to time, the "Deed of Covenant") entered into by the Issuer and are
the subject of a fiscal agency agreement dated 24 June 1998 (as amended or
supplemented from time to time, the "Fiscal Agency Agreement") and made between
the Issuer, Societe Generale Bank & Trust S.A., Luxembourg as fiscal agent (the
"Fiscal Agent", which expression includes any successor fiscal agent appointed
from time to time in connection with the Notes) and the other paying agents
named therein (together with the Fiscal Agent, the "Paying Agents", which
expression includes any additional or successor paying agents appointed from
time to time in connection with the Notes).
2. References to Conditions: Any reference herein to the "Conditions" is to the
terms and conditions of the Notes set out in Schedule II hereto and any
reference to a numbered "Condition" is to the correspondingly numbered provision
thereof.
3. Promise to pay: The Issuer, for value received, promises to pay to the bearer
of this Global Note the principal sum of
FRF1,000,000,000
(ONE THOUSAND MILLION FRENCH FRANCS)
on 24 June 2005 or on such earlier date or dates as the same may become payable
in accordance with the Conditions, and to pay interest on such principal sum in
arrear on the dates and at the rate specified in the Conditions, together with
any additional amounts payable in accordance with the Conditions, all subject to
and in accordance with the Conditions.
4. Negotiability: This Global Note is negotiable and, accordingly, title to this
Global Note shall pass by delivery.
-28-
5. Exchange: This Global Note will become exchangeable, in whole but not in part
only, for Notes in definitive form ("Definitive Notes") in substantially the
form set out in the Third Schedule (Form of Definitive Note) to the Fiscal
Agency Agreement if:
(i) either of the following events occurs and the bearer of this
Permanent Global Note makes a request for exchange:
(a) Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System ("Euroclear"), Cedel Bank,
societe anonyme ("Cedel Bank") and any other relevant clearing
system is closed for business for a continuous period of 14
days (other than by reason of legal holidays) or announces an
intention permanently to cease business; or
(b) any of the circumstances described in Condition 8 (Events of
Default) occurs; or
(ii) any Noteholder makes a written request to the Fiscal Agent to
receive Definitive Notes (in aggregate principal amount equal to
such Noteholder's interest in this Permanent Global Note).
6. Delivery of Definitive Notes: Whenever this Global Note is to be exchanged
for Definitive Notes, the Issuer shall procure the prompt delivery of such
Definitive Notes, duly authenticated and with interest coupons ("Coupons")
attached, in an aggregate principal amount equal to the principal amount of this
Global Note to the bearer of this Global Note against the surrender of this
Global Note at the Specified Office (as defined in the Conditions) of the Fiscal
Agent within 30 days of the bearer requesting such exchange.
7. Failure to deliver Definitive Notes or to repay: If:
(a) Definitive Notes have not been delivered in accordance with
paragraph 6 (Delivery of Definitive Notes) above by 5.00 p.m.
(London time) on the thirtieth day after the bearer has requested
exchange of this Global Note for Definitive Notes; or
(b) this Global Note (or any part hereof) has become due and payable in
accordance with the Conditions or the date for final redemption of
this Global Note has occurred and, in either case, payment in full
of the amount of principal falling due with all accrued interest
thereon has not been made to the bearer in accordance with the terms
of this Global Note on the due date for payment,
then this Global Note (including the obligation to deliver Definitive Notes)
will become void at 5.00 p.m. (London time) on such thirtieth day (in the case
of (a) above) or at 5.00 p.m. (London time) on such due date (in the case of (b)
above) and the bearer of this Global Note will have no further rights hereunder
(but without prejudice to the rights which the bearer of this Global Note or
others may have under the Deed of Covenant). The Deed of Covenant has been
deposited at the Specified Office of the Fiscal Agent and a copy of it may be
inspected at the Specified Office of each Paying Agent.
-29-
8. Writing down: On each occasion on which:
(a) a payment of principal is made in respect of this Global Note;
(b) Definitive Notes are delivered; or
(c) Notes represented by this Global Note are to be cancelled in
accordance with Condition 5(e) (Redemption and Purchase -
Cancellation),
the Issuer shall procure that (i) the amount of such payment and the aggregate
principal amount of such Notes and (ii) the remaining principal amount of this
Global Note (which shall be the previous principal amount hereof less the
aggregate of the amounts referred to in (i) above) are noted in Schedule I
hereto, whereupon the principal amount of this Global Note shall for all
purposes be as most recently so noted.
9. Writing up: If this Global Note was originally issued in exchange for part
only of a temporary global Note representing the Notes, then, if at any time any
further portion of such temporary global Note is exchanged for an interest in
this Global Note in accordance with the terms of such temporary global Note, the
principal amount of this Global Note shall be increased by the amount of such
further portion, and the Issuer shall procure that the principal amount of this
Global Note (which shall be the previous principal amount hereof plus the amount
of such further portion) is noted in Schedule I hereto, whereupon the principal
amount of this Global Note shall for all purposes be as most recently so noted.
10. Payments: All payments in respect of this Global Note shall be made against
presentation and (in the case of payment of principal in full with all interest
accrued thereon) surrender of this Global Note at the Specified Office of any
Paying Agent and shall be effective to satisfy and discharge the corresponding
liabilities of the Issuer in respect of the Notes. On each occasion on which a
payment of interest is made in respect of this Global Note, the Issuer shall
procure that the same is noted in Schedule I hereto.
11. Conditions apply: Until this Global Note has been exchanged as provided
herein or cancelled in accordance with the Fiscal Agency Agreement, the bearer
of this Global Note shall be subject to the Conditions and, subject as otherwise
provided herein, shall be entitled to the same rights and benefits under the
Conditions as if it were the holder of Definitive Notes and the related Coupons
in the denomination of FRF10,000 and in an aggregate principal amount equal to
the principal amount of this Global Note.
12. Notices: Notwithstanding Condition 14 (Notices), while all the Notes are
represented by this Global Note (or by this Global Note and a temporary global
Note) and this Global Note is (or this Global Note and a temporary global Note
are) deposited with a common depositary for the relevant clearing systems,
notices to Noteholders may be given by delivery of the relevant notice to the
relevant clearing systems and, in any case, such notices shall be deemed to have
been given to the Noteholders in accordance with the Condition 14 (Notices) on
the date of delivery to the relevant clearing systems;
13. Authentication: This Global Note shall not be valid for any purpose until it
has been authenticated for and on behalf of Societe Generale Bank & Trust S.A.,
Luxembourg as fiscal agent.
-30-
14. Governing law: This Global Note is governed by, and shall be construed in
accordance with, English law.
AS WITNESS the manual signature of a duly authorised person on behalf of the
Issuer.
OMNICOM GROUP INC.
By: ..............................
(duly authorised)
ISSUED as of 24 June 1998
AUTHENTICATED for and on behalf of SOCIETE GENERALE BANK & TRUST S.A.,
LUXEMBOURG as fiscal agent without recourse, warranty or liability
By: ..............................
manual signature
(duly authorised)
-31-
Schedule I
Payments, Exchanges against Temporary Global Note, Delivery of Definitive Notes
and Cancellation of Notes
====================================================================================================================================
Date of payment, Amount of interest Principal amount Aggregate Aggregate principal New principal Authorised
exchange, delivery then paid of Temporary principal amount amount of Notes then amount of this signature
or cancellation Global Note then of Definitive cancelled Global Note
exchanged Notes then
delivered
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-32-
Schedule II
Terms and Conditions of the Notes
[To be inserted]
-33-
THE THIRD SCHEDULE
Form of Definitive Note and Coupon
[On the face of the Note:]
FRF [ ]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
OMNICOM GROUP INC.
(incorporated with limited liability under
the laws of the State of New York)
FRF1,000,000,000
5.20 per cent. Notes due 2005
This Note is one of a series of notes (the "Notes") in the denominations of
FRF10,000 and FRF100,000 and in the aggregate principal amount of
FRF1,000,000,000 issued by Omnicom Group Inc. (the "Issuer").
The Issuer, for value received, promises to pay to the bearer the principal sum
of
FRF[10/100],000
on 24 June 2005, or on such earlier date or dates as the same may become payable
in accordance with the conditions endorsed hereon (the "Conditions"), and to pay
interest on such principal sum in arrear on the dates and at the rate specified
in the Conditions, together with any additional amounts payable in accordance
with the Conditions, all subject to and in accordance with the Conditions.
This Note and the interest coupons relating hereto shall not be valid for any
purpose until this Note has been authenticated for and on behalf of Societe
Generale Bank & Trust S.A., Luxembourg as fiscal agent.
AS WITNESS the facsimile signature of a duly authorised person on behalf of the
Issuer.
OMNICOM GROUP INC.
By: ..............................
(duly authorised)
ISSUED as of [ ]
-34-
AUTHENTICATED for and on behalf of Societe Generale Bank & Trust S.A.,
Luxembourg as fiscal agent without recourse, warranty or liability
By: ..............................
(duly authorised)
-35-
[On the reverse of the Note:]
TERMS AND CONDITIONS
[At the foot of the Terms and Conditions:]
FISCAL AGENT
Societe Generale Bank & Trust S.A., Luxembourg
11-13 avenue Emile Reuter
L-2420 Luxembourg
PAYING AGENT
Societe Generale
29 boulevard Haussman
75009 Paris
-36-
Form of Coupon
[On the face of the Coupon:]
OMNICOM GROUP INC.
FRF1,000,000,000 5.20 per cent. Notes due 2005
Coupon for FRF[ ] due on [ ].
Such amount is payable, subject to the terms and conditions (the "Conditions")
endorsed on the Note to which this Coupon relates (which are binding on the
holder of this Coupon whether or not it is for the time being attached to such
Note), against presentation and surrender of this Coupon at the Specified Office
for the time being of any of the agents shown on the reverse of this Coupon (or
any successor or additional agents appointed from time to time in accordance
with the Conditions).
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
-37-
[On the reverse of the Coupon:]
Fiscal Agent: Societe Generale Bank & Trust S.A., Luxembourg
11-13 avenue Emile Reuter
L-2420 Luxembourg
Paying Agent: Societe Generale
29 boulevard Haussman
75009 Paris
France
-38-
THE FOURTH SCHEDULE
Terms and Conditions of the Notes
The FRF 1,000,000,000 5.20 per cent. Notes due 2005 (the "Notes", which
expression includes any further notes issued pursuant to Condition 13 and
forming a single series therewith) of Omnicom Group Inc. (the "Issuer") are the
subject of a fiscal agency agreement dated 24 June 1998 (as amended or
supplemented from time to time, the "Fiscal Agency Agreement") between the
Issuer, Societe General Bank & Trust S.A. Luxembourg, as fiscal agent (the
"Fiscal Agent"), which expression includes any successor fiscal agent appointed
from time to time in connection with the Notes) and the paying agent named
therein (together with the Fiscal Agent, the "Paying Agents", which expression
includes any successor or additional paying agents appointed from time to time
in connection with the Notes). Certain provisions of these Conditions are
summaries of the Fiscal Agency Agreement and subject to its detailed provisions.
The holders of the Notes (the "Noteholders") and the holders of the related
interest coupons (the "Couponholders" and the "Coupons", respectively) are bound
by, and are deemed to have notice of, all the provisions of the Fiscal Agency
Agreement applicable to them. Copies of the Fiscal Agency Agreement are
available for inspection by Noteholders during normal business hours at the
Specified Office (as defined in the Fiscal Agency agreement) of each of the
Paying Agents, the initial Specified Offices of which are set out below.
1. Form, Denomination and Title
The Notes are in bearer form in the denominations of FRF 10,000 and FRF
100,000 with Coupons attached at the time of issue. Notes of one denomination
will not be exchangeable for Notes of the other denomination. Title to the Notes
and the Coupons will pass by delivery. Each Noteholder and Couponholder shall
(except as otherwise required by law) be treated as its absolute owner for all
purposes (whether or not it is overdue and regardless of any notice of
ownership, trust or any other interest therein, any writing thereon or any
notice of any previous loss or theft thereof) and no person shall be liable for
so treating such Noteholder or Couponholder.
2. Status
The Notes constitute direct, unconditional, unsecured and unsubordinated
obligations of the Issuer which will at all time rank pari passu among
themselves and (subject to Condition 3) at least pari passu with all other
present and future unsecured obligations of the Issuer, save for such
obligations as may be preferred by provisions of law that are both mandatory and
of general application.
3. Negative Pledge
As long as any Note is outstanding (as defined in the Fiscal Agency
Agreement), the Issuer undertakes not to provide any security upon any or all of
its present or future assets for any other indebtedness represented by notes,
bonds, debentures or other securities issued pursuant to an offering by which
such securities are intended primarily to be publicly distributed outside the
United States without at the same time having the Noteholders share equally and
rateably in such security.
4. Interest
The Notes bear interest from 24 June 1998 (the "Issue Date") at the rate
of 5.20 per cent. per annum (the "Rate of Interest"), payable in arrear on 24
June in each year (each, an "Interest Payment Date"), subject to Condition 6.
Each period beginning on, and including, the Issue Date or any Interest Payment
Date and ending on, but excluding, the next Interest Payment Date is herein
called an "Interest Period".
Each Note will cease to bear interest from the due date for redemption
unless, upon due presentation, payment of principal is improperly withheld or
refused, in which case it will continue to bear interest at the Rate of Interest
(as well after as before judgment) until whichever is the earlier of (a) the day
on which all sums due in respect of such Note up to that day are received by or
on behalf of the relevant Noteholder and (b) the day which is seven days after
the Fiscal Agent has given notice to the Noteholders as provided in the Fiscal
Agency Agreement that it has received all sums due in respect of the Notes up to
such seventh day (except to the extent that there is any subsequent default in
payment).
-39-
The amount of interest payable in respect of each Note for any Interest
Period shall be calculated by applying the Rate of Interest to the principal
amount of such Note and rounding the resulting figure to the nearest centime
(half a centime being rounded upwards). If interest is required to be calculated
for any period of less than one year it will be calculated on the basis of a
year of 360 days consisting of 12 months of 30 days each and, in the case of an
incomplete month, the actual number of days elapsed.
5. Redemption and Purchase
(a) Scheduled redemption. Unless previously redeemed, or purchased and
cancelled, the Notes will be redeemed at their principal amount on 24 June 2005,
subject to Condition 6.
(b) Optional redemption for tax reasons: The Notes may be redeemed at the
option of the Issuer in whole, but not in part, at any time, on giving not less
than 30 nor more than 60 days' notice to the Noteholders (which notice shall be
irrevocable), at their principal amount, together with interest accrued to the
date fixed for redemption, if the Issuer has or will become obliged to pay
additional amounts as provided or referred to in Condition 7 as a result of any
change in, or amendment to, the laws or regulations of the United States of
America or any political subdivision or any authority thereof or therein having
power to tax, or any change in the official application or official
interpretation of such laws or regulations (including a holding by a court of
competent jurisdiction), which change or amendment becomes effective on or after
22 June 1998, provided, however, that no such redemption may be made on any date
that is more than 90 days prior to the earliest date on which the Issuer would
be obliged to pay such additional amounts if a payment in respect of the Notes
were then due.
Prior to the publication of any notice of redemption pursuant to this
Condition, the Issuer shall deliver to the Fiscal Agent:
(i) a certificate signed by two directors of the Issuer stating that the
Issuer is entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent to the
right of the Issuer so to redeem have occurred; and
(ii) an opinion of independent legal advisers of recognised standing to
the effect that the Issuer has or will become obligated to pay such
additional amounts as a result of such change or amendment.
Upon the expiry of any such notice as is referred to in this Condition
5(b), the Issuer shall be bound to redeem the Notes in accordance with this
Condition 5(b).
(c) No other redemption: The Issuer shall not be entitled to redeem the
Notes otherwise than as provided in paragraphs (a) and (b) above.
(d) Purchase: The Issuer or any of its Subsidiaries may at any time
purchase Notes in the open market or otherwise and at any price.
(e) Cancellation: All Notes so redeemed or purchased by the Issuer or any
of its Subsidiaries any unmatured Coupons attached to or surrendered with them
may be cancelled or resold.
6. Payments
(a) Principal: Payments of principal shall be made only against
presentation and (provided that payment is made in full) surrender of Notes at
the Specified Office of any Paying Agent outside the United states and its
possessions by French Franc cheque drawn on, or by transfer to a French Franc
account maintained by the payee with, a bank in Paris.
(b) Interest: Payments of interest shall, subject to paragraph (f) below,
be made only against presentation and (provided that payment is made in full)
surrender of the appropriate Coupons at the Specified Office of any Paying Agent
outside the United States and its possessions in the manner described in
paragraph (a) above.
(c) Payments subject to fiscal laws: All payments in respect of the Notes
are subject in all cases to any applicable fiscal or other laws and regulations,
but without prejudice to the provisions of Condition 7. No commissions or
expenses shall be charged to the Noteholders or Couponholders in respect of such
payments.
(d) Deduction for unmatured Coupons: If a Note is presented without all
unmatured Coupons relating thereto, a sum equal to the aggregate amount of the
missing Coupons will be deducted from the amount of principal due for payment,
provided, however, that, if the gross amount available for payment is less than
the
-40-
principal amount of such Note, the sum deducted will be that proportion of the
aggregate amount of such missing Coupons which the gross amount actually
available for payment bears to the principal amount of such Note. Each sum of
principal so deducted shall be paid in the manner provided in paragraph (a)
above against presentation and (provided that payment is made in full) surrender
of the relevant missing Coupons.
(e) Payments on business days: If the due date for payment of any amount
in respect of any Note or Coupon is not a business day in the place of
presentation, the relevant Noteholder or, as the case may be, Couponholder shall
not be entitled to payment in such place of the amount due until the next
succeeding business day in such place and shall not be entitled to any further
interests or other payment in respect of any such delay. In this paragraph,
"business day" means, in respect of any place of presentation, any day on which
banks are open for business in such place of presentation and, in the case of
payment by transfer to a French Franc account as referred to above, on which
dealings in foreign currencies may be carried on both in Paris and in such place
of presentation.
(f) Payments other than in respect of matured Coupons: Payments of
interests other than in respect of matured Coupons shall be made only against
presentation of the relevant Notes at the Specified Office of any Paying Agent
outside the United States.
(g) Partial payments: If a Paying Agent makes a partial payment in respect
of any Note or Coupon presented to it for payment, such Paying Agent will
endorse thereon a statement indicating the amount and date of such payment.
7. Taxation
All payments of principal and interest in respect of the Notes and the
Coupons shall be made free and clear of, and without withholding or deduction
for, any taxes, duties, assessments or governmental charges of whatsoever nature
imposed, levied, collected, withheld or assessed by the United States of America
or any political subdivision or any authority thereof or therein having power to
tax, unless such withholding or deduction is required by law. In that event, the
Issuer shall pay such additional amounts as will result in the receipt by the
Noteholders and the Couponholders of such amounts as would have been received by
them if no such withholding or deduction had been required, except that no such
additional amounts shall be payable in respect of
(a) any tax, duty, assessment or other governmental charge which would
not have been imposed but for the existence of any present or former
connection between such Noteholder (or between a fiduciary, settlor
or beneficiary of, or possessor of power over such Noteholder, if
such Noteholder is an estate or trust; or a member or shareholder of
such Noteholder, if such Noteholder is a trust, a partnership or a
corporation) and the United States; the Commonwealth of Puerto Rico
or any territory or possession of the United States or area subject
to its jurisdiction including, without limitation, such Noteholder
(or such fiduciary, settlor, beneficiary, possessor, member or
shareholder) being or having been a United States Person (as defined
below);
(b) any estate, inheritance, gift, sales, transfer, personal property or
any similar tax, duty, assessment or other governmental charge;
(c) any tax, duty, assessment or other governmental charge imposed by
reason of such Noteholder's past or present status (i) as a personal
holding company or foreign personal holding company with respect to
the United States, (ii) as a corporation which accumulates earnings
to avoid United States federal income tax, (iii) as a controlled
foreign corporation with respect to the United States, (iv) as the
owner, actually or constructively, of ten per cent. or more, of the
total combined voting power of all classes of stock of the issuer
entitled to vote, (v) as a private foundation or other exempt
organisation or (vi) as a bank receiving interest described in
Section 881(c)(3)(A) of the United States Internal Revenue Code of
1986, as amended.
(d) any tax, duty, assessment or other governmental charge that would
not have been imposed but for a failure to comply with any
applicable certification, information, documentation or other
reporting requirements concerning the nationality, residence,
identity or connection with the United States of the holder or
beneficial owner of a Note, if without regard to any tax treaty,
such compliance is required by statute or regulation of the United
States as a precondition to relief or exemption from such tax, duty,
assessment or other governmental charge;
-41-
(e) any tax, duty, assessment or governmental charge that would not have
been so imposed but for the presentation by the Noteholder of the
Note or the Couponholder of the Coupon for payment on a date more
than 30 days after the date on which such payment first becomes due.
(f) any tax, duty, assessment or governmental charge that is payable
otherwise than by withholding by the Issuer from the payment of the
principal or, as the case may be, redemption amount in respect of or
interest on the relevant Note or Coupon; or
(g) any combination of items (a), (b), (c), (d), (e), or (f) above
nor shall additional amounts to be paid (i) to any Noteholder or Couponholder
who is not the beneficial owner of the Note or, as the case may be, Coupon for
United States federal income tax purposes if such beneficial owner would not
have been entitled to payment of additional amounts had such beneficial owner
been the Noteholder or Couponholder, or (ii) to any Noteholder who is a United
States Person.
For the purposes of this Condition 7, "United States Person" means any
citizen or resident of the United States, a corporation, partnership or other
entity created or organised in or under the laws of the United States or, in the
case of a partnership, otherwise treated as a United States partnership pursuant
to the United States Treasury Department regulations under Section 7701(a)(4) of
the Internal Revenue Code of 1986, as amended, an estate the income of which is
subject to United States federal income tax regardless of its source, a trust if
(a) a court within the United States is able to exercise primary supervision
over the administration of the trust and (b) one or more United States Persons
have the authority to control all substantial decisions of the trust, or any
other person whose income or gain with respect to a Note is effectively
connected with the conduct of a United States trade or business.
Any reference in these Conditions to principal or interest shall be deemed
to include any additional amounts in respect of principal or interest (as the
case may be) which may be payable under this Condition 7.
8. Events of Default
(a) If any of the following events occurs and is continuing:
(i) the Issuer fails to pay any amount in respect of the Notes
within 30 days of the due date for payment thereof; or
(ii) subject to the provisions of Condition 8(b), the Issuer
defaults in the performance or observance of any other
obligation under the Notes and such default remains unremedied
for more than 30 days after written notice thereof, addressed
to the Issuer, has been delivered to the Issuer or to the
Specified Office of the Fiscal Agent by hand or registered
mail;
(iii) subject to the provisions of Condition 8(b), any indebtedness
of the Issuer for monies borrowed exceeding in aggregate FRF
120,000,000 (or equivalent in other currencies) shall not be
paid when due or shall become due prior to its stated maturity
resulting from a default which permits any credit or of the
Issuer to accelerate such indebtedness; or
(iv) any resolution or order is made which results in the
dissolution, winding-up or liquidation of the Issuer; or
(v) the Issuer shall commence a voluntary case concerning itself
under Title 11 of the United States Code entitled
"Bankruptcy", as now or hereafter in effect or any successor
thereto (the "Bankruptcy Code"); or an involuntary case is
commenced against the Issuer and the petition is not
controverted within 10 days, or is not dismissed within 60
days, after commencement of the case; or a custodian (as
defined in the Bankruptcy Code) is appointed for, or takes
charge of, all or substantially all of the property of the
Issuer, or the Issuer is adjudicated insolvent or bankrupt, or
any order of relief or other order approving any such case or
proceeding is entered; or the Issuer suffers any appointment
of any custodian or the like for it or all or substantially
all of its property to continue undischarged or unstayed for a
period of 60 days; or any corporate action is taken by the
Issuer for the purpose of effecting any of the foregoing;
then, subject to Condition 8(b), any Note may, by written notice addressed
by the bearer thereof to the Issuer and delivered to the Issuer or to the
Specified Office of the Fiscal Agent (together with evidence that such
Noteholder at the time of such notice was the Noteholder of the relevant
Notes) be declared immediately due and payable, whereupon it shall become
immediately due and payable at its principal amount together with accrued
interest without further action or formality.
-42-
(b) The events described in subsections (a)(ii) and (iii) above will give
rise to a right to declare the Notes due only when the Fiscal Agent has received
such notices from holders of at least FRF 1,000,000,000 in aggregate principal
amount of the Notes.
9. Prescription
Claims for principal shall become void unless the relevant Notes are
presented for payment within ten years of the appropriate Relevant Date. Claims
for interest shall become void unless the relevant Coupons are presented for
payment within four years of the appropriate Relevant Date.
In these Conditions, "Relevant Date" means whichever is the later of (a)
the date on which the payment in question first becomes due and (b) if the full
amount payable has not been received in Paris by the Fiscal Agent on or prior to
such due date, the date on which (the full amount having been so received)
notice to that effect has been given to the Noteholders.
10. Replacement of Notes and Coupons
If any Note or coupon is lost, stolen, mutilated, defaced or destroyed, it
may be replaced at the specified Office of the Fiscal Agent and the Paying Agent
having its Specified Office in Paris, subject to all applicable laws and stock
exchange requirements, upon payment by the claimant of the expenses incurred in
connection with such replacement and on such terms as to evidence, security,
indemnity and otherwise as the Issuer may reasonably require. Mutilated or
defaced Notes or Coupons must be surrendered before replacements will be issued.
11. Paying Agents
In acting under the Fiscal Agency Agreement and in connection with the
Notes and Coupons, the Paying Agents act solely as agents of the Issuer and do
not assume any obligations towards or relationship of agency or trust for or
with any of the Noteholders or Couponholders.
The initial Paying Agents and their initial Specified Offices are listed
below. The Issuer reserves the right at any time to vary or terminate the
appointment of any Paying Agent and to appoint a successor fiscal agent and
additional or successor paying agents; provided, however, that the Issuer shall
(i) as long as the Notes are listed on the Paris Bourse and such exchange so
requires maintain a paying agent in Paris, (ii) and, maintain at all times a
fiscal agent. Notice of any change in any of the Paying Agents or in their
Specified Offices shall promptly be given to the Noteholders.
12. Meetings of Noteholders; Modification and Waiver
(a) Meetings of Noteholders: The Fiscal Agency Agreement contains
provisions for convening meetings of Noteholders to consider matters relating to
the Notes, including the modification of any provision of these Conditions,
other than as contemplated in Condition 16. Any such modification may be made if
sanctioned by an Extraordinary Resolution. Such a meeting may be convened by the
Issuer and shall be convened by it upon the request in writing of Noteholders
holding not less than one-tenth of the aggregate principal amount of the
outstanding Notes. The quorum at any meeting convened to vote on an
Extraordinary Resolution will be two or more persons holding or representing one
more than half of the aggregate principal amount of the outstanding Notes or, at
any adjourned meeting, two or more persons being or representing Noteholders
whatever the principal amount of the Notes held or represented; provided,
however, that certain proposals (including any proposal to change any date fixed
for payment of principal or interest in respect of the Notes, to reduce the
amount of principal or interest payable on any date in respect of the Notes, to
alter the method of calculating the amount of any payment in respect of the
Notes or the date for any such payment, to change the currency of payments under
the Notes (other than the replacement of the French Franc by the Europ (as
defined in Condition (6)) or to change the quorum requirements relating to
meetings or the majority required to pass an Extraordinary Resolution (each, a
"Reserved Matter")) may only be sanctioned by an Extraordinary Resolution passed
at a meeting of Noteholders at which two or more persons holding or representing
not less than three quartets or, at any adjourned meeting, one quarter of the
aggregate principal amount of the outstanding Notes form a quorum. Any
Resolution duly passed at any such meeting shall be binding on all the
Noteholders and Couponholders, whether present or not.
In addition, a resolution in writing signed by or on behalf of all
Noteholders who for the time being are entitled to receive notice of a meeting
of Noteholders will take effect as if it were an Extraordinary Resolution. Such
a resolution in writing may be contained in one document or several documents in
the same form, each signed by or on behalf of one or more Noteholders.
-43-
(b) Modification. The Notes and these Conditions may be amended without
the consent of the Noteholders or the Couponholders to correct a manifest error.
In addition, the parties to the Fiscal Agency Agreement may agree to modify any
provision thereof, but the Issuer shall not agree, without the consent of the
Noteholders, to any such modification unless it is of a formal, minor or
technical nature, it is made to correct a manifest error or it is, in the
opinion of such parties, not materially prejudicial to the interest of the
Noteholders.
13. Further Issues
The Issuer may from time to time, without the consent of the Noteholders
or the Couponholders, create and issue further notes having the same terms and
conditions as the Notes in all respects (or in all respects except for the first
payment of interest) so as to form a single series with the Notes.
14. Notices
Notices to the Noteholders shall be valid if published in a daily leading
newspaper having general circulation in Paris (which is expected to be either
les Ecchos or La Tribune Desfosses) or, if such publication is not practicable,
in a leading English language daily newspaper having general circuclation in
Europe. Any such notice shall be deemed to have been given on the date of first
publication. Couponholders shall be deemed for all purposes to have notice of
the contents of any notice given to the Noteholders.
15. Governing Law and Jurisdiction
(a) Governing law: The Notes are governed by, and shall be construed in
accordance with, English law.
(b) Jurisdiction: The Issuer agrees for the benefit of the Noteholders
that the courts of England shall have jurisdiction to hear and determine any
suit, action or proceedings, and to settle any disputes, which may arise out of
or in connection with the Notes (respectively, "Proceedings" and "Disputes")
and, for such purposes, irrevocably submits to the jurisdiction of such courts.
(c) Appropriate forum: The Issuer irrevocably waives any objection which
it might now or hereafter have to the courts of England being nominated as the
forum to hear and determine any Proceedings and to settle any Disputes, and
agrees not to claim that any such court is not a convenient or appropriate
forum.
(d) Service of process: The Issuer agrees that the process by which any
Proceedings in England are begun may be served on it by being delivered to it at
Omnicom Finance Limited, 239 Old Marylebone Road, London NW1 5QT or at any other
address of the Issuer in Great Britain at which service of process may be served
on it in accordance with Part XXIII of the Companies Act 1985. Nothing in this
paragraph shall affect the right of any Noteholder to serve process in any other
manner permitted by law.
(e) Non-exclusivity: The submission to the jurisdiction of the courts of
England shall not (and shall not be construed so as to) limit the right of any
Noteholder to take Proceedings in any other court of competent jurisdiction, nor
shall the taking of Proceedings in any one or more jurisdictions preclude the
taking of Proceedings in any other jurisdiction (whether concurrently or not) if
and to the extent permitted by law.
16. European Monetary Union
Pursuant to the treaty establishing the European Community (the "EC"), as
amended by the treaty on European Union (the "Treaty"), to which the Republic of
France is a signatory, it is provided that at or before 1 January 1999, and
subject to the fulfilment of certain conditions, the European Currency Unit or
ECU may become a currency in its own right (such currency to be named the
"Euro"), replacing all or some of the currencies of the member states of the EC,
including the French Franc. If, pursuant to the Treaty, the French Franc is
replaced by the Euro, the payment of principal of, or redemption amount or
interest on, the Notes shall be effected and the Notes may, without the consent
of the Noteholders or Couponholders, on giving not less than 30 days' notice to
Noteholders, the relevant clearing systems and the Paying Agents be
redenominated in Euro in conformity with market convention and legally
applicable measures taken pursuant to, or by virtue of, the Treaty; and, if the
Notes, the Paying Agency Agreement or any document related thereto calls for any
calculation to be made by reference to an amount in French Francs, the
calculation shall instead be made by reference to the equivalent of that French
Franc amount in Euro, determined in conformity with such market convention and
legally applicable measures.
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THE FIFTH SCHEDULE
Provisions for Meetings of the Noteholders
1. Definitions: In this Agreement and the Conditions, the following
expressions have the following meanings:
"Block Voting Instruction" means, in relation to any Meeting, a document
in the English language issued by a Paying Agent:
(a) certifying that certain specified Notes (the "deposited Notes") have
been deposited with such Paying Agent (or to its order at a bank or
other depositary) or blocked in an account with a clearing system
and will not be released until the earlier of:
(i) the conclusion of the Meeting; and
(ii) the surrender to such Paying Agent, not less than 48 hours
before the time fixed for the Meeting (or, if the Meeting has
been adjourned, the time fixed for its resumption), of the
receipt for the deposited or blocked Notes and notification
thereof by such Paying Agent to the Issuer;
(b) certifying that the depositor of each deposited Note or a duly
authorised person on its behalf has instructed the relevant Paying
Agent that the votes attributable to such deposited Note are to be
cast in a particular way on each resolution to be put to the Meeting
and that, during the period of 48 hours before the time fixed for
the Meeting, such instructions may not be amended or revoked;
(c) listing the total number and (if in definitive form) the certificate
numbers of the deposited Notes, distinguishing for each resolution
between those in respect of which instructions have been given to
vote for, or against, the resolution; and
(d) authorising a named individual or individuals to vote in respect of
the deposited Notes in accordance with such instructions;
"Chairman" means, in relation to any Meeting, the individual who takes the
chair in accordance with paragraph 7 (Chairman);
"Extraordinary Resolution" means a resolution passed at a Meeting duly
convened and held in accordance with this Schedule by a majority of not
less than three quarters of the votes cast;
"Meeting" means a meeting of Noteholders (whether originally convened or
resumed following an adjournment);
"Proxy" means, in relation to any Meeting, a person appointed to vote
under a Block Voting Instruction other than:
(a) any such person whose appointment has been revoked and in relation
to whom the Fiscal Agent has been notified in writing of such
revocation by the time which is 48 hours before the time fixed for
such Meeting; and
- 45 -
(b) any such person appointed to vote at a Meeting which has been
adjourned for want of a quorum and who has not been re-appointed to
vote at the Meeting when it is resumed;
"Relevant Fraction" means:
(a) for all business other than voting on a resolution described in the
notice referred to in paragraph 6 of this Schedule as an
Extraordinary Resolution, one tenth;
(b) for voting on a resolution described in the notice referred to in
paragraph 6 of this Schedule as an Extraordinary Resolution other
than one relating to a Reserved Matter, one more than half; and
(c) for voting on a resolution described in the notice referred to in
paragraph 6 of this Schedule as an Extraordinary Resolution relating
to a Reserved Matter, three quarters;
provided, however, that, in the case of a Meeting which has resumed after
adjournment for want of a quorum it means:
(i) for all business other than voting on a resolution described
in the notice referred to in paragraph 6 of this Schedule as
an Extraordinary Resolution relating to a Reserved Matter, the
fraction of the aggregate principal amount of the outstanding
Notes represented or held by the Voters actually present at
the Meeting; and
(ii) for voting on a resolution described in the notice referred to
in paragraph 6 of this Schedule as an Extraordinary Resolution
relating to a Reserved Matter, one quarter;
"Reserved Matter" means any proposal:
(a) to change any date fixed for payment of principal or interest in
respect of the Notes, to reduce the amount of principal or interest
payable on any date in respect of the Notes or to alter the method
of calculating the amount of any payment in respect of the Notes on
redemption or maturity or the date for any such payment;
(b) to effect the exchange or substitution of the Notes for, or the
conversion of the Notes into, shares, bonds or other obligations or
securities of the Issuer or any other person or body corporate
formed or to be formed;
(c) to change the currency in which amounts due in respect of the Notes
are payable provided that the introduction of the Euro at the start
of the third stage of European Monetary Union shall not constitute
such a change;
(d) to change the quorum required at any Meeting or the majority
required to pass an Extraordinary Resolution; or
(e) to amend this definition;
- 46 -
"Voter" means, in relation to any Meeting, the bearer of a Voting
Certificate, a Proxy or the bearer of a Definitive Note who produces such
Definitive Note at the Meeting;
"Voting Certificate" means, in relation to any Meeting, a certificate in
the English language issued by a Paying Agent and dated in which it is
stated:
(a) that certain specified Notes (the "deposited Notes") have been
deposited with such Paying Agent (or to its order at a bank or other
depositary) or blocked in an account with a clearing system and will
not be released until the earlier of:
(i) the conclusion of the Meeting; and
(ii) the surrender of such certificate to such Paying Agent; and
(b) that the bearer of such certificate is entitled to attend and vote
at the Meeting in respect of the deposited Notes;
"Written Resolution" means a resolution in writing signed by or on behalf
of all holders of Notes who for the time being are entitled to receive
notice of a Meeting in accordance with the provisions of this Schedule,
whether contained in one document or several documents in the same form,
each signed by or on behalf of one or more such holders of the Notes;
"24 hours" means a period of 24 hours including all or part of a day upon
which banks are open for business in both the places where the relevant
Meeting is to be held and in each of the places where the Paying Agents
have their Specified Offices (disregarding for this purpose the day upon
which such Meeting is to be held) and such period shall be extended by one
period or, to the extent necessary, more periods of 24 hours until there
is included as aforesaid all or part of a day upon which banks are open
for business as aforesaid; and
"48 hours" means 2 consecutive periods of 24 hours.
2. Issue of Voting Certificates and Block Voting Instructions: The holder of a
Note may obtain a Voting Certificate from any Paying Agent or require any Paying
Agent to issue a Block Voting Instruction by depositing such Note with such
Paying Agent or arranging for such Note to be (to its satisfaction) held to its
order or under its control or blocked in an account with a clearing system not
later than 48 hours before the time fixed for the relevant Meeting. A Voting
Certificate or Block Voting Instruction shall be valid until the release of the
deposited Notes to which it relates. So long as a Voting Certificate or Block
Voting Instruction is valid, the bearer thereof (in the case of a Voting
Certificate) or any Proxy named therein (in the case of a Block Voting
Instruction) shall be deemed to be the holder of the Notes to which it relates
for all purposes in connection with the Meeting. A Voting Certificate and a
Block Voting Instruction cannot be outstanding simultaneously in respect of the
same Note.
3. References to deposit/release of Notes: Where Notes are represented by the
Temporary Global Note or the Permanent Global Note or are held in definitive
form within a clearing system, references to the deposit, or release, of Notes
shall be construed in accordance with the usual practices (including blocking
the relevant account) of such clearing system.
4. Validity of Block Voting Instructions: A Block Voting Instruction shall be
valid only if it is deposited at the Specified Office of the Fiscal Agent, or at
some other place approved by the Fiscal
- 47 -
Agent, at least 24 hours before the time fixed for the relevant Meeting or the
Chairman decides otherwise before the Meeting proceeds to business. If the
Fiscal Agent requires, a notarised copy of each Block Voting Instruction and
satisfactory proof of the identity of each Proxy named therein shall be produced
at the Meeting, but the Fiscal Agent shall not be obliged to investigate the
validity of any Block Voting Instruction or the authority of any Proxy.
5. Convening of Meeting: The Issuer may convene a Meeting at any time, and shall
be obliged to do so upon the request in writing of Noteholders holding not less
than one tenth of the aggregate principal amount of the outstanding Notes.
6. Notice: At least 21 days' notice (exclusive of the day on which the notice is
given and of the day on which the relevant Meeting is to be held) specifying the
date, time and place of the Meeting shall be given to the Noteholders and the
Paying Agents (with a copy to the Issuer). The notice shall set out the full
text of any resolutions to be proposed and shall state that the Notes may be
deposited with, or to the order of, any Paying Agent for the purpose of
obtaining Voting Certificates or appointing Proxies not later than 48 hours
before the time fixed for the Meeting.
7. Chairman: An individual (who may, but need not, be a Noteholder) nominated in
writing by the Issuer may take the chair at any Meeting but, if no such
nomination is made or if the individual nominated is not present within 15
minutes after the time fixed for the Meeting, those present shall elect one of
themselves to take the chair failing which, the Issuer may appoint a Chairman.
The Chairman of an adjourned Meeting need not be the same person as was the
Chairman of the original Meeting.
8. Quorum: The quorum at any Meeting shall be at least two Voters representing
or holding not less than the Relevant Fraction of the aggregate principal amount
of the outstanding Notes; provided, however, that, so long as at least the
Relevant Fraction of the aggregate principal amount of the outstanding Notes is
represented by the Temporary Global Note or the Permanent Global Note, a single
Proxy representing the holder thereof shall be deemed to be two Voters for the
purpose of forming a quorum.
9. Adjournment for want of quorum: If within 15 minutes after the time fixed for
any Meeting a quorum is not present, then:
(a) in the case of a Meeting requested by Noteholders, it shall be
dissolved; and
(b) in the case of any other Meeting, it shall be adjourned for such
period (which shall be not less than 14 days and not more than 42
days) and to such place as the Chairman determines; provided,
however, that:
(i) the Meeting shall be dissolved if the Issuer so decides; and
(ii) no Meeting may be adjourned more than once for want of a
quorum.
10. Adjourned Meeting: The Chairman may, with the consent of (and shall if
directed by) any Meeting, adjourn such Meeting from time to time and from place
to place, but no business shall be transacted at any adjourned Meeting except
business which might lawfully have been transacted at the Meeting from which the
adjournment took place in accordance with this Schedule.
- 48 -
11. Notice following adjournment: Paragraph 6 (Notice) shall apply to any
Meeting which is to be resumed after adjournment for want of a quorum save that:
(a) 10 days' notice (exclusive of the day on which the notice is given
and of the day on which the Meeting is to be resumed) shall be
sufficient; and
(b) the notice shall specifically set out the quorum requirements which
will apply when the Meeting resumes.
It shall not be necessary to give notice of the resumption of a Meeting which
has been adjourned for any other reason.
12. Participation: The following may attend and speak at a Meeting:
(a) Voters;
(b) representatives of the Issuer and the Fiscal Agent;
(c) the financial advisers of the Issuer;
(d) the legal counsel to the Issuer and the Fiscal Agent; and
(e) any other person approved by the Meeting.
13. Show of hands: Every question submitted to a Meeting shall be decided in the
first instance by a show of hands. Unless a poll is validly demanded before or
at the time that the result is declared, the Chairman's declaration that on a
show of hands a resolution has been passed, passed by a particular majority,
rejected or rejected by a particular majority shall be conclusive, without proof
of the number of votes cast for, or against, the resolution.
14. Poll: A demand for a poll shall be valid if it is made by the Chairman, the
Issuer or one or more Voters representing or holding not less than one fiftieth
of the aggregate principal amount of the outstanding Notes. The poll may be
taken immediately or after such adjournment as the Chairman directs, but any
poll demanded on the election of the Chairman or on any question of adjournment
shall be taken at the Meeting without adjournment. A valid demand for a poll
shall not prevent the continuation of the relevant Meeting for any other
business as the Chairman directs.
15. Votes: Every Voter shall have:
(a) on a show of hands, one vote; and
(b) on a poll, one vote in respect of each FRF10,000 in aggregate face
amount of the outstanding Note(s) represented or held by him.
In the case of a voting tie the Chairman shall have a casting vote.
- 49 -
Unless the terms of any Block Voting Instruction state otherwise, a Voter shall
not be obliged to exercise all the votes to which he is entitled or to cast all
the votes which he exercises in the same way.
16. Validity of Votes by Proxies: Any vote by a Proxy in accordance with the
relevant Block Voting Instruction shall be valid even if such Block Voting
Instruction or any instruction pursuant to which it was given has been amended
or revoked, provided that the Fiscal Agent has not been notified in writing of
such amendment or revocation by the time which is 24 hours before the time fixed
for the relevant Meeting. Unless revoked, any appointment of a Proxy under a
Block Voting Instruction in relation to a Meeting shall remain in force in
relation to any resumption of such Meeting following an adjournment; provided,
however, that no such appointment of a Proxy in relation to a Meeting originally
convened which has been adjourned for want of a quorum shall remain in force in
relation to such Meeting when it is resumed. Any person appointed to vote at
such a Meeting must be reappointed under a Block Voting Instruction Proxy to
vote at the Meeting when it is resumed.
17. Powers: A Meeting shall have power (exercisable by Extraordinary
Resolution), without prejudice to any other powers conferred on it or any other
person:
(a) to approve any Reserved Matter;
(b) to approve any proposal by the Issuer for any modification,
abrogation, variation or compromise of any of the Conditions or any
arrangement in respect of the obligations of the Issuer under or in
respect of the Notes;
(c) to approve any proposal by the Issuer for any modification of any
provision of the Deed of Covenant or any arrangement in respect of
the obligations of the Issuer thereunder;
(d) to approve the substitution of any person for the Issuer (or any
previous substitute) as principal obligor under the Notes and the
Deed of Covenant;
(e) to waive any breach or authorise any proposed breach by the Issuer
of its obligations under or in respect of the Notes or the Deed of
Covenant or any act or omission which might otherwise constitute an
event of default under the Notes;
(f) to authorise the Fiscal Agent or any other person to execute all
documents and do all things necessary to give effect to any
Extraordinary Resolution;
(g) to give any other authorisation or approval which is required to be
given by Extraordinary Resolution; and
(h) to appoint any persons as a committee to represent the interests of
the Noteholders and to confer upon such committee any powers which
the Noteholders could themselves exercise by Extraordinary
Resolution.
18. Resolution binds all holders: A resolution shall be binding upon all
Noteholders and holders of Coupons whether or not present at such Meeting and
each of the Noteholders shall be bound to give effect to it accordingly. Notice
of the result of every vote on a resolution shall be given to the
- 50 -
Noteholders and the Paying Agents (with a copy to the Issuer) within 14 days of
the conclusion of the Meeting.
19. Minutes: Minutes shall be made of all resolutions and proceedings at each
Meeting. The Chairman shall sign the minutes, which shall be prima facie
evidence of the proceedings recorded therein. Unless and until the contrary is
proved, every such Meeting in respect of the proceedings of which minutes have
been summarised and signed shall be deemed to have been duly convened and held
and all resolutions passed or proceedings transacted at it to have been duly
passed and transacted.
20. Written Resolution: A Written Resolution shall take effect as if it were an
Extraordinary Resolution.
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THE SIXTH SCHEDULE
Specified Offices of the Agents
The Fiscal Agent:
Societe Generale Bank & Trust S.A., Luxembourg
11-13 avenue Emile Reuter
L-2420 Luxembourg
Telex: 2849 ALTIT LU
Fax: + 352 241575
Attention: Christiane Tini
The other Paying Agent:
Societe Generale
29 boulevard Haussman
75009 Paris
France
Fax: + 331 5343 5700
Attention: Paying Agency
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SIGNATURES
The Issuer
OMNICOM GROUP INC.
By: DENIS STREIFF
The Fiscal Agent
SOCIETE GENERALE BANK & TRUST S.A., LUXEMBOURG
By: MICHEL BACKER By: VINCENT DECALF
The Other Paying Agent
SOCIETE GENERALE
By: MICHEL BACKER By: VINCENT DECALF
For the purposes of Article 1 of the Protocol annexed to the Convention on
Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
signed at Brussels on 27 September 1968, the undersigned expressly and
specifically agrees in the terms of Clause 13.02 (Jurisdiction).
SOCIETE GENERALE BANK & TRUST S.A., LUXEMBOURG
By: MICHEL BACKER By: VINCENT DECALF
JCCTS4$8.18
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