Exhibit 4.2
EXECUTION COPY
THE INTERPUBLIC GROUP OF COMPANIES, INC.
4.50% Convertible Senior Notes Due 2023
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of March 13, 2003 by and between The Interpublic Group of
Companies, Inc., a Delaware corporation (the "Company"), and Salomon Smith
Barney Inc., J.P. Morgan Securities Inc. and UBS Warburg LLC, as representatives
of the initial purchasers (the "Initial Purchasers"), pursuant to the Purchase
Agreement, dated as of March 10, 2003, between the Company and the Initial
Purchasers (the "Purchase Agreement"). In order to induce the Initial Purchasers
to enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following meanings:
(a) "Additional Amounts" has the meaning assigned thereto in Section
2(d).
(b) "Additional Amounts Payment Date" has the meaning assigned thereto
in Section 2(d).
(c) "Affiliate" shall have the meaning specified in Rule 405 under the
Securities Act and the terms "controlling" and "controlled" shall have
meanings correlative thereto.
(d) "Agreement" has the meaning specified in the first paragraph of
this Agreement.
(e) "Applicable Conversion Price" means, as of any date of
determination, $1,000 divided by the Conversion Rate in effect as of such
date of determination.
(f) "Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
(g) "Closing Date" means the date on which the Notes are initially
issued.
(h) "Commission" means the Securities and Exchange Commission, or any
other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
(i) "Company" has the meaning specified in the first paragraph of this
Agreement.
(j) "Conversion Rate" shall have the meaning assigned such term in the
Indenture.
(k) "Deferral Notice" has the meaning assigned thereto in Section
3(b).
(l) "Deferral Period" has the meaning assigned thereto in Section
3(b).
(m) "Effective Period" has the meaning assigned thereto in Section
2(a).
(n) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(o) "Holder" means each holder, from time to time, of Registrable
Securities (including the Initial Purchasers).
(p) "Indenture" means the Indenture dated as of October 20, 2000,
between the Company and The Bank of New York, as Trustee, as amended and
supplemented by the Third Supplemental Indenture thereto, dated as of March
13, 2003, pursuant to which the Notes are being issued.
(q) "Initial Placement" means the initial placement of the Securities
pursuant to the terms of the Purchase Agreement.
(r) "Initial Purchasers" has the meaning specified in the first
paragraph of this Agreement.
(s) "Losses" has the meaning assigned thereto in Section 6(d).
(t) "Material Event" has the meaning assigned thereto in Section
3(a)(iv).
(u) "Majority Holders" shall mean, on any date, holders of the
majority of the Shares constituting Registrable Securities; for the
purposes of this definition, Holders of Notes constituting Registrable
Securities shall be deemed to be the Holders of the number of Shares into
which such Notes are or would be convertible as of such date.
(v) "NASD" shall mean the National Association of Securities Dealers,
Inc.
(w) "NASD Rules" shall mean the Conduct Rules and the By-Laws of the
NASD.
(x) "Notes" means the 4.50% Convertible Senior Notes Due 2023, to be
issued under the Indenture and sold by the Company to the Initial
Purchasers, and securities (other than the Shares) of the Company issued in
exchange therefor or in lieu thereof pursuant to the Indenture.
(y) "Notice and Questionnaire" means a written notice delivered to the
Company containing substantially the information called for by the Form of
Selling Securityholder Notice and Questionnaire attached as Annex A to the
Offering Memorandum.
(z) "Notice Holder" means, on any date, any Holder that has delivered
a Notice and Questionnaire to the Company on or prior to such date.
(aa) "Offering Memorandum" means the Offering Memorandum dated March
10, 2003 relating to the offer and sale of the Securities.
(bb) "Person" means a corporation, association, partnership,
organization, business, individual, government or political subdivision
thereof or governmental agency.
(cc) "Prospectus" means the prospectus included in any Shelf
Registration Statement, as amended or supplemented by any amendment or
prospectus supplement, including post-effective amendments, and all
materials incorporated by reference or explicitly deemed to be incorporated
by reference in such Prospectus.
(dd) "Purchase Agreement" has the meaning specified in the first
paragraph of this Agreement.
(ee) "Registrable Securities" means the Securities; provided, however,
that such Securities shall cease to be Registrable Securities when (i) in
the circumstances contemplated by Section 2(a), a registration statement
registering such Securities under the Securities Act has been declared or
becomes effective and such Securities have been sold or otherwise
transferred by the Holder thereof pursuant to such effective registration
statement; (ii) such Securities are sold pursuant to Rule 144 under
circumstances in which any legend borne by such Securities relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed or such Securities are eligible to be sold pursuant
to Rule 144(k) or any successor provision; or (iii) such Securities shall
cease to be outstanding (including, in the case of the Notes, upon
conversion into Shares).
(ff) "Registration Default" has the meaning assigned thereto in
Section 2(d).
(gg) "Registration Expenses" has the meaning assigned thereto in
Section 5.
(hh) "Rule 144," "Rule 405" and "Rule 415" means, in each case, such
rule as promulgated under the Securities Act.
(ii) "Securities" means, collectively, the Notes and the Shares.
(jj) "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
(kk) "Shares" means the shares of common stock of the Company, par
value $0.10 per share, into which the Notes are convertible or that have
been issued upon any conversion from Notes into common stock of the
Company.
(ll) "Shelf Registration Statement" means the shelf registration
statement referred to in Section 2(a), as amended or supplemented by any
amendment or supplement, including post-effective amendments, and all
materials incorporated by reference or explicitly deemed to be incorporated
by reference in such Shelf Registration Statement.
(mm) "Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
(nn) "Trustee" shall have the meaning assigned such term in the
Indenture.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
2. Registration Under the Securities Act.
(a) The Company agrees to file under the Securities Act as promptly as
practicable but in any event within 120 days after the Closing Date a shelf
registration statement providing for the registration of, and the sale on a
continuous or delayed basis by the Holders of, all of the Registrable
Securities, pursuant to Rule 415 or any similar rule that may be adopted by
the Commission. The Company agrees to use its reasonable efforts to cause
the Shelf Registration Statement to become or be declared effective within
180 days after the Closing Date and to keep such Shelf Registration
Statement continuously effective until the earlier of (i) the second
anniversary of the Closing Date or (ii) such time as there are no longer
any Registrable Securities outstanding (the "Effective Period"). None of
the Company's securityholders (other than Holders of Registrable
Securities) shall have the right to include any of the Company's securities
in the Shelf Registration Statement.
(b) The Company further agrees that it shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement or such amendment or supplement, (i) to comply in all material
respects with the applicable requirements of the Securities Act; and (ii)
not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading, and the Company
agrees to furnish to the Holders of the Registrable Securities copies of
any supplement or amendment prior to its being used or promptly following
its filing with the Commission. If the Shelf Registration Statement, as
amended or supplemented from time to time, ceases to be effective for any
reason at any time during the Effective Period (other than because all
Registrable Securities registered thereunder shall have been sold pursuant
thereto or shall have otherwise ceased to be Registrable Securities), the
Company shall use its reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof.
(c) Each Holder of Registrable Securities agrees that if such Holder
wishes to sell Registrable Securities pursuant to the Shelf Registration
Statement and related Prospectus, it will do so only in accordance with
this Section 2(c) and Section 3(b). Each Holder of Registrable Securities
wishing to sell Registrable Securities pursuant to the Shelf Registration
Statement and related Prospectus agrees to deliver a Notice and
Questionnaire to the Company at least three (3) Business Days prior to any
intended distribution of Registrable Securities under the Shelf
Registration Statement. From and after the date the Shelf Registration
Statement is declared effective, the Company shall, as promptly as is
practicable after the date a Notice and Questionnaire is delivered, and in
any event within five (5) Business Days after such date, (i) if required by
applicable law, file with the Commission a post-effective amendment to the
Shelf Registration Statement or prepare and, if required by applicable law,
file a supplement to the related Prospectus or a supplement or amendment to
any document incorporated therein by reference or file any other required
document so that the Holder delivering such Notice and Questionnaire is
named as a selling security holder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to deliver
such Prospectus to purchasers of the Registrable Securities in accordance
with applicable law and, if the Company shall file a post-effective
amendment to the Shelf Registration Statement, use its reasonable efforts
to cause such post-effective amendment to be declared effective under the
Securities Act as promptly as is practicable; (ii) provide such Holder
copies of any documents filed pursuant to Section 2(c)(i); and (iii) notify
such Holder as promptly as practicable after the effectiveness under the
Securities Act of any post-effective amendment filed pursuant to Section
2(c)(i); provided that if such Notice and Questionnaire is delivered during
a Deferral Period, the Company shall so inform the Holder delivering such
Notice and Questionnaire and shall take the actions set forth in clauses
(i), (ii) and (iii) above upon expiration of the Deferral Period in
accordance with Section 3(b). Notwithstanding anything contained herein to
the contrary, the Company shall be under no obligation to name any Holder
that is not a Notice Holder as a selling securityholder in any Shelf
Registration Statement or related Prospectus; provided, however, that any
Holder that becomes a Notice Holder pursuant to the provisions of this
Section 2(c) (whether or not such Holder was a Notice Holder at the time
the Shelf Registration Statement was declared effective) shall be named as
a selling securityholder in the Shelf Registration Statement or related
Prospectus in accordance with the requirements of this Section 2(c).
(d) If any of the following events (any such event a "Registration
Default") shall occur, then liquidated damages (the "Additional Amounts")
shall become payable to Holders in respect of the Securities as follows:
(i) if the Shelf Registration Statement is not filed with the
Commission within 120 days following the Closing Date, then commencing
on the 121st day after the Closing Date, Additional Amounts shall
accrue on the principal amount of the outstanding Notes that are
Registrable Securities and on the Applicable Conversion Price of any
outstanding Shares that are Registrable Securities at a rate of 0.25%
per annum for the first 90 days following such 121st day and at a rate
of 0.5% per annum thereafter; or
(ii) if the Shelf Registration Statement is not declared
effective by the Commission within 180 days following the Closing
Date, then commencing on the 181st day after the Closing Date,
Additional Amounts shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities and on the
Applicable Conversion Price of any outstanding Shares that are
Registrable Securities that are Registrable Securities at a rate of
0.25% per annum for the first 90 days following such 181st day and at
a rate of 0.5% per annum thereafter; or
(iii) if the Company has failed to perform its obligations set
forth in Section 2(c) hereof within the time periods required therein,
then commencing on the first day after the date by which the Company
was required to perform such obligations, Additional Amounts shall
accrue on the principal amount of the outstanding Notes that are
Registrable Securities and on the Applicable Conversion Price of any
outstanding Shares that are Registrable Securities that are
Registrable Securities at a rate of 0.25% per annum for the first 90
days and at a rate of 0.5% per annum thereafter;
(iv) if the Shelf Registration Statement has been declared
effective but such Shelf Registration Statement ceases to be effective
at any time during the Effective Period (other than pursuant to
Section 3(b) hereof), then commencing on the day such Shelf
Registration Statement ceases to be effective, Additional Amounts
shall accrue on the principal amount of the outstanding Notes that are
Registrable Securities and on the Applicable Conversion Price of any
outstanding Shares that are Registrable Securities that are
Registrable Securities at a rate of 0.25% per annum for the first 90
days following such date on which the Shelf Registration Statement
ceases to be effective and at a rate of 0.5% per annum thereafter; or
(v) if the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period
pursuant to Section 3(b) hereof, then commencing on the day the
aggregate duration of Deferral Periods in any period exceeds the
number of days permitted in respect of such period (and again on the
first day of any subsequent Deferral Period during such period),
Additional Amounts shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities and on the
Applicable Conversion Price of any outstanding Shares that are
Registrable Securities that are Registrable Securities at a rate of
0.25% per annum for the first 90 days and at a rate of 0.5% per annum
thereafter;
provided, however, that the Additional Amounts rate on the Securities shall
not exceed in the aggregate 0.5% per annum and shall not be payable under
more than one clause above for any given period of time, except that if
Additional Amounts would be payable under more than one clause above, but
at a rate of 0.25% per annum under one clause and at a rate of 0.5% per
annum under the other, then the Additional Amounts rate shall be the higher
rate of 0.5% per annum; provided further, however, that (1) upon the filing
of the Shelf Registration Statement (in the case of clause (i) above), (2)
upon the effectiveness of the Shelf Registration Statement (in the case of
clause (ii) above), (3) upon the Company's performing its obligations set
forth in Section 2(c) hereof within the time periods required therein (in
the case of clause (iii) above), (4) upon the effectiveness of the Shelf
Registration Statement which had ceased to remain effective (in the case of
clause (iv) above), (5) upon the termination of the Deferral Period that
caused the limit on the aggregate duration of Deferral Periods in a period
set forth in Section 3(b) to be exceeded (in the case of clause (v) above)
or (6) upon the termination of certain transfer restrictions on the
Securities as a result of the application of Rule 144(k) or any successor
provision, Additional Amounts on the Securities as a result of such clause,
as the case may be, shall cease to accrue.
Additional Amounts on the Securities, if any, will be payable in cash
on March 15 and September 15 of each year (the "Additional Amounts Payment
Date") to holders of record of outstanding Registrable Securities on each
preceding March 1 and September 1. The date of determination of the
Applicable Conversion Price of any outstanding Shares that are Registrable
Securities shall be the Business Day immediately preceding the Additional
Amounts Payment Date; provided that in the case of an event of the type
described in clause (iii) above, such Additional Amounts shall be paid only
to the Holders that have delivered Notice and Questionnaires that caused
the Company to incur the obligations set forth in Section 2(c), the
non-performance of which is the basis of such Registration Default;
provided further that any Additional Amounts accrued with respect to any
Notes or portion thereof called for redemption on a redemption date or
converted into Shares on a conversion date prior to the Registration
Default shall, in any such event, be paid instead to the Holder who
submitted such Notes or portion thereof for redemption or conversion on the
applicable redemption date or conversion date, as the case may be, on such
date (or promptly following the conversion date, in the case of
conversion). Following the cure of all Registration Defaults requiring the
payment of Additional Amounts by the Company to the Holders of Registrable
Securities pursuant to this Section, the accrual of Additional Amounts will
cease (without in any way limiting the effect of any subsequent
Registration Default requiring the payment of Additional Amounts by the
Company).
The Trustee shall be entitled, on behalf of Holders of Securities, to
seek any available remedy for the enforcement of this Agreement, including
for the payment of any Additional Amounts. Notwithstanding the foregoing,
the parties agree that the sole monetary damages payable for a violation of
the terms of this Agreement with respect to which liquidated damages are
expressly provided shall be as set forth in this Section 2(d). Nothing
shall preclude a Notice Holder or Holder of Registrable Securities from
pursuing or obtaining specific performance or other equitable relief with
respect to this Agreement.
3. Registration Procedures.
The following provisions shall apply to the Shelf Registration Statement
filed pursuant to Section 2:
(a) The Company shall:
(i) prepare and file with the Commission a registration statement
with respect to the shelf registration on any form which may be
utilized by the Company and which shall permit the disposition of the
Registrable Securities in accordance with the intended method or
methods thereof, as specified in writing by the Holders of the
Registrable Securities, and use its reasonable efforts to cause such
registration statement to become effective in accordance with Section
2(a) above;
(ii) before filing any Shelf Registration Statement or Prospectus
or any amendments or supplements thereto with the Commission, furnish
to the Initial Purchasers copies of all such documents proposed to be
filed and use reasonable efforts to reflect in each such document when
so filed with the Commission such comments as the Initial Purchasers
reasonably shall propose within three (3) Business Days of the
delivery of such copies to the Initial Purchasers;
(iii) use its reasonable efforts to prepare and file with the
Commission such amendments and post-effective amendments to the Shelf
Registration Statement and file with the Commission any other required
document as may be necessary to keep such Shelf Registration Statement
continuously effective until the expiration of the Effective Period;
cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all Securities
covered by such Shelf Registration Statement during the Effective
Period in accordance with the intended methods of disposition by the
sellers thereof set forth in such Shelf Registration Statement as so
amended or such Prospectus as so supplemented;
(iv) promptly notify the Notice Holders of Registrable Securities
(A) when such Shelf Registration Statement or the Prospectus included
therein or any amendment or supplement to the Prospectus or
post-effective amendment has been filed with the Commission, and, with
respect to such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any request,
following the effectiveness of the Shelf Registration Statement, by
the Commission or any other Federal or state governmental authority
for amendments or supplements to the Shelf Registration Statement or
related Prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of
such Shelf Registration Statement or the initiation or written threat
of any proceedings for that purpose, (D) of the receipt by the Company
of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or written threat of any proceeding for
such purpose, (E) of the occurrence of (but not the nature of or
details concerning) any event or the existence of any fact (a
"Material Event") as a result of which any Shelf Registration
Statement shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or any
Prospectus shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (provided,
however, that no notice by the Company shall be required pursuant to
this clause (E) in the event that the Company either promptly files a
Prospectus supplement to update the Prospectus or a Form 8-K or other
appropriate Exchange Act report that is incorporated by reference into
the Shelf Registration Statement, which, in either case, contains the
requisite information with respect to such Material Event that results
in such Shelf Registration Statement no longer containing any untrue
statement of material fact or omitting to state a material fact
necessary to make the statements contained therein not misleading),
(F) of the determination by the Company that a post-effective
amendment to the Shelf Registration Statement will be filed with the
Commission, which notice may, at the discretion of the Company (or as
required pursuant to Section 3(b)), state that it constitutes a
Deferral Notice, in which event the provisions of Section 3(b) shall
apply or (G) at any time when a Prospectus is required to be delivered
under the Securities Act, that the Shelf Registration Statement,
Prospectus, Prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder;
(v) prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, use reasonable efforts
to register or qualify or cooperate with the Notice Holders in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for
offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Notice Holder reasonably
requests in writing (which request may be included in the Notice and
Questionnaire); prior to any public offering of the Registrable
Securities pursuant to the Shelf Registration Statement, use its
reasonable efforts to keep each such registration or qualification (or
exemption therefrom) effective during the Effective Period in
connection with such Notice Holder's offer and sale of Registrable
Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of such
Registrable Securities in the manner set forth in the Shelf
Registration Statement and the related Prospectus; provided, that the
Company will not be required to (i) qualify as a foreign corporation
or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Agreement or (ii) take
any action that would subject it to general service of process in
suits or to taxation in any such jurisdiction where it is not then so
subject;
(vi) use its reasonable best efforts to prevent the issuance of,
and if issued, to obtain the withdrawal of any order suspending the
effectiveness of the Shelf Registration Statement or any
post-effective amendment thereto, and to lift any suspension of the
qualification of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in each case
at the earliest practicable date;
(vii) upon reasonable notice, for a reasonable period prior to
the filing of the Shelf Registration Statement, and throughout the
Effective Period, make available at reasonable times at the Company's
principal place of business or such other reasonable place for
inspection by a representative appointed by the Notice Holders in
connection with an underwritten offering (or any underwriter,
placement agent or counsel acting on their behalf), who shall certify
to the Company that they have a current intention to sell their
Registrable Securities pursuant to the Shelf Registration Statement,
such financial and other information and books and records of the
Company, and cause the officers, directors, employees and independent
certified public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment of the
counsel to such Notice Holders, to conduct a reasonable "due
diligence" investigation; provided, however, that each such
representative appointed by the Notice Holders in connection with an
underwritten offering shall be required to maintain in confidence and
not to disclose to any other Person any information or records
reasonably designated by the Company in writing as being confidential,
until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in the Shelf Registration
Statement or otherwise) or (B) such Person shall be required so to
disclose such information pursuant to a subpoena or order of any court
or other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only after such
Person shall have given the Company prompt prior written notice of
such requirement and the opportunity to contest the same or seek an
appropriate protective order);
(viii) if reasonably requested by the Initial Purchasers or any
Notice Holder, promptly incorporate in a Prospectus supplement or
post-effective amendment to the Shelf Registration Statement such
information as the Initial Purchasers or such Notice Holder shall, on
the basis of a written opinion of nationally-recognized counsel
experienced in such matters, determine to be required to be included
therein by applicable law and make any required filings of such
Prospectus supplement or such post-effective amendment; provided, that
the Company shall not be required to take any actions under this
Section 3(a)(viii) that are not, in the reasonable opinion of counsel
for the Company, in compliance with applicable law;
(ix) promptly furnish to each Notice Holder and the Initial
Purchasers, upon their request and without charge, at least one (1)
conformed copy of the Shelf Registration Statement and any amendments
thereto, including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by
reference and all exhibits (unless requested in writing to the Company
by such Notice Holder or the Initial Purchasers, as the case may be);
and
(x) during the Effective Period, deliver to each Notice Holder in
connection with any sale of Registrable Securities pursuant to the
Shelf Registration Statement, without charge, as many copies of the
Prospectus relating to such Registrable Securities (including each
preliminary prospectus) and any amendment or supplement thereto as
such Notice Holder may reasonably request; and the Company hereby
consents (except during such periods that a Deferral Notice is
outstanding and has not been revoked) to the use of such Prospectus or
each amendment or supplement thereto by each Notice Holder in
connection with any offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto in
the manner set forth therein.
(b) Upon (A) the issuance by the Commission of a stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section
8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or the
existence of any Material Event as a result of which the Shelf Registration
Statement shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, or any Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or (C) the occurrence or existence of any corporate development
that, in the discretion of the Company, makes it appropriate to suspend the
availability of the Shelf Registration Statement and the related
Prospectus, the Company will (i) in the case of clause (B) above, subject
to the third sentence of this provision, as promptly as practicable prepare
and file a post-effective amendment to such Shelf Registration Statement or
a supplement to the related Prospectus or any document incorporated therein
by reference or file any other required document that would be incorporated
by reference into such Shelf Registration Statement and Prospectus so that
such Shelf Registration Statement does not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
such Prospectus does not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, and, in the
case of a post-effective amendment to the Shelf Registration Statement,
subject to the third sentence of this provision, use reasonable efforts to
cause it to be declared effective as promptly as is practicable, and (ii)
give notice to the Notice Holders that the availability of the Shelf
Registration Statement is suspended (a "Deferral Notice"). Upon receipt of
any Deferral Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Shelf Registration Statement until such Notice
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in writing by the
Company that the Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. The Company will use its
reasonable best efforts to ensure that the use of the Prospectus may be
resumed (x) in the case of clause (A) above, as promptly as practicable,
(y) in the case of clause (B) above, as soon as, in the sole judgment of
the Company, public disclosure of such Material Event would not be
prejudicial to or contrary to the interests of the Company or, if necessary
to avoid unreasonable burden or expense, as soon as practicable thereafter
and (z) in the case of clause (C) above, as soon as, in the discretion of
the Company, such suspension is no longer appropriate; provided that the
period during which the availability of the Shelf Registration Statement
and any Prospectus is suspended (the "Deferral Period"), without the
Company incurring any obligation to pay liquidated damages pursuant to
Section 2(d), shall not exceed one hundred and twenty (120) days in the
aggregate in any twelve (12) month period.
(c) Each Holder of Registrable Securities agrees that upon receipt of
any Deferral Notice from the Company, such Holder shall forthwith
discontinue (and cause any placement or sales agent or underwriters acting
on their behalf to discontinue) the disposition of Registrable Securities
pursuant to the registration statement applicable to such Registrable
Securities until such Holder (i) shall have received copies of such amended
or supplemented Prospectus and, if so directed by the Company, such Holder
shall deliver to the Company (at the Company's expense) all copies, other
than permanent file copies, then in such Holder's possession of the
Prospectus covering such Registrable Securities at the time of receipt of
such notice or (ii) shall have received notice from the Company that the
disposition of Registrable Securities pursuant to the Shelf Registration
may continue.
(d) The Company may require each Holder of Registrable Securities as
to which any registration pursuant to Section 2(a) is being effected to
furnish to the Company such information regarding such Holder and such
Holder's intended method of distribution of such Registrable Securities as
the Company may from time to time reasonably request in writing, but only
to the extent that such information is required in order to comply with the
Securities Act. Each such Holder agrees to notify the Company as promptly
as practicable of any inaccuracy or change in information previously
furnished by such Holder to the Company or of the occurrence of any event
in either case as a result of which any Prospectus relating to such
registration contains or would contain an untrue statement of a material
fact regarding such Holder or such Holder's intended method of disposition
of such Registrable Securities or omits to state any material fact
regarding such Holder or such Holder's intended method of disposition of
such Registrable Securities required to be stated therein or necessary to
make the statements therein not misleading, and promptly to furnish to the
Company any additional information required to correct and update any
previously furnished information or required so that such Prospectus shall
not contain, with respect to such Holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading.
(e) The Company shall comply with all applicable rules and regulations
of the Commission and make generally available to its securityholders
earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month period
if such period is a fiscal year) commencing on the first day of the first
fiscal quarter of the Company commencing after the effective date of the
Shelf Registration Statement, which statements shall cover said 12-month
periods.
(f) The Company shall provide a CUSIP number for all Registrable
Securities covered by the Shelf Registration Statement not later than the
effective date of such Shelf Registration Statement and provide the Trustee
for the Notes and the transfer agent for the Shares with printed
certificates for the Registrable Securities that are in a form eligible for
deposit with The Depository Trust Company.
(g) The Company shall use its reasonable efforts to provide such
information as is required for any filings required to be made with the
National Association of Securities Dealers, Inc.
(h) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144) to, resell any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under
the Securities Act.
(i) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
(j) The Company shall enter into such customary agreements and take
all such other necessary and lawful actions in connection therewith
(including those requested by the Majority Holders of the Registrable
Securities being sold) in order to expedite or facilitate disposition of
such Registrable Securities.
4. Holder's Obligations.
Each Holder agrees, by acquisition of the Registrable Securities, that no
Holder of Registrable Securities shall be entitled to sell any of such
Registrable Securities pursuant to the Shelf Registration Statement or to
receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section 2(c)
hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as may be
required to be disclosed in the Shelf Registration Statement under applicable
law or pursuant to Commission comments. Each Holder further agrees not to sell
any Registrable Securities pursuant to the Shelf Registration Statement without
delivering, or causing to be delivered, a Prospectus to the purchaser thereof
and, following termination of the Effective Period, to notify the Company,
within 10 business days of a request by the Company, of the amount of
Registrable Securities sold pursuant to the Shelf Registration Statement and, in
the absence of a response, the Company may assume that all of the Holder's
Registrable Securities were so sold.
5. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly upon
request being made therefor all expenses incident to the Company's performance
of or compliance with this Agreement, including (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities for offering and sale under
the State securities and Blue Sky laws referred to in Section 3(a)(v) hereof,
including reasonable fees and disbursements of one counsel for the placement
agent or underwriters, if any, in connection with such qualifications, (c) all
expenses relating to the preparation, printing, distribution and reproduction of
the Shelf Registration Statement, the related Prospectus, each amendment or
supplement to each of the foregoing, the certificates representing the
Securities and all other documents relating hereto, (d) fees and expenses of the
Trustee under the Indenture, any escrow agent or custodian, and of the registrar
and transfer agent for the Shares, (e) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance) and (f) reasonable fees, disbursements and
expenses of one counsel for the Holders of Registrable Securities retained in
connection with the Shelf Registration Statement, as selected by the Company
(unless reasonably objected to by the Majority Holders of the Registrable
Securities being registered, in which case the Majority Holders shall select
such counsel for the Holders), and fees, expenses and disbursements of any other
Persons, including special experts, retained by the Company in connection with
such registration (collectively, the "Registration Expenses"). To the extent
that any Registration Expenses are incurred, assumed or paid by any Holder of
Registrable Securities or any placement agent therefor or underwriter thereof,
the Company shall reimburse such Person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a documented
request therefor. Notwithstanding the foregoing, the Holders of the Registrable
Securities being registered shall pay all placement agent fees and commissions
and underwriting discounts and commissions attributable to the sale of such
Registrable Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such Holders (severally or jointly), other than
the counsel and experts specifically referred to above.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder of
Securities covered by any Shelf Registration Statement, the directors,
officers, employees, Affiliates and agents of each such Holder and each
Person who controls any such Holder within the meaning of either the
Securities Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or other federal
or state statutory law or regulation, at common law or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Shelf Registration
Statement as originally filed or in any amendment thereof, or in any
preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading (in the
case of any preliminary Prospectus or the Prospectus, in the light of the
circumstances under which they were made), and agrees to reimburse each
such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information relating to the party claiming indemnification furnished to the
Company by or on behalf of the party claiming indemnification specifically
for inclusion therein. This indemnity agreement shall be in addition to any
liability that the Company may otherwise have.
The Company also agrees to indemnify as provided in this Section 6(a)
or contribute as provided in Section 6(d) hereof to Losses of each
underwriter, if any, of Securities registered under the Shelf Registration
Statement, its directors, officers, employees, Affiliates or agents and
each Person who controls such underwriter on substantially the same basis
as that of the indemnification of the selling Holders provided in this
paragraph (a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement.
(b) Each Holder of securities covered by the Shelf Registration
Statement severally and not jointly agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Shelf Registration Statement and each Person who controls the Company
within the meaning of either the Securities Act or the Exchange Act, to the
same extent as the foregoing indemnity from the Company to each such
Holder, but only with reference to written information relating to such
Holder furnished to the Company by or on behalf of such Holder specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such
Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 or notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel (including local
counsel) of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate
counsel, other than local counsel if not appointed by the indemnifying
party, retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be satisfactory to
-------- ------- the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel (including local counsel) to represent
the indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties that are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent
the indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall authorize
the indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party
shall have a joint and several obligation to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending such
loss, claim, liability, damage or action) (collectively "Losses") to which
such indemnified party may be subject in such proportion as is appropriate
to reflect the relative benefits received by such indemnifying party, on
the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Shelf Registration Statement which resulted in
such Losses; provided, however, that in no case shall any subsequent Holder
of any Securities be responsible, in the aggregate, for any amount in
excess of the purchase discount or commission applicable to such Security,
as set forth in the Offering Memorandum, nor shall any underwriter be
responsible for any amount in excess of the underwriting discount or
commission applicable to the securities purchased by such underwriter under
the Shelf Registration Statement which resulted in such Losses. If the
allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party,
on the one hand, and such indemnified party, on the other hand, in
connection with the statements or omissions which resulted in such Losses
as well as any other relevant equitable considerations. Benefits received
by the Company shall be deemed to be equal to the sum of (x) the total net
proceeds from the Initial Placement (before deducting expenses) as set
forth in the Offering Memorandum and (y) the total amount of Additional
Amounts which the Company was not required to pay as a result of
registering the securities covered by the Shelf Registration Statement
which resulted in such Losses. Benefits received by the Initial Purchasers
shall be deemed to be equal to the total purchase discounts and commissions
as set forth in the Offering Memorandum, and benefits received by any other
Holders shall be deemed to be equal to the value of receiving Securities
registered under the Securities Act. Benefits received by any underwriter
shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a
part of the Shelf Registration Statement which resulted in such Losses.
Relative fault shall be determined by reference to, among other things,
whether any untrue or any alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information provided by the indemnifying party, on the one hand, or by the
indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The parties agree that it would
not be just and equitable if contribution were determined by pro rata
allocation (even if the Holders were treated as one entity for such
purpose) or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation. For purposes of this Section 6, each
Person who controls a Holder within the meaning of either the Securities
Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and
each Person who controls the Company within the meaning of either the
Securities Act or the Exchange Act, each officer of the Company who shall
have signed the Shelf Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the indemnified Persons referred to in this
Section 6, and shall survive the sale by a Holder of securities covered by
the Shelf Registration Statement.
7. Rule 144.
The Company covenants to the Holders of Registrable Securities that the
Company shall use its reasonable efforts to timely file the reports required to
be filed by it under the Exchange Act or the Securities Act (including the
reports under Section 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144 adopted by the Commission under the Securities
Act) and the rules and regulations adopted by the Commission thereunder, all to
the extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitations
of the exemption provided by Rule 144 under the Securities Act, as such Rule may
be amended from time to time, or any similar or successor rule or regulation
hereafter adopted by the Commission. Upon the request of any Holder of
Registrable Securities in connection with that Holder's sale pursuant to Rule
144, the Company shall deliver to such Holder a written statement as to whether
it has complied with such requirements.
8. Inconsistent Agreements.
The Company has not entered into, and agrees not to enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or that otherwise conflict with the provisions
hereof.
9. Miscellaneous.
(a) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein (including the Indenture) or delivered pursuant
hereto which form a part hereof contain the entire understanding of the
parties and supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Agreement may be amended
and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company
and the Majority Holders of the Registrable Securities at the time
outstanding.
(b) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows:
(i) If to the Company, to it at 1271 Avenue of the Americas, New
York, New York 10020, Attention: General Counsel;
(ii) If to the Initial Purchasers, to the address set forth in
the Purchase Agreement; and
(iii) If to a Holder, to the address of such Holder set forth in
the security register, the Notice and Questionnaire or other records
of the Company,
or to such other address as the Company, the Initial Purchasers or any such
Holder may have furnished to the other parties in writing in accordance
herewith, except that notices of change of address shall be effective only
upon receipt.
(c) Remedies. Nothing shall preclude a Notice Holder or Holder of
Registrable Securities from pursuing or obtaining specific performance or
other equitable relief with respect to this Agreement.
(d) Successors. This Agreement shall be binding upon, shall inure to
the benefit of and shall be enforceable by the respective successors and
assigns of the parties hereto. In the event that any transferee of any
Holder of Registrable Securities shall acquire Registrable Securities, in
any manner, whether by gift, bequest, purchase, operation of law or
otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a party hereto for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Agreement, and
by taking and holding such Registrable Securities such transferee shall be
entitled to receive the benefits of, and be conclusively deemed to have
agreed to be bound by and to perform, all of the applicable terms and
provisions of this Agreement.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made
pursuant hereto shall remain in full force and effect regardless of any
investigation (or statement as to the results thereof) made by or on behalf
of any Holder of Registrable Securities, any director, officer or partner
of such Holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and
shall survive delivery of and payment for the Registrable Securities
pursuant to the Purchase Agreement and the transfer and registration of
Registrable Securities by such Holder.
(f) Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK.
(g) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the
meaning or interpretation of this Agreement.
(h) Counterparts. This Agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
(i) Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(j) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of Securities is required
hereunder, Securities held by the Company or its Affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to
be Affiliates solely by reason of their holdings of such Securities) shall
not be counted in determining whether such consent or approval was given by
the Holders of such required percentage.
Agreed to and accepted as of the date referred to above.
Very truly yours,
The Interpublic Group of Companies, Inc.
By: /s/ Nicholas J. Camera
--------------------------------------------
Name: Nicholas J. Camera
Title: Senior Vice President, General Counsel
and Secretary
Salomon Smith Barney Inc.
By: /s/ Brett Dunk
-------------------------------
Name: Brett Dunk
Title: Vice President
J.P. Morgan Securities Inc.
By: /s/ J. Andrew Sanford
-------------------------------
Name: J. Andrew Sanford
Title: Managing Director
UBS WARBURG LLC
By: /s/ P. Whitridge Williams
-------------------------------
Name: P. Whitridge Williams
Title: Executive Director
And
By: /s/ Rezwan Mirza
-------------------------------
Name: Rezwan Mirza
Title: Director