EXHIBIT 10.2
THIRD AMENDMENT TO THE
GREY ADVERTISING INC.
DEFERRED COMPENSATION TRUST AGREEMENT
DATED AS OF MARCH 22, 1995,
BETWEEN GREY ADVERTISING INC.
AND UNITED STATES TRUST COMPANY OF NEW YORK
Dated as of: March 2, 2005
SIMPSON THACHER & BARTLETT LLP
WHEREAS, a trust (the "Trust") was created under Agreement dated as of
March 22, 1995 (the "Trust Agreement"), between Grey Advertising Inc., now known
as Grey Global Group Inc. (the "Company"), and United States Trust Company of
New York (the "Trustee") for the benefit of Edward H. Meyer (the "Executive");
and
WHEREAS, Section 12 of the Trust Agreement provides that the Trust
Agreement may be amended by a written instrument executed by the Company and the
Trustee; provided that no amendment that alters or impairs the rights of the
Executive thereunder may be made without the prior written consent of the
Executive; and
WHEREAS, the Company and the Trustee, with the consent of the
Executive, amended the Trust Agreement by the First Amendment to the Trust
Agreement dated as of February 26, 1996; and
WHEREAS, the Company and the Trustee, with the consent of the
Executive, amended the Trust Agreement by the Second Amendment to the Trust
Agreement dated as of April 30, 1998; and
WHEREAS, Sections 10(b) and 11(a) of the Trust Agreement permit the
Company, with the consent of the Executive, to remove the Trustee and appoint a
successor corporate Trustee, which appointment shall be effective when accepted
in writing by the successor Trustee who shall have all of the rights and powers
of the former Trustee, including ownership rights in the Trust assets; and
WHEREAS, the Company, with the consent of the Executive, removed the
Trustee and appointed HSBC Bank USA as successor Trustee (hereinafter referred
to as the "Trustee"), and HSBC Bank USA accepted appointment as Trustee by
letter dated May 23, 2003; and
WHEREAS, the Company and the Trustee wish to amend the Trust Agreement;
and
WHEREAS, the Executive consents to the amendment of the Trust Agreement
as hereinafter provided:
NOW, THEREFORE, the Company and the Trustee hereby exercise their power
under Section 12 of the Trust Agreement and amend the Trust Agreement as
follows:
FIRST: The Company and the Trustee hereby delete the last sentence of
Section 6 of the Trust Agreement in its entirety, and substitute in lieu thereof
the following new sentences:
"Except as otherwise provided in the Pension Agreement, the
Company shall be solely responsible for the payment of all applicable
income and other taxes imposed on the Trust with respect to interest
and other earnings on amounts held in the Trust, whether held in the
Trust Account or Sub-Account, until the effective time of the merger
(the "Merger") of the Company, with and into Abbey Merger Corporation,
a Delaware corporation (the "Merger Sub") that is a wholly-owned
subsidiary of WPP Group plc, an English public limited company ("WPP"),
pursuant to an Agreement and Plan of Merger entered into among the
Company, WPP, and Merger Sub as of September 11, 2004, resulting in
Merger Sub being the surviving corporation of the Merger and a
wholly-owned subsidiary of WPP (the "Effective Time"). Notwithstanding
any provision of this Trust Agreement to the contrary, upon and after
the Effective Time, the Executive shall be solely responsible for the
payment of all applicable income and other taxes imposed on the Trust
with respect to interest and other earnings on amounts held in the
Trust, whether held in the Trust Account or Sub-Account, as further
provided in Section 12(c) hereof."
SECOND: The Company and the Trustee hereby delete paragraph (c) of
Section 12 the Trust Agreement in its entirety, and substitute in lieu thereof
the following new paragraph (c):
"Notwithstanding any provision of this Trust Agreement to the
contrary, including, without limitation, Section 6 and Section 12(b)
hereof, the Trust shall terminate at the Effective Time. At the
Effective Time, the Trustee shall pay to the Executive, in kind, the
assets in the Trust. The assets in the Trust shall be paid to the
Executive as soon as practicable; provided that, as of the Effective
Time and until title to all assets have been transferred to the
Executive, the Executive shall be deemed the owner of all assets in the
Trust for all purposes, including, but not limited to, income tax
purposes, and shall be solely responsible for the payment of all
applicable income and other taxes imposed on such assets. If, for any
reason, the Company or Merger Sub is treated as the owner of any Trust
assets for any purpose after the Effective Time, the Executive agrees
to fully indemnify and hold the Trust, the Company, Merger Sub, WPP,
and the Trustee harmless against all taxes and obligations related
thereto and against all actions with respect to Trust assets and
obligations related thereto."
THIRD: In each and every respect, except as herein modified and except
as it is inconsistent with this amendment, the Company and the Trustee hereby
restate and confirm the provisions of the Trust Agreement.
FOURTH: This amendment may be executed in counterparts.
Dated as of: March 2, 2005
GREY GLOBAL GROUP INC., Company
By: /s/ Steven G. Felsher
-----------------------------
Name: Steven G. Felsher
Title: Vice Chairman,
Chief Financial Officer,
Secretary and Treasurer
Witnesses: [Intentionally Omitted]
-
HSBC BANK USA, Trustee
By: /s/ Thomas Gahan
-----------------------------
Name: Thomas Gahan
Title: Vice President
Witnesses: [Intentionally Omitted]
Consented and Agreed to as of
the date first written above:
EDWARD H. MEYER, Executive
/s/ Edward H. Meyer
---------------------------------
Witnessees: [Intentionally Omitted]