EXHIBIT 2
---------
SUPPORT AGREEMENT
This Support Agreement (this "Agreement"), dated as of February 22, 2005,
is entered into by and among WPP Group plc, a corporation organized under the
laws of England and Wales ("WPP"), Grey Global Group Inc., a Delaware
corporation ("Grey"), and the person listed on Annex B (the "Consenting
Holder"). For purposes of this Agreement, WPP, Grey and the Consenting Holder
shall individually be referred to as a "Party" and, collectively, the "Parties".
R E C I T A L S
WHEREAS, the Consenting Holder is a beneficial owner of the 5% Contingent
Convertible Subordinated Debentures due 2033 (the "Debentures") of Grey issued
pursuant to an Indenture, dated as of October 28, 2003 (the "Indenture"),
between Grey and the American Stock Transfer & Trust Company as trustee (the
"Trustee"); capitalized terms used but not defined herein shall have the
respective meanings ascribed to these terms in the Indenture;
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of September
11, 2004, by and among WPP, Abbey Merger Corporation ("Abbey") and Grey (as
amended, the "Merger Agreement"), Grey will be merged with and into Abbey (the
"Merger"), with Abbey being the surviving corporation in the Merger and
remaining as a wholly owned subsidiary of WPP, and pursuant to the Merger, each
outstanding shares of common stock, par value $0.01 per share, of Grey and each
share of Limited Duration Class B Common Stock, par value $0.01 per share, of
Grey will be converted into the right to receive merger consideration in the
form of cash or WPP shares in accordance with the terms of the Merger Agreement;
WHEREAS, pursuant to Section 6.16 of the Merger Agreement, Grey is
required, to the extent requested by WPP, to use reasonable best efforts to
cooperate with WPP to effect a consent solicitation with respect to the
Debentures, as directed by WPP;
WHEREAS, at the request of WPP and in accordance with Section 6.16 of the
Merger Agreement, Grey has agreed to seek consents of the holders of the
Debentures to the adoption of a second supplement to the Indenture substantially
in the form set forth on Annex A (the "Second Supplemental Indenture");
WHEREAS, WPP has agreed to direct Grey to commence the Consent Solicitation
(as defined below) and, subject to the terms and conditions of this Agreement,
to execute and deliver, and cause Grey to execute and deliver, to the Trustee
the Second Supplemental Indenture as promptly as practicable after receipt of
valid consents of Holders of at least 75% (or, at the sole discretion of WPP, a
lower percentage determined by WPP) of the principal amount of the Debentures
then outstanding;
WHEREAS, the Consenting Holder has agreed, subject to the terms and
conditions of this Agreement, to cause consents to be executed and delivered in
favor of the adoption of the Second Supplemental Indenture with respect to all
the Debentures beneficially owned by the Consenting Holder or as to which it has
investment authority or discretion as set forth on Annex B;
NOW, THEREFORE, in consideration of the foregoing recitals and the terms
and conditions set forth herein, WPP, Grey and the Consenting Holder hereby
agree as follows:
1. Consent Solicitation. Grey shall commence, as promptly as practicable on
or after the date of this Agreement, a solicitation of consents of the Holders
of the Debentures to approve the adoption of the Second Supplemental Indenture
(the "Consent Solicitation"). The Consent Solicitation shall remain open until
5:00 p.m., New York City time on March 4, 2005 (the "Expiration Time");
provided, that, at the discretion of WPP and Grey, the Consent Solicitation may
be extended beyond the then applicable Expiration Time, if as of such Expiration
Time, the conditions set forth in Section 3 shall not then be satisfied (or
capable of being satisfied) or waived; and in the case of such extension of the
Consent Solicitation, the "Expiration Time" shall thereafter be the time at
which the Consent Solicitation will expire after giving effect to such
extension. The Consent Solicitation shall provide that, subject to, and promptly
after the later of, the execution and delivery of the Second Supplemental
Indenture by the parties thereto, the consummation of the Merger and the
occurrence of the Expiration Time, Abbey, as successor by merger to Grey, will
pay to each Holder of Debentures the Consent Fee for each $1,000.00 principal
amount of Debentures in respect of which such Holder properly grants prior to
the Expiration Time a consent to the adoption of the Second Supplemental
Indenture (which consent is not revoked or withdrawn). As soon as practicable
after, but subject to, the satisfaction or waiver of the conditions set forth in
Section 3, WPP and Grey shall execute and deliver to the Trustee the Second
Supplemental Indenture. The "Consent Fee" shall be equal to $23.33; provided,
however, that if consents to the adoption of the Second Supplemental Indenture
are properly granted prior to Expiration Time (and not revoked or withdrawn) in
respect of fewer than 75% of the then outstanding principal amount of the
Debentures, but WPP determines, in its sole discretion, that the condition set
forth in Section 3(a) shall be satisfied by receipt of properly granted consents
(that are not revoked or withdrawn) in respect of a lower percentage (determined
by WPP, in its sole discretion) of the outstanding principal amount of the
Debentures, the "Consent Fee" shall be equal to $20.00.
2. Agreements of Consenting Holder in Connection With the Consent
Transactions.
The Consenting Holder shall:
(a) as soon as reasonably practicable but no later than two Business
Days following commencement of the Consent Solicitation, deliver written
instructions to any Depository Trust Company participant, bank, broker,
financial institution or other person holding Debentures on its behalf (the
"Nominee") duly instructing the Nominee to consent (and not thereafter revoke)
and take any and all other actions necessary to cause its Nominee to consent (as
soon as reasonably practicable after such instruction is delivered to the
Nominee) to the adoption of Second Supplemental Indenture with respect to all
the Debentures beneficially owned by it or as to which it has investment
authority or discretion;
(b) not object to the consummation of the Consent Solicitation or the
execution or delivery of the Second Supplemental Indenture or otherwise commence
any proceeding or make any statements or encourage holders of the Debentures, to
oppose, or take an action that could materially adversely affect or materially
delay, the Consent Solicitation or the execution or delivery of the Second
Supplemental Indenture; and
-2-
(c) not take any other action (and shall not instruct its Nominee to
take any action on its behalf), including initiating any legal proceeding, or
make any statement that is materially inconsistent with, or that could
materially delay consummation of, the Consent Solicitation or the execution or
delivery of the Second Supplemental Indenture.
3. Conditions to Execution and Delivery of the Second Supplemental
Indenture. The obligations of WPP and Grey to execute and deliver to the Trustee
the Second Supplemental Indenture are subject to the prior or simultaneous
satisfaction, or waiver by WPP and Grey, of the following conditions:
(a) Requisite Consents Condition. Holders of Debentures shall have
properly granted consents (which shall not have been withdrawn or revoked) to
the adoption of the Second Supplemental Indenture in respect of at least 75% (or
at such lower percentage as WPP shall determine in its sole discretion) of the
then aggregate outstanding principal amount of the Debentures;
(b) No Prohibition. No law, statute, rule, decree, order or injunction
that prohibits, restrains or enjoins the consummation of the Consent
Solicitation or the execution or delivery of the Second Supplemental Indenture
shall have been enacted, entered, promulgated or otherwise be in effect; and
(c) Trustee Acceptance. The Trustee shall have executed and delivered
the Second Supplemental Indenture.
4. Termination. (a) Subject to Section 4(b) hereof, this Agreement shall
terminate upon the earlier of (i) the valid execution and delivery by WPP, Grey
and the Trustee of the Second Supplemental Indenture, (ii) the termination of
the Merger Agreement in accordance with its terms prior to the consummation of
the Merger or (iii) March 15, 2005. This Agreement may be terminated by written
agreement of WPP and the Consenting Holder.
(b) In the event of the termination of this Agreement pursuant to
Section 4(a), this Agreement shall forthwith become void and there shall be no
liability or obligation on the part of any Party, except with respect to
Sections 4, 5(b), 12 and 14, which shall survive termination; provided that the
termination of this Agreement shall not relieve any party from liability for any
breach of this Agreement by such Party prior to such termination.
5. Forbearance; Restrictions on Transfers. (a) The Consenting Holder agrees
that, prior to the execution and delivery by WPP, Grey and the Trustee of the
Second Supplemental Indenture, it shall not:
(i) give instructions to the Trustee (and shall revoke or cause to be
revoked any instructions previously given by it to the Trustee) for the Trustee
to take any action that is inconsistent with this Agreement; and
(ii) directly or indirectly, sell, assign, transfer or otherwise
dispose of, by conversion or otherwise, any of the Debentures beneficially owned
by it or as to which it has investment authority or discretion (including any of
the Debentures acquired after this date), unless the transferee thereof agrees
in writing for the benefit of WPP to be bound by all of the
-3-
terms of this Agreement and executes a counterpart signature page of this
Agreement and the transferor provides WPP with a copy thereof.
(b) The Consenting Holder further agrees that, from and after the
execution and delivery by WPP, Grey and the Trustee of the Second Supplemental
Indenture, it shall not convert any Debenture beneficially owned by it into
Common Stock. The agreement of the Consenting Holder set forth in the preceding
sentence shall terminate upon the earliest to occur of (i) the termination of
the Merger Agreement in accordance with its terms prior to the consummation of
the Merger, (ii) the failure of WPP or Grey to observe or perform in any
material respect any covenant contained in this Agreement or any representation
or warranty made by WPP or Grey herein shall prove to have been incorrect in any
material respect when made or deemed made or (iii) March 15, 2005.
6. Representations and Warranties of the Parties. Each of the Parties
represents and warrants to the other Parties, as of this date as follows:
(a) Power, Authority and Authorization. Such Party has all requisite
power and authority to execute and deliver this Agreement, to perform its
obligations under this Agreement and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action (corporate or other) on the part of such Party, and the
person executing this Agreement on behalf of such Party is duly authorized to do
so.
(b) Binding Obligation. This Agreement has been validly executed and
delivered by such Party and is the legal, valid and binding obligation of such
Party, enforceable against such Party in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency or other similar laws, both
foreign and domestic, relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability.
(c) No Conflicts. None of the execution, delivery or performance of
this Agreement, nor the compliance with the terms and provisions of this
Agreement, nor the consummation of any of the transactions contemplated hereby,
shall conflict with, violate, or constitute a breach of or a default under, (i)
any law, statute, rule, regulation, ordinance, judgment, decree or order
applicable to such Party or any of its subsidiaries or any of their respective
businesses or properties, (ii) such Party's organizational documents or (iii)
any contractual obligations to which such Party or any of its subsidiaries is a
Party or by which such Party, any of its subsidiaries or any of their respective
properties are bound except for Section 2.4 of the Merger Agreement, the Note
Agreement dated as of March 14, 2003, as amended, between Grey and the
Prudential Insurance Company of America; Note Agreement dated as of November 13,
2000, as amended, between Grey and the Prudential Insurance Company; and the
Credit Agreement dated December 21, 2001, as amended, among Grey, HSBC Bank USA,
as documentation agent, Fleet National Bank, as syndication agent, XX Xxxxxx
Xxxxx Bank, as administrative agent and the various other lenders named therein
(it being understood that no conflict with, violation or breach of or default
under the agreements referred to in clause (iii) (collectively, the "Financing
Agreements") shall relieve WPP or Grey of its obligation, subject
-4-
to the prior or simultaneous satisfaction, or waiver by WPP and Grey, of the
conditions set forth in Section 3, to execute and deliver the Second
Supplemental Indenture).
(d) No Proceedings. There is no action, claim, suit, demand, hearing,
notice of violation or deficiency, or proceeding (including any investigation or
partial proceeding, such as a deposition), domestic or foreign, pending, or to
the knowledge of such Party threatened, against or that affects such Party that
could prevent the consummation of, materially impair or materially delay any of
the transactions contemplated hereby.
7. Additional Representations and Warranties of the Consenting Holder. The
Consenting Holder represents and warrants to WPP as follows:
(a) The Consenting Holder and its advisors have such knowledge
and experience in financial and business matters that they are capable of
evaluating the merits and risks of the transactions contemplated by this
Agreement, including the adoption of the Second Supplemental Indenture.
(b) The Consenting Holder beneficially owns and/or has investment
authority or discretion with respect to, and as of 5:00 p.m. New York City time
on February 19, 2005, beneficially owned and/or had investment authority or
discretion with respect to, the aggregate principal amount of Debentures set
forth next to the Consenting Holder's name on Annex B, and such aggregate
principal amount of Debentures constitutes all of the Debentures so owned or
controlled by the Consenting Holder. Annex B correctly sets forth the name of
the Nominees who hold Debentures on behalf of the Consenting Holder and the
principal amount of Debentures held by each such Nominee on behalf of the
Consenting Holder.
8. Additional Representations and Warranties of WPP and Grey. Each of WPP
and Grey represents and warrants that (a) other than the Indenture, the
Registration Rights Agreement and as contemplated by this Agreement (including
the letter, dated as of the date hereof, to the Consenting Holder (the
"Letter"), and similar support agreements and related letters with other Holders
(the "Other Support Agreements" and "Other Letters")), the Consent Solicitation,
and the Second Supplemental Indenture, it is not a party to any agreement or
understanding with any holder of Debentures with respect to such holder's
Debentures and (b) the Other Support Agreements and the Other Letters contain
terms and conditions substantially the same as or less favorable to the holder
of Debentures party thereto than those contained in this Agreement and the
Letter, respectively, other than with respect to payment of fees and expenses as
provided in Section 12 of this Agreement and the Other Support Agreements.
9. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed sufficiently given and served for all purposes when
personally delivered or given by facsimile or one Business Day after a writing
is delivered to a national overnight courier service or three Business Days
after a writing is deposited in the United States mail, first class postage or
other charges prepaid and registered, return receipt requested, addressed as
follows (or at such other address for a Party as shall be specified by like
notice):
If to WPP, to:
-5-
WPP Group plc
00 Xxxx Xxxxxx
Xxxxxx X0X 0XX
Xxxxxxx
Attn: Xxxx X.X. Xxxxxxxxxx
Group Finance Director
Facsimile No.: (00 00) 00 0000 0000
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx, Xx., Esq.
Xxxxxx Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Grey, to:
Grey Global Group Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Vice Chairman, Chief Financial Officer, Secretary and Treasurer
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
If to the Consenting Holder, at the address set forth on Annex B or to such
other address as the party to whom notice is to be given may have furnished to
WPP in writing in accordance herewith.
10. Covenants. (a) Each Party shall promptly notify the other Parties in
writing upon any representation or warranty of such Party contained in this
Agreement becoming untrue or incorrect in any material respect during the term
of this Agreement.
-6-
(b) WPP and Grey agree to use their reasonable best efforts to adopt an
amendment to the Merger Agreement contemplating the Second Supplemental
Indenture simultaneously with or immediately following the satisfaction or
waiver of the conditions set forth in Section 3 of this Agreement.
(c) WPP agrees to cause to be provided to the Consenting Holder the
information referred to in the second paragraph of Section 4.08 of the Indenture
as amended by the Second Supplemental Indenture promptly after the consummation
of the Merger.
(d) Promptly after the execution and delivery of this Agreement, WPP
will file with the SEC the form of this Agreement as an exhibit to a Report on
Form 6-K and as an exhibit to the Schedule 13D previously filed by WPP with
respect to the shares of common stock of Grey.
11. Publicity. The initial press release relating to this Agreement and the
transactions contemplated hereby shall be issued by WPP in the form attached as
Annex C.
12. Fees and Expenses. Subject to, and promptly after the later of, (i) the
consummation of the Merger, (ii) the execution and delivery of the Second
Supplemental Indenture by all parties thereto, (iii) satisfaction or waiver of
Section 3(a) above and (iv) the receipt of customary invoices, WPP shall pay to
Akin Gump Xxxxxxx Xxxxx and Xxxx LLP, Xxxxx & Xxxxx and Xxxxxx & Xxxxxx the fees
and expenses of such professionals for services performed by them on behalf of
holders of Debentures who have participated in negotiations with WPP regarding
the Second Supplemental Indenture; provided, however, that the fees and expenses
to be paid by WPP pursuant to this sentence and Section 12 of the Other Support
Agreements shall not exceed $250,000.00 in the aggregate. Subject to the
foregoing, each Party to this Agreement will be responsible for its own fees,
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby, whether or not such transactions are
consummated.
13. Independent Nature of Consenting Holder's Obligations and Rights. The
Consenting Holder acknowledges that WPP and Grey have indicated that they intend
to enter into Other Support Agreements and WPP will enter into Other Letters
with other holders of the Debentures. The obligations of the Consenting Holder
under this Agreement are independent of the obligations of any other holder
under any Other Support Agreement, if any, and the Consenting Holder shall not
be responsible in any way for the consent of, or performance of the obligations
of, any other holder. Nothing contained herein, and no action taken by the
Consenting Holder pursuant hereto, shall be deemed to constitute the Consenting
Holder and such other holders, if any, as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that such holders
are in any way acting in concert or as a group (including for purposes of
Section 16 promulgated under the Securities Exchange Act of 1934, as amended)
with respect to such obligations or the transactions contemplated hereby or by
any Other Support Agreement. The Consenting Holder confirms that it has
independently participated in the negotiation of the transaction contemplated
hereby with the advice of its own counsel and advisors. The Consenting Holder
shall be entitled to independently protect and enforce its rights, including,
without limitation, the rights arising out of this Agreement, and it
-7-
shall not be necessary for any other holder to be joined as an additional party
in any proceeding for such purpose.
14. Miscellaneous.
(a) Further Assurances. Each Party hereby further covenants and agrees
that it shall take all such further actions as may be reasonably necessary to
carry out the purposes and intent of this Agreement and shall refrain from
taking any action which would frustrate the purposes and intent of this
Agreement.
(b) Effectiveness; Counterparts. This Agreement shall not become
effective and binding on any Party unless and until counterpart signature pages
to its Agreement shall have been executed and delivered by WPP and Grey. This
Agreement may be executed by one of more of the Parties in any number of
counterparts (including by facsimile), each of which shall be deemed to be an
original, but all such counterparts when taken together shall constitute one and
the same instrument.
(c) Entire Agreement. This Agreement and the Letter constitute the
entire agreement among the Parties with respect to the subject matter hereof and
supersedes all prior negotiations and all prior agreements and understandings,
both written and oral, among the Parties with respect to the subject matter;
provided that any confidentiality agreement heretofore executed between WPP and
the Consenting Holder shall continue in full force and effect.
(d) Interpretation. When a reference is made in this Agreement to
Sections, paragraphs, clauses or Annexes, such reference shall be to a Section,
paragraph or clause of or Annex to this Agreement unless otherwise indicated.
The words "include", "includes", and "including" when used shall be deemed in
each case to be followed by the words "without limitation." The words "hereof,"
"herein," "herewith," "hereby" and "hereunder" and words of similar import
shall, unless otherwise stated, be construed to refer to this Agreement as a
whole and not to any particular provision of this Agreement. Unless the context
otherwise requires, defined terms shall include the singular and plural and the
conjunctive and disjunctive forms of the terms defined. None of the Parties
shall have any term or provision construed against such Party solely by reason
of such Party having drafted the same.
(e) Specific Performance. Each of the Parties recognizes and agrees
that, if for any reason any of the provisions of this Agreement are not
performed by such Party in accordance with their specific terms or are otherwise
breached, immediate and irreparable harm or injury would be caused to the other
Parties for which money damages would not be an adequate remedy. Accordingly,
each Party agrees that, in addition to any other available remedies, the Parties
shall be entitled to an injunction restraining any violation or threatened
violation of the provisions of this Agreement without the necessity of any Party
posting a bond or other form of security. In the event that any action should be
brought in equity to enforce the provisions of this Agreement, each Party agrees
that it will not allege, and each other Party hereby waives the defense, that
there is an adequate remedy at law.
(f) Assignment; Successors and Assigns. Subject to Section 5(a) (ii),
neither this Agreement nor any of the rights, interests or obligations of the
Consenting Holder under this
-8-
Agreement shall be assigned or delegated, in whole or in part, by operation of
law or otherwise by the Consenting Holder without the prior written consent of
WPP and Grey. Neither this Agreement nor any of the rights, interests or
obligations of WPP or Grey under this Agreement shall be assigned or delegated
by WPP or Grey without the prior written consent of the Consenting Holder.
(g) No Third Party Beneficiaries. Unless expressly stated herein, this
Agreement shall be solely for the benefit of the Parties and no other person or
entity and is not intended to, and shall not, confer upon any other person any
rights or remedies hereunder.
(h) Headings. The headings of the sections, paragraphs and subsections
of this Agreement are inserted for convenience only and shall not affect the
meaning or interpretation of such section, paragraph or subsection or of this
Agreement.
(i) Amendments and Waivers. This Agreement may not be modified, amended
or supplemented except in writing signed by WPP, Grey and the Consenting Holder.
(j) GOVERNING LAW; SUBMISSION TO JURISDICTION. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. THIS
AGREEMENT SHALL BE CONSTRUED AND INTERPRETED, AND THE RIGHTS OF THE PARTIES
SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
THE PARTIES TO THIS AGREEMENT EACH HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTION CONTEMPLATED HEREBY,
AND ALL SUCH PARTIES HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR
FEDERAL COURT AND HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THAT THEY MAY
LEGALLY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH
ACTION OR PROCEEDING.
(k) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the Parties
shall use commercially reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the Parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
-9-
(l) Acknowledgment. The Parties agree and acknowledge that,
notwithstanding anything in this Agreement to the contrary, this Agreement shall
not constitute an agreement on the part of Grey or obligate Grey to amend the
Indenture in violation of any of the Financing Agreements (a "Prohibited
Indenture Agreement"), and to the extent that any agreement on the part of Grey
to take any action under this Agreement would, but for this paragraph (l),
constitute a Prohibited Indenture Agreement, such agreement shall be deemed to
be an agreement on the part of WPP to cause Grey (and not an agreement on the
part of Grey) to take such action.
(m) Release. Subject to the execution and delivery by WPP, Grey and the
Trustee of the Second Supplemental Indenture and, if the Consenting Holder
properly executes and delivers consents in respect of Debentures in accordance
with the Consent Solicitation, payment of the Consent Fee payable to the
Consenting Holder:
(i) the Consenting Holder hereby voluntarily and knowingly releases,
acquits and forever discharges WPP, Grey and the Trustee, and each of their
respective past, present or future subsidiaries, affiliates, stockholders,
officers, directors, agents, servants, employees, representatives, advisors
and attorneys (the "Released Parties"), from, and waives all rights of
action with respect to, any and all claims, causes of action, obligations,
suits, debts, liens, demands, liabilities, damages, losses, costs and
expenses (including reasonable attorneys' fees) of any kind, character or
nature whatsoever (collectively "Claims"), which the Consenting Holder in
its capacity as a holder of Debentures may now have or may ever have
against the Released Parties, whether accrued, absolute, contingent,
unliquidated or otherwise, and whether known or unknown on this date, which
have or may have arisen out of, or relate in any way to, the Merger, the
Consent Solicitation, and the validity, execution and effectiveness of the
Second Supplemental Indenture, other than Claims arising out of the
performance or non-performance by WPP and Grey of their obligations under
(1) the Second Supplemental Indenture, (2) the Indenture as modified by the
Second Supplemental Indenture, (3) this Agreement (and the Letter) and (4)
the Consent Solicitation. The provisions of this paragraph shall be binding
upon the Consenting Holder and shall inure to the benefit of WPP, Grey and
the Trustee and their respective successors and assigns; and
(ii) Each of WPP and Grey hereby voluntarily and knowingly releases,
acquits and forever discharges the Consenting Holder in its capacity as a
holder of Debentures and each of its past, present or future subsidiaries,
affiliates, stockholders, officers, directors, agents, servants, employees,
representatives, advisors and attorneys (the "Consenting Holder Released
Parties"), from, and waives all rights of action with respect to, any and
all Claims which each of WPP or Grey or any of their respective
subsidiaries (past, present or future) may now have or may ever have
against the Consenting Holder Released Parties, whether accrued, absolute,
contingent, unliquidated or otherwise, and whether known or unknown on this
date, which have or may have arisen out of, or relate in any way to, the
Merger, the Consent Solicitation, and the validity, execution or
effectiveness of the Second Supplemental Indenture other than Claims
arising out of the performance or non-performance by the Consenting Holder
of its obligations under this Agreement (and the Letter) and the Consent
Solicitation. The
-10-
provisions of this paragraph shall be binding upon WPP and Grey shall inure
to the benefit of the Consenting Holder and its successors and assigns.
[signature pages follow]
-11-
IN WITNESS WHEREOF, each of the Parties has executed this Support Agreement
as of the date and year first above written.
WPP GROUP PLC
By:
-----------------------------------
Name:
Title:
GREY GLOBAL GROUP INC.
By:
-----------------------------------
Name:
Title:
[CONSENTING HOLDER]
By:
-----------------------------------
Name:
Title:
Annex A
================================================================================
GREY GLOBAL GROUP INC.,
WPP GROUP plc,
ABBEY MERGER CORPORATION
and
AMERICAN STOCK TRANSFER & TRUST COMPANY,
as Trustee
--------------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of [Date]
To the Indenture dated
as of October 28, 2003
5% Contingent Convertible Subordinated Debentures due 2033
================================================================================
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of [______] (this "Second
Supplemental Indenture") among WPP GROUP plc, an English public limited company
("WPP"), ABBEY MERGER CORPORATION, a Delaware corporation and wholly owned
subsidiary of WPP ("Abbey"), GREY GLOBAL GROUP INC., a Delaware corporation
("Grey"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a trust company organized
under the laws of the State of New York, as trustee (the "Trustee"). All
capitalized terms used herein without definition shall have the meanings
specified in the Indenture and First Supplemental Indenture referred to below,
unless otherwise specified.
WITNESSETH:
WHEREAS, Grey has heretofore executed and delivered to the Trustee an
Indenture, dated as of October 28, 2003, as supplemented by the First
Supplemental Indenture dated as of the date of this Second Supplemental
Indenture (the "First Supplemental Indenture"), pursuant to which Grey issued 5%
Contingent Convertible Subordinated Debentures due 2033 in the aggregate
principal amount of $150,000,000, convertible under certain circumstances into
shares of common stock, par value $0.01 per share, of Grey;
WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of September
11, 2004, by and among WPP, Abbey and Grey (as amended, the "Merger Agreement"),
Grey will be merged with and into Abbey (the "Merger"), with Abbey being the
surviving corporation in the Merger and remaining as a wholly owned subsidiary
of WPP, and pursuant to the Merger, each outstanding share of Common Stock and
each share of Limited Duration Class B Common Stock, par value $0.01 per share,
of Grey will be converted into the right to receive merger consideration in the
form of cash or WPP shares in accordance with the terms of the Merger Agreement;
WHEREAS, pursuant to the First Supplemental Indenture, Abbey shall
expressly assume, from and after the Effective Time, all of Grey's obligations
as the "Company" under the Indenture and the Debentures, including the
obligations to make payment of the principal of, and interest on, the Debentures
and the performance of the other covenants under the Indenture, and from and
after the Effective Time, Abbey shall be deemed the "Company" for all purposes
under the Indenture and the Debentures;
WHEREAS, pursuant the First Supplemental Indenture, WPP shall become, from
and after the Effective Time, a co-obligor, jointly and severally with the
Company, of substantially all of the obligations of the Company under the
Indenture and the Debentures;
WHEREAS, pursuant to Section 11.11 of the Indenture, Grey, Abbey and WPP
are required to execute and deliver to the Trustee a supplemental indenture
providing (x) that the Holder of each Debenture shall have the right to convert
such Debenture into the kind and amount of merger consideration receivable upon
the Merger by a holder of the number of shares of Common Stock deliverable upon
conversion of such Debenture immediately prior to the
record date of the Merger, and (y) for adjustments to the Conversion Price that
are as nearly equivalent as may be practicable to the adjustments to the
Conversion Price provided for in Article 11 of the Indenture;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Indenture and the
Debentures may be amended or supplemented with the consent of Holders of at
least a majority in aggregate principal amount of Debentures outstanding voting
as a single class;
WHEREAS, the Holders of a majority in aggregate principal amount of
Debentures outstanding have duly consented to the adoption of the provisions
contained in this Second Supplemental Indenture, including that the adoption of
Article 3 of this Second Supplemental Indenture fully satisfies the obligations
of WPP, Abbey and Grey under Article 11 of the Indenture in connection with the
Merger;
WHEREAS, in satisfaction of the requirements of Section 11.11 of the
Indenture, Article 3 of this Second Supplemental Indenture provides (a) that, at
any time after the Effective Time, the Holder of each Debenture shall have the
right to convert such Debenture into that amount of cash and number of WPP ADSs
representing WPP Ordinary Shares (as such terms are defined below) in the same
percentage that Holders of Common Stock electing share consideration are
entitled to receive in the aggregate under the Merger Agreement and (b) for
certain adjustments to the Conversion Price;
WHEREAS, pursuant to Article 2 of this Second Supplemental Indenture,
certain amendments are being made to Sections 4.03, 4.07, 4.08, 5.01 and 5.02 of
the Indenture and new Sections 3.16, 3.17, 3.18, 3.19 and 4.09 are being added
to the Indenture;
WHEREAS, in connection with the execution and delivery of this Second
Supplemental Indenture, the Trustee has received an Officers' Certificate and an
Opinion of Counsel as contemplated by Sections 7.02, 9.06, 11.11 and 12.04 of
the Indenture and evidence satisfactory to the Trustee of the consent of the
Holders described above;
WHEREAS, following the Merger Abbey intends to change its name to "Grey
Global Group Inc."; and
WHEREAS, all other acts necessary to make this Second Supplemental
Indenture a valid, binding and enforceable instrument, and all of the conditions
and requirements set forth in the Indenture, have been performed and fulfilled
and the execution and delivery of this Second Supplemental Indenture have been
in all respects duly authorized.
NOW THEREFORE, the parties have executed and delivered this Second
Supplemental Indenture, and each of Grey, Abbey, WPP and the Trustee hereby
agrees for the other parties' benefit, and for the equal and ratable benefit of
the Holders, as follows:
-2-
ARTICLE 1
DEFINITIONS
Section 1.01 of the Indenture is hereby amended by inserting the following
new definitions in appropriate alphabetical order:
"WPP ADSs" means American depositary shares of WPP.
"WPP Board of Directors" means the board of directors of WPP, or any
authorized committee thereof.
"WPP Market Price" means, with respect to WPP Ordinary Shares, the average
of the Last Reported Sale Price (as defined in Section 11A.01 of this
Indenture) per share of WPP Ordinary Shares, and with respect to WPP ADSs,
the average of the Last Reported Sale Price per share of ADSs, for 20
consecutive trading days before the record date with respect to any
distribution, issuance or other event requiring such computation,
appropriately adjusted (as determined in good faith by the WPP Board of
Directors, whose determination shall be conclusive) to take into account
the occurrence, during the period commencing on the first of such 20
consecutive trading days and ending on such record date, of any event
requiring adjustment of the Conversion Price under Article 11A of this
Indenture.
"WPP Ordinary Shares" means the ordinary shares nominal value 10p each of
WPP.
ARTICLE 2
AMENDMENTS TO CERTAIN
PROVISIONS OF THE INDENTURE
Section 2.01 Amendment of Section 4.03. Section 4.03 of the Indenture is
hereby amended to add following:
"(c) From and after the Effective Time, the Company shall not be required
to comply with Section 4.03(a) (other than the first and last sentence
thereof). From and after the Effective Time, the Company shall file with
the Trustee, within 15 days after WPP files such annual reports,
information, documents and other reports with the SEC, copies of WPP's
annual report and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which WPP is required to file with the SEC pursuant
to Section 13 or 15 (d) of the Exchange Act.
(d) From and after the Effective Time, the Company shall not be required to
comply with Section 4.03(b). From and after the Effective Time, any time
when WPP is not subject to Section 13 or 15(d) of the Exchange Act, for so
long as any Debentures remain outstanding, the Company shall furnish to the
Holders and to prospective investors
-3-
designated by such Holders, upon their request, the information required to
be delivered pursuant to Rule 144A(d) under the Securities Act."
Section 2.02 Amendment of Section 4.07. Section 4.07 of the Indenture is
hereby amended by inserting the following as the last sentence of that Section:
"Subject to Article 5 hereof, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence or, from and after the Effective Time, its existence as
any other legal entity organized under applicable law. From and after the
Effective Time, nothing in this Indenture or in any of the Debentures shall
prevent the Company from converting under applicable law from one type of
entity organized under the law of any jurisdiction to another type of
entity organized under the law of any jurisdiction (and such conversion
shall not be deemed to constitute a consolidation, merger or a conveyance,
transfer, sale or lease of property or assets for purposes of this
Indenture)."
Section 2.03 Amendment of Section 4.08. Section 4.08 of the Indenture is
hereby amended to add the following at the end of Section 4.08:
"The prior provisions of this Section 4.08 shall be operative only with
respect to periods prior to the Effective Time. The Company and the Holders
and any beneficial owner of a Debenture, by purchasing the Debentures,
agree that, from and after the Effective Time, (i) the Debentures are
"contingent payment debt instruments" as defined in Treasury Regulations
Section 1.1275-4(b), (ii) each Holder and any beneficial owner of a
Debenture shall be bound by the Company's application of the Treasury
Regulations to the Debentures, including the Company's determination (and,
upon appropriate circumstances, redetermination) of the rate at which
interest will be deemed to accrue on the Debentures for United States
federal income tax purposes, which is the rate (as determined or
redetermined by the Company) comparable to the rate at which the "issuer"
(within the meaning of Treasury Regulation Section 1.1275-4(b)(4)(i)(A))
would borrow on a noncontingent, nonconvertible basis with terms and
conditions otherwise comparable to the Debentures, (iii) each Holder and
any beneficial owner of a Debenture shall use the projected payment
schedule with respect to the Debentures determined (and, upon appropriate
circumstances, redetermined) by the Company, as required by Treasury
Regulations Section 1.1275-4(b)(4)(iv), to determine its interest accruals
and adjustments as provided in Treasury Regulations Section 1.1275-4(b),
and (iv) the Company and each Holder and any beneficial owner of a
Debenture will not take any position on a tax return inconsistent with (i),
(ii), or (iii), unless required by applicable law.
A Holder of Debentures may obtain the issue price, amount of original issue
discount, issue date, yield to maturity, comparable yield and projected
payment schedule for the Debentures from and after the Effective Time by
submitting a written request for such information to the Company at the
address specified in Section 12.02 of this Indenture."
-4-
Section 2.04 Amendment of Section 5.01. Clause (i) of Section 5.01 of the
Indenture is hereby amended to read in its entirety as follows:
"(i) (x) if such consolidation, merger, conveyance, transfer, sale or lease
is consummated prior to or as of the Effective Time, the Person formed by
such consolidation or into or with which the Company is merged or the
Person to which the Company's properties and assets are conveyed,
transferred, sold or leased, is a corporation organized and existing under
the laws of the United States, any State thereof or the District of
Columbia or (y) if such consolidation, merger, conveyance, transfer, sale
or lease is consummated after the Effective Time, the Person formed by such
consolidation or into or with which the Company is merged or the Person to
which the Company's properties and assets are conveyed, transferred, sold
or leased, is a corporation or other legal entity organized under the laws
of any jurisdiction; and in the case of (x) or (y), if the Person formed by
such consolidation or into or with which the Company is merged or the
Person to which the Company's properties and assets are conveyed,
transferred, sold or leased is other than the Company, such Person has
expressly assumed all of the Company's obligations, including the payment
of the principal of, and interest on, the Debentures and the performance of
the other covenants under Article 4 of this Indenture;"
Section 2.05. Amendment to Section 5.02. Section 5.02 of the Indenture is
hereby amended to substitute for each reference therein to "the successor
corporation" the following: "the successor corporation (if such consolidation,
merger, conveyance, transfer, sale or lease is consummated prior to or as of the
Effective Time) or the successor Person (if such consolidation, merger,
conveyance, transfer, sale or lease is consummated after the Effective Time)".
Section 2.06 Addition of Sections 3.16, 3.17, 3.18 and 3.19. The Indenture
is hereby amended to add the following Sections 3.16, 3.17, 3.18 and 3.19:
"3.16 Purchase of Debentures at Option of the Holder for Cash.
(a) After the Effective Time, at each of October 28, 2008, October 28, 2010
and October 28, 2013 (each a "Purchase Date"), outstanding Debentures shall be
repurchased by the Company, at the option of the Holder thereof, at a purchase
price in cash (the "Purchase Price") equal to 100% of the principal amount of
the Debentures to be purchased, plus accrued and unpaid interest (including
Additional Amounts and Contingent Interest, if any) thereon, up to and including
the applicable Purchase Date.
(b) The Company shall mail to all Holders of record of the Debentures a
notice (a "Purchase Notice") at least 20 Business Days prior to each Purchase
Date. The Company shall promptly furnish to the Trustee a copy of such notice.
Each Purchase Notice shall include a form of Purchase Acceptance Notice to be
completed by a Holder and shall state, as applicable:
(i) the Purchase Price and the cash and/or securities for which each $1,000
of principal amount of Debentures is then convertible;
-5-
(ii) the name and address of the Paying Agent and Conversion Agent;
(iii) that Debentures as to which a Purchase Acceptance Notice has been
given may be converted only if the Purchase Acceptance Notice has been withdrawn
in accordance with the terms of this Indenture;
(iv) that Debentures must be surrendered to the Paying Agent to collect
payment of the Purchase Price and accrued but unpaid interest and Contingent
Interest and Additional Amounts, if any;
(v) that the Purchase Price for any Debentures as to which a Purchase
Acceptance Notice has been given and not withdrawn, together with any accrued
and unpaid interest, including Contingent Interest and Additional Amounts, if
any, with respect thereto, shall be paid promptly following the later of the
Purchase Date and the time of surrender of such Debentures as described in (iv);
(vi) the Purchase Date;
(vii) the procedures the Holder must follow under this Section 3.16 to
require the Company to repurchase such Holder's Debentures;
(viii) that, unless the Company defaults in making payment of such Purchase
Price, interest (including Contingent Interest and Additional Amounts, if any)
on Debentures covered by any Purchase Acceptance Notice will cease to accrue on
and after the Purchase Date;
(ix) the CUSIP number of the Debentures; and
(x) the procedures for withdrawing a Purchase Acceptance Notice.
At the Company's request and at the Company's expense, the Trustee shall
give the Purchase Notice in the Company's name; provided, however, that, in all
cases, the text of the Purchase Notice shall be prepared by or at the direction
of the Company.
(c) For a Debenture to be so repurchased at the option of the Holder in
connection with a Purchase Date, the Paying Agent must receive such Debenture
duly endorsed for transfer, together with the form entitled "Form of Purchase
Acceptance Notice" (a "Purchase Acceptance Notice") on the reverse thereof duly
completed, together with such Debenture duly endorsed for transfer, after the
mailing of the Purchase Notice with respect to such Purchase Date and prior to
the close of business on such Purchase Date, subject to extension to comply with
applicable law (such extension, if any, to be determined solely by the Company).
The Purchase Acceptance Notice must state: (i) if certificated Debentures have
been issued, the certificate numbers of the Debentures to be delivered for
repurchase; (ii) the portion of the principal amount of Debentures to be
repurchased, which must be $1,000 or an integral multiple thereof; and (iii)
that the Debentures are to be repurchased by the Company pursuant to Section
3.16 of this Indenture. All questions as to the validity, eligibility (including
time of receipt) and acceptance of any
-6-
Debenture for redemption shall be determined by the Company, whose determination
shall be final and binding.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.16, a portion of a Debenture if the principal amount of such portion
is $1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Debenture also apply to the purchase of such
portion of such Debenture.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 3.16 shall be consummated by the delivery of the consideration to be
received by the Holder promptly following the later of the applicable Purchase
Date and the time of delivery of the Debentures to the Paying Agent in
accordance with this Section 3.16.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Purchase Acceptance Notice contemplated by this Section
3.16 (c) shall have the right to withdraw such Purchase Acceptance Notice at any
time prior to the close of business on the applicable Purchase Date by delivery
of a written notice of withdrawal to the Paying Agent in accordance with Section
3.17.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Purchase Acceptance Notice or written withdrawal thereof.
Notwithstanding anything herein to the contrary, the Company shall not be
required to make an offer pursuant to this Section 3.16 on any Purchase Date if,
not more than 20 Business Days prior to such Purchase Date, the Company has made
an offer to purchase (an "Alternate Purchase Offer") any and all Debentures
validly tendered at a cash price equal to or higher than the Purchase Price
(which offer refers to this Section 3.16 and discloses the requirement of the
Company to purchase Debentures pursuant hereto and otherwise satisfies the
requirements of Section 3.16(b)) and purchases all Debentures properly tendered
in accordance with the terms of such Alternate Purchase Offer.
3.17 Effect of Purchase Acceptance Notice.
Upon receipt by the Paying Agent of the Purchase Acceptance Notice
specified in Section 3.16(c) during the period specified in Section 3.16(c), the
Holder of the Debenture in respect of which such Purchase Acceptance Notice was
given shall (unless such Purchase Acceptance Notice is withdrawn as specified in
the following two paragraphs) thereafter be entitled to receive solely the
Purchase Price, together with accrued but unpaid interest (including Contingent
Interest and Additional Amounts, if any) thereon, to and including the
applicable Purchase Date with respect to such Debenture. Such Purchase Price,
together with accrued but unpaid interest (including Contingent Interest and
Additional Amounts, if any) thereon, to and not including the applicable
Purchase Date shall be paid to such Holder, subject to receipt of funds by the
Paying Agent, promptly following the later of (x) the applicable Purchase Date
(provided that the conditions in Section 3.16 have been satisfied) and (y) the
book-entry transfer or time of delivery of such Debenture to the Paying Agent by
the Holder thereof in the manner required by Section 3.16(c). Debentures in
respect of which a Purchase Acceptance Notice has
-7-
been given by the Holder thereof may not be converted pursuant to Article 11A
hereof on or after the date of the delivery of such Purchase Acceptance Notice
unless such Purchase Acceptance Notice has first been validly withdrawn as
specified in the following two paragraphs.
A Purchase Acceptance Notice may be withdrawn by means of a written notice
of withdrawal delivered to the office of the Paying Agent in accordance with the
Purchase Acceptance Notice prior to the close of business on the applicable
Purchase Date. The notice of withdrawal must state:
(i) the principal amount of the Debentures with respect to which such
notice of withdrawal is being submitted;
(ii) if certificated Debentures have been issued, the certificate numbers
of the withdrawn Debentures; and
(iii) the principal amount, if any, of such Debenture which remains subject
to the original Purchase Acceptance Notice and which has been or will be
delivered for purchase by the Company.
The Company shall not purchase any of the Debentures pursuant to Section
3.16 if there has occurred, prior to, on or after, as the case may be, the
giving, by the Holders of such Debentures, of the required Purchase Acceptance
Notice, and is continuing an Event of Default (other than a default in the
payment of the Purchase Price). The Paying Agent will promptly return to the
respective Holders thereof any Debentures (x) with respect to which a Purchase
Acceptance Notice has been withdrawn in compliance with this Indenture, or (y)
held by it during the continuance of an Event of Default (other than a default
in the payment of the Purchase Price) in which case, upon such return, the
Purchase Acceptance Notice with respect thereto shall be deemed to have been
withdrawn.
3.18 Deposit of Purchase Price.
No later than the first Business Day following each Purchase Date, the
Company shall deposit with the Paying Agent (or, if the Company or a subsidiary
or an Affiliate of either of them is acting as the Paying Agent, shall segregate
and hold in trust as provided in Section 2.04) an amount of money (in
immediately available funds) sufficient to pay the aggregate Purchase Price,
together with accrued but unpaid interest (including Contingent Interest and
Additional Amounts, if any) thereon to and including the Purchase Date, of all
the Debentures or portions thereof purchased as of the Purchase Date.
If the Paying Agent holds money sufficient to pay the Purchase Price of the
Debentures on the first Business Day following a Purchase Date, then, after such
Purchase Date: (a) such Debentures (or portions thereof) will cease to be
outstanding and interest will cease to accrue (whether or not book-entry
transfer of the Debentures has been made or the Debentures have been delivered
to the Paying Agent); and (b) all other rights of the Holders will terminate
(other than the right to receive the Purchase Price upon transfer or delivery of
the Debentures).
-8-
3.19 Repayment to the Company.
The Paying Agent shall return to the Company any cash that remains
unclaimed as provided in paragraph 6A of the Debentures, together with interest
or dividends, if any, thereon, held by it for the payment of the Purchase Price
and accrued but unpaid interest (including Contingent Interest and Additional
Amounts, if any); provided, however, that to the extent that the aggregate
amount of cash deposited by the Company pursuant to Section 3.18 exceeds the
aggregate Purchase Price of the Debentures or portions thereof which the Company
is obligated to purchase as of the Purchase Date and accrued but unpaid interest
thereon (including Contingent Interest and Additional Amounts, if any), then,
unless otherwise agreed in writing with the Company, promptly after the Purchase
Date, the Paying Agent shall return any such excess to the Company."
Section 2.07 Amendment to Section 3.15 of the Indenture. Section 3.15 of
the Indenture is hereby amended from and after the Effective Time so that each
reference to "Section 3.11" is replaced with a reference to "Section 3.11 or
3.16".
Section 2.08 Addition of Section 4.09 to the Indenture. The Indenture is
hereby amended from and after the Effective Time to add the following Section
4.09:
4.09 Normal Call Premium.
"Amounts paid upon conversion of a Debenture by a Holder pursuant to
Section 11A.01 hereof that exceed the "adjusted issue price" (as defined in
Treasury Regulation Section 1.1275-1(b)) of such Debenture shall be deemed
to be a call premium specified in dollars under the terms of this
Indenture, but such deemed amounts shall not exceed the greater of (i) a
normal call premium on a nonconvertible obligation which is comparable to
such Debenture, determined under Treasury Regulation Section 1.249-1(d) (or
any successor thereto) and (ii) an amount, determined under Treasury
Regulation Section 1.249-1(e) (or any successor thereto), that is
attributable to the cost of borrowing and is not attributable to the
conversion feature."
Section 2.09 Addition of Paragraph 6A to the Debentures. A new paragraph 6A
is hereby added to the Debentures, which shall read in its entirety as follows:
"6A. Purchase At The Option Of The Holder For Cash. After the Effective
Time, at the option of the Holder and subject to the terms and conditions of the
Indenture, the Company shall become obligated to purchase the Debentures held by
such Holder on each of October 28, 2008, October 28, 2010 and October 28, 2013
(each, a "Purchase Date") for a Purchase Price equal to 100% of the principal
amount thereof, plus accrued but unpaid interest (including Contingent Interest
and Additional Amounts, if any) thereon, up to and including the applicable
Purchase Date. Holders have the right to withdraw any Purchase Acceptance Notice
by delivering to the Paying Agent a written notice of withdrawal in accordance
with the provisions of the Indenture.
-9-
If cash sufficient to pay the Purchase Price on all Debentures or portions
thereof to be purchased as of a Purchase Date is held by the Paying Agent within
one Business Day following such Purchase Date, interest (including Contingent
Interest and Additional Amounts, if any) shall cease to accrue on such
Debentures (or portions thereof) after such Purchase Date (whether or not
book-entry transfer of the Debentures has been made or the Debentures have been
delivered to the Paying Agent), and the Holder thereof shall have no other
rights as such other than the right to receive the Purchase Price upon surrender
of such Debentures."
Section 2.10 Addition of Form of Purchase Acceptance Notice to the
Debentures. The Debentures are amended from and after the Effective Time to add
the following "Form of Purchase Acceptance Notice" after the "Form of Holder
Change of Control Acceptance Notice" on the reverse of the Debentures:
-10-
FORM OF PURCHASE ACCEPTANCE NOTICE
TO: GREY GLOBAL GROUP INC.
c/o WPP Group USA, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Corporate Secretary
Telecopier No. (212) _______
The undersigned registered owner of this Debenture hereby irrevocably
acknowledges receipt of a notice from Grey Global Group Inc. (the "Company") as
to an upcoming Purchase Date and requests and instructs the Company to repay the
entire principal amount of this Debenture, or the portion thereof (the principal
amount of which is an integral multiple of $1,000) below designated, in
accordance with the terms of this Debenture and the Indenture referred to in
this Debenture, together with accrued but unpaid interest (including Contingent
Interest and Additional Amounts, if any) to, but excluding, such date, to the
registered holder hereof.
Dated: Your Name:
------------------ ------------------------------
(Print your name exactly as it appears
on the face of this Debenture)
Your Signature:
----------------------------------------
(Sign exactly as your name appears on
the face of this Debenture)
Signature Guarantee*:
-------------------
Social Security or other Taxpayer
Identification Number:
------------------
DTC Participant Number:
-----------------
Certificate Number:
-----------------------------------
*Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
Principal amount to be repaid (if less than all):$
------------------------------
-11-
ARTICLE 3
CONVERSION OF THE SECURITIES
Section 3.01 Amendment to Article 11. Article 11 of the Indenture is hereby
amended to add the following:
"11.15 Effectiveness.
This Article 11 shall be null and void and have no further force and effect
from and after the Effective Time."
Section 3.02 Addition of Article 11A. The Indenture is hereby amended to
add the following Article 11A in satisfaction of the requirements of Section
11.11 of the Indenture in connection with the Merger:
"ARTICLE 11A
CONVERSION OF THE SECURITIES
11A.01 Conversion Privilege.
Subject to the provisions of this Article 11A, a Holder may at any time
after the Effective Time, prior to the close of business on the Business Day
immediately preceding October 15, 2033 (the "Conversion Expiration Date")
convert each $1,000 principal amount of Debentures into (i) the Cash Conversion
Amount in cash and (ii) WPP ADSs representing a number of WPP Ordinary Shares
equal to the Stock Conversion Amount divided by the Conversion Price in effect
on the applicable Conversion Date. The "Conversion Price" shall, after the
Effective Time, be initially equal to the Initial Post-Merger Conversion Price,
subject to adjustment pursuant to Section 11A.06.
"Cash Conversion Amount" shall be equal to (x) $1,045.60 multiplied by (y)
one (1) minus the Proration Percentage.
"Initial Post-Merger Conversion Price" shall be equal to $8.84 per WPP
Ordinary Share.
"Proration Percentage" shall be equal to the result (expressed as a
decimal) obtained by dividing (x) the number of Stock Electing Shares (as
defined in the Merger Agreement as in effect as of February 21, 2005) converted
in the Merger into the right to receive WPP ADSs or WPP Ordinary Shares, divided
by (y) the total number of Stock Electing Shares; provided, that the Proration
Percentage shall not be less than 0.5 nor more than 1.00 and if the total number
of Stock Electing Shares is 0 then the Proration Percentage shall be 1.00.
"Stock Conversion Amount" shall be equal to (x) $1,000 multiplied by (y)
the Proration Percentage.
-12-
As promptly as practicable after the Effective Time, WPP shall give written
notice (the "Merger Consideration Notice") to the Trustee and make a public
announcement setting forth the Effective Time, the Proration Percentage, the
Cash Conversion Amount and the Stock Conversion Amount.
A Debenture in respect of which a Holder elects to exercise its option to
require repurchase pursuant to Section 3.11 or 3.16 may be converted only if
such Holder withdraws its election in accordance with Section 3.11(d) and
Section 3.12 or Section 3.16(c) and Section 3.17, as applicable. A Holder of
Debentures is not entitled to any rights of a holder of WPP ADSs until such
Holder has converted its Debentures to WPP ADSs, and only to the extent such
Debentures are deemed to have been converted to WPP ADSs under this Article 11A.
The "Last Reported Sale Price" of the WPP Ordinary Shares on any date means
the closing sale price per share (or if no closing sale price is reported, the
average of the bid and asked prices or, if more than one in either case, the
average of the average bid and the average asked prices) on such date as
reported by The London Stock Exchange or, if the WPP Ordinary Shares are not
reported by The London Stock Exchange, as reported in composite transactions for
the principal securities exchange on which the WPP Ordinary Shares are traded.
If the WPP Ordinary Shares are not reported by The London Stock Exchange and not
listed for trading on a securities exchange on the relevant date, the "Last
Reported Sale Price" of the WPP Ordinary Shares will be the average of the
mid-point of the last bid and asked prices for the WPP Ordinary Shares on the
relevant date quoted by each of at least three independent nationally recognized
investment banking firms selected by WPP for this purpose. The "Last Reported
Sale Price" of the WPP ADSs on any date means the closing sale price per share
(or if no closing sale price is reported, the average of the bid and asked
prices or, if more than one in either case, the average of the average bid and
the average asked prices) on such date as reported by The Nasdaq National Market
or, if the WPP ADSs are not reported by The Nasdaq National Market, as reported
in composite transactions for the principal U.S. securities exchange on which
the WPP ADSs are traded. If the WPP ADSs are not reported by The Nasdaq National
Market and not listed for trading on a U.S. national or regional securities
exchange on the relevant date, the "last reported sale price" will be the last
quoted bid price for the WPP ADSs in the over-the-counter market on the relevant
date as reported by the National Quotation Bureau Incorporated or similar
organization. If the WPP ADSs are not so quoted, the "Last Reported Sale Price"
will be the average of the mid-point of the last bid and asked prices for the
WPP ADSs on the relevant date quoted by each of at least three independent
nationally recognized investment banking firms selected by WPP for this purpose.
A "Trading Day" means, with respect to WPP Ordinary Shares, a day during
which trading in securities generally occurs on The London Stock Exchange or, if
the WPP Ordinary Shares are not then listed on The London Stock Exchange, on the
principal other securities exchange on which the WPP Ordinary Shares are then
listed or, if the WPP Ordinary Shares are not then listed on a securities
exchange, on the principal other market on which the WPP Ordinary Shares are
then traded. A "Trading Day" with respect to the WPP ADSs means a day during
which trading in securities generally occurs on The Nasdaq National Market or,
if the WPP ADSs are not then listed on The Nasdaq National Market, on the
principal other U.S.
-13-
national or regional securities exchange on which the WPP ADSs are then listed
or, if the WPP ADSs are not then listed on a national or regional securities
exchange, on the principal other market on which the WPP ADSs are then traded.
A "Dividend Payment Period" shall commence on each date on which WPP has
announced that it (i) will make a Below Market Issuance, (ii) will distribute a
Cash Dividend or an Asset Distribution, which distribution has a per share value
as determined in good faith by the WPP Board of Directors exceeding 10% of the
Last Reported Sale Price of WPP Ordinary Shares on the trading day immediately
preceding the declaration date for such distribution or (iii) has commenced a
Tender Offer, and end on the earlier of (a) the close of business on the
business day immediately prior to the ex-dividend date with respect to such
distribution or dividend (or in the case of a Tender Offer, at the close of
business on the Business Day immediately prior to the expiration of the Tender
Offer) and (b) the close of business on the first business day after the day on
which WPP makes a public announcement that such distribution or dividend will
not be issued or that such Tender Offer has been terminated.
A Holder may convert a portion of a Debenture equal to $1,000 or any
integral multiple thereof. Provisions of this Indenture that apply to conversion
of all of a Debenture also apply to conversion of a portion of a Debenture.
If a Debenture is called for redemption pursuant to Article 3, the right to
convert such Debenture shall terminate at the close of business on the second
Business Day before the Redemption Date for such Debenture (unless the Company
shall default in making the redemption payment then due, in which case the
conversion right shall terminate on the date such Default is cured and such
Debenture is redeemed).
11A.02 Conversion Procedure.
To convert a Debenture after the Effective Time, a Holder must satisfy the
requirements in paragraph 8 of the Debentures and (i) complete and manually sign
the irrevocable conversion notice on the back of the Debenture and deliver such
notice to the Conversion Agent, (ii) surrender the Debenture to the Conversion
Agent, (iii) furnish appropriate endorsements and transfer documents if required
by the Registrar or the Conversion Agent, (iv) pay any transfer or other tax, if
required by Section 11A.04 and (v) if the Debenture is held in book-entry form,
complete and deliver to the Depositary appropriate instructions pursuant to the
Depositary's book-entry conversion programs. After the Effective Time, the date
on which the Holder satisfies all of the foregoing requirements is the
"Conversion Date." As soon as practicable after the Conversion Date and in any
event within five Business Days, WPP shall deliver to the Holder through the
Conversion Agent (a) either a receipt or a book entry notation of the number of
whole WPP ADSs issuable upon the conversion pursuant to Section 11A.05, (b) the
aggregate Cash Conversion Amount payable upon such conversion and (c) cash in
lieu of any fractional WPP ADSs.
After the Effective Time, the Person in whose name the Debenture is
registered shall be deemed to be a holder on the Conversion Date of the WPP ADSs
for which the Debenture is converted on such Conversion Date; provided, however,
that no surrender of a Debenture on any
-14-
date when the transfer books relating to the WPP ADSs shall be closed shall be
effective to constitute the Person or Persons entitled to receive WPP ADSs upon
such conversion as the registered holder or holders of such WPP ADSs on such
date, but such surrender shall be effective to constitute the Person or Persons
entitled to receive such WPP ADSs as the registered holder or holders thereof
for all purposes at the close of business on the next succeeding day on which
such transfer books are open; provided, further, that such conversion shall be
at the Conversion Price in effect on the date that such Debenture shall have
been surrendered for conversion, as if such transfer books had not been closed.
Upon conversion of a Debenture, such Person shall no longer be a Holder of such
Debenture.
Accrued interest (including Contingent Interest, accrued Tax Original Issue
Discount and Additional Amounts, if any) on a Debenture shall not be cancelled,
extinguished or forfeited but rather shall, except as otherwise set forth
herein, be deemed paid by an applicable portion of the WPP ADSs issued upon
conversion of such Debenture. Except as set forth in the preceding sentence, no
payment or adjustment will be made for accrued interest (including Contingent
Interest or Additional Amounts, if any) on a converted Debenture or for
dividends or distributions on WPP ADSs issued upon conversion of a Debenture
(provided that the WPP ADSs received upon conversion of Debentures shall
continue to accrue Additional Amounts, as applicable, in accordance with the
Registration Rights Agreement and shall be entitled to receive, at the next
Interest Payment Date, any accrued but unpaid Additional Amounts with respect to
the converted Debentures), but if any Holder surrenders a Debenture for
conversion between the record date for the payment of an installment of interest
and the next Interest Payment Date, then, notwithstanding such conversion, the
interest (including Contingent Interest or Additional Amounts, if any), payable
on such Interest Payment Date shall be paid to the Holder of such Debenture on
such Interest Payment Date. In such event, such Debenture, when surrendered for
conversion, must be accompanied by delivery of a check payable to the Conversion
Agent in an amount equal to the interest (including Contingent Interest or
Additional Amounts, if any), payable on such Interest Payment Date on the
portion so converted. If such payment does not accompany such Debenture, the
Debenture shall not be converted; provided, however, that no such check shall be
required if such Debenture has been called for redemption on a redemption date
within the period between and including such record date and such Interest
Payment Date, or if such Debenture is surrendered for conversion on the Interest
Payment Date. If the Company defaults in the payment of interest (including
Contingent Interest or Additional Amounts, if any) payable on the Interest
Payment Date, the Conversion Agent shall repay such funds to the Holder.
No fractional WPP ADSs shall be issued upon conversion of Debentures. If
more than one Debenture shall be surrendered for conversion at one time by the
same holder, the number of full WPP ADSs that shall be issuable upon conversion
shall be computed on the basis of the aggregate principal amount of the
Debentures (or specified portions thereof to the extent permitted hereby) so
surrendered. If any fractional WPP ADS would be issuable upon the conversion of
any Debenture or Debentures, WPP shall make a payment in lieu thereof in cash
based on the current WPP Market Price of a WPP ADSs on the Conversion Date.
-15-
Upon surrender of a Debenture that is converted in part, the Company and
WPP shall execute, and the Trustee shall authenticate and deliver to the Holder,
a new Debenture equal in principal amount to the unconverted portion of the
Debenture surrendered.
11A.03 Adjustments Below Nominal Value.
Before taking any action which would cause an adjustment decreasing the
Conversion Price so that the WPP Ordinary Shares represented by the WPP ADSs
issuable upon conversion of the Debentures would be issued for less than the
nominal value of such WPP Ordinary Shares, WPP will take all corporate action
which may be necessary in order that WPP may validly and legally issue fully
paid or credited as fully paid and nonassessable shares of such WPP Ordinary
Shares represented by WPP ADSs issuable upon conversion of the Debentures at
such adjusted Conversion Price.
11A.04 Taxes on Conversion.
If a Holder converts a Debenture, the Company or WPP shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of WPP
Ordinary Shares or WPP ADSs upon such conversion. However, the Holder shall pay
any such tax which is due because the Holder requests the shares to be issued in
a name other than the Holder's name. Each of the Company, WPP, the depositary
for the WPP ADSs and the Conversion Agent may refuse to deliver the WPP Ordinary
Shares or receipts representing the WPP ADSs being issued in a name other than
the Holder's name until the Conversion Agent receives a sum sufficient to pay
any tax which will be due because the shares are to be issued in a name other
than the Holder's name. Nothing herein shall preclude any tax withholding
required by law or regulations.
11A.05 WPP to Provide WPP Ordinary Shares and WPP ADSs.
WPP shall from time to time after the Effective Time as may be necessary,
reserve, out of its authorized but unissued WPP Ordinary Shares, a sufficient
number of WPP Ordinary Shares to permit the conversion of all outstanding
Debentures into WPP ADSs issuable upon conversion of the Debentures.
The WPP ADSs to be issued upon conversion of Debentures bearing a legend as
provided in Section 2.06(f) shall bear a legend substantially in the following
form:
"THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION
OR AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
-16-
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (III) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (III) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS SECURITY FROM THE HOLDER OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE."
WPP covenants that all WPP Ordinary Shares represented by the WPP ADSs
delivered upon conversion of the Debentures shall be newly issued shares or
treasury shares, shall be duly authorized, validly issued, and fully paid or
credited as fully paid, and no further contribution in respect thereof will be
required to be made to WPP by the holders thereof when issued, and shall be free
from preemptive rights and free of any lien or adverse claim. WPP shall take
such action from time to time as shall be necessary so that the aggregate
nominal value of the WPP Ordinary Shares issued upon conversion of any Debenture
or underlying the WPP ADSs issued upon conversion of any Debentures shall at all
times be equal to or less than the Conversion Price then in effect.
WPP shall cause adequate availability to be maintained under a Registration
Statement with respect to the WPP ADSs as necessary to allow conversion of the
Debentures.
WPP will endeavor promptly to comply with all federal and state securities
laws regulating the offer and delivery of WPP Ordinary Shares or WPP ADSs upon
conversion of Debentures, if any, and will list or cause to have quoted such WPP
Ordinary Shares and WPP ADSs on each national securities exchange or in the
over-the-counter market or such other market on which the WPP Ordinary Shares or
WPP ADSs are then listed or quoted.
11A.06 Adjustment of Conversion Price.
The Conversion Price shall be adjusted from time to time in connection with
the occurrence of any of the following events after the Effective Time, without
duplication, as follows:
(a) In case WPP shall pay or make a dividend or other distribution on
WPP Ordinary Shares in WPP Ordinary Shares to all or substantially all
holders of WPP Ordinary Shares, then the Conversion Price in effect at the
opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Conversion Price by a
fraction the numerator of which shall be the number of WPP Ordinary Shares
outstanding
-17-
at the close of business on the date fixed for such determination and the
denominator of which shall be the sum of such number of shares and the
total number of shares constituting such dividend or other distribution,
such reduction to become effective immediately after the opening of
business on the day following the date fixed for such determination. For
the purposes of this subparagraph (a), the number of WPP Ordinary Shares at
any time outstanding shall not include shares held in the treasury of WPP
(except to the extent such dividend or distribution is being made with
respect to such shares) but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of WPP Ordinary Shares.
(b) In case the outstanding WPP Ordinary Shares shall be subdivided
into a greater number of WPP Ordinary Shares, then the Conversion Price in
effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and,
conversely, in case the outstanding WPP Ordinary Shares shall be combined
into a smaller amount of WPP Ordinary Shares, then the Conversion Price in
effect at the opening of business on the day following the day upon which
such combination becomes effective shall be proportionately increased, such
reduction or increase, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(c) In case WPP shall issue to all or substantially all holders of its
WPP Ordinary Shares, rights, warrants or options entitling such holders
(for a period commencing no earlier than the record date described below
and expiring not more than 60 days after such record date) to subscribe for
or purchase WPP Ordinary Shares (or securities convertible into WPP
Ordinary Shares) at a price per share less than the WPP Market Price with
respect to the WPP Ordinary Shares at the record date for the determination
of shareholders entitled to receive such rights, warrants or options (a
"Below Market Issuance"), the Conversion Price in effect immediately prior
thereto shall be adjusted so that the Conversion Price shall equal the
price determined by multiplying the Conversion Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be
the number of WPP Ordinary Shares outstanding on such record date, plus the
number of shares that the aggregate subscription or purchase price for the
total number of WPP Ordinary Shares offered by the rights, warrants or
options so issued (or the aggregate conversion price of the convertible
securities offered by such rights, warrants or options) would purchase at
such WPP Market Price, and the denominator of which shall be the number of
WPP Ordinary Shares outstanding on such record date plus the number of
additional WPP Ordinary Shares offered by such rights, warrants or options
(or into which the convertible securities so offered by such rights,
warrants or options are convertible). Such adjustment shall be made
successively whenever any such rights, warrants or options are issued, and
shall become effective immediately after such record date. If at the end of
the period during which such rights, warrants or options are exercisable
not all rights, warrants or options shall have been exercised, the adjusted
Conversion Price shall be immediately readjusted to what it would have been
upon application of the foregoing adjustment substituting the
-18-
number of additional WPP Ordinary Shares actually issued (or the number of
WPP Ordinary Shares issuable upon conversion of convertible securities
actually issued) for the total number of shares of WPP Ordinary Shares
offered (or the convertible securities offered).
(d) In case WPP shall distribute to all or substantially all holders
of WPP Ordinary Shares (i) WPP's equity securities (other than WPP Ordinary
Shares), (ii) evidences of WPP's indebtedness and/or (iii) other assets
(including securities, but excluding (1) any rights, warrants or options
referred to in clause (c) above, (2) any rights or warrants to acquire any
capital stock of any entity other than WPP, (3) any dividends or
distributions in connection with WPP's liquidation, dissolution or
winding-up, (4) any dividends payable solely in cash that may from time to
time be declared by the WPP Board of Directors and (5) any dividends or
distributions referred to in clause (a) above) (each of (i) , (ii) and
(iii) , an "Asset Distribution"), in which case, the Conversion Price shall
be adjusted so that the adjusted Conversion Price shall equal the number
determined by multiplying the Conversion Price in effect on the record date
with respect to the Asset Distribution by the fraction of "A/B," where "A"
is equal to the Last Reported Sale Price (as defined above) of WPP Ordinary
Shares on such record date minus the fair market value on such record date
(as determined in good faith by WPP Board of Directors, whose determination
shall be conclusive evidence of such fair market value) of the portion of
the Asset Distribution applicable to one share of WPP Ordinary Shares, and
"B" is equal to such Last Reported Sale Price.
(e) In case WPP shall distribute or dividend to all or substantially
all holders of WPP Ordinary Shares, cash (a "Cash Dividend") that when
combined with all other Cash Dividends paid with respect to such calendar
year with respect to which such Cash Dividend is paid exceeds the
applicable Per Share Dividend Threshold (the amount of such excess, the
"Excess Dividend") the Conversion Price shall be reduced so that the
adjusted Conversion Price shall equal the number determined by multiplying
the Conversion Price in effect on the record date with respect to the Cash
Dividend by the fraction of "B/A," where "A" is equal to the Last Reported
Sale Price of WPP Ordinary Shares on such record date, and "B" is equal to
such last reported sale price minus the amount of Excess Dividend
applicable to one WPP Ordinary Share. The "Per Share Dividend Threshold"
shall be equal to the total amount of xxxxx xxxxxxxx per WPP Ordinary Share
actually paid by WPP as a cash dividend per WPP Ordinary Share with respect
to calendar year 2004; and with respect to each subsequent calendar year,
the Per Share Dividend Threshold shall be equal to the Per Share Dividend
Threshold applicable to the prior calendar year multiplied by 1.125;
provided, however, that the Per Share Dividend Threshold shall be
appropriately adjusted from time to time for any stock dividends on or
subdivisions or combinations of or other similar events with respect to WPP
Ordinary Shares. WPP shall provide notice to the Trustee of the total
amount of xxxxx xxxxxxxx per WPP Ordinary Share actually paid by WPP as a
cash dividend per WPP Ordinary Share with respect to calendar year 2004
promptly after payment of WPP's final dividend with respect to calendar
2004. For purposes hereof, the phrase
-19-
"dividends paid with respect to" a calendar year shall mean dividends
specifically paid out of the earnings of such calendar year.
(f) In case a tender or exchange offer (a "Tender Offer") made by WPP
or any subsidiary of WPP for all or any portion of the WPP Ordinary Shares
shall expire and such Tender Offer (as amended as of the expiration
thereof) shall require the payment to holders of WPP Ordinary Shares of
consideration per WPP Ordinary Share having a cash and fair market value
and any other consideration included in such payment per WPP Ordinary Share
(as determined by the WPP Board of Directors, whose determination shall be
conclusive and described in a resolution of the WPP Board of Directors)
that as of the last time (the "Expiration Time") tenders or exchanges may
be made pursuant to such Tender Offer (as it may be amended) exceeds the
first reported sale price per WPP Ordinary Share on the Trading Day next
succeeding the Expiration Time, the Conversion Price shall be decreased so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the Expiration Time by a
fraction,
(i) the numerator of which shall be the number of WPP Ordinary Shares
outstanding (including any tendered or exchanged shares) at the Expiration
Time multiplied by the Last Reported Sale Price of a WPP Ordinary Share on
the Trading Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be the sum of (x) the fair market
value (determined as aforesaid) of the aggregate consideration payable to
holders of WPP Ordinary Shares based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration Time
(the shares deemed so accepted up to any such maximum, being referred to as
the "Purchased Shares") and (y) the product of the number of WPP Ordinary
Shares outstanding (less any Purchased Shares) at the Expiration Time and
the Last Reported Sale Price of a WPP Ordinary Share on the Trading Day
next succeeding the Expiration Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. If WPP is obligated to purchase shares
pursuant to any such Tender Offer, but WPP is permanently prevented by
applicable law from effecting any such purchases or all such purchases are
rescinded, the Conversion Price shall again be adjusted to be the Conversion
Price that would then be in effect if such Tender Offer had not been made.
If an adjustment is required to be made as set forth in Section 11A.06(f)
above, such adjustment shall be calculated based upon the amount by which the
aggregate consideration paid for WPP Ordinary Shares acquired in the Tender
Offer exceeds the value of such shares based on the first reported sale price of
WPP Ordinary Shares on the Trading Day next succeeding the Expiration Time.
11A.07 No Adjustment.
-20-
No adjustment in the Conversion Price shall be required under Section
11A.06 unless the adjustment would require an increase or decrease of at least
1% in the Conversion Price then in effect; provided, however, that any
adjustment which by reason of this Section 11A.07 is not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
With respect to Sections 11A.06(d) and (e) hereof, no adjustment to the
Conversion Price shall be made if WPP provides that Holders of Debentures will
participate in the Asset Distribution or the Cash Dividend, as applicable, on an
as-converted basis without conversion. Furthermore, if the numerator of the
fraction described in Sections 11A.06(d) and (e) hereof is less than 1 United
Kingdom xxxxx (including a negative amount) then in lieu of any adjustment of
the Conversion Price, WPP shall make adequate provision so that each Holder of
Debentures shall have the right to receive upon conversion, in addition to the
cash and WPP ADSs issuable upon such conversion, the distribution or dividend
such Holder would have received had such Holder converted such Debentures
immediately prior to the record date for such distribution or dividend. In the
case where this Indenture provides that a Conversion Price adjustment is
effective upon the record date for a distribution or dividend, if the
distribution or dividend is not so paid or made, the Conversion Price shall
again be adjusted to be the Conversion Price that would then be in effect if
such distribution or dividend had not been declared.
11A.08 Equivalent Adjustments.
If, as a result of an adjustment made pursuant to Section 11A.06 above, the
holder of any Debenture thereafter surrendered for conversion shall become
entitled to receive any shares of capital stock of WPP other than WPP ADSs
representing WPP Ordinary Shares, thereafter the Conversion Price of such other
shares so receivable upon conversion of any Debentures shall be subject to
adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to WPP Ordinary Shares contained in
this Article 11A.
11A.09 Notice of Adjustment.
Whenever the Conversion Price is adjusted pursuant to Section 11A.06, or
Holders become entitled to other securities or due bills, WPP shall promptly
mail to Holders a notice of the adjustment and file with the Trustee an
Officers' Certificate briefly stating the facts requiring the adjustment and the
manner of computing it. The certificate shall be conclusive evidence of the
correctness of such adjustment and the Trustee may conclusively assume that,
unless and until such certificate is received by it, no such adjustment is
required.
11A.10 Notice of Certain Transactions
After the Effective Time, WPP shall give notice to the Holders of record of
the Debentures of the pending occurrence of each Below Market Issuance, Cash
Dividend and Asset Distribution not less than twenty Business Days prior to the
ex-dividend date for such distribution and notice to the Holders of record of
the Debentures of the occurrence of each Change of Control within twenty
Business Days after WPP obtains knowledge of such occurrence of a Change of
Control.
-21-
WPP shall cause any such notice to be filed with the Trustee and the
Conversion Agent and to be mailed to each Holder of Debentures at its address
appearing on the list provided for in Section 2.05, as promptly as possible but
in any event at least ten days prior to the applicable date hereinafter
specified, a notice stating (x) the date on which a record of the holders of WPP
ADSs is to be taken for the purpose of such transaction, or, if a record is not
to be taken, the date as of which the holders of WPP ADSs are to be determined,
or (y) the date on which such transaction is expected to become effective or
occur, and the date as of which it is expected that holders of WPP ADSs of
record shall be entitled to exchange their WPP ADSs for securities or other
property deliverable upon such transaction. Notwithstanding anything in this
paragraph to the contrary, neither WPP nor the Company shall not be obligated
under this Indenture to provide notice to Holders of a Change of Control, other
than as set forth in the preceding paragraph.
11A.11 Effect of Reclassification, Consolidation, Merger, Share Exchange or Sale
on Conversion Privilege.
If any of the following shall occur after the Effective Time, namely (i)
any reclassification or change of outstanding WPP Ordinary Shares (other than a
change in par value, or from par value to no par value, or from no par value to
par value, or as a result of a subdivision or combination); (ii) any
consolidation, combination, merger, scheme of arrangement or share exchange to
which WPP is a party other than a merger or scheme of arrangement in which WPP
is the continuing corporation and that does not result in any reclassification
of, or change (other than a change in name, or par value, or from par value to
no par value, or from no par value to par value, or as a result of a subdivision
or combination) in, outstanding WPP Ordinary Shares; or (iii) any sale or
conveyance of all or substantially all of the assets of WPP, then WPP, or such
successor or purchasing corporation, as the case may be, and the Company shall,
as a condition precedent to such reclassification, change, consolidation,
combination, merger, scheme of arrangement, share exchange, sale or conveyance,
execute and deliver to the Trustee a supplemental indenture providing that the
Holder of each Debenture then outstanding shall have the right to convert such
Debenture into (a) the Cash Conversion Amount and (b) the kind and amount of
shares of capital stock and other securities and property (including cash)
("Acquiror Securities") receivable upon such reclassification, change,
consolidation, combination, merger, scheme of arrangement, share exchange, sale
or conveyance by a holder of the number of WPP Ordinary Shares deliverable upon
conversion of such Debenture immediately prior to the record date or effective
date, as applicable, of such reclassification, change, consolidation,
combination, merger, scheme of arrangement, share exchange, sale or conveyance.
Such supplemental indenture shall provide for adjustments of the Conversion
Price that shall be as nearly equivalent as may be practicable to the
adjustments of the Conversion Price provided for in this Article 11A. If, in the
case of any such consolidation, combination, merger, scheme of arrangement,
share exchange, sale or conveyance, the stock or other securities and property
(including cash) receivable thereupon by a holder of WPP Ordinary Shares
includes shares of capital stock or other securities and property of a
corporation other than the successor or purchasing corporation, as the case may
be, in such consolidation, combination, merger, scheme of arrangement, share
exchange, sale or conveyance, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the Holders of the Debentures as the Board of
Directors of
-22-
the Company and the Board of Directors of WPP shall reasonably consider
necessary by reason of the foregoing. The provision of this Section 11A.11 shall
similarly apply to successive consolidations, combinations, mergers, schemes of
arrangement, share exchanges, sales or conveyances. Notwithstanding the
foregoing, a distribution by WPP to all or substantially all holders of its WPP
Ordinary Shares for which an adjustment to the Conversion Price or provision for
conversion of the Debentures may be made pursuant to Section 11A.06 shall not be
deemed to be a sale or conveyance of all or substantially all of the assets of
WPP for purposes of this Section 11A.11.
In the event WPP shall execute a supplemental indenture pursuant to this
Section 11A.11, WPP shall promptly file with the Trustee an Opinion of Counsel
stating that such supplemental indenture is authorized or permitted by this
Indenture and an Officers' Certificate briefly stating the reasons therefor, the
kind or amount of shares of stock or securities or property (including cash)
receivable by Holders of the Debentures upon the conversion of their Debentures
after any such reclassification, change, consolidation, combination, merger,
scheme of arrangement, share exchange, sale or conveyance, any adjustment to be
made with respect thereto and that all conditions precedent have been complied
with.
11A.12 Trustee's Disclaimer.
The Trustee has no duty to determine when an adjustment under this Article
11A should be made, how it should be made or what such adjustment should be
made, but may accept as conclusive evidence of the correctness of any such
adjustment, and shall be protected in relying upon, the Officers' Certificate
with respect thereto which WPP is obligated to file with the Trustee pursuant to
Section 11A.09. The Trustee shall not be accountable for and makes no
representation as to the validity or value of any securities or assets issued
upon conversion of Debentures, and the Trustee shall not be responsible for
WPP's failure to comply with any provisions of this Article 11A. Each Conversion
Agent (other than WPP or an Affiliate of WPP) shall have the same protection
under this Section 11A.12 as the Trustee.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 11A.11, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which WPP is obligated to file with the Trustee
pursuant to Section 11A.11.
11A.13 Voluntary Reduction.
WPP may, from time to time after the Effective Time, to the extent
permitted by law and The Nasdaq Stock Market Marketplace Rules, reduce the
Conversion Price by any amount for any period of at least 20 Business Days, in
which case WPP shall give at least fifteen (15) days' notice of such reduction.
In particular, WPP may, at its option after the Effective Time, make such
reduction in the Conversion Price, in addition to those set forth in Section
11A.06, as it deems advisable to avoid or diminish any income tax to holders of
WPP Ordinary Shares resulting from any dividend or distribution of stock (or
rights to acquire stock) or from any event treated as such for tax purposes or
for any other reasons.
-23-
11A.14 Simultaneous Adjustments.
In the event that this Article 11A requires adjustments to the Conversion
Price under more than one of the subsections of Section 11A.06, and the record
dates for the distributions giving rise to such adjustments shall occur on the
same date, or if more than one event requiring adjustment pursuant to Section
11A.06 shall occur before completing the determination for the Conversion Price
for the first event requiring such adjustment, then in each case, such
adjustments shall be made in such order as determined by the WPP Board of
Directors (whose determination shall, if made in good faith, be conclusive) as
shall preserve for Holders the Conversion Price protection provided in Section
11A.06.
11A.15 Effectiveness; Cross References.
Following the Effective Time, all references to Article 11 or any Section
thereof shall be deemed to be references to this Article 11A and the respective
Sections hereof."
Section 3.03 Amendment to Paragraph 8 of the Debenture. Paragraph 8 of the
Debenture is hereby amended to read in its entirety as follows:
"8. Conversion. Subject to the provisions of Article 11 of the Indenture, a
Holder of a Debenture may convert such Debenture prior to the Effective Time
into shares of Common Stock of the Company if any of the conditions specified in
paragraphs(a) through (e) of Section 11.01 of the Indenture is satisfied, and
subject to the provisions of Article 11A of the Indenture, a Holder of a
Debenture may convert such Debenture from and after the Effective Time into the
Cash Conversion Amount in cash and WPP ADSs representing a number of WPP
Ordinary Shares equal to the Stock Conversion Amount divided by the Conversion
Price; provided, however, that if such Debenture is called for redemption, the
conversion right will terminate on the second Business Day immediately preceding
the Redemption Date of such Debenture (unless the Company shall default in
making the redemption payment when due, in which case the conversion right shall
terminate at the close of business on the date such Default is cured and such
Debenture is redeemed). The initial conversion price prior to the Effective Time
is $961.20 per share of Common Stock, and the initial conversion price from and
after the Effective Time is $8.84 per WPP Ordinary Share, subject to adjustment
under certain circumstances as described in the Indenture (the "Conversion
Price"). The number of shares of Common Stock issuable upon conversion of a
Debenture prior to the Effective Time is determined by dividing the principal
amount of Debentures converted by the Conversion Price in effect on the
conversion date. The number of WPP Ordinary Shares represented by WPP ADSs
issuable upon conversion of a Debenture from and after the Effective Time is
determined by dividing (a) the Stock Conversion Amount by (b) the Conversion
Price in effect on the conversion date. In the event of a conversion of a
Debenture prior to the Effective Time, the Company has the option, in lieu of
delivering shares of Common Stock, to pay the Holder surrendering such Debenture
an amount of cash determined in accordance with Section 11.02 of the Indenture.
Upon conversion, no adjustment for interest (including Contingent Interest and
Additional Amounts, if any), or dividends will be made. No fractional shares
will be issued upon conversion; in lieu thereof, an amount will be paid in cash
based upon (i) if conversion occurs prior to the Effective Time, the current
Market Price (as defined in the Indenture) of the Common Stock on the last
trading day
-24-
prior to the date of conversion and (ii) if conversion occurs from and after the
Effective Time, the current WPP Market Price (as defined in the Indenture) of
WPP ADSs on the last trading day prior to the date of conversion.
To convert a Debenture, a Holder must (a) complete and sign the irrevocable
conversion notice set forth below (copies of which may also be obtained from the
Conversion Agent) and deliver such notice to the Conversion Agent, (b) surrender
the Debentures by delivering them to the Conversion Agent, at the office or
agency maintained for such purpose in the Borough of Manhattan, The City of New
York, (c) furnish appropriate endorsements and transfer documents if required by
the Registrar or the Conversion Agent, (d) pay any transfer or similar tax, if
required and (e) if the Debenture is held in book-entry form, complete and
deliver to the Depositary appropriate instructions pursuant to the Depositary's
book-entry conversion programs. Upon satisfaction of such requirements, the
Conversion Agent shall, on behalf of such Holder, immediately convert such
Debentures into, prior to the Effective Time, Common Stock (unless the Company
has elected to pay cash in lieu of delivering shares of Common Stock) and, from
and after the Effective Time, the Cash Conversion Amount and WPP ADSs
representing the number of WPP Ordinary Shares described above. If a Holder
surrenders a Debenture for conversion between the record date for the payment of
an installment of interest and the related Interest Payment Date, the Debenture
must be accompanied by payment of an amount equal to the interest (including
Contingent Interest and Additional Amounts, if any), payable on such Interest
Payment Date on the principal amount of the Debenture or portion thereof then
converted; provided, however, that no such payment shall be required if such
Debenture has been called for redemption on a Redemption Date within the period
between and including such record date and such Interest Payment Date, or if
such Debenture is surrendered for conversion on the Interest Payment Date. A
Holder may convert a portion of a Debenture equal to $1,000 or any integral
multiple thereof.
A Debenture in respect of which a Holder has delivered a Holder Change of
Control Acceptance Notice exercising the option of such Holder to require the
Company to repurchase such Debenture as provided in Section 3.11 or a Purchase
Acceptance Notice exercising the option of such Holder to require the Company to
repurchase such Debenture as provided in Section 3.16 of the Indenture may be
converted only if such notice of exercise is withdrawn in accordance with the
terms of the Indenture."
-25-
ARTICLE 4
MISCELLANEOUS
Section 4.01 Binding Agreement; Assignments. Whenever in this Second
Supplemental Indenture any of the parties hereto is referred to, such reference
shall be deemed to include the successors and assigns of such party.
Section 4.02 Effectiveness; Relation to Indenture. The provisions of this
Second Supplemental Indenture shall become effective as of the date hereof. This
Second Supplemental Indenture and all the terms and provisions herein contained
shall form a part of the Indenture as fully and with the same effect as if all
such terms and provisions had been originally set forth in the Indenture. The
Indenture is hereby ratified and confirmed and shall remain and continue in full
force and effect in accordance with its terms and provisions, as supplemented
and amended by this Second Supplemental Indenture. The Indenture and this Second
Supplemental Indenture shall be read, taken and construed together as one
instrument.
Section 4.03 Counterparts. This Second Supplemental Indenture may be
executed in several counterparts, each of which shall be deemed an original, but
all of which together shall constitute one instrument.
Section 4.04 Governing Law. This Second Supplemental Indenture shall be
governed by and construed in advance with the law of the State of New York.
Section 4.05 Trustee. The recitals contained herein shall be taken as the
statements of Abbey, WPP and Grey, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Second Supplemental Indenture.
-26-
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed as of the day and year first above written.
GREY GLOBAL GROUP INC.
By:
-------------------------------------
Name:
Title:
ABBEY MERGER CORPORATION
By:
-----------------------------------
Name:
Title:
WPP GROUP PLC
By:
-----------------------------------
Name:
Title:
AMERICAN STOCK TRANFER & TRUST COMPANY,
as Trustee
By:
-----------------------------------
Name:
Title:
-27-
Annex B
--------------------------------------------------------------------------------
| | | |
| Consenting Holder's Name | Name of Nominees Holding | Amount of Debentures |
| and Address | Debentures | Aggregate Principal |
--------------------------------------------------------------------------------
| | | |
| | | |
| | | |
--------------------------------------------------------------------------------
Annex C
Press Release
