Exhibit 4.19
TRUST AGREEMENT
OF
OMNICOM CAPITAL TRUST III
THIS TRUST AGREEMENT is made as of October 4, 2000 (this "Agreement"), by
and between Omnicom Group Inc., a New York corporation, as depositor (the
"Depositor"), and Chase Manhattan Bank USA, National Association, a Delaware
banking corporation, as trustee (the "Trustee"). The Depositor and the Trustee
hereby agree as follows:
1. The trust created hereby shall be known as "Omnicom Capital Trust III"
(the "Trust"), in which name the Trustee or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trust the sum of $10. Such amount shall constitute the initial trust estate. It
is the intention of the parties hereto that the Trust created hereby constitute
a business trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
xx.xx. 3801, et seq. (the "Business Trust Act"), and that this document
constitute the governing instrument of the Trust. The Trustee is hereby
authorized and directed to execute and file a certificate of trust with the
Delaware Secretary of State in such form as the Trustee may approve.
3. The Depositor and the Trustee will enter into an amended and restated
Trust Agreement satisfactory to each such party to provide for the contemplated
operation of the Trust created hereby and the issuance of the preferred
securities and common securities referred to therein. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustee shall not
have any duty or obligation hereunder or with respect of the trust estate,
except as otherwise required by applicable law or as may be necessary to obtain
prior to such execution and delivery any licenses, consents or approvals
required by applicable law or otherwise. Notwithstanding the foregoing, the
Trustee may take all actions deemed proper as are necessary to effect the
transactions contemplated herein.
4. The Depositor is hereby authorized, in its sole discretion, (i) to file
with the Securities and Exchange Commission (the "Commission") and to execute,
in the case of the 1933 Act Registration Statement and 1934 Act Registration
Statement (as herein defined), on behalf of the Trust, (a) a Registration
Statement (the "1933 Act Registration Statement"), including all pre-effective
or post-effective amendments thereto, relating to the registration under the
Securities Act of 1933, as amended (the "1933 Act"), of the preferred securities
of the Trust, (b) any preliminary prospectus or prospectus or supplement thereto
relating to the preferred securities of the Trust required to be filed under the
1933 Act, and (c) if required, a Registration Statement on Form 8-A or other
appropriate form (the "1934 Act Registration Statement"), including all
pre-effective and post-effective amendments thereto, relating to the
registration of the preferred securities of the Trust under the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
or any other exchange (collectively, the "Exchange") and execute on behalf of
the Trust a listing application and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the preferred securities of the Trust to be listed on the
Exchange; (iii) to file and execute on behalf of the Trust such applications,
reports, surety bonds, irrevocable consents, appointments of attorney for
service of process and other papers and documents as shall be necessary or
desirable to register the preferred securities of the Trust under the securities
or "Blue Sky" laws of such jurisdictions as the Depositor, on behalf of the
Trust, may deem necessary or desirable; (iv) to execute, deliver and perform on
behalf of the Trust, an underwriting agreement with the Depositor and the
underwriter or underwriters of the preferred securities of the Trust; (v) to
execute, deliver and perform a depository agreement with the initial clearing
agency, relating to the preferred securities of the Trust; and (vi) to apply for
and obtain a tax identification number for the Trust.
In the event that any filing referred to in this Section 4 is required by
the rules and regulations of the Commission, the Exchange PORTAL or state
securities or Blue Sky laws to be executed on behalf of the Trust by the
Trustee, the Trustee, in its capacity as trustee of the Trust, is hereby
authorized and directed to join in any such filing and to execute on behalf of
the Trust any and all of the foregoing, it being understood that Chase Manhattan
Bank USA, National Association, in its capacity as trustee of the Trust, shall
not be required to join in any such filing or execute on behalf of the Trust any
such document unless required by the rules and regulations of the Commission,
PORTAL, the Exchange or state securities or Blue Sky laws. In connection with
all of the foregoing, the Depositor hereby constitutes and appoints Xxxxx X.
Xxxxxx, Xxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, each of them
as its true and lawful attorney-in-fact and agent, with full power of
substitution and resubsititution for the Depositor or in the Depositor's name,
place and stead, in any and all capacities, to sign any and all amendments
(including all pre-effective and post-effective amendments) to the 1933 Act
Registration Statement and any 1934 Act Registration Statement and to file the
same, with all exhibits thereto, and any other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
respective substitute or substitutes, shall do or cause to be done by virtue
hereof.
5. This Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be one and
thereafter the number of trustees of the Trust shall be such number as shall be
fixed from time to time by a written instrument signed by the Depositor which
may increase or decrease the number of trustees of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
shall either be a natural person who is a resident of the State of Delaware or,
if not a natural person, an entity which has its principal place of business in
the State of Delaware. Subject to the foregoing, the Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. The Depositor hereby agrees to (i) reimburse the Trustee for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustee and any of the
officers, directors, employees and agents of the Trustee (the "Indemnified
Persons") from and against and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the extent that such Expenses arise out of or are
imposed upon or asserted at any time against such Indemnified Persons with
respect to the performance of this Agreement, the creation, operation or
termination of the Trust or the transactions contemplated hereby; provided,
however, that the Depositor shall not be required to indemnify any Indemnified
Person for any Expenses which are a result of the willful misconduct, bad faith
or gross negligence of such Indemnified Person.
8. The Trust may be dissolved and terminated before the issuance of the
preferred securities of the Trust at the election of the Depositor.
9. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware (with regard to conflict of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
OMNICOM GROUP INC. as Depositor
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but solely as trustee
of the Trust
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Vice President
