Exhibit 4
AMENDMENT TO
THE AGREEMENT AND PLAN OF MERGER
AND TO THE STOCK OPTION AGREEMENT
---------------------------------
THIS AMENDMENT TO THE AGREEMENT AND PLAN OF MERGER AND TO THE STOCK
OPTION AGREEMENT (THIS "AMENDMENT"), DATED AS OF APRIL 3, 2000, BY AND BETWEEN
THE INTERPUBLIC GROUP OF COMPANIES, INC., A DELAWARE CORPORATION ("PARENT") AND
NFO WORLDWIDE, INC., A DELAWARE CORPORATION (THE "COMPANY").
W I T N E S S E T H:
WHEREAS, Parent and the Company are parties to that certain Agreement
and Plan of Merger (the "Merger Agreement") and to that certain Stock Option
Agreement (the "Option Agreement"), each dated as of December 20, 1999; and
WHEREAS, pursuant to Section 8.6 of the Merger Agreement and pursuant
to the Stock Option Agreement, the parties hereto wish to amend the Merger
Agreement and the Stock Option Agreement as provided herein;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND THE
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS HEREIN CONTAINED, THE
PARTIES HERETO HEREBY AGREE AS FOLLOWS:
SECTION 1.1. DEFINITIONS. CAPITALIZED TERMS USED BUT NOT DEFINED HEREIN
SHALL THE MEANINGS SET FORTH IN THE MERGER AGREEMENT.
SECTION 2.1. THE PREAMBLE TO THE MERGER AGREEMENT SHALL BE AMENDED AND
RESTATED IN ITS ENTIRETY, AND SHALL BE REPLACED WITH THE FOLLOWING:
"AGREEMENT AND PLAN OF MERGER, dated as of December 20, 1999 (as
amended by an Amendment, dated April 3, 2000, this "Agreement"), between The
Interpublic Group of Companies, Inc., a Delaware corporation ("Parent"), and NFO
Worldwide, Inc., a Delaware corporation (the "Company")."
SECTION 2.2. THE THIRD RECITAL TO THE MERGER AGREEMENT SHALL BE AMENDED
AND RESTATED IN ITS ENTIRETY, AND SHALL BE REPLACED WITH THE FOLLOWING:
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"WHEREAS, in order to induce Parent to enter into this Agreement, and
as a condition to its doing so, the Company is simultaneously entering into a
stock option agreement (as amended by an Amendment, dated April 3, 2000, the
"Option Agreement) with Parent, pursuant to which the Company is granting Parent
an option to purchase shares of Company Common Stock (as hereinafter defined)
exercisable under certain circumstances."
SECTION 2.3. SECTION 2.1(C) OF THE MERGER AGREEMENT SHALL BE AMENDED
AND RESTATED IN ITS ENTIRETY, AND SHALL BE REPLACED WITH THE FOLLOWING:
"(c) Conversion of Company Common Stock. Each share of common stock,
par value $.01 per share, of the Company ("Company Common Stock) (including the
associated Rights (as defined in the Company Rights Agreement referred to in
Section 3.2(a)) issued and outstanding immediately prior to the Effective Time
(individually, a "Share" and collectively, the "Shares") (other than Shares to
be cancelled in accordance with Section 2.1(b)), shall be converted into and be
exchangeable for the right to receive a fraction (rounded to the nearest ten
thousandth and rounded up in the case of five one-hundred thousandths) of a
fully paid and non-assessable share of common stock, par value $.10 per share,
of Parent ("Parent Common Stock"), such fraction to be in the ratio provided
below (the "Exchange Ratio"). If the Average Parent Stock Price (as hereinafter
defined) is:
(i) greater than $66.70, the Exchange Ratio shall be fixed at .3898;
(ii) equal to or greater than $47.25 but less than or equal to $66.70,
the Exchange Ratio shall be $26.00 divided by the Average Parent Stock
Price; or
(iii) less than $47.25, the Exchange Ratio shall be fixed at .5503;
provided that if the Average Parent Stock Price is less than $44.88 (the
"Walk-Away Price"), the Company shall have the right to give telephonic notice
to Parent (a "Termination Notice"), followed promptly by written notice, that
the Company elects to terminate this Agreement in accordance with Section
8.3(a)(ii) hereof. Any Termination Notice shall be delivered to Parent no later
than 5:00 p.m. New York City time on the second business day following the last
day of the Measurement Period (as hereinafter defined). If the Company delivers
a timely Termination Notice, Parent shall have the right to give telephonic
notice to the Company (the "Top-Up Intent Notice"), followed promptly by written
notice, that Parent elects to increase the Exchange Ratio to equal $26.00
divided by the Average Parent Stock Price. Any Top-Up Intent Notice shall be
delivered to the Company no later than 5:00 p.m. New York City time on the
fourth business day following the last day of the Measurement Period. As used
herein, the "Average Parent Stock Price" shall mean the average of the per share
closing prices of Parent Common Stock (rounded to the nearest ten thousandth and
rounded up in the case
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of five one-hundred thousandths) on The New York Stock Exchange, Inc. ("NYSE")
(as reported in the New York City Edition of The Wall Street Journal or, if not
reported thereby, another nationally recognized source) during the ten
consecutive trading day period (the "Measurement Period") ending on the sixth
trading day prior to the Effective Time. All shares of Parent Common Stock
issued pursuant to this Section 2.1(c), together with any cash in lieu of
fractional shares of Parent Common Stock to be paid pursuant to Section 2.7, are
referred to herein as the "Merger Consideration".
SECTION 2.3. THE FIRST SENTENCE OF SECTION 8.5(B) OF THE MERGER
AGREEMENT SHALL BE AMENDED AND RESTATED IN ITS ENTIRETY, AND SHALL BE REPLACED
WITH THE FOLLOWING:
"(b) In the event that (i) this Agreement is terminated by the Company
pursuant to Section 8.3(b) or (ii) an Acquisition Proposal shall have been made
to the Company or any of its subsidiaries or any of its stockholders or any
person shall have publicly announced an intention (whether or not conditional)
to make an Acquisition Proposal with respect to the Company or any of its
subsidiaries and thereafter this Agreement is terminated by either Parent or the
Company pursuant to Section 8.2(a), 8.2(b), 8.4(a), 8.4(b)(i) or, in the case of
a willful breach of covenant or agreement by the Company, 8.4(b)(ii) and within
12 months of such termination of this Agreement, any Acquisition Proposal by a
third party is consummated by the Company, then, in the case of (i) or (ii), the
Company shall pay Parent a termination fee of $30,000,000 in same-day funds,
together with interest accrued thereon at a rate equal to the prime rate, as
announced by Citibank, N.A. from time to time, plus 2% during the period
commencing on the date the termination fee is first payable hereunder."
SECTION 2.4. THE PREAMBLE TO THE OPTION AGREEMENT SHALL BE AMENDED AND
RESTATED IN ITS ENTIRETY, AND SHALL BE REPLACED WITH THE FOLLOWING:
"STOCK OPTION AGREEMENT, dated as of December 20, 1999 (as amended by
an Amendment, dated April 3, 2000, this "Agreement"), between The Interpublic
Group of Companies, Inc., a Delaware corporation ("Grantee"), and NFO Worldwide,
Inc., a Delaware corporation ("Issuer")."
SECTION 2.5. THE FIRST RECITAL TO THE OPTION AGREEMENT SHALL BE AMENDED
AND RESTATED IN ITS ENTIRETY, AND SHALL BE REPLACED WITH THE FOLLOWING:
"WHEREAS, concurrently herewith, the parties are entering into the
Agreement and Plan of Merger (as amended by an Amendment, dated April 3, 2000,
the "Merger Agreement");"
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SECTION 2.6. SECTION 2(B)(V) OF THE OPTION AGREEMENT SHALL BE AMENDED
AND RESTATED IN ITS ENTIRETY, AND SHALL BE REPLACED WITH THE FOLLOWING:
"(v) the receipt by the Grantee (pursuant to its request) of the sum of
$30 million in respect of the termination fee under the Merger Agreement."
SECTION 2.7. EACH REFERENCE IN SECTION 22 OF THE OPTION AGREEMENT TO
"$27.5 MILLION" IS HEREBY REPLACED WITH A REFERENCE TO "$32.5 MILLION".
SECTION 3.1.
(A) OTHER THAN AS SET FORTH IN SECTIONS 2.1 THROUGH 2.7, THIS AMENDMENT
DOES NOT MODIFY, CHANGE OR DELETE ANY OTHER ADDENDUM, TERM, PROVISION,
REPRESENTATION, WARRANTY OR COVENANT (THE "PROVISIONS") RELATING TO OR CONTAINED
IN THE MERGER AGREEMENT OR THE OPTION AGREEMENT, AND ALL SUCH PROVISIONS REMAIN
IN FULL FORCE AND EFFECT. FOR THE AVOIDANCE OF DOUBT, ALL REFERENCES IN THE
MERGER AGREEMENT AND THE OPTION AGREEMENT TO "THE DATE HEREOF" OR "THE DATE OF
THIS AGREEMENT" SHALL BE DEEMED TO BE REFERENCES TO THE DATE DECEMBER 20, 1999.
(B) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK (EXCEPT TO THE EXTENT THAT PROVISIONS OF
THE DGCL ARE MANDATORILY APPLICABLE), WITHOUT GIVING EFFECT TO THE CHOICE OF LAW
PROVISIONS THEREOF. THIS AMENDMENT MAY BE EXECUTED IN COUNTERPARTS, ALL OF WHICH
SHALL BE CONSIDERED ONE AND THE SAME AGREEMENT, AND SHALL BECOME EFFECTIVE WHEN
ONE OR MORE COUNTERPARTS HAVE BEEN SIGNED BY EACH OF THE PARTIES AND DELIVERED
TO THE OTHER PARTIES.
(C) THIS AMENDMENT AND ANY OF THE PROVISIONS HEREOF MAY NOT BE AMENDED,
ALTERED OR ADDED TO IN ANY MANNER EXCEPT BY A DOCUMENT IN WRITING AND SIGNED BY
EACH PARTY.
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IN WITNESS WHEREOF, EACH OF THE PARTIES HAS CAUSED THIS AGREEMENT TO BE
DULY EXECUTED ON ITS BEHALF AS OF THE DAY AND YEAR FIRST ABOVE WRITTEN.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: _____________________
Name:
Title:
NFO WORLDWIDE, INC.
By: ________________
Name: Xxxxxxx X. Xxxxxx
Title: Chairman, Chief Executive Officer and
President
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