Exhibit 1.2
EXECUTION COPY
The Interpublic Group of Companies, Inc.
6,500,000 Shares of 5 3/8% Series A Mandatory Convertible Preferred Stock
Underwriting Agreement
New York, New York
December 16, 2003
UBS Securities LLC
Citigroup Global Markets Inc.
X. X. Xxxxxx Securities Inc.
As Representatives of the Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
The Interpublic Group of Companies, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, an aggregate of 6,500,000 shares (the "Firm
Securities") of 5 3/8% Series A Mandatory Convertible Preferred Stock, no par
value, with a liquidation preference of $50.00 per share (the "Preferred Stock")
of the Company. The Company also proposes to grant to the Underwriters an option
to purchase up to 975,000 shares of Preferred Stock to cover over-allotments, if
any (the "Option Securities" and, together with the Firm Securities, the
"Securities"). The terms of the Preferred Stock are set forth in a certificate
of designations (the "Certificate of Designations") duly approved and adopted by
a resolution of the Pricing Committee designated by the Board of Directors on
December 16, 2003. To the extent there are no additional parties listed on
Schedule I other than you, the term Representatives as used herein shall mean
you as the Underwriters, and the terms Representatives and Underwriters shall
mean either the singular or plural as the context requires. The use of the
neuter in this Agreement shall include the feminine and masculine wherever
appropriate. Certain terms used herein are defined in Section 16 hereof.
The Company has prepared and filed with the Commission a registration
statement on Form S-3 (File No. 333-109384), including a base prospectus, for
the registration of certain securities of the Company under the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder
(collectively, the "Act"), and the offering thereof from time to time in
accordance with Rule 415 of the Act (as amended and including the exhibits and
schedules thereto and all documents incorporated by reference therein pursuant
to Item 12 of Form S-3 at the time such registration statement was first
declared effective by the Commission, the "Registration Statement"). From and
after the date and time a registration statement is filed by the Company
pursuant to Rule 462(b) under the Act (the "Rule 462(b) Registration
Statement"), if one is so filed, in connection with the offering of the
Securities, the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The Registration Statement (and each post-effective
amendments thereto that may be required prior to Execution Time) has been
declared effective by the Commission.
In connection with the sale of the Securities, the Company has
prepared, and filed with the Commission pursuant to Rule 424(b) under the Act, a
preliminary prospectus supplement for use by the Underwriters prior to the
Execution Time, which omitted information to be included upon pricing of the
Securities (such preliminary prospectus supplement, together with the base
prospectus included in the Registration Statement and including all documents
incorporated by reference therein pursuant to Item 12 of Form S-3 prior to the
execution of this Agreement, the "Preliminary Prospectus"). The Company agrees
to prepare and promptly file with the Commission a final prospectus supplement
that includes pricing information for the Securities (such final prospectus
supplement, together with the base prospectus included in the Registration
Statement and including all documents incorporated by reference therein pursuant
to Item 12 of Form S-3, in the form first furnished to the Underwriters by the
Company for use in connection with the offering of the Securities, the
"Prospectus").
All references in this Agreement to the Registration Statement, the
Rule 462(b) Registration Statement, the Prospectus or the Preliminary
Prospectus, or any amendments or supplements to any of the foregoing, shall
include any copy thereof filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval System ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" (and all
other references of like import) in the Registration Statement, the Prospectus
or the Preliminary Prospectus shall be deemed to mean and include all such
financial statements and schedules and other information which is or is deemed
to be incorporated by reference in the Registration Statement, the Prospectus or
the Preliminary Prospectus, as the case may be; and all references in this
Agreement to amendments or supplements to the Registration Statement, the
Prospectus or the Preliminary Prospectus shall be deemed to mean and include the
filing of any document under the Exchange Act which is or is deemed to be
incorporated by reference in the Registration Statement, the Prospectus or the
Preliminary Prospectus, as the case may be.
1. Representations and Warranties. The Company represents and warrants
to each Underwriter as set forth below in this Section 1.
(a) The Registration Statement has been declared effective under the
Act; to the best knowledge of the Company, no stop order of the Commission
preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or the effectiveness of the Registration Statement has been
issued and no proceedings for such purpose have been instituted or, to the
Company's knowledge, are contemplated by the Commission; the Registration
Statement complied when it became effective and complies in all material
respects with the requirements of the Act; the Company meets the
requirements for use of Form S-3 under the Act and the conditions for the
use of Form S-3 have been satisfied; the Registration Statement did not
when it became effective, as of the date hereof and as of the Closing Date
(as defined in Section 3), does not and will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the Registration
Statement or the Prospectus made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representatives expressly for use therein;
and the Company has not distributed and will not distribute any offering
material in connection with the offering or sale of the Securities other
than the Registration Statement, a Preliminary Prospectus and the
Prospectus.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in either the Preliminary
Prospectus or the Prospectus complied or will comply when so filed in all
material respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder and (ii) each Preliminary
Prospectus does not contain, and the Prospectus, in the form used by the
Underwriters to confirm sales, does not and, on the Closing Date and on the
Settlement Date (as defined in Section 2), will not (and any amendment or
supplement thereto, at the date thereof, at the Closing Date and, as
applicable, the Settlement Date, will not) contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. Each Preliminary Prospectus and the Prospectus
complied, at the time of filing thereof, complies and will comply, at the
Closing Date and, as applicable, the Settlement Date, in all material
respects with the requirements of the Act. All statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been so described or filed.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own or lease its
property and to conduct its business as described in the Registration
Statement, each Preliminary Prospectus and the Prospectus and is duly
qualified to transact business and is in good standing in each jurisdiction
in which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated or
formed, is validly existing as a corporation, limited liability company or
similar entity in good standing under the laws of the jurisdiction of its
incorporation or formation, has the corporate power and authority to own or
lease its property and to conduct its business as described in the
Registration Statement, each Preliminary Prospectus and the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole; all of the issued shares of capital stock, membership interests or
other equity interests of each subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and non-assessable and are
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except to the extent that the failure to
be so authorized, issued and fully paid and non-assessable and so owned
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and delivered by
the Company.
(f) The Securities have been duly authorized and, when issued and
delivered to and paid for by the Underwriters in accordance with the terms
of this Agreement, will be validly issued, fully paid and non-assessable
and free of statutory and contractual preemptive rights and similar rights
and will conform to the description thereof contained in the Prospectus;
the certificates for the Securities are in due and proper form and the
holders of the Securities and the Common Stock into which the Securities
are convertible will not be subject to personal liability by reason of
being such holders; the Certificate of Designations has been duly approved
and adopted by a resolution of the Board of Directors, which resolution
remains in full force and effect.
(g) The Company's authorized and outstanding capitalization is as set
forth in the Registration Statement and the Prospectus, and the capital
stock of the Company conforms in all material respects to the description
thereof contained in the Registration Statement and the Prospectus; the
outstanding shares of Common Stock have been duly and validly authorized
and issued and are fully paid and non-assessable; the shares of Common
Stock initially issuable upon conversion of the Securities have been duly
and validly authorized and, when issued upon conversion and in accordance
with the terms of the Certificate of Designations, will be validly issued,
fully paid and nonassessable; the Board of Directors of the Company has
duly and validly adopted resolutions reserving such shares of Common Stock
for issuance upon conversion; the holders of the outstanding shares of
capital stock of the Company are not entitled to any preemptive or other
rights to subscribe for the Securities or the shares of Common Stock
issuable upon conversion thereof; and, except as set forth in the
Prospectus, no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership
interests in the Company are outstanding.
(h) Except as set forth in the Registration Statement and the
Prospectus, no person has the right, contractual or otherwise, to cause the
Company to register under the Act any shares of capital stock or other
equity interests of the Company, or to include any such shares or interests
in the Registration Statement or the offering contemplated thereby.
(i) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, and the
consummation of the transactions or actions contemplated by the
Registration Statement and the Prospectus will not contravene (i) any
provision of applicable law, (ii) the Restated Certificate of Incorporation
(as amended by the Certificate of Designations to be filed on December 17,
2003) or By-Laws of the Company, (iii) any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material to the
Company and its subsidiaries, taken as a whole (including, without
limitation, the Credit Agreements, as amended as of the Closing Date), or
(iv) any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary (except, in
the case of clauses (i) and (iii) above, for such contraventions that would
not have a material adverse effect on the Company and its subsidiaries
taken as a whole), and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, and the
consummation of the transactions or actions contemplated by the
Registration Statement and the Prospectus, except such as may be required
by the securities or Blue Sky laws of the various states in connection with
the offer and sale of the Securities or which has already been obtained,
taken or made.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or supplements
thereto filed subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or, to the
knowledge of the Company, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or
any of its subsidiaries is subject that are required to be described in the
Registration Statement, each Preliminary Prospectus or the Prospectus and
that are not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement,
each Preliminary Prospectus or the Prospectus or to be incorporated by
reference as exhibits to either the Registration Statement or the
Prospectus that are not described or incorporated as required; the
statements included or incorporated by reference in the Registration
Statement, each Preliminary Prospectus and the Prospectus relating to the
investigation of the Company by the Commission do not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make such statements, in the light of the circumstances in which they were
made, not misleading.
(l) The Company is not, and after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(m) Neither the Company, nor to the Company's knowledge, any of its
affiliates, directly or indirectly, has taken or may take any action
designed, or which has constituted or might reasonably be expected to cause
or result in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
(n) PricewaterhouseCoopers LLP, who certified the financial statements
and any supporting schedules thereto included or incorporated by reference
in the Registration Statement and the Prospectus, are independent public
accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder. Xxxxxx Xxxxxxxx
LLP, who certified the consolidated financial statements of True North
Communications Inc. for the three years ended December 31, 2000, were, at
the times when such financial statements were prepared and certified and
when the most recent consent with respect to such financial statements was
filed with the Commission, independent public accountants within the
meaning of the Act.
(o) The consolidated financial statements and schedules of the Company
and its consolidated subsidiaries included or incorporated by reference in
the Registration Statement and the Prospectus present fairly the financial
condition, results of operations and cash flows of the Company as of the
dates and for the periods indicated, comply as to form with the applicable
accounting requirements of Regulation S-X and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted
therein); the selected financial data incorporated by reference in the
Registration Statement and the Prospectus fairly present, on the basis
stated therein, the information included therein.
(p) Except as set forth or contemplated in the Prospectus, the Company
and each of its subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that, on a consolidated
basis, (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences; the disclosure controls and procedures (as such term is
defined in Rule 13a-14 and 15d-14 under the Exchange Act) of the Company
and its consolidated subsidiaries provide reasonable assurance that
material information relating to the Company and its consolidated
subsidiaries is made known to the Company's principal executive and
financial officers and, based on an evaluation conducted not earlier than
September 30, 2003, except as set forth in the Registration Statement, each
Preliminary Prospectus and the Prospectus, there are no significant
deficiencies or weaknesses in such internal controls that could adversely
affect the Company's ability to record, process, summarize and report
financial data and other information required to be disclosed in the
reports filed or furnished by the Company pursuant to the Exchange Act.
(q) Except as disclosed in the Prospectus, the Company does not intend
to use any of the proceeds from the sale of the Securities hereunder to
repay any outstanding debt owed to any affiliate of any Underwriter.
(r) Since July 30, 2002, the Company has not, directly or indirectly
(through any subsidiary or otherwise), extended or maintained credit, or
arranged for or renewed an extension of credit, in the form of a personal
loan to any director or officer, except to the extent permitted under
Section 13 of the Exchange Act.
(s) The Company is subject to and in full compliance with the
reporting requirements of Section 13 or Section 15(d) of the Exchange Act.
Any certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale.
(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $48.375 per share of Preferred
Stock, the number of Firm Securities set forth opposite such Underwriter's name
in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, the
Option Securities at the same purchase price as the Underwriters paid for the
Firm Securities, to the settlement date for the Option Securities (the
"Settlement Date"). The option may be exercised only to cover over-allotments in
the sale of the Firm Securities by the Underwriters. The option may be exercised
in whole or in part at any time (but not more than once) not less than three
Business Days prior to the 30th day after the date of the Closing Date upon
written notice by the Representatives to the Company setting forth the number of
Option Securities as to which the Underwriters are exercising the option and the
Settlement Date. Delivery of the Option Securities, and payment therefor, shall
be made as provided in Section 3 hereof. The Settlement Date for the Option
Securities, if any, shall not be more than 30 days after the Closing Date. The
number of Option Securities to be purchased by each Underwriter shall be the
same percentage as such Underwriter is purchasing of the Firm Securities,
subject to such adjustments as the Representatives shall deem advisable.
3. Delivery and Payment. Delivery of and payment for the Firm
Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the second Business Day prior to
the Closing Date) shall be made at 10:00 A.M., New York City time, on December
19, 2003, or at such time on such later date (not more than three Business Days
after the foregoing date) as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to the account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
If the option provided for in Section 2(b) hereof is exercised after
the second Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives on the
date specified by the Representatives (which shall be three Business Days after
exercise of said option), for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to the account specified by
the Company. If settlement for the Option Securities occurs after the Closing
Date, the Company will deliver to the Representatives on the Settlement Date,
and the obligation of the Underwriters to purchase the Option Securities shall
be conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Agreements. The Company agrees with each Underwriter that:
(a) The Company will furnish to each Underwriter and to counsel for
the Underwriters, without charge, during the period referred to in
paragraph (d) below, as many copies of the Prospectus and any amendments
and supplements thereto as it may reasonably request.
(b) The Company will advise the Representatives promptly, confirming
such advice in writing, of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order, suspending the effectiveness
of the Registration Statement and, if the Commission should enter a stop
order suspending the effectiveness of the Registration Statement, the
Company will use its best efforts to obtain the lifting or removal of such
order as soon as possible. If it is necessary for any post-effective
amendment to the Registration Statement to be declared effective before the
Securities may be sold, the Company will endeavor to cause such
post-effective amendment to become effective as soon as possible and the
Company will advise the Representatives promptly and, if requested, will
confirm such advice in writing, when any such post-effective amendment has
become effective.
(c) The Company will file promptly all reports and any definitive
proxy or information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act during the period
referred to in paragraph (d) below.
(d) The Company will not amend or supplement the Registration
Statement or the Prospectus, other than by filing documents under the
Exchange Act that are incorporated by reference therein, without the prior
written consent of the Representatives; provided, however, that, prior to
the completion of the distribution of the Securities by the Underwriters
(as determined by the Underwriters and communicated to the Company), the
Company will not file any document under the Exchange Act that is
incorporated by reference in the Registration Statement or the Prospectus
unless, at a reasonable time prior to such proposed filing, the Company has
furnished the Representatives with a copy of such document for their review
and the Representatives have not reasonably objected to the filing of such
document. The Company will promptly advise the Representatives when any
document filed under the Exchange Act that is incorporated by reference in
the Registration Statement or the Prospectus shall have been filed with the
Commission.
(e) If at any time prior to the completion of the distribution of the
Securities by the Underwriters (as determined by the Representatives), any
event occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if it should be necessary to amend or supplement the Prospectus to comply
with applicable law, the Company promptly (i) will notify the
Representatives of any such event; (ii) subject to the requirements of
paragraph (d) of this Section 4, will prepare an amendment or supplement
that will correct such statement or omission or effect such compliance; and
(iii) will supply any supplemented or amended Prospectus to the several
Underwriters and counsel for the Underwriters without charge in such
quantities as they may reasonably request.
(f) The Company will arrange, if necessary, for the qualification of
the Securities for sale by the Underwriters under the laws of such
jurisdictions as the Underwriters may designate and will maintain such
qualifications in effect so long as required for the sale of the
Securities; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified
or to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Securities, in
any jurisdiction where it is not now so subject. The Company will promptly
advise the Representatives of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose.
(g) The Company will make generally available to its security holders,
and to deliver to the Representatives, an earnings statement of the Company
(which will satisfy the provisions of Section 11(a) of the Act) covering a
period of twelve months beginning after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act) as soon as
is reasonably practicable after the termination of such twelve-month period
but not later than March 16, 2005.
(h) The Company will reserve and keep available at all times, free of
pre-emptive rights, the full number of shares of Common Stock issuable upon
conversion of the Securities.
(i) The Company will cooperate with the Representatives and use its
best efforts to permit the Securities to be eligible for clearance and
settlement through The Depository Trust Company.
(j) The Company will not for a period of 90 days following the
Execution Time, without the prior written consent of UBS Securities LLC,
Citigroup Global Markets Inc. and X.X. Xxxxxx Securities Inc., offer, sell,
contract to sell, pledge or otherwise dispose of, or enter into any
transaction which is designed to, or might reasonably be expected to,
result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the Company or
any Affiliate of the Company or any person in privity with the Company or
any Affiliate of the Company, directly or indirectly of, or file (or
participate in the filing of) a registration statement with the Commission
in respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act and the rules and regulations of the
Commission promulgated thereunder with respect to, any shares of capital
stock of the Company or any securities convertible or exercisable or
exchangeable for such capital stock, or publicly announce an intention to
effect any such transaction; provided, however, that (i) the Company may
issue and sell Common Stock or issue options for the purchase of its Common
Stock, and file related registration statements, pursuant to any employee
stock incentive plan or outside director stock incentive plan, stock
ownership plan or dividend reinvestment plan of the Company in effect at
the Execution Time, (ii) the Company may issue Common Stock issuable upon
the conversion or exchange of securities or the exercise of warrants or
options outstanding at the Execution Time, or hereafter granted under the
Company's stock incentive plans that exist as of the Execution Time, (iii)
the Company may issue and sell the Securities and the Common Stock upon
conversion of the Securities and do other acts contemplated by this
Agreement, (iv) the Company may issue and sell the Common Stock as
contemplated in the Prospectus, (v) the Company may issue Common Stock as
consideration for purchases or acquisitions of other businesses or
entities, provided, however, that any such Common Stock issued as
consideration for any such purchases or acquisitions entered into during
the 90-day period following the Execution Time shall amount in the
aggregate to no more than $15 million; (vi) the Company may issue Common
Stock as part of any deferred payment to be made under and in accordance
with any acquisition-related agreement or any obligation to issue Common
Stock in connection with contractual put or call obligations either
existing at the Execution Time or entered into during the 90-day period
following the Execution Time, provided, however, that Common Stock issued
as obligations for any such deferred payment or obligations entered into
during such 90-day period shall amount in the aggregate, including amounts
paid under clause (v) hereof, to no more than $15 million, (vii) the
Company may pay dividends on the Securities in shares of Common Stock,
(viii) the Company may issue Common Stock in connection with the settlement
of litigation matters ongoing at the Execution Time as agreed to by the
Company and the Representatives on the date hereof, and (ix) the Company
may file registration statements or amendments thereto in respect of the
4.5% Convertible Senior Notes Due 2023 (the "4.5% Notes") of the Company
and shares of Common Stock issuable upon conversion of the 4.5% Notes.
(k) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(l) Between the date hereof and the Closing Date, the Company will not
do or authorize any act or thing that would result in an adjustment of the
conversion rate of the Securities.
(m) The Company will use its best efforts to cause the Securities and
the Common Stock issuable upon conversion thereof to be listed on the New
York Stock Exchange (the "NYSE").
(n) The Company will cause the Certificate of Designations to be filed
with the Commission and the Secretary of State of the State of Delaware in
a timely manner.
(o) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation of the Certificate of Designations
and the issuance of the Securities; (ii) the preparation, printing or
reproduction of the Registration Statement, the Preliminary Prospectus and
the Prospectus and each amendment or supplement thereto; (iii) the printing
(or reproduction) and delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Preliminary
Prospectus and the Prospectus, and all amendments or supplements thereto,
as may, in each case, be reasonably requested for use in connection with
the offering and sale of the Securities; (iv) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original
issuance and sale of the Securities to the Underwriters; (v) the printing
(or reproduction) and delivery of this Agreement, any Blue Sky memorandum,
the closing documents and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the
Securities; (vi) any registration or qualification of the Securities for
offer and sale under the securities or Blue Sky laws of the several states
or foreign laws and any other jurisdictions specified pursuant to Section
4(f) (including filing fees and the reasonable fees and expenses of counsel
for the Underwriters relating to such registration and qualification);
(vii) the listing of the Securities and the underlying Common Stock
issuable upon conversion thereof on the NYSE; (viii) the transportation and
other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the Securities;
(ix) the fees and expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel) for the Company;
(x) any filing for review of the public offering of the Securities by the
NASD, including reasonable legal fees and the filing fees and other
disbursements of counsel to the Underwriters with respect thereto; (xi) the
fees and disbursements of any transfer agent or registrar for the
Securities; and (xii) all other costs and reasonable expenses incident to
the performance by the Company of its obligations hereunder.
(p) The Company will apply the proceeds from the sale of the
Securities in the manner described in the Prospectus.
(q) Prior to the completion of the distribution of the Securities, the
Company will promptly notify the Representatives of any material
development relating to any investigation of the Company conducted by the
Commission, including the discovery of any new or additional information
that in the opinion of the Company may reasonably be expected to affect the
outcome of such investigation.
5. Conditions to the Obligations of the Underwriters. The obligations
of the Underwriters to purchase the Firm Securities and the Option Securities,
as the case may be, shall be subject to the accuracy of the representations and
warranties on the part of the Company contained herein at the Execution Time,
the Closing Date and any Settlement Date to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) The Company shall have requested and caused Xxxxxx, Xxxxxxxx,
Xxxxx & Xxxxxxxx, counsel for the Company, to furnish to the
Representatives its opinion and letter, dated the Closing Date and, as
applicable, the Settlement Date and addressed to the Representatives, to
the effect set forth in Exhibit A-1.
(b) The Company shall have requested and caused Xxxxxxxx X. Xxxxxx,
Esq., the General Counsel of the Company, to furnish to the Representatives
his opinion and letter, dated the Closing Date and, as applicable, the
Settlement Date and addressed to the Representatives, to the effect set
forth in Exhibit A-2.
(c) The Representatives shall have received from Shearman & Sterling
LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and, as applicable, the Settlement Date and addressed to the
Representatives, with respect to certain of the matters referred to in
paragraphs 1, 3, 4, 6 and 7 of Exhibit A-1, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling it to pass upon such matters.
In addition, such counsel shall state that (A) the Registration
Statement, as of the date of this Agreement, and the Prospectus, as of its
date, appear on their faces to have been appropriately responsive in all
material respects to the applicable requirements of the Act and the
applicable rules and regulations of the Commission thereunder; and (B) such
counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants of the Company and representatives of the Underwriters at which
the contents of the Registration Statement and the Prospectus (excluding
the documents incorporated by reference) were discussed and, although such
counsel is not passing upon and does not assume responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the foregoing, no
fact has come to the attention of such counsel that gave such counsel
reason to believe that (i) the Registration Statement, as of the date of
this Agreement, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (ii) the Prospectus, as of its
date and the Closing Date (and, if applicable, the Settlement Date),
contained or contains an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the chief financial officer of the
Company and the treasurer or the controller of the Company, dated the
Closing Date and, as applicable, the Settlement Date, to the effect that
the signers of such certificate have carefully examined the Prospectus, any
amendment or supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date and, as applicable, the Settlement Date, with the
same effect as if made on the Closing Date and, as applicable, the
Settlement Date, and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date and, as
applicable, the Settlement Date; and
(ii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any amendment or supplement
thereto filed subsequent to the date of this Agreement), there has
been no material adverse change in the condition (financial or
otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated by the Prospectus (exclusive of any amendment or
supplement thereto filed subsequent to the date of this Agreement).
(e) The Underwriters shall have received on (i) the date hereof and
(ii) the Closing Date and, as applicable, the Settlement Date, a letter,
dated such date, in form and substance satisfactory to the Underwriters,
from PricewaterhouseCoopers LLC, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in or incorporated by reference
into the Prospectus, and each such letter shall use a "cut-off date" not
earlier than three days prior to the date of such letter.
(f) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Prospectus (exclusive of any amendment or
supplement thereto filed subsequent to the date of this Agreement), there
shall not have been (i) any change in the capital stock, any increase in
long-term debt or any decrease in consolidated net current assets (working
capital) or stockholders' equity, or any decreases in total consolidated
net sales, income from operations or net income, of the Company with
respect to the period subsequent to September 30, 2003 other than as set
forth in the letter referred to in Section 5(e) hereof; or (ii) any change,
or any development involving a prospective change, in or affecting the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus (exclusive of any
amendment or supplement thereto filed subsequent to the date of this
Agreement) the effect of which, in any case referred to in clause (i) or
(ii) above, is, in the sole judgment of the Representatives, so material
and adverse as to make it impractical or inadvisable to market the
Securities as contemplated by the Prospectus (exclusive of any amendment or
supplement thereto filed subsequent to the date of this Agreement).
(g) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(i) The Company shall have caused the Securities and the shares of
Common Stock initially issuable upon conversion of the Securities to be
approved for listing, subject to issuance, on the NYSE.
(j) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit B hereto from
each of the directors and officers of the Company identified in Exhibit C
hereto addressed to the Representatives.
(k) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act at or before 5:30 P.M., New York City time, on
the second full Business Day after the date of this Agreement and any Rule
462(b) Registration Statement required in connection with the offering and
sale of the Securities shall have been filed and become effective no later
than 10:00 p.m., New York City time, on the date of this Agreement.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be cancelled at,
or at any time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 5 will be
delivered at the office of counsel for the Underwriters, Shearman & Sterling
LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, prior to 9 A.M. on the
Closing Date and any Settlement Date.
6. Reimbursement of Expenses. If the sale of the Securities provided
for herein is not consummated because any condition to the obligations of the
Underwriters set forth in Section 5 hereof is not satisfied, because of any
termination pursuant to Section 9(i) hereof or because of any refusal, inability
or failure on the part of the Company to perform any agreement herein or comply
with any provision hereof other than by reason of a default by any of the
Underwriters, the Company will promptly reimburse the Underwriters severally
through UBS Securities LLC for all reasonable out-of-pocket expenses (including
fees and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities.
7. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees, affiliates and agents of
each Underwriter and each person who controls any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act
against any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (i) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or in any amendment thereof, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (ii) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or
is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made in the Registration Statement, any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein; provided
further, that with respect to any untrue statement or omission of material
fact made in any Preliminary Prospectus, the indemnity agreement contained
in this Section 7(a) shall not inure to the benefit of any Underwriter from
whom the person asserting any such loss, claim, damage or liability
purchased the securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the
circumstance where it shall have been determined by a court of competent
jurisdiction by final and nonappealable judgment that (w) the Company had
previously furnished copies of the Prospectus to the Representatives, (x)
delivery of the Prospectus was required by the Act to be made to such
person, (y) the untrue statement or omission of a material fact contained
in the Preliminary Prospectus was corrected in the Prospectus and (z) there
was not sent or given to such person, at or prior to the written
confirmation of the sale of such securities to such person, a copy of the
Prospectus. This indemnity agreement will be in addition to any liability
that the Company may otherwise have.
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers,
and each person who controls the Company within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically for
inclusion in the Registration Statement, each Preliminary Prospectus, the
Prospectus or in any amendment or supplement thereto. This indemnity
agreement will be in addition to any liability that any Underwriter may
otherwise have. The Company acknowledges that the statements set forth in
the last paragraph of the cover page regarding delivery of the Securities,
under the heading "Underwriting" in the fourth paragraph under the table
relating to electronic delivery of prospectus supplements, the first
paragraph under the heading "- Commissions and Discounts" relating to the
selling concession and the paragraphs under the heading "- Price
Stabilization, Short Positions" relating to stabilizing transactions, short
sales, penalty bids and syndicate covering transactions in the Preliminary
Prospectus and the Prospectus, constitute the only information furnished in
writing by or on behalf of the Underwriters for inclusion in the
Registration Statement, each Preliminary Prospectus, the Prospectus or in
any amendment or supplement thereto.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel (including local
counsel) of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate
counsel, other than local counsel if not appointed by the indemnifying
party, retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel (including local counsel) to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party
shall bear the reasonable fees, costs and expenses of such separate counsel
if (i) the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest;
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are
different from or additional to those available to the indemnifying party;
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. If at any time an
indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by
this paragraph, then the indemnifying party agrees that it shall be liable
for any settlement effected without its written consent if (i) such
settlement is entered into more than 60 Business Days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party
shall not have fully reimbursed the indemnified party in accordance with
such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf of
such indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending any loss, claim, damage,
liability or action) (collectively "Losses") to which the Company and one
or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among the Underwriters relating
to the offering of the Securities) be responsible for any amount in excess
of the purchase discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company
and the Underwriters severally shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of the Company on the one hand and of the Underwriters on
the other in connection with the statements or omissions that resulted in
such Losses, as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total
net proceeds from the offering (before deducting expenses) received by it,
and benefits received by the Underwriters shall be deemed to be equal to
the total purchase discounts and commissions in each case set forth on the
cover of the Prospectus. Relative fault shall be determined by reference
to, among other things, whether any untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information provided by the Company on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro
rata allocation or any other method of allocation that does not take
account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person
who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee, Affiliate and agent of
an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act and each officer and director of the
Company shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
8. Default by an Underwriter.
(a) If any one or more Underwriters shall fail to purchase and pay for
any of the Securities agreed to be purchased by such Underwriter hereunder
and such failure to purchase shall constitute a default in the performance
of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Securities set forth
opposite their names in Schedule I hereto bears to the aggregate principal
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the
event that the aggregate principal amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate principal amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
Securities, and if such nondefaulting Underwriters do not purchase all the
Securities, this Agreement will terminate without liability to any
nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 8, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting
Underwriter of its liability, if any, to the Company or any nondefaulting
Underwriter for damages occasioned by its default hereunder.
(b) Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it
will not sell any Firm Securities hereunder unless all of the Firm
Securities are purchased by the Underwriters (or by substituted
Underwriters selected by the Company with the approval of the
Representatives). The term Underwriter as used in this Agreement shall
refer to and include any Underwriter substituted under this Section 8 with
like effect as if such substituted Underwriter had originally been named in
Schedule A.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in any of the Company's securities shall have been suspended by the
Commission or the NYSE or trading in securities generally on the NYSE shall have
been suspended or limited or minimum prices shall have been established on such
exchange; (ii) a banking moratorium shall have been declared by federal,
Delaware or New York State authorities; or (iii) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a
national emergency or war or other calamity or crisis the effect of which on
financial markets is such as to make it, in the sole judgment of the
Representatives, impracticable or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Prospectus (exclusive of any
amendment or supplement thereto filed subsequent to the date of this Agreement).
10. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of the Underwriters or the Company or any of
the indemnified persons referred to in Section 7 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 6 and 7
hereof shall survive the termination or cancellation of this Agreement.
11. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to (i) UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX
00000 Attention: Syndicate Department; (ii) the Citigroup Global Markets Inc.
General Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel,
Citigroup Global Markets Inc. at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel, and (ii) X.X. Xxxxxx Securities Inc., Syndicate Desk
at 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, XX 00000 Attention: Xxxxx X. Xxxxxx
(Fax: (000) 000-0000) or, if sent to the Company, will be mailed, delivered or
telefaxed to facsimile number (000) 000-0000 and confirmed to it at (212)
399-8021, attention of General Counsel, with a copy mailed, delivered or
telefaxed to Xxxxx X. Xxx (fax no. (000) 000-0000) at Xxxxxx, Xxxxxxxx, Xxxxx &
Xxxxxxxx.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
indemnified persons referred to in Section 7 hereof, and no other person will
have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.
15. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
16. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"affiliate" shall have the meaning specified in Rule 501(b) of
Regulation D.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in The City of New York.
"By-Laws" shall mean the by-laws of the Company as amended through
July 31, 2003.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the Company's common stock, par value $0.10
per share.
"Credit Agreements" shall mean the 364-Day Credit Agreement, dated May
16, 2002, among the Company, the initial lenders named therein, and Citibank,
N.A., as Administrative Agent, and the Five-Year Credit Agreement, dated June
27, 2000, among the Company, the initial lenders named therein and Citibank,
N.A., as Administrative Agent, in both cases, as amended or supplemented from
time to time.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Investment Company Act" shall mean the Investment Company Act of
1940, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Restated Certificate of Incorporation" shall mean the restated
certificate of incorporation of the Company as amended through May 29, 2003.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement between
the Company and the several Underwriters.
Very truly yours,
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: /s/ Xxxxxxxx X. Camera
--------------------------
Name: Xxxxxxxx X. Camera
Title: Senior Vice President
General Counsel and Secretary
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
UBS SECURITIES LLC
By: /s/ Xxxxx X. Xxx
----------------------
Name: Xxxxx X. Xxx
Title: Managing Director
By: /s/ Xxxx Xxxxxxxx
----------------------
Name: Xxxx Xxxxxxxx
Title: Executive Directors
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxxx Xxxx
----------------------
Name: Xxxxx Xxxx
Title: Vice President
X.X. XXXXXX SECURITIES INC.
By: /s/ X. Xxxxxx Xxxxxxx
----------------------
Name: X. Xxxxxx Xxxxxxx
Title: Managing Director
For themselves as Representatives
and on behalf of the other several
Underwriters named in Schedule I
to the foregoing Agreement
SCHEDULE I
Underwriters Number of Firm
Securities to be
Purchased
UBS Securities LLC....................................... 1,625,000
Citigroup Global Markets Inc. ........................... 1,625,000
X.X. Xxxxxx Securities Inc............................... 1,625,000
Banc of America Securities LLC........................... 373,750
Barclays Capital Inc..................................... 373,750
HSBC Securities (USA) Inc................................ 373,750
Xxxxxx Xxxxxxx & Co. Incorporated........................ 373,750
ING Financial Markets LLC................................ 65,000
McDonald Investment Inc., A KeyCorp Company.............. 65,000
---------------
Total........................................... 6,500,000
===============
EXHIBIT A-1
[FORM OF OPINION OF XXXXXX, XXXXXXXX, XXXXX & XXXXXXXX]
December 19, 2003
UBS Securities LLC
Citigroup Global Markets Inc.
X. X. Xxxxxx Securities Inc.
As Representatives of the Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as special counsel to The Interpublic Group of
Companies, Inc., a Delaware corporation (the "Company"), in connection with the
Company's offering pursuant to a registration statement on Form S-3 (No.
333-109384) of 6,500,000 shares of its 5 3/8% Series A Mandatory Convertible
Preferred Stock, no par value, with a liquidation preference of $50.00 per share
(the "Securities"), convertible into shares of Common Stock, par value $0.10 per
share. Such registration statement, as amended when it became effective but
excluding the documents incorporated by reference therein, is herein called the
"Registration Statement;" the related prospectus dated November 20, 2003, as
first filed with the Securities and Exchange Commission (the "Commission")
pursuant to Rule 424(b)(2) under the Securities Act of 1933, as amended (the
"Securities Act"), but excluding the documents incorporated by reference
therein, is herein called the "Base Prospectus;" the prospectus supplement dated
December 16, 2003, as first filed with the Commission pursuant to Rule 424(b)(5)
under the Securities Act, but excluding the documents incorporated by reference
therein, is herein called the "Prospectus Supplement;" and the Base Prospectus
and the Prospectus Supplement together are herein called the "Prospectus." This
opinion letter is furnished to you pursuant to Section 5(a) of the underwriting
agreement dated December 16, 2003 (the "Underwriting Agreement") between the
Company and the several underwriters named in Schedule I thereto (the
"Underwriters").
In arriving at the opinions expressed below, we have reviewed the
following documents:
(a) an executed copy of the Underwriting Agreement;
(b) the Registration Statement and the documents incorporated by reference
therein;
(c) the Prospectus and the documents incorporated by reference therein;
(d) a specimen of the Securities as executed by the Company;
(e) the Certificate of Designations, filed with the Secretary of State of the
State of Delaware on December 17, 2003; and
(f) the documents delivered to you by the Company at the closing pursuant to
the Underwriting Agreement, including copies of the Company's Restated
Certificate of Incorporation and By-Laws, each as amended through December
17, 2003 and July 31, 2003, respectively, certified by the Secretary of
State of the State of Delaware and the corporate secretary of the Company,
respectively.
In addition, we have reviewed the originals or copies certified or otherwise
identified to our satisfaction of all such corporate records of the Company and
such other instruments and other certificates of public officials, officers and
representatives of the Company and such other persons, and we have made such
investigations of law, as we have deemed appropriate as a basis for the opinions
expressed below.
In rendering the opinions expressed below, we have assumed the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. In addition, we have
assumed and have not verified (i) the accuracy as to factual matters of each
document we have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Underwriting Agreement) and
(ii) that the Securities conform to the form thereof that we have reviewed.
Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is our opinion that:
1. The Company is validly existing as a corporation in good standing
under the laws of the State of Delaware.
2. The Company has corporate power to issue the Securities, to enter into
the Underwriting Agreement and to perform its obligations thereunder.
3. The Securities have been duly authorized by all necessary corporate
action of the Company, have been validly issued by the Company and are fully
paid and nonassessable; and the holders of outstanding shares of capital stock
of the Company are not entitled to any preemptive rights to subscribe for the
Securities under the Restated Certificate of Incorporation or By-Laws, each as
amended, of the Company or the General Corporation Law of the State of Delaware
(the "DGCL").
4. The holders of outstanding shares of capital stock of the Company are
not entitled to any preemptive rights under the Restated Certificate of
Incorporation or By-Laws, each as amended, of the Company or the DGCL to
subscribe for the shares of Common Stock issuable upon the conversion of the
Securities; and the shares of Common Stock into which the Securities are
convertible at the initial conversion price have been duly authorized by all
necessary corporate action of the Company and reserved for issuance upon
conversion and, upon issuance thereof on conversion of the Securities in
accordance with the terms of the Certificate of Designations will be validly
issued, fully paid and nonassessable.
5. The Certificate of Designations has been duly authorized and adopted
as an amendment to the Company's Restated Certificate of Incorporation and has
been duly filed with the Secretary of State of the State of Delaware and has
become effective as of December 17, 2003.
6. The statements set forth under the headings "Description of the Series
A Mandatory Convertible Preferred Stock" and "Description of Common Stock" in
the Prospectus, insofar as such statements purport to summarize certain
provisions of the Securities, the Certificate of Designations and the Restated
Certificate of Incorporation, as amended, provide a fair summary of such
provisions, and the statements made in the Prospectus under the heading "Certain
U.S. Income Tax Considerations," insofar as such statements purport to summarize
certain federal income tax laws of the United States, constitute a fair summary
of the principal U.S. federal income tax consequences of an investment in the
Securities.
7. The execution and delivery of the Underwriting Agreement have been
duly authorized by all necessary corporate action of the Company, and the
Underwriting Agreement has been duly executed and delivered by the Company.
8. The issuance and sale of the Securities to the Underwriters
pursuant to the Underwriting Agreement do not, and the performance by the
Company of its obligations in the Underwriting Agreement and the Securities will
not, (a) require any consent, approval, authorization, registration or
qualification of or with any federal governmental authority or governmental
authority of the State of Delaware or the State of New York that in our
experience is normally applicable to general business entities in relation to
transactions of the type contemplated by the Underwriting Agreement or the
Securities, except such as have been obtained or effected under the Securities
Act and the Securities Exchange Act of 1934, as amended (but we express no
opinion relating to any state securities or Blue Sky laws), (b) result in a
violation of the Restated Certificate of Incorporation or By-Laws, each as
amended, of the Company, or (c) result in a violation of any United States
federal, Delaware or New York state law or published rule or regulation that in
our experience is normally applicable to general business entities in relation
to transactions of the type contemplated in the Underwriting Agreement (but we
express no opinion relating to the United States federal securities laws or any
state securities or Blue Sky laws).
9. No registration of the Company under the U.S. Investment Company
Act of 1940, as amended, is required for the offer and sale of the Securities by
the Company in the manner contemplated by the Underwriting Agreement and the
Prospectus and the application of the proceeds thereof as described in the
Prospectus.
Insofar as the foregoing opinions relate to the valid existence and
good standing of the Company, they are based solely on a certificate of good
standing received from the Secretary of State of the State of Delaware and on a
telephonic confirmation from such Secretary of State. Insofar as the foregoing
opinions relate to the due filing and effectiveness of the Certificate of
Designations, they are based solely on a certificate of amendment received from
the Secretary of State of the State of Delaware. Insofar as the foregoing
opinions relate to the validity, binding effect or enforceability of any
agreement or obligation of the Company, (a) we have assumed that the Company and
each other party to such agreement or obligation has satisfied those legal
requirements that are applicable to it to the extent necessary to make such
agreement or obligation enforceable against it (except that no such assumption
is made as to the Company regarding matters of the federal law of the United
States of America, the law of the state of New York or the law of the State of
Delaware, that in our experience are normally applicable to general business
entities in relation to the transactions contemplated in the Underwriting
Agreement), and (b) such opinions are subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and to general
principles of equity.
The foregoing opinions are limited to the federal law of the United
States of America, the law of the State of New York and the DGCL.
We are furnishing this opinion letter to you, as Representatives of
the Underwriters, solely for the benefit of the Underwriters in their capacity
as such in connection with the offering of the Securities. This opinion letter
is not to be relied on by or furnished to any other person or used, circulated,
quoted or otherwise referred to for any other purpose. We assume no obligation
to advise you, or to make any investigations, as to any legal developments or
factual matters arising subsequent to the date hereof that might affect the
opinions expressed herein.
Very truly yours,
XXXXXX, XXXXXXXX, XXXXX & XXXXXXXX
By
--------------------------------------------
, a Partner
[FORM OF 10B-5 LETTER OF XXXXXX, XXXXXXXX, XXXXX & XXXXXXXX]
December 19, 2003
UBS Securities LLC
Citigroup Global Markets Inc.
X. X. Xxxxxx Securities Inc.
As Representatives of the Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
We have acted as special counsel to The Interpublic Group of
Companies, Inc., a Delaware corporation (the "Company"), in connection with the
Company's offering pursuant to a registration statement on Form S-3 (No.
333-109384) of 6,500,000 shares of its 5 3/8% Series A Mandatory Convertible
Preferred Stock, no par value, with a liquidation preference of $50.00 per share
(the "Securities"), convertible into shares of Common Stock, par value $0.10 per
share. Such registration statement, as amended when it became effective but
excluding the documents incorporated by reference therein, is herein called the
"Registration Statement;" the related prospectus dated November 20, 2003, as
first filed with the Securities and Exchange Commission (the "Commission")
pursuant to Rule 424(b)(2) under the Securities Act of 1933, as amended (the
"Securities Act"), but excluding the documents incorporated by reference
therein, is herein called the "Base Prospectus;" the prospectus supplement dated
December 16, 2003, as first filed with the Commission pursuant to Rule 424(b)(5)
under the Securities Act, but excluding the documents incorporated by reference
therein, is herein called the "Prospectus Supplement;" and the Base Prospectus
and the Prospectus Supplement, together are herein called the "Prospectus." This
letter is furnished to you pursuant to Section 5(a) of the underwriting
agreement dated December 16, 2003 (the "Underwriting Agreement") between the
Company and the several Underwriters named in Schedule I thereto (the
"Underwriters").
Because the primary purpose of our professional engagement was not to
establish or confirm factual matters or financial, accounting or statistical
information, and because many determinations involved in the preparation of the
Registration Statement and the Prospectus and the documents incorporated by
reference therein are of a wholly or partially non-legal character or relate to
legal matters outside the scope of our opinion letter to you of even date
herewith, we are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or the documents incorporated by
reference therein (except to the extent expressly set forth in numbered
paragraph 6 of our opinion letter to you of even date herewith) and we make no
representation that we have independently verified the accuracy, completeness or
fairness of such statements (except as aforesaid).
However, in the course of our acting as special counsel to the Company
in connection with its preparation of the Registration Statement and the
Prospectus, we participated in conferences and telephone conversations with
representatives of the Company, representatives of the independent public
accountants for the Company, your representatives and representatives of your
counsel, during which conferences and conversations the contents of the
Registration Statement and Prospectus, portions of certain of the documents
incorporated by reference therein and related matters were discussed, and we
reviewed certain corporate records and documents furnished to us by the Company.
Based on our participation in such conferences and conversations and
our review of such records and documents as described above, our understanding
of the U.S. federal securities laws and the experience we have gained in our
practice thereunder, we advise you that:
(a) The Registration Statement (except the financial statements and
schedules and other financial and statistical data included therein, as to
which we express no view), at the time it became effective, and the
Prospectus (except as aforesaid), as of the date thereof, appeared on their
face to be appropriately responsive in all material respects to the
requirements of the Securities Act and the rules and regulations
thereunder. In addition, we do not know of any contracts of other documents
of a character required to be filed as exhibits to the Registration
Statement or required to be described in the Registration Statement or the
Prospectus that are not filed or described as required.
(b) The documents incorporated by reference in the Registration
Statement and the Prospectus (except the financial statements and schedules
and other financial and statistical data included therein, as to which we
express no view), as of the respective dates of their filing with the
Commission, appeared on their face to be appropriately responsive in all
material respects to the requirements of the Securities Exchange Act of
1934, as amended, and the rules and regulations thereunder.
(c) No information has come to our attention that causes us to believe
that the Registration Statement, including the documents incorporated by
reference therein (except the financial statements and schedules and other
financial and statistical data included therein, as to which we express no
view), at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) No information has come to our attention that causes us to believe
that the Prospectus, including the documents incorporated by reference
therein (except the financial statements and schedules and other financial
and statistical data included therein, as to which we express no view), as
of the date thereof or hereof, contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading.
We confirm to you that (based solely upon a telephonic confirmation
from a representative of the Commission) that the Registration Statement is
effective under the Securities Act and, to the best of our knowledge, no stop
order with respect thereto has been issued, and no proceeding for that purpose
has been instituted or threatened by the Commission. To the best of our
knowledge, no order directed to any documents incorporated by reference in the
Registration Statement or the Prospectus has been issued by the Commission and
remains in effect, and no proceeding for that purpose has been instituted or
threatened by the Commission.
We are furnishing this letter to you, as Representatives of the
Underwriters, solely for the benefit of the Underwriters in their capacity as
such in connection with the offering of the Securities. This letter is not to be
relied on by or furnished to any other person or used, circulated, quoted or
otherwise referred to for any other purpose. We assume no obligation to advise
you, or to make any investigations, as to any legal developments or factual
matters arising subsequent to the date hereof that might affect the views
expressed herein.
Very truly yours,
XXXXXX, XXXXXXXX, XXXXX & XXXXXXXX
By
-------------------------------------
, a Partner
--------------
EXHIBIT A-2
[FORM OF OPINION OF XXXXXXXX X. XXXXXX]
December 19, 2003
UBS Securities LLC
Citigroup Global Markets Inc.
X. X. Xxxxxx Securities Inc.
As Representatives of the Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
I, Xxxxxxxx X. Xxxxxx, Senior Vice President, General Counsel and
Secretary of The Interpublic Group of Companies, Inc., a Delaware corporation
(the "Company"), have served as counsel for the Company in connection with the
Company's offering pursuant to a registration statement on Form S-3 (No.
33-109384) of 6,500,000 shares of its 5 3/8% Series A Mandatory Convertible
Preferred Stock, no par value, with a liquidation preference of $50.00 per share
(the "Securities"), convertible into shares of Common Stock, par value $0.10 per
share. Such registration statement, as amended when it became effective but
excluding the documents incorporated by reference therein, is herein called the
"Registration Statement;" the related prospectus dated November 20, 2003, as
first filed with the Securities and Exchange Commission (the "Commission")
pursuant to Rule 424(b)(2) under the Securities Act of 1933, as amended (the
"Securities Act"), but excluding the documents incorporated by reference
therein, is herein called the "Base Prospectus;" the prospectus supplement dated
December 16, 2003, as first filed with the Commission pursuant to Rule 424(b)(5)
under the Securities Act, but excluding the documents incorporated by reference
therein, is herein called the "Prospectus Supplement;" and the Base Prospectus
and the Prospectus Supplement together are herein called the "Prospectus." This
opinion letter is furnished to you pursuant to Section 5(b) of the Underwriting
Agreement dated December 16, 2003 (the "Underwriting Agreement") between the
Company and the several underwriters named in Schedule I thereto (the
"Underwriters").
In arriving at the opinions expressed below, I have reviewed the
following documents:
(a) an executed copy of the Underwriting Agreement;
(b) the Registration Statement and the documents incorporated by
reference therein;
(c) the Prospectus and the documents incorporated by reference therein;
(d) a form of the Securities as executed by the Company;
(e) the Certificate of Designations, filed with the Secretary of State
of the State of Delaware on December 17, 2003; and
(f) the documents delivered to you by the Company at the closing
pursuant to the Underwriting Agreement, including copies of the
Company's Restated Certificate of Incorporation and By-Laws, each
as amended through December 17, 2003 and July 31, 2003,
respectively, certified by the Secretary of State of the State of
Delaware and the corporate secretary of the Company, respectively.
In addition, I have reviewed the originals or copies certified or otherwise
identified to my satisfaction of all such corporate records of the Company and
such other instruments and other certificates of public officials, officers and
representatives of the Company and such other persons, and I have made such
investigations of law, as I have deemed appropriate as a basis for the opinions
expressed below.
In rendering the opinions expressed below, I have assumed the
authenticity of all documents submitted to me as originals and the conformity to
the originals of all documents submitted to me as copies. In addition, I have
assumed and have not verified the accuracy as to factual matters of each
document I have reviewed (including, without limitation, the accuracy of the
representations and warranties of the Company in the Underwriting Agreement).
Based on the foregoing, and subject to the further assumptions and
qualifications set forth below, it is my opinion that:
1. The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own or lease its
property and to conduct its business as described in the Prospectus,
including the documents incorporated by reference, and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
2. Each significant subsidiary, as defined in accordance with Regulation S-X
promulgated under the Securities Act, ("Subsidiary") of the Company has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own or lease its property and to conduct
its business as described in the Prospectus, including the documents
incorporated by reference, and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so incorporated
or qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
3. The authorized capital stock of the Company conforms as to legal matters to
the description thereof contained in the Prospectus.
4. The shares of Common Stock outstanding on the Closing Date have been duly
authorized and are validly issued, fully paid and non-assessable.
5. The Securities have been duly authorized and executed by the Company and,
when executed and delivered to and paid for by the Underwriters in
accordance with the terms of the Underwriting Agreement, will be validly
issued, fully paid and non-assessable and will not be subject to preemptive
or other similar rights of any security holder of the Company.
6. The shares of Common Stock reserved for issuance upon conversion of the
Securities have been duly authorized and reserved and, when issued upon
conversion of the Securities in accordance with the terms of the Securities
and the Underwriting Agreement, will be validly issued, fully paid and
non-assessable and the issuance of the Common Stock in accordance with the
Certificate of Designations will not be subject to any preemptive or
similar rights.
7. The Underwriting Agreement has been duly authorized, executed and delivered
by, and is a valid and binding agreement of, the Company, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally and general principles
of equity and except as rights to indemnification and contribution under
the Underwriting Agreement may be limited under applicable law.
8. The execution and delivery by the Company of, and the performance by the
Company of its obligations under, the Underwriting Agreement, and the
consummation of the transactions or actions contemplated by the Prospectus
will not contravene any provision of applicable law or the Restated
Certificate of Incorporation or By-Laws, each as amended, of the Company
or, to the best of my knowledge, any agreement or other instrument binding
upon the Company or any of its Subsidiaries that is material to the Company
and its subsidiaries, taken as a whole, or, to the best of my knowledge,
any judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any Subsidiary.
9. I do not know of any legal or governmental proceedings pending or
threatened to which the Company or any of its Subsidiaries is a party or to
which any of the properties of the Company or any of its Subsidiaries is
subject other than proceedings fairly summarized in all material respects
in the Prospectus, including the documents incorporated by reference, and
proceedings which I believe are not likely to have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on the
power or ability of the Company to perform its obligations under the
Underwriting Agreement and to consummate the transactions contemplated by
the Prospectus.
Insofar as the foregoing opinions relate to the validity, binding
effect or enforceability of any agreement or obligation of the Company, (a) I
have assumed that each other party to such agreement or obligation has satisfied
those legal requirements that are applicable to it to the extent necessary to
make such agreement or obligation enforceable against it, and (b) such opinions
are subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity.
The foregoing opinions are limited to the federal law of the United
States of America and the law of the State of New York, and, where necessary,
the corporate laws of the State of Delaware.
I am furnishing this opinion letter to you, as Representatives, solely
for the benefit of the Underwriters in connection with the offering of the
Securities. This opinion letter is not to be used, circulated, quoted or
otherwise referred to for any other purpose.
Very truly yours,
Xxxxxxxx X. Xxxxxx
EXHIBIT B
December 16, 2003
UBS Securities LLC
Citigroup Global Markets Inc.
X. X. Xxxxxx Securities Inc.
As Representatives of the Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
This letter is being delivered to you in connection with a proposed
Underwriting Agreement (the "Underwriting Agreement") between The Interpublic
Group of Companies, Inc., a Delaware corporation (the "Company") and each of you
as representatives of a group of Underwriters named therein, whereby the
Underwriters have agreed to purchase up to 7.475 million shares of the Company's
5 3/8% Series A Mandatory Convertible Preferred Stock, no par value, with a
liquidation preference of $50.00 per share (the "Securities"), convertible into
shares of common stock, par value $0.10 per share ("Common Stock"), of the
Company pursuant to the Underwriting Agreement.
In order to induce you and the other Underwriters to purchase the
Securities pursuant to the Underwriting Agreement, the undersigned will not,
without the prior written consent of UBS Securities LLC, Citigroup Global
Markets Inc. and X.X. Xxxxxx Securities Inc., offer, sell, contract to sell,
pledge or otherwise dispose of, or file (or participate in the filing of) a
registration statement with the U.S. Securities and Exchange Commission in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the U.S. Securities and Exchange Commission promulgated thereunder with respect
to, any shares of capital stock of the Company or any securities convertible or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction, for a period of 90 days after the date
of the Underwriting Agreement.
Notwithstanding the foregoing, the undersigned may offer, sell,
contract to sell, pledge or otherwise dispose of (or enter into any transaction
that is designed to result in the disposition of) Common Stock or any securities
which are convertible into, exercisable, or exchangeable for Common Stock (i) as
a bona fide gift, (ii) to any trust, family partnership or similar entity for
the direct or indirect benefit of the undersigned, provided that trust,
partnership or similar entity agrees to be bound by the restrictions set forth
herein or (iii) to effect a cashless exercise of options to purchase Common
Stock that are outstanding on the date of this letter or hereafter granted under
the Company's existing stock incentive plans. The undersigned may also
participate in the filing of any registration statement that the Company is
permitted to file (or participate in the filing of) under Section 4(j) of the
Underwriting Agreement.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Very truly yours,
By:
--------------------------
Name:
Title:
EXHIBIT C
Directors Subject To The Obligation To Deliver
A Lock-Up Letter In The Form Of Exhibit B
Xxxxx Xxxx
Xxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxx
Xxxx X. Xxxxxxxxx
Xxxxxxxxxxx Xxxxxxxx
Xxxx X. Xxxxxx, Xx.
Xxxxxxx X. Xxxxxxxxx
X. Xxxx Xxxxxxxxx
Xxxxxxx X. Xxxx
X. Xxxxxxx Xxxxxx
