Exhibit 4.1
FOURTH SUPPLEMENTAL INDENTURE
This FOURTH SUPPLEMENTAL INDENTURE (the "Supplemental Indenture")
dated as of June 30, 2006 among OMNICOM GROUP INC., a New York corporation (the
"Company"), OMNICOM CAPITAL INC., a Connecticut corporation ("OCI"), OMNICOM
FINANCE INC., a Delaware corporation ("OFI" and together with the Company and
OCI, the "Issuers"), and JPMORGAN CHASE BANK, N.A., as trustee under the
indenture referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuers and the Trustee have heretofore executed and
delivered to the Trustee an Indenture dated June 10, 2003, as amended by the
First Supplemental Indenture, dated as of November 5, 2003, the Second
Supplemental Indenture, dated as of November 4, 2004, and the Third Supplemental
Indenture dated as of November 10, 2004 (as so amended, the "Indenture"),
providing for the issuance of an aggregate principal amount of up to
$600,000,000 of Zero Coupon Zero Yield Convertible Notes due 2033 (the
"Securities"), all of which have been issued and $467,496,000 of which are
outstanding on the date hereof;
WHEREAS, the Issuers desire to amend the Indenture to (i) extend the
maturity date of the Securities to July 1, 2038; (ii) extend the contingent cash
interest payment dates through June 15, 2038; (iii) extend the holders' put
rights to include June 15, 2033, 2034, 2035, 2036 and 2037; (iv) extend the
conversion rights associated with the Securities to July 1, 2038; and (v) amend
the comparable yield to 7.34% (the "Amendments");
WHEREAS, it is in the best interests of the Issuers to make such
Amendments;
WHEREAS, Section 9.02(3) of the Indenture provides that the Issuers
and the Trustee may amend or supplement the Indenture and the Securities only
with the consent of affected Securityholders to, among other things, extend the
Stated Maturity Date of any Security;
WHEREAS, Section 9.01(1) of the Indenture provides that the Issuers
and the Trustee may amend or supplement the Indenture and the Securities without
the consent of any Securityholder to make any change that does not materially
adversely affect the rights of any Securityholder;
WHEREAS, as of the date hereof, the Securityholders holding
$427,128,000 aggregate principal amount of Securities consented to the
Amendments (together with any additional Securityholders that consent or are
deemed to consent to the Amendments after the date hereof, the "Consenting
Securityholders");
WHEREAS, the Issuers will issue to each Consenting Securityholder
2038 Notes (as defined herein) to give effect to the Amendments and will cancel
an equal aggregate principal amount of 2033 Notes held by such Consenting
Securityholder (as defined herein);
WHEREAS, an Opinion of Counsel has been delivered to the Trustee
under Section 12.04; and
WHEREAS, pursuant to Sections 9.01, 9.02 and 9.06 of the Indenture,
the Trustee and the Company are authorized to execute and deliver this
Supplemental Indenture;
NOW THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the Issuers and the Trustee mutually covenant and
agree for the equal and ratable benefit of the holders of the Securities as
follows:
1. Definitions. All capitalized terms used but not defined herein shall
have the meanings given to such terms set forth in the Indenture.
2. Amendments. The Indenture be and hereby is amended as follows:
2.1 The second paragraph of the Preamble of the Indenture is hereby
amended and restated in its entirety to read as follows:
"Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's Zero Coupon
Zero Yield Convertible Notes due 2033 and the Company's Zero Coupon Zero Yield
Convertible Notes due 2038 (collectively, the "Securities"):"
2.2 (a) The following definitions in Section 1.01 of the Indenture are
hereby amended as follows:
""Certificated Securities" means Securities that are in the form of the
Securities attached hereto as Exhibits A-2 and A-2-1.
"Global Securities" means Securities that are in the form of the
Securities attached hereto as Exhibits A-1 and A-1-1, and to the extent that
such Securities are required to bear the Legend required by Section 2.06(f),
such Securities will be in the form of a 144A Global Security.
"Institutional Accredited Investor Security" means a Security in the form
of the Security attached hereto as Exhibits A-2 and A-2-1, representing
Securities sold to Institutional Accredited Investors.
"Restricted Security" means a Security required to bear the restrictive
legend set forth in the form of Security set forth in Exhibits X-0, X-0-0, X-0,
and A-2-1 of this Indenture.
"Securities" means the 2033 Notes and the 2038 Notes.""
(b) Section 1.01 of the Indenture is hereby further amended to add the
following definitions in their proper alphabetical location:
""2033 Notes" means any of the Zero Coupon Zero Yield Convertible Notes
due 2033 issued under the Indenture."
"2038 Notes" means any of the Zero Coupon Zero Yield Convertible Notes due
2038 issued under the Indenture.""
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2.3 (a) The first paragraph of Section 2.01 of the Indenture is hereby
amended and restated as follows:
"The Securities and the Trustee's certificate of authentication shall be
substantially in the form of Exhibits X-0, X-0-0, X-0, and A-2-1 which are a
part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage (provided that any
such notation, legend or endorsement required by usage is in a form acceptable
to the Issuers). The Issuers shall provide any such notations, legends or
endorsements to the Trustee in writing. Each Security shall be dated the date of
its authentication."
(b) Section 2.01 of the Indenture is hereby amended and restated as
follows:
"(e) Certificated Securities. Securities that are not issued as interests
in the Global Securities will be issued in certificated substantially in the
form of Exhibits A-2 and A-2-1 attached hereto. The Form of Reverse Side of the
Security in Exhibits A-1 and A-1-1 will be incorporated into Exhibits A-2 and
A-2-1, respectively."
2.4 The penultimate paragraph of Section 2.02 is hereby amended and
restated as follows:
"The Trustee shall authenticate and deliver Securities for original issue
in the aggregate Initial Principal Amount at Maturity of up to $600,000,000 upon
a Company Order without any further action by the Issuers. The aggregate Initial
Principal Amount at Maturity outstanding at any time may not exceed the amount
set forth in the foregoing sentence, except as provided in Section 2.07.
Notwithstanding any other provisions of this Indenture, so long as any 2033
Notes are outstanding, the Issuers and any Securityholder of 2033 Notes may
agree that any such Securityholder of 2033 Notes may consent to exchange all or
any part of such Securityholder's 2033 Notes for an equal aggregate principal
amount of 2038 Notes. In order to effect any such exchange, the Issuers shall,
upon receipt by the Issuers from any such Securityholder of any documents the
Issuers determine are necessary to enable the Issuers to comply with the terms
and conditions of this Indenture, instruct the Trustee to (i) exchange such 2033
Notes for an equal aggregate principal amount of 2038 Notes in accordance with
Sections 2.01, 2.06 and 2.12 of this Indenture and (ii) cancel the corresponding
aggregate principal amount of 2033 Notes so exchanged in accordance with Section
2.10 of this Indenture. In no event shall a Securityholder be permitted to
exchange 2038 Notes for 2033 Notes."
2.5 The first paragraph of Section 3.08(a) of the Indenture hereby amended
and restated as follows:
SECTION 3.08 Purchase of Securities at Option of the Holder.
"(a) General. Subject to paragraph (e) below, if a Holder exercises its
right to require the Issuers to purchase Securities pursuant to paragraph 7 of
the Securities, such Securities shall be purchased by the Issuers or a Purchase
Party, if applicable, pursuant to paragraph 7 of the Securities on June 15,
2006, 2008, 2010, 2013, 2018, 2023 and, in the case of the 2033 Notes, annually
through and including June 15, 2032 and, in the case of the 2038 Notes, annually
through and including June 15, 2037 (if June 15 in the applicable period is not
a Business Day, the next succeeding Business Day, a "Purchase Date"), at a
purchase price equal to the Initial
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Principal Amount at Maturity of the Security for any Purchase Date occurring
prior to June 15, 2023 and (ii) the Initial Principal Amount at Maturity plus
accrued Contingent Additional Principal, if any, as of the relevant Purchase
Date for any Purchase Date occurring on or after June 15, 2023 through June 15,
2032, in the case of the 2033 Notes and, through June 15, 2037, in the case of
the 2038 Notes, (each a "Purchase Price," as applicable), at the option of the
Holder thereof, upon."
2.6 Section 4.07 of the Indenture is hereby amended and restated as
follows:
SECTION 4.07 Calculation of Original Issue Discount.
"The Issuers agree, and each Holder and any beneficial holder of a
Security by its purchase thereof shall be deemed to agree, to treat, for United
States federal income tax purposes, the Securities as debt instruments that are
subject to Section 1.1275-4(b) of the Treasury Regulations. For United States
federal income tax purposes, the Issuers shall accrue interest with respect to
outstanding Securities as original issue discount according to the
"noncontingent bond method," set forth in section 1.1275-4(b) of the Treasury
Regulations, based on a comparable yield of 4.60%, in the case of the 2033 Notes
and 7.34%, in the case of the 2038 Notes compounded semiannually and the
projected payment schedule attached as Exhibit C to this Indenture, in the case
of the 2033 Notes, and Exhibit C-1 to this Indenture, in the case of the 2038
Notes. The Issuers shall file with the Trustee promptly at the end of each
calendar year (i) a written notice specifying the amount of original issue
discount for United States federal income tax purposes (including daily rates
and accrual periods) accrued on outstanding Securities as of the end of such
year and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time, including the amount of any adjustment made under the
noncontingent bond method to account for the amount of any difference between
the amount of an actual payment and the amount of a projected payment.
The Issuers acknowledge and agree, and each Holder and any beneficial
holder of a Security by its purchase thereof shall be deemed to acknowledge and
agree, that (i) the schedule of projected payments is determined on the basis of
an assumption of linear growth of the stock price and the interest schedule set
forth in the Offering Memorandum and are not determined for any purpose other
than for the determination of interest accruals and adjustments thereof in
respect of the Securities for United States federal income tax purposes and (ii)
the comparable yield and the schedule of projected payments do not constitute a
projection or representation regarding the amounts payable on the Securities."
2.7 New EXHIBIT A-1-1 (2038 Notes - Form of Face of Global Security) shall
be added as follows:
"EXHIBIT A-1-1
[FORM OF FACE OF GLOBAL SECURITY]
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FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THIS
SECURITY IS DEEMED TO BE ISSUED WITH AN INDETERMINATE AMOUNT OF ORIGINAL ISSUE
DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE DATE IS [o],
AND THE YIELD TO MATURITY FOR PURPOSES OF ACCRUING ORIGINAL ISSUE DISCOUNT IS
[o]% PER ANNUM. THE HOLDER OF THIS SECURITY MAY OBTAIN THE PROJECTED PAYMENT
SCHEDULE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO: OMNICOM GROUP
INC., 000 XXXXXXX XXXXXX, 0XX XXXXX, XXX XXXX, XXX XXXX 00000, ATTENTION:
GENERAL COUNSEL.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH OMNICOM GROUP INC. (THE
"COMPANY"), OMNICOM CAPITAL INC. ("CAPITAL") OR OMNICOM FINANCE INC. ("FINANCE"
AND TOGETHER WITH THE COMPANY AND CAPITAL, THE "ISSUERS") OR ANY AFFILIATE OF
ANY OF THEM WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY)
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ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) OUTSIDE THE UNITED STATES TO NON-U.S.
PERSONS IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2),(3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (E) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (F)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHTS PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION
DATE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION OF
THE CONDITIONS SPECIFIED IN THE INDENTURE.
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OMNICOM GROUP INC.
Zero Coupon Zero Yield Convertible Note due 2038
No. CUSIP:
Issue Date: __________
Each of OMNICOM GROUP INC., a New York corporation, OMNICOM CAPITAL INC.,
a Connecticut corporation, and OMNICOM FINANCE INC., a Delaware corporation,
jointly and severally, promises to pay to Cede & Co. or registered assigns, the
Initial Principal Amount at Maturity of ______________________________________,
($____________), or if greater, the Principal Amount at Maturity, on July 1,
2038.
This Security shall bear no interest other than Contingent Cash Interest,
if any, and Contingent Additional Principal will accrue as specified on the
other side of this Security. This Security is convertible as specified on the
other side of this Security.
Additional provisions of this Security are set forth on the other side of
this Security.
Dated: _____________ OMNICOM GROUP INC.
By:
----------------------------------
OMNICOM CAPITAL INC.
By:
----------------------------------
OMNICOM FINANCE INC.
By:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
JPMORGAN CHASE BANK, N.A.
as Trustee, certifies that this
is one of the Securities referred
to in the within-mentioned Indenture (as
defined on the other side of this Security).
By
-----------------------------------------
Authorized Officer
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[FORM OF REVERSE SIDE OF ZERO COUPON ZERO YIELD CONVERTIBLE NOTE]
Zero Coupon Zero Yield Convertible Note due 2038
1. Interest.
This Security shall not bear interest, except as specified in this
paragraph or in paragraph 5 hereof. If the Principal Amount at Maturity hereof
or any portion of such Principal Amount at Maturity is not paid when due
(whether upon acceleration pursuant to Section 6.02 of the Indenture, upon the
date set for payment of the Redemption Price pursuant to paragraph 6 hereof,
upon the date set for payment of the Purchase Price or Change in Control
Purchase Price pursuant to paragraph 7 hereof or upon the maturity of this
Security) or if Contingent Cash Interest, if any, due hereon or any portion of
such interest is not paid when due in accordance with paragraph 5 hereof, then
in each such case the overdue amount shall, to the extent permitted by law, bear
interest at the sum of the rate of 1% per annum plus a percentage per annum
equal to the rate of accrual of Contingent Additional Principal, if any,
compounded semiannually, which interest shall accrue from the date such overdue
amount was originally due to the date payment of such amount, including interest
thereon, has been made or duly provided for. All such interest shall be payable
on demand. The accrual of such interest on overdue amounts shall be in lieu of,
and not in addition to, the continued accrual of Contingent Additional
Principal.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, and except as
otherwise provided in the Indenture, the Issuers or the Purchase Party will make
payments in respect of Redemption Prices, Purchase Prices, Change in Control
Purchase Prices and at maturity of this Security to Holders who surrender
Securities to a Paying Agent to collect such payments in respect of the
Securities. In addition, the Issuers will pay Contingent Cash Interest, if any.
The Issuers or the Purchase Party will pay cash amounts in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Issuers or the Purchase Party may make such cash
payments by check payable in such money if the Security is not registered in the
name of Cede & Co. or a nominee thereof. If the Security is registered in the
name of Cede & Co. or a nominee thereof, the Issuers or the Purchase Party may
make such cash payments by wire transfer. Any payment required to be made on any
day that is not a Business Day will be made on the next succeeding Business Day.
3. Paying Agent, Conversion Agent, Registrar and Bid Solicitation Agent.
Initially, JPMorgan Chase Bank, a New York banking corporation (the
"Trustee"), will act as Paying Agent, Conversion Agent, Registrar and Bid
Solicitation Agent. The Issuers may appoint and change any Paying Agent,
Conversion Agent, Registrar or co-registrar or Bid Solicitation Agent without
notice, other than notice to the Trustee, except that the Issuers will maintain
at least one Paying Agent in the State of New York, City of New York, Borough of
Manhattan, which shall initially be an office or agency of the Trustee. The
Issuers or any of their Subsidiaries or any of their Affiliates may act as
Paying Agent, Conversion Agent, Registrar or
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co-registrar. None of the Issuers, any of their Subsidiaries or any of their
Affiliates shall act as Bid Solicitation Agent.
4. Indenture.
The Company initially issued the Securities under an Indenture between the
Company and the Trustee, dated as of June 10, 2003, as amended by the First
Supplemental Indenture, dated as of November 5, 2003, among the Issuers and the
Trustee, and the Second Supplemental Indenture, dated as of November 4, 2004,
among the Issuers and the Trustee, and the Third Supplemental Indenture, dated
as of November 4, 2004 and the Fourth Supplemental Indenture, dated as of the
date hereof; among the Issuers and the Trustee (as so amended, the "Indenture").
The terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as in
effect from time to time (the "TIA"). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the TIA for a statement of those terms.
The Securities are general unsecured and unsubordinated obligations of the
Issuers limited, together with the 2033 Notes, to $600,000,000 aggregate Initial
Principal Amount at Maturity (subject to Section 2.07 of the Indenture). The
Indenture does not limit other indebtedness of the Issuers, secured or
unsecured.
Before June 15, 2023, the Principal Amount at Maturity of a Security will
be equal to the Initial Principal Amount at Maturity of the Security. On or
after June 15, 2023, if the June 15, 2023 Average Conversion Value of a Security
is greater than the Initial Principal Amount at Maturity but less than or equal
to 220% of the Initial Principal Amount at Maturity, then the Principal Amount
at Maturity of a Security will be equal to the June 15, 2023 Average Conversion
Value of the Security; provided that if the June 15, 2023 Average Conversion
Value exceeds 200% of the Initial Principal Amount at Maturity, then the
Principal Amount at Maturity will equal 200% of the Initial Principal Amount at
Maturity. If the June 15, 2023 Average Conversion Value exceeds 220% of the
Initial Principal Amount at Maturity or is less than or equal than the Initial
Principal Amount at Maturity then the Principal Amount at Maturity will equal
the Initial Principal Amount at Maturity.
5. Contingent Cash Interest.
Subject to the record date provisions specified in this paragraph 5, the
Issuers shall pay contingent cash interest ("Contingent Cash Interest") to the
Holder of this Security during any six-month period (each a "Contingent Interest
Period") from June 16 to December 15 or from December 16 to June 15, commencing
on June 16, 2010, if the average of the Zero Coupon Zero Yield Convertible Note
Market Prices for each of the days in the Five-Day Period with respect to such
Contingent Interest Period equals or exceeds 120% of the Initial Principal
Amount at Maturity of this Security.
Contingent Cash Interest, if any, will accrue from the first day of the
applicable six-month period and be payable on June 15 and December 15 of the
relevant six-month period to
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Holders of the Security on the record date, which will be the immediately
preceding June 1 and December 1 of each applicable six-month period.
For any six-month period, the amount of Contingent Cash Interest payable
per $1,000 Initial Principal Amount at Maturity hereof in respect of any
Contingent Interest Period shall equal the amounts set forth below per $1,000
Initial Principal Amount at Maturity for each applicable six-month period.
Semi- Semi-
Payment Date annual Interest Payment Date annual Interest
------------ --------------- ------------ ---------------
December 15, 2010 $5.25 December 15, 2024 $8.75
June 15, 2011 $5.50 June 15, 2025 $9.00
December 15, 2011 $5.50 December 15, 2025 $9.00
June 15, 2012 $5.75 June 15, 2026 $9.25
December 15, 2012 $5.75 December 15, 2026 $9.25
June 15, 2013 $6.00 June 15, 2027 $9.50
December 15, 2013 $6.00 December 5, 2027 $9.50
June 15, 2014 $6.25 June 15, 2028 $9.75
December 15, 2014 $6.25 December 15, 2028 $9.75
June 15, 2015 $6.50 June 15, 2029 $10.00
December 15, 2015 $6.50 December 15, 2029 $10.00
June 15, 2016 $6.75 June 15, 2030 $10.25
December 15, 2016 $6.75 December 15, 2030 $10.25
June 15, 2017 $7.00 June 15, 2031 $10.50
December 15, 2017 $7.00 December 15, 2031 $10.50
June 15, 2018 $7.25 June 15, 2032 $10.75
December 15, 2018 $7.25 December 15, 2032 $10.75
June 15, 2019 $7.50 June 15, 2033 $11.00
December 15, 2019 $7.50 December 15, 2033 $11.00
June 15, 2020 $7.75 June 15, 2034 $11.25
December 15, 2020 $7.75 December 15, 2034 $11.25
June 15, 2021 $8.00 June 15, 2035 $11.50
December 15, 2021 $8.00 December 15, 2035 $11.50
June 15, 2022 $8.25 June 15, 2036 $11.75
December 15, 2022 $8.25 December 15, 2036 $11.75
June 15, 2023 $8.50 June 15, 2037 $12.00
December 15, 2023 $8.50 December 15, 2037 $12.00
June 15, 2024 $8.75 June 15, 2038 $12.25
"Five-Day Period" means, with respect to any Contingent Interest Period,
the five trading days ending on the second trading day immediately preceding the
first day of such Contingent Interest Period.
"Zero Coupon Zero Yield Convertible Note Market Price" means, as of any
date of determination, the average of the secondary market bid quotations per
$1,000 Principal Amount
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at Maturity obtained by the Bid Solicitation Agent for $10 million Principal
Amount at Maturity of Securities at approximately 4:00 p.m., New York City time,
on such determination date from three independent nationally recognized
securities dealers in The City of New York (none of which shall be an Affiliate
of the Issuers) selected by the Issuers; provided, however, if (a) at least
three such bids are not obtained by the Bid Solicitation Agent or (b) in the
Issuers' reasonable judgment, the bid quotations are not indicative of the
secondary market value of the Securities as of such determination date, then the
Zero Coupon Zero Yield Convertible Note Market Price for such determination date
shall equal (i) the Conversion Rate in effect as of such determination date
multiplied by (ii) the average of the Sale Prices of the Common Stock for each
of the five trading days ending on such determination date, appropriately
adjusted to take into account the occurrence, during the period commencing on
the first of such trading days during such five trading day period and ending on
such determination date, of any event described in Section 10.06, 10.07 or 10.08
(subject to the conditions set forth in Sections 10.09 and 10.10) of the
Indenture.
The Issuers will determine every six months, commencing June 15, 2010,
whether the conditions to the payment of Contingent Cash Interest have been
satisfied and, if so, the Issuers shall promptly notify the Holders of this
Security of such determination and shall use their reasonable best efforts to
post this information on their web site or, at their option, otherwise publicly
disclose this information.
6. Redemption at the Option of the Issuers.
No sinking fund is provided for the Securities. The Issuers cannot redeem
the Securities before June 15, 2010, except upon a Change in Control as
described in paragraph 7 hereof. On or after June 15, 2010, and before June 15,
2023 the Issuers may, at its option, redeem the Securities for cash at any time
in whole or from time to time in part at the Initial Principal Amount at
Maturity of the Securities.
On or after June 15, 2023, the Issuers may redeem the Securities at any
time in whole or in part at the Initial Principal Amount at Maturity plus
accrued Contingent Additional Principal, if any. The price to be paid for any
such redemption is referred to as the "Redemption Price." The Securities will be
redeemable in integral multiples of $1,000 of Principal Amount at Maturity.
In addition to the Redemption Price payable with respect to all Securities
or portions thereof to be redeemed as of a Redemption Date, the Holders of such
Securities (or portions thereof) shall be entitled to receive accrued and unpaid
Contingent Cash Interest, if any, with respect thereto, which Contingent Cash
Interest shall be paid in cash on the Redemption Date.
7. Purchase by the Issuers at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the Issuers shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Purchase Dates and at the following Purchase
Prices per $1,000 Initial Principal Amount at Maturity, upon delivery of a
Purchase Notice containing the information set forth in the Indenture, at any
time from the opening of business on the date that is 20 Business Days prior to
-11-
such Purchase Date until the close of business on the Purchase Date and upon
delivery of the Securities to the Paying Agent by the Holder as set forth in the
Indenture.
Purchase Date Purchase Price
------------- --------------
June 15, 2006, 2010, Initial Principal Amount at Maturity
2013, and 2018 of the Security
June 15, 2023 through Initial Principal Amount at Maturity
June 15, 2037 of the Security plus accrued
Contingent Additional Principal,
if any
The Purchase Price shall be paid in cash and shall be paid by a Purchase
Party if so designated by the Issuers, in accordance with the terms of the
Indenture.
At the option of the Holder and subject to the terms and conditions of the
Indenture, the Issuers shall become obligated to purchase the Securities held by
such Holder 35 Business Days after the occurrence of a Change in Control of the
Issuers occurring on or prior to June 15, 2010 for a Change in Control Purchase
Price equal to $1,000 per Security, which Change in Control Purchase Price shall
be paid in cash.
If at least 90% in aggregate Principal Amount at Maturity of the
Securities outstanding immediately prior to the Change in Control are purchased
on the Change in Control Purchase Date, the Issuers may, within 90 days
following the Change in Control Purchase Date, at their option, redeem for cash
all of the remaining Securities at a Redemption Price per Security equal to the
Initial Principal Amount at Maturity of such Security.
In addition to the Purchase Price or Change in Control Purchase Price, as
the case may be, payable with respect to all Securities or portions thereof to
be purchased as of the Purchase Date or the Change in Control Purchase Date, as
the case may be, the Holders of such Securities (or portions thereof) shall be
entitled to receive accrued and unpaid Contingent Cash Interest, if any, with
respect thereto, which Contingent Cash Interest shall be paid in cash promptly
following the later of the Purchase Date or the Change in Control Purchase Date,
as the case may be and the time of delivery of such Securities to the Paying
Agent pursuant to the Indenture.
Holders have the right to withdraw any Purchase Notice or Change in
Control Purchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture) sufficient to
pay the Purchase Price or Change in Control Purchase Price, as the case may be,
of, together with any accrued and unpaid Contingent Cash Interest with respect
to, all Securities or portions thereof to be purchased as of the Purchase Date
or the Change in Control Purchase Date, as the case may be, is deposited with
the Paying Agent on or prior to the Business Day following the Change in Control
Purchase Date or the Payment Date, as the case may be, Contingent Additional
Principal and Contingent Cash Interest, if any, shall cease to accrue on such
Securities (or portions thereof) in favor of the Holder surrendering the
Securities for purchase immediately after such Purchase Date or Change
-12-
in Control Purchase Date, as the case may be, and the Holder surrendering such
Securities for purchase shall have no other rights as such (other than the right
to receive the Purchase Price or Change in Control Purchase Price, as the case
may be, and accrued and unpaid Contingent Cash Interest, if any, upon surrender
of such Security).
In certain circumstances, as provided in the Indenture, when a Holder
surrenders Securities for purchase, the Purchase Agent may first offer such
Securities to a financial institution chosen by the Issuers who will have the
option, but not the obligation, (unless separately agreed to by it and the
Issuers at the time) to purchase such Securities at the applicable Purchase
Price).
8. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Securities to be redeemed at
the Holder's registered address. If money sufficient to pay the Redemption Price
of, and accrued and unpaid Contingent Cash Interest, if any, with respect to,
all Securities (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent prior to or on the Redemption Date, immediately
after such Redemption Date, Contingent Additional Principal and Contingent Cash
Interest, if any, shall cease to accrue on such Securities or portions thereof.
Securities in denominations larger than $1,000 Initial Principal Amount at
Maturity may be redeemed in part but only in an Initial Principal Amount at
Maturity of at least $1,000 or in integral multiples thereof.
9. Conversion.
Holders may surrender Securities for conversion only if at least one of
the conditions described in (a) through (d) below is satisfied. In addition, a
Security for which a Holder has delivered a Purchase Notice or a Change in
Control Purchase Notice requiring the Issuers to purchase the Security may be
surrendered for conversion only if such notice is withdrawn in accordance with
the Indenture.
The initial Conversion Rate is 9.7087 shares per $1,000 Initial Principal
Amount at Maturity of a Security, subject to adjustment upon the occurrence of
certain events described in the Indenture. A Holder otherwise entitled to a
fractional share will receive cash in an amount equal to the value of such
fractional share based on the Sale Price on the trading day immediately
preceding the Conversion Date.
The ability to surrender Securities for conversion will expire at the
close of business on July 1, 2038.
(a) Before June 15, 2023, Holders may surrender a Security for conversion
at the then-applicable conversion price during any calendar quarter, commencing
after June 30, 2003 if the average Conversion Values of the Security for each of
the last 20 trading days in the preceding calendar quarter is greater than or
equal to a specified percentage of the Initial Principal Amount at Maturity;
initially 125% for the quarter ending September 30, 2003, and increasing 5% per
quarter for each quarter thereafter up to a maximum of 220% of the Initial
Principal Amount at Maturity of the Security for the quarter ending June 30,
2008. Thereafter,
-13-
this percentage shall remain at 220%. If the foregoing condition is satisfied at
any time after June 15, 2004 and before June 15, 2023, then the Securities will
become and remain convertible at any time thereafter at the option of the
Holder, through maturity. On or after June 15, 2023, Holders may surrender a
Security for conversion during any calendar quarter if the average of the
Conversion Values of the Security for each of the last 20 trading days in the
preceding calendar quarter is greater than or equal to 110% of the Principal
Amount at Maturity of the Security. If the foregoing condition is satisfied,
then the Securities will become and remain convertible at any time thereafter at
the option of the Holder, through maturity.
(b) Holders may also surrender a Security for conversion at the
then-applicable conversion price at any time after the credit rating assigned to
the Securities is reduced to Ba1 or lower by Xxxxx'x Investors Service, Inc. or
BBB- or lower by Standard & Poor's Ratings Services, even if the credit rating
assigned has subsequently been changed to a higher rating.
(c) A Holder may surrender for conversion at the then-applicable
conversion price a Security with respect to which the Issuers have mailed a
Redemption Notice at any time prior to the close of business on the second
Business Day prior to the Redemption Date, even if it is not otherwise
convertible at that time.
(d) If the Company elects to
o distribute to all Holders of Common Stock certain rights
entitling them to purchase, for a period expiring within 60
days, Common Stock at less than the Sale Price at the time, or
o distribute to all Holders of Common Stock assets, debt
securities or certain rights to purchase securities of the
Company, which distribution has a per share value as
determined by the Company's Board of Directors exceeding 15%
of the closing price of the Common Stock on the day preceding
the declaration date for such distribution,
the Company must notify the Holders of Securities at least 20 days prior
to the Ex-Dividend Date for such distribution. Once the Company has given such
notice, Holders may surrender their Securities for conversion at the
then-applicable conversion price at any time thereafter until the earlier of the
close of business on the Business Day prior to the Ex-Dividend Date or the
Company's announcement that such distribution will not take place.
Contingent Cash Interest will not be paid on Securities that are
converted; provided, however that Holders of Securities surrendered for
conversion during the period after the applicable record date and prior to the
next succeeding interest payment date, shall be entitled to receive such
Contingent Cash Interest on the date on which such Contingent Cash Interest is
payable. Except Securities with respect to which the Issuers have mailed a
Notice of Redemption, Securities surrendered for conversion during such periods
must be accompanied by payment of an amount equal to the Contingent Cash
Interest with respect thereto that the registered Holder is to receive.
The Conversion Rate will not be adjusted for accrued Contingent Additional
Principal, if any, or Contingent Cash Interest, if any. As soon as practicable
following the Conversion Date,
-14-
the Issuers will deliver through the Conversion Agent, the Cash Amount, together
with cash or a certificate for the number of full shares of Common Stock into
which the Premium of any Security is converted and any cash payment for
fractional shares. Delivery to the Holder of the Cash Amount, together with such
cash or shares of Common Stock deliverable in connection with the Premium, will
be deemed to satisfy the Issuers' obligation to pay the Principal Amount at
Maturity of and any accrued Contingent Additional Principal on the Security.
Subject to the provisions of this paragraph 9 and notwithstanding the fact
that any other condition to conversion has not been satisfied, in the event the
Company is a party to a consolidation, merger or binding share exchange pursuant
to which the Common Stock would be converted into cash, securities or other
property as set forth in Section 10.14 of the Indenture, the Securities may be
surrendered for conversion at any time from and after the date which is 15 days
prior to the date the Company announces the anticipated effective time until 15
days after the actual effective date of such transaction, and at the effective
time of such transaction the right to convert a Security into Common Stock will
be deemed to have changed into a right to convert it into the kind and amount of
cash, securities or other property which the Holder would have received if the
Holder had converted its Security immediately prior to the transaction. If the
transaction also constitutes a Change in Control, the Holder will be able to
require the Company to purchase all or a portion of its Securities as described
under paragraph 7 herein.
To convert a Security, a Holder must (1) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Conversion Agent, (2) surrender the
Security to the Conversion Agent, (3) furnish appropriate endorsements and
transfer documents if required by the Conversion Agent, the Issuers or the
Trustee and (4) pay any transfer or similar tax, if required. The "Conversion
Date" as used herein refers to the date on which all of the foregoing
requirements have been satisfied.
A Holder may convert a portion of a Security if the Initial Principal
Amount at Maturity of such portion is $1,000 or an integral multiple of $1,000.
No payment or adjustment will be made for dividends on the Common Stock except
as provided in the Indenture. On conversion of a Security, that portion of
accrued Contingent Additional Principal attributable to the period from the
Issue Date through the Conversion Date and (except as provided above) accrued
Contingent Cash Interest with respect to the converted Security shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the Holder thereof through the delivery of the Cash Amount together with
cash or Common Stock in respect of the Premium, in exchange for the Security
being converted pursuant to the terms hereof; and the fair market value of such
cash or Common Stock in respect of the Premium, shall be treated as delivered to
the extent thereof, in exchange for Contingent Additional Principal accrued
through the Conversion Date and accrued Contingent Cash Interest, and the Cash
Amount shall be treated as delivered in exchange for the Initial Principal
Amount at Maturity of the Security being converted pursuant to the provisions
hereof.
The Conversion Rate will be adjusted as provided in Article 10 of the
Indenture. However, no adjustment need be made if Securityholders may
participate in the transaction or in certain other cases. The Company from time
to time may voluntarily increase the Conversion Rate.
-15-
In certain circumstances as provided for in the Indenture, when a Holder
surrenders a Security for conversion, the Conversion Agent may first offer the
Security to a financial institution chosen by the Issuers who will have the
option, but not the obligation (unless separately agreed to by it and the
Issuers at the time) to agree to exchange those Securities for the number of
shares of Common Stock that the Holder of those Securities would have been
otherwise entitled to receive upon conversion, plus cash for any fractional
shares.
10. Conversion Arrangement on Call for Redemption.
In connection with any redemption of Securities (unless such Securities
have been surrendered by the close of business on the Redemption Date), the
Issuers may arrange for the purchase and conversion of any Securities called for
redemption by an agreement with one or more investment bankers or other
purchasers to purchase such Securities, as provided for in the Indenture.
11. Defaulted Interest.
Except as otherwise specified with respect to the Securities, any
Defaulted Interest on any Security shall forthwith cease to be payable to the
registered Holder thereof on the relevant record date, by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Issuers as provided
in Section 11.02 of the Indenture.
12. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may transfer
or exchange Securities in accordance with the Indenture. The Registrar may
require a Holder, among other things, to furnish appropriate endorsements and
transfer documents and to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not register the transfer of or exchange any
Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a Purchase Notice or Change in Control Purchase
Notice has been given and not withdrawn (except, in the case of a Security to be
purchased in part, the portion of the Security not to be purchased) or any
Securities for a period of 15 days before the mailing of a Notice of Redemption
of Securities to be redeemed.
13. Persons Deemed Owners.
The registered Holder of this Security may be treated as the owner of this
Security for all purposes.
14. Unclaimed Money or Securities.
The Trustee and the Paying Agent shall return to the Issuers upon written
request any money or securities held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years, subject to
applicable unclaimed property laws. After return to the Issuers, Holders
entitled to the money or securities must look to the Issuers for
-16-
payment as general creditors unless an applicable abandoned property law
designates another person.
15. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding and (ii) certain Defaults may be waived with
the written consent of the Holders of a majority in aggregate Principal Amount
at Maturity of the Securities at the time outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Issuers and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, to comply
with Article 5 or Section 10.14 of the Indenture, to secure the Issuers'
obligations under this Security or the Indenture, to make any change that does
not, as evidenced by an Opinion of Counsel delivered to the Trustee, materially
adversely affect the rights of any Securityholder, to make any change in
connection with the registration of the Securities under the Securities Act or
to comply with the TIA, or any amendment thereto, to comply with any requirement
of the SEC in connection with the qualification of the Indenture under the TIA,
to add to the Issuers' covenants or obligations under the Indenture for the
protection of the Holders or to surrender any right, power or option conferred
by the Indenture on the Issuers, or to increase the Contingent Cash Interest or
any other amount to be paid to Holders.
16. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default in the payment
of the Principal Amount at Maturity, Contingent Additional Principal, Redemption
Price, Purchase Price or Change in Control Purchase Price on any Security when
the same becomes due and payable at its Stated Maturity, upon redemption, upon
acceleration, when due for purchase by the Issuers or otherwise; (ii) default in
payment of any Contingent Cash Interest upon any Security, and such default
shall continue for 30 days; (iii) failure by the Issuers to comply with other
agreements in the Indenture or the Securities, subject to notice and lapse of
time; (iv) (a) failure of the Issuers to make any payment by the end of any
applicable grace period after maturity of Indebtedness in an amount (taken
together with amounts in (b) below) in excess of $100,000,000, and continuance
of such failure or (b) the acceleration of Indebtedness in an amount (taken
together with amounts in (a) above) in excess of $100,000,000 because of a
default with respect to such Indebtedness without such Indebtedness having been
discharged or such acceleration having been cured, waived, rescinded or annulled
in case of (a) and (b) above, for a period of 30 days after written notice to
the Issuers by the Trustee or to the Issuers and the Trustee by the Holders of
not less than 25% in aggregate Principal Amount at Maturity of the Securities
then outstanding; however if any such failure or acceleration referred to in (a)
or (b) above shall cease or be cured, waived, rescinded or annulled, then the
Event of Default by reason thereof shall be deemed not to have occurred, or (v)
certain events of bankruptcy or insolvency affecting the Issuers or their
Significant Subsidiaries. If an Event of Default shall have occurred and be
continuing, either the Trustee, or the Holders of not less than 25% in aggregate
Principal Amount at Maturity of the Securities then outstanding may declare the
Initial Principal Amount at Maturity, plus any accrued and unpaid Contingent
Cash Interest and Contingent Additional Principal through the date of such
declaration, if any, to be immediately due and payable. In
-17-
case of certain events of bankruptcy or insolvency of the Issuers, the Initial
Principal Amount at Maturity plus accrued and unpaid Contingent Cash Interest
and Contingent Additional Principal, if any, shall automatically become
immediately due and payable.
Securityholders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in aggregate
Principal Amount at Maturity of the Securities at the time outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default (except a Default
in payment of amounts specified in clause (i) or (ii) above) if it determines
that withholding notice is in their interests.
17. Trustee Dealings with the Issuers.
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Issuers or their Affiliates and may otherwise deal with the Issuers
or their Affiliates with the same rights it would have if it were not Trustee.
18. Authentication.
This Security shall not be valid until an authorized signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
1. GOVERNING LAW.
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS
SECURITY.
----------------------
The Issuers will furnish to any Securityholder upon written request and
without charge a copy of the Indenture. Requests may be made to:
Omnicom Group Inc.
000 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
-18-
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________________________________
________________________________________________________________________
(Insert assignee's soc. sec. or tax ID no.)
____________________________________
____________________________________
____________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
_____________________ agent to transfer this Security on the books of the
Issuers. The agent may substitute another to act for him.
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box:
|_|
To convert only part of this Security, state the Initial Principal Amount at
Maturity to be converted (which must be $1,000 or any integral multiple
thereof);
$__________________________
If you want the stock certificate made out in another person's name, fill in the
form below:
________________________________________________________________________
________________________________________________________________________
(Insert other person's soc. sec. or tax ID no.)
____________________________________
____________________________________
____________________________________
____________________________________
(Print or type other person's name, address and zip code)
________________________________________________________________________________
Date: _____________________ Your Signature:____________________________________
________________________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
2.8 New EXHIBIT A-2-1 (2038 Notes - Form of Face of Certificated Security)
shall be added as follows:
"EXHIBIT A-2-1
[Form of Certificated Security]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THIS
SECURITY IS DEEMED TO BE ISSUED WITH AN INDETERMINATE AMOUNT OF ORIGINAL ISSUE
DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE DATE IS [_],
AND THE YIELD TO MATURITY FOR PURPOSES OF ACCRUING ORIGINAL ISSUE DISCOUNT IS
[_]% PER ANNUM. THE HOLDER OF THIS SECURITY MAY OBTAIN THE PROJECTED PAYMENT
SCHEDULE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO: OMNICOM GROUP
INC., 000 XXXXXXX XXXXXX, 0XX XXXXX, XXX XXXX, XXX XXXX 00000, ATTENTION:
GENERAL COUNSEL
[INCLUDE IF SECURITY IS A CERTIFICATED SECURITY TO BE HELD BY AN
INSTITUTIONAL ACCREDITED INVESTOR--IN CONNECTION WITH ANY TRANSFER, THE HOLDER
WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOLLOWING RESTRICTIONS.]
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE"), WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH OMNICOM GROUP INC. (THE
"COMPANY"), OMNICOM CAPITAL INC. ("CAPITAL") OR OMNICOM FINANCE INC. ("FINANCE
AND TOGETHER WITH THE COMPANY AND CAPITAL, THE "ISSUERS") OR ANY AFFILIATE OF
ANY OF THEM WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY)
ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THIS
SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER
-19-
TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (C) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (D) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1),
(2),(3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
"ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S RIGHTS PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH
OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINATION DATE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION OF
THE CONDITIONS SPECIFIED IN THE INDENTURE."
-20-
OMNICOM GROUP INC.
Zero Coupon Zero Yield Convertible Notes due 2038
No. CUSIP:
Issue Date: _________
Initial Principal Amount at Maturity: $1,000.00
Each of OMNICOM GROUP INC., a New York corporation, OMNICOM CAPITAL INC.,
a Connecticut corporation, and OMNICOM FINANCE INC., a Delaware corporation,
jointly and severally, promises to pay to Cede & Co. or registered assigns, the
Initial Principal Amount at Maturity of ______________________________________,
($____________), or if greater, the Principal Amount at Maturity, on July, 1
2038.
This Security shall not bear interest other than Contingent Cash Interest,
if any, and Contingent Additional Principal will accrue as specified on the
other side of this Security. This Security is convertible as specified on the
other side of this Security.
Additional provisions of this Security are set forth on the other side of
this Security.
Dated: ____________
OMNICOM GROUP INC.
By:
----------------------------------
OMNICOM CAPITAL INC.
By:
----------------------------------
OMNICOM FINANCE INC.
By:
----------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
JPMorganChase Bank, as Trustee,
certifies that this is one of the
Securities referred to in the
within mentioned Indenture (as
defined on the other side of this
Security).
By
----------------------------------
Authorized Officer"
-21-
******************
-22-
2.9 New EXHIBIT C-1 (Amended Notes--Projected Payment Schedule) shall be
added as follows:
"EXHIBIT C-1
Projected Payment Schedule*
Projected Payment per $1,000 per Initial
Semi-annual Period Ending Principal Amount at Maturity of a Security
------------------------- ------------------------------------------
June 15, 2006 --
December 15, 2006 --
June 15, 2007 --
December 15, 2007 --
June 15, 2008 --
December 15, 2008 --
June 15, 2009 --
December 15, 2009 --
June 15, 2010 --
December 15, 2010 --
June 15, 2011 --
December 15, 2011 --
June 15, 2012 --
December 15, 2012 --
June 15, 2013 --
December 15, 2013 --
June 15, 2014 $6.25
December 15, 2014 $6.25
June 15, 2015 $6.50
December 15, 2015 $6.50
June 15, 2016 $6.75
December 15, 2016 $6.75
June 15, 2017 $7.00
December 15, 2017 $7.00
June 15, 2018 $7.25
December 15, 2018 $7.25
June 15, 2019 $7.50
December 15, 2019 $7.50
June 15, 2020 $7.75
December 15, 2020 $7.75
June 15, 2021 $8.00
December 15, 2021 $8.00
June 15, 2022 $8.25
December 15, 2022 $8.25
June 15, 2023 $8.50
December 15, 2023 $8.50
June 15, 2024 $8.75
December 15, 2024 $8.75
June 15, 2025 $9.00
-23-
Projected Payment per $1,000 per Initial
Semi-annual Period Ending Principal Amount at Maturity of a Security
------------------------- ------------------------------------------
December 15, 2025 $9.00
June 15, 2026 $9.25
December 15, 2026 $9.25
June 15, 2027 $9.50
December 15, 2027 $9.50
June 15, 2028 $9.75
December 15, 2028 $9.75
June 15, 2029 $10.00
December 15, 2029 $10.00
June 15, 2030 $10.25
December 15, 2030 $10.25
June 15, 2031 $10.50
December 15, 2031 $10.50
June 15, 2032 $10.75
December 15, 2032 $10.75
June 15, 2033 $11.00
December, 15, 2033 $11.00
June 15, 2034 $11.25
December 15, 2034 $11.25
June 15, 2035 $11.50
December 15, 2035 $11.50
June 15, 2036 $11.75
December 15, 2036 $11.75
June 15, 2037 $12.00
December 15, 2037 $12.00
June 15, 2038 $12.25
----------
* The schedule of projected payments is determined on the basis of an assumption
of linear growth of the stock price and the interest schedule set forth in the
Offering Memorandum are not determined for any purpose other than for the
determination of interest accruals and adjustments thereof in respect of the
Securities for United States federal income tax purposes. The comparable yield
and the schedule of projected payments do not constitute a projection or
representation regarding the amounts payable on Securities."
-24-
3. Separability Clause. In case any provision in this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
4. Modification, Amendment and Waiver. The provisions of this Supplemental
Indenture may not be amended, supplemented, modified or waived except by a
execution of a Supplemental Indenture executed by the Issuers, the Company and,
to the extent such amendment, supplement or waiver limits or impairs the rights
of any Securityholder, by such Securityholder. Any such amendment shall comply
with Article 9 of the Indenture. Until an amendment, waiver or other action by
Securityholders becomes effective, a consent thereto by a Securityholder of a
Security hereunder is a continuing consent by the Securityholder and every
subsequent Securityholder of that Security or portion of the Security that
evidences the same obligation as the consenting Securityholder's Security, even
if notation of the consent, waiver or action is not made on the Security.
However, any such Securityholder or subsequent Securityholder may revoke the
consent, waiver or action as to such Securityholder's Security or portion of the
Security if the Trustee receives the notice of revocation before the date the
amendment, waiver or action becomes effective. After an amendment, waiver or
action becomes effective, it shall bind every Securityholder.
5. Ratification of Indenture; Supplemental Indenture Part of Indenture.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect. In the event of a conflict between the terms and
conditions of the Indenture and the terms and conditions of this Supplemental
Indenture, then the terms and conditions of this Supplemental Indenture shall
prevail. This Supplemental Indenture shall form a part of the Indenture for all
purposes, and every holder of Securities heretofore or hereafter authenticated
and delivered shall be bound hereby.
6. Trust Indenture Acts Controls. If any provision of this Supplemental
Indenture limits, qualifies or conflicts with any provision of the Trust
Indenture Act of 1939, as amended ("TIA"), that is required under the TIA to be
part of and govern any provision of this Supplemental Indenture, the provision
of the TIA shall control. If any provision of this Supplemental Indenture
modifies or excludes any provisions of the TIA that may be so modified or
excluded, the provisions of the TIA shall be deemed to apply to the Indenture as
so modified or to be excluded by this Supplemental Indenture, as the case may
be.
7. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT GIVING EFFECT
TO THE PRINCIPLES OF CONFLICTS OF LAW.
8. Trustee Makes No Representation. The statements herein are deemed to be
those of the Company, OCI or OFI, as applicable. The Trustee makes no
representation as to the validity or sufficiency of this Supplemental Indenture.
-25-
9. Multiple Originals. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Supplemental Indenture.
10. Effect of Headings. The Section headings herein are for convenience
only and shall not effect the construction thereof.
11. Notices. Any request, demand, authorization, notice, waiver, consent
or communication to any of the parties shall be made as set forth in Section
12.02 of the Indenture, as said Section may be amended hereby.
12. Successors. All agreements of each of the Company, OCI and OFI in
respect of this Supplemental Indenture shall bind its successor.
[Signature page follows]
-26-
IN WITNESS WHEREOF, this Supplemental Indenture has been duly executed by
the Company, OCI, OFI and the Trustee as of the date first written above.
OMNICOM GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Executive Vice President
and Chief Financial Officer
OMNICOM CAPITAL INC.
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Executive Vice President
OMNICOM FINANCE INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxxx
Title: Chief Executive Officer
and Chief Financial Officer
JPMORGAN CHASE BANK, N.A., as Trustee
By: /s/ Xxxxx Xx
---------------------------------
Name: Xxxxx Xx
Title: Vice President
-27-
