4,000,000 Shares
OMNICOM GROUP INC.
COMMON STOCK
(par value $0.50 per share)
UNDERWRITING AGREEMENT
March 4, 1998
March 4, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Omnicom Group Inc., a New York corporation (the "Company"), proposes to
issue and sell to you 4,000,000 shares of its common stock (par value $0.50 per
share) (the "Shares"). The shares of common stock of the Company to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
referred to as the "Common Stock."
The Company has filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), a registration statement, including a prospectus, relating to the
registration of certain securities of the Company (the "Shelf Securities"),
including the Shares, to be issued from time to time by the Company. The
registration statement as amended at the date of this Agreement, is hereinafter
referred to as the "Registration Statement" and the related prospectus relating
to the Shelf Securities, in the form first used to confirm sales of the Shares,
is hereinafter referred to as the Basic Prospectus. The Basic Prospectus, as
supplemented by the prospectus supplement dated March 4, 1998 (the "Prospectus
Supplement"), relating to the Shares, in the form first used to confirm sales of
the Shares is hereinafter referred to as the "Prospectus". Any reference to the
term Registration Statement, the Basic Prospectus or the Prospectus shall
include the documents incorporated therein by reference. The terms "supplement"
and "amendment" or "amend" as used in this Agreement shall include all documents
subsequently filed by the Company with the Commission pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), that are deemed to be
incorporated by reference in the Prospectus.
1. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with you that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
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effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in 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,
(ii) each part of the Registration Statement, when such part became
effective, did not contain and each such part, as amended or supplemented,
if applicable, will not contain any 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, (iii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder and
(iv) the Prospectus does not contain and, as amended or supplemented, if
applicable, 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,
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 based upon information relating to you furnished to the
Company in writing by you expressly for use therein.
(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 its property
and to conduct its business as described in 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 of BBDO Worldwide Inc., The DDB ▇▇▇▇▇▇▇ Worldwide
Communications Group Inc., TBWA Chiat/Day Inc., Omnicom Finance Inc., BBDO
Detroit Inc., DDB ▇▇▇▇▇▇▇ Worldwide Partners Inc., and DDB ▇▇▇▇▇▇▇ Chicago
Inc. 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 its property and to conduct its
business as described in 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
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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.
(e) This Agreement has been duly authorized, executed and delivered
by the Company.
(f) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the issuance of
the Shares have been duly authorized and are validly issued, fully paid
and non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or 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 any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, 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, except such as may be required (i) by the securities
or Blue Sky laws of the various states in connection with the offer and
sale of the Shares or (ii) by statutes, rules and regulations enacted
subsequent to the Closing Date (as defined in Section 4 below).
(j) There has not occurred any material adverse change, or, to the
best of the Company's knowledge, 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 subsequent to the date of this
Agreement).
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(k) There are no legal or governmental proceedings pending of which
the Company has notice or knowledge or, to the best of the Company's
knowledge, 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 or the Prospectus and are not so described or any
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 that are not described or
filed as required.
(l) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(m) The Company is not and, after giving effect to the offering and
sale of the Shares 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.
(n) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to include any securities of the Company with the Shelf Securities
registered pursuant to the Registration Statement, except any such right
that has been effectively waived or satisfied by the inclusion of
securities therein.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell, and
you, upon the basis of the representations and warranties herein contained, but
subject to the conditions hereinafter stated, agree to purchase from the Company
the Shares at $42.85 a share (the "Purchase Price").
Without your prior written consent, the Company will not, directly or
indirectly, offer, sell, contract to sell or otherwise dispose of, any shares of
its preferred stock (par value $1.00 per share) (the "Preferred Stock") or
Common Stock or any securities convertible into or exercisable or exchangeable
for its Preferred Stock or Common Stock or any rights to acquire Preferred Stock
or Common Stock for a period of 90 days after the date of this Agreement, other
than (i) the Shares to be sold hereunder, (ii) any shares of Common Stock issued
upon the conversion of any debentures outstanding on the date hereof, (iii) any
shares
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of such Common Stock issued upon the exercise of an option granted under the
Company's existing stock options or issued under the Company's restricted stock
purchase plans, (iv) any shares of Common Stock issued in connection with
acquisitions announced publicly prior to the date hereof or any earn-out
payments made in connection with such acquisitions and (v) shares of Common
Stock issued but not freely tradeable prior to the end of the 90 day period.
3. Public Offering. The Company is advised that you propose to make a
public offering of the Shares as soon after this Agreement has become effective
as in your judgment is advisable.
4. Payment and Delivery. Payment for the Shares shall be made to the
Company in Federal or other funds immediately available in New York City against
delivery of such Shares at 10:00 a.m., New York City time, on March 9, 1998, or
at such other time on the same or such other date, not later than March 16,
1998, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "Closing Date".
Certificates for the Shares shall be in definitive form and registered in
such names and in such denominations as you shall request in writing not later
than two full business days prior to the Closing Date. The certificates
evidencing the Shares shall be delivered to you on the Closing Date with any
transfer taxes payable in connection with the transfer of the Shares to you duly
paid, against payment of the Purchase Price therefor.
5. Conditions to Closing. The obligations of the Company to sell the
Shares to you and your obligation to purchase and pay for the Shares on the
Closing Date are subject to the condition that no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or threatened by the Commission.
The obligations of the Underwriter are subject to the following further
conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date, there shall not have occurred any change, or
any development involving a prospective 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 subsequent
to the date of this Agreement) that, in your judgment, is material and
adverse and that makes it, in your judgment, impracticable to
6
market the Shares on the terms and in the manner contemplated in the
Prospectus.
(b) You shall have received on the Closing Date a certificate, dated
the Closing Date and signed by an executive officer of the Company, to the
effect that the representations and warranties of the Company contained in
this Agreement are true and correct as of the Closing Date and that the
Company has performed all of its obligations to be performed hereunder or
satisfied on or prior to the Closing Date, it being understood that the
officer signing and delivering such certificate may rely upon the best of
his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of the
General Counsel for the Company, dated the Closing Date, to the effect
that:
(i) 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 its property and to conduct its business as
described in 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;
(ii) each of BBDO Worldwide Inc., The DDB ▇▇▇▇▇▇▇ Worldwide
Communications Group Inc., TBWA Chiat/Day Inc., Omnicom Finance
Inc., BBDO Detroit Inc., DDB ▇▇▇▇▇▇▇ Worldwide Partners Inc., and
DDB ▇▇▇▇▇▇▇ Chicago Inc. 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 its property and to conduct its business as
described in 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;
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(iii) the shares of Common Stock outstanding prior to the
issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable;
(iv) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene, to the best of such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary; and
(v) after due inquiry, such counsel does 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 that
are required to be described in the Registration Statement or the
Prospectus and are not so described or of any 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 that are not described or
filed as required.
(d) You shall have received on the Closing Date an opinion of
▇▇▇▇▇▇▇ Leisure ▇▇▇▇▇▇ & Irvine LLP, outside counsel for the Company,
dated the closing date to the effect that:
(i) the authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the
Prospectus;
(ii) the Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or similar
statutory rights;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) (A) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Company or, to
8
the best of such counsel's 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
and was filed as an exhibit to the Company's quarterly and current
reports identified under the caption "Incorporation of Certain
Documents by Reference" in the Prospectus with the Commission
subsequent to the filing of the Company's Annual Report on Form 10-K
for the year ended December 31, 1996 and (B) 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, except such as may be required (i)
by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Shares or (ii) by
statutes, rules and regulations enacted subsequent to the Closing
Date;
(v) the statements in the Prospectus under the captions
"Description of Capital Stock" and "The Underwriter" and in the
Registration Statement in Item 15, in each case insofar as such
statements constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information
called for with respect to such legal matters, documents and
proceedings and fairly summarize the matters referred to therein;
(vi) the Company is not and, after giving effect to the
offering and sale of the Shares 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; and
(vii) (A) such counsel is of the opinion that each document,
if any, filed pursuant to the Exchange Act and incorporated by
reference in the Registration Statement and the Prospectus (except
for financial statements and schedules and other financial and
statistical data, as to which such counsel need not express any
opinion) complied when so filed as to form in all material respects
with the Exchange Act and the rules and regulations of the
Commission thereunder, (B) such counsel is of the opinion that the
Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical data
included or incorporated by reference therein as to which such
counsel need not express any opinion) comply as to form in all
material respects with the Securities Act and the
9
applicable rules and regulations of the Commission thereunder, (C)
no facts have come to the attention of such counsel which would lead
them to believe that (except for financial statements and schedules
and other financial and statistical data as to which such counsel
need not express any belief) the Registration Statement and the
prospectus included therein at the time the Registration Statement
became effective or the prospectus included in the Registration
Statement, as supplemented by the Prospectus Supplement or the
Prospectus on the date of this Agreement contained any 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, in the light of the circumstances under which they were
made, not misleading and (D) no facts have come to the attention of
such counsel which would lead them to believe that (except for
financial statements and schedules and other financial and
statistical data as to which such counsel need not express any
belief) the Prospectus contains any untrue statement of a material
fact 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.
With respect to Section 5(d)(vii) above, ▇▇▇▇▇▇▇ Leisure ▇▇▇▇▇▇ &
Irvine LLP may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and
Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification, except as specified.
(e) You shall have received on the Closing Date an opinion of ▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇, your counsel, dated the Closing Date, covering the
matters referred to in Sections, 5(d)(ii), 5(d)(iii), 5(d)(v) (but only as
to the statements in the Prospectus under "Description of Capital Stock"
and "The Underwriter") and 5(d)(vii) above.
With respect to Section 5(d)(vii) above, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ may
state that their opinion and belief are based upon their participation in
the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification,
except as specified.
(f) You shall have received, on the Closing Date, a letter dated the
Closing Date in form and substance satisfactory to you, from ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ LLP, 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 the Registration Statement and
the Prospectus; provided that such letter shall use a "cut-off date" not
earlier than the date hereof.
6. Covenants of the Company. In further consideration of your agreements
herein contained, the Company covenants as follows:
(a) To furnish to you, without charge, a conformed copy of the
Registration Statement (including exhibits thereto) and to furnish to you
in New York City, without charge, prior to 5:00 p.m. New York City time on
the business day next succeeding the date of this Agreement and during the
period mentioned in Section 6(c) below, as many copies of the Prospectus
and any supplements and amendments thereto or to the Registration
Statement as you may reasonably request.
(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish to you a copy of each such proposed amendment
or supplement and not to file any such proposed amendment or supplement to
which you reasonably object, and to file with the Commission within the
applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of your counsel the Prospectus is
required by law to be delivered in connection with sales by you or a
dealer, any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus
is delivered to a purchaser, not misleading, or if it is necessary to
amend or supplement the Prospectus to comply with applicable law,
forthwith to prepare, file with the Commission and furnish, at its own
expense, to you and to the dealers (whose names and addresses you will
furnish to the Company) to which Shares may have been sold by you and to
any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable law.
11
(d) To endeavor to qualify the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as you shall reasonably
request and maintain such qualifications for as long as you shall
reasonably request.
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earnings statement (which need not be
audited) covering the twelve-month period ending March 31, 1999 that
satisfies the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder (which may be satisfied
in accordance with Rule 158 under the Securities Act).
(f) Whether or not the transactions contemplated in this Agreement
are consummated, to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the
preparation of the Registration Statement and the Prospectus and all
amendments and supplements thereto, (ii) the preparation, issuance and
delivery of the Shares, (iii) the fees and disbursements of the Company's
counsel and its accountants, (iii) the qualification of the Shares under
the securities or Blue Sky laws in accordance with the provisions of
Section 4(d), including filing fees and the fees or disbursements of your
counsel in connection therewith and in connection with the preparation of
any Blue Sky memoranda, (v) the printing and delivery to you of the
Prospectus and any amendments or supplements thereto, (vi) all costs and
expenses incident to listing the Shares on the NYSE Market, (vii) the cost
of printing certificates representing the Shares and (viii) any stamp or
value added taxes payable in connection with the sale of the Shares to
you.
7. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless you and each person, if any, who controls you within the meaning
of either Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating
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to you furnished to the Company in writing by you expressly for use therein;
provided however that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to your benefit if the person asserting
such loss, claim, damage or liability was not sent by you or did not otherwise
receive a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), if required by law
so to have been delivered, at or prior to the written confirmation of the sale
of the Shares to such person and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss, claim,
damage or liability, unless such failure is the result of noncompliance by the
Company with Section 6(a) hereof.
(b) You agree to indemnify and hold harmless the Company, its directors,
its officers and each person, if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to you, but
only with reference to information relating to you furnished to the Company in
writing by you expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 7(a) or 7(b), such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
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Incorporated, in the case of parties indemnified pursuant to Section 7(a), and
by the Company, in the case of parties indemnified pursuant to Section 7(b). The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the foregoing sentence, 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 the second and third sentences of this paragraph, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement; provided
nothing herein shall limit the right of a person against which indemnity is
sought to contest in good faith such person's obligation to so indemnify. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section 7(a) or 7(b)
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and you on the other hand from the offering of the Shares or (ii) if
the allocation provided by clause 7(d)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause 7(d)(i) above but also the relative fault of the
Company on the one hand and you on the other hand in connection with the matters
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and you on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective proportions
as (i) in the case of the Company, the Purchase Price (before deducting expense)
or (ii) in your case, the difference between the aggregate sales price received
by you in connection with the resale of the Shares (the "Sales Price") less the
Purchase Price, bears to the Sales Price plus
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the Purchase Price, provided, however, that the difference shall not be less
than zero. The relative fault of the Company on the one hand and you on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by you and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and you agree that it would not be just or equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in Section 7(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7, you shall not be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by you and
distributed to the public were offered to the public exceeds the amount of any
damages that you have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 7 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this Section 7
and the representations, warranties and other statements of the Company
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of you or any person
controlling you or by or on behalf of the Company, its officers or directors or
any person controlling the Company and (ii) acceptance of and payment for any of
the Shares. The indemnity and contribution agreements contained in this Section
7 shall also remain operative in full force and effect regardless of any
termination of this Agreement.
8. Termination. This Agreement shall be subject to termination in your
absolute discretion by notice given by you to the Company, if (a) after the
execution and delivery of this Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the
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National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses 9(a)(i) through 9(a)(iv),
such event, singly or together with any other such event, makes it, in your
judgment, impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
9. Effectiveness. This Agreement shall become effective upon the execution
and delivery hereof by the parties hereto.
If this Agreement shall be terminated by you because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason (other than owing to a
default by you of your obligations hereunder or to your exercise of your right
to terminate this Agreement pursuant to the preceding paragraph) the Company
shall be unable to perform its obligations under this Agreement, the Company
will reimburse you for all out-of-pocket expenses (including the reasonable fees
and disbursements of their counsel) reasonably incurred by you in connection
with this Agreement or the offering contemplated hereunder.
10. Miscellaneous. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed a part of this Agreement.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to you shall be directed to you at the
address shown above; notices to the Company shall be directed to it at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Attention: Chief Financial Officer,
telephone no. (▇▇▇) ▇▇▇-▇▇▇▇, telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇.
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This Agreement shall inure to the benefit of and be binding upon you and
the Company and your and its respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling person and officers and directors referred to in
Section 6 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement.
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Very truly yours,
Omnicom Group Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: /s/ ▇▇▇▇▇ ▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Principal
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