Exhibit 1.1
EXECUTION COPY
Omnicom Group Inc.
Omnicom Capital Inc.
Omnicom Finance Inc.
5.90% Senior Notes due 2016
Underwriting Agreement
New York, New York
March 24, 2006
To the Representatives named in
Schedule I hereto of the
Underwriters named in
Schedule II hereto
Ladies and Gentlemen:
Omnicom Group Inc., a corporation organized under the laws of New
York (the "Company"), Omnicom Capital Inc., a corporation organized under the
laws of Connecticut, and Omnicom Finance Inc., a corporation organized under the
laws of Delaware (the Company, Omnicom Capital Inc. and Omnicom Finance Inc.,
hereinafter collectively referred to as the "Issuers"), propose to sell to the
several underwriters named in Schedule II hereto (the "Underwriters"), for whom
you (the "Representatives") are acting as representatives, the principal amount
of its securities identified in Schedule II hereto (the "Securities"), to be
issued under an indenture (the "Indenture") dated as of March 29, 2006, between
the Issuers and JPMorgan Chase Bank, N.A., a New York banking association, as
trustee (the "Trustee"). To the extent there are no additional Underwriters
listed on Schedule I other than you, the term Representatives as used herein
shall mean you, as Underwriters, and the terms Representatives and Underwriters
shall mean either the singular or plural as the context requires. Any reference
herein to the Registration Statement, the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Base Prospectus, any Preliminary
Prospectus or the Final Prospectus, as the case may be; and any reference herein
to the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the
Final Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act after the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, any Preliminary Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in Section 20 hereof.
1. Representations and Warranties. The Company and the Issuers,
where applicable, represent and warrant to, and agree with, each Underwriter as
set forth below in this Section 1.
(a) The Issuers meet the requirements for use of Form S-3 under the
Act and have prepared and filed with the Commission an automatic shelf
registration statement, as defined in Rule 405 (the file number of which
is set forth in Schedule I hereto) on Form S-3, including a related Base
Prospectus, for registration under the Act of the offering and sale of the
Securities. Such Registration Statement, including any amendments thereto
filed prior to the Execution Time, became effective upon filing. The
Issuers may have filed with the Commission, as part of an amendment to the
Registration Statement or pursuant to Rule 424(b), one or more preliminary
prospectus supplements relating to the Securities, each of which has
previously been furnished to you. The Issuers will file with the
Commission a final prospectus supplement relating to the Securities in
accordance with Rule 424(b). As filed, such final prospectus supplement
shall contain all information required by the Act and the rules
thereunder, and, except to the extent the Representatives shall agree to a
modification, shall be in all substantive respects in the form furnished
to you prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional information
and other changes (beyond that contained in the Base Prospectus and any
Preliminary Prospectus) as the Company has advised you, prior to the
Execution Time, will be included or made therein. The Registration
Statement, at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) On each Effective Date, the Registration Statement did, and when
the Final Prospectus is first filed in accordance with Rule 424(b) and on
the Closing Date (as defined herein), the Final Prospectus (and any
supplement thereto) will, comply in all material respects with the
applicable requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on each Effective Date
and at the Execution Time, the Registration Statement did not and will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; on the Effective Date and on the
Closing Date, the Indenture did or will comply in all material respects
with the applicable requirements of the Trust Indenture Act and the rules
thereunder; and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Final Prospectus (together with any supplement
thereto) will not include any untrue statement of a material fact or omit
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; provided, however, that the Company makes no representations
or warranties as to (i) that part of the Registration Statement which
shall constitute the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information contained in or
omitted from the Registration Statement or the Final Prospectus (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto), it being
understood and agreed that the only such information furnished by or on
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behalf of any Underwriters consists of the information described as such
in Section 8 hereof.
(c) (i) The Disclosure Package and each electronic roadshow
identified on Schedule V hereto, when taken together as a whole, does not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only
such information furnished by or on behalf of any Underwriter consists of
the information described as such in Section 8 hereof.
(d) (i) At the time of filing the Registration Statement, (ii) at
the time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Sections
13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time
the Issuers or any person acting on their behalf (within the meaning, for
this clause only, of Rule 163(c)) made any offer relating to the
Securities in reliance on the exemption in Rule 163, and (iv) at the
Execution Time (with such date being used as the determination date for
purposes of this clause (iv)), each of the Issuers was or is (as the case
may be) a "well-known seasoned issuer" as defined in Rule 405. The Company
agrees to pay the fees required by the Commission relating to the
Securities within the time required by Rule 456(b)(1) without regard to
the proviso therein and otherwise in accordance with Rules 456(b) and
457(r).
(e) (i) At the earliest time after the filing of the Registration
Statement that the Issuers or another offering participant made a bona
fide offer (within the meaning of Rule 164(h)(2)) of the Securities and
(ii) as of the Execution Time (with such date being used as the
determination date for purposes of this clause (ii)), the Issuers were not
and are not an Ineligible Issuer (as defined in Rule 405), without taking
account of any determination by the Commission pursuant to Rule 405 that
it is not necessary that the Issuers be considered an Ineligible Issuer.
(f) Each Issuer Free Writing Prospectus does not include any
information that conflicts with the information contained in the
Registration Statement, including any document incorporated therein and
any prospectus supplement deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to
statements in or omissions from any Issuer Free Writing Prospectus based
upon and in conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that only such information
furnished by or on behalf of any Underwriter consists of the information
described as such in Section 8 hereof.
(g) KPMG LLP, whose report accompanies the financial statements and
supporting schedules included in or incorporated by reference into the
Final Prospectus,
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is an independent registered public accounting firm with respect to the
Company and its consolidated subsidiaries within the meaning of Regulation
S-X under the Act.
(h) The financial statements, together with the related schedules
and notes, included in or incorporated by reference in the Preliminary
Prospectus, the Final Prospectus and the Registration Statement present
fairly, in all material respects, the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the
statements of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified, said
financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules, if any,
included in or incorporated by reference into the Preliminary Prospectus,
the Final Prospectus and the Registration Statement present fairly, in all
material respects, in accordance with GAAP the information required to be
stated therein. The selected financial data included in the Preliminary
Prospectus, the Final Prospectus and the Registration Statement present
fairly, in all material respects, the information shown therein and have
been compiled on a basis consistent with that of the financial statements
incorporated by reference into the Preliminary Prospectus, the Final
Prospectus and the Registration Statement.
(i) Each of the Issuers has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
its incorporation and has the requisite corporate power and authority to
own, lease and operate its properties and to conduct its respective
business as described in the Disclosure Package and the Final Prospectus
and to enter into and perform its obligations under this Agreement and the
Indenture; and none of them are required to qualify as a foreign
corporation to transact business in any other jurisdiction, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing (i) could
reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business (a "Material Adverse Effect").
(j) The authorized, issued and outstanding capital stock of the
Company is as set forth in the Disclosure Package and the Final Prospectus
in the column entitled "Actual" under the caption "Capitalization" (except
for subsequent repurchases by the Company, issuances pursuant to
reservations, agreements, incentive stock option plans referred to in the
Disclosure Package or Final Prospectus or pursuant to the exercise of
convertible securities or options referred to in the Disclosure Package or
Final Prospectus). The shares of issued and outstanding capital stock of
the Company have been duly authorized and validly issued and are fully
paid and non-assessable; none of the outstanding shares of capital stock
of the Company was issued in violation of the preemptive or other similar
rights of any securityholder of the Company.
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(k) The Company is a holding company that conducts its business
through over 1,000 separate subsidiary entities (each, a "Subsidiary", and
together, the "Subsidiaries"). There is no matter arising out of the
organization, existence, capitalization, compliance with laws or
contractual or other construction of any agreement of or relating to any
such Subsidiary or all of such Subsidiaries in the aggregate that would
reasonably be expected to have a Material Adverse Effect.
(l) Except for such of the following as would not have a Material
Adverse Effect, there are no consensual encumbrances or restrictions on
the ability of any Subsidiary (i) to pay any dividends or make any
distributions on such Subsidiary's capital stock or to pay any
indebtedness owed to the Company or any of its other Subsidiaries, (ii) to
make any loans or advances to, or investments in, the Company or any of
its other Subsidiaries, or (iii) to transfer any of its property or assets
to the Company or any of its other Subsidiaries.
(m) This Agreement has been duly authorized, executed and delivered
by the Issuers.
(n) The Indenture has been duly authorized by the Issuers and, when
executed and delivered by the Issuers and the Trustee, will constitute a
valid and binding agreement of the Issuers, enforceable against the
Issuers in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity
or at law).
(o) The Securities have been duly authorized and, at the Closing
Date, will have been duly executed by the Issuers and, when authenticated,
issued and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as provided in
this Agreement, will constitute valid and binding obligations of the
Issuers, enforceable against the Issuers in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (including, without
limitation, good faith, fair dealing and reasonableness, equitable
defenses, the exercise of judicial discretion and limits on the
enforceability of equitable remedies, whether such principles are
considered in a proceeding at law or in equity), and will be in the form
contemplated by, and entitled to the benefits of, the Indenture.
(p) The Securities and the Indenture will conform in all material
respects to the respective statements relating thereto contained in the
Disclosure Package and the Final Prospectus.
(q) Neither the Company nor any of its Subsidiaries (a) is in
violation of its charter, by-laws or other organizational documents or (b)
in default in the performance or
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observance of any obligation, agreement, covenant or condition contained
in any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which it may be bound
or to which any of the property or assets of the Company or any of its
Subsidiaries may be subject (collectively, "Agreements and Instruments"),
except for such defaults violations that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement, the Indenture and the Securities and any other agreement or
instrument entered into or issued or to be entered into or issued by the
Issuers in connection with the transactions contemplated hereby or thereby
or in the Disclosure Package and the Final Prospectus and the consummation
of the transactions contemplated herein and in the Disclosure Package and
the Final Prospectus (including the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described
in the Disclosure Package and the Final Prospectus under the caption "Use
of Proceeds") and compliance by the Issuers with their obligations
hereunder have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or a Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its Subsidiaries pursuant to,
the Agreements and Instruments except (in the case of (b) only) for such
conflicts, breaches or defaults or Repayment Events, liens, charges or
encumbrances that, individually or in the aggregate, would not result in a
Material Adverse Effect, nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any of its
Subsidiaries or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any of
its Subsidiaries or any of their assets, properties or operations except
for any of the foregoing as would not have a Material Adverse Effect. As
used herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its Subsidiaries.
(r) No labor dispute with the employees of the Company or any of its
Subsidiaries exists or, to the knowledge of the Company, is imminent, and
the Company is not aware of any existing or imminent labor disturbance by
the employees of any of its or any of its Subsidiaries' principal
suppliers, customers or contractors, which, in any such case, may
reasonably be expected to result in a Material Adverse Effect.
(s) Except as disclosed in the Disclosure Package and the Final
Prospectus, there is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries which might
reasonably be expected to result in a Material Adverse Effect, or which
might reasonably be expected to materially and adversely affect the
properties or assets of the Company or any of its Subsidiaries, taken as a
whole, or the consummation of the transactions contemplated by this
Agreement or the performance by
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the Company of its obligations hereunder. The aggregate of all pending
legal or governmental proceedings to which the Company or any of its
Subsidiaries is a party or of which any of their respective property or
assets is the subject which are not described in the Disclosure Package
and the Final Prospectus, including ordinary routine litigation incidental
to the business, could not reasonably be expected to result in a Material
Adverse Effect.
(t) The Company and its Subsidiaries own or possess, or can acquire
on reasonable terms adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures) trademarks, service marks, trade names or other intellectual
property (collectively, "Intellectual Property") necessary to continue to
carry on the business now operated by them in all material respects, and
neither the Company nor any of its Subsidiaries has received any notice or
is otherwise aware of any infringement of or conflict with asserted rights
of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or any of its
Subsidiaries therein except for such of the foregoing as would not result
in a Material Adverse Effect.
(u) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the
Issuers of their obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement or for the due execution,
delivery or performance of this Agreement and the Indenture by the
Issuers, except (i) such as have been already obtained, (ii) such as may
be required by the securities or blue sky laws of the various states in
connection with the purchase and distribution of the Securities by the
Underwriters in the manner contemplated herein and in the Final
Prospectus.
(v) The Company and its Subsidiaries possess such permits, licenses,
approvals, consents and other authorizations (collectively, "Governmental
Licenses") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to continue to conduct the
business now operated by them in all material aspects; the Company and its
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure to have such Governmental
Licenses or to so comply would not, either singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid
and in full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to be
in full force and effect would not have a Material Adverse Effect; and
neither the Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(w) The Company and each of its Subsidiaries have good and
marketable title to all real property owned by the Company and such
Subsidiary and good title to all other
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properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances
of any kind except such as (a) are described in the Disclosure Package and
the Final Prospectus or (b) would not, individually or in the aggregate,
have a Material Adverse Effect, and all of the leases and subleases
material to the business of the Company and its Subsidiaries, considered
as one enterprise, and under which the Company or any of its Subsidiaries
holds properties described in the Disclosure Package and the Final
Prospectus , are in full force and effect, and neither the Company nor any
of its Subsidiaries has any notice of any material claim of any sort that
has been asserted by anyone adverse to the rights of the Company or any of
its Subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or any of its
Subsidiaries to the continued possession of the leased or subleased
premises under any such lease or sublease, except for such of the
foregoing as would not have a Material Adverse Effect.
(x) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(y) Except as described in the Disclosure Package and the Final
Prospectus and except such matters as would not, individually or in the
aggregate, result in a Material Adverse Effect, (A) neither the Company
nor any of its Subsidiaries is in violation of any federal, state, local
or foreign statute, law, rule, regulation, ordinance, code, policy or rule
of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "Environmental Laws"), (B) the Company
and its Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in
compliance with their requirements, (C) there are no pending, or to the
knowledge of the Company after due inquiry, threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
Subsidiaries and (D) to the knowledge of the Company after due inquiry,
there are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or
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governmental body or agency, against or affecting the Company or any of
its Subsidiaries relating to Hazardous Materials or Environmental Laws.
(z) The Issuers are not, and upon the issuance and sale of the
Securities as herein contemplated and the application of the net proceeds
therefrom as described in the Disclosure Package and the Final Prospectus
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended.
(aa) Omnicom Finance Inc. and Omnicom Capital Inc. are wholly owned
subsidiaries of the Company with no independent operations or
subsidiaries.
(bb) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a violation
by such Persons of the FCPA, including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce corruptly
in furtherance of an offer, payment, promise to pay or authorization of
the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any "foreign official"
(as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company, its subsidiaries and, to the
knowledge of the Company, its affiliates have conducted their businesses
in compliance with the FCPA.
"FCPA" means Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations promulgated thereunder.
(cc) The operations of the Company and its subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the
"Money Laundering Laws") and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company,
threatened.
(dd) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department ("OFAC"); and the Company will not
directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
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(ee) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
Any certificate signed by any officer of any of the Issuers and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Issuers, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II hereto.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made on the date and at the time specified in Schedule I hereto or at
such time on such later date not more than three Business Days after the
foregoing date as the Representatives shall designate, which date and time may
be postponed by agreement between the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Final Prospectus.
5. Agreements. The Issuers agree with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Prospectus)
to the Base Prospectus unless the Company has furnished you a copy for
your review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object. The Company will cause the
Final Prospectus, properly completed, and any supplement thereto to be
filed in a form approved by the Representatives with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time period
prescribed and will provide evidence satisfactory to the Representatives
of such timely filing. The Company will promptly advise the
Representatives when the Final Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule
424(b), when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (4) of any request by the Commission or its staff for any
amendment of the Registration Statement or for any supplement to the Final
Prospectus or for any additional information, (5) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration
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Statement or of any notice objecting to its use or the institution or
threatening of any proceeding for that purpose and (6) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use its reasonable best efforts to prevent the issuance of any such
stop order or the occurrence of any such suspension or objection to the
use of the Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such
stop order or relief from such occurrence or objection, including, if
necessary, by filing an amendment to the Registration Statement or a new
registration statement and using its reasonable best efforts to have such
amendment or new registration statement declared effective as soon as
practicable.
(b) To prepare a final term sheet, containing solely a description
of final terms the Securities, in the form attached as Schedule IV hereto
and to file such term sheet pursuant to Rule 433(d) within the time
required by such Rule.
(c) If, at any time prior to the filing of a final prospectus
pursuant to Rule 424(b), any event occurs as a result of which the
Disclosure Package would include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made at
such time not misleading, the Company will (i) notify promptly the
Representatives so that any use of the Disclosure Package may cease until
it is amended or supplemented; (ii) amend or supplement the Disclosure
Package to correct such statement or omission; and (iii) supply any
amendment or supplement to you in such quantities as you may reasonably
request.
(d) If, at any time when the Final Prospectus relating to the
Securities is required to be delivered under the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule
172), any event occurs as a result of which the Final Prospectus, as then
supplemented, would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made at such time
not misleading, or if it shall be necessary to amend the Registration
Statement, file a new registration statement or supplement the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, including in connection with use or delivery of the
Final Prospectus, the Company promptly will (i) notify the Representatives
of such event, (ii) prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 5, an amendment or
supplement or new registration statement which will correct such statement
or omission or effect such compliance, (iii) use its reasonable best
efforts to have any amendment to the Registration Statement or new
registration statement declared effective as soon as practicable in order
to avoid any disruption in use of the Final Prospectus and (iv) supply any
supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(e) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements (which
11
need not be audited) of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158.
(f) The Company will furnish to each of the Representatives and
counsel for the Underwriters, without charge, one signed copy of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act (including in circumstances where such
requirement may be satisfied pursuant to Rule 172), as many copies of each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or other
production of all documents relating to the offering.
(g) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay
any fee of the National Association of Securities Dealers, Inc., in
connection with its review of the offering; provided that in no event
shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action that
(i) would subject it to service of process in suits, other than those
arising out of the offering or sale of the Securities, or (ii) would
subject it to payment of taxes, in any jurisdiction where it is not now so
subject.
(h) The Issuers agree that, unless they have obtained or will obtain
the prior written consent of the Representatives, and each Underwriter,
severally and not jointly, agrees with the Issuers that, unless it has
obtained or will obtain, as the case may be, the prior written consent of
the Company, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a "free writing prospectus" (as defined in Rule
405) required to be filed by the Issuers with the Commission or retained
by the Issuers under Rule 433; other than the information contained in the
final term sheet prepared and filed pursuant to Section 5(b) hereto;
provided that the prior written consent of the parties hereto shall be
deemed to have been given in respect of the Free Writing Prospectuses
included in Schedule III and Schedule V hereto. Any such free writing
prospectus consented to by the Representatives or the Company is
hereinafter referred to as a "Permitted Free Writing Prospectus." The
Issuers agree that (x) they have treated and will treat, as the case may
be, each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus and (y) they have complied and will comply, as the case may be,
with the requirements of Rules 164 and 433 applicable to any Permitted
Free Writing Prospectus, including in respect of timely filing with the
Commission, legending and record keeping.
(i) The Issuers will not, without the prior written consent of
Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Issuers or any affiliate of the Issuers or
any person in privity with the Issuers or any affiliate of the Issuers)
directly or indirectly, including the
12
filing (or participation in the filing) of a registration statement with
the Commission in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the
meaning of Section 16 of the Exchange Act, any debt securities issued or
guaranteed by the Issuers (other than the Securities) or publicly announce
an intention to effect any such transaction, until the Business Day set
forth on Schedule I hereto.
(j) The Issuers will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Issuers
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Issuers made in any certificates pursuant to the
provisions hereof, to the performance by the Issuers of their obligations
hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, has been filed
in the manner and within the time period required by Rule 424(b); the
final term sheet contemplated by Section 5(b) hereto, and any other
material required to be filed by the Issuers pursuant to Rule 433(d) under
the Act, shall have been filed with the Commission within the applicable
time periods prescribed for such filings by Rule 433; and no stop order
suspending the effectiveness of the Registration Statement or any notice
objecting to its use shall have been issued and no proceedings for that
purpose shall have been instituted or, to the Company's knowledge,
threatened.
(b) The Company shall have requested and caused ▇▇▇▇▇ Day LLP,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, in
substantially the form attached as Exhibit A hereto.
(c) The Company shall have requested and caused ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇,
general counsel for the Company, to have furnished to the Representatives
his opinion, dated the Closing Date and addressed to the Representatives,
in substantially the form attached as Exhibit B hereto.
(d) The Company shall have requested and caused Gilbride, Tusa, Last
& ▇▇▇▇▇▇▇▇, LLC, special local counsel for Omnicom Capital Inc., to have
furnished to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, in substantially the form attached as
Exhibit C hereto.
(e) The Representatives shall have received from Shearman & Sterling
LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Indenture, the Registration
Statement, the Disclosure Package, the Final Prospectus
13
(together with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose
of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representatives a
certificate of the Issuers, signed by an Executive Vice President and the
principal financial or accounting officer of each of the Issuers, dated
the Closing Date, to the effect that the signers of such certificate have
carefully examined the Registration Statement, the Final Prospectus, the
Disclosure Package and any supplements or amendments thereto, as well as
each electronic roadshow used to offer the securities identified on
Schedule V and this Agreement and that:
(i) the representations and warranties of the Issuers in this
Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Issuers have
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use has been
issued and no proceedings for that purpose have been instituted or,
to any of the Issuers' knowledge, threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Final Prospectus
(exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth
in or contemplated in the Disclosure Package and the Final
Prospectus (exclusive of any supplement thereto).
(g) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives, at the Execution Time and at the Closing
Date, letters, (which may refer to letters previously delivered to one or
more of the Representatives), dated respectively as of the Execution Time
and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the respective applicable
rules and regulations adopted by the Commission thereunder and stating in
effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated by reference
in the Registration Statement, the Preliminary Prospectus and the
Final Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related rules and regulations
adopted by the Commission;
14
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; carrying out certain specified procedures (but not an
examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter;
a reading of the minutes of the meetings of the stockholders,
directors and audit committees of the Company and the Subsidiaries;
and inquiries of certain officials of the Company who have
responsibility for financial and accounting matters of the Company
and its subsidiaries as to transactions and events subsequent to
December 31, 2005, nothing came to their attention which caused them
to believe that:
(1) with respect to the period subsequent to December
31, 2005, there were any changes, at March 22, 2006, in the
long-term debt of the Company and its subsidiaries or capital
stock of the Company as compared with the amounts shown on the
December 31, 2005 consolidated balance sheet included or
incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus, or for the
period from January 1, 2006 to such specified date there were
any decreases, as compared with the corresponding period in
the preceding year; in revenues of the Company and its
subsidiaries, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives;
(2) the information included or incorporated by
reference in the Registration Statement, the Preliminary
Prospectus and Final Prospectus in response to Regulation S-K,
Item 301 (Selected Financial Data), Item 402 (Executive
Compensation) and Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the applicable disclosure
requirements of Regulation S-K; or
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement, the Preliminary Prospectus and
the Final Prospectus and in Exhibit 12 to the Registration
Statement, including the information set forth, the information
included or incorporated by reference in Items 1, 1A, 2, 3, 5, 6, 7,
7A and 11 of the Company's Annual Report on Form 10-K, incorporated
by reference in the Registration Statement, the Preliminary
Prospectus and the Final Prospectus, agrees with the accounting
records of the Company and its subsidiaries, excluding any questions
of legal interpretation.
References to the Final Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
15
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof), and the Final Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (g) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any supplement thereto) the effect of
which, in any case referred to in clause (i) or (ii) above, is, in the
sole judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive of
any amendment thereof), the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(j) Prior to the Closing Date, the Company shall have furnished to
the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and Subject to Section 11 hereof all
obligations of the Underwriters hereunder may be canceled at, or at any time
prior to, the Closing Date by the Representatives. Notice of such cancellation
shall be given to the Company in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Shearman & Sterling LLP, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Issuers to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
16
8. Indemnification and Contribution. (a) The Issuers agree, jointly
and severally, to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Securities as originally filed or in any amendment thereof,
or in the Base Prospectus, any Preliminary Prospectus or any other preliminary
prospectus supplement relating to the Securities, the Final Prospectus or any
Issuer Free Writing Prospectus or the information contained in the final term
sheet required to be prepared and filed pursuant to Section 5(b) hereto, or in
any amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Issuers will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Issuers, each of their directors, each of their
officers who signs the Registration Statement, and each person who
controls the Issuers within the meaning of either the Act or the Exchange
Act, to the same extent as the foregoing indemnity from the Issuers to
each Underwriter, but only with reference to written information relating
to such Underwriter furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which any Underwriter may otherwise
have. The Issuers acknowledge that the statements set forth in the last
paragraph of the cover page regarding delivery of the Securities and,
under the heading "Underwriting," (i) the list of Underwriters and their
respective participation in the sale of the Securities, (ii) the sentences
related to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and the Final Prospectus constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the Final
Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify
17
the indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it from
liability under paragraph (a) or (b) above unless and to the extent it did
not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at
the indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in
an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate counsel if (i)
the use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. In no event
shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their
own counsel in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a), (b)
or (c) of this Section 8 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Issuers and the
Underwriters severally agree to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Issuers and one or more of the
Underwriters may be subject in such proportion as is appropriate to
reflect the relative benefits received by the Issuers on the one hand and
by the Underwriters on the other from the offering of the Securities;
provided, however, that in no case shall (i) any Underwriter (except as
may be provided in any agreement among underwriters relating to the
offering of the Securities) be responsible
18
for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. If
the allocation provided by the immediately preceding sentence is
unavailable for any reason, the Issuers and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Issuers on the
one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Issuers shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by them, and benefits received by the
Underwriters shall be deemed to be equal to the total underwriting
discounts and commissions, in each case as set forth on the cover page of
the Final Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of
a material fact or the omission or alleged omission to state a material
fact relates to information provided by the Issuers on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Issuers and the Underwriters agree
that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding
the provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Issuers within the meaning
of either the Act or the Exchange Act, each officer of the Issuers who
shall have signed the Registration Statement and each director of the
Issuers shall have the same rights to contribution as the Issuers, subject
in each case to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule II hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule II hereto,
the remaining Underwriters shall have the right to purchase all, but shall not
be under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Issuers. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the
19
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Issuers and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's common stock shall have been suspended by
the Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared either by Federal, New York State or Delaware State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Representatives, impractical or inadvisable
to proceed with the offering or delivery of the Securities as contemplated by
any Preliminary Prospectus or the Final Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Issuers or their officers and of the Underwriters set forth in or made pursuant
to this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Issuers or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention:
General Counsel; or, if sent to the Issuers, will be mailed, delivered or
telefaxed to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ (fax no.: (212)
▇▇▇-▇▇▇▇) and confirmed to it at ▇▇▇▇▇ Day, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇, attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. No Fiduciary Duty. The Issuers hereby acknowledge that (a) the
purchase and sale of the Securities pursuant to this Agreement is an
arm's-length commercial transaction between the Issuers, on the one hand, and
the Underwriters and any affiliate through which it may be acting, on the other,
(b) the Underwriters are acting as principal and not as an agent or fiduciary of
the Issuers and (c) the Issuers' engagement of the Underwriters in connection
with the offering and the process leading up to the offering is as independent
contractors and not in
20
any other capacity. Furthermore, the Issuers agree that they are solely
responsible for making their own judgments in connection with the offering
(irrespective of whether any of the Underwriters has advised or is currently
advising the Issuers on related or other matters). The Issuers agree that they
will not claim that the Underwriters have rendered advisory services of any
nature or respect, or owe an agency, fiduciary or similar duty to the Issuers,
in connection with such transaction or the process leading thereto.
15. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Issuers and the
Underwriters, or any of them, with respect to the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
17. Waiver of Jury Trial. The Issuers hereby irrevocably waive, to
the fullest extent permitted by applicable law, any and all right to trial by
jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
18. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
19. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
20. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the
rules and regulations of the Commission promulgated thereunder.
"Base Prospectus" shall mean the base prospectus referred to in
paragraph 1(a) above contained in the Registration Statement to be used in
connection with the offer and sale of the Securities dated March 22, 2006.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Disclosure Package" shall mean (i) the Base Prospectus, (ii) the
Preliminary Prospectus used most recently prior to the Execution Time,
(iii) the Issuer Free Writing Prospectuses, if any, identified in Schedule
III hereto (iv) the final term sheet prepared and filed with the
Commission pursuant to Section 5(b) hereto, if any, and (v) any other Free
Writing Prospectus that the parties hereto shall hereafter expressly agree
in writing to treat as part of the Disclosure Package and which are
identified in Schedule III hereto.
21
"Effective Date" shall mean each date and time that the Registration
Statement and any post-effective amendment or amendments thereto became or
become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement relating to
the Securities that was first filed pursuant to Rule 424(b) after the
Execution Time, together with the Base Prospectus.
"Free Writing Prospectus" shall mean a free writing prospectus, as
defined in Rule 405.
"Issuer Free Writing Prospectus" shall mean an issuer free writing
prospectus, as defined in Rule 433.
"Preliminary Prospectus" shall mean any preliminary prospectus
supplement to the Base Prospectus referred to in paragraph 1(a) above
which is used prior to the filing of the Final Prospectus, together with
the Base Prospectus.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements and any prospectus supplement relating to the Securities that
is filed with the Commission pursuant to Rule 424(b) and deemed part of
such registration statement pursuant to Rule 430B, as amended at the
Execution Time and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended.
"Rule 158," "Rule 163," "Rule 164," "Rule 172," "Rule 405," "Rule
415," "Rule 424," "Rule 430B" and "Rule 433" refer to such rules under the
Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Well-Known Seasoned Issuer" shall mean a well-known seasoned
issuer, as defined in Rule 405.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Underwriters.
22
EXECUTION COPY
Very truly yours,
Omnicom Group Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Finance and Controller
Omnicom Finance Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
and Chief Financial
Officer
Omnicom Capital Inc.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President
The foregoing Agreement is
hereby confirmed and accepted
as of the date specified in
Schedule I hereto.
Citigroup Global Markets Inc.
By: Citigroup Global Markets Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Managing Director
For themselves and the other
several Underwriters, if any,
named in Schedule II to the
foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated March 24, 2006
Registration Statement No. 333-132625
Representative(s): Citigroup Global Markets Inc.
Title, Purchase Price and Description of Securities:
Title: 5.90% Senior Notes due 2016
Principal amount: $1,000,000,000
Purchase price (include accrued
interest or amortization, if
any): per Senior Note 98.860%
Sinking fund provisions: None.
Redemption provisions: Make Whole Spread: 25 basis points
Closing Date, Time and Location: March 29, 2006 at 10:00 a.m. at Shearman &
Sterling LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Type of Offering: Non-delayed
Date referred to in Section 5(i) after which the Company may offer or sell debt
securities issued or guaranteed by the Company without the consent of the
Representative(s): April 24, 2006
SCHEDULE II
Principal Amount
of Securities to
Underwriters be Purchased
------------ ------------
Citigroup Global Markets Inc. .......................... $561,500,000
Banc of America Securities LLC ......................... 61,500,000
HSBC Securities (USA) Inc. ............................. 61,500,000
LaSalle Financial Services, Inc. ....................... 61,500,000
SG Americas Securities, LLC ............................ 61,500,000
Barclays Capital Inc. .................................. 38,500,000
BNP Paribas Securities Corp. ........................... 38,500,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ...................... 38,500,000
UBS Securities LLC ..................................... 38,500,000
Wachovia Capital Markets, LLC .......................... 38,500,000
Total.......................................... $1,000,000,000
==============
SCHEDULE III
Schedule of Free Writing Prospectuses included in the Disclosure Package
Final Terms and Conditions, dated March 24, 2006, for $1,000,000,000 aggregate
principal amount of 5.90% Senior Notes due 2016, filed with the Commission by
the Company pursuant to Rule 433 under the Securities Act.
SCHEDULE IV
PRICING TERM SHEET
Issuers: Omnicom Group Inc., Omnicom Capital Inc. and
Omnicom
Finance Inc.
Ratings: Baa1 (▇▇▇▇▇'▇); A- (S&P); A- (Fitch)
Issue of Securities: 5.90% Senior Notes due 2016
Principal Amount: $1,000,000,000
Coupon: 5.90% per annum
Interest Payment Dates: Semi-annually on April 15 and October 15,
commencing October 15, 2006
Maturity: April 15, 2016
Treasury Benchmark: 4.500% due February 15, 2016
US Treasury Yield: 4.665%
Spread to Treasury: 130 basis points
Re-offer Yield: 5.965%
Initial Price to Public: per Senior Note: 99.51%; Total: $995,100,000
Underwriters' Discount: per Senior Note: 0.650%; Total: $6,500,000
Proceeds, before expenses,
to us: per Senior Note: 98.86%; Total: $988,600,000
Optional Redemption: Make Whole Spread: 25 basis points
Minimum Denomination: $1,000
Settlement Date: March 29, 2006 (T+3)
CUSIP: ▇▇▇▇▇▇▇▇▇
ISIN: US681919AS54
Underwriters: Citigroup Global Markets Inc. ($561,500,000), Banc
of America Securities LLC ($61,500,000), HSBC
Securities (USA) Inc. ($61,500,000), LaSalle
Financial Services, Inc. ($61,500,000), SG
Americas Securities, LLC ($61,500,000), Barclays
Capital Inc. ($38,500,000), BNP Paribas Securities
Corp. ($38,500,000), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
Incorporated ($38,500,000), UBS Securities LLC
($38,500,000), Wachovia Capital Markets, LLC
($38,500,000).
The security ratings above are not a recommendation to buy, sell or hold the
securities offered hereby. The ratings may be subject to revision or withdrawal
at any time ▇▇▇▇▇'▇, Standard &
Poor's and Fitch Ratings. Each of the security ratings above should be evaluated
independently of any other security rating.
The issuers have filed a registration statement (including a prospectus) with
the SEC for the offering to which this communication relates. Before you invest,
you should read the prospectus in that registration statement and other
documents the issuers have filed with the SEC for more complete information
about the issuer and this offering. You may get these documents for free by
visiting ▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, the issuers,
any underwriter or any dealer participating in the offering will arrange to send
you the prospectus if you request it by calling Citigroup Global Markets Inc.
toll-free at 1-877-858-5407.
SCHEDULE V
1. Electronic (Bloomberg) road show of the Company relating to the
offering of the Securities dated March 2006.
EXHIBIT A
OPINION OF COUNSEL FOR THE COMPANY
EXHIBIT C
OPINION OF COUNSEL FOR OMNICOM CAPITAL INC.
