1
Exhibit 10.25
AMENDMENT NO. 1 TO THE
YOUNG & RUBICAM RESTRICTED STOCK TRUST AGREEMENT
WHEREAS, Young & Rubicam Inc., a corporation organized under the
laws of the State of Delaware, (hereinafter referred to as the "Company"), as
successor to Young & Rubicam Holdings Inc., and The Bank of New York, a bank
organized under the laws of the State of New York (hereinafter referred to as
the "Trustee"), made and entered into the Young & Rubicam Restricted Stock Trust
Agreement as of December 12, 1996 (the "Trust Agreement");
WHEREAS, Section 11.1 of the Trust Agreement provides for amendment
of the Trust Agreement by the Compensation Committee of the Company with the
written consent of the HFCP Investors and the Management Voting Trust (as each
such term is defined in the Trust Agreement);
WHEREAS, Section 11.2 of the Trust Agreement provides that the
Company and the Trustee shall execute such amendments of the Trust Agreement as
shall be necessary to give effect to any amendment made pursuant to Section 11.1
of the Trust Agreement;
NOW, THEREFORE, the Trust Agreement is hereby amended, effective as
of the date set forth below, as follows:
1. A new whereas clause is added as the second whereas clause of the
recitals to read in its entirety as follows:
WHEREAS, the Company and its affiliates maintain bonus programs for
the benefit of certain employees of the Company and its affiliates
(the "Bonus Programs") which provide for annual cash bonuses (each,
an "Annual Bonus") to such employees and the Company and its
affiliates pay salaries to employees of the Company and its
affiliates ("Salaries");
2. The third and fourth whereas clauses of the recitals (as
renumbered by the addition of a new second whereas clause) are amended and
restated in their entirety as follows:
WHEREAS, the Plan contemplates that the employees and independent
contractors covered by the Plan will receive shares of Common Stock
upon the occurrence of certain events, the Bonus Programs
contemplate that the employees covered by the Bonus Programs will
receive Annual Bonuses and the Company contemplates that employees
of it and its affiliates will receive Salaries (the employees and
independent contractors covered by
2
the Plan or the Bonus Programs or eligible to receive Salaries,
collectively, the "Participants");
WHEREAS, the Company has established a trust (the "Young & Rubicam
Restricted Stock Trust" or "Trust") which it proposes to use to aid
it in meeting its obligations pursuant to Awards granted under the
Plan and agreements with Participants evidencing such Awards (the
"Restricted Stock Agreements"), its obligations pursuant to Annual
Bonuses awarded under the Bonus Programs and its obligations to pay
Salaries to Participants;
3. Section 1.2 is amended by the insertion of the words "and the
Bonus Programs and with respect to their Salaries" after the word "Plan" in the
third line thereof.
4. Section 3.1 is amended by the insertion of the words "Except for
a sale of such shares to the Company pursuant to Section 5.1(b) hereof," at the
beginning of the first sentence thereof and by the insertion of the words
"(including, but not limited to, sales of shares of Common Stock or related
Voting Trust Certificates pursuant to Section 5.1(b))" after the words "except
for those transactions specifically contemplated herein" in the second sentence
thereof.
5. Section 4.2 is amended by the insertion of the words "in the
Plan" after the word "Participant" in the second line thereof.
6. Section 4.3 is amended by the insertion of the words "or sale to
the Company pursuant to Section 5.1(b) hereof" at the end of the fifth sentence
thereof.
7. The second and third sentences of Section 5.1(a) are amended and
restated in their entirety as follows:
Notwithstanding the foregoing provisions of this Section 5.1(a) but
subject to Section 5.2 hereof, the Trustee shall make payments to a
Participant in the Plan, in the absence of the instructions of the
Committee, after having given 15 days' prior written notice to the
HFCP Investors and the Management Voting Trust, (i) if such
Participant claims such amounts are due and if a reputable service
provider (which has expertise in employee benefit matters and which
the Committee has appointed to determine claims for benefits by
Participants under the Plan, having given written notice of such
appointment to the Trustee) instructs in writing the Trustee to make
such payments or distributions to such Participant or (ii) upon
receipt of a final nonappealable order of a court of competent
jurisdiction determining that the Company is obligated to make such
payments or distributions to a Participant under the Plan. Except
for any distribution pursuant to Section 5.2(b) hereof or
2
3
Section 12.1 of the Plan, in no event shall any distribution be made
to any Participant under the Plan in excess of the amount in the
Participant's Accounts.
8. A new Section 5.1(b) is added to read in its entirety as follows,
and current Sections 5.1(b), (c) and (d) shall be redesignated as Sections
5.1(c), (d) and (e), respectively:
Subject to Section 5.2 and Section 14 hereof, the Committee shall
instruct in writing the Trustee to distribute amounts held in cash
in the Unallocated Account to the Company (in order for the Company
either to pay its own employees participating in the Bonus Programs
or entitled to Salaries or to contribute amounts to its affiliate to
pay such affiliate's employees participating in the Bonus Program or
entitled to Salaries) at such time and in such amounts as are
certified to the Trustee by the Committee, unless the Committee
directs the Trustee in writing that such Annual Bonuses or Salaries
be paid directly to such Participants by the Trustee and specifies
to the Trustee in such written direction the amount and timing of
payment to each such Participant, as well as all other information
necessary for the Trustee to effect payment to such Participants.
Notwithstanding any other provision of the Trust Agreement or the
Plan to the contrary, but subject to Section 5.2 and Section 14
hereof, in the event that the Trustee is directed to distribute cash
to the Company on behalf of Participants under the Bonus Programs or
entitled to Salaries or to such Participants directly, the Trustee
shall, as directed in writing by the Committee, offer to sell to the
Company, and the Company hereby agrees to purchase, the necessary
number of shares of Common Stock (or related Voting Trust
Certificates) held in the Unallocated Account at fair market value
as determined by the Committee or the provisions of this Section
5.1(b) (the Trustee being able to rely conclusively on such
determination of fair market value) such that proceeds from the sale
are (or, if such sale occurs prior to an Initial Public Offering (as
defined in the Plan), the first installment payment is) sufficient
to pay such Annual Bonuses or Salaries. Prior to an Initial Public
Offering, the Company shall purchase shares of Common Stock (or
related Voting Trust Certificates) pursuant to the foregoing
sentence in two installment payments; provided that such sale shall
be deemed to occur only upon receipt by the Trustee of the second
installment payment (or, if the amount of the second installment
payment is zero, at the time such second installment payment is due)
and the Trustee shall not release any such shares of Common Stock
(or related Voting Trust Certificates) prior thereto; provided,
however, that if on or prior to the date the second installment
payment is due the Company (i)
3
4
fails to pay the second installment payment or (ii) fails to provide
the Trustee with evidence reasonably satisfactory to the Trustee
that execution of Amendment No. 1 to the Trust Agreement and any
related amendments to the Stockholders' Agreement were duly
ratified, the first installment payment shall be treated solely as
an additional contribution to the Trust Fund by the Company and
under no circumstances shall the Trust be required to repay the
first installment payment to the Company. With respect to any sale
occurring as a result of a written direction to distribute cash
received by the Trustee within the first six months of calendar year
1998, the per share value for the first installment payment shall be
$185 and with respect to any sale occurring after such period, the
per share value for the first installment payment shall be equal to
the Public Market Value (as defined in the Stockholders' Agreement)
less 15% determined as of the last Regular Valuation Date preceding
the date of the first installment payment. The second installment
payment shall be paid upon the consummation of an Initial Public
Offering or, if no Initial Public Offering has occurred within four
months after the date of the first installment payment, on the date
four months after the date of the first installment payment and the
per share value for the second installment payment shall be equal to
the excess (if any) of (i) the price at which a share of Common
Stock is offered to the public in an Initial Public Offering, if an
Initial Public Offering occurs within such four month period, or, if
an Initial Public Offering does not occur within such four month
period, the Public Market Value per share (as defined in the
Stockholders' Agreement) less 15% determined as of the last Regular
Valuation Date preceding the date of the second installment payment
over (ii) the per share value for the first installment payment. The
purchase of shares of Common Stock (or related Voting Trust
Certificates) by the Company from the Trustee shall constitute a
deemed representation by the Company to the Trustee that at the time
of the purchase, such purchase does not violate any applicable
federal or state securities law. The Trustee shall have no duty to
make any distribution of cash from the Unallocated Account, or sale
of shares of Common Stock (or related Voting Trust Certificates)
held in the Unallocated Account, in the absence of written
directions from the Committee, and the Trustee shall have no duty to
solicit such directions from the Committee. The Trustee can rely
conclusively upon the written directions of the Committee with
respect to the Unallocated Account. The Trustee shall have no duty
to compel the Company to purchase shares of Common Stock (or related
Voting Trust Certificates) held in the Unallocated Account or to
compel the Company to make any installment
4
5
payments as specified herein, and the Trustee shall have no duty to
ensure that amounts distributed by the Trustee to the Company for
the payment of Annual Bonuses or Salaries are used by the Company
for such purpose. In no event shall the Trustee be obligated to make
any distribution with respect to Annual Bonuses or Salaries in
excess of cash held in the Unallocated Account after the receipt of
any sale proceeds or installment payments due on or before that
date.
9. Newly designated Section 5.1(d) is amended by the insertion of
the words "or as shown on the records of the Company" after the word
"Participant" in the third line thereof.
10. Section 5.3 is amended by the insertion of the words "the Bonus
Programs, Salaries," after the word "Plan" in the fourth line thereof.
11. Section 13.3 is amended by the insertion of the words "or as
shown on the records of the Company" after the word "Participant" in the third
line thereof.
12. Section 17 is amended by the insertion of the words "(other than
any act or omission under Section 5.1(b) hereof, including, but not limited to,
any act or omission taken or not taken pursuant to the terms of Section 5.1(b)
hereof as set forth in any amendment to this Trust Agreement that is executed by
the Company on an unauthorized or otherwise ultra xxxxx basis)" after the word
"omission" in the sixth line thereof.
This Amendment No. 1 to the Trust Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to constitute one and the same
agreement.
5
6
IN WITNESS WHEREOF, this Amendment No. 1 to the Trust Agreement has
been duly executed by the parties hereto as of March 13, 1998.
Young & Rubicam Inc.
By /s/ Xxxxxxxxx X. Xxxxxxxx
Attest -------------------------------
/s/ Xxxx X. XxXxxxx
-------------------------------
The Bank of New York, as Trustee
By /s/ Xxxxxxx Xxxxxxx
Attest -------------------------------
/s/ Xxxxxx Xxxxxxx
-------------------------------
Consented to:
The HFCP Investors
By: H&F Investors III, Inc., a California corporation, as managing general
partner of Xxxxxxx & Xxxxxxxx Associates III, L.P., a California limited
partnership, as managing general partner of H&F Investors III, a California
general partnership, as general partner of each of the HFCP Investors which is a
partnership
/s/ Xxxxxxx Xxxxxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Attorney-in-Fact
6
7
Consented to:
The Management Voting Trust
By: The Voting Trustee Representative
/s/ Xxxxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx, Esq.
Title: Voting Trustee
7
8
STATE OF )
:ss.:
COUNTY OF )
On the ____ day of __________, nineteen hundred and ninety eight,
before me personally came ____________________, to me known, who being by me
duly sworn, did depose and say that s/he resides at _________________________
and is the __________________ of ______________________, one of the entities
described in this instrument and had the rights to execute and did execute the
instrument on behalf of such entity.
Notary Public
STATE OF )
:ss.:
COUNTY OF )
On the ____ day of __________, nineteen hundred and ninety eight,
before me personally came ____________________, to me known, who being by me
duly sworn, did depose and say that s/he resides at _________________________
and is the __________________ of ______________________, one of the entities
described in this instrument and had the rights to execute and did execute the
instrument on behalf of such entity.
Notary Public
9
STATE OF )
:ss.:
COUNTY OF )
On the ____ day of __________, nineteen hundred and ninety eight,
before me personally came ____________________, to me known, who being by me
duly sworn, did depose and say that s/he resides at _________________________
and is the __________________ of ______________________, one of the entities
described in this instrument and had the rights to execute and did execute the
instrument on behalf of such entity.
Notary Public
STATE OF )
:ss.:
COUNTY OF )
On the ____ day of __________, nineteen hundred and ninety eight,
before me personally came ____________________, to me known, who being by me
duly sworn, did depose and say that s/he resides at _________________________
and is the __________________ of ______________________, one of the entities
described in this instrument and had the rights to execute and did execute the
instrument on behalf of such entity.
Notary Public
