Exhibit 4.1
EXECUTION COPY
STOCK OPTION AGREEMENT
STOCK OPTION AGREEMENT, dated as of December 20, 1999 (the
"Agreement"), between The Interpublic Group of Companies, Inc., a Delaware
corporation ("Grantee") and NFO Worldwide, Inc., a Delaware corporation
("Issuer").
W I T N E S S E T H:
WHEREAS, concurrently herewith, the parties are entering into the
Agreement and Plan of Merger (the "Merger Agreement");
WHEREAS, as a condition and inducement to Grantee"s execution of the
Merger Agreement and in furtherance of the transactions contemplated thereby and
in consideration therefor, Issuer has agreed to grant Grantee the Option (as
hereinafter defined); and
WHEREAS, the Board of Directors of Issuer has approved the grant of the
Option and the Merger Agreement prior to the execution hereof;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein and in the Merger Agreement, the
parties hereto agree as follows:
1. The Option. (a) Issuer hereby grants to Grantee an unconditional,
irrevocable option (the "Option") to purchase, subject to the terms hereof, up
to an aggregate of 4,448,684 fully paid and nonassessable shares of the common
stock, $0.01 par value per share, of Issuer ("Common Stock") at a price per
share equal to $26.00 (such price, as adjusted if applicable, the "Option
Price"); provided, however, that in the event Issuer issues or agrees to issue
any shares of Common Stock (other than as permitted under the Merger Agreement)
at a price less than the Option Price (as adjusted pursuant to Section 5), the
Option Price shall be equal to such lesser price; provided, further, that in no
event shall the number of shares for which this Option is exercisable exceed
19.9% of the issued and outstanding shares of Common Stock at the time of
exercise without giving effect to the shares of Common Stock issued or issuable
under the Option. The number of shares of Common Stock that may be received upon
the exercise of the Option and the Option Price are subject to adjustment as
herein set forth.
(b) In the event that any additional shares of Common Stock are issued
or otherwise become outstanding after the date of this Agreement (other than
pursuant to this Agreement and other than pursuant to an event described in
Section 5(a) hereof), the number of shares of Common Stock subject to the Option
shall be increased so that, after such issuance, such number together with any
shares of Common Stock previously issued pursuant hereto, equals 19.9% of the
number of shares of Common Stock then issued and outstanding without giving
effect to any shares subject or issued pursuant to the Option. Nothing contained
in this Section 1(b) or elsewhere in this Agreement shall be deemed to authorize
Issuer to breach any provision of the Merger Agreement.
2. Exercise; Closing. (a) Grantee and/or any other person that shall
become a holder of all or part of the Option in accordance with the terms of
this Agreement (each such person being referred to herein as the "Holder") may
exercise the Option, in whole or part, if, but only if, both an Initial
Triggering Event (as defined below) and a Subsequent Triggering Event (as
defined below) shall have occurred prior to the occurrence of an Exercise
Termination Event (as defined below), provided that the Holder shall have sent
written notice of such exercise (as provided in subsection (f) of this Section
2) within 180 days following such Subsequent Triggering Event (or such later
period as provided in Section 10).
(b) Each of the following shall be an "Exercise Termination Event":
(i) the Effective Time (as defined in the Merger
Agreement);
(ii) termination of the Merger Agreement by mutual agreement
of the parties pursuant to Section 8.1 of the Merger
Agreement, by either Issuer or Grantee pursuant to
Section 8.2(c) of the Merger Agreement or by Issuer
pursuant to Section 8.3(a) of the Merger Agreement;
(iii) except as provided in clause (ii), termination of the
Merger Agreement in accordance with the provisions
thereof if such termination occurs prior to the
occurrence of an Initial Triggering Event, except a
termination by Grantee pursuant to Section 8.4(b) of
the Merger Agreement as a result of a breach of a
covenant by Issuer or a breach of a representation by
Issuer;
(iv) the passage of 12 months after termination of the
Merger Agreement (or such later period as provided in
Section 10) if such termination (A) follows or is
concurrent with the occurrence of an Initial Triggering
Event or (B) is a termination by Grantee pursuant to
Section 8.4(b) of the Merger Agreement as a result of a
breach of a covenant by Issuer; or
(v) the receipt by Grantee (pursuant to its request) of the
sum of $25 million in respect of the termination fee
under the Merger Agreement.
(c) The term "Initial Triggering Event" shall mean any of the following
events or transactions occurring after the date hereof:
(i) (A) Issuer or any of its Subsidiaries (as defined in
Rule 1-02 of Regulation
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S-X promulgated by the Securities and Exchange
Commission (the "SEC")) (each an "Issuer Subsidiary"),
without having received Grantee"s prior written
consent, shall have entered into an agreement to engage
in an Acquisition Transaction (as defined below) with
any person (the term "person" for purposes of this
Agreement having the meaning assigned thereto in
Sections 3(a)(9) and 13(d)(3) of the Exchange Act)
other than Grantee or any of its Subsidiaries (each a
"Grantee Subsidiary") or (B) the Board of Directors of
Issuer shall have recommended that the stockholders of
Issuer approve or accept any Acquisition Transaction
(other than the Merger referred to in the Merger
Agreement). For purposes of this Agreement,
"Acquisition Transaction" shall mean (A) a merger or
consolidation, or any similar transaction, involving
Issuer, (B) a purchase, lease or other acquisition or
assumption of all or more than 20% of the consolidated
assets of Issuer (including by way of merger,
consolidation, share exchange or otherwise involving
any Subsidiary of Issuer), (C) a purchase or other
acquisition (including by way of merger, consolidation,
share exchange or otherwise) of beneficial ownership
(the term "beneficial ownership" for purposes of this
Agreement having the meaning assigned thereto in
Section 13(d) of the Exchange Act, and the rules and
regulations thereunder) of securities representing 20%
or more of the voting power of Issuer, or (D) any
substantially similar transaction; provided, however,
that in no event shall any merger, consolidation,
purchase or similar transaction involving only the
Issuer and one or more of its wholly-owned Subsidiaries
or involving only any two or more of such wholly-owned
Subsidiaries, be deemed to be an Acquisition
Transaction, if such transaction is not entered into in
violation of the terms of the Merger Agreement;
(ii) Issuer or any Issuer Subsidiary, without having
received Grantee"s prior written consent, shall have
authorized, recommended, proposed or publicly announced
its intention to authorize, recommend or propose, to
engage in an Acquisition Transaction with any person
other than Grantee or a Grantee Subsidiary or shall
have authorized or engaged in, or announced its
intention to authorize or engage in, any negotiations
regarding an Acquisition Transaction with any person
other than the Grantee or a Grantee Subsidiary, or the
Board of Directors of Issuer shall have failed to
recommend or shall have publicly withdrawn or modified,
or publicly announced its intention to
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withdraw or modify, in any manner adverse to Grantee,
its recommendation that the stockholders of Issuer
approve the Merger;
(iii) The shareholders of Issuer shall have voted and failed
to approve the Merger at a meeting which has been held
for that purpose or any adjournment or postponement
thereof, or such meeting shall not have been held in
violation of the Merger Agreement or shall have been
canceled prior to termination of the Merger Agreement
if, prior to such meeting (or if such meeting shall not
have been held or shall have been canceled, prior to
such termination), any person (other than the Grantee
or a Grantee Subsidiary) shall have made a proposal to
Issuer or its stockholders by public announcement or
written communication that is or becomes the subject of
public disclosure to engage in an Acquisition
Transaction;
(iv) (a) Any person other than Grantee or any Grantee
Subsidiary shall have acquired beneficial ownership or
the right to acquire beneficial ownership of 20% or
more of the then outstanding shares of Common Stock or
(b) any group (the term "group" having the meaning
assigned in Section 13(d)(3) of the Exchange Act),
other than a group of which the Grantee or any Grantee
Subsidiary is a member, shall have been formed that
beneficially owns 20% or more of the shares of Common
Stock then outstanding;
(v) Any person other than Grantee or any Grantee Subsidiary
shall have made a bona fide proposal to Issuer or its
stockholders to engage in an Acquisition Transaction
and such proposal shall have become publicly known;
(vi) Issuer shall have breached any covenant or obligation
contained in the Merger Agreement in anticipation of
engaging in an Acquisition Transaction and such breach
(A) would entitle Grantee to terminate the Merger
Agreement and (B) shall not have been cured prior to
the Notice Date (as defined below); or
(vii) Any person other than Grantee or any Grantee
Subsidiary, other than in connection with a transaction
to which Grantee has given its prior written consent,
shall have filed with any federal, state or foreign
regulatory or governmental authority an application for
approval or notice of intention to
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engage in an Acquisition Transaction.
(d) The term "Subsequent Triggering Event" shall mean the occurrence,
after the date hereof, of either (i) the Initial Triggering Event described in
paragraph (i)(A) of subsection (c) of this Section 2, except that the references
to 20% in clause (B) and clause (C) of paragraph (i) shall each be deemed to be
a reference to 40% or (ii) the acquisition by any person other than Grantee or
any Grantee Subsidiary or by a group not including Grantee or any Grantee
Subsidiary of beneficial ownership of 50% or more of the then outstanding Common
Stock.
(e) Issuer shall notify Grantee promptly in writing of the occurrence
of any Initial Triggering Event or Subsequent Triggering Event (together, a
"Triggering Event"), it being understood that the giving of such notice by
Issuer shall not be a condition to the right of the Holder to exercise the
Option.
(f) In the event the Holder is entitled to and wishes to exercise the
Option (or any portion thereof), it shall send to Issuer a written notice (the
date of which being herein referred to as the "Notice Date") specifying (i) the
total number of shares it will purchase pursuant to such exercise and (ii) a
place and date not earlier than three business days nor later than 60 business
days from the Notice Date for the closing of such purchase (the "Closing Date");
provided, that if the closing of such purchase cannot be consummated by reason
of any applicable judgment, injunction, decree, order, law or regulation, the
period of time that would otherwise run pursuant to this sentence shall run
instead from the date on which such restriction on consummation has expired or
been terminated; and provided, further, that if prior notification to or
approval of any regulatory or antitrust agency is required in connection with
such purchase, the Holder shall promptly file the required notice or application
for approval and shall expeditiously process the same and the period of time
that otherwise would run pursuant to this sentence shall run instead from the
date on which any required notification periods have expired or been terminated
or such approvals have been obtained and any requisite waiting period or periods
shall have passed. Any exercise of the Option shall be deemed to occur on the
Notice Date relating thereto.
(g) At the closing referred to in subsection (f) of this Section 2, the
Holder shall pay to Issuer the aggregate purchase price for the shares of Common
Stock purchased pursuant to the exercise of the Option in immediately available
funds by wire transfer to a bank account designated by Issuer, provided that
failure or refusal of Issuer to designate such a bank account shall not preclude
the Holder from exercising the Option.
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(h) At such closing, simultaneously with the delivery of immediately
available funds as provided in subsection (g) of this Section 2, Issuer shall
deliver to the Holder a certificate or certificates representing the number of
shares of Common Stock purchased by the Holder and, if the Option should be
exercised in part only, a new Option evidencing the rights of the Holder thereof
to purchase the balance of the shares purchasable hereunder.
(i) Certificates for Common Stock delivered at a closing hereunder may
be endorsed with a restrictive legend that shall read substantially as follows:
"The transfer of the shares represented by this
certificate is subject to certain provisions of an
agreement between the registered holder hereof and
Issuer and to resale restrictions arising under
applicable securities laws (including the Securities
Act of 1933, as amended). A copy of such agreement
is on file at the principal office of Issuer and
will be provided to the holder hereof without charge
upon receipt by Issuer of a written request
therefor."
It is understood and agreed that: (i) the reference to the resale restrictions
arising under applicable securities laws, including the Securities Act of 1933,
as amended (the "Securities Act"), in the above legend shall be removed by
delivery of substitute certificate(s) without such reference if the Holder shall
have delivered to Issuer a copy of a letter from the staff of the SEC, or an
opinion of counsel, in form and substance reasonably satisfactory to Issuer, to
the effect that such legend is not required for purposes of the Securities Act
or other applicable securities laws; (ii) the reference to the provisions of
this Agreement in the above legend shall be removed by delivery of substitute
certificate(s) without such reference if the shares have been sold or
transferred in compliance with the provisions of this Agreement and under
circumstances that do not require the retention of such reference in the opinion
of counsel to the Holder, in form and substance reasonably satisfactory to
Issuer; and (iii) the legend shall be removed in its entirety if the conditions
in the preceding clauses (i) and (ii) are both satisfied. In addition, such
certificates shall bear any other legend as may be required by law.
(j) Upon the giving by the Holder to Issuer of the written notice of
exercise of the Option provided for under subsection (f) of this Section 2 and
the tender of the applicable purchase price in immediately available funds, the
Holder shall be deemed to be the holder of record of the shares of Common Stock
issuable upon such exercise, notwithstanding that the stock transfer books of
Issuer shall then be closed or that certificates representing such shares of
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Common Stock shall not then be actually delivered to the Holder. Issuer shall
pay all expenses, and any and all United States federal, state and local taxes
and other charges that may be payable in connection with the preparation, issue
and delivery of stock certificates under this Section 2 in the name of the
Holder or its assignee, transferee or designee.
3. Covenants of Issuer. In addition to its other agreements and
covenants herein, Issuer agrees:
(a) that it shall at all times maintain, free from any subscriptive or
preemptive rights, sufficient authorized but unissued or treasury shares of
Common Stock so that the Option may be exercised without additional
authorization of Common Stock after giving effect to all other options,
warrants, convertible securities and other rights of third parties to purchase
Common Stock from Issuer or to cause Issuer to issue shares of Common Stock;
(b) that it will not, by charter amendment or through reorganization,
consolidation, merger, dissolution or sale of assets, or by any other voluntary
act, avoid or seek to avoid the observance or performance of any of the
covenants, stipulations or conditions to be observed or performed hereunder by
Issuer; and
(c) promptly to take all action (i) as may from time to time be
required (including complying with all applicable notification, filing reporting
and waiting period requirements under HSR or otherwise, and cooperating fully
with the Holder in preparing any applications or notices and providing such
information to any regulatory authority as it may require) in order to permit
the Holder to exercise the Option and Issuer duly and effectively to issue
shares of Common Stock pursuant hereto, and (ii) as may from time to time be
required to protect the rights of the Holder against dilution
4. Exchange; Replacement. This Agreement (and the Option granted
hereby) are exchangeable, without expense, at the option of the Holder, upon
presentation and surrender of this Agreement at the principal office of Issuer,
for other Agreements providing for Options of different denominations entitling
the holder thereof to purchase, on the same terms and subject to the same
conditions as are set forth herein, in the aggregate the same number of shares
of Common Stock purchasable hereunder. The terms "Agreement" and "Option" as
used herein include any Agreements and related Options for which this Agreement
(and the Option granted hereby) may be exchanged. Upon receipt by Issuer of
evidence reasonably satisfactory to it of the loss, theft, destruction or
mutilation of this Agreement, and (in the case of loss, theft
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or destruction) of reasonably satisfactory indemnification, and upon surrender
and cancellation of this Agreement, if mutilated, Issuer will execute and
deliver a new Agreement of like tenor and date. Any such new Agreement executed
and delivered shall constitute an additional contractual obligation on the part
of Issuer, whether or not the Agreement so lost, stolen, destroyed or mutilated
shall at any time be enforceable by any person other than the holder of the new
Agreement.
5. Adjustments. In addition to the adjustment in the number of shares
of Common Stock that are purchasable upon exercise of the Option pursuant to
Section 1 hereof, the number of shares of Common Stock purchasable upon the
exercise of the Option and the Option Price shall be subject to adjustment from
time to time as provided in this Section 5.
(a) In the event of any change in, or distributions in respect of, the
Common Stock by reason of stock dividends, split-ups, mergers,
recapitalizations, combinations, subdivisions, conversions, exchanges of shares
or the like, the type and number of shares of Common Stock purchasable upon
exercise hereof shall be appropriately adjusted and proper provision shall be
made so that, in the event that any additional shares of Common Stock are to be
issued or otherwise become outstanding as a result of any such change (other
than pursuant to an exercise of the Option), the number of shares of Common
Stock that remain subject to the Option shall be increased so that, after such
issuance and together with shares of Common Stock previously issued pursuant to
the exercise of the Option (as adjusted on account of any of the foregoing
changes in the Common Stock), it equals 19.9% of the number of shares of Common
Stock then issued and outstanding.
(b) Whenever the number of shares of Common Stock purchasable upon
exercise hereof is adjusted as provided in this Section 5, the Option Price
shall be adjusted by multiplying the Option Price by a fraction, the numerator
of which shall be equal to the number of shares of Common Stock purchasable
prior to the adjustment and the denominator of which shall be equal to the
number of shares of Common Stock purchasable after the adjustment.
6. Registration. (a) Upon the occurrence of any Subsequent Triggering
Event that occurs prior to an Exercise Termination Event, Issuer shall, subject
to Section 6(d) hereof, at the request of Grantee delivered within twelve (12)
months (or such later period as provided in Section 10 hereof) of such
Subsequent Triggering Event (whether on its own behalf or on behalf of any
subsequent holder of this Option (or part thereof) or any of the shares of
Common Stock issued pursuant hereto), promptly prepare, file and keep current a
shelf registration statement
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under the Securities Act covering this Option and any shares issued and issuable
pursuant to this Option and shall use its reasonable best efforts to cause such
registration statement to become effective and remain current in order to permit
the sale or other disposition of this Option and any shares of Common Stock
issued upon total or partial exercise of this Option ("Option Shares") in
accordance with any plan of disposition requested by Grantee. Issuer will use
its reasonable best efforts to cause such registration statement promptly to
become effective and then to remain effective for a period not in excess of 180
days from the day such registration statement first becomes effective or such
shorter time as may be reasonably necessary, in the judgment of the Grantee or
the Holder, to effect such sales or other dispositions. Grantee shall have the
right to demand two such registrations. The Issuer shall bear the costs of such
registrations (including, but not limited to, Issuer"s attorneys" fees, printing
costs and filing fees, except for underwriting discounts or commissions,
brokers" fees and the fees and disbursements of Grantee"s counsel related
thereto). The foregoing notwithstanding, if, at the time of any request by
Grantee for registration of the Option or Option Shares as provided above,
Issuer is in registration with respect to an underwritten public offering by
Issuer of shares of Common Stock, and if in the good faith judgment of the
managing underwriter or managing underwriters, or, if none, the sole underwriter
or underwriters, of such offering the inclusion of the Option or Option Shares
would interfere with the successful marketing of the shares of Common Stock
offered by Issuer, the number of Option Shares otherwise to be covered in the
registration statement contemplated hereby may be reduced to the extent
necessary to eliminate such condition; provided, however, that if such reduction
occurs (including a reduction to zero), then Issuer shall file a registration
statement for the balance as promptly as practicable thereafter as to which no
reduction pursuant to this Section 6 shall be permitted to occur and the Holder
shall be deemed not to have made an additional registration demand and the
twelve (12) month period referred to in the first sentence of this section shall
be increased to twenty-four (24) months. Each such Holder shall provide all
information reasonably requested by Issuer for inclusion in any registration
statement to be filed hereunder. If requested by any such Holder in connection
with such registration, Issuer shall become a party to any underwriting
agreement relating to the sale of such shares, but only to the extent of
obligating itself in respect of representations, warranties, indemnities and
other agreements customarily included in such underwriting agreements for
Issuer. Upon receiving any request under this Section 6 from any Holder, Issuer
agrees to send a copy thereof to any other person known to Issuer to be entitled
to registration rights under this Section 6, in each case by promptly mailing
the same, postage prepaid, to the address of record of the persons entitled to
receive such copies. Notwithstanding anything to the contrary contained herein,
in no event shall the number of registrations that Issuer is obligated to effect
be increased by reason of the fact that there shall be more than one Holder
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as a result of any assignment or division of this Agreement.
(b) In the event that Grantee so requests, the closing of the sale or
other disposition of the Common Stock or other securities pursuant to a
registration statement filed pursuant to Section 6(a) hereof shall occur
substantially simultaneously with the exercise of the Option.
(c) If the Common Stock or the class of any other securities to be
acquired upon exercise of the Option are then listed on the New York Stock
Exchange ("NYSE") or any national securities exchange, Issuer, upon the request
of the Holder, shall promptly file an application to list the Common Stock or
other securities to be acquired upon exercise of the Option on NYSE or such
exchange and will use its reasonable best efforts to obtain approval of such
listing as soon as practicable.
(d) Issuer may delay any registration of the Option or Option Shares
required pursuant to Section 6(a) hereof for one period not in excess of 90
consecutive calendar days if, in the reasonable good faith judgment of Issuer,
such registration would materially and adversely affect a proposed merger,
consolidation or similar transaction (including through the premature disclosure
thereof) or offering or contemplated offering of other securities by Issuer.
(e) Issuer shall indemnify and hold harmless the Holder and its
controlling persons (as defined in Section 20 of the Exchange Act) in connection
with any material misstatement or omission in the registration statement for any
such registration under this Section 6 except to the extent arising from written
information provided by the Holder specifically for inclusion in such
registration statement. The Holder shall indemnify and hold harmless the Issuer
and its controlling persons in connection with any material misstatement or
omission in any such registration statement to the extent arising from written
information provided by the Holder specifically for inclusion in such
registration statement.
7. Repurchase of Option and/or Option Shares. (a) At any time
commencing upon the occurrence of a Repurchase Event (as defined in Section 7(d)
hereof) and ending twelve (12) months thereafter, (i) at the request of the
Holder, delivered in writing prior to an Exercise Termination Event (or such
later period as provided in Section 10), Issuer (or any successor thereto) shall
repurchase the Option from the Holder at a price (the "Option Repurchase Price")
equal to the amount by which (A) the market/offer price (as defined below)
exceeds (B) the Option Price, multiplied by the number of shares for which this
Option may then be exercised, and (ii) at the request of the owner of Option
Shares from time to time (the
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"Owner"), delivered in writing prior to an Exercise Termination Event (or such
later period as provided in Section 10), Issuer (or any successor thereto) shall
repurchase such number of Option Shares from the Owner as the Owner shall
designate at a price (the "Option Share Repurchase Price") equal to the
market/offer price multiplied by the number of Option Shares so designated. The
term "market/offer price" shall mean the highest of (i) the price per share of
Common Stock at which a tender or exchange offer therefor has been made and has
been consummated or remains outstanding, (ii) the price per share of Common
Stock to be paid by any third party pursuant to an agreement with Issuer, (iii)
the highest average closing price for shares of Common Stock for any 20 trading
day period within the three-month period immediately preceding the date the
Holder gives notice of the required repurchase of this Option or the Owner gives
notice of the required repurchase of Option Shares, as the case may be, or (iv)
in the event of a sale of all or a majority of the consolidated assets of
Issuer, the sum of the net price paid in such sale for such assets and the
current market value of the remaining net assets of Issuer as determined by a
nationally recognized investment banking firm selected by the Holder or the
Owner, as the case may be, and reasonably acceptable to Issuer, divided by the
number of shares of Common Stock outstanding at the time of such sale, which
determination, absent manifest error, shall be conclusive for all purposes of
this Agreement. In determining the market/offer price, the value of
consideration other than cash shall be determined by a nationally recognized
investment banking firm selected by the Holder or Owner, as the case may be, and
reasonably acceptable to Issuer, which determination, absent manifest error,
shall be conclusive for all purposes of this Agreement.
(b) The Holder and the Owner, as the case may be, may exercise its
right to require Issuer to repurchase the Option and any Option Shares pursuant
to this Section 7 by surrendering for such purpose to Issuer, at its principal
office, a copy of this Agreement or certificates for Option Shares, as
applicable, accompanied by a written notice or notices stating that the Holder
or the Owner, as the case may be, elects to require Issuer to repurchase this
Option and/or the Option Shares in accordance with the provisions of this
Section 7. Prior to the later of (i) the date that is five business days after
the surrender of the Option and/or certificates representing Option Shares and
the receipt of such notice or notices relating thereto and (ii) the day on which
a Repurchase Event occurs, Issuer shall deliver or cause to be delivered to the
Holder the Option Repurchase Price and/or to the Owner the Option Share
Repurchase Price or the portion thereof that Issuer is not then prohibited under
applicable law and regulation from so delivering.
(c) To the extent that Issuer is prohibited under applicable law or
regulation from repurchasing the Option and/or the Option Shares in full, Issuer
shall promptly so notify the
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Holder and/or the Owner and thereafter deliver or cause to be delivered, from
time to time, to the Holder and/or the Owner, as appropriate, the portion of the
Option Repurchase Price and the Option Share Repurchase Price, respectively,
that it is no longer prohibited from delivering, within five business days after
the date on which Issuer is no longer so prohibited; provided, however, that if
Issuer at any time after delivery of a notice of repurchase pursuant to
paragraph (b) of this Section 7 is prohibited under applicable law or regulation
from delivering to the Holder and/or the Owner, as appropriate, the Option
Repurchase Price and the Option Share Repurchase Price, respectively, in full
(and Issuer hereby undertakes to use its reasonable best efforts to obtain all
required regulatory and legal approvals and to file any required notices as
promptly as practicable in order to accomplish such repurchase), the Holder or
Owner may revoke its notice of repurchase of the Option and/or the Option Shares
whether in whole or to the extent of the prohibition, whereupon, in the latter
case, Issuer shall promptly (i) deliver to the Holder and/or the Owner, as
appropriate, that portion of the Option Repurchase Price and/or the Option Share
Repurchase Price that Issuer is not prohibited from delivering; and (ii)
deliver, as appropriate, either (A) to the Holder, a new Agreement evidencing
the right of the Holder to purchase that number of shares of Common Stock
obtained by multiplying the number of shares of Common Stock for which the
surrendered Agreement was exercisable at the time of delivery of the notice of
repurchase by a fraction, the numerator of which is the Option Repurchase Price
less the portion thereof theretofore delivered to the Holder and the denominator
of which is the Option Repurchase Price, and/or (B) to the Owner, a certificate
for the Option Shares it is then so prohibited from repurchasing. If an Exercise
Termination Event shall have occurred less than 30 days prior to the date of the
notice by Issuer described in the first sentence of this subsection (c), or
shall be scheduled to occur at any time before the expiration of a period ending
on the thirtieth day after such date, the Holder shall nonetheless have the
right to exercise the Option until the expiration of such 30-day period after
the date of the Exercise Termination Event or the notice date, respectively.
(d) For purposes of this Section 7, a Repurchase Event shall be deemed
to have occurred (i) upon the consummation of any merger, consolidation or
similar transaction involving Issuer or any purchase, lease or other acquisition
of all or a majority of the assets of Issuer on a consolidated basis, other than
any such transaction which would not constitute an Acquisition Transaction
pursuant to the proviso to Section 2(c)(i) hereof or (ii) upon the acquisition
by any person of beneficial ownership of 50% or more of the then outstanding
shares of Common Stock; provided that no such event shall constitute a
Repurchase Event unless a Subsequent Triggering Event shall have occurred prior
to an Exercise Termination Event. The parties hereto agree that Issuer"s
obligations to repurchase the Option or Option Shares under this Section 7 shall
not
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terminate upon the occurrence of an Exercise Termination Event unless no
Subsequent Triggering Event shall have occurred prior to the occurrence of an
Exercise Termination Event.
8. Substitute Option. (a) In the event that prior to an Exercise
Termination Event, Issuer shall enter into an agreement (i) to consolidate with
or merge into any person, other than Grantee or any of its Subsidiaries
(collectively, "Excluded Persons") and Issuer shall not be the continuing or
surviving corporation of such consolidation or merger, (ii) to permit any
person, other than an Excluded Person, to merge into Issuer and Issuer shall be
the continuing or surviving or acquiring corporation, but, in connection with
such merger, the then outstanding shares of Common Stock shall be changed into
or exchanged for stock or other securities of any other person or cash or any
other property or the then outstanding shares of Common Stock shall after such
merger represent less than 50% of the outstanding voting shares and voting share
equivalents of the merged or acquiring company, or (iii) to sell or otherwise
transfer all or substantially all of its assets to any person, other than an
Excluded Person, then, and in each such case, the agreement governing such
transaction shall make proper provision so that the Option shall, upon the
consummation of any such transaction and upon the terms and conditions set forth
herein, be converted into, or exchanged for, an option (the "Substitute
Option"), at the election of the Holder, of either (A) the Acquiring Corporation
(as hereinafter defined) or (B) any person that controls the Acquiring
Corporation.
(b) The following terms have the meanings indicated:
(i) "Acquiring Corporation" shall mean (A) the continuing
or surviving person of a consolidation or merger with
Issuer (if other than Issuer), (B) Issuer in a merger
in which Issuer is the continuing or surviving or
acquiring person, and (C) the transferee of all or
substantially all of Issuer"s assets.
(ii) "Substitute Shares" shall mean the shares of capital
stock (or similar equity interest) with the greatest
voting power in respect of the election of directors
(or other persons similarly responsible for direction
of the business and affairs) of the issuer of the
Substitute Option.
(iii) "Assigned Value" shall mean the market/offer price as
defined in Section 7.
(iv) "Average Price" shall mean the average closing price
per Substitute Share,
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on the principal trading market on which such shares
are traded as reported by a recognized source, for the
20 trading day period immediately preceding the
consolidation, merger or sale in question, but in no
event higher than the closing price of the Substitute
Shares on such market on the day preceding such
consolidation, merger or sale; provided that if Issuer
is the issuer of the Substitute Option, the Average
Price shall be computed with respect to a share of
common stock issued by the person merging into Issuer
or by any company which controls or is controlled by
such person, as the Holder may elect.
(c) The Substitute Option shall have the same terms as the Option,
provided that if the terms of the Substitute Option cannot, for legal reasons,
be the same as the Option, such terms shall be as similar as possible to the
terms of the Option and (to the extent permitted by applicable law) in no event
less advantageous to the Holder. The issuer of the Substitute Option shall also
enter into an agreement with the then Holder or Holders of the Substitute Option
in substantially the same form as this Agreement (after giving effect for such
purpose to the provisions of Section 9 hereof), which agreement shall be
applicable to the Substitute Option.
(d) The Substitute Option shall be exercisable for such number of
Substitute Shares as is equal to the Assigned Value multiplied by the number of
shares of Common Stock for which the Option was exercisable immediately prior to
the event described in the first sentence of Section 8(a) hereof, divided by the
Average Price. The exercise price of the Substitute Option per Substitute Share
shall then be equal to the Option Price multiplied by a fraction, the numerator
of which shall be the number of shares of Common Stock for which the Option was
exercisable immediately prior to the event described in the first sentence of
Section 8(a) hereof and the denominator of which shall be the number of
Substitute Shares for which the Substitute Option is exercisable.
(e) In no event, pursuant to any of the foregoing paragraphs, shall the
number of shares purchasable upon exercise of the Substitute Option exceed 19.9%
of the Substitute Shares then issued and outstanding at the time of exercise
(without giving effect to Substitute Shares issued or issuable under the
Substitute Option). In the event that the Substitute Option would be exercisable
for more than 19.9% of the Substitute Shares then issued and outstanding prior
to exercise but for this clause (e), the issuer of the Substitute Option (the
"Substitute Option Issuer") shall make a cash payment to Holder equal to the
excess of (i) the value of the Substitute Option without giving effect to the
limitation in this clause (e) over (ii) the value of
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the Substitute Option after giving effect to the limitation in this clause (e).
This difference in value shall be determined by a nationally recognized
investment banking firm selected by Grantee (or, if Grantee is not then the
Holder owning Options with respect to the largest number of Shares, the largest
Holder) and reasonably acceptable to Issuer, which determination, absent
manifest error, shall be conclusive for all purposes of this Agreement.
(f) In addition to any other restrictions or covenants, Issuer agrees
that it shall not enter or agree to enter into any transaction described in
Section 8(a) hereof unless (i) the Acquiring Corporation and any person that
controls the Acquiring Corporation assume in writing all the obligations of
Issuer hereunder and (ii) the Substitute Option Issuer agrees to comply with
this Section 8 and agrees to take all action necessary to prevent the exercise
of any rights of any holder of Substitute Shares or shares of capital stock of
any successor to the Substitute Option Issuer that any holder of the Substitute
Option (each such person being referred to herein as a "Substitute Option
Holder") or any holder of Substitute Shares (each such person being referred to
herein as a "Substitute Share Owner") purchased upon exercise of the Substitute
Option by a Substitute Option Holder would be prohibited or precluded from
exercising or the exercise of which would adversely affect the rights of any
Substitute Option Holder under the agreement for such Substitute Option or the
transactions contemplated by the Merger Agreement.
9. Repurchase of Substitute Option. (a) At the written request of a
Substitute Option Holder or upon written notice of election by the Substitute
Option Issuer, the Substitute Option Issuer shall repurchase the Substitute
Option from the Substitute Option Holder at a price (the "Substitute Option
Repurchase Price") equal to the amount by which (i) the Highest Closing Price
(as hereinafter defined) exceeds (ii) the exercise price of the Substitute
Option multiplied by the number of Substitute Shares for which the Substitute
Option may then be exercised, and at the request of the Substitute Share Owner
or upon written notice of election by the Substitute Option Issuer, the
Substitute Option Issuer shall repurchase the Substitute Shares at a price (the
"Substitute Share Repurchase Price") equal to the Highest Closing Price
multiplied by the number of Substitute Shares so designated. The term "Highest
Closing Price" shall mean the highest average closing price for Substitute
Shares for any 20 trading day period within the three-month period immediately
preceding the date the Substitute Option Holder or the Substitute Option Issuer
gives notice of the required repurchase of the Substitute Option or the
Substitute Share Owner or the Substitute Option Issuer gives notice of the
required repurchase of the Substitute Shares, as applicable.
(b) The Substitute Option Holder and the Substitute Share Owner, as the
case may be,
15
may exercise its respective rights to require the Substitute Option Issuer to
repurchase the Substitute Option and the Substitute Shares pursuant to this
Section 9 by surrendering for such purpose to the Substitute Option Issuer, at
its principal office, the agreement for such Substitute Option (or, in the
absence of such an agreement, a copy of this Agreement) and/or certificates for
Substitute Shares accompanied by a written notice or notices stating that the
Substitute Option Holder or the Substitute Share Owner, as the case may be,
elects to require the Substitute Option Issuer to repurchase the Substitute
Option and/or the Substitute Shares in accordance with the provisions of this
Section 9. As promptly as practicable and in any event within five business days
after the surrender of the Substitute Option and/or certificates representing
Substitute Shares and the receipt of such notice or notices relating thereto,
the Substitute Option Issuer shall deliver or cause to be delivered to the
Substitute Option Holder the Substitute Option Repurchase Price and/or to the
Substitute Share Owner the Substitute Share Repurchase Price therefor or the
portion thereof which the Substitute Option Issuer is not then prohibited under
applicable law and regulation from so delivering. The Substitute Option Issuer
may exercise its right to require the Substitute Option Holder and/or the
Substitute Share Owner to sell the Substitute Options and/or the Substitute
Shares, as the case may be, pursuant to this Section 9 by delivering written
notice to the Substitute Option Holder and/or the Substitute Share Owner. Within
five business days after the receipt of such written notice, the Substitute
Option Holder and/or the Substitute Share Owner, as the case may be, shall
surrender to the Substitute Option Issuer, at its principal office, the
agreement for such Substitute Option (or, in the absence of such an agreement, a
copy of this Agreement) and/or the Substitute Shares, as the case may be,
against payment to the Substitute Option Holder and/or Substitute Share Owner of
the Substitute Option Repurchase Price and/or the Substitute Share Repurchase
Price, as the case may be.
(c) To the extent that the Substitute Option Issuer is prohibited under
applicable law or regulation from repurchasing the Substitute Option and/or the
Substitute Shares in part or in full, the Substitute Option Issuer shall
promptly so notify the Substitute Option Holder and/or the Substitute Share
Owner and thereafter deliver or cause to be delivered, from time to time, to the
Substitute Option Holder and/or the Substitute Share Owner, as appropriate, the
portion of the Substitute Option Repurchase Price and/or the Substitute Share
Repurchase Price, respectively, which it is no longer prohibited from
delivering, within five (5) business days after the date on which the Substitute
Option Issuer is no longer so prohibited; provided, however, that if the
Substitute Option Issuer is, at any time after delivery by the Substitute Option
Holder, Substitute Share Owner or Substitute Option Issuer of a notice of
repurchase pursuant to subsection (b) of this Section 9, prohibited under
applicable law or regulation from delivering to the Substitute Option Holder
and/or the Substitute Share Owner, as appropriate, the Substitute Option
16
Repurchase Price and the Substitute Share Repurchase Price, respectively, in
full (and the Substitute Option Issuer shall use its best efforts to receive all
required regulatory and legal approvals as promptly as practicable in order to
accomplish such repurchase), the Substitute Option Holder, Substitute Share
Owner or the Substitute Option Issuer, as the case may be, may revoke its notice
of repurchase of the Substitute Option or the Substitute Shares either in whole
or to the extent of the prohibition, whereupon, in the latter case, the
Substitute Option Issuer shall promptly (i) deliver to the Substitute Option
Holder or Substitute Share Owner, as appropriate, that portion of the Substitute
Option Repurchase Price or the Substitute Share Repurchase Price that the
Substitute Option Issuer is not prohibited from delivering; and (ii) deliver, as
appropriate, either (A) to the Substitute Option Holder, a new Substitute Option
evidencing the right of the Substitute Option Holder to purchase that number of
Substitute Shares obtained by multiplying the number of Substitute Shares for
which the surrendered Substitute Option was exercisable at the time of delivery
of the notice of repurchase by a fraction, the numerator of which is the
Substitute Option Repurchase Price less the portion thereof theretofore
delivered to the Substitute Option Holder and the denominator of which is the
Substitute Option Repurchase Price, and/or (B) to the Substitute Share Owner, a
certificate for the Substitute Option Shares it is then so prohibited from
repurchasing. If an Exercise Termination Event shall have occurred less than 30
days prior to the date of the notice by the Substitute Option Issuer described
in the first sentence of this subsection (c), or shall be scheduled to occur at
any time before the expiration of a period ending on the thirtieth day after
such date, the Substitute Option Holder shall nevertheless have the right to
exercise the Substitute Option until the expiration of such 30-day period after
the date of the Exercise Termination Event or the notice date, respectively.
10. Extension. The period for exercise of certain rights under Sections
2, 6, 7, 9 and 12 hereof shall be extended: (a) to the extent necessary to
obtain all governmental and regulatory approvals for the exercise of such rights
(for so long as the Holder, Substitute Option Holder or Substitute Share Owner,
as the case may be, is using its reasonable best efforts to obtain such
regulatory approvals), and for the expiration of all statutory waiting periods;
(b) during any period for which an injunction or similar legal prohibition on
exercise shall be in effect; (c) to the extent necessary to avoid liability
under Section 16(b) of the Exchange Act by reason of such exercise; and (d) by
the number of days by which Issuer shall have delayed any registration pursuant
to Section 6(d) hereof.
11. Representations and Warranties. (a) Issuer hereby represents and
warrants to Grantee as follows:
17
(i) Issuer has full corporate power and authority to
execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of Issuer
and no other corporate proceedings on the part of
Issuer are necessary to authorize this Agreement or to
consummate the transactions so contemplated. This
Agreement has been duly and validly executed and
delivered by Issuer and constitutes a valid and legally
binding obligation of Issuer enforceable in accordance
with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or
affecting creditors" rights or by general equity
principles, whether such principles are considered at
law or in equity).
(ii) Issuer has taken all necessary corporate action to
authorize and reserve and to permit it to issue, and at
all times from the date hereof through the termination
of this Agreement in accordance with its terms will
have reserved for issuance upon the exercise of the
Option, that number of shares of Common Stock equal to
the maximum number of shares of Common Stock at any
time and from time to time issuable hereunder, and all
such shares, upon issuance pursuant to the Option, will
be duly authorized, validly issued, fully paid,
nonassessable, and will be delivered free and clear of
all claims, liens, encumbrances and security interests
and not subject to any preemptive rights.
(iii) The execution, delivery and performance of this
Agreement does not or will not, and the consummation by
Issuer of any of the transactions contemplated hereby
will not, constitute or result in (A) a breach or
violation of or a default under, its articles or
certificate of incorporation or by-laws, or the
comparable governing instruments of any of its
subsidiaries, or (B) a breach or violation of or a
default under, any agreement, lease, contract, note,
mortgage, indenture, arrangement or other obligation of
it or any of its subsidiaries (with or without the
giving of notice, the lapse of time or both) or under
any law, rule, ordinance or regulation or judgment,
decree, order, award or governmental or
non-governmental permit or license to which it or any
of its subsidiaries is subject, except where such
breach, violation or
18
default would not in the aggregate have a Material
Adverse Effect (as defined in the Merger Agreement) and
would not materially impair Issuer"s ability to
consummate the transactions contemplated by this
Agreement.
(b) Grantee hereby represents and warrants to Issuer that Grantee has
full corporate power and authority to enter into this Agreement and, subject to
obtaining the approvals referred to in this Agreement, to consummate the
transactions contemplated by this Agreement; the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of Grantee; and
this Agreement has been duly executed and delivered by Grantee and constitutes a
valid and legally binding obligation of Grantee enforceable in accordance with
its terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability relating to or affecting creditors" rights
or by general equity principles, whether such principles are considered at law
or in equity).
12. Assignment. Neither of the parties hereto may assign any of its
rights or obligations under this Agreement or the Option created hereunder to
any other person, without the express written consent of the other party, except
that in the event a Subsequent Triggering Event shall have occurred prior to an
Exercise Termination Event, Grantee may assign in whole or in part its rights
and obligations hereunder within twelve (12) months following such Subsequent
Triggering Event (or such later period as provided in Section 10 hereof)
provided that the assignee executes a supplement to this Agreement agreeing to
be bound by this Agreement"s terms.
13. Filings; Other Actions. Each of Grantee and Issuer will use its
reasonable best efforts to make all filings with, and to obtain consents of, all
third parties and regulatory and governmental authorities necessary to the
consummation of the transactions contemplated by this Agreement, including,
without limitation, notices and filings under HSR.
14. Best Efforts. Each of Grantee and Issuer will use its reasonable
best efforts to make all filings with, and to obtain consents of, all third
parties and governmental authorities necessary for the consummation of the
transactions contemplated by this Agreement, including, without limitation,
making application to list the shares of Common Stock issuable hereunder on NYSE
upon official notice of issuance.
19
15. Specific Performance. The parties hereto acknowledge that damages
would be an inadequate remedy for a breach of this Agreement by either party
hereto and that the obligations of the parties hereto shall be enforceable by
either party hereto through injunctive or other equitable relief.
16. Severability. If any term, provision, covenant or restriction
contained in this Agreement is held by a court or a federal or state regulatory
agency of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions and covenants and restrictions contained in
this Agreement shall remain in full force and effect, and shall in no way be
affected, impaired or invalidated. If for any reason such court or regulatory
agency determines that the Holder is not permitted to acquire, or Issuer or
Substitute Option Issuer, as applicable, is not permitted to repurchase pursuant
to Section 7 or 9 hereof, as applicable, the full number of shares of Common
Stock provided in Section 1(a) hereof (as adjusted pursuant to Section 1(b) or
Section 5 hereof), it is the express intention of Issuer to allow the Holder to
acquire or to require Issuer to repurchase such lesser number of shares as may
be permissible, without any amendment or modification hereof.
17. Notices. All notices, requests, claims, demands and other
communications hereunder shall be deemed to have been duly given when delivered
in person, by fax, telecopy, or by registered or certified mail (postage
prepaid, return receipt requested) at the respective addresses of the parties
set forth in the Merger Agreement or such other address as shall be provided in
writing.
18. Governing Law. This Agreement shall be governed by, and interpreted
in accordance with, the laws of the State of New York.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original.
20. Expenses. Except as otherwise expressly provided herein, each of
the parties hereto shall bear and pay all costs and expenses incurred by it or
on its behalf in connection with the transactions contemplated hereunder,
including fees and expenses of its own financial consultants, investment
bankers, accountants and counsel.
21. Entire Agreement. Except as otherwise expressly provided herein or
in the Merger Agreement, this Agreement contains the entire agreement between
the parties with respect to the
20
transactions contemplated hereunder and supersedes all prior arrangements or
understandings with respect thereof, written or oral. The terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective successors and permitted assignees. Nothing in this
Agreement, expressed or implied, is intended to confer upon any party, other
than the parties hereto, and their respective successors except as assignees,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided herein.
22. Limitation on Profit. (a) Notwithstanding any other provision of
this Agreement, in no event shall the Grantee"s Total Profit (as hereinafter
defined) exceed $27.5 million and, if it otherwise would exceed this amount, the
Grantee, at its sole election, shall either (i) reduce the number of shares of
Common Stock subject to this Option (or the number of shares of common stock of
the Substitute Option Issuer subject to this Substitute Option, as the case may
be), (ii) deliver to the Issuer (or Substitute Option Issuer) for cancellation
Option Shares (or Substitute Shares) previously purchased by Grantee, (iii) pay
cash to the Issuer (or Substitute Option Issuer), or (iv) any combination
thereof, so that Grantee"s realized Total Profit shall not exceed $27.5 million
after taking into account the foregoing actions.
(b) Notwithstanding any other provision of this Agreement, this Option
(or Substitute Option) may not be exercised for a number of shares as would, as
of the date of exercise, result in a Notional Total Profit (as defined below)
which would exceed $27.5 million; provided, that nothing in this sentence shall
restrict any exercise of the Option (or Substitute Option) permitted hereby on
any subsequent date.
(c) As used in this Agreement, the term "Total Profit" shall mean the
aggregate amount (before taxes) of the following: (i) (A) the amount received by
Grantee and each other Holder or Substitute Option Holder pursuant to Issuer"s
repurchase of the Option (or any portion thereof) or any Option Shares in
accordance with Section 7, or pursuant to Substitute Option Issuer"s repurchase
of the Substitute Option (or any portion thereof) or any Substitute Shares in
accordance with Section 9, less, in the case of any repurchase of Option Shares
or Substitute Shares, (B) the Grantee"s and each other Holder"s or Substitute
Option Holder"s purchase price for such Option Shares or Substitute Shares, as
the case may be, (ii) (A) the net cash amounts (and the fair market value of any
other consideration) received by Grantee and each other Holder or Substitute
Option Holder pursuant to the sale of Option Shares or Substitute Shares (or any
other securities into which such Option Shares or Substitute Shares are
converted or exchanged) to any unaffiliated party, less (B) the Grantee"s and
each other Holder"s or Substitute Option
21
Holder"s purchase price of the Option Shares or Substitute Shares, and (iii) the
net cash amounts (and the fair market value of any other consideration) received
by Grantee and each other Holder or Substitute Option Holder on the transfer of
the Option or Substitute Option (or any portion thereof) to any unaffiliated
party. In the case of clauses (ii) (A) and (iii) above, the Grantee and each
Holder or Substitute Option Holder agree to furnish as promptly as reasonably
practicable after any disposition of all or a portion of the Option or Option
Shares or of the Substitute Option or Substitute Shares a complete and correct
statement, certified by a responsible executive officer or partner of the
Grantee or Holder or Substitute Option Holder, as the case may be, of the net
cash amounts (and the fair market value of any other consideration) received in
connection with any sale or transfer of the Option or Option Shares or of the
Substitute Option or Substitute Shares.
(d) As used in this Agreement, the term "Notional Total Profit" with
respect to any number of shares as to which Grantee and each other Holder or
Substitute Option Holder may propose to exercise this Option or Substitute
Option shall be the Total Profit determined as of the date of this proposal
assuming that this Option or Substitute Option were exercised on such date for
this number of shares and assuming that such shares, together with all other
Option Shares or Substitute Shares held by Grantee and each other Holder or
Substitute Option Holder and their respective affiliates as of such date, were
sold for cash at the closing market price for the Common Stock (or the common
stock of the Substitute Option Issuer, as the case may be) as of the close of
business on the preceding trading day (less customary brokerage commissions).
23. Captions; Capitalized Terms. The section and paragraph captions
herein are for convenience of reference only, do not constitute part of this
Agreement and shall not be deemed to limit or otherwise affect any of the
provisions hereof. Capitalized terms used in this Agreement and not defined
herein shall have the meanings assigned thereto in the Merger Agreement.
22
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized, all as of the
date first above written.
THE INTERPUBLIC GROUP OF
COMPANIES, INC.
By: /s/ Xxxxxxxx X. Camera
--------------------------------
Name: Xxxxxxxx X. Camera
Title: Vice President
NFO WORLDWIDE, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
